A woman called the Albuquerque Police Department complaining that she heard a female neighbor yelling at a young child and beating the child in the neighbor’s back yard. She did not see anything due to a high fence.

Officer Debra Romero responded to the residence. Joseph Lundstrom answered the door. Lundstrom requested identification. Romero pointed to her badge. Romero ordered Lundstrom and his girlfriend, Jane Hibner to leave the house. Lundstrom asked why she was present and told her there was no child in the house. She pulled her gun. ¹ Hibner, the only other person in the house got between Lundstrom and Romero. Romero continued to point her gun at Hibner for a short while. Hibner left the house and was handcuffed by the officers. Lundstrom called 911 to assure himself of Romero’s identity. The operator assured him that Romero was an officer and asked him to exit the house. He did so with his hands raised He was handcuffed injured, and put in the police car. The police searched his house. No child was found. They were released without charges and sued for violations of the Fourth Amendment.

The police filed a motion for summary judgment which was granted and appealed. The defendants claimed that they had qualified immunity. Peace officers have qualified immunity against a civil rights suits unless the plaintiff can show that their constitutional rights were violated and that such rights were clear at the time of the incident. The Tenth Circuit has ruled that for a right to be clear it must be supported either by Tenth Circuit or U. S. Supreme Court precedent. In order to win the plaintiffs had to show that their constitutional rights were violated and that the state of the law was clear at the time of the incident. The Tenth Circuit ruled that the initial detention and the use of the gun was legal. While it was a search it was reasonable in light of the officer’s fear. Checking on the welfare of the child is part of the officers functions “community caretaking functions.” The officer pulled the gun in order to check on the item in Lundstrom’s hand which was a phone not a gun. But the court found that the handcuffing of Hibner, the surrounding of the house, the order for Lundstrom to exit the house, the handcuffing of Lundstrom were clear violations of the law supported by United States Supreme Court and Tenth Circuit precedents and therefore the claim of qualified immunity fails and the lower court decision was reversed. The Tenth Circuit relied upon the lack of probable cause to arrest them and the lack of reasonable suspicion to detain them. The original call said that a woman (and therefore not Lundstrom) was abusing the child. Prior to handcuffing Hibner the police had a chance to verify any suspicions by questioning her and they did not. Also they found no evidence that a child was in the house. When the original caller was told that there was not a child in the house she admitted that she may have been wrong about the location but the police continued to detain Lundstrom and Hibner.

The Fort Wayne Police Department received a tip that drugs were being sold at the residence of Michael Chapman. Chapman was on electronic monitoring in lieu of a jail sentence. In order to get the electronic monitoring he waived his rights against unreasonable searches under the Fourth Amendment. Therefore a police task force went to his house to search it. Two officers knocked at the front door and two more surveilled the back door. After the officers started knocking on the front door, Eddie Lamar Carlyle ran out the back door with a backpack.

The officers handcuffed him and seized the backpack. They found marijuana, crack. a scale, a spatula and packaging materials in the backpack. After he was arrested Carlyle moved to suppress the evidence as being seized without probable cause. The trial court denied his motion on the grounds that he did not have standing to object to the seizure. At the hearing on the motion he denied that he owned the backpack. He testified that the backpack belonged to Chapman asked him to put the backpack in the garage.

The Court denied his motion saying that he did not have standing. In determining whether a defendant has standing to suppress evidence the Seventh Circuit Court of Appeals looks at five primary factors:

(1) whether the defendant had a possessory [or ownership] interest in the thing seized or the place searched, (2) whether he had the right to exclude others from that place, (3) whether he exhibited a subjective expectation that it would remain free from governmental invasion, (4) whether he took normal precautions to maintain his privacy, and (5) whether he was legitimately on the premises.

He denied having an ownership interest in the backpack, but claimed to have a legitimate possessory interest in the pack since Chapman handed it to him. He exhibited the right to exclude other, except for Chapman. But at the same time he testified that he did not know what was in the bag. At the trial court hearing on the motion to suppress, Carlyle did not claim to have a subjective expectation of privacy in the backpack. Without such an expectation the appellate court ruled that he did not have standing to object to the seizure.

From the point of view of a trial attorney one needs to make strategic decision prior to filing a motion to suppress evidence. You need to make sure that your client has both a subjective and an objective expectation of privacy. You do not want to put your client on the stand to testify that he/she has possession of the contraband for the purpose standing if you plan to have your client take the stand at trial and deny a possessory interest in the contraband. Sometimes it is worthwhile to pass up a motion to suppress evidence in order to have a chance at trial. Once your client gets on the stand and admits to possession at the hearing on the motion to suppress evidence you lose your ability to negotiate the case and you set your client up for DA’s cross examination at trial.

In United States v. Naim Nafis Shakir, the Third Circuit Court of Appeals considered a search pursuant to a lawful arrest in a non-automobile context in the post Gant era. In Arizona v. Gant the Supreme Court clarified New York v.Belton. In Belton the Supreme Court ruled that in a vehicle search pursuant to an arrest officers could search the entire vehicle. But in Gant the Court ruled that since the purpose of a search pursuant to an arrest was to protect the officers such a search could only occur if the arrestee had access to the area to be searched. In other words once the arrestee is in a secure position there is no longer a need for a search. A search cannot be based upon the location of the arrestee prior to the arrest if the arrestee is now handcuffed and in the police vehicle for example.

In Shakir Pennsylvania authorities issued an arrest warrant for Naim Shakir for an armed robbery. The FBI found him in a Jersey City hotel. As they were arresting him, he threw down a bag. After he was arrested and handcuffed the agents seized the bag which was near Shakir’s feet and found a significant amount of cash in the bag. At trial he moved to suppress the bag. The appellate court ruled that the rule in Gant applies not only to automobile searches but to any search done pursuant to an arrest. It distinguished the case of Shakir from another case where the bag was dropped three feet away from the defendant. In that case once the defendant was handcuffed he did not have access to the bag, but with the bag being at Shakir’s feet and with handcuffs not always preventing injury to officers the court held that despite Gant the search was legal.

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.

The Third Circuit Court of Appeals rejected a challenge to a search. The defendant claimed that the search exceeded the legitimate scope of the search warrant. In a methamphetamine case the defendant claimed that the police had no authority to seize a video when the warrant, authorized among other things the seizure of photographs in order to identify the residents of the home. The Third Circuit refused to decide whether the seizure of the videos exceeded the scope of the warrant.

Rather it upheld the search on the grounds that the admission of the video at trial, even if it was seized illegally was harmless error in that that there was overwhelming evidence of Anthony Joseph Tenerelli’s guilt on methamphetamine and gun charges regardless of whether the videotape was admitted or not. Among the other evidence admitted at trial was evidence about a controlled buy made by a “confidential reliable informant” from Tenerelli which was monitored by a police officer, approximately 100 grams of methamphetamine, drug notes in Mr. Tenerelli’s handwriting, a digital scale, drug packaging materials, a 9mm semi-automatic pistol, and 9mm ammunition. The gun and the methamphetamine were found near Tenerelli, in his living room, at the time of the search. The Court found that he would have been convicted regardless of whether the videotape was entered into evidence and therefore the conviction was valid even if the videotape was seized illegally.

The Tenth Circuit Court of Appeals denied immunity to a prosecutor who reviewed a search warrant affidavit for the residence of an on-line journalist at the University of Northern Colorado.

Thomas Mink published The Howling Pig. For its editorial column he chose the name of Junius Puke with an altered photograph of Junius Peake, a professor at the school. Mr. Peake was not amused. He contacted the Greeley police. They drafted a search warrant affidavit for the home that Mink shared with his mother and presented it to Susan Knox, a deputy district attorney for review.

Mink eventually filed suit, naming among others, Knox. Knox moved for summary judgment claiming immunity and qualified immunity as a prosecutor.

The Tenth Circuit rejected both arguments. It ruled that prosecutors are only entitled to immunity for the work of an advocate and that the review and approval of a search warrant affidavit is not advocacy.

The Court stated, “Government officials performing discretionary functions generally are granted a qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” However it found that Mink alleged that Knox violated his clearly established constitutional rights and therefore she is not entitled to qualified immunity.

To successfully allege that one’s constitutional rights have been violated it is necessary to show a casual relationship between the defendant’s action and the violation of constitutional rights, an actual violation of the plaintiff’s rights and that the law was clear at the time of the violation. The Tenth Circuit found that Mink met all of the criteria. There was a direct causal relationship between Knox’s approval of the warrant and the illegal search. The search was illegal in that it was without probable cause and it was overly broad. It was without probable cause because parody is constitutionally accepted and it cannot be criminally charged as libel. Furthermore the warrant was not sufficiently particularized in that it ordered the seizure of all computers found in the residence without specifying what they were looking for on the hard drive. Thus no reasonable district attorney could believe that the affidavit met Fourth Amendment mandates for problable cause and specificity.

Eddie Garcia and Nancy Martin Perez were pulled over due to having an obstruction hanging from the windshield of their truck. Their identification, registration and insurance was checked. They were interviewed separately and gave contrasting statements on where they were going and why. A computer check was initiated. During the check the officer asked to look in their trailer. He took a 30 second look with Garcia and they shut the trailer. After the computer check is completed Garcia is given a verbal warning. Garcia and Perez are told they can leave. Garcia shakes hands with the officer.

As they begin to leave the officer asks permission to search the trailer. Perez gives permission. The officer search the trailer. He finds a fake wall hiding marijuana.

Garcia and Perez are arrested. Garcia pleads guilty reserving the right to challenge the search.

There is no question that the initial seizure is legal. The officer stopped Garcia and Perez due to a violation of the traffic laws. The officer carried out a legal check of licenses, registration, and warrants. This was done in a prudent manner without extending the time of the detention. The detention ended and the couple were told they could leave. Then the officer asked to search the trailer. Perez gave permission. Since they were free to leave at this point they were not coerced into giving permission. Thus the search was legal.

Assuming the facts in the decision are accurate the only question is why was Perez so stupid as to give permission for a search, knowing that the truck was full of marijuana. The Fourth Amendment prescribes searches in all case except where specific exceptions occur. However anyone can waive that right. In Arizona v. Miranda the Supreme Court ruled that a waiver of the right to remain silent must be knowing and intelligent. Furthermore it required that the waiver be shown on the record through the use of what is now well known as the Miranda warnings. Isn’t it time that similar waivers be mandated prior to a waiver of the Fourth Amendment right against unreasonable searches?

The Ninth Circuit upheld the conviction of Robert Burkett for possession of a gun by a convicted felon. Burkett was a passenger in a speeding vehicle. An officer turned on his overhead light to stop the vehicle but it took an unusually long time to stop. (eight tenths of a mile.) While the officer was stopping the vehicle he saw Burkett in the right front passenger seat making furtive movements.

After Burkett was charge he moved to suppress the gun on Fourth Amendment grounds. The Fourth Amendment protects us against unreasonable searches and seizures.

In the landmark 1968 case of Terry v. Ohio the Supreme Court ruled that an officer can stop and frisk a person if the officer has a reasonable suspicion that the person is involved in a crime and is armed and dangerous. While there was no belief that Burkett was involved in a crime, the Supreme Court ruled last year in Arizona v. Johnson that if an officer has a reasonable suspicion to stop a vehicle for a traffic violation the seizure of all of the passengers in the vehicle is legitimate and that if the officer had a reasonable suspicion to believe that a passenger was armed and dangerous the officer could frisk the passenger.

The Ninth Circuit found that the officer had a reasonable suspicion that Burkett was armed and dangerous and therefore the frisk of Burkett was legitimate. Therefore, the gun found during the frisk could be used at trial. Not only did the driver of the car take an unusually long period to pull over but Burkett made furtive motions while the driver was pulling over. The furtive motions led the officer to believe that Burkett was attempting to hide a gun. Furthermore when the officer asked Burkett what he was doing prior to the car stopping Burkett said “nothing” while the officer knew that the “furtive” conduct meant he was doing something. The officer was also concerned that after he told Burket to exit the car, Burkett used his left arem to open the right side door, hiding his hands and part of his jacket. Thus despite Burkett’s innocent explanations for his behavior the officer had a reasonable belief that he might have a weapon.

Jeff Quon, as a member of the city of Ontario, California’s SWAT team, was assigned an alphanumeric pager, capable of sending text messages. The city had a contract under which it paid a flat fee for a limited number of text messages and then paid additional for each text message above the agreed upon number.

Quon , fairly regularly exceeded the set number of messages. He was given the option of paying for the excess messages, which he accepted. But the city and the police department started an investigation to determine whether the standard number of messages was sufficient. They picked two months and viewed all of his messages, excluding those that he wrote while he was off duty. They found numerous non work related messages, some of which were of a sexual content. (Whether these were to his soon to be ex-wife or to his girl friend, I do not know. Both joined in the suit.)

He sued, claiming violations of the Fourth Amendment’s protection from illegal searches and Federal law.

Some expected the Supreme Court to break new ground and rule on the interrelationship between the new technology and the Fourth Amendment. But the court was not ready to rule on whether or not there is an expectation of privacy in text messages. Instead if answered the question based on traditional Fourth Amendment concepts. In this case prior to being given the pager Quon was familiar with the city’s policy that their was no expectation of privacy in text messages. While reading someone’s text messages is certainly a search, the Fourth Amendment does not outlaw all searches. It only forbids unreasonable searches and the Supreme Court held that a business search conducted to finds ways to make the business more efficient is not unreasonable. The search by the Ontario Police Department was conducted in order to find ways to make its use of text messages more efficient. The search had a reasonable work related purpose and it was limited in scope. Therefore it did not violate the Fourth Amendment.

Jennifer Lee was woken up in the middle of the night by the sounds of a dog in pain coming from the condominium above her unit. She had heard the noise before and she thought a dog was being tortured. She called the police. They went upstairs and spoke to Keith Chung through a crack in his door. Chung denied having a dog. The police asked for permission to search his residence. He refused. They invited him into the hallway. While talking to him one of the officers heard a dog whimper. Without getting a search warrant the officers entered the condominium. They found a nearly dead dog on the patio and a dead dog in the freezer.

Chung challenged the search. The Fourth Amendment requires a search warrant, supported by probable cause to search a residence. There are a limited number of well defined exceptions to the rule. One of the exceptions is where exigent circumstances exist. Generally exigent circumstances only exist where there is threat of serious injury to people or property. The question facing the California Court of Appeals in this case is whether exigent circumstances can involve injuries to animals. The Court ruled it can. It found that there was sufficient evidence that an animal was in distress and that it is a proper governmental duty to protect animals. Therefore it upheld the search and the sixteen month prison sentence.