2006 Legal Update Archives (formerly known as Street Legal)
Representation of a gun qualifies for aggravated robbery conviction
One almost feels sorry for Ireland. He’s not the brightest bulb on the tree. On December 6, 2003, Ireland robbed a jewelry store. Ireland told the clerk: “I want you to go and get me all the money in the cash drawer right now.” Ireland held his hand inside his gun, vaguely simulating the outline of a handgun. Ireland never told the clerk that he had a gun. However, the clerk believed that Ireland had a gun. The clerk gave up the money. The store owner, however, got mad and chased Ireland. Ireland tried to flee in a cab. When the store owner told the cab driver that Ireland had robbed his store, the cab driver took off. The store owner caught Ireland and forced him to give back the money. Ireland was picked up by officers. He was convicted of aggravated robbery. Ireland challenged his conviction on the basis that his vague gesture was neither a facsimile nor a representation of a weapon. He claimed that the gesture could not be a representation of a gun because he did not claim that it was a gun. After three years in the court system, the Utah Supreme Court upheld his conviction. Assistant Attorney General Brett DelPorto did a brilliant job of dogging this case to the end. Although the court suggested that the statute needed legislative revision, the court agreed with the state that the clerk’s reasonable belief based on Ireland’s gesture was sufficient to create a “representation” of a weapon. State v. Ireland, --- P.3d ----, 2006 WL 3690656 (Utah 2006).
Refusal of tape-recording doesn't equal invocation of right to remain silent
Rodrigues stole a trailer-mounted welder from his employer. An officer interviewed Rodrigues and obtained Rodrigues’ explanation of why the welder was found in his garage. After the interview, the officer asked Rodrigues to repeat his statement on tape. Rodrigues refused. The officer stopped all questioning. Rodrigues was later charged and convicted. He claimed that his refusal to be taped was an invocation of his right to remain silent. At trial, the prosecutor commented on Rodrigues refusal to be taped. Rodrigues objected, claiming that the prosecutor’s remark was an improper comment on Rodrigues’ right to remain silent.
The Hawai’i Supreme Court discussed the only two other cases addressing whether a refusal to be taped is an invocation of the right to silence. and that they came to opposite conclusions. A Nebraska case held that “a defendant’s refusal to give a statement constitutes ‘silence,’ regardless of whether the defendant has previously given a statement to police. As a result, use of the police officer’s statement about the defendant’s refusal to give a tape-recorded statement was fundamentally unfair and constitutes a violation of due process.” State v. Woods, 542 N.W.2d 410 (Neb. 1996). A Maryland court found that giving a voluntary statement, but refusing to be taped, did not constitute an invocation of the right to remain silent. Ball v. State, 699 A.2d 1170 (Md. 1997). The Hawai’i court concluded that a defendant who states a refusal to be taped at the beginning of an interview may well be invoking the right to remain silent. However, a defendant who makes the refusal at the end of the interview is not invoking the right to remain silent. Thus, the prosecutor’s comment on Rodrigues’ refusal to be taped was allowed and his conviction was upheld. State v. Rodrigues, --- P.3d ----, 2006 WL 3423334 (Hawai'i 2006).
Random searches on ferry justified by government special needs post-9/11
Cassidy and Cabin commute across Lake Champlain (Vermont to New York) via ferry. Cassidy drives his car and Cabin rides his bicycle. Following the 9/11 attacks, the Coast Guard implemented regulations that prompted the ferry company to inspect the carry-on bags of pedestrians and cyclists and the trunks of drivers. Cassidy and Cabin sued, claiming an intrusion on their 4th Amendment privacy rights. Earlier this year, the court upheld searches of hand-carry items of New York subway passengers. MacWade v. Kelly, 460 F.3d 260 (2nd Cir. 2006). The plaintiffs argued that there was no obvious terrorist threat to the Vermont-New York ferry crossing. In other words, public safety officials should show some evidence of an actual threat, e.g. a hijacked airplane crashing into a building, before the searches should be allowed. (One wonders whether Cassidy and Cabin made this argument with a straight face). Therefore, the searches were unreasonable. Moreover, there were less intrusive, though more expensive and perhaps less effective, means of checking bags (metal detectors). The court rejected both arguments and found that the government’s interest in keeping ferry boats safe was a legitimate special need justifying the searches. The court weighs three factors in a special needs claim: (1) the nature of the privacy interest involved; (2) the character and degree of the governmental intrusion; and (3) the nature and immediacy of the government’s needs, and the efficacy of its policy in addressing those needs. Though the passengers held a legitimate expectation of privacy in purses, briefcases, and car trunks, the brief inspections were minimally intrusive, and they were effective in countering terrorist attacks. Cassidy v. Chertoff, --- F.3d ----, 2006 WL 3436590 (2nd Cir. 2006).
Anonymous call with no call-back answer justifies emergency aid entry
Elder and friends were cooking meth in a shed near his home. Someone (later identified as Elder’s father), called the police and said “we got meth out here” and suspects were “flying like quail.” The caller hung up and the dispatcher called the number back. No one answered. Responding officers knocked on the door of Elder’s residence. No one answered, though officers could hear a television. The officers went to the open shed, entered, and found the meth lab. Elder claimed that the emergency aid exception did not justify the warrantless entry. The court of appeals ruled that one obvious explanation for the lack of an answer to the dispatcher’s call-back was that a person was inside and injured. Other explanations cited were the possibility that the caller had been kidnapped or was hiding from meth-cooking assailants. “The fact that drug dealers often use guns or knives to protect their operations created a possibility that violence had been done, or that someone was still there and lying in wait. So considerations of safety -the caller’s and the officers’- made a look-see prudent.” United States v. Elder, ___ F.3d ___, 2006 WL 3079108 (2006).
Child porn subscription was not "stale"
Felix, under the screen name truebrother999 @Yahoo.com, sent an email containing three digital images of very graphic child pornography to a sting web site in Maryland. A Maryland officer investigated the Internet Protocol address associated with Felix’s email account, and discovered a profile listing Orlando, Florida. Felix was identified as the account holder. Maryland officers contacted the Orange County officers on September 10, 2004. The detective discovered that Felix had moved to a different address than the one listed on his driver license. He also examined the internet profile associated with Felix, and found that the photograph included in the profile matched the picture on Felix's driver's license. The detective eventually completed an affidavit in support of a search warrant based, in part, on this information. On September 29, 2004, about 5½ months after the three images of child pornography were transmitted to the Maryland officer, Orange County officers obtained a search warrant to seize Felix’s computer and any other equipment or accessories that contained child pornography, or anything that would identify juvenile victims or witnesses to any illegal acts of abuse by Felix. The search warrant was executed a week later. Officers found over 100 images of alleged child pornography on Felix’s computer.
Felix claimed that the information underlying the affidavit stale was stale due to the 5½ month delay between sending the email to the undercover web site and obtaining the search warrant and the fact that Felix had changed residence during that time. The court disagreed, relying on expert testimony that those who possess such materials rarely, if ever, let go of images once they have them. Moreover, the court acknowledged that people who possess illegal child pornography usually do so in their homes. Many other courts have noted the retention habits of possessors of child pornography. State v. Felix, ___ So.2d ___, 2006 WL 2844268 (Fla. App. 2006).
Consent obtained by deception was involuntary
A trooper arrested a suspect for possession of illegal drugs. The trooper wanted to search Krause’s home, believed to be the source of the drugs and the location of more drugs. Knowing that Krause would not likely consent to a search, and lacking probable cause for a warrant, the trooper invented a story about a young girl being raped. The trooper knocked on Krause’s door at 0400 and said that he wanted to see the inside of the home to determine whether it matched the imaginary description of the rape location. When Krause opened the door, the trooper spun the tale and was admitted. The trooper found drugs in plain view.
Krause asked the court to suppress the evidence, claiming that the ruse made his consent involuntary. The court agreed, relying principally on the hour of the visit and the shocking nature of the story that the trooper told. The court believed that the child rape allegation was so heinous that any citizen would consent to a search, particularly when the citizen knew that he or she was not involved. The court generally approved of ruses and deception by police in this split decision. However, this particular deception was over the top. Krause v. Commonwealth, --- S.W.3d ----, 2006 WL 2986470 (Ky. 2006).
Entrapment defense fails in child sex enticement
Brand contacted an undercover profile in the “I love Older Men” chat room. Following several chats, he arranged a meeting, believing that he would be meeting a 13-year-old girl for sex. Brand claimed that he was entrapped, asserting that the undercover agent induced him to travel in interstate commerce for the purpose of engaging in illicit sexual activity with a minor in violation of 18 U.S.C. §2423(b), and of using a computer, the Internet, and a telephone in an attempt to persuade, induce, and entice a minor to engage in illicit sexual activity in violation of 18 U.S.C. §2422(b). The prosecution did not vigorously fight the inducement claim, but did argue that Brand was predisposed to commit the crimes. The Court of Appeals agreed that Brand had not been entrapped. First, Brand affirmative navigated to a sexually-suggestive web site “I love Older Men.” Second, Brand responded promptly to communications from the young undercover profile. Third, the court found that images of child pornography found on Brand’s home computer were admissible as “other bad acts” showing a disposition to commit the charged offenses. The judges acknowledged scientific research demonstrating that “a direct connection exists between child pornography and pedophilia.” Finally, Brand used the screen name of “tempoteech.” The court agreed with the prosecution that the name could be suggestive in light of Brand’s statement that he would teach “sexual stuff” and could not wait to touch the child’s “breasts, crotch and ass.” United States v. Brand, ___ F.3d ___, 2006 WL 2981524 (2nd Cir. 2006).
DV report justifies emergency aid entry
Black beat Walker, his girlfriend, at the apartment that they shared. Later in the day, Walker called police from a store located just a short distance from the apartment. She asked police to stand by while she retrieved personal items from the apartment. She told the dispatcher that Black had a gun. Officers responded promptly, beating Walker to the apartment. When officers did not see Walker, they knocked on the door and received no answer. One of the officers found Black in the alley behind the apartment. Black denied knowing where Walker could be found, but admitted that he knew that officers were there to investigate domestic violence. The officer frisked Black and found a key to the apartment. Fearing that Walker might be injured inside the apartment, the officers entered. One officer immediately saw a gun, but did not find Walker. The officers left the apartment and arrested Black on a gun charge.
Black argued that the time between the initial call and the police entry to the apartment was too short for police to reasonably believe that he had further assaulted Walker and that she would be in the apartment. One judge agreed, but the majority sustained the entry and arrest. Emphasizing the need for prompt response to domestic violence calls, the court noted: “This is a welfare search where rescue is the objective, rather than a search for crime. We should not second-guess the officers’ objectively reasonable decision in such a case.” The court cited the recent decision in Brigham City v. Stuart. “Law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” If, in the course of doing so, an officer discovers evidence of illegal activity, that evidence is admissible even if there was not probable cause to believe that such evidence would have been found. United States v. Black, ___ F.3d ___, 2006 WL 3026026 (9th Cir. 2006).
Detention of 1 hour for a dog sniff upheld
A trooper stopped Douglas for a lane change signal violation. Douglas produced a driver license that was broken in two and held together with tape. He told the trooper that he and his passenger were driving from LA to Washington, D.C. Both men were dressed in business suits. Douglas said that they flew from D.C. to LA and the passenger rented the car to drive back. Douglas’s license was not on file. Some time later, the license was found to be valid after the dispatcher realized that the check should be through D.C. and not Washington state. His passenger’s license was valid and the passenger had a prior drug arrest. The trooper noted a strong chemical odor in the car, and saw two cologne bottles and a large hand-rolled cigar. At that point, the trooper separated Douglas and Seymour, his passenger, and questioned them further. Douglas said that they had been in California visiting Seymour’s relatives, but he did not know their names. Seymour initially denied his prior arrest.
The trooper asked Seymour for consent to search. Seymour declined. The trooper then called for a drug detector dog. The dog arrived approximately 1 hour after the initial stop. The dog immediately indicated the odor of drugs in the trunk. The trooper searched the trunk and found a 3,591 ml of PCP and 435 grams of marijuana. The court ruled that the initial stop, questions about travel plans, and inquiry into criminal history were all proper. The critical question was the length of the detention. Due to the mutilated license and dispatch error, it took 38 minutes before the trooper realized that Douglas had a valid license. The further detention was justified because: 1, the travel itinerary was unusual (flying to LA, renting a car and driving cross-country); 2, Douglas was coming from LA, a known drug source city; 3, Douglas could not provide details about the visit to Seymour’s relatives; 4, the chemical odor; 5, the masking agents (cologne); and, 6, Seymour’s criminal record. United States v. Douglas, ---F.3d---, 2006 WL 2642129 (10th Cir. 2006).
Warrantless body search and forced spitting upheld a second time
Following surveillance and reports that Ernesto Alvarez was selling drugs, officers approached Alvarez to speak to him. Officers had noted a small bottle of water in the car (sometimes used to wash down balloons of drugs quickly swallowed), an emblem of Jesus Malverde, known as the patron saint of drug dealing, and a traffic pattern suggesting drug sales. There had been anonymous reports of drug dealing involving the same car. The car had been seen at the same place, and for brief periods on two consecutive days. When an officer asked Alvarez to show the contents of his mouth, Alvarez used his tongue to move something around in his mouth and began swallowing. The officer placed Alvarez in a wrist lock, bent him forward to inhibit swallowing, and commanded him to spit out the contents of his mouth. Alvarez spit out 15 balloons of dope.
The court found that officers had reasonable suspicion to approach Alvarez and question him. The anonymous tips of drug dealing could be considered in the reasonable suspicion analysis. When Alvarez began to nervously move things around in his mouth and began swallowing, officers had probable cause to search him. An exigent circumstances search must be based on both probable cause and a lack of time to obtain a warrant or a danger to officers or the public. There was obviously no time to get a warrant once Alvarez began to swallow the evidence.
The force used to require Alvarez to spit out the drugs was reasonable. Courts consider: 1, the degree of threat (if any) to the suspect’s health by the method used to obtain the evidence; 2, the degree of intrusion on the suspect’s privacy and personal dignity; and 3, the public interest in obtaining the evidence that will help fairly and accurately determine guilt or innocence. There was a significant threat to Alvarez’s health by his own actions of swallowing balloons of drugs. The officers did not know whether the balloons would burst, potentially causing an overdose, or whether Alvarez would choke on the plastic or rubber containers. There was little intrusion on Alvarez’s dignity and privacy by briefly applying a wrist lock and moving his head forward. The court also ruled that the prosecution’s need to preserve evidence of criminal behavior worked in favor of allowing the search. The force used was not disproportional to the need for the evidence under these circumstances. State v. Alvarez, --- P.3d ----, 2006 WL 2988171 (Utah 2006), affirming State v. Alverez, 111 P.3d 808 (Utah App. 2005).
Detention and consent based on reasonable suspicion
An officer stopped Perez-Llamas for failure to move to the right for faster traffic. The officer asked questions about drugs. Though these questions were beyond the scope of the traffic stop (and thus generally improper under Utah law), the questions were based on reasonable suspicion and were allowed. The officer saw two new, mounted tires in the back of the vehicle that obviously did not fit the vehicle. The tires were entirely wrapped in shrink wrap. The officer testified that this was an indicator of possible drug trafficking. Perez-Llamas was driving on I-15, a “known drug corridor.” He was traveling from Las Vegas to West Valley for work. He had no explanation for having the oversized tires in his vehicle. The officer saw foam spray, sometimes used to hide the odor of drugs. Finally, when the officer shook the tires, he noted something heavy and solid moving inside the tires. Perez-Llamas consented to a search of the tires, which contained marijuana. The court found that the consent was properly requested and was voluntarily granted. State v. Perez-Llamas, 2006 WL 2979555 (Utah App. 2006).
Court deviates from Belton
Officers investigating drug activity saw Gant drive up. Recognizing Gant and knowing of an arrest warrant, an officer arrested Gant as he got out of a car and walked toward the officers. The officer handcuffed Gant and put him in the back of a police car. The officer immediately searched Gant’s car incident to the arrest and found drugs and a handgun. The Arizona Court of Appeals ruled that the search was improper because Gant no longer posed a threat to officers and could not reach and destroy or conceal evidence in the car. This case points to the division in courts on whether the true test of a search incident to arrest is that it occurs substantially contemporaneously or whether the arrestee must still pose a danger to officers and be able to destroy or conceal evidence. State v. Gant, ___ P.3d ___, 2006 WL 2686826 (Ariz. App. 2006).
In New York v. Belton, 453 U.S. 454 (1981), the Supreme Court held that officers may conduct a warrantless search of the passenger compartment of a vehicle as a "contemporaneous incident" of any lawful arrest of a "recent occupant." Belton was based on the earlier decision of Chimel v. California, 395 U.S. 752 (1969). The Court intended Belton to offer a bright line rule to officers on when and where a vehicle may be searched incident to the arrest of a recent occupant. In Thornton v. United States, 541 U.S. 615 (2004), the Court ruled that Belton applied when an officer arrested someone who had exited a car and was walking away from the car at the time of arrest. Many courts have interpreted these decisions to allow a search incident to arrest even when the suspect is handcuffed, and even when the suspect has recently been removed from the scene. United States v. Barnes, 374 F.3d 601, (8th Cir. 2004); United States v. Doward, 41 F.3d 789 (1st Cir. 1994) (“nothing in Belton even remotely implies that officers must discontinue a passenger-compartment search properly initiated as a contemporaneous incident of an occupant’s arrest at the instant the arrestee is transported from the scene”), cert. denied, 514 U.S. 1074 (1995); United States v. Franco, 981 F.2d 470 (10th Cir. 1992).
Since Thornton, courts have reexamined the bright line test of Belton, in light of comments by Supreme Court justices that lower courts may be going too far from the traditional justifications of officer safety and the potential for the suspect to destroy evidence. In Washington v. Chrisman, 455 U.S. 1 (1982), the Supreme Court noted that: “Every arrest must be presumed to present a risk of danger to the arresting officer.” The disturbing result in State v. Gant and other similar recent decisions exacerbates the danger to officers making arrests by encouraging officers to trade safety precautions for technical points of legitimacy of the search incident to arrest.
Thus far, Utah courts have remained faithful to the Belton bright line rule. State v. Harrison, 805 P.2d 769 (Utah App. 1991) (“Police restraint and physical removal of the arrestee, then, while limiting the arrestee's ability to actually reach into a particular area, does not automatically prohibit police from searching that area.”); State v. Wells, 928 P.2d 386 (Utah App. 1996) (stating “being placed in restraints is not dispositive” but “is one factor to be considered”). However, in State v. Hygh, 711 P.2d 264 (Utah 1985), former Justice Zimmerman, joined by Chief Justice Durham, wrote in the concurring opinion: “Once the threat that the suspect will injure the officers with concealed weapons or will destroy evidence is gone, there is no persuasive reason why the officers cannot take the time to secure a warrant.”
Admission of confession upheld
An officer questioned Barrett about sexual abuse of a child. The officer first questioned Barrett in the officer’s unmarked cruiser. Barrett asked to go into his home and talk to his wife. Inside the home and in the presence of the officer, Barrett and his wife discussed the allegations of sexual abuse and Barrett admitted to criminal sexual acts. The officer did not question Barrett during this conversation. The officer then arrested Barrett. After Barrett was taken to the police station, the officer informed Barrett of his Miranda rights and questioned Barrett again. Barrett gave the officer a full confession to rape and sexual exploitation of a minor. Barrett later claimed that he was “in custody” from the moment that the officer approached him and asked the court to suppress all of his statements. The Utah Court of Appeals took the opportunity to provide an excellent reminder of the state of the law about interrogations and Miranda in Utah courts.
The court first noted that the U.S. Supreme Court decision in Oregon v. Elstad controls whether the final confession should be suppressed if the earlier interrogation (in the police car) was obtained in violation of Miranda, though not actually “coerced” from the suspect. The court ruled that Barrett’s confession should not be suppressed. If a confession is given subsequent to an unwarned interrogation the confession may be admissible if it was made voluntarily after a knowing and intelligent waiver of Miranda rights. Whether the first admission was coerced is determined by considering any coercive behavior by police; the length, location and continuity of the interrogation; and the suspect’s maturity, education, physical condition, and mental health. Barrett did not claim any coercive behavior by the officer. The first interrogation was in an unmarked police car in a public area. It was brief, and the officer stopped the interrogation and drove Barrett to his home to see his wife when Barrett asked to go home. The court ruled that the unwarned confession was not coerced.
Barrett also claimed that he equivocally requested an attorney. If a suspect equivocally asks for an attorney before a Miranda waiver, the officer must ask clarifying questions to determine whether the suspect is invoking the right to counsel. However, once the Miranda warning has been given and a waiver obtained, officers need not limit their questions to clarifying an ambiguous request for counsel. Once a knowing and voluntary waiver is obtained, the critical issue in the confession is whether it was voluntarily given. The suspect has the burden of clarifying that he wishes to consult with an attorney. The court found that Barrett did not ask for an attorney and ruled that the confession was admissible. State v. Barrett, ___ P.3d ___, 2006 WL 2923802 (Utah. App. 2006).
Warrants check allowed on Level 1 encounter
An officer saw Tehero riding his bike without a light. The officer pulled in behind Tehoro and stopped, but did not signal to Tehero to stop. Tehero got off his bike and looked at the officer as the officer walked toward him. The officer asked for identification. Tehero did not have ID, but gave the officer his name. A check revealed an arrest warrant. In a search incident to arrest, the officer found a bag of meth on Tehero. Tehero claimed that the arrest and search followed an illegal detention. Tehero argued that the detention was a level two (reasonable suspicion) stop, while the prosecution argued that it was a level one (voluntary) encounter. Tehero argued that when the officer asked his name he was “seized.” The court disagreed. The officer gave no commands to stop, used casual language, did not touch Tehero, and did not display a weapon. Because a reasonable person would have felt free to leave and not provide the officer with his name, there was no seizure. The warrants check was proper because Tehero was not seized, and thus the arrest was lawful. State v. Tehero, ___ P.3d ___, 2006 WL 2923898 (Utah App. 2006).
Investigatory detention based on parking violation upheld
Officers saw Alvarado’s car parked in a no-parking zone at a public park. When officers spotlighted the seemingly empty car, the occupants came into view. The officers activated emergency lights and stepped out to conduct an investigatory detention. Alvarado began to drive away and the officers commanded her to stop. One officer arrested Alvarado for a suspended DL and outstanding warrants. The other officer spoke with the passenger, Choudhry. The officer could smell the odor of marijuana on or around Choudhry and told him to step out. Choudhry told the officer that he had found a gun and the gun was in Alvarado’s car. Choudhry was charged with being a felon in possession of a handgun.
Choudhry challenged the detention on the basis that parking violations are not criminal violations under California law. The Court of Appeals upheld the detention, ruling that the pretext stop doctrine established in Whren v. United States, 517 U.S. 806 (1996), does not distinguish between criminal and civil traffic violations. United States v. Choudhry, 461 F.3d 1097 (9th Cir. 2006). Other courts have reached similar conclusions, including a case where officers did not stop a vehicle until following it several blocks from the scene of the illegal parking. United States v. Copeland, 321 F.3d 582 (6th Cir. 2003).
Consent invalid even though traffic detention was over
A trooper stopped a minivan for speeding. Guerrero, the van’s owner, was the front seat passenger. The trooper spoke with Guerrero about the registration and insurance. Guerrero handed the officer a stack of papers, uncertain about the location of the documents. The trooper brought the driver back to the patrol car and issued a warning citation. Finding a registration certificate, but no insurance documents, the trooper approached Guerrero again and questioned him about the insurance. The trooper returned Guerrero’s documents, went back to his car, and released the driver.
As the driver was walking back to the van, the trooper stopped him and asked if he would mind answering a few more questions. The driver agreed. The trooper asked Guerrero if he would mind answering questions and asked for consent to search. Guerrero twice gave consent to search. The trooper found indications of a hidden compartment in the gas tank and called for a drug detection dog. Eventually, several packages of marijuana and cocaine were found in a hidden compartment.
Guerrero claimed that his consent was not valid because he was detained without reasonable suspicion of illegal activity. Though the driver should have clearly understood that the traffic detention was over and that he was free to leave, the trooper had not communicated the same message to the passengers (including Guerrero). The Tenth Circuit Court of Appeals agreed with Guerrero. The opinion was divided, with the dissenting judge asserting that prior decisions of the court suggested that: “(1) since the traffic stop had ended, and (2) consent had been freely given, then (3) the search of the car was lawful.” United States v. Guerrero-Espinoza, --- F.3d ----, 2006 WL 2642135 (10th Cir. 2006).
No reasonable suspicion required for 10-28 check
An officer saw Ellison’s van parked at a shopping mall. Believing (incorrectly) that the van was unlawfully parked, the officer ran the plate and discovered a felony warrant for the registered owner. The officer called for backup as the van drove away. When the backup officer arrived, the officer stopped the van. Ellison, a passenger, was arrested on the warrant. In the search incident to the arrest, officers found a firearm and Ellison was charged with being a felon in possession of a firearm. Ellison claimed that the stop was unlawful because there was no basis to perform a registration check which revealed the active warrant.
The district court agreed with Ellison and suppressed the gun. The Court of Appeals reversed, finding that there is no expectation of privacy in a license plate number visible to the public. Almost every other court to consider this issue has reached the same conclusion. Hallstein v. City of Hermosa Beach, 87 Fed.Appx. 17 (9th Cir. 2003); United States v. Batten, 73 Fed.Appx. 831 (6th Cir. 2003);United States v. Sparks, 37 Fed.Appx. 826 (8th Cir. 2002); Olabisiomotosho v. City of Houston, 185 F.3d 521 (5th Cir. 1999); United States v. Walraven, 892 F.2d 972 (10th Cir. 1989); United States v. Matthews, 615 F.2d 1279 (10th Cir. 1980). United States v. Ellison, --- F.3d ----, 2006 WL 2527973 (6th Cir. 2006).
Knock and talk allows officers to enter the curtilage
Officers arrested a minor for illegal consumption of alcohol. She told the officers that she had been drinking at Hardesty’s home. Officers went the home and knocked with no response. The officers had dispatch telephone inside, again with no response. They also telephoned Hardesty’s place of employment, with no results. The officers went to the back door. Looking through the glass door, they could see a young man lying on a couch with blood on his body and clothing. Though officers knocked, the young man did not move. The officers entered the home and found several intoxicated minors. The criminal charges were ultimately dismissed when the local court found that the warrantless entry was unlawful. Hardesty then sued the officers in federal court. The court equated this situation to a knock-and-talk. The court looked at several other appellate courts that have held that officers may enter the curtilage to find other doors and knock when there is no response at the front door. Thus, the officers acted properly and could not be liable to Hardesty (and thus Hardesty should have been convicted on the alcohol charges). Hardesty v. Hamburg Township, --- F.3d ----, 2006 WL 2519224 (6th Cir. 2006).
Shooting report justifies entry
Officers responded to a call of shots-fired at a drive-by shooting location. Though the shooting occurred 8 hours prior, the dispatcher did not inform the officers that the call was stale. Officers saw bullet holes and broken glass. A neighbor confirmed hearing shots. The officers knocked at the door with no response. Climbing in through a window, officers found Huffman asleep in a chair. A fully loaded assault rifle with a laser scope was on the table directly in front of him. After waking Huffman up, the officers arrested him. They then searched Huffman incident to the arrest and found a fully loaded “banana clip” and additional ammunition in his pocket. Applying the test announced in Brigham City v. Stuart, the court held that the facts believed or known by the officers “created a set of circumstances in which the officers were justified to enter the residence without a warrant.” The combination of a shooting at a residence, confirmed bullet holes, and the lack of knowledge that the call was stale created a sufficient exigency to enter. United States v. Huffman, --- F.3d ----, 2006 WL 2482811 (6th Cir. 2006).
Court upholds blanket frisk policy
Officers saw McCargo running away from the direction of a residential burglary-in-progress call and stopped him. The officers wanted to take McCargo to the scene for identification by the homeowner. Pursuant to policy, the officers frisked McCargo, finding a gun that lead to a firearms charge. The Court of Appeals upheld the frisk, even in the absence of particularized reasonable suspicion that McCargo was armed. In balancing McCargo’s right to be free from unreasonable seizure and the public interest in solving a recent crime, the court noted that “where the police have a reasonable suspicion that a person was involved in a crime, they do not violate the Fourth Amendment rights of a suspect if they stop the suspect and transport him a short distance to the scene of the crime in furtherance of a legitimate law enforcement purpose.” The court upheld the frisk on the basis that a suspect transported in the back seat of a patrol car poses a greater risk than a suspect detained on the street. The fact that the frisk was conducted under a non-discretionary policy was also important as a means to avoid pretextual frisks. United States v. McCargo, --- F.3d ----, 2006 WL 2615311 (2nd Cir. 2006).
Detention required Miranda warning
Officers stopped Martinez as they canvassed the area surrounding a bank where a robbery had just occurred. Martinez generally fit the description of the robber and he was walking quickly. Because the robber used a gun in the robbery, the officer frisked Martinez, feeling a large wad of cash. The officer handcuffed Martinez and questioned him about the cash. Martinez gave conflicting explanations about the money. The officer then took Martinez to the bank and had him stand in front of the window. A teller immediately identified Martinez as the robber.
The court ruled that the officer violated the Miranda rule in asking Martinez about the source of the cash. The prosecution claimed that the encounter was an investigative detention rather than an arrest. The court focused on the rule of Thompson v. Keohane, 516 U.S. 99 (1995). In that case, the Supreme Court described when a suspect is “subject to restraints comparable to those associated with a formal arrest.” The Supreme Court instructed lower courts to look at the circumstances of the questioning, and then consider whether a reasonable person would believe that he or she was free to stop answering officers’ questions and depart. In this case, Martinez was handcuffed and told that he was being detained. The court ruled that a reasonable person would not have felt free to leave under these circumstances that closely resembled a formal arrest. Even so, the court ruled that the detention and short transportation back to the scene of the crime was proper. Though the detention looked like an arrest for purposes of Miranda, the detention and transportation did not actually convert the encounter into an arrest for which probable cause would have been required. Even if the transportation had constituted an arrest, the court opined that Martinez’s possession of the large wad of cash near the scene of a recent robbery constituted probable cause to arrest him. The conviction was sustained. United States v. Martinez, --- F.3d ----, 2006 WL 2588266 (8th Cir. 2006).
Emergency aid test established
After a 911 hang-up call, and several attempts to call the number back, officers went to Najar’s trailer. They could see movement, and knocked several times with no response. Najar finally answered the door. Officers asked to come in and check on other occupants and Najar said that he was alone. Concerned over the unusual series of events, a supervisor decided that the officers would enter. They found a woman lying face down, but who said that she was okay. The officers saw a shotgun, and arrested Najar for being a felon in possession of a firearm. Following the Supreme Court lead in Brigham City v. Stuart, the 10th Circuit Court of Appeals ruled that the emergency aid doctrine allows officers to enter a home without a warrant when “(1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable.” The court interpreted Brigham City v. Stuart to implicitly reject probable cause as the standard for measuring the emergency. A court should no longer ask whether the objectively reasonable belief in the existence of an emergency approached a level of certainty comparable to probable cause. The proper “test is now two-fold, whether (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable.” United States v. Najar, --- F.3d ----, 2006 WL 1689231 (10th Cir. 2006).
13 year-old couldn't consent to police search of home
Officers went to Schwarz’s home looking for a third party who was the subject of an arrest warrant. Schwarz’s 13 year old daughter was home and admitted the officers. The officers saw drugs and paraphernalia. When Schwarz arrived home, she admitted possession of the illegal items. Schwarz argued that her daughter could not lawfully consent to admitting the officers into her home. The Montana Supreme Court ruled that the Montana state constitution barred a youth under the age of 16 from being able to give valid consent to search a home. State v. Schwarz, --- P.3d ----, 2006 WL 1522639 (Mont. 2006)
Most courts considering whether a juvenile could give consent to enter and search a home rule that the child’s age is merely one factor in assessing the validity of consent. Abdella v. O'Toole, 343 F.Supp.2d 129 (D. Conn.2004); State v. Tomlinson, 648 N.W.2d 367 (Wis. 2002) (“whether the child possesses such authority will depend on a number of factors, and courts must look at the totality of the circumstances to make such a determination”); State v. Butzke, 584 N.W.2d 449 (Neb. App. 1998) (court must analyze voluntariness and common authority over the premises, or whether law enforcement reasonably believed the child had apparent authority); State v. Kriegh, 937 P.2d 453 (Kan. App. 1997) (“although age is a factor to consider in ascertaining whether consent was given willingly, minority status alone does not prevent one from giving consent”); State v. Will, 885 P.2d 715 (Or. App. 1994) (“age is merely one factor to be considered in determining the scope of the minor's authority to consent and whether the minor's consent was knowing and voluntary”); Saavedra v. State, 622 So.2d 952 (Fla. 1993) (“state must show by clear and convincing evidence from the totality of the circumstances that the minor gave free and voluntary consent”); Davis v. State, 422 S.E.2d 546 (Ga. 1992) (court must “examine a child's mental maturity and his ability to understand the circumstances in which he is placed, and the consequences of his actions”); People v. Jacobs, 729 P.2d 757 (Cal. 1987) (“as a child advances in age she acquires greater discretion to admit visitors on her own authority”).
Police make warrantless entry to home to effect DUI arrest
A citizen found Thompson parked in her reserved stall and passed out behind the wheel. She woke him and asked him to leave. Seeing that he was highly intoxicated, she followed him and called police. She reported his numerous dangerous traffic violations, but lost sight of him. Shortly thereafter, an officer found Thompson’s car parked in his driveway. Though officers could see him in the house, and his companion confirmed that he was home, Thompson would not come out of the house. Officers entered and arrested him for DUI. People v. Thompson, 135 P.3d 3 (Cal. 2006).
In Welsh v. Wisconsin, 466 U.S. 740 (1984), the U.S. Supreme Court disallowed a warrantless entry into a home top make a DUI arrest, based on the fact that the Wisconsin law provided for only a civil penalty for a first DUI offense. The Court said that “an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.” In Thompson, the California Supreme Court ruled that the public interest in preserving the BA evidence created sufficient exigent circumstances enter Thompson’s home without a warrant. Recognizing that the Wisconsin DUI penalty at the time was a true aberration, most courts allow warrantless entry to effect an arrest for a criminal violation of DUI laws. Rideout v. State, 122 P.3d 201 (Wyo. 2005); Cherry v. Commonwealth, 605 S.E.2d 297 (Va. App. 2004); State v. Nikola, 821 A.2d 110 (N.J. App. 2003); Beaver v. State, 106 S.W.3d 243 (Tex.App.2003); State v. Legg, 633 N.W.2d 763 (Iowa 2001); State v. Hughes, 607 N.W.2d 621 (Wis. 2000); Mendez v. People, 986 P.2d 275 (Colo. 1999); Dolan v. Salinas, 1999 WL 566943 (Conn. Super. 1999); Threatt v. State, 524 S.E.2d 276 (Ga. App. 1999); State v. Paul, 548 N.W.2d 260 (Minn. 1996); Beachwood v. Sims 647 N.E.2d 821 (Ohio App. 1994); City of Orem v. Henrie, 868 P.2d 1384 (Utah App.1994); Goines v. James, 433 S.E.2d 572 (W. Va. 1993); State v. Griffith, 808 P.2d 1171 (Wash. App. 1991); People v. Lagle, 558 N.E.2d 514 (Ill. App. 1990); People v. Odenweller, 527 N.Y.S.2d 127 (1988); City of Kirksville v. Guffey. 740 S.W.2d 227 (Mo. App. 1987); State v. Ellinger, 725 P.2d 1201 (Mont. 1986); State v. Roberts, 706 P.2d 564 (Or. App. 1985).
Spouse's consent invalid
Officers executed a search warrant at Hudspeth’s business and found child pornography on his computer. They arrested Hudspeth and ask for consent to search his home computer. He refused. An officer went to Hudspeth’s home and spoke with Mrs. Hudspeth, asking for consent to search the computer. She asked to think about it and unsuccessfully tried to call her attorney. She then asked what officers would do if she refused consent. The officer told her that he would leave a uniformed officer at the home with the computer and seek a search warrant. She then consented to the search. Though the court found that her consent was voluntary and that she had authority to consent, the court ruled that her consent could not trump Hudspeth’s refusal to consent. One of the judges dissented, leaving a 2-1 decision.
Considering the Supreme Court’s reliance on the physical presence of an objecting spouse in the decision in Georgia v. Randolph, a different result was expected. The result is puzzling, as it seems to be clearly at odds with Georgia v. Randolph and United States v. Matlock (in which the Court ruled that a physically present cohabitant could consent to a search of the home when the physically absent non-consenting cohabitant who had been arrested). United States v. Hudspeth, --- F.3d ----, 2006 WL 2456370 (8th Cir. 2006).
"Let me tell you what we know" interrogation technique proper
Hairston was arrested for the murder of a rival gang member. An investigator told Hairston that he would like to hear Hairston’s side of the story. Before asking any questions, the investigator told Hairston several facts about Hairston’s involvement with the murder. The investigator also showed Hairston a videotape (with no audio) of another gang member’s in-custody interview with police. Hairston then said that he was ready to tell his story. The investigator gave a Miranda warning and obtained incriminating statements from Hairston. The court approved this tactic and distinguished it from the “question first, warn later” tactic disapproved by the Supreme Court in Missouri v. Seibert. The court ruled that telling the suspect to listen to the detective’s recitation of the facts, and showing the silent tape, was not the functional equivalent of interrogation because the technique was not “reasonably likely to elicit an incriminating response.” In the Hairston decision, the court disagreed with its own precedent and followed the lead of the 11th Circuit’s decision in United States v. Gonzalez-Lauzan, 437 F.3d 1128 (11th Cir. 2006). Hairston v. United States, --- A.2d ----, 2006 WL 2365717 (D.C. 2006).
Child porn search upheld despite faulty affidavit
Shields belonged to an email list serv (“Girls 12-16”), signing onto the list as “LittleLolitaLove.” An FBI agent joined the list and received downloads of child pornography. Subsequently the agent prepared a number of search warrants inaccurately asserting that each list member had received downloads of pornography. Shields’ computer was searched and he plead guilty to possession of child pornography. After numerous court decisions exposed the faulty affidavit, Shields asked to have his conviction vacated. The court declined, finding that even though the FBI agent was mistaken in his belief that all list members had received downloads of illegal child pornography, there was probable cause to believe that Shields had received illegal images. The affidavit contained expert testimony that the term “Lolita” was a direct reference to sexual attraction to minor girls. Shields had chosen that term, coupled with the “little” and “love” references, suggesting an interest in unlawful sexual imagery. United States v. Shields, 458 F.3d 269 (3rd Cir. 2006).
Child porn search warrant proper
Hill took his computer to a Long Beach computer store for repair. A repair technician found child pornography stored on the computer and called police. A detective obtained a search warrant for “all storage media belonging to either the computer or the individual identifying himself as defendant at the location,” and “all sexually explicit images depicting minors contained in the storage media.” When the detective arrived at the store, he found that Hill had picked up the computer and he obtained a second warrant to seize the computer from Hill’s home. Hill claimed that the images on which the probable cause for the warrant were not pornographic. The court disagreed, applying factors from a commonly-cited case. In determining whether an image is unlawful child pornography, courts consider: (1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. United States v. Dost, 636 F.Supp. 828 (S.D.Cal.1986), aff'd, 812 F.2d 1239 (9th Cir.1987).
Hill also claimed that the warrant was unconstitutionally overbroad because it allowed seizure of all storage media. The district court disagreed, ruling that it would be impractical and too time-consuming to require investigators to review the storage media at the scene to discover which disks contained illegal pornographic images. The Court of Appeals reversed the district court, holding that officers must offer a reasonable explanation as to why a blanket seizure is necessary and the storage media cannot be searched on site. The court said that officers must describe the technological or practical difficulties that require seizing the storage media and removing it for searching at another location. Even though the court ruled in favor of Hill, the appellate court declined to suppress the evidence, saying that suppression was not a necessary remedy for the illegal seizure. United States v. Hill, --- F.3d ---, 2006 WL 2328721 (9th Cir. 2006).
Porn search warrant affidavit need not show images
Battershell’s girlfriend was using his computer and found images of child pornography, including an image of “a young female having sexual intercourse with an adult male.” She called police to look at the images and the responding officer photographed two images believed to be illegal. Police obtained a warrant searched the computer. Battershell claimed that the warrant did not establish probable cause because the affidavit contained only a description of the images, but did not contain a photo of the images. The court ruled that it would have been preferable to attach the digital images to the affidavit, but that probable cause could be established by a sufficient description of the images. As long as the reviewing magistrate can determine that the described images are of sexually explicit conduct involving a child, probable cause is established. United States v. Battershell, --- F.3d ----, 2006 WL 2291172 (9th Cir. 2006).
Consent of one tenant valid over objection of other tenant
Officers stopped Reed for a traffic violation. Believing that Reed was involved in drug trafficking, an officer asked for consent to search a home where Reed was living. Reed said that he could not give consent, because his girlfriend paid the rent. During the traffic stop, Reed’s girlfriend drove into the parking lot and asked officers what was happening with Reed. An officer explained the reason for the stop and asked for consent to search her home. She agreed, as long as officers did not “tear the place apart.” Citing the recent Supreme Court of Georgia v. Randolph, Reed claimed that the search was based on invalid consent. He argued that his physical absence did not matter (in Randolph both the consenting and the objecting parties were at the door of the house). He noted that the police knew that he lived at the home and that he objected to the search.
The court ruled that Randolph does not require officers to seek consent from cotenants once one resident provides consent to enter and search. The consent of one tenant is valid against the other tenants who are not present and who do not clearly object (Reed did not actually deny consent; he claimed that he could not give consent because the girlfriend paid the rent). In Randolph, the Supreme Court held that a “warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” However, the Court also ruled that a “potential objector (such as a cotenant), nearby but not invited to take part in the threshold colloquy, loses out.” “So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant's contrary indication when he expresses it.” Thus, an absent, non-objecting defendant cannot seek suppression of evidence obtained during a search of his residence authorized by a physically present co-tenant. United States v. Reed, 2006 WL 2252515 (N.D.Ind. 2006).
Graham factors applied in two dog bite claims
Rogers was wanted for two traffic infractions and a misdemeanor violation for failing to stop when signaled by the police. He fled into the yard of a home. Despite the ever present potential of weapons in a home, there was no indication that Rogers was armed or dangerous. An officer released a dog to locate Rogers and Rogers was bitten. Even though Rogers had fled from the traffic stop into a home, the appellate court (declining to cite full details) held that Rogers “was not attempting to evade arrest by flight.” Applying the Graham v. Connors use-of-force factors, the court declined to extend qualified immunity to the officers involved. The court noted the minor severity of the crime, the lack of clear evidence that Rogers posed a threat, and the court’s misperception that fleeing from a traffic stop does not constitute flight. The court made a significant and troubling comment: “clearly established case law holds that: (1) failing to give a warning before releasing a police dog to bite and hold is unreasonable, (2) causing a bite and hold dog to enter the backyard without a warrant was unreasonable even if the officers believed that somebody was in the yard, (3) allowing the dog to continue biting a suspect for at least a minute was unreasonable, and (4) repeatedly striking a subdued and prone suspect is unreasonable.” While there are certainly elements of proper legal doctrine within the court’s comment, there are many circumstances where declining to issue a warning may be proper, and sending a dog into a back yard without warning would be appropriate. Notably, the court declined to formally publish this opinion, neutering the opinion’s value as precedent. As in many cases, this is a matter where the court simply believed that the relative severity of the crime did not warrant use of a police service dog. Rogers v. City of Kennewick, 2006 WL 2244514 (9th Cir. 2006).
Hansen went to a party and became highly intoxicated. He fell asleep in his backyard. In the meantime, a neighbor confronted two men breaking into his truck. One of the suspects confronted the neighbor with a handgun. When the suspects fled, the neighbor called the police. A perimeter was established and a dog was used to track from the scene of the crime. The dog located Hansen. Hansen claimed that he was roused from his sleep by a Taser and blows by officers. In an unusual turn of events, the court did not need to weigh the varying accounts by Hansen and the officers. A film crew from COPS filmed the track and arrest, allowing the court a first hand view. Officers told Hansen to show his hands. Despite several commands to do so, Hansen kept his hands in the sleeping bag. When an officer tried to pull the bag down to see Hansen’s hands, Hansen pulled the bag over his head. When the officer tried to pull Hansen from the sleeping bag, Hansen first resisted, then shoved the officer. Another officer shot Hansen with the Taser. Hansen continued to resist, kicking one of the officers several times. Then the dog was released and the dog bit Hansen on the leg. The court carefully analyzed Hansen’s claims of excessive force. Though ultimately it appeared that Hansen was not the armed suspect, the court found it reasonable (based on the dog track) to believe that he was armed and dangerous and had committed an armed assault. Moreover, Hansen was actively resisting reasonable and lawful efforts to detain and handcuff him. The use of the Taser and the dog bite were each warranted. “A reasonable officer would not have known that Mr. Hansen was intoxicated, known that he was unarmed, known that he was not the armed suspect they were pursuing, known that Mr. Hansen was not a threat, and-most importantly-known that the force used in this case was clearly unlawful and violated Mr. Hansen's rights.” Hansen v. Pierce County, 2006 WL 2136761 (W.D. Wash. 2006).
Search following sniff of car near search warrant target home was proper
Officers went to a home to execute a search warrant. They found a car idling next door to the target home. Entering the target home, the officers found Jackson in the bathroom. He claimed to be stopping at the home to take a shower. His pockets held car key. The toilet tank contained 90 grams of cocaine and more than $1,000 in cash. There was also a small bag of cocaine in the toilet bowl (plastic bags don’t always flush easily!). An officer checked and found that the fit the idling vehicle at the neighbor’s home. The officer then had a drug detector dog conduct a sniff on the exterior of the vehicle. The dog alerted to presence of drugs. Officers searched and found marijuana in the car, along with Jackson’s identification. Jackson claimed that there was no probable cause to search the car and that there was insufficient evidence that he possessed the drugs in the car. The car could not have been included in the warrant search, since it was not located at the target address. The court found that the key in his pocket, along with Jackson’s identification in the car, showed constructive possession of the drugs. Moreover, the dog alert gave probable cause to search the car. The house where the car was parked appeared to be abandoned and no one with authority over the property stepped forward to challenge the officers’ presence and the vehicle sniff. Jackson v. State, --- S.E.2d ----, 2006 WL 2328489 (Ga. App. 2006).
No expectation of privacy in work computer
Ziegler worked as an operations manager at an internet payment processing company. Though he had a unique log in and password, all employees were notified that the IT department could monitor their internet access and activities. The company’s ISP notified officers that a computer at Zeigler’s workplace was accessing unlawful child pornography. Officers contacted Zeigler’s employer and asked the IT staff to identify the particular computer. An IT worker found that Ziegler was receiving and viewing sexually explicit pictures of very young girls. The company provided law enforcement with the images from Zeigler’s computer. Zeigler claimed that he had an expectation of privacy in his work computer, and thus the after-hours search of his hard drive at the request of law enforcement officers was unlawful.
The court relied on the widespread practice of employer monitoring of computer use, as well as actual notice of monitoring at Zeigler’s workplace, to find that Zeigler had no expectation of privacy in his computer. “Social norms suggest that employees are not entitled to privacy in the use of workplace computers, which belong to their employers and pose significant dangers in terms of diminished productivity and even employer liability.” “Employer monitoring is largely an assumed practice, and thus we think a disseminated computer-use policy is entirely sufficient to defeat any expectation that an employee might nonetheless harbor.” United States v. Ziegler, --- F.3d ----, 2006 WL 2255688 (9th Cir. 2006).
Ambiguous statement does not withdraw consent to search
A deputy stopped Dunkel for a traffic violation and noted that Dunkel appeared lethargic, had droopy eyes, and seemed disoriented. Dunkel admitted to taking Xanax earlier in the day. He failed SFSTs. The deputy asked for permission to search the car for drugs and Dunkel consented. The deputy found a storage container in the trunk and asked Dunkel about it. Dunkel said “I’m not sure. It’s a friend of mine’s and I can’t give you permission to search it.” The deputy opened the container and found components of meth lab. Dunkel claimed that the deputy’s search exceeded the scope of his consent.
The Court of Appeals upheld admission of the meth lab. Though a person may limit consent to search, the initial consent was a general consent to search the entire vehicle. The deputy had asked for consent to search for drugs, and Dunkel should have expected the deputy to search in places or containers where drugs could be concealed. Therefore, the initial general consent included consent to search the container. However, Dunkel claimed that he limited the consent. The court disagreed. Dunkel gave no “unambiguous statement challenging the officer’s authority to conduct the search.” Ambiguous statements do not effectively withdraw consent to search. The court ruled that Dunkel’s statement about the container could fairly have been understood by the deputy to mean that Dunkel understood that he lacked authority to grant consent for the container, or as a general warning that if the deputy opened the container, he did not have the friend’s permission through Dunkel’s statements. State v. Dunkel, --- P.3d ---, 2006 WL 2291181 (Utah App. 2006).
Voluntary statement following Miranda violation is admitted
Pettigrew and Yazzie were driving and drinking beer, having consumed 24 cans between the two of them. As they drove to get more beer, Pettrigrew turned in front of oncoming traffic and collided with the Beasley family. A child was killed, and the other 3 family members were injured. When Pettigrew refused to stop, Yazzie jumped out of the window and walked away. Pettigrew was found in a field near his truck. When Pettigrew was told that he might have killed someone a few minutes before, he complained about the damage to his truck. After being arrested, and after being questioned without the benefit of a Miranda warning, Pettigrew spontaneously said “I saw it at the last minute. I hit it and took off.” Pettigrew sought to suppress this statement on the grounds that he had been questioned without a warning.
The appellate court, addressing this issue for the first time in the 10th Circuit, ruled that the admissibility of the statement would depend on whether it was actually “voluntarily made” or not. The court ruled that the statement was voluntary. As long as there is no actual coercion by police, failure give Miranda warnings does not “so taint the investigatory process that a subsequent voluntary and informed waiver is ineffective.” Allowing Pettigrew’s statement to be admitted “would not likely implicate Miranda's central concern--introduction into evidence of a criminal defendant’s compelled testimony--and the truth-finding mission of the criminal justice system is best served by its introduction.” United States v. Pettigrew, --- F.3d ----, 2006 WL 2076796 (10th Cir. 2006).
Random subway security checkpoints valid
The United States Court of Appeals turned down the Civil Liberties Union’s request to halt security screenings at New York subways. The NYCLU claimed that the random checkpoints, where riders’ bags were inspected, were unconstitutional intrusions on privacy. The New York City Police Department countered that the checkpoints were reasonable steps to deter and thwart probable terrorist attacks on the transportation system.
The appellate court recognized an obvious fact that was seemingly hidden to the NYCLU. “In light of the thwarted plots to bomb New York City’s subway system, its continued desirability as a target, and the recent bombings of transportation systems in Madrid, Moscow, and London, the risk to public safety is substantial and real.” The New York subways were terrorist targets in 1997 (plot to bomb the Atlantic Avenue Station) and 2004 (attempt to blow up the Herald Square Station). The NYCLU argued that there was no reasonable suspicion to detain passengers at checkpoints.
The court’s decision came one day following discovery of a terrorist plot to blow up more airliners. The court agreed with the NYCLU that the searches intrude on privacy rights. However, the court noted that the exceedingly brief inspections were limited to bags that could likely hold a bomb. The judges noted that the inspection program “deters both a single-bomb attack and an attack consisting of multiple, synchronized bombings, such as those in London and Madrid.” MacWade v. Kelly, --- F.3d --- (August 11, 2006).
Police use of disguise as Greyhound bus worker was proper ruse
Ojeda-Ramos was a passenger on a Greyhound bus traveling from California to New Jersey. When the bus stopped for a break at the Tulsa bus terminal, a K9 officer conducted a sniff of the baggage compartment at the bottom of the bus. The drug detector dog alerted to a locked blue suitcase bearing Ojeda-Ramos’ name. Another officer spoke with the bus driver and asked that the driver gather the passengers, though the break was not yet scheduled to end. A second officer, dressed in a Greyhound bus uniform, announced that the bus had mechanical problems and the passengers would need to retrieve their luggage and move to another bus. The announcement was a ruse intended to pair passengers with their baggage. Ojeda-Ramos approached his bag, stood it on end, and examined it. At that point, officers approached him and asked him to accompany them to the baggage terminal. The officers allowed the other passengers to depart. Officers asked for Ojeda-Ramos’ consent to search the bag. He denied that it was his bag. One of the officers broke the lock, opened the suitcase, and found 12 pounds of heroin.
Ojeda-Ramos claimed that the order to leave the bus and claim luggage, conducted under the ruse, was a law enforcement seizure not supported by reasonable suspicion. The court of appeals disagreed. The court surveyed cases where police ruses have been allowed, including roadblock ruses and bus interdiction ruses. “However compulsory the officer’s order may have appeared, it would not have left an impression upon a reasonable person that he was not ‘free to leave.’” Here the bus passengers were not detained; rather they were asked to leave the bus. They remained free to walk away and leave their luggage behind if they so wished. “While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. Ojeda-Ramos acted voluntarily in associating himself with his luggage. When he left the bus he could have continued out of the area, even left the bus station. The officer’s disguise as a Greyhound employee is irrelevant. A ruse by law enforcement officers to influence behavior is not prohibited unless it is unconstitutional.” United States v. Ojeda-Ramos, --- F.3d ----, 2006 WL 2106801 (10th Cir. 2006).
Search followed detention by over an hour
A Nebraska State Trooper stopped Hrasky for driving on a suspended license. After confirming that this was Hrasky’s third license violation, the trooper told him that he would not be released on a citation this time. Hrasky asked to trade drug information for his release and the trooper called a narcotics task force detective to the scene. The detective spoke to Hrasky for 45 minutes before determining that Hrasky was not in a position to be a CI and gain his release. At that point the trooper arrested Hrasky and searched his truck incident to the arrest, finding two illegally possessed guns. The search followed the initial detention by 1 hour and 20 minutes. Hrasky claimed that the search was not contemporaneous with the arrest and did not comply with the Belton rule.
In New York v. Belton, 453 U.S. 454 (1981), the Supreme Court held that officers may conduct a warrantless search of the entire passenger compartment “contemporaneously” to incident of any lawful arrest of a “recent” occupant of the vehicle. In Thornton v. United States, 541 U.S. 615 (2004), the Court upheld a search of a vehicle incident to the arrest of a vehicle where the driver stopped the car, exited, and began to walk away from the car before the police officer actually initiated a traffic stop. Federal appellate courts have extended the Belton rule to allow searches that follow a formal arrest even after the suspect is taken into custody and removed from the scene, United States v. Snook, 88 F.3d 605 (8th Cir. 1996), searches that precede the actual arrest, but follow probable cause to arrest, United States v. Smith, 389 F.3d 944 (9th Cir. 2004), or handcuffed at the scene, but away from the vehicle. United States v. Barnes, 374 F.3d 601 (8th Cir. 2004).
Rather than focusing on the amount of time that passed between the initial detention and the formal arrest, the court looked to the time between the formal arrest and the search, as well as whether the formal arrest closely followed in a reasonable series of investigative steps. The lengthy delay between the initial detention, finding probable cause to arrest on the suspended license, and the search was fairly attributed to the time required to get the detective to the scene and for the detective to assess Hrasky’s potential as a CI. “Although an hour had elapsed since the initial detention, we think that it was still reasonable for police to consider Hrasky a recent occupant of the truck.” United States v. Hrasky, --- F.3d ----, 2006 WL 1982935 (8th Cir. 2006).
Forced entry to make misdemeanor warrant arrest during night proper
An officer went to Shreve’s house to arrest her pursuant to a misdemeanor arrest warrant. At 0050, the officer rang the bell. After a few minutes, Shreve looked out from a window, but refused to come to the door. The officer recognized her. She later testified that she refused to answer because she did not want to go to jail. Though the officer telephoned, no one answered. The officer picked the deadbolt and was picking the passage lock, but someone kept relocking the door. After more than an hour, officers forced open the door and called out to Shreve to surrender. They found her in a bedroom closet under a blanket. She refused to come out and the officers used pepper spray to encourage her.
In Payton v. New York, 445 U.S. 573 (1980), the Supreme Court held that an arrest warrant for a felony allows officers to forcibly enter the suspect’s home. Many courts have extended this rule to misdemeanor arrest warrants. The court upheld the forced entry and arrest, ruling that the arrest warrant carried authority for forced entry of the suspect’s home “regardless of whether the warrant was based on a felony or a misdemeanor.” Shreve v. Jessamine County Fiscal Court, --- F.3d ----, 2006 WL 1867098 (6th Cir. 2006).
18 hours between invocation of silence and interrogation is proper
Leger’s mistress told him that she was going back to her husband, but might be pregnant with Leger’s child. When the mistress came to Leger’s house for a home pregnancy test, Leger kidnapped her and drove her toward a secluded area to kill her. She escaped en route and ran into a home. Leger got out of his van and began to look for her. A couple came out of their home to check on the shouting. Leger shot the woman in the abdomen and fatally shot the man in the head. He was captured following a pursuit. About 12 hours after the capture, an officer gave Leger a Miranda warning and Leger spoke briefly and then said that he had nothing more to say. Eighteen hours later, another officer was passing Leger’s cell (Leger was on suicide watch) and Leger began a conversation by asking if anyone died from his actions. In the course of the conversation, Leger said that he was ready to talk. An investigator was summoned and he interrogated Leger, but did not give a second Miranda warning.
The court allowed admission of the incriminating statements from the second interrogation, ruling that Leger was a “veteran of the criminal justice system” who could be expected to know about Miranda rules, and the earlier warning was “presumably fresh in his mind a few hours later” at the time of the second interrogation. The court also found that Leger had eaten and slept during the interval between invoking his right to remain silent and the second interrogation. Any coercion that might have been presumed from the first interrogation was dissipated by the passage of time. State v. Leger, --- So.2d ----, 2006 WL 1883421 (La. 2006).
Child porn in browser cache shows intent to possess
Romm flew to Canada on a business trip. At the border control station, he was questioned about his criminal history of sexual exploitation of a minor. Romm admitted to his convictions and admitted that he was on probation. The Canadian officer turned on Romm’s laptop computer and saw that Romm had visited several child porn sites. Canadian officials refused to allow Romm to enter and detained him for a return flight. In the meantime, the Canadian officer notified ICE that Romm would be returning and that his computer might contain illegal child porn. In Seattle, Romm was detained and hs computer was searched. The computer held numerous child porn images in the cache. These images had been deleted from the hard drive, apparently during Romm’s detention in Canada (while Romm still had his computer). Romm told the ICE agents that he “knew they would find something on his computer.” The question for the court was whether Romm exercised dominion and control over the unlawful child porn by having the deleted (but recoverable) images in his internet browser cache.
An ICE agent testified that she had done a forensic examination of Romm’s computer and located numerous illegal images that appeared to have been manually deleted. The court ruled that Romm knowingly received and possessed illegal child pornography. “We hold there was sufficient evidence for the jury to conclude that the images in the cache were ‘visual depictions’ because they could be accessed and viewed by Romm. Further, given Romm’s ability to control the images while they were displayed on screen, and the forensic and other evidence that he actually exercised this control over them, there was sufficient evidence to support the jury’s finding that Romm possessed three or more images of child pornography. Coupled with Romm’s conceded knowledge that the images were saved to his disk, the prosecution produced sufficient evidence to establish every element of knowingly possessing child pornography.” The court further ruled that an actual download is not an element of federal child pornography laws. “In the electronic context, a person can receive and possess child pornography without downloading it, if he or she seeks it out and exercises dominion and control over it.” The ICE agents’ interview of Romm was the deciding factor. Because the ICE agents were sufficiently astute to ask Romm about how the images got into his cache, and he admitted “browsing” for a few moments, there was sufficient evidence of intentional possession. United States v. Romm, --- F.3d ----, 2006 WL 2042827 (9th Cir. 2006).
Car arriving during warrant execution could be searched under warrant
Officers were executing a search warrant at a residence. The warrant authorized searches of all vehicles found at the residence. A large truck held 13 kilos of cocaine and over a half-million dollars in cash. During the search, Tamari drove onto the property. He claimed gave inconsistent claims about ownership of the Hummer that he was driving and had no registration for it. An officer had a drug dog sniff the Hummer. Following an alert by the dog, officers searched the Hummer and found $45,000 in cash, identification documents, and a key to the truck where the large quantity of cash and drugs were hidden. Tamari challenged the search on the grounds that his Hummer was not on the premises when the warrant service began. The court found that the Hummer was covered in the search warrant. The fact that it arrived after the warrant service began was not critical and did not trump the warrant provision allowing searches of all vehicles on the premises. The 11th Circuit followed a similar decision in the 5th Circuit in United States v. Alva, 885 F.2d 250 (5th Cir. 1989). The court recognized that sometimes searches take hours, and the warrant was not limited in “temporal authority” to the vehicles at the premises at the start of the warrant execution. As long as the type of contraband sought in the warrant (drugs) could be hidden in the vehicle, it could be searched. The court also noted that the automobile exception, coupled with the drug dog alert, would have independently justified the search. United States v. Tamari, --- F.3d ----, 2006 WL 1843007 (11th Cir. 2006).
Passenger not "seized" by routine traffic stop
Brendlin was a passenger in a car stopped for a suspected registration violation. As the officer spoke to the driver, he thought that he recognized Brendlin and thought that Brendlin had absconded from parole. He asked Brendlin his name, and Brendlin replied that he was “Bruce Brown.” The officer observed possible meth manufacturing paraphernalia in the car. The officer returned to his car and verified a no-bail parole violation warrant for Brendlin. He then arrested Brendlin. In a search incident to arrest, the officer found a syringe cap on Brendlin. Meth manufacturing equipment was found in the back seat. Brendlin and the driver were ultimately charged with manufacturing methamphetamine.
Brendlin claimed that he was “seized” at the moment of the car stop. The prosecution claimed that he was not seized until arrested at gun point on the parole warrant. The prosecution conceded that the stop for the registration violation was without reasonable suspicion. Thus, if Brendlin was seized before his arrest, the seizure was improper and thus requiring suppression of the evidence from the search incident to arrest following the improper seizure. The issue of whether a passenger is seized by the traffic stop of a driver is a divided question among courts. Many courts rule that a passenger is automatically seized. Because Maryland v. Wilson permits officers to require passengers to stay in the car during the stop, courts reason that this is a seizure. The legal test for a seizure, according to the Supreme Court, is whether the officer’s show of authority would communicate to a reasonable person that he or she is not free to ignore the officer and go about his or her business.
The California Supreme Court held that Brendlin was not seized by the car stop and that the evidence need not be suppressed. “A driver is obliged to remain at the scene until the completion of the officer’s investigation, whereas a passenger is free to walk away in the absence of some further direction or show of authority from the officer toward the passenger.” The U.S. Supreme Court has held that a person is not seized until the person submits to the officer’s authority or is actually restrained by the officer. California v. Hodari D., 499 U.S. 621 (1991). The Court has also stated that a seizure generally requires intentional action to detain by the officer. County of Sacramento v. Lewis, 523 U.S. 833 (1998).
The California court ruled that “a seizure occurs when the police, by the application of physical force or show of authority, seek to restrain the person’s liberty, the police conduct communicated to a reasonable innocent person that the person was not free to decline the officer’s request or otherwise terminate the encounter, and the person actually submitted to that authority for reasons not ‘independent’ of the official show of authority.” Though Brendlin, as a passenger, was inconvenienced and his mobility temporarily impaired by stopping the vehicle in which he was riding, there was no intent to detain Brendlin at the time of the initial stop. Thus, he was not “seized.” The question was not whether he had the capacity to walk away from the stop, but whether a reasonable person would feel free to depart or otherwise conduct affairs as if the police were not present. The court noted that other courts reaching a contrary conclusion actually gave less protection to passengers. If a passenger were actually seized by a traffic stop, any passenger who tried to walk away might be arrested for interfering with the officer. People v. Brendlin, 136 P.3d 845 (Cal. 2006).
Close proximity to drugs in hotel room justifies arrest
Romero arranged with an undercover officer to sell ½ kilo of methamphetamine and set the meeting in a hotel room. Because of the exigency of the buy, no effective wire surveillance could be prepared. When the undercover officer arrived at the hotel room door and Romero opened the door, the officer saw a second man in the room. The officer was concerned for his safety because Romero was supposed to be alone. The officer gave a signal to the backup team across the hall and they entered and arrested both Romero and Santiago, the other man. Santiago looked several times at a nightstand drawer. When officers opened the drawer, they found the drugs. Romero and Santiago filed suppression motions, arguing that there was not probable cause to arrest them for possession with intent to distribute, and that the search was improper. The core question was whether their proximity to the drugs was sufficient to create probable cause to arrest.
The court found that the near proximity of the two men to a distribution quantity of drugs gave probable cause for arrest, coupled with the fact that the phone call was made to arrange a drug deal. “A prudent person would determine that there was a reasonable probability that Romero had committed the crime of possession with intent to distribute a large quantity of methamphetamine, either solely or jointly with Santiago.” Though the trial court had found the search to be too extensive to be justified as a search incident to arrest, the appellate court disagreed. The court noted that the night stand would have been within Santiago’s reach if he had not been handcuffed. The fact that he was handcuffed did not reduce the permissible scope of a search incident to arrest (the area within the immediate control of the suspect). United States v. Romero, 452 F.3d 610 (6th Cir. 2006).
Reasonable suspicion sufficient for border search
Stefan Irving, former chief pediatrician for a New York school district, was convicted on a variety of child sex offenses and possession of child porn. He lost his medical license following a conviction for a sex crime against a young male patient. Irving traveled to Mexico in 1998 to visit a bordello specializing in providing young Mexican boys for sex with adult men. Upon return to the U.S., Customs officials seized a camera and computer diskettes. Federal agents tipped Customs to Irving’s sex travels. The computer diskettes contained child porn and the camera had pictures of boys Irving encountered at the bordello. In 2003, an ICE Agent with over 15 years of child exploitation investigation sought a search warrant for Irving’s computer located in his New York home. (NOTE: ICE agents have taken up the Customs service traditional role of being the leader in federal efforts to combat child porn and child exploitation.) The search warrant recited the evidence found in the 1998 border search. The warrant was issued and additional child porn, as well as evidence that Irving went to Honduras in 1999 and had sex with young boys.
Irving challenged the border search following the 1998 trip to the Mexican bordello, in an attempt to invalidate the search warrant. Irving claimed that developing the film and examining the computer disks were not part of a routine border search. The appellate court ruled that the search was valid, whether or not it was a routine border search. The court noted that “routine” border searches may include searches of outer clothing, luggage, purses, wallets, pockets, and shoes. Nonroutine searches involve a higher level of intrusion and must be supported by reasonable suspicion. The Customs officers had at least reasonable suspicion that the camera and disks contained evidence of illegal activity. They knew that Irving was a convicted pedophile, that he was the subject of a criminal investigation, that he had been to Mexico, that he said that he visited an orphanage while in Mexico, and that his luggage contained children's books and drawings. United States v. Irving, --- F.3d ----, 2006 WL 1735582 (2nd Cir. 2006).
ICE Agents properly search computer following sting
ICE Agents conducted a sting operation, subscribing to child porn sites, then obtaining subscriber information for the sites with illegal images. The ICE Agents then used the subscription records to obtain search warrants of homes and computers. Wagers was a subscriber to redlagoon.com and video2000.com, sites known to have illegal images. ICE Agents served search warrants on Wagers’ home and office computers and found child porn. Wagers challenged the search, claiming that the fact that he subscribed to web sites with child porn available was not sufficient probable cause for the search warrants. The court disagreed, and held that evidence that a person subscribed to a web site containing child porn can create probable cause to believe the person has downloaded, kept, and otherwise possessed the illegal child porn. Both the Second and Fifth Circuit Courts of Appeals have similarly ruled. United States v. Martin, 418 F.3d 148 (2nd Cir. 2005); United States v. Froman, 355 F.3d 882 (5th Cir. 2004). The court noted: “the evidence in our case connecting the defendant, his computer, his IP address, and his home to the offense is considerably stronger, particularly where the criminal activity (viewing child pornography) is much more tied to a place of privacy, seclusion, and high-speed Internet connectivity (e.g. a home or office) than the storing of drugs (which can take place in a car, a ditch, a hole in the ground, etc.).” Once the ICE Agents found that Wagers had visited porn sites, his prior conviction for child porn became relevant to the probable cause determination, and the prior conviction was properly included in the warrant affidavit. United States v. Wagers, --- F.3d ----, 2006 WL 1735574 (6th Cir. 2006).
Passenger's purse searched after she leaves it car
Groshong was a front seat passenger in a car stopped for a broken taillight. As the car stopped, the officer noticed that the front and back seat passengers appeared to be handing items back and forth. The officer ordered all of the occupants out of the car, intending to perform a visual “frisk” search of the car. The officer asked the driver for consent to search. The driver refused. The officer saw some marijuana leaf fragments. The officer then got his drug detector dog and prepared for an exterior sniff of the car. At that point, Groshong asked to retrieve her purse from the car. The officer told her to leave it in the car. He searched her purse and found a tin with marijuana and a pipe with drug residue.
Groshong claimed that she had a higher expectation of privacy in her purse. In 1999, the U.S. Supreme Court upheld a Wyoming search where an officer demanded to search a passenger’s purse upon probable cause that illegal drugs were in the car. Wyoming v. Houghton, 526 U.S. 295 (1999). Justice Breyer’s concurring opinion said that purses and wallets should be treated as extensions of searches of persons because of the heightened expectation of privacy in an item generally carried on one’s person. The Kansas Supreme Court previously held that a purse does carry a higher expectation of privacy, and police officers cannot order a passenger to leave a purse behind in a car when the driver gives consent to search the car. State v. Boyd, 64 P.3d 419 (Kan. 2003). In this case, however, the court distinguished the case where there was probable cause created before Groshong asked to retrieve her purse and the officer could require her to leave it in the car. “We hold a law enforcement officer may search a passenger’s purse left in the vehicle when the passenger exits, if the passenger makes no effort to retrieve the purse before probable cause to search the vehicle develops.” State v. Groshong, 135 P.3d 1186 (Kan. 2006). Other state courts have picked up on Justice Breyer’s concurrence and held that an officer may search purses and other articles that unarrested occupants voluntarily leave in the vehicle. See State v. Tognotti, 663 N.W.2d 642 (N.D. 2003).
Lighter and rolled up bill give PC to search
A Highway Patrol trooper saw Griffith’s car parked at remote Soldier Summit and walked up to the car to see if Griffith needed help. As the trooper approached, he saw two people leaning toward the front console. The trooper knocked on the window and Griffith dropped a rolled-up dollar bill while the passenger tried to hide a butane lighter. When the trooper asked Griffith about their destination, Griffith indicated a road that was 200 miles away. Both Griffith and the passenger were nervous. The trooper believed that the two were using drugs. He searched the car, found methamphetamine and arrested both. The trooper testified that butane lighters are often used to prepare drugs for consumption, and that a rolled-up bill may be used for drug ingestion. The Court of Appeals found that the trooper’s experience and training allowed him to connect the lighter and bill with drug use. Considering the drug paraphernalia with the implausible answer about travel plans and nervousness, the court found that the trooper had probable cause to search the vehicle. One judge dissented, finding that there was adequate reasonable suspicion for further investigation, but not quite enough information to reach the probable cause standard. Because the search was of a mobile vehicle, no warrant was necessary. State v. Griffith, ___ P.3d. ___, No. 2005200 (Utah App. July 13, 2006).
Search preceding arrest is invalid
Officers came upon Powell as he was urinating in a deserted industrial zone street. One of the officers looked inside the car next to Powell and saw another man, open containers of alcohol, and a backpack on the back seat. Opening the backpack, the officer found a loaded machine pistol. Powell was arrested for urinating in public, open container of alcohol, and possession of the gun. The appellate court struck down the gun charge, ruling that the search incident to arrest doctrine could not apply because the search occurred a few seconds before custody and arrest. The U.S. Supreme Court has held that the rule established in Belton v. Ross, 453 U.S. 454 (1981), which allows a search of the entire passenger compartment when a vehicle occupant is arrested, extends to persons arrested shortly after exiting a vehicle. Thornton v. United States, 541 U.S. 615 (2004). Most courts have held that a search incident to arrest is valid even if it precedes a formal arrest, as long as the officer already found probable cause to arrest. United States v. Smith, 389 F.3d 944 (9th Cir. 2004); United States v. Lugo, 170 F.3d 996 (10th Cir. 1999). In Powell’s case, the court found that Powell was not in custody until the officers placed handcuffs on him. Previous rulings by the same court had allowed searches incident to arrest to precede the formal arrest, but only where a reasonable person would have believed that he or she was not free to leave. That was also the case in Rawlings v. Kentucky, 448 U.S. 98 (1980), where the Supreme Court approved a search incident to arrest that preceded formal arrest. In this case, the court opined that the officer-safety and evidence-preservation principles on which the Belton doctrine is based would not apply in a pre-arrest situation. United States v. Powell, --- F.3d ----, 2006 WL 1715683 (D.C. Cir. 2006).
Evidence seized at mistaken stop is admissible
NYPD officers stopped an SUV with darkly-tinted windows and no visible license plate. As one of the officers approached the vehicle, he saw a temporary Delaware tag in the window. However, his attention was then directed at the vehicle occupants. The officers could smell marijuana coming from the vehicle. The driver said that he did not smoke marijuana and did not have a driver license. One of the back seat occupants rolled down a window and told officers that he had a license. It appeared that the passenger was hiding something in his hands and the officers told him to show his hands. The officers then ordered all of the occupants out of the vehicle. One officer saw a gun near the front seat and told the other officers to handcuff all of the occupants. Officers found a second gun in the rear seat. Jenkins and Luther were both charged with being a felon in possession of a firearm. Jenkins challenged the stop because the vehicle was actually properly registered and showed a valid temporary tag. The court had to decide whether the officer’s mistaken reason for the stop allowed the officers to do anything more than send the SUV and its occupants driving down the road without further delay.
The court ruled that when an officer makes a mistake about the reason for a stop, the officer is still allowed to approach the driver and explain the mistaken stop. Any evidence in plain view (or plain smell) need not be ignored. Once the officers smelled the fresh marijuana smoke, they were permitted to investigate. The questioning and vehicle inspection were lawful and the firearms were lawfully discovered. This case is distinguished from cases where courts have not allowed officers to ask for driver license and registration upon making a mistaken stop. United States v. Jenkins, --- F.3d ----, 2006 WL 1735232 (2nd Cir. 2006).
Anonymous tip justified DUI stop
A CHP officer heard an ATL for an impaired driver in a blue van “weaving all over the road” at 0143. The officer pulled off of the road to watch for the blue van. Within a couple of minutes of the ATL, the officer saw the van. He stopped the driver before observing any erratic driving pattern. As he spoke with Wells (the driver) he noticed that her pupils were constricted and she was somewhat disoriented. The officer administered FSTs and arrested Wells. In a search of the van, the officer found heroin and syringes. Wells tested positive for THC, opiates, and cocaine. Wells challenged the stop based solely on the anonymous tip. The Supreme Court has previously addressed anonymous tips in J.L. v. Florida, 529 U.S. 266 (2000), where the Court struck down a stop and frisk of a juvenile reported to carry a gun because the tip was from an uncorroborated anonymous source. The court distinguished J.L. v. Florida on the basis of “the grave risks posed by an intoxicated highway driver justified the minimal intrusion of a brief investigatory traffic stop.” The court noted that the “report of a possibly intoxicated highway driver, ‘weaving all over the roadway,’ poses a far more grave and immediate risk to the public than a report of mere passive gun possession” as reported in J.L. v. Florida. Moreover, a traffic stop imposes less embarrassment and intrusion than a stop and physical frisk on the sidewalk. The court also observed that police are duty bound to investigate reports of impaired driving and would be subject to legitimate criticism if a crash followed an uninvestigated tip. Most other courts agree with the California Supreme Court’s decision in Wells. United States v. Wheat, 278 F.3d 722 (8th Cir. 2001) (comparing an impaired driver to a moving time bomb on a public road); Kellems v. State, 842 N.E.2d 352 (Ind. 2006); State v. Gollotta, 837 A.2d 359 (N.J. 2003). Further boosting the validity of the stop was the officer’s verification of the vehicle type, color, direction of travel, and roadway. The court said that many drivers may exercise increased caution after spotting a marked patrol car, so it was not significant that the officer did not observe any erratic driving. People v. Wells, --- Cal.Rptr.3d ----, 2006 WL 1726460 (2006).
Suppression not required for failure to knock and announce
Failure by police to knock and announce their authority and intent to enter prior to execution of a search warrant does not require suppression of evidence seized. Several Detroit police officers served a search warrant for drugs and guns on the home of Booker Hudson. The first officer in the stick approached the door and yelled “police, search warrant” but did not actually knock. Entering approximately 3-5 seconds later, the officers found both cocaine and a loaded gun. The prosecution acknowledged that officers violated the knock-and-announce rule (which is based in statute and not on a constitutional provision). The prosecution contested suppression of the drugs and gun as the proper remedy for failure to actually knock on the door.
The United States Supreme Court affirmed the validity of the knock-and-announce rule. The rule is designed to protect unwarranted resistance by citizens unaware of police authority to enter and to protect property and privacy interests. The rule has nothing to do with the propriety of the actual seizure of evidence. The Court found that suppression of evidence was not a proper remedy for failure to knock and announce. The Court noted that there are still remedies available to aggrieved citizens through filing a civil suit for money damages. Such lawsuits have a deterrent effect on intentional civil rights violations. Significantly, the justices also cited improved police internal discipline systems as a deterrent to civil liberties errors. Hudson v. Michigan, ___ U.S. ___, 2006 WL 1640577 (June 15, 2006).
Suspicionless searches for parolees allowed
The Supreme Court upheld a California statute allowing law enforcement officers (not just probation and parole officers) to conduct suspicionless investigatory searches and seizures at any time. The Court ruled that parolees are like prisoners and have substantially diminished privacy interests. In United States v. Knights, 534 U.S. 112 (2001), the Court ruled that officers could search the home of a California probationer on the basis of reasonable suspicion, because he was subject to a probation condition allowed suspicionless searches and seizures by any law enforcement officer at any time. In Knights, the Court did not answer the question of suspicionless searches authorized by a waiver of privacy rights contained in parole condition. In the present case, Sampson argued that officers should be required to have at least reasonable suspicion before searching. The Court disagreed: “Imposing a reasonable suspicion requirement, as urged by [Sampson], would give parolees greater opportunity to anticipate searches and conceal criminality.” Most states’ parole schemes and the federal system do not authorize suspicionless searches and seizures of parolees, sharply limiting the applicability of the decision. Samson v. California, --- U.S.----, 2006 WL 1666974 (2006).
Odor of ether creates exigency for warrantless entry
An officer detected the odor of ether while patrolling a neighborhood. He drove through the area for about 15 minutes trying to locate the source of the odor. Two other officers arrived to assist and they began walking through the area. They located a home where they saw a truck with the hood up and several cans of starter fluid (ether is a primary ingredient in starter fluid) strewn about. As the officers walked toward the truck, they could smell a strong odor of ether coming from a cracked basement window. Officers knocked on the front door without response. When an officer knocked on the back door, Holder peeked through a window and opened the door several seconds later. As he opened the door a rush of ether fumes came out of the house.
As the officers spoke to Holder, he commented that he had been charged in another jurisdiction with manufacturing methamphetamine. The officers asked for consent to enter the home and Holder told them to get a warrant. As one officer began the warrant process, other officers continued to speak with Holder. Holder noted that his infant granddaughter was in the house. The officers then decided to enter without the warrant and to bring the girl outside. They found a methamphetamine lab, precursors, methamphetamine, and drug paraphernalia. The court held that there was a sufficient exigent circumstance to justify the warrantless entry. “The exigencies of the situation created a need to immediately find the source of the ether odor” to protect the safety and health of the nearby residents. Holder v. State, 847 N.E.2d 930 (Ind. 2006).
Laxative upheld as search incident to arrest (see page 126, Search incident to arrest)
In one of the more bizarre search and seizure decisions of 2006, the Wisconsin Supreme Court ruled that administration of a liquid laxative to an arrestee suspected of swallowing a bag of drugs was part of a proper search incident to arrest. Officers were watching a suspected drug dealer’s car when Payano-Roman got into the car and took something from a compartment. As the officers approached, they saw Payano-Roman with a baggie of a white powder substance. He looked directly at one of the officers and swallowed the bag. The officers unsuccessfully tried to get Payano-Roman to spit it out. They arrested him and took him to the hospital. At the hospital, under medical supervision, an officer gave Payano-Roman a laxative every 20 to 30 minutes. It eventually worked and the following morning officers recovered a baggie of heroin from the results of the laxative.
The prosecution argued that the search was proper under both the search incident to arrest and the exigent circumstances doctrine. The Wisconsin Supreme Court ruled that the case could be dealt with as a search incident to arrest and did not rule on the exigent circumstances argument. The court followed the lead of the Iowa Supreme Court and noted: “When the warrantless search involves an intrusion into the body, a more demanding test must be met.” State v. Strong, 493 N.W.2d 834 (Iowa 1992). The court considered the search under the decision in Winston v. Lee, 470 U.S. 753 (1985), where the U.S. Supreme Court prescribed the following factors to analyze a search involving a medical procedure: (1) the extent to which the procedure may threaten the safety or health of the individual and (2) the extent of the intrusion upon the individual's dignitary interests in personal privacy and bodily integrity. These two factors are then considered in light of (3) the community’s interest in fairly and accurately determining guilt or innocence.
One of the justifications for the search incident to arrest doctrine is to prevent the destruction of evidence. The court found that factor weighed in favor of the prosecution in this case. One of the officers had seen Payano-Roman swallow the bag, and there was clear evidence that the search would likely produce evidence. The court also relied on evidence that a nurse told one of the officers that the laxative would help prevent an overdose that might result from the rupture of the baggie. “We are satisfied that the record in this case demonstrates that administration of the laxative was medically appropriate and presented no appreciable risk to Payano-Roman’s safety or health. Rather, the evidence showed that the procedure was medically indicated to preserve his safety and health.” The court found that any threat to his health was “negligible.” State v. Payano-Roman, --- N.W.2d ----, 2006 WL 1348397 (Wis. 2006).
Late night knock and talk upheld
After receiving a tip that Humphrey was growing marijuana, two officers went to Humphrey’s home to conduct a knock-and-talk. A few minutes after Humphrey let the officers enter, he asked if they had a warrant, and then asked them to leave. One of the officers shone his flashlight around the dark interior of the home and saw a bowl of small marijuana plants. As Humphrey headed toward the door, the officers escorted him outside and arrested him. The officers later returned with a search warrant and found many marijuana plants and watering tanks.
Humphrey claimed that any consent to enter his home was involuntarily given, primarily because of the late hour of the visit (about midnight). He also claimed that the officer’s use of a flashlight created a search instead of a plain view discovery. The court rejected both claims. Some courts have found that a late hour may create an involuntary consent. See State v. Wolfe
