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Xiphos (pronounced zee-phose) is a biweekly summary of recent court decisions about criminal procedure and other subjects important to law enforcement officers and administrators. The xiphos is a short double-edged sword used essentially as a backup weapon by ancient Greek warriors. This service is provided at no cost. To subscribe, send a message to Xiphos-subscribe@KenWallentine.com. To unsubscribe, send a message to Xiphos-unsubscribe@KenWallentine.com. An excellent and free library of civil liability articles and case summaries may be found at www.aele.org.
Installation and monitoring of GPS tracker requires warrant
In 2010, Xiphos reported on the GPS tracking case involving Jones and Maynard (see the Xiphos 2010 archive on the web). The U.S. Supreme Court today sided with the federal court of appeals and held that officers must obtain a warrant to place a GPS tracker on a suspect’s vehicle. The Court was unanimous in holding that installing the tracker and the long-term monitoring (28 days) was a search under the Fourth Amendment. A majority of five justices held that, "the Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."
The Supreme Court did not consider whether the search was reasonable because the prosecutors did not make that claim in the lower court, thereby giving the Court leeway to deem the argument waived. The Court divided 5-4 over the proper analytical approach for GPS tracking. Justice Alito wrote a concurring opinion, joined by three other justices, that highlights the difficulties that the Court may encounter as technology advances and tracking by GPS-enabled cell phones or services such as OnStar become more commonplace. The Jones decision could also impact the analysis of the when and how officers may lawfully use cell site location information (see <http://www.aele.org/law/2011all02/2011-02MLJ401.pdf>). During oral argument in this case, justices asked about license plate recognition devices, Facebook monitoring and surveillance cameras.
The bottom line for officers is that installing a GPS tracker on a suspect vehicle now requires both probable cause and a warrant. U.S. v. Jones, --- S.Ct. ----, 2012 WL 171117 (U.S. 2012).
Officers granted qualified immunity for warrantless entry into home
Officers were investigating reports that Vincent Huff had written a letter threatening to "shoot up" his high school. The officers learned that Huff had been absent from school for two days and that he was frequently bullied by other students. Officers spoke with one student who knew Huff and believed that he was capable of violence. Many parents heard reports of the threat and kept their children home from school. Two officers went to the Huff home to speak with Vincent and his parents. No one answered their knock on the door. The officers called the home telephone number and could hear it ringing inside. When no one answered the phone, the officers called Mrs. Huff's cell phone. She answered, spoke briefly with an officer and then abruptly hung up the phone. After a few minutes, Mrs. Huff and Vincent came to the front porch to talk to the officers.
When one of the officers asked Mrs. Huff whether they could talk inside, she refused. The officer asked whether there were any guns in the house. Instead of answering, Mrs. Huff quickly turned and ran into the house. An officer, concerned that Mrs. Huff could retrieve a gun, followed her inside to the living room. After a few more minutes, Mr. Huff came into the living room and challenged the officers. The officers left without further incident.
The Huffs then sued the officers, claiming that they illegally entered the Huff home. The trial court granted qualified immunity to the officers, ruling that the officers were required to make a decision in tense and rapidly-evolving circumstances. The Ninth Circuit Court of Appeals, in a 2-1 decision, reversed the grant of qualified immunity. The officers appealed. The Supreme Court held that the trial court properly granted qualified immunity to the officers, protecting them from suit. In a short, unanimous decision, the Court stated: "reasonable officers in the position of petitioners could have come to the conclusion that there was an imminent threat to their safety and to the safety of others. The Ninth Circuit's contrary conclusion was flawed for numerous reasons." The Supreme Court noted that the Ninth Circuit had considered each factor in the analysis of exigency and knocked down each factor individually "with hindsight and calm deliberation," rather than follow clearly-established law required analysis of the totality of the circumstances. Ryburn v. Huff, --- S.Ct. ----, 2012 WL 171121 (U.S. 2012).
Search of cell phone call logs proper under inventory doctrine
Ochoa was arrested during a controlled delivery of a large amount of cocaine found during a traffic stop of a drug courier. Following the arrest, officers examined a cell phone found in his car. The phone contained evidence that Ochoa had telephoned the drug courier. The Fifth Circuit Court of Appeals had held in 2007, in United States v. Finley (see 2007 Xiphos archives), that a phone could be searched incident to a lawful arrest. Subsequent to the Finley case, the Supreme Court restricted the search incident to arrest doctrine in Arizona v. Gant. Some courts have relied on Gant to limit searches of phones incident to arrest.
The Fifth Circuit held that it did not need to decide whether Gant curtailed the Finley holding. The court held that the cell phone logs would have been inevitably discovered during an inventory of Ochoa's vehicle. The court noted that the agency "has standard operating procedures calling for an inventory of a vehicle to protect the agency from claims of lost or stolen property. Indeed, pursuant to those procedures, agents began taking an inventory of Ochoa's car shortly after the cell phone was seized. Further, there was at least a reasonable probability that the agents would have uncovered the cell phone, which had been ringing as one of the agents drove Ochoa's car to the agency, during the inventory." United States v. Ochoa, --- F.3d ----, 2012 WL 104997 (5th Cir. 2012).
Cutting off bag of cocaine tied to body part rendered search unreasonable
Several officers were looking for Edwards to arrest him on a warrant for brandishing a firearm at his ex-girlfriend. The officers knew that Edwards had a drug arrest history. They saw Edwards walking down the street and arrested him without incident. When the transport van arrived, one officer removed Edwards' belt and pulled the front and the back of Edwards' underwear away from his body. The officer saw a bag of cocaine tied to Edwards' [male part] (Xiphos cannot slip by the spam filter if we use the proper terminology). The officer set down his flashlight (it was late at night) and retrieved a knife. The officer reached in and started cutting. Edwards asked the court to suppress the cocaine, arguing that the slicing during the search was unreasonable. The appellate court agreed. "We conclude that the use of a knife in cutting the sandwich baggie off Edwards' [part] posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness. The fortuity that Edwards was not injured in the course of this action does not substantiate its safety." I guess that you get the moral of the story on your own. United States v. Edwards, --- F.3d ----, 2011 WL 6825360 (4th Cir. 2011).
Frisk of all group members permissible when crimes were being openly committed
Williams and eight others were standing in front of a vacant house. Some (not Williams) were openly smoking marijuana. Responding to a citizen complaint, several officers approached the group. Officers frisked the persons smoking marijuana and found that two men had concealed guns. At that point, an officer told all of the men to lay on the ground and tell the officers if they had weapons. When Williams laid down, an officer saw a bulge in the small of his back. The officer patted the bulge and recognized that it was a gun. Williams was convicted of carrying a weapon by a convicted felon and carrying a concealed weapon.
Williams argued that the frisk was unlawful because there was no reasonable suspicion particular to him. Williams cited the U.S. Supreme Court decision in Ybarra v. Illinois, 444 U.S. 85 (1979), in which the Court disallowed general frisks of persons found in a place where other persons were suspected of crimes. In Ybarra, officers frisked every patron in the Aurora Tap Tavern when they entered the tavern to execute a search warrant. The bar tender was suspected of selling drugs. The Court held that the frisk of Ybarra could not be justified solely because he “happened to be on premises where an authorized narcotics search was taking place.” Courts have long held that mere presence in a high-crime area is not alone sufficient evidence to justify a detention or a frisk.
The Kentucky court disagreed with Williams. In this case, the court distinguished the prohibition on frisks of persons based only on association with suspected criminals from Williams’ situation. Williams was in a public place associating with persons who were openly using illegal drugs. That gave police reasonable suspicion to detain the entire group. Observing the bulge in Williams’ waistband lead to a valid frisk. The message of this case for officers is two-fold. First, remember that frisks of all persons present near suspected criminal activity or at the scene of a search are usually not allowed. Second, a detention may be justified where a person is hanging out with others who are openly violating the law. Williams v. Commonwealth, 2011 WL 5877781 (Ky. 2011).
Gant did not limit scope of protective sweep doctrine
Manuel walked into a pawn shop began firing at the owner, ultimately shooting him 10 times. Manuel then stole 2 guns from the shop. Police tracked Manuel to a hotel. A tactical team executed an arrest warrant at the hotel room and arrested Manuel. His girlfriend was also in the room. Officers handcuffed them both and took them outside. During a protective sweep, an officer lifted up the bed springs to check for anyone hiding under the bed. The officer heard a clunking sound and could see a gun through the mesh fabric. The girlfriend consented to a search of the room and the officers retrieved the gun. Manuel claimed that the sweep was an illegal search, asserting that the decision in Arizona v. Gant restricts the area of a protective sweep.
The United States Supreme Court described the protective sweep doctrine in Maryland v. Buie, 494 U.S. 325 (1990). The Court held: “As an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Thus, under Buie, officers making an arrest may lawfully conduct a protective sweep in the area immediately adjacent to the arrest without any suspicion, and may conduct a broader protective sweep when the officers have a reasonable belief that the area harbors someone who could pose a safety threat.
The court rejected Manuel’s argument that Gant cut into the Buie protective sweep doctrine. Officers testified that they normally look under beds in the immediate area of an arrest to check for hidden persons (everyone knows that monsters hide under beds). The court found such checks to be within the proper scope of a protective sweep and affirmed admissibility of the gun as evidence against Manuel. State v. Manuel, 2011 WL 6372855 (Ariz. 2011).
Michigan v. Summers allows detention of search warrant target resident who is away from the target location
Following a tip and evidence gleaned from a trash cover, officers obtained a search warrant for Montieth’s home. The officers knew that Montieth lived with his wife and two small children. To avoid traumatizing the children during the warrant execution, officers waited until they saw Montieth driving away from his home. They stopped him less than a mile from his home. He told the officers that there was marijuana in the home. The officers handcuffed Montieth and drove him to his home. Officers knocked on the door and spoke with the wife. She took the children to another location. Officers took Montieth inside and executed the warrant, finding marijuana in the locations identified by Montieth.
Montieth later claimed that the warrant execution followed an unlawful detention. The prosecution relied upon Michigan v. Summers, 452 U.S. 692 (1981), a case where the Supreme Court held that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Montieth claimed that a detention under Michigan v. Summers may only happen at the site of the warrant execution. The appellate court disagreed, holding that Michigan v. Summers may justify detention of a resident of the target location even when the resident is some distance away from the target. “We consider whether the police detained the individual ‘as soon as practicable’ after observing him leave the residence.” The court also held that the stop was a proper investigatory detention under Terry v. Ohio. United States v. Montieth, 662 F.3d 660 (4th Cir. 2011).
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