Manhattan Borough President Scott Stringer called for a reduction in the city’s stop and frisk policy. Last year the NYPD made 600,000 stops and this year they will probably make 700,000.

Most of the stops are of young African American and Latino men. Over 85 percent of the stops are of non-whites. A young African American or Latino is nine times more likely to be stopped than a white person. Yet only seven percent of these stops result in arrests.

Under Terry v. Ohio in order to stop someone, an officer must have a reasonable suspicion that the individual is involved in criminal activity and in order to frisk that person the officer must have a reasonable suspicion that the person is carrying a weapon.

But all too often officers, knowing that they do not have a reasonable suspicion that the young person of color is involved in criminal activity of carrying an illegal weapon stops and frisks the individual any way. Sometimes they do it purely for harassment. Other times they do it because they hope to get lucky and find that the person is either on parole or probation with a search clause allowing the officer to search the individual without a reasonable suspicion of wrong doing. Third world members are often so used to being searched that they consent to what would otherwise be an illegal search. If they consent to the search anything found on them (drugs, guns, etc.) can be used against them in court. And sometimes, to be honest, police write false reports, alleging consent when consent was not given. Knowing that a DA, a judge or a jury is more likely to believe a police officer than a minority youth.

One of the problems with the extraordinary number of searches of minority youth is that they and their families learn not to trust the police. As a result they do not cooperate with officers who are investigating crime and do not reports criminal acts to the police.

There was an arrest warrant for Torrance Hill. His address was unknown but the authorities knew the address of his girl friend. However they felt that it was unlikely that he would be at her home, knowing that the police were looking for him and knowing that they would be looking for him at his girl friend’s townhouse. They went to the house, anyway, to question the girl friend. They knocked on the door. No one answered. They could here voices inside but they were unsure whether people were inside or it was the television. They called his girl friend, Ms Alvarez ¹ She was at work and she said the only person who could be in the residence was her sister.

The police opened the door anyway and found Hill in the house. They searched the residence and found marijuana and a grinder. An hour later Alvarez came home and consented to a full surch of the residence. They found a two-shot revolver, an empty holster, a bulletproof vest, scales, ammunition, marijuana, and crack cocaine. Hill was indicted and moved to suppress the evidence on Fourth Amendment grounds.

The strongest case for Fourth Amendment protection occurs when authorities search a residence. One’s house is one’s castle and an unconsented entry intp the house violates the Fourth Amendment. Officers can enter with a arrest warrant but only if the wanted person lives in the residence and the police have reason to believe that the person is present. Once they arrest a person in a residence they may search the area near the person as a search incident to arrest. They can also search the residence if the resident consents to the search. In this case the entry into the residence was illegal. The officers did not have consent at the time of the entry and they did not have reason to believe that Hill was in the residence. In fact an officer testified that there was an eighty per cent chance that Hill was not in the residence.

The Fourth Circuit Court of Appeals remanded the case to the trial court with instructions to determine whether or not the consent given by Alvarez was sufficiently attenuated from the illegal entry or whether it was tainted by the entry. The court instructed the lower court to look at three factors: (1) the time between the Fourth Amendment violation and the consent, (2) the presence of intervening circumstances, and (3) the flagrancy of the official misconduct. After reviewing these factors the court can determine whether Alvarez’s consent was voluntary or whether it was forced on her by the illegal entry into her house.

In 1984 the California legislature approved DNA testing for those convicted of serious felonies. In 1998 the legislature expanded the number of crimes for which a conviction would result in DNA testing. In 2004 California voters approved Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act which required the immediate testing of all people arrested on a felony.

Last week the District Court of Appeals found the Act to violate the Fourth Amendment in that it does not required individualized suspicion or probable cause approved by a judge. Individualized suspicion is needed prior to any search of the body for a criminal investigation.

But the State argued that the DNA testing was not being done for a criminal investigation. Rather the purpose of the testing was for identification purposes. The touchstone of the Fourth Amendment is reasonableness. To determine if a search is reasonable the courts use the totality of the circumstances test under which they balance the needs of government against the privacy interest of the individual.

But in balancing the needs the court found that in as far at the State’s needs for identification versus the individual’s privacy rights, the individual wins. A fingerprint analysis using the FBI’s computers in Washington D. C. can be done in ten minutes while it takes on an average 31 days to develop a DNA profile. The electoral advertising for Proposition 69 all emphasized DNA’s use as an investigative tool, not its use for identification. The state’s regulations for the taking of DNA all require that identification of the arrestee occur prior to submitting the DNA sample. In fact they require that fingerprints be submitted along with the DNA sample.

On the other hand while it is easy to take a DNA sample to do so is quite invasive. The state gains a tremendous amount of information about the individual besides the identification of the individual. It may be possible using the DNA sample to determine what illnesses the person has and perhaps even the propensity of the person to commit violent acts. None of this is necessary for identification but it invades the privacy rights of the person without a prior court finding of probable cause. As a result of the balancing test the Court found the DNA testing of individuals arrested for a felony, but for whom there has been no finding of probable cause unconstitutional.

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?

In 2003 a Maryland court issued a misdemeanor warrant for Frederick P. Henry for failure to pay child support. Deputy Robert Purnell went to Henry’s trailer to serve the warrant. He met a man outside the trailer who said he was a friend of Henry’s. The man told the deputy that Henry was at work and gave the address of his employment. When Purness went to the address he was told that Henry no longer worked there. At this point Purnell realized that he had been scammed. The man at the trailer was Henry. Not long afterwards Purnell saw Henry as a passenger in a vehicle. He stopped the vehicle and Henry admitted his identity. After Henry was out of the vehicle he started to run away. Without giving any warning and meaning to shoot him with his Laser, Purnell shot him from behind with his service revolver in the knee.

After three attempts to get a summary judgement motion, the District Court granted Purnell’s summary judgement motion on qualified immunity grounds. Law enforcement officers have qualified immunity from suit unless they violate a right guaranteed by the constitution and the right was clearly established at the time of the violation. The District Court ruled that Purnell had qualified immunity because the officer’s actions were reasonable in light of the minimal training that he received in use of the Laser. A panel of the Fourth Circuit Court of Appeals affirmed the decision. But last week the court sitting en banc reversed the decision finding that long standing Fourth Amendment law required that a violation of the Amendment is determined objectively and Purnell’s subjective view that he was within the Amendment is irrelevant. There is no question that the use of deadly force to make an arrest violates the Fourth Amendment unless “probable cause [exists] to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others”. Here there was no evidence of violence. Henry had no criminal history of violence. He did not have a gun on him. His back was facing the officer. Since there was no threat of violence the officer’s use of a gun whether or not he subjectively thought he was using a Laser was a violation of the Fourth Amendment. Furthermore the law is longstanding and it was clear in 2003 at the time of the incident. Therefore the Fourth Circuit reversed the decision and remanded the case to the District Court for trial.

In Michigan v. Summers the Supreme Court held that a search warrant for a residence allows officers to detain those in the residence during the search and that this right extended to a man leaving the residence as officers entered. In United States v. Bailey the Second Circuit Court of Appeals, last week, extended the permissible detention to an individual the officers saw drive away from the residence in order to allow them to follow and stop the individual. The officers then brought the individual back to the residence and detained him until the search was over.

With a search warrant for a basement apartment at 103 Lake Drive in Wyandanch, New York officers arrived at the residence. They saw two men, one of them Chunon Bailey leave the unit and drive away. They followed the vehicle, stopped it and brought the men back to the residence. Bailey was detained and he was arrested after guns and drugs were found in the residence.

In Summers the Supreme Court provided three reasons to justify the detention of someone leaving a residence: (1) “preventing flight in the event that incriminating evidence is found”; (2) “minimizing the risk of harm to the officers”; and (3) facilitating “the orderly completion of the search.” In a footnote the Second Circuit says that the first and second criteria apply. But it gives no facts to support this view. In another footnote it states that the police officers testified that the reason they didn’t immediately detain Bailey was that they were afraid that by doing so they would alert anyone else in the house to the police presence and a dangerous situation may result.

It is one thing to follow the Supreme Court’s criteria. It is another to make a blanket holding. The Second Circuit held, “that Summers authorizes law enforcement to detain the occupant of premises subject to a valid search warrant when that person is seen leaving those premises and the detention is effected as soon as reasonably practicable.”

This issue may come before the Supreme Court. The Circuit Courts are divided. The Fifth, Sixth, and Seventh Circuits, like the Second Circuit, upheld detentions of people after they left the scene. The Eighth and the Tenth Circuits ruled to the contrary. They held that once a person left the residence the Summers criteria are no longer applicable. If the person leaves the scene without knowing that a surveilance is in progress then the officers are not in danger. The Second Circuit’s response is that the officers are required to make a difficult decision: either to detain Bailey outside the residence and possibly notify those inside that the police are present or to to let Bailey, who they call a “person of interest to leave without being detained. While the search warrant indicates that a judge found probable cause to believe that someone in the residence may have committed a crime at the time of the detention there was no individualized suspicion, as required by Terry that Bailey committed a crime and he should not have been detained. When you detain someone a mile away from the house, return they to the house and require them to wait until the search is over it is no longer the minimal intrusion found by the Supreme Court in Summers.

In Davis v. United States the Supreme Court took another blow at the Exclusionary Rule. It ruled that the good faith exception should be applied to situations in which the police rely upon settled law that is later overturned by the Supreme Court.

In 2007 relying upon Eleventh Circuit interpretation of Belton v. New York, Greenville, Alabama police arrested the two people in an automobile, handcuffed them and placed them in a police car. Then they searched the vehicle and found a gun. Willie Gene Davis, the passenger in the car, was then charged with possession of a gun by a convicted felon. The Eleventh Circuit and the Supreme Court agreed that the search was illegal, based on Gant v. Arizona in which the Supreme Court in 2009 held that the search of the interior of an automobile, pursuant to an arrest, can only occur if the passengers are in a position where they can reach items in the car or there is probable cause to believe that contraband can be found in the vehicle.

Since Davis’ conviction was not final when the Supreme Court ruled on Gant, Gant’s finding applied to Davis. But the Supreme Court ruled that just because the finding applied to Davis, the remedy of exclusion does not necessarily apply. The sole purpose of the exclusionary rule is to deter police from performing illegal searches. The deterrent value must be weighed against the societal harm caused by the suppression. In this case the Supreme Court found that there was no deterrent value since the police in searching the vehicle were complying with the then settled law. Therefore while the search was unconstitutional, the remedy is not suppression. The Court did not attempt to define any remedy, although in other cases they have stated that the remedy could be limited to a civil suit.

As the dissent, by Justice Breyer, points out the decision may have serious consequences. While few searches will directly be affected. It is rare for the Supreme Court to reverse prior decisions. But police are generally assume to follow the law or at least to try to follow the law. It is rare that they intentionally violate the Fourth Amendment. There is language in Justice Alito’s majority opinion which can be cited to support the refusal to apply the exclusionary rule in any case in which officers are acting in good faith. If officers are acting in good faith then there is little deterrent value in later excluding the fruit of their search.

I have trouble with the view that deterrence is the only reason for the exclusionary rule. An unconstitutional search violates the privacy rights of those who are the subject of the search. This was recognized in Terry when the Supreme Court ruled that a search was any action which violated the privacy rights of an individual when those privacy rights are accepted by society. If one of the purposes of the Fourth Amendment is to protect privacy rights then in order to redress the injury the fruit of the illegal invasion of a person’s privacy should not be entered into evidence against the person at trial.

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.

Google and Apple have refused to bow down to Congressional pressure and remove aps which identify the location of DUI checkpoints. However, Apple has agreed not to accept any new DUI checkpoint aps.

The pressure from Senators Schumer and Reid is interesting. One of the purposes of the checkpoints is to publicize the problems with drunk drivers. In fact the California Supreme Court has said, “Advance publicity is important to the maintenance of a constitutionally permissible sobriety checkpoint. Publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock.” A concurring justice when the legality of checkpoints came before the Arizona Supreme Court wrote, “Next, the efficacy of a deterrent roadblock is heightened by advance publicity in the media and on the highways. Such publicity would warn those using the highways that they might expect to find roadblocks designed to check for sobriety; the warning may well decrease the chance of apprehending “ordinary” criminals, but should certainly have a considerable deterring effect by either dissuading people from taking “one more for the road,” persuading them to drink at home, or inducing them to take taxicabs.”

Courts have held that the primary purpose behind the checkpoints is not to arrest people but to deter drunk drivers from taking to the road. If arrests were the primary purpose the Fourth Amendment would require individualized probable cause. But since deterrence is the primary purpose the detentions are treated as administrative stops and probable cause is not necessary.

The computer apps further the causes of deterrence and education. They should be encouraged, not banned.

After a gang shooting, officers staked out the hospital where the victim was dying. They observed a car with four people, at least three of whom they recognized as members of the gang. Fearing that the passengers in the car might try to get revenge for the shooting, they followed the vehicle. Together with another police car they pulled over the gang members for speeding. The men in the car were noticably nervous. They were breathing heavily. ¹ The officers ordered the men out of the vehicle and performed pat searches on them but found nothing.

They searched the vehicles and initially found nothing. Officer Scott O’Brien arrived on the scene. He had undergone advanced training in finding hidden compartments in vehicles. He observed a magnet on the dashboard. Magnets are often used to open metalic hidden compartments. He noted that the tail pipe had been tampered with. Within five minutes of beginning his search he found a loaded handgun and cocaine in the front seat console. Melvin McGregor, the driver of the vehicle was arrested.

At trial he moved to suppress the gun and the cocaine on Fourth Amendment grounds. He claimed there was not probable cause to search the vehicle and that the initial stop was a pretext. ² The motion was denied and he appealed.

Several issues were raised on appeal regarding the search of the vehicle. First McGregor objects to the duration of the search. The First Circuit found that while the actual duration of the search is somewhat foggy and over an hour passed from the time of the search to the time of the booking, Officer Brian Smigielski testified that the actual search lasted only five minutes and the appellate court is limited to viewing the facts in such a way as to uphold the findings of the trial court. Since the trial court denied the motion to suppress, the appellate court reasons the trial court must have accepted Smigielski’s testimony on the issue.

Second, McGregor challenged the scope of the search. The scope was limited to finding weapons that might endanger the officers. Upon stopping a vehicle, the police may pat search the passengers and perform a limited search of those parts of the vehicle within the reach of the passengers where weapons may be found if they have reasonable grounds for suspecting that the detainees are dangerous. Here the court found that considering the facts that the passengers were nervous, that a shooting had recently occurred, that at least three of the people in the car were gang member, that gangs often carry out revenge shootings, that the four had met at the hospital, and that they left the hospital in a hurry the officers who had considerable experience investigating gang activity could legitimately believe that a gun would be found in the vehicle. Thus the scope of the search and the seizing of the gun in the front seat console was necessary to protect officer safety.

While any individual factor may not have provided a reasonable suspicion to search the vehicle, the court found that the totality of the circumstances justified the search and it affirmed the conviction