The Supreme Court, Monday, denied the government’s petition to reinstate the drug conviction of Antoine Jones after it was reversed by the DC Circuit. Jones was convicted after government agents attached a GPS monitor to the underside of the automobile that he drove for four weeks obtaining 2000 pages of data showing every place he went.

While the decision was unanimous the court was divided as to the reason to deny the government’s petition. Five justices ¹ signed onto Justice Scalia’s majority opinion holding that the placement of the monitor violated Jones’ right under common law trespass laws. Four justices ² joined Justice Alito’s decision holding that the government action violated Jones’ reasonable expectation of privacy.

In recent years most Fourth Amendment decisions have been based on the concurring opinion by Justice Harlan in Katz v. United States in which he stated that the Fourth Amendment protects a person’s “reasonable expectations of privacy.” But according to Scalia Katz’s privacy analysis did not replace the preceding interpretation of the Fourth Amendment that held that it protected the property rights of individuals. Katz merely supplemented the long standing property rights interpretation. Since the government committed a trespass to place the monitor on the car and therefore violated Jones’ property rights it violated the Fourth Amendment.

While the long awaited opinions did not break new ground, they pointed to the need to adopt Fourth Amendment law to the protect privacy rights from invasion by governmental electronic devices. Among the questions left for future cases is what would the result have been if the government used electronic devices to follow Jones for four weeks without having committed a trespass? It may have still violated his Fourth Amendment rights by violating his expectation of privacy.

As I pointed out in a prior post the 1983 Supreme Court decision in United States v. Knotts. appeared to stand in the way of resolving electronic search questions. In Knotts government agents placed a beeper into a five gallon container of chemicals at a retail chemical facility. The store then sold the chemicals used in manufacturing methamphetamine to Armstrong, a co-conspirator of Knotts and followed the vehicle with the beeper to Knott’s residence. In that case the Supreme Court found that the government had not performed a search or seizure and therefore there was no Fourth Amendment violation. Scalia avoided dealing with Knox by pointing out that since the beeper was placed in the container before it belonged to Armstrong there was no trespass on his property. In fact it was placed in the container with the support of the company selling the chemicals and therefore there was not a trespass.

In the 1971 landmark case, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics the Supreme Court announced that citizens had the right to sue individual government agents in Federal Court for violations of their Fourth Amendment rights. In Carlson v. Green the Supreme Court extended the rights granted under Bivens to sue Federal custodial agents for violation of the Eighth Amendment right protecting inmates from deliberate indifference to their medical needs.

This week the Supreme Court faced the question in Minnecci v, Pollard of whether to extend Bivens to allow inmates to sue employees of private prisons in Federal Court for violations of their Eighth Amendment rights against cruel and unusual punishment. The Court said, “no.”

Richard Lee Pollard, an inmate at a private Federal prison owned by the Wackenhut Corrections Corporation slipped on a cart left in a doorway to the prison’s butcher shop. He fell, breaking both elbows. He filed a Bivens action in Federal Court claiming that various prison officials acted in such a way as to aggravate his pain and cause him unneccessary embarrassment. The District Court dismissed Polard’s case. The Ninth Circuit reinstated his suit and the Supreme Court reversed.

The Court held that victims in Bivens and Carlson were not sufficiently protected from violations of the Fourth Amendment in the state courts but that adequate remedies existed in the state courts to sue the private employees of Wackenhut and other private correctional facilities for what are primarily torts resulting in injuries to prisoners. Therefore the Supreme Court refused to extend the rights under Bivens to the employees of private prisons.

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.

The New York State Police Community Narcotics Enforcement Team (“CNET”) executed a search warrant on the residence of Richard Szuba. When the officers found cocaine, Szuba decided to snitch. Szuba told the officers that he received his drugs from Dean A. Steppello. He told the officers that when he wanted some cocaine he called Steppellos and said, “[a]re you good?” Then he would leave his garage door open and Steppello would deliver four ounces. At the request of the officers Szuba called Steppelo. The officers only heard Szuba’s side of the conversation. But he said, “you good, this afternoon, 20 minutes.” Officers surveilling Steppello’s residence saw him drive up to the house, enter it, leave again and drive to the area of Szuba’s residence. But since the garage was closed ¹ he parked in the driveway and called Szuba eleven times. ² Steppello was then arrested.

In a search incident to his arrest cocaine was found on him and a search of his residence pursuant to a search warrant found more cocaine.

He was charged in the United States District Court with possession with the intent to distribute cocaine and possession with the intent to distribute over 500 grams of cocaine. ³ He moved to suppress both the cocaine that was found on him and that which was found in his residence as well as certain statements that he made after he was arrested. He claimed that there was not probable cause to arrest him. If there was not probable cause to arrest him the cocaine found on him could not have been used to get the search warrant for his house, The District Court granted his motion and the government appealed.

The Second Circuit Court of Appeals granted the appeal. It held, contrary to the District Court’s decision that the mere lack of a history of reliability does not mean that the informant’s information must be discounted. As evidence of reliability it pointed out that the information was given in order to prevent him from being arrested, that it was given face to face to the officer, that Szuba was a participant in the crime, and that it was corroborated by physical evidence. As corroborating evidence it pointed to Szuba’s correct prediction of what would happen after the phone call, his correct description of Steppello’s vehicle and residence, as well as the telephone records verifying the calls from Steppello to Szuba.

While I do not accept the court’s finding that lack of a history of giving reliable information is unnecessary, I do believe that there is enough corroborating information for a finding of probable cause. I have represented many drug dealers who have attempted to pull one over on officers by giving incorrect information about the source of the drugs or about the offense. To find reliability without a history of cooperation is foolish without corroboration. But here there is plenty of corroboration.

Since there is probable cause for the arrest there is also probable cause for the search warrant for the residence and to use the statements made pursuant to the arrest.

Hershel Oscar Rosenbaum received free tickets to the Nevada State Fair from radio station KOZZ. He did not want to use the tickets. Rosenbaum, his wife and his two young children went to the fair. His wife stayed in the car while Rosenbaum and the children got out of the car. Rosenbaum proceeded to sell the tickets for five dollar each while he was standing in front of the fair.

Deputy Sheriff Lieutenant James Forbus approached Rosenbaum, took the children to their mother and arrested Rosenbaum. He was booked on charges of child abuse, neglect, or endangerment of a child and for obtaining money by false pretenses. He was charged with only one count of receiving money by false pretenses and eventually the charge was dismissed. There is no scalping law in Nevada.

Rosenbaum and the children sued the county and several officers claiming he was arrested without probable cause and violation of their rights to family integrity in Federal Court.

The defendants moved for summary judgement on the grounds of qualified immunity. The motion was granted and the Rosenbaums appealed. Summary judgement should be denied if the plaintiff’s constitutional rights were violated and it was clearly established at the time of the arrest that the violation existed. The Ninth Circuit reversed the District Court’s decision. It held that Rosenbaum’s arrest violated the Fourth Amendment due to a lack of probable cause to arrest him. On appeal the defendants argued that there was probable cause to arrest Rosenbaum for obtaining money by false pretenses and violation of an obscure law, “collecting for benefit without authority.” The elements of obtaining money by false pretenses are this crime are: the intent to defraud, a false representation, reliance on that representation, and that the victim is defrauded. There was no evidence of any of these elements. Likewise there is no evidence that Rosenbaum attempted to defraud a charity as required by the collecting for benefit without authority statute. Since no reasonable officer could find a violation of either statute the defendants were not entitled to qualified immunity. As a result the Ninth Circuit reversed the District Court’s grant of summary judgement.

When the officers took the children to their mother they told the children that their father had done something wrong and was going to jail. The court found that the officers’ actions were inappropriate but that they did not shock the conscience and did not rise to the level of violating the right of family integrity.

The Fourth Circuit Court of Appeals reversed the conviction of Obie Lee Powell for possession of crack cocaine due to an illegal pat search of Powell. Powell was a back seat passenger in a car driven by Jermaine Mitchell. The car was pulled over by the police due to a burned out headlight.

The officers did a license check on Powell, it came up suspended and the officer learned that Powell had a prior conviction for armed robbery. Based on this information the officers ordered Powell to get out of the car and pat searched him. ¹ A gun was found in a backpack near Powell’s seat in the car. He was arrested after the gun was found but he was not convicted of possessing the gun. During a search incident to the arrest crack cocaine was found on Powell and this was the basis for the conviction.

The issue on appeal was whether the officers’ pat search was justified by officer safety. During the pat search the gun was found. This justified his arrest which lead to the cocaine being found.

The government argued that the pat search was legitimate based upon Powell’s past record and the fact that he lied about the status of his license. But the court applying Terry found that ” that a reasonably prudent officer in these circumstances would not be warranted in the suspicion that Powell was armed and dangerous on the
night of the traffic stop.” Without evidence that Powell was armed and dangerous the officers had no right to pat search Powell and the the arrest as well as the search incident to the arrest were fruits of the illegal pat search. The cocaine had to be suppressed and the conviction vacated.

A California court had the opportunity last week to explore some of the questions left open by the Supreme Court in Arizona v. Gant..

Vernon Evan was driving his car in Los Angeles. An officer pulled him over for weaving and ordered him to get out of his car. He refused. After several attempts to get Evans to leave the vehicle an officer broke his window and maced the inside of the vehicle. After getting Evan out of the car police searched the vehicle finding $65.00 and several clean baggies. ¹ After arresting him for interfering with an officer and impounding the vehicle, the officers discovered that during a prior arrest of Evans a gun was found in the air vent. The officers went to the impound yard and found cocaine in the air vent.

In Gant the Supreme Court ruled that a search of an automobile incident to an arrest can only occur if the arrestee is “within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” The court held that under Gant neither the roadside search which occurred while the defendant was out of the car and under arrest nor the impound yard search was permissible and it reversed the cocaine related convictions. Obviously during neither of the searches was Evans within reaching distance of the passenger compartment of the vehicle. The second Gant prong is a little more difficult since the Supreme Court did not did not define what it meant by the phrase “reasonable to believe” that the vehicle contained evidence of the offense. But the court found that there was nothing innate in the charge of interfering with an officer or in the facts of the case that would read an officer to have a “reasonable suspicion” that physical evidence of the crime would be found. Therefore it reversed the trial court’s denial of Evans’ search motion and remanded the case to the trial court.

The Supreme Court, Tuesday, heard the case of Antoine Jones, the Washington D. C. nightclub owner who was sentenced to life in prison for cocaine related charges after police placed a GPS device on his vehicle, without a search warrant and tracked him for a month.

There is something basically wrong with the government being able to track citizens wherever they go and whatever they do. As Justice Breyer said, it “sounds like ‘1984.’ ” Breyer and Sotomeyer pointed out that if the government is right, they can put a tracking device on every car in country and track everyone.

While the majority of the court seemed to agree that the United State government violated the Fourth Amendment, the problem is U.S. v. Knotts. In Knotts, a 1983 case, the Supreme Court ruled that the Fourth Amendment was not violated when the police used a beeper to track a vehicle carrying chemicals from the retailer to the residence where a methamphetamine lab was located.

As a general rule the Supreme Court is reluctant to reverse prior decisions. It prefers to differentiate the prior decision by a difference in the facts between the two cases. But that will be difficult here. The difference between a beeper and the more modern GPS is probably immaterial. It has been suggested that the court will find that it was okay to track the vehicle in Knotts since that was for only one day while it is not okay in Jones because it was for a month. But where do you draw the line. Is two days okay? Is 29 days not okay? Is 15 days permissible but not 16 days? It may just be time to admit they made a mistake and reverse the finding in Knotts.

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.

Last January the California Supreme Court found in People v. Diaz that the search of a cell phone on the person of an arrestee was legal under the Fourth Amendment exception to the warrant requirement for searches made pursuant to a lawful arrest even if the search did not occur until 90 minutes after the arrest. The California Legislature passed SB 914 making cell phone searches illegal without a search warrant. But Governor Jerry Brown vetoed the legislation yesterday.

Brown, the former state attorney general, sided with law enforcement officers who argued that cell phones contain information about crimes that can be deleted before a search warrant can be obtained.

But as an attempt to override Diaz the legislation would probably have failed anyway. It does not take into consideration the concurring opinion of Justice Kennard in Diaz. She pointed out that Article One, Section 24 of the California Constitution limits the exclusionary rule to the exclusion of items which are seized in violation of the Fourth Amendment. Thus the California statute vetoed by Governor Brown could not have required the exclusion of text messages on a cell phone in light of the state Supreme Court’s finding in Diaz that the seizure of the cell phone did not violate the Fourth Amendment.