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.

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.

Guam is a United States territory and it comes under the jurisdiction of the Ninth Circuit Court of Appeals. The Court, sitting in Hawaii, heard United States v. Cha. It held that a 26.5 hour seizure of a residence pending the obtaining of a search warrant unconstitutional and as a result it upheld the suppression of evidence found in the house.

On Saturday evening, January 12, 2008 police officers arrived at the Blue House Lounge in Tamuning, Guam to investigate a complaint made by Sonina Suwain, a resident of Chuuk that the owners had seized her passport and were holding two of her female cousins against their will. The officers found one cousin waiting tables and the other in a hospitality room with a male patron. After interviewing the cousins Song Jaw Cha (Ms Cha) was detained on prostitution related charges. The officers did a walk through of the lounge and Ms Cha’s attached home, finding her husband in bed. They interviewed customers and ordered that the place be closed. The Chas were taken to the precinct at 1:00 Sunday morning and Ms Cha was arrested at 6:00 am. At 8:00 am Mr. Cha returned to his house but he was not allowed to enter. At 12:45 pm his lawyer arrived The lawyer returned at 2:45 and asked that Mr. Cha be allowed to retrieve his diabetes medication. The police did not allow him to get the medication until 7:00 that night. The lawyer left at 1:00 Monday morning.

At 9:20 Sunday morning Officer Perez was asked to come into work at noon for a briefing. During the briefing he was asked to prepare a search warrant affidavit. He waited for reports and started working on the affidavit at 6:30 Sunday evening. He worked until 4:00 am. He went home and returned at 7:50 Monday morning. At the request of the chief prosecutor he ran the warrant by him and presented it to a magistrate at 10:25 Monday morning. The search was not begun until 2:00 Monday afternoon and it was not completed until 1:00 Tuesday morning, when Mr. Cha was allowed to enter his house.

The court found that the officers violated the law by taking too much time to process the warrant request. In Illinois v. McArthur the Supreme Court listed four factors that must be considered in determining the constitutionality of a detention of a home prior to a search. First, they must consider the existence of probable cause. This is not disputed. Second, whether the police had good cause to fear that evidence would be destroyed. There was no reason to believe that evidence would be destroyed. Third, whether the police made reasonable efforts to meet the privacy needs of the residents. Evidence to the contrary is the refusal for four hours to provide Mr. Cha with his medication. Finally whether the police acted reasonably and with diligence in obtaining the warrant. The court found numerous unnecessary delays including Perez’s late appearance on the scene, the time that passed between his appearance and his beginning to work on the affidavit, and the time he took off in the early morning.

The Court found that the failure to suppress the evidence would allow law enforcement officers to spend an indefinite amount of time prior to the preparation of a search warrant without any repercussions and that suppression would accommodate the goal of suppressing illegally seized evidence in that it would deter future “deliberate, reckless or grossly negligent conduct.” The Court pointed out that it was a violation of the law and not a violation of fact and that the police should be aware of the law.

James L. Green was convicted in Georgia State Courts of rape and related offenses involving two sexual assault on different victims. He appealed and eventually filed an in pro per petition for habeas corpus in the Eleventh Circuit Court of Appeals.

One of the issues was the incompetence of counsel. Green argued that his counsel was incompetent for failing to move to suppress DNA evidence. The Court ruled that even though counsel should have moved to suppress the evidence due to misstatements in the affidavit supporting the search warrant, Green was not prejudiced by counsel’s failure since there was more than enough evidence to convict him even if the DNA evidence had been excluded. The victim testified that she knew Green prior to the attack and she recognized him when he raped her. Therefore counsel’s incompetence did not prejudice Green and the conviction was upheld with the exception of the aggravated sodomy conviction.

Under Georgia law aggravated sodomy is “any sexual act involving the sex
organs of one person and the mouth or anus of another that is committed with
force and against the will of the other person.” The only evidence to support the charge was one of the victim’s testimony that

while threatening her with a knife, Green forced her to perform oral sex on him and to lick his anus. She further testified: “He pushed me down on the bed and
raped me.

The court found this to be insufficient, as a matter of law, to convict Green on the charge. The jury could not assume based upon this testimony that Green’s penis touched the victim’s anus. Therefore the conviction on this count was reversed.

The Fifth Circuit Court of Appeals found a lack of exigent circumstances to support a warrantless search and reversed Ariel Menchaca-Castruita’s conviction for possession for sale of marijuana

Mr. Menchaca rented a house in McAllen, Texas, In the three month period after he rented the house he did not pay any rent. The landlords decided to make a personal visit to the residence. They knocked on the door and their was no answer. They saw him through a bedroom window and he opened the door to talk to them. He offered to pay the rent but they insisted on coming into the house to see what condition it was in. When they entered they saw a bundle of marijuana. They called the police and Menchaca left the home. Before he drove away Menchaca threatened the landlord with a tire iron but was unable to make contact.

The police arrived and after talking to the landlords they immediately searched the residence. After Menchaca was arrested he made a motion to suppress the evidence on the grounds that the search was committed without a search warrant. The government responded that a search warrant was not necessary. The government claimed that the search was justified by exigent circumstances. The government pointed out that:

(1) the officer was aware that an assault had occurred shortly before his
arrival on the scene; (2) he had reason to believe that there was marijuana inside
the residence; (3) he was unsure whether additional persons were present inside
the residence; (4) he knew from experience that persons who engage in drug
trafficking often carry firearms; and (5) he was concerned for his own safety as
well as the safety of the bystanders

The Fourth Amendment requires that prior to searching a private residence the police get a search warrant. But there are a limited number of exceptions to the rule. One of the exceptions is that the police may search a residence without a search warrant if exigent circumstances exist. Among the factors to be considered in determining whether or not exigent circumstances exist are.

(1) the degree of urgency involved and amount of time necessary to
obtain a warrant;
(2) the reasonable belief that contraband is about to be removed;
(3) the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought;
(4) information indicating the possessors of the contraband are aware that the police are on their trail; and
(5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.

The Fifth Circuit found that the government had not provided any evidence that there was any danger to the officers or that the evidence might be destroyed. On the contrary, the evidence indicated that Menchaca had left the residence and that there was no evidence that anyone was still in the building. Furthermore it was on a week day and the officers would have no trouble getting a magistrate to sign a search warrant. In support of the reversal of the trial court ruling that the search was constitutional the appellate court found that;

(1) When Menchaca fled in his truck, he knew that Mrs. Garcia had called the
police, so he could have, and almost certainly would have, alerted any of his
accomplices to flee with him; (2) the officers knew that Mr. Garcia had peered
into the side windows of the house and had seen only Menchaca there; (3) Mrs.
Garcia never mentioned an accomplice, and the testimony at the suppression
hearing at least suggested that Ms. San Miguel might have told the officers that
there were no accomplices inside the house; (4) the front door to the residence
had been left open, indicating a hasty retreat as well as an unsecured premises,
inconsistent with the probability of additional occupants; and (5) there were no
sounds coming from inside the residence to suggest that someone might have
remained behind.

As a result the court found that it was unlikely that anyone else was in the building or that the police were in any danger. As a result it reversed the conviction finding that there were not exigent circumstances supporting the search and that Menchaca’s Fourth Amendment right to be secure in his property had been violated.

The Tenth Circuit Court of Appeals upheld the conviction of Manuel Roach despite the lack of probable cause to support the search warrant for his girlfriend’s house and despite the judge’s failure to determine whether or not the expert had sufficient knowledge to testify about gang culture.

On appeal the defendant objected to the search of this girlfriend’s house on the two grounds. First he said that there was not probable cause to support the search warrant. Second he said that there was an insufficient nexus between the residence and any evidence of criminal activity. The court agreed with Roach on both grounds.

The search warrant was based on Roach’s former membership in the Northside Crips in Wichita. But his last documented membership in the gang was years before the warrant was served and while he admitted a gang lifestyle that too was a year and a half before the warrant. The last evidence of his being involved in drugs was in 2002, five years before the warrant. Based upon this information the court found the evidence stale and therefore the warrant was not supported by probable cause. The only evidence in the affidavit attempting to show a nexus between the residence and criminal behavior evidence was a statement about the residences of fifteen alleged members of the gang. The affiant said:

“[O]fficers have verified that the individuals listed below live at the following addresses, through investigations, which included
checking for utilities information, driver’s license records, real estate records, Wichita Police Department records, tax records, social security records, US Postal Service records, interviews and/or surveillance.”

The court found this statement to be conclusory and it failed to state what methods had been used on the girlfriend’s residence. Thus it did not show a nexus between the residence and criminal evidence.

However under Leon if a search warrant is not supported by probable cause evidence received as a result thereof is admissible if the officer carrying out the warrant does so in good faith. The court found that the officer could have believed that their was probable caused based upon Roach’s long history of participation in the gang and in drugs. Furthermore since there was some evidence that the officers confirmed that Roach lived at the residence the officer search the residence could have believed that a nexus existed. As a result the officer acted in good faith and the evidence was admissible.

In Daubert the Supreme Court ruled that in Federal cases expert testimony is admissible if the judge makes a finding that it is both reliable and relevant. The trial judge did not make the necessary finding but the court found the government’s gang expert’s testimony admissible anyway because the jury could have believed the gang evidence true based upon other evidence. In other words it was harmless error to admit the expert evidence.

Sometimes the law is funny. Here the trial court violated the United States Constitution and the Rules of Evidence. Yet the appellate court found the evidence admissible and upheld the conviction.

The Sixth Circuit found that probable cause supported the search warrant in United States v. Dyer and affirmed the conviction.

A Tennessee police officer swore out an affidavit for a search warrant for a cabin rented by Stacy Lee Glance and used by Glance and Kenneth J. Dyer. The bulk of the information in the affidavit came from an unnamed confidential informant who was facing drug charges and hoping to get the charges dismissed in exchange for his/her assistance in convicting Glance and Dyer. Glance went to trial and was found not guilty. Dyer entered a conditional plea allowing him to challenge the search warrant on appeal.

The informant claimed to have seen a drug deal involving methamphetamine in the cabin. The authorities corroborated some minor details of the informant’s statement. The informant took the officer to the cabin. Cars owned by Glance and Dyer were outside the cabin. Furthermore Dyer and Glance were seen at the cabin. Dyer and Glance have criminal records for methamphetamine related crimes and Dyer had an outstanding warrant for methamphetamine from North Carolina.

On this information the Sixth Circuit found that probable cause supported the warrant. The issue here is the reliability of the information received from the informant. The problem with this is that all of the corroborating evidence involves innocent behavior. All we really know is that the informant knows Glance and Dyer. We also know that the informant has reason to provide false information since any information that he/she provides will be used to dismiss the charges against him/her or to ameliorate the sentence for his/her criminal behavior.

The Eighth Circuit Court of Appeals reversed the conviction in a case where the District court wrongly denied the defendant motion to dismiss on illegal search and seizure grounds.

Two United States marshals went to the Missouri residence of Gary McMullin, looking for Daryl Crowder who was wanted on an Illinois warrant. While Marshall Newlin knocked at the front door, Marshall Davis covered the back door. McMullin consented to Newlin coming in and he told the marshal that he was having coffee with his uncle.

Simultaneously Crowder ran out into the back yard and he was arrested by Davis. Newlin went into the back yard to assist in the arrest and McMullin also went out.

Newlin handcuffed McMullin and physically brought him back into the kitchen. Back in the house, Newlin noticed some ammunition in an ashtray. He then asked whether there were any guns in the residence. McMullin pointed out several weapons and McMullin was arrested for possession of weapons by a convicted felon.

There is no question that Marshal Newlin had consent to enter the residence. But the issue on appeal is whether he had consent for the second entry into the residence.

The core value behind the Fourth Amendment is to protect an individual’s privacy in his/her home. As the court stated

In particular, Fourth Amendment law recognizes the inherent sanctity of a person’s house. The caselaw has consistently recognized that considerably more protection is to be afforded a home than other premises. The leading decisions . . . are each heavily predicated upon the ancient precept that ‘a man’s home is his castle. . . . Therefore, “to search a private place, person, or effect, law enforcement must obtain from a judicial officer a search warrant supported by probable cause.

The court considered two exceptions to the warrant requirement — exigent circumstances and consent. The court found no exigent circumstances requiring the reentry into the residence which would require that “lives are threatened, a suspect’s escape is imminent, or evidence is about to be destroyed.”

The issue of consent is a little more difficult. Does the consent for the initial entry cover the second entry. The court found it did not. While there are cases where courts have found the contrary. Generally in those cases the re-entry occurred shortly after a brief exit to get help or some similar purpose.

The court gives only short consideration to what I consider to be a major issue. At the time of the re-entry McMullin is in handcuffs and he was physically moved into the house. He was under the control of the marshal he may have well felt that he did not have the power to refuse consent. So I doubt any withdrawal of consent or giving of consent would have been in voluntary.

In any case the court came to the right decision and reversed the conviction.

New York joined Oregon and Washington in finding that their state constitutional bans on illegal search and seizure prevents the warrantless use of GPS, by law enforcement to track a vehicle.

State Police investigators placed a GPS device under the bumper of Scott Weaver’s van and left it there for 65 days, creeping under the van once to change the battery. Evidence taken from the GPS device was used to convict Weaver of the burglary of a K-Mart.

The New York Court of Appeals found that having a GPS device secretly placed under your vehicle for 65 days was so invasive as to violate the state constitution’s requirement that a search warrant is necessary for the search of the vehicle’s route. The court recognized that while the United States Supreme Court has never considered the validity of a GPS search it had found legal the use of a beeper in United States v. Knotts placed in a barrel of chloroform on the back of a truck as a means to aid agents keep track of the vehicle.

But the court found that the beeper in Knotts was a lot less sophisticated than GPS. The Supreme Court in Knotts found that the beeper was permissible since it was only an aid to human vision. Current devices are a lot more accurate than the beeper and human participation in tracking vehicles is no longer needed. The invasiveness of current devices is way beyond what the Supreme Court could have dreamed of twenty-six years ago in Knotts. As the court stated:

Disclosed in the data retrieved from the
transmitting unit, nearly instantaneously with the press of a
button on the highly portable receiving unit, will be trips the
indisputably private nature of which takes little imagination to
conjure: trips to the psychiatrist, the plastic surgeon, the
abortion clinic, the AIDS treatment center, the strip club, the
criminal defense attorney, the by-the-hour motel, the union
meeting, the mosque, synagogue or church, the gay bar and on and
on.

The court noted that there may be cases where exigent circumstances do not permit the luxury of getting a search warrant but in this case where the GPS device was on the vehicle for 65 days that is hardly the case.

The court also recognized that the expectation of privacy in a vehicle which is open to the public is a lot less than in a residence but it pointed out many circumstances, most recently in Gant, where the Supreme Court found an expectation of privacy in a vehicle.

Unlike the Oregon and Washington constitutions the New York search and seizure clause tracks the Fourth Amendment. Therefore there is some hope that someday when the United States Supreme Court decides a GPS case that it will follow the New York example.

A recent Missouri case reported in Fourth Amendment.com State v. Allen illustrates the need not to let police into your house or your car or anywhere else that you have an expectation of privacy. The police conducted a “knock and talk” at the residence of Amy Jo Dean Rig. A “knock and talk” occurs when the police believe that criminal activity, in this case drug use and sales, is occurring in a residence. They do not have probable cause to search the residence or to get a search warrant. If they had probable cause they would go ahead and get the search warrant. But since they don’t have probable cause they knock on the door and attempt to either get information from the resident that gives them probable cause or even better yet get the resident to let them into the house to search for contraband.

In this case Rig initially said “no.” But police are taught to be persuasive talk. Many department have officers who specialize in talking their way into a residence. In this case they used a female officer. Presumably they thought that the female was more likely to get into the apartment.

The officers asked Rig if there were drugs in the apartment. She said “no.” In a not unusual move the officers told Rig to let them in to show that she was telling the truth. She continues to say, “no.” The officers start talking about Rig’s children and how bad it is to have drugs around them. Eventually they get her to admit that she has a marijuana pipe. The officers ask if they can come in and get it. They will only write her a ticket if they get the pipe. She says she’ll get it and give it to them. They say “for officer safety purposes” they want to come in and get it. At this point Rig gives up and says, “yes.” They come in. One of the officers stays in the living room with Rig’s guests. the other follows her to the bedroom. She goes to the bedside table and quickly takes the pipe out of a drawer and gives it to them.

Now that they have evidence they wonder what else is in the drawer. Thi\ey get permission to search the drawer. They find a white powder used for cutting drugs. Well now that they have probable cause, they give Rig the choice of either giving further consent or they will get a search warrant. The cat is out of the bag and its too late. They get the consent and search the house. They find a commercial quantity of methamphetamine. Her boyfriend is arrested and convicted.

If Rig had said “no” at the door and stuck to her guns or if she said I want to talk to a lawyer before I let you in my house, the search would not have happened and no one would have been arrested.