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.
Historical CSLI does not
require probable cause showing
Pearson brought a bag of marijuana to the home of his
girlfriend’s mother. Two men came to the home and spoke with Pearson.
Pearson placed the bag of marijuana on the table and spoke
to the men about money. One of the men responded, “No, we taking this.” Pearson
said, “Take it.” The men began going through Pearson's pockets. Pearson tried
to grab a gun from his waistband. The men fatally shot Pearson and fled with
Pearson’s girlfriend told detectives that Pearson made phone
calls and spoke about selling drugs to someone he called “D.” The detectives
examined Pearson’s cell phone and traced a recently dialed number to Archer. The
detectives conducted surveillance on Archer and watched her enter a bar. She
came out of the bar with Taylor.
The detectives stopped Archer and Taylor and seized Taylor’s
cell phone. A detective called the number that Pearson had called shortly
before his murder. Taylor’s phone rang.
Under the procedures established in the Stored
Communications Act (18 USC § 2703(d)), the detectives obtained historical cell
site location information (CSLI) from Taylor’s service provider. The Stored
Communications Act allows investigators to obtain CSLI with a subpoena instead
of a search warrant. The CSLI placed Taylor’s phone near the murder scene at
the time of the murder.
Taylor claimed that the detectives violated the Fourth
Amendment because he had a legitimate expectation of privacy in his CSLI and
they should have obtained a search warrant based upon probable cause, rather
than a subpoena under the Stored Communications Act. The court disagreed,
holding that Taylor’s Fourth Amendment rights were not violated because he held
no reasonable expectation of privacy in the CSLI: “Because Taylor does not have
a reasonable expectation of privacy in business records made, kept, and owned
by his provider, Sprint-Nextel, a warrant requiring probable cause was not
required before obtaining that information.”
Obtaining real-time or prospective CSLI does generally require
a warrant. The issue gets murkier, however, with historical CSLI. Many federal courts agree that probable cause is
not required as long as investigators can demonstrate “specific and articulable
facts showing that there are reasonable grounds to believe that the contents of
a wire or electronic communication, or the records or other information sought,
are relevant and material to an ongoing criminal investigation”—the standard
that the court applied to this case. Federal Courts of Appeals for the 3rd,
5th, 6th and 11th circuits have followed this approach.
However, in a case previously discussed in Xiphos (“Warrant required for cell site
location information?” August 2015),
the 4th Circuit took a different approach, requiring a search warrant. That
case was recently reconsidered by the entire circuit en banc and a decision is expected soon. In addition, appellate
courts in a number of states, including Massachusetts, New Jersey and Florida, as
well as a few federal trial courts, have ruled that police need a search
warrant to obtain historical CSLI.
Taylor failed in his effort to persuade the court to apply a
probable cause standard and the court ruled that the CSLI evidence was properly
used against him. This case adds to the divide on the CSLI issue and makes it
even more likely that the U.S. Supreme Court will review the standard for
obtaining historical CSLI. Taylor v.
State, 2016 WL 1594007 (Nev. 2016)
historical CSLI information from GPS tracking in novel argument
A group of 15 shifting suspects committed a string of armed
robberies at Radio Shack and T-Mobile stores. When four of the men were
arrested, one soon implicated Carpenter and Sanders as the ringleaders. The man
who confessed gave investigators his cell phone and the phone numbers of his
partners in crime.
Investigators tracked down owner information for these
numbers, as well as other numbers from the confessing robber’s phone. Ultimately,
seven of the robbers implicated Carpenter as the organizer and gun supplier for
most of the robberies. The robbers also stated that Carpenter and Sanders had
served as lookouts during the robberies.
Investigators obtained an order under the Stored
Communications Act (18 USC § 2703(d)) for historical cell site location
information (CSLI) for Carpenter’s and Sanders’ phones as well as 14 other
phones of co-conspirators. The CSLI showed that Carpenter and Sanders used their
cell phones within a half-mile of the crimes.
Carpenter and Sanders protested the use of the CSLI, arguing
that they had an expectation of privacy and drawing a comparison to continuous
GPS tracking disfavored by recent decisions of federal courts, including the U.S.
Supreme Court in United States v. Jones
(132 S.Ct. 945 (2012)). The court made quick work of a general claim to privacy
in CSLI, holding that cell phone communication “content … is protected under
the Fourth Amendment, but routing information is not.” Moreover, cell phone
users must know that the phone location is being tracked by a provider: “Any
cellphone user who has seen her phone’s signal strength fluctuate must know
that, when she places or receives a call, her phone ‘exposes’ its location to
the nearest cell tower and thus to the company that operates the tower.”
The court also dismissed the analogy to GPS surveillance. First,
placing a GPS tracking device involves a physical trespass on the vehicle,
person or item. Second, the GPS tracker reveals much more precise detail about
location. The GPS tracker is generally accurate within approximately 50 feet
and is even able to point to the tracker’s location within a building. As the
court noted, the CSLI was obtained from a third-party provider, not a tracking
device. It “could do no better than locate the defendants’ cellphones within a
120- (or sometimes 60-) degree radial wedge extending between one-half mile and
two miles in length.”
The court held that the CSLI was properly admitted. Carpenter
also complained about the 116-year sentence imposed by the trial court and Sanders
protested his much-shorter 14-year sentence, but both sentences were upheld. United States v. Carpenter, 2016 WL
1445183 (6th Cir. 2016)
Detector dog sniff in
common hallway violates Jardines
A confidential informant told detectives about drug dealing
at an apartment building. The informant said that the dealer drove a black
Cadillac Escalade. A detective met with the property manager and obtained
consent for a detector dog sniff in the common areas of the building. The
manager allowed the detective and a drug detector dog handler and his dog to
enter the locked underground parking area.
The Escalade was parked in the underground garage in the
space for apartment 204. The dog showed a change of behavior at the Escalade. The
detector dog team then conducted a sniff of the common hallways. The dog
initially showed interest at the door of apartment 208. Upon a second sniff,
the dog gave a final positive response at the threshold of apartment 204.
Based on this information, detectives obtained a search
warrant for apartment 204. During the search, detectives located cocaine,
heroin and marijuana in apartment 204. Whitaker was the sole occupant at the
time the warrant was executed and he admitted he lived there.
Whitaker challenged the search warrant, relying on Florida v. Jardines (133 S.Ct. 1409
(2013)), in which the Supreme Court held that using a detector dog to
investigate a home and its immediate surroundings constituted a search under
the Fourth Amendment. The majority opinion in Jardines reached its decision on the express ground that entry onto
the home’s curtilage with a detector dog constituted a trespass. Whitaker not
only argued that the investigators had trespassed on his curtilage, but he also
claimed a basic intrusion on his privacy interests.
In Whitaker’s case, the court held that the Jardines curtilage analysis applied,
noting that “Whitaker’s lack of a right to exclude did not mean he had no right
to expect certain norms of behavior in his apartment hallway. ... [T]he fact
that a police officer might lawfully walk by and hear loud voices from inside
an apartment does not mean he could put a stethoscope to the door to listen to
all that is happening inside. … This means that because other residents might
bring their dogs through the hallway does not mean the police can park a
sophisticated drug-sniffing dog outside an apartment door, at least without a
Whitaker cited to Justice Kagan’s concurring opinion in Jardines, in which she was joined by two
other justices. Justice Kagan opined that using a “super-sensitive instrument”
such as a detector dog was analogous to use of an infrared radar heat detection
device held to be a search in Kyllo v.
United States (533 U.S. 27 (2001)). The Court of Appeals agreed with
Whitaker and applied Justice Kagan’s privacy interest analysis to the use of
the detector dog.
decision is significant because it is the first federal appellate court to
apply the Jardines ruling to the
common area of an apartment building and
because the appellate court followed the analysis in the concurring opinion of
only three Supreme Court justices. Some state courts have followed a similar
path, while others have disagreed that there is either a privacy interest in the
smells seeping from an apartment into a common hallway or a curtilage
violation. The Whitaker decision
suggests that we will see this argument raised more often in the future. United States v. Whitaker, 2016 WL
1426484 (7th Cir. 2016)
“cut and paste” when preparing a warrant
Every investigator does it: Preparing a search warrant, you
include some paragraphs recycled from a previous warrant. For some of us, that
meant pecking at a typewriter while copying from an old carbon copy. Today, it’s
cut and paste from a Word file. Shortcuts are great—unless they short-circuit
the admissibility of evidence.
Wheeler was a headmaster at a private school. As a young
teacher at another school, he lived with a family that boarded students. Wheeler
sexually abused some of the boys. Years later, after the Jerry Sandusky story
became public, one young man decided to tell his brothers about being abused by
Wheeler when they were younger. One brother shared that Wheeler also abused
The brothers wrote to Wheeler, confronting him about the
abuse. Wheeler responded. One victim took the correspondence to police. A
witness-tampering investigation ensued. Investigators obtained search warrants
for Wheeler’s home, office and car.
When they drafted the affidavits and warrants, the
investigators cut and pasted from a form child pornography warrant. Many child
pornography warrants describe how suspects hoard illegal images for many years,
thus justifying a broad temporal range for the search. The investigators copied
language that did not restrict them to searching for evidence limited to the relevant
time frame of the suspected witness tampering.
The court described the warrants as “virtual copies of an
off-the-shelf warrant for child pornography” and went on to say that “the
challenged warrants covered Wheeler's entire digital universe and essentially
had no limitations.” Pursuant to the warrants, investigators searched an Apple computer,
even though they knew the particular computer was not in use during the period
of the alleged witness tampering. The court observed that the Apple computer “logically
could not have contained material created or recorded during the relevant time
These flaws—stemming directly from the cut-and-paste
language—led the court to hold that the warrants were unconstitutional general
warrants. If anything underlies the Fourth Amendment, especially its
particularity requirement, it is the history of abusive searches under general
warrants, both in England and the American colonies.
In Riley v. California
(––– U.S. ––––, 134 S.Ct. 2473 (2014)), the U.S. Supreme Court held that an
arrestee’s mobile phone could not be searched under the search-incident-to-arrest
exception to the warrant requirement. Citing Riley, the court in the Wheeler
decision described the rigorous requirement to particularly describe the places
or things to be searched when searching digital media: “Warrants directed to
digital information present unique challenges in satisfying the particularity
requirement, given the unprecedented volume of private information stored on
devices containing such data.” The broad language contained in the Wheeler warrants ostensibly permitted a
search for “child pornography to medical records to consumer information to tax
returns. In short, they permitted the species of wide-ranging, exploratory
searches the Framers intended to prohibit.”
decision doesn’t mean that investigators can never cut and paste language from
other warrants. But it does remind us to think beyond whether there is probable
cause to search and to remember another critical component of the Fourth
Amendment, that of “particularly describing the place to be searched, and the
persons or things to be seized.” Wheeler
v. State, 2016 WL 825395 (Del. 2016)
Trespassing” signs didn’t bar efforts to knock-and-talk
Investigators received several tips that Carloss, a
previously convicted felon, was possibly holding a machine gun and was selling
methamphetamine from his home. Two investigators went to Carloss’ home. Four
signs were posted around the home: a “No Trespassing” sign on a three-foot-high
post by the driveway, “Private Property No Trespassing,” nailed to a tree, and signs
on a wooden pole in the front yard and on the front door of the house, both
stating “Posted Private Property Hunting, Fishing, Trapping or Trespassing for
Any Purpose Is Strictly Forbidden Violators Will Be Prosecuted.”
The investigators parked in the driveway and knocked on the
front door. No one answered, though they could hear movement in the house. A
short time later, Heather Wilson came out a side door. Wilson told the
investigators that Carloss, Earnest Dry, and another woman were inside.
Carloss came outside and the investigators explained that
they had heard that Carloss might have a gun. Carloss said he knew that he
could not be around ammunition due to his conviction status. Investigators
asked to look around the house. Carloss said that he rented a room in the house
and that he’d have to get Dry to give permission. When Carloss went into the
house to talk to Dry, the investigators asked to accompany Carloss. He agreed.
The investigators saw white powder and drug paraphernalia in
the mud room (a room Carloss claimed as his) on the way in. They asked Dry for
consent to search the house. Dry called his attorney and subsequently denied
Based on the paraphernalia and white powder, the
investigators obtained a search warrant. During the search pursuant to that
warrant, officers found “multiple methamphetamine labs” and lab components, a
loaded shotgun, two blasting caps, ammunition and other drug paraphernalia.
Carloss claimed that the officers violated the Fourth
Amendment by going to the front door and knocking because the property was
posted with “no trespassing” signs.
In a split decision, the court held that the investigators
did not violate the Fourth Amendment by walking up to the door and knocking. The
court noted that a pizza delivery driver or mail carrier would typically walk
right past the signs: “Those signs would not have conveyed to an objective
officer, or member of the public, that he could not walk up to the porch and
knock on the front door and attempt to contact the occupants.”
Though the front porch is typically considered to be within
the curtilage of a home, the court distinguished walking up to the front door
and taking a drug detector dog to the front door as happened in Florida v. Jardines (133 S.Ct. 1409
(2013)). The Jardines court held that
officers violated the Fourth Amendment by intruding on a home’s front porch, a
“classic exemplar” of curtilage, with a detector dog sniffing for the odors of
controlled substance. However, the investigators in this case were merely
seeking to speak with Carloss, not trying to collect evidence of what was
occurring inside the home.
The dissent argued that the sign posted “smack in the middle
of the front door” gave notice to the whole world forbidding trespassing for
any reason. United States v. Carloss,
2016 WL 929663 (10th Cir. 2016)
or open field? Vantage point matters to the Fourth Amendment
Investigators received an anonymous tip that Dixon was
making methamphetamine in his home. When they went to investigate, they spoke
with Dixon’s mother, who told them that Dixon lived in a nearby trailer through
the woods. The investigators drove down a nearby gravel road, passed at least
two more residences, and located Dixon's trailer at the end of the road.
They noted several signs of methamphetamine production at
Dixon’s trailer, including an open fire near the front door that smelled like
burning plastic and windows covered from the inside. The investigators approached
the front door, intending to knock-and-talk, but before they reached it, Dixon
came out of the trailer and met them in front of the porch. Dixon declined to
allow the investigators to enter the trailer.
As one investigator spoke with Dixon, the other walked
around the side of the trailer in an area of tall weeds and grass at the edge
of the woods. The investigator saw two bottles that appeared to be a one-step methamphetamine
process. He could seek smoke coming from the back door of the trailer and he
smelled odors consistent with methamphetamine production. The investigator
testified that he stayed outside the curtilage, off the mowed portion of the
vegetation, standing in an area used for dumping trash.
The investigators conducted a protective sweep and ordered
the occupants outside. During the sweep the investigators saw other
methamphetamine processes underway. They obtained a search warrant and called
for a properly equipped search team.
The core issue before the court: whether the investigator
was standing within the curtilage, which usually constitutes a Fourth Amendment
intrusion, or whether he was in an “open field” when he saw the methamphetamine
process. The court of appeals reversed Dixon’s conviction for manufacturing
methamphetamine, holding that the investigator intruded upon the curtilage
prior to seeing the methamphetamine labs at the back of the trailer. The
Kentucky Supreme Court disagreed with the curtilage analysis, and reversed the
intermediate appellate court decision.
The court’s analysis reminds officers of the factors used to
distinguish between open fields and curtilage. Though backyards are almost
always treated as part of the curtilage, the court stated that the lower court
put too much emphasis on proximity and did not sufficiently examine other
factors in the analysis of curtilage.
In United States v.
Dunn (480 U.S. 294 (1987)), the U.S. Supreme Court described four factors
to consider when determining whether an area falls within the curtilage:
The proximity of the area to the home
Whether the area is included within an enclosure
surrounding the home
The occupant’s uses for the area
The steps taken to protect the area from
observation by passersby
There was no fence or other barrier surrounding Dixon’s
trailer. The investigator was standing in tall, uncut weeds and grass where
piles of household trash had been dumped. Nothing suggested that Dixon had
taken any steps to shield the back door and back area from the view of
passersby. In this case, the
investigator was careful to stay outside the area that Dixon, or anyone else,
could reasonably claim as part of the living space (curtilage). The
investigators’ caution paid off with an abundance of admissible evidence. Commonwealth v. Dixon, 2016 WL 673543
of person standing inside threshold violates Fourth Amendment
Officers went to Allen’s apartment intending to arrest him
for an alleged assault reported several days earlier. The officers knocked on
Allen’s door. Allen’s apartment was located on the upper floors of a
three-story building. The front door to his apartment was on the street level.
The other tenants did not share the entrance, the hallway or the staircase to
Allen heard the officers knock and he looked out from the
second floor. The officers requested that Allen come down to speak with him. Allen
complied, opening the door to his apartment and speaking with the officers
while remaining “inside the threshold.” The officers stood outside. Allen
denied involvement with the alleged assault. The officers told him that he
would need to come to the police station to be processed. In other words, he
was under arrest.
Allen asked whether he could retrieve his shoes and inform
his daughter, who was upstairs in the apartment, that he would be leaving with
the officers. The officers replied that he could not return upstairs unless
they accompanied him, which they did. Upstairs, Allen emptied his pockets,
revealing several bags of marijuana. The officers later obtained a warrant to
search the apartment and found a gun and drug paraphernalia. Allen was indicted
on a federal gun charge.
Though the officers were standing outside the threshold,
Allen asserted that he was arrested inside his home without a warrant. The
question before the court was whether the location of the arrestee or the
location of the officers is the critical issue in determining where the arrest
occurs. If the arrest is not supported by a warrant or exigent circumstances, it
potentially violates the Fourth Amendment and may result in suppression of
evidence stemming from the arrest.
In Payton v. New York
(445 U.S. 573 (U.S. 1980)), the Supreme Court held that arrests inside a home
normally require a warrant. The prosecution claimed that even though Allen’s
arrest happened inside the threshold of his home, the officers did not violate
the Fourth Amendment because they made the arrest without actually crossing the
threshold themselves. Courts have taken different positions on what determines
the legality of the arrest: the arrestee’s location at the time of arrest or
whether the police cross the threshold. In assessing the validity of the
arrest, some courts have asked whether police entered “constructively” or by
In this case, the court held that Allen’s arrest was
unlawful and ordered suppression of the evidence: “Where law enforcement
officers have summoned a suspect to the door of his home, and he remains inside
the home’s confines, they may not effect a warrantless ‘across the threshold’
arrest in the absence of exigent circumstances.” In response to an argument
that Allen was still free to close the door on the officers and walk away, the
court noted, “it is inconceivable that the officers would at that point have
shrugged their shoulders and turned away.”
This decision is yet another reminder of the high level of
Fourth Amendment protection for a home and the general necessity of securing an
arrest warrant to enter and arrest a resident. And this is hardly the first
time the courts have moved to extend Fourth Amendment protection to personal
residences. Consider Florida v. Jardines
(133 S.Ct. 1409 (2013)), in which the court stated, “When it comes to the
Fourth Amendment, the home is first among equals.” And in Silverman v. United States (365 U.S. 505 (1961)), the court noted
that at the Fourth Amendment’s “very core stands the right of a man to retreat
into his home and there be free from unreasonable governmental intrusion.” United States v. Allen, 2016 WL 362570
(2nd Cir. 2016)
pole camera surveillance revealed no more than live surveillance
Houston and his brother live on a family farm, which comprises
three adjacent properties. Houston resides in a red brick building, his brother
in a trailer, and Houston’s adult daughter in a farmhouse. The farm is
decorated with anti-government billboards and hand-painted signs, some of which
depict the dead bodies of a murdered law enforcement officer and his companion.
Houston and his brother were tried, but acquitted, for their murders. While the
farm is not enclosed by fencing, blue tarps block views of the trailer doors
and vegetation blocks street views of Houston’s house.
Agents tried drive-by surveillance of the farm, but their
vehicles “stuck out like a sore thumb.” The agents asked a utility company to install
a surveillance camera on a public utility pole located roughly 200 yards from the
trailer. The agents monitored the pole camera—without a warrant—for
approximately 10 weeks. When the agents learned of a new court decision
expressing “some misgivings” over long-term video surveillance, they obtained a
warrant for continued use of the pole camera.
Houston was arrested and charged as felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1), based primarily on pole camera
surveillance video of Houston carrying and shooting guns on the farm. A search
of the farm yielded 25 guns attributable to Houston and his brother. Houston
asked the court to suppress evidence obtained through video surveillance.
The court denied Houston’s request for suppression: “There
is no Fourth Amendment violation, because Houston had no reasonable expectation
of privacy in video footage recorded by a camera that was located on top of a
public utility pole and that captured the same views enjoyed by passersby on
public roads.” Though it might have been impractical for an agent to sit atop
the pole for 10 weeks, pretending to be a construction worker, the camera saw
nothing that was not open to public view of nosy neighbors passing by. “It is
only the possibility that a member of the public may observe activity from a
public vantage point—not the actual practicability of law enforcement’s doing
so without technology—that is relevant for Fourth Amendment purposes,” the
One judge concurred in a separate opinion, expressing
reservations that 24/7 video surveillance raises privacy concerns because it
has the potential to reveal detailed information about the target’s familial,
political, professional, religious and sexual associations. The concurring
opinion relies on the Supreme Court’s GPS tracking device decision in United States v. Jones (132 S.Ct. 945 (2012)).
In that ruling, the judges wrote that long-term non-human surreptitious
surveillance “is worrisome because it evades the ordinary checks that constrain
abusive law enforcement practices: limited police resources and community
hostility.” United States v. Houston,
2016 WL 482210 (6th Cir. 2016)
spatter, bloody victim justify community caretaking search
Officers were sent on a medical call and found blood “all
over the door” of the home. Officers knocked and entered and met Antony
Matalonis, who appeared to have been beaten. Antony was “covered in blood” on
his right side and was highly intoxicated. He told officers that he had been
beaten by four people outside of a bar.
Officers saw a blood trail in the snow and followed it to a
home. The officers saw blood on the screen door and the entry door of that
home. They heard two bangs inside the house and the sound of items being moved
around. The officers knocked and Charles Matalonis, Antony’s brother, answered
the door. He was shirtless and out of breath, but did not have any blood on
him. Charles admitted that he and his brother had fought.
The officers told Charles that they wanted to come inside
and check for any other injured persons. Charles allowed them to enter. One
officer conducted a security sweep while another spoke with Charles. After a
few minutes, the officer told his colleague that there was marijuana and
paraphernalia in the home and a locked door with blood spatter. The officer
said there was a strong odor of marijuana coming through the door and that he
heard a fan blowing inside the room.
When the officers asked about the room, Charles’ “breathing
started becoming faster” and he “looked nervous.” Charles told the officers
that no one was in the room. He refused to open the door, stating that it was
his security room and contained cameras. When the officers told him that they
would kick in the door, Charles told them where to find the key. The officers
found a large marijuana plant and complex growing system in the room.
Charles asserted that the warrantless search of the room was
unlawful. The prosecution countered that the search was justified under the
community caretaking exception because police had an objectively reasonable
public safety reason to search.
A split court held that the officers were engaged in a “bona
fide community caretaker function” when they searched the house and the locked
room, even though the officers may have subjectively intended to find drug evidence:
“The potential for the presence of marijuana in the locked room did not render
it impossible that there were also injured parties in that room.”
The majority view states that an objectively valid community
caretaking purpose will justify a Fourth Amendment intrusion even if there are
strong reasons to search for evidence of a crime. The dissent asserted that the
court was embracing an “ever-expanding version of the exception” that moves the
community caretaking doctrine toward becoming an “investigatory sword.”
Though the community caretaking doctrine is interpreted
somewhat distinctively in each state, officers should always carefully document
their public safety and community caretaking concerns during an investigation. State v. Matalonis, 2016 WL 514150 (Wis.
ill man dies after TASER® deployment
Ronald Armstrong had been diagnosed with paranoid
schizophrenia and bipolar mental illness. After he stopped taking his
medication, his sister persuaded him to self-admit to a hospital; however,
Armstrong left the emergency department prior to completing the admission
Armstrong’s sister described his behavior and diagnosis to
an emergency department doctor. The doctor began the process for an emergency
mental health commitment order, and hospital security called local police.
Responding police officers found Armstrong wandering in traffic at an
intersection near the hospital. An officer persuaded Armstrong to move out of
the road. Armstrong then started eating grass and dandelions, chewing on a
“gauze-like substance” and extinguishing cigarettes on his tongue.
The officers learned that the commitment order had been
completed and they immediately tried to take Armstrong into custody. His sister
stood nearby, asking Armstrong to go with the officers. Armstrong, a large man
(5’11”, 262 lbs.), wrapped himself around a sign post and held fast. The police
officers could not pry him from the post.
Only 30 seconds after telling Armstrong that they had a
commitment order, an officer warned Armstrong that he would use a TASER if
Armstrong did not submit. Armstrong did not heed the warning. The officer
deployed his TASER in touch mode (often known as “drive stun”) five times in
approximately two minutes. Armstrong still held fast.
Two hospital security guards joined the three police
officers in prying Armstrong from the post and placing him in handcuffs and leg
shackles. They placed him face down on the ground. A few moments later,
Armstrong’s sister noticed that Armstrong seemed unresponsive and she asked the
officers to check him. Armstrong had turned blue and he did not seem to be
breathing. He received immediate medical attention, but was pronounced dead a
short time later at the hospital.
Armstrong’s family sued alleging excessive force under
federal civil rights statutes (42 U.S.C. § 1983). The district court granted qualified immunity
to the officers. Qualified immunity protects officers who reasonably believe
that their actions were lawful under clearly established law. The court of
appeals upheld the grant of qualified immunity, but opined in lengthy dicta
about the proper use of a conducted energy device on what it deemed “an
out-numbered mentally ill individual who is a danger only to himself.” The
court further stated, “We intend this opinion to clarify when taser use amounts
to excessive force in, at least, some circumstances.”
The court of appeals opinion created no small stir regarding
the use of conducted energy devices, such as the TASER®. Unfortunately the appellate court did not seem
to heed the Supreme Court admonition to avoid “20/20 hindsight,” and did not
appreciate the risks of controlling a profoundly mentally ill person. The court
made little note that Armstrong was just feet from an intersection and passing
The court expressed concern that the officers applied the
conducted energy device after only 30 seconds of efforts to get Armstrong to
submit. Slowing a crisis situation down whenever possible almost always
produces a safer, less injurious and more effective result. The court stated
that physical resistance does not necessarily equate to a “risk of immediate
The court also emphasized that Armstrong was “stationary”
and offered only “non-violent resistance” when the officer applied the
conducted energy device as a pain compliance measure. Many law enforcement
trainers and experienced officers recognize the limits of pain compliance
techniques on a determined, mentally ill and/or chemically impaired
The court noted that although he was not complying with
officers’ demands, the “factual circumstances demonstrate little risk—Armstrong
was stationary, non-violent, and surrounded by people willing to help return
him to the Hospital.” The court relied on these facts to conclude that the use
of the conducted energy device was not reasonably necessary under the
circumstances to control Armstrong. The court also stressed that Armstrong had
not committed any crime. The severity of the offense is the initial factor for
consideration of the reasonableness of force under the Graham v. Connor analysis.
Agencies using the Lexipol Use of Force Policy already have
policy guidance that complies with the reasonableness assessment factors
focused on by the Armstrong court,
including guidance to consider:
Immediacy and severity of the threat to officers
The conduct of the individual being confronted,
as reasonably perceived by the officer at the time.
Officer/subject factors (e.g., age, size,
relative strength, skill level, injuries sustained, level of exhaustion or
fatigue, the number of officers available vs. subjects).
Individual’s mental state or capacity.
The availability of other options and their possible
Seriousness of the suspected offense or reason
for contact with the individual.
Potential for injury to officers, suspects and
Whether the individual appears to be resisting,
attempting to evade arrest by flight or is attacking the officer.
The risk and reasonably foreseeable consequences
The apparent need for immediate control of the
individual or a prompt resolution of the situation.
Whether the conduct of the individual being
confronted no longer reasonably appears to pose an imminent threat to the
officer or others.
opinion highlights the critical need for training officers to address officer
interaction with mentally ill and emotionally disturbed persons. Agencies
should refresh their officers’ training on using force to overcome non-violent
resistance and assessing the threat posed by such subjects. Training should
also include discussion of monitoring subjects after arrests involving force
Plaintiffs’ attorneys are advocating—and some courts
accepting—application of special scrutiny of force to control mentally ill and
emotionally disturbed persons. At least one court has gone so far as to apply
the Americans with Disabilities Act, requiring that officers make special
accommodation when arresting mentally ill persons (San Francisco v. Sheehan, 743 F.3d 1211 (9th Cir. 2014),
reversed, ––– U.S. ––––, 135 S.Ct.
1765, 191 L.Ed.2d 856 (2015)). We expect that mental health advocates will
continue to press for more restrictive force standards for mentally ill
The concurring judge agreed with the grant of qualified
immunity, but separated himself from his colleagues’ assessment of the
situation. He stressed, “This was a close case, the very kind of dispute in
which judicial hindsight should not displace the officers’ judgmental calls.”
Ironically, the concurring opinion highlighted the legally safe option of doing
nothing to help Armstrong in his moment of acute mental crisis: “Law
enforcement will learn soon enough that sins of omission are generally not
Law enforcement use-of-force trainers, particularly those in
the 4th Circuit, should carefully consider the Armstrong opinion in preparing officers to deal with mentally ill
and emotionally disturbed subjects who are “stationary and not violently
resisting.” Particular importance must be placed on the officer’s need to
articulate the risk of immediate danger that warranted application of
force. Armstrong v. Village of Pinehurst, ––– F.3d –––, 2016 WL 105386 (4th
qualified immunity for TASER use on man interfering with paramedics
Rick Kent was a house guest in his son’s (Michael Kent)
home. Michael Kent is a physician. Rick Kent suffered from many illnesses and
spent most of his time in bed in great pain.
He had executed a living will stating that he wanted no resuscitation
efforts at the time of death, and he had clearly expressed his wishes to his
wife and to his son. Michael Kent found
his father “unresponsive to any stimulus” but still with a pulse. Sometime later, Michael Kent determined that
his father had died.
Kent’s wife called the emergency dispatcher and paramedics
arrived about a 45 minutes after Kent determined that his father was dead. The paramedics insisted on attaching an
Automated External Defibrillator to attempt to resuscitate Rick Kent, as
required by their agency policy when a death was not witnessed by a hospice
nurse. Kent protested, becoming
increasingly agitated at the paramedics’ insistence on trying to resurrect his
The paramedics called sheriff’s deputies. Kent argued with the deputies when they
arrived and waived his hands in the air.
Kent was unarmed and had not made any moves to assault anyone. One deputy put her hand on her gun and told
Kent to calm down. The other deputy
warned Kent to stop interfering or he would be struck with a TASER®. Kent told the deputy to “go ahead.”
The deputy fired two probes into Kent and he fell. Kent complied with orders to place his hands
for handcuffing. He continued to ask whether
he was under arrest. After some time,
the deputies told him that he was not under arrest.
The paramedics proceeded with the Automated External
Defibrillator. They determined that Rick
Kent, dead nearly one hour by now, was without a pulse. They had, however, complied with their
Kent sued, alleging excessive force. The trial court denied qualified immunity for
the deputies, ruling that use of the TASER was objectively unreasonable and
that case law clearly established that the use of a TASER on a person who was
“not under arrest, posed no safety threat to officers or others, made no such
verbal threats, was not physically resistant, and may have actually shown
physical compliance, constituted excessive force.”
The court of appeals agreed that the deputies were not
entitled to qualified immunity. The
court held the TASER use was “objectively unreasonable” and violated law that
was clearly established three years before this incident. The first Graham
v. Connor factor, the severity of the crime, clearly weighed in Kent’s
favor. He had committed no crime and was
not under arrest.
The court held that the second factor, the threat posed to
officers or others, also tilted in favor of Kent. “While Kent may have prevented EMTs from
fulfilling their perceived duties,” he did not present a physical and immediate
safety threat. The court noted that Kent
had his hands up and his back against the wall when the deputy fired the TASER. Perhaps this factor might have favored the
deputies if there had been some conceivable chance of bringing his dead father
back to life with prompt medical attention.
Noting that the reasonableness of an officer’s use of a
TASER often turns on active resistance, the court also held in favor of Kent on
the final Graham v. Connor factor,
whether a subject is actively resisting arrest.
The deputies characterized Kent as “actively resisting arrest” because
he didn’t obey commands to calm down and he demonstrated “verbal hostility.” Kent admitted that he yelled at the
paramedics and deputies. The court
stated that “Kent never attempted to flee officers, and he never attempted to
prevent officers from handcuffing him.” All
agreed that he was verbally—though not physically—hostile.
Finally, the court reminded that the event happened within
Kent’s home, “one of the most sacred of spaces under the Fourth Amendment’s
protections.” The dissenting judge, who
would have granted qualified immunity to the deputies, observed that this was a
“close call,” and qualified immunity is intended “to give credit to officers’
judgment in ambiguous situations.” This
opinion reminds trainers and officers to carefully consider the Graham v. Connor force assessment
factors, being particularly cautious about using force when there is no active
resistance. Kent v. Oakland County, 2016 WL 66566 (6th Cir. 2016)
false confession may lead to malicious prosecution liability for investigators
Sanchez was arrested for burglary and sexual assault after an 8 year-old girl
reported that she had been assaulted by a man approximately 40 years-old, 190
pounds, with no tattoos, and with brown hair parted down the middle. Sanchez didn’t even come close to matching
the description (other than being the same gender and race). He was 18 years-old, 130 pounds, had
prominently displayed tattoos on both arms, and had buzz-cut red hair. Sanchez is developmentally disabled, with IQ
scores in the 60s and 70s. Sanchez
displays “noticeably unusual behavior.”
interrogating Sanchez were concerned about his possible intoxication because he
was “behaving unusually and experiencing difficulty answering questions.” Sanchez confessed to the burglary, but not
the sexual assault. He could not offer
any details about the burglary. Two
detectives asked Sanchez whether he was just saying what they wanted to
hear. One detective gave Sanchez a
patently false suggestion about how the crime was committed and Sanchez readily
agreed with the suggestion.
the court that his confession was false, explaining that he confessed only
because his disabilities prevented him from understanding the
interrogation. Medical testimony
supported the claim that he was unable to comprehend what was happening and the
court dismissed the charges. Sanchez was
released after 125 days in pretrial custody.
under 42 U.S.C. §1983, alleging that the detectives “used a confession that
they knew was untrue” in violation of the Fourth Amendment. The detectives asked the court to grant
qualified immunity, arguing that malicious prosecution claim may only be
brought against a prosecutor, not investigating officers, and noting that
multiple judges had found probable cause to hold Sanchez.
The court of appeals made quick work of the detectives’
theories. The court plainly stated that
officers—not just prosecutors—may be held liable for malicious prosecution (and
the ensuing wrongful detention that constitutes a Fourth Amendment seizure). The court stated “that the prohibition on
falsification or omission of evidence, knowingly or with reckless disregard for
the truth” was clearly established at the time of Sanchez’s false
confession. Sanchez v. Hartley, 2016 WL 106168 (10th Cir. 2016)
confession prompted by promises held inadmissible
Fingerprints on a newspaper found in the taxi van of a
murdered cab driver lead police to Jasso.
Investigation of Jasso and his associates prompted officers to interview
Perez some months after the murder.
During the interview, Perez repeatedly denied any knowledge of, or
involvement in, the crimes.
About 25 minutes into the interview, an investigator told
Perez, if he would “tell the truth and be honest,” then “we are not gonna
charge you with anything.” The
investigator also told Perez that he was either “a suspect that we are gonna
prosecute” or merely a witness.
The investigators falsely told Perez that they had
fingerprint and security camera video showing Perez’s involvement at the murder
scene. They told Perez that he would “go
home at the end of the day” and would eventually “chalk this up to a very scary
time in [his] life.”
The investigators did not detain Perez after the
interview. However, five months later,
Perez was charged with murder. Perez
asked the trial court to suppress his statements as involuntarily given. He claimed that he spoke only because of an
express or clearly implied promise of leniency or advantage to him. The prosecution claimed that Perez was
treated well by investigators and he was intelligent, rested and fed at the
time of his statements.
The trial court denied his motion to suppress his statements. The court of appeals reversed. Citing state and federal court precedent, the
court observed that a confession is invalid if it is prompted by an officer’s
express or clearly implied promise of leniency and the promise motivated the
suspect to make a statement. It did not
matter that Perez was smart or that he was rested and fed at the time of
The court’s focus was on the nature of promises made by the
investigators. Prosecutors argued that
Perez should have recognized that the promises meant that he would not be
charged “at that time” and that the final charging determination is always up
to a prosecutor. Nonetheless, the court
held, the investigators’ promises were “unqualified.” The court held that “no reasonable person
would understand [the] unqualified promise not to charge Perez as meaning” that
he would not be charged “on the day of the interview.”
The court reversed Perez’s conviction and vacated his
sentence. If he is retried, the
prosecution will be barred from using any of his statements given during the
interview. People v. Perez, 2016 WL 104712 (Cal. Ct. App. 2016)
cell phone leads to 50 years in prison
As the 11th Circuit Court noted, Johnson and
Sparks’ day did not start well for them. During a shopping trip to Walmart,
they accidentally left their cell phone behind. To make matters worse, the
phone stored hundreds of images and videos of pornography made using a
four-year-old child. Johnson was already a registered sex offender.
A Walmart employee found the phone and spoke with Sparks
about returning it. After that conversation, the employee looked at pictures on
the phone in an effort to identify Sparks. When she saw “questionable” images,
she showed them to her fiancé. He took the phone to the police. Although the
Walmart employee had agreed to meet Sparks to return the phone, she did not go
to the meeting. Though Sparks continued to send text messages asking for the
phone to be returned, neither Johnson nor Sparks complained to Walmart about
the unreturned phone, nor did they report the loss to the police. Instead,
Johnson filed an insurance claim and bought a new phone.
Desk officers viewed the images and a video and booked the
phone into evidence for follow-up by a detective. Due to travel and training
absences of the agency’s sole child pornography investigator, 23 days passed
between when the phone was turned in and when a search warrant was obtained for
the phone. The search of the phone led to a search warrant for the Johnson and
Sparks residence. Nearly 2,000 images and more than 100 videos containing child
pornography were seized. Johnson was sentenced to 50 years and Sparks to 30
Johnson and Sparks appealed, claiming that the 23-day delay
in obtaining the warrant was unreasonable and violated the Fourth Amendment. The
reasonableness requirement of the Fourth Amendment includes a “diligence
requirement” that officers act quickly to secure a warrant in cases like these.
Johnson and Sparks cited a case in which the court granted a suppression motion
when a federal agent waited three weeks to obtain a warrant to search a laptop
he had seized from a suspect (United
States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009)). The Court
sidestepped the claim of unreasonable delay, holding that “Johnson and Sparks
made a voluntary and calculated decision over a period of three days to cease
all efforts to reclaim their phone.”
Johnson and Sparks also argued that the investigator
exceeded the scope of the private party search conducted by the Walmart
employee and her fiancé. Police may—without a warrant—search property already
searched by a private party as long the police do not exceed the scope of the
private search. The police viewed a video on the phone that the finders had not
The Court agreed with Johnson and Sparks that the police
exceeded the scope of the private search. Notwithstanding, the Court did not
find suppression to be appropriate because the affidavit for the search
warrants for the phone and the home made no reference to the private search. United States v. Johnson, 2015 WL
7730996 (11th Cir. 2015)
seizure of serial killer’s trash does not require suppression
John E. Robinson, Sr., was one of the most prolific serial
killers in Kansas and Missouri, with eight known victims. His trial in Kansas
was the longest in the state’s history. The Kansas Supreme Court recently
upheld his death sentence (the first death sentence sustained by the court in
over 20 years) in one of the longest judicial opinions of the year, at 419
pages. Robinson fought his conviction on every conceivable issue, including one
that is often overlooked by officers helping outside of their jurisdiction.
Shortly after beginning a missing person investigation,
police focused on Robinson. The investigators enlisted the assistance of a
garbage hauler in a neighboring city to help them collect and search Robinson’s
curbside trash cans. Robinson argued that the officers’ warrantless search
beyond their territorial jurisdiction should result in suppression of evidence
seized from the trash.
Officers may misinterpret statutes granting statewide police
certification or even limited statewide police authority. In many states,
police authority is limited to the employing entity’s territorial jurisdiction,
with certain exceptions. The trial court found that the officers were not
acting “under the color of office” and therefore the trash searches “fell
beyond the scope” of the statute limiting their authority.
The Kansas Supreme Court disagreed, holding that the officers’
“planning and coordination with the private trash contractor,” for trash pulls spanning
several weeks, led to the conclusion that the officers were not acting as
private citizens. Instead, they exercised “powers as law enforcement officers.”
Having found a clear violation of the statute limiting
police authority, the Court considered the proper remedy. The Court noted that
the legislative intent behind the limits on police officers’ authority is to promote
the autonomy of neighboring cities and counties. Such limits are not intended
to give a defendant a substantive right that officers will exercise authority
only in their employing jurisdiction. The Court held that a statutory
violation—as contrasted with a violation of state or federal constitutions—does
not necessarily lead to application of the exclusionary rule unless the
legislature has enacted such a compulsory remedy.
Other courts have affirmed the suppression of evidence where
officers exceeded their territorial jurisdiction in the course of an arrest, a
controlled drug buy or execution of a search warrant. Even so, virtually all
states provide some exceptions to limitations on authority for serious crimes
committed in the officer’s presence and for emergencies. Though each case turns
on its peculiar facts, in many cases officers can easily forestall the argument
that they exceeded their jurisdiction by invoking the assistance of local
officers. State v. Robinson, 2015 WL
6829686 (Kan. 2015)
seizure of suspect holding a gun and walking away from officer
An officer saw Stover and his companion parked in an apartment
parking lot in the early morning hours. When he drove by an hour later, the
officer saw they were still there. The late hour and high crime rate in the
area prompted the officer to investigate. He pulled behind Stover, effectively
blocking him, and turned on his overhead lights. He also shone a spotlight on
the driver side.
Stover got out and started to walk toward the front of his car.
The officer commanded him to get back in the car. Stover continued to walk
quickly. The officer ran up to the car in time to see Stover toss a gun away. The
officer pointed his gun at Stover and again commanded him to get back into the
car. Stover was arrested and convicted for being a felon in possession of a
Stover claimed that he was seized without reasonable
suspicion at the moment that the officer blocked his car and turned on his
lights. Therefore, he asserted, the gun should have not been admitted into
evidence. The court disagreed that he was seized at that moment and held that
the gun was properly admitted because Stover abandoned the gun by tossing it
away before he was seized.
The court held that Stover did not submit to the “show of
authority that had attempted to put him in a seizure” until the officer ran up
to him—gun drawn—and “actually exercised control over” Stover. In United States v. Mendenhall (446 U.S.
544 (1980)), the Supreme Court laid out a test to determine whether a person is
“seized” for purposes of the Fourth Amendment. The Court stated that a seizure
occurs “only if, in view of all of the circumstances surrounding the incident,
a reasonable person would have believed that he was not free to leave.” In California v. Hodari D. (499 U.S. 621
(1991)), the Court explained an officer’s command stop or to get back into a
car or some similar “show of authority” does not, alone, create a seizure
unless and until the suspect submits to the officer.
Courts have discussed various factors that would communicate
to a reasonable person that he is not free to leave. Actions such as “activating
a siren or flashers,” “commanding a person to halt” or “operating the police
car in an aggressive manner to block a person,” may lead a court to determine
that a person was actually seized. Stover claimed that he signaled to police
that he was acquiescing. The court countered that Stover “left the car,
disobeyed a police order to return to the car, and instead walked away from the
police with a loaded gun in his hand.” That showed the officer that Stover was
not submitting to authority. United
States v. Stover, 2015 WL 9259062 (4th Cir. 2015)
intrusion into curtilage results in unlawful search
Acting on a tip that Burston had drugs in his apartment, an
officer and his detector dog went to the eight-unit apartment building. The
handler allowed the dog off-leash to sniff alongside an exterior wall of four
apartments, including Burston’s. The handler stayed on the sidewalk. Each apartment
had a private entrance and window. The window was approximately six feet from
the walkway leading from the public sidewalk to Burston’s front door. The dog
gave a positive final response to the odor of drugs 6 to 10 inches from
Burston's apartment window.
Officers obtained a search warrant based on the sniff and
Burston’s criminal history. When the officers searched Burston’s apartment,
they found four rifles, ammunition and marijuana residue. Burston was convicted
of being a felon in possession of a firearm. Burston appealed, claiming that the evidence from the search
should have been excluded because the dog sniff was an illegal warrantless
search on the curtilage of his apartment. The appellate court held that the
search was unlawful. The court cited the Supreme Court decision in Florida v. Jardines (133 S.Ct. 1409 (2013)),
in which the Court explained, “We therefore regard the area ‘immediately
surrounding and associated with the home’—what our cases call the curtilage—as
‘part of the home itself for Fourth Amendment purposes.’”
Several factors led the court to find that the sniff
occurred within the Fourth Amendment-protected curtilage zone. First, the area
sniffed was only 6 to 10 inches from Burston’s apartment. The court stated that
the lawn in front of the apartment window is normally considered as curtilage. Second,
Burston used the area between the front door and window as outdoor living
space; he had a barbeque grill set up there. As such, it couldn’t be considered
part of the apartment building common area. Third, there was a bush in front of
the window, which partially covered the window. The court speculated that the bush
was likely there to block viewing into the window by passersby. Burston
argued that determining whether the curtilage was improperly breached should
focus on the location of the dog, not the handler, during the dog sniff. Detector
dog handlers often quip, “My dog has a right to be anywhere I can be.” Whether
or not that is true in all circumstances, the court observed that the invasion
of the curtilage is assessed by where the dog went and not where the handler stood.
The handler must only allow the dog to travel where the handler has a right to
be. United States v. Burston, 806
F.3d 1123 (8th Cir. 2015)
qualified immunity for knock-and-announce violation after pursuit
An officer saw two riders on ATVs traveling the wrong way on
a closed area of a highway. When the officer signaled to the riders to stop,
they fled through a field. One rider, Richard Trent, went inside a home known
to the officer to be owned by a family hostile to the police. The officer
followed Trent into the home without knocking or announcing his presence.
When backup officers arrived, the officer met them outside
and he and two other officers again entered the home without knocking or
announcing their presence. They searched the home and found Trent. The
homeowner and his wife, Trent’s parents, were allegedly sleeping before the
officers entered. Trent’s parents claimed that Trent was a “special child” and
that he could not recognize the wrongfulness of fleeing from the police.
The homeowner sued, alleging unlawful entry by the officers.
The trial court refused to extend qualified immunity to the defendant officers.
The court of appeals upheld the lower court, holding that the officers did not
make a case for a reasonable belief that knocking and announcing would have
been “dangerous or futile, or that it would inhibit the effective investigation
of the crime by, for example, allowing the destruction of evidence.” The
knock-and-announce rule protects all of the home’s residents, not just the
rider who fled from the officer.
The court of appeals went on: “Hot pursuit itself may give
the officer the authority to be inside a home without a warrant, but it does
not have any bearing on the constitutionality of the manner in which he enters
the home.” The court held that any reasonable officer would know this and thus
the officers were not entitled to qualified immunity.
The entire court declined to review the matter en banc. Several judges dissented. The
dissent noted that “the public safety consequences of this holding for the
hapless officer and the residential occupants seem obviously adverse.” However,
the author of the underlying decision countered: “Simply put, neither the
Supreme Court nor this court has recognized a per se ‘hot pursuit' exception to
the knock-and-announce rule.” The majority opined that the existing rule
adequately protects officers. Had the first officer knocked, demanded entry and
announced that he was in hot pursuit of a fleeing suspect, the lower court
likely would have extended qualified immunity and dismissed the lawsuit against
the officers. Trent v. Wade, 2015 WL
5432089 (5th Cir. 2015)
tests of officers with no reasonable suspicion allowed for exclusion purposes
A police officer was found dead from a gunshot to the head.
A shotgun lay across his chest and another gun was at his feet. Over 100
officers and others entered the scene shortly after discovery of the body. The
investigators requested DNA samples for purposes of suspect exclusion. A
handful of officers refused.
Investigators confirmed that the refusing officers were
present on the scene. The investigators tried to persuade the officers to
cooperate with the investigation into the officer’s death, promising that the
DNA profile would not be entered into the Combined DNA Index System (CODIS)
database or used for any purpose other than exclusion. The officers were not
considered suspects. When the officers still refused to cooperate with the
homicide investigators, the investigators obtained court orders for the
officers to submit to DNA testing.
The refusing officers then sued, alleging that the homicide
investigators violated their Fourth Amendment rights because there was no
individualized suspicion that any of them had committed a crime. The court of
appeals held that the Fourth Amendment was satisfied by the objective of
excluding the officers as suspects: “Excluding public safety personnel as the
source of DNA would plainly ‘aid in' the conviction of an eventual criminal
defendant, by negating any contention at trial that police had contaminated the
relevant evidence.” The court based this holding, in part, on the very limited
intrusion presented by a buccal swab and DNA test that would not be used for
other purposes. This limited intrusion stood in sharp contrast to the critical
investigative need of eliminating the officers and resolving issues of DNA contamination
at the scene. Bill v. Brewer, 2015 WL
5090744 (9th Cir. 2015)
shackling of prisoners in court not allowed
The chief judge of the Southern District of California authorized
a policy of restraining defendants in leg shackles and handcuffs connected to a
belly band for most non-jury hearings. The Marshal requested the restraint
authority based on understaffing and incidents of prisoners attacking each
other. In United States v.
Howard (480 F.3d 1005 (9th Cir. 2007)), the court upheld a general
leg shackling policy at the Los Angeles federal courthouse, holding that the
policy was reasonably related to the goal of providing security during court
The court of appeals invalidated the shackling policy. The
court distinguished its prior holding in Howard
because that order did not involve cuffing to a belly band. Moreover, the
courthouse involved in Howard was an
older facility “ill-suited to accommodate modern security concerns.” Use of
belly bands and handcuffs, coupled with leg shackles, presented a “greater risk
of impeding the ability of defendants to participate in their defense and
communicate with their counsel.”
Though the belly chains and handcuffs offer greater
protection for judges and court staff, the court noted that they may be “a
greater affront to the dignity and decorum of the proceedings.” Consistent with
long-standing Lexipol policy, custody staff may still request authority for
shackling of prisoners when individual security risks are present or there is
some demonstrated institutional need. United
States v. Sanchez-Gomez, 2015 WL 5010701 (9th Cir. 2015)
Warrant required for cell site location
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.)
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.
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)).
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
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
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.
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.
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.
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.”
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)).
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.”
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)).
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
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
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.”
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).
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).
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.
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
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.
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
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.
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.
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:
is a dangerous suspect.
must enter through a dangerous entry point.
must visually check whether innocent individuals are in the path of the device.
must visually inspect the area where the device will be used.
deploying such a device must carry a fire extinguisher.
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
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
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)
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
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
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).
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
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.
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
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
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)
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
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)
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
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
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)
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
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)
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
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.
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.
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
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)
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
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)
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
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
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.
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)
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)
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
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
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.
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.
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.
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.
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.
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.
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.
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).
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.”
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.
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.
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
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.
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.
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.
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
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.
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.
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
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).
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.
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.
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
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.
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.
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
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.
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.
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.
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
Asking officer to delete “naked pictures” meant
consent to search phone images
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.
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.
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.
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
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.
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.
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.
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
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
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.
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.
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.
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
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.
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.
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
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).
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
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.
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
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.
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
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
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.
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.
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.
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:
of the questioning
of the questioning
made during the questioning
or absence of physical restraints during the questioning
of the suspect at the end of questioning