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.

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.

In a rare case the Fifth Circuit Court of Appeals reversed a conviction where the trial judge wrongly denied a motion to suppress evidence.

Corey Raney was driving on a two lane street. Due to gasoline shortages surrounding Hurricane Ike traffic was backed up in his lane by drivers attempting to buy fuel at a gas station. Two officers were providing traffic control but it is unclear if Raney saw them.. He attempted to pass the backed up vehicles. There was no on-coming traffic but one of the officers was standing in the empty lane. Raney was stopped by Houston Police Officer Rohan Walker.

After the car was stopped, Walker smelled marijuana and he thought he saw a marijuana cigarette fall to the ground. He ordered Raney out of the car and searched him, finding a .45 caliber Sig Sauer firearm in his waistband. A records search revealed that Raney was a convicted felon and was not allowed to have a weapon on him. He was arrested and the vehicle was searched.

Prior to trial he moved to suppress the evidence. He alleged at the hearing on the motion and again at trial that Officer Walker had no right to stop him.

To stop a vehicle a police officer must have probable cause that a crime has been committed. The government alleged that Reaney violated three traffic laws. First they alleged that he rode on the wrong side of the road. On this basis the trial court denied the suppression motion. But the appellate court pointed out that under Texas law it is permissible to ride in the left lane to pass vehicles or there is an obstruction in the lane. Second the government alleged that he failed to follow the officer’s orders when Walker told him to get back into the right lane. But there was no evidence he saw or heard the officer order him to get back into the right lane. Third, it was alleged that he drove recklessly. But he was driving 10 to 15 miles per hour. There was no traffic in the left lane and there is no evidence that the officer was in any way in danger as a result of Raney driving on the left side of the road.

On the appeal the government brought up two more reasons. ¹ They claimed that he was passing within 100 feet of the intersection. But the evidence at trial showed that Officer Walker who was between Raney and the intersection was 100 feet from the intersection and Raney was farther away. They also alleged that he failed to stay in one lane. But in this instance he was passing non-moving vehicles and that is legal under the law. ²

The Fifth Circuit reversed the conviction.

There was another issue raised on appeal. The United State attorney made a number of questionable argument in the closing argument. Since the Court reversed the decision base upon the Fourth Amendment issues it did not rule on the U. S. Attorney’s arguments. But it was clearly trouble by the arguments.

First, the prosecutor stated that “[t]he gun was loaded, a round in the chamber, ready to be fired. Bang, bang, bang.” This type of comment wrongly leads to an emotional response by the jury instead of an intellectual determination of guilt. Second, during closing argument the prosecutor accused Raney’s wife Jasmine, who testified at trial of calling Walker a lier. She did not and the judge upheld the defense objection. Finally the prosecutor asked the jury to decide whether the police officers had a motive to “tell something other than truth,” and suggested that the officers would not “put their careers on the line[,]” This is called vouching for a witness. The prosecutor who was not present at the incident cannot tell the jury that a witness is telling the truth.

In United States v. Krupa the Ninth Circuit had to answer the question of what constitutes probable cause to search computers for child porn. Their answer is that it doesn’t take much. The facts of the case is that the mother of two young children got nervous when her kids were not on the scheduled train returning from a visit to their father who was a sergeant stationed at Edwards Air Force Base.

She called the military police. they went to the sergeant’s on base residence and found the kids under the supervision of a civilian, Peter Krupa. Her husband was in the Philippines, scheduled to return in nine days. ¹ They found the house in considerable disarray and they found thirteen computer towers in the house.

They requested and received permission to search the computers. The officer assigned to the job became ill after finding one picture that appeared to be a nude girl between 15 and 17, with the caption “www.nude-teens.com.” Before the officer got well Velasco and Krupa withdrew the consent.

The government then got a search warrant to complete the search of the computers. The Ninth Circuit upheld the search.

Previously the Ninth Circuit had ruled that one picture of a nude teenager was insufficient to find probable cause. After all many works of art show nude teenagers. ² Furthermore pictures of nudes can only be considered porn if they are lascivious and there was no evidence of that. None of the other “facts” are relevant since they do not make it more likely that a criminal act occurred.

Perhaps the conservative position is a reaction to the Supreme Court’s reversal of five consecutive Ninth Circuit opinions over the past month. Hopefully the case will be considered en banc and reversed. As the dissent points out the affidavit supporting the request for a search warrant was totally lacking any evidence of criminal behavior

Rodney Bynard Johnson was convicted of possession of a firearm by a convicted felon in the District Court for the Western District of Oklahoma and sentenced to fifteen years in prison. He appealed to the Tenth Circuit Court of Appeals claiming that his motion to suppress evidence should have been granted and that his sentence was unreasonable.

Johnson was driving a car late at night with two passengers. He was pulled over by an Oklahoma State Highway Patrol trooper after the officer observed him swerving. He was ordered out of the rental car he was driving and into the police car. According to the officer he immediately smelled marijuana on Johnson’s breath. But according to a video it was nine minutes later before he asked Johnson about the marijuana. The officer left Johnson in the patrol car and got the rental contract out of the car Johnson had been driving. He again smelled marijuana in the car.

The trooper decided to search the vehicle. Along with the marijuana he based the search on the vehicle being from out of state; the lessee or owner of the car was not present; the defendant did not know the actual name of one of his companions ; it was very late at night; the passengers had made unusual movements while the officer had been following the car; and the occupants’ plans were vague. A gun was found on the driver’s seat below a blanket. The Tenth Circuit said that the mere fact that there was an odor of marijuana was enough to search the vehicle.

Johnson challenged the search on appeal by showing incongruities between the officer’s testimony and the video tape as well as between the trial court’s findings and the testimony. But the trial court found the officer’s testimony to be credible and barring a major showing to the contrary the appellate court was bound to accept the trial court’s finding of facts and the facts as being most favorable to the winning side (the government) in the trial court. The important thing to remember from this case is that appellate courts have limited powers. Unless the facts, as found by the trier of fact, are unreasonable the appellate court must accept them as true. A few incongruities or challenges to the witness’ credibility cannot change the duty of the appellate court to accept the facts as found by the trier of the facts ¹.

As far as the sentence, Johnson had three prior convictions for either drug offenses or crimes of violence and the trial court had no choice but to sentence him a minimum of fifteen years under the Armed Career Criminal Act.

The Iowa Court of Appeals reversed a district court decision upholding a search at the residence of Pamela Robbins.

Officer Bruce Rhoads of the Tama County Sheriff’s Department obtained a search warrant for Robbins residence and for the residence of Michael Watson. The search warrant was based upon Rhoads’ experience, Watson’s criminal history, Watson’s purchases of pseudoephedrine, Robbins’ purchases of pseudoephedrine, suspicious traffic near Watson’s house, and the presence of Robbins’ car parked at Watson’s house. Pseudoephedrine is a drug commonly found in cold medications and it can be used in the manufacture of methamphetamine.

During the search of the houses drug related items were found. Robbins and Watson were charged with various drug charges.

The Fourth Amendment mandates that a search warrant must be supported by probable cause. In other words there must be a nexus between criminal activity and the place to be searched. The nexus must be great enough that “under the totality of the circumstances a person of reasonable prudence would believe that evidence of a crime might be located on the premises to be searched.”

Nowhere was it alleged that Robbins purchased pseudoephedrine in amounts that exceeded the legal maximum or that she purchased it more often than permitted by law. The appellate court ordered the suppression of all evidence found at Robbins’ home due to the lack of probable cause. Probable cause, according to the court cannot be based purely upon the legal purchase of a precursor drug.

Kathy Parker was flying from Philadelphia to North Carolina on business. She was flying out of Philadelphia International Airport. As she was going through the metal detectors a TSA agent selected her carry on baggage for an in depth inspection.

Her personal items were spilled out on the inspection table for everyone to see. (The agent asked if the diet pills work?) Checks, in her purse, made out to her and her husband were inspected. The agent claimed that they were in sequential order and they called over the Philadelphia police since the agent claimed that sequentially numbered checks were evidence of embezzlement. For some reason the agent thought that she had emptied her bank account prior to filing for divorce so the agent called her husband to find out if they were going through a divorce.

My bet is that the agent was trying to get a job as a police officer and she was trying “to crack a big case” to show that she was deserving. Of course she found nothing.

But the issue is not what was found but the change that has occurred in out society. The Fourth Amendment 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.

Of course generally the Fourth Amendment only applies to searches but in this case TSA is working as an agent of the government and is subject to the Fourth Amendment.

Here Parker’s personal belongings were seized and inspected without probable cause, without an affidavit, and without the permission of a judge.

The Fourth Amendment was added to the Constitution in reaction to the British writs of assistance. The writs of assistance were general search warrants issued to assist customs agents find smuggled goods. They were issued without probable cause that evidence of illegal behavior could be found in a specific location. James Otis a Boston lawyer, one of the earlier patriots, developed a reputation by fighting the writs, as did John Hancock a Boston merchant who was the president of the Continental Congress and signed the Declaration of Independence.

The question in the post 9/11 period is how much of the rights fought for in the Revolution are we willing to surrender in order to obtain security. Can we feel safe without searching the diet pills and the personal papers of a 43 year old business woman taking a domestic flight? I’m sure that Otis and Hancock as well as James Madison and who wrote the Bill of Rights based on George Mason’s Virginia Declaration of Rights would have found the risk de minimus and worth taking in order to preserve our fundamental rights.

A confidential informant told the Kansas City Drug Task Force that Ishmael Kedar Harris was selling drugs in the Kansas City area. They saw him with a duffel bag driving a truck. After following him for a short distance they requested the Grandview Police Department to find a reason to stop Harris. After following him for a couple of blocks a Grandview officer stopped him for having a tinted driver’s license cover. Tinted license cover are legal in Missouri as long as the tag is clearly visible.

They asked for permission to search the vehicle. Harris told the officer that it was his girl friend’s car. They called the girl friend who refused to consent.

A drug dog was brought to the scene and signaled the presence of contraband. This gave the officers probable cause to search the vehicle. They found a gun and three pounds of marijuana. Using this information they got a search warrant for Harris’ house where they found 29.7 pounds of marijuana.

The statute says that the license plate must be “clearly visible.” The officer testified at the hearing that he had to get right up on the tale of the vehicle before he could read the tag. The judge found the officer credible and denied the motion to suppress the evidence.

The appellate court found that it was a question of credibility. Since the trial judge’s decision is not “clearly erroneous” the appellate court denied the appeal.

One issue that is not discussed in the decision is the length of the stop. The length of a traffic stop is limited to the amount of time it takes to handle the situation for which there is probable cause. In this case it would be limited to the amount of time it would take to give Harris a ticket for the license plate cover and to check his ID and warrants. Nothing is said in the decision but I wonder if the time it took to call the girl friend and to bring the dog to the site where the car was stopped exceeded the time necessary to give the ticked, check for his ID and warrants.

Louisiana lawmakers are considering legislation that would require all people who have been convicted of two felony drug offenses to have the words “Drug Offender” printed in orange on their driver’s license. The bill which is sponsored by Rep. Rickey Hardy, D-Lafayette has been unanimously approved by the House Committee on Transportation, Highways and Public Works. Now it will go before the full House.

Louisiana already requires certain people convicted of sex offenses to have the words “Sex Offender’ printed on their license.

According to its supporters the legislation will help law enforcement officers. But the effect of the legislation would be to destroy the lives of ex-felons who may no longer be involved with narcotics. Driver’s licenses are used for many things. You cannot cash a check, rent an apartment, or get governmental services without showing your driver’s license. Thus the effect of the legislation may be to force ex cons to go homeless. steal merchandise, or go without vital services.

Furthermore any assistance to peace officers is minimal at best. Arrests can only be made upon a showing of probable cause. And probable cause cannot be based upon past convictions. It can only be based upon current information. It may result in police officers making arrest and performing searches without probable cause and these cases would have to be thrown out by the courts.

Thus while providing little benefit it would make it more difficult for ex offenders to get jobs, housing, and benefits. I guess the only way they will be able to survive is by selling drugs. Good job legislators!