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.

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.