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.

Officer Robert M. Bauer, a Fairfax County Virginia police officer, investigated a complaint that a vehicle later determined to belong to Dr. Rose Merchant had forced another car off the freeway and that Merchant’s vehicle had blue flashing lights. Bauer made plans to meet Merchant and her husband. It was determined that her husband had the car during the time in question but their was no proof the car had blue flashing lights or that such lights had at some point been removed from the vehicle. During the conversation Merchant, a psychologist told Bauer that she worked in law enforcement and that she was the Deputy Director of the Department of Corrections of Prince George’s County, Maryland. He could see a concealed badge but he could not make out what it said and at no point did Merchant show it to him.

He started an investigation for impersonation of an officer. During the investigation he verified the information Merchant gave him during the meeting. He also verified that certain citizen employees of the n Prince George’s County Department of Corrections, including Merchant, were entitled to carry a badge. However, he continued the investigation. He discussed his findings with a deputy Commonwealth’s Attorney who told him he had a good case and he reviewed case law on the matter. Then he went to a magistrate and got a warrant. Merchant was arrested. But at trial the court threw the case out finding that there was no evidence to support the charges.

Merchant sued. Bauer claimed qualified immunity. The District Court denied the claim. In order to find that the officer had qualified immunity the court must find that there was no violation of a constitutional right or the right was not clearly established at the time of the incident. . The constitutional right to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment. The need for probable cause to arrest a person was well known at the time of Merchant’s arrest and no reasonable person would have thought that probable cause existed based upon the information known to Bauer. As a result the Fourth Circuit Court of Appeal upheld the denial of qualified immunity.

Paulette Martin, Derrek Lewis Bynum, and Learley Reed Goodwin were convicted of committing a number of drug related charges. The District Court also forfeited various items including “over $400,000 in currency from accounts held by Appellants, a Mercedes automobile owned by Martin, and several million dollars” that the court found to be the proceeds of the drug trade.

By January of 2005 the government was pursuing both civil and criminal forfeiture of the items. Martin challenged the civil forfeiture during February of 2005. Under the Civil Asset Forfeiture Reform Act, 18 U.S.C. § 983 (“CAFRA”) the government has 90 days from the date Martin filed her complaint to do one of the following:

(1) ‘file a [civil] complaint for forfeiture,’ (2) ‘obtain a criminal indictment containing an allegation that the property is subject to forfeiture[ ] and take the steps necessary to preserve its right to maintain custody of the property as provided in the applicable criminal forfeiture statute,’ or (3) ‘return the property.’ 18 U.S.C. § 983(a)(3)(B)

The government did none of these. Failure to comply requires release of the property. However, the court found the claim untimely. ¹ The government obtained a criminal seizure warrant.

After the criminal trial the court held two hearings on the forfeiture announcing that it planned to declare a forfeiture but the subject of the forfeiture was somewhat unclear. Then it sentenced the defendants on December 19, 2006, without mentioning the forfeiture. No one objected at the sentencing. It wasn’t until June 14, 2007 that the court entered its final judgement on the forfeiture and it did not amend the judgement.

The law requires that the forfeiture which is a type of punishment be entered at the time of the sentencing and be part of the judgement.

On appeal the defendants either individually or jointly argued that the civil forfeiture was illegal and that invalidated the criminal forfeiture. They also argued that the criminal forfeiture was invalid in that it was untimely. The Fourth Circuit Court of Appeals ruled that even if the civil forfeiture was illegal the government can forfeit the property on independent grounds in the criminal forfeiture action. Although the requirements are found in Federal Rule of Criminal Procedure 32.2 it does not state what the remedy is for the court’s failure to comply. The defendants argued that the court lost jurisdiction to order the forfeiture but the Fourth Circuit held that the court did not lose jurisdiction as long as prior to sentencing it made it clear that that it planned to order forfeiture. The dissent argued that at best the court must make it clear exactly what was going to be forfeited and without doing so it lost jurisdiction. But the majority thought that the court made it sufficiently clear and upheld the forfeiture.

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.

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 Fourth Circuit Court of Appeals held that despite the significant changes in Confrontation Clause interpretation over the past several years hearsay remains admissible at sentencing.

Solomon S. Powell was convicted of mail fraud. He collected money for sale of merchandise over the internet, but he rarely delivered the merchandise. Though eight victims testified at trial at sentencing the court relied upon the investigation of Postal Inspector Evelyn Cross who testified at the hearing that he harmed over fifty people and that there was a loss of more than $200,000. This would have led to a guideline sentence of between 120 and 150 months. In an abundance of caustion the Court found that there were over 10 victims and a loss of $199,000, sentencing him to 102 months. While her report was thorough only the eight victims testified and the rest was based on hearsay.

Powell pointed to a line of Supreme Court cases, beginning with the 2004 case Crawford v. Washington limiting testimonial hearsay to cases where the witness is unavailable and where the defendant has had a chance to cross examine the witness. But the court held that once a person is convicted the right of confrontation no longer exists. The Supreme Court limited Crawford and its prodigy to evidence at trial and absent a change by the Supreme Court there was suffficient precedents to reject the confrontation clause at sentencing. It found that a wide variety of evidence is admissible at sentencing and that traditionally, as long as the evidence is reliable, hearsay has been admissible. As a result it upheld the sentence.

The Eighth Amendment”s Excessive Fines Clause reads, “Excessive bail shall not be required, nor excessive fines imposed.” The Fourth Circuit ruled yesterday in a case applying the Clause to a civil forfeiture.

Girma Afework attempted to deposit $79,650.00 into his PNC bank account. When told the bank would have to complete a government form prior to accepting any amount over $10,000, he limited his deposit to $9900 and in succeeding deposits he put the entire sum into his PNC and Bank of America accounts. Dividing a deposit into several deposits in order to avoid the $10,000 limit violates Federal law and is called “structuring.”

The government seized the money and moved to forfeit it. Afework sued to get the money back. He lost, the trial court finding sufficient evidence tat 1) he structured the transaction, 2) that he knew of the bank’s obligation to file reports with the government, and 3) that he structured the transaction with the intent to avoid the reporting requirement. But the trial court limited the government’s gain to $50,000 based upon the Guideline penalty for structuring.

Under the Eighth Amendment. fines, both civil and criminal must be proportional to the harm done. Generally the courts looks at possible penalties to determine whether or not the fines meets the proportionality requirement of the Eighth Amendment. The Fourth Circuit found that the maximum fine for structuring over $100,000 is $500,000. ¹ Therefore the appellate court remanded the case for resentencing.

The Fourth Circuit Court of Appeals denied Rae Carruth’s petition for a writ of habeas corpus following the conviction of the former Carolina Panther football star for conspiracy to commit the murder of his pregnant girlfriend, use of an instrument to destroy their unborn child, and discharge of a firearm into occupied property.

Carruth went to a movie with Cherica Adams, who was eight months pregnant with their son. After the movie they went to his house to pick up her car and they drove to her house. While at his house, Carruth called his friend Michael Kennedy. Adams followed Carruth to her house. Kennedy with two passengers followed Adams. As they approached her house, Carruth slowed down. Kennedy came up alongside Adams and a passenger in his car, Van Brett Watkins shot her four times. Carruth and Kennedy disappeared. Adams called 911 and was taken to the hospital where she held on to life for another month. The baby was saved but Adams died.

During the trial three problematic pieces of evidence were used by the district attorney: two statements by Adams to a police officers and notes that she wrote to a nurse in the hospital. For the purpose of the appeal the court assumed that the admission of the items were constitutional errors but it determined that there was sufficient evidence corroborating the items and admissible items to convict him without considering the three items.

The primary piece of evidence was the transcript of the 911 call. During the call Adams clearly laid out the events of the evening and they were quite inculpatory. Numerous witnesses testified for both sides with significant cross examination but Carruth’s attorney was unable to make any dent in the facts as stated above. Experts testified about the effect of drugs given to Adams in the hospital. Her cousin and her father testified about statements she made to them. Other witnesses testified that Carruth had a motive to kill Adams. He was angry that she would not have an abortion and he was afraid that child support payments would bankrupt him.

In the end the appellate court found that the erroneously entered evidence did not have a “substantial and injurious effect” upon the verdict and denied the petition for a writ of habeas corpus.

Edith Hernandez-Mendez and seven young Hispanic men were hanging out across the street from Montgomery Blair High School (BHS) shortly before the end of the school day. The previous day a member of a Hispanic gang was stabbed a couple of miles from the school and the police gang unit decided to surveil the area around the school.

Members of the Hispanic gangs attended the school though apparently the police knew of no connection between students at the school and the stabbing.

The police saw four young Hispanic men across from the school. The four were joined by three other men and Hernandez-Mendez but Hernandez-Mendez stood some distance from the men. At one point however one of the men spoke with her. One of the men, wearing a red shirt ¹appeared to be leading a discussion.

Hernandez-Mendez walked away from the group. One of the police officers who were not in uniform followed her. The police officers decided to make contact with the young people. As the officers approached the men three walked in one direction and three in another. The one in the red shirt started running and got away.

Officer Doherty who was following Hernandez-Mendez was ordered to make contact. He detained her and eventually brought her back to where the men were detained. She was carrying a purse and a wallet. Officer Webster who was in charge the surveillance asked her for ID. She took a credit card out of the wallet. He asked her if she knew the man in the red shirt. She said she did not know anyone. Webster asked to look in her wallet. She let him. He found more credit cards, all in her name. He asked for picture ID. She said she did not have any. He asked for her purse. She refused it. He attempted to grab it and felt a hard object that could have been a gun.

She was arrested and convicted of possession of a gun by an alien and possession of a gun near a school.

At trial she moved to suppress the gun as the fruit of an illegal search. Her motion was denied and the conviction was upheld by the Fourth Circuit Court of Appeals.

A person can be detained if an officer “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. . . . [T]he officer must be able to articulate an objectively reasonable suspicion of criminal activity. However the officer may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.”

The Court found that Officer Webster properly relying “on his knowledge of Hispanic gangs in the area, his experience responding to gang-related incidents at BHS, and his observations during the surveillance” had “reasonable suspicion to stop the group of eight young Hispanic people gathered across from the school that afternoon” and frisk them.

Let’s be frank. The Supreme Court in Terry required specific and articulable facts that an individual had committed or was about to commit a crime prior to their being detained. The only specific and articulable facts available to Officer Webster and his crew upon which he could use his experience and training to stop and frisk the young people were their age and their ethnicity. This is profiling at its worst. Detention and frisking cannot be based solely upon ethnicity or age. There is no evidence that any of the young people outside the school were members of any gang ² or that they resembled any of the people associated with the stabbing. They had not committed any crime and there was no evidence against them. The search was illegal and the conviction should have been reversed.

A cab driver saw a four year old girl wandering along a street without any apparent supervision. He called the police and Officer Anthony Ratliff arrived. After taking custody of the child, he asked her where she lived. She pointed to a nearby house. The door was open. He knocked on the door. No one answered. He followed the child in the house, calling out to see if anyone was home. In a bedroom in the back of the house the officer found a man who appeared to waking up. The man said he was the child’s father but he did not have any ID.

He gave a false name and a birthdate. After backup officers arrived Ratliff went out to his car and checked the name on a computer and found nothing.

Ratliff noticed a bag of bullets in the room. He searched the room and found a gun under the mattress. A computer search, conducted after Ratliff got Taylor’s name in a telephone conversation with the child’s mother indicated that Taylor was a convicted felon and Ratliff arrested Taylor for being a felon in possession of a gun.

Taylor’s motion to suppress the evidence was denied and he appealed.

He claimed the search was illegal in that it was performed without probable cause that a crime was committed and without a search warrant. It is true that for most searches of a residence a warrant is necessary. But Ratliff was not investigating a crime. He was trying to return a child to her parents. The Fourth Amendment does not require a warrant in all cases. But it requires that searches be reasonable and it was certainly reasonable for Ratliff to go into the house to look for the child’s parents. Likewise the search of the house looking for a parent was reasonable. Both the entrance into the house and the search for a parent are permitted under the exigent circumstances exception to the warrant clause.

The appeal was denied. The court justified the entry into the building, the search for Taylor and the search of his room under the exigent circumstances exception.

But where I part from the Court is in the search under the mattress for the gun. There is no law requiring an individual to have identification and any law that so requires identification, other than while driving, violates the Constitution. Thus he had not committed any crime allowing the officers to search the room. Without knowing more there is no law against the possession of bullets. So finding the bag of bullets did not give the officers probable cause that a crime occurred. If the gun was under the mattress and Taylor was on top of the mattress, he could not get the gun and the officers were not endangered. There was no reason to search under the mattress and the search did not further the goal of finding the child’s parents. Even knowing Taylor’s name did not prove or disprove that he was the father. If the police had any doubt and there was no reason for them to have doubts they could ask for pictures, to see the child’s bedroom, or to talk to the child’s mother. But knowing his name was immaterial and searching the room violated Taylor’s Fourth Amendment rights.