After Cervantes was arrested his attorney made a motion to suppress the evidence found in the vehicle. The prosecution argued that under the automobile exception to the Fourth Amendment’s warrant requirement there was probable cause to believe that evidence of criminal activity would be found in the automobile and that under the community caretaker exception the search was a valid inventory search.

The District Court accepted the prosecution’s arguement but the Ninth Circuit Court of Appeals rejected it and reversed the conviction. Under the automobile exception to the Warrant requirement police officers may search the interior of a vehicle if they have probable cause to believe that evidence of a criminal act will be found therein. The Circuit Count found that the only evidence of criminal activity involving the vehicle is that a box was removed from the residence and that Cervantes did not take a straight route to the Polk Street residence. The court held that probable cause did not exist. While Hankel assumed that the box removed from the alleged stash house contained contrabrand, he provided no facts supporting his allegation that the residence was a stash house or that the box contained contraband. The failure to take a straight route to the Polk Street residence could be caused by many thing. In fact Cervantes stopped at a liquor store and made a purchase. Considering all of the evidence the appellate court could not say that there was probable cause to search the vehicle.

As to the community caretaker exception there was no evidence that the car was impeding traafic or that it was threatening public safety or convenience. Therefore the inventory search was improper and evidence found in the vehicle must be suppressed.

After arresting him several of the police went into the residence to perform a “protective sweep.” Under Fourth Circuit precedent a “protective sweep” is a permissible exception to the Fourth Amendment warrant requirement. A “protective sweep” is “limited to a cursory inspection of those spaces where a person may be found.” The purpose of the “protective sweep” is to find people who they reasonably expect to find and who may be dangerous to the officers. As the officers entered the residence Laundermilt told them that his fourteen year old autistic brother was in the house. But the officers did not know if anyone else was in the residence.

After briefly searching the residence they found Laudermilt’s brother. He was the only one in the residence. They asked him if he knew where the gun was. He showed them the gun. After his indictment Laudermilt moved to suppress the gun. The motion was granted and the government appealed the decision to the Fourth Circuit Court of Appeals. The appellate court ruled in the government’s favor. It held that even after finding Laudermilt’s brother they could continue looking for additional people. Furthermore, the court ruled that they could look for the gun in order to protect the special needs child.

As a result the court upheld the search and remanded the case.

But even if we agree that a protective sweep was necessary and I think this is a close case, a “protective sweep” is limited to looking for people in the residence. Officers can only look in those areas where people may be found. In this case by asking Laudermilt’s autistic brother where the gun was the officers went beyond a “protective search and instituted a search of the residence. A “protective sweep” is done to insure that there is no one in the house who may hurt the officers or others. If the officers want to go beyond the elements of a “protective sweep” and search the residence they need to get a search warrant signed by a judge. After they discover any people in the house they can freeze the residence while they get the search warrant. But they cannot search the house before they get the warrant.

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The Sixth Circuit Court of Appeals upheld the validity of the search warrant. First the court held that the presence or absence of probable cause to arrest Carney is immaterial. There was no evidence found as a result of the arrest that was used in the affidavit to obtain the search warrant. Carney did not give a statement when he was arrested and nothing he said was used to obtain the warrant. Second the Court found that while their may have been false statements in the affidavit there were no errors on the part of the affiant. He merely stated what he had been told, in good faith. As a result he did not make any misstatements. Finally a search warrant affidavit must merely show that a crime was committed and that there is probable cause to believe that evidence of the crime will be found in the places to be searched. The white SUV was used on at least two occasions by Carney when he gave someone a counterfeit bill and it was seen at his house. It was registered to Jenny McQuillen at the residence. His probation officer said that he had listed the residence as his home. As a result the court found that there was probable cause that evidence of the manufacture of counterfeit bills would be found in the vehicle and in the residence.

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The officers claimed that they were entitled to qualified immunity since they could reasonably believe that the search warrant authorizing the search was valid. Furthermore, they maintained that the officer’s reliance upon the search warrant was reasonable since the warrant had been approved by their supervisors, a deputy district attorney and the magistrate. The search warrant authorized the seizure of all guns and all gang-related materials, even though, while the defendant was a gang member, the evidence was that the assault on Kelly was not gang related and only one specified gun was involved. The court siding with the officers held that guns other than the one used to shoot at Kelly could be used to commit other crimes and gang material could be used to show ties between the residence and Bowen. ²

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While the decision was unanimous the court was divided as to the reason to deny the government’s petition. Five justices ¹ signed onto Justice Scalia’s majority opinion holding that the placement of the monitor violated Jones’ right under common law trespass laws. Four justices ² joined Justice Alito’s decision holding that the government action violated Jones’ reasonable expectation of privacy.

In recent years most Fourth Amendment decisions have been based on the concurring opinion by Justice Harlan in Katz v. United States in which he stated that the Fourth Amendment protects a person’s “reasonable expectations of privacy.” But according to Scalia Katz’s privacy analysis did not replace the preceding interpretation of the Fourth Amendment that held that it protected the property rights of individuals. Katz merely supplemented the long standing property rights interpretation. Since the government committed a trespass to place the monitor on the car and therefore violated Jones’ property rights it violated the Fourth Amendment.

While the long awaited opinions did not break new ground, they pointed to the need to adopt Fourth Amendment law to the protect privacy rights from invasion by governmental electronic devices. Among the questions left for future cases is what would the result have been if the government used electronic devices to follow Jones for four weeks without having committed a trespass? It may have still violated his Fourth Amendment rights by violating his expectation of privacy.

As I pointed out in a prior post the 1983 Supreme Court decision in United States v. Knotts. appeared to stand in the way of resolving electronic search questions. In Knotts government agents placed a beeper into a five gallon container of chemicals at a retail chemical facility. The store then sold the chemicals used in manufacturing methamphetamine to Armstrong, a co-conspirator of Knotts and followed the vehicle with the beeper to Knott’s residence. In that case the Supreme Court found that the government had not performed a search or seizure and therefore there was no Fourth Amendment violation. Scalia avoided dealing with Knox by pointing out that since the beeper was placed in the container before it belonged to Armstrong there was no trespass on his property. In fact it was placed in the container with the support of the company selling the chemicals and therefore there was not a trespass.

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The officers left the garage and knocked on the front door. Scott Shetler came out a side door. He was handcuffed and detained outside the house. Officers entered the house and began searching it. Guns and items associated with the manufacture of methamphetamine were found.

Half way through the search they obtained a waiver from Shetler’s girl friend. At no time did the officers obtain a search warrant.

In the early hours of the 23rd Scott Shettler gave a statement in which he confessed and he was arrested. The next day the DEA took him to the house, found another gun and took a statement about the gun. The trial court suppressed all of the physical evidence except that which was found in the original search of the garage but it allowed the various statements to come into evidence. On appeal admission of the statements was contested.

The Ninth Circuit Court of Appeal held that the government failed to carry its burden to show that Shetler’s statements were not the product of the illegal searches. A statement is considered the fruit of an illegal search if the officers confront the defendant with evidence illegally taken or if the defendant’s statement is a result of his knowledge of the government’s possession of items illegally taken. There was no evidence at the hearing that Shetler was not confronted with illegally seized items and as he was detained he watched the government seize numerous items which the court later decided to be seized illegally.

Not only were the statements the result of the illegally seizure, they were not sufficiently attenuated from the illegal acts. “Three factors are relevant in determining whether Shetler’s statements were sufficiently attenuated from the underlying illegality to be admissible: (1) the temporal proximity of the search to the confession; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” The Ninth Circuit found that the searches were sufficiently close to the statements as to not be overly attenuated. The initial confession occurred outside Shetler’s house during the search. While the second statement was made a couple days later there were no intervening circumstances that would have influenced Shetler to confess as “to dissipate the taint.” The officers were clearly looking for evidence without a search warrant. They waited until the search was half over before getting consent. There lack of good faith is apparent.

The evidence at the trial that Shetler maintained the residence for a primary or principle use was the manufacture, distribution, or use of methamphetamine was weak and the statements were a major part of the government’s case. Therefore the conviction was reversed and the case remanded to the District Court.

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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.

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There is something basically wrong with the government being able to track citizens wherever they go and whatever they do. As Justice Breyer said, it “sounds like ‘1984.’ ” Breyer and Sotomeyer pointed out that if the government is right, they can put a tracking device on every car in country and track everyone.

While the majority of the court seemed to agree that the United State government violated the Fourth Amendment, the problem is U.S. v. Knotts. In Knotts, a 1983 case, the Supreme Court ruled that the Fourth Amendment was not violated when the police used a beeper to track a vehicle carrying chemicals from the retailer to the residence where a methamphetamine lab was located.

As a general rule the Supreme Court is reluctant to reverse prior decisions. It prefers to differentiate the prior decision by a difference in the facts between the two cases. But that will be difficult here. The difference between a beeper and the more modern GPS is probably immaterial. It has been suggested that the court will find that it was okay to track the vehicle in Knotts since that was for only one day while it is not okay in Jones because it was for a month. But where do you draw the line. Is two days okay? Is 29 days not okay? Is 15 days permissible but not 16 days? It may just be time to admit they made a mistake and reverse the finding in Knotts.

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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.

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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

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