Secured Police Vans Do Not Create Reasonable Expectation of Privacy

Similar to regular police cars, police vans do not create a reasonable expectation of privacy, even when certain security features isolate the arrested individual from law enforcement

United States v. Paxton, 2017 BL 48962, 7th Cir., 14- 2913, 2/17/17.

The Seventh Circuit reversed a lower court’s suppression ruling, finding that defendants do not have a reasonable expectation of privacy in the back of a police van. Without the expectation of privacy, video and audio recordings are not considered an unreasonable search under the Fourth Amendment. During the criminal proceedings, the court suppressed evidence captured from a video and audio recording of five arrested individuals held in a police van. The court suppressed the video and audio evidence, reasoning that the double plexiglass windows separating the driver and the arrested suspects, thick steel panels on the van, and other security features created a reasonable expectation of privacy for the defendants.

In reversing the decision, the circuit court extended the established principle that there is no expectation of privacy in a police cruiser to police vans, even when there is an appearance of privacy. Additionally, the court pointed to recent incidents where serious injuries and deaths have occurred in police vans as external reasons for the need to maintain camera and audio recording equipment in the van.

http://www.bloomberglaw.com/public/document/United_States_v_Paxton_No_142913_2017_BL_48962_7th_Cir_Feb_17_201.

Officer Frisk Allowed, Even with Concealed Carry Law

A person that is lawfully stopped by an officer may be subject to a frisk, even if the state grants concealed-carry permits to its citizens

United States v. Robinson, 2017 BL 18217, 4th Cir. en banc, No. 14-4902, 1/23/17.

The Fourth Circuit held that officers may frisk lawfully stopped citizens in states that grant concealed-carry permits, following the jurisprudence developed under Terry v. Ohio, Pennsylvania v. Mimms, and their progeny. The purpose of a frisk is to prevent the violent use of a weapon, so an officer frisk is warranted even if the person’s possession of a gun is allowed under the state’s concealed-carry laws. Even if there is a concealed-carry law in place, it does not necessarily prevent the danger that an encounter with a law enforcement officer imposes.

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Robinson_No_144902_2017_BL_18217_4th_Cir_Jan_23_2?1486503049

Killing Dogs During a Police Search Not Inherently Unconstitutional

The death of two dogs during a police search was deemed reasonable under the Fourth Amendment because of their aggressive behavior that was impeding a police search of a home

Brown v. Battle Creek Police Dep't, 2016 BL 420467, 6th Cir., No. 16-1575, 12/19/16.

The Sixth Circuit held that police officers did not violate the Fourth Amendment in killing two pit bulls during a drug raid. Although the court recognized that dogs are property and any unreasonable seizure of them would be considered unconstitutional, due to their aggressive nature and interference in the performance of a large-scale drug raid by police officers, their killing was reasonable. It was irrelevant to the court that the dogs were owned by occupants of the house who were not subject to the search.

https://www.bloomberglaw.com/public/desktop/document/Brown_v_Battle_Creek_Police_Dept_No_161575_2016_BL_420467_6th_Cir?1485369674

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

Canine Search of Package in Transit Violated Privacy Interest under State Constitution

The use of a canine to sniff a package in transit violated the recipient’s privacy interest because he had a property right in the package protected under the state’s constitution

State v. Barnthouse, 2016 BL 334731, Or., No. SC S063426, 10/6/16

The Oregon Supreme Court found that the interception of a package by police to perform a dog sniff violated a recipient’s privacy interest because he was guaranteed a property interest in the package, even while in transit. The court found that under the state constitution, a citizen has a protected possessory interest in the package through the “stream of mail.” The package that was sent was discovered by police during an examination of suspicious packages with drug canines at the airport. After drugs were discovered in the package, the police went to the owner of the package to ask him to open it, allowing officers to discover illegally shipped marijuana and money.

Several federal circuits and courts have allowed officers to subject a package to a quick canine sniff, but only as long as it did not interfere with the package or its timely delivery. Additionally, police could not remove it from the delivery service or carrier’s custody for extended periods. These courts reasoned that the Fourth Amendment was not implicated as long as the package was not overly aggressive. The Oregon Supreme Court, however, went one step further and found the state constitution to protect the property interests in the package at each stage of delivery.
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https://www.bloomberglaw.com/public/desktop/document/State_v_Barnthouse_No_SC_S063426_2016_BL_334731_Or_Oct_06_2016_Co?1476818368

Unlisted Second Driver of Rental Car is Breaking Contract but Not Law

A driver not listed on a rental agreement is not breaking the law for using a car “without authority,” thereby not justifying the arrest of the driver, search of the car, and later, the car’s impoundment. 

Commonwealth v. Campbell, 2016 BL 324143, Mass., No. SJC-11980, 9/30/16.

The Massachusetts Supreme Judicial Court ruled that a driver not listed on a rental car’s agreement is not breaking the law for driving a car “without authority.” The court stated, “A renter's decision to allow a person who is not a permitted driver according to the rental agreement to drive a rental vehicle may be a breach of that agreement, but it does not also result in a violation of criminal law.”

It should also be noted that the court did not address whether the unlisted driver had an expectation of privacy in the rental car. This issue faces a circuit split that has been unresolved by the Supreme Court. In the Tenth Circuit, however, a driver whose name is not listed on a rental car agreement cannot challenge a police search on constitutional grounds, even when a listed driver gives the person permission to use the car.

http://www.bloomberglaw.com/public/document/Commonwealth_v_Campbell_No_SJC11980_2016_BL_324143_Mass_Sept_30_2.

Police Must Record Conversation Between Translator and Suspect

To gauge accuracy and provide an independent way to evaluate the translated conversation of a non-English speaking suspect, police must record conversations between the suspect and translator

Commonwealth v. Adonsoto, 2016 BL 305082, Mass., No. SJC-11978., 9/16/16.

The Massachusetts Supreme Judicial Court ruled that police must record conversations between a non-English speaking suspect and their translator. This is response to a challenge by a Hispanic woman arrested for drunk driving. During an interview with the police, a telephonic translation service was used to translate the conversation between the police and woman. The defendant argued that the translated statements were inadmissible hearsay because using the interpreter was improper because an agent of the police. Ultimately, the argument was rejected by the court because the translator had no motive to lie and the evidence indicated that the interpreter was no more than a “language conduit.” The court further stated, “along with providing a method to gauge reliability, a recording of the translation provides an independent basis to evaluate the truth of the testimony for purposes of determining the applicability of the confrontation clause.” 

http://www.bloomberglaw.com/public/document/Commonwealth_v_Adonsoto_No_SJC11978_2016_BL_305082_Mass_Sept_16_2.

Police Cannot Search a Smartphone Left Unattended Without a Passcode

A person does not lose their expectation of privacy in their smartphone that is left unattended and without an access passcode

State v. Peoples, 2016 BL 296299, Ariz., No. CR-15-0301-PR, 9/12/16.

The Arizona Supreme Court found that a person’s expectation of privacy does not disappear when a smartphone is left unattended without a passcode. The court upheld a broad expectation of privacy in a personal smartphones because of the amount of personal information found on a phone. This line of reasoning follows the U.S. Supreme Court’s rationale in Riley v. California, which placed the requirement on police to obtain a warrant before searching a person’s smartphone. In their decision, the Arizona Supreme Court said, “Cell phones are intrinsically private, and the failure to password protect access to them is not an invitation for others to snoop.”

http://www.bloomberglaw.com/public/document/State_v_Peoples_No_CR150301PR_2016_BL_296299_Ariz_Sept_12_2016_Co.

“Plain Hearing” Rule Used to Make Evidence Admissible

“Plain Hearing” Rule Used to Make Prosecutors “may” be able to admit evidence from a legal wiretap that includes conversations of people targeted conspiracy not included in the Admissible

 United States v. Carey, 2016 BL 291176, 9th Cir., No. 14-50222, 9/7/16.

The Seventh Circuit found that evidence collected from an untargeted person under a legal wiretap may be admissible under a “plain hearing” rule. The court found that the plain hearing rule was a logical corollary to the “plain-view” rule that allows police to collect evidence from things in plain sight during a legal search. The court based its decision on dicta from an earlier case where the court suggested that the plain hearing rule “is just the plain view doctrine translated from the visual to the oral dimension.”

The court cautioned, however, that this rule is not without limits. In one such example, the court noted that the police cannot collect incriminating information from people once they realize the audio being captured is unrelated to the wiretap warrant.

http://www.bloomberglaw.com/public/document/United_States_v_Carey_No_1450222_2016_BL_291176_9th_Cir_Sept_07_2.

Restrictions Attached to Bond Considered “Continuing Seizure”

A woman is allowed to pursue a malicious prosecution claim for her bond restrictions after being required to travel monthly to every pre-trial meeting because it was “continuing seizure”

Black v. Montgomery County, 2016 BL 282138, 3d Cir., No. 15-3399, 8/30/16.

   The Third Circuit held that a woman was under a constitutionally significant restraint because of her bond requirement that she attend every pre-trial hearing, even though she lived across the country. The woman was out on a $50,000 bail but was required to fly monthly to attend every court proceeding for a year or face having her bond forfeited in its entirety. The court found that this constituted a seizure. The court based their decision on a plurality concurrence in Albright v. Oliver, which opined that the requirement for a defendant to appear in court for various reasons could constitute a seizure if there were “constitutionally significant restraints.”

http://www.bloomberglaw.com/public/document/Black_v_Montgomery_County_No_153399_2016_BL_282138_3d_Cir_Aug_30_.

License Plates from States with Legal Weed Not Enough for Stop and Search

Stopping a car with tags from Colorado was not enough to create reasonable suspicion to stop and search the car for illicit material

Vasquez v. Lewis, 2016 BL 273055, 10th Cir., No. 14-3278, 8/23/16.

   The Tenth Circuit found that the stopping of a car in Kansas with temporary tags from Colorado was not enough to create reasonable suspicion in holding and searching the car. The officer’s stated primary justification for stopping and calling in a drug-sniffing dog was the Colorado tags on the vehicle. The court opined that detaining someone because of their residency is improper, especially taking into consideration that 25 states have legalized medical or recreational marijuana, which cannot support reasonable suspicion.

   The officers cited other factors for the search, including the driver’s nervousness, late night travel on a highway known to be a “drug corridor,” and a blanket covering items in the back seat. The court found, however, this evidence was “too innocuous” to add any weight to the officer’s claim. “Absent a demonstrated extraordinary circumstance, the continued use of state residency as a justification for the fact of or continuation of a stop is impermissible,” stated the court.

   The opinion is of note for its potential of breathing new life in 42 U.S.C. § 1983 claims. In the dissenting opinion, the ruling was called a “close call,” arguing that officers should be given the benefit of the doubt due to the totality of circumstances.

http://www.bloomberglaw.com/public/document/Vasquez_v_Lewis_No_143278_2016_BL_273055_10th_Cir_Aug_23_2016_Cou.

Border Search Okay, Even If Driver Never “Crossed” Border

After making a U-turn at a border crossing, the warrantless border search was constitutional because the subjective intent of the driver did not matter

D.E. v. Doe, 2016 BL 276645, 6th Cir., No. 15-2128, 8/26/16.

   The Sixth Circuit held that border patrol agents did not conduct an illegal warrantless search at a border crossing, even if the driver did not actually cross the border. The driver, after mistakenly entering a border crossing into Canada, made a U-turn at the station and was stopped by U.S. border patrol agents. After being stopped, the driver's vehicle was searched and drugs were discovered in the vehicle. The court upheld the search, clarifying  that the subjective intent of the driver, whether wanting to cross the border or not, does not have any impact on the broad search powers at an international border crossing setting. It was irrelevant that the driver did not want to cross the border.

https://www.bloomberglaw.com/public/desktop/document/DE_v_Doe_No_152128_2016_BL_276645_6th_Cir_Aug_25_2016_Court_Opini?1472748746

Driver’s Consent to Search a Car Does Not Give Consent to a Passenger Frisk

A Terry Frisk of a passenger in a vehicle must be associated with a legitimate concern for the officer’s safety, not because consent was given to search a vehicle 

Sellman v. State, 2016 BL 274588, Md., No. 84, 8/24/16.

   The Maryland Court of Appeals ruled that a frisk of a passenger without a reasonable suspicion that the passenger posed a danger is unconstitutional under the Fourth Amendment. Even when consent was given to search the car, the permission did not extend to a search of the passengers without reasonable suspicion that they were armed and dangerous.

   During argument, the state contended that the high crime area of the stop and the time of night warranted a frisk, citing that residents have complained about numerous thefts at the apartment complex and the passengers appeared overly nervous, providing conflicting statements. The court disagreed with this argument, however, finding that generalized concerns were not enough for reasonable suspicion. “The officers did not observe furtive gestures, evasive maneuvers, bulges, bags or containers, or any instruments associated with the suspected crime of the theft, i.e., theft of property from cars.”

http://www.bloomberglaw.com/public/document/Sellman_v_State_No_84_2016_BL_274588_Md_Aug_24_2016_Court_Opinion.

Police Frisk During the Service of a Civil Writ for Child Support Okay

During the service of a writ of child support, the police executing the writ may frisk and search the person in the writ for weapons because of the search-incident-to-arrest exception

United States v. Phillips, 2016 BL 273057, 11th Cir., No. 14-14660, 8/23/16.

   The Eleventh Circuit ruled that a frisk during the service of a writ of child support is okay through the the Fourth Amendment exception allowing for a search-incident-to-arrest. The court held that under Florida law, the writ of attachment in this case is similar to a bench warrant, which allows police to pick up people to bring them into court. The court stated, “Because bench warrants and writs of bodily attachment for unpaid child support are virtually indistinguishable, the long historical pedigree of the former convinces us that the latter also passes constitutional muster.”

   This issue initially arose because the defendant, when searched, was found to have a gun on his person and was later convicted of being a felon in possession of a firearm.

http://www.bloomberglaw.com/public/document/United_States_v_Phillips_No_1414660_2016_BL_273057_11th_Cir_Aug_2.

“Could Have” Gotten a Warrant Is Not Inevitable Discovery

Police testimony that they “could have” gotten a warrant before performing a search is too speculative to invoke an inevitable discovery exception to the exclusionary rule

Gore v. United States, 2016 BL 267572, D.C., No. 15-CM-354, 8/18/16.

   The D.C. Circuit joined the Second and Eighth circuits finding that “could have” gotten a warrant before executing a search is too speculative to be “inevitable” because there is indication of whether lawful procedures were already in the works during the illegal search. The court ruled, finding that the constitutional standard to be used is “would’ve,” not “could’ve” or “might’ve.” If officers “could’ve” gotten a warrant, then it lacks the necessary certainty to trigger the exception to the exclusionary rule that would have allowed them to perform the search.

   The First, Second, Third, Fourth, Sixth, Ninth, and Tenth circuits apply a softer standard, only requiring that the government to show that if the police were following routine standards, then they could have used lawfully secured the evidence.

http://www.bloomberglaw.com/public/document/Gore_v_United_States_No_15CM354_2016_BL_267572_DC_Aug_18_2016_Cou.

Furtive Movements at Time of Apprehension Enough to Keep Suspects Cuffed

At police stop for a suspected drug deal, officers were allowed to cuff the suspects as they waited for a canine unit because of possible safety implications by the suspect’s actions around the car

Chase v. State, 2016 BL 269343, Md., No. 85, 8/19/16.

   The Maryland Court of Appeals affirmed a denial for a motion to suppress evidence collected while officer cuffed two suspects for safety reasons after a drug deal sting. When the officers approached the vehicle where the drug deal occurred, they noticed “furtive” movements made by the suspects and feared that they may have had weapons on them or in the vehicle. They were cuffed for approximately two minutes while the arresting officers waited for a canine unit to arrive to search the vehicle.

   The court upheld the trial court’s decision, ruling that the handcuffing of the suspects in this instance did not necessarily transform the detention into an arrest due to the totality of the circumstances. The court took into account the possibility of weapons in the vehicle and the furtive movements and mannerisms of the suspects. The officers, even after performing a frisk of the suspects and finding no weapons were ruled to be justified in handcuffing the suspects because of the fear of weapons in the vehicle.

http://www.bloomberglaw.com/public/document/Chase_v_State_No_85_2016_BL_269343_Md_Aug_19_2016_Court_Opinion.

Sniffing Dog Does Not Violate Fourth Amendment if there are Exigent Circumstances

The use of a sniffing dog around the curtilage of a home during a hot pursuit does not violate the Fourth Amendment because there were exigent circumstances during the chase

State v. Gay, 2016 BL 240680, N.H., No. 2015-0174, 7/27/16.

    The New Hampshire Supreme Court recently ruled that police using a sniffing dog without a warrant to track an individual to the curtilage of a home does not violate the Fourth Amendment. The pursuit took place in the immediate aftermath of a murder in which a dog immediately took after the scent from some “skin rafts” and traced it to the defendant’s home. The defendant motioned to suppress the evidence, arguing the search violated a similar principle established in Florida v. Jardines, in which the use of a drug sniffing dog on an unverified tip was unconstitutional. The New Hampshire Supreme Court distinguished this case, however, arguing that the exigencies of the case due to the dispersion of the scent from the “skin rafts” warranted the use of the sniffing dog. Additionally, the court noted that the level of intrusion was minimal because the dog was not used to climb onto structures in the property and after the home was identified, the officers immediately left to obtain a warrant.

http://www.bloomberglaw.com/public/document/State_v_Gay_No_20150174_2016_BL_240680_NH_July_27_2016_Court_Opin.

Suppression Ruling During Pretrial Has Preclusive Effect During Federal Civil Rights Suit

A motion to suppress ruling at pretrial precludes a later federal civil rights claim regarding a seizure because the Fourth Amendment violation was already resolved during the criminal proceeding

Nance v. Humane Soc'y of Pulaski Cty., 2016 BL 252098, 8th Cir., No. 15-3512, 8/4/16.

   The Eighth Circuit ruled that a couple cannot not sue in federal court under 43 U.S.C. § 1983 because a state’s court ruling on a pretrial motion to suppress evidence precluded their claim. During their criminal trial, the couple motioned to suppress evidence that was collected in an animal cruelty investigation. The trial court had a hearing and admitted the evidence, resolving the possibility of any Fourth Amendment claim that could be raised later. In their opinion, the circuit court rebutted any claim that the couple did not have an opportunity to fully litigate the validity of the seizure on an alternative argument. It held that any alternative argument should have been presented during the pretrial proceedings, and the failure to do so, now bars their civil rights claim on this issue.

http://www.bloomberglaw.com/public/document/Nance_v_Humane_Socy_of_Pulaski_Cty_No_153512_2016_BL_252098_8th_C.

GPS Tracking on Cell Phone OK if for Exigent Circumstances

Without answering issues regarding the expectation of privacy in a suspect’s GPS coordinates through their cell phone, a court ruled that exigent circumstances warranted tracking of a cell phone

United States v. Caraballo, 2016 BL 247520, 2d Cir., No. 14-4203-cr (Con), 8/1/16.

   The Second Circuit punted on the privacy issue of whether a Fourth Amendment search is conducted when a state actor uses the GPS coordinates of a suspect’s cellphone during an investigation. Rather, it relied on exigent circumstances in the case to justify the search. While the circuit court affirmed the lower court’s holding, finding that there were exigent circumstances for the search, it did not, however, make a ruling on the trial court’s determination that the use of GPS coordinates violates an expectation of privacy. The Sixth Circuit is the only jurisdiction so far to address whether the use of GPS coordinates from a cell phone violate an expectation of privacy, holding that individuals have “no reasonable expectation of privacy in the real-time GPS location of their cell phones.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Caraballo_No_123839cr_L_2016_BL_247520_2d_Cir_Aug?1470857495