Last year Philadelphia police stopped and frisked 253,333 individuals. Despite the fact that only 44 per cent of the citizens of Philadelphia are African American over 70 per cent of those frisked were African American. The ACLU has filed a suit against the city’s failure to train its police to prevent race-based stops and frisks.

Numerous studies have shown that this is not because African Americans commit more crimes but rather because conscientious decisions by police officers are made to either stop African Americans or to concentrate anti-crime activities in areas where African Americans are more likely to be found.

In the Terry decision the Supreme Court ruled that in order to stop a person an officer must have a reasonable suspicion that the individual is involved in criminal activity. Furthermore once the person is stopped the person can only be frisked if the officer has a reasonable suspicion that the person is armed. But it is clear that the Philadelphia police did not have a reasonable suspicion that the 253,333 people stopped were involved in a crime. After all only 8.4 per cent of the people stopped were arrested. A similar study in New York City showed that only six per cent of those stopped were arrested and only one and a half per cent of those frisked had a weapon. Furthermore ninety per cent of those stopped and frisked in New York were members of minority groups. This hardly meets a “reasonable suspicion” standard.

Philadelphia mayor Michael Nutter boasts about the city’s decreased crime rate but do we want a small decrease in crime at the cost of a loss of liberty. Clearly the founding fathers did not. It was in response to writs of attainder issued by the British government which allows searches without search warrants and without probable cause that they put the Fourth Amendment into the Constitution which mandated the use of search warrants and required probable cause to search a person.

Ingmar Guandique is set for trial October 4 for the murder of Chandra Levy, the intern to former Representative Gary Condit in Washington D. C.’s Rock Creek Park on May 1, 2001.

Last week Judge Gerald Green held a hearing on pretrial motions. Evidentiary motions are important since there are no eye witnesses or DNA evidence. At the time of Guandique’s arrest he was serving time in a California prison for the assault of two other women in the same park. Prior to his arrest Guandique was questioned in his cell by Federal Park police. They searched his cell and found inter alia pictures of Levy. Guandique’s attorney’s moved to exclude the pictures but the court ruled that there is only a minimal right to privacy in a jail cell and the pictures could be admitted.

The Fourth Amendment prohibits unreasonable searches without a search warrant. The argument could be made that since Guandique lived in the cell a search warrant should be necessary to search it much like a search warrant is necessary to search a residence. But a search is unreasonable only if there is an expectation of privacy in the area to be searched. Guandique could not have been surprised by the search. There is certainly no reasonable expectation of privacy in a jail cell. Corrections officers regularly search jails and prisons for contraband in order to protect inmates and staff. As a result inmates have been found to have only very minimal privacy rights while institutionalized in jails and prisons.

But at the same time, following long standing policy the Court prohibited the government from using statements made by Guandique to probation officers in relation to the prior conviction for the assault of two other women in the same park. This is done to encourage cooperation with probation officers and to prevent coerced statements.

One exception to the warrant requirement that we have not discussed in this blog permits inventory searches of seized vehicles. When seizing a vehicle police are allowed to inventory the contents of the vehicle in order

“[1] to protect an owner’s property while it is in the custody of the police, [2] to insure against claims of lost, stolen, or vandalized property, and [3] to guard the police from danger.”

The Supreme Court requires that prior to an inventory search the police department must have a policy limiting the discretion of officers performing the search. The policy must take into consideration the underlying purposes of inventory searches and they can not be solely for investigative purposes. They must provide standardized criteria for performing the search in the first place and for determining the scope of the search.

Eric Wayne Mundy was stopped by two Philadelphia police officers for making an illegal turn and for having excessively tinted windows. During the stop the officers discovered that the car was not registered and under Pennsylvania law an unregistered vehicle may be impounded. It must be inventoried prior to towing.

Prior to the inventory search of Mundy’s vehicle the police obtained the keys to the trunk. They searched both the interior of the car and the trunk. In the trunk they found a gray plastic bag containing a closed shoe box. They opened the box and found a brown paper bag containing two baggies with cocaine.

Mundy was charged with possession of over 500 grams of cocaine. He moved to suppress the evidence. The motion was denied. He was convicted and appealed the denial of the motion. He claimed that the Philadelphia Police Department’s inventory search policy gave too much discretion to the police officers in that it did not specifically allow or prohibit the search of closed containers.

The Police Department’s policy stated in part:

[T]he investigating officer[] shall . . . :
1. Have the operator and occupants exit the vehicle and remain on
location . . . .
2. Complete the Towing Report by conducting a vehicle inventory
describing any damage and/or missing equipment, personal
property of value left in the vehicle by the operator/occupants[,]
including the trunk area if accessible.
NOTE: No locked areas, including the trunk area, will be
forced open while conducting an inventory.

The Third Circuit Court of Appeals found that the ban on forced opening of locked areas allows the police to search unlocked containers or those for which they obtain a key. Here the police had a key to the trunk and the items in the trunk were not locked. Therefore the search was legal and the conviction was upheld.

The Third Circuit Court of Appeals ruled that probable cause was not necessary to support an order for historical cellular tower data,, also known as cell site location information (CSLI) which among other things provides the location a cell phone call is made from.

The Stored Communications Act which allows for the issuance of orders for CSLI based on a showing of specific and articulable facts establishing reasonable grounds specifically excluding tracking devices. ¹Of course most searches require a search warrant and probable cause. But comparing the use of cell phone information to tracking devices that do not follow the caller into their home the Court found that a search warrant is not necessary to obtain the telephone information. Under 18 U.S.C. § 2703(d) only order following an ex parte hearing is necessary.

However a magistrate has the discretion to require probable cause if there is a proper showing. Section 2703(d) states that a court order for disclosure under . . . may be issued by any court that is a court of competent jurisdiction and shall issue only if an intermediate standard that falls between a strong standard which requires probable cause for a search warrant and a weaker standard necessary for a subpoena exists. The combination of the use of the language “may be issued” and “only if” makes the requirement that there be a showing of specific and articulable facts establishing reasonable grounds a minimum standard but not a necessary standard, allowing a magistrate upon a proper, but unstated, showing to require a stronger showing such as probable cause in a proper case. The Court remanded the case to the trial court to determine whether the government has made a proper standing.

The Iowa Court of Appeals reversed a district court decision upholding a search at the residence of Pamela Robbins.

Officer Bruce Rhoads of the Tama County Sheriff’s Department obtained a search warrant for Robbins residence and for the residence of Michael Watson. The search warrant was based upon Rhoads’ experience, Watson’s criminal history, Watson’s purchases of pseudoephedrine, Robbins’ purchases of pseudoephedrine, suspicious traffic near Watson’s house, and the presence of Robbins’ car parked at Watson’s house. Pseudoephedrine is a drug commonly found in cold medications and it can be used in the manufacture of methamphetamine.

During the search of the houses drug related items were found. Robbins and Watson were charged with various drug charges.

The Fourth Amendment mandates that a search warrant must be supported by probable cause. In other words there must be a nexus between criminal activity and the place to be searched. The nexus must be great enough that “under the totality of the circumstances a person of reasonable prudence would believe that evidence of a crime might be located on the premises to be searched.”

Nowhere was it alleged that Robbins purchased pseudoephedrine in amounts that exceeded the legal maximum or that she purchased it more often than permitted by law. The appellate court ordered the suppression of all evidence found at Robbins’ home due to the lack of probable cause. Probable cause, according to the court cannot be based purely upon the legal purchase of a precursor drug.

The District of Columbia Circuit Court of Appeals reversed Antoine Jones’ conviction for distribution of cocaine and cocaine base due to Global Positioning System (GPS) tracking of Jones’ vehicle without a search warrant.

Jones’ conviction was based, in part, on the use of a GPS tracking device which was attached to his vehicle for four weeks. The Court found that the failure to have a valid search warrant ¹for the use of the GPS device, violated Jones’ legitimate expectation of privacy, and therefore the Fourth Amendment.

In order to find that GPS devices require a search warrant the Court had to distinguish the use of GPS devices from the use of beepers in the Supreme Court’s decision in United States v. Knotts. In Knotts the Supreme Court ruled that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” In Knotts a manufacturer of chemicals used in the manufacture of methamphetamine alerted the police of suspicious sales. The manufacturer then at the urging of the police planted a beeper in a five-gallon container of chemicals purchased by Tristan Armstrong. The police monitored the progress of the car carrying the beeper, to Knott’s Wisconsin cabin. The Supreme Court found that since Armstrong’s vehicle could have been followed on the public streets by a police car the use of a beeper to assist the police did not violate the driver’s legitimate expectation of privacy.

The Circuit Court distinguished the use of GPS on Jones vehicle from the use of the beeper on Armstrong’s vehicle by the fact that the use of the GPS lasted around the clock for four weeks while the beeper was only monitored during a short ride from Minneapolis to the cabin in Wisconsin. But just as the police could have followed Armstrong’s vehicle on the public streets they could have followed Jone’s vehicle. The Circuit Court pointed out that it would be much more difficult to follow a vehicle for four weeks and that during a prolonged period one learns significant private details about a person’s life that one does not learn during a short trip. Also the Supreme Court in Knotts specifically did not decide what would happen in technological advances allow long term trailing of a vehicle.

However, I find it difficult to accept the supposition that a short term trailing of a vehicle is not a violation of a legitimate expectation of privacy and a longer term trailing is a violation. With the increased use of GPS the issue may well appear before the Supreme Court. The Circuits have split. The Ninth and Seventh Circuits, relying on Knotts, have found the use of GPS to not be a search. The Supreme Court has several options. It can find Knotts to be decisive or at least persuasive and therefore find that the use of GPS is not a “search” and therefore a search warrant is not necessary. It can accept the D. C. Circuit’s distinction based upon the length of the search or it can reverse Knotts.

A unique option would be to find the search illegal under state law and rule that illegally obtained evidence should be excluded. The placing of the GPS device on the vehicle was clearly a trespass and trailing the vehicle for four weeks is stalking. But the Supreme Court has never excluded evidence based upon a violation of state law.

The Third Circuit Court of Appeals rejected a challenge to a search. The defendant claimed that the search exceeded the legitimate scope of the search warrant. In a methamphetamine case the defendant claimed that the police had no authority to seize a video when the warrant, authorized among other things the seizure of photographs in order to identify the residents of the home. The Third Circuit refused to decide whether the seizure of the videos exceeded the scope of the warrant.

Rather it upheld the search on the grounds that the admission of the video at trial, even if it was seized illegally was harmless error in that that there was overwhelming evidence of Anthony Joseph Tenerelli’s guilt on methamphetamine and gun charges regardless of whether the videotape was admitted or not. Among the other evidence admitted at trial was evidence about a controlled buy made by a “confidential reliable informant” from Tenerelli which was monitored by a police officer, approximately 100 grams of methamphetamine, drug notes in Mr. Tenerelli’s handwriting, a digital scale, drug packaging materials, a 9mm semi-automatic pistol, and 9mm ammunition. The gun and the methamphetamine were found near Tenerelli, in his living room, at the time of the search. The Court found that he would have been convicted regardless of whether the videotape was entered into evidence and therefore the conviction was valid even if the videotape was seized illegally.

The Tenth Circuit Court of Appeals denied immunity to a prosecutor who reviewed a search warrant affidavit for the residence of an on-line journalist at the University of Northern Colorado.

Thomas Mink published The Howling Pig. For its editorial column he chose the name of Junius Puke with an altered photograph of Junius Peake, a professor at the school. Mr. Peake was not amused. He contacted the Greeley police. They drafted a search warrant affidavit for the home that Mink shared with his mother and presented it to Susan Knox, a deputy district attorney for review.

Mink eventually filed suit, naming among others, Knox. Knox moved for summary judgment claiming immunity and qualified immunity as a prosecutor.

The Tenth Circuit rejected both arguments. It ruled that prosecutors are only entitled to immunity for the work of an advocate and that the review and approval of a search warrant affidavit is not advocacy.

The Court stated, “Government officials performing discretionary functions generally are granted a qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” However it found that Mink alleged that Knox violated his clearly established constitutional rights and therefore she is not entitled to qualified immunity.

To successfully allege that one’s constitutional rights have been violated it is necessary to show a casual relationship between the defendant’s action and the violation of constitutional rights, an actual violation of the plaintiff’s rights and that the law was clear at the time of the violation. The Tenth Circuit found that Mink met all of the criteria. There was a direct causal relationship between Knox’s approval of the warrant and the illegal search. The search was illegal in that it was without probable cause and it was overly broad. It was without probable cause because parody is constitutionally accepted and it cannot be criminally charged as libel. Furthermore the warrant was not sufficiently particularized in that it ordered the seizure of all computers found in the residence without specifying what they were looking for on the hard drive. Thus no reasonable district attorney could believe that the affidavit met Fourth Amendment mandates for problable cause and specificity.

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

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

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

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

The State of New York Court of Appeals strictly limited “all persons-present” warrants in People v. Mothersell. All persons-present warrants are used in New York to search individuals present at the scene of a search being conducted pursuant to a search warrant.

The search warrant authorizes the search of a particular building and allows the searching agency to search all people present at the time of the search. The police used an informant to make two controlled buys from a residence. In one case the informant bought from “Tom” and in the other case from an unnamed man. Then the police got a search warrant for the residence and all persons present at the time of the search. The affidavit said that it was likely that all people in the residence were involved in drug transactions.

While the Court of Appeals said that in some circumstances such a warrant might be good, the affidavit in support of such a warrant would have to provide probable cause to believe that each person in the house would be in possession of contraband and that was not done here. Factors that might lead to a legitimate all persons-present warrant would include “the nature of the illegal activity believed to be conducted at the location, the number and behavior of the persons present at the time of day or night when the sought warrant was proposed to be executed, and whether persons unconnected with the illicit activity had been observed at the premises.” Here the warrant was insufficiently detailed to provide probable cause that each person in the residence was in possession of narcotics. It only said that two sales had been made at the residence. It did not indicate who else might be presence or how the building was used. The mere fact that the affiant did not know the names of the narcotics traffickers did not provide probable cause to search each person in the building. In some cases the building might be used as a shooting gallery or as a warehouse for keeping drugs. In those cases an all persons-present warrant may be acceptable. But here there was no evidence of that.

Not only was Mothersell searched despite the fact that the affidavit provided no factual reason to believe that there was probable cause to search him but he was strip searched and narcotics were found in his anus. The Court found that a strip search was particularly invasive and in order to perform one there must be not only probable cause to search but probable cause to believe that he was secreting contraband under his clothes. There was no evidence of that in this case. In fact one of the officers testified that as a matter of course in serving all persons-present warrants those present were strip searched regardless of whether probable cause existed to believe that contraband could be found under their clothes.