On February 27, 2011 the Ohio County, West Virginia Sheriff’s Department received a number of 911 calls from the family of Shannalee Kuri complaining that her boyfriend, Jordan Laudermilt, had a gun and was threatening to kill them. Several officers arrived on the scene. They met Kuri’s family outside Laudermilt’s residence. Although unaware of the police presence Laudermilt made a number of trips exiting from and entering the residence. On one of the trips, when the police were certain that Laudermilt did not have a gun on him he was arrested.

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.

Jesse Carney, Jr. plead guilty to possession of counterfeit bills and being a convicted felon in possession of a gun charges. While he plead guilty, he reserved the right to appeal the denial of his motion to suppress evidence found in his white SUV with the license plate number 871-JKC and his residence located at 4902 Saddlebrook Court. He alleged that the affidavit supporting the search warrant was not supported by probable cause. Furthermore he alleged the affidavit contained misstatements of material facts and that there was not probable cause to support his arrest.

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.

The Supreme Court again took up the question of whether to grant police officers summary judgement on qualified immunity grounds in a law suit alleging that the officers violated the plaintiff’s civil rights. Specifically, in Messerschmidt v. Millender the Court reversed a Ninth Circuit en banc decision denying officers summary judgment for an illegal search of a residence. The residence belonged to the plaintiff, Augusta Millender, the former foster mother of Jerry Ray Bowen who was accused of shooting at Shelly Kelly, his former girlfriend. Millender ¹ and her daughter sued inter alia the officers.

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

Jimmy Brown was placed in a squad car on a firearms charge. He was then given his Miranda rights. When asked if he understood them. his response was “pshh.” He then answered several questions and asked for a “deal.” ¹ He was later given the Miranda warnings again as the station house. This time he responded, “Yeah.”

Prior to his trial Brown moved to suppress his answers to the questions. The District Court denied the motion and the Seventh Circuit Court of Appeals affirmed the conviction. It held that his request for a “deal” and his selective answering of questions was sufficient evidence that he voluntarily waived his Miranda rights.

To me, it sounds as if it is, at most, a conditional waiver. He may be saying, if you give me a “deal,” I will talk. For that matter is the continued questioning of Brown after he asks for a deal an agreement by the officer to give Brown a deal?

On the evening of September 22, 2009 Jamie Shetler called the Pomona, California police department to report that her father, Scott, was using and manufacturing methamphetamine in his house. The police immediately went to the house. The garage attached to the residence was open and according to the officers a chemical odor emanated from the garage. The rear portion of the garage was partitioned off. In order to determine if anyone was behind the partition or whether methamphetamine was in the process of being manufactured the officers entered the garage. While they saw a few items associated with methamphetamine they did not see anyone and nothing was being manufactured.

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.

Last spring we wrote about police scandals in Contra Costa County California and Antioch. The head of the Central Contra Costa Narcotics Enforcement Team (CNET), and the owner of a private detective agency, both former Antioch police officers were accused of stealing drugs from the CNET safe and selling them to the clients of Chistopher Butler’s private detective agency. Butler was further accused of setting up the husbands of his clients who were seeking divorces for DUI arrests by having the men lured into a bar by an attractive women and then by having Tanabe arrest the men for driving under the influence.

Now it turns out in a new Federal indictment that Butler apparently bribed Tanabe with a gun and cocaine in exchange for making the arrests. This is the same police department that allowed Phillip and Nancy Garrido to live in their midst with kidnap victim Jaycee Dugard and her daughters put away in a back yard shack

Robert Simmons was convicted of being a felon in possession of a firearm and ammunition. He appealed on Fourth and Fifth Amendment grounds.,

His housemate called the police and complained that a couple of days beforehand Simmons threatened him with a gun. The police arrived at 1:00 a.m. His housemate was waiting for them. Simmons was in his bed.

Simmons got up and the police asked him questions in the hallway about whether he had a gun, where the gun was located and disputes he had with his housemate. Simmons was cooperative and told the police that he had a gun in his room.

The police then searched the room.

The questions raised on appeal was the admissibility of Simmons answers to the police questions since they were asked without the giving of Miranda warnings and the admissibility of the items found in the room including the gun.

The Second Circuit found the statements admissible under the Fifth Amendment exception to the MIranda rule for the answers to questions asked for public safety reasons. The public safety exception does not require that Miranda warnings “precede questions reasonably prompted by a concern for the public safety or for the safety of the arresting officers for a suspect’s answers to be admitted as evidence of his guilt.” The court found that the officers had sufficient concern about possible injury to themselves, Simmons ant the housemate to avoid giving the Miranda warnings, even though the scope of the questioning exceeding that necessary to find out whether there was a gun and where it was located. Considering the pressure of the moment the officers could be excused for the additional questioning.

But the Circuit Court reversed the District Court’s upholding the search of the room and remanded the case to the District Court. The government claimed that the search of the room was justified by the exigent circumstances exception to the warrant rule. The exception allows a warrantless search “when the needs of law enforcement [are] so compelling that a warrantless search is objectively reasonable.” But the court did not find the existence of exigent circumstances. Simmons was in the hallway. The apartment was full of police. One of the officers was blocking the door to the bedroom so he could not get the gun. There was no reasons that the search could not be delayed until a search warrant was obtained. A person’s house is particularly protected from warrantless seaches and therefore the court reversed the conviction pending further action of the trial court.

This has not been a good week for police officers. Yesterday we discussed the denial of an appeal of an officer in Memphis who was sentenced to life plus 255 years for setting up drug deals. He then pretended to arrest the seller while he stole the drugs and money. Today we learn of the arrest of twelve people including eight active duty and retired New York City police officers who bought illegal weapons in New Jersey and transported them to New York.

They are accused of smuggling 20 firearms including three M-16 rifles, a shotgun and 16 handguns across state lines from New Jersey to New York. Most of the weapons had obliterated or altered serial numbers.

In addition the officers are charged with interstate transportation of stolen cigarettes and slot machines. The street value of the smuggled goods exceeded one million dollars.

The officers got the merchandise from an undercover officer in New Jersey. Prior to giving the guns to the officers the FBI made them inoperable but the officers did not know that.

New York mayor, Michael Bloomberg is leading a nationwide movement to remove illegal guns from the streets. It is called Mayors Against Illegal Guns and 600 mayors have joined the effort.

Richard Christy was convicted of possession of an unlawful firearm and sentenced to 204 months in the Federal prison. At trial Richard Babcock testified for the government that Christie and James Wulff attempted to sell him firearms. He refused the offer and called the police. On the other side two roommates of Christy testified that he was at a bar with them at the time of the alleged offer.

Christy’s lawyer asked the trial judge to give the standard Eighth Circuit alibi instruction. The Circuit’s instruction are not mandatory and the trial judge refused to give the instruction.

Christy appealed the conviction on the basis that the court denied him the right to have an instruction on the theory of his defense. A defendant has the right to an instruction regarding his/her defense theory if it ” is timely requested, correctly states the law, and is
supported by the evidence.” But in this case the appellate court agreed with the trial court that the general instructions on the need for proof beyond reasonable doubt and the burden of proof sufficiently covered the subject and counsel had sufficient opportunity to argue the alibi evidence. As a result the Eighth Circuit upheld the conviction.

The Fifth Circuit, in United States v. Portillo-Muniz faced the question, this week, as to whether undocumented aliens are covered by the Second Amendment.

Armando Portillo-Muniz was charged with possession of a firearm by an undocumented individual in violation of 18 U.S.C. § 922(g)(5). He had a .22 caliber handgun in the center console of his vehicle.

The Court found that undocumented aliens are not covered by the Second Amendment. The Second Amendment, like the First Amendment and the Fourth Amendment refers to the rights of the people. The court held that the “people” does not include undocumented aliens. The Court pointed out that the Supreme Court in District of Columbia v. Heller which upheld the Second Amendment right to possess a gun referred to “law-abiding, responsible citizens to use arms in defense of hearth and home.” The majority opinion held that this does not applied to undocumented aliens who committed the misdemeanor of entering the country without papers.

Judge Dennis dissented from the majority’s holding. He pointed out that the Supreme Court in United States v. Verdugo-Urquidez interpreted the word “people” in the Fourth Amendment context as protecting aliens who “have come within the territory of the United States and developed substantial connections with this country.” Portillo-Muniz entered the country voluntarily. He worked steadily and with the exception of entering the country illegally he complied with the country’s laws. He would remand the case with instructions to the trial court to determine if 18 U.S.C. § 922(g)(5) violates the Second Amendment.