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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.
New York Court of Appeals requires "founded suspicion" for dog sniff of a car
Devone was a passenger in a car driven by Washington when officers stopped Washington for talking on a cell phone while driving. Washington could not produce license or registration, but said that the car belonged to his cousin. Washington told officers that he did not know his cousin’s name, but pointed to Devone, a male, and identified him as his cousin. The car was registered in a female’s name. The officers brought out a drug detector dog and the dog alerted to the exterior of the car on the driver side. Officers searched and found crack cocaine. Devone argued that the exterior sniff was a search under the New York state constitution and that the officers lacked probable cause.
New York is one of a few states where courts have disagreed with established U.S. Supreme Court decisions in United States v. Place, 462 U.S. 696 (1983), and United States v. Jacobsen, 466 U.S. 109 (1984), holding that a dog sniff is not a search. New York's high court required reasonable suspicion before allowing a dog sniff at the door of a home, in People v. Dunn, 564 N.E.2d 1054 (N.Y. 1990), or a sniff of luggage checked with a common carrier, in People v. Price, 54 N.Y.2d 557 (1981). Subsequent to all of these cases, the Supreme Court decided the case of Illinois v. Caballes, 543 U.S. 405 (2005), holding that the exterior sniff of a car at a lawful traffic stop did not constitute a search. The New York Court of Appeals rejected the blanket application of Caballes, but did not agree with Devone that the exterior sniff required probable cause. Instead, the New York held that an officer may use a drug detector dog to conduct an exterior sniff of a lawfully detained vehicle upon "founded suspicion" that the vehicle contains contraband. The "founded suspicion" standard is a lesser standard than the more-commonly applied standard of reasonable suspicion. The court held that the officers had founded suspicion and therefore the sniff was valid. People v. Devone, --- N.E.2d ----, 2010 WL 2265212 (N.Y. 2010).
Placement of GPS tracker and monitoring for several months not a search
Drug task force officers in Iowa learned that a white pickup truck was being used to carry marijuana. Officers placed a GPS tracking device on the bumper and monitored the tracker for several months, discovering that the truck was traveling to and from Denver. On seven occasions, the officers changed the batteries on the tracker while the truck was parked in a public place. Several search warrants were executed, including a warrant for Marquez's home in Iowa. Officers seized hundreds of pounds of marijuana, and seized guns and scales at Marquez's home. Marquez claimed that the placement of the GPS tracker on his truck was a search.
The court of appeals first held that Marquez did not have legal standing to challenge the search because he was not the owner or driver, but only an occasional passenger in the truck. However, the court also held that no Fourth Amendment violation occurred in the tracker placement. The tracker installation was non-invasive and the installation and all battery changes happened in public places. The tracker only revealed movement that could be observed by an officer watching or following the truck. The court noted that the tracker installation "merely allowed the police to reduce the cost of lawful surveillance." Officers should be aware that some states may have more restrictive statutes or case law. For example, in People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009), the New York Court of Appeals imposed greater limits under the state constitution. United States v. Marquez, 605 F.3d 604 (8th Cir. 2010).
Forfeiture of home and land was appropriate in child pornography penalty
Hull and his wife owned 19 acres, improved with a large barn and a three-bedroom home. Hull used his home office equipped with a hard wire internet connection to send child pornography to several undercover officers in multiple states. Each officer posed as a mother with female children. Hull solicited the undercover officers to allow him to have sexual contact with their fictitious "daughters." Officers served a search warrant at Hull’s home and found 262 images of child pornography. Hull was convicted of two counts of distribution of child pornography and sentenced to prison. The district court judge described the sado-masochistic images seized from Hull's residence as "beyond the pale" and "worse than anything" the judge had ever seen. Because of Hull's solicitation to have sex with young girls and the nature of the child pornography, the prosecutor filed a claim for forfeiture of Hull's home and land.
The court of appeals stated that the real property used in the offense (where Hull located his computer and sent his electronic communications) did not need to be "indispensable to the offense" to warrant forfeiture. The prosecution needed only to show a "substantial connection" between the property and the offense. The court noted, "Hull used his real property to commit or to promote the commission of the child pornography offenses. He set up a computer in a room in his house, connected to the Internet, and distributed child pornography from there. The evidence showed a substantial connection—not merely an incidental or fortuitous relationship—between the real property and the offenses. To be sure, use of the computer was necessary to commit the offenses, but the real property played a substantial role as well. The house enabled Hull to establish a hard-wired connection to the Internet, which allowed him to distribute the contraband. It also provided a secure place to store the images that he later distributed. Use of a computer in the privacy of the residence, rather than in a library, coffee shop, or senior center, made it easier for Hull to conceal his crimes from public scrutiny." The court held that forfeiture was not disproportionate to the offense. Hull’s equity in the property was $192,632, less than the maximum fine recommended by the Sentencing Guidelines of $200,000. Thus, Hull went to the big house and lost the little house. United States v. Hull, 606 F.3d 524 (8th Cir. 2010).
No liability for forced catheterization for urine sample
Officers were looking for Smith, wanted on a felony arrest warrant and was also wanted for assault on a police officer and burglary. The officers learned that Smith had borrowed a white Thunderbird. After the car was spotted leaving a home, officers stopped the car for a traffic violation. Smith was not in the car. The driver, Haley Sue Owen (now Haley Sue Owen Hooper), showed signs of extreme bruxism (an involuntary tightening of the jaw muscles), her eyes were darting back and forth, she had involuntary facial twitches, was shifting her weight back and forth, and was fidgeting. An officer asked her to perform some field sobriety tests. Miss Owen told the officer to "suck my c__k or lick my a__hole." The officer understood Owen's invitations to be a refusal to cooperate with field sobriety tests. Believing that Owen was substantially impaired by illegal drugs, the officer arrested her for driving under the influence of drugs. He took Owen to the county jail and asked that she submit to a chemical test. Owen responded with a series of expletives that indicated a refusal. The officers obtained a warrant for body fluids. At about that same time, Smith turned himself in to police.
Owen was given a copy of the warrant and asked to provide a urine sample. She refused and told officers that they would have to take her urine. Owen later testified that she refused because she was certain that her urine would show that she had recently used methamphetamine and marijuana. The officer contacted the district court judge and told the judge of the refusal and asked whether a catheter could be used to withdraw urine from Owen. The judge so ordered. At the hospital, Owen fought violently and had to be restrained by three male officers and a female officer. A nurse tried to persuade Owen to cooperate. The nurse placed a covering so that the male officers did not have to observe the procedure, but Owen kicked it off, assaulted the nurse and threatened her. The male officers looked away during the procedure. The nurse successfully obtained urine. The urine later showed the presence of marijuana and methamphetamine.
Owen was charged with a number of charges. A district court judge (not the same judge that issued the warrant) ordered the evidence flowing from the forced catheterization to be suppressed. Owen then sued. A federal district court judge granted summary judgment against Owen on all of her claims. The court began the discussion by noting that the officers undertook a "laborious process of trying to talk Owen into voluntarily complying with their request." Next, the officers did not immediately attempt a forced urine draw. Instead, the arresting officer consulted with a district court judge. Then the officer, and a nurse, patiently explained to Owen that the procedure would be done if Owen would not cooperate. The officer also ensured that a licensed, qualified medical professional performed the catheterization. The officers tried to give Owen the maximum possible privacy, and they used only the force reasonably necessary to restrain Owen for the medical procedure. The judge noted that, "what Owen now claims amounted to 'excessive force' always remained within Owen’s control. The undisputed facts demonstrate that at all times during the encounter Owen had both the capacity and repeated opportunity to comply with the officers' requests and to provide a urine sample in a completely non-invasive manner. Owen's voluntary compliance would have obviated the need to use any amount of force, but Owen chose to not comply."
Who won? The officers walked away with a complete victory in civil court, though it took years for that to happen. Owen didn't get the money that she sought. Owen's attorney walked away with a definitive loss. The assistant Utah Attorney General prevailed on behalf of the officers. Owen "won" the DUI charge and avoided some criminal convictions. Everyone involved in the case watched the legal wrangling for nearly six years and the possibility of appeal remains. Sometimes winning comes at a cost. Though the courts have ruled on a few cases involving forced catheterization and other invasive medical procedures to obtain evidence, this case is a reminder that these are not decisions to be made lightly. Indeed, this is a case where the arresting officer went back to the judge even after the judge issued a search warrant. The officer went that extra mile. Officers should carefully weigh the long term costs of such a procedure against other means of proving the elements of a crime and should pause to consult with legal counsel and command staff. Haley Sue Owen Hooper v. Pearson, 2:08-cv-00871-DB (D. Utah 07/26/2010).
Lifting a shirt during justifiable frisk ruled improper
An anonymous caller reported that a man with a gun was standing on a street corner. A veteran officer went to the location and saw Privott, who perfectly matched the description given. The officer had dealt with Privott before and knew Privott to be associated with a violent gang. The officer had also made many drugs arrests in the area. Privott began to walk away, touching his waistband. The officer commanded him to place his hands against a fence. Then the officer lifted Privott's shirt and found a bag of crack cocaine. Privott challenged the Terry search. The New Jersey Supreme Court had no trouble finding that there was reasonable suspicion to stop Privott and frisk him. In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that an officer may frisk a suspect for weapons during a valid investigative stop. The frisk is limited to a pat search of outer clothing to find weapons.
The New Jersey court was divided on whether the officer's method was proper. A frisk must be limited to the least intrusive means to look for weapons that can be used to injure the officer or others. The court stated that Privott was following the officer’s orders to assume a frisk position against the fence. The court said that its task was to balance Privott's privacy rights in not having his midsection exposed to the officer’s right to be safe and conduct a lawful frisk. Although one can easily see how lifting a shirt might be less intrusive than running a hand over the clothed body and feeling body parts, the court sided with Privott. "In this case, we strike that balance in favor of the traditional pat-down search." The court's decision seems plainly opposite the U.S. Supreme Court ruling in Adams v. Williams, 407 U.S. 143 (1972), where the Court upheld an officer's reach into suspect's waistband where the officer believed the weapon to be hidden. However, the New Jersey court skirted the Supreme Court's precedent by drawing the distinction that Privott was being cooperative and Adams was not. This case seems to illustrate the complexity of deciding how many gnats can dance upon the head of a pin and just how profoundly technical some courts expect an officer's instant legal analysis to be during a dangerous encounter with a dangerous gang member. If the New Jersey court’s opinion may be helpful in an constructive and instructive way, it is to suggest that the outcome might have been different if the officer had first asked Privott if he could lift his shirt, or if the officer had used slightly more force than he did and actually laid hands on Privott's person. State v. Privott, --- A.2d ----, 2010 WL 2571355 (N.J. 2010).
Dope found in passenger compartment leads to valid search of trunk
An officer stopped DeGray for a tail light violation. Though it was a cold night, the officer noted that the rear passenger window was down before the car stopped. As the officer spoke with the three persons in the car, he could smell burnt marijuana. The occupants admitted that they had been smoking weed in the car. Officers searched DeGray's car and found a couple of marijuana cigarettes and marijuana shake in the passenger compartment. The officers searched the trunk and found eight bags of cocaine and a number of ecstasy tablets. DeGray claimed that there was no probable cause for the search of the trunk. The Massachusetts appellate court disagreed. Distinguishing this case from an earlier decision in which the marijuana odor came from the clothing of a car’s occupants and not the car itself, the court held that finding the marijuana cigarettes in the passenger compartment and the admission that the occupants had been smoking in the car created probable cause to search the entire car. The court noted that the discovery of even a small amount of drugs, even personal use quantity, could justify the search of a car's trunk area. Because there was a connection between use of marijuana and the car, the search was valid and the cocaine and ecstasy were lawfully discovered. That was the critical factor in this case and officers should always look for a connection between the odor of drugs or other extrinsic evidence of drug use and the vehicle itself. Commonwealth v. Degray, 928 N.E.2d 971 (Mass. App. 2010).
Utah Supreme Court finds girlfriend to be reliable as a good-citizen informant
Roybal and his girlfriend got into a fight. The girlfriend called police and said that she wanted Roybal out of the apartment that they shared. She told the dispatcher that they had both been drinking. As she was speaking with the dispatcher, Roybal was putting some of his belongings into his van. When he drove away, the girlfriend provided a description of the van, a partial license plate number and the travel direction. The dispatcher perceived that the girlfriend was intoxicated. The dispatcher broadcast a domestic dispute with two “very intoxicated” parties and broadcast the vehicle information. A responding officer saw Roybal stopped at a stop sign and followed him. Roybal drove between 5 and 25 m.p.h. in a 35 m.p.h. zone. Roybal made a couple of turns and appeared to be trying to avoid the officer. The officer stopped him, detected the odor of alcohol, administered field sobriety tests and arrested Roybal.
Roybal was convicted of driving under the influence. The Utah Court of Appeals reversed Roybal’s conviction, holding that the dispatch information on which the officer heavily relied to make the traffic stop did not create reasonable suspicion to believe that Roybal was under the influence of alcohol. The appellate court discounted the veracity of the information because it was not sufficiently detailed and the appellate court considered information provided by a domestic partner to be less reliable than information from an unrelated party. In Salt Lake City v. Bench, 177 P.3d 655 (Utah Ct. App. 2008), the court of appeals held that “when a citizen-informant has some kind of personal involvement with the suspect, the information conveyed is considered less reliable because there is a possibility that the citizen is making allegations out of anger, out of jealousy, or for other personal reasons.” However, information provided by a family member or close associate may, in fact, be much more reliable. The family member is often ill-disposed to report the illegal conduct to the police out of family loyalty, and the family member is in a much better position to measure the degree of impairment and is in a better position to observe illegal conduct.
The Utah Supreme Court, in one of the final opinions written by retiring Justice Michael Wilkins, reversed the Utah Court of Appeals. Justice Wilkins’ retirement is a substantial loss to the Utah judiciary. Justice Wilkins wrote: “We hold that the fact of personal involvement with the suspect carries no presumption one way or the other; a personally involved informant is not presumed to have any lesser or greater reliability than any other identified informant. Indeed, an identified citizen-informant is presumed reliable, and personal involvement of the informant with the suspect neither weakens, nor strengthens, that presumption.” State v. Roybal, --- P.3d ----, 2010 WL 1929816 (Utah 2010).
Girlfriend's consent to computer search was valid, even though cohabitant objected, rejecting Randolph rule for personal property
King, known by the screen name “ayoungbeaverluvr,” met Larkin on-line through a website called “CherryPoppinDaddys.” King told Larkin that performing oral sex on his own daughter caused his divorce. King offered to drive over 200 miles to Larkin's home so he could perform oral sex on Larkin's two-year-old daughter. During the next two months, King and Larkin chatted online about their mutual interest in watching minors engage in sex acts with adults and shared child pornography. After Larkin said she liked one depiction of a young child engaged in a sex act with an adult, King responded he would “most definitely” do the same to Larkin’s daughter. King chatted on-line with others about his sexual interest in Larkin’s daughter. Larkin sent nude pictures of her daughter to King. King maintained several other online relationships with underage girls. He sent child pornography to them and taught them to masturbate. He also sent them pictures of his genitals. Larkin briefly lost contact with King when she left her husband and moved. Larkin later contacted King, reminded him of her fantasy and arranged to move in with King. King began performing oral sex on Larkin’s 2 year-old daughter. Though they lived under the same roof, King and Larkin continued corresponding via e-mails that show King's sexual contact with the child was frequent enough to make Larkin jealous. King also helped Larkin use a PayPal account to obtain payment for distributing pornographic images of her daughter over the internet.
Officers learned that King was distributing pornographic images of the daughter. They decided to arrest Larkin on an unrelated warrant. Larkin consented to seizure and search of her computer. As the officers were removing the computer, King claimed an interest in one of the hard drives and asked to take it out of the computer before the search. The officers refused. A search of the computer provided evidence used to convict King of traveling interstate to engage in sex with a minor.
In United States v. Matlock, 415 U.S. 164 (1974), the Supreme Court held that a third party with “common authority” over premises may give valid consent to a warrantless search. The Court stated that, “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” In Georgia v. Randolph, 547 U.S. 103 (2006), the Court did not follow the assumption-of-the-risk analysis where Randolph objected after his estranged wife invited police to search their home. A subsequent decision of the Ninth Circuit Court of Appeals, United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008), held that “there is no reason that the rule in Randolph should be limited to residences.” The court reasoned that the common authority rationale of Randolph should be extended to a storage shed.
The Third Circuit Court of Appeals disagreed with the Ninth Circuit view that Randolph’s rule of common authority should be stretched to consider personal property and returned to the Matlock analysis of assumption of the risk between cohabitants. “Although the majority opinion in Randolph did not directly address personal property, our review of three opinions filed in Randolph leads us to conclude that the Supreme Court implicitly limited its holding to searches and seizures of the home.” “In sum, our reading of [the majority and dissenting opinions] leads us to conclude that the rule of law established in Randolph does not extend beyond the home.” Thus, King’s objection to seizure of his hard drive was insufficient to overcome Larkin’s consent to seizure of her computer, into which King had placed a hard drive. United States v. King, --- F.3d ----, 2010 WL 1729733 (3rd Cir. 2010).
Girlfriend's consent to search suspect's shoebox in closest not valid
Officers received a tip that Taylor, a wanted fugitive, was staying in Arnett’s apartment. When they knocked on Arnett’s door, she initially claimed that Taylor was not there. However, she allowed the officers to search and then admitted that he was there. The officers found Taylor in a bedroom, wearing only his underwear. Arnett then gave verbal and written consent to a more thorough search. The officers did not seek consent from Taylor. They went back into the bedroom where Taylor was found. There were men’s clothes strewn about the room. In a closet, officers found a shoe box labeled for men’s Nike shoes, covered by an item of men’s clothing. The officers searched the box and found a weapon, ammunition and Taylor’s jail identification bracelet from his last stay in a county hospitality suite.
Taylor was charged with possession of a handgun by a convicted felon. The court suppressed the evidence found in the shoe box, ruling that a reasonable person would have made further inquiry about Arnett’s interest in the room, clothing and shoe box. The police could not rely on the apparent authority doctrine because Arnett would not reasonably appear to have authority over the shoe box. The officers faced an ambiguous situation, at best, and should have asked further questions about control of the room, closet and shoebox. The court stated that, “if the agents do not learn enough, if the circumstances make it unclear whether the property about to be searched is subject to mutual use by the person giving consent, then warrantless entry is unlawful without further inquiry. Where the circumstances presented would cause a person of reasonable caution to question whether the third party has mutual use of the property, warrantless entry without further inquiry is unlawful.” United States v. Taylor, 600 F.3d 678 (6th Cir. 2010).
Officer entitled to ask for passengers' names and DOBs under Fourth Amendment
An officer stopped a car in which Fernandez was a passenger. As the officer approached, he could see that none of the passengers were wearing seatbelts as required by Massachusetts law. The officer asked for Fernandez’s name and DOB so that he could issue a citation to him for the seatbelt violation. The officer then learned that Fernandez had an active arrest warrant. A search incident to arrest produced marijuana, cocaine and a gun.
Fernandez asked that the evidence be suppressed, arguing that the questioning about his name and DOB was improper under the application of Massachusetts’ seatbelt law. The federal appellate court declined to interpret state law, instead holding that the Fourth Amendment permits an officer to inquire about passengers’ names and other information, so long as the inquiry does not appreciably extend the duration of the traffic stop. The court recognized that the recent Supreme Court decision in Arizona v. Johnson, 129 S.Ct. 781 (U.S. 2009), held that a traffic detention must be limited in duration and scope relating to the reason for the detention. The court considered the many decisions that have relied on Muehler v. Mena, 544 U.S. 93 (2005) and Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004), to hold that asking for a passenger's identification and running warrants check does not automatically unreasonably expand the scope of the passenger's detention incident to the stop of the vehicle. In Arizona v. Johnson, the Supreme Court held that, “an officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” Even before the recent Supreme Court decisions, this was established law in the Tenth Circuit Court of Appeals. See United States v. Rice, 483 F.3d 1079 (10th Cir. 2007) (“Because passengers present a risk to officer safety equal to the risk presented by the driver, an officer may ask for identification from passengers and run background checks on them as well.”) Because the warrant check for Fernandez took no longer than the warrant check for the driver, the scope of the stop was not improperly expanded and the discovery of the arrest warrant leading to the arrest was proper. Therefore, the search incident to arrest was valid. United States v. Fernandez, 600 F.3d 56 (1st Cir. 2010).
Second search after a drug dog sniff not barred by unsuccessful first search
Hernandez-Mendoza and his companion were traveling east on I-90 through Wyoming. During a stop, a Wyoming State Trooper suspected that they were carrying illegal drugs. He called for a sheriff’s deputy with a drug detector dog. The dog sniffed and gave a positive final response indicating the presence of the odors of controlled substances. The trooper searched the car at the roadside for an hour, finding nothing. He then had the car taken to a state garage and searched for an additional two hours. A supervisor told the trooper to let Hernandez-Mendoza go free. The sheriff’s deputy disagreed with this decision and he called a trooper in South Dakota to watch Hernandez-Mendoza. A South Dakota State Trooper stopped Hernandez-Mendoza for another traffic violation and deployed another drug detector dog. Following another positive final response, the South Dakota trooper searched the car. Within a few minutes the trooper discovered a hidden compartment with multiple sealed containers of methamphetamine and cocaine.
Hernandez-Mendoza asked the court to suppress the evidence from the second search, relying on United States v. Garcia, 23 F.3d 1331 (8th Cir. 1994). In that case, the court overturned a second search based on the same information justifying the first search. The court declined to extend the holding in Garcia to the facts in Hernandez-Mendoza’s case. The Wyoming search was stopped based on a lieutenant’s order and not an exhaustion of the search. The fact that the South Dakota trooper so quickly found the compartment in the second search was evidence that the Wyoming trooper and county deputy had not completed their methodical search. United States v. Hernandez-Mendoza, 600 F.3d 971 (8th Cir. 2010).
Automobile search exception applied to a parked semi trailer
Officers were watching a group suspected of transporting drugs hidden in legitimate cargo in semi trailers. They watched Navas drive a tractor-trailer rig into a warehouse, unhitch the trailer, lower the support legs and drive away. While some officers watched the trailer in the warehouse, others arrested Navas some distance away. Navas admitted that he was transporting drugs that were hidden in a compartment on top of the rig. The officers searched the parked trailer in the warehouse (Navas gave verbal consent to enter the warehouse). They found 230 kilos of cocaine in a roof compartment of the trailer.
Navas argued that the automobile exception to the Fourth Amendment warrant requirement could not apply to a parked trailer incapable of moving under its own power. The appellate court noted that the exception is grounded in two bases: the inherent mobility of the automobile and a reduced expectation of privacy in the automobile. Though it may seem that the trailer was not “inherently mobile,” the court held that “this rationale supports the application of the automobile exception to the warrantless search of the trailer.” The court stated that, “a trailer unhitched from a cab is no less inherently mobile than a wagon without a horse.” The trailer legs could easily be retracted and the trailer could quickly be hitched to a tractor and driven away. Thus, the search was proper. United States v. Navas, 597 F.3d 492 (2nd Cir. 2010).
Court discusses relaxed limits on unrelated questioning during a traffic detention
You just got to love tax day. April 15 was just not Everett’s day. In the evening, Everett kindly helped soon to be ex-wife move into a new house. She told Everett that he had to take away some of his belongings, including his shotgun. By the time he had finished, it was approximately 2030. Being tax day, Everett needed to get to the tax-preparation company office, before closing time-which he believed to be 9:00 p.m.-in order to seek help filing for an extension to file his tax return. Not surprisingly, he was speeding and a detective assigned to a crime suppression unit saw him. The detective followed Everett into a parking lot and spoke with him. His day plummeting to the bottom of the toilet, Everett admitted that his driver license was suspended. The detective smelled the odor of alcohol on Everett’s breath. She asked Everett whether he had any alcohol. Everett told her that he had a Big Gulp-sized beer and a shotgun. He also volunteered that he knew that he should not have the shotgun because he was a convicted felon. You have to ask yourself when you last had a defendant or client who was so refreshingly candid.
Everett was charged with possession of a dangerous weapon by a convicted felon. Everett sought suppression of the evidence and the statements obtained during the traffic stop. Everett claimed, and the detective conceded, that the traffic detention was a pretext to investigate other criminal activity. Pretextual traffic stops were expressly approved by the U.S. Supreme Court in Whren v. United States, 517 U.S. 806 (1996). In Whren v. United States, the United States Supreme Court ruled that no Fourth Amendment violation occurs for a traffic stop based on a minor violation when the violation is a pretext rather than the actual motivation for the stop. Following Muehler v. Mena, 544 U.S. 93 (2005), most courts have allowed questioning unrelated to the initial purpose of the traffic detention. After Whren, courts applied the reasonableness test of the Fourth Amendment to determine whether the particular stop was appropriate. Courts consider whether the duration and scope of the stop were justified by reasonable suspicion for the stop.
Last year, in Arizona v. Johnson, the Supreme Court held that “an officer's inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” The Court’s holding raised the question of what it means to “measurably extend the duration of the stop.” In this case, the court declined “to construe Muehler and Johnson as imposing a categorical ban on suspicionless unrelated questioning that may minimally prolong a traffic stop.” Thus, there is no bright line rule prohibiting a brief extension to a traffic stop to ask a few questions unrelated to the initial justification for the stop. “Muehler and Johnson make clear that an officer may ask unrelated questions to his heart's content, provided he does so during the supposedly dead time while he or another officer is completing a task related to the traffic violation. A police officer intent on asking extraneous questions could . . . delegate the standard traffic-stop routine to a backup officer, leaving himself free to conduct unrelated questioning all the while, or simply by learning to write and ask questions at the same time.”
The court did note that in many cases where other courts reached different results, the questioning occurred after the officer had completed all of the business associated with the initial purpose of the stop. This strongly suggests that officers consider using the “free time” or “dead time” during the stop. The ultimate question that courts should ask is “whether the ‘totality of the circumstances surrounding the stop’ indicates that the duration of the stop as a whole—including any prolongation due to suspicionless unrelated questioning—was reasonable.” The court noted that it would examine the content of the officer’s extraneous questioning, as well as the length of the questioning, to rule on the reasonableness of the detention. The court suggested that questions about travel plans, travel history, officer safety issues and dangerous weapons will generally be permitted. In this case, the detective was asking about weapons, which the court found to be “is reasonably related to the legitimate and weighty consideration of officer safety.” Thus, almost two years to the day after tax day, the court of appeals upheld Everett’s conviction. United States v. Everett, --- F.3d ----, 2010 WL 1286770 (6th Cir. 2010).
Exigent circumstances doctrine can apply when suspect's location is distant from potential victims
Officers assigned to a New Mexico high school dealt with a series of shooting and bomb threats over a three month period. Much of this stemmed from gang rivalry. One morning, a woman told school officials that a gang member named “Chris” who had recently been expelled and transferred to another high school would call in a bomb threat. Officers had intel that a gang member would call in a bomb threat and then shoot rival gang members as the school was evacuated. A bomb threat did occur. An officer identified Chris Armijo as the sole suspect. He was a gang member who had recently been expelled from the school and recently transferred to another high school. Officers went to Armijo’s home, knocked and shouted. No one came to the door. The officers entered, woke the truant Armijo from a sound sleep. They also conducted a protective sweep of the home. The officers could find no evidence that the threatening phone call came from Armijo’s cell phone or home phone. After being in the home for about 20 minutes, they left.
Armijo sued, claiming that the entry and the sweep violated the Fourth Amendment. The officers asserted that their actions were justified by Brigham City, Utah v. Stuart, 547 U.S. 398 (2006). In Brigham City, the Supreme Court held that the exigent circumstances exception to could apply when officers are assisting “persons who are seriously injured or threatened with such injury.… Accordingly, officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” The court also considered the application of the Supreme Court decision in Maryland v. Buie, 494 U.S. 325 (1990). In Buie, the Court approved a cursory protective sweep when officers enter a home. “As an incident to the arrest the officers could, as a precautionary measure 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.” Many courts have held that an actual arrest need not precede a Buie security sweep.
Armijo asserted that there could not be an exigency because he was far-removed from the location of the potential victims at the high school. The court of appeals observed that, “would-be attackers and victims are frequently not in the same place, yet a requirement that they must be for exigent circumstances to occur could hamper law enforcement and compromise public safety.” The court held that the Fourth Amendment “permits warrantless home entries when officers reasonably believe that some actor or object in a house may immediately cause harm to persons or property not in or near the house.” The court also held that the protective sweep doctrine applied. “Although this court has not explicitly endorsed a search in non-arrest emergencies, an objectively reasonable officer could conclude a five-minute search of the house to find and neutralize any accomplices is reasonable under these exigent circumstances.… After all, the officers were investigating threats of a planned gunfight and detonating a bomb—offenses that probably involve more than one person.” Armijo v. Peterson, --- F.3d ----, 2010 WL 1447136 (10th Cir. 2010).
Supreme Court limits Edwards reinterrogation rule
Shatzer was serving time for child sexual abuse. An officer was investigating a report that Shatzer had forced his 3 year-old son to fellate him and had masturbated next to the child (before his incarceration). The officer attempted to interrogate Shatzer and Shatzer invoked his right to have counsel present. Two and one-half years later, a social worker provided the police with additional details. A different officer visited Shatzer, who was now incarcerated in a different prison. Shatzer agreed to waive his Miranda rights and he made incriminating statements. Shatzer was charged with additional child sexual abuse felonies. He asked the court to suppress his statements, arguing that the second interrogation was unlawful because he had invoked his right to have counsel present during the first interrogation.
The landmark criminal procedure decision in Miranda v. Arizona, 384 U.S. 436 (1966), held that custodial interrogation must stop once the suspect invokes the right to have counsel present during interrogation or the right to remain silent. In Edwards v. Arizona, 451 U.S. 477 (1981), the Court ruled that a suspect who invokes the right to have counsel present during interrogation may not be approached by officers attempting renewed interrogation. The Court stayed true to the Edwards rule in Arizona v. Roberson, 486 U.S. 675, (1988), and Minnick v. Mississippi, 498 U.S. 146 (1990), holding that the Edwards rule applies even if interrogation is attempted by a different officer about a different crime, and even if the suspect has been consulted with legal counsel in the interim. However, many appellate courts have imposed a “break in custody” exception to the Edwards rule. The Supreme Court hinted, in McNeil v. Wisconsin, 501 U.S. 171 (1991), that it might recognize such an exception. In Maryland v. Shatzer, the Court created a break-in-custody rule and imposed their own notion of a bright line requirement of a two week cooling-off period.
Several members of the Court have expressed doubts over the policy reasons behind rigid application of the Edwards rule. Justice Scalia wrote for the Court: “When a suspect has been released from his pretrial custody and has returned to his normal life for some time before the later attempted interrogation, there is little reason to think that his change of heart regarding interrogation without counsel has been coerced. He has no longer been isolated. He has likely been able to seek advice from an attorney, family members, and friends. And he knows from his earlier experience that he need only demand counsel to bring the interrogation to a halt; and that investigative custody does not last indefinitely. In these circumstances, it is far-fetched to think that a police officer's asking the suspect whether he would like to waive his Miranda rights will any more wear down the accused than did the first such request at the original attempted interrogation.” Justice Scalia noted that the Edwards rule carries the cost of excluding some truly voluntary confessions from trial evidence and deters officers from attempting to obtain voluntary confessions.
The Court went on to approve the break-in-custody exception to the Miranda/Edwards rule: “The protections offered by Miranda, which we have deemed sufficient to ensure that the police respect the suspect's desire to have an attorney present the first time police interrogate him, adequately ensure that result when a suspect who initially requested counsel is re-interrogated after a break in custody that is of sufficient duration to dissipate its coercive effects.” Neither the attorneys for Shatzer or Maryland had argued for a specific cooling-off time frame. After all, two and one-half years had passed in this case. The Court chose a 14-day period. “The 14-day limitation meets Shatzer's concern that a break-in-custody rule lends itself to police abuse. He envisions that once a suspect invokes his Miranda right to counsel, the police will release the suspect briefly (to end the Edwards presumption) and then promptly bring him back into custody for re-interrogation. But once the suspect has been out of custody long enough (14 days) to eliminate its coercive effect, there will be nothing to gain by such gamesmanship -- nothing, that is, except the entirely appropriate gain of being able to interrogate a suspect who has made a valid waiver of his Miranda rights.”
Thus, the bright-line rule for officers resulting from this case is that when a suspect invokes his right to counsel during custodial interrogation, and the suspect is then released, an officer may attempt renewed interrogation after a 14-day break and after a fresh set of Miranda warnings. “In every case involving Edwards, the courts must determine whether the suspect was in custody when he requested counsel and when he later made the statements he seeks to suppress. Now, in cases where there is an alleged break in custody, they simply have to repeat the inquiry for the time between the initial invocation and reinterrogation. In most cases that determination will be easy. And when it is determined that the defendant pleading Edwards has been out of custody for two weeks before the contested interrogation, the court is spared the fact-intensive inquiry into whether he ever, anywhere, asserted his Miranda right to counsel.” Maryland v. Shatzer, --- U.S. ---, 2010 WL 624042 (2010).
Warrant not required for blood draw in DUI investigation
Machuca was involved in a single-car crash. He was taken to a hospital emergency department. The investigating officer determined that there was probable cause to believe that alcohol use contributed to the crash. The officer went to the hospital and found Machuca snoring loudly and in a deep sleep. Machuca was slow to wake. There was a very strong smell of alcohol in the room. The officer gave Miranda warnings and an implied consent rights and consequences warning and asked Machuca if he would consent to take a blood test. Machuca agreed to take the test. Machuca later sought to suppress the blood alcohol evidence, relying on the Oregon Constitution and a prior decision from the Oregon Supreme Court.
The court reversed its prior ruling and held that the natural process of alcohol dissipation from the bloodstream is a sufficient exigency needed to justify a warrantless blood draw where probable cause exists to make a DUI arrest. The court stated that there could be “rare cases” where there is time for an investigating officer to obtain a warrant for a blood draw. “The mere possibility, however, that such situations may occur from time to time does not justify ignoring the inescapable fact that, in every such case, evidence is disappearing and minutes count. We therefore declare that the evanescent nature of a suspect's blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw of the kind taken here.” Other states have taken different views, although the majority rule appears to favor warrantless blood draws when there is probable cause to believe that a crime has been committed and the blood alcohol is vital evidence of that crime. State v. Machuca, --- P.3d ----, 2010 WL 456757 (Or. 2010).
Supreme Court rules that Miranda warnings need not be given in a particular form
Officers looking for Powell in connection with a robbery went to his girlfriend’s apartment and saw Powell coming out of a bedroom. They arrested Powell and searched the bedroom, finding a gun. At the police station, officers read the following warning statement: "You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview." Powell agreed to talk to the officers. He told the officers that he bought the gun for $150 from a street source because he needed protection.
The Florida Supreme Court held that the warning was inadequate, because Powell “was not clearly informed of his right to have counsel present during questioning.” The United States Supreme Court reversed the Florida court. Relying on an earlier decision, Duckworth v. Eagan, 492 U.S. 195 (1989), in which the Supreme Court held that there was no magic language required to give a Miranda warning, the Court held that, “in combination, the two warnings reasonably conveyed Powell's right to have an attorney present, not only at the outset of interrogation, but at all times.” The Court applied the reasonable person standard. “A reasonable suspect in a custodial setting who has just been read his rights, we believe, would not come to the counterintuitive conclusion that he is obligated, or allowed, to hop in and out of the holding area to seek his attorney's advice.”
The landmark Miranda decision required that officers administer the following warnings prior to custodial interrogation: (1) the person has a right to remain silent, (2) that anything the person says can be used against him in a court of law, (3) that the person has the right to the presence of an attorney, and (4) that if the person cannot afford an attorney one will be appointed for him prior to any questioning, if he desires. In Powell, the Court stated: “In determining whether police officers adequately conveyed the four warnings, we have said, reviewing courts are not required to examine the works employed as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda.” Florida v. Powell, --- S.Ct. ----, 2010 WL 605603 (U.S. 2010).
Court limits Gant; upholds admission of weapons from locked briefcase
An officer stopped Vinton for traffic violations (speeding and window tint). When the officer approached Vinton’s car, he saw a large knife in a sheath on the back seat, easily within Vinton’s reach. The officer knew that there had been a stabbing murder in the area in the prior 24 hours. The officer took the knife and placed it out of Vinton’s reach. The officer asked Vinton whether there were other weapons in the car. The officer wrote a citation and told Vinton that he intended to check the car for other weapons. He asked Vinton whether there were other weapons in the car. Vinton initially denied that there were other weapons, but then said “not that I know of.” The officer handcuffed Vinton, told him that he was not under arrest and conducted a protective search of the car. In Michigan v. Long, 463 U.S. 1032 (1983), the Supreme Court authorized “vehicle frisks” and ruled that an officer may search a vehicle's passenger compartment for weapons during a traffic stop if the officer has a reasonable suspicion that the driver is dangerous and may reach weapons inside the car. The officer found a butterfly knife, two cans of a chemical weapon and a locked briefcase. Vinton denied that the briefcase was his and said that he didn’t know why it was in his car. The officer pried the briefcase open and found ecstasy, another knife, brass knuckles and a loaded gun with three additional magazines.
Vinton asked the court to suppress the evidence of the search, seeking to benefit from last year’s Supreme Court decision in Arizona v. Gant. Vinton argued that he was handcuffed at the time of the search and therefore the officer could not conduct a search incident to arrest. The appellate court rejected Vinton’s claim. The court stated that, “Gant held police may search a vehicle incident to the arrest of an occupant only in two circumstances: (1) when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search (the safety rationale); or (2) when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle (the evidentiary rationale).” In Vinton’s case, the evidentiary rationale justified the search because finding other weapons would show that Vinton had a specific intent to possess an illegal weapon (the butterfly knife). The Gant decision did not hold that handcuffing or securing a person defeats the evidentiary rationale for a search incident to arrest. Gant was a decision involving an arrest for a driver license violation and there was little, if any, likelihood that evidence supporting the driver license offense would be found in a search of the car that Gant was driving. In Vinton, the appellate court strongly suggested that Gant’s holding is narrowly limited to crimes where little or no likelihood of finding evidence of the crime under investigation. Because the chemical weapons and knife strongly suggested that there would be other weapons in the car, the search was justified and the evidence was properly admitted against Vinton. United States v. Vinton, --- F.3d ----, 2010 WL 392347 (D.C. Cir. 2010).
Officer receives qualified immunity for use of find-and-bite dog to locate missing drunk child
Melgar, a 13 year-old boy, became intoxicated for his first time at a birthday party. Melgar and his 13year-old friend were told to “go outside and walk it off” when the friend got a little too physical with one of the female partiers. The boys quickly became lost in the cold winter night. They had only light clothing. The boys separated and Melgar’s friend fell asleep under a bush after he vomited and urinated on himself. A couple of hours later a passer-by saw the boy and called police. The friend was suffering from hypothermia and alcohol poisoning. The officers learned that Melgar was still missing. A K9 officer responded. The only dog available to find Melgar was a patrol dog, trained to find and bite suspects. The officer called out to Melgar and began to track, with the dog on a 15 foot lead. The dog found Melgar, who was asleep or passed out, and bit him on the ankle before the handler realized that the dog had located his quary.
Grateful or not that police saved his highly intoxicated young boy from near-certain death, Melgar’s father sued. The officer testified that he normally would have considered using a bloodhound to track. However, the department’s bloodhound was incapacitated with an injury. The officer considered that it was biting cold, the boy was reportedly highly intoxicated, his companion was seriously hypothermic, another bloodhound was at least an hour away and there was no known scent readily available, other officers had searched the neighborhood with lights and by calling out, and his belief that he would see the lost boy before his dog got close enough to bite.
The trial court refused to grant qualified immunity to the K9 handler. The appellate court reversed, holding that there was no clearly-established law concerning whether a find-and-bite dog may be used to locate a missing person. Moreover, the court recognized that the handler had used the dog as a last resort to find a boy presumed to be in great danger and missing for several hours. The court also recognized that the handler had tried to keep the dog from biting by using a leash and watching the dog. The court noted that the plaintiff’s attempt to establish liability by citing the much-criticized IACP guideline that police dogs should be trained to find-and-bark was unhelpful. The IACP guideline reflects an opinion, but not clearly-established law. Moreover, the IACP guidelines do provide for use of a patrol dog to locate missing persons when precautions are taken. The handler in this case followed those precautions. Melgar v. Greene, 593 F.3d 348 (4th Cir. 2010).
No warrant required for cell phone location ping
Devega agreed to meet Afzal to sell him a quarter-kilo of cocaine. When the two met, Devaga shot and killed Afzal. Police found Afzal’s cell phone near his body. They searched the phone, saw Devega’s cell phone number and asked the cell phone company to ping Devega’s cell phone to reveal the location of his phone. The ping revealed that the phone was moving on a highway and into an Air Force base. Police went to the base and arrested Devega. Devega asked the Georgia Supreme Court to rule that a warrant is required to ping a cell phone for location.
The court analogized a cell phone location ping to the use of a GPS tracker. Most courts have upheld warrantless use of GPS trackers to follow movement of a vehicle. (See the recent Xiphos report on United States v. Pineda-Moreno). These courts follow the reasoning of the U.S. Supreme Court decision in United States v. Knotts, 460 U.S. 276 (1983), which held that the warrantless monitoring of signals from a beeper inside an automobile traveling on public roads did not violate the Fourth Amendment because it did not reveal any information that was not also available through visual surveillance. However, some states have statutes restricting warrantless use of GPS trackers and other states’ supreme courts have expansively interpreted their state constitutions to provide an expectation of privacy in the movements discernable by a GPS tracker. (See Xiphos 2009 Archives, People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009)).
The Georgia Supreme Court held that Devega suffered no Fourth Amendment violation in this case because the GPS device only revealed the same information that would have been available from visual surveillance. “When Devega traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto [the base].” Devega v. State, --- S.E.2d ----, 2010 WL 337333 (Ga. 2010).
Search of cell phone memory incident to arrest not allowed
Northern overdosed on crack cocaine. When questioned by police, she identified Smith as her dealer and agreed to telephone Smith to arrange for more cocaine. When Smith showed up at Northern’s home to deliver the dope, police arrested him. Officers searched (incident to arrest and without a warrant) the call log on Smith’s phone and confirmed the call between Northern and Smith. Smith challenged the search of his phone, claiming that it could not be part of a valid search incident to arrest.
Prior to this case, neither the U.S. Supreme Court nor any state supreme court had yet addressed the issue of search of a cell phone memory incident to arrest. Other appellate courts to consider the issue have analyzed a cell phone as a closed container. Another line of appellate court cases follows the logic that the evidence is potentially short-lived, as new calls are received the memory of older calls is automatically eliminated from the phone. This line of cases is based on older cases allowing searches incident to arrest of pagers held by arrestees.
In United States v. Finley, 477 F.3d 250 (5th Cir. 2007), the defendant was arrested during a traffic stop after a passenger in his van sold methamphetamine to an informant. During the search incident to the arrest, officers found a cell phone in the defendant’s pocket. He was taken along with his passenger to the passenger's house, where other officers were conducting a search. While Finley was being questioned there, officers examined the cell phone's call records and text messages, finding evidence that appeared to be related to narcotics use and drug trafficking. The Fifth Circuit sustained the search on the basis that it was a container found on the arrestee’s body at the time of arrest. In contrast, in United States v. Park, 2007 WL 1521573 (N.D. Cal.), officers observed Park entering and leaving a building that they had under surveillance and for which they held a search warrant. When they searched the building, they found evidence of an indoor marijuana-cultivation operation. The officers arrested Park and took him to booking, where they searched his cell phone. The trial judge suppressed the phone numbers and names viewed on Park’s phone, reasoning that the phone was more like a mini-personal computer. The court further reasoned that there was no officer safety or evidence preservation issue implicated and therefore the search incident to arrest doctrine would not apply. The Supreme Court's decision from last year in Arizona v. Gant, 2009 WL 1045962 (U.S. 2009) may support this logic (See Xiphos 2009 archives). The Fourth Circuit applied the preservation of evidence rationale to reach an opposite conclusion. In United States v. Murphy, 552 F.3d 405 (4th Cir. 2009), the court sustained a cell phone search incident to arrest on the basis that the officer could not be expected to know the storage capabilities of the defendant’s model of cell phone and thus would not know the degree of risk of destruction of the electronic evidence.
In this case, the Ohio Supreme Court rejected the closed container approach. The court next considered the degree of expectation of privacy that a defendant can legitimately hold in the cell phone memory. “Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain.” The court ruled that once the officer seized the phone, the state’s interest in preserving evidence was satisfied and a warrant would be required to examine the data contained in the phone. In addition to rejecting the search incident to arrest justification, the court also held that the search could not be justified by exigent circumstances to preserve the evidence. State v. Smith, --- N.E.2d ----, 2009 WL 4826991 (Ohio 2009).
Plain view doctrine in flux in application to computer searches
Investigators who search computers should be aware of a conflict among the federal circuit courts of appeals and should consult with prosecutors to find where your local state and federal courts currently stand in the debate. The Ninth Circuit Court of Appeals issued an en banc decision in United States v. Comprehensive Drug Testing, 579 F.3d 989 (9th Cir. 2009), in which the court took the extraordinary step of not only ruling in the case, but creating a set of blanket rules to govern future computer searches in the Ninth Circuit and to reject U.S. Supreme Court reasoning in plain view search cases. Many legal scholars have already criticized the Ninth Circuit’s ruling and predict that the Supreme Court will once again overturn the Ninth Circuit (which is consistently the most frequently overruled of all federal circuit courts). The court imposed the following black letter rules on computer searches premised on search warrants:
1. Magistrates should require the government waive reliance upon the traditionally-allowed, well-established plain view doctrine in digital evidence cases.
2. Segregation and redaction must be either done by specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant, no matter how egregious the inadvertently discovered evidence.
3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora.
4. The government's search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.
5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept.
One law professor commented that, under the Ninth Circuit’s ruling, a video file depicting a kidnapped child being raped and murdered that is discovered during a tax evasion search warrant execution on a computer must be ignored and destroyed, and its presence never revealed to law enforcement authorities. Nor would the grieving parents be allowed to know that their child was actually dead. The Chief Judge of the Ninth Circuit has invited the litigants in the Comprehensive Drug Testing case to brief the question of whether a super en banc (a hearing before all 28 judges) should be held in order to reconsider the new search rules.
The Ninth Circuit is not entirely alone in imposing special limitations on the plain view doctrine. In Horton v. California, 496 U.S. 128 (1990), the Supreme Court rejected the notion that evidence must be found inadvertently in order for the plain view doctrine to apply. Even so, the Tenth Circuit Court of Appeals held onto the inadvertence requirement in the later case of United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), when considering a case where an officer intentionally began to search for child pornography during the execution of a warrant for other documents. The Tenth Circuit has carefully limited its holding in subsequent cases. Recently, in United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009), the court has allowed admission of child pornography discovered in plain view of computers during drug search warrant executions.
In the past few weeks, both the Fourth Circuit and Seventh Circuit Courts of Appeals have rejected the Ninth Circuit’s logic. In United States v. Williams, the defendant, Curtis Williams, sent a series of emails under an assumed name to the Baptist church where he was a faithful and active member. Williams wrote to the church school, stating that he was a pedophile and that he could not live without having sex with certain young boys: “I know your boy's names. I know where they go for lunch after church. I know where they live. I know when they come and leave school. There's boys I'd love to sleep with right now. There is an endless supply. Boy dick is everywhere.” A search warrant premised on the crime of computer harassment was issued. During the execution of the warrant, officers found child pornography. Williams claimed that the image files should not have been viewed. The government responded that the images were in plain view. The court agreed. “At bottom, we conclude that the sheer amount of information contained on a computer does not distinguish the authorized search of the computer from an analogous search of a file cabinet containing a large number of documents.” The court declined to even mention the recent Ninth Circuit decision. United States v. Williams, --- F.3d ----, 2010 WL 251592 (4th Cir. 2010).
Matthew Eric Mann worked as a lifeguard at the local YMCA pool. He installed a video camcorder in the girls’ shower room. Unfortunately for him, he accidentally videotaped himself as he installed the camera. Mann was charged with voyeurism and a search warrant was issued for his home. The warrant included authorization to search computers and other digital media devices. The search revealed child pornography, including video and still images of children disrobing in a local school locker room. Similar to Williams, Mann claimed the plain view discovery of the child pornography was improper. The Seventh Circuit expressly rejected the Ninth Circuit rule, criticizing the Ninth Circuit for going beyond the rules of jurisprudence to do far more than decide the issues in the case before it. Cautioning officers to follow the rules of the plain view doctrine, the court stated: “We too believe the more considered approach would be to allow the contours of the plain view doctrine to develop incrementally through the normal course of fact-based case adjudication. We are also skeptical of a rule requiring officers to always obtain pre-approval from a magistrate judge to use the electronic tools necessary to conduct searches tailored to uncovering evidence that is responsive to a properly circumscribed warrant. Instead, we simply counsel officers and others involved in searches of digital media to exercise caution to ensure that warrants describe with particularity the things to be seized and that searches are narrowly tailored to uncover only those things described.” The court also noted that the Tenth Circuit had retreated from its incorrect decision in United States v. Carey. The court held that the child pornography was properly admitted. United States v. Mann, --- F.3d ----, 2010 WL 175803 (7th Cir. 2010).
Ninth Circuit allows strip searches for jail general population
The Ninth Circuit followed the lead of other courts recently when it held that the San Francisco County Sheriff could impose strip searches on all prisoners entering general population at the county jail. The court recognized that the Sheriff had shown that there were documented incidents of contraband smuggling, the strip searches were accomplished in a reasonable fashion and by same gender officers, and that prisoners were allowed a brief time (up to 12 hours) before posting bond and prisoners bonding out were not subject to strip search. Though the trend has been to allow strip searches for prisoners entering general population, there are numerous opinions among the federal circuits and Sheriffs should consult local legal counsel before changing any policy or follow nationally-recognized policy maintenance services. Bull v. City and County of San Francisco, --- F.3d ----, 2010 WL 431790 (9th Cir. 2010).
GPS tracker installation and monitoring permitted
An alert officer noticed Pineda-Moreno and other men at a Home Depot buying a large amount of the type of fertilizer used in marijuana plantations. The officer learned that Pineda-Morales also had recently bought large amounts of groceries, irrigation equipment and deer repellant (California boasts happy cows in cheese ads; does California also have happy deer?) at several stores. Investigators attached a GPS tracking device to the underside of Pineda-Morales’ Jeep on seven occasions over the course of four months. On two of the times that a new GPS device was attached, the Jeep was parked in Pineda-Morales’ driveway, next to his home. There was no fence around the property, nor was there any “no trespassing” sign. On the other times, the Jeep was parked in a public parking lot or on the public street. The installations were done in the early morning hours under cover of darkness. The tracking information helped lead to a marijuana grow. When the GPS device signaled that the Jeep was leaving the grow site, officers stopped the Jeep and smelled fresh marijuana. Pineda-Morales consented to a search of his home and officers found a large amount of harvested marijuana. Pineda-Morales claimed that the installation of the GPS devices violated the Fourth Amendment because the officers came onto the curtilage of his property. He also claimed that the continuous monitoring of the Jeep’s movements violated his Fourth Amendment privacy interest.
Courts routinely hold that there is no expectation of privacy in the exterior of a car, and therefore no expectation of privacy that protects against installation of a tracking device on the exterior of a car. Pineda-Moreno claimed that the intrusion on the curtilage itself created a violation. The court disagreed, holding that the driveway was a “semi-private” area, lacking barriers or enclosures that would hide it from street view. “Because Pineda-Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of his home.” The fact that officers installed the GPS devices during the night was of no consequence.
The Supreme Court has held that there is no expectation of privacy in the movement of a vehicle on roadways. United States v. Karo, 468 U.S. 705 (1984); United States v. Knotts, 460 U.S. 276 (1983). As long as the officer installs the tracking device from a place where the officer has a right to be, no warrant is required. Pineda-Morales asked the court to apply a more recent Supreme Court case, Kyllo v. United States, 533 U.S. 27 (2001), in which the Court held that police cannot use a thermal imager to detect the activities inside a private dwelling. Pineda-Morales argued that Kyllo bans sensory-enhancing technology to track private movements. The Court of Appeals disagreed, holding that tracking movement of a car on public roadways is not a search in any sense under the Fourth Amendment. Some courts impose a requirement for a warrant for monitoring based upon their respective state constitutions. People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009); State v. Campbell, 759 P.2d 1040 (Or. 1988). If the device is installed under the hood or within the car itself, or if officers must otherwise violate a legitimate expectation of privacy, a warrant to install is required. United States v. Pineda-Moreno, --- F.3d ----, 2010 WL 59215 (9th Cir. 2010).
"Overwhelmingly strong" air fresheners lead to reasonable suspicion for dog sniff
An officer stopped Richards for weaving and following too closely. As the officer approached the car, he smelled oranges and strong smell of what he believed to be air fresheners. He described the odor as “bizarrely strong” and “overwhelmingly strong.” The officer saw two cell phones on the front passenger seat; orange rinds scattered on the front driver-side floorboard and protruding from a fast food bag; a can of Lysol and a container of Armor All on the front passenger floorboard; and a pocket atlas on the front driver-side floorboard. The officer was trained in drug interdiction and believed that the masking odors and multiple cell phones suggested illegal activity. The officer asked Richards for consent to search her car and she refused. Believing that there was reasonable suspicion that Richards was transporting drugs, the officer then detained Richards for a drug detector dog sniff. Another officer arrived with a detector dog. The sniff lead to the discovery of 60 pounds of marijuana in Richards’ trunk. Richards claimed that the detention was illegal. The court disagreed, holding that an officer could rely on the “bizarre” and “overwhelming” presence of masking odors, along with the cell phone, to provide reasonable suspicion to detain the vehicle long enough for a drug dog to arrive (the detention here was very brief). The mere odor of air fresheners would not typically be a factor in a reasonable suspicion analysis. In this case, however, the masking odors and the multiple sources of masking odors, supported a finding of reasonable suspicion. State v. Richards, --- P.3d ---, 2009 WL 5152582 (Utah App. 2009).
18 month delay in child pornography investigation did not render the PC information "stale"
In June 2007, FBI agents searched a computer in San Francisco and found extensive child pornography and records of trading illegal images. The investigation lead to Lemon, located in Minnesota. Lemon corresponded with the San Francisco suspect, asking for sexually-explicit images of infant children. A year after execution of the San Francisco search warrant and 18 months after Lemon and the San Francisco suspect traded child pornography, an officer obtained a search warrant for Lemon’s computer. The affidavit included details about the chronology of the investigation. Lemon was still using the same IP address and screen name that he used to trade images with the San Francisco suspect. The officer wrote that Lemon showed characteristics of a preferential child pornography collector, suggesting that “this type of child pornography collector will maintain child pornography images over an extended period.” The officer also explained that preferential collectors rarely destroy collections of illegal images and would likely maintain child pornography on a computer hard drive for many years. The court issued a search warrant. Investigators found a substantial collection of child pornography and evidence that Lemon was involved in production and distribution of child pornography.
Lemon asked the court to invalidate the warrant and suppress the evidence on the grounds that the information supporting probable cause was stale. The court held that staleness should not be measured by the mere passage of time. Instead, the court should look at the character of the information. The officer qualified as an expert in the investigation of child pornography and the judge reviewing the affidavit for the search warrant properly relied on the officer’s testimony that Lemon likely maintained his collection of child pornography. “Many courts, including our own, have given substantial weight to testimony” from law enforcement officers investigating child pornography suspects. The passage of the 18 months was less significant to the court because of the ongoing nature of the crime of possession of child pornography, bolstered by the fact that Lemon was still using the same screen name and IP address. Thus, the court upheld the admission of the evidence. United States v. Lemon, --- F.3d ----, 2010 WL 27032 (8th Cir. 2010).
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