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Xiphos (pronounced zee-phose) is a biweekly summary of recent court decisions about criminal procedure and other subjects important to law enforcement officers and administrators. The xiphos is a short double-edged sword used essentially as a backup weapon by ancient Greek warriors. This service is provided at no cost. To subscribe, send a message to Xiphos-subscribe@KenWallentine.com. To unsubscribe, send a message to Xiphos-unsubscribe@KenWallentine.com.
Supreme Court rules that Miranda warnings need not be given in a particular form
Officers looking for Powell in connection with a robbery went to his girlfriend’s apartment and saw Powell coming out of a bedroom. They arrested Powell and searched the bedroom, finding a gun. At the police station, officers read the following warning statement: "You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview." Powell agreed to talk to the officers. He told the officers that he bought the gun for $150 from a street source because he needed protection.
The Florida Supreme Court held that the warning was inadequate, because Powell “was not clearly informed of his right to have counsel present during questioning.” The United States Supreme Court reversed the Florida court. Relying on an earlier decision, Duckworth v. Eagan, 492 U.S. 195 (1989), in which the Supreme Court held that there was no magic language required to give a Miranda warning, the Court held that, “in combination, the two warnings reasonably conveyed Powell's right to have an attorney present, not only at the outset of interrogation, but at all times.” The Court applied the reasonable person standard. “A reasonable suspect in a custodial setting who has just been read his rights, we believe, would not come to the counterintuitive conclusion that he is obligated, or allowed, to hop in and out of the holding area to seek his attorney's advice.”
The landmark Miranda decision required that officers administer the following warnings prior to custodial interrogation: (1) the person has a right to remain silent, (2) that anything the person says can be used against him in a court of law, (3) that the person has the right to the presence of an attorney, and (4) that if the person cannot afford an attorney one will be appointed for him prior to any questioning, if he desires. In Powell, the Court stated: “In determining whether police officers adequately conveyed the four warnings, we have said, reviewing courts are not required to examine the works employed as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda.” Florida v. Powell, --- S.Ct. ----, 2010 WL 605603 (U.S. 2010).
Court limits Gant; upholds admission of weapons from locked briefcase
An officer stopped Vinton for traffic violations (speeding and window tint). When the officer approached Vinton’s car, he saw a large knife in a sheath on the back seat, easily within Vinton’s reach. The officer knew that there had been a stabbing murder in the area in the prior 24 hours. The officer took the knife and placed it out of Vinton’s reach. The officer asked Vinton whether there were other weapons in the car. The officer wrote a citation and told Vinton that he intended to check the car for other weapons. He asked Vinton whether there were other weapons in the car. Vinton initially denied that there were other weapons, but then said “not that I know of.” The officer handcuffed Vinton, told him that he was not under arrest and conducted a protective search of the car. In Michigan v. Long, 463 U.S. 1032 (1983), the Supreme Court authorized “vehicle frisks” and ruled that an officer may search a vehicle's passenger compartment for weapons during a traffic stop if the officer has a reasonable suspicion that the driver is dangerous and may reach weapons inside the car. The officer found a butterfly knife, two cans of a chemical weapon and a locked briefcase. Vinton denied that the briefcase was his and said that he didn’t know why it was in his car. The officer pried the briefcase open and found ecstasy, another knife, brass knuckles and a loaded gun with three additional magazines.
Vinton asked the court to suppress the evidence of the search, seeking to benefit from last year’s Supreme Court decision in Arizona v. Gant. Vinton argued that he was handcuffed at the time of the search and therefore the officer could not conduct a search incident to arrest. The appellate court rejected Vinton’s claim. The court stated that, “Gant held police may search a vehicle incident to the arrest of an occupant only in two circumstances: (1) when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search (the safety rationale); or (2) when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle (the evidentiary rationale).” In Vinton’s case, the evidentiary rationale justified the search because finding other weapons would show that Vinton had a specific intent to possess an illegal weapon (the butterfly knife). The Gant decision did not hold that handcuffing or securing a person defeats the evidentiary rationale for a search incident to arrest. Gant was a decision involving an arrest for a driver license violation and there was little, if any, likelihood that evidence supporting the driver license offense would be found in a search of the car that Gant was driving. In Vinton, the appellate court strongly suggested that Gant’s holding is narrowly limited to crimes where little or no likelihood of finding evidence of the crime under investigation. Because the chemical weapons and knife strongly suggested that there would be other weapons in the car, the search was justified and the evidence was properly admitted against Vinton. United States v. Vinton, --- F.3d ----, 2010 WL 392347 (D.C. Cir. 2010).
Officer receives qualified immunity for use of find-and-bite dog to locate missing drunk child
Melgar, a 13 year-old boy, became intoxicated for his first time at a birthday party. Melgar and his 13year-old friend were told to “go outside and walk it off” when the friend got a little too physical with one of the female partiers. The boys quickly became lost in the cold winter night. They had only light clothing. The boys separated and Melgar’s friend fell asleep under a bush after he vomited and urinated on himself. A couple of hours later a passer-by saw the boy and called police. The friend was suffering from hypothermia and alcohol poisoning. The officers learned that Melgar was still missing. A K9 officer responded. The only dog available to find Melgar was a patrol dog, trained to find and bite suspects. The officer called out to Melgar and began to track, with the dog on a 15 foot lead. The dog found Melgar, who was asleep or passed out, and bit him on the ankle before the handler realized that the dog had located his quary.
Grateful or not that police saved his highly intoxicated young boy from near-certain death, Melgar’s father sued. The officer testified that he normally would have considered using a bloodhound to track. However, the department’s bloodhound was incapacitated with an injury. The officer considered that it was biting cold, the boy was reportedly highly intoxicated, his companion was seriously hypothermic, another bloodhound was at least an hour away and there was no known scent readily available, other officers had searched the neighborhood with lights and by calling out, and his belief that he would see the lost boy before his dog got close enough to bite.
The trial court refused to grant qualified immunity to the K9 handler. The appellate court reversed, holding that there was no clearly-established law concerning whether a find-and-bite dog may be used to locate a missing person. Moreover, the court recognized that the handler had used the dog as a last resort to find a boy presumed to be in great danger and missing for several hours. The court also recognized that the handler had tried to keep the dog from biting by using a leash and watching the dog. The court noted that the plaintiff’s attempt to establish liability by citing the much-criticized IACP guideline that police dogs should be trained to find-and-bark was unhelpful. The IACP guideline reflects an opinion, but not clearly-established law. Moreover, the IACP guidelines do provide for use of a patrol dog to locate missing persons when precautions are taken. The handler in this case followed those precautions. Melgar v. Greene, 593 F.3d 348 (4th Cir. 2010).
No warrant required for cell phone location ping
Devega agreed to meet Afzal to sell him a quarter-kilo of cocaine. When the two met, Devaga shot and killed Afzal. Police found Afzal’s cell phone near his body. They searched the phone, saw Devega’s cell phone number and asked the cell phone company to ping Devega’s cell phone to reveal the location of his phone. The ping revealed that the phone was moving on a highway and into an Air Force base. Police went to the base and arrested Devega. Devega asked the Georgia Supreme Court to rule that a warrant is required to ping a cell phone for location.
The court analogized a cell phone location ping to the use of a GPS tracker. Most courts have upheld warrantless use of GPS trackers to follow movement of a vehicle. (See the recent Xiphos report on United States v. Pineda-Moreno). These courts follow the reasoning of the U.S. Supreme Court decision in United States v. Knotts, 460 U.S. 276 (1983), which held that the warrantless monitoring of signals from a beeper inside an automobile traveling on public roads did not violate the Fourth Amendment because it did not reveal any information that was not also available through visual surveillance. However, some states have statutes restricting warrantless use of GPS trackers and other states’ supreme courts have expansively interpreted their state constitutions to provide an expectation of privacy in the movements discernable by a GPS tracker. (See Xiphos 2009 Archives, People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009)).
The Georgia Supreme Court held that Devega suffered no Fourth Amendment violation in this case because the GPS device only revealed the same information that would have been available from visual surveillance. “When Devega traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto [the base].” Devega v. State, --- S.E.2d ----, 2010 WL 337333 (Ga. 2010).
Search of cell phone memory incident to arrest not allowed
Northern overdosed on crack cocaine. When questioned by police, she identified Smith as her dealer and agreed to telephone Smith to arrange for more cocaine. When Smith showed up at Northern’s home to deliver the dope, police arrested him. Officers searched (incident to arrest and without a warrant) the call log on Smith’s phone and confirmed the call between Northern and Smith. Smith challenged the search of his phone, claiming that it could not be part of a valid search incident to arrest.
Prior to this case, neither the U.S. Supreme Court nor any state supreme court had yet addressed the issue of search of a cell phone memory incident to arrest. Other appellate courts to consider the issue have analyzed a cell phone as a closed container. Another line of appellate court cases follows the logic that the evidence is potentially short-lived, as new calls are received the memory of older calls is automatically eliminated from the phone. This line of cases is based on older cases allowing searches incident to arrest of pagers held by arrestees.
In United States v. Finley, 477 F.3d 250 (5th Cir. 2007), the defendant was arrested during a traffic stop after a passenger in his van sold methamphetamine to an informant. During the search incident to the arrest, officers found a cell phone in the defendant’s pocket. He was taken along with his passenger to the passenger's house, where other officers were conducting a search. While Finley was being questioned there, officers examined the cell phone's call records and text messages, finding evidence that appeared to be related to narcotics use and drug trafficking. The Fifth Circuit sustained the search on the basis that it was a container found on the arrestee’s body at the time of arrest. In contrast, in United States v. Park, 2007 WL 1521573 (N.D. Cal.), officers observed Park entering and leaving a building that they had under surveillance and for which they held a search warrant. When they searched the building, they found evidence of an indoor marijuana-cultivation operation. The officers arrested Park and took him to booking, where they searched his cell phone. The trial judge suppressed the phone numbers and names viewed on Park’s phone, reasoning that the phone was more like a mini-personal computer. The court further reasoned that there was no officer safety or evidence preservation issue implicated and therefore the search incident to arrest doctrine would not apply. The Supreme Court's decision from last year in Arizona v. Gant, 2009 WL 1045962 (U.S. 2009) may support this logic (See Xiphos 2009 archives). The Fourth Circuit applied the preservation of evidence rationale to reach an opposite conclusion. In United States v. Murphy, 552 F.3d 405 (4th Cir. 2009), the court sustained a cell phone search incident to arrest on the basis that the officer could not be expected to know the storage capabilities of the defendant’s model of cell phone and thus would not know the degree of risk of destruction of the electronic evidence.
In this case, the Ohio Supreme Court rejected the closed container approach. The court next considered the degree of expectation of privacy that a defendant can legitimately hold in the cell phone memory. “Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain.” The court ruled that once the officer seized the phone, the state’s interest in preserving evidence was satisfied and a warrant would be required to examine the data contained in the phone. In addition to rejecting the search incident to arrest justification, the court also held that the search could not be justified by exigent circumstances to preserve the evidence. State v. Smith, --- N.E.2d ----, 2009 WL 4826991 (Ohio 2009).
Plain view doctrine in flux in application to computer searches
Investigators who search computers should be aware of a conflict among the federal circuit courts of appeals and should consult with prosecutors to find where your local state and federal courts currently stand in the debate. The Ninth Circuit Court of Appeals issued an en banc decision in United States v. Comprehensive Drug Testing, 579 F.3d 989 (9th Cir. 2009), in which the court took the extraordinary step of not only ruling in the case, but creating a set of blanket rules to govern future computer searches in the Ninth Circuit and to reject U.S. Supreme Court reasoning in plain view search cases. Many legal scholars have already criticized the Ninth Circuit’s ruling and predict that the Supreme Court will once again overturn the Ninth Circuit (which is consistently the most frequently overruled of all federal circuit courts). The court imposed the following black letter rules on computer searches premised on search warrants:
1. Magistrates should require the government waive reliance upon the traditionally-allowed, well-established plain view doctrine in digital evidence cases.
2. Segregation and redaction must be either done by specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant, no matter how egregious the inadvertently discovered evidence.
3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora.
4. The government's search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.
5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept.
One law professor commented that, under the Ninth Circuit’s ruling, a video file depicting a kidnapped child being raped and murdered that is discovered during a tax evasion search warrant execution on a computer must be ignored and destroyed, and its presence never revealed to law enforcement authorities. Nor would the grieving parents be allowed to know that their child was actually dead. The Chief Judge of the Ninth Circuit has invited the litigants in the Comprehensive Drug Testing case to brief the question of whether a super en banc (a hearing before all 28 judges) should be held in order to reconsider the new search rules.
The Ninth Circuit is not entirely alone in imposing special limitations on the plain view doctrine. In Horton v. California, 496 U.S. 128 (1990), the Supreme Court rejected the notion that evidence must be found inadvertently in order for the plain view doctrine to apply. Even so, the Tenth Circuit Court of Appeals held onto the inadvertence requirement in the later case of United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), when considering a case where an officer intentionally began to search for child pornography during the execution of a warrant for other documents. The Tenth Circuit has carefully limited its holding in subsequent cases. Recently, in United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009), the court has allowed admission of child pornography discovered in plain view of computers during drug search warrant executions.
In the past few weeks, both the Fourth Circuit and Seventh Circuit Courts of Appeals have rejected the Ninth Circuit’s logic. In United States v. Williams, the defendant, Curtis Williams, sent a series of emails under an assumed name to the Baptist church where he was a faithful and active member. Williams wrote to the church school, stating that he was a pedophile and that he could not live without having sex with certain young boys: “I know your boy's names. I know where they go for lunch after church. I know where they live. I know when they come and leave school. There's boys I'd love to sleep with right now. There is an endless supply. Boy dick is everywhere.” A search warrant premised on the crime of computer harassment was issued. During the execution of the warrant, officers found child pornography. Williams claimed that the image files should not have been viewed. The government responded that the images were in plain view. The court agreed. “At bottom, we conclude that the sheer amount of information contained on a computer does not distinguish the authorized search of the computer from an analogous search of a file cabinet containing a large number of documents.” The court declined to even mention the recent Ninth Circuit decision. United States v. Williams, --- F.3d ----, 2010 WL 251592 (4th Cir. 2010).
Matthew Eric Mann worked as a lifeguard at the local YMCA pool. He installed a video camcorder in the girls’ shower room. Unfortunately for him, he accidentally videotaped himself as he installed the camera. Mann was charged with voyeurism and a search warrant was issued for his home. The warrant included authorization to search computers and other digital media devices. The search revealed child pornography, including video and still images of children disrobing in a local school locker room. Similar to Williams, Mann claimed the plain view discovery of the child pornography was improper. The Seventh Circuit expressly rejected the Ninth Circuit rule, criticizing the Ninth Circuit for going beyond the rules of jurisprudence to do far more than decide the issues in the case before it. Cautioning officers to follow the rules of the plain view doctrine, the court stated: “We too believe the more considered approach would be to allow the contours of the plain view doctrine to develop incrementally through the normal course of fact-based case adjudication. We are also skeptical of a rule requiring officers to always obtain pre-approval from a magistrate judge to use the electronic tools necessary to conduct searches tailored to uncovering evidence that is responsive to a properly circumscribed warrant. Instead, we simply counsel officers and others involved in searches of digital media to exercise caution to ensure that warrants describe with particularity the things to be seized and that searches are narrowly tailored to uncover only those things described.” The court also noted that the Tenth Circuit had retreated from its incorrect decision in United States v. Carey. The court held that the child pornography was properly admitted. United States v. Mann, --- F.3d ----, 2010 WL 175803 (7th Cir. 2010).
Ninth Circuit allows strip searches for jail general population
The Ninth Circuit followed the lead of other courts recently when it held that the San Francisco County Sheriff could impose strip searches on all prisoners entering general population at the county jail. The court recognized that the Sheriff had shown that there were documented incidents of contraband smuggling, the strip searches were accomplished in a reasonable fashion and by same gender officers, and that prisoners were allowed a brief time (up to 12 hours) before posting bond and prisoners bonding out were not subject to strip search. Though the trend has been to allow strip searches for prisoners entering general population, there are numerous opinions among the federal circuits and Sheriffs should consult local legal counsel before changing any policy or follow nationally-recognized policy maintenance services. Bull v. City and County of San Francisco, --- F.3d ----, 2010 WL 431790 (9th Cir. 2010).
GPS tracker installation and monitoring permitted
An alert officer noticed Pineda-Moreno and other men at a Home Depot buying a large amount of the type of fertilizer used in marijuana plantations. The officer learned that Pineda-Morales also had recently bought large amounts of groceries, irrigation equipment and deer repellant (California boasts happy cows in cheese ads; does California also have happy deer?) at several stores. Investigators attached a GPS tracking device to the underside of Pineda-Morales’ Jeep on seven occasions over the course of four months. On two of the times that a new GPS device was attached, the Jeep was parked in Pineda-Morales’ driveway, next to his home. There was no fence around the property, nor was there any “no trespassing” sign. On the other times, the Jeep was parked in a public parking lot or on the public street. The installations were done in the early morning hours under cover of darkness. The tracking information helped lead to a marijuana grow. When the GPS device signaled that the Jeep was leaving the grow site, officers stopped the Jeep and smelled fresh marijuana. Pineda-Morales consented to a search of his home and officers found a large amount of harvested marijuana. Pineda-Morales claimed that the installation of the GPS devices violated the Fourth Amendment because the officers came onto the curtilage of his property. He also claimed that the continuous monitoring of the Jeep’s movements violated his Fourth Amendment privacy interest.
Courts routinely hold that there is no expectation of privacy in the exterior of a car, and therefore no expectation of privacy that protects against installation of a tracking device on the exterior of a car. Pineda-Moreno claimed that the intrusion on the curtilage itself created a violation. The court disagreed, holding that the driveway was a “semi-private” area, lacking barriers or enclosures that would hide it from street view. “Because Pineda-Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of his home.” The fact that officers installed the GPS devices during the night was of no consequence.
The Supreme Court has held that there is no expectation of privacy in the movement of a vehicle on roadways. United States v. Karo, 468 U.S. 705 (1984); United States v. Knotts, 460 U.S. 276 (1983). As long as the officer installs the tracking device from a place where the officer has a right to be, no warrant is required. Pineda-Morales asked the court to apply a more recent Supreme Court case, Kyllo v. United States, 533 U.S. 27 (2001), in which the Court held that police cannot use a thermal imager to detect the activities inside a private dwelling. Pineda-Morales argued that Kyllo bans sensory-enhancing technology to track private movements. The Court of Appeals disagreed, holding that tracking movement of a car on public roadways is not a search in any sense under the Fourth Amendment. Some courts impose a requirement for a warrant for monitoring based upon their respective state constitutions. People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009); State v. Campbell, 759 P.2d 1040 (Or. 1988). If the device is installed under the hood or within the car itself, or if officers must otherwise violate a legitimate expectation of privacy, a warrant to install is required. United States v. Pineda-Moreno, --- F.3d ----, 2010 WL 59215 (9th Cir. 2010).
"Overwhelmingly strong" air fresheners lead to reasonable suspicion for dog sniff
An officer stopped Richards for weaving and following too closely. As the officer approached the car, he smelled oranges and strong smell of what he believed to be air fresheners. He described the odor as “bizarrely strong” and “overwhelmingly strong.” The officer saw two cell phones on the front passenger seat; orange rinds scattered on the front driver-side floorboard and protruding from a fast food bag; a can of Lysol and a container of Armor All on the front passenger floorboard; and a pocket atlas on the front driver-side floorboard. The officer was trained in drug interdiction and believed that the masking odors and multiple cell phones suggested illegal activity. The officer asked Richards for consent to search her car and she refused. Believing that there was reasonable suspicion that Richards was transporting drugs, the officer then detained Richards for a drug detector dog sniff. Another officer arrived with a detector dog. The sniff lead to the discovery of 60 pounds of marijuana in Richards’ trunk. Richards claimed that the detention was illegal. The court disagreed, holding that an officer could rely on the “bizarre” and “overwhelming” presence of masking odors, along with the cell phone, to provide reasonable suspicion to detain the vehicle long enough for a drug dog to arrive (the detention here was very brief). The mere odor of air fresheners would not typically be a factor in a reasonable suspicion analysis. In this case, however, the masking odors and the multiple sources of masking odors, supported a finding of reasonable suspicion. State v. Richards, --- P.3d ---, 2009 WL 5152582 (Utah App. 2009).
18 month delay in child pornography investigation did not render the PC information "stale"
In June 2007, FBI agents searched a computer in San Francisco and found extensive child pornography and records of trading illegal images. The investigation lead to Lemon, located in Minnesota. Lemon corresponded with the San Francisco suspect, asking for sexually-explicit images of infant children. A year after execution of the San Francisco search warrant and 18 months after Lemon and the San Francisco suspect traded child pornography, an officer obtained a search warrant for Lemon’s computer. The affidavit included details about the chronology of the investigation. Lemon was still using the same IP address and screen name that he used to trade images with the San Francisco suspect. The officer wrote that Lemon showed characteristics of a preferential child pornography collector, suggesting that “this type of child pornography collector will maintain child pornography images over an extended period.” The officer also explained that preferential collectors rarely destroy collections of illegal images and would likely maintain child pornography on a computer hard drive for many years. The court issued a search warrant. Investigators found a substantial collection of child pornography and evidence that Lemon was involved in production and distribution of child pornography.
Lemon asked the court to invalidate the warrant and suppress the evidence on the grounds that the information supporting probable cause was stale. The court held that staleness should not be measured by the mere passage of time. Instead, the court should look at the character of the information. The officer qualified as an expert in the investigation of child pornography and the judge reviewing the affidavit for the search warrant properly relied on the officer’s testimony that Lemon likely maintained his collection of child pornography. “Many courts, including our own, have given substantial weight to testimony” from law enforcement officers investigating child pornography suspects. The passage of the 18 months was less significant to the court because of the ongoing nature of the crime of possession of child pornography, bolstered by the fact that Lemon was still using the same screen name and IP address. Thus, the court upheld the admission of the evidence. United States v. Lemon, --- F.3d ----, 2010 WL 27032 (8th Cir. 2010).
NYPD breath test for OIS rule upheld
Following the November 2006 shooting of Sean Bell by NYPD officers, the NYPD Commissioner ordered that a “portable breathalyzer test” be administered to an officer who fires a weapon. If the portable breathalyzer test yields a reading of blood-alcohol level of 0.08 or greater, the officer will be given a second test on an Intoxilyzer. The NYPD Patrolmen’s Benefit Association sued the NYPD, arguing that the policy violated officers’ Fourth Amendment rights. The City claimed that the primary purpose of the test was not to obtain evidence for criminal charges. Instead, according to City lawyers, the testing helped bolster public confidence in the police department and to facilitate administrative review of shootings.
In Indianapolis v. Edmond, 531 U.S. 32 (2000), the Supreme Court held that a program or general scheme of searches may be considered under the special needs doctrine if the program's “primary purpose” is not a “general interest in crime control.” The court of appeals determined that the NYPD breath testing rule is “designed to serve special needs, beyond the normal need for law enforcement,” and is therefore constitutional under the special needs doctrine. The court recognized that the breath test might be critical to a criminal prosecution, holding, however, that a search can qualify under the special needs doctrine even if one of its purposes is for law enforcement, as long as that is not its primary purpose. Once the court found that the special needs doctrine applied, the court was then required to conduct a balancing-of-interests test to determine whether the breath testing is reasonable. The court recognized that the “nature of the privacy interest involved” turns in favor of the City. Police officers do have a limited expectation of privacy in matters of carrying and using firearms. Therefore, the rule was constitutional. Lynch v. New York City, 589 F.3d 94 (2nd Cir. 2009).
Anonymous tip justified stop and search when officer spoke face-to-face with tipster
An anonymous hotel guest called police and stated that a man in the parking lot had a gun. The hotel was in a high crime area where illegal guns had been found on prior calls. An officer went to the room from which the call originated and spoke with an occupant. As the occupant was speaking to the officer, the occupant pointed to a car in the parking lot and identified the driver as the man with the gun. Another officer stopped the car based on this information. The driver (Griffin) began to turn and act as if he intended to run. The officer frisked Griffin and searched the car and found a gun. Griffin was charged with being a felon in possession of a handgun. Griffin claimed that there was insufficient reasonable suspicion for the investigative detention and for the protective search. He argued that the police were acting on anonymous information.
Courts have wrestled with officers may do when the informant is anonymous. In Florida v. J.L., 529 U.S. 266 (2000), the Supreme Court struck down a stop based on an anonymous tip that a juvenile was standing at a bus stop and was concealing a gun. In this case, the court of appeals upheld the stop and the protective search. The court distinguished the anonymous informant in this case by noting that the information was given face to face. The officer could assess the informant’s credibility and could likely track the informant down in the future. The court also relied on the fact that others saw the police enter the hotel and could likely identify the informer and retaliate and Griffin’s evasive behavior when first contacted by the officer. United States v. Griffin, 589 F.3d 148 (4th Cir. 2009).
Gant decision can't bar gun seen in plain view of passenger compartment
In Arizona v. Gant, the Supreme Court narrowed the circumstances justifying a search incident to arrest of a vehicle occupant. A search of a vehicle incident to a recent occupant's arrest is justified “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search” or when “it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” In the months following the Gant decision, courts have wrestled with its parameters. One of the main questions has been whether to apply the Gant holding to cases already charged at the time of the decision.
An officer stopped Rumley for a taillight violation. Rumley told the officer that he had a suspended license. When the officer learned that Rumley had two prior convictions for driving on a suspended license, he arrested him and place him in the patrol car. The officer went back to Rumley’s truck to conduct a search incident to arrest. Before the officer began the search, he ordered the passenger to step out. The Supreme Court, in Maryland v. Wilson, 519 U.S. 408 (1997), held that an officer conducting a lawful traffic stop may, as a safety measure, order any passenger to exit the vehicle as a matter of course. As the passenger moved his leg to get out, the officer saw a handgun. The officer seized the gun and searched the truck. The officer gave a Miranda warning to Rumley. Rumley admitted that it was his gun and that he put it on the floor when the officer stopped him. Rumley was charged with being a felon in possession of a firearm.
Rumley claimed that the Gant decision rendered the search of his truck unconstitutional. Unlike the facts in Gant, where there was only one occupant, once Rumley was arrested and secured, the truck was still occupied by someone who could easily access the weapon to hide it or use it. The court of appeals held that the search should be evaluated by objectively assessing the reasonableness of the officer’s actions, and not the subjective reason that the officer had for searching the passenger compartment. The court then considered the officer’s order to the passenger to get out of the car. “Nothing in Gant, which limits permissible searches incident to arrest, undermines the bright-line rule established in Wilson” allowing officers to order the vehicle occupants out, even if there is no particular basis to believe that the occupants present a danger to the officer. Once the passenger moved his leg, the gun was in plain view. Under the plain-view doctrine, an officer may, without a warrant, seize “incriminating evidence when (1) the officer is lawfully in a place from which the object may be plainly viewed; (2) the officer has a lawful right of access to the object itself; and (3) the object's incriminating character is immediately apparent.” Horton v. California, 496 U.S. 128 (1990). Thus, the officer’s seizure of the gun in plain view was proper, and it preceded any search incident to arrest. United States v. Rumley, 588 F.3d 202 (4th Cir. 2009).
Ninth Circuit limits TASER® deployment
Bryan was stopped, for the second time in an hour, while driving on a Southern California freeway. During the second stop, based on a seatbelt violation, Bryan got out of the car, wearing only boxer shorts and tennis shoes, and became highly agitated. The officer told Bryan to get back in the car. Bryan was striking himself and yelling unintelligibly when he took a step toward the officer (Bryan later denied advancing toward the officer). The officer deployed a TASER®. It appears that Bryan was facing away from the officer when the darts struck him. One of the probes became deeply embedded in Byran's thigh, ultimately requiring removal by a doctor. Bryan fell and broke four teeth and suffered minor contusions. The officer believed that Bryan was mentally disturbed and needed to be secured. The appellate court accepted Bryan's claim that he did not advance on the officer.
All use of force lawsuits are measured by standards established by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989). In the Graham case, the Court instructed lower courts to always ask three questions to measure the constitutionality of a particular use of force. First, what was the severity of the crime that the officer believed the suspect to have committed or to be committing? Second, did the suspect present an immediate threat to the safety of officers or the public? Third, was the suspect actively resisting arrest or attempting to escape? The Supreme Court also stated that the use of force should be measured by what the officer knew at the scene. The Ninth Circuit applied the Graham factors and upheld the trial court's determination that Bryan "did not pose an immediate threat to Officer McPherson or bystanders despite his unusual behavior." The severity of the offense under investigation tilted toward the bottom of the scale: a seatbelt violation. The court accepted that Bryan could pose a threat to the officer. "Bryan’s volatile, erratic conduct could lead an officer to be wary." Applying the totality of the circumstances analysis dictated by Graham, the court held that the officer's use of force was not objectively reasonable.
The court used language that suggests that the Ninth Circuit standard for deployment of a TASER now requires "a strong government interest compelling the employment of such force." Lawful deployment of a TASER or similar device in the Ninth Circuit requires "objective facts must indicate that the suspect poses an immediate threat to the officer or a member of the public." Many TASER instructors have long been urging officers to be very cautious in deploying a TASER in circumstances that can fairly be described as "passive non-compliance."
Though reaction to the Bryan case was swift and strong, even headlining in some western newspapers, officers should not overreact to this decision. First, as noted above, use of force instructors are once again emphasizing the power of persuasion (remember the old "verbal judo" courses?) combined with patience to resolve a situation. Remember, talk nice, think mean. Second, the decision's immediate and direct application is limited to states within the Ninth Circuit. Third, each use of force case is unique, and any use of force by any officer will always be measured in light of the unique circumstances and against established law. Bryan v. McPherson, --- F.3d ----, 2009 WL 5064477 (9th Cir. 2009).
Violence in home creates exigent circumstances for warrantless home entry
Neighbors called police to a home where Fisher was "going crazy." As the officers approached the home they saw a truck with front-end damage and blood on the hood, damaged fence posts (suggesting that the truck had recently been driven over the fence, blood on the house door and several of the home's windows broken out. The officers could see Fisher through a window. He was screaming and throwing things. The back door was bolted and the front door was barricaded with a couch. The officers saw that Fisher's hand was bleeding and asked whether he wanted medical help. Fisher cursed at the officers and told them to get a warrant to enter. One of the officers started to force the front door, but backed away when Fisher pointed a gun at him.
After Fisher was charged with assaulting the officer, a Michigan court held that the officer violated the Fourth Amendment by entering without a warrant. The Michigan court was concerned that the minimal amount of blood observed by the officers could not reasonably suggest that someone had serious injuries. The US Supreme Court applied its precedent in Brigham City v. Stuart, 547 U.S. 398 (2004) (argued and won by Utah Assistant Attorney General Jeff Gray) to easily find that the lower court got it wrong. Reading the facts recited above, most any law enforcement officer would conclude that there were exigent circumstances to enter, secure Fisher and investigate possible, indeed probable, threats to public safety. In the Brigham City case, the Court held that "the need to assist persons who are seriously injured or threatened with such injury" created a valid reason for officers to enter a home without a warrant. In Michigan v. Fisher, the Court clarified that "officers do not need ironclad proof of 'a likely serious, life-threatening' 'injury to invoke the emergency aid exception." The Court held that "it sufficed to invoke the emergency aid exception that it was reasonable to believe that Fisher had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that Fisher was about to hurt, or had already hurt, someone else. The Michigan Court of Appeals required more than what the Fourth Amendment demands." Michigan v. Fisher, 130 S.Ct. 546 (2009).
Though Michigan v. Fisher and Brigham City v. Stuart combined offer a solid basis for a warrantless entry when an officer has a reasonable belief that there is violence unfolding in the home, or an injured person needs emergency assistance, officers should remember that the Court's generous standard in these two case is premised on the need to provide aid. To make a warrantless entry into a home for some other reason, such as the preservation of evidence or to search for a fleeing suspect, must be analyzed under a different standard. If public safety or officers' safety is threatened, officers may enter a home or other building and conduct whatever search is necessary to quell the threat. Warden v. Hayden, 387 U.S. 294 (1967). There are four general categories of exigent circumstances that justify warrantless entries: first, hot pursuit of a fleeing felon; second, imminent destruction of evidence; third, the need to prevent a suspect's escape; and fourth, a risk of danger to the police or the public. United States v. Zogmaister, 90 Fed. Appx. 325 (10th Cir. 2004); United States v. Williams, 354 F.3d 497 (6th Cir. 2003); United States v. Standridge, 810 F.2d 1034 (11th Cir. 1987), cert. denied, 481 U.S. 1072 (1987). If the exigent circumstances do not merit a full search, the property may be temporarily secured for as long as is reasonably necessary to obtain a warrant. Segura v. United States, 468 U.S. 796 (1984). There is no exception to the Fourth Amendment rules for murder scenes or crime scenes for other serious crimes. Flippo v. West Virginia, 528 U.S. 11 (1999). The exigent circumstances search exception is very carefully applied by courts because no probable cause determination is required.
A non-criminal traffic offense, where the officer is not in immediate pursuit of the suspect, is not sufficiently exigent to allow warrantless entry to arrest. Welsh v. Wisconsin, 466 U.S. 740 (1984). Exigency to enter to arrest may include probable cause to believe that destruction of evidence may be imminent; the need to prevent a suspect's escape; or the need to protect persons inside the home into which the suspect has fled—all considered in light of the "risk of danger, the gravity of the crime and the likelihood that the suspect is armed." Minnesota v. Olson, 495 U.S. 91 (1990). In the Olson case, the Court ruled that there was not sufficient exigency to enter a home to arrest when, in the course of investigating a murder, the suspect sought was not believed to be the killer, the murder weapon was in police possession, the home was surrounded by numerous officers, there was no avenue of escape, the time of day was 3:00 p.m., and there was no suggestion that the home’s occupants were endangered by the suspect. This case illustrates how strictly courts limit the application of the exigent circumstances basis to enter a third party's home to make an arrest. Closely related to exigent circumstances is the doctrine of hot pursuit. The hot pursuit exception to the warrant requirement states that a suspect may not defeat a proper arrest simply by getting home one or two steps ahead of pursuing police. United States v. Santana, 427 U.S. 38 (1976). "Hot pursuit" implies an immediate pursuit of a suspect fleeing from officers. Hot pursuit may justify warrantless entry to arrest for both felonies and misdemeanors. United States v. Williams, 354 F.3d 497 (6th Cir. 2003) ("hot pursuit of a fleeing felon" as an exigency exception to the warrant requirement); Middletown v. Flinchum, 765 N.E.2d 330 (Ohio 2002) (officers in hot pursuit of a suspect who flees to a house in order to avoid arrest "may enter without a warrant, regardless of whether the offense for which the suspect is being arrested is a misdemeanor").
No expectation of privacy in storage unit rented with stolen identity
An officer saw Johnson make an illegal turn, ran the plate, and discovered that there were 2 warrants for Johnson’s arrest. The officer stopped Johnson. Christensen, Johnson’s girlfriend, was in the front passenger seat and two other persons were in the rear. There was also an arrest warrant for Christensen. During a search of the car incident to arrest, the officer found drug paraphernalia in the console and a glass meth pipe in a purse. The purse contained Christensen’s identification and other identification in another name, but with Christensen's photo, and a storage unit rental agreement in dated the previous day. Christensen waived her Miranda rights, and told officers inconsistent stories about how she obtained the identification in another name. The other name was on the storage unit contract.
The officer learned that Christensen’s other identity documents were stolen in a burglary several months prior. The officer contacted the victim, asked her to accompany him to the storage unit, and confirmed that she had not rented the storage unit. The unit manager opened the storage unit and the officer searched it. He found a rifle and a shotgun. During an interview in jail, Johnson admitted that he asked Christensen to rent the storage unit and that he owned the guns. Johnson was charged with illegally possessing the guns. Some courts have held that a person does have an expectation of privacy in premises rented under an alias. Here, however, Christensen didn’t merely use an alias. "Stolen identification was clearly involved. And because of the potential harm to innocent third parties, there is a fundamental difference between merely using an alias to receive a package and using another's identity." Courts usually hold that the is no expectation of privacy in motel rooms rented with a stolen identity and/or credit card.
Johnson argued that he had an expectation of privacy in spite of the fact that Christensen rented the unit; he admitted that he knew that she used a fraudulent identity for the rental. The court held that he could not have an expectation of privacy arising from the use of the fraudulent identity. The court also noted potential harm to the burglary victim. Had Christensen not paid rent for the unit, the storage unit company would have sought payment from the identity theft victim. Moreover, Christensen’s use of the identity violated Utah's identity fraud statute, barring the use of someone else's identification to obtain a thing of value. Because of the fraud involved, the court held that Johnson could not legitimately hold a privacy expectation in the storage unit. "Ultimately, what matters is not whether Johnson might have some legitimate property interest in the storage unit but whether Johnson's interest is one that the Fourth Amendment is intended to protect." United States v. Johnson, --- F.3d ----, 2009 WL 3429765 (10th Cir. 2009).
MySpace page used to support conviction
Clark was babysitting his girlfriend’s 2 year-old daughter. The girlfriend came home and found Clark lying down with the child on his chest, naked and blue. There was blood on a blanket covering up Clark. Clark got up and dropped the baby on the ground. The girlfriend tried to call 911 but Clark told her to put the phone down and that the child was "brain dead." He lit a cigarette and turned on the television. He grabbed the phone out of his girlfriend’s hand when she tried again to call 911. When she managed to dial 911 and ask the operator for help, Clark struck her in the back of the head with his fist. A sheriff's deputy who arrived tried to revive the child. The deputy noticed that the child had a split lip, was limp, her jaw was crushed, and she had bruises all over her body.
At his trial for murdering the child, Clark admitted that he was reckless, but claimed that he did not intend to kill the child. As rebuttal evidence, the prosecutor presented a MySpace page entry where Clark wrote: "Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. Note, in one aspect I'm glad to say I have helped you people in my past who have done something and achieved on the other hand, I'm sad to see so many people who have nowhere. To those people I say, if I can do it and get away. Bull sh$% And with all my obstacles, why the f*#k can't you." Clark objected, claiming that the introduction of his MySpace entry was an attempt to improperly introduce evidence of bad acts offered to show propensity to commit the charged crime.
The Indiana Supreme Court disagreed. The court also held that the MySpace pages was "more probative than unfairly prejudicial." Once Clark tried to defend himself by claiming that he was drunk and merely reckless when he killed the child, the state could properly confront him with his MySpace boasting about what he could get away with. This is yet another in a series of cases in the past few years where social networking site entries have been used as evidence in criminal trials, employment discipline and hiring decisions. Officers should take note to be careful about social networking site entries, and also to research such sites in criminal investigations. Clark v. State, 915 N.E.2d 126 (Ind. 2009).
Directing driver to a state garage for a drug dog sniff did not create de facto arrest
A trooper stopped White for an unsafe lane change. White and his passenger were unusually nervous. The trooper recited several specific and detailed behaviors establishing extraordinary nervousness. Courts are very cautious in relying on nervousness as a factor in the reasonable suspicion calculation. White gave the trooper an Indiana driver's license and a rental agreement for the car. White trold the trooper that he and and the passenger had been to Las Vegas for a few days and were returning home to Indianapolis. The rental contract showed that the car had been rented in Vegas on the previous day and was to scheduled to be returned on the following day. White said that he had flown to Las Vegas, stayed for 4 days, and that he had to be at work the next day. He intended to return the rental car to Las Vegas on the following day (a day late). The trooper checked White’s record and found that he had two prior drug trafficking arrests. Based on the extraordinary nervousness, bizarre travel plans and prior history, Las Vegas being a source city and Indianapolis being a distribution hub city, the trooper called for a drug detector dog team.
The trooper determined that he would detain White. Nonetheless, in a tactic referred to by the court as "the old highway patrol "two-step" in an attempt to get White to consent to questioning and a search of the vehicle, the trooper gave White his driver's license and the rental car agreement and gave White a parting greeting. As White began to leave, the trooper asked White whether he would answer some additional questions. White did not consent, and the trooper ordered White to remain and told him that he was calling for a drug dog. The trooper learned that the detector dog team was still some distance away and that the sniff would be expedited by moving to a state garage down the road. The trooper told White to follow him to a state facility 9 miles away. The trooper told White that he would be free to leave once the dog sniff was accomplished if the sniff dispelled the trooper’s suspicions.
The detector dog team arrived and the dog sniffed the exterior of White's car, giving a final response to the odor of controlled substances. The trooper searched White's car and located three bundles of marijuana in the trunk. The entire episode, from the initial traffic stop to the drug discovery, lasted between twenty and thirty-five minutes. The trooper had the car towed to another location for a more detailed search and the trooper found 4 "kilo-size" bundles of cocaine under the hood.
White challenged the additional detention and the relocation to the state garage, arguing that he had been subjected to a de facto arrest. An arrest can be unintentionally transformed from investigative detention to an arrest (requiring probable cause) when the detention becomes highly intrusive by the use or display of firearms, handcuffs, and other forceful techniques that generally exceed the scope of an investigative detention and/or when the detention lasts too long under the specific circumstances of a given case.
Following the Supreme Court decision in Muehler v. Mena, some courts, including the Tenth Circuit Court of Appeals, have approved brief extensions of traffic detentions to ask a few questions about drug trafficking. See United States v. Valenzuela, 494 F.3d 886 (10th Cir. 2007), reported in the Xiphos archives. The court noted that its previous decisions have approved substantial waits for the arrival of a drug dog. In this case, White’s overall wait period was shortened by moving to the state garage for the sniff, essentially a move to meet the dog team halfway. The court observed that the only reason for moving to the garage was for White’s convenience and the trooper had so informed White. This did not, according to the court, amount to a "highly intrusive" detention and did not create a de facto arrest.
The technique of returning a driver’s documents and ending the traffic detention, then attempting to create a voluntary encounter for further questioning about drug trafficking is the subject of some controversy among prosecutors. Some believe that an officer should simply progress to an investigation of drug trafficking if there is reasonable suspicion to do so. They argue that telling the driver that he or she is free to leave creates a potential argument that the officer lacked reasonable suspicion for a further detention. Others believe that this technique can take away a defendant’s suppression claim by establishing that the encounter was truly voluntary. Practically, courts seem not to rely too much on the latter theory. A court will still analyze the detention for reasonable suspicion. In this case, however, the court relied on the return of the driver licence and rental contract to distinguish between an investigative detention and an arrest. "While this may seem like a minor detail, it bolsters the conclusion that White would be free to go on his way after the canine investigation, if the dog sniff dispelled the officer's reasonable suspicions." Moreover, the trooper directed White to a department of transportation garage and not a police station, further suggesting that no arrest occurred. United States v. White, 584 F.3d 935 (10th Cir. 2009).
Court suppresses response to booking question about drug use
Denney was arrested for shoplifting. She was arrested and she invoked her right to remain silent when questioned by the arresting officer. As a routine part of the booking process, the correctional officer asked questions about drug use. Denney admitted to taking morphine earlier in the day. The arresting officer overheard Denney’s admission and charged her with drug possession. Denney claimed that the admission of her booking responses violated her Miranda rights. The court sided with Denney, noting that “a legitimate question, asked with good intentions, will still violate a defendant's Miranda rights if it is reasonably likely to produce an incriminating response.” The court held that “regardless of their routine nature, the questions in this case were reasonably likely to produce an incriminating response.” However, the booking officer had no reason to believe that Denney had used drugs and was asking the question as part of a routine designed to promote the arrestee’s health and safety while jailed. Thus, it is hard to see how the response to any question about drug or alcohol use could ever be admissible in court under this ruling.
This ruling is generally more restrictive that most other courts. However, the Ninth Circuit has also narrowly interpreted the routine booking question exception to the Miranda rule. The Supreme Court has held that booking questions “normally attendant to arrest and custody” are not subject to a Miranda analysis and are the arrestee’s responses are generally admissible. Rhode Island v. Innis, 446 U.S. 291 (1980). Most courts hold that answers about drug and alcohol use and consumption, when asked for health and welfare reasons and not to elicit incriminating information, are admissible. See Merritt v. State, 653 S.E.2d 368 (Ga. App.2007) (responses to questions about alcohol consumption were admissible at trial). For now, Washington officers will be operating under a more restrictive rule. State v. Denney, --- P.3d ----, 2009 WL 3359965 (Wash. App. 2009).
Inventory of locked bank bag, believed to contain a weapon, was invalid
An officer spotted Vanya V., a juvenile, on school premises late at night. The officer spoke to Vanya, intending only to take him home to his parents. The officer told Vanya that he was going to frisk him, but not handcuff him, before placing him in the car. The officer felt a hard object under Vanya’s shirt and believed that it was a weapon. Vanya flailed about and hit the officer. The officer arrested him and retrieved a locked, zippered bank bag from Vanya’s waistline. At the station, in the course of a search justified by the department’s inventory policy, the officer cut open the bar and found a digital scale, a plastic bag containing twelve smaller plastic baggies, each containing marijuana, a plastic bag containing two buds of marijuana, some empty plastic baggies, and cash. The agency inventory policy required for the inspection of “any closed container or article found on the arrestee's person.” Vanya asked to suppress the evidence from the bank bag, arguing that the inventory policy did not specifically address opening locked containers. The court agree with Vanya, holding that, “First, the policy did not spell out what to do with locked containers as opposed to those that are simply closed. As a subset of this, the policy also did not spell out what should be done with a locked container for which the officers have the key and a locked container for which they do not.”
Police may conduct inventories of seized property. Colorado v. Bertine, 479 U.S. 367 (1987). The justification for inventories rest on three needs: “the protection of the owner’s property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger.” South Dakota v. Opperman, 428 U.S. 364 (1976). An inventory may not be used as a ruse to search for evidence. The inventory must be conducted in accordance with a standard policy. Florida v. Wells, 495 U.S. 1 (1990). In this case, the court also noted that, “permitting an officer to destroy or break into a locked container runs counter to the very purpose of the inventory exception.” That may or may not address the other accepted purposes of an inventory, but the policy still fell short of the specificity required by the court. The court did not discuss the alternative justification for the search. If the officer had searched the bank bag at the scene of the arrest, the search would likely have been justified as a search incident to arrest. Commonwealth v. Vanya V., 914 N.E.2d 339 (Mass. App. 2009).
Family fight justified emergency warrantless entry
Officers responded to a family fight. The caller did not say how many persons were fighting or whether there were weapons, but did say, “his brother was getting beat up.” When the officers they heard loud shouting and what sounded like a person being thrown against the wall or window. The officers knocked on the front door. After a few minutes, someone opened the door and released two large, threatening dogs. The person refused to come out or recall the dogs. Taylor came out of the house a few minutes later. When police asked him how many other persons were in the house, he told them, “you should find out for yourselves.” The other person also refused to answer questions about other occupants. Believing that their safety and the safety of others was at risk, the officers entered and conducted a protective sweep. They saw illegal drugs and paraphernalia in the open and arrested Taylor. Taylor challenged the entry to his home as an illegal search, claiming that the officers should have waited and obtained a warrant. The court of appeals held that, “this argument, however, is misguided, as it ignores the purpose of the exigent circumstances exception to the warrant requirement.” The evidence of illegal drug possession was admissible because it fit the three factors of the plain view doctrine: “(1) lawful presence of the officer; (2) evidence in plain view; and (3) evidence that is clearly incriminating”). Thus, Taylor’s conviction was upheld. Spanish Fork City v. Taylor, 2009 WL 3223277 (Utah App. 2009).
Dog sniff justifies search of car, but not search of occupants
An officer stopped a car with 4 occupants for a traffic violation. Whitehead was the right rear passenger. Another officer arrived with a certified drug detector dog. As the first officer was dealing with the traffic stop, the K9 officer directed his dog to sniff the exterior of the car. The dog gave a positive final response, indicating that he had detected the odors of illegal drugs. Based on this, the officers told the car occupants that they would search the car. The officers directed the occupants to get out of the car. They searched the car and found no illegal drugs or paraphernalia. The officers then searched the occupants and found two loaded syringes and a beer bottle cap with burnt residue in Whitehead’s pockets. The residue later tested positive for heroin. The trial court and the court of appeals each ruled that there was probable cause, through the process of elimination, to search Whitehead. The courts reasoned that the positive final response by a trained and certified drug detection dog provided probable cause to believe that illegal drugs were in the car. Because the officers carefully searched the car and found no drugs, they then had probable cause to believe that the occupants were concealing illegal drugs. The Virginia Supreme Court reversed. “The positive alert by [the dog] and the subsequent fruitless searches of the vehicle and three of its occupants may have created a strong suspicion that contraband was present on Whitehead's person; however, probable cause requires more than a strong suspicion.” There could have been other explanations for the dog’s positive final response, such as a lingering odor from prior drug use in the car. “While the fruitless searches of the vehicle and the other occupants increased the likelihood that the contraband detected by Xanto was on Whitehead's person, it also increased the likelihood that the dog alerted to the odor of contraband no longer present in the vehicle.” A finding of probable cause does not require elimination of all possible innocent explanations for the facts that establish probable cause. However, in this case the court held that the process of elimination theory was just too thin to pass from reasonable suspicion to probable cause.
Some other courts have found that similar circumstances did create probable cause. In those cases, there has been some indication, however slight, that the person searched was implicated in criminal activity. There was no such indication in this case. “The Commonwealth presented no evidence, other than Whitehead's status as a passenger in the vehicle, indicating that Whitehead and the other passengers were involved in any common enterprise involving criminal activity. There also was no evidence indicating Whitehead individually was committing, had committed, or was about to commit a criminal offense.” In State v. Voichahoske, 709 N.W.2d 659, 671 (Neb. 2006), the court upheld a search of a passenger who had a suspicious bulge in his clothing and who had obviously lied about his connection to the other persons in the car. A search yielded paraphernalia in a sock and a bag of methamphetamine in the rectum. In United States v. Anchondo, 156 F.3d 1043 (10th Cir. 1998), the court held that a positive final response by a trained drug dog conducting a vehicle sniff provides probable cause to arrest driver and that, by the process of elimination, the fruitless search of the car makes it more likely that the illegal drugs are hidden on bodies of driver and passenger. Anchondo was a case involving a search near the border and a can-do defense lawyer would certainly argue this distinction.
In Maryland v. Pringle, 540 U.S. 366 (2003), the United States Supreme Court the court considered a case where an officer searched a car and found cocaine in the rear seat armrest, easily within reaching distance of all three occupants. The officer also found a roll of cash in the glove box. Each occupant denied knowledge of the drugs. The officer arrested all three. Considering the small space of the car and that fact that the amount of drugs and cash supported an inference that all three occupants were engaged in a common criminal enterprise, the Court held: “We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly.” Relying on the Court’s decision in Pringle, the Maryland Court of Special Appeals found a search similar to Whitehead’s case to be lawful. In State v. Ofori, 906 A.2d 1089 (Md. App. 2006), the court held that “because of the close association between contraband in a vehicle and the driver of (or other passenger in) the vehicle, either finding the drugs in the vehicle, as in Pringle, or probable cause to believe that they are in the vehicle, as in this case, necessarily implicates the driver and passengers.” When faced with a situation where a trained dog provides a positive final response to the vehicle and no drugs are found, an officer should carefully consider what additional facts provide a basis to believe that the individual occupants are engaged in criminal activity. Whitehead v. Commonwealth, --- S.E.2d ----, 2009 WL 2972896 (Va. 2009).
Court orders disclosure of officer's private and personal cell phone records to criminal defense attorney
Officers were looking for a car that might contain a person suspected of having just overdosed on heroin at a local store. There was information that a person in the car was giving CPR to the overdose victim. An officer saw Ortiz’s car weaving and driving erratically. The officer stopped Ortiz and ultimately arrested him for DUI. Ortiz was not involved in the overdose situation. Ortiz claimed that there was no reasonable suspicion for the stop and that the officer’s explanation about the overdose was pretextual. Ortiz sought an order from the trial court that the police officer be required to surrender his personal cell phone records for the time surrounding the stop and the arrest.
The trial court, sustained by the New Mexico Court of Appeals, made a number of findings that would surprise any scholar familiar with electronic communications records. The court found that the officer’s personal phone records for the time that he was on duty and in a marked patrol car and engaged in official duties were records under the control of the state. The court also found that neither the United States Constitution nor the New Mexico Constitution gave the officer a right of privacy in his cell phone records (though this finding did not extend to the content of communications). The court also found that the federal Electronic Communications Privacy Act did not apply to this situation. The federal law requires that no cell phone records can be disclosed to law enforcement unless there are reasonable grounds to believe that the records are relevant and material to an investigation. Ortiz’s defense attorney didn’t use the term “fishing expedition” in the demand for the cell phone records, but offered no substantive basis to show that the threshold for the federal statute had been met.
The officer asserted his privacy rights under the federal and state constitutions and declined to provide the cell phone records. The prosecution supported the officer in his exercise of constitutional rights and maintained that the Constitution and plainly written federal statute barred the State from coercing the officer to give up his personal records. In response, the trial court dismissed the DUI and other charges against Ortiz. The court of appeals sustained the trial court. This case serves as a warning, at the very least in New Mexico, of the courts’ willingness to attempt to exercise control over an officer’s communication records, with no substantive basis for doing so and in a fairly plain violation of the Electronic Communications Privacy Act, when the officer is on duty, in a marked vehicle, and on official business. State v. Ortiz, 215 P.3d 811 (N.M. App. 2009).
Exigent circumstances justified warrantless entry, but not warrantless search of genitalia
Officers found a naked woman shivering and crying on a city street. The woman reported that she had just been raped in the garage across the street. The victim’s body showed obvious signs of a very recent beating. She gave a detailed description of her assailant. Officers went to the garage, looked through an open door and saw woman’s clothing and underwear, a condom wrapper, and blood on the floor. They went to the door of the home, knocked for 3 to 5 minutes and heard no noise and had no response. They entered and found Lussier passed out on a couch. He matched the description given by the woman. He had scratches on his chest and blood on his hands. The officers arrested him and took him to a hospital for an examination. At the hospital, the officers had medical personnel examine Lussier’s genitals and take swabbings and hair samples. Lussier claimed that the entry into his home was illegal. The court of appeals held that the warrantless entry was valid under the exigent circumstances doctrine. There was a real danger that Lussier would wash off blood and destroy other evidence. However, the court held that the officers should have obtained a warrant to examine Lussier’s genitals and take fluid and hair samples. The court stated that there was no evidence that, unlike alcohol, body fluid evidence evaporates with time. Thus, there was time to obtain a warrant. While it is true that some coital fluids dissipate and degrade with time, secretion of perspiration and possibly through urine contamination, apparently that fact was not relied upon at the trial court level. State v. Lussier, 770 N.W.2d 581 (Minn. App. 2009).
Qualified immunity denied for officers who detained and handcuffed possible witness
An officer received information that Manzaneres could help the officer to locate a rape suspect. Two officers went to Manzaneres’s home. Manzaneres invited the officers into his home and was generally cooperative. When Manzaneres told the officers that he could not provide the last name or address of the suspect and officers pressed him, he asked the officers to leave. They did not leave. Instead, they handcuffed Manzaneres. One officer later explained that he was concerned that there might be weapons in the home, though Manzaneres was not threatening and was not suspected of any crime. The officers were concerned that Manzaneres might tip off the suspect that they were searching for him. They found an address for the suspect through other sources. The officers then placed Manzaneres in handcuffs and in the back seat of a patrol car for several hours so that he could not communicate. After the suspect’s arrest, they released Manzaneres.
Manzaneres sued, claiming that the officers remained in his house without legal authority and that they illegally detained him. The officers asserted that Manzaneres was being detained in connection with an investigation into his alleged obstruction of an officer, or alternatively, as a witness. A jury found in favor of the officers and the court of appeals reversed the jury verdict.
At the time that the officers handcuffed Manzaneres, they knew only that he was a co-worker of the suspect and that they had socialized together on the previous evening. Although the officers believed that Manzaneres was holding back, they could not articulate a factual basis for their belief. The court of appeals held that the officers “could not have reasonably believed that Manzanares had resisted, evaded, obstructed, or refused to obey an officer within the meaning of either of the relevant provisions of New Mexico law.”
Courts allow a brief detention of a witness for information or to prevent interference in an ongoing investigation. The court explained: “Because the detention here occurred inside a home, it was unquestionably unconstitutional unless supported by probable cause.” The court held that there was no probable cause to believe that Manzaneres would interfere with the investigation. The officers’ “unsubstantiated hunch cannot constitute probable cause.” Thus, the detention inside the home was unconstitutional once Manzaneres withdrew his consent for the officers to be inside the home. A consensual entry and/or encounter is “limited by the scope of consent given.” The court held that the officers were not entitled to qualified immunity from suit because a reasonable police officer would know that his presence in Manzaneres’s home after Manzaneres withdrew his consent would be plainly illegal. “Although the Fourth Amendment guarantees ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,’ its foremost concern is the home. Even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within a home, police may not enter without a warrant absent exigent circumstances.” Thus, the court held that the officers were liable as a matter of law and remanded the case for a new trial solely on the issue of damages to be paid to Manzaneres. Manzanares v. Higdon, --- F.3d ----, 2009 WL 2430643 (10th Cir. 2009).
Suspect not seized by officers' questioning (talking nice, thinking mean) or momentary compliance with show of authority
Two officers spotted Smith walking through a high-crime area at 0300. The officers drove alongside Smith and asked to speak with him. Smith stopped walking and turned at a 45 degree angle towards the car, seemingly agreeing to speak with the officers. An officer asked if Smith had any identification, to which he replied no. The officer asked Smith where he was heading and he replied he was going to “his girl's house.” The officer asked the address of Smith’s girl's house and Smith repeated, “I am heading to my girl's house.” The officer asked the same question again and Smith gave the same answer. The officer then asked Smith to put his hands on the hood of the patrol car so the officers could “speak with him further.” Smith took a couple of steps toward the car. The officers opened the car doors and Smith fled. As Smith ran, he dropped a gun. The officers caught Smith. He was also holding a gram of cocaine.
The district court found that Smith was seized, either by the officer’s repeated questions about the girl’s address, or when Smith turned toward the car and momentarily submitted to the officers’ authority. In California v. Hodari D., 499 U.S. 621 (1991), the Supreme Court held that an officer's order to stop may not necessarily create a Fourth Amendment seizure. The seizure occurs when and if the suspect complies with the officer’s order. In Brendlin v. California, 551 U.S. 249 (2007), the Supreme Court clarified that whether a person’s passive compliance with an officer’s order amounts to submission to authority or not should be analyzed by the reasonable person standard. That is, the court should ask whether a reasonable person would have believed he or she was not free to terminate the encounter with the officer.
The court of appeals reversed the trial court and held that Smith was not seized, either by the officer’s “show of authority” through the questioning, or by Smith’s “momentary compliance” with the officer’s command. The court stated that submission to authority under Hodari D., “requires at minimum, that a suspect manifest compliance with police orders.” “Two steps towards the hood of a car does not manifest submission to the police officers' show of authority.” The officers’ questioning could not amount to seizure because Smith never responded in a way that was “clearly a refusal to engage” in conversation. The court noted that the “two officers were still in their car, neither officer displayed his weapon, there was no physical touching, and no indication as to the language or tone of the officer's voice that might have signaled a clear show of authority. Under the totality of the circumstances, Smith was not seized for Fourth Amendment purposes when the officer repeatedly asked the question, ‘Where is your girl's house?’” Once again, “talking nice while thinking mean” contributed to ruling that there was no seizure. Because Smith was not seized prior to dropping the gun, his arrest was lawful and the gun and cocaine were admissible as evidence against him. United States v. Smith, --- F.3d ----, 2009 WL 2257456 (3rd Cir. 2009).
Roadblock to deter poaching found to be constitutional
National Park rangers set up a vehicle checkpoint at the entrance to the Kings Canyon National Park to “mitigate the illegal taking of animals in the park” due to illegal hunting in the national park. Rangers stopped all cars for about 15 to 25 seconds, and spoke with drivers about illegal hunting. As a ranger spoke with Fraire at the checkpoint, he detected the strong odor of alcohol on Fraire's breath. Fraire was charged with driving under the influence and related offenses. Fraire claimed that the checkpoint was unconstitutional. The court of appeals held that the checkpoint complied with the rule established in Illinois v. Lidster, 540 U.S. 419 (2004). In Lidster, the Supreme Court ruled that brief suspicionless vehicle checkpoints designed to gather information, rather than as a general crime-control measure, are lawful. A court must consider, “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” The court of appeals held that the evidence showed that there was a significant poaching problem within the park. “The checkpoint was closely related to addressing this problem because it was structured to catch poachers, to deter would-be poachers, and to educate park visitors about the hunting prohibition.” Overall, the court opined that the checkpoint was constitutional because, “the gravity of the public concerns served by the checkpoint was high, the checkpoint was reasonably related to these concerns, and the severity of the interference with individual liberty was minimal.” United States v. Fraire, --- F.3d ----, 2009 WL 2367023 (9th Cir. 2009).
Good faith exception applied to evidence subject to suppression under Arizona v. Gant
The Tenth Circuit Court of Appeals created a significant new rule in the area of the good-faith exception to the exclusionary rule. The new case will have a substantial impact on prosecutions based on searches of vehicles incident to arrest where the arrest preceded the Supreme Court’s recent ruling in Arizona v. Gant. The court’s decision significantly tempers the ill effects of applying the Gant ruling retroactively to pending criminal cases.
An officer saw McCane driving his car and straddling the lane divider lanes. The officer stopped McCane, suspecting that he was impaired. McCane told the officer that his driver license was suspended. After confirming the license suspension, the officer arrested McCane, handcuffed him and placed him in the back seat of the patrol car. The officer also directed a passenger to get out of the car. The officer searched the car incident to the arrest and found a loaded handgun in the driver side door pocket. Upon seeing the gun, McCane said, “I forgot that was even there.” McCane was charged with being a felon in possession of a handgun.
The trial court refused to suppress the gun. While the case was on appeal to the Tenth Circuit Court of Appeals, the Supreme Court issued its decision in Arizona v. Gant. Gant held that a vehicle search is not valid as incident to a lawful arrest when a defendant is stopped for a traffic violation and handcuffed in the back of the patrol car at the time of the search. Under the rule of Gant, the gun found next to McCane’s seat should have been suppressed. However, the court chose to extend the good faith exception to the exclusionary rule, uphold the admission of the evidence, and sustain McCane’s conviction. The court acknowledged that the facts in McCane’s case were indistinguishable from Gant. However, the court stated, “we agree with the government that it would be proper for this court to apply the good-faith exception to a search justified under the settled case law of a United States Court of Appeals, but later rendered unconstitutional by a Supreme Court decision.”
In applying the good faith exception, the court relied on another recent Supreme Court decision, Herring v. United States, ---U.S. ----, 129 S.Ct. 695 (2009). In Herring, the Supreme Court held that evidence obtained in a search incident to arrest based on a warrant later found to be recalled should not be suppressed. The Supreme Court stated that, “evidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” In this case, the officer was relying on legal principles taught for decades following the decision in New York v. Belton, 453 U.S. 454 (1981). The Supreme Court has repeatedly articulated deterrence of police misconduct as the prime purpose of the exclusionary rule. Here the deterrence principle could have no application because the officer was relying on well-established law. United States v. McCane, --- F.3d ----, 2009 WL 2231658 (10th Cir. 2009).
Search of a computer under warrant authorizing search for records requires specific computer search authorization
Officers believed that Payton was selling drugs and they obtained a search warrant to search his home for evidence of drug sales, including buy sheets, sales ledgers, financial records, bank accounts, loan applications and other financial records. The warrant did not specifically authorize a search of computers for such records, even though the requesting affidavit contained a reference to computer searches. The issuing judge neglected to include authorization for a computer search, though he later stated that it was his intent to do so.
While searching Payton’s home, an officer found a computer in a sleep mode. The officer moved the cursor, awakening the computer. The officer saw a file name that appeared to reference child pornography. The file did contain an image of child pornography. A search of the computer revealed other illegal images. Payton was convicted of possession of child pornography.
Many courts consider computers to be little more than document receptacles and storage devices. Those courts generally allow searches of computers under general authorization in a search warrant to search for “documents.” Commonwealth v. McDermott, 864 N.E.2d 471 (Mass. 2007) (comparing computers to file cabinets and locked desks with millions of files). Other courts consider computers to be peculiarly capable of storing a vast amount and variety of information and hold that computers deserve special consideration in search warrant jurisprudence. For example, in United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), officers were searching for evidence of cocaine sales when they came across numerous .jpg image files. Opening the files, the officers discovered child pornography. The court suppressed the evidence, holding that officers searching computers which contain intermingled documents must take the intermediate step of sorting various types of documents and then only search the ones specified in a warrant. In this case, the Ninth Circuit Court of Appeals stated that searches of computers are far more intrusive than other kinds of document searches. The court discounted the fact that the issuing judge acknowledged that he had made a mistake, noting that the purpose of a warrant was to advise the searching officers precisely where they may search. Thus, a specific authorization must be included in the search warrant if officers wish to search computers located on the premises to be searched. United States v. Payton, --- F.3d ----, 2009 WL 2151348 (9th Cir. 2009).
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