A woman called the Albuquerque Police Department complaining that she heard a female neighbor yelling at a young child and beating the child in the neighbor’s back yard. She did not see anything due to a high fence.

Officer Debra Romero responded to the residence. Joseph Lundstrom answered the door. Lundstrom requested identification. Romero pointed to her badge. Romero ordered Lundstrom and his girlfriend, Jane Hibner to leave the house. Lundstrom asked why she was present and told her there was no child in the house. She pulled her gun. ¹ Hibner, the only other person in the house got between Lundstrom and Romero. Romero continued to point her gun at Hibner for a short while. Hibner left the house and was handcuffed by the officers. Lundstrom called 911 to assure himself of Romero’s identity. The operator assured him that Romero was an officer and asked him to exit the house. He did so with his hands raised He was handcuffed injured, and put in the police car. The police searched his house. No child was found. They were released without charges and sued for violations of the Fourth Amendment.

The police filed a motion for summary judgment which was granted and appealed. The defendants claimed that they had qualified immunity. Peace officers have qualified immunity against a civil rights suits unless the plaintiff can show that their constitutional rights were violated and that such rights were clear at the time of the incident. The Tenth Circuit has ruled that for a right to be clear it must be supported either by Tenth Circuit or U. S. Supreme Court precedent. In order to win the plaintiffs had to show that their constitutional rights were violated and that the state of the law was clear at the time of the incident. The Tenth Circuit ruled that the initial detention and the use of the gun was legal. While it was a search it was reasonable in light of the officer’s fear. Checking on the welfare of the child is part of the officers functions “community caretaking functions.” The officer pulled the gun in order to check on the item in Lundstrom’s hand which was a phone not a gun. But the court found that the handcuffing of Hibner, the surrounding of the house, the order for Lundstrom to exit the house, the handcuffing of Lundstrom were clear violations of the law supported by United States Supreme Court and Tenth Circuit precedents and therefore the claim of qualified immunity fails and the lower court decision was reversed. The Tenth Circuit relied upon the lack of probable cause to arrest them and the lack of reasonable suspicion to detain them. The original call said that a woman (and therefore not Lundstrom) was abusing the child. Prior to handcuffing Hibner the police had a chance to verify any suspicions by questioning her and they did not. Also they found no evidence that a child was in the house. When the original caller was told that there was not a child in the house she admitted that she may have been wrong about the location but the police continued to detain Lundstrom and Hibner.

The Fort Wayne Police Department received a tip that drugs were being sold at the residence of Michael Chapman. Chapman was on electronic monitoring in lieu of a jail sentence. In order to get the electronic monitoring he waived his rights against unreasonable searches under the Fourth Amendment. Therefore a police task force went to his house to search it. Two officers knocked at the front door and two more surveilled the back door. After the officers started knocking on the front door, Eddie Lamar Carlyle ran out the back door with a backpack.

The officers handcuffed him and seized the backpack. They found marijuana, crack. a scale, a spatula and packaging materials in the backpack. After he was arrested Carlyle moved to suppress the evidence as being seized without probable cause. The trial court denied his motion on the grounds that he did not have standing to object to the seizure. At the hearing on the motion he denied that he owned the backpack. He testified that the backpack belonged to Chapman asked him to put the backpack in the garage.

The Court denied his motion saying that he did not have standing. In determining whether a defendant has standing to suppress evidence the Seventh Circuit Court of Appeals looks at five primary factors:

(1) whether the defendant had a possessory [or ownership] interest in the thing seized or the place searched, (2) whether he had the right to exclude others from that place, (3) whether he exhibited a subjective expectation that it would remain free from governmental invasion, (4) whether he took normal precautions to maintain his privacy, and (5) whether he was legitimately on the premises.

He denied having an ownership interest in the backpack, but claimed to have a legitimate possessory interest in the pack since Chapman handed it to him. He exhibited the right to exclude other, except for Chapman. But at the same time he testified that he did not know what was in the bag. At the trial court hearing on the motion to suppress, Carlyle did not claim to have a subjective expectation of privacy in the backpack. Without such an expectation the appellate court ruled that he did not have standing to object to the seizure.

From the point of view of a trial attorney one needs to make strategic decision prior to filing a motion to suppress evidence. You need to make sure that your client has both a subjective and an objective expectation of privacy. You do not want to put your client on the stand to testify that he/she has possession of the contraband for the purpose standing if you plan to have your client take the stand at trial and deny a possessory interest in the contraband. Sometimes it is worthwhile to pass up a motion to suppress evidence in order to have a chance at trial. Once your client gets on the stand and admits to possession at the hearing on the motion to suppress evidence you lose your ability to negotiate the case and you set your client up for DA’s cross examination at trial.

In United States v. Naim Nafis Shakir, the Third Circuit Court of Appeals considered a search pursuant to a lawful arrest in a non-automobile context in the post Gant era. In Arizona v. Gant the Supreme Court clarified New York v.Belton. In Belton the Supreme Court ruled that in a vehicle search pursuant to an arrest officers could search the entire vehicle. But in Gant the Court ruled that since the purpose of a search pursuant to an arrest was to protect the officers such a search could only occur if the arrestee had access to the area to be searched. In other words once the arrestee is in a secure position there is no longer a need for a search. A search cannot be based upon the location of the arrestee prior to the arrest if the arrestee is now handcuffed and in the police vehicle for example.

In Shakir Pennsylvania authorities issued an arrest warrant for Naim Shakir for an armed robbery. The FBI found him in a Jersey City hotel. As they were arresting him, he threw down a bag. After he was arrested and handcuffed the agents seized the bag which was near Shakir’s feet and found a significant amount of cash in the bag. At trial he moved to suppress the bag. The appellate court ruled that the rule in Gant applies not only to automobile searches but to any search done pursuant to an arrest. It distinguished the case of Shakir from another case where the bag was dropped three feet away from the defendant. In that case once the defendant was handcuffed he did not have access to the bag, but with the bag being at Shakir’s feet and with handcuffs not always preventing injury to officers the court held that despite Gant the search was legal.

A confidential informant told the Kansas City Drug Task Force that Ishmael Kedar Harris was selling drugs in the Kansas City area. They saw him with a duffel bag driving a truck. After following him for a short distance they requested the Grandview Police Department to find a reason to stop Harris. After following him for a couple of blocks a Grandview officer stopped him for having a tinted driver’s license cover. Tinted license cover are legal in Missouri as long as the tag is clearly visible.

They asked for permission to search the vehicle. Harris told the officer that it was his girl friend’s car. They called the girl friend who refused to consent.

A drug dog was brought to the scene and signaled the presence of contraband. This gave the officers probable cause to search the vehicle. They found a gun and three pounds of marijuana. Using this information they got a search warrant for Harris’ house where they found 29.7 pounds of marijuana.

The statute says that the license plate must be “clearly visible.” The officer testified at the hearing that he had to get right up on the tale of the vehicle before he could read the tag. The judge found the officer credible and denied the motion to suppress the evidence.

The appellate court found that it was a question of credibility. Since the trial judge’s decision is not “clearly erroneous” the appellate court denied the appeal.

One issue that is not discussed in the decision is the length of the stop. The length of a traffic stop is limited to the amount of time it takes to handle the situation for which there is probable cause. In this case it would be limited to the amount of time it would take to give Harris a ticket for the license plate cover and to check his ID and warrants. Nothing is said in the decision but I wonder if the time it took to call the girl friend and to bring the dog to the site where the car was stopped exceeded the time necessary to give the ticked, check for his ID and warrants.

The District of Columbia Circuit Court of Appeals reversed Antoine Jones’ conviction for distribution of cocaine and cocaine base due to Global Positioning System (GPS) tracking of Jones’ vehicle without a search warrant.

Jones’ conviction was based, in part, on the use of a GPS tracking device which was attached to his vehicle for four weeks. The Court found that the failure to have a valid search warrant ¹for the use of the GPS device, violated Jones’ legitimate expectation of privacy, and therefore the Fourth Amendment.

In order to find that GPS devices require a search warrant the Court had to distinguish the use of GPS devices from the use of beepers in the Supreme Court’s decision in United States v. Knotts. In Knotts the Supreme Court ruled that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” In Knotts a manufacturer of chemicals used in the manufacture of methamphetamine alerted the police of suspicious sales. The manufacturer then at the urging of the police planted a beeper in a five-gallon container of chemicals purchased by Tristan Armstrong. The police monitored the progress of the car carrying the beeper, to Knott’s Wisconsin cabin. The Supreme Court found that since Armstrong’s vehicle could have been followed on the public streets by a police car the use of a beeper to assist the police did not violate the driver’s legitimate expectation of privacy.

The Circuit Court distinguished the use of GPS on Jones vehicle from the use of the beeper on Armstrong’s vehicle by the fact that the use of the GPS lasted around the clock for four weeks while the beeper was only monitored during a short ride from Minneapolis to the cabin in Wisconsin. But just as the police could have followed Armstrong’s vehicle on the public streets they could have followed Jone’s vehicle. The Circuit Court pointed out that it would be much more difficult to follow a vehicle for four weeks and that during a prolonged period one learns significant private details about a person’s life that one does not learn during a short trip. Also the Supreme Court in Knotts specifically did not decide what would happen in technological advances allow long term trailing of a vehicle.

However, I find it difficult to accept the supposition that a short term trailing of a vehicle is not a violation of a legitimate expectation of privacy and a longer term trailing is a violation. With the increased use of GPS the issue may well appear before the Supreme Court. The Circuits have split. The Ninth and Seventh Circuits, relying on Knotts, have found the use of GPS to not be a search. The Supreme Court has several options. It can find Knotts to be decisive or at least persuasive and therefore find that the use of GPS is not a “search” and therefore a search warrant is not necessary. It can accept the D. C. Circuit’s distinction based upon the length of the search or it can reverse Knotts.

A unique option would be to find the search illegal under state law and rule that illegally obtained evidence should be excluded. The placing of the GPS device on the vehicle was clearly a trespass and trailing the vehicle for four weeks is stalking. But the Supreme Court has never excluded evidence based upon a violation of state law.

In a multi-defendant prosecution for bank fraud the government informed the defendants that it planned to use statements made by co-conspirators, but not to call them as witnesses. The statements would come into evidence under an exception to the hearsay rule which allows the admission of statements made during the pendency and in furtherance of a conspiracy.

The defendants requested the complete notes taken during the proffers of those co-conspirators who’s statements the prosecution planned to use during trial. The trial court refused their request.

The Second Circuit upheld the ruling in United States v. Shyne et al. Under the Jencks Act which governs discovery of statements made by witnesses in a Federal criminal trial the government is required to provide statements made by a witness after the witness testifies but before cross examination. The Second Circuit held that since the Jencks Act does not mention non-testifying witnesses the proffers of the non-testifying co-conspirators is not discoverable.

But the Jencks Act is not the end of the question. Constitutional mandates trump the Jencks Act. The appellants raised Fifth and Sixth Amendment objections and of course the biggest exception to the Jencks Act is the Supreme Court Decision in Brady v. Maryland. In Brady the court ruled that due process requires the prosecution to provide the defense with mitigating evidence in the possession of the prosecution. The prosecution provided the defense with a letter listing the various mitigating factors for each of the co-conspirators. Assuming that the letter provides all the needed information, it does not help the defendants get the information into evidence.

The court did not discuss Rule 106 of the Rules of Evidence which states:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

How can a defendant move to admit the entire statement or know whether or not an entire statement has been entered if he/she is not given discovery of the entire proffer which is in the possession of the prosecutor?

Is the Sixth Amendment requirement of a fair trial met if the prosecutor has the entire proffer while the defense only has a summary of those parts the prosecutor wants to give him/her?

Sullivan & Cromwell

The Third Circuit Court of Appeals rejected a challenge to a search. The defendant claimed that the search exceeded the legitimate scope of the search warrant. In a methamphetamine case the defendant claimed that the police had no authority to seize a video when the warrant, authorized among other things the seizure of photographs in order to identify the residents of the home. The Third Circuit refused to decide whether the seizure of the videos exceeded the scope of the warrant.

Rather it upheld the search on the grounds that the admission of the video at trial, even if it was seized illegally was harmless error in that that there was overwhelming evidence of Anthony Joseph Tenerelli’s guilt on methamphetamine and gun charges regardless of whether the videotape was admitted or not. Among the other evidence admitted at trial was evidence about a controlled buy made by a “confidential reliable informant” from Tenerelli which was monitored by a police officer, approximately 100 grams of methamphetamine, drug notes in Mr. Tenerelli’s handwriting, a digital scale, drug packaging materials, a 9mm semi-automatic pistol, and 9mm ammunition. The gun and the methamphetamine were found near Tenerelli, in his living room, at the time of the search. The Court found that he would have been convicted regardless of whether the videotape was entered into evidence and therefore the conviction was valid even if the videotape was seized illegally.

The Supreme Court of Utah reversed the conviction of Warren Jeffs, the the leader and “prophet” of the Fundamentalist Church of Jesus Christ of Latter-day Saints. for aiding and abetting the rape of Elissa Wall for his role in the compelled marriage of the fourteen-year-old girl to her nineteen-year-old first cousin, Allen Steed.

Jeff’s father and predecessor as leader and “prophet” of the Fundamentalist Church of Jesus Christ of Latter-day Saints, Rulon Jeffs arranged the marriage of Wall to her 19 year old cousin. Despite Wall’s clear reluctance to marry her cousin Warren Jeffs, Wall’s teacher and religious instructor pushed her into marrying him and performed the ceremony. When she asked him for the equivalent of a divorce he denied it.

To convict someone for aiding and abetting a rape it first must be shown that the rape occurred. Rape is unconsented sex. At trial the prosecution argued that Wall was raped under three different sections of Utah’s consent law. The jury was instructed:

An act of sexual intercourse is without
consent of a person under any, all, or a combination of the following circumstances:
1. The person expresses lack of consent through words or conduct; or
2. The person was 14 years of age or older, but younger than 18 years of age, and the actor was more than three years older than the person and enticed the person to submit or participate; or
3. The person was younger than 18 years of age and at the time of the offense the actor occupied a position of special trust in relation to the person.

The Court and the District Attorney, in the rush to convict Jeffs for the high publicity crime confused the instructions regarding aiding and abetting and the underlying crime of rape. For example, the District Attorney argued that Jeffs was more than three years older than Wall when the law requires that the rapist (allegedly Steed) be three years older than the victim. Again, the instruction talks about a special relationship between the rapist and the victim but the District Attorney argued that there must be a special relationship (teacher and religious leader) between Jeffs and Wall. Throughout the trial the District Attorney seem to confuse Wall’s lack of consent to the marriage with the required lack of consent to sex with Steed.

Furthermore, in order to convict Jeffs it was necessary to show that he intended that Steed rape Wall. Yet nowhere in the trial was there evidence that Jeffs told Steed to rape Wall. At the marriage he told the couple to “go forth and multiply and replenish the earth with good priesthood children.” Jeffs was tried on two counts. The first involved the first time the couple had sex when it appears as if Wall did not give consent. The second was after she asked for a divorce and Jeffs told her to obey her husband. But it is not clear that he intended that Steed have unconsented sex with Wall.

The Supreme Court reversed the conviction and ordered a new trial.