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Xiphos (pronounced zee-phose) is a biweekly summary of recent court decisions about criminal procedure and other subjects important to law enforcement officers and administrators.  The xiphos is a short double-edged sword used essentially as a backup weapon by ancient Greek warriors.  This service is provided at no cost To subscribe, send a message to Xiphos-subscribe@KenWallentine.com.  To unsubscribe, send a message to Xiphos-unsubscribe@KenWallentine.com.  An excellent and free library of civil liability articles and case summaries may be found at www.aele.org. 

Consent to search phone did not include consent to answer the phone

Two border patrol agents saw Lopez-Cruz driving slowly and tapping his brakes.  Believing that he was signaling to guide persons crossing the U.S.-Mexico border illegally, the agents stopped him.  The agents saw two cell phones in the car.  Lopez-Cruz claimed that neither the car nor the phones were his.  He gave permission to the agents to search the phone.

The phone rang as an agent looked at the phone.  The agent answered and gained information used to show that Lopez-Cruz was facilitating illegal border crossing.  Lopez-Cruz claimed that answering the phone exceeded the scope of his consent to search the phone.

The court of appeals has previously held that an officer with a warrant to search a phone can answer the phone during any search.  However, the court agreed with Lopez-Cruz that answering his phone was improper.  “As a general matter, consent to search a cell phone is insufficient to allow an agent to answer that phone; rather, specific consent to answer is necessary.”  The test for the scope of consent looks at what a reasonable person would understand to have given up by consenting. 

In this case, the court ruled against answering the phone, but did not answer the question of whether the agent could have read any incoming text messages.  However, reading an incoming text message does not involve any impersonation and may require no action by the officer, or perhaps only the push of a button to read the message.  Nothing in the court opinion suggests that the court would not approve of reading text messages as being within the scope of a consent search of a phone in some future case.  United States v. Lopez-Cruz, --- F.3d ----, 2013 WL 4838908 (9th Cir.  9/12/13).

Curtilage limited by common use of grass strip

Officers pulled two bags of trash from a trash can outside an apartment where Jackson was staying.  Based on evidence of drug trafficking found in the trash and other information, the officers obtained a search warrant for the apartment.  The search revealed cocaine, cash, cocaine base and guns.

The recent Supreme Court decision in Florida v. Jardines has spurred renewed interest in arguing over the space known as the curtilage of a home.   In California v. Greenwood, the Supreme Court held that officers may search trash set out for pickup outside the curtilage of a home.   Earlier this year, in Florida v. Jardines, the Court held that officers may need a warrant to search areas within the curtilage of a home even when those areas are accessible by the general public.

Jackson claimed that the officers intruded on the apartment curtilage.  The trash can was located partly on the sidewalk and partly on a narrow grass strip between the back patio and a common sidewalk.  The trash can had not been placed at the curb for pickup.  The court upheld the search, deciding that the curtilage ended at the back patio because the small grassy area was used by other residents.  United States v. Jackson, --- F.3d ----, 2013 WL 4509812 (4th Cir. 8/26/13).

Deputies unlawfully seized woman pursuant to civil immigration warrant

Two deputy sheriffs saw Santos sitting outside the back door of a restaurant where she worked as a dishwasher.  Suspecting that Santos was unlawfully present in the United States, the deputies questioned her.  Neither deputy was trained and authorized to enforce federal immigration law under an 8 U.S.C. § 1357(g) agreement.  A records check revealed an outstanding ICE civil deportation warrant and the deputies took her into custody and booked her into a local jail.

Santos sued the deputies, alleging that they had no authority to detain her.  The deputies unsuccessfully argued that 8 U.S.C. 1357(g)(10) allows local officers to cooperate with federal agents in immigration enforcement.  The court held that the deputies illegally detained and arrested Santos, violating her civil rights.  However, the illegality of their actions was not clearly established at the time of the detention and the court granted qualified immunity to the deputies.  After this arrest, in Arizona v. United States, the Supreme Court made it plain that state law cannot grant local officers authority to enforce federal immigration law.

Civil immigration violations are, well, civil, and not criminal.  Thus, the officers did not have probable cause to believe that Santos was committing a crime and they had no basis to arrest her. The court allowed the lawsuit to proceed against the county and the sheriff in his official capacity.  Santos v. Frederick County Board of Commissioners, --- F.3d ----, 2013 WL 4008189 (4th Cir. 8/7/13).

Courts limit cell phone searches incident to arrest

Four years ago, in Arizona v. Gant, 556 U.S. 332 (2009), the Supreme Court took a sharp turn in the law of search incident to arrest.  The Court stepped back toward the two justifications for the search incident to arrest exception to the Fourth Amendment warrant requirement—preservation of evidence and officer safety—first definitively articulated in Chimel v. California, 395 U.S. 752 (1969).  In Arizona v. Gant, the Court held that the warrant requirement exception could not justify a vehicle search once the arrested had been handcuffed and secured following an arrest for driving on a suspended license, evidence of which was not reasonably likely to be found in the car.

Two new court decisions portend application of the Gant narrow view of the search incident to arrest doctrine as courts restrict searches of arrestees’ cell phones.  The federal Court of Appeals for the First Circuit and the Florida Supreme Court both recently rejected prosecutor arguments that searches of cell phones could be justified by the owners’ arrests.   The reasoning of these cases suggests a future line of analysis for searches of cell phones, pagers, tablets and wearable computers.

United States v. Wurie

Officers saw a suspected drug transaction between Wurie and Wade.  After stopping Wade and finding crack cocaine on him, officers arrested Wurie.  As they dealt with Wurie at the police station, his cell phone continued to ring.  A picture of a woman and child appeared on the screen as the phone rang.  Officers accessed the call log to identify the incoming number and tracked the number back to a nearby apartment.

At the apartment, officers saw a woman who appeared to be the woman on the cell phone screen.  They entered the apartment to secure it, pending obtaining a search warrant.  Inside the apartment, the officers saw a child who appeared to be the one in the cell phone screen photo.  The officers ultimately searched the apartment and found a large amount of crack cocaine, marijuana, cash and a gun.  Wurie was convicted of drug charges and being a felon in possession of a firearm.  United States v. Wurie, 2013 WL 2129119 (1st Cir. 2013).

Florida v. Smallwood

Smallwood, wearing a mask and gloves, jumped over the counter at a convenience store, flashed a gun and demanded money.  After he escaped with approximately $15,000 in cash, the clerk called police.  The clerk identified Smallwood by his nickname, telling the officers that Smallwood was a very frequent customer. 

An officer searched Smallwood’s phone at the time of the arrest.  The phone had photos taken shortly after the time of the robbery.  The photos depicted a gun sitting next to a stack of cash and Smallwood holding a large amount of cash fanned out.  Smallwood v. State, 2013 WL 1830961 (Fla. 2013).

Shifting trends

To date, most courts considering searches of cell phones incident to arrest have allowed them.  For example:

  United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012) (warrantless search of phone—limited to revealing phone number—allowed following controlled drug buy).

  United States v. Murphy, 552 F.3d 405 (4th Cir. 2009) (search of cell phone following traffic stop arrest justified by need to preserve evidence).

  Silvan W. v. Briggs, 309 Fed. Appx. 216 (10th Cir. 2009) (“permissible scope of a search incident to arrest includes the contents of a cell phone found on the arrestee’s person”).

  United States v. Finley, 477 F.3d 250 (5th Cir. 2007) (search of cell phone for text messages allowed following arrest for drug sales).

  Commonwealth v. Phifer, 979 N.E.2d 210 (Mass. 2012) (search allowed upon probable cause to believe that phone contained evidence of crime for which suspect was arrested).

  Hawkins v. State, 723 S.E.2d 924 (Ga. 2012) (search of phone for text messages following controlled buy allowed on basis that messages could be easily deleted and reasonable belief that phone would contain evidence of drug sales).

  People v. Diaz, 244 P.3d 501 (Cal. 2011) (search of cell phone allowed following controlled drug buy and arrest, search justified by mere fact of arrest).

The appellate court decision in United States v. Wurie is not only the first federal appellate decision to require a warrant to search the arrestee's cell phone, but also the first to issue a blanket, bright line rule requiring a warrant for searches of cell phones.  The Wurie court asserted that many Americans “store their most personal papers and effects in electronic format on a cell phone, carried on the person,” suggesting a heightened expectation of privacy in the phone electronic data.  The Florida court reached a similar conclusion, noting “the most private and secret personal information and data is contained in or accessed through small portable electronic devices and, indeed, many people now store documents on their equipment that also operates as a phone that, twenty years ago, were stored and located only in home offices, in safes, or on home computers.”  The decision in Smallwood has some precedent in an earlier Ohio decision in State v. Smith, 920 N.E.2d 949 (Ohio 2009) (search of cell phone not allowed because of a person’s high expectation of privacy in phone contents).

Beginning with the Chimel decision, the Supreme Court has favored bright line rules for police officers conducting searches incident to arrest.  That seems to be why the First Circuit appellate court penned a far-reaching decision rather than taking the measured approach favored by other appellate courts that decided the merits of each case involving a cell phone search on the basis of the unique facts of the particular case.  The Wurie decision did not rule out the possibility that a warrantless cell phone search might be justified by the exigent circumstances exception to the Fourth Amendment warrant clause.

Justifications for search incident to arrest

In Chimel v. California, 395 U.S. 752 (1969), the Supreme Court held that an arresting officer may “search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction” and may search “the area into which an arrestee might reach in order to grab a weapon or evidentiary items.” The two justifications articulated in Chimel were later relied upon to allow removal of an object not readily identifiable during a frisk and closer examination of the object in United States v. Robinson, 414 U.S. 218 (1973).  An officer removed a cigarette pack from Robinson’s pocket , opened it and found several packets of heroin.  Many of the courts that have allowed warrantless searches of cell phones incident to arrest have relied on cigarette pack search allowed by United States v. Robinson.

In United States v. Edwards, 415 U.S. 800 (1974), the Supreme Court upheld seizure incident to arrest of Edward’s clothing for paint chip analysis in an effort to tie him to a burglary scene.  Several later cases demonstrated the Court’s broad application of the Chimel rationale until the Gant case four years ago.  The Wurie and Smallwood courts each considered Gant and post-Gant developments in their path to invalidate the searches of each defendant’s cell phone.

In Wurie, the prosecution argued that the Chimel officer safety and evidence preservation rationale should make it reasonable to make a warrantless search of an arrestee's cell phone, whether or not there was a reasonable belief that the phone could be used as a weapon or contained evidence of a crime.   After all, if the officer in Robinson was justified in searching the inside of a cigarette pack, a very small container, why not a cell phone?  

The Wurie decision recognized that “the Supreme Court has never found the constitutionality of a search of the person incident to arrest to turn on the kind of item seized or its capacity to store private information.”  Notwithstanding, the court stated, “what distinguishes a warrantless search of the data within a modern cell phone from the inspection of an arrestee's cigarette pack or the examination of his clothing is not just the nature of the item searched, but the nature and scope of the search itself.”  The court considered the vast amount and scope of personal information that many persons store on their cell phones, observing that such information is far removed from the packets of heroin or relatively small amount of personal information that could be stored in the cigarette pack at issue in Robinson.

 “When the Court decided Robinson in 1973 and United States v. Chadwick, 433 U.S. 1 (1977), any search of the person would almost certainly have been the type of self-limiting search that could be justified under Chimel.”  The Wurie court opined that at the time of the Robinson and Chadwick decisions, the Supreme Court could not have imagined the vast scope or intimate nature of data that would be carried on a phone in modern times.  The court further noted that the “data that is not immediately destructible and poses no threat to the arresting officers.”  Removing the battery or placing the phone into a shielded container excludes the threat of remote wiping of the phone data.

Though the Florida court in Smallwood reached a similar conclusion in excluding the cell phone photos, that court particularly focused on the amount of private information frequently found on modern smart phones.  The court expressly rejected the logic of other courts that have relied on United States v. Robinson, 414 U.S. 218 (1973).  “We conclude that the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices. . . .

The search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone.”

The Smallwood court also cited an example from United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012), that describe an iPhone app that allows users to view webcams placed inside their homes.  The Florida court opined that a search of a smart phone is more like a search of a home than the search of the cigarette pack allowed in Robinson.  “Physically entering the arrestee's home office without a search warrant to look in his file cabinets or desk, or remotely accessing his bank accounts and medical records without a search warrant through an electronic cell phone, is essentially the same for many people in today's technologically advanced society.  We refuse to authorize government intrusion into the most private and personal details of an arrestee's life without a search warrant simply because the cellular phone device which stores that information is small enough to be carried on one's person.”

The Florida court interpreted the Supreme Court’s Gant decision to mean that “once an arrestee is physically separated from an item or thing, and thereby separated from any possible weapon or destructible evidence, the dual rationales for this search exception no longer apply.”  Officers took Smallwood's phone from him upon arrest, so the court saw no possibility that Smallwood could use the device as a weapon, nor destroy any evidence that may have existed on the phone.

The dissents in the Smallwood and Wurie decisions would have stuck with the traditional analysis of Chimel and Robinson, finding that Gant did not limit the search incident to arrest doctrine so narrowly as to bar searches of arrestees’ cell phones.  The dissent also noted that the mere fact that smart phones store vast amounts of data does not automatically give that data special protection under the Fourth Amendment.   

The United States Supreme Court has been asked—and thus far declined—to grant certiorari and consider the question of search of a cell phone incident to arrest.  The blanket prohibition and the path taken by the First Circuit Court of Appeals, as well as the split of authority in the federal courts of appeals and a few state supreme courts, make tip the balance and prompt the Court to address the issue.  In the meantime, officers should consult with local prosecutors and obtain guidance in advance of facing the issue.  Officers should also become familiar with basic rules for protecting digital devices from remote wiping (and know that removing a battery is not always possible or advisable).

Driver's consent trumps passenger's objection to search

Danish drove away from a house under surveillance for drug activity.  Copeland was a passenger in Danish’s vehicle.  A deputy stopped the vehicle for a traffic violation.

When the deputy asked for consent to search the vehicle, Danish (the driver) agreed.  Copeland told the deputy that she owned the vehicle and that she was Danish’s common law wife.  Copeland objected to the search.  Copeland was not listed on the vehicle registration.

The deputy searched and found drugs.  Copeland said that she was holding the drugs for a friend.  Copeland was charged and convicted with illegal possession of a controlled substance.  The trial judge ordered suppression of the drug evidence, applying the reasoning of Georgia v. Randolph, 547 U.S. 103 (2006), in which the Supreme Court held that one resident's objection to a residential search trumps another resident's consent to the search.

The appellate court declined to equate a person’s car with the person’s castle.  Vehicles receive less constitutional protection than homes.  The U.S. Supreme Court admitted that their Randolph decision was a close call.  Unlike a home, where one can reasonably presume that the person who answers the door is a resident, passengers in a car are much less likely to have a legal interest in the car. 

“Unlike homes occupied by general co-tenants, society does generally recognize a hierarchy with respect to the occupants of a vehicle.”  In Randolph, the Court acknowledged that it might reach a different decision if the co-occupants fell within some “recognized hierarchy” such as parent and child or enlisted troops in military barracks.  Society recognizes the general superior legal right in a car held by the driver as contrasted with passengers.

The appellate court pointed out that it was not establishing a bright-line rule that the driver’s consent always controls.  For example, one can readily see that a parent-passenger teaching a child to drive would have a superior right to offer or refuse consent to search.  Few other courts have considered whether to apply the Randolph rule to cars, so officers have no clear guidance.  Because consent must be given by a person with apparent authority over the area to be searched, officers should consider asking a few questions to establish the possessory interest of the driver in a vehicle and the interest that may or may not be held by a passenger who objects to a search.  State v. Copeland, 2013 WL 1909157 (Tex. Crim. App. 2013).

Exigencies created by officers cannot justify warrantless entry into home

In Kentucky v. King, 131 S.Ct. 1849 (U.S. 2011), the Supreme Court held that the exigent circumstances doctrine may justify a warrantless entry even when the officers did something that contributed to the exigency as long as the officers violate the Fourth Amendment or make statements suggesting that they might violate the Fourth Amendment.  When the Court issued its ruling, there were at least five different tests applied by various federal courts (and other variations in state courts) to analyze the lawfulness of a warrantless entry associated with a police-created exigency.  Two recent cases illustrate how analysis of alleged police-created exigencies continues to challenge courts.

An officer responded to a noise complaint concerning Campbell’s car.  The officer walked up to Campbell’s apartment.  He could smell the odor of burning marijuana coming through an open window in the apartment and he could hear males talking inside the apartment.

The officer covered the peephole on the door and knocked.  Campbell opened the door part way and the officer saw that Campbell was holding a gun and looking around.  The officer hit the door hard, forcing it open, and he secured Campbell and two other occupants.  Campbell denied that he had a gun.  The officer did not see a gun in the immediate area.

A subsequent search of the apartment revealed a gun hidden in the couch cushions, marijuana and a glass bong.  Campbell fell toward the couch when the officer forced the door open.  The gun could have been stashed in the couch at that point.

Campbell sought suppression of the evidence based on the warrantless entry.  He claimed that the officer created the exigency by covering the peephole so that Campbell could not see him and identify him as a police officer.  The Kansas Supreme Court held that the officer exceeded the scope of implied consent to approach and knock at the apartment when he prevented Campbell from seeing who was at the door.

The court opined that a homeowner generally consents to someone walking up to the door and knocking.  However, that customary implied invitation also includes the homeowner’s ability to see who is at the door and make an informed decision about whether to open the door or not.  “While we do not fault the officer for protecting his safety, the Fourth Amendment does not permit him to rely on evidence he seized only because he acted unreasonably, exceeding the scope of a knock and talk. Because the officer's conduct preceding the exigency was unreasonable, the officer violated the Fourth Amendment and therefore could not rely upon the exigent circumstances exception to justify his warrantless entry into Campbell's apartment.”  State v. Campbell, 2013 WL 1850747 (Kan. 2013).

Odor of marijuana and known presence of officer did not justify entry

A social worker went to the Turrubiate home to investigate claims of marijuana use around children.  When Turrubiate cracked open the door and stuck out his head, the social worker smelled the strong odor of burning marijuana.  Turrubiate told the social worker that his girlfriend and child were not home.  The social worker notified a deputy sheriff of the odor.

The deputy went to the home, accompanied by the social worker.  The deputy knocked.  Turrubiate answered and the deputy could smell marijuana.  The deputy forced his way into the home, pointed a TASER at Turrubiate and handcuffed him.  Turrubiate admitted that there was marijuana in his backpack.  The deputy obtained written consent to search the backpack and he found the marijuana.

The deputy claimed that warrantless entry was necessary to prevent Turrubiate from destroying evidence.  The prosecution argued that the probable cause created by the strong, fresh odor, coupled with the deputy making his presence known to Turrubiate supported an inference that Turrubiate would imminently destroy the evidence.  Following the Supreme Court decision in Kentucky v. King, a few courts have reached inconsistent decisions concerning whether the odor of freshly burning marijuana, coupled with the announced presence of police, justifies warrantless entry.  Some courts have required additional evidence that destruction is imminent, such as the sounds of toilet flushing (wouldn’t that mean that the evidence was already gone?) or running feet.

The Texas appellate court held that the mere odor, plus knowledge of police presence, did not create exigent circumstances justifying a warrantless entry.  The court noted that the Kentucky v. King decision, “did not presume that possessors of narcotics would destroy evidence upon learning of a police presence.”  The court did send the case back to the trial court to consider whether the warrantless entry was justified by the report of a baby in the home being exposed to marijuana smoke.  Turrubiate v. State, 2013 WL 1438172 (Tex. Crim. App. 2013).

The Supreme Court decision in Kentucky v. King focused on the officers’ conduct in creating the exigency relied upon to justify a warrantless entry.  Cases decided after Kentucky v. King note that the Supreme Court did not establish a presumption that a suspect’s knowledge of police presence automatically creates exigent circumstances that justify a warrantless entry.  These recent cases continue to examine additional information that demonstrated the likelihood of destruction of evidence (such as running feet, statements, flushing or running water). 

Detector dog at front door constitutes a search

Officers received a tip that Jardines was growing marijuana in his home.  Part of the investigation included a detector dog team approaching the front door, an area accessible to the general public.  At the door, detector dog Franky gave a positive response to the odor of controlled substances.  The officers used that information, along with other facts, to obtain a search warrant for the home.  (for further details on the facts of the case, see the Xiphos Archives).

Following closely on the heels of the decision in Florida v. Harris, the U.S. Supreme Court sided with Jardines and held that using Franky to sniff at the door constituted a search.  In a 5-4 split, the Court held that the sniff intruded on the privacy afforded to a home.  Although the area of the front porch is traditionally open to visitors approaching and knocking on the door, the intrusion of a drug detector dog on the front porch is more intensive than the “traditional invitation” to the public.

Justice Scalia returned to the trespass analysis of Fourth Amendment protection in his majority opinion.  Girl Scouts selling cookies or trick-or-treaters would not be considered trespassors by most homeowners, while persons toting metal detectors or forensic instruments would be viewed as trespassing.  Concurring justices compared the use of the detector dog to high-powered binoculars, arguing for a more traditional analysis into the reasonableness of the expectation of privacy at the front door.

The dissent voiced a line often used by dog handlers: if the handler/officer had a right to be on the porch, so did the detector dog.  The dissent noted 800 years of anglo-american legal history had not produced a single case of trespass-by-dog at the door.  Watch for further debate of the trespass theory of Fourth Amendment interpretation in the Court’s future decisions.

The Jardines case is not likely to change much in the operation of detector dog teams.  A detector dog handler should consider whether other facts support probable cause to search, by sniff, the exterior of a home.  If present, such facts could be used to obtain a warrant to sniff.  A positive final response could then be used to obtain a search warrant for the interior of the home.  Often, the odor of the growing marijuana or the odor of cooking other drugs is sufficiently strong to be detected by the human nose.  No dog sniff would be needed to pursue a warrant in such cases (of course, consider whether marijuana is illegal under your respective state law).  Florida v. Jardines, 2013 WL 1196577 (U.S. 2013).

Asking "what's in your pocket?" was not custodial interrogation  

An officer saw Woods speeding.  The officer did not catch up to Woods quickly enough to stop him, but he saw Woods park.  The officer approached Woods and told him to get back in the car.  Woods did not obey commands.  He kept reaching toward the passenger door.  Fearing that Woods was reaching for a weapon, the officer drew his gun.  Woods then followed commands.

Woods told the officer that he did not have a driver license or any identification on him.  The officer decided to arrest Woods for driving without a license.  When a backup officer arrived, the officer approached Woods.  Woods again reached toward something in the passenger door.  The officer grabbed him, pulled him out of the car and ordered him to the ground.

The officer frisked Woods and felt a hard object in his pocket.  He asked Woods, “what’s in your pocket?” and Woods replied, “I’m bogue” (meaning that he was holding contraband).  The officer clarified and Woods told him that he had a gun in the car.  The officer searched the car and found a handgun and some crack cocaine on the passenger floorboard.

Woods claimed that the questioning and his answer were part of custodial interrogation without the benefit of a Miranda warning.  He asked the court to suppress his statement.  Determination of whether a question or statement is interrogation begins with asking whether the question is likely to elicit an incriminating response.

The court held that the officer’s question did not constitute interrogation.  Asking what was in the pocket was a normal incident of an arrest.  The officer was conducting a lawful frisk at the time that he asked the question.  Finding a hard object during a frisk is “essentially an automatic, reflexive question directed at ascertaining the identity of an object that is legitimately within the officer's power to examine as part of a search . . . .”  Because the question was not part of custodial interrogation, the court refused to suppress Woods’ statement about being “bogue.”  A concurring judge opined that the question was also permissible under the public-safety exception to the Miranda rule because it was necessary for the officer to resolve his legitimate concerns about his own safety.  United States v. Woods, 2013 WL 1316317 (6th Cir. 2013).

One person's trash is . . . still his trash

Police were told that Ousley was selling methamphetamine.  After other investigative steps produced no corroboration, an officer walked to the side of Ousley’s townhouse and took garbage bags from trash containers.  The trash containers had not yet been taken to the curb for collection.  The trash contained baggies with meth residue and a shipping container for digital scales.  The officer used the information to obtain a search warrant.  A search produced methamphetamine, marijuana and digital scales.

In California v. Greenwood, 486 U.S. 35 (1988), the Supreme Court upheld a search of trash that was “readily accessible to animals, children, scavengers, snoops, and other members of the public.”  The question in this case is whether the Greenwood decision extended to trash still stored within the curtilage of the home even if it was readily accessible to the public.

This case, coupled with the recent decision in Florida v. Jardines, invites a discussion of what constitutes the curtilage of a home.  In United States v. Dunn, 480 U.S. 294 (1987), the Supreme Court suggested four guiding factors:  whether the area is included in an enclosure with the home; whether the resident has taken steps to prevent observation from people passing by; how the area is used; and the area's proximity to the home.

Since the Dunn case was decided, courts have disagreed on whether trash not yet taken to the curb is subject to warrantless search and seizure.  Some courts have focused on whether the trash has been abandoned for collection, while others have looked at whether the trash has been placed where it is  readily accessible to the public even if not abandoned.  Some other courts have concentrated on whether the trash is protected from search because it is within the curtilage of the home.

The court followed the curtilage analysis and held that the officer violated the Fourth Amendment in seizing the trash bags.  Although one could argue that this case is highly fact-specific because it involved a townhome with a tiny yard and correspondingly small curtilage, the recent trend toward Fourth Amendment trespass analysis by the Supreme Court and the specific discussion in Florida v. Jardines are instructive. 

Officers should consider whether trash is within the curtilage or has been set out for collection before making a warrantless trash pull.  Talk to your prosecutor about which theory prevails in your area.  Trash covers, collection of the trash and subsequent seizure from the garbage truck, are not affected by this decision.  Commonwealth v. Ousley, 2013 WL 1181956 (Ky. 2013).

Drug detector dog sniffs in schools allowed

County sheriff deputies participated in a drug detector dog deployment at a high school.  Students and teachers were told to vacate select classrooms and to leave personal belongings in the room.  A detector dog sniffed the room and backpacks and other items in the room.  C.M. believed that the zipper compartment on his backpack might have been opened while he was out of the classroom during the sniff.  He told his parents.  The parents sued.
The random sniff program was instituted by the school board, with cooperation from the sheriff.  The policy allowed random sniffs, but provided that lockers, desks, backpacks, etc., would not be searched unless the dog gave two positive final responses to a particular item.  The deputy testified that C.M.'s backpack was not searched.
In a previous case, Doe v. Little Rock School District, 380 F.3d 349 (8th Cir. 2004), the Court of Appeals had disallowed random sniffs of students and their belongings.  The court based its decision on the belief that the sniffs were aimed at collecting evidence to prosecute crimes.  The Supreme Court allowed suspicionless drug testing of student athletes on the basis of protecting student health, as contrasted with prosecuting crimes, in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002).
The sniff procedures in the Little Rock case required students to empty their pockets onto their desks.  That presented a greater intrusion than the procedure followed in the Springfield case.  The separation of the students from their belonging was brief, the procedure avoided undue embarrassment for students and the deputies minimized the possibility of dangerous interactions between the dog and the students.  That distinction in the degree of intrusiveness lead the court to conclude that the sniffs in this case were minimally intrusive.  The minimal intrusion, coupled with testimony about the public interest in keeping drugs out of schools, justified the sniffs as reasonable and not a violation of the Fourth Amendment.  Burlison v. Springfield Public Schools, 2013 WL 776816 (8th Cir. 2013).
Probation search without warrant and without suspicion upheld
Detectives suspected King of involvement in a homicide.  They learned that he was on probation with a condition authorizing suspicionless searches of his residence.  The detectives went to his home, searched, and found a shotgun under his bed.  King was charged with being a felon in possession of a firearm.
King argued that the search was unconstitutional because it was not based on individualized suspicion that he had committed a crime.  He argued that he was on probation—not parole—and therefore was not subject to the search doctrine announced in United States v. Knights, 534 U.S. 112 (2001).  In Knights, the Supreme Court upheld a search that was based on a probation agreement clause allowing suspicionless searches based upon reasonable suspicion (and not probable cause).
Note that this case does not suggest that suspicionless searches of probationers are allowed without any probation agreement that specifically provides for such searches.  The King court explained that a probationer's privacy expectation is "only slightly" greater than that of a parolee.  Thus, the suspicionless search—again, based on a probation agreement condition—was permissible and the shotgun was properly admitted into evidence against King.  United States v. King, 2013 WL 886161 (9th Cir. 2013).
Canine scent lineups may stink, but no liability for the deputies

Curtis and others sued the Houston Police Department after Curtis and the other plaintiffs were identified during canine scent lineups administered by Keith Pikett, a former deputy sheriff.  A scent sample taken from Curtis was used to help indict him on a burglary.  Curtis was eventually released and charges dropped.
Curtis claimed that the dog handler cued the bloodhound.  Though a series of Texas state court cases accepted scent lineup evidence generated by this particular handler, prosecutors have now retreated from using such evidence.  Scent lineups have been successfully used in other areas.  They can be helpful investigative tools, but only when conducted according to strict and proven protocols.
The court did not need to decide whether or not the scent lineup was properly conducted in this case.  The trial court awarded summary judgment to the deputies.  The court of appeals affirmed, holding that a reasonable jury might or might not find the videos of the scent lineup suggested that the handler committed fraud.  Curtis v. Anthony, 2013 WL 823428 (5th Cir. 2013), see also, Winfrey v. San Jacinto County, 2012 WL 3062159 (5th Cir. 2012).

Supreme Court disallows detention of suspect leaving site of impending search warrant execution

Officers were watching a house prior to the execution of a search warrant.  The object of the warrant was a handgun.  The officers had a description of the occupant of the house.  As they watched, two men came out of the house, got into a car and drove away.  Both men matched the description of the occupant.  The officers did not want to stop the car near the house and potentially alert others to their presence, so they followed the two men and stopped them approximately a mile away.  The driver, Bailey, gave his address as the target house, even though his driver license showed a different address.  The other man confirmed that Bailey lived at the target house.  The officers handcuffed the two men, explained that they were not under arrest, but merely being detained during the search warrant execution.  When told about the search warrant, Bailey denied living at the target address.  Searching officers found the gun and drugs in plain view in the house.  Bailey was arrested and his keys were seized incident to the arrest.  One of the keys opened the door at the target house.

Bailey claimed that the detention was improper because it happened away from the scene of the search warrant execution.  In Michigan v. Summers, 452 U.S. 692 (1981), the Supreme Court authorized officers to detain the occupants on the premises of a search warrant target in order to maximize safety, facilitate orderly execution of the warrant and to prevent flight from the premises.  "A warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted."  Following the Summers decision, courts have ruled inconsistently on the geographic and temporal proximity of the search of occupants.  Some courts interpret Summers to allow a search of persons entering the zone around the target location.  Others have allowed searches of persons who drive away from the target location, as happened in this case. 

The United States Supreme Court held that officers may not stop and detain persons who have just left the search warrant target premises.  The Court held that the Summers rule is spatially limited to the immediate vicinity of the premises to be searched.  “Once an individual has left the immediate vicinity of a premises to be searched, however, detentions must be justified by some other rationale.”  “Limiting the rule in Summers to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant ensures that the scope of the detention incident to a search is confined to its underlying justification.”  The Court reaffirmed support for the practice of temporarily seizing persons on the premises to prevent them from interfering with the search and possibly to obtain keys so that doors need not be broken open.

The Court did not clearly define what it meant by “immediate vicinity” of the search warrant target.  Lower courts will be left to wrestle with whether that means line-of-sight, a particular distance and whether barriers impacting ease of return/re-entry should be considered in the analysis.  The Court also did not decide whether the stop could be justified under Terry v. Ohio.  The case will go back to the Court of Appeals for that question.  Bailey v. United States, 2013 WL 598438 (U.S. 2013).

No expectation of privacy in black box crash data, warrantless search allowed

Diaz and her boyfriend were drinking at a bar.  When it came time to leave, the boyfriend tried to convince Diaz that she was too drunk to drive.  They argued.  The boyfriend walked home as Diaz drove away.  A short time later, Diaz crashed into another car, killing the other driver.  Diaz said that she had consumed one beer.  A blood alcohol test showed that her BAC was .23 at the time of the crash.

Officers impounded both cars, which were totaled.  A crash investigator obtained data from the Sensing Diagnostic Module (SDM, also known as the “black box”) that showed that Diaz was traveling at 76 mph in a 50 mph zone at the time of the crash.  The primary purpose of the SDM is deploy airbags.  However, the SDM also records and stores the vehicle speed, engine RPM, brake data, and throttle position, for a 5 second period before a crash.

Diaz asserted that the warrantless seizure of the SCM and the analysis of the SDM data violated the Fourth Amendment.  She claimed that the SCM is not in plain view and could be read only by attaching a computer and that there was no exigency that prevented obtaining a search warrant to read the data.  California courts have previously upheld warrantless searches of vehicles where the vehicle itself was an instrumentality of the crime.

The court held that the Fourth Amendment is not implicated in the investigation of auto homicide when the officers seize and search the SDM.  The SDM was part of the instrumentality and not a container within the car (such as a container that might conceal drugs or other contraband).  The court noted that the recent Supreme Court decision in United States v. Jones, addressing installation of a GPS device on a car is inapplicable.  In Jones, the Court relied on the trespass doctrine to invalidate the monitoring of the GPS data.  Moreover, the purpose of the SDM is vehicle safety, and recording crash data was merely a secondary purpose.  The court also held that there is no reasonable expectation of privacy in vehicle speed or braking on a public road.  People v. Diaz, 2013 WL 441824 (Cal. App.  2013).

Utah Supreme Court finds no error in stopping car with out of state plate (and reeking of marijuana!)

In the fall, once can often smell leaves burning on crisp October days.  One might also smell the reeking odor of freshly-harvested northern California marijuana.  Chettero was driving on the freeway when an officer stopped him for crossing the fog line several times.  As the officer walked up to the car, he noted that the back compartment of Chettero’s vehicle was full and covered by a blanket.  When Chettoro rolled down the window, the stench of freshly cut marijuana formed a cloud around the car.  A search yielded 105 pounds of fresh pot.

Chettero introduced evidence that the officers had been informed of the recent northern California harvest and that the officers were stopping vehicles with out-of-state license plates.  He claimed an unconstitutional disproportionate impact on non-residents, arguing selective enforcement and a breach of his right to interstate travel.  The officers denied that they had been instructed to stop cars with out-of-state registration.

The Utah Supreme Court held that there was no evidence of an unconstitutional practice.  “To the extent there was discrimination, it was based on intelligence that suggested marijuana would be transported from California (where it was grown) across Utah on its way east.  So any differential treatment was not based on the ‘mere fact’ that Chettero was a citizen of another state, and the right to travel was not implicated even assuming some form of discrimination.”   State v. Chettero, 2013 WL 563351 (Utah 2013).

Supreme Court holds that detector dog certification or training support probable cause presumption

Clayton Harris was driving a truck with expired license plates in Blountsville, Florida, when he was stopped by a Liberty County deputy sheriff.  Harris was breathing rapidly, shaking and was exceedingly nervous as the deputy spoke to him.  Harris had an open beer can in the cab of the truck.  The deputy believed that Harris might be under the influence of drugs, so he asked Harris to consent to a search of the pickup truck.  Harris refused.

The deputy deployed his detector dog, Aldo, to sniff the exterior of the truck.  Aldo gave a positive response at the driver’s side door handle.  The deputy searched Harris’s truck and found precursor chemicals (200 pseudoephedrine tablets, 8,000 matches, muriatic acid and iodine crystals) for cooking methamphetamine.  Harris admitted that he was a meth cook and that he had recently cooked a batch at his Blountsville home.  Harris was charged with unlawful possession of pseudoephedrine.

While Harris was out on bail, the same deputy/detector dog team stopped Harris for another traffic violation.  Aldo again gave a positive final response and the deputy searched the truck.  No evidence was found in that search.

Harris challenged the reliability of the detector dog.  The Florida Supreme Court agreed that the prosecution had not gone far enough to show that Aldo was reliable.  The court noted: “We conclude that when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person.”  Many state and federal courts across the nation have ruled that proper training and certification are sufficient predicates for supporting probable cause to search following a dog sniff with a positive response.

The United States Supreme Court unanimously held that the Florida Supreme Court “flouted” well-established principles of probable cause.  The Supreme Court chided the Florida justices for applying the “antithesis” of decades of Fourth Amendment jurisprudence.  The Court noted that the Florida court “made matters worse” when it created an “inflexible checklist” for the prosecution to satisfy in order to establish that a detector dog’s positive final response provided probable cause to search a vehicle.   

The Court held that “if a bona fide organization has certified a dog after testing his reliability in a controlled setting” or “if the dog has recently and successfully completed a training program,” a trial court should presume that the dog’s positive final response provides probable cause to search.

Justice Kagan wrote: “The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.”  “A sniff is up to snuff when it meets that test.” 

The result in Harris was not unexpected.  One can argue that the Supreme Court merely applied clearly-established law that probable cause is a “common-sensical standard.”  Though the case may be viewed as a victory for detector dog teams—and it certainly is such—there is much to be learned from a careful reading of the Harris opinion.  The defendant still may vigorously cross-examine the dog handler and may call witnesses, including expert witnesses, to challenge the dog’s reliability.

Detector dog certification and training remain critical in establishing the dog’s reliability.  Handlers must consider whether their detector dog team certification is from a “bona fide” certifying organization and whether the certification is consistent with generally-accepted standards.  Single blind testing, where the handler and dog are tested without knowing whether target substances and odors are present or not, is certain to become a threshold question in assessing the validity of the certification trial. 

Regular maintenance training, documented in adequate records, is also vital to a presumption of probable cause.  Though Aldo and his handler had not completed a recent certification trial, there was abundant evidence of regular weekly training.  In the Harris case, the Supreme Court pointed to a recent training program that evaluated Aldo’s proficiency in locating the odors of controlled substances as substituting for formal certification following a trial.

The defense still may challenge a dog’s field reliability.  The Court noted that the dog’s history in the field “may sometimes be relevant.”  One occasional challenge to field reliability is expressed as handler cuing or whether a dog is “prompt dependent.”  Single blind testing in a rigorous certification trial, conducted at prescribed intervals, by a reputable certification organization will go far to defeating such claims.

The Supreme Court decision in Florida v. Harris reaffirms the value of detector dog teams as drug interdiction tools and gently reminds courts across the nation of the time-honored principles of probable cause to search.  At the same time, detector dog handlers, trainers and the entire police service dog world should accept the case as an invitation for continuous improvement in training, record-keeping and certification.  Florida v. Harris, 2013 WL 598440 (U.S. 2013).

No expectation of privacy in an interrogation room 

Chaudry Rashid immigrated to the United States from Pakistan.  He forced his daughter to marry her cousin to permit the cousin to lawfully enter the United States.  When the daughter tried to end the marriage, Rashid killed her for her disobedience.  He was arrested and interrogated.  At the conclusion of the interrogation, Rashid asked to speak to his family.  The officers left the interrogation room, but left the recording equipment active and left Rashid handcuffed.

The court suppressed the evidence gained during the interrogation on the basis of a Miranda violation.  However, the court admitted the multiple confessions that Rashid made to his family.  Rashid told several family members that he had killed his daughter and that she deserved to die.

Rashid claimed that he had an expectation of privacy in the interrogation room.  The court compared the interrogation room situation to cases in which many courts have held that handcuffed suspects sitting in police cars have no expectation of privacy.  Those courts have allowed admission of statements recorded by in-car audio/video recording.  Rashid could not reasonably expect privacy while under arrest for murder, handcuffed and locked in an interrogation room.  Rashid v. State, 2013 WL 227642 (Ga. 2013).

Three hour detention while awaiting search warrant invalidated search and statements

Watson was a clerk in a convenience store.  He lived in a room above the store.  Officers saw drug activity near the store.  They arrested two persons, discovering that one of them lived in another room above the store.  The officers decided to obtain a search warrant for the residential rooms above the store.

The officers entered the store and commanded Watson and the store owner to sit on the floor.  They were held for approximately three hours while the officers drafted an affidavit and obtained a search warrant.  The officers found a gun in Watson’s room.  They asked Watson about the gun and he told them that it was not functional.  Watson was convicted of illegal possession of the gun.  Watson claimed that his lengthy detention rendered the search unreasonable and that his statement and the gun should have been suppressed.

In Michigan v. Summers, 452 U.S. 692 (1981), and Illinois v. McArthur, 531 U.S. 326 (2001), the Supreme Court set out a general rule that persons may be temporarily detained without probable cause when officers arrive at a location to execute a search warrant.  The Court based the rule on a balancing of the personal liberty interest with the state interests in preventing flight if incriminating evidence is located, officer safety and the orderly execution of the search.

Applying this balancing test, the appellate court opined that the three hour detention was too long.  The case was distinguishable because the officers detained Watson while they were seeking a warrant, not while they were executing a warrant based on a judicial finding of probable cause.   The court also considered the Supreme Court rule from Illinois v. McArthur, where the police kept McArthur from entering his home for two hours while they obtained a search warrant.

Unlike the McArthur case, the police had no reason to connect Watson with the drug dealing observed outside of the store.  In McArthur, the police had probable cause to believe that McArthur had drugs inside his home.  The Supreme Court analysis in that case focused on the connection between the McArthur and the contraband that was the subject of the search warrant application.

The court held that, “although the seizure of the building may have been supported by probable cause, the seizure of Watson himself was not so supported, in contrast to the seizure that occurred in McArthur.  Likewise, the police had no basis to conclude that Watson might attempt to destroy or hide the evidence sought in the search warrant application.”  The court also noted that the prosecution had not shown any evidence that officer safety would have been compromised by allowing Watson and the store owner to leave the building.

Although there was a strong dissent that argued that the police might have had reasonable suspicion to detain Watson because he worked and lived in a building where drug trafficking occurred, the ultimate critical fact seems to be the three-hour detention.  A case recently argued before the Supreme Court, Bailey v. United States (see Xiphos Archives), considers whether officers may detain a person incident to the execution of a search warrant when he has left the immediate vicinity of the premises before the warrant is executed.  United States v. Watson, 2013 WL 14548 (4th Cir. 2013).

Generalized description of furtive movement in a car was not enough to justify search

An officer saw a van driven by a female.  The van window tint appeared to be unlawful.  He stopped the van.  As he approached, he noted that the van was rocking and he saw hand movement near the dash area.  He walked up to the front and saw a man in the driver seat.  The driver admitted that he had switched places because the woman did not have a valid driver license.

The officer ordered the driver and passenger out of the car.  He asked the driver about the movement at the dash and the driver said that it was nothing.  The officer handcuffed them and searched the car for weapons.  He found a hatchet, an open bottle of gin and bags of cocaine.

Though many courts have upheld frisks and vehicle searches for weapons under similar circumstances, the court held that there was no reasonable suspicion for the quick check for weapons.  “Notwithstanding the officer's testimony, the movement he described—hands moving in the dash area—did not give him particularized objective grounds for reasonably believing the defendant was moving his hands on the dashboard to retrieve a gun.”  The court opinion suggested that a vehicle check will be allowed only where the officer testifies to movements that specifically appear to be reasonably likely to indicate reaching for a weapon.  Though this decision is at odds with other courts, it points to the specificity required in reporting the facts observed and upon which an officer bases a decision to conduct a frisk or vehicle search for weapons.  Jackson v. United States, 56 A.3d 1206 (D.C. 2012).

General consent to search vehicle included gift-wrapped package

An officer stopped Howell for speeding and had Howell sit in the patrol car while the officer wrote a warning ticket.  During the conversation, Howell consented to a search of his car.  The officer searched the car as Howell sat in the patrol car.


The officer found a gift-wrapped package.  Howell said that the package was a gift that he was carrying from his aunt to his brother.  Standing where Howell admittedly could not see him, the officer cut away the wrapping and tore open the package.  It contained 2 pounds of marijuana.


Howell sought suppression of the marijuana, arguing that cutting open the package exceeded the general consent to search his car.  Courts have not articulated a bright line answer to whether a closed container may be damaged during a search allowed by a general consent to search.  In Florida v. Jimeno, 500 U.S. 248 (1991), the Supreme Court held that the scope of consent must be assessed by the reasonable person standard.  The Jimeno Court upheld opening a paper bag during a consent search, but noted, "it is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk."


Two contrasting decisions of the Tenth Circuit Court of Appeals illustrate that officers should consider whether damaging a package destroys the utility of the package and contents.  The court suppressed methamphetamine found in a sealed can labeled as containing tamales that an officer opened with a can opener in United States v. Osage, 235 F.3d 518 (10th Cir. 2000).  The court based its decision on the fact that the can could no longer be used once the lid was peeled away (the officer opened the can because it appeared that the lid had been opened and glued shut). On the other hand, the same court upheld a search where an officer drilled holes in vehicle floorboards.  United States v. Gregoire, 425 F.3d 872 (10th Cir. 2005).


The court held that the officer did not exceed the scope of Howell's consent, "because (1) the object of the search was clearly disclosed, (2) the container was not equivalent to a locked container and was not destroyed, and (3) the consent was not withdrawn after the officer's interest in the container was communicated to Howell."  The court also noted that drugs could be concealed in the gift-wrapped package.  This case reminds officers that the general rule allows an officer to search the entire vehicle when given voluntary consent by a party with authority to consent and the consent is not limited or withdrawn.  State v. Howell, 2012 WL 5278531 (Neb. 2012).


Vehicle search rules apply to a motor home on a public roadway

Coleman swayed across the fog line twice as he drove his motor home under the speed limit on the interstate.  An officer stopped him and had him sit in the patrol car while the officer wrote a warning citation.  The officer asked Coleman about travel plans, drug use and whether he had ever been arrested.  A computer check showed that Coleman had an extensive criminal history.  Coleman admitted to having some California medical marijuana in motor home. 


The officer placed Coleman in the back of the patrol car and went to the motor home.  He conducted a protective sweep, lifting open a large bed to inspect a storage space beneath.  He saw a rifle case, opened it and discovered a rifle and ammunition.  The officer then located the marijuana in the front of the motor home.  Coleman was charged with being a felon in possession of a gun.


Coleman challenged the questioning, claiming that it impermissibly extended the duration of the stop.  He asserted that the drug use questions were improper.  The court disagreed, holding that the weaving across the line justified asking about drug use as a possible explanation for the driving pattern.  Coleman's lie about his criminal history justified further probing.


Coleman also complained that he was questioned without a Miranda warning.  The court noted that Coleman was seated in the front seat, was not handcuffed and had not been told that the detention would be anything other than temporary. Moreover, the court cited the officer's conversational tone and language (talk nice, think mean!).  Thus, Coleman was not subject to the usual incidents of a formal arrest.  Miranda warnings are not required at a traffic stop where the motorist is not subject to the functional equivalent of an arrest.  Coleman was not entitled to a Miranda warning.


The rifle was found in the protective sweep.  Coleman asserted that his motor home was more like a residence and the protective sweep could only extend to the area under his immediate dominion and control.  The court held that motor homes in transit on a public highway are subject to a reduced expectation of privacy that allows broader protective sweeps than might be conducted in a home.  The scope of the sweep was proper.  Once the officer saw the gun case in plain view, knowing that Coleman had a felony criminal history, the officer had probable cause to open and search the case.  United States v. Coleman, 2012 WL 5439287 (8th Cir. 2012).


Pointing gun, handcuffs and frisk did not create de facto arrest

Two detectives saw Lacy and Bleau standing outside a rooming house known for drug trafficking.  As the detectives watched the two men, a Honda Civic, driven by Rabbia arrived.  Bleau got into the Civic and they drove away, only to return a short while later.  When they returned, Bleau retrieved a bag from the trunk.


Believing that they were witnessing a drug deal, the detectives called for backup and decided to approach the car.  The two detectives approached Lacy and Bleau with guns drawn.  As a third detective arrived, he spoke with Rabbia, who was still seated in the car.


The detective ordered Rabbia to get out of the car.  He handcuffed Rabbia and told him in a conversational tone (talk nice, think mean) that he was not under arrest.  He also told him that the handcuffs would be removed when other backup officers arrived.  The detective frisked Rabbia and repeated that the handcuffs would be taken off soon.  The handcuffs remained on Rabbia for only five minutes.


After the detective removed the handcuffs, he asked Rabbia what he had been doing.  Rabbia said that he had sold a shotgun to Bleau.  After learning that Rabbia was a convicted felon, the detective arrested Rabbia.  At the police station and following a Miranda warning, Rabbia offered a more complete story about selling the gun.


Rabbia claimed that he had been subject to de facto arrest when the detective drew his gun and handcuffed and then frisked him.  He argued that the questioning immediately following his release from handcuffs should have been preceded by a Miranda warning.  The court held that Rabbia had not been arrested at that point.  Therefore, no warning was necessary.


Whether a Terry stop has escalated into a de facto arrest depends on a number of factors, including the location and duration of the stop, the number of police officers present at the scene, the degree of physical restraint placed upon the suspect, and the information conveyed to the suspect.  The court observed that Rabbia was stopped because he was suspected of dealing drugs and it was reasonable for the detectives to believe that Rabbia and the others were armed.  Because Rabbia was seated when approached, the detective could not see the lower part of his body.  There was only one officer dealing with Rabbia; the others were 30-40 feet away.  Those factors made it reasonable for the detective to approach with a drawn gun and use handcuffs for a temporary detention.


A critical factor in finding that there was not a de facto arrest, which would equate to custody and trigger a Miranda warning prior to questioning, was repeated communication to Rabbia that he was not under arrest and that the handcuffs would be removed when safe to do so.  Officers in similar situations should consider expressly telling a subject that he/she is not under arrest.  Take care to use a conversational tone and avoid shouting or command language when tactically sound.  United States v. Rabbia, 699 F.3d 85 (1st Cir. 2012).


Supreme Court hears two detector dog cases

Florida v. Jardines & Florida v. Harris:  Will the Supreme Court throw drug dogs a bone?

Detector dog handlers across the United States should stay tuned to the United States Supreme Court today as the Court spends two hours hearing arguments in two cases, Florida v. Jardines and Florida v. Harris.  This is the first time since the 2005 case of Illinois v. Caballes that the Supreme Court will consider drug dog use by law enforcement.  In Caballes, the Court held that police officers do not need reasonable suspicion to justify a detector dog sniff of a car during an otherwise proper traffic stop.  Today’s cases offer the Court an opportunity to decide critical questions of whether a sniff outside a residence is a search and just how much evidence must be produced in court to show that a detector dog is sufficiently reliable to give probable cause to search a car when the dog gives a positive final response to the odor of controlled substances.

Clayton Harris was driving a truck with expired license plates in Blountsville, Florida, when he was stopped by a Liberty County deputy sheriff.  Harris was breathing rapidly, shaking and was exceedingly nervous as the deputy spoke to him.  Harris had an open beer can in the cab of the truck.  The deputy believed that Harris might be under the influence of drugs, so he asked Harris to consent to a search of the pickup truck.  Harris refused.

The deputy deployed his detector dog, Aldo, to sniff the exterior of the truck.  Aldo gave a positive response at the driver’s side door handle.  The deputy searched Harris’s truck and found precursor chemicals (200 pseudoephedrine tablets, 8,000 matches, muriatic acid and iodine crystals) for cooking methamphetamine.  Harris admitted that he was a meth cook and that he had recently cooked a batch at his Blountsville home.  Harris was charged with unlawful possession of pseudoephedrine.

Harris challenged the reliability of the detector dog.  The Florida Supreme Court agreed that the prosecution had not gone far enough to show that Aldo was reliable.  The court noted: “We conclude that when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person.”  The Florida court’s ruling is at odds with many state and federal courts across the nation that hold that proper training and certification are sufficient predicates for supporting probable cause.

The Supreme Court will likely resolve the Harris case by establishing a clear guideline for detector dog reliability to be applied by lower courts examining drug sniff challenges.  The United States Department of Justice and the State of Florida will argue that more rigid standards for establishing reliability of detector dogs will lead to less frequent use of an investigative tool that has proven valuable in the field and, after all, reveals only the presence of the odors of contraband.  The government will also assert that letting the Florida court ruling stand—at odds with the majority rule followed by other courts—will lead to confusion and continuing uncertainty about the law for law enforcement and for lower courts.  On the other hand, Harris’s attorneys will urge the Supreme Court to adopt a rule that requires detailed and meticulous performance, training and certification records to be produced in every detector dog case.

In Florida v. Jardines, an anonymous caller reported that Joelis Jardines was growing marijuana in his Miami home.  Detectives and a detector dog team went to Jardines’ front door.  The dog, Franky, gave a positive final response at the front door.  The handler explained this to one of the detectives, who then took a deep breath at the door.  He, too, could smell marijuana.  The detective obtained a search warrant for Jardines’ home.

Officers caught Jardines running out the back door when they served the warrant.  They found marijuana plants inside the house.  Jardines asked the court to suppress the evidence obtained during the search warrant execution.  He claimed that taking Franky to the front porch of his home constituted a “search.” 

Several U.S. Supreme Court decisions have held that a “sniff is not a search” when a detector dog sniffs the exterior of luggage or a vehicle.  In this case, the Court is being asked to decide whether Franky’s presence on the porch intruded on a legitimate expectation of privacy and constituted a search.  The government asserts that the detector dog cannot discern what is happening within the privacy of the home; the dog merely reports the presence of evidence of a crime (illegal drugs).  Jardines’ lawyers will push the rationale embraced by the Florida court, that is, that a drug detector dog mere footsteps from the threshold of a home intrudes into domestic privacy and reveals personal information (that the occupants hold illegal drugs) inside the home.

Decisions in each case are not expected for several months.  Once decided, both the Jardines case and the Harris case hold tremendous potential for shaping how police agencies train, certify and keep records for detector dogs and where detector dogs may be used for enforcement purposes.  Police service dog handlers are hoping that the Supreme Court barks up the right tree.

Consent for dog sniff not coerced

A trooper stopped Grant for speeding and had Grant sit in the patrol car while preparing a written warning.  After issuing the warning and bidding him a good night, Grant started to return to his car. The trooper stopped him and asked for consent to search the car.  Grant declined, saying that he just wanted to go.  The trooper asked, “what would you think about it if I had a dog come and go around it? If he doesn't indicate anything, then we'll get you going.”  Grant said that would be okay.

After a 22 minute wait, a detector dog team arrived and conducted a sniff.  A search followed a positive final response to the odor of controlled substances.  The trooper found cocaine and cocaine base in Grant’s car.

Grant claimed that his consent to wait for the sniff was coerced.  The trial court agreed, but the Court of Appeals reversed.  The appellate court held that a reasonable person in the Grant’s position would have understood that he could refuse to wait for the sniff and just leave.   One judge dissented, arguing that it was hard to imagine that Grant really felt free to leave.

Even though a computer check showed that Grant had a prior drug-related conviction, there was no reasonable suspicion of drug possession to justify the further detention.  The case outcome would have been significantly different if the trooper had immediately called for the drug detector dog and the sniff had been conducted as the trooper was otherwise engaged with issuing a citation or discussing the traffic violation.  In that case, Grant would have no basis to complain about the sniff.  The record does not indicate whether that scenario would have been feasible.  United States v. Grant, 2012 WL 4936508 (8th Cir.  2012).

Questioning unrelated to the initial crime was permissible, even though detention slightly extended

An officer responded to a shoplifting complaint.  A store security guard pointed to a group of men and described the suspect.  Only Griffin fit the description.  The officer approached Griffin.  Griffin briskly walked away after the officer said that he wanted to talk to Griffin.

The officer ran after Griffin, grabbed his wrists and frisked him.  The officer felt what he thought were batteries and he asked Griffin about them.  Griffin told the officer that they were not batteries, but were shotgun shells.  Griffin admitted that he had been in prison.  The officer arrested Griffin as a felon in possession of ammunition.

Griffin asked the court to suppress the evidence on the basis that the questioning improperly extended the detention.  He claimed that the detention should have been limited to investigating the alleged shoplifting.  Griffin hoped for a bright line rule that any extension of an otherwise legitimate detention would render unrelated questioning invalid.

The court of appeals disagreed.  The court joined a number of other courts in holding that there is no bright line rule prohibiting a slight expansion of a detention to ask questions unrelated to the initial purpose of the detention.  The court held that a trial court must assess the length of the stop as a whole and looking at the totality of the circumstances.

The discussion about the shotgun shells lasted no more than 30 seconds.  Because the officer had not completed the initial investigation and was acting diligently in his investigation, the brief additional questions did not measurably extend the duration of the detention and the discovery of the shotgun shells was part of a valid detention.  United States v. Griffin,  2012 WL 4496817 (11th Cir. 2012).

Supreme Court October 2012 Term begins Monday

The annual fall term of the high court traditionally begins with the cry of "oyez, oyez, oyez"  on the first Monday of October.  Several cases previously highlighted in Xiphos are on the Supreme Court docket.  There are two drug detector dog cases that will be argued on Halloween.

In Florida v. Jardines, the Court will consider the question of whether a warrant is necessary when officers take a drug detector dog to the front door of a house.  Detector dog sniffs are traditionally not considered to be "searches" under the Fourth Amendment because they reveal only the odor of contraband.  Crashing against this logic is the Court view of thermal imaging and GPS/radio beepers that may reveal activities or contraband within a home. 

Another Florida case, Florida v. Harris, presents the question of establishing a detector dog's reliability prior to a finding that the dog's sniff established probable cause to search.  The Florida court required training and certification records, records of field deployment reliability, evidence of the handler's training and experience and an other evidence relating to reliability that is known to the dog's handler.  Compare this to established law in many courts that the prosecution need only show that the dog is trained and certified at the time of the sniff.  For example, see United States v. Ludwig, 10 F.3d 1523 (10th Cir. 2011).

Just this past week, the Court agreed to consider whether the evanescent nature of alcohol in the blood justifies a warrantless blood draw in impaired driving cases.  There is a split among many state and federal courts on this question.  In  Missouri v. McNeely, the Supreme Court will weigh in.  Caution: some states that have disallowed warrantless blood draws based on the Fourth Amendment exigency evidence doctrine have done so under their state constitutions.  The decision in Missouri v. McNeely may have no impact in those states.

TASER deployment converts detention into arrest

An officer received a tip from a reliable informant that a man was selling drugs out of a black Honda at a particular corner.  Several officers wearing badges and guns saw Reid standing near a black Honda, parked at the reported location.  They approached Reid to speak with him.  When he saw the officers, Reid bladed away from the officers as if to conceal his side.  He turned and ran as one officer called out to him. 

As he ran, the officers could see that one pocket was swinging as if it contained a gun or other heavy object. An officer fired a TASER at Reid.  The two probes struck Reid in the back and officers were able to detain him.  One officer asked Reid whether he was holding anything that was illegal.  Reid said that he had a gun in his pocket.

Reid claimed that he was under arrest at the time that he made the statement about the gun.  He asked that the court suppress his statement because he had not been given a Miranda warning and waived his rights.  The appellate court agreed that Reid was under arrest and ordered suppression.  Notably, the court mentioned that the probes were removed by medical personnel.

In two similar cases, United States v. Russ, 772 F.Supp.2d 880 (N.D. Ohio) and United States v. Colon, 654 F.Supp.2d 236 (E.D. Pa. 2011), federal judges reached the opposite conclusion.  In the Colon case, the suspect experienced three energy cycles during the effort to detain him.  Many other cases hold that tackling or knocking down a suspect does not necessarily convert a detention into an arrest.  Officers must take care to report the reasons that force was necessary to detain the suspect and to explain each distinct application of force.

The court agreed that there was reasonable suspicion to detain and to frisk Reid.  Unfortunately, the appellate court did not consider the question of whether the gun would have inevitably discovered.  The court disallowed that application of the public safety exception to the Miranda rule.  The court was divided, four to three, and the dissent would have found the use of the TASER to detain Reid a reasonable step.  This case suggests reminds officers to carefully report all factors justifying each use of force.  It may well be that a different outcome would have resulted if the court had considered the inevitable discovery doctrine.  Remember, too, the possibility of injury from falls by elevated or fleeing suspects.  Reid v. State, 2012 WL 3639058 (Md. 2012).

No expectation of privacy in cell phone location data

Melvin Skinner was known to federal agents by his drug courier code name, "Big Foot."  Agents learned that Skinner and his co-conspirator were using a particular cell phone to communicate.  The agents obtained a court order to require the cell phone service provider to release subscriber identification, cell site location information and real time GPS location information through pinging the phone.

Agents located Skinner at a truck stop in Texas.  They approached Skinner and asked for consent to search his motor home.  When he refused, a drug detector dog sniffed the exterior and gave a positive final response to the odor of controlled substances.  A search yielded 1,100 pounds of marijuana and two guns.

Relying on the 2012 Supreme Court case, United States v. Jones (see Xiphos archives), Skinner argued that tracking his location constituted a search.  Skinner also claimed that the cell location tracking was a search because there was no physical surveillance and the agents did not know his true identity.  Thus, he claimed, the officers were not merely using technology to do that which they might have otherwise accomplished through physical surveillance.

The court of appeals held that there was no search because Skinner had no expectation of privacy in his cell phone GPS location data.  Thus, no warrant was required.  The court distinguished this case from the Jones decision by noting that there was no "trespassory interference" with Skinner's vehicle because no tracker was attached to it. United States v. Skinner, 690 F.3d 772 (6th Cir. 2012).  For a more detailed discussion of cell site location information court rulings, see Wallentine, Cell Site Location Evidence: A New Frontier in Cyber-Investigation, 2011 (2) AELE Mo. L. J. 401.

Tips of child pornography on computers don't grow stale

Officers learned that Ronald Seiver downloaded a pornographic video of a 13 year-old girl, then uploaded still images extracted from the video to a child pornography sharing site. However, the officers learned that the download/upload activity happened seven months prior to the tip.  The officers obtained a warrant, searched Seiver's computer and located child pornography.  Seiver was convicted and sentenced to 35 years in federal prison.

Seiver claimed that the tip was stale and the affidavit for the warrant lacked probable cause.  The court of appeals shifted focus from earlier cases that addressed staleness in the context of the likelihood for child pornography collectors to hang on to illicit images.  Instead, the court joined a few other courts that examine current computer technology and the likely ability for computer forensic examiners to be able to retrieve deleted files up to the point that storage space utilization forces overwriting of the deleted images.

The Seiver case is a must-read for officers and prosecutors considering the freshness versus staleness of tips relating to evidence on a computer.  The court's decision lists a number of resources and cites supports from other courts using analogous reasoning.  United States v. Seiver, 2012 WL 3686387 (7th Cir. 2012).

Detector dog information not required in affidavit

A CI told a detective that Arcuri had more than 5 pounds of marijuana in his hotel room and van.  The detective called a drug detector dog team to sniff the hotel hallway outside Arcuri’s room and to sniff the van in the parking lot.  The dog gave a positive final response to the odors of controlled substances at both the hotel room door and the van. 

Based on the dog’s responses, the detective obtained a search warrant for the van and the hotel room.  The detective found marijuana in both locations.  Arcuri challenged the probable cause affidavit for the warrant.  The affidavit did not state that the detector dog was trained and certified at the time of the sniffs.

The court held that the reviewing magistrate properly issued the search warrant.  Because the affidavit stated that the detective was a narcotics officer and that he contacted a specific officer with a dog, it was inferable that the other officer was a trained detector dog handler and that the dog was a trained and certified drug detector dog.  The dog’s positive final responses provided independent probable cause for the searches.

This is the second court in the recent past to hold that an affidavit need not contain much detail about the drug detector dog’s training and certification.  However, an officer should provide the court with enough information to find that the dog is reliable.  Generally, the affidavit should recite the dog’s training, certification and available history of demonstrated field reliability.  Arcuri v. State, --- A.3d ----, 2012 WL 3059385 (Del. 2012).

Community caretaking encounter lead to valid DWI arrest

An officer saw Gonzales pull off the road at 0100 in an area leading out of town where there were no houses and few businesses and minimal traffic.  The officer pulled behind Gonzales to check to see whether he was lost or had a flat tire or some other problem.  The officer turned on his emergency lights so that Gonzales would know that it was a police officer behind him and not some bandit.

When the officer walked up to Gonzales’ car to speak to him, he smelled a strong odor of alcohol and saw that Gonzales’ eyes were bloodshot.  Gonzales spoke with slurred speech.   The officer began an impaired driving investigation and ultimately arrested Gonzales for felony DWI.

Gonzales claimed that he was seized without reasonable suspicion or probable cause.  The prosecution relied on the community caretaking doctrine discussed by the Supreme Court in Cady v. Dombrowski, 413 U.S. 443 (1973).  The community caretaking doctrine allows an officer to detain a person when the officer’s primary motivation is to see whether the person needs help and the totality of the circumstances makes it reasonable to believe the person needs help.

The court upheld the community caretaking stop.  The court explained that the location, time of night and the light traffic meant that Gonzales would have limited opportunity for help if, in fact, he needed help.  Once the officer saw signs of impairment, there was reasonable suspicion to detain Gonzales for a  DWI  investigation.  Gonzales v. State, --- S.W.3d ----, 2012 WL 2400763 (Tex. Crim. App. 2012).

Search by school resource officer doesn't qualify as "school search"

A school resource officer walked into a school restroom and saw Meneese at a sink, holding a bag of marijuana.  The SRO took Meneese to the school administration office and arrested him.  The SRO suspected that Meneese’s backpack might contain additional contraband.  The backpack was secured with a padlock. 

When the SRO asked for the key, Meneese claimed that he left it at home.  The SRO searched him, found the key and opened the backpack.  The backpack contained a facsimile Beretta air pistol.  Meneese was charged with a drug crime and carrying a dangerous weapon at a school.

The Supreme Court has ruled that school searches may be based on reasonable suspicion, not requiring probable cause because students have reduced expectation of privacy on school grounds and because school administrators have a substantial government interest in maintaining school safety and discipline.  The aim of school searches is to promote safety and discipline, not necessarily to find evidence of a crime.  When a school administrator conducts a search at the request of an officer, the more rigid probable cause standard may apply.   Courts have disagreed on how to scrutinize a search by an SRO on school property.

The SRO relied on the school search doctrine to justify his search of the locked backpack.  Meneese challenged the search of the backpack and asked the court to suppress the air gun.  The prosecution relied on earlier cases allowing similar searches by school officials.  The court considered whether the SRO was acting more in a traditional police role to collect evidence for criminal prosecution or more like a school official trying to preserve school order and discipline

The court considered that Meneese was already under arrest at the time of the search, the lack of school disciplinary action taken at the time of the arrest and the passive role of the school principal in the event .  The court held that the school search doctrine did not fit the search.  “In light of the overwhelming indicia of police action, the SRO was a law enforcement officer when he searched Meneese's backpack.”  This decision signals that courts will carefully look at the role that school resource officers are fulfilling at the time that they search student property.  State v. Meneese, --- P.3d ----, 2012 WL 3131439 (Wash. 2012).

Detector dog resume not required in affidavit

Grupee was arrested for possession of crack cocaine and firearms during execution of a search warrant.  An officer deployed a drug detector dog to sniff the exterior of a car parked at the home.  Following a positive final response by the dog, the officer obtained a search warrant for the car.  The subsequent search turned up a gym bag with ammunition, more cocaine and a bus ticket for Grupee.

Grupee claimed that the affidavit for the warrant to search the car was deficient because it did not state anything about the standards for training drug-sniffing dogs or about the particular dog's success and error rate.  The affidavit also did not cite any certification for the dog.  A prior decision in the First Circuit, United States v. Meyer, 536 F.2d 963 (1st Cir. 1976), held that describing a detector dog as "trained" and as accompanied by a handler is sufficient to allow a judge to reasonably infer that the dog has "attained a high degree of proficiency in detecting the scent of narcotics."

Giving the affidavit "a common sense and realistic reading," the court held that it was sufficient to support probable cause.  Although the preferable course would have been to recite training, field reliability and certification for the dog, the trial court could rightly infer that the dog was reliable.  The opinion was written by Supreme Court Justice David H. Souter, participating by designation on the court of appeals. United States v. Grupee, 682 F.3d 143 (1st Cir. 2012).

Stop based on visual estimate of speed overturned

A deputy visually estimated that Sowards was traveling 75 in a 70-mph zone.  The angle of the deputy's car made an accurate radar reading impossible.  The deputy, a drug detector K9 handler, stopped Sowards and then deployed the dog for a vehicle exterior sniff.  The dog gave a positive final response.  A search yielded 10 kilos of cocaine.

Sowards challenged the basis for the stop.  The deputy testified that he was certified in radar operation and he had experience visually estimating speeds, but he did not point to any specific training in speed estimation.  The deputy had not confirmed the speed by pacing or any other method.
During trial testimony, the deputy stumbled in cross examination when he first testified that there are 12 feet in a yard and later amended his answer to four feet per yard.  The court held that visual estimates of speeding alone will not constitute a lawful basis for a traffic stop unless the driver's speed is significantly faster than the speed limit or the officer confirms the estimate by radar, pacing, or other corroborating method.  One of the judges dissented, arguing that the trial court should consider the deputy's practical experience in estimating speeds.  United States v. Sowards, 2012 WL 2386605 (4th Cir. 2012).

Mere exit for highway during roadblock ruse not sufficient basis for a stop

Neff saw signs announcing a drug checkpoint and drug detector dog use ahead as he traveled on the highway.  There was no roadblock.  Officers were conducting a ruse operation (See Wallentine, The Respectable Roadblock Ruse, Police, June 1998).
Neff exited the highway onto a rural gravel road.  He turned around in a driveway and an officer stopped him.  The officer noted that Neff's license plate was from a distant county.  When the officer told Neff that his behavior was suspicious, Neff volunteered that he had a crack pipe.  A subsequent search of the car revealed 7 kilos of cocaine and $10,000 in cash.

In Illinois v. Wardlow, 528 U.S. 119 (2000), the Supreme Court upheld a detention based on a person's nervousness and unprovoked flight from officers.  Some courts have disfavored roadblock ruse stops based solely on a driver's exit from the highway after seeing a checkpoint sign.  However, any traffic violation (however slight) or articulable suspicious behavior may lead to a proper stop during a ruse operation.  Exiting the highway at a rural exit is merely one factor to be considered in analyzing reasonable suspicion.

The court held that a stop that "relies solely on a driver's decision to use a rural or 'dead exit' following checkpoint signs falls short of the requirement of individualized, articulable suspicion of criminal activity. . . .  We hold that an officer must identify additional suspicious circumstances or independently evasive behavior to justify stopping a vehicle that uses an exit after ruse drug checkpoint signs."  Even though the court recognized that an officer's training and experience must be considered in evaluating a driver's actions, Neff's behavior did not significantly deviate from the normal pattern of an innocent motorist and the stop was improper.  United States v. Neff, 681 F.3d 1134 (10th Cir. 2012).

Blood alcohol dissipation is insufficient exigency for warrantless blood draw

McNeely was stopped for speeding.  The trooper observed a number of intoxication clues and administered field sobriety tests.  He arrested McNeely.  McNeely refused a breath test.  Although the trooper had previously obtained search warrants when suspects refused a chemical test, the trooper chose to obtain a blood sample without a warrant.  He had read an article that he interpreted as justifying a forced blood draw under the exigent circumstances doctrine.

The Missouri Supreme Court held that the evanescent nature of alcohol in the blood does not create a per se exigency.  The court held that there must be some other exigency, such as a collision that results in personal injury, in order to justify a warrantless blood draw.  In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court upheld a warrantless blood draw after Schmerber had been involved in a crash and taken to a hospital.

The court stated that “Schmerber requires some exigency beyond the mere natural dissipation of blood-alcohol evidence.”  Several courts have held that the rapidly-dissipating blood alcohol level is not a sufficient reason for a warrantless blood draw.  That is the rule in Utah, State v. Rodriguez, 156 P.3d 771 (Utah 2007), Iowa, State v. Johnson, 744 N.W.2d 340 (Iowa 2008), and in the federal Ninth Circuit, United States v. Chapel, 55 F.3d 1416 (9th Cir. 1995).

A few other state high courts have allowed warrantless blood draws without any exigency beyond the alcohol dissipation.  States taking this view include Oregon, State v. Machuca, 227 P.3d 729 (Or. 2010), Minnesota, State v. Netland, 762 N.W.2d 202 (Minn. 2009), and Wisconsin, State v. Bohling, 494 N.W.2d (Wis.1993).  Officers should be sure know local court rulings and prosecutor requirements.  State v. McNeely, 2012 WL 135417 (Mo. 2012).

Girlfriend's consent to search was valid after man arrested and taken away

Police responded to Stimple’s home on a domestic violence call.  Stimple refused to allow the police to enter.  His girlfriend was outside of the home, talking to police, while the four kids were inside the home with Stimple.  Stimple eventually allowed officers to enter the home.  The officers found a gun during a protective sweep.  They arrested Stimple and took him away.

The girlfriend told police that there were several other weapons in the home and asked the officers to search for them because she was concerned about the kids.  Officers found other weapons, drug paraphernalia and an improvised explosive device.  Stimple claimed that the search was unlawful because he had refused to allow officers to enter his home.

In Georgia v. Randolph, 547 U.S. 103 (2006), the U.S. Supreme Court held that that the husband’s objection to police entry and search trumped any other resident's consent.  The Court further held that only an express refusal by a physically present resident could defeat consent offered by another resident.  In the years following the Randolph decision, courts looking at a battle of co-residents’ consent/refusal after the refusing party is removed have generally focused whether the police removed the refusing party for the purpose of obtaining a subsequent consent from other residents.

The Tenth Circuit held that police acted properly when they arrested a man and removed him from the scene without asking his consent to search and then obtained consent from his wife, United States v. McKerrell, 491 F.3d 1221 (10th Cir. 2007).  Following that lead, the Colorado court held that the police were not obligated to contact Stimple at the jail and obtain his consent.  Even though he had initially objected to entry by police, the officers removed him because he was under arrest for serious crimes, and not just to skirt around his refusal.  The girlfriend’s consent was valid.  People v. Strimple, 2012 WL 130870 (Colo. 2012).

Installation and monitoring of GPS tracker requires warrant

In 2010, Xiphos reported on the GPS tracking case involving Jones and Maynard (see the Xiphos 2010 archive on the web).  The U.S. Supreme Court today sided with the federal court of appeals and held that officers must obtain a warrant to place a GPS tracker on a suspect’s vehicle.  The Court was unanimous in holding that installing the tracker and the long-term monitoring (28 days) was a search under the Fourth Amendment.  A majority of five justices held that, "the Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

The Supreme Court did not consider whether the search was reasonable because the prosecutors did not make that claim in the lower court, thereby giving the Court leeway to deem the argument waived.  The Court divided 5-4 over the proper analytical approach for GPS tracking.  Justice Alito wrote a concurring opinion, joined by three other justices, that highlights the difficulties that the Court may encounter as technology advances and tracking by GPS-enabled cell phones or services such as OnStar become more commonplace.  The Jones decision could also impact the analysis of the when and how officers may lawfully use cell site location information (see <http://www.aele.org/law/2011all02/2011-02MLJ401.pdf>).  During oral argument in this case, justices asked about license plate recognition devices, Facebook monitoring and surveillance cameras.

The bottom line for officers is that installing a GPS tracker on a suspect vehicle now requires both probable cause and a warrant.  U.S. v. Jones, --- S.Ct. ----, 2012 WL 171117 (U.S. 2012).

Officers granted qualified immunity for warrantless entry into home

Officers were investigating reports that Vincent Huff had written a letter threatening to "shoot up" his high school.  The officers learned that Huff had been absent from school for two days and that he was frequently bullied by other students.  Officers spoke with one student who knew Huff and believed that he was capable of violence.  Many parents heard reports of the threat and kept their children home from school.  Two officers went to the Huff home to speak with Vincent and his parents.  No one answered their knock on the door.  The officers called the home telephone number and could hear it ringing inside.  When no one answered the phone, the officers called Mrs. Huff's cell phone.  She answered, spoke briefly with an officer and then abruptly hung up the phone.  After a few minutes, Mrs. Huff and Vincent came to the front porch to talk to the officers.
When one of the officers asked Mrs. Huff whether they could talk inside, she refused.  The officer asked whether there were any guns in the house.  Instead of answering, Mrs. Huff quickly turned and ran into the house.  An officer, concerned that Mrs. Huff could retrieve a gun, followed her inside to the living room.  After a few more minutes, Mr. Huff came into the living room and challenged the officers.  The officers left without further incident.
The Huffs then sued the officers, claiming that they illegally entered the Huff home.  The trial court granted qualified immunity to the officers, ruling that the officers were required to make a decision in tense and rapidly-evolving circumstances.  The Ninth Circuit Court of Appeals, in a 2-1 decision, reversed the grant of qualified immunity.  The officers appealed.  The Supreme Court held that the trial court properly granted qualified immunity to the officers, protecting them from suit.  In a short, unanimous decision, the Court stated: "reasonable officers in the position of petitioners could have come to the conclusion that there was an imminent threat to their safety and to the safety of others.  The Ninth Circuit's contrary conclusion was flawed for numerous reasons."  The Supreme Court noted that the Ninth Circuit had considered each factor in the analysis of exigency and knocked down each factor individually "with hindsight and calm deliberation," rather than follow clearly-established law required analysis of the totality of the circumstances.  Ryburn v. Huff, --- S.Ct. ----, 2012 WL 171121 (U.S. 2012).

Search of cell phone call logs proper under inventory doctrine

Ochoa was arrested during a controlled delivery of a large amount of cocaine found during a traffic stop of a drug courier.  Following the arrest, officers examined a cell phone found in his car.  The phone contained evidence that Ochoa had telephoned the drug courier.  The Fifth Circuit Court of Appeals had held in 2007, in United States v. Finley (see 2007 Xiphos archives), that a phone could be searched incident to a lawful arrest.  Subsequent to the Finley case, the Supreme Court restricted the search incident to arrest doctrine in Arizona v. Gant.  Some courts have relied on Gant to limit searches of phones incident to arrest.

The Fifth Circuit held that it did not need to decide whether Gant curtailed the Finley holding.  The court held that the cell phone logs would have been inevitably discovered during an inventory of Ochoa's vehicle.  The court noted that the agency "has standard operating procedures calling for an inventory of a vehicle to protect the agency from claims of lost or stolen property. Indeed, pursuant to those procedures, agents began taking an inventory of Ochoa's car shortly after the cell phone was seized. Further, there was at least a reasonable probability that the agents would have uncovered the cell phone, which had been ringing as one of the agents drove Ochoa's car to the agency, during the inventory."  United States v. Ochoa, --- F.3d ----, 2012 WL 104997 (5th Cir. 2012).

Cutting off bag of cocaine tied to body part rendered search unreasonable

Several officers were looking for Edwards to arrest him on a warrant for brandishing a firearm at his ex-girlfriend.  The officers knew that Edwards had a drug arrest history.  They saw Edwards walking down the street and arrested him without incident.  When the transport van arrived, one officer removed Edwards' belt and pulled the front and the back of Edwards' underwear away from his body.  The officer saw a bag of cocaine tied to Edwards' [male part] (Xiphos cannot slip by the spam filter if we use the proper terminology).  The officer set down his flashlight (it was late at night) and retrieved a knife.  The officer reached in and started cutting.  Edwards asked the court to suppress the cocaine, arguing that the slicing during the search was unreasonable.  The appellate court agreed.  "We conclude that the use of a knife in cutting the sandwich baggie off Edwards' [part] posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness. The fortuity that Edwards was not injured in the course of this action does not substantiate its safety."  I guess that you get the moral of the story on your own.  United States v. Edwards, --- F.3d ----, 2011 WL 6825360 (4th Cir. 2011).

Frisk of all group members permissible when crimes were being openly committed

Williams and eight others were standing in front of a vacant house.  Some (not Williams) were openly smoking marijuana.  Responding to a citizen complaint, several officers approached the group.  Officers frisked the persons smoking marijuana and found that two men had concealed guns.  At that point, an officer told all of the men to lay on the ground and tell the officers if they had weapons.  When Williams laid down, an officer saw a bulge in the small of his back.  The officer patted the bulge and recognized that it was a gun.  Williams was convicted of carrying a weapon by a convicted felon and carrying a concealed weapon.

Williams argued that the frisk was unlawful because there was no reasonable suspicion particular to him.  Williams cited the U.S. Supreme Court decision in Ybarra v. Illinois, 444 U.S. 85 (1979), in which the Court disallowed general frisks of persons found in a place where other persons were suspected of crimes.  In Ybarra, officers frisked every patron in the Aurora Tap Tavern when they entered the tavern to execute a search warrant.  The bar tender was suspected of selling drugs.  The Court held that the frisk of Ybarra could not be justified solely because he “happened to be on premises where an authorized narcotics search was taking place.”  Courts have long held that mere presence in a high-crime area is not alone sufficient evidence to justify a detention or a frisk.

The Kentucky court disagreed with Williams.  In this case, the court distinguished the prohibition on frisks of persons based only on association with suspected criminals from Williams’ situation.  Williams was in a public place associating with persons who were openly using illegal drugs.  That gave police reasonable suspicion to detain the entire group.  Observing the bulge in Williams’ waistband lead to a valid frisk.  The message of this case for officers is two-fold.  First, remember that frisks of all persons present near suspected criminal activity or at the scene of a search are usually not allowed.  Second, a detention may be justified where a person is hanging out with others who are openly violating the law.  Williams v. Commonwealth, 2011 WL 5877781 (Ky. 2011).

Gant did not limit scope of protective sweep doctrine

Manuel walked into a pawn shop began firing at the owner, ultimately shooting him 10 times. Manuel then stole 2 guns from the shop.  Police tracked Manuel to a hotel.  A tactical team executed an arrest warrant at the hotel room and arrested Manuel.  His girlfriend was also in the room.  Officers handcuffed them both and took them outside.  During a protective sweep, an officer lifted up the bed springs to check for anyone hiding under the bed.  The officer heard a clunking sound and could see a gun through the mesh fabric.  The girlfriend consented to a search of the room and the officers retrieved the gun.  Manuel claimed that the sweep was an illegal search, asserting that the decision in Arizona v. Gant restricts the area of a protective sweep.

The United States Supreme Court described the protective sweep doctrine in Maryland v. Buie, 494 U.S. 325 (1990).  The Court held: “As an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.”  Thus, under Buie, officers making an arrest may lawfully conduct a protective sweep in the area immediately adjacent to the arrest without any suspicion, and may conduct a broader protective sweep when the officers have a reasonable belief that the area harbors someone who could pose a safety threat.

The court rejected Manuel’s argument that Gant cut into the Buie protective sweep doctrine.  Officers testified that they normally look under beds in the immediate area of an arrest to check for hidden persons (everyone knows that monsters hide under beds).  The court found such checks to be within the proper scope of a protective sweep and affirmed admissibility of the gun as evidence against Manuel.  State v. Manuel, 2011 WL 6372855 (Ariz. 2011).

Michigan v. Summers allows detention of search warrant target resident who is away from the target location

Following a tip and evidence gleaned from a trash cover, officers obtained a search warrant for Montieth’s home.  The officers knew that Montieth lived with his wife and two small children.  To avoid traumatizing the children during the warrant execution, officers waited until they saw Montieth driving away from his home.  They stopped him less than a mile from his home.  He told the officers that there was marijuana in the home.  The officers handcuffed Montieth and drove him to his home.  Officers knocked on the door and spoke with the wife.  She took the children to another location.  Officers took Montieth inside and executed the warrant, finding marijuana in the locations identified by Montieth.

Montieth later claimed that the warrant execution followed an unlawful detention.  The prosecution relied upon Michigan v. Summers, 452 U.S. 692 (1981), a case where the Supreme Court held that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.”  Montieth claimed that a detention under Michigan v. Summers may only happen at the site of the warrant execution.  The appellate court disagreed, holding that Michigan v. Summers may justify detention of a resident of the target location even when the resident is some distance away from the target.  “We consider whether the police detained the individual ‘as soon as practicable’ after observing him leave the residence.”  The court also held that the stop was a proper investigatory detention under Terry v. Ohio.  United States v. Montieth, 662 F.3d 660 (4th Cir. 2011).