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

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.

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.

General Drug Trafficking Knowledge Not Enough for Probable Cause

An officer’s general knowledge about items used in drug trafficking was not enough to establish probable cause for obtaining a search warrant

United States v. Brown, 2016 BL 205724, 6th Cir., No. 13-1761, 6/27/16.

   The Sixth Circuit found that an officer’s general knowledge about drug trafficking, coupled with flawed information about the homeowner’s participation in dealing drugs, did not establish sufficient probable cause for a search warrant. Although the officer had sufficient cause to search the homeowner’s car, information collected from the car, including the address of the house, was not enough on its own to satisfy search warrant requirements. The court found “no evidence that [the homeowner] distributed narcotics from his home, that he used it to store narcotics, or that any suspicious activity had taken place there.” Further in the opinion, the court continued by saying, “The affidavit did not suggest that a reliable confidential informant had purchased drugs there, that the police had ever conducted surveillance at [homeowner’s] home, or that the recorded telephone conversations linked drug trafficking to Brown’s residence.” Without any such probable cause, the search was unreasonable.

http://www.bloomberglaw.com/public/document/United_States_v_Brown_No_16a0148p06_2016_BL_205724_6th_Cir_June_2.

GPS Tracker Okay Even if Outside Warrant’s Geographic Limits

Information from a GPS tracker attached outside the geographic limits set by a warrant is admissible evidence

United States v. Faulkner, 2016 BL 204488, 8th Cir., No. 15-2286, 6/27/16.

   The Eight Circuit affirmed a lower court’s ruling to not suppress information gathered from a GPS tracking device used in an investigation. The GPS was used after the police obtained a warrant, but was applied outside the geographical limits set by the magistrate. It did, however, meet the other specifications of the warrant.

   The defendant argued that under Jones v. United States, a GPS tracking device that is used outside the geographic range of the warrant makes any gathered evidence inadmissible. The circuit court, in response, interpreted the Supreme Court’s decision as only the incorporation of GPS tracking devices into the Fourth Amendment’s limits on searches, not necessarily setting the parameters of warrants for such devices. The court went further, saying “[T]he technical deficiency that the warrant specified a certain county for placement of the GPS device when it was actually placed in a neighboring county….is not a Fourth Amendment violation under these circumstances.” Moreover, the court found that Jones and “its application is of limited value for [the defendant].”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Faulkner_No_152252_2016_BL_204488_8th_Cir_June_27?1467834940

GPS Tracking Data Not Prohibited by Exclusionary Rule Because of Officer’s Good Faith

Evidence gathered from a GPS tracker device is admissible because it was collected before United States v. Jones, which required police to obtain a warrant for GPS tracking

United States v. Mitchell, 2016 BL 210529, 10th Cir., No. 15-3006, 6/30/16.

   The Tenth Circuit found that GPS evidence collected before the United States v. Jones decision was admissible in court. The ruling follows similar decisions from other jurisdictions, including the Fifth, Seventh, Eight, and Ninth Circuits. Only the D.C. Circuit has taken the opposite view.

   Before Jones, police did not need a warrant to collect information from a GPS tracker attached to a suspect’s car. Moreover, there was existing case law allowing the use of similar electronic tracking devices, such as electronic radio transmitters that attach to vehicles. The court recognizing the legality of the search before the Supreme Court decision stated, “[W]e think a reasonable officer could be forgiven for thinking, prior to Jones, that existing appellate precedent authorized him to install and monitor a GPS device on a private vehicle without a warrant.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Mitchell_No_153006_2020_BL_210529_10th_Cir_June_3?1467818975

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.

Spouses May Consent to Child Porn Searches on Home Computers

A wife had the legal authority to consent to the search and seizure of her husband's electronic devises that contained child pornography.

 

United States v. Thomas, 2016 BL 103144, 11th Cir., No. 14-14680, 4/1/16

     The Eleventh Circuit Court of Appeals ruled that the evidence found on his computer should not be suppressed because his then-wife shared authority and access over the home and the computers inside. Any search made prior to the prisoner revoking consent was within the Fourth Amendment.

     The court found it 'particularly significant that Thomas did not protect his Internet history from [his wife] by maintaining a separate login name and password or by encrypting his files.'

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Thomas_No_1414680_2016_BL_103144_11th_Cir_Apr_01_?1462392789

Warrantless Blood Draw Justified By Broken Intoxilyzer

A blood draw performed without a warrant was justified by exigent circumstances after the officer attempted to use the police station's Intoxilyzer machine, but it was not functioning correctly.

 

State v. Arndt, 2016 BL 45450, Me., Sag-15-150, 2/18/16

     The deputy attempted four times to use the Intoxilyzer to obtain a blood-alcohol reading from a suspected drunk driver, but the machine was not functioning correctly. Because time was running out, as any alcohol in the blood stream was dissipating, the deputy had a paramedic take a sample of the suspect's blood.

     The Maine Supreme Court determined that the deputy's decision was reasonable, and did not go against Missouri vi McNeely, because 90 minutes had passed and he feared that the evidence would be lost because the Intoxilyzer was broken. See Missouri v. McNeely, 133 S.Ct 1552 (2013). 

http://www.bloomberglaw.com/public/desktop/document/State_v_Arndt_2016_ME_31_Court_Opinion?1457544612

No Need For Reasonable Suspicion for Search of Probationer

Agents of law enforcement are not required to cite reasonable suspicion before searching a probationer under standard probation.

 

United States v. Tessier, 2016 BL 45438, 6th Cir., No. 15-5284, 2/18/16

     The Sixth Circuit Court of Appeals ruled that, as long as the standard probation form that consents to searches "without a warrant" and "at any time", law enforcement officials do not need reasonable suspicion to search a probationer.

     Probationers still have some protections, but are not entitled to the same absolute liberties, guaranteed by the Fourth Amendment, as people not on probation. In this case, officers were acting within a operation searching the residences of every known sex offender in the county. The court used a "totality of the circumstances" analysis and said that because the search conditions in this case advanced the two primary goals of probation - rehabilitation and protecting society from future criminal violations -  the intrusion was reasonable.

     The court said that it did not need to answer the greater question of "whether a search of a probationer's home that has no legitimate law enforcement or probationary purpose-such as a search with no purpose other than to harass the probationer-would be reasonable under the Fourth Amendment."

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Tessier_No_155284_2016_BL_45438_6th_Cir_Feb_18_20?1457129207

Blanket Suppression Not Needed Despite Cop's Bad Acts

The remedy for instances where officers seize items not listed in a warrant is suppression of the improperly seized items, not suppression of all of the evidence.

 

United States v. Webster, 2016 BL 840, 10th Cir., No. 15-3027, 1/5/16

    The 10th Circuit Court of Appeals ruled that drugs and guns seized during the execution of a valid search warrant do not need to be suppressed merely because some of the officers took advantage of the situation to steal an iPhone, a PlayStation, and other items.

    The court said that the remedy for instances where officers seize items not listed in a warrant is suppression of the improperly seized items, not suppression of all of the evidence. The court went on to say that blanket suppression is only called for in those very rare instances where officers disregard the limitations of a warrant flagrantly, turning the search into a fishing expedition.

    In United States v. Medlin, the court ordered blanket suppression of all of the evidence, not just the illegally seized items, because officers exhibited "flagrant disregard" for the terms of the warrant and took more than 660 items not named in the warrant.

    The court here distinguished indicating that the officers did not use the warrant as a fishing expedition, but instead pocketed only four items. The court pointed to the fact that in Medlin, all of the police were in on it, but here only a couple of the officers were involved in the wrongdoing.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Webster_No_153027_2016_BL_840_10th_Cir_Jan_05_201?1453128513

Computer Search Techniques Need Not Be Explicit

The forensic search methods that will be used in a computer search need not be outlined in a warrant.

 

United States v. Mulcahey, 2015 BL 415955, D. Mass., No. 1:15-cr-10112, 12/17/15

    The defendants moved to suppress evidence found on the hard drives of a computer seized, with a warrant, from their business premises, arguing that the warrant was defective because it authorized only the seizure and not the search of the hard drives.

    The district court found that the warrant was proper because the language clearly identified the property to be searched and seized. The court indicated that the defendants failed to identify what conditions might be given to limit the search, and how those conditions would be applied. The court referred to a 2013 ruling from the Supreme Judicial Court of Massachusetts which rejected the idea that advanced approval of particular forensic examination methods of computers is necessary.

http://www.bloomberglaw.com/public/desktop/document/USA_v_Mulcahey_et_al_Docket_No_115cr10112_D_Mass_May_05_2015_Cour/1?1452611588

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.

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

Only One Party Needs to Consent to Telephone Taps in Connecticut.

As long as one party to a conversation gives consent, the Connecticut Constitution does not require police to obtain a warrant before recording phone calls.

 

State v. Skok, 2015 BL 289964, Conn., No. SC 19415, 9/15/15

     The Connecticut Supreme Court indicated that all federal courts and an "overwhelming majority" of state courts follow the one-party-consent exception to the warrant requirement. The reasoning of these courts is that a person using a phone to further criminal activity does not have control over who the other person shares the conversation with, or allows to listen in.

     The court here also indicated that the defendant's claim of reasonable expectation of privacy was undermined because she repeatedly reminded the other party to make sure that family members would not overhear the conversations.

http://www2.bloomberglaw.com/public/desktop/document/State_v_Skok_No_SC_19415_2015_BL_289964_Conn_Sept_15_2015_Court_O