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Removing bag from bus luggage compartment created illegal seizure
Interdiction officers inspected the luggage compartment of a Greyhound bus and noticed that a bag’s computer-generated label had been altered by hand. Finding this to be suspicious because an officer with 6 years experience in checking bus luggage had never seen an altered tag before, the officers removed the bag. After determining that the driver was not ready to depart and obtaining the driver’s consent to board the bus, the officers boarded the bus and asked which passenger owned the bag. Alvarez-Manzo (traveling under the false name of Perez) claimed ownership. Alvarez-Manzo claimed that he did not have any ID. However, an officer could see a bulging wallet in his pants pocket. The officer searched the wallet with Alvarez-Manzo’s permission and discovered the baggage claim ticket. The officers handcuffed Alvarez-Manzo and retrieved a drug detector dog from a nearby police car. The dog gave a positive final response to the bag. A search warrant was obtained and executed and officers found 10 kilos of cocaine in the bag.
Alvarez-Manzo claims that his bag was seized by the officers without a warrant, consent or reasonable suspicion. In United States v. Va Lerie, 424 F.3d 694 (8th Cir. 2005) (en banc), the court established a test to determine whether an officer’s law enforcement's detention of property entrusted to a third-party common carrier creates a seizure. A seizure of checked baggage occurs when the detention does any of the following: (1) “delays a passenger's travel or significantly impacts the passenger's freedom of movement,” (2) “delays [the checked luggage's timely delivery,” or (3) “deprives the carrier of its custody of the checked luggage.” In United States v. Va Lerie, the officers removed the baggage at the request of the bus carrier, and not of the officer’s own volition. The court held that the officers seized Alvarez-Manzo’s bag by removing it from the bus for their own investigative purposes. There was not reasonable suspicion to support the seizure and the evidence of the cocaine was ordered suppressed. It seems clear that the case would have had a different outcome, insofar as justifying the seizure, had the drug dog sniffed the bag prior to seizure. However, there may be many reasons that such a course of action was not possible or advisable in this case. United States v. Alvarez-Manzo, 570 F.3d 1070 (8th Cir. 2009).
Search incident to arrest following warrant arrest found unconstitutional under Gant
An officer saw Henning inside a store. After confirming his belief that there was an arrest warrant outstanding for Henning, the officer asked Henning to step out of the passenger side of a car that he had just entered and the officer arrested him on a warrant. The car was registered to Henning. The officer searched the car incident to arrest and found drug paraphernalia that later tested positive for amphetamine. The officer relied on a Kansas statute that allowed search incident to arrest of a vehicle for “evidence of a crime.” A Kansas Supreme Court decision, State v. Anderson, 910 P.2d 180 (Kan. 1996), had earlier held that the search incident to arrest must be limited to a search for evidence of the crime for which the person was arrested. A more recent state statute expanded the search authority to allow a search for evidence of any crime.
Henning relied on the recent case of Arizona v. Gant to claim that the search of his car was illegal. In one of the first post-Gant decisions, the Kansas high court agreed with Henning and held that the search was illegal. A Kansas statute that authorizes police officers to search an arrestee and the area immediately around him for evidence of “a crime” violates the Fourth Amendment, the Kansas Supreme Court held June 26. The U.S. Supreme Court recently made clear in Arizona v. Gant, 85 CrL 95 (U.S. 2009), that the search-incident-to-arrest exception to the warrant requirement allows police to search the area within reach of an arrestee only to protect themselves or to find evidence that relates to the offense of arrest. In Arizona v. Gant, the U.S. Supreme Court held: “If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.” At the time of the search, Henning was secured in handcuffs and standing several feet away from the car. “To have a valid search incident to arrest, when there is no purpose to protect law enforcement present, the search must seek evidence to support the crime of arrest, not some other crime, be it actual, suspected, or imagined.” The Kansas court held that the state statute authorizing a search incident to arrest to be unconstitutional insofar as it purports to allow a search for evidence of a crime other than the crime for which the suspect was arrested. Applying the Gant ruling, the court ordered that the drug evidence be suppressed. State v. Henning, 209 P.3d 711 (Kan. 2009).
Stop based on officer's mistake must end immediately after mistake is recognized
An officer saw Morris driving, but could not see a license plate. Morris was weaving within the traffic lane (the prosecution later conceded that the driving pattern would not have justified a traffic stop). The officer stopped Morris. As he walked up to speak to Morris, the officer saw a valid paper temporary registration taped in the rear window. The officer explained to Morris that he had not seen the registration and that was the reason for the stop. As the officer conversed with Morris, the officer could smell the odor of alcohol. Morris failed the SFSTs and was arrested for DUI. A search incident to arrest revealed illegal drugs. Morris pleaded guilty to possession of illegal drugs and paraphernalia, reserving the right to appeal the court’s denial of his motion to suppress evidence.
The Utah Court of Appeals reversed Morris’s conviction. The court held that “a police detention is no longer justified as soon as the exception initially justifying the intrusion is absent.” Other courts have courts have held that the officer who makes a stop based on a mistaken belief, such as not seeing a registration tag, may prolong the stop only long enough to explain the mistake. United States v. Edgerton, 438 F.3d 1043 (10th Cir. 2006). Some courts have upheld arrests based on observations and conversations stemming from a mistaken stop. For example, the California Court of Appeals upheld an arrest when an officer stopped a car under the mistaken belief that air fresheners hanging from the rear view window violated state law. As the officer spoke with the driver, the officer smelled to odor of marijuana and a drug arrest followed. People v. White et al., 132 Cal. Rptr. 371 (Cal. App. 2003). The Utah Court of Appeals considered the risk that a motorist would sit at the side of the road, or unjustly complain to police about harassment, when an officer realized that he or she was mistaken about the justification for the stop and simply walked away. However, the court expressly ruled that the officer should have done just that – walked back to his car and driven away with no courteous explanation of the stop. Had the officer done so, he never would have recognized that Morris may be committing a serious crime and Morris’s drug trafficking would have gone undetected at the stop. State v. Morris, --- P.3d ----, 2009 WL 1886866 (Utah App .2009).
Supreme Court holds lab tests to be testimonial; requires analysts to testify in court
The U.S. Supreme reversed many years of Sixth Amendment precedent in Crawford v. Washington, 541 U.S. 36 (2004), when it held that a judge could no longer admit “testimonial” hearsay evidence that the judge found to be “reliable,” unless the prosecution showed that the hearsay declarant is unavailable, but was previously available for cross-examination by the defendant. The Crawford decision significantly impacted the preparation and presentation of prosecution cases. Lower courts have struggled to define just what the Court meant by “testimonial” evidence. The Court continued its retrenchment on Sixth Amendment's Confrontation Clause jurisprudence in the recent case of Melendez-Diaz v. Massachusetts.
Melendez-Diaz was arrested during a cocaine sale in a parking lot. The prosecutor introduced the bags of cocaine and proffered drug test results certified by the lab technician who conducted the tests. Melendez-Diaz was convicted. He appealed, claiming that the test results were “testimonial” and that the Sixth Amendment created a right to confront the lab technician. Prior Massachusetts court decisions had held that lab result certificates were not “testimonial.”
In a majority opinion written by Justice Scalia, the Supreme Court held that the Sixth Amendment's Confrontation Clause does require a lab technician’s report offered in a criminal trial is “testimonial” and the technician must be available to testify at trial. This marked the second major case in which Justice Scalia and Justice Thomas sided with the Court’s liberal wing to rule against law enforcement interests. Justice Kennedy authored a sharp dissent, referring to the majority’s “cavalier” approach and ignorance of the practical impact on criminal prosecutions. Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).
Questioning without warning proper under the rescue doctrine exception to the Miranda rule
On October 1, 1993, Davis kidnapped Polly Klaas from a slumber party with her friends. On November 30, officers arrested Davis. Davis invoked his right to counsel. After learning that his palm print matched a print found at the scene, an officer asked Davis whether there was any hope of finding Polly Klaas alive. Davis told him that he didn’t know what he was talking about. However, 15 minutes later, Davis called the officer back to his cell and told the officer that she was dead. He gave a detailed confession and lead officers to the child’s body. Davis claimed that the officer’s questioning about finding the victim’s body was unconstitutional interrogation because he had invoked his right to an attorney. Davis claimed that the “rescue doctrine” could not apply because the child had been missing for 64 days when he was questioned.
A suspect may be questioned, even after invoking the right to counsel or right to remain silent, when there is: “1. Urgency of need in that no other course of action promises relief; 2. The possibility of saving human life by rescuing a person whose life is in danger; and 3. Rescue as the primary purpose and motive of the interrogators.” The California Supreme Court held that the questioning was proper. The court ruled that the officer’s questions were limited to the purpose of finding the victim, or her dead body, and were not intended to elicit an incriminating response. The court stated: “the length of time that a kidnap victim has been missing is not, by itself, dispositive of whether a rescue is still reasonably possible.” Davis had told associates that he committed the crime for money. Thus, it was reasonable for the officers to believe that the victim might be alive 64 days after the kidnapping. The court affirmed Davis’s death sentence. People v. Davis, --- P.3d ----, 2009 WL 1515177 (Cal. 2009).
Questioning without warning proper under the public safety exception to the Miranda rule
A number of officers descended on a neighborhood known for violent crime and an open drug market in Washington, D.C., to arrest Jones on a murder warrant. The officers had information that Jones had committed the murder with a gun and that he was armed. An officer spotted Jones and chased him. When the officer caught Jones, he asked Jones if he “had anything on him.” Jones said that “his burner” was in his waistband. An officer retrieved a handgun from Jones’s waistband. Jones was convicted of unlawful possession of a firearm and ammunition by a convicted felon. Jones claimed that the question about whether he had anything on him constituted illegal interrogation because it preceded a Miranda warning. The court held that the question was proper under the “public safety” exception to the Miranda rule. In New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court held that officers may ask questions without a Miranda warning when “reasonably prompted by a concern for the public safety,” or for the safety of the arresting officers. In Jones’s case, the court observed that said there is “nothing unreasonable about an officer worrying that a person who committed a murder just six weeks before, and who had a previous conviction for a firearm offense, would be in the habit of carrying a weapon.” Moreover, the court recognized that Jones had not yet been searched, his clothing could conceal a gun, there were small children nearby, and the neighborhood was well-known for its danger level and drug dealing. United States v. Jones, --- F.3d ----, 2009 WL 1586784 (D.C. Cir. 2009).
Search following roadblock ruse upheld because officer talked nice
Hedgcock and a friend were driving on I-80 near the Platte (Ne.) River rest stop. They saw signs that announced a drug checkpoint and a drug dog ahead and they quickly exited the freeway to stop at the rest stop. There was no checkpoint; the signs were part of a roadblock ruse. Hedgcock and his friend entered the restroom separately, while the other watched the car. Suspecting that Hedgcock was transporting drugs, a plain clothes officer approached him and asked to speak with him. Hedgcock agreed. The officer asked to see Hedgcock’s driver license. He examined it and returned it to Hedgcock. Though Hedgcock claimed to be traveling from Utah to Chicago to visit a friend, he was unable to provide details about the trip. The officer used a friendly, conversational tone with Hedgcock and told him that he was not in any trouble (talk nice, think mean!). Hedgcock gave the officer permission to search the interior of the car. As soon as the officer opened the car door, he could smell burnt marijuana. Hedgcock said that there might be some marijuana in the ashtray. Eventually, Hedgcock admitted that he was transporting marijuana and the officer found approximately 50 pounds of pot in a car top luggage carrier.
Hedgcock was convicted of possession of marijuana with intent to distribute. He appealed, claiming that the Platte River rest area was an unconstitutional drug checkpoint and that the encounter between himself and the officer was an unconstitutional seizure. The court made quick work of the first claim, holding that “the use of a ruse checkpoint, without an unreasonable seizure for Fourth Amendment purposes, is not unconstitutional simply because it is a ruse.” The court also held that the officer’s questioning of Hedgcock was not inherently coercive just because it followed a police deception. “Although the officers misrepresented the fact that a drug checkpoint was beyond the rest area, there was nothing in the record to reveal that the officers coerced Hedgcock into answering questions or consenting to a search.” Some courts have suppressed evidence gathered in a roadblock ruse operation, particularly when the basis for the stop and detention was a motorist’s effort to avoid the false checkpoint. Here there was no stop and no detention based on Hedgcock’s actions.
The conversational tone used by the officer and the fact that he told Hedgcock that he was not under arrest and not in trouble supported the conclusion that the encounter was consensual and Hedgcock was not seized until the drugs were found. “A seizure does not occur simply by reason of the fact that a police officer approaches an individual, asks him or her for identification, and poses a few questions to that individual.” A seizure occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave. Because there was no illegal detention, the court affirmed Hedgcock’s conviction. State v. Hedgcock, 765 N.W.2d 469 (Neb. 2009).
Police initiation of investigation that lead to parole search and involvement in parole search is proper
A CI made a controlled buy of cocaine from Scott, who was a parolee. Upon learning that the CI was the subject of an arrest warrant, task force officers suspended the cocaine investigation. Some weeks later, a task force officer provided information about the controlled buy to a parole officer. The parole officer obtained a parole arrest warrant based on the officer’s information. The task force officers accompanied the parole officer to arrest Scott. When Scott did not answer their knocks, they broke in and found Scott in bed, near some marijuana. During the search of the house, officers found more drugs and a gun with an obliterated serial number. Scott was convicted of federal drug and gun violations.
Scott claimed that the task force officers’ involvement in providing information to the parole officer that supported the arrest warrant, and participation in the arrest and search, was an improper exploitation of the parole officer’s authority to search Scott’s person and premises. In Griffin v. Wisconsin, 483 U.S. 868 (1987), the Supreme Court held that the special needs of parole and probation operations justify warrantless searches of parolees upon reasonable suspicion of an offender’s home. Courts have developed a rule that police officers cannot use the warrantless search provisions applying to parolees and probationers as a way to get around otherwise applicable Fourth Amendment rules during criminal investigations. However, it is proper for police officers communicate information and coordinate operations with parole officers.
This was a case where the police officer initiated the investigation that lead to Scott’s arrest and the associated search. The court held that did not render the parole warrant and search unlawful. The court stated that it had, “long endorsed ‘mutually beneficial cooperation’ between law enforcement and probation officers.” The police officers informed the parole officer of the controlled buy, but the police officers did not ask the parole officer to obtain a warrant, make an arrest or conduct a search. Because the parole officer made those decisions, the police involvement was not improper. The fact that police officers helped execute the warrant and conduct the search was also not persuasive and the court affirmed Scott’s conviction and his 20 year sentence. United States v. Scott, --- F.3d ----, 2009 WL 1415997 (1st Cir. 2009).
Delay in delivery of express mail didn't constitute a seizure following K9 sniff of package
A postal inspector had information that Jefferson was receiving drugs in the mail. He learned from a postal clerk that a package was in the mail and scheduled for delivery to Jefferson’s home. The postal inspector asked the clerk to hold the package overnight. The next day, the postal inspector had a drug detector dog sniff the package. The dog gave the positive final response, indicating that the package contained illegal drugs. The postal inspector obtained a search warrant that authorized a search. The package contained 235 grams (approximately ½ pound) of methamphetamine. A controlled delivery followed and Jefferson was arrested when he opened the package.
Jefferson claimed that the delay in delivery of the package violated his Fourth Amendment rights. The court held that his privacy rights were not violated, because the clerk examined only the outside of the package and the dog sniffed only the air around it. The inspection of the package was conducted under a search warrant. However, the Fourth Amendment claim also implicated his possession rights. A person has a right to timely delivery of mail addressed to him or her. Because Jefferson’s package was an Express Mail package, he argued that he had a right to speedy, uninterrupted delivery. In this case, the postal inspector developed probable cause to search the package before the contractual deadline for delivery. Therefore, the court held that there was no improper seizure of the package under Fourth Amendment doctrines. “By the time ‘the constitutional chemistry was altered’ at 3:00 p.m. on April 7, law enforcement had already established probable cause to seize Jefferson's package. Thus, law enforcement acted well within the bounds of the Fourth Amendment in detaining, seizing and then searching Jefferson's package.” United States v. Jefferson, --- F.3d ----, 2009 WL 1444555 (9th Cir. 2009).
K9 tracking evidence subject to expert witness foundation requirements
White and two confederates robbed a convenience store at gunpoint. As the bandits were leaving the store, a police officer pulled in to the parking lot. The store clerk flagged the officer over and told him about the robbery. The officer chased the bandits, caught one, and White and the other continued to run. A K9 team responded and tracked White. The dog tracked directly to White. Apparently tuckered out from running while under the influence of large quantities of alcohol, White was curled up sound asleep on the ground, his handgun held like a pacifier. White challenged the introduction of the tracking evidence. Despite a positive identification by the store clerk and the officer who saw him run from the store, White claimed that “some other dude done it.” He did not have a rationale explanation for being asleep in a field, grasping a handgun.
White claimed the trial judge failed in his gate keeping role to vet the reliability of the dog's tracking skills, thus leaving the jury to speculate about the dog's reliability. The court overruled a South Carolina Court of Appeals decision setting different standards for admission of science-based expert testimony and experience-based expert testimony. The court held that expert testimony based on specialized skill is subject to the same test for admissibility as scientific expert testimony. The court adopted a test nearly identical to numerous other jurisdictions. “A sufficient foundation for the admission of dog tracking evidence is established if (1) the evidence shows the dog handler satisfies the qualifications of an expert under Rule 702; (2) the evidence shows the dog is of a breed characterized by an acute power of scent; (3) the dog has been trained to follow a trail by scent; (4) by experience the dog is found to be reliable; (5) the dog was placed on the trail where the suspect was known to have been within a reasonable time; and (6) the trail was not otherwise contaminated.” The court held that the trial judge had properly considered the qualifications of the handler/expert and the reliability of the evidence and it affirmed White’s conviction. State v. White, --- S.E.2d ----, 2009 WL 1108881 (S.C. 2009).
Currency contamination theory doesn't defeat K9 sniff
Ronald Johnson saw a police officer and began to run. The officer chased Johnson to a house. When the officer knocked on the door, Johnson shouted at him from the second floor window. After some commotion, the officers entered the house and found Johnson in the second floor room. There were various drugs on the bed near Johnson. They arrested Johnson and took him to jail. At the jail, the officers found $845 in Johnson’s pants pocket. A drug detector dog sniffed the pants and the cash and gave a positive final response to both. The prosecution introduced the sniff evidence and preemptively introduced evidence to combat the widespread misunderstanding about currency contamination.
The court held that the prosecutor should not have been allowed to preemptively attack the currency contamination myths. However, the court also rejected Johnson’s claim that the court should take judicial notice that the majority of U.S. currency is contaminated by the residue of controlled substances. The dog’s handler testified about conducting a number of controlled sniffs in proofing exercises with currency in general circulation in the community. However, the court observed that the handler had not been presented as an expert in the currency contamination theory. Nonetheless, the results of the dog sniff were held to have probative value in determining whether Johnson possessed illegal drugs.
The currency contamination theory is just a theory. Moreover, the condition of residual, microscopic trace evidence of drugs on a single bill does not lead to the conclusion that the bill will carry the odor of illegal drugs. Defendants who have advanced the currency contamination theory have often done so relying on scientifically fallacious arguments, supported by junk science. In the cases where the prosecution has responded with the properly qualified experts, the currency contamination theory rapidly disintegrates into the residue of detritus and its value in the courtroom becomes less than microscopic. Johnson v. State, --- A.2d ----, 2009 WL 929347 (Md. 2009).
Warrantless search of probationer's home allowed, even without probation agreement provision
Carter was on probation for possession of cocaine and for battery. He was subsequently arrested for trafficking in cocaine and ecstasy, but the evidence was suppressed and the charges were dismissed. The prosecutor notified Carter’s probation agent of the arrest and evidence issues. Carter reported meager income from menial labor, but bought three expensive cars and a town home. Carter told his probation officer that he was forming a drywall company with a friend (who had a felony criminal history). The business cards had stylized printing that suggested a gang affiliation. The probation agent decided that there was reasonable suspicion to search Carter’s home. Carter’s probation agreement did not include a provision subjecting him to warrantless searches.
In United States v. Knights, 534 U.S. 112 (2001), the Supreme Court upheld a police officer’s search of a probationer's home upon reasonable suspicion, in a case where there was a probation agreement provision providing for warrantless searches. The Court’s opinion did not foreclose the possibility that probation searches might be permissible upon reasonable suspicion and without a probation agreement requiring warrantless searches. Lower courts have divided on the issue of whether warrantless search clauses must be contained in probation agreements in order for such searches to be permitted upon reasonable suspicion. The Court of Appeals for the 11th Circuit held that, “when a probationer has a condition of probation reducing his expectation of privacy, and the government has a higher interest in monitoring the probationer due to the nature of his criminal history, a search can be permissible when supported only by reasonable suspicion.” Carter’s expectation of privacy in his home was reduced by a probation condition requiring him to submit to home visits. “We conclude, in this case, that Carter had a reduced expectation of privacy in his home and the government had a sufficiently high interest in monitoring him on account of his drug and violence-related crimes that a search of Carter's home based upon reasonable suspicion was reasonable under the Fourth Amendment.” The better course is to include warrantless searches as written conditions in probation agreements. United States v. Carter, --- F.3d ----, 2009 WL 1108667 (11th Cir. 2009).
No custody in police parking lot conversation
Burbine fought with his girlfriend. She asked him to leave. She then called the police and asked them to come and pick up some of Burbine’s belongings, including a duffel bag of illegally-possessed guns. An officer later telephoned Burbine and invited him to come to the station to retrieve his property. The officer intended to ask Burbine about the guns. Two officers met Burbine in the parking lot and casually asked him questions about the ownership of the guns. Burbine admitted to owning all but one. The trial judge suppressed Burbine’s statements, finding that he was not free to leave at the time of the questioning, thus triggering Miranda warnings. The judge further found that, even if Miranda warnings were not required, the statements were involuntarily given.
The appellate court reversed. The statements were not involuntary. The officers “talked nice, thought mean.” There was no coercion involved. Burbine was a person of average intelligence who was fully rational and capable of freely conversing with the officers. Nor was Burbine in custody. He was not escorted into the station, placed in a patrol car, told that he couldn’t leave, or restrained in any way. The objective circumstances of the interrogation do not disclose that there was a restraint on Burbine’s freedom of movement of the degree associated with a formal arrest. The officer’s unstated intent to arrest Burbine on weapons charges was irrelevant to the custody determination. Commonwealth v. Burbine, 904 N.E.2d 787 (Mass.App.Ct. 2009).
Search incident to arrest rules modified in Arizona v. Gant
The United States Supreme Court modified the search incident to arrest doctrine, rejecting a broad reading of New York v. Belton, 453 U.S. 454 (1981). In Arizona v. Gant, --- U.S. ---, 2009 WL 1045962, the Court overturned the search incident to arrest of Rodney Gant’s car after Gant was arrested for driving with a suspended license, handcuffed and secured in the back of a patrol car with several officers at the scene. Officers found cocaine in Gant’s car during the search incident to the driver license arrest.
The Court held that a search of the passenger compartment of a vehicle following an arrest is allowed “only if [1] the arrestee is within reaching distance of the passenger compartment at the time of the search or [2] it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”
The holding of Chimel v. California, 395 U. S. 752 (1969), continues to be good law, insofar as the search incident to arrest can be justified by the suspect’s ability to lunge to an area and destroy evidence or reach a weapon. However, once the suspect is handcuffed and moved away from the vehicle, the suspect’s ability to reach evidence or a weapon is eliminated, or at least significantly reduced. One of the practical dangers of today’s decision in Arizona v. Gant is that some officers may conclude that there is a practical balancing act, a tactical trade-off. Leave the suspect unsecured, unhandcuffed, and near the car, and there remains the possibility that that suspect would lunge toward a weapon and thus, the legal justification for the search remains. The legal justification may come at the cost of a significant risk to the officers’ safety.
Five years ago, in Thornton v. United States, 541 U. S. 615 (2004), the Court recognized that a search of a vehicle incident to the arrest of a recent occupant may be also justified “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” The Gant decision also leaves this holding intact. Because Gant and the other two suspects were in custody, handcuffed and secured in separate police cars, the Court refused to apply the Chimel lunge or reaching justification to the case. And because Gant was arrested for a driver license violation, the Thornton evidentiary search holding would not apply. It was not reasonable to believe that the vehicle held evidence of Gant’s suspended driver license status.
The Gant decision was released today as I was speaking to a group of court staff, attorneys and law enforcement officers. One officer showed me a bulletin from his agency that suggested that the search incident to arrest doctrine was no longer valid. Several officers had news stories suggesting that there could no longer be a search incident to arrest of a vehicle. While troubling for officers, the Gant holding is not nearly so broad. Gant stands for the proposition that once the arrestee is secured, a search incident to arrest of the involved vehicle is lawful only when there is reason to believe that the vehicle holds evidence of the underlying crime on which the arrest is based. Gant does not foreclose other search doctrines that may apply to particular cases. Fourth Amendment warrant clause exceptions of consent, probation/parole search, exigent circumstances, vehicle “frisk” for weapons upon appropriate reasonable suspicion, inventory and community caretaking, continue to potentially apply.
I remember being a young cop and being pleasantly surprised by the Belton decision in 1982. Now 27 years later, I am surprised by the result in Gant. The thin majority (5-4) was made possible only by Justice Scalia joining the majority opinion, although he wrote a separate opinion highlighting his comments in Thornton. During oral arguments in Arizona v. Gant, held in the fall of 2008, Chief Justice Roberts asked questions that acknowledged that Gant’s arguments are nearly identical to the arguments raised in the Belton case 27 years ago. Justice Scalia quipped that 27 years is not very long. He asked, “What would have happened if police stopped Thomas Jefferson's carriage to arrest him?” Justice Scalia, known for his preference for bright-line rules that give effective guidance, also asked, “I mean, if the police arrest Mother Teresa, they are still entitled to frisk her, right, even though there’s little likelihood that she has a Gatt (gun)?” A past issue of Xiphos suggested that Justice Scalia’s questioning signaled his desire to curtail or overturn Belton. The Belton decision may have made an officer’s job a little easier, and the Gant decision may well make the job harder, but at the end of the day, cops will continue to uphold, defend and honor the Constitution as interpreted by the United States Supreme Court.
Suppression not required when interrogation done at suspect's workplace
Internet Crimes Against Children investigators identified Bassignani’s workplace email address as a conduit for downloading child pornography. Investigators learned from coworkers that Bassignani had installed Window Washer software that wiped the hard drive at intervals and deleted Internet browsing history. Investigators went to Bassignani’s office and asked him to step away from his computer and accompany them to a conference room. Bassagnani was escorted into the conference room and allowed to choose his seat at the table. The investigator told him that he was not under arrest and that he would walk out of the room at the end of the interview. The investigator did not specifically tell Bassagnani that he was “free to leave.” During the questioning in the conference room, Bassignani told the investigators where his car keys could be found. Other investigators searched Bassignani’s home computer, office computer and car. They found child pornography and wiping software. During the interview, Bassagnani admitted to downloading child pornography. At the conclusion of the interview, Bassagnani left the room and he was not arrested.
Bassagnani asked the court to suppress his statements, claiming that he was “in custody” for purposes of Miranda v. Arizona, 384 U.S. 436 (1966) and that the lack of warnings rendered the evidence from the interview inadmissible. Under Miranda and its progeny, a suspect is considered to be in custody if a reasonable person in the same circumstances would believe that his or her liberty was curtailed to the degree associated with a formal arrest. The Ninth Circuit, similar to other courts, looks at a number of factors to determine whether a person is in custody. These factors include: “(1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual.” These are not necessarily exclusive factors. Though the trial court found that Bassagnani was in custody, the appellate court reversed.
The appellate court observed that Bassagnani was interviewed in a place familiar to him, the workplace conference room. A couple of persons came and went during the interview, suggesting that Bassagnani was, in fact, free to leave. The investigator told Bassagnani that they had traced child pornography downloads to his laptop, but did not directly confront him with that evidence. There was not pressure on Bassagnani to confess. The court noted that the entire two and one-half hour interview was conducted in an “open, friendly tone.” (Talk nice, think mean!) Though the interview lasted a significant amount of time, suggesting custody, it was not a “marathon interrogation” designed to coerce a confession. Given the totality of the circumstances, the appellate court could not conclude that he was interviewed in circumstances that a reasonable person would associate with a formal arrest. United States v. Bassignani, --- F.3d ----, 2009 WL 764562 (9th Cir. 2009).
MIstaken broadcast of warrant leads to gun arrest, but no suppression
Groves was a suspect in shooting several rounds into a home. The investigating officer consulted with a prosecutor and then issued a “wanted bulletin” indicating that the prosecutor would be preparing an arrest warrant. A month later, an anonymous tipster called police and reported seeing Groves. The dispatcher broadcast the information, including erroneously broadcasting that a warrant had been issued for Groves. A responding officer saw Groves driving and stopped him. The officer saw a gun under Groves’ seat. He arrested Groves for being a felon in possession of a gun. Groves challenged the arrest on the basis of the mistaken information that there was a warrant for his arrest. The court of appeals agreed that Groves detention and the discovery of his gun were unlawful because there was no actual arrest warrant. Relying on the recent U.S. Supreme Court case of Herring v. United States (see Xiphos 2009), the court held that suppression of the gun was not the appropriate remedy for the dispatcher’s mistake. “There is nothing in the record to suggest that the South Bend Police Department recklessly disregarded constitutional requirements or that any police personnel knowingly falsified a warrant record.” Thus, Groves’ conviction was upheld. United States v. Groves, --- F.3d ----, 2009 WL 692120 (7th Cir. 2009).
Causing another to touch himself during child pornography production qualifies for federal sentencing enhancement
Robert Shafer and his partner and co-defendant, Kurt Amundson, operated a state-licensed foster care home for boys. Shafer and Amundson held nude hot tub encounters with the boys. Shafer also took photos of the nude boys. Shafer had a sexual relationship lasting five or six years with one of the boys, beginning when the boy was eight years old. During one of the sexual encounters, Shafer persuaded the 11 year-old boy to masturbate himself during videotaping. Shafer was charged under 18 U.S.C. § 2246(3), which defines “sexual contact” as “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” The intentional touching is a sentencing enhancement. Shafer was sentenced to 30 years. For the first time by any court, the court of appeals held that “intentional touching” could include enticing another person to touch his or her own genitalia, anus, groin, breast, inner thigh, or buttocks with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. United States v. Shafer, 557 F.3d 440 (6th Cir. 2009).
Once warrantless stand-off lawfully begins, officers need not stop to obtain a warrant
In a case reported in Xiphos 2008, I noted that the decision in Fisher v. City of San Jose was likely to be quickly overruled and now it has been. A news headline recently reported that the Ninth Circuit Court of Appeals continues its two-decades plus reign as the nation’s most frequently-reversed court. This case, however, was corrected by an en banc hearing of the court, meaning that a larger group of the judges of the Ninth Circuit considered the case.
Fisher began the evening of October 23 in his apartment, drinking beer, watching the World Series on television, and cleaning his collection of eighteen bolt-action World War I and II era rifles. When the game ended, Fisher continued cleaning his weapons and drinking his way through the two cases of beer he had purchased earlier that day. From time to time, Fisher took a break to read from a book entitled The Second Amendment Primer. A security guard responded to noise complaint. Fisher, highly intoxicated, became agitated and pointed a rifle in the guard’s direction. The guard left and called police. Responding officers saw Fisher loading cartridges into a heavy caliber rifle. Fisher told officers that he would kill them if they approached his home. Officers used negotiators, gas and noise/flash distraction devices to encourage surrender. About 12 hours into the stand-off, Fisher agreed to come out and surrender. He began to walk toward officers, then suddenly turned and ran back toward his home. An officer shot him in the leg with a less-lethal projectile and Fisher was arrested. At no time during the stand-off did the officers go to the local courthouse to swear out an arrest warrant.
The parties in the civil suit agreed that Fisher was seized inside his home by police, thus placing the burden on police to obtain a warrant or show that an exception to the warrant requirement existed. Fisher agreed that there was ample cause to arrest him. There were several occasions when Fisher aimed rifles at various officers and he threatened to kill officers. Amazingly, no officer shot Fisher during any of these multiple incidents. Fisher argued that officers are required to assess the exigent circumstances doctrine “each passing minute” during a stand-off. A panel of the Ninth Circuit Court of Appeals initially held in Fisher’s favor, ruling that the initial exigency had dissipated and that police should have obtained a warrant prior to taking action to secure Fisher.
The entire Ninth Circuit reversed and held that once police lawfully begin a warrantless standoff initiated by a suspect’s actions, the officers do not need to stop and obtain a warrant, even if the standoff continues and there are lulls in the action that might permit some of the officers to leave their posts and obtain a warrant. “We conclude that once exigent circumstances and probable cause justified Fisher's seizure, police were not required to obtain an arrest warrant despite the fact that they did not take Fisher into full physical custody until hours later.” The Ninth Circuit held that to rule otherwise would be to place a “dangerous burden” on police. The decision narrowly divided in a 6-5 vote by the participating judges. Because of the narrow split, the case may be primed for an appeal to the United States Supreme Court, though it is unlikely that the Supreme Court would agree to consider the case. The majority opinion acknowledged that Fisher’s position would, “buckle under the weight of Supreme Court caselaw and that of our own circuit, but it further complicates the already complex and dangerous process of safely resolving armed standoffs, without providing any meaningful Fourth Amendment protection.” The majority pointed out the irony of the dissenting view, stating that it could not understand, “the logic in condoning a scheme that exposes police to civil liability when, as here, they elect to methodically respond to dangerous standoffs, but affords officers greater protection from liability if they hastily force entry with guns blazing.” Fisher v. City of San Jose, --- F.3d ----, 2009 WL 606132 (9th Cir. 2009) (en banc).
Search of paramedic's computer was not "government search"
Inman, a paramedic, was at work in the field responding to an ambulance call. Other paramedics were at the station where Inman worked. Inman’s laptop computer was on the kitchen table, turned on, but shut. Two of his coworkers were discussing Inman’s new girlfriend, but could not remember her name. One opened Inman’s computer to check for the girlfriend’s name on the instant messenger list. He saw icons that suggested child pornography, opened the files and viewed three explicit videos of children engaged in sex. The next day, after some discussion with other paramedics, the coworker told an investigator about the videos. The investigator obtained a search warrant for Inman’s computer. Presented with the warrant, Inman consented to a search of his home. In addition to the child pornography on his computer, officers found a DVD with child pornography in the home.
Inman asked the court to suppress the warrant and the subsequent searches. He alleged that his coworkers, all employed by the government and one of whom was a supervisor, were government agents that searched his computer illegally. However, just because the persons who examined the computer and found the child pornography were civil servants does not necessarily mean that the Fourth Amendment is implicated. In this case, the court held that the search was conducted by a private citizen and therefore Inman’s Fourth Amendment rights were not violated. The court considered “whether the government had knowledge of and acquiesced in the intrusive conduct; whether the citizen intended to assist law enforcement agents or instead acted to further his own purposes; and whether the citizen acted at the government's request.” When a defendant claims that the searching party was a government actor, the question of the searching party’s intent is particularly important. Other courts have held that the searching party’s intent, i.e., whether the searching party intended to advance government interests or private interests, is the pivotal question in deciding whether the Fourth Amendment applies to the search. United States v. Attson, 900 F.2d 1427 (9th Cir. 1990). In this case, the two snooping paramedics were curious about Inman’s girlfriend. They had no intent to find any evidence or any information that might be helpful to a government investigation. In fact, once they found the child pornography, they were initially hesitant in reporting it to police. Thus, the initial discovery of the child pornography did not violate the Fourth Amendment and the evidence was admissible against Inman. United States v. Inman, --- F.3d ----, 2009 WL 538717 (8th Cir. 2009).
Miranda waiver elements of voluntariness and knowledge measured from officer's perspective
Garner found a woman’s purse near a pay phone in hospital emergency room. He took the purse and hailed a cab to take him to the woman’s home. There he had the cab driver wait while Garner loaded appliances and other goods from the home into the cab. Garner saw 6 children sleeping in the home. He explained to the cab driver that his girlfriend was evicting him from the home. After Garner loaded the cab, he set several fires in the home. All but 1 of the children died in the fire. Officers located Garner through the cab driver (who had accepted a TV set as the cab fare). Garner admitted to the theft and to setting the fires, explaining that he thought that the children would escape alive.
Garner claimed that his confession should not have been admitted because he lacked the mental capacity necessary to provide a valid waiver of his Miranda rights. Garner introduced evidence that he was on the border of mental retardation. An expert testified that Garner “appeared to be of near average intelligence” and “appeared to be able to understand all questions and material presented to him.” The Court of Appeals determined that the appropriate test was whether Garner showed discernable signs to police that he was incapable of understanding the warnings that the officers provided. The court derived this test from its interpretation of Colorado v. Connelly, 479 U.S. 157 (1986). In Connelly, the Supreme Court held that a confession given by a man who believed that God told him to confess was admissible because there was no “substantial element of coercive police conduct.” In a case decided shortly after Colorado v. Connelly, the Court explained that the analysis of a Miranda warning has two components: voluntariness and comprehension. If the totality of the circumstances show that the waiver was the product of a free and deliberate choice, and not intimidation and coercion, and the waiver was made with full awareness of the right being surrendered and the consequences of that surrender, then the court should find a valid waiver. Moran v. Burbine, 475 U.S. 412 (1986). In the Garner case, the Court of Appeals held that each of these two components be examined from the perspective of the officers conducting the interrogation.
In this case, the totality of the circumstances did not suggest to police that Garner was not able to understand the Miranda warning and give a knowing waiver. Therefore, his confession was admissible. “Even if Garner's mental capacity, background, age, and experience did somehow prevent him from actually understanding the Miranda warnings—and the evidence indicates that they did not—the officers questioning Garner had no way to discern the misunderstanding in Garner's mind.” Garner v. Mitchell, --- F.3d ----, 2009 WL 510541 (6th Cir. 2009).
Utah Court of Appeals invalidates telephonic search warrant due to judge's failure to follow procedural rule
An officer arrested Dominguez for DUI. Dominguez refused to provide a breath test or perform field sobriety tests. The officer obtained a telephonic search warrant from a judge. However, the judge did not keep a recording of the telephone conversation in which he ordered the officer to conduct a search by drawing Dominguez’s blood. The Utah Court of Appeals held that Rule 40 of the Utah Rules of Criminal Procedure requires the judge, not the officer, to retain the recording. The rules provides: “At the time of issuance, the magistrate shall retain and seal a copy of the search warrant, the application and all affidavits or other recorded testimony on which the warrant is based and shall, within a reasonable time, file those sealed documents in court files which are secured against access by the public.”
Dominguez did not contest the sufficiency of probable cause. Dominguez simply argued that the judge failed to fully comply with the procedure rule. The appellate court cited rulings other courts, including the Court of Appeals for the Tenth Circuit (having jurisdiction in Utah), that held that, “unless there is a clear constitutional violation, non-compliance with [the rule] requires suppression of evidence only where (1) there was ‘prejudice’ in the sense that the search might not have occurred or would not have been so abrasive if the rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the rule.” Neither of those factors appeared to be present in this case. However, the appellate court noted that this was the first time that a Utah state court had considered the issue and the court predicted that the Utah Supreme Court would require rigid and undeviating compliance with Rule 40. Thus, the judge’s failure to comply with the procedural rule prompted the court to rule that the blood alcohol evidence should be excluded.
The Dominguez case presents a grand irony. Appellate courts have urged officers in Utah to seek search warrants in DUI cases, rather than rely on the exigent circumstances doctrine. Utah law enforcement training officers have responded to the courts’ requests and presented training on telephonic search warrants. For now, the impact of the Dominguez decision is that officers will have to assume the risk of the judge complying with the procedural rule by preserving a copy of the recorded conversation in which the telephonic warrant is issued. It is not enough that the officer make and preserve a recording. Until the rule or statute is changed, or until and if the Supreme Court reviews the Dominguez decision, officers in areas with the availability of E-warrants should use the E-warrant system whenever possible, in place of a telephonic warrant. State v. Dominguez, --- P.3d ----, 2009 WL 706662 (Utah App. 2009).
Officer properly ordered driver out to facilitate dog sniff; no suspicion required to sniff where stop was not extended
Officers stopped Bell for speeding. Bell was driving a rental car, though his name was not on the contract. The officer speaking with Bell suspected that he was transporting illegal drugs, based on the following factors: (1) Bell repeated the same story about his destination and sounded rehearsed; (2) Bell moved too quickly for the rental agreement; (3) Bell was holding a cell phone; (4) Bell did not make eye contact with the officer at his window; and, (5) Bell was overly respectful and cooperative. A K9 handler was working in the area and the officers called for a detector dog sniff. In Illinois v. Caballes, 543 U.S. 405 (2005), the Supreme Court held that a dog sniff may be performing during a routine traffic stop without improperly exceeding the scope of the traffic stop. However, the sniff cannot unreasonably prolong the duration of the traffic stop without reasonable suspicion of drug possession.
The K9 unit arrived at the scene approximately 10 minutes after the stop began. The officers ordered Bell out of the car at the request of the K9 handler because the handler preferred to conduct sniffs of cars without occupants. The dog was deployed approximately 12 minutes after the stop began. During the sniff, the first officer continued to talk with Bell about the traffic violation and the issue with driving a car rented in someone else’s name. Within 38 seconds of beginning the sniff, the detector dog provided a final response, communicating the presence of the odors of controlled substances. The officers found four bags of crack cocaine over the right rear wheel well. Bell asked the court to suppress the evidence, claiming that the dog sniff was conducted without reasonable suspicion to extend the scope of the detention. Bell also argued that the officers shifted focus from a traffic stop to drug interdiction when they ordered him get out of the car to facilitate the dog sniff.
The Court of Appeals agreed with Bell and held that there was no reasonable suspicion of drug possession. The court also disagreed with the prosecution’s claim that the dog sniff was permissible because it was completed within the time of an “average” traffic stop. “The proper inquiry is whether Bell was detained longer than reasonably necessary for the officers to complete the purpose of the stop in this case.” The court found that the officers continued to deal with the traffic violation contemporaneously with the dog sniff. The court held that ordering Bell out of the car to facilitate the dog sniff did not fundamentally alter the scope of the traffic detention. “We simply cannot conclude that an officer violates the Fourth Amendment merely by asking a driver to exit a vehicle to effect a dog sniff when doing so does not extend the duration of the stop and does not cause the officer unreasonably to deviate from the purpose of the initial stop.” United States v. Bell, --- F.3d ----, 2009 WL 363640 (6th Cir. 2009).
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