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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.

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
  •          whether the questioning occurred in a public place
  •          whether the suspect consented to speak with officers
  •          whether the officers informed the suspect that he was not under arrest
  •          whether the suspect was moved to another area
  •          whether there was a threatening presence of several officers and a display of weapons or physical force
  •          whether the officers’ tone was such that their requests were likely to be obeyed

The appellate court held that Borotowski was in custody and thus entitled to the full protections of Miranda v. Arizona.  The court based its decision on the force used to execute the warrant and the nature of the detention.  “This overwhelming display of force inside a single family home would have led a reasonable person to believe that he was not free to leave.”  “The use of restraints for twenty-five minutes, followed by confinement in a small room with an armed officer blocking the door for the next three hours, followed by the use of handcuffs and leg shackles would lead a reasonable person to believe that he was not free to leave.”

Factors weighing against a finding of custody included the friendly tone of the interrogation and the fact that Borokowski was in his own home. This case illustrates the occasional delicate balancing act of reasonable officer safety measures and conducting a non-custodial interrogation.  The court remanded, directing the trial court to determine whether Borotowski had effectively invoked his right to counsel.  United States v. Borostowski, 2014 WL 7399074 (7th Cir. 2014). 

Officers properly searched computer after repair shop finds illegal images

Meister’s computer failed and he took it to a repair shop to save and copy the files on his hard drive.  The repair shop was able to copy the files, discovering in the process that Meister had a collection of child pornography images.  The repair shop copied the files, notified police and turned over the images to officers.  Officers obtained a search warrant for the hard drive and recovered the original images.

Meister asked the court to suppress the evidence taken from his hard drive.  The court denied the request because a private computer repair person is not a government actor and thus cannot violate the Fourth Amendment.  The fact that the officers saw the images prior to obtaining a warrant did not require suppression.  “Once a private individual, acting of his own accord, conducts a search—even one that frustrates a defendant's reasonable expectation of privacy—the Fourth Amendment does not forbid the government from replicating the search.”  United States v. Meister, 2015 WL 43643 (11th Cir. 2015).

Police need not sanitize and return computer infected with child pornography

The Ninth Circuit has tempered the duty to return computer hard drives, or their digital contents, to defendants who used their digital devices to dally in dirty deeds.  Some courts have ordered that Pinterest entries, homework assignments, photos of children (clothed) and dinner recipes must be culled from the digital evidence of child abuse (in the form of child pornography).  Court rules and common law require that officers return non-contraband to the defendant at the conclusion of a case (see Fed. R. Crim. P. 41(g)).

Now the Ninth Circuit breathes a welcome reality check into Fed. R. Crim. P. 41(g). 

“Many people store every aspect of their lives on electronic devices. Those devices are brimming with correspondence, schedules, photographs, and music. As a result, a crashing computer or a lost smartphone can lead to catastrophic results for a person who failed to back up that data; the only record for years of a person's life can be lost in an instant.

Criminals who possess child pornography are no different. Those criminals may likewise store important aspects of their lives on their electronic devices. But along with the normal risks of losing their personal data, such criminals also risk losing that personal data when the government seizes their devices for evidence of child pornography.” 

Thus begins the sadding for Justin Gladding.  The Ninth Circuit held that the expense of separating on a seized computer the files that are contraband or subject to forfeiture from those that are not can justify prosecutors’ refusal to return a defendant’s family photos and other noncontraband files.

Thus, according to the Ninth Circuit decision, child pornography suspects who intermingle tainted and untainted digital information run the risk of never having their personal files returned.

The difficulty and cost of segregating the data can be a legitimate reason for the government to retain seized digital files, the court concluded. It supported this conclusion by relying on a comment in the Rules Advisory Committee's Note to 2009 amendment to Rule 41:

“A substantial amount of time can be involved in the forensic imaging and review of information. This is due to the sheer size of the storage capacity of media, difficulties created by encryption and booby traps, and the workload of the computer labs.”

The court also left open the possibility that, on remand, the district could amend its rulings to hold that all of the files on the Gladding’s digital devices were fortfeitable.  United States v. Gladding, 2014 WL 7399113 (9th Cir. 2014).