Stiven F. Polanco was convicted in the District Court for Rhode Island of various heroin and weapons charges. He appealed alleging inter alia ¹violations of the Fourth Amendment.

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.

Allen Brown was indicted on bank robbery charges. The robbers used Scream masks. A Scream mask was found in an abandoned van stolen by the robbers. The police had the mask tested for DNA. They had reason to suspect Brown but they did not have probable cause to either arrest him or obtain a warrant to obtain DNA from him.

FBI Special Agent Robert Smith wrote an affidavit, sworn under oath, based upon information he received from Pennsylvania State Trooper Shane Lash, to obtain a warrant to get a sample of Brown’s DNA. Smith did not participate in the interviews leading up to the affidavit but Lash provided him with information. He declared that the robbers used Scream masks and that they stole a van from the Armstrong County School District. He said that the van had been found and that there was a mask in it. Furthermore he said that Brown did not live in Pennsylvania but that he was visiting at approximately the time of the robbery. He had left a family residence in his silver Volkswagon Jetta at 8:00 am and returned two hours later.

He also said that witnesses had seen the stolen van meet up with the Jetta. This is clearly false. Lash and Smith both testified in the District Court that Lash did not tell this to Smith and there is absolutely no evidence to back it up.

After the indictment Brown brought a motion to suppress the DNA on Franks grounds. In Franks v. Delaware the Supreme Court held that evidence seized as a result of a search warrant must be suppressed if it is both material and to the finding of probable cause and made either knowingly and intentionally or with reckless disregard for the truth. The parties agreed that the statement was material and false. The only question is whether it was made “either knowingly and intentionally or with reckless disregard for the truth.”

It all seems rather silly. There was not probable cause to obtain the warrant. Either Smith is lying or he is covering up for Lash who is lying. The District Court suppressed the evidence. Yet the U. S. Attorney appealed the matter and one of the three judges on the Third District Court of Appeals panel supported the government’s position. They claim there is no evidence that Smith acted either knowingly and intentionally or with reckless disregard for the truth. Instead of intending to lie the dissent argues he could have acted negligently in making up the story and negligence, according to Franks does not result in suppression. After all Smith claims that at the time he wrote the affidavit he thought he was telling the truth. ¹ He had copies of the police reports. He could have read them before he swore to the truth of his statements under oath. The Third Circuit correctly ruled that:

Because the total lack of an evidentiary basis for making an averment can constitute an obvious reason for doubting that averment‘s veracity, the District Court did not clearly err in finding that Smith‘s conduct rose beyond the level of negligence, to the point of recklessness.

The only questions remaining are why was so much time and money spent on this case and why isn’t Smith being fired?

The Supreme Court heard argument this week in Kentucky v. King. The State of Kentucky ¹wants to reverse a Kentucky Supreme Court decision suppressing evidence.

The issue here is whether police can enter a residence without a search warrant if they smell marijuana in the residence. The police smelled marijuana coming from an apartment. They knocked on the door. Then athey heard a noise inside that might have been someone attempting to destroy the contraband. When no one opened the door they knocked it down, finding marijuana and cocaine in the apartment. It is not whether the smell of marijuana gives them probable cause to get a warrant but rather whether they need a warrant to enter the residence.

The Kentucky Supreme Court ruled that exigent circumstances did not exist and therefore the evidence must be suppressed. The existence of exigent circumstances is an exception to the Fourth Amendment’s warrant requirement. But the Kentucky court held that the police were not in hot pursuit and any attempt to destroy the marijuana was police initiated. The Court held that any attempt to destroy the marijuana was the result of the officers knocking on the door and that the police should not benefit from the officers forcing an attempt to destroy the evidence. Instead of knocking on the door the police could have gotten a search warrant. By doing so they would not have alarmed the residents and the marijuana would not have been destroyed.

The State of Kentucky argues that since the police did nothing illegal, the search should be upheld. It argues that in any case where the police have both probable cause and exigent circumstances the officers can enter the house without a search warrant as long as they have done nothing illegal.

This would continue the trend of the last forty years of eviscerating the warrant requirement. It will be easy for an officer, upon smelling marijuana or obtaining probable cause to say I heard a noise and the noise may have been an effort to destroy the evidence. In fact by knocking on the door and yelling police they can then expect some effort to destroy the evidence. At that point if the appeal is granted, the officers may enter the residence to prevent destruction of evidence.

The California Supreme Court in People v. Diaz upheld the delayed search of a cell phone seized at the time of an individual’s arrest. The Court found that the search of text messages and other information found on a phone can be searched pursuant to the search incident to a lawful arrest exception to the Fourth Amendment’s search warrant clause.

Citing United States Supreme Court precedent, the state supreme court distinguished between property that is immediately associated with the arrestee’s person which can be searched in a delayed search and other property seized in an search pursuant to a legal arrest which must be searched immediately. Finding that a cell phone is immediately associated with a person’s body the court upheld the search. ¹

But Justice Werdegar, in dissent, points out that we must review and reinterpret old Supreme Court cases in light of modern technology. After all the cases cited by the majority all preceded the invention of cell phones and other hand held computers. These devices, unlike the defendant’s clothing, preserve tremendous amounts of personal data and are extremely private. While individuals being arrested may expect their clothing to be searched after it is seized as part of their arrest, few expected text messages from their spouse or confidential messages from clients or business partners to be searched.

Furthermore, as the Supreme Court stated in Gant the purpose of the arrest pursuant to a legal arrest exception to the Fourth Amendment’s warrant clause is to protect officers from possible dangerous or lethal weapons and to prevent the destruction of evidence. Information on a cell phone or a PDA can neither injure an officer of be destroyed once the defendant is in custody. ² To sacrifice the basic reasons for the Fourth Amendment, our privacy from unreasonable governmental searches in exchange for government snooping that will neither protect law enforcement officers or prevent the destruction of evidence is unnecessary and unreasonable. It is not too much to ask that officers get a search warrant before searching modern cell phones once the phone is in police custody.

Last year the Supreme Court held in Arizona v. Gant that law enforcement officials cannot search a vehicle, pursuant to a legal arrest when the suspect is out of the vehicle and is not within hand’s reach of the passenger compartment of the automobile.

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.

A California appellate court denied an appeal based upon a claim that sheriff’s deputies illegally entered the curtilage of a residence to search the property. The curtilage of a property is a somewhat vague property law term referring to “the land immediately surrounding and associated with the home.” That area beyond the curtilage is considered “open fields.”

Like the house itself the curtilage is protected by the Fourth Amendment from unreasonable warrantless searches. The area considered open fields is not protected. Richard Lieng lived in a rural area of Mendocino County, California. On two occasions, without search warrants, Mendocino County sheriff’s deputies drove onto a long private driveway used by Lieng and at least three of his neighbors. Richard and Tony Lieng were convicted of marijuana related offenses as a result of marijuana found as a result of a search warrant of the property. At some point the deputies got out of their vehicle and walked the rest of the way up the driveway. While they could not see into the residence they could smell the odor of growing marijuana, coming from a metal workshop along the driveway.

The appellate court considered four factors in determining whether the deputies violated Lieng’s Fourth Amendment rights by entering the curtilage of the residence. The first factor is “the proximity of the area claimed to be curtilage to the home.” Generally the curtilage is no more than 100 yards from the house. While the evidence showed that at one point the deputies walked up to the shed that was 150 yards from the house, there was no evidence showing how close to the house the deputies.Therefore the court sided with the state on the proximity factor. The second factor is whether the area is enclosed. While there was a gate it was open and there was no fence shutting the area off. The third factor is the use of the land. In this case it was a driveway available to the public. The final factor is efforts taken to protect the area. While on cross examination the deputy was asked about the presence of a no trespassing sign, he did not remember it and there does not appear to have been any direct evidence that it existed. Considering the factors the court found that the deputies did not violate the curtilage.

Several other factors were raised. The deputies used night vision goggles. The court ruled that the goggles were permissible. Unlike a thermal imaging device the goggles do not allow the officers to determine conditions inside the residence which are the heart of Fourth Amendment privacy rights.

Furthermore while the deputies may have been wrong when they stated in the affidavit supporting the search warrant they type of lights they saw in the metal shop and in the garage the error was not material. the defendants argued that there was not probable cause for the search warrant. But the court ruled that the evidence discovered when the deputies were on the driveway provided sufficient evidence to justify the warrant.

What this case shows is a failure of the burden of proof. In a motion to quash a search warrant the defendant has the burden of proof. Here there is no mention of defense witnesses. Such witnesses, for example, could have testified about the presence of a no trespassing sign. If there was a fence around the yards, witnesses could have proved that and the functionality of the gate. On cross examination defense counsel could have pushed the deputies into testifying how close he got to the residence and a defense witness could have testified about the distance.

Of course there could have been strategic reasons for not using defense witnesses. For example they may have been forced to testify about the constant odor of marijuana. But if you are not going to take your best shot at winning the motion, why do it?

Winston McGhee (aka Pooh) sold cocaine base to a confidential informant in a controlled buy, witnessed by the State Police, who then followed him back to his hotel. ¹A hotel employee told the officers that McGhee, who’s name they did not know was staying in room six. The officers got a search warrant.

That evening they stopped McGhee as he entered the hotel and searched the room. They found a knife on McGhee. They strip searched him, finding marijuana in his shoe and a baggie in his buttocks. The baggie contained 31 smaller baggies of cocaine base.

After McGhee was indicted he moved to suppress the cocaine claiming that the strip search was illegal. Precedent in the First Circuit Court of Appeals holds that normally a search pursuant to an arrest calls for a search of the person. But with increasing justification searches involving more intrusive measures (strip search, visual inspection of genitals and buttocks, and manual intrusions into such orifices) may be appropriate.

The District Court held that a strip search was appropriate. As the appellate court pointed out McGhee had hidden marijuana in his shoes and put up a struggle during the strip search indicating that he would try to hide drugs. ²McGhee challenged the characterization of the search as a strip search, claiming that the officers pulled his legs apart to inspect his buttocks but the Court ruled that such actions were necessary, in light of his struggling, to complete the strip search.

McGhee was not charged with the sale to the informant but it was put into evidence to show that he intended to sell part or all of the cocaine base found in his buttocks. He objected to the use of the chemist who tested the cocaine base found in his buttocks testimony in so far as she testified about the work of a different chemist who tested and weighed the cocaine sold to the informant. He claimed, citing the Supreme Court cases: Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) that the use of the hearsay violated his right of confrontation. However the Court ruled that even if it violated his right of confrontation the violation was harmless. There was plenty of other evidence (the quantity, the packing, multiple cell phones significant sums of money even though McGhee was unemployed, etc.) indicating that McGhee meant to sell at least some of the cocaine base. The weight of the sample was irrelevant, according to the Court.

As a result the Court upheld the conviction.

Lawrence Ray was going through a difficult divorce. He had custody of his daughter. His wife arrived at his house to pick up their daughter for visitation. She could see a man inside the house but no one answered the door when she knocked on the door. She called the police. They arrived but the man still did not answer the door. The officers called the local judge who wrongly issued an arrest warrant and told the officers that they could enter the house. They forced the door open. Mr. Ray’s father was the only one in the house. He said his son and granddaughter would be home soon. Lawrence Ray made contact with the cops and promised to deliver his daughter to the police station for the visitation.

Ray sued the police and the township for violation of his Fourth Amendment rights. The defendants were granted summary judgment on qualified immunity grounds. The Third Circuit Court of Appeals upheld the District Court’s decision. Qualified Immunity is granted when a plaintiff’s constitutional rights are violated by law enforcement officers and it was clear at the time of the violation that the rights were violated.

The defendants argued that their entry into the residence and search of the house was justified by an exception to the warrant requirement. They claimed that the community caretaking exception justified their actions. The community caretaking exception was developed by the Supreme Court in Cady v. Dombrowski. In Cady, a 1972 case, the Supreme Court allowed the search of a vehicle for weapons after police officers left the vehicle on the street following the arresting its driver. The search was not carried out as part of a criminal investigation but rather to prevent someone from finding the gun and injuring someone else. But the Supreme Court only applied the community caretaking exception to automobiles. It pointed out that automobiles are highly regulated. To the contrary residences are at the very core of Fourth Amendment protection and the the Third Circuit like most other circuits refused to apply the community caretaking exception to residences.

But the Third Circuit upheld the grant of qualified immunity to the defendants since their is a split among the circuits over whether to apply the community caretaking exception to residences and at the time of the search of Ray’s home the Third Circuit had not ruled on whether the community caretaking exception applied to residences. Therefore a reasonable police officer, at the time of the search could have believed that the search was legal.

Conservation Officer Jeremy King cited Dale Thurman for illegally baiting deer on property that his father owns. The property had a two story house on it with the address 1025 Zeller Avenue and a mobile home with the address 1035 Zeller Avenue. Thurman told King that he lived in the mobile home. After being cited Thurman asked King if he could use pistols to hunt deer. King told him he could. Thurman said he had pistols and pointed towards the two story house. King later learned that Thurman was a convicted felon and could not legally possess the pistols. He got a warrant for “1035″ Zeller, which the affidavit wrongly claimed was the two story house. In the affidavit it said that Thurman possessed “1035″ Zeller without giving any basis for the statement.

At trial and on appeal to the Eighth Circuit Court of Appeals Thurman argued that the magistrate did not have probable cause to issue a warrant for 1025 Zeller.

Of course the question is not whether Thurman lived at 1025 Zeller ¹ Rather the question is whether the affidavit exhibited probable cause to search 1025 Zeller. The Eighth Circuit said it did. Thurman’s pointing to 1025 Zeller when he told King that he had pistols apparently was sufficient cause to search the residence.

Thurman also argued that the affidavit did not particularly describe the place to be searched, a basic requirement under the Fourth Amendment. It described the residence as “the two story framed residential dwelling and outbuildings of 1035 Zeller Ave. located approximately one & two thirds mile north of Hwy. 96 on Zeller Avenue”. The Court found that even though the actual address was 1025 Zeller, the description provided sufficient guidance to the searching officers that they knew which residence to search and therefore it met the Constitutional requirements.

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In an editorial last week, The New York Times urged Congress to pass a law limiting border searches of computers to cases where agents have a reasonable suspicion of illegal activity and requiring probable cause and a judicially signed warrant to hold a computer more than 24 hours. Under current law any agent checking luggage or carry-on baggage at a border can indiscriminately search and detain a computer. A supervisor’s permission is only needed if it a laptop, smart phone, or similar device is held for over five days.

The New York Times points out that laptops are depositories of our most private information. But the issue goes much deeper. There are two primary reasons for border searches: 1) to enforce customs laws and 2) to prevent terrorist acts. Historically the purpose of border searches was to enforce tariffs and customs laws. But recently it has become necessary to prevent the importation of bombs and other weapons of terrorism. Certainly it is reasonable, under the Fourth Amendment. to perform searches to prevent acts, such as the attempt to import a bomb into Detroit. as was attempted by a Nigerian terrorist last year on Christmas. But searches of computer hard drives and memory sticks cannot produce either bombs or items for which tariffs are due. There is a significant difference between a search of a physical item such as an automobile or a suitcase and the search of an electronic memory. Physical items can be used as terrorist weapons or may have tariffs due on them but electronic items such as the memory on a computer cannot be used as a weapon and are not taxed. Few would object to the opening of a CPU to determine if a bomb or other contraband is hidden inside but this does not necessitate the search of the hard drive.

There is no need to detain hard drives or to search them. To detain them and search them, without cause, not only invades an individual’s privacy but may have a significant detrimental effect on the person’s business, schooling, or personal life.