Jesse Carney, Jr. plead guilty to possession of counterfeit bills and being a convicted felon in possession of a gun charges. While he plead guilty, he reserved the right to appeal the denial of his motion to suppress evidence found in his white SUV with the license plate number 871-JKC and his residence located at 4902 Saddlebrook Court. He alleged that the affidavit supporting the search warrant was not supported by probable cause. Furthermore he alleged the affidavit contained misstatements of material facts and that there was not probable cause to support his arrest.

The Sixth Circuit Court of Appeals upheld the validity of the search warrant. First the court held that the presence or absence of probable cause to arrest Carney is immaterial. There was no evidence found as a result of the arrest that was used in the affidavit to obtain the search warrant. Carney did not give a statement when he was arrested and nothing he said was used to obtain the warrant. Second the Court found that while their may have been false statements in the affidavit there were no errors on the part of the affiant. He merely stated what he had been told, in good faith. As a result he did not make any misstatements. Finally a search warrant affidavit must merely show that a crime was committed and that there is probable cause to believe that evidence of the crime will be found in the places to be searched. The white SUV was used on at least two occasions by Carney when he gave someone a counterfeit bill and it was seen at his house. It was registered to Jenny McQuillen at the residence. His probation officer said that he had listed the residence as his home. As a result the court found that there was probable cause that evidence of the manufacture of counterfeit bills would be found in the vehicle and in the residence.

The Supreme Court again took up the question of whether to grant police officers summary judgement on qualified immunity grounds in a law suit alleging that the officers violated the plaintiff’s civil rights. Specifically, in Messerschmidt v. Millender the Court reversed a Ninth Circuit en banc decision denying officers summary judgment for an illegal search of a residence. The residence belonged to the plaintiff, Augusta Millender, the former foster mother of Jerry Ray Bowen who was accused of shooting at Shelly Kelly, his former girlfriend. Millender ¹ and her daughter sued inter alia the officers.

The officers claimed that they were entitled to qualified immunity since they could reasonably believe that the search warrant authorizing the search was valid. Furthermore, they maintained that the officer’s reliance upon the search warrant was reasonable since the warrant had been approved by their supervisors, a deputy district attorney and the magistrate. The search warrant authorized the seizure of all guns and all gang-related materials, even though, while the defendant was a gang member, the evidence was that the assault on Kelly was not gang related and only one specified gun was involved. The court siding with the officers held that guns other than the one used to shoot at Kelly could be used to commit other crimes and gang material could be used to show ties between the residence and Bowen. ²

On the evening of September 22, 2009 Jamie Shetler called the Pomona, California police department to report that her father, Scott, was using and manufacturing methamphetamine in his house. The police immediately went to the house. The garage attached to the residence was open and according to the officers a chemical odor emanated from the garage. The rear portion of the garage was partitioned off. In order to determine if anyone was behind the partition or whether methamphetamine was in the process of being manufactured the officers entered the garage. While they saw a few items associated with methamphetamine they did not see anyone and nothing was being manufactured.

The officers left the garage and knocked on the front door. Scott Shetler came out a side door. He was handcuffed and detained outside the house. Officers entered the house and began searching it. Guns and items associated with the manufacture of methamphetamine were found.

Half way through the search they obtained a waiver from Shetler’s girl friend. At no time did the officers obtain a search warrant.

In the early hours of the 23rd Scott Shettler gave a statement in which he confessed and he was arrested. The next day the DEA took him to the house, found another gun and took a statement about the gun. The trial court suppressed all of the physical evidence except that which was found in the original search of the garage but it allowed the various statements to come into evidence. On appeal admission of the statements was contested.

The Ninth Circuit Court of Appeal held that the government failed to carry its burden to show that Shetler’s statements were not the product of the illegal searches. A statement is considered the fruit of an illegal search if the officers confront the defendant with evidence illegally taken or if the defendant’s statement is a result of his knowledge of the government’s possession of items illegally taken. There was no evidence at the hearing that Shetler was not confronted with illegally seized items and as he was detained he watched the government seize numerous items which the court later decided to be seized illegally.

Not only were the statements the result of the illegally seizure, they were not sufficiently attenuated from the illegal acts. “Three factors are relevant in determining whether Shetler’s statements were sufficiently attenuated from the underlying illegality to be admissible: (1) the temporal proximity of the search to the confession; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” The Ninth Circuit found that the searches were sufficiently close to the statements as to not be overly attenuated. The initial confession occurred outside Shetler’s house during the search. While the second statement was made a couple days later there were no intervening circumstances that would have influenced Shetler to confess as “to dissipate the taint.” The officers were clearly looking for evidence without a search warrant. They waited until the search was half over before getting consent. There lack of good faith is apparent.

The evidence at the trial that Shetler maintained the residence for a primary or principle use was the manufacture, distribution, or use of methamphetamine was weak and the statements were a major part of the government’s case. Therefore the conviction was reversed and the case remanded to the District Court.

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.

The Supreme Court, Tuesday, heard the case of Antoine Jones, the Washington D. C. nightclub owner who was sentenced to life in prison for cocaine related charges after police placed a GPS device on his vehicle, without a search warrant and tracked him for a month.

There is something basically wrong with the government being able to track citizens wherever they go and whatever they do. As Justice Breyer said, it “sounds like ‘1984.’ ” Breyer and Sotomeyer pointed out that if the government is right, they can put a tracking device on every car in country and track everyone.

While the majority of the court seemed to agree that the United State government violated the Fourth Amendment, the problem is U.S. v. Knotts. In Knotts, a 1983 case, the Supreme Court ruled that the Fourth Amendment was not violated when the police used a beeper to track a vehicle carrying chemicals from the retailer to the residence where a methamphetamine lab was located.

As a general rule the Supreme Court is reluctant to reverse prior decisions. It prefers to differentiate the prior decision by a difference in the facts between the two cases. But that will be difficult here. The difference between a beeper and the more modern GPS is probably immaterial. It has been suggested that the court will find that it was okay to track the vehicle in Knotts since that was for only one day while it is not okay in Jones because it was for a month. But where do you draw the line. Is two days okay? Is 29 days not okay? Is 15 days permissible but not 16 days? It may just be time to admit they made a mistake and reverse the finding in Knotts.

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

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

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

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

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

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.

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?

Winston McGhee (aka Pooh) sold cocaine base to a confidential informant in a controlled buy, witnessed by the State Police, who then followed him back to his hotel. ¹A hotel employee told the officers that McGhee, who’s name they did not know was staying in room six. The officers got a search warrant.

That evening they stopped McGhee as he entered the hotel and searched the room. They found a knife on McGhee. They strip searched him, finding marijuana in his shoe and a baggie in his buttocks. The baggie contained 31 smaller baggies of cocaine base.

After McGhee was indicted he moved to suppress the cocaine claiming that the strip search was illegal. Precedent in the First Circuit Court of Appeals holds that normally a search pursuant to an arrest calls for a search of the person. But with increasing justification searches involving more intrusive measures (strip search, visual inspection of genitals and buttocks, and manual intrusions into such orifices) may be appropriate.

The District Court held that a strip search was appropriate. As the appellate court pointed out McGhee had hidden marijuana in his shoes and put up a struggle during the strip search indicating that he would try to hide drugs. ²McGhee challenged the characterization of the search as a strip search, claiming that the officers pulled his legs apart to inspect his buttocks but the Court ruled that such actions were necessary, in light of his struggling, to complete the strip search.

McGhee was not charged with the sale to the informant but it was put into evidence to show that he intended to sell part or all of the cocaine base found in his buttocks. He objected to the use of the chemist who tested the cocaine base found in his buttocks testimony in so far as she testified about the work of a different chemist who tested and weighed the cocaine sold to the informant. He claimed, citing the Supreme Court cases: Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) that the use of the hearsay violated his right of confrontation. However the Court ruled that even if it violated his right of confrontation the violation was harmless. There was plenty of other evidence (the quantity, the packing, multiple cell phones significant sums of money even though McGhee was unemployed, etc.) indicating that McGhee meant to sell at least some of the cocaine base. The weight of the sample was irrelevant, according to the Court.

As a result the Court upheld the conviction.

Lawrence Ray was going through a difficult divorce. He had custody of his daughter. His wife arrived at his house to pick up their daughter for visitation. She could see a man inside the house but no one answered the door when she knocked on the door. She called the police. They arrived but the man still did not answer the door. The officers called the local judge who wrongly issued an arrest warrant and told the officers that they could enter the house. They forced the door open. Mr. Ray’s father was the only one in the house. He said his son and granddaughter would be home soon. Lawrence Ray made contact with the cops and promised to deliver his daughter to the police station for the visitation.

Ray sued the police and the township for violation of his Fourth Amendment rights. The defendants were granted summary judgment on qualified immunity grounds. The Third Circuit Court of Appeals upheld the District Court’s decision. Qualified Immunity is granted when a plaintiff’s constitutional rights are violated by law enforcement officers and it was clear at the time of the violation that the rights were violated.

The defendants argued that their entry into the residence and search of the house was justified by an exception to the warrant requirement. They claimed that the community caretaking exception justified their actions. The community caretaking exception was developed by the Supreme Court in Cady v. Dombrowski. In Cady, a 1972 case, the Supreme Court allowed the search of a vehicle for weapons after police officers left the vehicle on the street following the arresting its driver. The search was not carried out as part of a criminal investigation but rather to prevent someone from finding the gun and injuring someone else. But the Supreme Court only applied the community caretaking exception to automobiles. It pointed out that automobiles are highly regulated. To the contrary residences are at the very core of Fourth Amendment protection and the the Third Circuit like most other circuits refused to apply the community caretaking exception to residences.

But the Third Circuit upheld the grant of qualified immunity to the defendants since their is a split among the circuits over whether to apply the community caretaking exception to residences and at the time of the search of Ray’s home the Third Circuit had not ruled on whether the community caretaking exception applied to residences. Therefore a reasonable police officer, at the time of the search could have believed that the search was legal.