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.

Stephen Digiovanni rented a car in Fort Lauderdale, took the autotrain to Washington D. C and drove towards his home in Boston. Driving on I-95 in Maryland, he was stopped by Trooper Chrisotpher Connor for following the car in front of him too closely.

Connor noticed that Digiovanni was somewhat nervous. Furthermore, the car was clean, shirts were hanging in the back without a clothing bag and there was a hygiene bag in the back seat. All of these things he claimed gave him a reasonable suspicion that Digiovanni was a drug trafficker.

While he immediately asked for Digiovanni’s driver’s license and the rental car contract, he did not begin the computer check of the license until over ten minutes after the original stop. During this time he concentrated his investigation on narcotics, asking numerous questions none of which provided answers that indicated a reasonable suspicion of trafficking.

Digiovanni gave consent to a search of the vehicle but was unable to open the trunk. Before Connor searched the interior of the vehicle he wrongly told Digiovanni that he could not revoke his consent. During the search of the interior of the vehicle Connor found 34,091 oxycodone tablets.

Digiovanni’s motion to suppress the pills and some of his statements was granted and the government appealed to the Fourth Circuit Court of Appeals.

Prior to detaining someone an officer must have a reasonable suspicion of criminal activity. The detention is limited to the length of time necessary to dispel the officer’s suspicion. The scope of the investigation is limited to investigating the events that lead up to the stop. If an officer determines during the investigation that there is a reasonable suspicion of other crimes the officer may extend the detention. But an officer may not extend the scope of the investigation beyond the original reason for the investigation unless the officer has a reasonable suspicion and that reasonable suspicion is developed during the time the officer needs to carry out a diligent investigation of the original reason for the detention.

There is no question Connor had a reasonable suspicion to stop Digiovanni. The trooper’s vehicle was equipped with with a video camera and it showed Digiovanni following closely behind the car in front of him. But the length and the scope of the detention exceeded what was necessary for a diligent investigation and preparation of a warning ticket. The court found Connor’s belief that the lack of a clothing bag for Digiovanni’s shirts irrelevant to the finding of a reasonable suspicion and bordering on the absurd. Likewise, it found his reliance on the clean car and the presence of the hygiene bag to be “absurd.” While an officer may ask questions unrelated to the original stop if it does not delay the investigation the court found in this case the focus of the detention was not on the traffic citation but rather on a narcotics investigation for which there was no reasonable suspicion and it upheld the district court’s suppression order.

What do we learn from this case. First that offices can post hoc claim that any fact is a reason to support an arrest or search. Unless officers are stopped this will lead to the dissolution of the Fourth Amendment. Second that people talk to much. Digiovanni should have given the officer his driver’s license and rental contract. On further questioning he should have said. I don’t want to talk any more. May I leave?

The Eighth Circuit Court of Appeals upheld the conviction and 180 month sentence for possession of a firearm by a convicted felon in United States v, Kelley

Kelley was convicted after a bench trial in the District Court for the Western District of Missouri of possession of a firearm by a convicted felon. Two burglars were interviewed by the Greene County Sheriff’s Department. They admitted being involved in a string of burglaries and said that stolen guns could be found at the residence of Karlin Kelley. They called the residence and spoke to Kelley’s sister Tanya. Tanya told the burglars and Sergeant Stanley that the weapons were indeed at the house and she invited the officer to come over and get them. When Stanley and a number of other officers arrived Tanya invited them into the house and Kelley gave them written permission to search the house.

Kelley told the officers that the weapons were in a shed behind the house and he showed them the way to the shed.They seized the weapons. He was interviewed on at least two occasions and read his Miranda rights. He told the officers that the weapons were brought to his house and he agreed to keep them until sometime when they could go hunting without the kids there. Since he was a convicted felon and not allowed to possess guns in his house he put the guns in the shed.

On appeal, two issues were raised, the legality of the search and the denial of Kelley’s motion for judgment of acquittal at trial.

As to the motion to suppress, the court found that Kelley gave valid consent to the search. Kelley argued that his consent was a fruit of Tanya’s permission to enter the house and that she was coerced into doing so by the officer’s statements that he did not want another Waco, that he did not want anyone to get hurt, and that he did not want anyone else to raise her children. But the court found that there was sufficient evidence that the consent was given voluntarily. Tanya testified at the suppression hearing that she would have let the officers in without the threats. Therefore the court found that the permission was voluntary.

Furthermore the court found that there was sufficient evidence that Kelley knowing possesed the firearm. Possession can be either constructive or actual. “[C]onstructive possession requires knowledge of an object, the ability to control it, and the intent to do so.” The court found that there was sufficient evidence of constructive possession. Kelly admitted that he knew the guns were in the shed. In fact he moved them from the house to the shed. Furthermore he planned to go hunting with them.

The lesson for Karlin Kelley, and everyone else, particularly if you are suspected of a crime is not to talk to the police and not to give consent to any search. Anything you say MAY and WILL be used against you.

But, 180 months seem like a long time to spend in prison for holding on to the guns. The court said it reviewed the records and found the sentence to be legal.

The Eighth Circuit Court of Appeals reversed the conviction in a case where the District court wrongly denied the defendant motion to dismiss on illegal search and seizure grounds.

Two United States marshals went to the Missouri residence of Gary McMullin, looking for Daryl Crowder who was wanted on an Illinois warrant. While Marshall Newlin knocked at the front door, Marshall Davis covered the back door. McMullin consented to Newlin coming in and he told the marshal that he was having coffee with his uncle.

Simultaneously Crowder ran out into the back yard and he was arrested by Davis. Newlin went into the back yard to assist in the arrest and McMullin also went out.

Newlin handcuffed McMullin and physically brought him back into the kitchen. Back in the house, Newlin noticed some ammunition in an ashtray. He then asked whether there were any guns in the residence. McMullin pointed out several weapons and McMullin was arrested for possession of weapons by a convicted felon.

There is no question that Marshal Newlin had consent to enter the residence. But the issue on appeal is whether he had consent for the second entry into the residence.

The core value behind the Fourth Amendment is to protect an individual’s privacy in his/her home. As the court stated

In particular, Fourth Amendment law recognizes the inherent sanctity of a person’s house. The caselaw has consistently recognized that considerably more protection is to be afforded a home than other premises. The leading decisions . . . are each heavily predicated upon the ancient precept that ‘a man’s home is his castle. . . . Therefore, “to search a private place, person, or effect, law enforcement must obtain from a judicial officer a search warrant supported by probable cause.

The court considered two exceptions to the warrant requirement — exigent circumstances and consent. The court found no exigent circumstances requiring the reentry into the residence which would require that “lives are threatened, a suspect’s escape is imminent, or evidence is about to be destroyed.”

The issue of consent is a little more difficult. Does the consent for the initial entry cover the second entry. The court found it did not. While there are cases where courts have found the contrary. Generally in those cases the re-entry occurred shortly after a brief exit to get help or some similar purpose.

The court gives only short consideration to what I consider to be a major issue. At the time of the re-entry McMullin is in handcuffs and he was physically moved into the house. He was under the control of the marshal he may have well felt that he did not have the power to refuse consent. So I doubt any withdrawal of consent or giving of consent would have been in voluntary.

In any case the court came to the right decision and reversed the conviction.

Often small errors end up in people being arrested and convicted of major crimes. I have seen this many times over the years. But the point was brought home by two cases listed on FourthAmendment.com.

First a little bit about the Fourth Amendment. It 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.

But the courts, particularly under Chief Justices, Burger, Reinquist, and Roberts have found many “reasonable” exception to the search warrant rule. The two cases that I will discuss today come under the “search pursuant to a legal arrest” and “consent” exceptions.

In a Washington state case, State v. Kirwin a passenger in a car driven by Kirwin at 2:00 a.m. in Olympia threw a beer can out the car window. A police officer saw the can being thrown out the window and arrested the passenger for littering. After the passenger was in the police car the officer search that area of the car that had been in the reach of the passenger. Finding methamphetamine, the officer arrested Kirwin for possession of methamphetamine and he was convicted.

A Georgia case also found in FourthAmendment.com is based upon the search pursuant to a legal arrest and consent exceptions to the search warrant rule. In Sapp v. State In Sapp an informant gave a detailed description of the vehicle and the route Sapp was going to take to deliver methamphetamine. Police officers set up surveillance and followed him. As he followed the expected route he crossed the road’s center line twice. The police stopped him for the traffic violations. He admitted that there was an illegal substance in the truck and he consented to the officers searching the vehicle. Prior to the search, an officer saw a drug pipe on the front seat. Based upon his consent to the search and upon the officer’s seeing the pipe on the front seat the court found the search to be legal on both consent and pursuant to a legal arrest grounds.

In the Washington case the search was based on a passenger’s throwing a beer can out the window and in the Georgia case on a driver crossing the center line. Both cases resulted in methamphetamine convictions.

A recent Missouri case reported in Fourth Amendment.com State v. Allen illustrates the need not to let police into your house or your car or anywhere else that you have an expectation of privacy. The police conducted a “knock and talk” at the residence of Amy Jo Dean Rig. A “knock and talk” occurs when the police believe that criminal activity, in this case drug use and sales, is occurring in a residence. They do not have probable cause to search the residence or to get a search warrant. If they had probable cause they would go ahead and get the search warrant. But since they don’t have probable cause they knock on the door and attempt to either get information from the resident that gives them probable cause or even better yet get the resident to let them into the house to search for contraband.

In this case Rig initially said “no.” But police are taught to be persuasive talk. Many department have officers who specialize in talking their way into a residence. In this case they used a female officer. Presumably they thought that the female was more likely to get into the apartment.

The officers asked Rig if there were drugs in the apartment. She said “no.” In a not unusual move the officers told Rig to let them in to show that she was telling the truth. She continues to say, “no.” The officers start talking about Rig’s children and how bad it is to have drugs around them. Eventually they get her to admit that she has a marijuana pipe. The officers ask if they can come in and get it. They will only write her a ticket if they get the pipe. She says she’ll get it and give it to them. They say “for officer safety purposes” they want to come in and get it. At this point Rig gives up and says, “yes.” They come in. One of the officers stays in the living room with Rig’s guests. the other follows her to the bedroom. She goes to the bedside table and quickly takes the pipe out of a drawer and gives it to them.

Now that they have evidence they wonder what else is in the drawer. Thi\ey get permission to search the drawer. They find a white powder used for cutting drugs. Well now that they have probable cause, they give Rig the choice of either giving further consent or they will get a search warrant. The cat is out of the bag and its too late. They get the consent and search the house. They find a commercial quantity of methamphetamine. Her boyfriend is arrested and convicted.

If Rig had said “no” at the door and stuck to her guns or if she said I want to talk to a lawyer before I let you in my house, the search would not have happened and no one would have been arrested.