In Michigan v. Summers the Supreme Court held that a search warrant for a residence allows officers to detain those in the residence during the search and that this right extended to a man leaving the residence as officers entered. In United States v. Bailey the Second Circuit Court of Appeals, last week, extended the permissible detention to an individual the officers saw drive away from the residence in order to allow them to follow and stop the individual. The officers then brought the individual back to the residence and detained him until the search was over.

With a search warrant for a basement apartment at 103 Lake Drive in Wyandanch, New York officers arrived at the residence. They saw two men, one of them Chunon Bailey leave the unit and drive away. They followed the vehicle, stopped it and brought the men back to the residence. Bailey was detained and he was arrested after guns and drugs were found in the residence.

In Summers the Supreme Court provided three reasons to justify the detention of someone leaving a residence: (1) “preventing flight in the event that incriminating evidence is found”; (2) “minimizing the risk of harm to the officers”; and (3) facilitating “the orderly completion of the search.” In a footnote the Second Circuit says that the first and second criteria apply. But it gives no facts to support this view. In another footnote it states that the police officers testified that the reason they didn’t immediately detain Bailey was that they were afraid that by doing so they would alert anyone else in the house to the police presence and a dangerous situation may result.

It is one thing to follow the Supreme Court’s criteria. It is another to make a blanket holding. The Second Circuit held, “that Summers authorizes law enforcement to detain the occupant of premises subject to a valid search warrant when that person is seen leaving those premises and the detention is effected as soon as reasonably practicable.”

This issue may come before the Supreme Court. The Circuit Courts are divided. The Fifth, Sixth, and Seventh Circuits, like the Second Circuit, upheld detentions of people after they left the scene. The Eighth and the Tenth Circuits ruled to the contrary. They held that once a person left the residence the Summers criteria are no longer applicable. If the person leaves the scene without knowing that a surveilance is in progress then the officers are not in danger. The Second Circuit’s response is that the officers are required to make a difficult decision: either to detain Bailey outside the residence and possibly notify those inside that the police are present or to to let Bailey, who they call a “person of interest to leave without being detained. While the search warrant indicates that a judge found probable cause to believe that someone in the residence may have committed a crime at the time of the detention there was no individualized suspicion, as required by Terry that Bailey committed a crime and he should not have been detained. When you detain someone a mile away from the house, return they to the house and require them to wait until the search is over it is no longer the minimal intrusion found by the Supreme Court in Summers.

In Davis v. United States the Supreme Court took another blow at the Exclusionary Rule. It ruled that the good faith exception should be applied to situations in which the police rely upon settled law that is later overturned by the Supreme Court.

In 2007 relying upon Eleventh Circuit interpretation of Belton v. New York, Greenville, Alabama police arrested the two people in an automobile, handcuffed them and placed them in a police car. Then they searched the vehicle and found a gun. Willie Gene Davis, the passenger in the car, was then charged with possession of a gun by a convicted felon. The Eleventh Circuit and the Supreme Court agreed that the search was illegal, based on Gant v. Arizona in which the Supreme Court in 2009 held that the search of the interior of an automobile, pursuant to an arrest, can only occur if the passengers are in a position where they can reach items in the car or there is probable cause to believe that contraband can be found in the vehicle.

Since Davis’ conviction was not final when the Supreme Court ruled on Gant, Gant’s finding applied to Davis. But the Supreme Court ruled that just because the finding applied to Davis, the remedy of exclusion does not necessarily apply. The sole purpose of the exclusionary rule is to deter police from performing illegal searches. The deterrent value must be weighed against the societal harm caused by the suppression. In this case the Supreme Court found that there was no deterrent value since the police in searching the vehicle were complying with the then settled law. Therefore while the search was unconstitutional, the remedy is not suppression. The Court did not attempt to define any remedy, although in other cases they have stated that the remedy could be limited to a civil suit.

As the dissent, by Justice Breyer, points out the decision may have serious consequences. While few searches will directly be affected. It is rare for the Supreme Court to reverse prior decisions. But police are generally assume to follow the law or at least to try to follow the law. It is rare that they intentionally violate the Fourth Amendment. There is language in Justice Alito’s majority opinion which can be cited to support the refusal to apply the exclusionary rule in any case in which officers are acting in good faith. If officers are acting in good faith then there is little deterrent value in later excluding the fruit of their search.

I have trouble with the view that deterrence is the only reason for the exclusionary rule. An unconstitutional search violates the privacy rights of those who are the subject of the search. This was recognized in Terry when the Supreme Court ruled that a search was any action which violated the privacy rights of an individual when those privacy rights are accepted by society. If one of the purposes of the Fourth Amendment is to protect privacy rights then in order to redress the injury the fruit of the illegal invasion of a person’s privacy should not be entered into evidence against the person at trial.

After a gang shooting, officers staked out the hospital where the victim was dying. They observed a car with four people, at least three of whom they recognized as members of the gang. Fearing that the passengers in the car might try to get revenge for the shooting, they followed the vehicle. Together with another police car they pulled over the gang members for speeding. The men in the car were noticably nervous. They were breathing heavily. ¹ The officers ordered the men out of the vehicle and performed pat searches on them but found nothing.

They searched the vehicles and initially found nothing. Officer Scott O’Brien arrived on the scene. He had undergone advanced training in finding hidden compartments in vehicles. He observed a magnet on the dashboard. Magnets are often used to open metalic hidden compartments. He noted that the tail pipe had been tampered with. Within five minutes of beginning his search he found a loaded handgun and cocaine in the front seat console. Melvin McGregor, the driver of the vehicle was arrested.

At trial he moved to suppress the gun and the cocaine on Fourth Amendment grounds. He claimed there was not probable cause to search the vehicle and that the initial stop was a pretext. ² The motion was denied and he appealed.

Several issues were raised on appeal regarding the search of the vehicle. First McGregor objects to the duration of the search. The First Circuit found that while the actual duration of the search is somewhat foggy and over an hour passed from the time of the search to the time of the booking, Officer Brian Smigielski testified that the actual search lasted only five minutes and the appellate court is limited to viewing the facts in such a way as to uphold the findings of the trial court. Since the trial court denied the motion to suppress, the appellate court reasons the trial court must have accepted Smigielski’s testimony on the issue.

Second, McGregor challenged the scope of the search. The scope was limited to finding weapons that might endanger the officers. Upon stopping a vehicle, the police may pat search the passengers and perform a limited search of those parts of the vehicle within the reach of the passengers where weapons may be found if they have reasonable grounds for suspecting that the detainees are dangerous. Here the court found that considering the facts that the passengers were nervous, that a shooting had recently occurred, that at least three of the people in the car were gang member, that gangs often carry out revenge shootings, that the four had met at the hospital, and that they left the hospital in a hurry the officers who had considerable experience investigating gang activity could legitimately believe that a gun would be found in the vehicle. Thus the scope of the search and the seizing of the gun in the front seat console was necessary to protect officer safety.

While any individual factor may not have provided a reasonable suspicion to search the vehicle, the court found that the totality of the circumstances justified the search and it affirmed the conviction

If “the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment ” police may enter a residence without getting a search warrant. This is called the exigent circumstances exception to the Fourth Amendment. For example police may enter a residence if they have reason to believe that evidence is being destroyed.

Some courts have ruled that the exigent circumstances rule does not apply when the police create the exigent circumstances. In Kentucky v, King police observed a crack cocaine sale outside of an apartment house. The culprits ran into the building. They were chased by officers. The officers knew that they went into one of two apartments. Out of one of the apartments the officers could smell a strong odor of marijuana, ¹ The officer knocked loudly at the door that they smelled the marijuana coming from. No one answered the door. ² The officers heard people moving around in the apartment and they thought that the residents were attempting to destroy the marijuana. ³ The officers yelled “police” and when no one answered the door knocked it down. ⁴

The defense argued, and the Kentucky Supreme Court agreed that by knocking loudly on the door the officers created the exigency and then used it to enter the apartment. According to the United States Supreme Court the essence of the Fourth Amendment is reasonableness and any search that is reasonable is acceptable. ⁵

While there are a number of justifications for the “police-created exigency” doctrine my favorite is that it allows any officer to create an exigency at any time. As Justice Ginsburg said in dissent:

The Court today arms the police with a way routinely to dishonor the Fourth Amendment ’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment ’s force.

All the officer has to do is say that he/she hears people moving around in the residence or hears a toilet flushing in the residence and they can claim that they thought that evidence was being destroyed. Then they kick the door down or walk in if its not locked. ⁶

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

The Department of Justice is urging the Supreme Court to take up the Fourth Amendment issue of Global Positioning Systems (GPS). Various courts have ruled on the constitutionality of the use of GPS without getting a warrant and rulings have come down on both sides of the issue,

The Ninth and the Seventh Circuits have ruled it constitutional while the D. C. Circuit found it unconstitutional. Courts in New York, Massachusetts, Washington and Delaware have found it unconstitutional while courts in Ohio and Virginia have approved of the practice.

The Justice Department is challenging a D. C. Circuit opinion that overturned the conviction of Antoine Jones on cocaine trafficking charges after GPS evidence played a mayor role in his conviction. The DOJ argues that since law enforcement officers could have followed Jones as he traveled on the public roads he could not have had a legitimate expectation of privacy. The Fourth Amendment only applies to individuals who have an expectation of privacy that is recognized by society.

However his attorneys argue that using a GPS device on Jones’ Jeep Cherokee for over a month and reporting his whereabouts every seven seconds was a tremendous invasion of his privacy and is prohibited by the Fourth Amendment.

The Courts that have upheld warrantless GPS searches have cited the 1983 Supreme Court decision, United States v. Knotts in which the Supreme Court upheld the conviction of a man in a methamphetamine case after the wholesaler of necessary chemicals placed a beeper in a barrel of chemicals. The barrel was placed in a codefendant’s vehicle and followed by agents to the suspect’s residence.

Knotts has been cited by the courts in upholding warrantless GPS decisions. Most of the Courts have said that if it was constitutional to follow a car with a beeper, it is constitutional to keep track of a vehicle with a GPS deviced placed under the car’s carriage while it is either parked on the street or in the defendant’s driveway.

But while the lower courts do not have the power to reconsider Knotts the Supreme Court does. It is a decision that may have had some validity 30 years ago but with the technological advances in the last 30 years allowing greater and greater invasions into citizen’s privacy it is time for the Supreme Court to reconsider the decision.

“SJ” a fifteen year old girl found nude pictures of herself on her guardian’s computer. She also found a hidden camera in the bathroom. She reported her findings to the police.

They performed a “knock and talk” at the residence of Jon R. Hughes. ¹

Prior to the “knock and talk” the police learned that Hughes’ mental state was very fragile and that he needed involuntary hospitalization. They did not plan to arrest him at the end of the “knock and search.” Instead they planned to get consent to search his computer and to hospitalize him.

Eventually he was arrested and raised search and Miranda issues before the Federal Court. The officers twice interview Hughes.The first time was during the “knock and search/” The court ruled that Miranda warnings were not necessary. Miranda warnings are only mandated when there is a interrogation and the person is effectively in custody. In this case the Court ruled that Hughes was not in custody. The interview occurred in his home. The police did not plan to arrest him and he was not arrested on that day. His mental state was poor. In fact he had an anxiety attack in the middle of the interview. But that standing alone does not show that the interview was involuntary.

Hughes claimed that his consent to search the computer was not voluntary due to his mental state. The court founhd that Hughes consent to search the computer or his lack thereof was immaterial. By the time the officers requested his consent he had already given them enough information to get a search warrant. Therefore under the theory of inevitable discovery his consent was immaterial.

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.

Law enforcement officers got an arrest warrant for Jeanine Daley in Brockton, Massachusetts. An informant told them that she recently saw Daley at 63 Menlo Street, a known sober residence and that Daley was hanging out there. The residence was a three story single family house with a number of non-related individuals living in it. Though the warrant had another address on it two officers went to the address where they confronted Jeffrey Cicerano, who’s name was on the lease. When Cicerano denied them entry they threatened to kick down the door. Cicerano opened the door to talk to the officers. The officers rushed past him into the residence. They ordered Cicerano to gather the residents of the house together so that the officers could question them. While Cicerano was gathering everyone together the officers saw James Werra, one of the residents in a room adjoining the foyer. They saw a pocket knife clip attached to one of Werra’s pockets. They removed the knife and pat searched Werra, finding a gun. They arrested him. He challenged the arrest on the basis that the officers neither had probable cause to search him and that their entry into the residence was illegal.

Werra rented the third story from Cicerano but when there was too much partying on the third floor he slept on a couch in the living room. Together with his brother he had moved furniture into the living room.

The government claimed that Werra did not have standing to challenge a search which occurred in the Foyer since he rented the third floor. The question before the First Circuit Court of Appeals was whether the residence was similar to a single family house where each resident has standing since they share the entire house or a multi-resident apartment house where residents have limited standing based upon the area they rent.

The test is that individuals only have standing to challenge searches of areas where they have an expectation of privacy in the area and it is an expectation that society finds acceptable.

The appellate court upheld Werra’s expectation of privacy. First it found no cases where an expectation of privacy was denied to the residents of a single family house. Second, it found that Werra had access to most of the residence including the living room where he would sleep on the couch. The court noted that instead of each individual paying rent to the owner, Cicerano rented the house and some of his friends lived there and helped pay the rent. Overall the court found that the residents acted more like a family than like apartment dwellers. They share space and often used community spaces together as a group. Therefore it found that Werra had the ability to exclude non residents from the building and that society recognized his privacy right in the building.

The Court had little trouble finding the search to be illegal. While there might be some question as to whether the officers had probable cause to believe that Daley lived at the residence it found that they had no evidence that she was at the residence at the time they entered the residence without consent. Since Werra had a privacy interest in the entire house including the foyer and since the search was illegal it reversed the trial court’s denial of his motion to suppress and found him not guilty.

Criminal defense attorneys, and I suspect district attorneys and judges, have long doubted consent searches. In a consent search the police avoid getting a search warrant by obtaining consent of the person being searched or of the person in possession of the house or car. But these searches are easy to fabricate. There are often no witnesses and its the officer’s word against the defendant’s.

But there is little we can do. The question at trial is not the truth but who can prove their case. We know that the jury is generally more likely to believe a police officer (or five police officers) who testify that our poor 19 year old African American or Latino consented to the search than to believe our client when he or she says they did not consent to the search. This is true even in the senseless situation where the officers find rock cocaine or heroin viewable on the bed or dresser.

Certainly not all consent searches are phoney. People don’t always do wise things.There is no requirement that the police tell a person that they need not consent and people, particularly those from abroad who are not used to the Bill of Rights often consent. Whether the consent is real or not it is often followed by a plea bargain because the police office, who is a professional witness can convince the court and a jury that the defendant consented to the search.

But with the advent of videos things may change. The San Francisco Public Defender’s office has four video tapes taken at the Henry Hotel of police officers entering rooms without consent and later filing police reports in which they state under oath that they received consent to the search. The officers involved are members of the Southern Station plainclothes unit. The District Attorney has already dropped 57 cases as a result of the allegations. An investigation of the unit and its sergeant is occurring. These are serious allegations. Filing a false police report is a misdemeanor and perjury is a felony. If true, these charges are significant violations of people’s Fourth Amendment rights and justly call into question the trustworthiness of numerous other investigations conduct by the unit and by other officers.