A California court had the opportunity last week to explore some of the questions left open by the Supreme Court in Arizona v. Gant..

Vernon Evan was driving his car in Los Angeles. An officer pulled him over for weaving and ordered him to get out of his car. He refused. After several attempts to get Evans to leave the vehicle an officer broke his window and maced the inside of the vehicle. After getting Evan out of the car police searched the vehicle finding $65.00 and several clean baggies. ¹ After arresting him for interfering with an officer and impounding the vehicle, the officers discovered that during a prior arrest of Evans a gun was found in the air vent. The officers went to the impound yard and found cocaine in the air vent.

In Gant the Supreme Court ruled that a search of an automobile incident to an arrest can only occur if the arrestee is “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 offense of arrest.” The court held that under Gant neither the roadside search which occurred while the defendant was out of the car and under arrest nor the impound yard search was permissible and it reversed the cocaine related convictions. Obviously during neither of the searches was Evans within reaching distance of the passenger compartment of the vehicle. The second Gant prong is a little more difficult since the Supreme Court did not did not define what it meant by the phrase “reasonable to believe” that the vehicle contained evidence of the offense. But the court found that there was nothing innate in the charge of interfering with an officer or in the facts of the case that would read an officer to have a “reasonable suspicion” that physical evidence of the crime would be found. Therefore it reversed the trial court’s denial of Evans’ search motion and remanded the case to the trial court.

Stephen Digiovanni rented a car in Fort Lauderdale, took the autotrain to Washington D. C and drove towards his home in Boston. Driving on I-95 in Maryland, he was stopped by Trooper Chrisotpher Connor for following the car in front of him too closely.

Connor noticed that Digiovanni was somewhat nervous. Furthermore, the car was clean, shirts were hanging in the back without a clothing bag and there was a hygiene bag in the back seat. All of these things he claimed gave him a reasonable suspicion that Digiovanni was a drug trafficker.

While he immediately asked for Digiovanni’s driver’s license and the rental car contract, he did not begin the computer check of the license until over ten minutes after the original stop. During this time he concentrated his investigation on narcotics, asking numerous questions none of which provided answers that indicated a reasonable suspicion of trafficking.

Digiovanni gave consent to a search of the vehicle but was unable to open the trunk. Before Connor searched the interior of the vehicle he wrongly told Digiovanni that he could not revoke his consent. During the search of the interior of the vehicle Connor found 34,091 oxycodone tablets.

Digiovanni’s motion to suppress the pills and some of his statements was granted and the government appealed to the Fourth Circuit Court of Appeals.

Prior to detaining someone an officer must have a reasonable suspicion of criminal activity. The detention is limited to the length of time necessary to dispel the officer’s suspicion. The scope of the investigation is limited to investigating the events that lead up to the stop. If an officer determines during the investigation that there is a reasonable suspicion of other crimes the officer may extend the detention. But an officer may not extend the scope of the investigation beyond the original reason for the investigation unless the officer has a reasonable suspicion and that reasonable suspicion is developed during the time the officer needs to carry out a diligent investigation of the original reason for the detention.

There is no question Connor had a reasonable suspicion to stop Digiovanni. The trooper’s vehicle was equipped with with a video camera and it showed Digiovanni following closely behind the car in front of him. But the length and the scope of the detention exceeded what was necessary for a diligent investigation and preparation of a warning ticket. The court found Connor’s belief that the lack of a clothing bag for Digiovanni’s shirts irrelevant to the finding of a reasonable suspicion and bordering on the absurd. Likewise, it found his reliance on the clean car and the presence of the hygiene bag to be “absurd.” While an officer may ask questions unrelated to the original stop if it does not delay the investigation the court found in this case the focus of the detention was not on the traffic citation but rather on a narcotics investigation for which there was no reasonable suspicion and it upheld the district court’s suppression order.

What do we learn from this case. First that offices can post hoc claim that any fact is a reason to support an arrest or search. Unless officers are stopped this will lead to the dissolution of the Fourth Amendment. Second that people talk to much. Digiovanni should have given the officer his driver’s license and rental contract. On further questioning he should have said. I don’t want to talk any more. May I leave?

The Massachusetts Supreme Court ruled that as a result of decriminalization of marijuana the odor of burnt marijuana emanating from a car does not provide probable cause to search the vehicle or a reasonable suspicion to detain the people in the vehicle. Nor does it provide a basis for officers to order a passenger to exit the vehicle.

Benjamin Cruz was seated in the front passenger seat of a friend’s car. The friend was in the driver’s seat and it was parked illegally in front of a fire hydrant.

Two officers drove up to the vehicle and questioned the driver about parking in front of the hydrant. The driver explained that he was waiting for his uncle who lived nearby. The officers saw the men in the car smoking a cigar known for covering up the smell of marijuana. They got out of the car and smelled a faint odor of burnt marijuana.

The driver appeared “very nervous, had trouble breathing’ and ‘it almost looked like he was panicking.” ¹ The driver admitted to smoking marijuana earlier in the day. The officers saw no contraband or weapons.

The officers ordered backup vehicles and ordered the passengers out of the car. As Cruz exited the vehicle the officers asked him if he had anything on him. He replied, “a little rock for myself” One of the officers retrieved approximately four grams of rock cocaine from Cruz’s pocket and arrested him.

The officers had every right to approach the vehicle parked in front of a fire hydrant. But in order to extend the traffic stop beyond the time necessary to deal with the parking issue there must be specific and articulable facts of criminal activity. Under Massachusetts law possession of under an ounce of marijuana is a civil violation, not a criminal act. Therefore a reasonable suspicion did not exist that a crime had been committed. To order a passenger out of a car during a traffic stop, under Massauchusetts law, one of three reasons must exist:

First, an exit order is justified if “a reasonably prudent man in the policeman’s position would be warranted in the belief that the safety of the police or that of other persons was in danger.” . . . Second, the officers could have developed reasonable suspicion (based on articulable facts) that the defendant was engaged in criminal activity separate from any offense of the driver. . . .Third, the officers could have ordered the defendant out of the car for pragmatic reasons, e.g., to facilitate an independently permissible warrantless search of the car under the automobile exception to the warrant requirement.

The court found none of these to be applicable. There was no evidence of danger or separate criminal activity and a search can only be for criminal activity, not solely for contraband. ²

In Gant v, Arizona the Supreme Court ruled that without probable cause to search a vehicle an automobile could not be searched in a search incident to a legal arrest once police removed the occupants from the car.

Yesterday the Ninth Circuit upheld the search of a vehicle and of folded up money found in the car based upon probable cause. Los Angeles County Sheriff Deputy Jeffey Dokie stopped a car driven by Sandra Vera for having an expired registration, There were two passengers in the car, Michael Smith and Shawn Ewing. Smith was on parole. After finding out that Smith was on parole Doke noticed folded up currency in the weatherstripping of the right front door. Ewing was acting nervous and he talked fast indicating that he was on drugs. Doke thought that the attempt to hide the money was indicative of a drug courier. Doke decided to search the car and he seized and unfolded the currency. Upon examination he determined that the money was counterfeit. Ewing admitted to manufacturing the money.

After he was arrested he moved to suppress the money. Specifically he wanted to suppress the officer’s observations after he unfolded the money. The court found that while he did not have a privacy interest in the vehicle and therefore could not move to suppress evidence found in the car, he did have a privacy interest in the money and therefore had standing to move to suppress the money. He argued that while the officer may have had probable cause to search the vehicle, the unfolding of the money was a separate search requiring a separate finding of probable cause.

However the court found that Ewing’s nervousness, the attempt to hide the money, and Ewing’s apparent drug intoxication gave the officer probable cause to search the vehicle. Since the money was the subject of the search, probable cause to search the vehicle included probable cause to unfold the money and search it. A separate finding of probable cause was not needed and therefore the trial court was correct in refusing to suppress the evidence.

Stiven F. Polanco was convicted in the District Court for Rhode Island of various heroin and weapons charges. He appealed alleging inter alia ¹violations of the Fourth Amendment.

David Contreras made a number of heroin sales to an undercover agent. ² Each sale occurred as the same mall in Providence. Polanco was present at the sales and drove Contreras to the mall in Polanco’s red Toyota Camry.

Finally the task force decided to arrest them but it was afraid to do so at the mall since someone might get hurt. The agents moved the plans for the final sale to a parking lot in Warwick. They arrested and searched Contreras and Polanco, but they did not find anything. Then they searched the vehicle, finding a hidden compartment with heroin and a gun.

After they were indicted Polanco challenged the search, citing Gant v. Arizona. One of the exceptions to the Warrant requirement is for searches performed incident to a lawful arrest. In Gant the Supreme Court limited the exception where an automobile is searched to searches where the arrestees have access to the vehicle and can destroy evidence or where it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” But what Polanco ignored was that the search was not justified by the search incident to a legal arrest exception to the search warrant requirement. Rather it was justified by another exception. Under the automobile exception, an automobile can be searched anytime there is probable cause to believe that evidence of a crime will be found in the vehicle. ³ Since automobiles are mobile the courts feel that it is not reasonable to make law enforcement officers get a warrant while the car may be driven away.

The appellate court had no problem finding that the agents had more than sufficient evidence for a finding of probable cause to search the vehicle. Not only was Polanco present at the time of the sales, but his car was used. Contreras and Polanco made numerous calls to each other around the time that Contreras was arranging each sale. An expert testified that someone who was not involved in the sale would probably not be allowed to be present and that after the sale Contreras and Polanco appeared to examine an unknown item together. This, according to the First Circuit Court of Appeals easily provided probable cause.

Andre Johnson was convicted of possession of a gun by a convicted felon, possession of cocaine and possession of a weapon in connection with a drug offense.

An undercover officer, Jason Bolte, parked his car in a high crime area on the west side of Cincinnati. A car with three people in it pulled up and parked behind him. A passenger wearing a gray hooded sweatshirt got out of the car and made a transaction, trading money for a couple of small piece of a white substance. Bolte called for uniformed officers to make the arrest. Johnson, no longer wearing the sweatshirt, attempted to flee when the officers tried to perform a pat shirt on him. An officer used a taser on him. He fell to the ground revealing a gun in his waistband. He was arrested. The car was searched. The sweatshirt was found. Crack and powder cocaine were found in its pockets.

After he was indicted he moved to suppress the evidence found in the vehicle. The Court ruled that the original detention was a valid Terry stop. In Terry v. Ohio the Supreme Court ruled that an officer could temporarily detain an individual if he/she had “a reasonable suspicion, supported by articulable facts, that criminal activity has occurred or is about to occur.” Based upon Bolte’s observation of the crack purchase the officers easily had a reasonable suspicion. Finding the gun gave the officers probable cause to arrest him. ¹ An arrest would provide probable cause to search Johnson. To search the vehicle they would need probable cause to believe that they would find evidence in the car. Since Johnson was in custody and could not obtain a weapon from the car. But they had probable cause to believe that the gray sweatshirt was in the car and the court felt that they had probable cause to look for ammunition.

During the trial Johnson complained to the judge that his lawyer had not properly told him about the possible consequences of a conviction and that if he had known he would have accepted the proffered plea bargain. The judge said “Mr. Johnson, you’re the person in this room with felony convictions and that makes your credibility suspect. I know [your attorney] to be a capable, talented, honest attorney whose intentions are always to represent his client to the best of his ability.” The Sixth Circuit while admitting that the statement might not be appropriate did not find it to violate the Constitution or to mandate a reversal of the conviction. The Court refused to hold a hearing on whether the lawyer was providing incompetent counsel. To provide incompetent counsel the lawyer must not only act in a way that competent counsel would not act but the lawyer’s actions must result in injury to the defendant. Since at the time of the request, the trial was in progress the judge refused to hold a hearing since she did not know the effect of counsel’s actions on the conclusion of the trial. Therefore the appellate court found no error on the part of the trial judge and it pointed out that Johnson could file a writ of habeas corpus challenging the lawyer’s representation.

A defendant has an absolute right to testify or not to testify at his/her trial. When the judge found out that Johnson planned to testify she asked Johnson’s attorney if he had gone over the possible consequences of Johnson testifying with Johnson. (If the lawyer was so great–see above, the judge should have assumed that the lawyer as any decent lawyer would have done had gone over the possible consequences with Johnson.) She then told Johnson that if he testified the U. S. Attorney would be allowed to cross examine him about the details of his prior conviction. She then called a recess so Johnson could talk the matter over with his lawyer. On appeal Johnson claimed that the judge’s lecture scared him into giving up his right to testify. The appellate panel disagreed saying that the judge was merely explaining his rights to him so that he could make an intelligent choice and upheld his conviction.

In another Seventh Circuit case involving a sexual predator the Court affirmed the conviction of Eric D. Zahursky. Zahursky repeatedly contacted “Shelly” (United States Secret Service Special Agent Ryan Moore) who claimed to be 14 on an adult chat line. Eventually they made arrangements to meet for sex at a Starbucks in Valparaiso, Iowa.

During the chat room discussions “Shelly” asked Zahursky to bring condoms, and K-Y jelly . When Zahursky arrived at the Starbucks he was arrested by Moore while another agent searched his car. In the car the agent found the condoms, the jelly and directions from Zahursky’s Illinois house to the Starbucks. On appeal Zahursky challenged the search. The Court found it to be a valid search under the automobile exception to the Fourth Amendment’s warrant requirement. The automobile exception started with The Supreme Court’s decision in Carroll v. United States It allows for a search of any vehicle for which there is probable cause that evidence of a crime will be found due to the mobility of the vehicle and the decreased expectation of privacy in a vehicle. The Court found that there was probable cause that the condoms, the K-Y jelly and other evidence of interstate travel (an element of the offense) would be found in the vehicle and therefore the search was legal even though it started before it was discovered that the K-Y jelly and the condoms were not in Zahursky’s pockets.

Another issue on appeal was the admission at trial of evidence of Zahursky’s other contacts with juveniles on chat lines and the use of a witness called “SS” who Zahursky lured into have sex five years prior to the trial when “SS” was fourteen. The appellate court found the evidence appropriate. Evidence cannot be admitted solely to show bad character or a propensity to commit a crime. But the appellate court found that the trial court admitted the evidence under Rule 404(b) of the Federal Evidence Code. Under Rule 404(b) evidence is admissible if

(1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged;
(2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue;
(3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and
(4) the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice.

The appellate court found that the evidence was admissible to show knowledge, motive, and intent. The chat line evidence shows Zahursky’s interest in juvenile sex and therefore is admissible to show his motive in contacting “Shelly.” The numerous discussions on the chat line indicating the girls’ ages is admissible to show lack of mistake.

Zahursky argued that the chat line evidence should be excluded because the probative value of the evidence was substantially outweighed by excessively prejudicial details. But the court did not find that the chat line evidence was unduly prejudicial because Zahursky was unable to prove that as a result of the evidence the jury decided the matter on emotional grounds.

Finally the appellate court remanded the matter to the trial court for resentencing since the trial court erred in enhancing the sentence under the Federal sentencing guidelines for unduly influencing a minor. Based on Seventh Circuit precedent the court found that the enhancement was not appropriate when the “minor” is an agent.