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Police officer entitled to full Miranda warnings
The Court of Appeals reminded officers that the Miranda rule applies to all equally – even police officers. Stanley Street was an Atlanta police officer who moonlighted as an armed bank robber. During surveillance of Street, FBI agents stopped Street as he pulled out of a gas station. Street consented to a search of his rented car and his home. Agents noted that his portable radio was tuned to the channel for the sector where an armed robbery occurred earlier that day, and not to the sector where Street was assigned. When agents confronted Street with this fact, and told him that they could check radio logs to see when he switched to the second frequency, Street said “f__ it” and agreed to talk to the FBI about the robbery. The FBI agents did not ever administer the Miranda warning that his statements would be used against him and that he was entitled to a free attorney if he could not afford legal services. Though the court conceded that warnings need not follow the rigid formula commonly recited, the agent was required to give all warnings. The court recognized that a police officer should be expected to know Miranda rights, but was still entitled to the benefit of the full warnings. The fact that Street appeared to be able to hire an attorney was irrelevant to the analysis. Leaving out the two critical elements was improper. The court stated that the FBI agent’s approach was “one instance in which halfway is not close enough for government work.” However, the court ruled that the confession was admissible because of the voluntariness of a subsequent signed waiver containing a proper warning and the agent did not intentionally violate Street’s rights, but “just messed up.” United States v. Street, --- F.3d ----, 2006 WL 3734533 (11th Cir. 2006).
Expansive computer search warrant service scope allowed
A case of interest for professional baseball players, fans and cops was recently issued by the Court of Appeals. The urine and drug test results of eleven professional baseball athletes (their names are under seal by the court) were held by a drug testing company. A grand jury investigating steroid use issued a subpoena for the records. The company and the Major League Baseball Players Association fought the subpoena. Federal agents then obtained a search warrant authorizing “the search of computer equipment, computer storage devices, and-where an on-site search would be impracticable-seizure of either a copy of all data or the computer equipment itself.” In the evolution of computer search and seizure law in the past decade there has been a debate over whether law enforcement was required to conduct key word searches and carefully extract relevant files at the site of the search, or whether officers could seize all records intermingled with the specific records sought and conduct a more methodical search at a later time and different location (such as the officers’ office). Included in the seized records were all of the positive drug test results for all players tested by the company, not merely the results of the group originally targeted by the grand jury. Though the search method used here (creating a copy of all of the computer records of drug testing) did not follow Department of Justice recommendations, the court found that it was reasonable. The court noted that the file labels were created by the company and a key word search would not necessarily guarantee that all records covered by the warrant would be identified for a search. Privacy protection for records not included in the search warrant could include a post-search sealing by the court of such records. This 50-plus page opinion is very significant for any officer intending to search a computer database. The court signals the broad discretion to seize all records for later analysis that it is willing to grant officers in such searches. The dissenting opinion argued that the search was a pretext for finding records of ball players then not under investigation. United States v. Comprehensive Drug Testing Inc., --- F.3d ----, 2006 WL 3782956 (9th Cir. 2006).
Protective sweep of a car upheld
Officers serving a search warrant saw Jones and others standing near a car with darkly tinted windows parked in front of the target location. The officers told Jones and his companions to show their hands. Jones turned toward the car for 3 to 5 seconds, out of the view of the officers and then raised his hands. Because officers could not see through the tinted windows into the back of the car, even with a flashlight, they decided to conduct a protective sweep of the car. Officers found an AK47 rifle, marijuana and crack cocaine in the car. They later found more guns, as well as ammunition for the AK47, in the house. Jones claimed that the protective sweep was not valid, because it was not a sweep of the immediate premises of the warrant location.
The court ruled that the protective sweep of the car was reasonable as long as officers could reasonably believe that the car contained a person who presented a threat to the officers executing the warrant. The court ruled that the car’s proximity to the target home, the ease of hiding drugs sought by the warrant, and Jones actions could have led the officers to reasonably believe that someone within the car posed a threat to them. The Supreme Court held that officers entering a home to make an arrest could make cursory searches of areas within the home that could conceal persons who officers reasonably believed posed a threat to them. Maryland v. Buie, 494 U.S. 325 (1990). Following the Buie decision, courts have disagreed over how far the doctrine extends. The 10th Circuit Court of Appeals has previously approved protective sweeps and detention in the area immediately outside a home where a person was arrested. United States v. Maddox, 388 F.3d 1356 (10th Cir. 2004). In Jones’ case, officers knew that one of the residents of the home had previously been arrested for assault with a firearm. All of the factors known to the officers suggested that the sweep of the car was a very reasonable safety precaution. United States v. Jones, --- F.3d ----, 2006 WL 3734137 (8th Cir. 2006).
Holding ID does not create detention
Courts have been wrestling with the question of whether holding on to a person’s identification transforms an otherwise voluntary encounter into a detention which must be based on reasonable suspicion. There is no clear answer. Under Utah law, the best practice is to return the identification as quickly as possible (unless the officer plainly intends to detain based on reasonably suspicion). However, a Florida court recently ruled that merely holding the identification card does not create a detention, basing its ruling on federal constitutional law. Unlike Utah and many other states, Florida law requires its courts to interpret search and seizure issues in harmony with federal constitutional law. The Florida Supreme Court held that the key question is whether the officer’s language and other communication would have caused a reasonable person to believe that compliance was required, and therefore a detention was created. Holding the person’s identification is one factor (a fairly important factor as time passes) in that evaluation. Golphin v. State, --- So.2d ----, 2006 WL 3629581 (Fla. 2006).
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
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, 398 So. 2d 1117, 1121 (La. 1981) (finding no valid consent where defendant answered door at 2 a.m. to discover two uniformed officers, each "equipped with a service revolver, handcuffs, a nightstick, and a walkie-talkie radio"). Yet Utah courts and others have ruled that the time of night is merely a factor to be considered in evaluating the voluntariness of consent to search. State v. Harmon, 910 P.2d 1196 (Utah 1995); State v. Jones, 560 A.2d 1159 (N.H. 1989) (the early hour of the request, the defendant's initial response, and the persistence of police are all "properly considered in examining 'the totality of the circumstances,'" but that the "existence of these factors does not compel a holding" of involuntary consent).
Using a flashlight does not generally tip the scales in favor of finding that a search occurred. United States v. Dunn, 480 U.S. 294 (1987) (determining that "officers' use of the beam of a flashlight, directed through the essentially open front of respondent's barn, did not transform their observations into an unreasonable search within the meaning of the Fourth Amendment."). The bowl of marijuana seedlings was in plain view, and the officers did not make any special effort to look through the room, or move items to find evidence. Thus, the marijuana was in “plain view.” “Once inside the house, [an agent may not] exceed the scope of his invitation by ransacking the house generally, but he may seize anything in plain view.” United States v. Wright, 641 F.2d 602 (8th Cir. 1981). State v. Humphrey, 2006 UT App 221 (June 2, 2006).
Brigham City v. Stuart
The U.S. Supreme Court ruled 9-0 that Brigham City police officers were “plainly reasonable” to enter a home and break up a violent fight. The Utah Attorney General’s Office argued the case on behalf of the 4 police officers on April 24. The Court determined that police officers can enter a home without a warrant if they believe an occupant is seriously injured or imminently threatened with such an injury.
“This decision lets victims know they will be protected; it lets police officers know they can offer that protection; and finally the ruling lets criminals know they will be stopped even when they are making too much noise to answer the door,” says Utah Attorney General Mark Shurtleff.
On July 23, 2000, Brigham City Police officers responded to an early morning disturbance and saw a fight going on inside a home between 4 adults and a juvenile. The officers yelled but couldn’t get anyone’s attention so they went inside to stop the fight. However, the charges were dismissed against all defendants after the Utah Supreme Court ruled in a 3-2 decision that the officers were not justified in entering the home.
“Obviously, we are very satisfied,” says Assistant Attorney General Jeffrey Gray, who argued the case before the U.S. Supreme Court. “The decision today reaffirms that the Fourth Amendment does not keep officers from doing what we expect officers to do---protect the public from harm.”
Chief Justice John G. Roberts wrote: “The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided...it would serve no purpose to require them to stand dumbly at the door awaiting their response while those within brawled on, oblivious to their presence.”
In a concurring opinion, Justice John Paul Stevens added that “...the Court’s unanimous opinion restating well-settled rules of federal law is so clearly persuasive that it is hard to imagine that the outcome was ever in doubt.” Brigham City v. Stuart, 547 U.S. ___, No. 05-502 (May 22, 2006).
Odor of marijuana at open door allows warrantless entry
Acting on a citizen tip of juveniles drinking at Parker’s house, officers knocked on the door. Parker opened the door and spoke with officers about the alcohol party, but he refused to let them enter. Officers could smell fresh burnt marijuana. When Parker tried to shut the door, one officer stuck his foot in the door and said that he was coming in because of the odor of marijuana. The marijuana was found in plain view on a pizza box. The homeowner gave consent to a search. Because the drugs were in plain view, the only issue was whether the officers lawfully entered the home based on the smell of fresh marijuana use. The court ruled that the officers had probable cause to enter, distinguishing the probable cause to enter the home from probable cause to search and probable cause to arrest. State v. Parker, --- S.W.3d ----, 2006 WL 931596 (Tex.Crim.App. 2006).
Dog sniff of common hallway allowed
Workers at Davis’s apartment complex told police that they could see grow lights in Davis’s apartment, that the apartment gave off the odor of marijuana, and that Davis refused to let them enter to fix a water leak. Officers brought a drug detection dog to the apartment building and had the dog sniff the common hallway. The dog indicated that the odors of drugs were coming from the threshold of Davis’s apartment. Officers obtained a warrant, searched and found marijuana, a weapon, and drug growing paraphernalia. Davis claimed that officers needed probable cause to sniff the hallway. Courts evaluate the lawfulness of a dog sniff by looking at the expectation of privacy in the area to be sniffed, and the degree of intrusion by the sniff. United States v. Place, 462 U.S. 696 (1983). The Minnesota Court of Appeals ruled that the hallway sniff was not a search under the Fourth Amendment. However, the court found that the sniff was a search under the Minnesota Constitution. However, the court held that Davis’s “illegal activity manifested itself through an odor that had escaped into a common area” and reasonable suspicion and not probable cause was required for the sniff. There was plainly enough reasonable suspicion here for a dog sniff. State v. Davis, 711 N.W.2d 841 (Minn. App. 2006).
Protective sweep allowed without evidence that others may be present
Officers went to Winston’s home to arrest him and serve a search warrant, as part of a large drug arrest plan. Winston had recently purchased a ballistic vest and two handguns, and was known to carry a gun. When the officers knocked at the door, Winston’s girlfriend mislead the officers into believing that they were at the wrong half of the duplex. Once the officers realized the deception and entered the home, Winston calmly surrendered without incident. He even called out to the officers that he was on the second floor, perhaps intending to lead them away from others who might escape. Though there was no specific reason to believe that others could be in the home, one of the assisting officers conducted a protective sweep of the basement. He found a safe in the basement, containing incriminating evidence. The trial court suppressed the contents of the safe, ruling that the protective sweep was not justified. The judge reasoned that officers had arrested the target of the search, and could have stood guard at the top of the basement stairs.
The appellate court reversed and allowed the protective sweep. The U.S. Supreme Court authorized “quick and limited searches of the premises, incident to an arrest” for the purpose of finding persons who may pose a danger to officers. Officers may also search closets, compartments, or any area that may conceal a person who could launch an attack against officers, within the immediate area of the arrest. Maryland v. Buie, 494 U.S. 325 (1990). Courts have generally held that officers must have some basis to believe that other persons are in the home, and may harm officers. In this case, Winston argued that there were no other cars nearby, no other person had been seen at the home during surveillance, and there was no evidence of anyone else being in Winston’s home at the time of the search. The court of appeals found that the girlfriend’s misleading statements, Winston’s violent history, and Winston’s suspiciously prompt surrender combined to allow a full protective sweep of the home. even without evidence that some other person presenting a danger to officers was in the home. United States v. Winston, --- F.3d ----, 2006 WL 1044180 (1st Cir. April 21, 2006).
Reasonable belief that occupants knew of officers' approach excused knock and announce compliance
Officers obtained a warrant to search Armijo’s home. The affidavit stated that a night-time search should be authorized "the cover of darkness would enhance an undetected approach to the residence without endangering the safety of police officers or innocent uninvolved parties . . . by reducing the possibility to retrieve a weapon or arm any explosive device or trap to defeat law enforcement." The affidavit further noted that the residence was located in a residential area, wherein the safety of the neighbors was an issue to be considered when serving the warrant, and one of the persons named in the search warrant had two active arrest warrants and a criminal history of assault, aggravated burglary, resisting an officer, disorderly conduct, and numerous drug- and alcohol-related offenses. As the officers moved up to the door of the house just before first light, a car drove into the driveway, shining its lights on the officers. One of the car’s occupants could be seen talking on a cell phone. One of the officers also saw a light in the home turned on and then off. Believing that their presence could be revealed by the car’s occupants via telephone, the officers forced the door without knocking and announcing the search warrant. The court ruled that “it was entirely reasonable for the police to believe that someone in the residence had been notified of the imminent search and was either destroying evidence or physically preparing themselves for the search. Because the officers reasonably believed that immediate entry was necessary to prevent the destruction of evidence or physical harm to themselves, we hold that they did not violate the knock and announce rule.” State v. Armijo, 2006 Utah App. 147 (April 13, 2006) (unpublished decision).
Interrogation of formally charged suspect limited
Conway was convicted of murder following a brawl and a shooting at a strip club. He was accused of soliciting a fellow inmate to murder one of the witnesses against him and soliciting another person with an appearance similar to his to make a videotaped confession to the murder (presumably someone would be dumb enough to do so). As is often the case, the person contacted by Conway approached police and reported Conway’s murder solicitation. Officers then used the fellow inmate as an agent to question Conway about the plan to kill the witness and create the false confession on tape. The Ohio Supreme Court departed from U.S. Supreme Court precedent and suppressed the statements as fruits of violation of the 6th Amendment right to counsel.
It is well-established that statements obtained by police or their agents from a formally charged defendant violate the 6th Amendment, as stated in as Massiah v. United States, 377 U.S. 201 (1964) and Maine v. Moulton, 474 U.S. 159 (1985). However, the 6th Amendment right to counsel is considered to be “offense specific,” though the 5th Amendment right to counsel that attaches when a suspect is subject to custodial interrogation is a general right and is not offense-specific. McNeil v. Wisconsin, 501 U.S. 171 (1991). In Texas v. Cobb, 532 U.S. 162 (2001), the Supreme Court told lower courts to apply a strict elements-based analysis to determine whether the 6th Amendment right to counsel applied to police interrogation about a new crime. The Court instructed that the established Blockburger case controlled the analysis. In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court ruled that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether these are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”
The Ohio Supreme Court chose to disagree with the U.S. Supreme Court and rule that the interrogation about the witness murder/confession plot necessarily incriminated Conway in the underlying murder charge and therefore was barred by the 6th Amendment as applied in Ohio courts. Even so, the Ohio Supreme Court found that there was sufficient evidence to convict Conway on all charged offenses. State v. Conway, 842 N.E.2d 996 (Ohio 2006).
Parole officer's order to speak with police created custody
Ollie’s girlfriend called police and asked that a firearm be removed from her home. She said that it did not belong to her or Ollie, and told police that Ollie was on parole. The officer telephoned Ollie’s parole officer and said that he would like to speak with Ollie about the gun. When the parole officer saw Ollie for an appointment, he ordered Ollie to go to the police station and speak with the officer about the gun. At the police station, the officer took Ollie to an interview room and questioned him about the gun. The officer did not give a Miranda warning, but did tell Ollie that he was not under arrest. Ollie admitted that he took the gun in trade. Ollie was later convicted and sentenced to 10 years on a federal gun charge. In Minnesota v. Murphy, 465 U.S. 420 (1984), the U.S. Supreme Court considered a probation agreement requirement that a probation be “truthful to your probation officer in all matters.” The Court ruled that statements resulting from a probation interview, and under this condition but without a Miranda warning, were admissible in court. However, if revocation of probation was the result of refusing to answer a question, then the answer would be considered “compelled” and would not be admissible in a prosecution. In this case, Ollie was found to have been compelled to meet with the officer and provide answers. Therefore, even though the circumstances of the interview did not amount to custody, the parole officer’s order tipped the balance in favor of custody. Because there was no Miranda warning until after Ollie gave the incriminating answers, the statements could not be admitted. United States v. Ollie, --- F.3d ----, 2006 WL 829755 (8th Cir. March 31, 2006).
Admission of possession of a knife not enough for a frisk
Henage was a passenger in a truck stopped for a broken tail light. Because the officer had heard that Henage was a drug user, he conducted a field interview. The officer asked Henage whether he had any contraband on him. When Henage told the officer that he had a Leatherman tool (presumably with a knife blade) the officer decided to frisk Henage. There were no other factors supporting a frisk. Henage was cooperative and polite. The officer frisked Henage, found the Leatherman, continued the frisk and found a glass pipe and methamphetamine. The officer cited Henage for the drugs and returned the Leatherman. The court found the frisk to be illegal. Henage’s admission that he had a knife, standing alone, was not a reasonable basis to believe that he presented a danger to the officer. The fact that the officer returned the knife during the encounter was evidence that he did not believe that Henage presented a danger. State v. Henage, --- P.3d ----, 2006 WL 408704 (Idaho March 23, 2006).
Activating emergency lights behind parked car creates detention
Williams was pulled to the side of the road though still in the lane of travel, motor idling. An officer pulled in behind him, activated emergency lights and approached Williams. Williams was ultimately arrested for DUI. The Tennessee Supreme Court ruled that turning on the emergency lights constituted a seizure, even though Williams was already stopped. Various courts have reached contradictory results on this issue. Courts finding a seizure include: Hammons v. State, 940 S.W.2d 424 (1997) (defendant sitting in parked automobile was seized when police activated blue light; light was display of authority that would indicate to reasonable person he was not free to leave); Hrezo v. State, 780 So.2d 194 (Fla. App. 2001) (when officer turns on the emergency lights behind a lawfully parked vehicle, a reasonable person would expect to be stopped if he or she drove away); People v. Laake, 809 N.E.2d 769 (Ill. 2004) (officer's use of emergency lights, directed at occupant of parked car, is reasonably interpreted as a command not to leave); State v. Morris, 72 P.3d 570 (Kan. 2003) (defendant was seized at moment when officers pulled up behind his parked car and activated their emergency lights); State v. Burgess, 657 A.2d 202 (Vt. 1995) (even if officer subjectively intends to activate blue lights for safety reasons, the use of the lights served as a restraint to prevent defendant’s departure from the pull-off area of the road); State v. Stroud, 634 P.2d 316 (Wash. App. 1981) (defendant seized at moment officers pulled up behind parked vehicle and switched on flashing lights).
Other courts have ruled that the mere activation of emergency lights does not create a seizure: Commonwealth v. Evans, 764 N.E.2d 841 (Mass. 2002) (officer's use of blue emergency lights when pulling behind defendant's parked vehicle did not constitute a seizure because "the trooper was performing a community caretaking function, not investigating suspected criminal activity"); State v. Hanson, 504 N.W.2d 219 (Minn. 1993) (holding defendant in a parked car on side of the road was not seized by activation of emergency lights because a "reasonable person would have assumed that the officer was not doing anything other than checking to see what was going on and to offer help if needed"). Utah courts have not definitively resolved the question. Even so, officers should consider activating only rear flashing lights and/or white takedown lights when approaching a parked car and not intending to seize the car and occupants. In State v. Struhs, 940 P.2d 1225 (Utah App. 1997), the court found that driving nose to nose to a car parked on a closed road (blocking exit) and shining bright lights into the car constituted a seizure. On the other hand, in State v. Justensen, 47 P.3d 936 (Utah. App. 2002), the court ruled that the defendant was not seized when an officer pulled in behind the defendant’s van and shined takedown lights into the van before walking up to the driver side. State v. Williams, --- S.W.3d ---, 2006 WL 587832 (Tenn. March 13, 2006).
Lawfully obtained DNA can be used for other investigations
Herman was charged with robbery in 1999. To prove that he did not commit the robbery, Herman voluntarily supplied police with a DNA sample. He was acquitted of the robbery. In 1997, Leslie Carter was found dead in a public restroom in Reno, apparently the victim of a robbery and sexual assault. Blood other than her own was found near her body. DNA testing in 1997 showed no match for the blood. In 2000, the blood was retested by cold case homicide detectives. The DNA matched Herman’s sample given in the 1999 robbery case. Herman was convicted of Carter’s murder. Herman challenged the use of his 1999 DNA sample, arguing that it should have been used only to clear him in the 1999 charge. The court found that he had not qualified his consent when he gave the 1999 sample. The court held that once police lawfully obtain a DNA sample from a person, the person loses all expectation of privacy in the DNA sample and it may be used for any lawful purpose. Herman v. State, 128 P.3d 469 (Nev. 2006).
Implied consent to search can't be revoked at airport secondary screening
The Court of Appeals for the 9th Circuit took a significant shift in consent search doctrine, ruling that a traveler who initially submits to an airport search cannot choose not to fly and avoid a secondary suspicionless search. The court reverses three decades of rulings that allowed passengers to simply abandon the intent to fly and leave the airport if they did not agree to searches. In this case, Aukai asked to leave the airport when he was selected for a secondary search and was not allowed to leave. Aukai was selected for the secondary search due to questions about his identification documents. The secondary search revealed a small amount of methamphetamine in his pocket.
Beginning with United States v. Davis, 482 F.2d 893 (9th Cir. 1973), a 33 year history of cases justified screening searches by relying on a traveler’s ability to leave the airport rather than consent to search. Though other courts have also decided that a traveler must submit to secondary searches and cannot leave the airport, they have primarily relied on the special needs doctrine. The theory stated is that the terrorist attacks of 2001 created a special government need for additional search powers. However, the 9th Circuit court reasoned that “changed circumstances, expectations, and technology involved in modern air travel and airport screening” lead to a new understanding of the scope of an air traveler’s implied consent, and stated that the consent cannot be revoked once given through submitting to initial screening measures. United States v. Aukai, --- F.3d---, No. 04-10226 (9th Cir. March 17, 2006).
No-knock search authorization in warrant subject to good faith test
Following 2 or 3 controlled buys of drugs at Singleton’s home, officers obtained a search warrant. Checking Singleton’s arrest history showed a violent past, including an arrest for murder and an illegal weapons charge, but no violent arrests since 1987. Singleton also lived in a high crime area, and was presumed to be armed as history showed that drug dealers in the area were armed and violent. Officers executed the search without notice, finding 42 grams of crack cocaine. Singleton claimed that the legal basis for the no-knock authorization was insufficient and the evidence should be suppressed. Though the court had doubts over whether residence in a high crime area, and status as a drug dealer, could generally authorize a no-knock warrant, and questioned whether the arrests for violent crimes were too remote to justify the no-knock provision, the court found the warrant to be valid. Even if the no-knock authorization was not legally justified, the officers could have relied on the warrant in good faith. The decision illustrates the split of authority on the question of whether an invalid no-knock authorization on an otherwise valid search warrant requires suppression of the evidence. Some state courts apply the rule of suppression in these circumstances. See Garza v. State, 632 N.W.2d 633 (Minn. 2001). On the other hand, federal courts uniformly refuse to suppress evidence if the underlying warrant is valid and officers believe in good faith that there is a basis for no-knock service. See United States v. Nielson, 415 F.3d 1195 (10th Cir. 2005). Thus, Singleton’s conviction stands. United States. v. Singleton, --- F.3d ----, 2006 WL 724800 (4th Cir. March 23, 2006).
Court upholds stop, but warns about racial profiling
Alcaraz-Arrelano was stopped for speeding (77 in a 70 zone) on I-70. He was clocked as he approached the officer. Before stopping him, the officer pulled along the side of Alcaraz-Arrelano’s car and saw that it was occupied by 2 Hispanic males. The officer asked for license and registration, which showed that Alcaraz-Arrelano held a New York license and had just purchased the car (a gold 2001 Olds Alero) for $4,000 in California three days earlier. Alcaraz-Arrelano said that he had only been in California for 1½ days, purchased the car, and was driving back to New York. He explained that he worked in landscaping, but had been out of work for a couple of months. Ten minutes after the initial stop, the officer issued Alcaraz-Arrelano a warning citation for the speeding, and said “adios” to Alcaraz-Arrelano. As Alcaraz-Arrelano turned to leave, the officer asked consent to ask a few more questions. He asked Alcaraz-Arrelano is there was any contraband in the car, and was told that there was not. The officer then asked for consent to look in the car, and Alcaraz-Arrelano consented.
The officer noted that the trunk floor was green, and not the same gold as the rest of the car. The caulking around the trunk floor was new, thick, and white, and that the carpet padding in the spare-tire compartment was glued to the floor, not just fitted to the floor as in most cars. The officer performed a thumping test and found that there was a gap of approximately three inches between the trunk floor and the bottom underpanel of the trunk, with signs of compartment. The officer told Alcaraz-Arellano that he had found a false compartment, and that he would take the car to the office to be searched. The officer found revealed a hidden compartment containing three kilos of cocaine and one kilo of heroin.
Alcaraz-Arellano asked the court to suppress the drugs, claiming that he was not speeding, the detention exceeded the permissible scope, there was not reasonable suspicion to ask about contraband, the search exceeded his consent, and he was selected for a traffic stop on the basis of his race. The validity of the initial stop was easily resolved; Alcaraz-Arrelano was traveling over the limit and that was a proper basis for the stop.
The Court of Appeals took the opportunity to review the permissible questions and actions that an officer may routinely complete on a traffic stop. The Court’s decision in United States v. Holt, 264 F.3d 1215 (10th Cir. 2001) held that it is reasonable to ask questions about travel plans and authority to operate the vehicle. The Holt case also held that further questioning is permitted only if it is reasonably related to the initial purpose of the stop. However, following the Holt decision, the Supreme Court ruled in Muehler v. Mena, 544 U.S. 93 (2005) (see Legal Update Archives) that questioning unrelated to the purpose of an initial detention did not create an independent seizure so long as the supplemental questioning did not unreasonably extend the initial seizure.
Mena was questioned while being detained by officers executing a search warrant in the house she occupied. The questioning was unrelated to the drive-by shooting that lead to the search warrant. Officers asked about her immigration status. The Supreme Court ruled that “mere police questioning does not constitute a seizure” under the 4th Amendment. “Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage.” The Supreme Court compared questioning during a search to performing a dog sniff during a traffic stop, which does not violate the Fourth Amendment if it does not extend the stop "beyond the time reasonably required to complete [the stop’s original purpose." Illinois v. Caballes, 543 U.S. 405 (2005) (see Legal Update Archives). Based on the Muehler decision, the Court of Appeals ruled that as long as an officer’s questioning does not extend the length of the detention there is no 4th Amendment issue about to the content of the questions. The officer’s questions about Alcaraz-Arrelano’s travel plans and vehicle ownership were permitted as routine questions that may be asked at any traffic stop.
NOTE: Utah's appellate courts have declined to follow the Holt case, still requiring that officer's questions be generally related to the purpose of the initial detention whether or not the questioning extends the scope of the initial detention. "No person may be detained except upon reasonable suspicion, and the scope of the detention must be limited to addressing the articulated grounds for the stop. Investigative acts that are not reasonably related to dispelling or resolving the articulated grounds for the stop are permissible only if they do not add to the delay already lawfully experienced and do not represent any further intrusion on the detainee's rights." State v. Chism, 107 P.3d 706 (Utah App. 2005).
The officer asked additional questions as Alcaraz-Arrelano sat in the officer’s car while the officer wrote the warning ticket. Though the questioning might have slightly extended the time necessary to write the citation, the court ruled that this was permissible. The officer continued to question Alcaraz-Arrelano while waiting for a driver license check response from dispatch. Because none of the questioning significantly extended the detention, and under the rules discussed above did not create a separate detention, the questioning was permitted. Alcaraz-Arrelano's answers to the questions contributed to reasonable suspicion, and later probable cause, that he was committing a crime.
The questioning following issuance of the warning citation must be considered independent of the prior questioning, as it did extend the detention (the trial court did not address the consent issue, leaving the Court of Appeals unable to review the validity of the consent). Thus, the Court considered whether there was reasonable suspicion for the continued detention. Alcaraz-Arrelano traveled across the country to buy a generally available used car and not at some particularly good price, an odd circumstance, particularly because he was out of work. He was particularly nervous. The vehicle registration showed a California residence address. The 10th Circuit Court of Appeals recently ruled that implausible travel plans contribute to reasonable suspicion of criminal activity. See United States v. Santos, 403 F.3d 1120 (10th Cir. 2005). The Court found these facts to create reasonable suspicion of criminal activity.
The Court used this case as an opportunity to send a not-too-subtle message about its perception of racial profiling and selective enforcement. In the past, the Court of Appeals has been prompt to suppress evidence when the defendant shows that there was selective enforcement. The Court noted that 34% of the officer’s stops in a two-year period were of Hispanics. The Court stated that “this evidence has substantial appeal.” However, the Court was bound to follow the factual finding of the trial court that the officer made the stop based on a speeding violation. The Court commented: "Although direct evidence establishes that [the officer] was not motivated by race in his decision to stop Mr. Alcaraz-Arellano, the stop statistics that Mr. Alcaraz-Arellano has presented are disturbing. We assume that in future investigations federal prosecutors will take the utmost care to assure themselves that racial profiling is not lurking behind such statistics." United States v. Alcaraz-Arellano, ---F.3d----, No. 04-3230 (10th Cir. March 30, 2006).
30 minute stop not too long for warning citation
A state trooper stopped Byndloss because her license plate was covered with an opaque plastic sheet that obscured the license number on the Florida plate. As he called out the stop, the dispatcher told him that the computer systems were down. He approached Byndloss, explained the reason for the stop, and obtained license and registration information. He noted that Byndloss was particularly nervous. She told him that she was going to New York for a week. A few minutes later, she told him that she was going to New Jersey. When the trooper noted that she did not have much luggage for a week stay, she said that she was staying for a shorter visit. The trooper returned to his car to write a warning citation. He called dispatch, requested a K9 unit, and learned that it was only the local dispatch center that was experiencing computer problems. He then switched radio channels and tried another dispatch center. However, the second dispatcher could not understand the trooper’s transmission. The trooper switched to his cell phone. The dispatcher told him that they we very busy and would get to his warrant and criminal history check as quickly as possible. Because the K9 officer had a little difficultly finding the location of the stop, the K9 unit did not arrive until approximately 30 minutes after the initial stop. The K9 handler immediately began an exterior sniff. At the same time, the dispatcher notified the trooper that Byndloss had an extensive criminal history, but no outstanding warrants. As the trooper was talking to the dispatcher, he looked up and saw the K9 give an indication of the odors of drugs. The trooper then searched the car and found 2 kilos of cocaine.
Byndloss claimed that the traffic stop lasted longer than necessary to write a warning citation. She also claimed that there was not sufficient suspicion to detain her beyond the time necessary for a citation. Though there certainly were factors leading to reasonable suspicion, the court decided not to address the question of a reasonable suspicion detention. The court ruled that the delays caused by communications difficulties and computer problems were not so egregious as to impermissibly extend the traffic stop. Because the trooper was diligently trying to obtain warrant, registration and license information that is a reasonable step in all traffic stops, the 30 minute stop was lawful. Byndloss v. State, --- A.2d ----, 2006 WL 547963 (March 8, 2006 Md.).
Supreme Court rules that one physically present tenant may negate the consent to search of another
Randolph and his wife were separated. When she returned to the home that the jointly owned, a domestic dispute ensued and police were called. The wife told police that Randolph’s cocaine habit was the root of the problem and that there was drug paraphernalia in the home right then. The officer asked Randolph for consent to come in and search and Randolph refused. The officer then turned to the wife. She gave consent. Officers found a straw with cocaine residue, stopped the search and obtained a search warrant. The trial court sided with the officers, but the Georgia appellate court and Georgia Supreme Court agreed with Randolph and ruled that a search is unconstitutional if one resident objects, even if another resident consents.
The U.S. Supreme Court held that officers cannot search a residence when one physically present resident consents to the search and the other physically present resident objects to the search. However, officers who obtain consent from one resident are not required to find other residents and ask their consent. The Court turned to both traditional property rights law and social custom. The Court noted that “it is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant's invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, ‘stay out.’ Without some very good reason, no sensible person would go inside under those conditions.” However, this new rule applies only when both the consenting party and the objecting party are physically present at the home. The majority opinion states: “if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, 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” the physically present tenant may consent to the search. Georgia v. Randolph, No. 04-1067, --- U.S. --- (March 22, 2006).
Supreme Court upholds anticipatory search warrants in child porn case
Grubb ordered a child porn video from an undercover sting operation of the Postal Inspectors. The officers arranged for a controlled delivery of the illegal tape, and obtained an anticipatory warrant to search Grubbs’ home. The Ninth Circuit Court of Appeals invalidated the search because the warrant did not clearly state the “triggering event” that would activate the anticipatory warrant. Grubbs also argued that an anticipatory warrant is always defective, because the probable cause to support the warrant depends on a future event. He claimed that a court could only find probable cause based on presently known and presently existing facts.
The U.S. Supreme Court reversed the lower court. “Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.” All warrants are necessarily anticipatory in the context that the warrant is based on a belief that evidence will be found at the time of the search and not necessarily at the time of the affidavit preparation. Accordingly, as long as there is probable cause to believe that evidence of a crime will be at the place to be searched and at the time that the warrant is lawfully executed, the warrant is not invalid. This lead the Court to further rule that an anticipatory warrant does not need to plainly state the triggering condition in the warrant (though that remains a sensible practical step for officers). The warrant is valid if there is probable cause to believe that evidence will be found, and probable cause to believe that the triggering event will actually occur. The controlled delivery of the known pornographic tape met the test. United States v. Grubbs, No. 04-1414, --- U.S. --- (March 21, 2006).
Search warrant for child porn case authorizes secondary search of computer
Steven Grimmett enticed a 6 year old boy into his home with an offer of a Mountain Dew. Grimmett removed his own clothing and instructed the boy on how to masturbate him and perform fellatio on Grimmett. Grimmett videotaped the sex acts. Some time later, Grimmett brought a female adult prostitute home to perform fellatio on him, but he was unable to become aroused while watching adult porn on his television. In an attempt to become aroused, Grimmett watched a video played on his computer of an adult male and a young child engaging in oral sex. Grimmett asked the woman if she would join a sex act with a 10 year old girl that he would supply. He also offered the woman large sums of money to obtain children as sex partners for him, or to pay the woman well for bringing her own two pre-teen children to him to perform sex acts on him in a group encounter. A few days later, the woman told a detective of her encounter and conversation with Grimmett.
The detective obtained a search warrant for Grimmett’s home and computer to search for all forms of child porn, including a search of various computer storage media. Upon serving the warrant, the detective found clearly unlawful images of child porn on Grimmett’s computer. He seized the computer, mirrored the hard drive and enlisted an agent from Immigrations and Customs Enforcement (ICE) to conduct a complete analysis of the hard drive. The ICE agent found over 1,500 child porn images and over 140 child porn videos on the computer.
Grimmett claimed that the examination of his computer by the ICE agent was unlawful because the detective should have obtained a second search warrant. Grimmett asserted that the first warrant may have justified the initial on-scene examination and seizure, but a second warrant was necessary for an in-depth analysis of the hard drive. He relied on the decision of United States v. Carey, where the court suppressed child porn evidence following a search of Carey’s computer. The search warrant authorized a search of the computer for evidence of drug dealing. The court ruled that once child porn was found, a second warrant should have been obtained to search for and seize the child porn. In Grimmett’s case, the court ruled that no second warrant was necessary. Even though the complete analysis and extraction of the child porn files followed the original seizure by some time, the warrant contemplated off-site laboratory analysis. The detective specifically stated that the computer media would be removed from Grimmett’s home and carefully analyzed (a sensible step for any officer drafting a computer search warrant). United States v. Grimmett, ---F.3d ---, 2006 WL 574420 (10th Cir. March 10, 2006).
Stop because temporary tag not visible leads to suppression of cocaine
A trooper stopped Edgerton because he could not clearly see her temporary license tag taped to the rear window as he drove 4 to 5 car lengths behind. After obtaining consent to search, the trooper found over 20 kilos of cocaine in the car. As the trooper walked up to the car, he saw an apparently valid Colorado temporary registration tag. The court ruled that once the trooper discovered that the car was apparently lawfully registered, he should have done nothing more than explained the stop to the driver and allowed her to go without even asking for a driver license or other information. Thus, the initial stop was valid, but the conversation and the request for consent to search were improper. This ruling is consistent with earlier court decisions, such as United States v. McSwain, 29 F.3d 558 (10th Cir.1994), where a trooper asked questions about McSwain’s travel plans, even though he found that there was a proper temporary tag posted in the window. However, if the tag was not visible due to some action of the driver or other person, such as posting the tag in an improper position, or allowing mud or something else to cover the tag, it would be proper to discuss the violation with the driver, obtain identification, and potentially issue a citation. See People v. Altman, 938 P.2d 142 (Colo.1997). United States v. Edgerton, 438 F.3d 1043 (10th Cir. 2006).
6th Amendment right subject to dual sovereign doctrine
Alvarado was arrested following a joint state/federal cocaine distribution investigation. He was charged in state court with drug crimes and the court appointed a public defender. At that point, his 6th Amendment right to counsel attached, meaning that he had the right to have counsel present during interrogations (independent of any Miranda rights). Within 2 months, the state court charges were dismissed following a preliminary hearing. In the meantime, federal agents had obtained a federal arrest warrant for charges arising out of the same incident. As soon as Alvarado was released from state custody, he was arrested by a federal officer. Alvarado told the federal officer (known to him from the initial arrest as an officer who spoke fluent Spanish) that he wanted to tell the officer his side of the story. The officer interrupted, administered a Miranda warning and then obtained an incriminating statement from Alvarado.
Even though charges had been dismissed, the 6th Amendment right to counsel would have prohibited state officers from interrogating Alvarado without his attorney being present or having consented to an interrogation. The court followed the dual sovereign doctrine used in 5th Amendment double jeopardy cases and found that the interrogation was lawful. Thus, Alvarado’s admissions to the federal officer were admissible against him. United States v. Alvarado, --- F.3d---, 2006WL598152 (4th Cir. March 16, 2006).
Court allows protective sweep and plain smell seizure during search warrant
Officers obtained a search warrant to search for “marijuana and other indicia of narcotics in the trunk of the vehicle, 1993 BMW 318i, License Plate # 215J3” and the “personal safe located in the basement of the residence containing drugs, firearms, and money” at Angelos’ house. When the officers went into the home, they could smell a strong, fresh odor of marijuana. While conducting a protective sweep of the home, officers found that the smell was very strong in the basement and seemed to be coming from 18 large duffel bags located in plain view. The officers seized those 18 bags and 6 similar bags found elsewhere in the home. Angelos sought to suppress the large quantity of marijuana, claiming that the officers exceeded the scope of the warrant, and acted without exigent circumstances.
The court allowed the seizure under the plain smell doctrine. Comparing plain smell to plain view, the court noted: “The ‘plain view’ doctrine allows a law enforcement officer to seize evidence of a crime, without violating the Fourth Amendment, if ‘(1) the officer was lawfully in a position from which the object seized was in plain view, (2) the object's incriminating character was immediately apparent (i.e., there was probable cause to believe it was contraband or evidence of a crime), and (3) the officer had a lawful right of access to the object.’” The plain smell doctrine is merely an extension of plain view. The officers were lawfully in the home, they had lawful authority to conduct a protective sweep of the entire premises, including the garage and basement, and they smelled a strong odor of raw marijuana coming from duffle bags in the basement and garage, all of which were in plain sight. Moreover, they some marijuana residue on the outside of some of the bags. United States v. Angelos, 433 F.3d 738 (10th Cir. 2006).
Stop based on unfounded suspicion that driver's license is suspended results in suppression
An officer recognized Laughrin while driving and followed him for a mile or so. Without seeing any traffic violation, he stopped Laughrin. The officer subsequently found a sawed-off shotgun with an obliterated serial number in Laughrin’s car. The officer based the stop on his suspicion that Laughrin had no valid driver license, based on several previous stops where he or other officers found Laughrin driving on a suspended license. The officer’s most recent contact with Laughrin had been at least 22 weeks prior, and there was no testimony of whether Laughrin’s license was suspended at that time, or how long the license suspension would be in effect. Other courts have upheld stops for driving without a license based on the officer’s knowledge that the driver had no valid license a 1 week before, United States v. Hope, 906 F.2d 254 (7th Cir. 1990), or 22 days earlier, United States v. Sandridge, 385 F.3d 1032 (6th Cir. 2004). In this case, the court found that the officer’s belief that Laughrin might have a suspended license, based on Laughrin’s history, did not constitute reasonable suspicion for the stop. United States v. Laughrin, --- F.3d ----, 2006 WL 650462 (10th Cir. March 2, 2006).
Tipster's name need not be confirmed prior to traffic stop
A tipster called police, identified herself, gave her DOB, and stated that Kellems was driving without insurance or a license and was intoxicated with children as her passengers. An officer stopped Kellems without observing any traffic violation. Kellems’ license was suspended due to previous traffic violations. Kellems was not impaired. Kellems claimed that the police should have confirmed the identity of the tipster before concluding that there was reasonable suspicion to stop her. Many courts have required confirmed identity before allowing a stop where the officer does not independently find reasonable suspicion for a stop. The court disagreed with Kellems and upheld the stop. The court ruled that determinations of reasonable suspicion must be based on a case-specific evaluation of the totality of the circumstances facing the officer. The possibility that the tipster might be lying about her identity was just one factor to consider. Other factors included that the tipster did give a name, and all of the other information about the vehicle was confirmed. The court also recognized the threat posed by impaired drivers and the immediacy of the threat to the driving public. Kellems v. State, 842 N.E.2d 352 (Ind. 2006).
Arrests on warrants were valid despite unlawful traffic stops
An officer stopped a car leaving a probable drug sale at a motel. The stop was unlawful, since it was based on an erroneous belief that it was unlawful for a rear seat passenger to sit on another person’s lap. Though the passenger initially lied about his name, the officer discovered an outstanding arrest warrant and arrested him. In the search incident to arrest, the officer found crack cocaine on the passenger. The court found that the arrest warrant was a sufficient attenuation from the initially unlawful traffic stop to allow the arrest, and thus allow the court admission of the drug evidence. Jacobs v. State, --- P.3d ---, 2006 Ok. Cr. 4 (Okla. February 1, 2006).
An officer stopped a car for failure to signal a turn and a white light showing to the rear. The driver, Frierson, was both a convicted felon and a victim of identity theft. His identity had been used by another person in connection with a traffic citation on which the other person failed to appear. Thus, there was a facially valid arrest warrant for FTA for Frierson, but the Frierson had not committed the underlying offense. Frierson was arrested on the warrant, and the search incident to arrest revealed a firearm. Frierson was charged with possession of a firearm by a convicted felon. The trial court and the Florida Supreme Court found the stop to be unlawful. Under Florida law, failure to signal a turn is unlawful only if it endangers other drivers. The trial court found that the taillight was merely cracked. However, the existence of an apparently valid –though actually flawed- arrest warrant removed the taint of the unlawful stop. Because the officer arrested Frierson in good faith reliance on the warrant, the seized gun could be used to convict him on the firearms charge. State v. Frierson, --- So.2d ---, 2006 WL 300660 (Fla. February 9, 2006).
Defense attorney present at interrogation doesn't overcome need for Miranda
The presence of a defense attorney, and the attorney’s participation in the discussion immediately prior to a custodial interrogation did not excuse officers from failure to read a Miranda warning before questioning. Thought the suspect may waive Miranda rights, the suspect cannot waive the warning itself. The right to a warning is personal to the suspect, and cannot be waived on behalf of the suspect by an attorney. State v. Joseph, --- P.3d ---, 2006 WL 225771 (Haw. January 31, 2006).
Drug dog sniff at single family home door is a search
A narcotic detector dog’s sniff at the threshold of a door of a single family residence implicates 4th Amendment privacy issues and is a “search.” The court distinguished sniffs in apartment and hotel hallways, which had previously been accepted and remain lawful. Citing the science fiction movie Minority Report, the court compared a dog sniff with the thermal imaging of homes disapproved in Kyllo. Though asked to consider the sniff in the light of Illinois v. Caballes, the court noted that it was the enhanced sensory abilities that made the intrusion too great to not be a “search.” State v. Rabb, --- So.2d ---, 2006 WL 349493 (Fla. App. February 15, 2006).
Protective sweep finding severed foot lawful
A protective sweep following an exigent circumstances warrantless entry was lawful, and the severed human foot found in the bathroom could be admitted as evidence of murder. Officers responded to a 911 report of a suicidal man. After 4-5 minutes of knocking at the door of the small studio apartment, the man opened the door just slightly, said that he was fine and closed the door. Not having seen the full view of the man, and not having confirmed that he was fine, officers knocked for another 2-3 minutes before he opened the door. As he tried to shut the door, an officer inserted a night stick into the doorway and forced the door open and entered the apartment. The officer told the man to sit on the bed, then glanced around to see if anyone else was in the apartment. He looked inside the open bathroom doom and saw a bloody foot. The court ruled that it was objectively reasonable to look around to see if anyone else was in the apartment and noted that the quick look was substantially contemporaneous with the entry. The warrantless entry was motivated by concern for the man’s well-being and was a lawful exigent circumstances entry. State v. Seibert, --- So.2d ---, 2006 WL 345000 (Fla. February 16, 2006).
Subscription to illegal porn site creates probable cause to search home computer
Knowledge that a computer’s owner subscribes to an unlawful child porn site establishes probable cause that the computer will contain illegal images. After FBI agents shut down the Lolita Girls child porn web site, agents obtained a list of subscribers. An agent prepared a search warrant for Gourde’s computer, relying on his multi-month subscription to Lolita Girls showing that Gourde wanted to have and intended to have child porn images, evidence that child porn consumers tend to be collectors and keepers of child porn, knowledge that the images Gourde’s computer could be restored from the computer even if he had deleted them. The Court of Appeals agreed with the magistrate that these facts supported probable cause for search of the computer. United States v. Gourde, --- F.3d ---, 2006 WL 574302 (9th Cir. March 9, 2006).
Bulky clothing permits officer to frisk
Varela was stopped by for expired registration by an experienced patrol officer assisting drug agents. The officer decided to frisk Varela, based primarily on the fact that Varela was wearing a bulky coat on a warm day. The officer testified that his experience taught him that drug suspects will often wear “big clothing” to hide drugs and weapons. Before frisking Varela, the officer told him that he would be frisked and asked Varela whether he had any guns, knives, or anything that might hurt the officer. Varela said that he did not, but that he had drugs in his coat pocket. The officer frisked Varela, reached into the pocket, and found cocaine, methamphetamine, and marijuana. The court ruled that the decision to frisk, due to the bulky coat on a warm day, was objectively reasonable. Reaching into the pocket was justified, due in part to Varela’s purely voluntary admission of possession of drugs. United States v. Varela, 2006 WL 120263 (D. Utah, Jan. 17, 2006).
Other courts have allowed reaching into pockets when the clothing is too bulky to be effectively frisked. See State v. Kyles, 675 N.W.2d 449 (Wis. 2004).
Airport screening valid as administrative search
The U.S. Court of Appeals has upheld the validity of warrantless, suspicionless searches at airport security screening checkpoints. The Court avoided a Fourth Amendment analysis of reasonableness for the screening searches by finding that such searches are permissible administrative searches based on the government’s “overwhelming” interest in keeping airways safe. The administrative search doctrine may apply to searches of highly regulated industries, "special needs," and suspicionless checkpoint searches. The court is required to balance between "the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty."
The defendant challenged the search when a secondary screening (prompted by an alarm on the metal detector) revealed a bag of cocaine in his pocket. Another court recently approved random secondary searches conducted with ion scanners and handheld magnetometers. See United States v. Marquez, 410 F.3d 612 (9th Cir. 2005). United States v. Hartwell, --- F.3d ---, No. 04-3841 (3rd Cir. Jan. 31, 2006).
Police-created exigency invalidates search
After a motel manager told officers of drug activity, officers conducted a clearly illegal search of a motel room and found drugs and paraphernalia. The officers set up surveillance on the room. When the defendant returned to the room, the officers knocked and claimed to be from room service. When that ruse didn’t work, the officers tried again and claimed to be from motel maintenance. That didn’t work either, so officers pounded on the door and said “open up, this is the police.” When the officers heard scurrying footsteps and a flushing toilet, they forced the door open and seized drugs. In a split decision, the Court of Appeals found that the officers created the exigency to enter and the evidence should be suppressed. There is a division of opinion among the federal circuit Courts of Appeals on whether an exigent circumstances entry is lawful where officers clearly create the exigency. In this case, there was evidence that the officers never intended to obtain a warrant. Moreover, there was no practical reason to not seek a search warrant. United States v. Coles, --- F. 3d ---, No. 04-2134 (3rd Cir. Feb. 2, 2006).
Court allows arrest and search following minor traffic violations
Following drug task force officers’ surveillance, Martinez was stopped for failure to come to a complete stop and failure to signal before turning. Officers chose to arrest him on the traffic violations. Officers removed two knives from Martinez during the arrest. After a brief struggle to handcuff Martinez, an officer noticed a large bulge in a front pocket. When the officer asked Martinez about the bulge, he began to struggle and hide the item. Officers reached into the pocket and found a pouch with methamphetamine, marijuana, and paraphernalia.
Martinez challenged the validity of the arrest on the grounds that Utah law does not permit a custodial arrest for a minor traffic violation. He relied on a statute that provides procedural rules for traffic arrests when a suspect: (1) requests immediate appearance before a magistrate; (2) is arrested for driving under the influence; (3) is arrested for a hit and run; or (4) refuses to give a written promise to appear contained in the citation or when, at the officer's discretion, the written promise to appear is insufficient. The court found that these procedural rules do not limit the officer’s discretion to make a custodial arrest for a traffic violation. State v. Martinez, --- P.2d ---, No. 20041090 (Utah App. Feb. 24, 2006).
Court upholds implied consent for unconscious driver
Perez-Avila was convicted of two counts of auto homicide and other crimes, following a crash in which he was the driver. A blood test drawn while he was unconscious showed a BAC of .24. He claimed that the test should have been suppressed, since he did not give his consent. However, the court reaffirmed that Utah’s implied consent law "any person who is dead, unconscious, or in any other condition rendering the person incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the consent provided for" under the implied consent statute. Thus, the test was admissible. State v. Perez-Avila, --- P.2d ---, No. 20040174 (Utah App. Feb. 24, 2006).
Court approves "I'll show you mine, you show me yours" interrogation method
Officers “interviewed” Gonzalez-Lauzan for 2 ½ hours. However, not only did the officers not question him, they told him several times that they did not want him to say anything. The officers simply laid out the evidence of his involvement in a murder against him. Occasionally, the suspect said things such as “I’m not the guy.” The officers would occasionally pause for a few moments of silence to see if the suspect would say anything else. Finally, he said “okay, you got me.” Officers then gave a Miranda warning, questioned him, and obtained a confession to his participation in the murder.
In Oregon v. Elstad, 470 U.S. 298 (1985), the Court ruled that a confession obtained in violation of Miranda rules does not mandate suppression of evidence gained from a subsequent and properly warned confession. This ruling prompted some officers to use a "question first, warn later" technique which was addressed Missouri v. Seibert, 542 U.S. 600 (2004). In Seibert, the Court stated that the Elstad rule could apply in the case of a good faith failure to warn, but not a deliberate case of “question first, warn later.”
Generally, courts agree that confronting a suspect with evidence of a crime is the “functional equivalent” of interrogation. However, the appellate court allowed Gonzalez-Lauzan’s confession in this case. Even though the prosecution conceded that the suspect had been “interrogated” by the interview, the court did not necessarily agree. The court ruled that his waiver and subsequent confession were voluntary. Several key factors distinguished this case from the improper two-step interrogation disapproved in Seibert. First, officers repeatedly told the suspect that they had no questions for him. Second, there was no deliberate misconduct by the officers and no attempt to evade Miranda requirements. Third, the entire interrogation was “respectful” and there were no threats, coercion, or hostility by officers. Fourth, the officers did not rely on statements obtained in an improper interrogation to pose questions or obtain statements during a subsequent proper interrogation. United States v. Gonzalez-Lauzan, 2006 WL 212224 (11th Cir. Jan. 30, 2006).
Unauthorized rental car driver could withhold consent to search
Parker’s girlfriend rented a car from Enterprise while hers was being repaired. As is typical of rental contracts, the agreement stated that only Washington (the girlfriend) could drive the car. Washington loaned the car to Parker. Parker was driving on the freeway when stopped for following too closely. After a canine sniff, officers searched the car and found 61 pounds of marijuana in the trunk.
The prosecution challenged Parker’s standing to object to the search. There is a wide dispute between courts on the right of a non-renting driver of a rental car to give or deny consent to search. Compare United States v. Jones, 44 F.3d 860 (10th Cir. 1995), with United States v. Smith, 263 F.3d 571 (6th Cir. 2001) (unauthorized driver who borrowed rental car from authorized driver had reasonable expectation of privacy). For now, Utah officers are safe in following the rule of the 10th Circuit and considering an unauthorized driver as not having the right to consent/object. However, each case should be considered on its own merits. There may be extenuating circumstances that would cause a court to reach a different conclusion. Whenever possible, obtain consent. In this case, the court ruled that Parker had a legitimate expectation of privacy and could object (or consent) to the search. Though there may well have been an independent basis for the search, flowing from a reasonable detention and the dog sniff, the court declined to reach that issue. Parker v. State, --- S.W.3d ----, 2006 WL 122453 (Tex. Crim. App. Jan. 18, 2006).
Wife's consent to search computer valid, though eraser program installed
Morgan’s wife installed a spyware program on the home computer that she shared with Morgan. The program secretly captured the computer’s screen images for later viewing. The wife told a deputy about her suspicions that Morgan was viewing child porn on the computer. The next day, deputies responded to Morgan’s home on a domestic dispute centering on his wife confronting him over his child porn habits. Morgan’s wife gave consent to search the family computer, which contained numerous illegal porn images.
Relying on the wife’s apparent authority to search, an officer began a forensic examination of the computer. The officer found an eraser, or wiper, program during the search. This program may have cast doubt on the wife’s apparent authority to search the computer. The officer continued the search. The court noted: “If apparent authority existed at [the beginning of the search], later-discovered facts that might undermine the initial reasonable conclusion of third-party authority are immaterial." The officer's discovery of the eraser program "would not necessarily call into question" the wife's apparent authority to consent to a search of the computer. The officer wouldn’t necessarily know who installed the program or the reason for its installation. United States v. Morgan, --- F.3d ----, 2006 WL 176603 (6th Cir. Jan. 26, 2006).
Search of visitor's car proper
Prevo drove past several warning signs telling her that all vehicles entering prison property would be searched. She was there to pick up an inmate for work release. An officer approached her and asked if she had drugs or weapons in the car. Prevo did not want to reply and wished to leave. The officer did not allow her to leave. He searched her car and found a loaded .22 caliber revolver, crack cocaine, and nearly $23,000.00 in cash. Prevo challenged the search as unreasonable, stating that allowing her to turn and leave would have accomplished the goal of keeping drugs and guns out of the prison. The court disagreed, and found that her expectation of privacy became “negligible” once she drove past the warning signs and onto prison grounds. United States v. Prevo, ---F.3d ----, 2006 WL 51200 (11th Cir. Jan. 11, 2006).
Spouse could consent to computer search of password-protected files
Acting on complaints of EBay fraud connected to the account of Michelle Buckner, officers went to Buckner’s home. Michelle Buckner, Buckner’s wife, leased a computer in her name. She consented to a search of the home and a seizure and search of the computer. Mrs. Buckner claimed to know nothing about EBay transactions and said that she used the computer to play games. The hard drive was mirrored and later analyzed. Evidence of communications fraud was found on the computer and Buckner was charged.
Though Buckner conceded that his wife could consent to a search of the computer, he claimed that she could not consent to files under password protection. However, the court ruled that Buckner assumed the risk that his wife would permit others to use or view the computer. Because Buckner’s wife had a "substantial, legitimate, and overarching interest in all aspects of the computer" she could consent to the search of the computer. The computer was in a common area of the home, it was leased solely to the wife. Moreover, there were no encrypted files on the hard drive. The court noted that Buckner should have reasonably realized that his privacy in his password-protected files was not absolute.
In United States v. Trulock, 275 F.3d 391 (4th Cir. 2001), the court held that one person with joint access to a computer may consent to a general search of the computer in the absence of the other user’s, but could not consent to search the other user’s password-protected files. In the Buckner case, the court deviated from the rule of Trulock because of the “sufficient relationship” between Buckner and his wife. United States v. Buckner, --- F.Supp.2d ----, 2006 WL 23445 (W.D.Va. 2006).
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