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.

Last week the Eighth Circuit Court of Appeals decided United States v. Joseph R. Grooms

In 2005 Grooms got into a dispute with a security guard. He threatened to kill the security guard at a club and he said he was going to his car to get a gun. When the police arrived he was driving away. He came back later and parked his car a block and a half from the club. He got out of his car. Security guards saw him, handcuffed him and call the police. The police arrested him on a warrant. They searched his car. A gun and cocaine was found.

He was charged with possession of a gun by a convicted felon and possession of cocaine for sale. He moved to suppress the evidence. The court rejected his motion, citing New York. v. Belton After the motion was denied the Supreme Court decided Arizona v. Gant. In Gant the Supreme Court ruled that Belton should not be interpreted to allow a search pursuant to arrest of of the arrestee’s automobile after the arestee is out of the car and no longer has access to the vehicle unless there is an independent reason to search the vehicle.

The Court in Grooms found that while the police did not have the power to search the vehicle pursuant to the arrest of Grooms for the warrant, independent grounds to search the vehicle existed. One of the exceptions to the Fourth Amendment warrant requirement is that a search of a vehicle can be performed without a warrant as long as there is probable cause to believe that evidence of a crime will be found inside the vehicle. Probable cause existed to believe that there was a gun in the car and that the gun was evidence of a threat crime against the security officer. Therefore the search was legal and the Eighth Circuit upeld the conviction.

In 1981 the Supreme Court in New York v. Belton upheld searches incident to arrest. The Eleventh Circuit like many other courts developed a rule in automobile searches allowing the search of the entire passenger compartment incident to the arrest of a passenger or driver of a vehicle.

Willie Gene Davis was a passenger in a vehicle in 2007. The car was pulled over and Davis was asked by a police officer to get out of the car. As he was getting out of the car he took off his jacket and left it in the car. The officers asked Davis his name and he gave a false name. After discovering his correct name the officers arrested him, handcuffed him and put him in the police car for giving false information to a police officer. Then they searched the vehicle and found a gun in his jacket. He was charged and convicted for possession of an illegal weapon.

While his case was on appeal the Supreme Court decided Arizona v. Gant in which it corrected the interpretation of Belton. The Court made it very clear that the police could only search, absent a danger to the police officers or others, those areas accessible to the arrestee. Since Davis was handcuffed and in the police car at the time of the search he did not have access to the interior of the car he had been a passenger in and the search of the vehicle was illegal.

But the Eleventh Circuit ruled that while the search was illegal the evidence found in the vehicle was still admissible. While the general rule is that evidence illegally seized is inadmissible at trial this exclusionary rule has many exceptions. In most cases evidence seized in good faith is admissible at trial whether or not it was illegally seized. The Eleventh Circuit ruled in United States v. Davis that at the time of Willie Gene Davis’ arrest the law was clear that the officers could search the passenger compartment. The officers acted in good faith in searching the vehicle and therefore the exclusionary rule should not be applied. The Supreme Court has said on numerous occasions that the exclusionary rule is not constitutionally mandated and that its purpose is to deter police misconduct and since the search of the vehicle was done pursuant to then current Eleventh Circuit decisions misconduct was not involved and excluding the evidence would not effectively deter future misconduct.

But let me give an alternative reason to exclude the evidence. I do not believe that the founders of this nation would have approved of the introduction of illegally seized evidence. After all many of the members of the first Congress and the state legislatures who enacted the Bill of Rights participated in or at least approved mob actions which closed or threatened to close the court in many jurisdictions when the courts tried to enforce English rules expanding the right of the government to search individuals

The rule of law requires that illegally seized evidence be excluded. Why should the government be able to benefit from illegally seized evidence. To allow the use of illegally seized evidence to convict a citizen or an alien for that matter only encourages illegal action and discredits the rule of law.

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?

Nashville police went to the residence of Derrick Archibald to serve an arrest warrant. It took approximate ten minutes from the time they knocked on the door for Archibald to open the door. During that time the officer nearest the door only heard one person inside.

When Archibald opened the door an officer momentarily stepped inside the residence, grabbed him, pulled him outside, handcuffed him and arrested him. Then officers conducted a protective sweep of the unit. During the sweep the officers found cocaine on a table. They used the cocaine to show probable cause for a search warrant. Whille searching the residence pursuant to the search warrant they found a gun. He was charged with being a convicted felon in possession of a gun.

In Maryland v. Buie

the Supreme Court . . . identified two types of warrantless protective sweeps of a residence that are constitutionally permissible immediately following an arrest. The first type allows officers to ‘look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.’ . . . The second type of sweep goes “beyond” immediately adjoining areas but is confined to “such a protective sweep, aimed at protecting the arresting officers. ‘. . . The first type of sweep requires no probable cause or reasonable suspicion, while the second requires “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.’

Before the Sixth Circuit Court of Appeals the government argued both Buie prongs. But the court found that the government had not argued that the search was permissible under the first prong which does not require probable cause but which does require the search to be in an area adjacent to the arrest before the District Court and therefore it waived the argument.

But in any case the court found that the search of the residence did not meet either Buie prong and therefore the search warrant was not based upon probable cause and the gun must be suppressed. It did not meet the first prong because the arrest occurred in the doorway and therefore the`search of the entire unit was not in the`area immediately adjacent to the arrest. Nor did it meet the second prong. The officers did not have articulable facts to base a reasonable belief upon that there was another person in the residence. The government’s argument that Archibald was a dangerous criminal is not relevant since it is not related to the requirement that there be facts showing that the officers were in danger from other people in the unit.

The Ohio Supreme Court reversed a drug conviction where the trial court admitted into evidence call logs from a cell phone seized as part of a search incident to arrest. At the same time the United State Supreme Court granted cert on a case of a post office employee who’s text messages on a government supplied pager were searched by the local police department.

The Ohio Supreme Court in State v. Smith rejected the position of the Fifth Circuit Court of Appeals that a cell phone was similar to a container seized during a search incident to arrest which can be searched without a warrant. Instead the Ohio court found that a cell phone is more like a lap top computer in that it carries considerable personal and private data. As a result a search warrant is necessary to search data found therein after it is seized during a search incident to arrest.

The Ohio case involved a police informant who made a telephone call to her supplier to set up his arrest for the police. When he was arrested the police seized his telephone. It has long been the law that one of the exceptions to the Fourth Amendment’s warrant requirement allows police officers to search the area around a person at the time of his/her arrest. The purpose for the exception is to protect the officers from possible harm while making an arrest. The Ohio court found that unless seizing the data on the phone was necessary for officer safety a search warrant is necessary to search the data in the phone.

To me data transferred on a telephone whether if be oral data or electronic data mandates a strong level of protection. We have all sorts of private data on our phones and we do not expect the government to be tapping into the data except in the most urgent of situations. Government surveillance of the data should only happen with the protection of a search warrant signed by a judge. In Katz v, United States and its prodigy the Supreme Court set tight restrictions on tapping into telephone conversations. The same restrictions ought to be invoked prior to the search on data on a cell phone or any other phone.

Often small errors end up in people being arrested and convicted of major crimes. I have seen this many times over the years. But the point was brought home by two cases listed on FourthAmendment.com.

First a little bit about the Fourth Amendment. It 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.

But the courts, particularly under Chief Justices, Burger, Reinquist, and Roberts have found many “reasonable” exception to the search warrant rule. The two cases that I will discuss today come under the “search pursuant to a legal arrest” and “consent” exceptions.

In a Washington state case, State v. Kirwin a passenger in a car driven by Kirwin at 2:00 a.m. in Olympia threw a beer can out the car window. A police officer saw the can being thrown out the window and arrested the passenger for littering. After the passenger was in the police car the officer search that area of the car that had been in the reach of the passenger. Finding methamphetamine, the officer arrested Kirwin for possession of methamphetamine and he was convicted.

A Georgia case also found in FourthAmendment.com is based upon the search pursuant to a legal arrest and consent exceptions to the search warrant rule. In Sapp v. State In Sapp an informant gave a detailed description of the vehicle and the route Sapp was going to take to deliver methamphetamine. Police officers set up surveillance and followed him. As he followed the expected route he crossed the road’s center line twice. The police stopped him for the traffic violations. He admitted that there was an illegal substance in the truck and he consented to the officers searching the vehicle. Prior to the search, an officer saw a drug pipe on the front seat. Based upon his consent to the search and upon the officer’s seeing the pipe on the front seat the court found the search to be legal on both consent and pursuant to a legal arrest grounds.

In the Washington case the search was based on a passenger’s throwing a beer can out the window and in the Georgia case on a driver crossing the center line. Both cases resulted in methamphetamine convictions.