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Xiphos is a monthly summary of recent court decisions relating to criminal procedure and other topics that are important to the public safety community.  The xiphos is a short, double-edged sword used essentially as a backup weapon for ancient warriors.  This service is provided at no cost.  To receive Xiphos in your email once a month, email Ken Wallentine.


Emergency warrantless cell phone tracking upheld

Officers investigated a report of a woman’s body in a wooded area “off the beaten path.” They found the woman on the ground in a kneeling position, her hands clasped in front and a gunshot wound to the back of her head. Earlier that morning, a nearby construction crew had reported hearing a gunshot. All evidence pointed to the woman having been shot at the location where she was found.

Officers identified the woman as Melissa Barratt. Barratt had recently been arrested for selling drugs. The arresting officers asked her to provide information about her criminal associates. Barratt told them that she was extremely afraid of Caraballo, her drug-dealing associate. She said that Caraballo would kill her if he knew that she was talking to police, and that he had committed assault or even homicide on previous occasions.

Officers knew of Caraballo’s drug dealing and that he was armed and dangerous. They feared that he might harm others, possibly including undercover operatives. Officers asked the telecommunications company Sprint to track the GPS coordinates of Caraballo’s cell phone by triangulating the cell phone’s position by reference to three or more network satellites. The officers did not obtain a warrant. The tracking led to Caraballo’s location.

Officers saw Carabello’s car, stopped him and arrested him. Caraballo made a number of statements to the officers that were later submitted in evidence at trial. Caraballo asked that the statements be suppressed, claiming that the pinging of his cell phone constituted a warrantless search.

The appellate court sidestepped the question of Carabello’s expectation of privacy in his real-time cell phone location information: “We need not resolve this important and complex Fourth Amendment question. … Other Circuits have considered the reasonableness of such expectations in cases akin to the present one (see United States v. Skinner, 690 F.3d 772 (6th Cir. 2012)).” Instead, the court held that exigent circumstances justified the cell phone tracking. The court noted the officers’ limited use of the tracking information to quickly (in less than two hours) find Carabello’s location, and nothing more.

Without doubt, this issue will arise again, allowing other courts to weigh in. United States v. Caraballo, 2016 WL 4073248 (2nd Cir. 2016)

Another court rules on warrantless cell site location information use

A liquor store clerk received a phone call from an Ohio area code; the caller inquired about the store’s closing time. Shortly after the call, the liquor store was robbed. Another liquor store in the area had been robbed less than a week before and the robber took a bottle of tequila. A detective performed an internet search for the phone number retrieved from the liquor store phone line caller ID. The search produced Zanders’ Facebook page.

The public Facebook photos included a picture of various denominations of cash posted at approximately 11:30 a.m. on the morning after the liquor store robbery. Another photograph showed a bottle of Patron tequila, posted the day after the earlier robbery and taken in Zanders’ mother’s residence. Zanders’ Facebook page also publicly included a video taken in his mother’s home and posted the morning after the second liquor store robbery. The video showed a bottle of the same brand of tequila taken in the first robbery. The video then moved to a bed with a pile of money.

Investigators obtained cell site location information (CSLI) showing that Zanders was in the same area of the liquor stores near the time of the robberies. The investigators did not have a warrant to obtain the CSLI records. Although each federal appellate court that has considered the issue of whether there is an expectation of privacy in CSLI records has held that there is no such right, some federal district courts, as well as state courts in Massachusetts, New Jersey and Florida, have ruled to the contrary.

This case is just one more in an issue that has sharply divided the courts. Earlier issues of Xiphos have reported on the federal cases. The Supreme Court is likely to take up the issue fairly soon, as Justice Sonia Sotomayor has signaled that she is ready to address the issue. In a concurring opinion in United States v. Jones (132 S.Ct. 945 (U.S. 2012)), she wrote that the current analysis of expectation of privacy in information voluntarily disclosed to third parties is “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” There are several cases working through the federal courts that might offer the opportunity for the Supreme Court to take a closer look at obtaining CSLI without a warrant. Zanders v. State, 2016 WL 4140998 (Ind. Ct. App. 2016)

Proper Terry frisk did not create de facto arrest

Four officers eating lunch at a university cafeteria noticed Hawkins seated alone. Hawkins appeared to be intoxicated and he was not eating. Two officers approached Hawkins and asked for identification. He was unkempt, his eyes were bloodshot and he smelled of alcohol.

As Hawkins retrieved his identification, officers saw a large amount of cash in his wallet. A records check revealed that Hawkins was not a student, that he had a prior felony conviction, and that he was known to carry a weapon. The officers noticed a bulge in Hawkins’s pocket. An officer asked about the bulge and Hawkins said that it was money.

One of the officers told Hawkins that they were going to search his pocket for safety reasons. Hawkins bolted. The officers tackled and restrained him. An officer felt a hard object from outside Hawkins's left pants pocket, reached into the pocket, and pulled out a loaded handgun and marijuana.

Hawkins was charged with being a felon in possession of a gun. He claimed that the gun and drugs should have been suppressed, arguing that the attempt to check his pocket created a de facto arrest not supported by probable cause. Hawkins also claimed that the only reasonable way to conduct a search under Terry v. Ohio (392 U.S. 1 (1968)) is a limited pat-down of the outer layer of clothing—not by reaching into a pocket.

The court held that the officers had reasonable suspicion to detain Hawkins and reasonable suspicion to believe that he was armed. The court noted that the scope of the Terry frisk was proper, given what the officers knew: “Though a pat-down is often the least intrusive way to search for a hidden firearm, concern for officer safety may justify lifting clothing or even reaching directly for a weapon in a waistband.”

The court disagreed that Hawkins was under arrest at the point that the gun was found. The court cited the lack of the traditional signs of arrest during the brief encounter: “Hawkins was not handcuffed, isolated, moved to a cop car, or humiliated in any way.” Moreover, Hawkins was not actually searched and he wasn’t even touched by an officer until he tried to flee. United States v. Hawkins, 2016 WL 3996705 (8th Cir. 2016)

Abandoned cell phone doesn’t implicate concerns raised in Riley v. California

A patrol officer saw what he believed to be a stolen vehicle. After confirming that the vehicle was stolen, the officer began to follow it. Samalia, the driver, stopped, got out of the vehicle facing the officer, and then turned and ran. Although the officer gave chase, Samalia was able to escape.

The officer returned to the vehicle and searched it. He found and seized a mobile phone. The officer called some of the numbers in the contact list and was eventually able to learn Samalia’s identity.

Samalia was charged with possession of a stolen vehicle. He asked the court to suppress the cell phone evidence that led to identifying and arresting him. Samalia claimed that the officer illegally seized and searched his mobile phone, asserting that the warrantless search did not fall within a valid exception to the warrant requirement. The prosecution argued that Samalia abandoned his mobile phone.

In Riley v. California (––– U.S. ––––, 134 S.Ct. 2473 (2014)), the Supreme Court noted that “many [mobile devices] are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” The Court also discussed the massive data storage capacities of modern smart phones and the owners’ practice of storing extensive personal and intensely private information on the device. 

In Riley, the United States Supreme Court held that the justifications for the “search incident to arrest” exception to the warrant requirement do not apply to searching cell phones seized during an arrest. Samalia argued that the special constitutional protections applied by the Supreme Court should apply to his mobile phone. The Washington Supreme Court acknowledged that mobile phones usually contain intimate information about the owner—information of the sort that the court would normally find to be subject to a legitimate expectation of privacy.

The court agreed with the prosecution that the abandonment doctrine applied to Samalia’s mobile phone: “When an individual voluntarily abandons an item, not as a facet of modern communication but to elude the police, that individual voluntarily exposes that item—and all information that it may contain—to anyone who may come across it. … Cell phones are no different in this respect than for any other item; the abandonment doctrine applies to all personal property equally.”

The Supreme Court’s decision in Riley plowed new ground in Fourth Amendment jurisprudence, applying traditional privacy expectation analysis to digital privacy interests. The Riley Court considered both the quantitative element of cell phone data storage and the qualitative element, pointing to the intimacy of the data often found on a phone. Riley is likely to impact collection of images and sounds by drones and other digital data collection tools. In State v. Samalia, at least one appellate court signals that the traditional abandonment analysis applies to mobile phones, no matter how much and how intimate the data stored on them. State v. Samalia, 2016 WL 4053202 (Wash. 2016)

No seatbelt + loose pants + loose lips = conviction for gun crime

An officer saw Bailey riding in the front seat of a car while not wearing a seatbelt. The officer stopped the car and Bailey bailed. The officer chased Bailey, noting that Bailey was holding his pants up by the waistband. Bailey jumped a fence into the Xiong family’s back yard, falling as he landed. When Bailey got up, the officer noticed that he was no longer holding onto his pants.

Bailey got away and hid in the neighborhood. A police service dog found Bailey. The officer who stopped him arrested him and placed Bailey into the back of his police car. The officer asked Bailey whether he knew of other crimes that might be happening in the area, suggesting that Bailey could help himself out by cooperating. No Miranda warning was given. The officer left the rear-facing camera on, recording video and audio.

As the officer was outside the car, Xiong approached the officer and told him that his grandchildren had found a gun in his back yard. The patrol car camera recorded Bailey as he swore repeatedly and said, “Damn, they found that gun.”

Bailey asserted that his statements captured on the recording should be suppressed, claiming that he was subjected to the functional equivalent of interrogation without the benefit of a Miranda warning. The court held that even if the questions constituted interrogation, the video recording didn’t reveal any of his answers. Moreover, the questions were primarily routine questions that might be asked during an arrest, and the questioning had ceased by the time that Bailey was placed in the back of the car.

Even if the officer hoped that the video recorder would capture some incriminating statement, such a technique did not amount to a deliberate elicitation of an incriminating response (the functional equivalent of interrogation): “Voluntary statements unprompted by interrogation are admissible with or without Miranda warnings.”

The moral of the story for Bailey is simple: Buckle up the seat belt, buckle up your pants belt and button your lip. United States v. Bailey, 2016 WL 4151219 (8th Cir. 2016)


Evidence admitted after unlawful detention leads to discovery of arrest warrant

An officer stopped Strieff after he left a home where officers had watched numerous persons come and go after a brief visit.  Suspecting that Strieff was involved in drug crimes, the officer stopped him and asked what he was doing at the home.  The officer asked for Strieff’s identification and checked for warrants.  Upon learning of an active arrest warrant, the officer arrested Strieff.  A search incident to arrest yielded methamphetamine and drug paraphernalia.

The Utah Supreme Court ordered the evidence suppressed on the grounds that it was derived from an unlawful investigatory stop.  The United States Supreme Court reversed the Utah court, holding that the exclusionary rule does not bar admission of evidence discovered during a search that follows an unlawful detention when the subject has an outstanding arrest warrant.  The Supreme Court stated that the attenuation doctrine applied to sever the connection between the unlawful stop and the search incident to arrest, absent “flagrant police misconduct.”

The Court restated the three-part attenuation test articulated in Brown v. Illinois, 422 U.S. 590 (1975).  A court reviewing a claim of attenuation between an alleged illegal stop and seizure of evidence should first consider the temporal proximity between the initially unlawful stop and the search.  Here the officer discovered the warrant and the contraband within moments of the initial stop.  Next, the court looks at “the presence of intervening circumstances.”  This factor also favored admission of the evidence.  The valid warrant for Strieff predated the investigation and was entirely unconnected with the stop.  The final factor is “the purpose and flagrancy of the official misconduct.”  At most, the Court said, “the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected drug house.”

The Court noted that an officer’s error might still lead to civil liability as a deterrent to negligent police misconduct.   Suppression of evidence was not the only remedy and was unnecessary in this case.  On the flip side, Justice Sotomayor wrote a sharp dissent.  She said: “Do not be soothed by the [majority] opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.  If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”

Some commentators see this decision as a nail in the coffin of the exclusionary rule.  Others see the case as a mere restatement of Brown.  The Court’s opinion clearly supports the philosophy that allegations of police malpractice—that do not cast doubt on the validity of the evidence—are better resolved by administrative or civil remedies.  Utah v. Strieff, 136 S.Ct. 27 (2016)


Warrant required for Stingray cell-site simulator device

Agents investigating an international drug-trafficking organization obtained warrants for pen register information and cell site location information (“CSLI”) for a target cell phone.   Using CSLI, the agents determined that the target cell phone was located in the general vicinity of “the Washington Heights area by 177th and Broadway.”  That information was not sufficiently precise enough to identify the particular apartment building or apartment where the phone was being used.

The agents deployed a “StingRay” cell-site simulator device that mimics the cellular service provider signal to force the target cell phone to “ping” information about its precise location.  A technician first identified the apartment building with the strongest ping.  Then, the technician walked the halls of that building until he located the specific apartment where the signal was strongest.   The agents did not have a warrant for the use of the StingRay device, believing that its use was not a “search.”

In what may be the first court decision addressing whether the use of a cell-site simulator device is a search, the court ruled that the use of the device—absent a warrant—violates the Fourth Amendment.  The court stated the “use of the cell-site simulator to locate Lambis’s apartment was an unreasonable search because the ‘pings’ from Lambis’s cell phone to the nearest cell site were not readily available ‘to anyone who wanted to look’ without the use of a cell-site simulator.”  The court compared the search using the StingRay to the search using thermal imagery to “view” into a home in Kyllo v. United States, 533 U.S. 27 (2001).  The StingRay allowed the agents to obtain information that would not otherwise be available without some “physical intrusion” into the target home.

Though this may be the first case addressing the question of whether a cell-site simulator device ping is a search, others are certain to follow.  Courts must wrestle with emerging technology that essentially allows a person’s mobile phone to be unwittingly converted into a tracking device.  Cases such as United States v. Jones, 132 S. Ct. 945 (2012) (involving a GPS tracker on a car) and the many cases addressing the constitutional protections afforded to CSLI will be instructive.  For now, investigators should tread carefully when using cell-site simulators and should consider consulting with prosecutors.  United States v. Lambis, No. 15-cr-734, (S.D.N.Y. July 12, 2016).

GPS tracker installed outside the jurisdiction of the court

A confidential informant told officers that Faulkner was traveling to and from Chicago to obtain heroin and then sell it in Minneapolis.  The CI described Faulkner’s two cars and two residences.  During surveillance, officers saw Faulkner driving both cars to and from both residences.  The officers obtained a warrant to place GPS trackers on either or both of Faulkner’s vehicles.  The warrant specified that the device could be placed on either of Faulkner’s vehicles located in Hennepin County (Minneapolis).  The officers ultimately placed the device on one of the vehicles while it was in Ramsey County (St. Paul).

Officers watched Faulkner’s travels with the use of the GPS tracker.  They stopped Faulkner when he drove back to Minnesota from Chicago.   A search of his person and car yielded a small baggie of marijuana.  Officers later obtained search warrants for Faulkner’s Chevy Avalanche and the two residences.  Officers found heroin, firearms, and ammunition in Faulkner’s bedroom at one residence.

Faulkner asked the court to suppress all evidence from the GPS warrant.  He claimed that execution of the warrant (applying the GPS tracker) outside the geographical limitations set forth in the warrant transformed the installation of the GPS tracking device into an unlawful warrantless search, citing United States v. Jones, 132 S. Ct. 945 (2012).  The court observed that Jones is really about requiring a warrant for installation of a GPS tracking device on a vehicle.  Nothing in the Jones case was particularly helpful to Faulkner is his challenge to the “technical deficiency” of the warrant authorizing a tracker on his vehicles.  Therefore, the court denied his request to suppress the evidence.  United States v. Faulkner, 2016 WL 3513995 (8th Cir. 2016)


Search warrant justified to obtain a DNA sample from an uncooperative victim

G.B.’s “occasional sexual partner” cut him with a kitchen knife after she learned that he had slept with another woman. G.B. sought medical help at a fire station. Police officers went to the hospital and interviewed G.B., who identified his assailant and provided the address of the apartment where the stabbing occurred. He told the officers that he didn’t want any action taken over the stabbing.

Officers went to the apartment and saw blood drops on the floor and a bloody doormat in the trash can. A witness told police that he saw a woman slash G.B. Officers searched that woman’s car and found blood. They asked G.B. for a DNA sample to compare to the blood found in the car. G.B. refused.

Officers sought a search warrant for a buccal swab of G.B. A judge found that probable cause existed to believe that “on the person of [G.B.] ... there is now being concealed evidence, namely the victim’s cheek cells/saliva,” and the judge issued a search warrant. G.B. challenged the search warrant, claiming that forcibly taking a buccal swab sample to extract DNA from a crime victim is improper.

The court held that “the probable cause to search is not negated because G.B. is a third party to the criminal proceeding.” To determine the constitutionality of a search, the court weighs the reasonableness of the search, assessing the scope and manner of execution. In this case, the intrusion involved (a quick and painless buccal swab) was minimally invasive. Moreover, the court imposed tight restrictions on how the DNA profile could be used. The government could not use the sample to show that G.B. committed perjury and could not enter the profile into any database. The sample was also to be destroyed after the prosecution of G.B.’s assailant.

Most victims of violent crime are not so tight-lipped about their assailants. As this case shows, when victims do refuse to provide a DNA sample—such as in cases where the victim is a gang member or someone involved in a romantic dispute—the mere status as a victim and not a perpetrator won’t prevent officers from obtaining a search warrant. In re Grand Jury Witness G.B., 2016 WL 3031604 (D.C. Ct. App. 2016)

DUI arrest justifies warrantless search of car

An officer stopped Taylor for speeding and blowing a stop sign. The officer smelled alcohol on Taylor’s breath and body, saw Taylor’s bloodshot and glassy eyes and noted that Taylor’s speech was so slurred that it was hard to understand some of what he said. The officer administered standard field sobriety tests. Based on Taylor’s poor performance on the tests, the officer arrested him for driving under the influence. A backup officer searched Taylor’s car incident to the arrest. He found a clear plastic baggy containing 76 knotted bags of powder cocaine.

Taylor claimed that the search of his car violated the rule articulated in Arizona v. Gant, (556 U.S. 332 (2009)). In Gant, the Supreme Court held that officers may conduct a warrantless search of a vehicle’s passenger compartment incident to arrest only when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Taylor argued that he had been handcuffed and there was nothing from the circumstances of his arrest to reasonably lead the officers to conclude that the car would hold evidence related to the crime of driving under the influence.

The court disagreed, relying on testimony from the arresting officer that his training and DUI enforcement experience taught him that there was a “good possibility” that Taylor’s car would have open containers of alcohol related to the DUI investigation. The court stated that it must “assess the evidence through the prism of an experienced law enforcement officer, and give due deference to the [officer’s] training and experience.”

The decision signals the deference that the court will give in applying the Gant decision and highlights the value of thorough reports and testimony. The result in this case was possible because the officer testified about his training and his prior experience leading him to believe that open containers are often found in the cars of drivers arrested for DUI. Though it isn’t evident from the court’s decision, it is likely that the officer was thorough enough to include that information in the report provided to the prosecutor. Taylor v. State, 2016 WL 2956541 (Md. 2016)

Search warrant for home included car on “premises” 

Recent issues of Xiphos have featured some discussion of curtilage.  Curtilage is that invisible legal boundary that stretches Fourth Amendment protections for a home beyond the brick and mortar walls of the home to the area that the property owner reasonably claimed as part of “living space” or an area of private control.  Courts traditionally defined the curtilage as the area extending the intimate activity associated with the “sanctity of a man's home and the privacies of life.”  Boyd v. United States, 116 U.S. 616 (1886).  Relegated to the margins of Fourth Amendment jurisprudence for many years, the concept of curtilage took on new vitality in United States v. Jones, 132 S. Ct. 945 (2012).


In Jones, Justice Scalia’s majority opinion held that a search occurs when officers trespass on personal property (in the Jones case, the trespass occurred when officers attached a GPS tracking device to a car).   In Florida v. Jardines, 133 S. Ct. 1409 (2013), the Supreme Court pumped even more life into the curtilage doctrine, holding that a sniff by a specially-trained detector dog was a search when conducted on the curtilage of a home.  A clear majority of the justices in Jones and Jardine expressed interest in more intently exploring the collision of technology developments and trespass doctrines.


After United States v. Jones, defense attorneys considered new ways to claim Fourth Amendment protection for criminal defendants.  With the development and proliferation of new technologies, such as automated license plate readers, drones with high-definition cameras, facial recognition readers, surveillance cameras on street corners, bus stations, toll booths and subways, gunfire recognition and location tools and aural surveillance in public.  I’m watching those developments with interest as I see more creative curtilage arguments in the courts.


Officers received a tip that Patterson was selling drugs from his residence.  Officers obtained a search warrant that described the place to be searched as “premises of 2720 N. Erie.”  The warrant authorized a search of the “premises” for items related to the sale of illegal drugs, evidence of occupancy or ownership of the residence, firearms connected with the sale of drugs, scanners or radios used in the sale, and indicia of gang affiliation or membership including clothing.  The affidavit stated that Patterson’s juvenile son also resided at the location.  Patterson’s juvenile son had criminal record and was identified as a criminal street gang member.


As officers approached to execute the warrant, the saw Patterson’s juvenile son sitting behind the wheel of a white Mercedes backed into the driveway.  The officers ordered him to get out.  They searched the Mercedes—which was not included in the search warrant—and found a glass container with white crusty residue, a box of sandwich bags, a digital scale with powdery residue, and a handgun.


Patterson claimed that the search of the Mercedes was outside the scope of searches authorized by the warrant.  He asserted that the Mercedes was outside the curtilage when parked in the driveway.   The court declined to apply a curtilage analysis, reasoning that defining curtilage “is a complex legal exercise and risks ‘hypertechnical’ warrant interpretations which, at a minimum, will interfere with the ability of law enforcement officers to clearly understand the extent of the warrant.”


The court stated that the better analytical approach is to consider whether the Mercedes was on the “premises” described in the warrant.  The court explained that “premises” describes more than just the “building.”  A search of “premises” extends the lawful scope of the search to include those areas that are typically defined as being within the curtilage.  The word “premises” sets the outer boundary of a warrant's scope at “the totality of the unit of property ownership.”


The court offered an alternate basis to search the Mercedes, explaining that the car was a mobile container that could have (and, in fact, did) contain the items sought in the warrant.  Patterson countered that the car could have been driven to the home by an innocent third party, and thus should have been protected from the search.  The court disagreed, reasoning that the officers reasonably believed that the Mercedes was under the control of one of the home’s occupants.   “The position of the car in the driveway, the manner in which it was parked, and its nearness to the house all suggested that the car belonged to a resident of the household and not a visitor.”


Whenever possible, the better course is to include the description of the vehicles likely to be at the home at the time of search.  Of course, that may not always cover a car that drives up to the premises at the time of the search.  In such a case, officers should note any factors connecting the vehicle, driver and any occupants to the place to be searched and the items named in the warrant.  State v. Patterson, 2016 WL 1612915 (Kan. 2016).


Arrest warrant or search warrant needed?  Or both?


When seeking to apprehend a suspect at a third party’s home, officers need both an arrest warrant and a search warrant.  On the other hand, if the suspect resides at the home, officers need only an arrest warrant and a “reason to believe” that the suspect is present at the time of the officers’ entry.  That’s a bright line rule stated by the Supreme Court in Payton v. New York, 445 U.S. 573 (1980) and Steagald v. United States, 451 U.S. 204 (1981).  However, lower courts disagree on just how certain officers must be that a suspect resides at and is present at a particular address before forcing entry into a private home.  Some courts hold officers to a “probable cause” standard and others hold that the “reasonable belief” standard stated in Payton/Steagald is less demanding than probable cause.


Officers had an arrest warrant for Rivera, a suspect in a homicide case.  Investigators received information from another law enforcement officer and from street informants that Rivera was “staying” or “residing” at an address on North 13th Street.  The investigators went to the home, knocked on the door, and received no response.  They “heard a lot of movement inside,” as well as a phone ring once or twice and stop ringing and a dog bark and cease barking.  The officers believed that someone inside had manually silenced the phone and muzzled the dog.   The officers then forcibly entered the home.


Once inside, the officers discovered that Rivera did not live there.  However, they found Vasquez–Algarin, sandwich baggies, a razor blade, and what appeared to be powder cocaine in plain view.  Officers used this information to obtain a warrant to search Vasquez–Algarin’s home.  During the search conducted pursuant to the warrant, officers discovered ammunition and drug paraphernalia.


Vasquez–Algarin was charged with distribution and possession with intent to distribute cocaine.  He asked that the evidence be excluded, arguing that the officers did not have probable cause to believe Rivera (the murder suspect) resided at the home.  The court agreed and vacated Vasquez-Algarin’s conviction.


The court held that “that Payton’s ‘reason to believe’ language amounts to a probable cause standard.”  Reaching this holding, the Third Circuit Court of Appeals joins the Fifth, Sixth, Seventh and Ninth circuits in similar rulings.  Federal appellate courts in the District of Columbia, First, Second and Tenth circuits have held that the Payton/Steagald “reasonable belief” standard requires less than probable cause.  Some courts have opined that the Supreme Court hinted that it meant “probable cause” when it said “reasonable belief,” finding support in dicta in Maryland v. Buie, 494 U.S. 325 (1990).


One wonders whether the Court said what it meant and meant what it said.  For now, we know that lower courts disagree and this is one issue likely to head to the United States Supreme Court.   Until, officers will do what we’ve always done and made the best possible call on less-than-perfect information.  United States v. Vasquez-Algarin, 2016 WL 1730540 (3rd Cir. 2016).


DV call does not automatically justify a Terry frisk


A campus police officer responded to a call to investigate a man pushing a woman.  The officer encountered Thomas, a student who had been hanging out with and kissing his girlfriend.  Although Thomas was unarmed and had committed no act of domestic violence, the officer ordered Thomas to submit to a Terry frisk.  When Thomas refused, the officer used a TASER®.  Thomas sued the officer, alleging unlawful seizure and excessive force.


Courts have ruled that certain serious crimes generally involve weapons and automatically justify a Terry frisk of suspects.  Such crimes include nighttime burglary, large-scale drug trafficking and robberies.  The officer claimed that police officers are free to conduct a Terry frisk whenever investigating a potential “domestic violence” incident, regardless of the specific circumstances of the call or the facts encountered at the scene.  The court disagreed.


The officer asserted that the following facts justified a frisk:  (1) Thomas generally matched the description of a black male in a purple shirt observed “pushing” a female; (2) Thomas and his girlfriend seemed “startled and fidgety” when approached; (3) Thomas wore loose clothing that might easily conceal a weapon; (4) Thomas refused to consent to be frisked; and (5) Thomas moved away from the officer when the officer tried to grab him.  In contrast, both Thomas and his girlfriend denied that there had been any domestic violence. 


The court quickly disregarded nervousness and the instinctive step back as suspicious.  Rather, the court noted, such factors would more likely be a “natural response” when dealing with an officer.  “A vague call about an unarmed man pushing a woman in a public place on a college campus, without more, does not give rise to a conclusive reasonable suspicion that the man is armed and dangerous.”


A single dissenting judge would have allowed the frisk.  Judge Bea observed that the Ninth Circuit court has “repeatedly (and correctly) recognized the unique dangers law enforcement officers face when responding to domestic violence calls—including the inherent volatility of a domestic violence scene, the unique dynamics of battered victims seeking to protect the perpetrators of abuse, the high rate of assaults on officers' person, and the likelihood that an abuser may be armed.”   At the end of the matter, both the majority and dissent concurred that the officer was entitled to qualified immunity.


Any call may turn deadly—whether an armed robbery, shoplifting or college campus domestic dispute.  The same careful observation skills that will help an officer stay safe will also help an officer observe, assess and articulate particular threat factors that will justify a frisk for weapons.   Thomas v. Dillard, 2016 WL 1319765 (9th Cir. 2016).


Swiping a credit card was not an unconstitutional search

An officer stopped DE L’Isle for following too closely to a large truck. The officer smelled burnt marijuana and saw air fresheners inside DE L’Isle’s car. The officer had a drug detector dog partner. He deployed the dog around the car and the dog gave a positive final response to the odors of controlled substances. When the officer began searching the vehicle, DE L’Isle protested. After a brief struggle, DE L’Isle was handcuffed and placed in the police car.

The search yielded no drugs, but officers did find a large stack of credit, debit and gift cards in the trunk of DE L’Isle’s car. Officers scanned the seized cards and discovered that the magnetic strips on the back of the cards either contained no account information or contained stolen American Express credit card information. Several of the American Express credit cards were in DE L’Isle’s name, but had no data encoded on the magnetic strip.

DE L’Isle was charged with possession of counterfeit and unauthorized access devices. DE L’Isle filed a motion to suppress, arguing that the scanning of the information in the magnetic strips of the cards was an unconstitutional search. The court rejected DE L’Isle’s claim.

First, the court held that sliding the cards through a scanner does not physically intrude into a constitutionally protected space. The magnetic strip on the back of a debit or credit card is external electronic storage media “designed simply to record the same information that is embossed on the front of the card.” Second, DE L’Isle did not have a reasonable expectation of privacy in the cards and card information. The information on a non-counterfeit card magnetic strip is typically “identical to the information in plain view on the front of the cards.”

The majority opinion acknowledged that different facts in another case might lead to a conclusion that a person could hold a subjectively and an objectively reasonable expectation of privacy in information on a magnetic strip.

One judge dissented, stating that the case should have been remanded for additional fact-finding. The dissent observed that a person may wish to rewrite information on a magnetic card for perfectly innocent reasons. Moreover, the fact that the search results showed blank magnetic strips—implicating DE L’Isle in counterfeiting—did not justify the search at the outset. The search results, the dissent claimed, could not justify the search means.

The question of privacy on magnetic strips will indubitably arise again. As the court noted, future technology could well result in larger amounts of personal information encoded on magnetic strips: “Although the stakes may appear small at this stage, technological progress has a way of ensuring that they do not remain so.” United States v. DE L’Isle, 2016 WL 3184475 (8th Cir. 2016)

Search warrant justified to obtain a DNA sample from an uncooperative victim

G.B.’s “occasional sexual partner” cut him with a kitchen knife after she learned that he had slept with another woman. G.B. sought medical help at a fire station. Police officers went to the hospital and interviewed G.B., who identified his assailant and provided the address of the apartment where the stabbing occurred. He told the officers that he didn’t want any action taken over the stabbing.

Officers went to the apartment and saw blood drops on the floor and a bloody doormat in the trash can. A witness told police that he saw a woman slash G.B. Officers searched that woman’s car and found blood. They asked G.B. for a DNA sample to compare to the blood found in the car. G.B. refused.

Officers sought a search warrant for a buccal swab of G.B. A judge found that probable cause existed to believe that “on the person of [G.B.] ... there is now being concealed evidence, namely the victim’s cheek cells/saliva,” and the judge issued a search warrant. G.B. challenged the search warrant, claiming that forcibly taking a buccal swab sample to extract DNA from a crime victim is improper.

The court held that “the probable cause to search is not negated because G.B. is a third party to the criminal proceeding.” To determine the constitutionality of a search, the court weighs the reasonableness of the search, assessing the scope and manner of execution. In this case, the intrusion involved (a quick and painless buccal swab) was minimally invasive. Moreover, the court imposed tight restrictions on how the DNA profile could be used. The government could not use the sample to show that G.B. committed perjury and could not enter the profile into any database. The sample was also to be destroyed after the prosecution of G.B.’s assailant.

Most victims of violent crime are not so tight-lipped about their assailants. As this case shows, when victims do refuse to provide a DNA sample—such as in cases where the victim is a gang member or someone involved in a romantic dispute—the mere status as a victim and not a perpetrator won’t prevent officers from obtaining a search warrant. In re Grand Jury Witness G.B., 2016 WL 3031604 (D.C. Ct. App. 2016)

DUI arrest justifies warrantless search of car

An officer stopped Taylor for speeding and blowing a stop sign. The officer smelled alcohol on Taylor’s breath and body, saw Taylor’s bloodshot and glassy eyes and noted that Taylor’s speech was so slurred that it was hard to understand some of what he said. The officer administered standard field sobriety tests. Based on Taylor’s poor performance on the tests, the officer arrested him for driving under the influence. A backup officer searched Taylor’s car incident to the arrest. He found a clear plastic baggy containing 76 knotted bags of powder cocaine.

Taylor claimed that the search of his car violated the rule articulated in Arizona v. Gant (556 U.S. 332 (2009)). In Gant, the Supreme Court held that officers may conduct a warrantless search of a vehicle’s passenger compartment incident to arrest only when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Taylor argued that he had been handcuffed and there was nothing from the circumstances of his arrest to reasonably lead the officers to conclude that the car would hold evidence related to the crime of driving under the influence.

The court disagreed, relying on testimony from the arresting officer that his training and DUI enforcement experience taught him that there was a “good possibility” that Taylor’s car would have open containers of alcohol related to the DUI investigation. The court stated that it must “assess the evidence through the prism of an experienced law enforcement officer, and give due deference to the [officer’s] training and experience.”

The decision signals the deference that the court will give in applying the Gant decision and highlights the value of thorough reports and testimony. The result in this case was possible because the officer testified about his training and his prior experience leading him to believe that open containers are often found in the cars of drivers arrested for DUI. Though it isn’t evident from the court’s decision, it is likely that the officer was thorough enough to include that information in the report provided to the prosecutor. Taylor v. State, 2016 WL 2956541 (Md. 2016)

Historical CSLI does not require probable cause showing

Pearson brought a bag of marijuana to the home of his girlfriend’s mother. Two men came to the home and spoke with Pearson.

Pearson placed the bag of marijuana on the table and spoke to the men about money. One of the men responded, “No, we taking this.” Pearson said, “Take it.” The men began going through Pearson's pockets. Pearson tried to grab a gun from his waistband. The men fatally shot Pearson and fled with the marijuana.

Pearson’s girlfriend told detectives that Pearson made phone calls and spoke about selling drugs to someone he called “D.” The detectives examined Pearson’s cell phone and traced a recently dialed number to Archer. The detectives conducted surveillance on Archer and watched her enter a bar. She came out of the bar with Taylor.

The detectives stopped Archer and Taylor and seized Taylor’s cell phone. A detective called the number that Pearson had called shortly before his murder. Taylor’s phone rang.

Under the procedures established in the Stored Communications Act (18 USC § 2703(d)), the detectives obtained historical cell site location information (CSLI) from Taylor’s service provider. The Stored Communications Act allows investigators to obtain CSLI with a subpoena instead of a search warrant. The CSLI placed Taylor’s phone near the murder scene at the time of the murder.

Taylor claimed that the detectives violated the Fourth Amendment because he had a legitimate expectation of privacy in his CSLI and they should have obtained a search warrant based upon probable cause, rather than a subpoena under the Stored Communications Act. The court disagreed, holding that Taylor’s Fourth Amendment rights were not violated because he held no reasonable expectation of privacy in the CSLI: “Because Taylor does not have a reasonable expectation of privacy in business records made, kept, and owned by his provider, Sprint-Nextel, a warrant requiring probable cause was not required before obtaining that information.”

Obtaining real-time or prospective CSLI does generally require a warrant. The issue gets murkier, however, with historical CSLI. Many federal courts agree that probable cause is not required as long as investigators can demonstrate “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation”—the standard that the court applied to this case. Federal Courts of Appeals for the 3rd, 5th, 6th and 11th circuits have followed this approach.

However, in a case previously discussed in Xiphos (“Warrant required for cell site location information?” August 2015), the 4th Circuit took a different approach, requiring a search warrant. That case was recently reconsidered by the entire circuit en banc and a decision is expected soon. In addition, appellate courts in a number of states, including Massachusetts, New Jersey and Florida, as well as a few federal trial courts, have ruled that police need a search warrant to obtain historical CSLI.

Taylor failed in his effort to persuade the court to apply a probable cause standard and the court ruled that the CSLI evidence was properly used against him. This case adds to the divide on the CSLI issue and makes it even more likely that the U.S. Supreme Court will review the standard for obtaining historical CSLI. Taylor v. State, 2016 WL 1594007 (Nev. 2016)

Court distinguishes historical CSLI information from GPS tracking in novel argument

A group of 15 shifting suspects committed a string of armed robberies at Radio Shack and T-Mobile stores. When four of the men were arrested, one soon implicated Carpenter and Sanders as the ringleaders. The man who confessed gave investigators his cell phone and the phone numbers of his partners in crime.

Investigators tracked down owner information for these numbers, as well as other numbers from the confessing robber’s phone. Ultimately, seven of the robbers implicated Carpenter as the organizer and gun supplier for most of the robberies. The robbers also stated that Carpenter and Sanders had served as lookouts during the robberies.

Investigators obtained an order under the Stored Communications Act (18 USC § 2703(d)) for historical cell site location information (CSLI) for Carpenter’s and Sanders’ phones as well as 14 other phones of co-conspirators. The CSLI showed that Carpenter and Sanders used their cell phones within a half-mile of the crimes.

Carpenter and Sanders protested the use of the CSLI, arguing that they had an expectation of privacy and drawing a comparison to continuous GPS tracking disfavored by recent decisions of federal courts, including the U.S. Supreme Court in United States v. Jones (132 S.Ct. 945 (2012)). The court made quick work of a general claim to privacy in CSLI, holding that cell phone communication “content … is protected under the Fourth Amendment, but routing information is not.” Moreover, cell phone users must know that the phone location is being tracked by a provider: “Any cellphone user who has seen her phone’s signal strength fluctuate must know that, when she places or receives a call, her phone ‘exposes’ its location to the nearest cell tower and thus to the company that operates the tower.”

The court also dismissed the analogy to GPS surveillance. First, placing a GPS tracking device involves a physical trespass on the vehicle, person or item. Second, the GPS tracker reveals much more precise detail about location. The GPS tracker is generally accurate within approximately 50 feet and is even able to point to the tracker’s location within a building. As the court noted, the CSLI was obtained from a third-party provider, not a tracking device. It “could do no better than locate the defendants’ cellphones within a 120- (or sometimes 60-) degree radial wedge extending between one-half mile and two miles in length.”

The court held that the CSLI was properly admitted. Carpenter also complained about the 116-year sentence imposed by the trial court and Sanders protested his much-shorter 14-year sentence, but both sentences were upheld. United States v. Carpenter, 2016 WL 1445183 (6th Cir. 2016)

Detector dog sniff in common hallway violates Jardines holding

A confidential informant told detectives about drug dealing at an apartment building. The informant said that the dealer drove a black Cadillac Escalade. A detective met with the property manager and obtained consent for a detector dog sniff in the common areas of the building. The manager allowed the detective and a drug detector dog handler and his dog to enter the locked underground parking area.

The Escalade was parked in the underground garage in the space for apartment 204. The dog showed a change of behavior at the Escalade. The detector dog team then conducted a sniff of the common hallways. The dog initially showed interest at the door of apartment 208. Upon a second sniff, the dog gave a final positive response at the threshold of apartment 204.

Based on this information, detectives obtained a search warrant for apartment 204. During the search, detectives located cocaine, heroin and marijuana in apartment 204. Whitaker was the sole occupant at the time the warrant was executed and he admitted he lived there.

Whitaker challenged the search warrant, relying on Florida v. Jardines (133 S.Ct. 1409 (2013)), in which the Supreme Court held that using a detector dog to investigate a home and its immediate surroundings constituted a search under the Fourth Amendment. The majority opinion in Jardines reached its decision on the express ground that entry onto the home’s curtilage with a detector dog constituted a trespass. Whitaker not only argued that the investigators had trespassed on his curtilage, but he also claimed a basic intrusion on his privacy interests.

In Whitaker’s case, the court held that the Jardines curtilage analysis applied, noting that “Whitaker’s lack of a right to exclude did not mean he had no right to expect certain norms of behavior in his apartment hallway. ... [T]he fact that a police officer might lawfully walk by and hear loud voices from inside an apartment does not mean he could put a stethoscope to the door to listen to all that is happening inside. … This means that because other residents might bring their dogs through the hallway does not mean the police can park a sophisticated drug-sniffing dog outside an apartment door, at least without a warrant.”

Whitaker cited to Justice Kagan’s concurring opinion in Jardines, in which she was joined by two other justices. Justice Kagan opined that using a “super-sensitive instrument” such as a detector dog was analogous to use of an infrared radar heat detection device held to be a search in Kyllo v. United States (533 U.S. 27 (2001)). The Court of Appeals agreed with Whitaker and applied Justice Kagan’s privacy interest analysis to the use of the detector dog.

The Whitaker decision is significant because it is the first federal appellate court to apply the Jardines ruling to the common area of an apartment building and because the appellate court followed the analysis in the concurring opinion of only three Supreme Court justices. Some state courts have followed a similar path, while others have disagreed that there is either a privacy interest in the smells seeping from an apartment into a common hallway or a curtilage violation. The Whitaker decision suggests that we will see this argument raised more often in the future. United States v. Whitaker, 2016 WL 1426484 (7th Cir. 2016)

Beware “cut and paste” when preparing a warrant

Every investigator does it: Preparing a search warrant, you include some paragraphs recycled from a previous warrant. For some of us, that meant pecking at a typewriter while copying from an old carbon copy. Today, it’s cut and paste from a Word file. Shortcuts are great—unless they short-circuit the admissibility of evidence.

Wheeler was a headmaster at a private school. As a young teacher at another school, he lived with a family that boarded students. Wheeler sexually abused some of the boys. Years later, after the Jerry Sandusky story became public, one young man decided to tell his brothers about being abused by Wheeler when they were younger. One brother shared that Wheeler also abused him.

The brothers wrote to Wheeler, confronting him about the abuse. Wheeler responded. One victim took the correspondence to police. A witness-tampering investigation ensued. Investigators obtained search warrants for Wheeler’s home, office and car.

When they drafted the affidavits and warrants, the investigators cut and pasted from a form child pornography warrant. Many child pornography warrants describe how suspects hoard illegal images for many years, thus justifying a broad temporal range for the search. The investigators copied language that did not restrict them to searching for evidence limited to the relevant time frame of the suspected witness tampering.

The court described the warrants as “virtual copies of an off-the-shelf warrant for child pornography” and went on to say that “the challenged warrants covered Wheeler's entire digital universe and essentially had no limitations.” Pursuant to the warrants, investigators searched an Apple computer, even though they knew the particular computer was not in use during the period of the alleged witness tampering. The court observed that the Apple computer “logically could not have contained material created or recorded during the relevant time period.”

These flaws—stemming directly from the cut-and-paste language—led the court to hold that the warrants were unconstitutional general warrants. If anything underlies the Fourth Amendment, especially its particularity requirement, it is the history of abusive searches under general warrants, both in England and the American colonies.  

In Riley v. California (––– U.S. ––––, 134 S.Ct. 2473 (2014)), the U.S. Supreme Court held that an arrestee’s mobile phone could not be searched under the search-incident-to-arrest exception to the warrant requirement. Citing Riley, the court in the Wheeler decision described the rigorous requirement to particularly describe the places or things to be searched when searching digital media: “Warrants directed to digital information present unique challenges in satisfying the particularity requirement, given the unprecedented volume of private information stored on devices containing such data.” The broad language contained in the Wheeler warrants ostensibly permitted a search for “child pornography to medical records to consumer information to tax returns. In short, they permitted the species of wide-ranging, exploratory searches the Framers intended to prohibit.”

The Wheeler decision doesn’t mean that investigators can never cut and paste language from other warrants. But it does remind us to think beyond whether there is probable cause to search and to remember another critical component of the Fourth Amendment, that of “particularly describing the place to be searched, and the persons or things to be seized.” Wheeler v. State, 2016 WL 825395 (Del. 2016)

“No Trespassing” signs didn’t bar efforts to knock-and-talk

Investigators received several tips that Carloss, a previously convicted felon, was possibly holding a machine gun and was selling methamphetamine from his home. Two investigators went to Carloss’ home. Four signs were posted around the home: a “No Trespassing” sign on a three-foot-high post by the driveway, “Private Property No Trespassing,” nailed to a tree, and signs on a wooden pole in the front yard and on the front door of the house, both stating “Posted Private Property Hunting, Fishing, Trapping or Trespassing for Any Purpose Is Strictly Forbidden Violators Will Be Prosecuted.”

The investigators parked in the driveway and knocked on the front door. No one answered, though they could hear movement in the house. A short time later, Heather Wilson came out a side door. Wilson told the investigators that Carloss, Earnest Dry, and another woman were inside.

Carloss came outside and the investigators explained that they had heard that Carloss might have a gun. Carloss said he knew that he could not be around ammunition due to his conviction status. Investigators asked to look around the house. Carloss said that he rented a room in the house and that he’d have to get Dry to give permission. When Carloss went into the house to talk to Dry, the investigators asked to accompany Carloss. He agreed.

The investigators saw white powder and drug paraphernalia in the mud room (a room Carloss claimed as his) on the way in. They asked Dry for consent to search the house. Dry called his attorney and subsequently denied consent.

Based on the paraphernalia and white powder, the investigators obtained a search warrant. During the search pursuant to that warrant, officers found “multiple methamphetamine labs” and lab components, a loaded shotgun, two blasting caps, ammunition and other drug paraphernalia.

Carloss claimed that the officers violated the Fourth Amendment by going to the front door and knocking because the property was posted with “no trespassing” signs.

In a split decision, the court held that the investigators did not violate the Fourth Amendment by walking up to the door and knocking. The court noted that a pizza delivery driver or mail carrier would typically walk right past the signs: “Those signs would not have conveyed to an objective officer, or member of the public, that he could not walk up to the porch and knock on the front door and attempt to contact the occupants.”

Though the front porch is typically considered to be within the curtilage of a home, the court distinguished walking up to the front door and taking a drug detector dog to the front door as happened in Florida v. Jardines (133 S.Ct. 1409 (2013)). The Jardines court held that officers violated the Fourth Amendment by intruding on a home’s front porch, a “classic exemplar” of curtilage, with a detector dog sniffing for the odors of controlled substance. However, the investigators in this case were merely seeking to speak with Carloss, not trying to collect evidence of what was occurring inside the home.

The dissent argued that the sign posted “smack in the middle of the front door” gave notice to the whole world forbidding trespassing for any reason. United States v. Carloss, 2016 WL 929663 (10th Cir. 2016)

Curtilage or open field? Vantage point matters to the Fourth Amendment

Investigators received an anonymous tip that Dixon was making methamphetamine in his home. When they went to investigate, they spoke with Dixon’s mother, who told them that Dixon lived in a nearby trailer through the woods. The investigators drove down a nearby gravel road, passed at least two more residences, and located Dixon's trailer at the end of the road.

They noted several signs of methamphetamine production at Dixon’s trailer, including an open fire near the front door that smelled like burning plastic and windows covered from the inside. The investigators approached the front door, intending to knock-and-talk, but before they reached it, Dixon came out of the trailer and met them in front of the porch. Dixon declined to allow the investigators to enter the trailer.

As one investigator spoke with Dixon, the other walked around the side of the trailer in an area of tall weeds and grass at the edge of the woods. The investigator saw two bottles that appeared to be a one-step methamphetamine process. He could seek smoke coming from the back door of the trailer and he smelled odors consistent with methamphetamine production. The investigator testified that he stayed outside the curtilage, off the mowed portion of the vegetation, standing in an area used for dumping trash.

The investigators conducted a protective sweep and ordered the occupants outside. During the sweep the investigators saw other methamphetamine processes underway. They obtained a search warrant and called for a properly equipped search team.

The core issue before the court: whether the investigator was standing within the curtilage, which usually constitutes a Fourth Amendment intrusion, or whether he was in an “open field” when he saw the methamphetamine process. The court of appeals reversed Dixon’s conviction for manufacturing methamphetamine, holding that the investigator intruded upon the curtilage prior to seeing the methamphetamine labs at the back of the trailer. The Kentucky Supreme Court disagreed with the curtilage analysis, and reversed the intermediate appellate court decision.

The court’s analysis reminds officers of the factors used to distinguish between open fields and curtilage. Though backyards are almost always treated as part of the curtilage, the court stated that the lower court put too much emphasis on proximity and did not sufficiently examine other factors in the analysis of curtilage.

In United States v. Dunn (480 U.S. 294 (1987)), the U.S. Supreme Court described four factors to consider when determining whether an area falls within the curtilage:

1.      The proximity of the area to the home

2.      Whether the area is included within an enclosure surrounding the home

3.      The occupant’s uses for the area

4.      The steps taken to protect the area from observation by passersby

There was no fence or other barrier surrounding Dixon’s trailer. The investigator was standing in tall, uncut weeds and grass where piles of household trash had been dumped. Nothing suggested that Dixon had taken any steps to shield the back door and back area from the view of passersby. In this case, the investigator was careful to stay outside the area that Dixon, or anyone else, could reasonably claim as part of the living space (curtilage). The investigators’ caution paid off with an abundance of admissible evidence. Commonwealth v. Dixon, 2016 WL 673543 (Ky. 2016)

Arrest of person standing inside threshold violates Fourth Amendment

Officers went to Allen’s apartment intending to arrest him for an alleged assault reported several days earlier. The officers knocked on Allen’s door. Allen’s apartment was located on the upper floors of a three-story building. The front door to his apartment was on the street level. The other tenants did not share the entrance, the hallway or the staircase to Allen’s apartment.

Allen heard the officers knock and he looked out from the second floor. The officers requested that Allen come down to speak with him. Allen complied, opening the door to his apartment and speaking with the officers while remaining “inside the threshold.” The officers stood outside. Allen denied involvement with the alleged assault. The officers told him that he would need to come to the police station to be processed. In other words, he was under arrest.

Allen asked whether he could retrieve his shoes and inform his daughter, who was upstairs in the apartment, that he would be leaving with the officers. The officers replied that he could not return upstairs unless they accompanied him, which they did. Upstairs, Allen emptied his pockets, revealing several bags of marijuana. The officers later obtained a warrant to search the apartment and found a gun and drug paraphernalia. Allen was indicted on a federal gun charge.

Though the officers were standing outside the threshold, Allen asserted that he was arrested inside his home without a warrant. The question before the court was whether the location of the arrestee or the location of the officers is the critical issue in determining where the arrest occurs. If the arrest is not supported by a warrant or exigent circumstances, it potentially violates the Fourth Amendment and may result in suppression of evidence stemming from the arrest.

In Payton v. New York (445 U.S. 573 (U.S. 1980)), the Supreme Court held that arrests inside a home normally require a warrant. The prosecution claimed that even though Allen’s arrest happened inside the threshold of his home, the officers did not violate the Fourth Amendment because they made the arrest without actually crossing the threshold themselves. Courts have taken different positions on what determines the legality of the arrest: the arrestee’s location at the time of arrest or whether the police cross the threshold. In assessing the validity of the arrest, some courts have asked whether police entered “constructively” or by coercion.

In this case, the court held that Allen’s arrest was unlawful and ordered suppression of the evidence: “Where law enforcement officers have summoned a suspect to the door of his home, and he remains inside the home’s confines, they may not effect a warrantless ‘across the threshold’ arrest in the absence of exigent circumstances.” In response to an argument that Allen was still free to close the door on the officers and walk away, the court noted, “it is inconceivable that the officers would at that point have shrugged their shoulders and turned away.”

This decision is yet another reminder of the high level of Fourth Amendment protection for a home and the general necessity of securing an arrest warrant to enter and arrest a resident. And this is hardly the first time the courts have moved to extend Fourth Amendment protection to personal residences. Consider Florida v. Jardines (133 S.Ct. 1409 (2013)), in which the court stated, “When it comes to the Fourth Amendment, the home is first among equals.” And in Silverman v. United States (365 U.S. 505 (1961)), the court noted that at the Fourth Amendment’s “very core stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion.” United States v. Allen, 2016 WL 362570 (2nd Cir. 2016)

Long-term pole camera surveillance revealed no more than live surveillance

Houston and his brother live on a family farm, which comprises three adjacent properties. Houston resides in a red brick building, his brother in a trailer, and Houston’s adult daughter in a farmhouse. The farm is decorated with anti-government billboards and hand-painted signs, some of which depict the dead bodies of a murdered law enforcement officer and his companion. Houston and his brother were tried, but acquitted, for their murders. While the farm is not enclosed by fencing, blue tarps block views of the trailer doors and vegetation blocks street views of Houston’s house.

Agents tried drive-by surveillance of the farm, but their vehicles “stuck out like a sore thumb.” The agents asked a utility company to install a surveillance camera on a public utility pole located roughly 200 yards from the trailer. The agents monitored the pole camera—without a warrant—for approximately 10 weeks. When the agents learned of a new court decision expressing “some misgivings” over long-term video surveillance, they obtained a warrant for continued use of the pole camera.

Houston was arrested and charged as felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), based primarily on pole camera surveillance video of Houston carrying and shooting guns on the farm. A search of the farm yielded 25 guns attributable to Houston and his brother. Houston asked the court to suppress evidence obtained through video surveillance.

The court denied Houston’s request for suppression: “There is no Fourth Amendment violation, because Houston had no reasonable expectation of privacy in video footage recorded by a camera that was located on top of a public utility pole and that captured the same views enjoyed by passersby on public roads.” Though it might have been impractical for an agent to sit atop the pole for 10 weeks, pretending to be a construction worker, the camera saw nothing that was not open to public view of nosy neighbors passing by. “It is only the possibility that a member of the public may observe activity from a public vantage point—not the actual practicability of law enforcement’s doing so without technology—that is relevant for Fourth Amendment purposes,” the court noted.

One judge concurred in a separate opinion, expressing reservations that 24/7 video surveillance raises privacy concerns because it has the potential to reveal detailed information about the target’s familial, political, professional, religious and sexual associations. The concurring opinion relies on the Supreme Court’s GPS tracking device decision in United States v. Jones (132 S.Ct. 945 (2012)). In that ruling, the judges wrote that long-term non-human surreptitious surveillance “is worrisome because it evades the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility.” United States v. Houston, 2016 WL 482210 (6th Cir. 2016)

Blood spatter, bloody victim justify community caretaking search

Officers were sent on a medical call and found blood “all over the door” of the home. Officers knocked and entered and met Antony Matalonis, who appeared to have been beaten. Antony was “covered in blood” on his right side and was highly intoxicated. He told officers that he had been beaten by four people outside of a bar.

Officers saw a blood trail in the snow and followed it to a home. The officers saw blood on the screen door and the entry door of that home. They heard two bangs inside the house and the sound of items being moved around. The officers knocked and Charles Matalonis, Antony’s brother, answered the door. He was shirtless and out of breath, but did not have any blood on him. Charles admitted that he and his brother had fought.

The officers told Charles that they wanted to come inside and check for any other injured persons. Charles allowed them to enter. One officer conducted a security sweep while another spoke with Charles. After a few minutes, the officer told his colleague that there was marijuana and paraphernalia in the home and a locked door with blood spatter. The officer said there was a strong odor of marijuana coming through the door and that he heard a fan blowing inside the room.

When the officers asked about the room, Charles’ “breathing started becoming faster” and he “looked nervous.” Charles told the officers that no one was in the room. He refused to open the door, stating that it was his security room and contained cameras. When the officers told him that they would kick in the door, Charles told them where to find the key. The officers found a large marijuana plant and complex growing system in the room.

Charles asserted that the warrantless search of the room was unlawful. The prosecution countered that the search was justified under the community caretaking exception because police had an objectively reasonable public safety reason to search.

A split court held that the officers were engaged in a “bona fide community caretaker function” when they searched the house and the locked room, even though the officers may have subjectively intended to find drug evidence: “The potential for the presence of marijuana in the locked room did not render it impossible that there were also injured parties in that room.”

The majority view states that an objectively valid community caretaking purpose will justify a Fourth Amendment intrusion even if there are strong reasons to search for evidence of a crime. The dissent asserted that the court was embracing an “ever-expanding version of the exception” that moves the community caretaking doctrine toward becoming an “investigatory sword.”

Though the community caretaking doctrine is interpreted somewhat distinctively in each state, officers should always carefully document their public safety and community caretaking concerns during an investigation. State v. Matalonis, 2016 WL 514150 (Wis. 2016)

Mentally ill man dies after TASER® deployment

Ronald Armstrong had been diagnosed with paranoid schizophrenia and bipolar mental illness. After he stopped taking his medication, his sister persuaded him to self-admit to a hospital; however, Armstrong left the emergency department prior to completing the admission process.

Armstrong’s sister described his behavior and diagnosis to an emergency department doctor. The doctor began the process for an emergency mental health commitment order, and hospital security called local police. Responding police officers found Armstrong wandering in traffic at an intersection near the hospital. An officer persuaded Armstrong to move out of the road. Armstrong then started eating grass and dandelions, chewing on a “gauze-like substance” and extinguishing cigarettes on his tongue.

The officers learned that the commitment order had been completed and they immediately tried to take Armstrong into custody. His sister stood nearby, asking Armstrong to go with the officers. Armstrong, a large man (5’11”, 262 lbs.), wrapped himself around a sign post and held fast. The police officers could not pry him from the post.

Only 30 seconds after telling Armstrong that they had a commitment order, an officer warned Armstrong that he would use a TASER if Armstrong did not submit. Armstrong did not heed the warning. The officer deployed his TASER in touch mode (often known as “drive stun”) five times in approximately two minutes. Armstrong still held fast.

Two hospital security guards joined the three police officers in prying Armstrong from the post and placing him in handcuffs and leg shackles. They placed him face down on the ground. A few moments later, Armstrong’s sister noticed that Armstrong seemed unresponsive and she asked the officers to check him. Armstrong had turned blue and he did not seem to be breathing. He received immediate medical attention, but was pronounced dead a short time later at the hospital.

Armstrong’s family sued alleging excessive force under federal civil rights statutes (42 U.S.C. § 1983).  The district court granted qualified immunity to the officers. Qualified immunity protects officers who reasonably believe that their actions were lawful under clearly established law. The court of appeals upheld the grant of qualified immunity, but opined in lengthy dicta about the proper use of a conducted energy device on what it deemed “an out-numbered mentally ill individual who is a danger only to himself.” The court further stated, “We intend this opinion to clarify when taser use amounts to excessive force in, at least, some circumstances.”

The court of appeals opinion created no small stir regarding the use of conducted energy devices, such as the TASER®.  Unfortunately the appellate court did not seem to heed the Supreme Court admonition to avoid “20/20 hindsight,” and did not appreciate the risks of controlling a profoundly mentally ill person. The court made little note that Armstrong was just feet from an intersection and passing cars.   

The court expressed concern that the officers applied the conducted energy device after only 30 seconds of efforts to get Armstrong to submit. Slowing a crisis situation down whenever possible almost always produces a safer, less injurious and more effective result. The court stated that physical resistance does not necessarily equate to a “risk of immediate danger.” 

The court also emphasized that Armstrong was “stationary” and offered only “non-violent resistance” when the officer applied the conducted energy device as a pain compliance measure. Many law enforcement trainers and experienced officers recognize the limits of pain compliance techniques on a determined, mentally ill and/or chemically impaired subject. 

The court noted that although he was not complying with officers’ demands, the “factual circumstances demonstrate little risk—Armstrong was stationary, non-violent, and surrounded by people willing to help return him to the Hospital.” The court relied on these facts to conclude that the use of the conducted energy device was not reasonably necessary under the circumstances to control Armstrong. The court also stressed that Armstrong had not committed any crime. The severity of the offense is the initial factor for consideration of the reasonableness of force under the Graham v. Connor analysis. 

Agencies using the Lexipol Use of Force Policy already have policy guidance that complies with the reasonableness assessment factors focused on by the Armstrong court, including guidance to consider:

·         Immediacy and severity of the threat to officers or others.

·         The conduct of the individual being confronted, as reasonably perceived by the officer at the time.

·         Officer/subject factors (e.g., age, size, relative strength, skill level, injuries sustained, level of exhaustion or fatigue, the number of officers available vs. subjects).

·         Individual’s mental state or capacity.

·         The availability of other options and their possible effectiveness.

·         Seriousness of the suspected offense or reason for contact with the individual.

·         Potential for injury to officers, suspects and others.

·         Whether the individual appears to be resisting, attempting to evade arrest by flight or is attacking the officer.

·         The risk and reasonably foreseeable consequences of escape.

·         The apparent need for immediate control of the individual or a prompt resolution of the situation.

·         Whether the conduct of the individual being confronted no longer reasonably appears to pose an imminent threat to the officer or others.

The Armstrong opinion highlights the critical need for training officers to address officer interaction with mentally ill and emotionally disturbed persons. Agencies should refresh their officers’ training on using force to overcome non-violent resistance and assessing the threat posed by such subjects. Training should also include discussion of monitoring subjects after arrests involving force and exertion.

Plaintiffs’ attorneys are advocating—and some courts accepting—application of special scrutiny of force to control mentally ill and emotionally disturbed persons. At least one court has gone so far as to apply the Americans with Disabilities Act, requiring that officers make special accommodation when arresting mentally ill persons (San Francisco v. Sheehan, 743 F.3d 1211 (9th Cir. 2014), reversed, ––– U.S. ––––, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015)). We expect that mental health advocates will continue to press for more restrictive force standards for mentally ill subjects.

The concurring judge agreed with the grant of qualified immunity, but separated himself from his colleagues’ assessment of the situation. He stressed, “This was a close case, the very kind of dispute in which judicial hindsight should not displace the officers’ judgmental calls.” Ironically, the concurring opinion highlighted the legally safe option of doing nothing to help Armstrong in his moment of acute mental crisis: “Law enforcement will learn soon enough that sins of omission are generally not actionable.”

Law enforcement use-of-force trainers, particularly those in the 4th Circuit, should carefully consider the Armstrong opinion in preparing officers to deal with mentally ill and emotionally disturbed subjects who are “stationary and not violently resisting.” Particular importance must be placed on the officer’s need to articulate the risk of immediate danger that warranted application of force.  Armstrong v. Village of Pinehurst, ––– F.3d –––, 2016 WL 105386 (4th Cir. 2016)

No qualified immunity for TASER use on man interfering with paramedics

Rick Kent was a house guest in his son’s (Michael Kent) home.  Michael Kent is a physician.  Rick Kent suffered from many illnesses and spent most of his time in bed in great pain.  He had executed a living will stating that he wanted no resuscitation efforts at the time of death, and he had clearly expressed his wishes to his wife and to his son.  Michael Kent found his father “unresponsive to any stimulus” but still with a pulse.  Sometime later, Michael Kent determined that his father had died.

Kent’s wife called the emergency dispatcher and paramedics arrived about a 45 minutes after Kent determined that his father was dead.  The paramedics insisted on attaching an Automated External Defibrillator to attempt to resuscitate Rick Kent, as required by their agency policy when a death was not witnessed by a hospice nurse.  Kent protested, becoming increasingly agitated at the paramedics’ insistence on trying to resurrect his father. 

The paramedics called sheriff’s deputies.  Kent argued with the deputies when they arrived and waived his hands in the air.  Kent was unarmed and had not made any moves to assault anyone.  One deputy put her hand on her gun and told Kent to calm down.  The other deputy warned Kent to stop interfering or he would be struck with a TASER®.  Kent told the deputy to “go ahead.”

The deputy fired two probes into Kent and he fell.  Kent complied with orders to place his hands for handcuffing.  He continued to ask whether he was under arrest.  After some time, the deputies told him that he was not under arrest.

The paramedics proceeded with the Automated External Defibrillator.  They determined that Rick Kent, dead nearly one hour by now, was without a pulse.  They had, however, complied with their policy.

Kent sued, alleging excessive force.  The trial court denied qualified immunity for the deputies, ruling that use of the TASER was objectively unreasonable and that case law clearly established that the use of a TASER on a person who was “not under arrest, posed no safety threat to officers or others, made no such verbal threats, was not physically resistant, and may have actually shown physical compliance, constituted excessive force.”

The court of appeals agreed that the deputies were not entitled to qualified immunity.  The court held the TASER use was “objectively unreasonable” and violated law that was clearly established three years before this incident.  The first Graham v. Connor factor, the severity of the crime, clearly weighed in Kent’s favor.  He had committed no crime and was not under arrest.

The court held that the second factor, the threat posed to officers or others, also tilted in favor of Kent.  “While Kent may have prevented EMTs from fulfilling their perceived duties,” he did not present a physical and immediate safety threat.  The court noted that Kent had his hands up and his back against the wall when the deputy fired the TASER.  Perhaps this factor might have favored the deputies if there had been some conceivable chance of bringing his dead father back to life with prompt medical attention.

Noting that the reasonableness of an officer’s use of a TASER often turns on active resistance, the court also held in favor of Kent on the final Graham v. Connor factor, whether a subject is actively resisting arrest.  The deputies characterized Kent as “actively resisting arrest” because he didn’t obey commands to calm down and he demonstrated “verbal hostility.”  Kent admitted that he yelled at the paramedics and deputies.  The court stated that “Kent never attempted to flee officers, and he never attempted to prevent officers from handcuffing him.”  All agreed that he was verbally—though not physically—hostile.

Finally, the court reminded that the event happened within Kent’s home, “one of the most sacred of spaces under the Fourth Amendment’s protections.”  The dissenting judge, who would have granted qualified immunity to the deputies, observed that this was a “close call,” and qualified immunity is intended “to give credit to officers’ judgment in ambiguous situations.”  This opinion reminds trainers and officers to carefully consider the Graham v. Connor force assessment factors, being particularly cautious about using force when there is no active resistance.  Kent v. Oakland County, 2016 WL 66566 (6th Cir. 2016)

Using false confession may lead to malicious prosecution liability for investigators

Tyler Sanchez was arrested for burglary and sexual assault after an 8 year-old girl reported that she had been assaulted by a man approximately 40 years-old, 190 pounds, with no tattoos, and with brown hair parted down the middle.  Sanchez didn’t even come close to matching the description (other than being the same gender and race).  He was 18 years-old, 130 pounds, had prominently displayed tattoos on both arms, and had buzz-cut red hair.  Sanchez is developmentally disabled, with IQ scores in the 60s and 70s.  Sanchez displays “noticeably unusual behavior.”

Detectives interrogating Sanchez were concerned about his possible intoxication because he was “behaving unusually and experiencing difficulty answering questions.”  Sanchez confessed to the burglary, but not the sexual assault.  He could not offer any details about the burglary.  Two detectives asked Sanchez whether he was just saying what they wanted to hear.  One detective gave Sanchez a patently false suggestion about how the crime was committed and Sanchez readily agreed with the suggestion.

Sanchez told the court that his confession was false, explaining that he confessed only because his disabilities prevented him from understanding the interrogation.  Medical testimony supported the claim that he was unable to comprehend what was happening and the court dismissed the charges.  Sanchez was released after 125 days in pretrial custody.

Sanchez sued under 42 U.S.C. §1983, alleging that the detectives “used a confession that they knew was untrue” in violation of the Fourth Amendment.  The detectives asked the court to grant qualified immunity, arguing that malicious prosecution claim may only be brought against a prosecutor, not investigating officers, and noting that multiple judges had found probable cause to hold Sanchez.

The court of appeals made quick work of the detectives’ theories.  The court plainly stated that officers—not just prosecutors—may be held liable for malicious prosecution (and the ensuing wrongful detention that constitutes a Fourth Amendment seizure).  The court stated “that the prohibition on falsification or omission of evidence, knowingly or with reckless disregard for the truth” was clearly established at the time of Sanchez’s false confession.  Sanchez v. Hartley, 2016 WL 106168 (10th Cir. 2016)

Murder confession prompted by promises held inadmissible

Fingerprints on a newspaper found in the taxi van of a murdered cab driver lead police to Jasso.  Investigation of Jasso and his associates prompted officers to interview Perez some months after the murder.  During the interview, Perez repeatedly denied any knowledge of, or involvement in, the crimes. 

About 25 minutes into the interview, an investigator told Perez, if he would “tell the truth and be honest,” then “we are not gonna charge you with anything.”  The investigator also told Perez that he was either “a suspect that we are gonna prosecute” or merely a witness. 

The investigators falsely told Perez that they had fingerprint and security camera video showing Perez’s involvement at the murder scene.  They told Perez that he would “go home at the end of the day” and would eventually “chalk this up to a very scary time in [his] life.”

The investigators did not detain Perez after the interview.  However, five months later, Perez was charged with murder.  Perez asked the trial court to suppress his statements as involuntarily given.  He claimed that he spoke only because of an express or clearly implied promise of leniency or advantage to him.  The prosecution claimed that Perez was treated well by investigators and he was intelligent, rested and fed at the time of his statements.

The trial court denied his motion to suppress his statements.  The court of appeals reversed.  Citing state and federal court precedent, the court observed that a confession is invalid if it is prompted by an officer’s express or clearly implied promise of leniency and the promise motivated the suspect to make a statement.  It did not matter that Perez was smart or that he was rested and fed at the time of questioning. 

The court’s focus was on the nature of promises made by the investigators.  Prosecutors argued that Perez should have recognized that the promises meant that he would not be charged “at that time” and that the final charging determination is always up to a prosecutor.  Nonetheless, the court held, the investigators’ promises were “unqualified.”  The court held that “no reasonable person would understand [the] unqualified promise not to charge Perez as meaning” that he would not be charged “on the day of the interview.” 

The court reversed Perez’s conviction and vacated his sentence.  If he is retried, the prosecution will be barred from using any of his statements given during the interview.  People v. Perez, 2016 WL 104712 (Cal. Ct. App. 2016)

Lost cell phone leads to 50 years in prison

As the 11th Circuit Court noted, Johnson and Sparks’ day did not start well for them. During a shopping trip to Walmart, they accidentally left their cell phone behind. To make matters worse, the phone stored hundreds of images and videos of pornography made using a four-year-old child. Johnson was already a registered sex offender.

A Walmart employee found the phone and spoke with Sparks about returning it. After that conversation, the employee looked at pictures on the phone in an effort to identify Sparks. When she saw “questionable” images, she showed them to her fiancé. He took the phone to the police. Although the Walmart employee had agreed to meet Sparks to return the phone, she did not go to the meeting. Though Sparks continued to send text messages asking for the phone to be returned, neither Johnson nor Sparks complained to Walmart about the unreturned phone, nor did they report the loss to the police. Instead, Johnson filed an insurance claim and bought a new phone.

Desk officers viewed the images and a video and booked the phone into evidence for follow-up by a detective. Due to travel and training absences of the agency’s sole child pornography investigator, 23 days passed between when the phone was turned in and when a search warrant was obtained for the phone. The search of the phone led to a search warrant for the Johnson and Sparks residence. Nearly 2,000 images and more than 100 videos containing child pornography were seized. Johnson was sentenced to 50 years and Sparks to 30 years.

Johnson and Sparks appealed, claiming that the 23-day delay in obtaining the warrant was unreasonable and violated the Fourth Amendment. The reasonableness requirement of the Fourth Amendment includes a “diligence requirement” that officers act quickly to secure a warrant in cases like these. Johnson and Sparks cited a case in which the court granted a suppression motion when a federal agent waited three weeks to obtain a warrant to search a laptop he had seized from a suspect (United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009)). The Court sidestepped the claim of unreasonable delay, holding that “Johnson and Sparks made a voluntary and calculated decision over a period of three days to cease all efforts to reclaim their phone.”

Johnson and Sparks also argued that the investigator exceeded the scope of the private party search conducted by the Walmart employee and her fiancé. Police may—without a warrant—search property already searched by a private party as long the police do not exceed the scope of the private search. The police viewed a video on the phone that the finders had not watched.  

The Court agreed with Johnson and Sparks that the police exceeded the scope of the private search. Notwithstanding, the Court did not find suppression to be appropriate because the affidavit for the search warrants for the phone and the home made no reference to the private search. United States v. Johnson, 2015 WL 7730996 (11th Cir. 2015)

Unlawful seizure of serial killer’s trash does not require suppression

John E. Robinson, Sr., was one of the most prolific serial killers in Kansas and Missouri, with eight known victims. His trial in Kansas was the longest in the state’s history. The Kansas Supreme Court recently upheld his death sentence (the first death sentence sustained by the court in over 20 years) in one of the longest judicial opinions of the year, at 419 pages. Robinson fought his conviction on every conceivable issue, including one that is often overlooked by officers helping outside of their jurisdiction.

Shortly after beginning a missing person investigation, police focused on Robinson. The investigators enlisted the assistance of a garbage hauler in a neighboring city to help them collect and search Robinson’s curbside trash cans. Robinson argued that the officers’ warrantless search beyond their territorial jurisdiction should result in suppression of evidence seized from the trash.

Officers may misinterpret statutes granting statewide police certification or even limited statewide police authority. In many states, police authority is limited to the employing entity’s territorial jurisdiction, with certain exceptions. The trial court found that the officers were not acting “under the color of office” and therefore the trash searches “fell beyond the scope” of the statute limiting their authority.

The Kansas Supreme Court disagreed, holding that the officers’ “planning and coordination with the private trash contractor,” for trash pulls spanning several weeks, led to the conclusion that the officers were not acting as private citizens. Instead, they exercised “powers as law enforcement officers.”

Having found a clear violation of the statute limiting police authority, the Court considered the proper remedy. The Court noted that the legislative intent behind the limits on police officers’ authority is to promote the autonomy of neighboring cities and counties. Such limits are not intended to give a defendant a substantive right that officers will exercise authority only in their employing jurisdiction. The Court held that a statutory violation—as contrasted with a violation of state or federal constitutions—does not necessarily lead to application of the exclusionary rule unless the legislature has enacted such a compulsory remedy.  

Other courts have affirmed the suppression of evidence where officers exceeded their territorial jurisdiction in the course of an arrest, a controlled drug buy or execution of a search warrant. Even so, virtually all states provide some exceptions to limitations on authority for serious crimes committed in the officer’s presence and for emergencies. Though each case turns on its peculiar facts, in many cases officers can easily forestall the argument that they exceeded their jurisdiction by invoking the assistance of local officers. State v. Robinson, 2015 WL 6829686 (Kan. 2015)

No seizure of suspect holding a gun and walking away from officer

An officer saw Stover and his companion parked in an apartment parking lot in the early morning hours. When he drove by an hour later, the officer saw they were still there. The late hour and high crime rate in the area prompted the officer to investigate. He pulled behind Stover, effectively blocking him, and turned on his overhead lights. He also shone a spotlight on the driver side.

Stover got out and started to walk toward the front of his car. The officer commanded him to get back in the car. Stover continued to walk quickly. The officer ran up to the car in time to see Stover toss a gun away. The officer pointed his gun at Stover and again commanded him to get back into the car. Stover was arrested and convicted for being a felon in possession of a firearm.  

Stover claimed that he was seized without reasonable suspicion at the moment that the officer blocked his car and turned on his lights. Therefore, he asserted, the gun should have not been admitted into evidence. The court disagreed that he was seized at that moment and held that the gun was properly admitted because Stover abandoned the gun by tossing it away before he was seized.

The court held that Stover did not submit to the “show of authority that had attempted to put him in a seizure” until the officer ran up to him—gun drawn—and “actually exercised control over” Stover. In United States v. Mendenhall (446 U.S. 544 (1980)), the Supreme Court laid out a test to determine whether a person is “seized” for purposes of the Fourth Amendment. The Court stated that a seizure occurs “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” In California v. Hodari D. (499 U.S. 621 (1991)), the Court explained an officer’s command stop or to get back into a car or some similar “show of authority” does not, alone, create a seizure unless and until the suspect submits to the officer.

Courts have discussed various factors that would communicate to a reasonable person that he is not free to leave. Actions such as “activating a siren or flashers,” “commanding a person to halt” or “operating the police car in an aggressive manner to block a person,” may lead a court to determine that a person was actually seized. Stover claimed that he signaled to police that he was acquiescing. The court countered that Stover “left the car, disobeyed a police order to return to the car, and instead walked away from the police with a loaded gun in his hand.” That showed the officer that Stover was not submitting to authority. United States v. Stover, 2015 WL 9259062 (4th Cir. 2015)

Dog’s intrusion into curtilage results in unlawful search

Acting on a tip that Burston had drugs in his apartment, an officer and his detector dog went to the eight-unit apartment building. The handler allowed the dog off-leash to sniff alongside an exterior wall of four apartments, including Burston’s. The handler stayed on the sidewalk. Each apartment had a private entrance and window. The window was approximately six feet from the walkway leading from the public sidewalk to Burston’s front door. The dog gave a positive final response to the odor of drugs 6 to 10 inches from Burston's apartment window.

Officers obtained a search warrant based on the sniff and Burston’s criminal history. When the officers searched Burston’s apartment, they found four rifles, ammunition and marijuana residue. Burston was convicted of being a felon in possession of a firearm.  Burston appealed, claiming that the evidence from the search should have been excluded because the dog sniff was an illegal warrantless search on the curtilage of his apartment. The appellate court held that the search was unlawful. The court cited the Supreme Court decision in Florida v. Jardines (133 S.Ct. 1409 (2013)), in which the Court explained, “We therefore regard the area ‘immediately surrounding and associated with the home’—what our cases call the curtilage—as ‘part of the home itself for Fourth Amendment purposes.’”

Several factors led the court to find that the sniff occurred within the Fourth Amendment-protected curtilage zone. First, the area sniffed was only 6 to 10 inches from Burston’s apartment. The court stated that the lawn in front of the apartment window is normally considered as curtilage. Second, Burston used the area between the front door and window as outdoor living space; he had a barbeque grill set up there. As such, it couldn’t be considered part of the apartment building common area. Third, there was a bush in front of the window, which partially covered the window. The court speculated that the bush was likely there to block viewing into the window by passersby. Burston argued that determining whether the curtilage was improperly breached should focus on the location of the dog, not the handler, during the dog sniff. Detector dog handlers often quip, “My dog has a right to be anywhere I can be.” Whether or not that is true in all circumstances, the court observed that the invasion of the curtilage is assessed by where the dog went and not where the handler stood. The handler must only allow the dog to travel where the handler has a right to be. United States v. Burston, 806 F.3d 1123 (8th Cir. 2015)

No qualified immunity for knock-and-announce violation after pursuit

An officer saw two riders on ATVs traveling the wrong way on a closed area of a highway. When the officer signaled to the riders to stop, they fled through a field. One rider, Richard Trent, went inside a home known to the officer to be owned by a family hostile to the police. The officer followed Trent into the home without knocking or announcing his presence.

When backup officers arrived, the officer met them outside and he and two other officers again entered the home without knocking or announcing their presence. They searched the home and found Trent. The homeowner and his wife, Trent’s parents, were allegedly sleeping before the officers entered. Trent’s parents claimed that Trent was a “special child” and that he could not recognize the wrongfulness of fleeing from the police.

The homeowner sued, alleging unlawful entry by the officers. The trial court refused to extend qualified immunity to the defendant officers. The court of appeals upheld the lower court, holding that the officers did not make a case for a reasonable belief that knocking and announcing would have been “dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” The knock-and-announce rule protects all of the home’s residents, not just the rider who fled from the officer.

The court of appeals went on: “Hot pursuit itself may give the officer the authority to be inside a home without a warrant, but it does not have any bearing on the constitutionality of the manner in which he enters the home.” The court held that any reasonable officer would know this and thus the officers were not entitled to qualified immunity.

The entire court declined to review the matter en banc. Several judges dissented. The dissent noted that “the public safety consequences of this holding for the hapless officer and the residential occupants seem obviously adverse.” However, the author of the underlying decision countered: “Simply put, neither the Supreme Court nor this court has recognized a per se ‘hot pursuit' exception to the knock-and-announce rule.” The majority opined that the existing rule adequately protects officers. Had the first officer knocked, demanded entry and announced that he was in hot pursuit of a fleeing suspect, the lower court likely would have extended qualified immunity and dismissed the lawsuit against the officers. Trent v. Wade, 2015 WL 5432089 (5th Cir. 2015) 

DNA tests of officers with no reasonable suspicion allowed for exclusion purposes

A police officer was found dead from a gunshot to the head. A shotgun lay across his chest and another gun was at his feet. Over 100 officers and others entered the scene shortly after discovery of the body. The investigators requested DNA samples for purposes of suspect exclusion. A handful of officers refused.

Investigators confirmed that the refusing officers were present on the scene. The investigators tried to persuade the officers to cooperate with the investigation into the officer’s death, promising that the DNA profile would not be entered into the Combined DNA Index System (CODIS) database or used for any purpose other than exclusion. The officers were not considered suspects. When the officers still refused to cooperate with the homicide investigators, the investigators obtained court orders for the officers to submit to DNA testing.

The refusing officers then sued, alleging that the homicide investigators violated their Fourth Amendment rights because there was no individualized suspicion that any of them had committed a crime. The court of appeals held that the Fourth Amendment was satisfied by the objective of excluding the officers as suspects: “Excluding public safety personnel as the source of DNA would plainly ‘aid in' the conviction of an eventual criminal defendant, by negating any contention at trial that police had contaminated the relevant evidence.” The court based this holding, in part, on the very limited intrusion presented by a buccal swab and DNA test that would not be used for other purposes. This limited intrusion stood in sharp contrast to the critical investigative need of eliminating the officers and resolving issues of DNA contamination at the scene. Bill v. Brewer, 2015 WL 5090744 (9th Cir. 2015)

Blanket shackling of prisoners in court not allowed

The chief judge of the Southern District of California authorized a policy of restraining defendants in leg shackles and handcuffs connected to a belly band for most non-jury hearings. The Marshal requested the restraint authority based on understaffing and incidents of prisoners attacking each other.  In United States v. Howard (480 F.3d 1005 (9th Cir. 2007)), the court upheld a general leg shackling policy at the Los Angeles federal courthouse, holding that the policy was reasonably related to the goal of providing security during court appearances.

The court of appeals invalidated the shackling policy. The court distinguished its prior holding in Howard because that order did not involve cuffing to a belly band. Moreover, the courthouse involved in Howard was an older facility “ill-suited to accommodate modern security concerns.” Use of belly bands and handcuffs, coupled with leg shackles, presented a “greater risk of impeding the ability of defendants to participate in their defense and communicate with their counsel.”

Though the belly chains and handcuffs offer greater protection for judges and court staff, the court noted that they may be “a greater affront to the dignity and decorum of the proceedings.” Consistent with long-standing Lexipol policy, custody staff may still request authority for shackling of prisoners when individual security risks are present or there is some demonstrated institutional need. United States v. Sanchez-Gomez, 2015 WL 5010701 (9th Cir. 2015)

Warrant required for cell site location information?

Graham and Jordan were convicted of a string of armed robberies. They challenged the prosecution’s use of historical cell site location information (CSLI) to show that the suspects were in the vicinity of the stores at the times of the robberies. The prosecution obtained the CSLI through court orders issued under authority of the Electronic Communications Privacy Act or the Stored Communications Act. (For an overview of CSLI and the applicable statutes, see: http://www.aele.org/law/2011all02/2011-02MLJ401.pdf.)

The first order sought 14 days of records and the second sought data collected over 221 days. The mobile phone companies turned over “an impressive 29,659 location data points for Graham and 28,410 for Jordan, amounting to well over 100 data points for each Appellant per day on average.” Graham and Jordan asked the trial court to suppress the CSLI evidence, but the court refused.

The appellate court reversed, holding that Graham and Jordan have an objectively reasonable expectation of privacy in the CSLI captured and held by their mobile phone service providers. The court also rejected the government’s argument that the CSLI was voluntarily provided to the mobile phone service providers and therefore lost its privacy protection under the third-party doctrine: “We cannot accept the proposition that cell phone users volunteer to convey their location information simply by choosing to activate and use their cell phones and to carry the devices on their person.” Thus, the act of ordering a provider to hand over these types of detailed records is a search under the Fourth Amendment. Therefore, a search warrant was necessary and an order under either the Electronic Communications Privacy Act or the Stored Communications Act could not suffice (United States v. Graham, 2015 WL 4637931 (4th Cir. 2015)).

Just a few days prior to the 4th Circuit decision, a federal district judge in California ruled that cellular phone customers have a reasonable expectation of privacy in CSLI. The judge found “that cell phone users have an expectation of privacy in the historical CSLI associated with their cell phones, and that society is prepared to recognize that expectation as objectively reasonable. Cell phone users do not expect that law enforcement will be able to track their movements 24/7 for a sixty-day period simply because the users keep their cell phones turned on.”

Both the 4th Circuit and the California district court referred to United States v. Jones (132 S.Ct. 945 (2012)). In Jones, agents placed a GPS tracker on a suspect’s car and watched the car’s movements for nearly a full month. The Supreme Court held that this was a search, requiring a warrant. The California district court judge noted similar circumstances between the GPS tracker in Jones and CSLI. The government was asking to track the movements of individuals through electronic means, by court order and not by search warrant, and for an extended period of time. The court also observed that providing the CSLI was more intrusive than GPS tracking because it involves the reporting of precise movements and tracking in areas outside of a vehicle and off a roadway (In re: Application for Telephone Information Needed for a Criminal Investigation, 2015 WL 4594558 (N.D. Cal. 2015)).

Whether a warrant is required to obtain CSLI or whether an order under the Electronic Communications Privacy Act or the Stored Communications Act is sufficient is a question ripe for consideration by the Supreme Court. State courts in Massachusetts, New Jersey and Florida, as well as federal district courts in California, Maryland and New York, have reached similar conclusions. On the other hand, the 3rd, 5th and 11th Circuit Courts of Appeals have reached conflicting decisions. Several states, including Utah, Colorado, Maine, Minnesota, Montana and Tennessee, have moved forward with legislative measures protecting CSLI.

The dissent in Graham wrote: “Time may show that my colleagues have struck the proper balance between technology and privacy. Today the majority endeavors to beat the Supreme Court to the punch.” In United States v. Jones, the Supreme Court did not specifically address privacy rights in an individual’s CSLI or geolocation. Those issues were left for another day—which may arrive soon if the Supreme Court grants the petition for certiorari in United States v. Davis (2015 WL 2058977 (11th Cir. en banc 2015); see Xiphos May 2015). The petition was filed on July 29. Stay tuned.

Community-caretaking impound must be based on policy and limited discretion

Officers were looking for Sanders, intending to arrest her on a warrant. The officers saw Sanders’ car in a private parking lot and then saw Sanders and a friend, Hussey, walk out of a store toward the car. The officers ordered Sanders and Hussey to the ground. They arrested Sanders. After checking Hussey for warrants, the officers released him.

Sanders offered her permission for a third party to take her car. Hussey could not take the car; he lacked a valid license. Hussey offered to find someone to come to the scene and take the car from the parking lot.

The officers decided to impound the car. They noted that the parking lot was in a high-crime area and the car was particularly attractive to thieves because of its condition and after-market accessories. During an inventory search, officers discovered Ecstasy and methamphetamine. Sanders asked the court to suppress the evidence found in her car.

The court’s opinion highlights a split in federal appellate courts regarding impounds when there is no immediate public safety concern. In Colorado v. Bertine (479 U.S. 367 (1987)), the Supreme Court held that officers may exercise discretion to impound a vehicle as long as the “discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.”

Some federal appellate courts have opined that impoundments based on community-caretaking (rather than public safety) concerns must follow “some degree of standardized criteria or established routine” (United States v. Petty, 367 F.3d 1009 (8th Cir. 2004)). The District of Columbia, 9th and 7th Circuits have followed similar reasoning (United States v. Proctor, 489 F.3d 1348 (D.C. Cir. 2007); Miranda v. City of Cornelius, 429 F.3d 858 (9th Cir. 2005); United States v. Duguay, 93 F.3d 346 (7th Cir. 1996)). The 1st, 3rd, and 5th Circuits, however, do not consider standardized impound policies and procedures, looking only to the reasonableness of a particular decision to impound a vehicle (United States v. McKinnon, 681 F.3d 203 (5th Cir. 2012); United States v. Smith, 522 F.3d 305 (3rd Cir. 2008); United States v. Coccia, 446 F.3d 233 (1st Cir. 2006)).

In the Sanders case, the police department had a policy that allowed an owner to turn the vehicle over to a third party, but the officers did not offer Sanders that option. The court held that the impound was unlawful: “When a vehicle is not impeding traffic or impairing public safety, impoundments are constitutional only if guided by both standardized criteria and a legitimate community-caretaking rationale. … Our requirement that standardized criteria guide impoundments on private property ensures that police discretion to impound vehicles is cabined rather than uncontrolled.”

The court discussed several non-exclusive factors that should guide an impound decision. The factors include 1) whether the vehicle is on public or private property—and if on private property, whether the property owner has been consulted about the impound; 2) whether the is some reasonable alternative to impound, such as turning the car over to a licensed driver; and 3) whether the person lawfully in possession of the vehicle consents to the impound. The court’s decision doesn’t impact decisions to impound vehicles that pose public safety risks or are actual evidence of crimes. Officers may always impound a vehicle on the basis of valid public safety considerations, according to the Supreme Court’s earlier decision in South Dakota v. Opperman (428 U.S. 364 (1976)).

Lexipol’s Vehicle Towing Policy guides officers in applying legitimate, non-pretextual community-caretaking factors and addresses state-specific statutes and court decisions. United States v. Sanders, 2015 WL 4665653 (10th Cir. 2015)

Jehovah may sue for denial of wine in prison

Gabriel pled guilty to robbery and was sentenced to prison, where he began a lengthy career as a litigant. Gabriel then became Jesus. As Jesus Emmanuel Jehovah, he wrote his own bible and attempted to follow precepts of his religion, based on his bible.

Jehovah’s precepts included drinking sacramental wine, refraining from work on both the Jewish Sabbath and the “Christic” Sabbath (a 48-hour period) and avoiding association with undesirables. It seems that there were many undesirables surrounding Jehovah in his prison community, including “an atheist, an agnostic, a worldly Muslim, a false/non-practicing insincere Christian, a racist black anti-Christian atheist, a self-proclaimed ‘Hell’s Angel’ biker, and a black anti-Christian from an anti-white gang.” This case is reminiscent of Johnny Cash and Waylon Jennings crooning that “there ain’t no good chain gang.”

After prison authorities refused to allow Jehovah to drink wine and after they failed to accommodate his work requests, he sued. The trial court dismissed his lawsuit. The court of appeals reversed and instructed the trial court to give Jehovah a chance to show that the prohibition on sacramental wine violated his rights under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA).

The decision reminds prison officials that no matter how bizarre a religious claim may seem, the courts are not in the business of weighing a prisoner’s “beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds”—a position outlined in Hernandez v. Commissioner of Internal Revenue (109 S.Ct. 2136 (1989)). Thus, the trial court must consider whether the prison regulation substantially burdens Jehovah’s practice of his religion. If so, then the prison officials must show that the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling interest.”  42 USC § 2000cc-1(a).

The court held that the record was insufficient to resolve Jehovah’s complaint over deprivation of wine, thus remanding for further trial court proceedings, but that prison officials did not violate the RLUIPA or the First Amendment by merely housing Jehovah with undesirables. On the other hand, Jehovah’s claim of religious harassment by a non-Christian cellmate could have a prohibited chilling effect on his religious practices.

The appellate court stated that the RLUIPA gives prisoners greater protection of their free exercise of religion rights than does the First Amendment. In Turner v. Safley (482 U.S. 78 (1987)), the Supreme Court held that the First Amendment does not bar a prison regulation that infringes on a prisoner’s religious rights if the regulation is “reasonably related to legitimate penological interests.” Given the litigation track record for Robert G. Love, AKA Gabriel A. Antonio AKA Jesus Emmanuel Jehovah, more is certain to come. Jehovah v. Clarke, 2015 WL 4734716 (4th Cir. 2015)

Qualified immunity can’t apply to “radically incomplete” investigation

Investigators were seeking the author of threatening Internet posts. A typical post read: “New Indiana law. You have the right to shoot cops.” The posts were traced to an Internet Protocol (IP) address at the home of 68-year-old Louise Milan and her daughters. Milan’s wireless network was unsecured, open to any neighbors and to the investigators tracing the posts. Though the network was obviously open and unsecured, investigators did not follow through to identify the network owner.

Investigators obtained a search warrant and called out a TV news crew. An officer knocked and, “without allowing a reasonable time,” a SWAT team deployed noise/flash distraction devices (called “grenades” by the court). Officers breached the door and rushed in to detain the elderly woman and handcuff her “small, frail, utterly harmless looking, and completely unresisting” daughter. Investigators soon determined that no one in the home had any connection to the threatening posts.

The court addressed two vital issues in its scathing opinion. First, the court described the investigation leading to the search warrant as “radically incomplete.” The court criticized the investigators for overlooking more likely suspects, including a neighbor seen on his porch who had previously been convicted for threatening police. At least two of the officers believed that to be the actual suspect. The investigators’ neglect to investigate the neighbor was “almost incomprehensible” to the court.

The court also took the officers to task for the warrant execution. The judges asked why a TV news crew was filming the entry if, in fact, Milan and her daughter posed such a dangerous threat that explosives and SWAT officers were required to enter the house. The court was particularly critical of the noise/flash distraction devices, eschewing that description as “an absurd euphemism; we called them ‘bombs’” in a prior opinion.

The appellate court had previously criticized “precipitate use of flash bangs to launch a search.” In Estate of Escobedo v. Bender (600 F.3d 770 (7th Cir. 2010)), the court laid out criteria for acceptable use of such devices when executing a warrant:

1.    There is a dangerous suspect.

2.    Officers must enter through a dangerous entry point.

3.    Officers must visually check whether innocent individuals are in the path of the device.

4.    Officers must visually inspect the area where the device will be used.

5.    Officers deploying such a device must carry a fire extinguisher.

Here, the court noted, the officers “brought a fire extinguisher with them—but, as if in tribute to Mack Sennett’s Keystone Kops, they left it in their armored SWAT vehicle.”

The court’s opinion provides food for thought in warrant planning and execution, particularly at a time when many agencies are trying for greater transparency and struggling to better engage the communities they serve. The warrant execution was recorded by an officer’s body-worn camera. The court observed that the video recording showed officers “impressively clad in body armor and big helmets and carrying formidable rifles … of course there was no criminal in the house and little reason to expect one to be there. … From what we can observe on the videos, all the members of the SWAT team were white, Mrs. Milan and her daughter black; the broadcasting of the videotape cannot have helped race relations.”

Though the Supreme Court has recently reinforced the relatively generous standard for qualified immunity, here the appellate court held that the officers “committed too many mistakes to pass the test of reasonableness.” Milan v. Bolin, 2015 WL 4597953 (7th Cir. 2015)

Rare habeas corpus victory when court finds coercive interrogation

David Owen worked to end homelessness by confronting homeless persons and by destroying their camps and shelters in a belief that his actions would force the homeless to return to their families.  Owen went missing and his dead body was located after several weeks.  Not long after, Sharp and three others were arrested for murdering Owen.

Sharp was initially arrested on an unrelated warrant.  She was given a Miranda warning in an interrogation room and she agreed to talk to a detective.  Sharp related that Owen came into the camp and told the occupants that he would have burned their camp if they’d been away.  Sharp said that two of the men became angry with Owen and fought with him.  She told how the two men tied Owen and beat him.

Sharp told the officers that the men burned Owen’s shoes and identification.  Sharp continued to deny any direct participation.  The detective specifically asked Sharp if she helped burn Owen’s possessions. Sharp eventually admitted that she helped burn.

 When Sharp asked the detective whether she would go to jail, he “unmistakably insisted, ‘No, no, no, no, no, no, no, no, no, no.  You are a witness to this thing as long as you do not do something dumb and jam yourself.’”  Sharp asked the trial court to suppress her confessional statements, claiming that they were prompted by a promise that she would not go to jail and that her children would receive assistance.  The Kansas Supreme Court upheld the decision to admit her statements.

Sharp petitioned the federal district court for habeas corpus relief.  The district court denied her petition and she appealed to the federal appellate court.  A petitioner seeking habeas corpus relief from a state court judgment carries an almost-impossible burden.  The petitioner must show that the state court acted contrary to, or unreasonably applied clearly established federal law; or the court made an unreasonable determination of the facts in light of the evidence.  In other words, the petitioner is obliged to show that the court just plain got it wrong.

This is an example one of the rare instances that a habeas petitioner succeeds in overturning a state trial court and state supreme court.  The federal appellate court agreed that the detective’s statements about helping Sharp and her kids were not inherently coercive.  However, the court viewed these statements in light of the close timing of the detective’s promise that Sharp would not go to jail.  “The detective’s promise she would not go to jail induced her confessional statements because he made clear there would be no cost of disclosure.  He gave Ms. Sharp a get-out-of-jail-free card, and she obliged by giving him more incriminating details.” 

The court of appeals reversed Sharp’s conviction.  The state may choose to try her again, but without her admissions.  Officers must very cautious in making promises of charging leniency without express approval of prosecutors.  Even a promise to inform the prosecutor that a suspect cooperated will be carefully scrutinized—even more so when promises of good treatment for children or intimate associates are involved.  Sharp v. Rohling, 2015 WL 4269118 (10th Cir. 2015).

Court upholds reasonable suspicion following officer’s reasonable mistake

A Wisconsin officer stopped Houghton because he could not see a front license plate and because he observed a “pine tree” air freshener hanging from the mirror and GPS unit mounted on the windshield.  When the officer approached the car, he smelled the odor of marijuana.  The ensuing search produced a quarter-kilo of marijuana, scales and packaging paraphernalia.

Wisconsin law prohibits any non-transparent item (other than a government-issued sticker) on the front windshield. The officer understood this to prohibit any item that obstructs the driver’s vision.  The trial court did not take such a restrictive view, noting that “there must be a zillion cars driving around with air fresheners and not very many of them would get stopped by the traffic officer.”  The court found that the stop was properly based on reasonable suspicion that the car did not have two license plates.

Houghton was driving a car registered in Michigan, a state that does not require a front license plate.  The state supreme court held that the lack of a front license plate alone did not create reasonable suspicion for a stop.  However, if an officer noted both the lack of a front license plate and some indication that the vehicle is from Wisconsin—which requires two plates—there is a basis for a stop.

The court held that the Wisconsin statutes prohibiting items on the windshield did not create an absolute prohibition on any item hanging from the mirror or attached to the windshield.  Thus, the officer was mistaken in his interpretation of the statute.  Notwithstanding, the court stated that the mistake was reasonable because no Wisconsin court had interpreted the pertinent statute. 

The court held that an officer’s reasonable mistake could lead to a valid stop, reversing its relatively recent precedent in State v. Brown, 850 N.W.2d 66 (Wis. 2014), in which the court held that a seizure based on reasonable mistake violates the Fourth Amendment.   The court based its reversal of course on the U.S. Supreme Court decision in Heien v. North Carolina, 574 U.S.___, 135 S.Ct. 530 (2014).  In Heien, the Supreme Court held that an officer’s objectively reasonable mistake of law may provide “the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment.”   State v. Houghton, 2015 WL 4208659 (Wis. 2015).

Aryan Christian Odinist prisoner may be housed with non-white cellmate

Dennis Walker is a devout practitioner of the Aryan Christian Odinist sect.  He is also a California prison inmate.  The prison assigned him to a non-white cellmate.   Walker asserts that his Odinist religion forbids him from integrating with non-whites and requires the performance of “warding” rituals that may not be conducted in the presence of so-called “non-Aryan” individuals.  He refused to share a cell with a non-white and was assigned to administrative segregation. 

Walker sued prison officials, claiming a violation of the Religious Land Use and Institutionalized Person’s Act (“RLUIPA”).  An inmate suing under RLUIPA must show that: (1) he takes part in a “religious exercise,” and (2) the State’s actions have substantially burdened the religious exercise.  If the inmate can meet those elements, then the burden is upon the government to show a compelling governmental interest and that the government action was the least restrictive means to accomplish that interest.

The court held that Walker’s Aryan Christian Odinist practices were substantially burdened by punishing him for his refusal to bunk with a non-white inmate.  The government countered that not being sued and held liable for housing discrimination based on race is a compelling governmental interest.  The court agreed, but questioned whether the government’s housing classification was the least restrictive means to further that interest. 

The court observed that “it is possible to imagine” other means of accommodating Walker’s demand.  However, Walker had asked to be exempt from the housing classification policy as his sole remedy.  Neither the court nor the government was required “under RLUIPA to independently to research and propose every possible way of mitigating that practice’s negative effects.”  Thus, the government could punish Walker by housing in administrative segregation for his refusal to share a cell with a non-white inmate.  Walker v. Beard, 2015 WL 3773072 (9th Cir. 2015).

Supreme Court strikes down Los Angeles hotel registry law

A Los Angeles city ordinance requires that hotel guest registers “shall be made available to any officer of the Los Angeles Police Department for inspection ... at a time and manner that minimizes any interference with the operation of the business.” Neither the hotelier’s consent nor a search warrant are required for an officer to demand to see the guest register. The ordinance also specifies particular information that the hotel must obtain from a guest and that the hotel must retain the records in or near the hotel office for no less than 90 days.

A group of hotel owners sued, asking that the law be struck down as facially unconstitutional. A law is facially unconstitutional if there is no possible application of the law that could ever be constitutional. The trial court upheld the ordinance on the grounds that hotels have “no reasonable expectation of privacy” in their guest registry. On appeal, the City conceded that there was some minor privacy interest, but argued that the inspections were permissible administrative searches that don’t need a warrant. The Court of Appeals added a complicating wrinkle to the case by resting its decision largely on the more esoteric question of whether a Fourth Amendment challenge on a facial basis is ever proper.

Cops probably aren’t interested in knowing that an all-star legal cast filed 18 amicus briefs, or that the Supreme Court held that facial challenges under the Fourth Amendment are not categorically barred or even “especially disfavored.” But there are more practical facets to the narrowly divided Court’s opinion. Foremost, the ordinance was held to be unconstitutional, meaning that LAPD officers must now use an administrative subpoena to obtain the registers and the City must allow an opportunity for a precompliance review hearing when a hotel operator objects. A hotel may still voluntarily share its guest information with law enforcement officers: “Absent consent, exigency, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded the opportunity to obtain precompliance review before a neutral decisionmaker.”

The majority opinion noted that officers can issue administrative subpoenas, “which are typically a simple form, can be issued by the individual seeking the record—here, officers in the field—without probable cause that a regulation is being infringed,” to easily obtain hotel registries. The Court cited the existence of more than 300 administrative subpoena provisions in federal law. However, not all states have similar provisions and some may well balk at police officers issuing subpoenas in the field.

Moreover, the Court’s suggestion for handling the objection of a hotelier—for an officer to “guard the registry until the required hearing can occur, which ought not take long”—presupposes a bureaucracy with an immediate review hearing available. Such a suggestion will prove impractical for many agencies.

Many cities across the nation have laws similar to the Los Angeles city ordinance. The Court’s opinion actually invalidates only this ordinance, but it provides direction for resolving similar challenges and ultimately will inform deliberation over the validity of any government regulatory scheme requiring record-keeping or inspection of conditions or premises.

One of the amicus curiae briefs was filed on behalf of Google, the Electronic Frontier Foundation and the Electronic Privacy Information Center. Clearly, Google and the others saw the connection with a company’s ability to protect customer information that they gather from government inspection. On the other side, law enforcement amicus briefs addressed the significant threat of human trafficking and the critical role that hotel registries play in detecting traffickers. City of Los Angeles v. Patel, 2015 WL 2473445 (U.S. 2015)

Private search doctrine strictly limited for computer

Lichtenberger and his girlfriend lived with the girlfriend’s mother. When the mother and girlfriend learned that Lichtenberger had previously been convicted of possessing child pornography, the mother called the police and asked officers to remove Lichtenberger from the home. An officer arrested Lichtenberger for an outstanding warrant.

Later that day, the girlfriend hacked the password on Lichtenberger’s laptop computer. She found illegal images and called the police to take possession of the computer. When the officer arrived, she opened the computer and began to open image files. When the officer recognized that he was viewing illegal images, he told the girlfriend to shut down the computer. She turned over the computer to the officer.

Lichtenberger asked the court to suppress the child pornography recovered from his computer. The prosecution rested on the “private search doctrine” that permits officers to make a warrantless seizure of evidence discovered by a private party and then turned over to the police. However, the officer conceded that he “may have asked [the girlfriend] to open files other than those she had previously opened.” The court suppressed the evidence and the prosecution appealed.

The court of appeals upheld the suppression order. The seizure was invalid because the officer lacked “virtual certainty” that he was viewing nothing more than had been discovered during the girlfriend’s private search. Thus, there was “a very real possibility” that he might “have discovered something else” that was “private, legal, and unrelated” to the girlfriend’s private search. The court cited the U.S. Supreme Court’s recent decision in Riley v. California (134 S.Ct. 2473 (2014)), in which the Court viewed smartphones as “minicomputers” with “immense storage capacity” that require a warrant before searching the phone incident to a lawful arrest. The 6th Circuit stated that the private search doctrine should be strictly applied to “searches of complex electronic devices under the Fourth Amendment.” United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015)

Rodriguez applied: Dog sniff reasonable when traffic stop was not concluded

A trooper stopped Brock after another officer saw Brock sway in and out of the travel lane and repeatedly tap the brakes. Brock produced the car registration, but claimed that he didn’t have his driver license. The trooper ordered Brock to get out of the car. He described Brock as “acting real nervous. He was fidgety.” Brock then produced a revoked Ohio driver license.

Six minutes into the stop, the trooper called for a drug detector dog team. The dog arrived within six to seven minutes. When the dog gave a positive final response to the odor of contraband at the front passenger door, the trooper opened the door and began to search. He found “a young pop clandestine laboratory or shake and bake” and a syringe, a cold pack, coffee filters (including a used coffee filter with white powder residue) and ammonium nitrate.

Brock asked the trial court to suppress the drug evidence. He claimed that the trooper did not have reasonable suspicion to stop the vehicle and there was an unreasonable delay for the drug-sniffing dog to arrive. The trial court disagreed. The West Virginia Supreme Court had not previously had occasion to consider whether the use of a drug-sniffing dog constituted a search that must be supported by probable cause. Consistent with the strong majority rule and federal jurisprudence, the Court held that, “As a general rule, a dog sniff of the outside of a vehicle during a lawful traffic stop is not a search within the meaning of the Fourth Amendment to the United States Constitution or the West Virginia Constitution.”

This case was decided just after the U.S. Supreme Court decision in Rodriguez v. United States (135 S.Ct. 1609 (2015)), in which the Court held that officers cannot extend a traffic stop to conduct a detector dog sniff unless there is independent reasonable suspicion to justify extending the stop beyond the time required to complete the investigation into the underlying reason for the stop. The West Virginia high court offered a helpful perspective in how lower courts should apply the Rodriguez holding.

The trooper testified that he was concerned that Brock was an impaired driver. Brock did nothing to ease that concern by his nervous and fidgety behavior, his initial failure to produce a driver license and the eventual discovery of a revoked license. The detector dog team arrived and the dog sniff began while the trooper was still investigating whether Brock was an impaired driver. The Court stated, “Because the evidence fails to show that the mission of the lawful traffic stop was completed at the time the dog sniff of the vehicle occurred, we find that there was no violation of the Petitioner's rights against unreasonable searches and seizure.”

Though the Court did not need to consider an alternative basis for the detention, Brock’s revoked license would have also justified a further delay for investigation as well as a custodial arrest in most jurisdictions. State v. Brock, 2015 WL 3385059 (W.Va. 2015)

Supreme Court sidesteps application of the ADA to arrests, grants immunity

San Francisco police officers responded to a community-based group home where Teresa Sheehan was behaving erratically and threatening staff members. Sheehan was suffering from acute schizophrenia. A social worker asked for police help to transport her to a secure mental health facility.

When the two officers first entered the room, they saw that Sheehan had a knife. The officers backed out of the room. However, concerned that she might have an escape route, they went back into the room before backup arrived.

When they re-entered the room, Sheehan lunged at them with a knife. The officers shot her. She survived and sued the police.

The question initially presented to the Supreme Court was whether the Americans with Disabilities Act (ADA) requires officers to provide “reasonable accommodations” and take special precautions when attempting to detain or arrest an armed and mentally ill person.

The ADA mandates that police (and other government actors) must generally make reasonable accommodations to avoid discriminating against persons with disabilities. Mental health advocates argue that police may use unnecessary force if they fail to consider a person’s mental illness. Sheehan’s lawyer asserts that the officers could have used less aggressive tactics, such as de-escalating the situation through non-confrontational verbal negotiation or waiting for additional officers to arrive.

Lawyers for the officers argued that officers must place safety considerations before disability accommodations: “When mental illness manifests itself in unpredictable, violent behavior as it did in this case, officers must make split-second decisions that protect the public and themselves from harm.”

The trial court sided with the officers, ruling that it would be impractical and unreasonable for officers to comply with the ADA when attempting to take a violent and armed mentally ill person into custody. The Court of Appeals reversed, holding that the trial court should have allowed a jury to decide whether it was reasonable for the officers to wait and use less confrontational tactics. The Supreme Court agreed to hear the case, recognizing a split in lower appellate courts considering the ADA issue.

At oral argument, Justice Alito noted that a threshold question seemed to have been ignored by both parties: What does discrimination mean in the context of police activity? Justice Sotomayor asked whether the city was arguing that the ADA should not even apply to police arrests, a question that Justice Scalia suggested was the only real issue before the Court in this case. At the end of the questioning, it appeared that the Court wondered whether it was even possible for officers to negotiate and de-escalate a situation where a violent mentally ill person came at them with a knife.

In its decision, the Supreme Court sidestepped the question of whether the ADA applies to cops on the street dealing with persons covered by the Act. The Court noted that the City of San Francisco switched legal arguments during the course of the case. It had first argued that the ADA does not apply to “officers on-the-street responses ... whether or not those calls involve subjects with mental disabilities, prior to the officer’s securing the scene and ensuring that there is not a threat to human life.” Later, however, the City of San Francisco relied on a different argument: that the Act doesn’t apply to any person who is a “direct threat” to others.

Ultimately, the Supreme Court held that the officers did not violate the Fourth Amendment when they entered Gail Sheehan’s room on both the first and second contacts. The Court also held that the officers were justified in using deadly force to stop Sheehan’s advance with a knife. The federal appellate court split decision on application of the ADA to taking mentally ill persons into custody remains unresolved. Watch for the issue to arise in other cases.

Law enforcement executives understand that as treatment dollars shrink and less mental health treatment is available, police officers become community mental health workers. Jails see more and more mentally ill arrestees, many of whom have acute or chronic mental health issues that could be much better addressed with proper treatment resources.

Mental health advocates want more training for officers in how to de-escalate potentially violent confrontations and how to recognize and respond to persons with mental illnesses. They argue that an officer who does not understand that a person is in psychiatric crisis may respond with force when some other intervention might be effective. Law enforcement executives share the desire for additional training, but are frustrated by the lack of training dollars and treatment resources.

Experience in many police agencies shows that crisis intervention training for police works. However, the same funding challenges that led to cutbacks in treatment dollars apply to available dollars for police crisis intervention training. Deep cuts in mental health treatment funding have simply transferred the responsibility of mental illness crisis intervention to street cops. City and County of San Francisco v. Sheehan, 2015 WL 2340839 (U.S. 2015)

No warrant required for historical cell site location information

Davis was convicted of seven brutal armed robberies. In a two-month run, Davis and accomplices, bearing an array of firearms, terrorized a wide range of South Florida businesses, including a pizzeria, a gas station, a drugstore, an auto parts store, a beauty salon, a fast food restaurant and a jewelry store. Some of Davis’s accomplices testified against him. The prosecution also introduced his cell phone records to show that he was at the robbery sites.

Davis appealed. The Court of Appeals affirmed his conviction, then agreed to rehear the appeal en banc. The Court once again affirmed the conviction and held that obtaining a court order for a cell phone carrier’s business records was not a search under the Fourth Amendment. Moreover, even if it was a search, obtaining the records without a warrant was reasonable.

The Court clarified that a cell phone user does not have a reasonable expectation of privacy in the cell phone carrier’s records of the locations where the phone is used. This means that law enforcement officers may obtain cell site location information with a court order issued under the Stored Communications Act rather than the more stringent process of a search warrant. A court order under the Stored Communications Act is similar to a subpoena, but with some additional privacy protections.

The court applied the “third-party doctrine,” meaning that an individual does not hold an expectation of privacy in information voluntarily turned over to a third party and held in the business records of the third party. This doctrine is often applied in obtaining bank records and phone numbers dialed from land lines. By taking this approach, the court did not need to decide the question of whether there is a Fourth Amendment reasonable expectation of privacy in a person’s geolocation information.

The Davis decision is just one more entry in the discussion of privacy in our electronic footprints. Recognizing this, the court observed: “The use of cell phones is ubiquitous now and some citizens may want to stop telephone companies from compiling cell tower location data or from producing it to the government. Davis and amici advance thoughtful arguments for changing the underlying and prevailing law; but these proposals should be directed to Congress and the state legislatures rather than to the federal courts.”

The court also emphasized that the Davis ruling is limited only to historical cell site location information at the time the phone was used. The prosecution did not use the Stored Communications Act to obtain the audio transmission of any call, the contents of Davis’s phone, any of his text messages, any pinging of his phone when it was turned on but not being used to make or receive a call, or any real-time geolocation information. Remember that in United States v. Jones, which involved attaching a GPS device to a car, the Supreme Court did not specifically address privacy rights in an individual’s geolocation information. All of these issues are left for another day. United States v. Davis, 2015 WL 2058977 (11th Cir. en banc 2015)

Warrantless search of probationer’s mobile phone upheld

Gonzalez was on probation for felony sex crimes. His probation agreement required him to submit to a warrantless search of his vehicle and residence by any probation officer at any time. The probation agreement also restricted his contact with minors. When the local police notified a probation officer that Gonzalez was suspected of contact with a minor, the probation officer searched his home. During the search, officers found sexually explicit material on a cell phone. Gonzalez’s probation was revoked and he was sentenced to prison.

Gonzalez argued that the recent Supreme Court decision in Riley v. California (134 S.Ct. 2473 (2014)) barred a warrantless search of his cell phone. The North Dakota Supreme Court disagreed and upheld the probation revocation and sentence. The court noted that the Riley decision applied only to searches incident to lawful arrests, and not other Fourth Amendment warrant exceptions.

In United States v. Knights (534 U.S. 112 (2001)), the Supreme Court held: “Just as other punishments ... curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.” The Gonzalez court held that the probation search properly could include any containers in a probationer’s home, as well as computers, cell phones or other personal effects. Officers must remember, however, that the search authority arose from an explicit probation agreement and the search was conducted under the authority of a probation officer. Neither the Knights holding nor this case confer general authority for officers to search probationers’ mobile phones. State v. Gonzalez, 2015 WL 1913109 (N.D. 2015)

Officer’s law enforcement authority ended at the city limits

A confidential informant told a city police officer that Vrabel had hashish for sale. The officer directed the informant to arrange a controlled buy. The informant contacted Vrabel and agreed to meet in a grocery store parking lot of another city. The officer testified that the department commonly arranged for controlled buys in the other city, and would make a courtesy notification of any arrest that might follow.

Like many states, Kansas law confers police powers on municipal officers within their own cities, but limits extraterritorial authority to fresh pursuit or responses to requests for aid to another police agency. Vrabel argued that the controlled buy was conducted without lawful police authority and asked that the drug evidence be excluded. The court agreed that the officer did not have police authority at the time of the controlled buy, but disagreed with suppression as the proper remedy.

This issue has arisen in a number of states. In most cases, courts agree that the officers were acting without police powers. For example, in State v. King (219 P.3d 642 (Wash. 2009)), the court held that an officer observing reckless driving did not meet the state’s emergency exception to territorial limits on police arrest powers. In State v. Updegraff (267 P.3d 28 (Mont. 2011)), the court held officers acting outside their territory to the standards for a citizen arrest.

In the Vrabel case, the court noted, “it may be argued that the common-law rule is needed in order to preserve local civilian control of peace officers, who should not be allowed to operate in cities or counties whose elected leaders have no control over their selection, training, discipline, supervision, and performance.” Notwithstanding, the heavy sanction of exclusion of evidence was not required by Kansas law. The court cautioned officers that repeat or flagrant violations could bring a different result: “This court cannot sanction willful and recurrent violations of the law and future violations may trigger application of the exclusionary rule.” State v. Vrabel, 347 P.3d 201 (Kan. 2015)

Showing eyewitness two photo lineups was not unduly suggestive

Morales and Noriega were murdered at Morales’ auto repair shop by gunshot wounds to the head. A witness, Herrera-Gutierrez, did not know the names of the shooters, though he recognized them from prior occasions at Morales’ shop. Officers compiled photographic lineups containing a 12-year-old black-and-white photograph of Newman.

Herrera-Gutierrez told officers that he was about 50 percent certain of the shooter’s identity, but asked whether police had a more recent photograph. The following day, officers showed Herrera-Gutierrez another photo array, composed of color driver license photos. Newman was the only subject featured in both photo spreads. Herrera-Gutierrez identified him in the second photo lineup as one of the shooters.

Newman and his co-defendant were convicted of murder. Newman claimed that the photo identification was impermissibly suggestive because he was the only subject shown in both of the photo arrays. In Foster v. California (394 U.S. 440 (1969)), the Supreme Court instructed trial courts to first consider whether police used an unnecessarily suggestive identification procedure. If the court finds that the procedure was unnecessarily suggestive, then the trial court should determine whether the suggestive identification procedure fatally tainted the witness’s identification to the point that it was it unreliable and inadmissible in court.

Over the past two decades, much has been written by psychologists and other scientists about how police might improve the reliability of photo lineups, live lineups and other identification procedures. Research has pointed to the need for blind administration of identification procedures, eliciting witness confidence statements, recording of identification procedures and other steps. Some psychologists also suggest that sequential presentation of photographs, instead of the traditional simultaneous presentation of a photo array, could possibly lead to more reliable eyewitness identifications. In this case, the police department had a policy requiring blind administration of the lineup.

The court found that the eyewitness identification was not unduly suggestive and was admissible. The officers presented the second photo lineup in response to the witness’ statement that he might be able to better identify the shooter from more recent photographs. Moreover, nothing suggested that the officers attempted to influence Herrera-Gutierrez’s identification of Newman in either photo lineup. State v. Newman, 861 N.W.2d 123 (Neb. 2015)

In-court eyewitness identification also subject to challenge

Correa-Osorio, also known as “El Don,” was convicted in what the court called a “major cocaine conspiracy involving a creative distribution network, a large cast of coconspirators (some with colorful nicknames such as El Don, El Boss and Phantasma), and a turncoat who became the government’s star witness.” Correa claimed that the court erred in allowing an in-court identification by a witness as Correa sat at the defense counsel table in the courtroom. Correa complained that “he had a huge ‘pick me’ sign on him because he was the only male defendant at counsel table.”

Court challenges to eyewitness identification usually involve out-of-court identification procedures, such as show-ups, photo arrays and live lineups. Courts in New Jersey, Oregon, New Hampshire and other states, as well as legislatures in Illinois, Connecticut, North Carolina, New York, Maryland, Wisconsin and others, have considered and/or adopted eyewitness reform measures aimed at improving police investigative identification procedures. In other states, law enforcement and prosecution associations have proposed best practices for eyewitness identification. Agencies using Lexipol law enforcement policies enjoy the benefit of an Eyewitness Identification Policy that reflects cutting-edge best practice policy in this area.

A report by the National Research Council criticizes first-time, in-court identifications of defendants. Relying in part on that report, the Massachusetts high court, in Commonwealth v. Crayton (21 N.E.3d 157 (Mass. 2014)), established a rule barring a witness from identifying a defendant in court unless there was a prior proper out-of-court identification. Thus, law enforcement shoulders part of the burden of clearing the path for the in-court identification. In fact, the National Research Council suggests that when police have not conducted an out-of-court eyewitness identification procedure and an in-court identification is planned, the court should order police to conduct an identification procedure before trial.

Correa’s challenge to the in-court identification failed. The court noted that “the jurors had ring-side seats” to the eyewitness identification and could make their own assessment of the reliability of the identification. Defense counsel also had the opportunity to challenge the identification on cross-examination. “Correa protests that the identification does not square with due process because he was seated at the defense table when [the eyewitness] fingered him. But the government did not put him there … Defendants (who have to sit somewhere, clearly) usually sit at counsel table to assist in their defense.” United States v. Correa-Osorio, 2015 WL 1812803 (1st Cir. 2015)

How is your mindset?

Captain Charles “Chip” Huth, a watch commander with the Kansas City (Mo.) Police Department, recently spoke about the importance of mindset in policing in a TEDx talk. Read about Captain Huth’s timely and urgent message for America’s police professionals and watch the 10-minute video at https://www.linkedin.com/pulse/heart-mind-great-police-leader-ken-wallentine

Extension of traffic stop for dog sniff requires reasonable suspicion

An officer stopped Rodriguez late one night for questionable lane drifting. An overwhelming air freshener odor, coupled with Rodriguez’s extreme nervousness, aroused suspicion. The officer happened to have a drug detector dog with him. He called for a second officer. A conversation with the passenger only added to the suspicion.

Once he had issued a warning citation and the backup officer arrived, the officer asked Rodriguez to consent to a dog sniff of the car. Rodriguez refused. The officer directed Rodriquez to get out of the car. Within seven or eight minutes of issuing the warning citation, the dog had completed a sniff and given a positive final response. The car contained methamphetamine.

The U.S. Supreme Court recently ruled that the seven- or eight-minute extension of the stop without any reasonable suspicion violated the Fourth Amendment. “We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures.” Thus, the Court has provided a bright line rule that any prolonging of the stop for a detector dog sniff must be based on reasonable suspicion.

A decade ago, in Illinois v. Caballes (543 U.S. 405 (2005)), the Court upheld a detector dog sniff during a traffic stop in part because the stop was not prolonged beyond the time reasonably required to write a ticket. Since then, courts have dealt differently with brief extensions for dog sniffs, considering factors such as whether the extension was incremental or de minimis and whether the dog was already at the scene. Ironically, had Rodriguez been charged in state court, the drugs would almost certainly have been suppressed. In State v. Louthan (744 N.W.2d 454 (Neb. 2008)), Nebraska joined the short list of states that already required reasonable suspicion to prolong a stop for a detector dog sniff.

The Rodriguez decision encourages officers to more carefully articulate the factors observed during a traffic stop that lead to reasonable suspicion. In his dissenting opinion, Justice Alito argued that the majority opinion encourages officers to “game the system” by deploying the dog for a sniff before issuing a citation or warning. He noted, “Most officers will learn the prescribed sequence of events even if they cannot fathom the reason for that requirement.”

The Court reiterated the scope of a traffic stop: “Beyond determining whether to issue a traffic ticket, an officer's mission during a traffic stop typically includes checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance.” The Rodriguez decision does not impact interdiction techniques that do not extend the traffic stop without reasonable suspicion. For example, where an officer partners with a detector dog handler and the sniff is performed during the time required for completing the “mission of the traffic stop,” there is no improper delay. Rodriguez v. United States, 2015 WL 1780927 (U.S. 2015)

Brief extension stop for dog sniff was proper

An officer stopped Harris for speeding. Harris was driving a car rented to someone else, her hands trembled as she produced her license and she apologized to Winters (her only passenger) for being stopped for speeding. Harris told the officer that they were driving to Memphis, but a check with the rental company revealed that the car was a one-day, one-way rental to be dropped off in Chicago. The claimed side trip to Memphis was nearly 200 miles out of the way. The officer spoke separately to Winters, who gave inconsistent statements about their travel plans and destination. Winters explained that the car was rented in his cousin’s name.

After issuing a warning citation to Harris, the officer told her that he would direct his drug detector dog to sniff the outside of the car. A backup officer arrived within three minutes and the officer then conducted the sniff. The dog gave a positive final response near the passenger door (where Winters was seated). When the officer turned to put his dog back in the car, Winters tossed a bag of marijuana to the side of the road.

The officer walked back up to Harris and Winters and explained his dog’s response. He asked whether they had any illegal drugs. Winters admitted to tossing the marijuana and offered to show where he threw it. The officer retrieved the marijuana, but didn’t stop at seizing the “throw down pot.” He searched the car and found a kilo of heroin in Winters’ bag.

Winters was charged with drug trafficking. He argued that the traffic stop had been unlawfully prolonged to conduct the dog sniff and asked that the drug evidence be excluded. The Court of Appeals decided Winters’ appeal after Supreme Court arguments in Rodriguez v. United States (see above). The Winters decision illustrates a situation contemplated by the Rodriguez holding, where reasonable suspicion justified a brief additional detention for a dog sniff.

Winters unsuccessfully tried to convince the court that the Supreme Court decision in Florida v. Jardines, 133 S.Ct. 1409 (2013), requires probable cause for detector dog sniffs of cars. The court noted that the officer’s questions about travel plans were permissible and the responses established “reasonable suspicion to detain Winters for the dog sniff based on Ms. Harris’s and Winters’s nervousness, inconsistent and implausible travel plans, and odd rental arrangement, considered in the aggregate.” The court also noted that the detector dog was already at the scene of the stop and the sniff was delayed only briefly for safety reasons until backup arrived. United States v. Winters, 782 F.3d 289 (6th Cir. 2015)

15-minute delay in field sobriety tests to await backup was reasonable

Two officers responded to a request to keep the peace at a situation involving a woman, her former boyfriend and the boyfriend’s new girlfriend. The complainant said that the former boyfriend and his companion were in a black Mustang. As officers drove to the home, they saw a black Mustang in a nearby church parking lot.

The assigned primary officer went to the complainant’s home. The backup officer pulled in behind the Mustang. The officer approached the Mustang and obtained identification from Montgomery (the driver) and her passenger. The officer smelled alcohol on Montgomery and noted watery eyes and slightly slurred speech. He went back to his car and waited for the primary officer to come to the parking lot before administering field sobriety tests.

After “ten to fifteen minutes,” the primary officer arrived and conducted field sobriety tests. Montgomery was arrested for driving under the influence. A search of the car revealed an open container of alcohol and a marijuana joint.

Montgomery asked the court to suppress the evidence of the field sobriety tests and the search because of the delay between the initial contact and the field tests. Relying on a case with analogous facts, United States v. Sharpe (470 U.S. 675 (1985)), the court declined. A 10- to 15-minute wait for a second officer to arrive before administering field sobriety tests was reasonable, particularly when the officer knew that the other officer was just “down the road” and there were two persons in the car. State v. Montgomery, 2015 WL 1408914 (Tenn. 2015)

Caution urged in “double team” interdiction stop and dog sniff

Cesar was stopped for speeding by a Massachusetts state trooper.  Foreste was the passenger.  The trooper quickly became suspicious when Cesar mumbled answers to her questions and Foreste volunteered answers.  Foreste gave the trooper a rental agreement in his name that was expired by a month.

The trooper told Cesar and Foreste that the stop would be prolonged due to the rental agreement.  Forested gave the trooper another rental agreement, also expired, but more recent.  The trooper also contacted a Vermont state trooper from where Foreste lives.  The trooper contacted the rental company and the rental representative said that the company was not concerned about the expired agreement.  The trooper issued a citation and the traffic stop ended after 22 minutes.

After Cesar and Foreste drove off on I-91, the Vermont state trooper telephoned the Massachusetts trooper with information that Foreste was suspected of drug trafficking using rental cars.  The Vermont trooper then drove toward the I-91 interstate freeway.   The Vermont trooper also called for a drug detector dog team to drive toward the area. 

The Vermont trooper saw Cesar and Foreste leaving a rest stop and saw that Cesar rolled through a stop sign and had an obstructing item hanging from the rear view mirror.   The trooper stopped Cesar, brought him to the trooper’s car, checked for warrants, and issued a written warning for the obstructed windshield and stop sign violation.  The trooper then approached the rental car and spoke with Foreste.

As they conversed, the trooper noted that Foreste’s hands were shaking, his abdomen was trembling and he had powder residue in his nostrils.  A short time later, the detector dog team arrived.  The dog gave a positive final response to the odor of controlled substances.  A judge issued a search warrant.  The troopers found over 600 oxycodone pills.

Foreste acknowledged that both the Massachusetts stop and the Vermont stop were based on reasonable suspicion of traffic crimes.  He also agreed that the first stop was properly extended to investigate the rental contract status.  However, Foreste claimed that the combined duration of the traffic stops was unreasonable and should lead to suppression of the oxycodone.

Interdiction officers occasionally stop a person suspected of drug trafficking and fail to develop a sufficient basis for further investigation.  Sometimes, the interdiction officer may call another officer down the road and communicate information about the stop.  The second officer may then make a stop based on independent cause and may even have arranged for a detector dog sniff.

Courts often analyze the stops collectively to “prevent police gamesmanship.”  Otherwise, officers could short circuit constitutional limits on the length and scope of investigatory detentions by making successive traffic stops that may each be proper, but could aggregate into a prolonged detention that is tantamount to an arrest.  Relying on United States v. Ilazi, 730 F.2d 1120 (8th Cir. 1984), the court held: “Where the same suspicion justifies successive investigations, and the officer conducting the subsequent investigation is aware of the prior investigation and the suspicion that supported it, the investigations' duration and scope must be both individually and collectively reasonable under the Fourth Amendment.”  Other courts have reached similar conclusions.  United States v. Peters, 10 F.3d 1517 (10th Cir. 1993); United States v. Morin, 665 F.2d 765 (5th Cir. 1982).

Foreste also asked for the detector dog’s field performance records.  The trial court denied the request, noting the U.S. Supreme Court decision in Florida v. Harris, 133 S.Ct. 1050 (U.S. 2013), which held that field performance records are not necessary to establish probable cause when the detector dog has been certified by a recognized police canine association.  The appellate court reversed, noting that “Harris counsels caution, but it does not dictate an about-face from this Court’s long-standing position that a canine’s field performance is relevant to the probable cause inquiry.” 

The appellate court remanded for the sole issue of allowing Foreste to challenge the reliability of the detector dog.  The appellate court held that the traffic stops, individually and collectively, were properly limited in scope and duration.  Even so, this case is a strong reminder to interdiction officers and detector dog handlers to be cautious when making a second stop.  The second stop should be based on independent reasonable suspicion and should be appropriately limited in scope and length.   United States v. Foreste, 2015 WL 1035598 (2nd Cir. 2015).

Brief viewing of child pornography thumbnails nine months earlier lead to finding of staleness of probable cause

An agent discovered that an IP address owned by Raymonda was used to view 76 images of child pornography, most of which were thumbnails.  The user did not open any of the images into a full-resolution image.  Based on that information, another agent tracked the IP address owner and obtained a search warrant that was executed nine months after the initial discovery.

When agents executed the warrant at Raymonda’s home, he admitted to viewing child pornography online.  Agents seized two laptops, a tower computer and an external hard drive.  These items were later found to contain over 1,000 images of child pornography.

Raymonda challenged the warrant on the basis of staleness, arguing that information that he viewed thumbnail images nine months earlier could not provide probable cause to believe that he possessed child pornography.   The staleness analysis in child pornography cases is based on long history of judicial acknowledgement that “persons with an interest in child pornography tend to hoard their materials and retain them for a long time.”  United States v. Vosburgh, 602 F.3d 512 (3rd Cir. 2010).  Child pornography “collectors act like pack rats ..., rarely, if ever, disposing of their sexually explicit materials.”   United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006).

In this case, the court found the rare circumstance where the staleness doctrine prevented a finding of probable cause.  The court held that the warrant was not supported by probable cause that Raymonda possessed child pornography at the time of issuance of the warrant.  Nine months, coupled with viewing only thumbnail images for a few seconds, was too stale.  Brief, rapid viewing of thumbnail images “was at least equally consistent with an innocent user inadvertently stumbling upon a child pornography website, being horrified at what he saw, and promptly closing the window.”  Notwithstanding, the court found that the agents relied in good faith on the flawed warrant and the court declined to suppress either the evidence found in the search or Raymonda’s admissions.  United States v. Raymonda, 2015 WL 859556 (2nd Cir. 2015).

Marijuana in plain view couldn’t be touched, search for more improper

Officers stopped Sheridan for driving with a broken headlight.  An officer saw a small bag of marijuana containing “about one ounce.”   Possession of one ounce or less of marijuana is not a crime in Massachusetts.  An officer directed Sheridan to get out of the car.  The officer frisked him, finding a cell phone and $285. 

The officer told Sheridan that he saw marijuana in the car and asked for permission to search.  Sheridan refused and began to “shake uncontrollably,” slump and assumed a “dejected look” on his face.  Another officer searched the car and found additional marijuana.  The officer subsequently searched Sheridan’s phone and found several text messages related to marijuana sales.

The court held that the officers lacked probable cause to search under either the Fourth Amendment or the Massachusetts Constitution.  Previously, in Commonwealth v. Cruz, 945 N.E.2d 899 (Mass. 2011), the court held that a warrantless car search must be based on “probable cause to believe that a criminal amount of contraband was present in the car.”  Even though an amount of marijuana under an ounce is forfeitable under Massachusetts law, the court held that the officers had no “lawful right to access” the interior of the car to either seize the marijuana that they saw or to search for more marijuana. 

The plain view doctrine did not apply—even though the marijuana was “contraband” under civil law, because there was no evidence that a crime was being committed.  The court observed that the only lawful course of action would have been to issue a civil citation and summons and file an appropriate to forfeit the marijuana at a later date.

A number of states now allow possession of marijuana for recreational purposes, including Alaska, Colorado, Oregon and Washington.  The District of Columbia also permits recreational marijuana, though some in Congress hint that federal law may actually still be enforced in the District.  Many states also allow medicinal marijuana.  This case may be the first of a new line of cases that limits the ability of officers to search and to seize marijuana in open view in states with relaxed marijuana laws.  Commonwealth v. Sheridan, 25 N.E.3d 875 (Mass. 2015).

Qualified immunity for shooting driver fleeing with officer on the running board

After seeing Thomas leaving a house known for drug trafficking, an officer stopped him for traffic violations. Davis was a passenger in Thomas’ car. Three of Thomas’ minor children were in the backseat. The officer discovered that Thomas was the subject of outstanding arrest warrants. When the officer instructed Thomas to get out of the car, Thomas refused.

The officer reached inside the car, intending to unlock and open the door. Thomas accelerated and drove toward a freeway ramp. The officer jumped onto the vehicle running board and held on. The officer (and Davis) shouted for Thomas to stop. As Thomas continued toward the freeway, the officer drew his weapon and fatally shot Thomas. The car came to a stop.

Davis and Thomas’ children sued, alleging excessive force. The plaintiffs alleged that the officer caused the danger by jumping on the running board of the vehicle. Instead, they alleged, the officer should have made the better decision to let Thomas get away.

The officer asked the court to apply qualified immunity and dismiss plaintiffs’ lawsuit. “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments.” Ashcroft v. al-Kidd, 131 S.Ct. 2074 (2011).  Once a defendant officer invokes qualified immunity, the burden shifts to the plaintiff to show that the court should not apply qualified immunity and dismiss the claim. To determine whether an officer is entitled to qualified immunity the court considers two questions. First, whether the plaintiff has alleged a violation of a constitutional right. Second, whether the officer’s action was objectively reasonable under clearly established law at the time the conduct occurred. The court must determine the reasonableness of the use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Plumhoff v. Rickard, 134 S.Ct. 2012 (2014).

It isn’t enough for a plaintiff to allege that the officer could have made a better choice or could have used some other tactic that might not have caused injury. In Thompson v. Mercer, the court noted that the “question is not whether the force would have been avoided if law enforcement had followed some other police procedures” but rather the court must decide “regardless of what had transpired up until the shooting itself … whether the officer had reason to believe, at that moment, that there was a threat of physical harm” (762 F.3d 433 (2014)). Shooting at or from a speeding car is often part of exciting chase scenes in cop movies. In the real world, police almost never shoot from a moving car and controversy often follows when officers shoot at moving vehicles. National attention was recently focused on Denver, where officers fatally shot 17-year-old Jessica Hernandez, who was driving an allegedly stolen car. An officer suffered a broken leg during the confrontation. In 2011, officers in Miami fired 116 rounds at a car, killing the driver and wounding four bystanders. In the past few years, agencies in Los Angeles, Albuquerque, Cleveland, Anchorage, Pittsburg and other major cities have tightened restrictions on shooting at moving vehicles.

Lexipol’s Use of Force Policy recognizes that “Shots fired at or from a moving vehicle are rarely effective” and counsels officers to “only discharge a firearm at a moving vehicle or its occupants when the officer reasonably believes there are no other reasonable means available to avert the threat of the vehicle, or if deadly force other than the vehicle is directed at the officer or others.” Police force experts agree that, whenever possible, an officer should move out of the path of an oncoming vehicle. Shooting to mechanically disable a moving vehicle is rarely successful and carries significant risk.

The appellate court upheld the grant of qualified immunity for the officer and dismissed the lawsuit against the officer and against the Fort Worth Police Department. The court observed that the plaintiffs’ claim that “the officer could have moved away from the car is, unfortunately, a suggestion more reflective of the ‘peace of a judge’s chambers’ than of a dangerous and threatening situation on the street.” Officers and departments should view this case—and many similar cases—as a stark reminder that policy and training should prepare the cop on the street with alternative tactics to shooting at a moving vehicle whenever reasonably possible. Davis v. Romer, 2015 WL 409862 (5th Cir. 2015).

Dog’s failure to alert does not defeat probable cause to search

An officer stopped Morris for following too closely. As the officer spoke with Morris, he could smell marijuana. The officer spoke separately with Morris and his passenger, who gave inconsistent accounts of their travel plans. The officer noted other drug trafficking clues, including use of a rental car, hollowed out cigars and numerous empty energy drink containers. The officer called for a drug detector dog team.

The dog failed to give an indication of the odor of controlled substances. The handler explained that the dog seemed to be distracted and annoyed by the falling rain. Relying on his training as an interdiction officer and his observation of trafficking clues, the officer searched the car. He found a bag of Ecstasy tablets in the trunk.

Morris claimed that the detector dog’s lack of a change of behavior indicating the odors of drugs mitigated the probable cause to search the car. Courts have disagreed about how to treat the negative results of a detector dog sniff. However, most courts recognize that even dogs have bad days and are not infallible. See:

·         United States v. Davis, 430 F.3d 345 (6th Cir. 2005): There is “a near universal recognition that a drug-sniffing dog’s failure to alert does not necessarily destroy probable cause.”

·         United States v. Ramirez, 342 F.3d 1210 (10th Cir. 2003): “We will not require investigators to cease an otherwise reasonable investigation solely because a dog fails to alert, particularly when we have refused to require that a dog sniff test be conducted at all.”

·         McKay v. State, 814 A.2d 592 (Md. App. 2002): “Dog’s failure to detect drugs does not automatically negate probable cause.”

In this case, the handler offered a reasonable explanation for the dog’s lack of indication. Thus, the court held that the officer properly searched the car. Two dissenting justices opined that the dog’s failure to alert meant that the officers did not have more than reasonable suspicion. The dissent asserted, “Once the drug dog failed to alert, the already marginal ‘objectively reasonable suspicion’ to search the vehicle and its trunk evaporated.” Particularly notable, however, is that the court did not discuss whether this particular dog was trained on the odor of Ecstasy. Most detector dogs are only trained to detect odors of methamphetamine, heroin, marijuana and cocaine. State v. Morris, 2015 WL 340805 (S.C. 2015).

No expectation of privacy in peer-to-peer network file sharing

Daniel Roberts used the Gnutella peer-to-peer network to share hundreds of images of child pornography with others on the network. Special agents of the Utah Attorney General Internet Crimes Against Children task force (ICAC) routinely patrol the web to thwart distribution of child pornography. An agent discovered that an IP address had hundreds of illegal images available for download. The agent learned that Roberts owned the suspect IP address and obtained a search warrant for Roberts’ home and computer.

Roberts was not home at the time that agents served the warrant. They spoke with him by phone and he agreed to meet. When he met with agents, he admitted that he had been collecting illegal images for some time, but started to delete them when the agents called him. Roberts gave his laptop computer to the case agent. The agent obtained a search warrant specifically for the laptop.

A computer forensic examiner found video and photo images documenting sexual abuse and sexual exploitation of young children. Roberts was charged with 30 counts of sexual exploitation of a minor. Roberts claimed that the search was illegal because the images shared on the peer-to-peer network were discovered through advanced technology known as the Wyoming Toolkit. Roberts asserted that the agents should have had a warrant specifically authorizing use of this tool.

Roberts filed a motion to suppress the evidence from his laptop and to force the state to reveal all of the inner workings of the Wyoming Toolkit. Such a disclosure would not likely have helped Roberts, but would have been invaluable to others’ efforts to freely trade illegal images without risk of being caught. The court held that using the Wyoming Toolkit to disclose child pornography on peer-to-peer file sharing networks was not a search under the Fourth Amendment. Roberts freely shared his files with others involved on the network. Thus, Roberts could not claim a subjective expectation of privacy in those files. State v. Roberts, 2015 WL 404627 (Utah 2015).

Asking officer to delete “naked pictures” meant consent to search phone images

Officers saw Montgomery leave a house known for drug sales and stopped him for a minor traffic violation as he turned into his driveway. Montgomery initially gave a false name. As an officer frisked Montgomery, he pushed the officer’s hand away from his pocket. When the officer asked Montgomery about a bulge in his pocket, he admitted that he was holding cocaine. The officer arrested Montgomery.

Montgomery consented to a search of his house. Officers found no contraband other than a pipe and a spoon with some residue. Montgomery agreed to give up his supplier’s name in exchange for an officer helping him delete “naked pictures” on his cell phone that he did not want his father to find. Montgomery asked several times that the naked pictures be deleted. When the officer followed Montgomery’s instructions, he saw images of child pornography. The officer stopped viewing.

Montgomery was convicted of possession of child pornography and sentenced to eight years in prison. Montgomery appealed, claiming that the pictures were discovered during an unlawful warrantless search. Montgomery claimed that he would not have been concerned about his father finding his naked pictures if he had not been arrested, and that he would not have been arrested if he had not admitted that he had cocaine, and that he would not have admitted that he had cocaine if he had not been frisked without any basis to believe that he was armed.

The prosecution claimed that there was no constitutional violation, but even if there was, the taint was purged by Montgomery’s consent—in the form of asking the officer to delete naked pictures. The court considered whether Montgomery’s consent was independent of the allegedly unlawful frisk. To determine whether consent is independent of an alleged illegality, the court examines 1) the temporal proximity of the illegal conduct and the consent; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the initial alleged misconduct. The court held that Montgomery’s repeated requests to sanitize the phone’s naked picture library constituted an independent act, purging the taint of the possibly improper frisk. United States v. Montgomery, 2015 WL 390156, (5th Cir. 2015).

Supreme Court considers extending a traffic detention for a dog sniff

The United States Supreme Court heard arguments in Rodriguez v. United States last week.  An officer stopped Rodriguez late one night for questionable lane drifting.  An overwhelming air freshener odor, coupled with Rodriguez’s extreme nervousness, aroused suspicion.  The officer happened to have a drug detector dog with him.  He called for a second officer.  A conversation with the passenger only added to the suspicion.

Once he had issued a warning citation and the backup officer arrived, the officer asked Rodriguez to consent to a dog sniff of the car.  Rodriguez refused.  The officer directed Rodriquez to get out of the car.  Within seven or eight minutes from issuing the warning citation, the dog had completed a sniff and given a positive final response.  The car contained methamphetamine.

The trial court and the Court of Appeals both viewed the sniff as a de minimis extension of the traffic stop.  Rodriguez’s counsel argued to the Supreme Court that any detention beyond completion of the traffic investigation is a seizure that must be supported by reasonable suspicion.  In contrast, the prosecution argued that the “completion of a traffic investigation” is an artificial distinction.  The prosecution told the Court that officers should be able to continue investigation beyond the initial reason for the traffic stop so long as they do not “unreasonably prolong” the detention.

The Supreme Court questions at oral argument suggest that the Court is not willing to view dog sniffs as routine incidents of a traffic stop.  Nor does the Court seem inclined to revisit its holding that a sniff is not a search.  Recognizing that the lower court decisions did not resolve whether there was reasonable suspicion for the dog sniff (the case really was presented on the question of prolonging the detention for the sniff), Justice Ginsburg pondered whether the Court should remand for resolution of the reasonable suspicion question.  She seemed to gather no support for that suggestion.

Justice Breyer may have outlined the Court’s ultimate course on Rodriguez.  He quipped, “what an original idea I had … after we cite these two cases …, [we] reverse. …, goodbye.”  He was referring to prior holdings that a traffic detention “cannot last longer than is necessary to effectuate the purpose of the stop,” and cannot be “unnecessarily prolonged.”  Questions and comments by Chief Justice Roberts and Justices Kagan and Scalia suggest that they may well follow that reasoning.

I would not expect a decision until toward the end of the Court’s term.  Rodriguez v. United States, No. 13-9972.

Dog nuzzles open bag to expose marijuana

Police responded to an intrusion alarm at Miller’s home.  An officer saw a broken window with an opening large enough for a person to crawl through.  The officer called for police service dog Jack to assist with a protective sweep.  Miller’s mother arrived with a key to the home.  She gave officers the key and consented to entry to check for intruders.

Jack and his handler entered the home and began to search for intruders.  In one of the bedrooms, Jack sat and stared at a dresser drawer.  Recognizing a positive final response to the odor of contraband, the handler opened the drawer and saw a brick of marijuana.  He directed Jack to continue the search for persons.

Jack reached a closet and began to bark excitedly, suggesting to the handler that someone was hiding in the closet.  The handler opened the closet door.  Jack immediately stuck his nose on one of two large black trash bags, opening the bag.  The handler could see marijuana in the bag.

Miller arrived at the home.  No intruder was found.  Based on their observations, the officers obtained a search warrant for the home.  Miller claimed that the discovery of the marijuana in the bag nuzzled open by Jack was unconstitutional, and thus the warrant was improperly granted.

The court noted that “man’s best friend is no stranger to Fourth Amendment jurisprudence. The Supreme Court of the United States has decided several cases involving police dog sniffs that indicate the extent to which police may use these four-legged crime-fighters without running afoul of constitutional safeguards.”  In this case, the court characterized Jack’s action not as a dog “sniff,” but rather a dog “nuzzle.”  The court held that Jack’s instinctive action, unguided and undirected by the handler, was not a search.  The nuzzling brought the marijuana into plain view and it was proper to base the warrant on the officer’s plain view observation.  State v. Miller, 766 S.E.2d 289 (N.C. 2014).

Supreme Court applies RLUIPA to Muslim inmate’s beard request

The United States Supreme Court held that Gregory Houston Holt, also known by his Muslim name Abdul Maalik Muhammad, has the right to wear a short beard while in prison.  Holt sued the Arkansas Department of Corrections (Arkansas DOC) under the Religious Land Use and Institutionalized Persons Act (RLUIPA).  The Court held that the Arkansas DOC had not offered any compelling reason forbidding Holt from growing his beard.  The Arkansas DOC does allow trimmed beard for medical reasons.

The Arkansas DOC prevailed at the trial court and Eleventh Circuit Court with its claim that the prison had a legitimate security interest in preventing inmates from hiding something in a beard longer and in preventing an inmate from changing appearance by growing (then shaving) a beard.  Justice Alito brought laughs at oral argument last fall when he suggested that correctional officers could require an inmate to run a comb his beard “to see if a SIM card—or a revolver—falls out.”  As for the identification problem, Justice Alito wondered aloud how likely it would be that a bearded inmate would leave a cell block for work, shave, switch identification cards with an inmate of similar appearance, and fool corrections officers.

“We readily agree that the Arkansas DOC has a compelling interest in staunching the flow of contraband into and within its facilities, but the argument that this interest would be seriously compromised by allowing an inmate to grow a ½-inch beard is hard to take seriously,” Justice Alito wrote in the unanimous opinion.  “Since the Arkansas DOC does not demand that inmates have shaved heads or short crew cuts, it is hard to see why an inmate would seek to hide contraband in a ½-inch beard rather than in the longer hair on his head.”  The Court observed that the beard ban was not the “least restrictive means” of addressing the security concerns.  The RLUIPA statutorily mandates strict constitutional scrutiny of any “substantial burden” on inmate religious activity. 

Holt told the Court, and had offered to the Arkansas DOC, to trim his beard to ½ inch.  Lexipol policy is consistent with the RLUIPA and provides that inmates may be required to trim facial hair if it poses a security or safety risk.  Lexipol recommends that the custody facility manager carefully consider any request to wear a beard for religious reasons in light of the RLUIPA mandate and the Holt decision.  Holt v. Hobbs, No. 13-6827, (January 20, 2015).

The Court’s decision may well impact litigation in Texas, where a religious freedom advocacy group is suing corrections officials over the state’s refusal to provide Jewish inmates with kosher food.  The U.S. Department of Justice has filed similar litigation against Florida corrections officials.  The Holt decision, coupled with the Court’s recent decisions with a pronounced bent toward religious liberty, may prompt resolution of the kosher diet question at the lower courts.  Lexipol recommends that, to the extent reasonably practicable, a custody facility provide special diets for inmates in compliance with the parameters of the RLUIPA.

Fourth Circuit overturns warrantless search of probationer’s home

Officers served an arrest warrant at Barker’s home and arrested him for a probation violation.  Officers found Hill and Dunigan in bedrooms of the home.  Dunigan had a tourniquet on her arm and appeared to be using drugs.  During a protective sweep, officers saw scales, drug packaging and intravenous drug paraphernalia.

The officers called for a drug detector dog.  Following a sniff and a final positive response, officers searched behind a ceiling tile and found a plastic bag.  An officer then obtained a search warrant.  During the warrant execution, officers found unpackaged heroin, prescription pills, suspected LSD, synthetic marijuana, and drug use paraphernalia.

Barker was subject to a probation condition requiring him to “permit a Probation Officer to visit him or her at any time, at home or elsewhere, and permit confiscation of any contraband observed in plain view of the Probation Officer.”  Hill claimed that this condition did not permit either the protective sweep or dog sniff.  The appellate court agreed, noting “officers generally may not search the home of an individual on supervised release who is not subject to a warrantless search condition unless they have a warrant supported by probable cause.”  The court remanded for determination of whether the information gained from the walk-through and dog sniff affected the decision to seek a warrant.

Other courts have followed a different approach in light of the United States Supreme Court decisions in Samson v. California, 547 U.S. 843 (2006), and United States v. Knights, 534 U.S. 112 (2001).  In Samson, the Supreme Court upheld a parole agreement condition authorizing warrantless and suspicionless searches of a parolee's person.  Similarly, in Knights, the Court upheld a probation agreement provision allowing warrantless searches of a probationer’s home.  Both the Fifth Circuit and the Eleventh Circuit have relied on Samson and Knights to uphold warrantless searches of a probationer’s home even without explicit authority stated in the probation agreement. 

The Fourth Circuit acknowledged that Barker and Hill were subject to probation agreements, but stressed that suspicionless searches were not explicitly authorized by the agreements.  The Eleventh Circuit reached a contrary conclusion in United States v. Carter, 566 F.3d 970 (11th Cir. 2009), and emphasized that a probationer’s expectation of privacy in his home was diminished by the probation condition “requiring him to submit to home visits by his probation officer.”  An outcome similar to the Hill decision could likely be avoided by a simple modification in the terms of a probation agreement.  United States v. Hill, 2015 WL 151613 (4th Cir. 2015).

Circumstances of interrogation created custody for suspect not under arrest

An investigator assumed the on-line identity of a confidential informant who had been corresponding with Borotowski.  Borotowski offered to trade child pornography images in exchange for a live web camera session with a child.  Borotowski sent illegal images and officers obtained a warrant for the home where Borotowski lived with his parents.  Borotowski had previously spent substantial time in a federal prison for trafficking in child pornography.

An entry team of seven officers lead by an officer equipped with a ballistic shield entered the home and found Borotowski asleep on the couch.  He claimed that he shouted to a sister to obtain an attorney for him, though none of the officers heard this.  After handcuffing and holding Borotowski outside for 25 minutes while the home was secured, officers took Borotowski inside, removed the handcuffs and began to question him.  The court described the questioning as not becoming “hostile or combative.”  An officer told Borotowski that he was not under arrest.

During the questioning, Borotowski made two references to an attorney, though he did not explicitly invoke his right to counsel.  Borotowski made several incriminating admissions during the questioning.  After approximately three hours, officers asked Borotowski to go with them for a polygraph examination.  He agreed.  The officers told him that they would need to apply handcuffs and shackles for the transport.  During the polygraph examination, Borotowski made further admissions.

Borotowski asked the trial court to suppress his statements, arguing that he had invoked his right to counsel.  The trial court determined that Borotowski was not in custody for purposes of Miranda.  Borotowski was convicted and sentenced to nearly 25 years. 

Borotowski appealed, arguing that he was in custody during the interrogation.  The appellate court cited several factors in the analysis of whether a person—not yet formally arrested—is in custody.  Those factors include:

  •         location of the questioning
  •          duration of the questioning
  •          statements made during the questioning
  •          presence or absence of physical restraints during the questioning
  •          release of the suspect at the end of questioning