“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.

In Civil Rights Suits, Exclusionary Rule Does Not Apply

Officers facing lawsuits for unlawful arrest may use evidence that was that was suppressed during the plaintiff’s criminal trial as part of their defense

Lingo v. City of Salem, 2016 BL 204750, 9th Cir., No. 14-35344, 6/27/16.

    The Ninth Circuit, following suit of nearby circuit courts, ruled that evidence suppressed during a criminal proceeding can be used by the police officer in their defense during a civil suit for unlawful arrest. The court stated that the exclusionary rule is not a personal right by noting that it does not apply in grand jury proceedings, civil tax cases, or civil deportation actions. While the officer’s evidence could not be introduced during the criminal proceeding, for the purposes of a civil trial, the officer could still use the evidence to support their probable cause arrest.

   The circuit court also noted that the exclusionary rule already gave the plaintiff a large benefit during her criminal proceedings. By extending the rule to civil cases, the practical effect would be “increase[ing] state actors’ financial exposure in tort cases that happen to involve illegally seized evidence.” 

http://www.bloomberglaw.com/public/document/Lingo_v_City_of_Salem_No_1435344_2016_BL_204750_9th_Cir_June_27_2.

No More Emergency Entry Exception When Crisis Ends

Police who enter a residence under the emergency exception are expected to restore order and prevent injury, but seizing and testing suspected items is beyond the emergency exception.

 

Commonwealth v. Kaeppeler, 2015 BL 428978, Mass., No. SJC-11855, 12/30/15

    Officers entered a house without a warrant under the "emergency aid exception," and determined that the occupant was no longer in distress. The police exceeded their authority after the initial entry when they seized and tested the contents of a tequila bottle.

    The police had received information from a local hospital that a couple who had been with the defendant the previous evening at his home had become seriously ill after drinking tequila. The police also heard from the defendant's coworker that he had not been to work that day.

    Based on that information, the Massachusetts Supreme Judicial Court upheld the initial warrantless entry of the defendant's home because the police had a legitimate concern for his health and safety. There was no longer an emergency, however, after the police arrived and ensured that the defendant could get "checked out" at the hospital. The court said that "[f]rom that point on, the police had no further cause for concern about the defendant's well-being and no public safety justification to remain in his home."

    The court continued by saying "[w]e recognize that the role of a police officer responding to an emergency is not necessarily limited to rendering aid to an injured person. But here, the police went beyond that and started investigating things to which they had not warrant and no reasonable articulable suspicion.

http://www.bloomberglaw.com/public/desktop/document/Commonwealth_v_Kaeppeler_No_SJC11855_2015_BL_428978_Mass_Dec_30_2?1452097225

'Seizure' Only After Driver Obeyed Police Orders

A seizure does not occur until a suspect actually capitulates to a show of authority.

 

United States v. Stover, 2015 BL 416751, 4th Cir., No. 14-4283, 12/18/15

    A driver exited his truck and threw a pistol into the grass before he complied with the police officer's command to return to the vehicle. The Fourth Circuit Court of Appeals ruled that he abandoned the weapon before he was "seized" for purposes of the Fourth Amendment.

    The court indicated that a seizure does not occur until a suspect actually capitulates to a show of authority, and the defendant did not submit until he had already ditched the pistol. The court did not accept the defendant's argument that the pistol was the fruit of an illegal seizure because the police seized him without reasonable suspicion when they pulled up behind his truck, turned on their lights, and blocked him from driving away.

    The court hearkened to the ruling in California v. Hodari D., 499 U.S. 621 (1991), which held that a police officer's "show of authority" does not, alone constitute a Fourth Amendment seizure unless and until the suspect submits. Here, the court rejected the proposition that anything short of headlong flight qualifies as submission and ruled that merely remaining at the scene does not qualify as submission.    

    The court stated that because the defendant gave no indication that he was submitting until after he discarded the pistol, he was not "seized" until he did indicate submission. "Only after he discarded that gun and was confronted by an armed police officer did Stover submit to police authority," the court said.

Dog-Sniff Illegal on Curtilage Even if Officer Hangs Back

Evidence ruled inadmissible when the drug dog alerted near a suspect's apartment window even though the officer let the dog roam off leash while he stayed outside the curtilage.

 

United States v. Burston, 2015 BL 384510, 8th Cir., No. 14-3213, 11/23/15

    In this case the officer let the dog off the leash to sniff around while he remained outside of the curtilage by being six feet away from the apartment window. The Eighth Circuit Court of Appeals ruled that the search violated the rules laid out in Florida v. Jardines.

    The court stated that "cases preceding Jardines support the proposition that a police officer cannot invade a homeowner's curtilage by bringing a dog six to ten inches from a resident's window for the purpose of gathering evidence without a warrant."

    The court determined that the action in this case is different from action permitted in a common area. The court stated that "the area searched in this case was within six to ten inches of Burston's window, that is to say, an uncommon area."

    The ruling indicates that it is the location of the dog that matters. The argument that there is no Fourth Amendment violation so long as the officer stands "in a lawful location" while the dog invades the curtilage unlawfully is incorrect.

http://www.bloomberglaw.com/public/desktop/document/United_States_of_America_Plaintiff__Appellee_v_Democrus_Pernell_B?1451402638

Illegal Trash Pull Does Not Lead To Suppression

Evidence suppression is not the remedy for an illegal trash pull in this case of a warrantless search outside of the police's territorial jurisdiction.

 

State v. Robinson, 2015 BL 366572, Kan., No. 90,196, 11/6/15

    The Kansas Supreme Court ruled that there was no evidence that the "otherwise lawful trash pull" was committed by police officers from outside of the jurisdiction. Also, if it were committed by police from another jurisdiction, the statutory limits placed on police officers' authority are designed to protect neighboring jurisdictions, and not give any particular defendants any additional substantive rights.

    Though the evidence was not suppressed, the Court rejected the state's argument that the officers were acting as private citizens, and were therefore not acting under the territorial jurisdiction of their office. The court "doubt[ed] seriously" that private citizens "could wield sufficient influence to secure the cooperation and assistance of a private trash contractor in such endeavors for weeks on end."

http://www.bloomberglaw.com/public/desktop/document/STATE_OF_KANSAS_AppelleeCrossappellant_v_JOHN_E_ROBINSON_SR_Appel?1450112350