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No custodial interrogation when off-duty officer used friendly tone and brief questioning was in public place
A patron told a security guard in a bar that he had watched a drug deal in the bar restroom. The patron pointed out Walth as the person who sold the drugs. The security guard approached Walth and asked him whether he had drugs. Walth gave the security guard a cellophane wrapper that carried the odor of marijuana. The security guard lead Walth to an off-duty police officer, also working as a security guard. The off-duty officer identified himself as a police officer and asked Walth to step outside the bar for questioning. The officer asked Walth for identification and questioned Walth about selling drugs. Walth admitted that he had sold marijuana to a friend. The officer asked Walth again about drugs and Walth produced several ecstasy tablets. The officer arrested Walth. While waiting for an on-duty officer to transport Walth, the officer gave a Miranda warning and asked Walth whether he would answer additional questions. Walth agreed, and admitted to selling ecstasy in the bar restroom.
Walth asked the court to suppress his pre-Miranda statements, claiming that he was in custody and being interrogated from the point that the officer asked him to step outside. Walth argued that he was being questioned after having been observed committing a crime and was being questioned by a security guard who immediately identified himself as a police officer. Neither argument was successful. Courts examine two factors to determine whether a person is subjected to custodial interrogation, thus triggering the Miranda requirement. “First, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Applying that test, the appellate court held that Walth was not in custody when he admitted to selling marijuana and prior to his formal arrest. The officer testified that he used a friendly, conversational tone with Walth (talk nice, think mean). The questioning was brief and took place in a public and neutral area. A reasonable person in similar circumstances would have understood he could walk away. State v. Walth, 2011 WL 5593123 (S.D. 2011).
Officers liable for improper arrest following interrogation in which officers lied to arrestee
Aleman operated a day care center in his home. An infant in his care had been seriously ill for two days. After the child was dropped off by his mother on the third day, the child began to gasp for air and collapsed. Aleman shook the child in an effort to revive him. Aleman administered CPR. An ambulance took the child to a hospital, where he died several days later. At the same time that the ambulance arrived, police officers arrived at the home. Aleman told the officers that he had gently shaken the child to arouse him. The officers asked Aleman to come to the police station. Eventually, Aleman spoke with his attorney. The attorney told the officers that Aleman was invoking the right to remain silent. However, invocation of the right to remain silent must be personally asserted by the person being questioned. Officers lied to Aleman, telling him that three doctors had opined that the injuries to the child could only have been caused by shaking him too rigorously. Aleman repeated denied that he shook the child hard enough to cause injury, but at one point said, “I know in my heart that if the only way to cause [the injuries] is to shake that baby, then, when I shook that baby.” Aleman was released, but was later arrested for murder.
A prosecutor viewed the video recording of Aleman’s interrogation and concluded that Aleman’s statement was more exculpatory than incriminating. The autopsy showed that the child might well have been shaken violently a few days earlier, inducing the feverish and lethargic state that the child showed I the days preceding his collapse. Initially, the pathologist stated that it was highly unlikely that Aleman could have caused the fatal injury. However, one of the officers lied to the pathologist and told him that the child was healthy and normal when he was dropped off at the day care center. The officer questioned the child’s mother, who denied ever striking or shaking the child. A state child welfare investigator discovered that the mother had a violent history with a criminal record and that she had previously severely beaten and shaken the child and threatened to kill him. Charges against Aleman were dismissed.
Aleman sued the officers and police department, alleging that the murder arrest was not supported by probable cause because his so-called confession was coerced. In a criminal case, courts do not generally find tricks and deceit by police to invalidate a confession. However, if the police lies “destroy the information required for a rational choice,” the confession will be deemed unreliable. In this case, the court held that the lies were so egregious that they convinced Aleman that his shaking was the only means by which the child could have been injured. In fact, a gentle shaking was consistent with CPR recommendations for an infant. Because the alleged confession was coerced and unreliable, there was no probable cause to arrest Aleman. The court also denied qualified immunity for the officers, meaning that they could be held liable for the damages stemming from the lies and the improper arrest. Aleman v. Village of Hanover Park, 2011 WL 5865654 (7th Cir. 2011).
Jury vindicates officer and police department in TASER case remanded from the appellate court
In the case of Shannon Cavanaugh v. Woods Cross PD, reported earlier in Xiphos, the appellate court began its decision by observing that “although several material facts in this case are disputed, the court views the facts and draws reasonable inferences in the light most favorable to the party opposing the summary judgment.” After the appellate court sent the case back to the trial court, a jury had the opportunity to hear the facts over a week-long trial. Cavanaugh and her husband had a fight, just as they had on prior occasions. Cavanaugh had been drinking. She took some kind of drug on top of the several shots that she drank. She shoved her husband into a closet and stormed out of the house with a large knife. The husband told police that she did not want to go back to the hospital for another mental evaluation and that he feared that she was suicidal. When she returned, an officer saw a woman walk toward the house. When the officer asked whether she was Shannon Cavanaugh, she lied and said “no.” He recognized that it was her and commanded her to stop, fearful that she was armed and would go into the house to once again assault her husband. When Cavanaugh continued toward the house, the officer deployed TASER® probes into her back. Cavanaugh fell, injuring her head. Cavanaugh later plead guilty to intoxication and domestic violence assault.
After hearing a number of witnesses, the jury quickly returned a verdict in favor of the police department.
Call to ICE to verify alien identification did not impermissibly extend traffic stop
Fifteen years ago, in Whren v. United States, 517 U.S. 806 (1996), the Supreme Court opened the door to allow officers to use traffic stops to investigate crimes unrelated to a traffic violation. The Whren decision expressly approved pretext traffic stops. Nine years later, in Muehler v. Mena, 544 U.S. 93 (2005), the Court allowed questioning completely unrelated to the purpose of a detention. As long as the unrelated questioning did not measurably extend the detention, the subject matter of the questioning was not relevant to the constitutional analysis of the detention. More recently, in Arizona v. Johnson, 555 U.S. 323 (2009), the Supreme Court clarified that the Muehler holding applied to traffic stops. The 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.” Considering the clear direction from the Supreme Court on the open scope of questioning that does not significantly extend an otherwise lawful detention, defendants naturally turn to challenging whether the ancillary questioning adds significant time to the detention.
Guijon-Ortiz was a passenger in a truck stopped for suspicion of impaired driving. The officer asked Guijon-Ortiz for identification. Guijon-Ortiz presented the officer with a Lawful Permanent Resident Identification Card. The officer checked for warrants for Guijon-Ortiz, finding none. He then called and ICE officer to check the validity of the resident alien card. ICE officials told the officer that the alien registration number on the card did not match the name listed for the card. After identification through fingerprints, Guijon-Ortiz was convicted of aggravated re-entry after deportation. Guijon-Ortiz argued that he had been unlawfully seized during the time that it took for the officer to call ICE.
Although state and federal courts have not agreed on the precise contours of permissible unrelated questioning at a traffic stop, most courts focus on whether the detention was completed within the time generally required for a typical traffic stop. In this case, the court considered whether the officer was “diligent in accomplishing the purposes of stop, that is, investigating whether a traffic infraction occurred and issuing a ticket.” “If the totality of the circumstances, viewed objectively, establishes that the officer, without reasonable suspicion, definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation, this would surely bespeak a lack of diligence,” and suppression of the evidence could be appropriate. The court held that the immigration status check was proper and that the officer diligently pursued the traffic stop investigation. The court noted that a single phone call to ICE to check the resident alien status was similar to routinely checking driver license and registration documents to verify their validity. Moreover, the officer had not dispelled his suspicions of impaired driving at the point that he took a brief detour to check with ICE. Finally, the added time was brief, lasting only a few minutes. Therefore, the questioning unrelated to the initial stop did not impermissibly expand the scope of the detention and the trial court properly denied Guijon-Ortiz’s request to suppress the identification evidence. United States v. Guijon-Ortiz, --- F.3d ----, 2011 WL 5438974 (4th Cir. 2011).
No search occurred where DNA was collected from discarded PBT mouthpiece
Detectives suspected Thomas of several home burglaries. DNA had been collected at most of the burglary scenes. Thomas was stopped on for a traffic violation. The officer suspected that Thomas was impaired and asked him to blow into a portable breath test instrument. Although Thomas was released, the officer retained the mouthpiece used by Thomas. Detectives obtained a DNA profile from the residual saliva. The DNA matched genetic material collected at two of the burglaries. Thomas was arrested and a DNA sample was collected under controlled conditions. The subsequent DNA analysis showed a match for genetic material collected at five burglary scenes. A search warrant execution at Thomas’s residence produced additional evidence of his involvement in the burglaries.
Thomas claimed that the DNA testing of the residual saliva on the mouthpiece constituted an unlawful warrantless search. The trial court ruled that Thomas had abandoned any expectation of privacy in the mouthpiece because he did not ask to retain the mouthpiece, nor did he ask about any intended uses. One controversial issue in DNA testing by the government is the bounty of information beyond mere identification that a DNA analysis can reveal. In this case, however, the DNA analysis was limited to identification, so the court framed the issue as whether Thomas retained an expectation of privacy in the mouthpiece that society would recognize as legitimate.
The court held that there was no Fourth Amendment search. “We conclude that defendant has no legitimate privacy interest in the saliva he deposited on the mouthpiece of the PAS device.... He abandoned any expectation of privacy in the saliva he deposited on this device when he failed to wipe it off.” Therefore, its subsequent genetic testing was not a search. Thomas argued that the police tricked him by not advising him of the intended use of his residual saliva. In other cases previously reported in Xiphos, courts have allowed a measure of trickery to obtain DNA samples. In State v. Athan, 158 P.3d 27 (Wash. 2007), the court approved of admission of DNA evidence extracted from the saliva on a reply envelope that the defendant sent to police in hopes of benefitting from a lawsuit. Other courts have upheld admission of DNA taken from discarded drink cups and cigarette butts. The court rejected the trickery claim because officers did not mislead Thomas about being the subject of a criminal investigation. People v. Thomas, --- Cal.Rptr.3d ----, 2011 WL 5110251 (Cal.App. 2nd Dist. 2011).
GPS tracker and monitoring did not require a warrant
Officers were investigating Angel Hernandez for suspected drug trafficking. They knew that he drove a Chevrolet pickup truck when dealing drugs. Though his girlfriend drove the truck occasionally, Angel Hernandez was the primary driver. An officer saw the truck parked on a public street in front of Hernandez's residence. The officer crawled under the truck and attached a GPS tracker. The officer did not have a warrant to attach or use the device. The GPS tracker was accurate to 50 yards, but could not relay a precise address nor transmit a signal from an enclosed area like a garage.
The officers learned that Angel Hernandez’s brother, Jose Hernandez, was supposed to drive the truck from Texas to southern California to pick up a large load of methamphetamine. They used the tracker to follow the truck to the pick-up point. Other officers then watched Jose Hernandez load several packages into the truck. They stopped him for a traffic violation and obtained consent to search the truck. The search revealed 20 pounds of methamphetamine. Jose Hernandez claimed that both the placement and the use of the GPS tracker violated the Fourth Amendment, requiring suppression of the drugs.
The U.S. Court of Appeals for the Fifth Circuit rejected this claim, siding with the majority of courts to hold that the use of a tracker to follow a suspect on open roads does not violate the Fourth Amendment and does not require a warrant. The court also rejected a claim that placement of the tracker was improper because the truck was parked on the street near Hernandez’s house. Hernandez claimed that the truck was within the curtilage of the home. The court stated that a car parked on a public street is never within the home’s curtilage. A single federal court of appeals struck down evidence obtained by continuous, month-long tracker monitoring, creating a division of authority in federal courts. See prior issues of Xiphos for discussion of United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). The United States Supreme Court will consider the issue in the fall term in the case of United States v. Jones, No. 10-1259 (U.S. June 27, 2011). For now, the strong majority of courts hold that there is no expectation of privacy barring attachment of a GPS tracker to the underside of a vehicle located in a public place and no expectation of privacy in the movements of the monitored vehicle as it travels in open areas and public roads. United States v. Hernandez, --- F.3d ----, 2011 WL 2750914 (5th Cir. 2011).
Static-only 911 call did not justify exigent circumstances entry to home
A 911 dispatcher received a call from Martinez’s home. The dispatcher could hear only static and got the same result upon dialing the number back. The dispatcher sent officers to investigate. One of the responding officers knew that telephone line problems or bad weather sometimes caused glitches that result in static calls. The responding officers knocked several times on the door. When no one responded, the officers looked through windows. They looked through a sliding glass door and saw a room that had electronics boxes and equipment strewn about. The officers entered through the unlocked door to check for persons inside who might need help. They found no one home, but found drugs and child pornography in open view. After the officers checked the house, Martinez arrived. The officers arrested him and obtained a search warrant for the home.
Martinez asked the court to suppress the evidence found, claiming that there were not exigent circumstances to justify the officers’ warrantless entry into his home. The prosecution argues that several factors justified the entry: (1) the static-only 911 call from the residence; (2) the “disheveled” appearance of the house; (3) the unlocked door on the backside second floor of the house; and (4) the electronics boxes just inside the unlocked door. In Brigham City v. Stuart, 547 U.S. 398 (2006), the Supreme Court held, “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 Tenth Circuit previously upheld an entry into a home based on a 911 hang-up call in United States v. Najar, 451 F.3d 710 (10th Cir. 2006) (discussed in 2006 Xiphos archives).
The court distinguished this case from United States v. Najar, explaining that 911 hang-ups inform the police that someone physically dialed 9–1–1 and either hung up or was disconnected. An unanswered return call gives further information pointing to a probability that after the initial call was placed the caller or the phone has somehow been incapacitated. A static call, particularly where emergency operators and officers are aware of weather and technical glitches that can cause such calls, does not raise the same suggestion that someone has called and is unable to answer the return call. Thus, the court held that a static-only call does not justify warrantless entry by police with no substantiating evidence of danger, injury, or foul play. United States v. Martinez, 643 F.3d 1292 (10th Cir. 2011).
Officer may explain mistaken stop to motorist, DUI upheld
Morris was driving a vehicle without a visible license plate. A trooper noticed the car as it drifted across the fog line several times. The trooper stopped Morris. As Morris pulled over, the trooper saw a valid temporary registration tag in the rear window. The trooper approached Morris to explain why he had stopped him. As the trooper spoke with him, the trooper could smell the odor of alcohol on Morris’s breath. Morris volunteered to provide his license and registration and asked the trooper if he also needed his insurance information. The trooper administered field sobriety tests and determined that Morris was driving under the influence of alcohol. A search of the car yielded drugs and drug paraphernalia and an open container of alcohol.
The court of appeals held that once the trooper spotted the valid temporary registration tag, there was no longer reasonable suspicion to justify the traffic stop and any contact with Morris was unreasonable. The court of appeals recognized its holding would likely cause a driver to be confused by the interrupted stop, but ruled that neither confusion nor police politeness justified even the briefest contact to explain the mistaken stop. The Utah Supreme Court reversed the court of appeals and joined the strong majority of courts that have held that an officer could explain a mistaken stop to the driver. The Utah Supreme Court stated the “touchstone of the Fourth Amendment is reasonableness,” and “drivers should not be left to wonder why they were stopped, nor should they have to experience the fear or confusion, however fleeting, that may result from a lack of explanation.” However, once the officer realized the mistake, “the officer may not ask for identification, registration, or proof of insurance at this time unless during this brief encounter, new reasonable suspicion of criminal activity immediately arises that justifies further detention.” Because the trooper smelled the odor of alcohol on Morris, the further questioning about alcohol consumption and the subsequent arrest for driving under the influence of alcohol was justified. State v. Morris, --- P.3d ----, 2011 WL 2992120 (Utah 2011).
Detention of person leaving search warrant target location allowed
Officers were watching a house prior to the execution of a search warrant. The object of the warrant was a handgun. The officers had a description of the occupant of the house. As they watched, two men came out of the house, got into a car and drove away. Both men matched the description of the occupant. The officers did not want to stop the car near the house and potentially alert others to their presence, so they followed the two men and stopped them approximately a mile away. The driver, Bailey, gave his address as the target house, even though his driver license showed a different address. The other man confirmed that Bailey lived at the target house. The officers handcuffed the two men, explained that they were not under arrest, but merely being detained during the search warrant execution. When told about the search warrant, Bailey denied living at the target address. Searching officers found the gun and drugs in plain view in the house. Bailey was arrested and his keys were seized incident to the arrest. One of the keys opened the door at the target house.
Bailey claimed that the detention was improper because it happened away from the scene of the search warrant execution. In Michigan v. Summers, 452 U.S. 692 (1981), the Supreme Court authorized officers to detain the occupants on the premises of a search warrant target in order to maximize safety, facilitate orderly execution of the warrant and to prevent flight from the premises. "A warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Following the Summers decision, courts have ruled inconsistently on the geographic and temporal proximity of the search of occupants. Some courts interpret Summers to allow a search of persons entering the zone around the target location. Others have allowed searches of persons who drive away from the target location, as happened in this case. Both the Tenth and the Eighth Circuits have limited the authority given by Summers to searches of persons actually on the target premises at the time of the execution. These courts opine that a person is no longer a threat after leaving the target location and is unlikely to interfere with the warrant execution.
The Second Circuit joined the majority view held by the Fifth, Sixth, and Seventh Circuits and upheld the detention that occurred five minutes and one mile away from the target location. "Summers imposes upon police a duty based on both geographic and temporal proximity; police must identify an individual in the process of leaving the premises subject to search and detain him as soon as practicable during the execution of the search." "There is no basis for drawing a bright line test under Summers at the residence's curb and finding that the authority to detain under Summers always dissipates once the occupant of the residence drives away." The court held that the officers acted reasonably in allowing Bailey to move out of the area where other occupants and/or neighbors could have been alerted to the warrant execution. The court noted that the officers were trying to make the execution process safer and were not attempting to exploit the detention to gain additional evidence against Bailey. Officers should discuss the application of Summers in their area with legal counsel in order to know which side local courts fall on in the split of authority. United States v. Bailey, --- F.3d ----, 2011 WL 2623442 (2nd Cir. 2011).
Despite numerous clues, court finds no reasonable suspicion in stop that lead to dog sniff and drug haul
A trooper stopped Duhaime for a license plate light violation and unlawful lane change. As the trooper walked up to the car, he saw fast food wrappers, four cell phones, a GPS and a map in the front seat. Duhaime's entire trip was on I-80, raising questions about the need for a map and GPS. Duhaime was driving a rental car from California to Illinois and paid much more for the rental than the cost of flights for Duhaime and his wife. He explained that he and his wife wanted to enjoy the cross-country drive. The trip was at the height of winter, when driving on I-80 can be treacherous and vast remote stretches through Wyoming are often closed due to snow drifts. Despite the fact that the car was a Lincoln sedan with a spacious trunk, the luggage was on the back seat. Duhaime showed significant nervousness as he spoke with the trooper and he offered inconsistent explanations for his unusual and uneconomical travel plans. Mrs. Duhaime was slow to wake, seeming to sleep through the first few minutes of the conversation. The trooper told Duhaime that he was calling for drug detection dog. The dog gave a positive final response at the trunk area. A search revealed 76 pounds of vacuum-packed marijuana.
Duhaime claimed that there was no reasonable suspicion to detain the vehicle for a drug dog. Numerous courts have held that implausible travel plans can support a finding of reasonable suspicion. Multiple cells phones have also been held to lead to reasonable suspicion. Other courts have recognized that luggage on the back seat and fast food wrappers in the car may lead to reasonable suspicion of cross-country drug trafficking. Some courts have recognized that appearing to be slow to wake may be a ruse to avoid questioning and can lead to reasonable suspicion. Many courts have cited various locations as drug sources and drug destinations and have noted that I-80 to Chicago is a known drug traffic route. However, each of these factors analyzed individually may have some innocent explanation. The Utah Court of Appeals examined each factor separately and concluded that there was no reasonable suspicion for the detention and sniff. For example, though there was nothing presented in the opinion to suggest so, the court proposed that Duhaime might not have been nervous, but might just have had a raspy voice due to a cold that he might have had. At the same time, the record showed that the trooper testified that Duhaime was very, very nervous, but did not relate any behaviors that would have supported his conclusion that Duhaime was nervous. Officers should report facts and observations, not merely the conclusions that arise from those observations. The court noted that nervousness is entitled to no weight if the officer cannot articulate the unusual mannerisms or actions by the defendant that led to a conclusion of nervousness. The case is now being considered for appeal to the state supreme court. State v. Duhaime, --- P.3d ----, 2011 WL 2567768 (Utah App. 2011).
Plaintiff may sue police for excessive force even when there is only a de minimis injury
Chambers was visiting his stepdaughter at her apartment when officers executed a search warrant. Chambers was detained, handcuffed and frisked. He was eventually convicted of a felony drug crime in connection with the incident. He claimed that one of the officers forced him to the ground and kicked him. At the jail, he complained of pain and was taken to a hospital. He claimed that one officer drove erratically, bouncing him around the car, while another officer choked him. A doctor stated that Chambers had a back contusion, noting that he had no redness or swelling and that Chambers had full range of his arms and legs without any pain. Chambers told the hospital staff that he did not have a head or neck injury, shortness of breath or any leg and arm pain.
Chambers sued, alleging that excessive force was used to detain him. The officers defended on the basis that Chambers claimed only de minimis injuries, asserting that a constitutional violation cannot arise without some further injury. Both the Eighth Circuit and other courts have previously held that mere handcuffing, while a use of force, cannot support a claim of excessive force when there are merely minor injuries such as chafing, redness or mild soreness.
A claim of excessive force during an arrest is measured under the Fourth Amendment; a claim of excessive force against a pre-trial detainee is a substantive due process question, while a claim of excessive force by a prisoner is an Eighth Amendment question. In the landmark Fourth Amendment case, Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court held that "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." However, the question of whether only de minimis force was used is different from the issue of whether only de minimis injury followed. The Eighth Circuit observed that excessive force could cause only de minimis injuries, so the proper inquiry looks to the force used and not the injury that resulted. In this case, the court held that the amount of force used by the officers to detain Chambers was excessive. The court also granted qualified immunity to the officers because they could have believed that they were acting lawfully. This case reminds officers that every application of force—in any degree—must be reasonable and officers must carefully document the justification for the force application. While not a major shift in the law, the case also slightly eases the path for plaintiffs claiming excessive force. Chambers v. Pennycook, 641 F.3d 898 (8th Cir. 2011).
Supreme Court rules that vehicular flight is a "violent felony" under Indiana law
Marcus Sykes pleaded guilty to a federal gun crime in connection with an attempted armed robbery. Though the prescribed sentence is ten years, another five years were tacked on because Sykes had three prior violent felony convictions. Two were for other robberies and one was for fleeing police in a vehicle. Sykes appealed his sentence and the Supreme Court considered whether vehicular flight from policy was a violent felony. The Court held that it was. Thus, Sykes will serve an additional five year, perhaps giving him time to learn a trade other than armed robbery. Thus far, robbery has not worked so well for him.
The impact of this decision is not particularly broad, because it interprets only Indiana law (though other states may have similar statutes). In his dissenting opinion, Justice Scalia called the majority opinion “tutti frutti” and he said that the Supreme Court would be answering the question of what constitutes a violent felony “until the cows come home” and he sharply criticized the wording of the federal sentencing law and the legislators who wrote it. Sykes v. United States, --- S.Ct. ----, 2011 WL 2224437 (2011).
Hotel guests lose expectation of privacy in rooms, police searches proper
Blades was a passenger in a car stopped for no insurance. The driver consented to a search of the car and an officer found marijuana and two meth pipes in a bag. Blades admitted that the bag was his. The search also turned up a hotel room key. The officer arrested Blades. Other officers went to the hotel and learned that the rental period had expired. A manager let the officers into the room rented by Blades. They found evidence of a meth lab and identification linking Blades to the seized property.
A hotel guest has the same expectation of privacy in a hotel room as a home, at least during the rental period. Federal courts have consistently ruled that a hotel guest’s expectation of privacy expires at the end of the rental period. At that point, hotel management may consent to allow officers to search a guest room without a warrant. Blade argued that the police prevented him from renewing his room rental by arresting him. Therefore, he claimed that his expectation of privacy should have continued beyond the expiration of the rental period. The court disagreed. The court noted that there was no evidence that the police arrested Blade with the intent to prevent him from renewing his hotel rental. Blades v. Commonwealth, --- S.W.3d ----, 2011 WL 2088548 (Ky. 2011).
Molina reserved and paid for a three-night hotel stay via an internet reservation site. He checked into the hotel and signed a registration card that listed hotel rules. One of the rules stated that the guest must abide by all local, state and federal laws and all hotel rules or face eviction. During the evening after Molina checked in, several of his friends came to visit. They brought beer and the hotel clerk explained that they could not bring alcohol into the hotel. They left and came back a few hours later, apparently having consumed the beer as they were loud and intoxicated. The clerk called Molina to the lobby. Molina persuaded his drunk friends to leave. The hotel manager warned Molina that one more incident would result in his eviction.
The next day, a guest complained about the strong odor of marijuana outside Molina’s room. Molina was renting a non-smoking room. Hotel security officers went to the room and knocked several times. They could smell a strong odor of marijuana. When no one answered, they went into the room. They saw scales, marijuana and marijuana residue. They double-locked the door so that Molina could not enter without them. The hotel staff then called police. The hotel security officers took two police officers into the room and showed them the marijuana. The police officers found more marijuana and a loaded gun in the bathroom. When Molina returned later, the hotel clerk called the police. The officers arrested Molina and obtained a search warrant for his hotel room and for his apartment. Officers found more drugs and cash in both locations.
Molina claimed that the search warrants were based on evidence that the officers saw during an unlawful search of his hotel room. His rental period had not yet expired, so he claimed that he had an expectation of privacy in the room. However, many courts have held that a hotel guest’s expectation of privacy ends when the guest is evicted for violation of the hotel rules. In this case, the court held that Molina was effectively evicted when the hotel staff locked him out of his room. The court acknowledged that the hotel staff had not given Molina actual notice of his eviction. However, the court stated that the registration form that Molina signed informed him that the management had the right to refuse service to anyone not complying with laws or hotel rules. Molina should have known that he could be evicted for violating public laws or hotel regulations without any additional notice. Therefore, the hotel security officers could lawfully invite the police to inspect the room. Thus, the officers’ search was lawful, based on consent from hotel staff and the evidence was properly seized. Commonwealth v. Molina, --- N.E.2d ----, 2011 WL 2120142 (Mass. 2011).
Arrest of driver who refused to sign citation ruled unlawful
Farhan Mohammed was stopped for speeding. After the officer wrote the citation, he approached Mohammed and offered the standard explanation that signing the citation was merely a promise to appear and not an admission of guilt. The officer handed the citation book with the fully completed citation to Mohammed for a signature. Mohammed balked at signing the citation because he was under a deferred adjudication (plea in abeyance) for another offense. The officer told Mohammed to sign the citation or face a custodial arrest. Mohammed did not sign it and the officer arrested him and booked him into the county jail. Mohammed later explained that he would have signed it, but wanted to explain to the officer that he was being unreasonable.
Mohammed sued, claiming that his race and religion (neither of which were stated by the court) was the basis for the arrest. The federal district court held that the officer improperly arrested Mohammed. Utah law provides that “a peace officer may make an arrest under authority or warrant or may, without warrant, arrest a person for any public offense committed or attempted in the presence of any peace officer.” Utah Code Ann. § 77-7-2. Utah law also provides that, in lieu of arrest, an officer may issue a citation for certain offenses, including speeding. “A peace officer, in lieu of taking a person into custody may issue and deliver a citation requiring any person subject to arrest or prosecution on a misdemeanor or infraction charge to appear at the court of the magistrate before whom the person should be taken pursuant to the law if the person had been arrested.” Utah Code Ann. § 77-7-18. The federal judge interpreted these provisions of Utah law to mean that the officer could either arrest or cite Mohammed and that once the officer gave Mohammed the citation for signature, the officer had elected to cite him rather than arrest him. The court ruled that the officer had “issued the citation and delivered it” to Mohammed. Therefore, once the citation was “delivered,” Mohammed’s “arrest was unreasonable under the Fourth Amendment.”
The court acknowledged that the Utah law was not a model of clarity. Some judges instruct officers to arrest those who refuse to sign citations and to deliver them to the court. Reasonable minds differ on whether an officer has authority to arrest a person who refuses to sign the citation. Some argue that the citation is not complete until the promise to appear is signed. This case illustrates that officers should discuss the question of arrest following a refusal to sign with their local prosecutor and obtain clear direction. Law enforcement agencies should also provide officers with policy guidance on this question. In this case, the judge ruled that there was no evidence of racial or religious bias. The judge also recognized that a reasonable officer would have believed that it was proper to arrest Mohammed when he refused to sign. Therefore, the officer was entitled to qualified immunity and the lawsuit was dismissed. Mohammed v. Davis County, 2011 WL 65728 (D. Utah 2011).
Supreme Court sets rules for police-created exigency and the exigent circumstances exception to the warrant requirement
King sold drugs to a confidential informant during a crack cocaine buy/bust operation. An officer saw King go into the breezeway of an apartment building. As the officers walked into the breezeway, they heard a door slam shut. They could smell a powerful odor of burning marijuana from one of the apartments. The officers knocked on the door and identified themselves as police officers. They could hear movement in the apartment. No one responded to repeated loud knocks. Believing that the persons inside were destroying evidence, an officer kicked in the door and the officers entered. They saw one person smoking marijuana and saw cocaine and marijuana in open view. King was convicted of selling drugs and being a habitual offender. The Kentucky Supreme Court reversed his conviction, holding that the exigent circumstances doctrine did not apply because the police should have known that their own conduct (knocking and announcing) would prompt the occupants to destroy evidence. In other words, the court opined that the police themselves created the exigency.
The exigent circumstances doctrine allows officers to enter a home to prevent imminent destruction of evidence, even when the officers do not have a warrant, but they do have probable cause. Prior to this case, courts across the nation have used five different tests to determine whether a police-created exigency will justify a warrantless entry. This diversity of opinions left law enforcement without clear guidance. The Supreme Court held that the exigent circumstances doctrine will justify warrantless entry even when police create the exigency, so long as the officers did not violate or threaten to violate the Fourth Amendment. Justice Alito wrote: “warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Therefore, the answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.”
The many lower courts that had disapproved of warrantless entries following a police-created exigency noted that officers could avoid the warrant requirement by knocking and announcing, predictably scaring drug suspects to scramble to flush evidence, and then enter without a warrant when the officers heard the sounds of evidence going down drains and toilets. The Supreme Court assumed as much, and assumed that an exigency actually existed in this case. However, the Court put the responsibility for the exigency on the occupants who fail to answer and try to destroy evidence and not the police who knock. “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.” Because the officers in this case merely knocked on the door and announced their identity, acts which plainly do not violate the Fourth Amendment, their conduct was lawful. Then, assuming the validity of the exigency, the officers properly entered the apartment without a warrant.
The King decision does not mean that whenever officers knock at a home, hear movement and no one answers, that the warrant requirement is excused. The Supreme Court did not answer the question of just what constitutes an exigency. Is it sufficient to hear water running, voices talking about flushing evidence or for the knock to go unheeded for several minutes? These are questions that will be answered in lower courts as the law develops in other cases. However, the Supreme Court warned in a footnote: “There is a strong argument to be made that, at least in most circumstances, the exigent circumstances rule should not apply where the police, without a warrant or any legally sound basis for a warrantless entry, threaten that they will enter without permission unless admitted. In this case, however, no such actual threat was made, and therefore we have no need to reach that question.”
Whenever a search or seizure is conducted without a warrant, the burden is on the police to justify the action under an established exception to the Fourth Amendment warrant clause. Although the new test established in Kentucky v. King favors police who do not violate the Fourth Amendment in whatever act may create an exigency, officers should always consider the benefits of a warrant where obtaining one is practical. The King decision provides the safety net of the exigent circumstances doctrine where officers have fully complied with the Fourth Amendment prior to the creation of the exigency. Kentucky v. King, --- S.Ct. ----, 2011 WL 1832821 (2011).
Agent's ruse to gain entry rendered consent involuntary and entry unlawful
Federal agents watched Harrison’s apartment over several months after receiving a tip that Harrison sold drugs to a gun runner. Unable to develop probable cause for a warrant, the agents decided to try a knock and talk. When Harrison came to the door, the agents identified themselves and told Harrison that they received a tip that there were drugs and a bomb inside the apartment and that their boss had sent them to investigate the danger to the community. After assuring Harrison that he had legal authority to consent to a search of his girlfriend’s apartment and assuring him that they were not worried about a small bag of weed, Harrison consented to a search. Agents arrested him after finding a gun hidden in a wall.
Harrison asserted that his consent was not valid because officers tricked him into believing that he was in danger. The prosecution argued that the bomb comment was meant to suggest that the agents believed that there was a bomb in the apartment, not that Harrison was a bombing target. Courts have long considered trickery and ruses as factors in evaluating the voluntariness of consent under the Fourth Amendment. Typically, a false statement from an undercover officer or confidential informant about the purpose of a visit to a drug distribution location is permissible. Other kinds of ruses, such as claiming to be there to investigate a water leak, or claiming to be investigating a fictitious crime, are viewed more skeptically. The appellate court relied on a trial court finding that the false statements in this case implied that a bomb may have been planted in the apartment and that Harrison was in danger. The court also observed that the assurance that the officers were not interested in a small bag of weed “only further emphasized that bombs, not drugs, were the focus of their concern.”
Officers must be cautious that any ruse used to gain entry to a home does not give the impression that the occupant has no choice but to invite the officer in. The court noted that consent will not likely be valid when police trickery is so extreme that it deprives the occupant of the ability to make a fair assessment of the need to surrender his privacy. Remember that any warrantless entry places the burden on the officers to show that it was lawful, and not on the defendant to show that it was not lawful. United States v. Harrison, --- F.3d ----, 2011 WL 1782961 (10th Cir. 2011).
Certification of drug dog is sufficient to find the dog reliable, court rejects claim that the dog was cued
A trooper stopped Ludwig for speed. The brief encounter gave the trooper reasonable suspicion to believe that Ludwig was transporting drugs and the trooper deployed his drug detection dog for a sniff of the exterior of Ludwig’s car. The sniff revealed a fabricated metal hidden compartment containing 11.3 pounds of ecstasy. Ludwig hired Steven Nicely, who was formerly employed as a police officer and who frequently testifies in drug seizure cases. Mr. Nicely claimed that the dog was not reliable because his method of calculation suggested that the dog had a reliability rate of 58%. He also alleged that the dog was cued by the trooper.
The Court of Appeals held that “a positive alert by a certified drug dog is generally enough, by itself, to give officers probable cause to search a vehicle.” The court noted that the prosecution expert presented evidence that the dog had been certified twice in the preceding year by the California Narcotic Canine Association, a leading certification and training organization. The court recognized that the certification process tests for handler cuing. The court also rejected Mr. Nicely’s claim that the trooper had cued the dog to respond to the drugs (contained in the not-yet-seen hidden compartment). The court also found that the trial court did not err in accepting the reliability calculations of the prosecution expert. The court also accepted the testimony of the prosecution expert that there was not any evidence of cuing the dog. Although the trial court declined to believe Mr. Nicely’s calculations, the appellate court commented that even Mr. Nicely’s calculation of 58% reliability would have been sufficient to establish probable cause to search. United States v. Ludwig, --- F.3d ----, 2011 WL 1533520 (10th Cir. 2011).
In Florida, a canine sniff at the front door of a home creates a search requiring probable cause
A detective followed up on an unverified citizen tip that Jardines was growing marijuana in his home. The detective took a drug detection dog to Jardines’ front door. The dog gave a positive final response to the odor of controlled substances. The detective smelled the odor of growing marijuana plants and he obtained a warrant based, in part, on the dog sniff. Jardines claimed that the sniff at his front door constituted a search. The state countered that it was not a search, but if it was a search, only reasonable suspicion was required because the sniff was on the outside of the home.
In the past few years, particularly following the Supreme Court decision in Illinois v. Caballes, 543 U.S. 405 (2005), most courts have not considered a drug detector dog’s sniff at the front door or a home or apartment to be a search. In People v. Jones, the Michigan Court of Appeals held that no search occurred when officers went to the front door of a suspected drug dealer’s home accompanied by a drug detector dog. The dog alerted at the front door and the officers used that evidence to obtain a search warrant. People v. Jones, 755 N.W.2d 224 (Mich. App. 2008). The court ruled that “there is no reasonable expectation of privacy at the entrance to property that is open to the public, including the front porch.” Thus, the officers did not violate a Fourth Amendment protection by walking up to the front door, accompanied by the drug detector dog. In People v. Dunn, the court ruled that the sniff at front door of apartment not a search under the Fourth Amendment, but was a search under the New York Constitution. However, the state constitution requires only reasonable suspicion for such a search. People v. Dunn, 564 N.E.2d 1054 (1990), cert. denied, 501 U.S. 1219 (1991). The Minnesota Supreme Court applied the same logic in State v. Davis, 732 N.W.2d 173 (Minn. 2007).
The Florida Supreme Court agreed with Jardines and held that a sniff at the front door was a search. The court disagreed with other courts that have allowed such sniffs based upon reasonable suspicion and ruled that probable cause is required in Florida. The court noted that Supreme Court cases that have treated dog sniffs as non-searches have not involved a single-family residence and the high privacy expectation associated with a home. One other court also reached this result some 25 years ago. The decision in United States v. Thomas held that a sniff outside an apartment was a search requiring probable cause. United States v. Thomas, 757 F.2d 1359 (2nd Cir. 1985), cert. denied, 479 U.S. 818 (1986). No other federal court of appeals followed the reasoning of United States v. Thomas and the decision has been sharply criticized. Jardines v. State, --- So.3d ----, 2011 WL 1405080 (Fla. 2011).
Warrantless GPS tracker that lead to canine sniff and drug arrest was proper
Officers suspected Cuevas-Perez of drug trafficking and they placed a pole camera outside his home. They saw him working on the door and hatch panels of his car and suspected that he was hiding drugs in void compartments. An officer slipped a GPS tracker under Cuevas-Perez’s car. Shortly after that, Cuevas-Perez took off on a trip from Arizona to Illinois. Illinois officers took over and stopped Cuevas-Perez for a traffic violation. A drug detection dog gave a positive final response to the odors of controlled substances and officers found nine packages of heroin in various compartments. Cuevas-Perez claimed that the warrantless installation and monitoring of the GPS tracker constituted a search requiring probable cause.
The Court of Appeals held that no warrant or court order was required. Although the GPS device was capable of nearly-instantaneous location updates, it still did nothing more than what officers could lawfully accomplish through constant surveillance. It merely made the surveillance easier and safer for the officers. The court declined to follow the decision in United States v. Maynard, 615 F.3d 544 (D.C.Cir. 2010), where another appellate court found that a 28-day monitoring by GPS tracker was overly intrusive and did constitute a search. That decision stands in the minority and has been presented to the Supreme Court for consideration. The lengthy concurring opinion in the Cuevas-Perez is an excellent resource as a background to the developing law on the subject of remote GPS surveillance. United States v. Cuevas-Perez, --- F.3d ----, 2011 WL 1585072 (7th Cir. 2011).
Warrantless, non-consensual GPS tracker installation and remote monitoring was lawful
A retired detective heard media reports of a series of sexual assaults and he called police to report that the method of the assaults was similar to a number of crimes that he had investigated years before. He named Foltz, now a convicted and registered sex offender, as a possible suspect. Based on that tip and other information, officers placed a GPS tracker on a work van used by Foltz. They did not obtain a warrant or the owner’s consent. Based on evidence obtained from the tracker, officers began a 24/7 surveillance operation. They caught Foltz getting out of his private vehicle and tackling a woman. An officer intervened as Foltz was ripping open her pants.
Foltz asked the court to suppress the evidence from the tracker that allowed police to catch him in the act of yet another assault. The Court of Appeals, sitting en banc, held that there was no taint from the GPS tracker data that required suppression of the evidence from the surveillance. However, the majority opinion stopped short of deciding that there was no need for a court order to place the tracker, finding that it did not need to reach that issue. Concurring judges opined that the court should have reached the issue and held that the Fourth Amendment does not require a warrant. This case signals how Virginia courts are likely to rule when squarely faced with the question of whether a court order is required to place and track a GPS device. Most courts have ruled that no warrant is required, and the Supreme Court may rule on the issue next year. Foltz v. Commonwealth, 706 S.E.2d 914 (Va. App. 2011) (en banc).
Officer properly ordered suspect to set up vehicle air flow prior to canine sniff
An officer was watching Bartelt’s home because he believed that she was involved in methamphetamine trafficking. The officer saw that Bartelt’s truck was unlawfully parked in street in front of her home. After approximately 90 minutes, Bartelt came out of the home, accompanied by a man. Bartelt drove away. The officer radioed to a police service dog handler to come to the area. The officer then stopped Bartelt. The officer had previously worked with police canine handlers and had a basic understanding of a sniff for the odors of controlled substances and how to best set up for a sniff of the exterior of a vehicle. He instructed Bartelt and her companion to roll up the windows of the truck, turn the interior air blower on high and close the doors. This is intended to force interior air through the door and window seams.
The police service dog team arrived within three minutes of the initial stop. The drug detection dog gave a positive final response, indicating that the truck contained the odors of controlled substances. A subsequent search revealed a digital scale with white powder residue and other drug paraphernalia. Bartelt claimed that the set-up procedure created an unlawful search. The Illinois Supreme Court disagreed. The court compared the set-up procedure to the puffing or prepping baggage to expel air that other courts have approved. The court held that ordering Bartelt to roll up her windows and turn the blowers on high before conducting the dog sniff was not sufficiently intrusive to create an unlawful search. People v. Bartelt, --- N.E.2d ----, 2011 WL 1049788 (Ill. 2011).
Digitally-created child pornography leads to conviction when real faces used
John Hotaling digitally morphed head and facial photos of six young girls onto the bodies of somewhat older girls engaged in sexually explicit conduct and bound with chains. Hotaling took the facial images from family pictures stored on computers entrusted to him for repair. Hotaling also imposed his head on the photo of a male engaged in sex acts with the girls. He was charged with possession of child pornography. Hotaling argued that he was merely depicting his own private fantasies, but had not created or shown images of children actually being abused or exploited. He claimed that no actual child was harmed in his creation of the images. Hotaling had titled the images with the actual names of the children.
In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court weighed the right to personal expressive free speech, including the right to consume a broad range of sexually-explicit images, and the interest of protecting children from exploitation. The Court held that virtual explicit images are not child pornography. The Second Circuit Court of Appeals held that Ashcroft v. Free Speech Coalition did not apply to Hotaling because the privacy and reputation interests of actual children were harmed in his creation of the morphed images that represented that these girls were engaged in explicit sexually physical acts. Hotaling also challenged an enhancement to his 6 ½ year sentence based on the torture and bondage shown in the images. He claimed that the children experienced no physical pain. The court disagreed and sustained his sentence. United States v. Hotaling, --- F.3d ----, 2011 WL 677398 (2nd Cir. 2011).
Gant search limits do not apply to drug arrests
An undercover agent drove a 1,000 pound load of marijuana to a warehouse after the load had been seized. The drugs were transferred to another vehicle. Slone was seen caravanning with the target vehicle and apparently conducting counter-surveillance (not very effectively!). Slone ran, but was caught. Agents found $17,000 and a cell phone in his truck. Slone claimed that Arizona v. Gant, 129 S.Ct. 1710 (U.S. 2009), barred a search of his truck and he asked that the money and cell phone be excluded as evidence. In Arizona v. Gant, the Court held that officers may search a vehicle incident to the arrest of the driver or occupant only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. The Seventh Circuit Court of Appeals held that Gant will not generally bar the search incident to arrest for a drug offense. The court opined it is normally reasonable to believe that evidence relevant to a drug arrest will be found in the vehicle. In this case, the court also stated that a person running counter-surveillance for a drug conspiracy would likely have evidence of the conspiracy in the vehicle. Thus, the evidence seized from Slone’s truck would be admissible. United States v. Slone, --- F.3d ----, 2011 WL 590114 (7th Cir. 2011).
Plain view doctrine applied to computer searches
Stabile and Deetz lived together. Deetz thought that they were legally married. Stabile, however, had another wife from whom he was not divorced. Stabile wrote over $156,000 in counterfeit checks to cover a shortage in the mortgage. Secret Service agents and a local detective went to interview Stabile at his home. Stabile was not home, Deetz was, and she gave consent to a thorough search of the home, including computers and hard drives. She was interested in learning more about Stabile’s activities. She would soon learn that they were not legally married.
The consent search revealed material for making counterfeit checks. During execution of a subsequent search warrant for computer evidence of financial crimes, officers discovered file names suggesting that they contained child pornography. The examining officer highlighted a file that apparently contained videos downloaded through a peer-to-peer program. The officer testified that criminals will often name files with innocent sounding names to thwart detection. Therefore, a thorough computer search involves an initial examination of all files. When the examining officer found a file with a name suggesting pre-teen hardcore pornography, he obtained another search warrant for the computer storage media. A further search revealed child pornography.
A number of courts have tried to create limits on the application of the plain view doctrine to computer searches. An item may be seized under the plain view doctrine if three factors are met. First, the initial intrusion is lawful; second, the item seized is actually in plain view; and third, the incriminating nature of the item is immediately apparent. The Seventh Circuit recently rejected a request to limit the plain view doctrine in computer searches, United States v. Mann, 592 F.3d 779 (7th Cir. 2010). On the other hand, in United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), the Tenth Circuit struck down a computer search for evidence of drug dealing when the investigating officer found child pornography in plain view. The court held that the search should have been limited by using narrow search terms for an initial file search. Last year, the Ninth Circuit backed away from a set of rules fashioned for computer searches and transformed the rules into guidelines in United States v. Comprehensive Drug Testing Inc., 579 F.3d 989 (9th Cir. 2009) (en banc), vacated 621 F.3d 1162 (9th Cir. 2010) (en banc). The court could not agree on whether the plain view doctrine should be eliminated in computer searches.
Stabile first claimed that the consent was invalid because he was not actually married to Deetz, even though he had lead her to believe that he was. The court quickly trashed that theory. (Did Deetz trash the fake marriage?) Stabile then claimed that the files were not truly in plain view. The Third Circuit acknowledged the tension between what seems to be a general search when officers examine every file on a computer and the ability of a criminal to hide evidence by manipulating the computer file names. The court announced that it would not categorically reject the plain view doctrine for computer searches, but would consider such cases on their individual facts. “We hold that the plain view doctrine applies to seizures of evidence during searches of computer files, but the exact confines of the doctrine will vary from case to case in a common-sense, fact-intensive manner.” In this case, the examining officer appropriately highlighted a file directory as part of the initial search. The sexually-suggestive file names provided probable cause to believe that the files contained child pornography. Thus, the second warrant was valid and the evidence was properly seized. Stabile argued that the officers should have been limited to searching document and text files because they were looking for evidence of financial crimes. The court recognized that images are part and parcel of counterfeiting and other financial crimes and rejected that argument, stating that officers could view images during such a computer search.
This case reminds officers of the simple requirements of the plain view rule and provides guidance in an emerging area. Computer searches should usually include a cursory examination of all data files. When a suspect file is located and it is outside of the scope of the search warrant, the best practice is to do as the officers did here—obtain a second warrant. United States v. Stabile, --- F.3d ----, 2011 WL 294036 (3rd Cir. 2011).
Concealed weapon permit did not justify no-knock entry
Bellotte took a memory card to the local WalMart to print photos. When he went to pay for the photos, the clerk inspected them and seized them because one photo showed male genitals near the face of what the clerk believed to be a child. The WalMart clerk turned the photos over to the police. An investigator obtained a search warrant for the Bellotte home. The investigator asked for a no-knock warrant on the basis that there was an alleged child victim and Bellotte and his wife both held concealed weapon permits, suggesting that there might be multiple guns in the house. A judge authorized the no-knock entry.
The local tactical team had just attended dynamic entry training. They executed a late night dynamic entry with simultaneous entry from multiple entry points. One officer handcuffed a male teen and allegedly placed a gun to his head. Bellotte was not home. The following day he came to the police station with evidence that the female in the photo was 35 years-old, not 5 or 6 years-old as had been alleged. No charges were ever filed against Bellotte. Mrs. Bellotte and her children sued, alleging excessive force in the execution of the search warrant. The trial court granted qualified immunity on the excessive force claims. The appellate court reversed.
The knock-and-announce requirement is not a constitutional doctrine, but has been part of Fourth Amendment law for many years. Before forcibly entering a residence, officers must knock and announce their identity and purpose. This requirement meets the goals of (1) protecting the safety of occupants of a dwelling and the police by reducing violence; (2) preventing the destruction of property; and (3) protecting the privacy of occupants. The notice requirement can be excused when police have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by allowing the destruction of evidence.
In this case, the court said that there were not exigent circumstances justifying a no-knock entry. The court held that possession of a single photograph of alleged child pornography did not show that Bellotte was a danger to police executing a warrant; there was no reason to conclude that Bellotte and his wife had violent tendencies in general; and, there was no reason to believe that Bellotte was a danger to himself. The court noted that the concealed weapons permits should have alerted the officers that the Bellottes had passed background check. The court ruled in favor of the officers on the claim that it was unreasonable for 4 or 5 officers to enter the bedrooms with guns pointed. The appellate court reversed the grant of qualified immunity in a civil rights action, meaning that the lawsuit against the officers and the agencies can proceed. Bellotte v. Edwards, 629 F.3d 415 (4th Cir. 2011).
Ethnicity and race may be considered in assessing reasonable suspicion in certain cases
Ramos and his companions were parked in a van at a very busy Massachusetts Bay Transit Authority bus and train station. They were parked at the far end of the lot, distant from the park and ride and pick up/drop off areas of the station. An employee who had recently attended terrorism recognition training saw the van. She noted several unusual facts, including the odd parking location, multiple men parked and sitting in the van, tinted windows, a paper license tag from Texas, that the men got out of the van and wrote some type of note and then got back in the van, and that the men appeared to have a swarthy, Middle Eastern complexion. She notified police of her suspicions. Only a short time before, terrorists had detonated bombs in the Madrid, Spain, train station, killing nearly 200 persons. The Spanish police investigation revealed that most of the terrorists were of Middle Eastern origin. Al Qaida threatened to carry out similar attacks in the United States. Officers approached the van and one officer opened the rear door as others spoke to the driver and front passenger. Though not a terrorist, Ramos was transporting illegal aliens.
Ramos asked the court to suppress the evidence gained from the seizure effected when the officer opened the rear doors and ordered the occupants to get out. Ramos claimed that the officers lacked reasonable suspicion for a detention and he specifically argued that his dark skin, Middle Eastern or not, could not be a factor in assessing reasonable suspicion. The court of appeals disagreed, noting that there are no per se exclusions or inclusions of any particular fact in the assessment of reasonable suspicion. The court did not agree that racial profiling was evident in this case. “While in other situations there may be merit to the argument that a description of ethnic appearance is irrelevant and nothing more than impermissible profiling, the argument fails on the facts here.” The court held that a report of a threat of a crime that credibly identifies the threat as from persons likely to have a particular appearance, such as being of Middle Eastern descent, was a reasonable factor for the officers to consider. The court also noted that the officers were investigating a situation that followed on the heels of a major terrorist bombing and that was unfolding at a very busy transit hub, significantly increasing the public interest in investigating potential threats.
Officers should never engage in racial profiling, but also should not discount race or ethnicity when it is part of a provided description or where there is credible reason to believe that persons of a particular race or ethnicity are involved in particular criminal activity. Obviously, not all terrorists are of Middle Eastern descent. However, this case shows how the officers effectively connected known criminal behavior, present threats and other suspicious factors to a legitimate consideration of the suspects’ ethnicity. United States v. Ramos, --- F.3d ----, 2010 WL 5129826 (1st Cir. 2010).
Non-nude cross-gender "strip search" not justified
Byrd was incarcerated in a minimum security jail. Jail officials were concerned with recent drug smuggling in the jail. They brought approximately 30 police academy recruits, one-third of whom were female, to assist in a shakedown search. The inmates were ordered to strip to their bright pink boxer shorts. Four to six male inmates were searched at a time in a single room. A female recruit searched Byrd, moving his genitals to the side with the back of her gloved hand applied over the boxer shorts. The recruit then spread Byrd’s cheeks and checked for contraband in the anus, also through the boxer shorts. Male jail officers were present for security purposes. Byrd filed a grievance, claiming that the recruit “grabbed his balls.” He then filed a lawsuit alleging psychological damage from the cross-gender search.
The court of appeals sided with the jail officials on Fourteenth Amendment equal protection and substantive due process claims. However, the divided court held that the search by the female recruit over the clothing constituted a strip search that violated the Fourth Amendment. Though the female recruit could not view Byrd’s genitals, the court opined that the indignity of having a woman touch them while “nearly nude” was tantamount to a fully nude search. The court held that the law is well-settled that a cross-gender strip search may be conducted only in an emergency. In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court articulated four factors to assess the reasonableness of jail searches, First, the scope of the particular intrusion; second, the manner in which it is conducted; third, the justification for initiating the search; and fourth, the place in which the search is conducted. The court of appeals opined that the Sheriff could not satisfy the latter two factors. In a curious note, the court also observed that the female recruit wore no identification other than her name printed in very large letters on her shirt, as if to suggest that Byrd could not know that this was an authorized search and an authorized person conducting it. Byrd v. Maricopa County Sheriff's Department, --- F.3d ----, 2011 WL 13920 (9th Cir. 2011) (en banc).
Smilin' Bob ain't smiling--Warrant, not subpoena, required to obtain stored emails
Warshak, his mom and a dozen family members and friends operated a small nutraceutical company. They sold supplements and vitamins. In late 2001, Warshak’s prosperity popped up to a new high when he introduced Enzyte to the market. The company sales rose to $250,000,000 and the company employed 1,400 people. Every television network carried Enzyte ads with Smilin' Bob, whose trademark exaggerated smile was presumably the result of Enzyte's efficacy. Smilin' Bob commercials were rife with innuendo and implied that users of Enzyte would become the envy of the neighborhood. Warshak also directed marketers to cite a study, which purported to show that, over a three-month period, 100 men who took Enzyte experienced a 12 to 31% increase in the size of their male members. Warshak made up the study. There was no research and no list of happy customers. Warshak falsely claimed that Enzyte was invented by doctors.
Warshak was charged with 112 federal crimes relating to wire, bank and communications fraud, money laundering and conspiracy. Part of the government evidence was obtained from seizure of approximately 27,000 emails from Warshak’s email provider. The Stored Communications Act permits law enforcement officers to issue a preservation order requiring a service provider to maintain email messages while the officers obtain a court order. The law also permits officers to obtain copies of emails that have been in electronic storage with a service provider for more than 180 days by issuing a subpoena. Emails stored for 180 days of less may only be obtained with a search warrant. Agents waited 180 days and obtained Warshak’s emails by subpoena. Warshak claimed that he should have had the protection of a search warrant based upon probable cause.
The court held that the agents should have obtained a search warrant. The court also held that the Stored Communications Act is unconstitutional insofar as it allowed disclosure of emails by subpoena and without a search warrant. The court also refused to apply the good faith doctrine to the seizure of Warshak’s emails. According to the Sixth Circuit, the expectation of privacy in emails is at least as great as that afforded to letters and phone conversations. “Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.”
The Fourth Amendment electronic communication frontier is shifting. Watch for a test of the constitutionality of the Stored Communications Act in the Supreme Court. At present, officers should not rely on an investigative subpoena to obtain stored emails without careful consultation with a prosecutor. United States v. Warshak, --- F.3d ----, 2010 WL 5071766 (6th Cir. 2010).
Protective sweep doctrine permits opening clothes dryer door
Jones was on probation. He provided a consistent address to officers during a field interview and upon his release from parole for violent crimes. Officers went to that address for a probation visit and saw Smith sleeping on the couch. They spoke with Smith through an open window. She denied that Jones lived there, but told the officers that they could check after she got dressed. Smith went to a back part of the apartment to dress. An officer heard dishes being moved. Jones came to the door and let the officers in. When one of the officers went into the kitchen, he saw a stack of cash and a number of small baggies. He could also smell the strong odor of fresh marijuana. The clothes dryer was running and making a very loud clanging noise. It was so loud that the officers could not effectively be heard as they called out to persons on the upper floor to come downstairs. The officer opened the dryer door to stop the noise. He saw a large brick of marijuana, coins and numerous baggies of marijuana. Jones claimed that her consent to search the apartment was invalid and that the officers exceeded the scope of her consent by opening the dryer door.
The court easily found that the consent was valid. She had invited the officers to come in and had opened the door after a friendly conversation (talk nice, think mean) through the window. The court considered whether opening the dryer door was objectively reasonable, balancing the nature of the intrusion against the government interest involved. The police interest in stopping the noise to enhance their safety as they looked for Jones was significant. This case illustrates the principle of a protective sweep. The Supreme Court ruled, in Michigan v. Summers, 452 U.S. 692 (1981), that officers searching a home may look into areas from which a person might attack the officers. Because the officer testified that he opened the dryer door to safely complete the search, the officer safety doctrine of Michigan v. Summers applied and the action was proper. Once the door was opened, the marijuana was in plain view. The court considered the need for the officers to protect the children in the apartment and also considered Jones’ violent criminal record. Officers who conduct protective sweeps during searches should carefully document the concerns that support the protective sweep. Also consider that the plain view doctrine will usually provide a basis for seizure of obvious contraband discovered during a proper protective sweep, but a search warrant may also be advisable. People v. Smith, 118 Cal.Rptr.3d 483 (Cal. App. 2nd Dist. 2010).
Cell phone could be searched incident to arrest
Diaz sold 6 Ecstasy tablets to a CI who was wearing a wire. An officer watched from a distance. After the sale, the officer stopped Diaz and arrested him. The officer seized a cell phone from Diaz. Approximately 90 minutes after the arrest, the officer examined the cell phone and saw a text message related to the drug sale. Diaz claimed that the cell phone search exceeded the scope of a search incident to arrest.
Courts are divided across the nation on whether cell phones and pagers may be searched incident to arrest. Some courts express concern over the vast amounts of personal information that may be stored on a smart phone. For example, 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 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.
Other courts consider a cell phone to be a closed storage container. In United States v. Finley, 477 F.3d 250 (5th Cir. 2007), police arrested Finley and seized his cell phone located from his pocket. An officer searched through the call history and text messages. Several of the text messages appeared to be related to narcotics trafficking. The appellate court held that no warrant was required since the search was conducted pursuant to a valid custodial arrest. In United States v. Mercado-Nava, 486 F.Supp.2d 1271 (D. Kan. 2007), a trooper arrested Mercado-Nava and seized two cell phones that he Mercado-Nava was holding. The trooper downloaded the memory of the cell phones. The court ruled that this was a proper search incident to arrest. Other courts have upheld the warrantless search of cell phone memory on the basis of exigent circumstances, reasoning that the memory can easily be erased. United States v. Zamora, 2006 WL 418390 (N.D. Ga. 2006).
The California court cited the recent Supreme Court decision in Arizona v. Gant, in which the Supreme Court reaffirmed the holding in New York v. Belton that whether a particular container may be searched does not depend on the nature of the container or the extent of the arrestee's expectation of privacy in it. That directed the court to frame the issue in Diaz as whether the cell phone was personal property immediately associated with Diaz’s person. “Because the cell phone was immediately associated with defendant's person, the officer was entitled to inspect its contents without a warrant at the sheriff's station 90 minutes after defendant's arrest, whether or not an exigency existed.”
The Diaz decision represents the majority view, although not many appellate courts have yet weighed in on the question of search incident to arrest justifying the search of an arrestee’s cell phone. The Diaz case is binding only in California. However, it is a detailed and reasoned opinion that is based on solid United States Supreme Court precedent. Officers should discuss this case with local prosecutors and determine whether they should or should not search cell phones incident to arrest. When in doubt, consider a search warrant. And don’t forget to consider a request for a consensual search. People v. Diaz, --- Cal.Rptr.3d ---, 2011 WL 6158 (Cal. 2011).
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