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4th Amendment Archives | Page 3 of 4 | Fort Worth Criminal Defense, Personal Injury, and Family Law

Nov 22
1

Supreme Court Decision Watch: Conflicting Consent to Search

By | Search & Seizure

The United States Supreme Court heard oral arguments a couple of weeks ago on Fernandez v. California.  HERE is Scotusblog’s page on the case.

The case boils down to whether and to what extent a person may deny consent to search that is given by a co-tenant.  Below are the facts of the case.  A link to the oral argument audio is posted below.  We will be watching for a decision on this case as it stands to affect search and seizure law across the country.

FACTS: Police officers investigating an assault and robbery saw Appellant run into an apartment building.  Once they were inside the building, officers heard screams coming from one of the apartments.  The officers knocked on the door and Roxanne Rojas opened it.  When the officers asked Rojas to step outside so they could conduct a sweep of the apartment, Appellant stepped forward and told the officers not to enter.  The officers arrested Appellant for the assault and robbery and removed him from the scene.  The officers obtained consent from Rojas to search the apartment.  The officers seized weapons, gang paraphernalia and other evidence.

The trial court denied Appellant’s motion to suppress the evidence recovered from the apartment.  The California Court of Appeal held Rojas’ consent to search the apartment she shared with Appellant was valid.

In Georgia v. Randolph, the United States Supreme Court held police officers may not conduct a warrantless search of a home over the express refusal of consent by a physically present resident, even if another resident consents to the search. After Randolph, in United States v. Murphy, the Ninth Circuit Court of Appeals extended Randolph, holding if a defendant expressly withholds consent to search, a warrantless search conducted after the defendant has left or been removed from the residence is not valid, even if a co-tenant subsequently consents. However, the Fourth, Fifth, Seventh, and Eighth Federal Circuit Courts of Appeals, as well as the Colorado and Wisconsin State Supreme Courts have rejected the Ninth Circuit’s analysis in Murphy.  These courts have held even if a defendant expressly refuses consent to search his residence, a co-tenant’s consent obtained after the defendant leaves or is lawfully removed will support a warrantless search by police officers.

The issue before the Supreme Court is whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of his Fourth Amendment rights which cannot be overridden by a co-tenant.

The Court heard oral arguments in this case on November 13, 2013.  To listen to the audio from the arguments, click HERE.

*UPDATE:  Supreme Court issues decision in Fernandez.

Nov 11
0
Drug-Sniffing Dog Search

No Solicitors or Drug-Sniffing Dog!

By | Warrantless Search

The Legality of Drug-Sniffing Dog Searches

Drug-Sniffing Dog Search Let’s face it, nobody really likes uninvited guests on their front porch, unless, of course, it is the time of year when the Girl Scouts are selling cookies or little trick-or-treat monsters are out and about.  Aside from that, I’m not too keen on having people drop by unannounced, especially if that person is trying to investigate a crime or conduct a search and seizure.

The United States Supreme Court recently considered a case involving an unannounced (and unwelcome) furry visitor to a man’s front porch.  The question presented was this:  Is a dog sniff at the front door of a suspected drug house by a trained narcotics detection dog a Fourth Amendment “search” requiring probable cause?

In a 5-4 decision authored by Justice Scalia, the Supreme Court said YES, the use of the drug-sniffing dog was an unreasonable search.

Florida v. Jardines, 133 S. Ct. 1409 (2013)-  In 2006, the Miami-Dade Police Department received an unverified tip that marijuana was being grown in the home of respondent Joelis Jardines.  One month later, police took a drug-sniffing dog to Jardines’s front porch, where the dog gave a positive alert for narcotics.  Officers obtained a search warrant, which revealed marijuana plants inside the home.  Jardines was charged with trafficking in cannabis.

At trial, Jardines moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable search.  The trial court granted the motion but the Florida Third District Court of Appeal reversed.  On a petition for discretionary review, the Florida Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial court’s decision to suppress, holding that the use of the trained narcotics dog to investigate Jardines’s home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search.

The Supreme Court of the United States granted certiorari, limited to the question of whether the officers’ behavior was a search within the meaning of the Fourth Amendment.  The Court held that the front porch of a home is part of the home itself for Fourth Amendment purposes.  While custom typically permits a visitor to approach the home “by the front path, knock promptly, wait briefly to be received, and then leave,” it does not allow a visitor to engage in investigative activity such as bringing a trained drug dog on the porch and allowing it to sniff around for incriminating evidence.  Therefore, the government’s use of trained police dogs to investigate the home and its immediate surroundings was a “search” within the meaning of the Fourth Amendment.

To learn more about Police Canine Training, check out our friend and trainer Steve Scott at Scott’s Police K9 in North Texas.

Sep 17
0

A Terry Stop With Guns Drawn, Unlawful Wiretapping, and Other 5th Circuit Fun

By | Search & Seizure

Below are some case summaries from recent 5th Circuit (Federal) opinions.  Enjoy.

United States v. Abdo, 2013 U.S. App. LEXIS 17251 (5th Cir. Tex. Aug. 19, 2013)

After receiving information from employees at a gun store and an army/navy surplus store, police officers believed Appellant planned to detonate a bomb and shoot service members stationed at Fort Hood, Texas.  When the officers encountered Appellant they drew their firearms, separated Appellant from the backpack he was carrying, handcuffed him and then placed him in the back of a police car.  Appellant admitted to the officers that he planned to attack soldiers at Fort Hood.  Appellant was then formally arrested and transported to the jail.

Appellant argued the district court should have suppressed evidence found at the time of his arrest and statements he made to the police.  Appellant claimed his detention at gunpoint and placement in a police car in handcuffs was a full arrest rather than a Terry stop, which was not supported by probable cause. The court disagreed.

Pointing a firearm and handcuffing a suspect does not automatically convert a Terry stop into an arrest.  Here, when the officers encountered Abdo, they knew he had purchased shotgun shells, an extended magazine for a handgun and a large amount of gunpowder in a manner that was not consistent with its normal use.  The officers also knew Appellant purchased an army uniform and asked for the kind of patches used at Fort Hood.

In addition, Appellant was carrying a large, overstuffed backpack on a very hot day and one of the officers had experience with terrorists using similar tactics of concealing explosives in backpacks and obtaining fake uniforms to facilitate an attack.  Under these circumstances, the officers acted reasonably in drawing their firearms and handcuffing Appellant while they effected a valid Terry stop, which was supported by reasonable suspicion. 

United States v. Garza, 2013 U.S. App. LEXIS 17515 (5th Cir. Tex. Aug. 21, 2013)

While on roving patrol, a Border Patrol agent received a radio broadcast to be on the lookout (BOLO) for a suspicious looking older model pickup truck carrying plywood in the bed, parked at a gas station at the corner of FM 650 and Highway 83 near Fronton, Texas.  When the agent arrived at the gas station, he saw a pickup truck matching the BOLO description and got out of his vehicle to talk to the driver, later identified as Appellant.  As the agent approached, Appellant acted nervously, moving fast to replace the gas cap, tensing up and shaking while doing so and then quickly entered the pickup truck. Appellant attempted to drive away, but stopped when the agent activated the lights of his patrol car.

Appellant gave the agent consent to search the pickup truck and the agent found several people concealed underneath the plywood in the back of the truck who admitted they were in the United States unlawfully.  The agent arrested Appellant.

Based on the totality of the circumstances, the court held the agent had reasonable suspicion to stop of Appellant’s truck. First, FM 650 is a well-known smuggling road for narcotics and aliens because it is the only route in an out of Fronton, as this court has noted in the past.  Second, the agent had patrolled the border area regularly for over two and a half years and had investigated tips and made arrests in that same area for narcotics violations and alien smuggling.  Third, the agent encountered Appellant’s truck five miles from the border between the United States and Mexico, which supported the reasonable belief the vehicle had recently crossed the border. Fourth, upon arriving at the gas station, the agent knew Appellant’s vehicle did not belong to a Fronton resident and Appellant’s nervous, erratic behavior and unprovoked flight supported a finding of reasonable suspicion. Finally, based on his experience, the agent knew smugglers often used plywood to conceal contraband in their trucks.

United States v. North, 2013 U.S. App. LEXIS 17808 (5th Cir. Miss. Aug. 26, 2013)

As part of a drug trafficking investigation, federal agents obtained a wiretap order on Appellant’s cell phone from a federal judge in the Southern District of Mississippi.  Information obtained from the interception of Appellant’s cell phone on May 9 and 16, 2009, led to Appellant’s arrest for possession of cocaine. Title III of the Omnibus Crime Control and Safe Streets Act of 1986 authorizes the use of wiretap surveillance in criminal investigations.  Under Title III, a federal judge may enter an order authorizing the interception of cell phone communications within the territorial jurisdiction of the court in which the judge is sitting.  The Fifth Circuit Court of Appeals has held the “interception” includes both the location of a tapped telephone and the original listening post, and that a judge in either jurisdiction has authority under Title III to issue wiretap orders.

Appellant argued the district court in Mississippi lacked territorial jurisdiction to authorize the interception of the cell phone call on May 9, 2009, because when the agents intercepted the call his phone was located in Texas and the government’s listening post was located in Louisiana.  The court agreed.

The district court located in the Southern District of Mississippi lacked the authority to permit interception of cell phone calls made from Texas at a listening post in Louisiana. In addition, the court held suppression of the information obtained from the May 9, 2009, wiretap was warranted. Appellant further argued the agents failed to follow the minimization protocols during interception of the May 16, 2009, phone call between Appellant and a female friend who was not under investigation.  Appellant claimed the agents conducted uninterrupted monitoring of a one-hour telephone conversation that had no connection to the drug smuggling investigation.

The court agreed and suppressed the evidence obtained from the interception of the phone conversation.  The agents were authorized to spot-monitor Appellant’s cell phone conversations for no more than two minutes at a time.  However, the agents were authorized to continue monitoring if the conversation related to the drug smuggling investigation.  The court found the agents did not stop listening when it was made clear the conversation was not criminal in nature and they did not conduct subsequent spot checks by checking on the conversation to determine if it had turned to criminal matters.  Rather, the agents listened to the conversation for several minutes before dropping out for less than one minute at a time before resuming their near continuous listening.  Under these circumstances, the court held it was not objectively reasonable for the agents to listen for nearly one hour to a conversation that did not turn to criminal matters until the last few minutes.

Jul 23
1

Border Patrol Agents Violate Fourth Amendment in Terry Stop But Conviction Upheld

By | Warrantless Search

United States v. Hernandez-Mandujano, (5th Circuit June 27, 2013)

Border PatrolBorder Patrol agents stopped Appellant as he was driving on Interstate 10, approximately 450 miles from the nearest United States-Mexico border crossing. The agents believed Appellant was transporting illegal aliens because he was driving an SUV; had both hands on the steering wheel, and he was not exhibiting the relaxed nature of most drivers. In addition, Appellant’s speed dropped from 70 miles per hour to 60 miles per hours as the agents followed him, and when the agents pulled alongside Appellant, he stopped talking to the person in the passenger’s seat.

The agents learned the car was registered to a woman; however, it had not been reported stolen, had no outstanding warrants or criminal activity associated with it, and had not recently crossed the border. During the stop, Appellant told the agents he was a Mexican national in the United States illegally. The government indicted Appellant for reentry without permission by an alien deported after conviction for an aggravated felony, in violation of 18 U.S.C. § 1326(a) and (b)(2).

At trial, Appellant moved to suppress his statements to the agents, arguing the stop could not be considered an extended border search and the agents lacked reasonable suspicion to conduct a Terry stop. The district court agreed the stop was not an extended border search, but held the agents had reasonable suspicion of illegal activity to support a Terry stop.

The 5th Circuit Court of Appeals held the agents did not have reasonable suspicion to stop Appellant. First, the stop occurred 450 miles from the nearest border crossing and there was no reason to believe Appellant had come from the border. Second, Appellant’s driving posture speed change and the fact the SUV was registered to a woman was not indicative of criminal activity. Third, the SUV had not been reported stolen, had no outstanding warrants or criminal activity associated with it, and had not recently been documented as crossing the border. Finally, the agents could not identify anything about the SUV that rendered it more likely than other SUVs to be transporting illegal aliens.

Even though the agents violated the Fourth Amendment in stopping Appellant, the court still denied Appellant’s motion to suppress. The court noted previous Fifth Circuit case law held an alien’s INS file and identity are not subject to suppression when law enforcement officers learn of a deported alien’s unlawful reentry after an allegedly unconstitutional stop.

Dec 07
0

A Couple of Troubling Cases: Drug Dogs and Consent Searches

By | Warrantless Search
The following cases were reported to me as “interesting cases,” but I would reclassify them as “troubling” (especially the second one).  We might just see these again sometime soon if the CCA decides to hear them.
 
Duration of traffic stop not unreasonable, despite officer’s remark that the purpose of checking passenger’s license was to “buy time” until the K-9 dog arrived.
Campbell v. State, 2012 WL 3201923 (Tex.App.-Tyler Aug 08, 2012) (NO. 12-11-00324-CR)
Quoting from the opinion: “Appellant contends that the true purpose of the stop ended when he was cleared of any outstanding warrants at 12:44 a.m. In his brief, Appellant points out that the evidence indicates that (1) the officers did not smell marijuana in the vehicle, (2) [officers] discussed that Appellant and [passenger] were calm, but that their demeanor might change when the K–9 unit arrived, and (3) [officer] remarked that [other officer] was just buying some time by talking to [passenger]….We initially note that [officer’s] remark concerning [other officer’s] ‘buying time’ is troubling.  But the trial court was not required to examine [the] statement in a vacuum.  The officers were justified in checking whether there were any outstanding warrants for [passenger]….The traffic stop may have concluded more quickly if the officers had requested information on outstanding warrants for Appellant and [passenger] at the same time.  But the officers were under no obligation to investigate the situation in any particular order.”Police Helicopter
D’s consent to house search deemed “voluntary,” despite presence of twenty officers on D’s property and a police helicopter hovering overhead.
 
Schield v. State, 2012 WL 3228829 (Tex.App.-Hous. (1 Dist.) Aug 09, 2012) (NO. 01-11-00466-CR, 01-11-00467-CR)
Quoting from the opinion:  “‘An environment of few or many officers is significant in determining the validity of a consent to search,’ and the Court of Criminal Appeals ‘has been critical of consent given in the face of numbers of armed officers.’….We find this case distinguishable…Appellant was behind a tall privacy fence on his property when [officer] called and asked him to come to the front of the property….[I]n Lowery, one of the officers had a pistol drawn, and at least five officers were inside the apartment before the seventeen year-old gave verbal consent, but here only two officers, with no guns drawn, approached the middle-aged Appellant at his gate to ask for consent….Appellant further testified that none of the officers yelled at him and that he made small talk with the officers before they asked him to sign the consent form.”
Oct 01
0
Search and Seizure Update Border Patrol

5th Circuit Search and Seizure Update

By | Search & Seizure

Here are a couple of recent cases out of the Fifth Circuit regarding the 4th Amendment:

Search and Seizure Update Border PatrolUnited States v. Rico-Soto, 2012 U.S. App. LEXIS 16002 (August 2, 2012)

A Border Patrol Agent conducted a traffic stop on appellant’s van and eventually arrested him for harboring illegal aliens.  The court held the agent did not violate the Fourth Amendment’s prohibition against unreasonable search and seizure because the stop was supported by reasonable suspicion.

First, the van was traveling on Interstate 10, a major corridor for alien smuggling, and the agent had pulled over vans transporting illegal aliens on this route multiple times.  Second, various characteristics of the van and its passengers added to the agent’s suspicions.  The van was a fifteen-passenger model of the kind often used in transporting illegal aliens.  There was a company name stenciled on the side of the van, but it was registered to a woman and not the transportation company.  The agent knew that vans used to transport illegal aliens were often registered to individual women rather than to a transportation company.  Third, the agent noticed that the passengers were seated in separate rows rather than clustered together as people normally would sit.  Finally, the agent had specific information from his agency that this particular transportation company had become active in transporting illegal aliens.  The agent’s 19 1⁄2 years of experience allowed him to recognize suspicious circumstances that might not be recognized by others and by themselves might not arouse suspicion, but when examined together, established reasonable suspicion to support the traffic stop.

United States v. Mubdi, 2012 U.S. App. LEXIS 16708, August 10, 2012 

Two police officers stopped appellant after they both visually estimated that he was speeding and that he was following one of the officer’s patrol cars too closely.  One of the officers issued appellant a warning ticket and then had him step out of his car while the other officer walked his drug-detection dog around it.  After the dog alerted to the presence of drugs, the officers searched appellant’s car and found cocaine and two loaded firearms.

The court agreed with the district court, which held that the officers had probable cause to stop appellant for speeding because they were trained in estimating vehicle speed and that their testimony regarding appellant’s rate of speed was credible.  The court further held that even if the officers were mistaken in believing that appellant was violating the law by following the officer’s patrol vehicle too closely, it was a reasonable mistake, which did not affect the officers’ probable cause to stop appellant for speeding.

The court held that after the officers issued appellant the warning ticket, they had reasonable suspicion to detain him for further investigation.  First, appellant took an excessive amount of time to pull over and he was extremely nervous when talking to the officers.  Second, during the stop, he kept his foot on the car’s brake pedal instead of shifting the transmission into park.  Third, he could not provide details as to his destination or the family member he was going to visit.  Fourth, he lied to the officer about who had rented the car; he was not an authorized driver of the car and the rental car was being driven out-of-state, which was prohibited by the rental contract.  All of these circumstances supported the officers’ decision to extend the duration of the initial 3 traffic stop to conduct the open-air canine sniff, which eventually alerted the officers to the presence of contraband in appellant’s car.

Mar 21
0
Fort Worth Federal Defense Lawyers

Fifth Circuit Federal Court Update

By | Confession

Fort Worth Federal Defense LawyersBelow are some case summaries from recent Fifth Circuit Cases regarding search and seizure and confessions.

4th Amendment Search and Seizure

United States v. Gray, February 1, 2012

Officers had probable cause to believe that appellant was concealing crack cocaine in his rectum.  After conducting two strip searches, in which appellant was not fully cooperative, an officer told appellant that he could either undergo a third strip search, be placed in a cell with a waterless toilet or he could consent to a rectal x-ray examination.  After appellant refused to consent to any of these options, officers obtained a search warrant in which appellant was forced to submit to a proctoscopic examination under sedation.  A doctor eventually recovered over nine grams of crack cocaine from within appellant.

The court held that the search was unreasonable because it was demeaning and intrusive to appellant’s personal privacy and bodily integrity and that there were less invasive ways to recover the evidence, such as a cathartic or an enema.  However, court held the evidence should not be suppressed because the police acted on good-faith reliance on a valid search warrant. In doing so, the court encouraged magistrates, where feasible, to hold a hearing to allow for more careful consideration of the competing interests at stake in medical procedure search cases.

United States v. Hernandez, February 8, 2012

Federal agents received an anonymous tip that appellant was harboring illegal aliens in her trailer.  The agents conducted a knock-and–talk in which they banged on the doors and windows, with their weapons drawn, while demanding entry and then attempted a forced entry by breaking the glass on the door.  When appellant answered the door, she admitted that an illegal alien was inside her trailer.  Agents entered the trailer and arrested appellant and two illegal aliens.  The court held that the agents’ conduct during their knock-and-talk violated the Fourth Amendment.  Since a Fourth Amendment violation had occurred by the time appellant came to the door, the agents could not rely on her admission as probable cause to either enter the trailer or arrest her.

Next, the court held that the incriminating statements appellant made to the agents, after her arrest at their office, were also inadmissible.  They occurred only a few hours after an egregious Fourth Amendment violation and no intervening events occurred to break the connection between her arrest and her statements.
Finally, the court held that the statements obtained from the two illegal aliens were inadmissible against appellant.  The government offered nothing more than pure speculation that their statements would have been inevitably obtained but even if they had, their statements were not sufficiently separated from the Fourth Amendment violation to make them admissible.

Voluntariness of Confession

United States v. Cantu-Ramirez, February 6, 2012

In this multiple defendant case, appellant Lauro Grimaldo argued that the district court should have suppressed his confession because federal agents delayed in presenting him to a magistrate judge for more than two hours for the purpose of interviewing him and obtaining a confession.

The court disagreed after applying the Supreme Court’s guidance from Corley v. United States.  First, because appellant’s presentment was delayed for less than six hours, his confession was admissible as long as it was obtained voluntarily.

Second, based on the totality of the circumstances, the court found that nothing about the interview indicated that his confession was involuntary.  The interview lasted only ninety minutes, the agents wore casual clothing, appellant was not handcuffed and the agents offered him food and drink and allowed him to make several phone calls.  The agents advised appellant of his Miranda rights and took care to ensure that he understood and voluntarily waived them.  The agents obtained appellant’s confession voluntarily and it was properly admitted against him.

Jan 23
1
GPS Tracking Device Texas

Supreme Court Strikes Down GPS Tracking Device | US v. Jones (2012)

By | Search & Seizure

United States Supreme Court Holds that Attachment of GPS Tracking Device is a Search Under the 4th Amendment

GPS Tracking Device TexasMuch like the landmark (and terribly confusing) opinion in Crawford v. Washington several years ago, the Supreme Court once again issued an opinion that appears likely to raise more questions going forward than answers.  The issue presented in United States v. Jones was whether the attachment of a Global Positioning-System GPS tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the FourthAmendment.  The Court held:

The Government’s attachment of the GPS tracking device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.
     (a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.
     (b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position. Pp. 4–12.
     (c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12. 615 F. 3d 544, affirmed.

See the full opinion in United States v. Jones.  Okay, so it’s a search (and in this case, an unlawful one), but where are the limits?  What instructions should be given to police officers and investigators?  Here’s what Lyle Denniston over at ScotusBlog had to say:

Amid a disagreement about what a privacy invasion meant in 1791, but with a strong embrace of privacy in the electronic age, the Supreme Court on Monday suggested that police probably should get a warrant before they physically attach an electronic monitor — like a GPS tracking device — to a car or truck, while leaving some doubt about how long such a device may be used, and about what kinds of suspected crimes allow its use. In effect, the Court seemed to have launched years of new lawsuits to sort it all out. The choice Monday was between a minimalist approach, one in the middle, and an expansive view of Fourth Amendment privacy. Each had support among the Justices, but counting the votes was a bit tricky.

Justice Scalia delivered the opinion of the court.  He was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayer.  Justice Sotomayor, however, penned her own concurring opinion, as did Justice Alito (joined by Justices Ginsburg, Breyer, and Kagan).

To be honest, I haven’t had the time yet to fully digest the opinion, so I’ll save any more comments for another time.  However, I will say that I am initially disappointed by the name of the case.  Fourth Amendment cases are supposed to have cool and interesting names (e.g. Katz, Ciraolo, Kyllo), not Jones.  C’Mon.  When you cite U.S. v. Jones, people are going to thing you’re making the case up.  Oh well.  At a very minimum, this case should give all the hardworking criminal defense lawyers ample ammunition for motions to suppress.

Jan 01
0
Search of cell phones

Limits of the 4th Amendment in an iPhone Culture

By | Drug Crimes

Does the 4th Amendment apply to a Cell Phone Search?

Search of cell phonesBoy, do we love our cellphones.  They are our phone books, our computers, our gaming systems, our cameras, our music players, you name it.  When a person’s cell phone is such a multifaceted device, how can that affect their legal rights under a search warrant?  Read the summary of the case below to find out more about how the 4th Amendment applies to a cell phone search.

United States v. Aguirre, U.S. Court of Appeals for the Fifth Circuit (Federal), December 13, 2011

In this case, Appellant was convicted of using a communications facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b).  On appeal, she challenges the district court’s denial of her motion to suppress evidence, claiming that the search and seizure of her cell phone was tainted by law enforcement officers’ illegal entry into a home where she was a guest.  The 5th Circuit found her arguments unpersuasive and affirmed the judgment.

Federal agents arrested a drug suspect shortly after he drove away from his home and they recovered marijuana and cocaine from his car.  The agents went back to the suspect’s home to conduct a knock and talk interview with the remaining occupants.  After knocking on the door and announcing themselves, the agents received no verbal response but did see a person look through the window, then quickly retreat toward the back of the home.  Fearing the destruction of drug evidence, the officers immediately entered the home without a warrant or consent.  Once inside the home the agents saw marijuana and drug paraphernalia in plain sight.  The agents secured the home and the occupants while they applied for a search warrant.  After obtaining the search warrant, the agents searched Appellant’s cell phone that was lying in plain view on a bed, and discovered several incriminating text messages.

The court held that the agents’ warrantless entry into the home was lawful.  First, they had probable cause to believe it contained evidence of illegal drugs and drug dealing.  Agents had just arrested the first drug suspect, after watching him leave the home, and had recovered marijuana and cocaine from his car.  Second, after knocking and announcing their presence, the reaction of the remaining occupants reasonably caused the agents to believe that evidence was being destroyed.  The agents’ entry into the home was justified by the exigent circumstance of destruction of evidence and supported by probable cause.

Appellant argued that the search and seizure of her cell phone was improper because the warrant did not particularly describe it as one of the items to be seized.  The court noted that while the Fourth Amendment requires that a warrant particularly describe the place to be searched and the person or thing to be seized, each item does not need to be precisely described in the warrant.  The particularity requirement can be satisfied where a seized item is not specifically named in the warrant, but the functional equivalent of other items are adequately described.  Here, the agents were authorized to search for items used to facilitate drug trafficking to include records, correspondence, address books and telephone directories.  While this list did not include cell phones, the court held that cellular text messages, the directory and call logs of Appellant’s cell phone could be characterized as the functional equivalent of several items included in the search warrant such as: correspondence, address books and telephone directories.  Appellant’s cell phone served as the equivalent of records and documentation of sales or other drug activities and as such, the agents lawfully searched it under the authority of the search warrant.

I suppose this ruling was just a matter of time in our iPhone culture.

Nov 04
0
State v. Kerwick, Terry Stop

“There They Are Right There!” – A Defective Terry Stop

By | Investigative Detention

State v. Kerwick, Terry StopThe propriety of a Terry stop (a.k.a. investigative detention) can be, and often is, a hotly contested issue during pre-trial suppression hearings and on appeal.  I’ve written about the legal standard required for a Terry stop many times, but one can never get enough Terry law, so here it is again, complete with case citations, as recited by the 2nd District Court of Appeals (Fort Worth):

A temporary or investigative detention is a seizure.  Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996); Josey v. State, 981 S.W.2d 831, 838 (Tex. App.—Houston [14th Dist.] 1988, pet. ref‘d).  An investigative detention occurs when an individual is encountered by a police officer, yields to the officer‘s display of authority, and is temporarily detained for purposes of an investigation.  Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995).  Because an investigative detention is a seizure, reasonable suspicion must be shown by the officer to justify the seizure.  State v. Larue, 28 S.W.3d 549, 553 n.8 (Tex. Crim. App. 2000).

An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Ford, 158 S.W.3d at 492.  “[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”  Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).  The articulable facts must show unusual activity, some evidence that connects the detainee to the unusual activity, and some indication that the unusual activity is related to a crime. Martinez, 2011 WL 2555712, at *2.  Articulable facts must amount to more than a mere inarticulate hunch, suspicion, or good faith suspicion that a crime was in progress. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010).

In State v. Kerwick, a recent case designated for publication by the 2nd COA, the Court was called upon to consider whether the trial court abused its discretion when it suppressed the evidence of a defendant’s warrantless arrest.  The arresting officer had been dispatched to the Stockyards after a brawl was reported outside a bar.  When he arrived, an unidentified person pointed at a group of people in a car and said “There they are right there.”  The car was pulling away when the officer approached on foot and ordered the driver to stop.  The driver was later arrested for DWI.

The Court of Appeals agreed with the trial court (or at least found that the ruling was not outside the reasonable zone of disagreement) that the officer did not have “reasonable suspicion” to justify the Terry stop when the only facts he had were that a brawl was reported and an unidentified person said “There they are.”

While I agree that the officer did not have reasonable suspicion to justify the stop in this case, I think this case really hinged on the trial court’s initial ruling.  The standard of review (abuse of discretion – outside the zone of reasonable disagreement) is very deferential and had the trial court ruled for the State, it would not be hard to imagine the appellate court upholding that ruling as well (with the exact same facts).  Perhaps an obvious observation on my part.