Informant Emergency Justified Warrantless Police Entry Into a Home

A police informant’s disobedience that led to him overdosing on drugs created an exigent circumstance that required police to enter a suspected drug dealer's home without a warrant does not violate the Fourth Amendment

United States v. Belser, 2016 BL 384771, E.D. Mich., No. 16-20572, 11/18/16.

A U.S. District Court in Michigan found that police did not violate the Fourth Amendment by entering a home without a warrant because their informant’s drug overdose was not a fabricated exigent circumstance.  The police were conducting a sting of a local heroin dealer using an undercover informant who disobeyed orders during the operation by ingesting some of the purchased drugs. After hearing strange breathing sounds and the dealer attempting to revive the informant through the radio, the police entered the home, called for medics, and arrested the dealer.

The court held that the exigent circumstances that led to the police’s entry of the home did not violate the Fourth Amendment because it was a true medical emergency. The defendant argued that the police contributed to the emergency by disregarding the unreliable character of the informant, claiming that the decision to use the informant was the proximate cause of the exigency. The court rejected this argument, stating, “proximate cause is not the test to determine if the police created the exigency.” The officers met their Fourth Amendment requirements by taking the lawful steps necessary before entry, making the subsequent arrest and seizure of drugs lawful.

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Belser_No_Case_No_1620572_2016_BL_384771_ED_Mich_?1479935222

Broad Warrant to Access Email Account is Okay

For large databases or accounts of electronically stored information, the “seize first, search second” model is still applicable, especially with the inclusion of specific ex ante instructions

In re Microsoft Corp., 2016 BL 320715, D. Kan., No. 16-MJ-8036, 9/28/16.

A Federal District Court in Kansas, in reviewing a magistrate’s denial of a search warrant, reversed the decision due to the broad power the government has in searching electronically stored information. The court upheld the “seize first, search second” rule model because of the difficulty that law enforcement faces in collecting electronic data and information from computers and databases. The court, in their decision, extended the scope of the rule to include entire email accounts, although still “subject to an ex post review for reasonableness.” Generally, such warrants are denied when they do not provide some limitations, such as a limited range of dates that can be accessed in the database of files. Here, the court noted, that the warrant’s “specificity” was sufficient to satisfy the Fourth Amendment requirement because it listed the target accounts and the evidence to be seized with specific criminal violations in mind.

 http://src.bna.com/i5C

Online Research by a Juror Leads to Mistrial

There was a “manifest necessity” to declare a mistrial after a court learned of a juror that researched issues related to the trial on their own.

Slavick v. Sequeira, 2016 BL 314700, D. Haw., No. 15-00424 DKW-KJM, 9/23/16.

A U.S. District Court in Hawaii found that a mistrial due to a juror’s independent research of an issue related to the trial created a “manifest necessity” that would not implicate an issue of double jeopardy. The issue arose because the defendant argued that a new trial after the initial mistrial would create an issue of double jeopardy. The court rejected this argument, finding that the trial court did not “falsify” reasons for the mistrial and that there was a “manifest necessity” for a second trial. The court further expressed concern over the problems of technology during a trial, stating, “after the jury had been exposed to the extraneous information, ‘the interests of public justice would not be served by a continuation of the [trial] proceedings[,],' and that manifest necessity existed to declare a mistrial.” The opinion continued by saying, “Because the mistrial was supported by a valid determination of manifest necessity, the second trial that resulted in [the defendant’s] conviction did not violate the Double Jeopardy clause.”

https://www.bloomberglaw.com/public/desktop/document/Slavick_v_Sequeira_No_1500424_DKWKJM_2016_BL_314700_D_Haw_Sept_23?1476465528 

StingRay Evidence Collected Without a Warrant Violates Fourth Amendment

Evidence gathered by a cell-site simulator that allows police to identify the location of cell phones is suppressed because it violates the Fourth Amendment's prohibition of unreasonable searches

United States v. Lambis, 2016 BL 222804, S.D.N.Y., No. 15cr734, 7/12/16.

  

   A federal district court suppressed evidence gathered after police used a cell-site simulator, sometimes referred to as “StingRay.” The device creates a simulated cell signal that connects with nearby cell phones, much like a cell tower. Through the device, law enforcement can collect the name and numbers of cell phones connected to the device as well as know what text messages or incoming and outgoing calls are being made. In this case, however, the StingRay was used to track the exact location of a cell phone of someone during an investigation. By calculating the strength of the single, DEA agents were able to find the location of the cell phone and its owner.
 

   In making this ruling, the court held that the use of the StingRay equipment used to find the defendant in his apartment was an unreasonable search because the cell phone location would not have been available otherwise. The court compared this case to the thermal-imaging device used in Kylio v. United States, where the Supreme Court found the equipment violated the Fourth Amendment. There, “the Court reasoned that distinguishing between ‘off-the-wall' observations and ‘through-the-wall surveillance' would ‘leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home.” Like the thermal-imaging device, the StingRay is not in use by the general public, leading the court to rule that “[a]bsent a search warrant, the Government may not turn a citizen’s cell phone into a tracking device.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Lambis_No_15cr734_2016_BL_222804_SDNY_July_12_201?1469216106