Sixth Circuit Permits Warrantless Search In Tennessee Case

The case, U.S. v. Kevin Patrick Daws, involves sheriff’s deputies in Henderson County, Tennessee who conducted a warrantless search of Kevin Daws’ home based on a public safety issue. The question was whether the threat posed by Daws justified the search of the house, something the Sixth Circuit Court of Appeals ultimately decided it did.

The incident began after a home invasion in 2010. Daws had smashed through a window of an acquaintance’s house, shoving a shotgun in the man’s face while demanding cash. Before leaving, Daws told the victim that if he ever called the police Daws would kill him. Later that same night Daws invaded the home of yet another acquaintance and demanded that the man store his shotgun and money, yet again insisting that if the victim informed police of Daws’ actions that Daws would return and kill the man.

Unsurprisingly, both men called the police that night and reported the incidents. One of the responding officers had previously worked as a correctional officer at a prison where Daws served time for aggravated burglary and remembered hearing how Daws had fired a weapon in his front yard and held up a gas station attendant at gunpoint. Based on the two incidents that had occurred earlier that evening and the background knowledge of the officer, the deputies decided it was best to arrest Daws as soon as possible and to do so carefully, calling for backup and to put on body armor.

After arriving at the house, the officers noticed an accomplice on the front porch crying, talking on the phone about how he and Daws had done something bad and would be going to jail as a result. The officers arrested the man who informed them that Daws was inside and asleep. The officers then took this as an opportunity to move in without possible armed resistance, and entered through an open back door and found Daws asleep in the living room. After detaining Daws, a sweep of the house turned up the shotgun used in the earlier home invasions.

Daws was charged with possession of a firearm by a convicted felon, ultimately pleading guilty and being sentenced to 210 months in prison. Daws decided to appeal the district court’ decision, arguing the evidence found in the house should have been suppressed due to the lack of a warrant.

The Sixth Circuit, however, was not convinced. Instead, the Court walked through all the reasons why the officers were justified in entering Daws’ home immediately, without the delay of seeking a warrant. Given Daws’ behavior that evening, his prior instances of violence, threats to others and his ability to escape into the wilderness around his house, the Sixth Circuit decided that the situation presented a case where there was potential for injury to the officers and thus there was a need for swift action. The Court agreed that waiting to get a warrant would have heightened the risk that Daws would act on the threats or, at the very least, escape.

The Sixth Circuit found that the Fourth Amendment does not require that police ignore real risks of a shootout or of a suspect’s escape and can instead take action if there is a reason to do so. In this case, Daws’ own behavior justified quick action on the part of the officers and thus no warrant was necessary before entering Daws’ home.

To read the full opinion, click here.

See Our Related Blog Posts:

Sixth Circuit Excludes Evidence After Officers Search Wrong House

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Tiny Typo Leads to Flawed Warrant and Excluded Evidence

What may have seemed like a small typo on a warrant amounted to enough reason for a judge to prevent prosecutors from using evidence collected as a result of the raid. The case involves a search of a Knox County driving school, a company operated by a retired homicide investigator.

The former murder detective, Don Wiser, has been accused of taking money in exchange for handing over certificates for having completed his driving school. The Sherriff’s Office says it raided Wiser’s office after two undercover officers went to the school and walked out with paperwork claiming they’d attended a 16-hour course when they really only spent two hours at the facility. Wiser vehemently denies the charges and says he is being targeted by the Sheriff’s department because he’s operating a competing driving school that has taken money away from the county.

So far Wiser appears to have clearly won the first round of the legal battle. His defense attorney pointed out that there was an error in the search warrant used by Knox County sheriff’s officers when they raided his business. What was the trouble exactly? The wrong date appeared on the paperwork.

The raid was carried out at his business on April 14, 2012, but the search warrant incorrectly listed the year as 2011. The Assistant District Attorney in charge of the case pointed out that there were several other places on the warrant that clearly indicated the year was 2012 and that the typo only occurred once. However, this was not enough for Knox County Criminal Court Judge Steve Sword.

Judge Sword said that while he might have agreed with prosecutors that the error was simply a typo, it did not matter because state law on the subject is clear. He said Tennessee rules left him no choice but to throw out the warrant as legally flawed. Given the flaw in the warrant, all evidence collected as a result of the warrant was also excluded as fruit of the poisonous tree.

Tennessee is one state that does not recognize the concept known as “good faith exception”. Other states and the federal system rely on the principle which says that so long as an officer has good faith in believing that the warrant he or she is exercising is valid, the evidence obtained as a result of such a good faith search can still be used.

In this case, the warrant says that the information used a basis for the search was obtained a year before the warrant was actually executed. That long of a gap makes the information too old to act on and thus an improper basis for the search.

Read:“Judge: Typo on search warrant of business means it's no good,” by Jamie Satterfield, published at KnoxNews.com.

Petraeus Affair Raises Concerns About E-mail Privacy

With all the coverage surrounding the recent fiasco involving General Petraeus, the extent of people’s personal electronic security has been given increased attention. After all, if the CIA Director isn’t able to keep his emails private, what hope is there for the rest of us? Many privacy experts agree the recent scandal has shown just how vulnerable most people are in terms of the transparency of their digital communications.

The first thing that many experts say you need to realize is that no matter what you’re trying to hide, if it’s in your e-mail inbox it is possible that someone will find out. If the thing you’re hiding involves criminal activity, the chance of the government finding it goes up exponentially given their power to search and subpoena information. This doesn’t change whether the information is contained on your hard drive or floating up in the cloud.

One thing that Petraeus discovered was that the government can easily connect you to an account by using the IP address of the computer you used to access the account. This is what proved that he and his mistress were using the otherwise anonymous account. E-mail providers like Google and Yahoo save this kind of information for 18 months, during which time it can easily be subpoenaed.

Something many people may not realize is that the Fourth Amendment requires the authorities to get a warrant from a judge to search only physical property. Rules governing e-mail searches, however, are far more lax. Under the 1986 Electronic Communications Privacy Act, a 1986 law that Congress enacted to protect your privacy in electronic communications, a warrant is not required for e-mails six months old or older. Even if e-mails are more recent, the federal government needs a search warrant only for “unopened” e-mail. Everything else, including identifying information such as the IP address used to access the account requires only a subpoena.

One complicating factor is a recent rejection of the government’s approach by the Ninth Circuit Court of Appeals. The district happens to encompass many of the technology companies that handle e-mail messages and the servers that contain the data. Given the decision by the Ninth Circuit, the Department of Justice’s Manual now includes a note reminding agents in the area to get a warrant before accessing such information.

Though many people might believe this kind of e-mail surveillance only happens in high profile cases, the reality is that law enforcement throws a large net when looking for incriminating information. Google reported that United States law enforcement agencies requested data for 16,281 accounts from January to June of this year, and it complied in 90 percent of cases. Online users need to realize that everything is logged and recorded somewhere. If you don’t want someone else to find it, don’t say it.

Read: “Trying to Keep Your E-Mails Secret When the C.I.A. Chief Couldn’t,” by, published at NYTimes.com.

Looking Through Your Smartphone: Electronic Pocket Litter and Police Searches

A recent article discussed a seemingly boring but ultimately important issue that may be raised before the Supreme Court in the coming session: pocket litter. “Pocket litter” is a phrase used in law enforcement circles to refer to items of miscellaneous information carried on a person. This comes into play when a person is arrested or otherwise detained by an officer and they are subject to a search.

When law enforcement officers arrest someone, they conduct a thorough search of the suspect and his or her immediate possessions. This is what is known as a “search incident to arrest.” Any and all items found during this search are deemed admissible in Court. During a typical search officers are trained to look for items that might provide useful evidence for the case or that might cause harm to themselves or others. Another use of such searches is to gather information that might provide a clue about other individuals involved in the alleged criminal activity.

Seemingly mundane items found in people’s pockets or purses can provide a significant amount of information. Slips of paper with quickly written messages, phone numbers, names, addresses business cards, etc. all make for great leads. Beyond these obvious examples, scraps of paper including receipts, bus passes or airplane tickets also provide valuable information to those seeking to identify a suspected criminal and any possible criminal associates.

One thing that has happened on this front given the technological changes seen recently is that the items that often make up such pocket litter have changed. Originally the term referred only to small scraps of paper generally containing only a relatively small amount of information. Today, the term has grown to include electronic devices such as smartphones, tablets, iPods, and even laptops from which huge amounts of information can be collected. These devices carry voicemails, call and text logs, photos, Internet browser history and even GPS information.

The question facing many appellate courts today is just how far such a search can go when high value electronic pocket litter is involved. Cellphones in particular present a puzzling gray area, as there have been conflicting rulings between various U.S. Circuit Courts. This conflict makes it more likely that the issue will end up before the Supreme Court at some point to help clarify the issue. Judges confronted with such facts often find themselves lost, comparing cellphones to diaries while trying to analogize to prior cases from decades ago that have little if any relevance to the challenges they face today. The Supreme Court should step in and shed light on the issue, hopefully catching the legal system up to changes in technology.

Read: “Pocket Litter: The Evidence That Criminals Carry,” by Scott Stewart, published at RightSideNews.com.

See Our Related Blog Posts:
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Sixth Circuit says cell phone GPS data can be used to track criminals

U.S. Supreme Court Permits Strip Searches of Any Inmate No Matter the Crime

• Florence v. County of Burlington

Imagine, if you will, that you were arrested for a "minor" crime such as failing to pay child support. Imagine you were taken to jail, and before you were placed in the general population, you were strip searched. Not only have you never touched drugs in your life, but you aren't a violent person. So, what are they searching for? Sounds like an unreasonable search under the 4th Amendment of the U.S. Constitution, right? Wrong. According to the U.S. Supreme Court, corrections officers are now permitted to perform a strip search on any inmate, at any time, regardless of the type of criminal charges that inmate is facing.

In a sharply divided decision, the Court decided the case of Florence v. County of Burlington centering around the arrest and subsequent strip search of Mr. Albert Florence. Mr. Florence was riding in the car with his wife when she was pulled over for speeding. The officer realized that there was a warrant out for Mr. Florence's arrest based on an unpaid fine. Mr. Florence spent a week in jail and was strip searched at least twice. Mr. Florence argued that since his alleged crime involved neither drugs nor violence, the corrections officers did not have reasonable suspicion to search and, thus, the search was unreasonable under the 4th Amendment. The Court disagreed. Focusing on safety, Justice Kennedy (author of the opinion), stated that "people detained for minor offenses can turn out to be the most devious and dangerous criminals." He used two examples of this: Timothy McVeigh, the man who carried out the Oklahoma City bombing, who was arrested for driving without a license; also, one of the September 11th high jackers was pulled over for speeding two days before he allegedly high jacked flight 93. He also cited to prior case law and reasoned that the corrections officers' interest in maintaing safety in jails outweighs the potential for unreasonable and unnecessary searches of certain inmates. Further, he stated that by establishing strict regulations regarding strip searches, more inmates would be deterred from trying to smuggle contraband into the jail in the first place.

The 5-4 opinion was issued with the majority of the Court leaning on the conservative side. The dissenters argued in favor of the standard that requires corrections officers to have reasonable suspicion of contraband in order to execute a strip search. To execute a strip search on a person accused of committing a minor crime that deals neither with drugs nor violence, seems, to some, to be equivalent to an unreasonable search of a person without a warrant. The question now seems to be: Why warrantless searches or searches without probable cause are violations of the 4th Amendment and a strip search of a person who is highly unlikely to ever attempt to smuggle contraband into a jail is not a violation of the 4th Amendment? The answer may never be revealed.

Supreme Court Holds Officers Immune from Civil Suit on Invalid Search

• MESSERSCHMIDT ET AL. v. MILLENDER, EXECUTOR OF ESTATE OF MILLENDER, DECEASED, ET AL.

In an important and sure to be controversial decision yesterday, the Supreme Court held that police officers maintain their qualified immunity, even when a search is invalid, so long as their actions are not objectively unreasonable. (full opinion here)

This California case involved the search of a grandmother's home for proof of a weapon alleged to be possessed by Bowen, her grandson, a reputed gang member.  A federal district court found that the police search was unreasonable and the warrant invalid.  A civil suit was brought against the officers in federal court that sought money damages for the alleged constitutional violations.  In ending the matter, the Supreme Court found that the officers were and are protected from civil suit under the doctrine of qualified immunity.

Writing for a six-justice majority in Messerschmidt v. Millender, Chief Justice John Roberts Jr. rejected the suit against the officers, holding that such legal actions can be brought only if the police acted unreasonably. Chief Justice Roberts concluded that the police’s reliance on the warrant entitled them to qualified immunity because that reliance was not “objectively unreasonable.” The NYT reports.

The Court held: Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ Where the alleged Fourth Amendment violation involves a search or pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner, or in “objective good faith. Nonetheless, that fact does not end the inquiry into objective reasonableness. The Court has recognized an exception allowing suit when “it is obvious that no reasonably competent officer would have concluded that a warrant should issue.”

The “shield of immunity” otherwise conferred by the warrant, will be lost, for example, where the warrant was “based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The threshold for establishing this exception is high. “[I]n the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination” because “[i]t is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment.”

The Court further stated: This case does not fall within that narrow exception. It would not be entirely unreasonable for an officer to believe that there was probable cause to search for all firearms and firearm-related materials. Under the circumstances set forth in the warrant, an officer could reasonably conclude that there was a “fair probability” that the sawed-off shotgun was not the only firearm Bowen owned, and that Bowen’s sawed-off shotgun was illegal. Given Bowen’s possession of one illegal gun, his gang membership, willingness to use the gun to kill someone, and concern about the police, it would not be unreasonable for an officer to conclude that Bowen owned other illegal guns.

An officer also could reasonably believe that seizure of firearms was necessary to prevent further assaults on Kelly. California law allows a magistrate to issue a search warrant for items “in the possession of any person with the intent to use them as a means of committing a public offense,” and the warrant application submitted by the officers specific referenced this provision as a basis for the search.

GPS monitoring requires search warrant says Supreme Court

• United States v. Jones

In a unanimous show of strength, the Supreme Court ruled 9-0 yesterday in US v. Jones  that police cannot surreptitiously track an individual for a month in their private car without a search warrant.  The court announced that police monitoring in the modern age, by GPS tracking, amounts to a search and the month long surveillance in this case required a warrant to be valid.  Without this necessary warrant, the police violated the Fourth Amendment protections afforded by the Constitution.


David Savage reports in the Los Angeles Times, "Even the justices who most often side with prosecutors rejected the government's view that Americans driving on public streets have waived their right to privacy and can be tracked and monitored at will. At least five justices appeared inclined, in the future, to go considerably beyond the physical intrusion involved in putting a GPS device on a car and rule that almost any long-term monitoring with a technological device could violate an individual's right to privacy."


"I would guess every U.S. attorney's office in the country will be having a meeting to sort out what this means for their ongoing investigations," said Lior Strahilevitz, a University of Chicago expert on privacy and technology.


Robert Barnes of the Washington Post reports, "The court rejected the government’s view that long-term surveillance of a suspect by GPS tracking is no different than traditional, low-tech forms of monitoring. But its decision was nuanced and incremental, leaving open the larger questions of how government may use the information generated by modern technology for surveillance purposes."


Jennifer Geiger of the Chicago Tribune writes, "At the center of the case is suspected narcotics trafficker and D.C. nightclub owner Antoine Jones, who was busted for possession of cocaine and firearms after police secretly tracked him by attaching a GPS unit to his car. The police got a warrant authorizing them to install the GPS unit on the suspect's Jeep Grand Cherokee. However, problems arose because of how the warrant was used. Police had 10 days to mount the device on the car, but didn't do it until day 11. The monitoring was also supposed to be done while in D.C., but the suspect was followed across state lines to Maryland."


The GPS monitoring occurred  without a warrant and outside the jurisdiction.


What the Court did not decide is whether a less intrusive measure, say surveillance without a warrant for a few days would be a violation of the law.  That will be the stuff of future cases as courts will wrestle with the boundary of privacy in this age of constant camera surveillance--bank machines, toll roads, parking lots, wireless cell towers, phone GPS systems, and even to cars that track their own whereabouts round the clock.  This mountain of information that many people think to be private is often available to easy government access and the spot where privacy concerns are tipped is still an open question.

Sniffing Out Crime: Supreme Court Considers Case Regarding Limits on Drug Dogs

• JOELIS JARDINE v. FLORIDA

A case from Florida asks the question if a police dog’s behavior outside a house gives the officers the right to get a search warrant for illegal drugs inside the home, or does a dog’s sniff amount to a constitutional search?

The Florida Supreme court said that the dog’s ability to detect marijuana inside a home from the outside of a closed front door breaches a constitutional line. The Florida state attorney, Pam Bondi, is hoping that the Supreme Court of the United States will overturn that ruling. Legal experts agree that the Court will, in fact, hear this very important case and make a ruling. The Supreme Court could decide this month whether to take the case, the latest in a long line of disputes about whether the use of dogs to find drugs, explosives and other illegal or dangerous substances violates the Fourth Amendment protection against illegal search and seizure.

The case is being monitored by law enforcement agencies across the country that make use of dogs in the search for illegal substances. The dog in question, Franky, is now retired but is responsible for the seizure of more than 2.5 tons of marijuana – and $4.9 million dollars of drug-contaminated money. The chocolate lab spent most of his career sniffing around the nation’s airports.

The U.S. Supreme Court has heard four dog sniffing cases before – two of the previous cases involved the use of drug dogs after a traffic stop, one involved airport luggage, and the other one involved a package in transit. If they agree to hear this case, it will be the first one that deals with a dog and a private residence. 

Time and again, the U.S. Supreme court has ruled that the home is entitled to greater privacy than roads or public places. The justices ruled in 2001 that police could not use thermal imaging technology to detect marijuana growers from outside the home since the equipment could also detect lawful activity, such as intimate details about when the occupants were bathing. And it is already well established, that officers can knock on your front door, but if you refuse to open up and talk, the officers need to get a warrant to come inside.

The case is Florida v. Jadines, and in it, Joelis Jardines was arrested in 2006 for trafficking after police found 179 marijuana plants in his home when a drug dog detected smells from outside his door. His attorney challenged the search saying it was an unconstitutional intrusion into his home by law enforcement. The evidence was thrown out in a lower court, then reversed by an appeals court, but the Florida Supreme Court ultimately sided with the original judge. The recent decision has created a conflict within Florida as earlier rulings decided that a dog’s sniff does not amount to a search. 

Read: 

• “Decided by a nose? Court ponders drug dog’s sniff,” by Curt Anderson, published at AJC.com.
• JOELIS JARDINE v. FLORIDA

Earlier:

• Supreme Court to Hear Arizona Immigration Law Case 
• U.S. Supreme Court to Revisit the Confrontation Clause... Again 

Sixth Circuit Reverses District Court's Refusal to Suppress Evidence Resulting From an Unreasonable Search and Seizure

• United States v. Beauchamp

The Sixth Circuit decided U.S. v. Gevoyl Beauchamp, yesterday. Beauchamp pleaded guilty to possession with intent to distribute crack cocaine but later appealed arguing that the District Court was wrong when it refused to suppress evidence of drugs found pursuant to a search of Beauchamp. Specifically, he argued that the search of his person was unlawfully conducted.  It was without reasonable suspicion.

At 2:30 am on February 15, 2008 law enforcement was patrolling near the Jacob Price housing project in Covington, Kentucky due to an increase in drug activity. Officer Dees saw Beauchamp talking with another individual. When Beauchamp saw the officer, he hurriedly walked away without making eye contact. Officer Dees told his partner, Officer Fain to stop the "suspicious subject." Officer Fain followed Beauchamp in his patrol car, parking next to an iron fence where Beauchamp stood. He told Beauchamp to stop and walk back towards his patrol car. The officer testified that he looked "very nervous, visibly shaking." Officer Fain asked Beauchamp where he had been and where he was going. Beauchamp gave vague answers but complied with the officer's requests. Officer Fain then frisked Beauchamp for weapons. While conducting the frisk, he asked Beauchamp if he had anything the officer should be aware of. Beauchamp replied that he did not. The Officer didn't find any weapons, but then asked Beauchamp if he could conduct a further search. Beauchamp said yes. Officer Fain noticed plastic hidden in Beauchamp's underwear.

Officer Dees then arrived and recognized Beauchamp from previous encounters. Officer Fain gave Officer Dees a look indicating he found something while conducting the search. Once Officer Dees began to search his pants, Beauchamp tried to run. He was stopped and Officer Fain found the plastic which contained rocks of crack cocaine.

Beauchamp filed a motion to suppress the evidence found from the search at trial, but the district court refused. He appealed to the Sixth Circuit Court of Appeals.

The Court began its analysis by stating that there are three different types of permissible encounters between civilians and police officers: 1) consensual encounters which may be initiated without any form of suspicion; 2) the investigative detention, which if non-consensual, must be supported by a reasonable, articulable suspicion of criminal activity; and 3) the arrest, valid only if supported by probable cause. Since the Fourth Amendment applies to all searches and seizures, the Court first analyzed whether the stop of Beauchamp was a seizure, warranting Fourth Amendment protection. A seizure occurs when, after looking at all circumstances surrounding the event, a reasonable person would have believed that he was not free to leave. The Court held that a reasonable person in Beauchamp's position would not believe that he was free to leave. He had been pursued by both officers and instructed to stop and walk back towards Officer Fain. After being pursued by both officers, Beauchamp would have been reasonable in believing that the two officers were targeting him, thus believing that he was not free to leave. The Court held that this was a seizure and that the seizure occurred once Beauchamp and Officer Fain spoke at the fence.

The Court then analyzed whether the officers had reasonable and articulable suspicion to stop and search Beauchamp. In order to do so, the Court had to examine the totality of the circumstances as they existed at the time of the stop. There were five facts the district court alluded to: that Beauchamp was 1) recognized by an officer from previous encounters, 2) at 2:30 in the morning, 3) in a housing project that was the source of many drug complaints, 4) with another individual, and 5) he hurriedly walked away from the police while avoiding eye contact.

The court stated that the first fact is not applicable to this analysis because Officer Dees only recognized Beauchamp after the search had already begun. The second and third facts, the court said, should be applied carefully. The Court explained that just because Beauchamp was in a drug-prone housing project at 2:30 in the morning, was not enough to establish reasonable suspicion of criminal activity. Officer Dees did not see Beauchamp engage in anything resembling drug activity; all he saw was Beauchamp with another person before he walked away. The fourth fact - that Beauchamp was seen with another person - is not indicative of criminal activity. The fifth fact - hurriedly walking away from the officer without making eye contact - is also not enough to establish reasonable suspicion. The Sixth Circuit has regularly held that merely walking away from the police, without any other suspicious conduct, does not establish reasonable suspicion.

Without reasonable suspicion, the search of Beauchamp was unlawful. The Court further held that although Beauchamp consented to a search of his person, consent that is obtained after an illegal seizure is tainted and does not justify a search. This rule was articulated by the United States Supreme Court and has been regularly applied in the Sixth Circuit.

Because the initial seizure was unlawful, the subsequent search of Beauchamp was unlawful regardless of his consent. Given this conclusion, the Court held that the evidence should have been suppressed. The Court reversed the District Court and remanded for further proceedings.

TN Supreme Court Affirms Defendant's Four Violent Felony Convictions

• State of Tennessee v. Christopher Lee Davis

The TN Supreme Court decided today to affirm the conviction of Christopher Lee Davis for aggravated robbery, carjacking, attempt to commit especially aggravated kidnapping, and attempt to commit first degree murder. The Defendant was one of two men who pulled up to a car wash in Trousdale County planning to rob a man washing his car. The victim, Glen McDaniel, was approached by the two men wearing bandanas over their faces. Both men were African American, and both men were tall. The Defendant was wearing a red hat that had a depiction of a $100 bill embroidered on it. The two men forced Mr. McDaniel into his car, pointing a gun at him the entire time. He drove to an ATM where he was forced to empty his bank account. Mr. McDaniel was told to drive back to the car wash where he pleaded with the two men to take his car and leave him there. They refused. The Defendant first stated that Mr. McDaniel was going with them. At that point, the other man got a roll of black duct tape and began to bind Mr. McDaniel's arms behind his back. Mr. McDaniel then put up a fight. Because of the struggle, the Defendant exclaimed that he was going to kill Mr. McDaniel "right here!" Mr. McDaniel was able to get away on foot while the two men drove off in his Monte Carlo.

The next day, after obtaining a description from Mr. McDaniel of the two men and the Monte Carlo, officers found the car parked at a boat dock. They began the process of investigating the car when a white Crown Victoria slowly pulled into the parking lot where the Monte Carlo sat. According to officers the two men in the car were African American, and when they saw the officers, "they're eyes got as wide as saucers." They jerked the car in the opposite direction, back onto the road and turned around to head back the opposite way. One of the officers, Detective Tarlecky, suspected the people in the Crown Victoria to be the suspects because, in his experience, carjackers often leave cars in remote places only to come back and continue to strip the car of its parts. Detective Tarlecky felt he had enough reasonable suspicion to pull the Crown Victoria over. The driver of the car consented to a search of the car. Pursuant to that search, Detective Tarlecky found the key to the Monte Carlo. At that point, the officer arrested both men. A subsequent search of the Defendant's home also yielded various instruments of the crime including the hat, the bandanas, and the missing cd player from the Monte Carlo.

At trial, the Defendant was convicted on all counts. He was sentence to a total of 49 years in prison. These convictions were affirmed by the Court of Appeals. The Defendant argues, however, that the officer did not have reasonable suspicion to pull the car over. Thus, all the evidence recovered from the warrantless search should have been suppressed.

The Supreme Court stated that in order to determine whether the trial court was correct in concluding that the officer had reasonable suspicion to search the car, it must examine all the fact surrounding the situation. It stated that reasonable suspicion is a lesser standard than probable cause, and that it is "a particularized and objective basis for suspecting the subject of a stop of criminal activity." The Court agreed that the officer had reasonable suspicion. The facts that led to a reasonable suspicion included the general description of the suspects, the fact that the car had not been completely stripped of valuable items, the abrupt and evasive behavior of the Crown Victoria's driver, and the startled and suspicious demeanor of both occupants in the Crown Victoria. Given the totality of the circumstances, the Court explained, a rational trier of fact could have found that the officer had reasonable suspicion to search the car.

The other issue on appeal was whether the evidence presented at trial was sufficient enough to warrant a conviction for attempt to commit first degree murder. In order to satisfy the elements of attempt to commit first degree murder, the state must prove that there exists premeditation and that the Defendant had the intent to commit the crime. The Court again relied heavily on the specific facts to determine whether the intent to kill was present, including the fact that the Defendant pointed his gun at the victim the entire time, and also the fact that he stated he was going to kill the victim "right here." The Court also held that the Defendant's conduct was premeditated since he arrived at the scene with a gun and duct tape, expecting to use both items. A reasonable jury could infer from these facts that the Defendant had the intent to kill and that his actions were premeditated. This was enough to satisfy the TN Statute for attempt to commit first degree murder.

While the Court ultimately affirmed all four convictions, it remanded the case back to the trial court to determine if his sentence (a combination of periods of years of incarceration, some to be served consecutively and others to be served concurrently) was calculated correctly.

TN Court of Criminal Appeals Upholds Suppression of Evidence Based on an Invalid Search Warrant

• Tennessee v. Bob Spivey and Misty Buckner

The TN Court of Criminal Appeals recently upheld the dismissal of all charges against Bob Spivey and Misty Buckner based on the suppression of all evidence that resulted from a search warrant executed on Misty Buckner's home. Both Spivey and Buckner were indicted with possession with intent to sell or deliver more than .5 grams of a Schedule II controlled substance, a class B felony. Both defendants moved to suppress all evidence obtained from a search of Buckner's home because the search warrant was unconstitutionally inadequate. The trial court agreed with the defendants and dismissed all charges, and the State subsequently appealed.

The search warrant described the target location as "506 Christie Street, a single story, single family dwelling with tan siding... it sits on the northeast corner of Christie Street and Brigance Avenue." The warrant was based on the information of an informant who saw a controlled substance inside the Buckner home. The 506 Christie Street property actually contains two buildings: one is tan and one is blue. Misty Buckner's home is blue. The tan building, having first been described as a detached garage, was actually occupied by another renter at the time of the search. The officer who sought to enforce the warrant, Officer McDowell, conceded that he misread the satellite pictures by labeling the house "tan", but that no one ever had any interest in searching the tan building in the first place. None of the officers entered or searched the tan building. Officer McDowell claims the only thing wrong with the warrant is it mistakes the color of the house.

The defendants argue, however, that the warrant is unconstitutionally invalid because it failed to distinguish the target building from the only tan building on the property. Because of this, the warrant authorized a search on the tan building, which was occupied by a person unrelated to this investigation.

The Court of Appeals started first by examining the rule used in the State of Tennessee regarding whether a warrant is unconstitutionally invalid. According to the Court, both federal and state laws require a warrant to "particularly" describe the place to be searched. The Supreme Court of TN has stated that the use of the word "particularly" shows that the legislature "intended the search warrant to be clear of ambiguity as to the place to be searched." This test ensures that the subject of the search does not endure an unreasonable search, and prevents the officer from searching the premises of a person unrelated to the matter by mistake.

The Court elaborated on a particular test that must be met to determine if the warrant is particular enough:

The requirement of a particular description of the place to be searched is met by a description which particularly points to a definitely ascertainable place so as to exclude all others, and enables the officer to locate the place to be searched with reasonable certainty without leaving it to his discretion.

Based on this test, the warrant is invalid because while it included an adequate description of the subject property, that same description authorized law enforcement to search the home of another. This is not particular enough under state and federal statutes.

The State further argued, using previous case law, that the defect in the warrant is "cured" by Officer McDowell's personal knowledge that the defendants lived in the blue building rather than the tan building. Previous cases have allowed this defense only when the officer personally knew or could prove that he was highly familiar with the area to be searched. While Officer McDowell may have known a little information about the property, the Court held that the record does not prove he had any personal knowledge of the property or the defendants.

After reviewing all the evidence and binding law, the Court affirmed the trial court's dismissal.

The Use of GPS Tracking Devices Without a Warrant is an Upcoming Issue Before the U.S. Supreme Court

Looking ahead at the next U.S. Supreme Court season, one important issue the Court will have to deliberate is whether law enforcement officers need a warrant for the use of a GPS tracking device on a suspect. This is the case of Antoine Jones, a suspected drug trafficker in Washington, D.C. In order to try to tie Jones to a drug house in Maryland, FBI Agents and local law enforcement installed a GPS tracking device on the car registered to Jones' wife. Officers obtained a warrant that permitted a 10-day period of surveillance, but they installed the tracker after the 10 days had expired. Nevertheless, over the next month, law enforcement kept track of every movement of the Jeep, including times when Jones' wife and kids were traveling. Once they tied Jones to the drug house in Maryland, law enforcement was able to execute search warrants for the house and other property. They found large amounts of powder and crack cocaine, and Jones was convicted of conspiring to sell drugs and sentenced to life in prison.

Jones later appealed arguing that the prolonged use of the GPS tracking device without a warrant constituted an illegal search. The D.C. Circuit Court of Appeals ruled in Jones' favor, stating that he had a reasonable expectation of privacy and thus was entitled to Fourth Amendment protection. The Court's reasoning was that Jones had a reasonable expectation of privacy in his movements as a whole over that month, and that his actions were not "exposed" to the public (which would negate the need for a warrant). The Court stated this,

"First, unlike one's movements during a single journey, the whole of one's movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one's movements is not constructively even though each movement is exposed, because that whole reveals more -- sometimes a great deal more -- than does the sum of its parts."

The government argues that based on U.S. v. Knotts, the installation of the GPS tracker did not require a warrant. Knotts held that officers did not need a warrant to install a beeper tracking device to a barrel of chloroform being transported in order to manufacture illegal drugs. The government argues that the use of a beeper and the use of a more technologically advanced GPS tracking device is one in the same.

Jones' attorney, Stephen Leckar argues, however, that Knotts is different from this case because law enforcement in Knotts had to remain close to the beeper in order for it to work. Therefore, they were already tracking the chloroform barrel themselves; the beeper just "augmented their senses." The GPS tracking device, he says, completely supplants the officers' senses, making the two cases different.

What both sides agree on is that this case may prove to be monumental to the status of the Fourth Amendment. Critics worry that a favorable ruling for Jones would open up many avenues of warrantless surveillance, stomping on the privacy rights of citizens. Many, including John Wesley Hall (a criminal defense attorney in Arkansas), do not believe the government is merely chipping away at the Fourth Amendment; rather, it is being "blasted away."

Continue to check back for updates on this and other upcoming issues in the Supreme Court.

Legislature Loosens Warrant Requirements in Tennessee

The Exclusionary Rule Reform Act: Tennessee

The TN Legislature recently passed The Exclusionary Rule Reform Act, easing the state's strict search warrant requirements. Specifically, the law provides a good faith exception to the suppression of evidence obtained as a result of mistakes or errors in search warrants. If an officer, in good faith, makes a typographical error in a search warrant, any evidence obtained pursuant to the warrant will be admitted at trial.

The law was prompted by a case out of Nashville involving a typographical error on a search warrant. Officers seized large amounts of drugs from the defendant's home, bu the court was forced to suppress the evidence because the typographical error rendered the warrant invalid. According to the Exclusionary Rule of the Sixth Amendment, any evidence seized as a result of an invalid warrant cannot be used against the defendant at trial.

 The Legislature defines good faith as,

"An unintentional error made by a law enforcement officer, court official or issuing magistrate in the form, preparation, issuance, service, execution,filing and handling of copies, or return and inventory of a search warrant."

The law also extends the good faith exception to situations where an officer has sufficient information describing items to be included in a warrant, yet the magistrate neglects to include them. Lastly, the law protects any reliance on a law that is subsequently ruled unconstitutional.

We previously discussed this legislation when it passed in the house here.

This new exception to the exclusionary rule will take effect on July 1, 2011.

Supreme Court's Kentucky v. King Resonates Around US

KENTUCKY v. KING is causing a ripple through the country as people figure out just what the decision means for personal privacy in homes and what is left of the Fourth Amendment. See, Forbes Blog,  New York Times, and the Los Angeles Times.

According to Kentucky's Supreme Court, the exigent-circumstances exception didn't apply because the police should have foreseen that their conduct would lead the occupants of the apartment to destroy evidence. Overturning that finding, Justice Samuel A. Alito Jr. wrote for the court that as long as the police officers' behavior was lawful, the fact that it produced an exigent circumstance didn't violate the Constitution. That would be the case, Alito suggested, even if a police officer acted in bad faith in an attempt to evade the warrant requirement.