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Xiphos is a monthly summary of recent court decisions relating to criminal procedure and other topics that are important to the public safety community.  The xiphos is a short, double-edged sword used essentially as a backup weapon for ancient warriors.  This service is provided at no cost.  To receive Xiphos in your email once a month, email Ken Wallentine.

 

2017 Archives

Who Holds a Privacy Interest in a Shared Front Porch?

An officer conducting plainclothes surveillance saw Leslie walk up to the front porch of a triplex residence known for gang and gun activity. The yard around the triplex was fenced. A common porch ran the along the front of the residence. As Leslie walked up to the porch, he rapidly looked from side to side, as if looking to see whether he was being watched, and then crouched down, appearing to manipulate an object. The officer believed that Leslie was stashing a gun.

The officer next saw Price walk over to the same part of the porch, look from side to side and crouch down. Leslie walked back to the same spot twice more, each time looking around and crouching down. The third time that Leslie walked to the porch, he stood and pantomimed firing a long gun into the air. The officer called for other officers to assist.

Several officers walked up the sidewalk of the residence and began to talk to the four men on the porch. One officer walked to the side of the porch, where Leslie had thrice walked and bent down. The officer saw a sawed-off shotgun on the ground under the porch. The shotgun could not be seen from the street or from the fence near the sidewalk, but it was in plain view from the left side of the yard if one walked behind a recycling bin in the yard.

The officers arrested Leslie and Price. Leslie challenged the admission of the illegal shotgun. The trial court ordered suppression of the gun, relying on Florida v. Jardines (133 S.Ct. 1409 (2013)). In Jardines, the Supreme Court held that a warrantless drug detector canine sniff of a front porch of a single-family home was an improper search.

The front porch of a residence is generally part of the curtilage, requiring a warrant, consent or some other Fourth Amendment warrant requirement exception. The court was faced with the question of whether the officer’s movement to the side yard of the triplex was within the curtilage of the home, triggering the warrant requirement.

The Supreme Court has yet to rule on whether porches and side yards of a multifamily dwelling are within the constitutionally protected curtilage. Lower courts facing this question have applied a four-factor test from United States v. Dunn (480 U.S. 294 (1987)) to define the area of “curtilage”:

1.       Proximity to the home

2.       Whether it is fenced or otherwise enclosed

3.       The nature of the use of the area

4.       Efforts the resident takes to screen the area from public view

Considering the Dunn test, the Massachusetts Supreme Court held that the porch and side yard area were protected as part of the curtilage: “The intrusion into the side yard to search for a suspected hidden weapon was no different from bringing a drug-sniffing dog to the front porch of a single-family home.” Thus, the shotgun could not be used as evidence against Leslie and Price.

What might an officer do to bring a different result? Would asking a suspected gang member for consent to look under the porch always fail? The court didn’t describe the neighboring property, but there might have been another vantage point that allowed a view of the shotgun and didn’t intrude on the curtilage. We don’t know what might have happened; even so, slowing down to think about Fourth Amendment questions is often helpful. Commonwealth v. Leslie, 2017 WL 1885833 (Mass. 2017)


No Expectation of Privacy in Ankle Monitor GPS Data

Officers suspected Mathews of committing two pawn shop robberies. Mathews was on supervised release and wore an ankle monitor. Mathews’ parole officer participated in the task force investigating the robberies. He accessed Mathews’ ankle monitor GPS records and determined that Mathews was wearing his ankle monitor in the pawn shops at the time of robberies (no one said that Mathews is a criminal genius!).

Mathews was charged with the robberies. He argued that the GPS evidence was the result of an illegal “search” of the ankle monitor data. The court agreed that parole officials were “perpetually ‘searching’ Mathews within the meaning of the Fourth Amendment for as long as he wore the ankle monitor.” However, the legal issue to be resolved was whether Mathews had a legitimate expectation of privacy in the ankle monitor GPS data.

Mathews complained that his parole officer exceeded his authority in searching the data while acting in his task force investigator role. He claimed that any other officer would have needed a search warrant to obtain the GPS data. The court ruled that the search was proper. First, Mathews had a release condition that allowed a parole officer “to search your person, vehicle, residence or any property under your control.” This search happened without intruding on Mathews’ person or property; in fact, it happened without his knowledge. Thus, reasoned the court, it did not matter whether it was Mathews’ parole officer or another officer who conducted the search. Second, the court noted that the GPS data was historical—not real-time surveillance. United States v. Mathews, 2017 WL 1407036 (D. Colo. 2017)


Pay Your Parking Tickets!

Andrew Bushey’s bad day began with a collection of unpaid parking tickets. His car registration was suspended due to outstanding parking citations. An officer saw Bushey driving down the road, but did not observe any traffic violation. The officer checked the car license plate on his mobile data terminal.

Learning that the vehicle registration was suspended, the officer stopped Bushey. The officer checked Bushey’s driver license status and learned that it, too, was suspended. As the officer spoke with Bushey, he saw signs of impairment. Ultimately, he arrested Bushey for driving under the influence and driving with a suspended driver license and a suspended registration. If only he’d paid the parking fines.

Bushey challenged the lawfulness of the computer check of his registration. In affirming the lower court, the Court of Appeals added New York to the long list of state and federal courts that have approved stops following checks of vehicle registrations without any suspicion of wrongdoing.

For example, courts have upheld:

·         Stops when an officer runs a registration check and learns that the registered owner has a suspended license. See State v. Reno (840 A.2d 786 (N.H. 2003)); State v. Halvorson (997 P.2d 751 (Mt. 2000)).

·         Stops when an officer recognizes a driver as having a suspended driver’s license. See United States v. Hope (906 F.2d 254 (7th Cir. 1990)), where the officer knew that the license suspended as of one week prior to the stop; United States v. Sandridge (385 F.3d 1032 (6th Cir. 2004)), where the officer knew that the license was suspended 22 days before the stop.

·         Stops based on running a registration check and learning that an arrest warrant has been issued for the registered owner, when the driver reasonably could be the registered owner. See State v. Penfield (22 P.3d 293 (Wash. 2001)) in which the court ruled the stop must terminate when the driver is found not to be the registered owner; State v. Oshkeshequoam (503 N.W.2d 23 (Wis. App. 1993)).

The officer who stopped Bushey was looking at the license plate to look beyond the license plate. The court agreed that the officer’s tactic was entirely legal because there is no expectation of privacy in a license plate on a car on a public road—or in the information contained on the registration record. People v. Bushey, 2017 WL 1712385 (N.Y. App. 2017)

 

Next Stop for Historical CSLI: Supreme Court?

After a burglary of a store that sold guns and rare coins, investigators obtained subscriber information for a phone number from which an after-hours call to the store was placed. Following this slim clue, investigators found that it was Rosario’s cell phone. Investigators then obtained cell site location information (CSLI)—without a warrant or other court order—for the phone and placed the phone at the scene and time of the burglary.

After Rosario was charged, he asked that the CSLI be suppressed because the investigators did not obtain a warrant for the information. This fact pattern can be seen in dozens of cases across the nation. In most prosecutions, as in Rosario’s case, courts apply the “third-party doctrine,” ruling that the information is willingly disclosed to a third party (the cell phone service provider) and therefore doesn’t trigger the Fourth Amendment search warrant requirement.

Every federal circuit court of appeal to consider this fact pattern has ruled that the CSLI was obtained without a Fourth Amendment search. However, the court acknowledged that many have questioned the continuing vitality of the third-party doctrine as it applies to mobile phones and similar devices. There is a petition for certiorari pending in the United States Supreme Court in a case where the circuit court of appeals held that there is no Fourth Amendment search when investigators obtain subscriber information associated with an individual’s internet protocol address from a third-party technology company (United States v. Caira, 833 F.3d 803 (7th Cir. 2016), petition for cert. filed (Sept. 11, 2016) (No. 16-6761)). Many advocacy groups are weighing in, hoping that the Supreme Court will take its next step in application of the Fourth Amendment to modern technology. United States v. Rosario, 2017 WL 2117534 (N.D. Ill. 2017)

 

6th Circuit Outlines Use of Force Standard for Medical Emergencies          

Corey Hill was on a near-certain collision course with death. Finding him in a profound diabetic emergency, Hill’s girlfriend called for emergency medical help. Paramedics found Hill very disoriented and combative. Hill’s blood sugar level was at 38, low enough to be considered a medical emergency because it may lead to a seizure and death.

Paramedics inserted a catheter to intravenously administer dextrose to raise Hill’s blood sugar level. An officer arrived just as Hill ripped the catheter from his arm, causing blood to spray, and Hill kicked, swung and swore as the paramedics tried to restrain him and save his life. The officer deployed a TASER® device in drive-stun mode (e.g., direct contact without probes) on Hill’s thigh, distracting Hill long enough for paramedics to secure the catheter and administer dextrose.

Hill “became an angel” and was “very apologetic” after the dextrose took effect, and paramedics took him to the hospital. Later, however, rather than express gratitude that his life had been saved, Hill sued, alleging excessive force and assault and battery. He claimed his diabetes worsened and he suffered contact burns as a result of the TASER application.

The trial court ruled that the officer violated Hill’s clearly established Fourth Amendment rights and denied qualified immunity for the officer. In a decision stunningly rife with common sense and practicality, the Court of Appeals reversed and ordered the trial judge to dismiss the lawsuit. The court held that the officer acted in an objectively reasonable manner with the minimum force necessary to bring Hill under control, and the officer helped save Hill’s life.

The trial court came to its conclusion by applying the test of Graham v. Connor (490 U.S. 386 (1989)). But as the appeals court noted, such analysis was fundamentally problematic in this case. Graham prescribes analysis of three factors to determine the objective reasonableness of force applied by an officer. The factors are:

1.       The severity of the crime at issue

2.       Whether the suspect poses an immediate threat to the safety of the officers or others

3.       Whether he is actively resisting arrest or attempting to evade arrest by flight

“[A]pplying the Graham factors to the situation that [the officer] faced is equivalent to a baseball player entering the batter’s box with two strikes already against him,” the appellate court noted. “In other words, because Hill had not committed a crime and was not resisting arrest, two of the three Graham factors automatically weighed against [the officer].”

Citing a precedent with similar facts, the court said that it was time to fashion a new test for situations where officers use force to help resolve a medical emergency:

Where a situation does not fit within the Graham test because the person in question has not committed a crime, is not resisting arrest, and is not directly threatening the officer, the court should ask:

(1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?

(2) Was some degree of force reasonably necessary to ameliorate the immediate threat?

(3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?

The Court of Appeals stated that the officer should benefit from qualified immunity if the first two questions are answered affirmatively and the third question is answered negatively.

Applying that test, it was an easy conclusion to extend qualified immunity to the officer. Hill’s combative behavior presented an immediate threat to the paramedics and to Hill himself. Though the trial court observed that the danger to Hill could have been resolved by leaving him alone, the Court of Appeals cited Hill’s likely death as an appropriate reason to use some force. Finally, the appellate court held that the officer’s decision not to wrestle Hill into compliance (he was, after all, flailing a catheterized arm), and to instead use a distracting application of the TASER, was objectively reasonable. Hill v. Miracle, 2017 WL 1228553 (6th Cir. 2017)

 

Court Strikes Down Probation Term Allowing Search of Cell Phone

Officers investigating a noise and trespassing complaint in an apartment parking lot spoke with Bryant as he sat in a car. An officer smelled the strong odor of marijuana and asked Bryant to step out. A subsequent search of the car revealed an unregistered semi-automatic .45 caliber handgun under Bryant’s seat. Bryant’s DNA matched DNA found on the gun’s magazine.

Bryant was convicted of carrying a concealed firearm in a vehicle. His sentence included a two-year probation period that required Bryant to submit to searches of texts, emails and photographs on his mobile phone or other electronic device. Bryant appealed the imposition of the supervision term, arguing that the search condition was not reasonably related to future criminality.

The Court of Appeals agreed with Bryant, ruling that the prosecution did not show any reasonable connection between Bryant’s digital device use and the weapons crime conviction or any future criminality: “No cellular phone or electronic device was involved in the crime and there is no evidence that Bryant would use such devices to engage in future criminal activity.” Had there been some nexus between Bryant’s digital life and his crime—such as meeting a crime victim through social media or using his mobile phone for arranging drug deals or human trafficking—the court would almost certainly have reached a different result.

The court also expressed concern for Bryant’s Fourth Amendment rights: Even as a convicted criminal on probation, he doesn’t lose all constitutional protection. Citing the Supreme Court, the court noted that “a cellular phone search could potentially reveal ‘a digital record of nearly every aspect of [its owner's life]—from the mundane to the intimate’” (Riley v. California, 134 S.Ct. 2473, 2489 (2014)). People v. Bryant, 2017 WL 1210053 (Cal. App. 2nd Dist. 2017)

 

Officers Testifying about CSLI Must Qualify as Expert Witnesses

Edwards was convicted of a home invasion robbery. He followed a woman home from a grocery store, entering her garage and brandishing a gun. In addition to Edwards’ fingerprints on the side of the victim’s car, the victim’s identification of Edwards’ car (but not Edwards), surveillance video and other evidence, the prosecution elicited testimony from a police detective regarding cell site location information (CSLI) for Edwards’ phone.

On appeal, Edwards challenged the admission of the CSLI, asserting the trial court improperly admitted the CSLI evidence without determining that the evidence was based on reliable scientific principles, as required by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579 (1993)). Daubert requires trial courts to determine that the scientific methods used to reach a particular conclusion are reliable and that the evidence is relevant.

The Connecticut Supreme Court held that the trial court improperly allowed the officer to testify about the CSLI evidence from Edwards’ phone without establishing the officer as an expert witness. This case signals officers to be prepared to explain the scientific method behind CSLI and to show that the evidence is scientifically sound before a court may properly admit it as evidence. It isn’t enough just to download the data; the officer must explain how the CSLI is collected.

Even though the Court found the cell phone evidence to be improperly admitted, there was adequate other evidence to sustain Edwards’ conviction. State v. Edwards, 2017 WL 1194851 (Conn. 2017)

 

Stopping by the Tracks on a Snowy Evening Might Not Have Been Burglarious

Squires and Angier were walking along railroad tracks on a snowy evening, the temperature plunging below freezing. When stopped by officers, Squires told the officers that the men were “just out for a stroll.” Angier unslung his backpack and placed it on the ground with a loud metal “clang.” The officers searched the backpack and discovered a blue crowbar, a large screwdriver bar, a pair of black gloves, and a small red flashlight. The backpack also contained a crude, hand-drawn map with one spot marked “going in” and five more spots marked with an “X.”

A search of the two men produced two-way radios tuned to the same frequency. Both men also had black gloves. The officers walked to Squires’ vehicle and searched it, finding another pair of black gloves and a small sledgehammer. Squires and Angier were convicted of “walking on a railroad track” and “possession of burglarious instruments.”

Angier died during the appellate process. His attorney asked for the charges against him to be vacated. Perhaps as he faced some other judgment bar he would offer a decent explanation for his burglarious tools and “X marks the spot” map. Or not. The court declined to dismiss the matter because Angier’s legal arguments were intertwined with Squires’, who had not passed on to the final judgment bar.

However, a narrowly divided Supreme Judicial Court held that the prosecution had not met its burden of proof to show burglarious intent. Walking by the tracks on a snowy evening with an “X marks the spot” map and a host of tools commonly—but not exclusively—used for break-ins was not sufficient to show nefarious burglarious intent.

Who knows? Perhaps Squires and Angier had recently read Robert Frost’s pastoral poem, “Stopping by Woods on a Snowy Evening,” and were doing their best to relive the moment (albeit along the railroad tracks). Commonwealth v. Squires, 71 N.E.3d 520 (Mass. 2017)

 

Second Prong of the Gant Decision Justifies Search of Hatchback

During a road rage incident, Stegall brandished a gun at the other driver. The driver called 911 and dispatch broadcast a description of Stegall’s sport utility vehicle (SUV) pulling a trailer with a jet ski. In short order, two officers spotted the SUV. They temporarily lost sight of it, but soon found it parked and unoccupied in a shopping center parking lot.

A witness told the officers she saw someone get out of the SUV, go to the back of the SUV and “put something up underneath something.” The witness told the officers the driver had gone to a nearby deli; proceeding with the officers to the deli, she identified Stegall as the driver.  

Stegall told the officers that he was the driver of the SUV and that he’d been involved in a road rage incident earlier that day, but denied brandishing a gun during the encounter. He told the officers he “probably” had a gun in his vehicle, but he did not consent to a search of his SUV.

The officers called the other driver to the shopping center. The driver identified Stegall as the person who brandished a gun at him. The officers arrested Stegall for terroristic threatening. They handcuffed him and placed him in the back of a patrol vehicle.

Intending to tow the SUV, the officers began an inventory. They found a handgun lodged between the back row of seats and the rear cargo floorboard. The handgun matched the description provided by the other driver. The officers also found an AR–15 rifle with an unusually short barrel. Concerned that the possession of a short-barreled rifle could be an independent crime, the officers stopped the inventory and sought a search warrant.

Stegall was charged with one count of possessing an unregistered short-barreled rifle. He asked the court to suppress the rifle as the product of a pretextual inventory. The trial court denied his request, finding that the search was reasonable as a search incident to a lawful arrest.

In Arizona v. Gant (556 U.S. 332 (2009)), the U.S. Supreme Court redefined and narrowed the traditional “search incident to arrest” exception to the warrant requirement of the Fourth Amendment. The Court held that officers may search a vehicle incident to an arrest only if the arrestee is unrestrained and “within reaching distance of the passenger compartment” at the time of the search or “it is reasonable to believe the vehicle contains evidence” of the crime for which the person is being arrested.

Because Stegall was handcuffed and secured in a patrol car at the time of the search, the officers needed a basis to believe the vehicle contained evidence linking Stegall to the road rage incident—otherwise the search would not trigger the search incident to arrest exception. The witness told officers that she saw Stegall put something in the rear hatch of the SUV. Stegall admitted that he was the driver involved in the road rage incident and said that he probably had a gun in the SUV. Plus, the other driver identified Stegall as the one who brandished a gun. Therefore, the court held that there was reason to believe that the SUV contained evidence of the crime of terroristic threatening.

Stegall also argued that the search was illegal because it exceeded the proper scope of a vehicle search incident to arrest. Stegall defined the rear of the SUV as the trunk area, not part of the passenger compartment. The court disagreed, holding that a hatchback area is part of the passenger compartment as long as one of the vehicle occupants could have reached into the hatchback area while inside the vehicle. Numerous other courts have reached the same conclusion; see United States v. Sain (421 Fed.Appx. 591 (6th Cir. 2011)), United States v. Allen (469 F.3d 11 (1st Cir. 2006)), United States v. Mayo (394 F.3d 1271 (9th Cir. 2005)), and United States v. Olguin–Rivera (168 F.3d 1203 (10th Cir. 1999)). It did not matter to the court that Stegall used the exterior access to put the gun in the hatchback. Nor did it matter that the officers opened the hatch at the rear during their search. United States v. Stegall, 2017 WL 957204 (8th Cir. 2017)

 

Invalid Impound Leads to Suppression of Gun

Two officers saw a car parked in front of a vacant lot and across the street from a church at 0300 hrs. The motor was running and the car lights were off. When the officers aimed their spotlight at the car, they saw two men in the front seat.

The officers approached the car. Crowley-Chester was in the passenger seat. The officers saw an unknown object in his hand (it turned out to be a black glove) and a closed Swiss Army knife in the center console. They ordered the men out of the car. An officer secured the knife. When the driver got out of the vehicle, he dropped a white rock to the ground. An officer recognized it as crack cocaine and he arrested the driver.

The driver asked the officers to let Crowley-Chester drive his car. However, Crowley-Chester did not have a license. The officers impounded the car. During the inventory search, the officers found a backpack containing a gun in the trunk. The backpack was labeled with Crowley-Chester’s name and it also contained a paystub issued in his name. Crowley-Chester was arrested for carrying a gun without a license.

Crowley-Chester asked the court to suppress the evidence found in the backpack, arguing that the car was legally parked on the street and did not need to be impounded. The prosecution countered that the car was in a high-crime neighborhood at 0300 hrs and was impounded for caretaking reasons. The prosecution also argued that the knife in the car justified impounding the car for public safety reasons. Crowley-Chester introduced evidence that there had been only a single call of a car prowl in the neighborhood in the three months preceding the arrest.

The court was not persuaded by the argument that a single car prowl—plus other unrelated calls for service—justified the impound for caretaking reasons. Nor was the court persuaded by the claimed public safety threat arguably presented by the seized Swiss Army pocketknife—after all, the officers had secured the pocketknife before impounding the vehicle.  

This wasn’t a case where the police chose the location of a traffic stop; the driver chose to lawfully park on the street. Coupling that fact with the slim evidence that the area was a high-crime neighborhood, the court found there was no police duty to impound the car to protect it from theft or vandalism. Thus, the court agreed with Crowley-Chester and ordered suppression of the backpack and its contents.

If an officer believes that the crime rate in a particular location justifies an impound for safekeeping, the officer must be able to point to some basis for the belief, whether it is crime statistics or the officer’s own experiences in that neighborhood. Commonwealth v. Crowley-Chester, 2017 WL 935793 (Mass. 2017)

 

Pen Register or StingRay? Confusion Leads to Suppression

Police investigating a string of robberies of food delivery drivers accused Smith of robbing and shooting a pizza delivery driver. Detectives found Smith through his cell phone: Using the phone number provided to order the pizza, officers obtained a court order to “go up on a pen register, specifically trap and trace devices on telephone number 773-981-5292.”

Officers used the signals from his cell phone to locate Smith as he walked along the sidewalk. They grabbed Smith, took him to the ground and searched him. They found his cell phone in his pants pocket. Smith asked the court to suppress the surveillance evidence derived from the phone, claiming that he was arrested without warrant or probable cause.

At the suppression hearing, a detective testified that they used a “pen register” to trap and trace the numbers dialed on Smith’s phone. However, the defense argued that the detective described technology that was more consistent with use of a StingRay device. Rather than merely trapping and tracing numbers, a StingRay is capable of precisely locating a targeted cell phone within a specified area. A StingRay simulates a cell site, forcing cell phones in range to send their signals to the cell-site simulator. Once the cell phones in the area send their signals to the StingRay, it captures information that can be used to identify the cell phone serial number and to locate the cell phone in real time.

The detective who located Smith’s cell phone signal couldn’t explain how a trap-and-trace device such as a pen register allowed him to pinpoint the phone’s precise location. The appellate court said that the detective’s testimony didn’t seem consistent with the operation of pen registers: “The record reveals that the officers’ testimony about the surveillance technology was sparse, vague, obfuscating and at times incoherent.”

Though many courts have discussed the Fourth Amendment implications of using a StingRay device (see “No Need to Tell Judge about StingRay Use” and “Warrant Required for StingRay Cell-Site Simulator Device”), that’s not the focus of this case. The court considered whether the prosecution established a sufficient foundation for any evidence of surveillance technology it used to track Smith’s phone. The court held that the detective’s testimony failed to show any scientific or technical knowledge about the device, whether it was a pen register as claimed or not. Moreover, there was no evidence that the device—whatever it was—worked properly when it was used to locate Smith’s phone.

The court was highly critical, noting that the witnesses “painfully—indeed fatally—failed to provide any critical details” about the technology used. More to the point, the court cited well-established evidentiary rules for establishing foundation to testify about mechanical or electronic surveillance devices. The takeaway: Officers must educate prosecutors about whatever technology is used and be prepared to adequately explain it to the court. People v. Smith, 2017 IL. App. (1st) 14-1814-U (Ill. App. 2017)

 

Eyewitness Identification Admissible Despite Violating Court’s Protocol

Thomas was a backseat passenger in a car driven by Humphrey-Frazer. Johnson was the front seat passenger. Thomas saw a person in a crowd standing in front of a house and he fired his gun toward the person. Someone returned fire and struck Humphrey-Frazer in the head, killing him.

Detectives interviewed Johnson the night of the fatal shooting. They showed her a computer screen that simultaneously displayed photos of 11 people. The detectives asked Johnson to look at the photos and tell them whether she recognized anyone. The procedure was not recorded. Johnson pointed to Thomas, who was later arrested.

Thomas asked the court to suppress the photo lineup evidence, arguing that the detectives did not follow the eyewitness identification procedures outlined in Commonwealth v. Silva-Santiago (906 N.E.2d 299 (Mass. 2009)). In Silva-Santiago, the court prescribed sequential, rather than simultaneous, presentation of lineup photos and outlined the following witness instruction for photo lineups:

·         The eyewitness will be asked to view a set of photographs

·         The alleged wrongdoer may or may not be in the photographs depicted in the array

·         It is just as important to clear a person from suspicion as to identify a person as the alleged wrongdoer

·         The persons in the photographs may not appear exactly as they did on the date of the incident because features such as weight and head and facial hair are subject to change

·         The investigation will continue regardless of whether an identification is made

·         The lineup the administrator should ask the eyewitness for a statement of confidence of any identification

This was the first case asking the court to invalidate an eyewitness identification as the sanction for failure to follow the procedure prescribed in Silva-Santiago. The court allowed Johnson’s identification of Thomas from the simultaneous photo array. Despite the failure to administer the cautions outlined by the court in its prior rulings, the court held that the procedure in this case was not unduly suggestive.

The court also cited research studies published since its 2004 decision in Silva-Santiago. Those studies, the court said, cast doubt on the view that sequential presentation of photographs is superior to simultaneous presentation: “What is not clear from the studies is whether, and in what circumstances, the use of the protocol in a simultaneous photographic lineup diminishes the risk of false positive identification to a rate comparable to or less than that in a sequential lineup. We cannot determine whether a sequential display is superior to a simultaneous display and that the use of the latter is unnecessarily suggestive until we learn, at a minimum, whether the rate of false positive identification with the use of the protocol is significantly higher in simultaneous displays than in sequential displays.”

The court’s opinion concurs with the New Jersey Supreme Court, which held that, “for now, there is insufficient authoritative evidence accepted by scientific experts for a court to make a finding in favor of either [simultaneous or sequential lineup] procedure” (State v. Henderson, 27 A.3d 872 (N.J. 2011)). More recently, the National Academy of Sciences observed that “the relative superiority of competing [simultaneous versus sequential] identification procedures ... is unresolved.”

For several years, Lexipol’s best practice policy has prescribed recording the eyewitness identification procedure and administering important instructions to the witness prior to beginning the procedure. Lexipol also recommends blind administration; the person presenting the lineup should not be involved in the investigation of the case or know the identity of the suspect.   Lexipol’s cautionary instructions include:

·         An instruction to the witness that it is as important to exclude innocent persons as it is to identify a perpetrator.

·         An instruction to the witness that the perpetrator may or may not be among those presented and that the witness is not obligated to make an identification.

·         If the identification process is a photographic or live lineup, an instruction to the witness that the perpetrator may not appear exactly as he/she did on the date of the incident.

·         An instruction to the witness that the investigation will continue regardless of whether an identification is made by the witness.

·         A signature line where the witness acknowledges that he/she understands the identification procedures and instructions.

·         A statement from the witness in the witness's own words describing how certain he/she is of the identification or non-identification. This statement should be taken at the time of the identification procedure.

Although the court upheld the admission of the eyewitness identification in this case, it reminded officers of its authority to govern admission of evidence and reiterated that courts assessing the weight of the eyewitness identification evidence will still scrutinize the steps taken by officers to prevent a suggestive identification procedure. Commonwealth v. Thomas, 2017 WL 581933 (Mass. 2017)

 

Frisk Allowed, Even When Suspect May Have Lawfully Carried Concealed Weapon

An anonymous caller told police that he had just “witnessed a black male in a bluish greenish Toyota Camry load a firearm [and] conceal it in his pocket” in the parking lot of a 7–Eleven store well known for drug trafficking. The tipster reported that the Camry was being driven by a white woman and had just started to go south on North Mildred Street. This area is known as the “highest crime area” in the city.

As an officer turned on to North Mildred Street, he saw a Toyota Camry being driven by a white woman with a black male passenger. He observed that neither occupant was wearing a seat belt and he stopped the car based on that violation. The backup officer opened the passenger door for Robinson, the passenger, to step out. He asked Robinson whether he had any weapons on him. Robinson didn’t answer verbally, but gave the officer “’a weird look’ or, more specifically, an ‘oh, crap’ look.”

The officer frisked Robinson and found a loaded gun in his pocket. Recognizing Robinson as a convicted felon, he arrested him. Robinson asked the court to suppress the evidence from the frisk.

Robinson argued that the state permitted persons to carry concealed weapons by permit. The rule of Terry v. Ohio (392 U.S. 1 (1968)) permits a detention and frisk for weapons when an officer has reasonable suspicion that a person is both armed and dangerous. Because the officers did not know whether he had a permit prior to the time that they stopped the car and frisked him, Robinson claimed, they could not have known whether his possession of the concealed weapon was lawful. Thus, he might have been involved in innocent behavior that would not lead to reasonable suspicion that he was both armed and a danger to others.

The court rejected Robinson’s argument: “The presumptive lawfulness of an individual's gun possession in a particular State does next to nothing to negate the reasonable concern an officer has for his own safety when forcing an encounter with an individual who is armed with a gun and whose propensities are unknown.” As long as the officer carefully applies the Terry doctrine, the fact that a state allows carrying a concealed weapon will not defeat an otherwise proper frisk. The officer must have:

·         Conducted a lawful stop, whether an investigative detention or traffic stop

·         A reasonable belief that the person is both armed and presents a danger to others

The court cited the Supreme Court’s discussion of dangers that officers face in Maryland v. Wilson (519 U.S. 408 (1997)) and more recent data from the 2014 Law Enforcement Officers Killed and Assaulted report. Nonetheless, the court reminded officers that the risk inherent in every traffic stop—proven by the numbers of officers killed and assaulted—won’t automatically justify a frisk. In this case, there was more than ample reasonable suspicion to both stop and to frisk Robinson.

The number of concealed carry permit holders increases yearly and more states are allowing people to carry a concealed weapon without a permit (subject to the usual restrictions of age, criminal history, etc.). Officers will increasingly face application of the Terry doctrine as it applies to frisks for weapons and persons who may be lawfully carrying a weapon. United States v. Robinson, 846 F.3d 694 (4th Cir. 2017) (en banc)

 

Recording Police Officers on Its Way to Being a Clearly Established Right

Turner was video recording a police station. Two officers drove up and approached him. The officers asked for Turner’s identification. Turner asked whether he was being detained. When an officer replied affirmatively, Turner asked what crime supported the detention. He refused to produce identification.

The officers suddenly grabbed Turner, took his camera and handcuffed him. They told Turner, “This is what happens when you don’t ID yourself.” Turner asked to see a supervisor. The officers persisted in asking for identification. They placed Turner in the back of a patrol car and “left him there to sweat for a while with the windows rolled up.”

A lieutenant arrived and spoke with Turner. When the lieutenant asked for Turner’s identification, Turner told him that he did not have to provide it because he had not been lawfully arrested. The lieutenant told Turner he was correct and ordered that Turner be released and his camera returned to him.

Turner sued, alleging that his First and Fourth Amendment rights had been violated. The trial court granted qualified immunity to the officers. Qualified immunity protects an officer from suit when the alleged wrong did not violate “clearly established law.” Before a court can say that the law is clearly established, “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Recently, in White v. Pauly (137 S.Ct. 548 (2017)), the U.S. Supreme Court emphasized that “‘clearly established law’ should not be defined ‘at a high level of generality.’”

The appellate court upheld the grant of qualified immunity applied to the First Amendment claim. Every circuit court of appeals to consider the issue has held that a First Amendment right exists to record the public activities of officers. However, not every circuit has held that the right is clearly established. The Fifth Circuit had not yet ruled on the issue at the time that Turner was arrested.

Lexipol’s best practice policy recognizes the general right to record officers performing their duties with limited exceptions and advises officers to hold off on taking enforcement action until a supervisor can arrive at the scene. The best practice policy also suggests that officers give specific direction to the individual on what he or she can do to be compliant with public safety needs. For example, rather than seizing a camera or commanding the person to leave the area, likely creating a Fourth Amendment seizure issue, consider asking the person to move to the sidewalk across the street or some other location where the person can still see and record police activity, but not directly interfere with the officers’ duties.

The court held that officers are now on notice, at least in the Fifth Circuit, that “a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.” One judge dissented, distinguishing between the right to film officers and Turner’s actions—recording a police facility, not officers entering or leaving the facility.

Nonetheless, the two officers were not entitled to qualified immunity on Fourth Amendment claims of an illegal arrest. The court had no trouble ruling that Turner had been subjected to a de facto arrest without probable cause to believe that he had committed a crime. Thus, the lawsuit for an illegal arrest and detention goes back to the trial court and moves forward. Turner v. Driver, 2017 WL 650186 (5th Cir. 2017)

 

Dealing with the Police? Expect to be Recorded

Paxton, his brother and three other men agreed to rob a drug stash house. The person who enlisted their participation in the robbery was an undercover officer posing as a courier for a Mexican cartel. Moreover, the stash house was merely an empty warehouse chosen for the undercover operation.

Two of the men were arrested outside a restaurant. They were placed in the back of a police transport van. The van featured steel walls and Plexiglas windows separating the driver compartment from two rear confinement compartments. Officers drove the van to the fake stash house, where the other three men were arrested.

As the officers drove to the stash house, the first two men made several inculpatory statements. Once the other three men were in the van, they talked about the intended robbery. One of the men said that the van was “probably bugged.” It was. The men spoke in low voices, but continued to make admissions about the robbery plans.

When the prosecution tried to introduce the inculpatory statements into evidence, the defendants asked that their statements be suppressed. Paxton and his co-defendants argued that they had both a subjective and objective expectation of privacy in the “mobile jail.” In support of their claim, they noted the security features and argued that they spoke in low voices, objectively intending that their conversation not be overheard.

The law is clear that there is no expectation of privacy in the back of a patrol car. However, the trial court distinguished a patrol car from a transport van. Sitting in a patrol car, an arrestee should be on notice that any statements will be recorded. First, the patrol car is the officer’s mobile office and also a mobile jail. Second, the dashboard area of a patrol car “visibly bristles” with electronic equipment that ought to signal to anyone seated in the car that a recording device is among the bells and whistles and sirens and radios of the car.

Unlike the patrol car, according to the trial court, the transport van featured solid steel confinement dividers and double Plexiglas windows separating the front, where officers sit, and the confinement compartments. Further, though the recording devices were capable of real-time monitoring by the police van driver to facilitate security monitoring during the transport, that feature was not activated. The court ruled that these distinctions gave the defendants a reasonable expectation of privacy.

The court of appeals disagreed and reversed. It acknowledged the distinction between a patrol car and a transport van, but held that society does not recognize an expectation of privacy for an arrestee detained in the back of a marked official police vehicle. Notably, citing the proliferation of body-worn cameras on police and recording by citizens with smart phone cameras, the court also stated, “We are fast approaching a day when police interactions with civilians, including detainees, will be recorded from beginning to end.” Therefore, Paxton and his criminal cohort should have expected the van was—as they suspected—equipped with recording devices. United States v. Paxton, 2017 WL 655432 (7th Cir. 2017)

 

I Can See “Clearly” Now

Many lawsuits against police officers are stopped short of a trial by the qualified immunity doctrine, which protects officers from suit when the officers’ actions don’t violate “clearly established” rights. But just what does it mean to say that a right is “clearly established”?

Officers responded to a call of a probable drunk driver “swerving all crazy.” The complainants followed the suspect driver, Daniel Pauly, and flashed bright lights. Pauly pulled over and confronted the complainants. He then drove home, just a short distance away. The complainants called the police and provided Pauly’s registration number.

Three officers responded to the location of the confrontation. One remained there as the other two drove to Pauly’s house. The officers surreptitiously—sort of—approached the house where Pauly and his brother were moving around. The Pauly brothers heard the officers sneaking up and they called out, “Who are you, what do you want?” The officers laughed and said that they had the house surrounded. Then they identified themselves as the State Police.

The Pauly brothers armed themselves and shouted that they had guns. Daniel Pauly stepped into a doorway and fired two blasts from a shotgun. Samuel Pauly aimed a handgun at an officer. The officer fired and missed. The third officer, White, had just arrived from the scene of the initial report. Seeing Samuel aim at the other officer, he fatally shot Samuel Pauly.

Daniel Pauley, suing on his own behalf and on behalf of his brother’s estate, claimed that the brothers only heard someone shout, “We’re coming in.” Pauly asserted that the officers precipitated the force encounter by sneaking up to the house without announcing themselves or their purpose, leading the Pauly brothers to believe that intruders were approaching.

The Supreme Court decision of Tennessee v. Garner (471 U. S. 1 (1985)) requires that a warning be given, where feasible, prior to the use of deadly force. Officer White gave no warning. The trial court denied qualified immunity to Officer White. The 10th Circuit Court of Appeals agreed with the trial court. On rehearing by the appellate court sitting en banc, 10th Circuit Court Judge Hartz observed in a dissenting opinion that no “clearly established law suggests … that an officer … who faces an occupant pointing a firearm in his direction must refrain from firing his weapon but, rather, must identify himself and shout a warning while pinned down, kneeling behind a rock wall.”

The Supreme Court reversed the 10th Circuit’s decision to deny qualified immunity. The Court held that Officer White “did not violate clearly established law on the record described by the Court of Appeals panel.” The Court pointedly reiterated the longstanding principle that “clearly established law” should not be defined “at a high level of generality.” The 10th Circuit, the Court said, “misunderstood the ‘clearly established’ analysis: It failed to identify a case where an officer acting under similar circumstances” had been determined by a court to violate the Fourth Amendment. Without identifying such a case, the 10th Circuit failed to clearly establish the law that should have given notice to Officer White that his conduct was unlawful.

The Supreme Court’s plain message to lower courts is that the “clearly established law” component of the qualified immunity analysis cannot be applied at “too high a level of generality.” Practically speaking, expect attorneys defending officers to more frequently—and with greater success—pursue qualified immunity by arguing that prior cases are too dissimilar to give officers clear and precise guidance on what conduct is “clearly established” as wrongful under the Fourth Amendment. White v. Pauly, 2017 WL 69170 (U.S. 2017) (per curiam)

 

Is Man’s Best Friend Protected by the Fourth Amendment?

A confidential informant reported that Jones was selling drugs from a house owned by Nesbitt. Cheryl Brown and Mark Brown lived in the basement. Officers also found baggies with residue of marijuana and cocaine from a trash pull. The officers obtained a search warrant for the residence. Neither of the Browns were targets of the investigation.

Jones was well known to the police, with a history of violent gang involvement, significant drug history, prior foot and car chases, shootings and gun possession. Jones had “maxed out” his last prison sentence and had been released just a few weeks prior to the search warrant. The officers decided to ask a tactical team to enter and secure the house prior to the search.

As officers approached the house, they encountered Mark Brown, who had come home from work at lunch to let his two dogs out. He told an officer that no one else was home, but that his two dogs were in the house. He also said that he had a key to the house. That information was not relayed to the tactical team.

As the officers approached, they could see the dogs jumping and pawing at the front window. When the first officer breached the door to the house, he perceived that one of the dogs lunged at him. He shot the dog in the head. The dog ran down the stairs. Seeing that the dog was still moving and barking, the officer shot the dog twice more, killing it. The second dog had run to a back corner of the basement. Another officer saw the second dog “moving” out of the corner and he shot the second dog. A third officer shot the second dog again to “put her out of her misery.”

The Browns sued, claiming that the officers violated the Fourth Amendment by unreasonably seizing (by killing) their dogs. They also asserted that the city had failed to train its officers to deal with dogs in homes and that the city had inadequate policies that led to the alleged constitutional violation. The trial court granted summary judgment to the officers.

The court of appeals began its discussion by agreeing with every other circuit on the point that household pet dogs are personal property and the unreasonable seizure of them is unconstitutional (no disrespect to cat lovers, but I’ve never found a similar judicial decision applying to felines). Notwithstanding, the court opined that the trial court had properly credited the testimony of the officers who felt threatened by the dogs as they tried to execute the search warrant.

The appellate court held that the Browns failed to show a policy or practice of unconstitutional action relating to shooting dogs during enforcement actions. The court noted that failing to provide policy and training to deal with household dogs in such circumstances “may well become a viable claim as we move forward, but ... on the present record the one thing that’s clear is that there isn’t much of a policy [or] practice ... throughout the country, on how to deal with this beyond the general statements of how officers are supposed to respond to resistance.” Brown v. Battle Creek Police Department, 844 F.3d 556 (6th Cir. 2016)

Officers in Colorado, Illinois, Ohio, Tennessee and Texas are subject to state law requiring some training to prevent dog shootings. Enactment of these laws has usually followed a particularly ugly incident that brought grief to the dog owner and substantial ill will for the law enforcement agency. Agencies paid nearly $2 million to settle claims when officers shot and killed a Rottweiler and two Bullmastiffs during searches of the San Jose Hells Angels clubhouse and several gang members’ houses. (See San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962 (9th Cir. 2005)).

Many other states have voluntary training programs or partnerships with local animal protection groups to educate officers on dealing with unfriendly dogs. There are also training resources available from the Department of Justice COPS Office and on YouTube. Begin by learning how the Kansas City (MO) Police Department drastically changed community perceptions as explained by one of America’s top tactical commanders, Commander Chip Huth.

 

“Attorney” Isn’t a Magic Word

Holman’s wife shot him in the arm. Holman returned the favor by shooting his wife, killing her. He then called 911. Arriving officers knocked, and Holman invited them into the house.

Sitting in the ambulance receiving treatment for his bullet wound, Holman expressed disbelief in his actions and said he should have just run away. One of the officers asked Holman to sign a consent-to-search form (wisely understanding that there was no warrant requirement exception just because Holman invited them into the house). Holman responded, “I ain’t signing shit without my attorney.”

The next day, a detective interviewed Holman. She first explained the Miranda rights and asked whether Holman understood his rights. He said that he understood. Holman later argued that his statement on the prior night, “I ain't signing shit without my attorney,” served to invoke his right to have his attorney present during questioning. He asked the court to suppress his statements to the detective.

The bright line rule of the Miranda decision states that when a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” However, the Supreme Court later held in Davis v. United States (512 U.S. 452 (1994)) that the request for an attorney must be sufficiently clear so that a reasonable police officer would understand that the suspect is invoking his/her right to have an attorney present during the interrogation.

In Holman’s case, the court held that he hadn’t been sufficiently clear in his request, if indeed it was a request to speak to his attorney: “The mere utterance of the magic word ‘attorney’ in response to a request to search his home was not a clear and unequivocal invocation of his Fifth Amendment right to counsel.” The court opined that a reasonable officer could have concluded that Holman was willing to speak to officers, but that he was unwilling to give written consent for a search of his home without first asking an attorney’s advice. “Attorney” isn’t likely to replace “abracadabra” as a magic word any time soon, and Holman loses his appeal. State v. Holman, 502 S.W.3d 621 (Mo. 2016)

 

Emergency Aid Doctrine Triggered by Confidential Informant’s Overdose

Officers received a tip from a confidential informant that Belser was distributing heroin. The informant told police that he bought heroin from Belser at his home. The informant agreed to make a controlled buy. Officers monitored a phone call arranging for the drug deal. Belser told the informant to pick up the heroin at his house.

The officers fitted the informant with a transmitter. When the informant went into the house, the officers heard Belser call someone to deliver the drugs to him. They heard the sound of a firearm slide racking. After about 20 minutes, the officers heard what appeared to be the drug transaction.

The next sound heard on the wire was someone breathing deeply and gasping for air. The officers heard Belser yelling and slapping someone to wake up. They heard Belser shout, “Breathe don’t do this to me.” Believing that someone was in urgent distress, the officers forced entry into the house. They found the informant slumped over.

As medics worked to revive the informant, officers searched and found 25 packets of fentanyl in the informant’s pocket. The officers searched Belser and found the buy money. After conducting a protective sweep, the officers secured the house and obtained a search warrant.

Belser claimed that the entry was unlawful. He argued that the police created the exigency upon which they relied to make a warrantless entry. The prosecution countered that the officers’ entry was an objectively reasonable effort to render emergency aid to a drug overdose victim.

The exigent circumstances doctrine excuses warrantless compliance with the Fourth Amendment warrant clause in four general circumstances:

1.       When an officer is in hot pursuit of a fleeing felon

2.       When necessary to prevent imminent destruction of evidence

3.       To prevent a suspect’s escape

4.       In response to a risk of danger to the police or others. This last circumstance is often referred to as the “emergency aid doctrine.”

In Kentucky v. King (563 U.S. 452 (2011)), the Supreme Court limited the exigent circumstances rule where police create the very exigency used to justify warrantless entry: “Under this doctrine, police may not rely on the need to prevent destruction of evidence when that exigency was ‘created’ or ‘manufactured’ by the conduct of the police.”

Belser claimed that the proximate cause of the exigency was the officers’ decision to rely on an allegedly unreliable drug user with an outstanding arrest warrant as a confidential informant. The court disagreed, ruling that “proximate cause is not the test to determine if the police created the exigency.” The key question, the court noted, was whether the officers reasonably perceived a real risk of danger. Based on what the officers heard via the transmitter and the fact that only Belser and the informant were in the house, the court concluded a true emergency was evident and therefore the emergency aid doctrine excused the officers’ warrantless entry. United States v. Belser, 2016 WL 6821990 (E.D. Mich. 2016)

 

Exigent Circumstances Justify Warrantless GPS Ping

Gilliam physically forced a minor girl to accompany him from Maryland to New York City, where he raped her. Gilliam told the girl that he would force her younger sister into prostitution if she didn’t work for him as a prostitute. The girl’s foster mother reported to police that she was missing.

After an investigator learned of Gilliam’s association, the investigator confirmed with the girl’s birth mother that Gilliam used her daughter as a prostitute and that Gilliam planned to take her to New York City to work the streets there. The investigator asked Gilliam’s cell phone service provider, Sprint, to provide GPS location information for Gilliam’s phone. Sprint began to relay real-time location information to the investigator and to the New York Police Department (NYPD).

Two NYPD officers saw Gilliam and the girl on the street a couple of blocks from Gilliam’s mother’s apartment. The officers followed Gilliam and the girl into a building and confronted him. Gilliam attempted to flee but was subdued.

In his prosecution for sex trafficking of a minor by force, fraud or coercion, Gilliam challenged the warrantless use of GPS location information to find him. The Stored Communications Act states that a provider may divulge “a record or other information pertaining to a subscriber ... to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency” 18 U.S.C. § 2702(c)(4).

The court observed that numerous courts have held that the exigent circumstances doctrine allowed warrantless entry into premises to avoid risk of injury to a child that officers believed to be located there. The court opined that finding a victim of sexual exploitation on the streets might seem to be less urgent than the need to enter premises where a victim is being held. Even so, the court held that the need to locate the girl and Gilliam was sufficient to constitute exigent circumstances. United States v. Gilliam, 2016 WL 7009952 (2nd Cir. 2016)

 

“I need you to…” persuades court that suspect was subject to unlawful seizure

An officer went to White’s home after a citizen saw a hit-and-run crash and noted the description and license plate of the car that fled. Arriving at White’s home, the officer saw a car that matched the description in the open garage. The officer pulled into the driveway and turned on his emergency lights. He saw White walking toward the door of the house.

Getting out of the patrol car, the officer asked White to talk to him. White did not immediately respond. The officer took one step up the porch and told White, “I need you to step down here and talk to me, OK?” White complied and he followed the officer’s direction back to the car.

The officer spoke to White about the crash. He smelled the odor of alcohol and asked White about drinking. White admitted to consuming three drinks after work. After administering field sobriety tests, the officer arrested White for driving while intoxicated.

White claimed the officer’s conduct created an unlawful seizure and he asked the court to suppress any evidence gathered after he was ordered off the porch. The trial court and the court of appeals disagreed, ruling that the officer did not compel White to step off the porch. The Iowa Supreme Court reversed the lower courts and remanded the case to determine whether other grounds justified the seizure.

The Iowa Supreme Court held that the combination of the officer’s commanding tone; wearing a uniform, badge and gun; and flashing lights on the cruiser blocking White’s driveway would have indicated “to a reasonable person that he could not proceed into his home and that compliance with [the officer’s] directive was now mandatory.”

We’ve heard trainers teach the approach “Ask, tell, make.” That philosophy doesn’t fit with modern expectations of police. Remember to include “persuade,” even patiently if need be. Remember: Talk nice, think mean. State v. White, 2016 WL 6825385 (Iowa 2016)


No Need to Tell Judge about StingRay Use

Patrick failed to comply with his parole terms. Officers obtained an initial arrest warrant and a second warrant authorizing them to use cell phone data to locate Patrick. Officers used a “StingRay” to locate Patrick. When they found him, he was armed, so he was charged with a federal offense of possession of a weapon by a convicted felon.

The StingRay device mimics the cellular service provider signal to force the target cell phone to “ping” information about its precise location (seeWarrant Required for StingRay Cell-Site Simulator Device,” Xiphos July 2016). Patrick appealed his gun crime conviction, claiming that the StingRay was improperly used to locate him. He argued that the warrant was invalid because officers did not tell the judge about the device and how they planned to use it to locate him.

This appears to be the first federal appellate case involving the use of a StingRay or similar device to locate a suspect. In a 2-1 split decision, the court held that not revealing the intended use of the device did not make the warrant flawed. The court noted that the officers needed no warrant to arrest Patrick as a parole absconder, and they had, in fact, two warrants.

The court cited the recent U.S. Supreme Court decision in Utah v. Strieff (136 S.Ct. 2056 (2016)). Applying the Strieff holding, the court opined, “If the police had stopped Patrick’s car for no reason at all and learned only later that he was a wanted man, the gun would have been admissible in evidence. The officers who nabbed Patrick, by contrast, had both probable cause to believe that he was a fugitive from justice and knowledge of the arrest warrant. The gun cannot be less admissible than in Strieff, even if we knock out the means used to track his location.”

The court didn’t decide whether the use of a StingRay constitutes a search, saying that it would wait until that question would “control the outcome of a concrete case.” However, the majority held that officers were not required to disclose the intended use of the cell-site simulator to the judge issuing the warrant. In Richards v. Wisconsin (520 U.S. 385 (1997)), the Supreme Court held that judges are generally prohibited from dictating or limiting the means of executing a warrant. The sole dissenting judge observed that the StingRay has broad capabilities, including the ability to capture e-mails, text messages and images. The dissent urged that “it is time for the Stingray to come out of the shadows, so that its use can be subject to the same kind of scrutiny as other mechanisms.” United States v. Patrick, 2016 WL 6892507 (7th Cir. 2016) 


Frisk producing key fob leads to suppression of evidence

An officer saw a car slow at an intersection, as if to turn. Then the driver paused and drove straight ahead. The officer checked the license plate and learned that the car had been reported as stolen. The officer followed the car, but lost it after a turn. He cruised through the neighborhood looking for the car.

Just a few minutes later, the officer saw Craddock walking down the street. Driving past Craddock, the officer found the stolen car nearby. The officer turned his car and drove back toward Craddock, who was now standing in a front yard about 50 feet from the stolen car.

The officer approached Craddock and asked what he was doing. Craddock appeared nervous and said he was going home, but he couldn’t give his address. Believing that Craddock had just exited the stolen car, the officer handcuffed Craddock and frisked him.

The officer did not find a weapon, but he did feel a car key fob. He took the keys from Craddock’s pocket. The officer found that the key fit the stolen car, and he found a gun in the car. After Craddock’s DNA was found on the steering wheel, he was charged with being a felon in possession of a firearm.

Craddock claimed that the officer exceeded the scope of a weapons frisk when he removed the key fob from Craddock’s pocket. The prosecution argued that the key fob was lawfully seized as the result of a “plain feel.” The court disagreed that the “plain feel” doctrine applied, opining that the incriminating nature of the key fob was not immediately apparent because the officer didn’t have any evidence connecting Craddock to the stolen car.

In Minnesota v. Dickerson (508 U.S. 366 (1993)), the Supreme Court laid out the requirements of the plain feel doctrine. An officer lawfully frisking a suspect’s outer clothing may seize any “object whose contour or mass makes its identity immediately apparent” as incriminating evidence. For an officer to seize an item felt during a frisk, the officer must be lawfully in the position from which he/she touched the item, its incriminating nature must be immediately apparent to the touch, and the officer must be lawfully able to access the item. For example, if an officer pats down a suspect during a search warrant and is immediately able to identify a set of lock picks or a package of marijuana, the officer can reach into the pocket and retrieve the item. However, if further manipulation of the object to identify it is necessary, the plain touch doctrine will not apply.

In this case, the court held that the officer did not have probable cause to connect Craddock to the stolen car at the time of the frisk. The officer did not see who was driving the car and he didn’t see Craddock get out of the car. The key fob, therefore, wasn’t immediately apparent as evidence of a crime: “Key fobs are extremely common items carried in the pockets of a large portion of the population on a daily basis.” Thus, the key fob was unlawfully seized and could not be used as evidence against Craddock. United States v. Craddock, 2016 WL 6595967 (8th Cir. 2016)


Officer immune for alleged unlawful entry during hot pursuit

Gutierrez ran a stop sign. An officer tried to pull her over and she sped up and drove to her mother’s apartment several blocks away. The officer pursued. When Gutierrez stopped her truck, she bailed out and ran to the door of the apartment. The officer followed, deploying his TASER® and firing at Gutierrez’ back. A scuffle ensued. Gutierrez’ mother, Flores, opened the door and the fight moved into the apartment. The officer used his TASER on Flores’ leg during the struggle.

Gutierrez and Flores sued the officer, alleging excessive force, unlawful seizure and unlawful entry into Flores’ apartment. The trial court granted qualified immunity to the officer and dismissed the lawsuit. Gutierrez and Flores appealed.

Qualified immunity is a doctrine that shields officers from civil lawsuits unless their conduct is unreasonable in light of clearly established law. To defeat an officer’s claim of qualified immunity, a plaintiff must show the court first, that the officer violated a federal constitutional or statutory right, and, second, that the right was clearly established at the time of the alleged unlawful conduct: “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law’” (Mullenix v. Luna, ––– U.S. ––––, 136 S.Ct. 305, 308 (2015)).

The court observed that it was “troubled” by the plaintiff’s factual claims related to the alleged excessive force. When reviewing a grant of summary judgment, the court is obliged to resolve all factual conflicts in favor of the plaintiffs. Nonetheless, the court cited a comparable case of “an unfortunate tale of poor lawyering,” and held that Gutierrez’ and Flores’ lawyers failed to make any legal argument to defeat the assertion of qualified immunity on the excessive force claim.

The claim of unlawful entry into Flores’ apartment required the court to consider whether clearly established law barred the officer’s warrantless entry. The plaintiffs asserted that the officer was pursuing Gutierrez only for misdemeanor offenses and that the hot pursuit exception to the Fourth Amendment warrant requirement did not apply. The court disagreed, opining that even now it is unsettled whether a misdemeanor can trigger the hot pursuit doctrine. In Stanton v. Sims (––– U.S. –––, 134 S.Ct. 3 (2013) (per curiam)), the U.S. Supreme Court observed that “federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect.”

Some courts have ruled that a misdemeanor cannot justify warrantless entry into a home under the hot pursuit doctrine. For example, the court discussed its prior ruling in Mascorro v. Billings (656 F.3d 1198 (10th Cir. 2011)), in which the court disallowed the hot pursuit justification for an officer pursuing a juvenile traffic offender into his home. However, the court distinguished the Mascorro decision because the officer knew the juvenile; the flight risk was “somewhere between low and nonexistent”; there were no concerns about evidence destruction, officer safety or public safety; and there was no real downside to obtaining a warrant once the juvenile was inside the home.

Gutierrez compared her violation to the teenage offender in Mascorro and argued that the officer should have known that hot pursuit entry was unconstitutional. However, the court summarized the Mascorro decision as requiring a “serious offense” plus other exigent circumstances, and the court noted that Mascorro did not define “serious offense” or establish that warrantless entries made in hot pursuit of all misdemeanor suspects necessarily violate the Fourth Amendment. Thus, the officer did not violate “clearly established” law.

Despite the several references to the poor performance of the lawyers hired by Gutierrez and Flores, the court’s opinion reinforces the caution for officers to weigh the benefit of a warrantless entry for a traffic violation. Consider whether waiting it out, persuading a surrender or getting a warrant might be the better course. At the end of the day, Gutierrez suffered two broken ribs and a TASER probe that allegedly required surgical removal. Her criminal charges were dismissed. Her lawyers, presumably, worked many hours for nothing. The officer and agency suffered the costs and discomfort of over seven years of litigation. Who won? Perhaps no one. Gutierrez v. Cobos, 2016 WL 6694533 (10th Cir. 2016) 


Decision expected soon from Supreme Court on CSLI petition

Late last year, Xiphos told you about using historical cell site location information (CSLI) to help convict Aaron Graham of armed robbery. Graham and his accomplice, Eric Jordan, were convicted of a string of armed robberies. They challenged the prosecution’s use of historical cell site location information (CSLI) to show that the suspects were in the vicinity of the stores at the times of the robberies. The prosecution obtained the CSLI through court orders issued under authority of the Electronic Communications Privacy Act or the Stored Communications Act.

The trial court admitted the evidence. A panel of the 4th Circuit Court of Appeals reversed, holding that Graham and Jordan have an objectively reasonable expectation of privacy in the CSLI captured and held by their mobile phone service providers. The court also rejected the government’s argument that the CSLI was voluntarily provided to the mobile phone service providers and therefore lost its privacy protection under the third-party doctrine: “We cannot accept the proposition that cell phone users volunteer to convey their location information simply by choosing to activate and use their cell phones and to carry the devices on their person.” The three-judge panel held that the act of ordering a provider to hand over these types of detailed records is a search under the Fourth Amendment and that a search warrant was necessary to obtain the records.

Last May, the Fourth Circuit Court of Appeals assembled en banc reversed the panel and upheld the trial court’s decision to admit the CSLI evidence. The full court applied the third-party doctrine to conclude that the Fourth Amendment does not require a warrant to obtain historical CSLI. Graham had already voluntarily disclosed his location information to a third party, his cellular phone provider. Thus, according to the full court, Graham surrendered his expectation of privacy in his historical CSLI.

A petition for certiorari was filed with the U.S. Supreme Court. In the past few weeks, several privacy advocacy groups have filed friend of the court briefs urging the Supreme Court to accept the case. The Court has yet to give thumbs-up or thumbs-down on whether it will hear the case.

Whether a warrant is required to obtain CSLI or whether an order under the Electronic Communications Privacy Act or the Stored Communications Act is sufficient is a question ripe for consideration by the Supreme Court. State courts in Massachusetts, New Jersey and Florida; the federal 3rd Circuit Court of Appeals; and federal district courts in California, Maryland and New York have reached decisions generally requiring a search warrant to obtain CSLI. On the other hand, the 4th, 5th, 6th and 11th Circuit Courts of Appeals have reached conflicting decisions. Several states, including Utah, Colorado, Maine, Minnesota, Montana and Tennessee, have moved forward with legislative measures protecting CSLI.

The case of Aaron Graham v. United States may well be the moment that Justice Sotomayor has awaited. In her concurring opinion in United States v. Jones (132 S.Ct. 945 (U.S. 2012)), Justice Sotomayor observed that the current analysis of expectation of privacy in information voluntarily disclosed to third parties is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Stay tuned—a decision is expected soon. 


2016 Archives

Emergency warrantless cell phone tracking upheld

Officers investigated a report of a woman’s body in a wooded area “off the beaten path.” They found the woman on the ground in a kneeling position, her hands clasped in front and a gunshot wound to the back of her head. Earlier that morning, a nearby construction crew had reported hearing a gunshot. All evidence pointed to the woman having been shot at the location where she was found.

Officers identified the woman as Melissa Barratt. Barratt had recently been arrested for selling drugs. The arresting officers asked her to provide information about her criminal associates. Barratt told them that she was extremely afraid of Caraballo, her drug-dealing associate. She said that Caraballo would kill her if he knew that she was talking to police, and that he had committed assault or even homicide on previous occasions.

Officers knew of Caraballo’s drug dealing and that he was armed and dangerous. They feared that he might harm others, possibly including undercover operatives. Officers asked the telecommunications company Sprint to track the GPS coordinates of Caraballo’s cell phone by triangulating the cell phone’s position by reference to three or more network satellites. The officers did not obtain a warrant. The tracking led to Caraballo’s location.

Officers saw Carabello’s car, stopped him and arrested him. Caraballo made a number of statements to the officers that were later submitted in evidence at trial. Caraballo asked that the statements be suppressed, claiming that the pinging of his cell phone constituted a warrantless search.

The appellate court sidestepped the question of Carabello’s expectation of privacy in his real-time cell phone location information: “We need not resolve this important and complex Fourth Amendment question. … Other Circuits have considered the reasonableness of such expectations in cases akin to the present one (see United States v. Skinner, 690 F.3d 772 (6th Cir. 2012)).” Instead, the court held that exigent circumstances justified the cell phone tracking. The court noted the officers’ limited use of the tracking information to quickly (in less than two hours) find Carabello’s location, and nothing more.

Without doubt, this issue will arise again, allowing other courts to weigh in. United States v. Caraballo, 2016 WL 4073248 (2nd Cir. 2016)

Another court rules on warrantless cell site location information use

A liquor store clerk received a phone call from an Ohio area code; the caller inquired about the store’s closing time. Shortly after the call, the liquor store was robbed. Another liquor store in the area had been robbed less than a week before and the robber took a bottle of tequila. A detective performed an internet search for the phone number retrieved from the liquor store phone line caller ID. The search produced Zanders’ Facebook page.

The public Facebook photos included a picture of various denominations of cash posted at approximately 11:30 a.m. on the morning after the liquor store robbery. Another photograph showed a bottle of Patron tequila, posted the day after the earlier robbery and taken in Zanders’ mother’s residence. Zanders’ Facebook page also publicly included a video taken in his mother’s home and posted the morning after the second liquor store robbery. The video showed a bottle of the same brand of tequila taken in the first robbery. The video then moved to a bed with a pile of money.

Investigators obtained cell site location information (CSLI) showing that Zanders was in the same area of the liquor stores near the time of the robberies. The investigators did not have a warrant to obtain the CSLI records. Although each federal appellate court that has considered the issue of whether there is an expectation of privacy in CSLI records has held that there is no such right, some federal district courts, as well as state courts in Massachusetts, New Jersey and Florida, have ruled to the contrary.

This case is just one more in an issue that has sharply divided the courts. Earlier issues of Xiphos have reported on the federal cases. The Supreme Court is likely to take up the issue fairly soon, as Justice Sonia Sotomayor has signaled that she is ready to address the issue. In a concurring opinion in United States v. Jones (132 S.Ct. 945 (U.S. 2012)), she wrote that the current analysis of expectation of privacy in information voluntarily disclosed to third parties is “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” There are several cases working through the federal courts that might offer the opportunity for the Supreme Court to take a closer look at obtaining CSLI without a warrant. Zanders v. State, 2016 WL 4140998 (Ind. Ct. App. 2016)

Proper Terry frisk did not create de facto arrest

Four officers eating lunch at a university cafeteria noticed Hawkins seated alone. Hawkins appeared to be intoxicated and he was not eating. Two officers approached Hawkins and asked for identification. He was unkempt, his eyes were bloodshot and he smelled of alcohol.

As Hawkins retrieved his identification, officers saw a large amount of cash in his wallet. A records check revealed that Hawkins was not a student, that he had a prior felony conviction, and that he was known to carry a weapon. The officers noticed a bulge in Hawkins’s pocket. An officer asked about the bulge and Hawkins said that it was money.

One of the officers told Hawkins that they were going to search his pocket for safety reasons. Hawkins bolted. The officers tackled and restrained him. An officer felt a hard object from outside Hawkins's left pants pocket, reached into the pocket, and pulled out a loaded handgun and marijuana.

Hawkins was charged with being a felon in possession of a gun. He claimed that the gun and drugs should have been suppressed, arguing that the attempt to check his pocket created a de facto arrest not supported by probable cause. Hawkins also claimed that the only reasonable way to conduct a search under Terry v. Ohio (392 U.S. 1 (1968)) is a limited pat-down of the outer layer of clothing—not by reaching into a pocket.

The court held that the officers had reasonable suspicion to detain Hawkins and reasonable suspicion to believe that he was armed. The court noted that the scope of the Terry frisk was proper, given what the officers knew: “Though a pat-down is often the least intrusive way to search for a hidden firearm, concern for officer safety may justify lifting clothing or even reaching directly for a weapon in a waistband.”

The court disagreed that Hawkins was under arrest at the point that the gun was found. The court cited the lack of the traditional signs of arrest during the brief encounter: “Hawkins was not handcuffed, isolated, moved to a cop car, or humiliated in any way.” Moreover, Hawkins was not actually searched and he wasn’t even touched by an officer until he tried to flee. United States v. Hawkins, 2016 WL 3996705 (8th Cir. 2016)

Abandoned cell phone doesn’t implicate concerns raised in Riley v. California

A patrol officer saw what he believed to be a stolen vehicle. After confirming that the vehicle was stolen, the officer began to follow it. Samalia, the driver, stopped, got out of the vehicle facing the officer, and then turned and ran. Although the officer gave chase, Samalia was able to escape.

The officer returned to the vehicle and searched it. He found and seized a mobile phone. The officer called some of the numbers in the contact list and was eventually able to learn Samalia’s identity.

Samalia was charged with possession of a stolen vehicle. He asked the court to suppress the cell phone evidence that led to identifying and arresting him. Samalia claimed that the officer illegally seized and searched his mobile phone, asserting that the warrantless search did not fall within a valid exception to the warrant requirement. The prosecution argued that Samalia abandoned his mobile phone.

In Riley v. California (––– U.S. ––––, 134 S.Ct. 2473 (2014)), the Supreme Court noted that “many [mobile devices] are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” The Court also discussed the massive data storage capacities of modern smart phones and the owners’ practice of storing extensive personal and intensely private information on the device. 

In Riley, the United States Supreme Court held that the justifications for the “search incident to arrest” exception to the warrant requirement do not apply to searching cell phones seized during an arrest. Samalia argued that the special constitutional protections applied by the Supreme Court should apply to his mobile phone. The Washington Supreme Court acknowledged that mobile phones usually contain intimate information about the owner—information of the sort that the court would normally find to be subject to a legitimate expectation of privacy.

The court agreed with the prosecution that the abandonment doctrine applied to Samalia’s mobile phone: “When an individual voluntarily abandons an item, not as a facet of modern communication but to elude the police, that individual voluntarily exposes that item—and all information that it may contain—to anyone who may come across it. … Cell phones are no different in this respect than for any other item; the abandonment doctrine applies to all personal property equally.”

The Supreme Court’s decision in Riley plowed new ground in Fourth Amendment jurisprudence, applying traditional privacy expectation analysis to digital privacy interests. The Riley Court considered both the quantitative element of cell phone data storage and the qualitative element, pointing to the intimacy of the data often found on a phone. Riley is likely to impact collection of images and sounds by drones and other digital data collection tools. In State v. Samalia, at least one appellate court signals that the traditional abandonment analysis applies to mobile phones, no matter how much and how intimate the data stored on them. State v. Samalia, 2016 WL 4053202 (Wash. 2016)

No seatbelt + loose pants + loose lips = conviction for gun crime

An officer saw Bailey riding in the front seat of a car while not wearing a seatbelt. The officer stopped the car and Bailey bailed. The officer chased Bailey, noting that Bailey was holding his pants up by the waistband. Bailey jumped a fence into the Xiong family’s back yard, falling as he landed. When Bailey got up, the officer noticed that he was no longer holding onto his pants.

Bailey got away and hid in the neighborhood. A police service dog found Bailey. The officer who stopped him arrested him and placed Bailey into the back of his police car. The officer asked Bailey whether he knew of other crimes that might be happening in the area, suggesting that Bailey could help himself out by cooperating. No Miranda warning was given. The officer left the rear-facing camera on, recording video and audio.

As the officer was outside the car, Xiong approached the officer and told him that his grandchildren had found a gun in his back yard. The patrol car camera recorded Bailey as he swore repeatedly and said, “Damn, they found that gun.”

Bailey asserted that his statements captured on the recording should be suppressed, claiming that he was subjected to the functional equivalent of interrogation without the benefit of a Miranda warning. The court held that even if the questions constituted interrogation, the video recording didn’t reveal any of his answers. Moreover, the questions were primarily routine questions that might be asked during an arrest, and the questioning had ceased by the time that Bailey was placed in the back of the car.

Even if the officer hoped that the video recorder would capture some incriminating statement, such a technique did not amount to a deliberate elicitation of an incriminating response (the functional equivalent of interrogation): “Voluntary statements unprompted by interrogation are admissible with or without Miranda warnings.”

The moral of the story for Bailey is simple: Buckle up the seat belt, buckle up your pants belt and button your lip. United States v. Bailey, 2016 WL 4151219 (8th Cir. 2016)

Evidence admitted after unlawful detention leads to discovery of arrest warrant

An officer stopped Strieff after he left a home where officers had watched numerous persons come and go after a brief visit.  Suspecting that Strieff was involved in drug crimes, the officer stopped him and asked what he was doing at the home.  The officer asked for Strieff’s identification and checked for warrants.  Upon learning of an active arrest warrant, the officer arrested Strieff.  A search incident to arrest yielded methamphetamine and drug paraphernalia.

The Utah Supreme Court ordered the evidence suppressed on the grounds that it was derived from an unlawful investigatory stop.  The United States Supreme Court reversed the Utah court, holding that the exclusionary rule does not bar admission of evidence discovered during a search that follows an unlawful detention when the subject has an outstanding arrest warrant.  The Supreme Court stated that the attenuation doctrine applied to sever the connection between the unlawful stop and the search incident to arrest, absent “flagrant police misconduct.”

The Court restated the three-part attenuation test articulated in Brown v. Illinois, 422 U.S. 590 (1975).  A court reviewing a claim of attenuation between an alleged illegal stop and seizure of evidence should first consider the temporal proximity between the initially unlawful stop and the search.  Here the officer discovered the warrant and the contraband within moments of the initial stop.  Next, the court looks at “the presence of intervening circumstances.”  This factor also favored admission of the evidence.  The valid warrant for Strieff predated the investigation and was entirely unconnected with the stop.  The final factor is “the purpose and flagrancy of the official misconduct.”  At most, the Court said, “the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected drug house.”

The Court noted that an officer’s error might still lead to civil liability as a deterrent to negligent police misconduct.   Suppression of evidence was not the only remedy and was unnecessary in this case.  On the flip side, Justice Sotomayor wrote a sharp dissent.  She said: “Do not be soothed by the [majority] opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.  If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”

Some commentators see this decision as a nail in the coffin of the exclusionary rule.  Others see the case as a mere restatement of Brown.  The Court’s opinion clearly supports the philosophy that allegations of police malpractice—that do not cast doubt on the validity of the evidence—are better resolved by administrative or civil remedies.  Utah v. Strieff, 136 S.Ct. 27 (2016)

Warrant required for Stingray cell-site simulator device

Agents investigating an international drug-trafficking organization obtained warrants for pen register information and cell site location information (“CSLI”) for a target cell phone.   Using CSLI, the agents determined that the target cell phone was located in the general vicinity of “the Washington Heights area by 177th and Broadway.”  That information was not sufficiently precise enough to identify the particular apartment building or apartment where the phone was being used.

The agents deployed a “StingRay” cell-site simulator device that mimics the cellular service provider signal to force the target cell phone to “ping” information about its precise location.  A technician first identified the apartment building with the strongest ping.  Then, the technician walked the halls of that building until he located the specific apartment where the signal was strongest.   The agents did not have a warrant for the use of the StingRay device, believing that its use was not a “search.”

In what may be the first court decision addressing whether the use of a cell-site simulator device is a search, the court ruled that the use of the device—absent a warrant—violates the Fourth Amendment.  The court stated the “use of the cell-site simulator to locate Lambis’s apartment was an unreasonable search because the ‘pings’ from Lambis’s cell phone to the nearest cell site were not readily available ‘to anyone who wanted to look’ without the use of a cell-site simulator.”  The court compared the search using the StingRay to the search using thermal imagery to “view” into a home in Kyllo v. United States, 533 U.S. 27 (2001).  The StingRay allowed the agents to obtain information that would not otherwise be available without some “physical intrusion” into the target home.

Though this may be the first case addressing the question of whether a cell-site simulator device ping is a search, others are certain to follow.  Courts must wrestle with emerging technology that essentially allows a person’s mobile phone to be unwittingly converted into a tracking device.  Cases such as United States v. Jones, 132 S. Ct. 945 (2012) (involving a GPS tracker on a car) and the many cases addressing the constitutional protections afforded to CSLI will be instructive.  For now, investigators should tread carefully when using cell-site simulators and should consider consulting with prosecutors.  United States v. Lambis, No. 15-cr-734, (S.D.N.Y. July 12, 2016).

GPS tracker installed outside the jurisdiction of the court

A confidential informant told officers that Faulkner was traveling to and from Chicago to obtain heroin and then sell it in Minneapolis.  The CI described Faulkner’s two cars and two residences.  During surveillance, officers saw Faulkner driving both cars to and from both residences.  The officers obtained a warrant to place GPS trackers on either or both of Faulkner’s vehicles.  The warrant specified that the device could be placed on either of Faulkner’s vehicles located in Hennepin County (Minneapolis).  The officers ultimately placed the device on one of the vehicles while it was in Ramsey County (St. Paul).

Officers watched Faulkner’s travels with the use of the GPS tracker.  They stopped Faulkner when he drove back to Minnesota from Chicago.   A search of his person and car yielded a small baggie of marijuana.  Officers later obtained search warrants for Faulkner’s Chevy Avalanche and the two residences.  Officers found heroin, firearms, and ammunition in Faulkner’s bedroom at one residence.

Faulkner asked the court to suppress all evidence from the GPS warrant.  He claimed that execution of the warrant (applying the GPS tracker) outside the geographical limitations set forth in the warrant transformed the installation of the GPS tracking device into an unlawful warrantless search, citing United States v. Jones, 132 S. Ct. 945 (2012).  The court observed that Jones is really about requiring a warrant for installation of a GPS tracking device on a vehicle.  Nothing in the Jones case was particularly helpful to Faulkner is his challenge to the “technical deficiency” of the warrant authorizing a tracker on his vehicles.  Therefore, the court denied his request to suppress the evidence.  United States v. Faulkner, 2016 WL 3513995 (8th Cir. 2016)

Search warrant justified to obtain a DNA sample from an uncooperative victim

G.B.’s “occasional sexual partner” cut him with a kitchen knife after she learned that he had slept with another woman. G.B. sought medical help at a fire station. Police officers went to the hospital and interviewed G.B., who identified his assailant and provided the address of the apartment where the stabbing occurred. He told the officers that he didn’t want any action taken over the stabbing.

Officers went to the apartment and saw blood drops on the floor and a bloody doormat in the trash can. A witness told police that he saw a woman slash G.B. Officers searched that woman’s car and found blood. They asked G.B. for a DNA sample to compare to the blood found in the car. G.B. refused.

Officers sought a search warrant for a buccal swab of G.B. A judge found that probable cause existed to believe that “on the person of [G.B.] ... there is now being concealed evidence, namely the victim’s cheek cells/saliva,” and the judge issued a search warrant. G.B. challenged the search warrant, claiming that forcibly taking a buccal swab sample to extract DNA from a crime victim is improper.

The court held that “the probable cause to search is not negated because G.B. is a third party to the criminal proceeding.” To determine the constitutionality of a search, the court weighs the reasonableness of the search, assessing the scope and manner of execution. In this case, the intrusion involved (a quick and painless buccal swab) was minimally invasive. Moreover, the court imposed tight restrictions on how the DNA profile could be used. The government could not use the sample to show that G.B. committed perjury and could not enter the profile into any database. The sample was also to be destroyed after the prosecution of G.B.’s assailant.

Most victims of violent crime are not so tight-lipped about their assailants. As this case shows, when victims do refuse to provide a DNA sample—such as in cases where the victim is a gang member or someone involved in a romantic dispute—the mere status as a victim and not a perpetrator won’t prevent officers from obtaining a search warrant. In re Grand Jury Witness G.B., 2016 WL 3031604 (D.C. Ct. App. 2016)

DUI arrest justifies warrantless search of car

An officer stopped Taylor for speeding and blowing a stop sign. The officer smelled alcohol on Taylor’s breath and body, saw Taylor’s bloodshot and glassy eyes and noted that Taylor’s speech was so slurred that it was hard to understand some of what he said. The officer administered standard field sobriety tests. Based on Taylor’s poor performance on the tests, the officer arrested him for driving under the influence. A backup officer searched Taylor’s car incident to the arrest. He found a clear plastic baggy containing 76 knotted bags of powder cocaine.

Taylor claimed that the search of his car violated the rule articulated in Arizona v. Gant, (556 U.S. 332 (2009)). In Gant, the Supreme Court held that officers may conduct a warrantless search of a vehicle’s passenger compartment incident to arrest only when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Taylor argued that he had been handcuffed and there was nothing from the circumstances of his arrest to reasonably lead the officers to conclude that the car would hold evidence related to the crime of driving under the influence.

The court disagreed, relying on testimony from the arresting officer that his training and DUI enforcement experience taught him that there was a “good possibility” that Taylor’s car would have open containers of alcohol related to the DUI investigation. The court stated that it must “assess the evidence through the prism of an experienced law enforcement officer, and give due deference to the [officer’s] training and experience.”

The decision signals the deference that the court will give in applying the Gant decision and highlights the value of thorough reports and testimony. The result in this case was possible because the officer testified about his training and his prior experience leading him to believe that open containers are often found in the cars of drivers arrested for DUI. Though it isn’t evident from the court’s decision, it is likely that the officer was thorough enough to include that information in the report provided to the prosecutor. Taylor v. State, 2016 WL 2956541 (Md. 2016)

Search warrant for home included car on “premises” 

Recent issues of Xiphos have featured some discussion of curtilage.  Curtilage is that invisible legal boundary that stretches Fourth Amendment protections for a home beyond the brick and mortar walls of the home to the area that the property owner reasonably claimed as part of “living space” or an area of private control.  Courts traditionally defined the curtilage as the area extending the intimate activity associated with the “sanctity of a man's home and the privacies of life.”  Boyd v. United States, 116 U.S. 616 (1886).  Relegated to the margins of Fourth Amendment jurisprudence for many years, the concept of curtilage took on new vitality in United States v. Jones, 132 S. Ct. 945 (2012).

 

In Jones, Justice Scalia’s majority opinion held that a search occurs when officers trespass on personal property (in the Jones case, the trespass occurred when officers attached a GPS tracking device to a car).   In Florida v. Jardines, 133 S. Ct. 1409 (2013), the Supreme Court pumped even more life into the curtilage doctrine, holding that a sniff by a specially-trained detector dog was a search when conducted on the curtilage of a home.  A clear majority of the justices in Jones and Jardine expressed interest in more intently exploring the collision of technology developments and trespass doctrines.

 

After United States v. Jones, defense attorneys considered new ways to claim Fourth Amendment protection for criminal defendants.  With the development and proliferation of new technologies, such as automated license plate readers, drones with high-definition cameras, facial recognition readers, surveillance cameras on street corners, bus stations, toll booths and subways, gunfire recognition and location tools and aural surveillance in public.  I’m watching those developments with interest as I see more creative curtilage arguments in the courts.

 

Officers received a tip that Patterson was selling drugs from his residence.  Officers obtained a search warrant that described the place to be searched as “premises of 2720 N. Erie.”  The warrant authorized a search of the “premises” for items related to the sale of illegal drugs, evidence of occupancy or ownership of the residence, firearms connected with the sale of drugs, scanners or radios used in the sale, and indicia of gang affiliation or membership including clothing.  The affidavit stated that Patterson’s juvenile son also resided at the location.  Patterson’s juvenile son had criminal record and was identified as a criminal street gang member.

 

As officers approached to execute the warrant, the saw Patterson’s juvenile son sitting behind the wheel of a white Mercedes backed into the driveway.  The officers ordered him to get out.  They searched the Mercedes—which was not included in the search warrant—and found a glass container with white crusty residue, a box of sandwich bags, a digital scale with powdery residue, and a handgun.

 

Patterson claimed that the search of the Mercedes was outside the scope of searches authorized by the warrant.  He asserted that the Mercedes was outside the curtilage when parked in the driveway.   The court declined to apply a curtilage analysis, reasoning that defining curtilage “is a complex legal exercise and risks ‘hypertechnical’ warrant interpretations which, at a minimum, will interfere with the ability of law enforcement officers to clearly understand the extent of the warrant.”

 

The court stated that the better analytical approach is to consider whether the Mercedes was on the “premises” described in the warrant.  The court explained that “premises” describes more than just the “building.”  A search of “premises” extends the lawful scope of the search to include those areas that are typically defined as being within the curtilage.  The word “premises” sets the outer boundary of a warrant's scope at “the totality of the unit of property ownership.”

 

The court offered an alternate basis to search the Mercedes, explaining that the car was a mobile container that could have (and, in fact, did) contain the items sought in the warrant.  Patterson countered that the car could have been driven to the home by an innocent third party, and thus should have been protected from the search.  The court disagreed, reasoning that the officers reasonably believed that the Mercedes was under the control of one of the home’s occupants.   “The position of the car in the driveway, the manner in which it was parked, and its nearness to the house all suggested that the car belonged to a resident of the household and not a visitor.”

 

Whenever possible, the better course is to include the description of the vehicles likely to be at the home at the time of search.  Of course, that may not always cover a car that drives up to the premises at the time of the search.  In such a case, officers should note any factors connecting the vehicle, driver and any occupants to the place to be searched and the items named in the warrant.  State v. Patterson, 2016 WL 1612915 (Kan. 2016).

 

Arrest warrant or search warrant needed?  Or both?

 

When seeking to apprehend a suspect at a third party’s home, officers need both an arrest warrant and a search warrant.  On the other hand, if the suspect resides at the home, officers need only an arrest warrant and a “reason to believe” that the suspect is present at the time of the officers’ entry.  That’s a bright line rule stated by the Supreme Court in Payton v. New York, 445 U.S. 573 (1980) and Steagald v. United States, 451 U.S. 204 (1981).  However, lower courts disagree on just how certain officers must be that a suspect resides at and is present at a particular address before forcing entry into a private home.  Some courts hold officers to a “probable cause” standard and others hold that the “reasonable belief” standard stated in Payton/Steagald is less demanding than probable cause.

 

Officers had an arrest warrant for Rivera, a suspect in a homicide case.  Investigators received information from another law enforcement officer and from street informants that Rivera was “staying” or “residing” at an address on North 13th Street.  The investigators went to the home, knocked on the door, and received no response.  They “heard a lot of movement inside,” as well as a phone ring once or twice and stop ringing and a dog bark and cease barking.  The officers believed that someone inside had manually silenced the phone and muzzled the dog.   The officers then forcibly entered the home.

 

Once inside, the officers discovered that Rivera did not live there.  However, they found Vasquez–Algarin, sandwich baggies, a razor blade, and what appeared to be powder cocaine in plain view.  Officers used this information to obtain a warrant to search Vasquez–Algarin’s home.  During the search conducted pursuant to the warrant, officers discovered ammunition and drug paraphernalia.

 

Vasquez–Algarin was charged with distribution and possession with intent to distribute cocaine.  He asked that the evidence be excluded, arguing that the officers did not have probable cause to believe Rivera (the murder suspect) resided at the home.  The court agreed and vacated Vasquez-Algarin’s conviction.

 

The court held that “that Payton’s ‘reason to believe’ language amounts to a probable cause standard.”  Reaching this holding, the Third Circuit Court of Appeals joins the Fifth, Sixth, Seventh and Ninth circuits in similar rulings.  Federal appellate courts in the District of Columbia, First, Second and Tenth circuits have held that the Payton/Steagald “reasonable belief” standard requires less than probable cause.  Some courts have opined that the Supreme Court hinted that it meant “probable cause” when it said “reasonable belief,” finding support in dicta in Maryland v. Buie, 494 U.S. 325 (1990).

 

One wonders whether the Court said what it meant and meant what it said.  For now, we know that lower courts disagree and this is one issue likely to head to the United States Supreme Court.   Until, officers will do what we’ve always done and made the best possible call on less-than-perfect information.  United States v. Vasquez-Algarin, 2016 WL 1730540 (3rd Cir. 2016).

 

DV call does not automatically justify a Terry frisk

 

A campus police officer responded to a call to investigate a man pushing a woman.  The officer encountered Thomas, a student who had been hanging out with and kissing his girlfriend.  Although Thomas was unarmed and had committed no act of domestic violence, the officer ordered Thomas to submit to a Terry frisk.  When Thomas refused, the officer used a TASER®.  Thomas sued the officer, alleging unlawful seizure and excessive force.

 

Courts have ruled that certain serious crimes generally involve weapons and automatically justify a Terry frisk of suspects.  Such crimes include nighttime burglary, large-scale drug trafficking and robberies.  The officer claimed that police officers are free to conduct a Terry frisk whenever investigating a potential “domestic violence” incident, regardless of the specific circumstances of the call or the facts encountered at the scene.  The court disagreed.

 

The officer asserted that the following facts justified a frisk:  (1) Thomas generally matched the description of a black male in a purple shirt observed “pushing” a female; (2) Thomas and his girlfriend seemed “startled and fidgety” when approached; (3) Thomas wore loose clothing that might easily conceal a weapon; (4) Thomas refused to consent to be frisked; and (5) Thomas moved away from the officer when the officer tried to grab him.  In contrast, both Thomas and his girlfriend denied that there had been any domestic violence. 

 

The court quickly disregarded nervousness and the instinctive step back as suspicious.  Rather, the court noted, such factors would more likely be a “natural response” when dealing with an officer.  “A vague call about an unarmed man pushing a woman in a public place on a college campus, without more, does not give rise to a conclusive reasonable suspicion that the man is armed and dangerous.”

 

A single dissenting judge would have allowed the frisk.  Judge Bea observed that the Ninth Circuit court has “repeatedly (and correctly) recognized the unique dangers law enforcement officers face when responding to domestic violence calls—including the inherent volatility of a domestic violence scene, the unique dynamics of battered victims seeking to protect the perpetrators of abuse, the high rate of assaults on officers' person, and the likelihood that an abuser may be armed.”   At the end of the matter, both the majority and dissent concurred that the officer was entitled to qualified immunity.

 

Any call may turn deadly—whether an armed robbery, shoplifting or college campus domestic dispute.  The same careful observation skills that will help an officer stay safe will also help an officer observe, assess and articulate particular threat factors that will justify a frisk for weapons.   Thomas v. Dillard, 2016 WL 1319765 (9th Cir. 2016).

 

Swiping a credit card was not an unconstitutional search

An officer stopped DE L’Isle for following too closely to a large truck. The officer smelled burnt marijuana and saw air fresheners inside DE L’Isle’s car. The officer had a drug detector dog partner. He deployed the dog around the car and the dog gave a positive final response to the odors of controlled substances. When the officer began searching the vehicle, DE L’Isle protested. After a brief struggle, DE L’Isle was handcuffed and placed in the police car.

The search yielded no drugs, but officers did find a large stack of credit, debit and gift cards in the trunk of DE L’Isle’s car. Officers scanned the seized cards and discovered that the magnetic strips on the back of the cards either contained no account information or contained stolen American Express credit card information. Several of the American Express credit cards were in DE L’Isle’s name, but had no data encoded on the magnetic strip.

DE L’Isle was charged with possession of counterfeit and unauthorized access devices. DE L’Isle filed a motion to suppress, arguing that the scanning of the information in the magnetic strips of the cards was an unconstitutional search. The court rejected DE L’Isle’s claim.

First, the court held that sliding the cards through a scanner does not physically intrude into a constitutionally protected space. The magnetic strip on the back of a debit or credit card is external electronic storage media “designed simply to record the same information that is embossed on the front of the card.” Second, DE L’Isle did not have a reasonable expectation of privacy in the cards and card information. The information on a non-counterfeit card magnetic strip is typically “identical to the information in plain view on the front of the cards.”

The majority opinion acknowledged that different facts in another case might lead to a conclusion that a person could hold a subjectively and an objectively reasonable expectation of privacy in information on a magnetic strip.

One judge dissented, stating that the case should have been remanded for additional fact-finding. The dissent observed that a person may wish to rewrite information on a magnetic card for perfectly innocent reasons. Moreover, the fact that the search results showed blank magnetic strips—implicating DE L’Isle in counterfeiting—did not justify the search at the outset. The search results, the dissent claimed, could not justify the search means.

The question of privacy on magnetic strips will indubitably arise again. As the court noted, future technology could well result in larger amounts of personal information encoded on magnetic strips: “Although the stakes may appear small at this stage, technological progress has a way of ensuring that they do not remain so.” United States v. DE L’Isle, 2016 WL 3184475 (8th Cir. 2016)

Search warrant justified to obtain a DNA sample from an uncooperative victim

G.B.’s “occasional sexual partner” cut him with a kitchen knife after she learned that he had slept with another woman. G.B. sought medical help at a fire station. Police officers went to the hospital and interviewed G.B., who identified his assailant and provided the address of the apartment where the stabbing occurred. He told the officers that he didn’t want any action taken over the stabbing.

Officers went to the apartment and saw blood drops on the floor and a bloody doormat in the trash can. A witness told police that he saw a woman slash G.B. Officers searched that woman’s car and found blood. They asked G.B. for a DNA sample to compare to the blood found in the car. G.B. refused.

Officers sought a search warrant for a buccal swab of G.B. A judge found that probable cause existed to believe that “on the person of [G.B.] ... there is now being concealed evidence, namely the victim’s cheek cells/saliva,” and the judge issued a search warrant. G.B. challenged the search warrant, claiming that forcibly taking a buccal swab sample to extract DNA from a crime victim is improper.

The court held that “the probable cause to search is not negated because G.B. is a third party to the criminal proceeding.” To determine the constitutionality of a search, the court weighs the reasonableness of the search, assessing the scope and manner of execution. In this case, the intrusion involved (a quick and painless buccal swab) was minimally invasive. Moreover, the court imposed tight restrictions on how the DNA profile could be used. The government could not use the sample to show that G.B. committed perjury and could not enter the profile into any database. The sample was also to be destroyed after the prosecution of G.B.’s assailant.

Most victims of violent crime are not so tight-lipped about their assailants. As this case shows, when victims do refuse to provide a DNA sample—such as in cases where the victim is a gang member or someone involved in a romantic dispute—the mere status as a victim and not a perpetrator won’t prevent officers from obtaining a search warrant. In re Grand Jury Witness G.B., 2016 WL 3031604 (D.C. Ct. App. 2016)

DUI arrest justifies warrantless search of car

An officer stopped Taylor for speeding and blowing a stop sign. The officer smelled alcohol on Taylor’s breath and body, saw Taylor’s bloodshot and glassy eyes and noted that Taylor’s speech was so slurred that it was hard to understand some of what he said. The officer administered standard field sobriety tests. Based on Taylor’s poor performance on the tests, the officer arrested him for driving under the influence. A backup officer searched Taylor’s car incident to the arrest. He found a clear plastic baggy containing 76 knotted bags of powder cocaine.

Taylor claimed that the search of his car violated the rule articulated in Arizona v. Gant (556 U.S. 332 (2009)). In Gant, the Supreme Court held that officers may conduct a warrantless search of a vehicle’s passenger compartment incident to arrest only when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Taylor argued that he had been handcuffed and there was nothing from the circumstances of his arrest to reasonably lead the officers to conclude that the car would hold evidence related to the crime of driving under the influence.

The court disagreed, relying on testimony from the arresting officer that his training and DUI enforcement experience taught him that there was a “good possibility” that Taylor’s car would have open containers of alcohol related to the DUI investigation. The court stated that it must “assess the evidence through the prism of an experienced law enforcement officer, and give due deference to the [officer’s] training and experience.”

The decision signals the deference that the court will give in applying the Gant decision and highlights the value of thorough reports and testimony. The result in this case was possible because the officer testified about his training and his prior experience leading him to believe that open containers are often found in the cars of drivers arrested for DUI. Though it isn’t evident from the court’s decision, it is likely that the officer was thorough enough to include that information in the report provided to the prosecutor. Taylor v. State, 2016 WL 2956541 (Md. 2016)

Historical CSLI does not require probable cause showing

Pearson brought a bag of marijuana to the home of his girlfriend’s mother. Two men came to the home and spoke with Pearson.

Pearson placed the bag of marijuana on the table and spoke to the men about money. One of the men responded, “No, we taking this.” Pearson said, “Take it.” The men began going through Pearson's pockets. Pearson tried to grab a gun from his waistband. The men fatally shot Pearson and fled with the marijuana.

Pearson’s girlfriend told detectives that Pearson made phone calls and spoke about selling drugs to someone he called “D.” The detectives examined Pearson’s cell phone and traced a recently dialed number to Archer. The detectives conducted surveillance on Archer and watched her enter a bar. She came out of the bar with Taylor.

The detectives stopped Archer and Taylor and seized Taylor’s cell phone. A detective called the number that Pearson had called shortly before his murder. Taylor’s phone rang.

Under the procedures established in the Stored Communications Act (18 USC § 2703(d)), the detectives obtained historical cell site location information (CSLI) from Taylor’s service provider. The Stored Communications Act allows investigators to obtain CSLI with a subpoena instead of a search warrant. The CSLI placed Taylor’s phone near the murder scene at the time of the murder.

Taylor claimed that the detectives violated the Fourth Amendment because he had a legitimate expectation of privacy in his CSLI and they should have obtained a search warrant based upon probable cause, rather than a subpoena under the Stored Communications Act. The court disagreed, holding that Taylor’s Fourth Amendment rights were not violated because he held no reasonable expectation of privacy in the CSLI: “Because Taylor does not have a reasonable expectation of privacy in business records made, kept, and owned by his provider, Sprint-Nextel, a warrant requiring probable cause was not required before obtaining that information.”

Obtaining real-time or prospective CSLI does generally require a warrant. The issue gets murkier, however, with historical CSLI. Many federal courts agree that probable cause is not required as long as investigators can demonstrate “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation”—the standard that the court applied to this case. Federal Courts of Appeals for the 3rd, 5th, 6th and 11th circuits have followed this approach.

However, in a case previously discussed in Xiphos (“Warrant required for cell site location information?” August 2015), the 4th Circuit took a different approach, requiring a search warrant. That case was recently reconsidered by the entire circuit en banc and a decision is expected soon. In addition, appellate courts in a number of states, including Massachusetts, New Jersey and Florida, as well as a few federal trial courts, have ruled that police need a search warrant to obtain historical CSLI.

Taylor failed in his effort to persuade the court to apply a probable cause standard and the court ruled that the CSLI evidence was properly used against him. This case adds to the divide on the CSLI issue and makes it even more likely that the U.S. Supreme Court will review the standard for obtaining historical CSLI. Taylor v. State, 2016 WL 1594007 (Nev. 2016)

Court distinguishes historical CSLI information from GPS tracking in novel argument

A group of 15 shifting suspects committed a string of armed robberies at Radio Shack and T-Mobile stores. When four of the men were arrested, one soon implicated Carpenter and Sanders as the ringleaders. The man who confessed gave investigators his cell phone and the phone numbers of his partners in crime.

Investigators tracked down owner information for these numbers, as well as other numbers from the confessing robber’s phone. Ultimately, seven of the robbers implicated Carpenter as the organizer and gun supplier for most of the robberies. The robbers also stated that Carpenter and Sanders had served as lookouts during the robberies.

Investigators obtained an order under the Stored Communications Act (18 USC § 2703(d)) for historical cell site location information (CSLI) for Carpenter’s and Sanders’ phones as well as 14 other phones of co-conspirators. The CSLI showed that Carpenter and Sanders used their cell phones within a half-mile of the crimes.

Carpenter and Sanders protested the use of the CSLI, arguing that they had an expectation of privacy and drawing a comparison to continuous GPS tracking disfavored by recent decisions of federal courts, including the U.S. Supreme Court in United States v. Jones (132 S.Ct. 945 (2012)). The court made quick work of a general claim to privacy in CSLI, holding that cell phone communication “content … is protected under the Fourth Amendment, but routing information is not.” Moreover, cell phone users must know that the phone location is being tracked by a provider: “Any cellphone user who has seen her phone’s signal strength fluctuate must know that, when she places or receives a call, her phone ‘exposes’ its location to the nearest cell tower and thus to the company that operates the tower.”

The court also dismissed the analogy to GPS surveillance. First, placing a GPS tracking device involves a physical trespass on the vehicle, person or item. Second, the GPS tracker reveals much more precise detail about location. The GPS tracker is generally accurate within approximately 50 feet and is even able to point to the tracker’s location within a building. As the court noted, the CSLI was obtained from a third-party provider, not a tracking device. It “could do no better than locate the defendants’ cellphones within a 120- (or sometimes 60-) degree radial wedge extending between one-half mile and two miles in length.”

The court held that the CSLI was properly admitted. Carpenter also complained about the 116-year sentence imposed by the trial court and Sanders protested his much-shorter 14-year sentence, but both sentences were upheld. United States v. Carpenter, 2016 WL 1445183 (6th Cir. 2016)

Detector dog sniff in common hallway violates Jardines holding

A confidential informant told detectives about drug dealing at an apartment building. The informant said that the dealer drove a black Cadillac Escalade. A detective met with the property manager and obtained consent for a detector dog sniff in the common areas of the building. The manager allowed the detective and a drug detector dog handler and his dog to enter the locked underground parking area.

The Escalade was parked in the underground garage in the space for apartment 204. The dog showed a change of behavior at the Escalade. The detector dog team then conducted a sniff of the common hallways. The dog initially showed interest at the door of apartment 208. Upon a second sniff, the dog gave a final positive response at the threshold of apartment 204.

Based on this information, detectives obtained a search warrant for apartment 204. During the search, detectives located cocaine, heroin and marijuana in apartment 204. Whitaker was the sole occupant at the time the warrant was executed and he admitted he lived there.

Whitaker challenged the search warrant, relying on Florida v. Jardines (133 S.Ct. 1409 (2013)), in which the Supreme Court held that using a detector dog to investigate a home and its immediate surroundings constituted a search under the Fourth Amendment. The majority opinion in Jardines reached its decision on the express ground that entry onto the home’s curtilage with a detector dog constituted a trespass. Whitaker not only argued that the investigators had trespassed on his curtilage, but he also claimed a basic intrusion on his privacy interests.

In Whitaker’s case, the court held that the Jardines curtilage analysis applied, noting that “Whitaker’s lack of a right to exclude did not mean he had no right to expect certain norms of behavior in his apartment hallway. ... [T]he fact that a police officer might lawfully walk by and hear loud voices from inside an apartment does not mean he could put a stethoscope to the door to listen to all that is happening inside. … This means that because other residents might bring their dogs through the hallway does not mean the police can park a sophisticated drug-sniffing dog outside an apartment door, at least without a warrant.”

Whitaker cited to Justice Kagan’s concurring opinion in Jardines, in which she was joined by two other justices. Justice Kagan opined that using a “super-sensitive instrument” such as a detector dog was analogous to use of an infrared radar heat detection device held to be a search in Kyllo v. United States (533 U.S. 27 (2001)). The Court of Appeals agreed with Whitaker and applied Justice Kagan’s privacy interest analysis to the use of the detector dog.

The Whitaker decision is significant because it is the first federal appellate court to apply the Jardines ruling to the common area of an apartment building and because the appellate court followed the analysis in the concurring opinion of only three Supreme Court justices. Some state courts have followed a similar path, while others have disagreed that there is either a privacy interest in the smells seeping from an apartment into a common hallway or a curtilage violation. The Whitaker decision suggests that we will see this argument raised more often in the future. United States v. Whitaker, 2016 WL 1426484 (7th Cir. 2016)

Beware “cut and paste” when preparing a warrant

Every investigator does it: Preparing a search warrant, you include some paragraphs recycled from a previous warrant. For some of us, that meant pecking at a typewriter while copying from an old carbon copy. Today, it’s cut and paste from a Word file. Shortcuts are great—unless they short-circuit the admissibility of evidence.

Wheeler was a headmaster at a private school. As a young teacher at another school, he lived with a family that boarded students. Wheeler sexually abused some of the boys. Years later, after the Jerry Sandusky story became public, one young man decided to tell his brothers about being abused by Wheeler when they were younger. One brother shared that Wheeler also abused him.

The brothers wrote to Wheeler, confronting him about the abuse. Wheeler responded. One victim took the correspondence to police. A witness-tampering investigation ensued. Investigators obtained search warrants for Wheeler’s home, office and car.

When they drafted the affidavits and warrants, the investigators cut and pasted from a form child pornography warrant. Many child pornography warrants describe how suspects hoard illegal images for many years, thus justifying a broad temporal range for the search. The investigators copied language that did not restrict them to searching for evidence limited to the relevant time frame of the suspected witness tampering.

The court described the warrants as “virtual copies of an off-the-shelf warrant for child pornography” and went on to say that “the challenged warrants covered Wheeler's entire digital universe and essentially had no limitations.” Pursuant to the warrants, investigators searched an Apple computer, even though they knew the particular computer was not in use during the period of the alleged witness tampering. The court observed that the Apple computer “logically could not have contained material created or recorded during the relevant time period.”

These flaws—stemming directly from the cut-and-paste language—led the court to hold that the warrants were unconstitutional general warrants. If anything underlies the Fourth Amendment, especially its particularity requirement, it is the history of abusive searches under general warrants, both in England and the American colonies.  

In Riley v. California (––– U.S. ––––, 134 S.Ct. 2473 (2014)), the U.S. Supreme Court held that an arrestee’s mobile phone could not be searched under the search-incident-to-arrest exception to the warrant requirement. Citing Riley, the court in the Wheeler decision described the rigorous requirement to particularly describe the places or things to be searched when searching digital media: “Warrants directed to digital information present unique challenges in satisfying the particularity requirement, given the unprecedented volume of private information stored on devices containing such data.” The broad language contained in the Wheeler warrants ostensibly permitted a search for “child pornography to medical records to consumer information to tax returns. In short, they permitted the species of wide-ranging, exploratory searches the Framers intended to prohibit.”

The Wheeler decision doesn’t mean that investigators can never cut and paste language from other warrants. But it does remind us to think beyond whether there is probable cause to search and to remember another critical component of the Fourth Amendment, that of “particularly describing the place to be searched, and the persons or things to be seized.” Wheeler v. State, 2016 WL 825395 (Del. 2016)

“No Trespassing” signs didn’t bar efforts to knock-and-talk

Investigators received several tips that Carloss, a previously convicted felon, was possibly holding a machine gun and was selling methamphetamine from his home. Two investigators went to Carloss’ home. Four signs were posted around the home: a “No Trespassing” sign on a three-foot-high post by the driveway, “Private Property No Trespassing,” nailed to a tree, and signs on a wooden pole in the front yard and on the front door of the house, both stating “Posted Private Property Hunting, Fishing, Trapping or Trespassing for Any Purpose Is Strictly Forbidden Violators Will Be Prosecuted.”

The investigators parked in the driveway and knocked on the front door. No one answered, though they could hear movement in the house. A short time later, Heather Wilson came out a side door. Wilson told the investigators that Carloss, Earnest Dry, and another woman were inside.

Carloss came outside and the investigators explained that they had heard that Carloss might have a gun. Carloss said he knew that he could not be around ammunition due to his conviction status. Investigators asked to look around the house. Carloss said that he rented a room in the house and that he’d have to get Dry to give permission. When Carloss went into the house to talk to Dry, the investigators asked to accompany Carloss. He agreed.

The investigators saw white powder and drug paraphernalia in the mud room (a room Carloss claimed as his) on the way in. They asked Dry for consent to search the house. Dry called his attorney and subsequently denied consent.

Based on the paraphernalia and white powder, the investigators obtained a search warrant. During the search pursuant to that warrant, officers found “multiple methamphetamine labs” and lab components, a loaded shotgun, two blasting caps, ammunition and other drug paraphernalia.

Carloss claimed that the officers violated the Fourth Amendment by going to the front door and knocking because the property was posted with “no trespassing” signs.

In a split decision, the court held that the investigators did not violate the Fourth Amendment by walking up to the door and knocking. The court noted that a pizza delivery driver or mail carrier would typically walk right past the signs: “Those signs would not have conveyed to an objective officer, or member of the public, that he could not walk up to the porch and knock on the front door and attempt to contact the occupants.”

Though the front porch is typically considered to be within the curtilage of a home, the court distinguished walking up to the front door and taking a drug detector dog to the front door as happened in Florida v. Jardines (133 S.Ct. 1409 (2013)). The Jardines court held that officers violated the Fourth Amendment by intruding on a home’s front porch, a “classic exemplar” of curtilage, with a detector dog sniffing for the odors of controlled substance. However, the investigators in this case were merely seeking to speak with Carloss, not trying to collect evidence of what was occurring inside the home.

The dissent argued that the sign posted “smack in the middle of the front door” gave notice to the whole world forbidding trespassing for any reason. United States v. Carloss, 2016 WL 929663 (10th Cir. 2016)

Curtilage or open field? Vantage point matters to the Fourth Amendment

Investigators received an anonymous tip that Dixon was making methamphetamine in his home. When they went to investigate, they spoke with Dixon’s mother, who told them that Dixon lived in a nearby trailer through the woods. The investigators drove down a nearby gravel road, passed at least two more residences, and located Dixon's trailer at the end of the road.

They noted several signs of methamphetamine production at Dixon’s trailer, including an open fire near the front door that smelled like burning plastic and windows covered from the inside. The investigators approached the front door, intending to knock-and-talk, but before they reached it, Dixon came out of the trailer and met them in front of the porch. Dixon declined to allow the investigators to enter the trailer.

As one investigator spoke with Dixon, the other walked around the side of the trailer in an area of tall weeds and grass at the edge of the woods. The investigator saw two bottles that appeared to be a one-step methamphetamine process. He could seek smoke coming from the back door of the trailer and he smelled odors consistent with methamphetamine production. The investigator testified that he stayed outside the curtilage, off the mowed portion of the vegetation, standing in an area used for dumping trash.

The investigators conducted a protective sweep and ordered the occupants outside. During the sweep the investigators saw other methamphetamine processes underway. They obtained a search warrant and called for a properly equipped search team.

The core issue before the court: whether the investigator was standing within the curtilage, which usually constitutes a Fourth Amendment intrusion, or whether he was in an “open field” when he saw the methamphetamine process. The court of appeals reversed Dixon’s conviction for manufacturing methamphetamine, holding that the investigator intruded upon the curtilage prior to seeing the methamphetamine labs at the back of the trailer. The Kentucky Supreme Court disagreed with the curtilage analysis, and reversed the intermediate appellate court decision.

The court’s analysis reminds officers of the factors used to distinguish between open fields and curtilage. Though backyards are almost always treated as part of the curtilage, the court stated that the lower court put too much emphasis on proximity and did not sufficiently examine other factors in the analysis of curtilage.

In United States v. Dunn (480 U.S. 294 (1987)), the U.S. Supreme Court described four factors to consider when determining whether an area falls within the curtilage:

1.      The proximity of the area to the home

2.      Whether the area is included within an enclosure surrounding the home

3.      The occupant’s uses for the area

4.      The steps taken to protect the area from observation by passersby

There was no fence or other barrier surrounding Dixon’s trailer. The investigator was standing in tall, uncut weeds and grass where piles of household trash had been dumped. Nothing suggested that Dixon had taken any steps to shield the back door and back area from the view of passersby. In this case, the investigator was careful to stay outside the area that Dixon, or anyone else, could reasonably claim as part of the living space (curtilage). The investigators’ caution paid off with an abundance of admissible evidence. Commonwealth v. Dixon, 2016 WL 673543 (Ky. 2016)

Arrest of person standing inside threshold violates Fourth Amendment

Officers went to Allen’s apartment intending to arrest him for an alleged assault reported several days earlier. The officers knocked on Allen’s door. Allen’s apartment was located on the upper floors of a three-story building. The front door to his apartment was on the street level. The other tenants did not share the entrance, the hallway or the staircase to Allen’s apartment.

Allen heard the officers knock and he looked out from the second floor. The officers requested that Allen come down to speak with him. Allen complied, opening the door to his apartment and speaking with the officers while remaining “inside the threshold.” The officers stood outside. Allen denied involvement with the alleged assault. The officers told him that he would need to come to the police station to be processed. In other words, he was under arrest.

Allen asked whether he could retrieve his shoes and inform his daughter, who was upstairs in the apartment, that he would be leaving with the officers. The officers replied that he could not return upstairs unless they accompanied him, which they did. Upstairs, Allen emptied his pockets, revealing several bags of marijuana. The officers later obtained a warrant to search the apartment and found a gun and drug paraphernalia. Allen was indicted on a federal gun charge.

Though the officers were standing outside the threshold, Allen asserted that he was arrested inside his home without a warrant. The question before the court was whether the location of the arrestee or the location of the officers is the critical issue in determining where the arrest occurs. If the arrest is not supported by a warrant or exigent circumstances, it potentially violates the Fourth Amendment and may result in suppression of evidence stemming from the arrest.

In Payton v. New York (445 U.S. 573 (U.S. 1980)), the Supreme Court held that arrests inside a home normally require a warrant. The prosecution claimed that even though Allen’s arrest happened inside the threshold of his home, the officers did not violate the Fourth Amendment because they made the arrest without actually crossing the threshold themselves. Courts have taken different positions on what determines the legality of the arrest: the arrestee’s location at the time of arrest or whether the police cross the threshold. In assessing the validity of the arrest, some courts have asked whether police entered “constructively” or by coercion.

In this case, the court held that Allen’s arrest was unlawful and ordered suppression of the evidence: “Where law enforcement officers have summoned a suspect to the door of his home, and he remains inside the home’s confines, they may not effect a warrantless ‘across the threshold’ arrest in the absence of exigent circumstances.” In response to an argument that Allen was still free to close the door on the officers and walk away, the court noted, “it is inconceivable that the officers would at that point have shrugged their shoulders and turned away.”

This decision is yet another reminder of the high level of Fourth Amendment protection for a home and the general necessity of securing an arrest warrant to enter and arrest a resident. And this is hardly the first time the courts have moved to extend Fourth Amendment protection to personal residences. Consider Florida v. Jardines (133 S.Ct. 1409 (2013)), in which the court stated, “When it comes to the Fourth Amendment, the home is first among equals.” And in Silverman v. United States (365 U.S. 505 (1961)), the court noted that at the Fourth Amendment’s “very core stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion.” United States v. Allen, 2016 WL 362570 (2nd Cir. 2016)

Long-term pole camera surveillance revealed no more than live surveillance

Houston and his brother live on a family farm, which comprises three adjacent properties. Houston resides in a red brick building, his brother in a trailer, and Houston’s adult daughter in a farmhouse. The farm is decorated with anti-government billboards and hand-painted signs, some of which depict the dead bodies of a murdered law enforcement officer and his companion. Houston and his brother were tried, but acquitted, for their murders. While the farm is not enclosed by fencing, blue tarps block views of the trailer doors and vegetation blocks street views of Houston’s house.

Agents tried drive-by surveillance of the farm, but their vehicles “stuck out like a sore thumb.” The agents asked a utility company to install a surveillance camera on a public utility pole located roughly 200 yards from the trailer. The agents monitored the pole camera—without a warrant—for approximately 10 weeks. When the agents learned of a new court decision expressing “some misgivings” over long-term video surveillance, they obtained a warrant for continued use of the pole camera.

Houston was arrested and charged as felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), based primarily on pole camera surveillance video of Houston carrying and shooting guns on the farm. A search of the farm yielded 25 guns attributable to Houston and his brother. Houston asked the court to suppress evidence obtained through video surveillance.

The court denied Houston’s request for suppression: “There is no Fourth Amendment violation, because Houston had no reasonable expectation of privacy in video footage recorded by a camera that was located on top of a public utility pole and that captured the same views enjoyed by passersby on public roads.” Though it might have been impractical for an agent to sit atop the pole for 10 weeks, pretending to be a construction worker, the camera saw nothing that was not open to public view of nosy neighbors passing by. “It is only the possibility that a member of the public may observe activity from a public vantage point—not the actual practicability of law enforcement’s doing so without technology—that is relevant for Fourth Amendment purposes,” the court noted.

One judge concurred in a separate opinion, expressing reservations that 24/7 video surveillance raises privacy concerns because it has the potential to reveal detailed information about the target’s familial, political, professional, religious and sexual associations. The concurring opinion relies on the Supreme Court’s GPS tracking device decision in United States v. Jones (132 S.Ct. 945 (2012)). In that ruling, the judges wrote that long-term non-human surreptitious surveillance “is worrisome because it evades the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility.” United States v. Houston, 2016 WL 482210 (6th Cir. 2016)

Blood spatter, bloody victim justify community caretaking search

Officers were sent on a medical call and found blood “all over the door” of the home. Officers knocked and entered and met Antony Matalonis, who appeared to have been beaten. Antony was “covered in blood” on his right side and was highly intoxicated. He told officers that he had been beaten by four people outside of a bar.

Officers saw a blood trail in the snow and followed it to a home. The officers saw blood on the screen door and the entry door of that home. They heard two bangs inside the house and the sound of items being moved around. The officers knocked and Charles Matalonis, Antony’s brother, answered the door. He was shirtless and out of breath, but did not have any blood on him. Charles admitted that he and his brother had fought.

The officers told Charles that they wanted to come inside and check for any other injured persons. Charles allowed them to enter. One officer conducted a security sweep while another spoke with Charles. After a few minutes, the officer told his colleague that there was marijuana and paraphernalia in the home and a locked door with blood spatter. The officer said there was a strong odor of marijuana coming through the door and that he heard a fan blowing inside the room.

When the officers asked about the room, Charles’ “breathing started becoming faster” and he “looked nervous.” Charles told the officers that no one was in the room. He refused to open the door, stating that it was his security room and contained cameras. When the officers told him that they would kick in the door, Charles told them where to find the key. The officers found a large marijuana plant and complex growing system in the room.

Charles asserted that the warrantless search of the room was unlawful. The prosecution countered that the search was justified under the community caretaking exception because police had an objectively reasonable public safety reason to search.

A split court held that the officers were engaged in a “bona fide community caretaker function” when they searched the house and the locked room, even though the officers may have subjectively intended to find drug evidence: “The potential for the presence of marijuana in the locked room did not render it impossible that there were also injured parties in that room.”

The majority view states that an objectively valid community caretaking purpose will justify a Fourth Amendment intrusion even if there are strong reasons to search for evidence of a crime. The dissent asserted that the court was embracing an “ever-expanding version of the exception” that moves the community caretaking doctrine toward becoming an “investigatory sword.”

Though the community caretaking doctrine is interpreted somewhat distinctively in each state, officers should always carefully document their public safety and community caretaking concerns during an investigation. State v. Matalonis, 2016 WL 514150 (Wis. 2016)

Mentally ill man dies after TASER® deployment

Ronald Armstrong had been diagnosed with paranoid schizophrenia and bipolar mental illness. After he stopped taking his medication, his sister persuaded him to self-admit to a hospital; however, Armstrong left the emergency department prior to completing the admission process.

Armstrong’s sister described his behavior and diagnosis to an emergency department doctor. The doctor began the process for an emergency mental health commitment order, and hospital security called local police. Responding police officers found Armstrong wandering in traffic at an intersection near the hospital. An officer persuaded Armstrong to move out of the road. Armstrong then started eating grass and dandelions, chewing on a “gauze-like substance” and extinguishing cigarettes on his tongue.

The officers learned that the commitment order had been completed and they immediately tried to take Armstrong into custody. His sister stood nearby, asking Armstrong to go with the officers. Armstrong, a large man (5’11”, 262 lbs.), wrapped himself around a sign post and held fast. The police officers could not pry him from the post.

Only 30 seconds after telling Armstrong that they had a commitment order, an officer warned Armstrong that he would use a TASER if Armstrong did not submit. Armstrong did not heed the warning. The officer deployed his TASER in touch mode (often known as “drive stun”) five times in approximately two minutes. Armstrong still held fast.

Two hospital security guards joined the three police officers in prying Armstrong from the post and placing him in handcuffs and leg shackles. They placed him face down on the ground. A few moments later, Armstrong’s sister noticed that Armstrong seemed unresponsive and she asked the officers to check him. Armstrong had turned blue and he did not seem to be breathing. He received immediate medical attention, but was pronounced dead a short time later at the hospital.

Armstrong’s family sued alleging excessive force under federal civil rights statutes (42 U.S.C. § 1983).  The district court granted qualified immunity to the officers. Qualified immunity protects officers who reasonably believe that their actions were lawful under clearly established law. The court of appeals upheld the grant of qualified immunity, but opined in lengthy dicta about the proper use of a conducted energy device on what it deemed “an out-numbered mentally ill individual who is a danger only to himself.” The court further stated, “We intend this opinion to clarify when taser use amounts to excessive force in, at least, some circumstances.”

The court of appeals opinion created no small stir regarding the use of conducted energy devices, such as the TASER®.  Unfortunately the appellate court did not seem to heed the Supreme Court admonition to avoid “20/20 hindsight,” and did not appreciate the risks of controlling a profoundly mentally ill person. The court made little note that Armstrong was just feet from an intersection and passing cars.   

The court expressed concern that the officers applied the conducted energy device after only 30 seconds of efforts to get Armstrong to submit. Slowing a crisis situation down whenever possible almost always produces a safer, less injurious and more effective result. The court stated that physical resistance does not necessarily equate to a “risk of immediate danger.” 

The court also emphasized that Armstrong was “stationary” and offered only “non-violent resistance” when the officer applied the conducted energy device as a pain compliance measure. Many law enforcement trainers and experienced officers recognize the limits of pain compliance techniques on a determined, mentally ill and/or chemically impaired subject. 

The court noted that although he was not complying with officers’ demands, the “factual circumstances demonstrate little risk—Armstrong was stationary, non-violent, and surrounded by people willing to help return him to the Hospital.” The court relied on these facts to conclude that the use of the conducted energy device was not reasonably necessary under the circumstances to control Armstrong. The court also stressed that Armstrong had not committed any crime. The severity of the offense is the initial factor for consideration of the reasonableness of force under the Graham v. Connor analysis. 

Agencies using the Lexipol Use of Force Policy already have policy guidance that complies with the reasonableness assessment factors focused on by the Armstrong court, including guidance to consider:

·         Immediacy and severity of the threat to officers or others.

·         The conduct of the individual being confronted, as reasonably perceived by the officer at the time.

·         Officer/subject factors (e.g., age, size, relative strength, skill level, injuries sustained, level of exhaustion or fatigue, the number of officers available vs. subjects).

·         Individual’s mental state or capacity.

·         The availability of other options and their possible effectiveness.

·         Seriousness of the suspected offense or reason for contact with the individual.

·         Potential for injury to officers, suspects and others.

·         Whether the individual appears to be resisting, attempting to evade arrest by flight or is attacking the officer.

·         The risk and reasonably foreseeable consequences of escape.

·         The apparent need for immediate control of the individual or a prompt resolution of the situation.

·         Whether the conduct of the individual being confronted no longer reasonably appears to pose an imminent threat to the officer or others.

The Armstrong opinion highlights the critical need for training officers to address officer interaction with mentally ill and emotionally disturbed persons. Agencies should refresh their officers’ training on using force to overcome non-violent resistance and assessing the threat posed by such subjects. Training should also include discussion of monitoring subjects after arrests involving force and exertion.

Plaintiffs’ attorneys are advocating—and some courts accepting—application of special scrutiny of force to control mentally ill and emotionally disturbed persons. At least one court has gone so far as to apply the Americans with Disabilities Act, requiring that officers make special accommodation when arresting mentally ill persons (San Francisco v. Sheehan, 743 F.3d 1211 (9th Cir. 2014), reversed, ––– U.S. ––––, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015)). We expect that mental health advocates will continue to press for more restrictive force standards for mentally ill subjects.

The concurring judge agreed with the grant of qualified immunity, but separated himself from his colleagues’ assessment of the situation. He stressed, “This was a close case, the very kind of dispute in which judicial hindsight should not displace the officers’ judgmental calls.” Ironically, the concurring opinion highlighted the legally safe option of doing nothing to help Armstrong in his moment of acute mental crisis: “Law enforcement will learn soon enough that sins of omission are generally not actionable.”

Law enforcement use-of-force trainers, particularly those in the 4th Circuit, should carefully consider the Armstrong opinion in preparing officers to deal with mentally ill and emotionally disturbed subjects who are “stationary and not violently resisting.” Particular importance must be placed on the officer’s need to articulate the risk of immediate danger that warranted application of force.  Armstrong v. Village of Pinehurst, ––– F.3d –––, 2016 WL 105386 (4th Cir. 2016)

No qualified immunity for TASER use on man interfering with paramedics

Rick Kent was a house guest in his son’s (Michael Kent) home.  Michael Kent is a physician.  Rick Kent suffered from many illnesses and spent most of his time in bed in great pain.  He had executed a living will stating that he wanted no resuscitation efforts at the time of death, and he had clearly expressed his wishes to his wife and to his son.  Michael Kent found his father “unresponsive to any stimulus” but still with a pulse.  Sometime later, Michael Kent determined that his father had died.

Kent’s wife called the emergency dispatcher and paramedics arrived about a 45 minutes after Kent determined that his father was dead.  The paramedics insisted on attaching an Automated External Defibrillator to attempt to resuscitate Rick Kent, as required by their agency policy when a death was not witnessed by a hospice nurse.  Kent protested, becoming increasingly agitated at the paramedics’ insistence on trying to resurrect his father. 

The paramedics called sheriff’s deputies.  Kent argued with the deputies when they arrived and waived his hands in the air.  Kent was unarmed and had not made any moves to assault anyone.  One deputy put her hand on her gun and told Kent to calm down.  The other deputy warned Kent to stop interfering or he would be struck with a TASER®.  Kent told the deputy to “go ahead.”

The deputy fired two probes into Kent and he fell.  Kent complied with orders to place his hands for handcuffing.  He continued to ask whether he was under arrest.  After some time, the deputies told him that he was not under arrest.

The paramedics proceeded with the Automated External Defibrillator.  They determined that Rick Kent, dead nearly one hour by now, was without a pulse.  They had, however, complied with their policy.

Kent sued, alleging excessive force.  The trial court denied qualified immunity for the deputies, ruling that use of the TASER was objectively unreasonable and that case law clearly established that the use of a TASER on a person who was “not under arrest, posed no safety threat to officers or others, made no such verbal threats, was not physically resistant, and may have actually shown physical compliance, constituted excessive force.”

The court of appeals agreed that the deputies were not entitled to qualified immunity.  The court held the TASER use was “objectively unreasonable” and violated law that was clearly established three years before this incident.  The first Graham v. Connor factor, the severity of the crime, clearly weighed in Kent’s favor.  He had committed no crime and was not under arrest.

The court held that the second factor, the threat posed to officers or others, also tilted in favor of Kent.  “While Kent may have prevented EMTs from fulfilling their perceived duties,” he did not present a physical and immediate safety threat.  The court noted that Kent had his hands up and his back against the wall when the deputy fired the TASER.  Perhaps this factor might have favored the deputies if there had been some conceivable chance of bringing his dead father back to life with prompt medical attention.

Noting that the reasonableness of an officer’s use of a TASER often turns on active resistance, the court also held in favor of Kent on the final Graham v. Connor factor, whether a subject is actively resisting arrest.  The deputies characterized Kent as “actively resisting arrest” because he didn’t obey commands to calm down and he demonstrated “verbal hostility.”  Kent admitted that he yelled at the paramedics and deputies.  The court stated that “Kent never attempted to flee officers, and he never attempted to prevent officers from handcuffing him.”  All agreed that he was verbally—though not physically—hostile.

Finally, the court reminded that the event happened within Kent’s home, “one of the most sacred of spaces under the Fourth Amendment’s protections.”  The dissenting judge, who would have granted qualified immunity to the deputies, observed that this was a “close call,” and qualified immunity is intended “to give credit to officers’ judgment in ambiguous situations.”  This opinion reminds trainers and officers to carefully consider the Graham v. Connor force assessment factors, being particularly cautious about using force when there is no active resistance.  Kent v. Oakland County, 2016 WL 66566 (6th Cir. 2016)

Using false confession may lead to malicious prosecution liability for investigators

Tyler Sanchez was arrested for burglary and sexual assault after an 8 year-old girl reported that she had been assaulted by a man approximately 40 years-old, 190 pounds, with no tattoos, and with brown hair parted down the middle.  Sanchez didn’t even come close to matching the description (other than being the same gender and race).  He was 18 years-old, 130 pounds, had prominently displayed tattoos on both arms, and had buzz-cut red hair.  Sanchez is developmentally disabled, with IQ scores in the 60s and 70s.  Sanchez displays “noticeably unusual behavior.”

Detectives interrogating Sanchez were concerned about his possible intoxication because he was “behaving unusually and experiencing difficulty answering questions.”  Sanchez confessed to the burglary, but not the sexual assault.  He could not offer any details about the burglary.  Two detectives asked Sanchez whether he was just saying what they wanted to hear.  One detective gave Sanchez a patently false suggestion about how the crime was committed and Sanchez readily agreed with the suggestion.

Sanchez told the court that his confession was false, explaining that he confessed only because his disabilities prevented him from understanding the interrogation.  Medical testimony supported the claim that he was unable to comprehend what was happening and the court dismissed the charges.  Sanchez was released after 125 days in pretrial custody.

Sanchez sued under 42 U.S.C. §1983, alleging that the detectives “used a confession that they knew was untrue” in violation of the Fourth Amendment.  The detectives asked the court to grant qualified immunity, arguing that malicious prosecution claim may only be brought against a prosecutor, not investigating officers, and noting that multiple judges had found probable cause to hold Sanchez.

The court of appeals made quick work of the detectives’ theories.  The court plainly stated that officers—not just prosecutors—may be held liable for malicious prosecution (and the ensuing wrongful detention that constitutes a Fourth Amendment seizure).  The court stated “that the prohibition on falsification or omission of evidence, knowingly or with reckless disregard for the truth” was clearly established at the time of Sanchez’s false confession.  Sanchez v. Hartley, 2016 WL 106168 (10th Cir. 2016)

Murder confession prompted by promises held inadmissible

Fingerprints on a newspaper found in the taxi van of a murdered cab driver lead police to Jasso.  Investigation of Jasso and his associates prompted officers to interview Perez some months after the murder.  During the interview, Perez repeatedly denied any knowledge of, or involvement in, the crimes. 

About 25 minutes into the interview, an investigator told Perez, if he would “tell the truth and be honest,” then “we are not gonna charge you with anything.”  The investigator also told Perez that he was either “a suspect that we are gonna prosecute” or merely a witness. 

The investigators falsely told Perez that they had fingerprint and security camera video showing Perez’s involvement at the murder scene.  They told Perez that he would “go home at the end of the day” and would eventually “chalk this up to a very scary time in [his] life.”

The investigators did not detain Perez after the interview.  However, five months later, Perez was charged with murder.  Perez asked the trial court to suppress his statements as involuntarily given.  He claimed that he spoke only because of an express or clearly implied promise of leniency or advantage to him.  The prosecution claimed that Perez was treated well by investigators and he was intelligent, rested and fed at the time of his statements.

The trial court denied his motion to suppress his statements.  The court of appeals reversed.  Citing state and federal court precedent, the court observed that a confession is invalid if it is prompted by an officer’s express or clearly implied promise of leniency and the promise motivated the suspect to make a statement.  It did not matter that Perez was smart or that he was rested and fed at the time of questioning. 

The court’s focus was on the nature of promises made by the investigators.  Prosecutors argued that Perez should have recognized that the promises meant that he would not be charged “at that time” and that the final charging determination is always up to a prosecutor.  Nonetheless, the court held, the investigators’ promises were “unqualified.”  The court held that “no reasonable person would understand [the] unqualified promise not to charge Perez as meaning” that he would not be charged “on the day of the interview.” 

The court reversed Perez’s conviction and vacated his sentence.  If he is retried, the prosecution will be barred from using any of his statements given during the interview.  People v. Perez, 2016 WL 104712 (Cal. Ct. App. 2016)