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.

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.

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.

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.

In a per curiam opinion the Supreme Court upheld the search of a Michigan residence, using what it called the emergency aid exception to the Fourth Amendment’s warrant requirement.

Brownstown Michigan Police Officer Christopher Goolsby went to a residence to investigate a man acting out. He found a pickup in front of the house with the fender messed up. He found a man yelling and screaming inside. The man, Jeremy Fisher refused to let Goolsby and his partner into the house without a search warrant. Goolsby saw drops of blood on the hood of the pickup and on some clothes in the truck. When he refused to open the door, Goolsby broke in. At this point, Fisher pointed a gun at him. Fisher was charged with assault and with using a gun in a felony.

Fisher’s attorney brought a motion to suppress on Fourth Amendment grounds. He won the motion and the Michigan Court of Appeals upheld the dismissal. The Michigan Supreme Court agreed to hear the case but changed its mind after hearing argument.

The United States Supreme Court granted cert. the Court found that the facts came under the Emergency Aid Exception to the fourth Amendment’s Warrant requirement. The Supreme Court defined the emergency aid exception as to allow “law enforcement officers [to] enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” While Fisher was obviously not seriously hurt someone else in the house may have been. Therefore, according to the court the search was reasonable and a proper application of the Emergency Aid Exception.

Justice Stevens (joined by Justice Sotomayor) dissented. They believe that if the trial court heard the case and the testimony of the officer and still felt that their was insufficient evidence to say that an emergency existed the Supreme Court should not get involved and leave it to the local courts.

An informant told Detective Josh Davis of the North County Metropolitan
Enforcement Group in Chesterfield, Missouri that David Wise and Brian Sievers were growing marijuana in Sievers’s basement.

Detectives Davis, Jeffrey Seerey, and John Cochran went to Sievers’ house for a “knock and talk.” They knocked on the door. Sievers answered it. The officers identified themselves and told Sievers the purpose of the visit. Sievers said, “Who ratted me out? That’s all I want to know.” [Brilliant, an admission.] The officers then read Sievers his Miranda rights. Sievers then gave a full confession including telling them that there were over a hundred plants in the basement (actually there were 312) and that his friend David Wise was in charge of caring for the plants. [Now who is ratting who out]

After the officers searched the house, with Sievers consent, [Brilliant] he took them to Wise’s St. Louis residence.

This time Seerey and Cochran did the “knock and talk” while Davis stayed in the car with Sievers. They knocked on the door, as Wise is leaving. They ask him if he would prefer to talk outside or inside. Wise says inside. [Just what the officers wanted--a chance to get inside.] Then Wise invites them into his bedroom away from his family. He looked nervous so the officers did a pat search and found a packet of marijuana in his pocket. Seerey tells Wise about the visit to Sievers’. residence. Wise says he doesn’t believe the officers. They bring Davis and Siever inside. Siever tells Wise, “They’re onto us, they got the whole grow.” [Another admission] Wise is read his Miranda rights and he gives a complete statement incriminating himself and Sievers.

Prior to trial Wise moves to suppress his confession, statements, marijuana packet and marijuana seeds found on his dresser. Motion denied.

On appeal the Eighth Circuit in United States v. Wise confirmed the conviction holding that there was sufficient evidence to convict Wise, that the statements were properly admitted and that the seizure of the marijuana packet and the seeds were legal.

Surprise, surprise, you voluntarily talk so much both before and after the Miranda warnings and then the evidence is used against you. On top of that you invite the officers into your bedroom where marijuana is in plain view and then they dare to seize it.

If Sievers and Wise had not opened up their big mouths they would not have been arrested. Apparently the informant had not provided enough information for a search of the residence. Otherwise the officers would have gotten a search warrant. But by talking the defendants gave the officers enough information to search their residences and to arrest them. They also gave them the information used to prove the case at trial. I do not know how many times I have told defendants that “Anything you say can and will be used against you.” Police don’t ask question unless they need the information to hurt you and they are smart enough to use whatever you say against you.

As we all know the government has a policy of wiretapping suspected terrorist group without getting court mandated approval. The wiretapping is super secret. Those who are wiretapped are not told even after the wiretapping is finished. We only know about the policy since George Bush admitted the existence of the wiretaps in 2005. The wiretaps, performed without judicial authority are probably illegal. Does the government stop using such wiretaps because I or numerous experts say it illegal–NO. How do you get the government to stop doing something illegal. Well hopefully they would stop if the court orders them to stop. After all not following a court order would be illegal. Does the government care–probably not. So who will sue the government. One of the fundamental rules of our jurisprudence is that only someone who is injured by an action can sue to stop it. Well certainly those that were wiretapped were damaged by the government’s policy. But the catch 22 is that the names of the victims of the government’s wiretapping are secret and therefore not available to sue the government.

But the government made a mistake. It accidentally released a document showing that the Ashland, Oregon branch of Al-Haramain Islamic Foundation was subject to a wiretap. Al-Haramain Islamic Foundation was a branch of a Saudi Arabia charity and according to the government a front for Al Qaeda. It is now defunct. It sued the government for damages resulting from the wiretapping. But to continue the Catch 22 the government got an order stating that the document accidentally release can not be used to prove standing. So now the government (with a straight face?) argues that Al-Haramain Islamic Foundation does not have standing even though everyone knows that the document proves that Al-Haramain Islamic Foundation does have standing.

Wednesday in the courtroom of U. S. District Court Judge Vaughn Walker in San Francisco the government argued that the case should be dismissed on the grounds that if the case goes to trial the parties will have to release government secrets in the discovery process and at trial. The state secrets privilege originated during the McCarthy era. Prior to the George W. Bush regime it was primarily used to ban the use of government secrets in a civil trial. But under Bush and Obama it has been expanded to allow the dismissal of entire cases, A bill introduced last year by Senators Kennedy, Leahy, and Spector would have limited the privilege to excluding state secrets from trial. The documents would have been presented to a judge in camara who could have excluded part or all of a document but who could not have dismissed a case because of the admission of a state secret.

During his campaign for president, Barrack Obama said. “warrantless surveillance of American citizens in defiance of (the 1978 law) is unlawful and unconstitutional.” Yet government attorneys argued that the case challenging the warrantless wiretapping of American citizens should be dismissed. Furthermore, also on Wednesday, the Attorney General released policies governing the warrantless wiretapping of American citizens. While the new policies strictly limit the use of wiretaps they continue to violate the law by allowing their use. The new policies are effective October 1 and therefore apparently do not affect the Al-Haramain Islamic Foundation suit against the government.

The government is apparently using the Al-Haramain Islamic Foundation suit to obtain a ruling that warrantless wiretaps in the name of national security are legal and that will be the precedent to support the new limited government policy allowing the Attorney General to order warrantless wiretaps in the future. Of course there is nothing to prevent the attorney general or his successor from modifying and broadening the policy in the future to allow even greater use of warrantless wiretaps.

As Jon Eisenberg attorney for Al-Haramain Islamic Foundation said, quoting President Obama “where’s the change we can believe in?”

The Tenth Circuit Court of Appeals upheld the conviction of Manuel Roach despite the lack of probable cause to support the search warrant for his girlfriend’s house and despite the judge’s failure to determine whether or not the expert had sufficient knowledge to testify about gang culture.

On appeal the defendant objected to the search of this girlfriend’s house on the two grounds. First he said that there was not probable cause to support the search warrant. Second he said that there was an insufficient nexus between the residence and any evidence of criminal activity. The court agreed with Roach on both grounds.

The search warrant was based on Roach’s former membership in the Northside Crips in Wichita. But his last documented membership in the gang was years before the warrant was served and while he admitted a gang lifestyle that too was a year and a half before the warrant. The last evidence of his being involved in drugs was in 2002, five years before the warrant. Based upon this information the court found the evidence stale and therefore the warrant was not supported by probable cause. The only evidence in the affidavit attempting to show a nexus between the residence and criminal behavior evidence was a statement about the residences of fifteen alleged members of the gang. The affiant said:

“[O]fficers have verified that the individuals listed below live at the following addresses, through investigations, which included
checking for utilities information, driver’s license records, real estate records, Wichita Police Department records, tax records, social security records, US Postal Service records, interviews and/or surveillance.”

The court found this statement to be conclusory and it failed to state what methods had been used on the girlfriend’s residence. Thus it did not show a nexus between the residence and criminal evidence.

However under Leon if a search warrant is not supported by probable cause evidence received as a result thereof is admissible if the officer carrying out the warrant does so in good faith. The court found that the officer could have believed that their was probable caused based upon Roach’s long history of participation in the gang and in drugs. Furthermore since there was some evidence that the officers confirmed that Roach lived at the residence the officer search the residence could have believed that a nexus existed. As a result the officer acted in good faith and the evidence was admissible.

In Daubert the Supreme Court ruled that in Federal cases expert testimony is admissible if the judge makes a finding that it is both reliable and relevant. The trial judge did not make the necessary finding but the court found the government’s gang expert’s testimony admissible anyway because the jury could have believed the gang evidence true based upon other evidence. In other words it was harmless error to admit the expert evidence.

Sometimes the law is funny. Here the trial court violated the United States Constitution and the Rules of Evidence. Yet the appellate court found the evidence admissible and upheld the conviction.

The Eighth Circuit Court of Appeals upheld the conviction of Edward Lee Smith due to trial counsel failure to make a Franks motion.

A confidential informant told a Hennepin County (Minneapolis) detective that Smith was a leader of the Vice Lords gang and that he was selling drugs and guns from his residence. Detective Joe Poidinger did a computer search and confirmed the gang ties. He arranged but did not participate in a search of Smith’s garbage. In the garbage officers found evidence of drug sales. Based on this information Poidinger obtained a search warrant for Smith’s duplex.

Smith was tried, convicted, and sentenced to a mandatory minimum sentence of ten years in prison based on the quantity of drugs and his prior conviction.

On appeal he argued that probable cause did not exist for the search warrant and that double jeopardy existed since his sentence was aggravated due to a prior conviction.

The appellate court upheld the conviction. It ruled that probable cause existed for the search based upon his prior conviction and the garbage container search.

Smith argued that there was no evidence that the officers searched the correct trash can. He lived in a duplex and the units had adjoining garbage containers.

The appellate court ruled that Smith did not make a Franks motion in the trial court. Therefore the appellate court limited its review of suppression issues to whether or not probable cause existed on the face of the search warrant affidavit. Under Delaware v. Franks evidence seized as a result of “deliberate falsehood or of reckless disregard for the truth” in an affidavit supporting a search warrant must be suppressed. But in order to get a Franks hearing a defendant must show that

[t]here [are] . . . allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.

I have some problem with using the prior conviction. A prior conviction is not really relevant to whether drugs can be found in the defendant’s residence on a particular day. But when we ignore the Franks issues drug related trash in a garbage can is probably sufficient to a showing of probable cause for a search warrant.

The other issue raised by Smith is the mandatory minimum sentence based on his prior conviction. The court held that issue was not timely raised since it was not raised in the trial court. Secondly, the appellate court, relying on precedent, found that the ten year mandatory minimum was “a stiffened penalty for the latest crime, not an increased punishment for the earlier crime.” As a result the court that constitutional provisions against double jeopardy were not violated.

The Sixth Circuit found that probable cause supported the search warrant in United States v. Dyer and affirmed the conviction.

A Tennessee police officer swore out an affidavit for a search warrant for a cabin rented by Stacy Lee Glance and used by Glance and Kenneth J. Dyer. The bulk of the information in the affidavit came from an unnamed confidential informant who was facing drug charges and hoping to get the charges dismissed in exchange for his/her assistance in convicting Glance and Dyer. Glance went to trial and was found not guilty. Dyer entered a conditional plea allowing him to challenge the search warrant on appeal.

The informant claimed to have seen a drug deal involving methamphetamine in the cabin. The authorities corroborated some minor details of the informant’s statement. The informant took the officer to the cabin. Cars owned by Glance and Dyer were outside the cabin. Furthermore Dyer and Glance were seen at the cabin. Dyer and Glance have criminal records for methamphetamine related crimes and Dyer had an outstanding warrant for methamphetamine from North Carolina.

On this information the Sixth Circuit found that probable cause supported the warrant. The issue here is the reliability of the information received from the informant. The problem with this is that all of the corroborating evidence involves innocent behavior. All we really know is that the informant knows Glance and Dyer. We also know that the informant has reason to provide false information since any information that he/she provides will be used to dismiss the charges against him/her or to ameliorate the sentence for his/her criminal behavior.