The Department of Justice is urging the Supreme Court to take up the Fourth Amendment issue of Global Positioning Systems (GPS). Various courts have ruled on the constitutionality of the use of GPS without getting a warrant and rulings have come down on both sides of the issue,

The Ninth and the Seventh Circuits have ruled it constitutional while the D. C. Circuit found it unconstitutional. Courts in New York, Massachusetts, Washington and Delaware have found it unconstitutional while courts in Ohio and Virginia have approved of the practice.

The Justice Department is challenging a D. C. Circuit opinion that overturned the conviction of Antoine Jones on cocaine trafficking charges after GPS evidence played a mayor role in his conviction. The DOJ argues that since law enforcement officers could have followed Jones as he traveled on the public roads he could not have had a legitimate expectation of privacy. The Fourth Amendment only applies to individuals who have an expectation of privacy that is recognized by society.

However his attorneys argue that using a GPS device on Jones’ Jeep Cherokee for over a month and reporting his whereabouts every seven seconds was a tremendous invasion of his privacy and is prohibited by the Fourth Amendment.

The Courts that have upheld warrantless GPS searches have cited the 1983 Supreme Court decision, United States v. Knotts in which the Supreme Court upheld the conviction of a man in a methamphetamine case after the wholesaler of necessary chemicals placed a beeper in a barrel of chemicals. The barrel was placed in a codefendant’s vehicle and followed by agents to the suspect’s residence.

Knotts has been cited by the courts in upholding warrantless GPS decisions. Most of the Courts have said that if it was constitutional to follow a car with a beeper, it is constitutional to keep track of a vehicle with a GPS deviced placed under the car’s carriage while it is either parked on the street or in the defendant’s driveway.

But while the lower courts do not have the power to reconsider Knotts the Supreme Court does. It is a decision that may have had some validity 30 years ago but with the technological advances in the last 30 years allowing greater and greater invasions into citizen’s privacy it is time for the Supreme Court to reconsider the decision.

In Gant v, Arizona the Supreme Court ruled that without probable cause to search a vehicle an automobile could not be searched in a search incident to a legal arrest once police removed the occupants from the car.

Yesterday the Ninth Circuit upheld the search of a vehicle and of folded up money found in the car based upon probable cause. Los Angeles County Sheriff Deputy Jeffey Dokie stopped a car driven by Sandra Vera for having an expired registration, There were two passengers in the car, Michael Smith and Shawn Ewing. Smith was on parole. After finding out that Smith was on parole Doke noticed folded up currency in the weatherstripping of the right front door. Ewing was acting nervous and he talked fast indicating that he was on drugs. Doke thought that the attempt to hide the money was indicative of a drug courier. Doke decided to search the car and he seized and unfolded the currency. Upon examination he determined that the money was counterfeit. Ewing admitted to manufacturing the money.

After he was arrested he moved to suppress the money. Specifically he wanted to suppress the officer’s observations after he unfolded the money. The court found that while he did not have a privacy interest in the vehicle and therefore could not move to suppress evidence found in the car, he did have a privacy interest in the money and therefore had standing to move to suppress the money. He argued that while the officer may have had probable cause to search the vehicle, the unfolding of the money was a separate search requiring a separate finding of probable cause.

However the court found that Ewing’s nervousness, the attempt to hide the money, and Ewing’s apparent drug intoxication gave the officer probable cause to search the vehicle. Since the money was the subject of the search, probable cause to search the vehicle included probable cause to unfold the money and search it. A separate finding of probable cause was not needed and therefore the trial court was correct in refusing to suppress the evidence.

Law enforcement officers got an arrest warrant for Jeanine Daley in Brockton, Massachusetts. An informant told them that she recently saw Daley at 63 Menlo Street, a known sober residence and that Daley was hanging out there. The residence was a three story single family house with a number of non-related individuals living in it. Though the warrant had another address on it two officers went to the address where they confronted Jeffrey Cicerano, who’s name was on the lease. When Cicerano denied them entry they threatened to kick down the door. Cicerano opened the door to talk to the officers. The officers rushed past him into the residence. They ordered Cicerano to gather the residents of the house together so that the officers could question them. While Cicerano was gathering everyone together the officers saw James Werra, one of the residents in a room adjoining the foyer. They saw a pocket knife clip attached to one of Werra’s pockets. They removed the knife and pat searched Werra, finding a gun. They arrested him. He challenged the arrest on the basis that the officers neither had probable cause to search him and that their entry into the residence was illegal.

Werra rented the third story from Cicerano but when there was too much partying on the third floor he slept on a couch in the living room. Together with his brother he had moved furniture into the living room.

The government claimed that Werra did not have standing to challenge a search which occurred in the Foyer since he rented the third floor. The question before the First Circuit Court of Appeals was whether the residence was similar to a single family house where each resident has standing since they share the entire house or a multi-resident apartment house where residents have limited standing based upon the area they rent.

The test is that individuals only have standing to challenge searches of areas where they have an expectation of privacy in the area and it is an expectation that society finds acceptable.

The appellate court upheld Werra’s expectation of privacy. First it found no cases where an expectation of privacy was denied to the residents of a single family house. Second, it found that Werra had access to most of the residence including the living room where he would sleep on the couch. The court noted that instead of each individual paying rent to the owner, Cicerano rented the house and some of his friends lived there and helped pay the rent. Overall the court found that the residents acted more like a family than like apartment dwellers. They share space and often used community spaces together as a group. Therefore it found that Werra had the ability to exclude non residents from the building and that society recognized his privacy right in the building.

The Court had little trouble finding the search to be illegal. While there might be some question as to whether the officers had probable cause to believe that Daley lived at the residence it found that they had no evidence that she was at the residence at the time they entered the residence without consent. Since Werra had a privacy interest in the entire house including the foyer and since the search was illegal it reversed the trial court’s denial of his motion to suppress and found him not guilty.

Criminal defense attorneys, and I suspect district attorneys and judges, have long doubted consent searches. In a consent search the police avoid getting a search warrant by obtaining consent of the person being searched or of the person in possession of the house or car. But these searches are easy to fabricate. There are often no witnesses and its the officer’s word against the defendant’s.

But there is little we can do. The question at trial is not the truth but who can prove their case. We know that the jury is generally more likely to believe a police officer (or five police officers) who testify that our poor 19 year old African American or Latino consented to the search than to believe our client when he or she says they did not consent to the search. This is true even in the senseless situation where the officers find rock cocaine or heroin viewable on the bed or dresser.

Certainly not all consent searches are phoney. People don’t always do wise things.There is no requirement that the police tell a person that they need not consent and people, particularly those from abroad who are not used to the Bill of Rights often consent. Whether the consent is real or not it is often followed by a plea bargain because the police office, who is a professional witness can convince the court and a jury that the defendant consented to the search.

But with the advent of videos things may change. The San Francisco Public Defender’s office has four video tapes taken at the Henry Hotel of police officers entering rooms without consent and later filing police reports in which they state under oath that they received consent to the search. The officers involved are members of the Southern Station plainclothes unit. The District Attorney has already dropped 57 cases as a result of the allegations. An investigation of the unit and its sergeant is occurring. These are serious allegations. Filing a false police report is a misdemeanor and perjury is a felony. If true, these charges are significant violations of people’s Fourth Amendment rights and justly call into question the trustworthiness of numerous other investigations conduct by the unit and by other officers.

Henderson North Carolina Police Detective J. Ragland ¹ saw an SUV with a young man sitting in the driver’s seat, apparently talking to himself. A second young man then sat up in the front passenger seat. Ragland recognized the second young man as David Foster. Ragland had dated Foster’s cousin and had previously arrested him for driving without a license. He knew that Foster had a marijuana related arrest.

He saw Foster’s arms “shifting” and “going haywire.”

Ragland drove across the street and observed the two men. Fifteen minutes passed and nothing happened. During that period Ragland called the head of narcotics and found out that Foster was the subject of an investigation. He also called for a back-up car.

The two cars blocked the SUV. The officers got out and approached the vehicle with guns drawn. Ragland asked the driver for his license. The driver told him it was in his backpack. Ragland performed a pat search and let the driver get his license. Ragland then asked for the registration. Foster opened the glove compartment to get it. Ragland saw a baggie of cocaine in the glove compartment. The gentlemen were arrested.

In case you haven’t figured it out, I will tell you that both the driver and Foster are African American. Studies have shown that African Americans are more likely to be detained, and more likely to be searched than any other racial or ethnic group. While in this case the officers found cocaine, African Americans are less likely to be found in possession of contraband or criminal evidence in Terry searches.

In order to detain someone the stop must be supported “by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” As the Court in Terry v. Ohio said “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

The U. S Attorney pointed to three factors in support of the search. First he/she pointed to the officer’s knowledge of Foster’s record. Second, the U. S. Attorney pointed to Foster’s sitting up from a crouched position and finally the shifting of Foster’s arms. The Fourth Circuit Court of Appeals found that these items, neither individually or collectively provided a reasonable suspicion of criminal activity. The crouching and the shifting could be the result of many legitimate activities. The record by itself or with the current investigation do not provide a reasonable suspicion. The reasonable suspicion has to be that the men were involved in criminal activity at the time of the search. Mere knowledge that at sometime in the past they committed a crime will not do.

Therefore the Court reversed the conviction.

Friday, the Sixth Circuit Court of Appeal upheld the conviction Reginald Ellison, Sr. on various drug charges. The only question on appeal was the sufficiency of the nexus between the residence that was the subject of a search warrant and crime.

Neither a search warrant or the affidavit supporting a search warrant must name an individual suspected of committing a crime. The warrant need only name a place to be searched. The affidavit must show probable cause that evidence of a crime will be found at the place. In order to show probable cause, inter alia, it must show a nexus between the place to be searched and a crime. It is certainly possible that a search warrant is issued and a search is performed where a significant amount of contraband is seized but no one is found in possession of the contraband and no one is arrested.

In Ellison an informant ¹ tells a government agent that he/she saw “Short” ² exit the house, make a sale of drugs to “Red,” and return to the house.

This was an easy case for both the trial court and the Sixth Circuit. Certainly if “Short” came out the residence and returned to the residence after the sale it is likely that more drugs will be found in the residence. It is also likely that the money “Short” received for the sale of the drugs will be found in the residence. This creates a sufficient nexus between the residence and a crime to obtain a search warrant.

Prior to obtaining the search warrant the police determined that the utilities were in Ellison’s name. Presumably once in the residence they found evidence that Ellison was involved in the crime and arrested him. ³

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.

Stiven F. Polanco was convicted in the District Court for Rhode Island of various heroin and weapons charges. He appealed alleging inter alia ¹violations of the Fourth Amendment.

David Contreras made a number of heroin sales to an undercover agent. ² Each sale occurred as the same mall in Providence. Polanco was present at the sales and drove Contreras to the mall in Polanco’s red Toyota Camry.

Finally the task force decided to arrest them but it was afraid to do so at the mall since someone might get hurt. The agents moved the plans for the final sale to a parking lot in Warwick. They arrested and searched Contreras and Polanco, but they did not find anything. Then they searched the vehicle, finding a hidden compartment with heroin and a gun.

After they were indicted Polanco challenged the search, citing Gant v. Arizona. One of the exceptions to the Warrant requirement is for searches performed incident to a lawful arrest. In Gant the Supreme Court limited the exception where an automobile is searched to searches where the arrestees have access to the vehicle and can destroy evidence or where it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” But what Polanco ignored was that the search was not justified by the search incident to a legal arrest exception to the search warrant requirement. Rather it was justified by another exception. Under the automobile exception, an automobile can be searched anytime there is probable cause to believe that evidence of a crime will be found in the vehicle. ³ Since automobiles are mobile the courts feel that it is not reasonable to make law enforcement officers get a warrant while the car may be driven away.

The appellate court had no problem finding that the agents had more than sufficient evidence for a finding of probable cause to search the vehicle. Not only was Polanco present at the time of the sales, but his car was used. Contreras and Polanco made numerous calls to each other around the time that Contreras was arranging each sale. An expert testified that someone who was not involved in the sale would probably not be allowed to be present and that after the sale Contreras and Polanco appeared to examine an unknown item together. This, according to the First Circuit Court of Appeals easily provided probable cause.

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

Allen Brown was indicted on bank robbery charges. The robbers used Scream masks. A Scream mask was found in an abandoned van stolen by the robbers. The police had the mask tested for DNA. They had reason to suspect Brown but they did not have probable cause to either arrest him or obtain a warrant to obtain DNA from him.

FBI Special Agent Robert Smith wrote an affidavit, sworn under oath, based upon information he received from Pennsylvania State Trooper Shane Lash, to obtain a warrant to get a sample of Brown’s DNA. Smith did not participate in the interviews leading up to the affidavit but Lash provided him with information. He declared that the robbers used Scream masks and that they stole a van from the Armstrong County School District. He said that the van had been found and that there was a mask in it. Furthermore he said that Brown did not live in Pennsylvania but that he was visiting at approximately the time of the robbery. He had left a family residence in his silver Volkswagon Jetta at 8:00 am and returned two hours later.

He also said that witnesses had seen the stolen van meet up with the Jetta. This is clearly false. Lash and Smith both testified in the District Court that Lash did not tell this to Smith and there is absolutely no evidence to back it up.

After the indictment Brown brought a motion to suppress the DNA on Franks grounds. In Franks v. Delaware the Supreme Court held that evidence seized as a result of a search warrant must be suppressed if it is both material and to the finding of probable cause and made either knowingly and intentionally or with reckless disregard for the truth. The parties agreed that the statement was material and false. The only question is whether it was made “either knowingly and intentionally or with reckless disregard for the truth.”

It all seems rather silly. There was not probable cause to obtain the warrant. Either Smith is lying or he is covering up for Lash who is lying. The District Court suppressed the evidence. Yet the U. S. Attorney appealed the matter and one of the three judges on the Third District Court of Appeals panel supported the government’s position. They claim there is no evidence that Smith acted either knowingly and intentionally or with reckless disregard for the truth. Instead of intending to lie the dissent argues he could have acted negligently in making up the story and negligence, according to Franks does not result in suppression. After all Smith claims that at the time he wrote the affidavit he thought he was telling the truth. ¹ He had copies of the police reports. He could have read them before he swore to the truth of his statements under oath. The Third Circuit correctly ruled that:

Because the total lack of an evidentiary basis for making an averment can constitute an obvious reason for doubting that averment‘s veracity, the District Court did not clearly err in finding that Smith‘s conduct rose beyond the level of negligence, to the point of recklessness.

The only questions remaining are why was so much time and money spent on this case and why isn’t Smith being fired?