In a search incident to his arrest cocaine was found on him and a search of his residence pursuant to a search warrant found more cocaine.

He was charged in the United States District Court with possession with the intent to distribute cocaine and possession with the intent to distribute over 500 grams of cocaine. ³ He moved to suppress both the cocaine that was found on him and that which was found in his residence as well as certain statements that he made after he was arrested. He claimed that there was not probable cause to arrest him. If there was not probable cause to arrest him the cocaine found on him could not have been used to get the search warrant for his house, The District Court granted his motion and the government appealed.

The Second Circuit Court of Appeals granted the appeal. It held, contrary to the District Court’s decision that the mere lack of a history of reliability does not mean that the informant’s information must be discounted. As evidence of reliability it pointed out that the information was given in order to prevent him from being arrested, that it was given face to face to the officer, that Szuba was a participant in the crime, and that it was corroborated by physical evidence. As corroborating evidence it pointed to Szuba’s correct prediction of what would happen after the phone call, his correct description of Steppello’s vehicle and residence, as well as the telephone records verifying the calls from Steppello to Szuba.

While I do not accept the court’s finding that lack of a history of giving reliable information is unnecessary, I do believe that there is enough corroborating information for a finding of probable cause. I have represented many drug dealers who have attempted to pull one over on officers by giving incorrect information about the source of the drugs or about the offense. To find reliability without a history of cooperation is foolish without corroboration. But here there is plenty of corroboration.

Since there is probable cause for the arrest there is also probable cause for the search warrant for the residence and to use the statements made pursuant to the arrest.

The officers did a license check on Powell, it came up suspended and the officer learned that Powell had a prior conviction for armed robbery. Based on this information the officers ordered Powell to get out of the car and pat searched him. ¹ A gun was found in a backpack near Powell’s seat in the car. He was arrested after the gun was found but he was not convicted of possessing the gun. During a search incident to the arrest crack cocaine was found on Powell and this was the basis for the conviction.

The issue on appeal was whether the officers’ pat search was justified by officer safety. During the pat search the gun was found. This justified his arrest which lead to the cocaine being found.

The government argued that the pat search was legitimate based upon Powell’s past record and the fact that he lied about the status of his license. But the court applying Terry found that ” that a reasonably prudent officer in these circumstances would not be warranted in the suspicion that Powell was armed and dangerous on the
night of the traffic stop.” Without evidence that Powell was armed and dangerous the officers had no right to pat search Powell and the the arrest as well as the search incident to the arrest were fruits of the illegal pat search. The cocaine had to be suppressed and the conviction vacated.

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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.

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The police opened the door anyway and found Hill in the house. They searched the residence and found marijuana and a grinder. An hour later Alvarez came home and consented to a full surch of the residence. They found a two-shot revolver, an empty holster, a bulletproof vest, scales, ammunition, marijuana, and crack cocaine. Hill was indicted and moved to suppress the evidence on Fourth Amendment grounds.

The strongest case for Fourth Amendment protection occurs when authorities search a residence. One’s house is one’s castle and an unconsented entry intp the house violates the Fourth Amendment. Officers can enter with a arrest warrant but only if the wanted person lives in the residence and the police have reason to believe that the person is present. Once they arrest a person in a residence they may search the area near the person as a search incident to arrest. They can also search the residence if the resident consents to the search. In this case the entry into the residence was illegal. The officers did not have consent at the time of the entry and they did not have reason to believe that Hill was in the residence. In fact an officer testified that there was an eighty per cent chance that Hill was not in the residence.

The Fourth Circuit Court of Appeals remanded the case to the trial court with instructions to determine whether or not the consent given by Alvarez was sufficiently attenuated from the illegal entry or whether it was tainted by the entry. The court instructed the lower court to look at three factors: (1) the time between the Fourth Amendment violation and the consent, (2) the presence of intervening circumstances, and (3) the flagrancy of the official misconduct. After reviewing these factors the court can determine whether Alvarez’s consent was voluntary or whether it was forced on her by the illegal entry into her house.

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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.

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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.

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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.

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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.

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Prior to the decision in Gant,Indianapolis police detained Dewayne Cartwright for driving a vehicle without a light illuminating the automobile license. He stopped his car in a grocery store parking lot but not in a legal spot. Cartwright was unable to produce a driver’s license and the police were unable to confirm the name he provided. They arrested him for driving without a license and providing a false name. After the arrest and following, then current, Seventh Circuit procedure, prior to Gant, the officers searched the car pursuant to a legal arrest. ¹ A gun was found in the back seat and Cartwright was charged with possession of a firearm by a convicted felon. He plead guilty, preserving his right to appeal the search of the vehicle, and he was sentenced to 84 months in prison.

Of course under Gant the search would be illegal. But the Seventh Circuit Court of Appeals upheld the search on inevitable discovery grounds. The Fourth Amendment does not ban all searches occurring without a search warrant. It states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . ” Thus it only prohibits “unreasonable” searches and seizures. As a result the courts have developed a number of exceptions to the warrant requirement. One of those exceptions allows for inventory searches of vehicles prior to their seizure. In order to protect the police from claims of theft of the contents of a vehicle, a city may develop procedures to permit the search and inventory of a vehicle prior to storing a towed vehicle. Indianapolis had a well developed written policy providing for inventory searches. It allowed a vehicle to be searched if the driver was driving without a license and no passenger in the car had a license and is capable of driving the car. Cartwright’s passenger, Ciera Golliday, did not have a license even though she owned the car.

Another approved exception to the warrant requirement is the eventual discovery rule. It provides that evidence is admissible at trial even if it was seized illegally.if law enforcement officers, using their normal procedures, would eventually discover the evidence legally. The Seventh Circuit upheld the search since even though the search was illegal as a search pursuant to an arrest under Gant the gun would have eventually been discovered when the car was inventoried.

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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.

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