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.

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.