Guam is a United States territory and it comes under the jurisdiction of the Ninth Circuit Court of Appeals. The Court, sitting in Hawaii, heard United States v. Cha. It held that a 26.5 hour seizure of a residence pending the obtaining of a search warrant unconstitutional and as a result it upheld the suppression of evidence found in the house.

On Saturday evening, January 12, 2008 police officers arrived at the Blue House Lounge in Tamuning, Guam to investigate a complaint made by Sonina Suwain, a resident of Chuuk that the owners had seized her passport and were holding two of her female cousins against their will. The officers found one cousin waiting tables and the other in a hospitality room with a male patron. After interviewing the cousins Song Jaw Cha (Ms Cha) was detained on prostitution related charges. The officers did a walk through of the lounge and Ms Cha’s attached home, finding her husband in bed. They interviewed customers and ordered that the place be closed. The Chas were taken to the precinct at 1:00 Sunday morning and Ms Cha was arrested at 6:00 am. At 8:00 am Mr. Cha returned to his house but he was not allowed to enter. At 12:45 pm his lawyer arrived The lawyer returned at 2:45 and asked that Mr. Cha be allowed to retrieve his diabetes medication. The police did not allow him to get the medication until 7:00 that night. The lawyer left at 1:00 Monday morning.

At 9:20 Sunday morning Officer Perez was asked to come into work at noon for a briefing. During the briefing he was asked to prepare a search warrant affidavit. He waited for reports and started working on the affidavit at 6:30 Sunday evening. He worked until 4:00 am. He went home and returned at 7:50 Monday morning. At the request of the chief prosecutor he ran the warrant by him and presented it to a magistrate at 10:25 Monday morning. The search was not begun until 2:00 Monday afternoon and it was not completed until 1:00 Tuesday morning, when Mr. Cha was allowed to enter his house.

The court found that the officers violated the law by taking too much time to process the warrant request. In Illinois v. McArthur the Supreme Court listed four factors that must be considered in determining the constitutionality of a detention of a home prior to a search. First, they must consider the existence of probable cause. This is not disputed. Second, whether the police had good cause to fear that evidence would be destroyed. There was no reason to believe that evidence would be destroyed. Third, whether the police made reasonable efforts to meet the privacy needs of the residents. Evidence to the contrary is the refusal for four hours to provide Mr. Cha with his medication. Finally whether the police acted reasonably and with diligence in obtaining the warrant. The court found numerous unnecessary delays including Perez’s late appearance on the scene, the time that passed between his appearance and his beginning to work on the affidavit, and the time he took off in the early morning.

The Court found that the failure to suppress the evidence would allow law enforcement officers to spend an indefinite amount of time prior to the preparation of a search warrant without any repercussions and that suppression would accommodate the goal of suppressing illegally seized evidence in that it would deter future “deliberate, reckless or grossly negligent conduct.” The Court pointed out that it was a violation of the law and not a violation of fact and that the police should be aware of the law.

Monday, Bob Herbert had some scary statistics in his New York Times column. He pointed out that that between 2004 and 2009 New York City police detained nearly three million people, frisking many of them and inputting their names into a massive computer file.

Less than fifteen percent of those searched had committed any crime or were in possession on of contraband. To compound the problem the vast majority of those searched were members of minorities. African Americans were stopped 1,444,559 times. Hispanics were stopped 843,817 times and whites were stopped only 287,218 times.

Were the stops legal? If the people stopped gave consent to the search they were legal. Why anyone would give consent I don’t know. I always tell clients to tell any police officer that attempts to search them that they are not giving consent. I doubt this stops many searches but maybe it makes an officer think twice before committing an illegal search. The Constitution is clear that people do not have to give consent. But many people, particularly aliens and minorities believe that if a police officer asks them for permission to search they have to give it.

Also those on parole or probation often have a search clause requiring them to permit peace officers to search them.

But in many other cases they are not legal unless the police have a reasonable suspicion that the person is involved in criminal behavior. This only permits a detention. To frisk the person the police must additionally have a reasonable suspicion that weapons will be found.

Individuals illegally searched have the right to sue but generally there is not enough money involved to find an attorney who will take the case.

The best solution would be to have all detentions and searches recorded on video tape. But this is rarely done. This could lead to disciplinary acts against police officers who illegally stop and frisk citizens. It would also make it easier to sue the officers and the police departments for illegal searches and detentions. It would, of course, also make it easier to convict those who are guilty and to justify legal searches. But police departments either don’t have the money for cameras or they are afraid of the outcome.

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The Fourth Amendment to the Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Generally the exclusionary rule prevents the admission of seized evidence, the seizure of which does not comply with the Fourth Amendment. But the Supreme Court decided in Leon that evidence seized pursuant to a search warrant that failed to comply with the Fourth Amendment was admissible as long as the officers seizing the evidence acted in good faith.

In United States v. Henderson the Tenth Circuit upheld the admission of child pornography, though the search warrant for the computer failed to comply with the Fourth Amendment. The affidavit supporting the search warrant stated that Special Agent Robert Leazenby received information that a computer with a particular Internet Protocol located at the residence of Harold G. Henderson downloaded and shared two videos each of which had a secure hash algorithm (a digital fingerprint) value associated with child pornography. But the affidavit failed to mention how Leazenby found out this information. Therefore the information was not sufficiently valid to meet Fourth Amendment requirements. But in any case since Leazenby acted in good faith in serving the seach warrant in that the search warrant was not devoid of factual support for the finding of probable cause, the evidence was admissible.

Jermario Taylor was driving his GMC Yukon when he was pulled over by Special Agents Dustin Brown and Jeff Martin for driving without a seatbelt. Now Brown and Martin were not any two cops. Rather they were with the Kankakee Area Metropolitan Enforcement Group, a drug task force located in Kankakee County, Illinois. When they stopped Taylor, do they give him a ticket and leave. No they ask to search his vehicle. when Taylor asks if he must give consent, Brown and Martin say no but we just so happen to have drug sniffing dogs in our vehicle and we will have them take a sniff around your car. We would not be talking about it if the dogs didn’t find drugs. They did and Taylor was eventually sentenced to 120 months in prison and eight years of supervised release for possession of crack cocaine with the intent to distribute it.

Of course Brown and Martin say that they ask everyone they stop for traffic violations if they can search their vehicle and use the dog if they find resistance. They were just lucky. Well if you believe this . . . I have a bridge to sell you. My bet is that they recognized Taylor and used the lack of seat belts as a pretext to stop him. Also while I do not know Taylor’s race I’d be willing to bet that he is African American and that he would not have been stopped and searched if he was White.

But the Seventh Circuit says, never mind, it doesn’t make any difference. As long as Brown and Martin had probable cause to believe that Taylor was driving without seatbelts in place, the vehicle can be stopped and the dogs can sniff for drugs. The intent of the officers is irrelevant.

The obvious question is why have a Fourth Amendment? Any time anyone drives police officers, if they follow you for long enough, will find probable cause to stop you. If its not the seatbelts, you cross the white line, or go one mile over the speed limit. I can’t believe that James Madison and George Mason would have approved of such a pretextual search when they wrote the Bill of Rights. I suspect they would have been quite upset if the British had used such a pretext to search a wagon load of guns covered with hay heading towards Lexington for use by the revolutionaries. But this is the twenty-first century where we are fighting a war against drugs and the ends justify the means.

The Eighth Circuit Court of Appeals upheld the conviction and 180 month sentence for possession of a firearm by a convicted felon in United States v, Kelley

Kelley was convicted after a bench trial in the District Court for the Western District of Missouri of possession of a firearm by a convicted felon. Two burglars were interviewed by the Greene County Sheriff’s Department. They admitted being involved in a string of burglaries and said that stolen guns could be found at the residence of Karlin Kelley. They called the residence and spoke to Kelley’s sister Tanya. Tanya told the burglars and Sergeant Stanley that the weapons were indeed at the house and she invited the officer to come over and get them. When Stanley and a number of other officers arrived Tanya invited them into the house and Kelley gave them written permission to search the house.

Kelley told the officers that the weapons were in a shed behind the house and he showed them the way to the shed.They seized the weapons. He was interviewed on at least two occasions and read his Miranda rights. He told the officers that the weapons were brought to his house and he agreed to keep them until sometime when they could go hunting without the kids there. Since he was a convicted felon and not allowed to possess guns in his house he put the guns in the shed.

On appeal, two issues were raised, the legality of the search and the denial of Kelley’s motion for judgment of acquittal at trial.

As to the motion to suppress, the court found that Kelley gave valid consent to the search. Kelley argued that his consent was a fruit of Tanya’s permission to enter the house and that she was coerced into doing so by the officer’s statements that he did not want another Waco, that he did not want anyone to get hurt, and that he did not want anyone else to raise her children. But the court found that there was sufficient evidence that the consent was given voluntarily. Tanya testified at the suppression hearing that she would have let the officers in without the threats. Therefore the court found that the permission was voluntary.

Furthermore the court found that there was sufficient evidence that Kelley knowing possesed the firearm. Possession can be either constructive or actual. “[C]onstructive possession requires knowledge of an object, the ability to control it, and the intent to do so.” The court found that there was sufficient evidence of constructive possession. Kelly admitted that he knew the guns were in the shed. In fact he moved them from the house to the shed. Furthermore he planned to go hunting with them.

The lesson for Karlin Kelley, and everyone else, particularly if you are suspected of a crime is not to talk to the police and not to give consent to any search. Anything you say MAY and WILL be used against you.

But, 180 months seem like a long time to spend in prison for holding on to the guns. The court said it reviewed the records and found the sentence to be legal.

The Ninth Circuit Court of Appeals upheld the blanket search of all inmates entering general population at the San Francisco County jails. In Bull v. San Francisco the court reversed a twenty-five year policy and allowed the Sheriff’s Department to strip search all inmates entering general population without an individualized suspicion or probable cause.

The District Court denied the sheriff’s request for partial immunity finding that the searches violated the Fourth Amendment and that the law was clear at the time of the searches. While stating that inmates do not give up all of their Fourth Amendment rights when they are incarcerated, the court found that inmate’s rights must be subject to the administrative and security needs of the institution.

However, the Ninth Circuit reversed alleging that Supreme Court precedent allowed the searches and required the courts to give deference to law enforcement officers in the area of inmate and deputy safety. Considering the problems that the San Francisco jails had with contraband entering the jail the court determined that the search policy was not unreasonable and therefore it did not violate the Fourth Amendment.

The dissent points out that the searches are not reasonable. Among the defendants challenging the searches is one who is charged with pour fake blood during a demonstration and another who is charged with writing bad checks. Furthermore only a small percentage of those who enter the jail bring contraband with them. The long history of litigation in the Ninth Circuits and most of the other circuits has upheld the need fior an individualized evaluation and not the blanket acceptance of strip searches accepted by the majority opinion.

James L. Green was convicted in Georgia State Courts of rape and related offenses involving two sexual assault on different victims. He appealed and eventually filed an in pro per petition for habeas corpus in the Eleventh Circuit Court of Appeals.

One of the issues was the incompetence of counsel. Green argued that his counsel was incompetent for failing to move to suppress DNA evidence. The Court ruled that even though counsel should have moved to suppress the evidence due to misstatements in the affidavit supporting the search warrant, Green was not prejudiced by counsel’s failure since there was more than enough evidence to convict him even if the DNA evidence had been excluded. The victim testified that she knew Green prior to the attack and she recognized him when he raped her. Therefore counsel’s incompetence did not prejudice Green and the conviction was upheld with the exception of the aggravated sodomy conviction.

Under Georgia law aggravated sodomy is “any sexual act involving the sex
organs of one person and the mouth or anus of another that is committed with
force and against the will of the other person.” The only evidence to support the charge was one of the victim’s testimony that

while threatening her with a knife, Green forced her to perform oral sex on him and to lick his anus. She further testified: “He pushed me down on the bed and
raped me.

The court found this to be insufficient, as a matter of law, to convict Green on the charge. The jury could not assume based upon this testimony that Green’s penis touched the victim’s anus. Therefore the conviction on this count was reversed.

In United States v. Johnson the Third Circuit Court of Appeals upheld the Terry search of Anthony Johnson and affirmed his conviction for possession of a weapon by a convicted felon.

Tammy Anderson a resident of Harrisburg, Pennsylvania called 911. She told them that she saw a white taxicab pull up next to a van across the street from her residence. She said she saw two men get out of the taxicab and she heard a shot. It was too dark to get a decent description of the men but she saw the cab and it had a green light on top. She told the operator her name and telephone number. She described the lot across the street. She told the operator when the the taxicab left and the direction it was going.

Officer John Doll arrived at the lot across the street from Anderson’s house before Anderson got off the phone with the 911 operator but after the taxicab left. He quickly found the taxicab and developed eye contact. However he waited until other officers arrived to stop the vehicle.

For the safety of the officers they took out their guns and ordered Anthony Johnson and the driver of the taxicab, Kenneth Cobb, out of the taxicab and handcuffed them. A revolver with two spent shells was found in the back seat near where Johnson had been sitting.

In analyzing a Terry stop the courts follow a two step process, First they look at the initial stop and then they look at whether steps following the stop were limited to discovering a weapon.

The court found that Anderson provided sufficient information to allow Officer Doll to stop the taxicab and that the searches were appropriate since Anderson’s claim that she heard a gun shot was credible and the safety of the officers demanded the search.

However, I would like to concentrate for a moment on Kenneth Cobb. Apparently he was not arrested. But he was ordered out of the vehicle, handcuffed and searched. When Officer Doll and his colleagues pulled over the taxicab they had a reasonable suspicion that someone in the vehicle had shot a gun. Both Johnson and Cobb had prison records so it was presumably illegal for either one to be in possession of a gun. But Terry says:

At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized.

Anderson only heard one gun. Officer Doll only had a reasonable suspicion that one of the men was “armed and dangerous.” So it is equally possible that either Johnson or Cobb had the gun. Thus does that give Officer Doll the right to search both men or neither man?

Chad Allen Mutschelknaus lost his appeal in the Eighth Circuit Court of Appeals. He challenged the denial of his motion to suppress evidence after he was arrested for child pornography. He raised two issues on appeal. First, he claimed the affidavit supporting a search warrant for his girlfriend’s house was insufficient to show probable cause. Second, he challenged an order by the trial court giving the police 60 days to examine a computer seized during the search.

Police traced the sending of pornographic pictures to “Aronechee,” in Alaska. They obtained permission from “Aronechee” to use his online identity. They tracked a receiver’s Internet Protocol address to Mutschelknaus’ girlfriend. Then they emailed Mutschelknaus claiming to be “Aronechee.” As “Aronechee,” they told Mutschelknaus that “Aronechee” had lost all of his photographs and they asked Mutschelknaus to return copies to “Aronechee”. Mutschelknaus sent “Aronechee” the 236 pictures he had received in his last batch.

Mutschelknaus was arrested. He was charged with possession and distribution of child pornography. He entered a conditional plea to possession of child pornography, allowing him to challenge the search. He was sentenced to 63 months.

Immigration and Customs Enforcement Special Agent Arel filed an affidavit for a search warrant of Mutschelknaus’ girlfriend’s house in which he stated his experience with child pornography and described some of the pictures but he did not attached the pornography to the affidavit. He also asked that law enforcement be given 60 days to study the hard drive of the computer.

The appellate court found that the description of the pornography, in light of Arel’s expertise and training in the field, was sufficient for a finding of probable cause. Rule 41 of the Federal Rules of Criminal Procedure requires that the search warrant be served within ten days of the judge signing it. Mutschelknaus argued that giving law enforcement 60 days to examine the hard drive violated Rule 41. The U. S. Attorney argued that Rule 41 did not cover acts commited after the serving of the warrant. The appellate court found, that in any case, a violation of Rule 41 only results in suppression if the defendant show prejudice and none was shown.

The Ninth Circuit denied an appeal by the Coronado, California Police Department and Officer Brian McPherson from a denial of a summary judgment motion in a 42 U. S. C. 1983 action by Carl Bryan after McPherson used a taser on Bryan during a stop for failure to wear a seatbelt.

The defendants moved to dismiss the action claiming qualified immunity. The court refused to dismiss the action finding that use of the taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.

One day in the summer of 2005 McPherson stopped Bryan for failure to have his seatbelt on. He ordered Bryan to pull his car over to the curb and to turn down his radio. After first blankly staring ahead Bryan complied with the order. There is some question about what happened next. McPherson says he ordered Bryan to stay in the car. Bryan said he did not hear McPherson and and he got out of the car. McPherson claims that Bryan took a step towards him but the physical evidence showed that Bryan was fifteen to twenty five feet away from McPherson and not facing him. McPherson then shot Bryan with his taser causing hospitalization.

When a motion for summary judgment, based on qualified immunity, is denied on appeal the court must determine whether, taking the facts in the light most favorable to the plaintiff, the officer’s conduct violated a constitutional right and whether the right was “clearly established in light of the specific context of the case”

When excessive force is used the Fourth Amendment is violated. The court “balance[s] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” The court found that the taser which uses an electrical impulse to override “the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless” to be a weapon of intermediate or medium force requiring “a strong government interest that compels the employment of such force.”

The government’s interest is determined by examining three core factors:

(1) the severity of the crime at issue,
(2) whether the suspect poses an immediate threat to the safety of the officers or others, and
(3) whether he is actively resisting arrest or attempting to evade arrest by flight.

The court found that none of these exist. The charged crime was an infraction and even if McPherson thought that misdemeanor had occurred violence was not involved. The trial court and the evidence before the appellate court showed no evidence of any attempt to resist arrest or of a threat to the officer. Furthermore the officer failed to warn Bryan of the possible use of force and McPherson knew that back up officers were on the way and would soon arrive. As a result the Ninth Circuit found that considering all of the circumstance McPherson use of the taser was the use of excessive force.

Finally the court found that McPherson was not entitled to qualified immunity because a reasonable officer facing a situation where it was only a minor crime alleged and knowing that a taser injury can cause severe damage should know that the use of the taser would violate the Fourth Amendment.