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.

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Trial Begins in NYC as Plaintiffs Attack Police Stop-and-Frisk Practices

 By Jay Perry

            The trial of a class action suit challenging the “stop and frisk” procedures of the New York Police Department began today in a New York District Court. The case, Floyd v. City of New York, was discussed here earlier when the Court ruled that the case could proceed as a class action suit, noting that the alleged stops could demonstrate a “deeply troubling apathy toward New Yorkers’ most fundamental constitutional rights.”

            

             The plaintiffs are possibly going to call up to 100 witnesses, some to provide first-hand accounts of being frisked and questioned without reasonable suspicion. The lead plaintiff, a medical student, testified today about two stops, both of which left him “frustrated, humiliated.” After the second one, which took place outside his residence he stated that, “I felt that I was being told I shouldn’t leave my home.” The plaintiffs claim that the stops are based on race and not bona fide suspicion of actual crime taking place.  Attorneys for the city today disputed that claim, noting that most crime victims are racial minorities and that “crime drives where police officers go, not race.” The city also claims that the decrease in crime has been a direct result of this more active police presence on the streets. It seems undisputed that more stops and frisks have been taking place. The New York Civil Liberties Union states that such stops rose from 97,296 in 2002 to 533,042 in 2012. From the stops last year, approximately 89 percent resulted in no arrest or ticket. 

         This trial bears attention because it highlights the increased use in many cities of direct police interventions in noncriminal behavior. The question remains whether this type of police work is truly beneficial to public safety and moreover whether society is willing to pay the cost of a decrease in liberty.

Sixth Circuit Excludes Evidence After Officers Search Wrong House

The Sixth Circuit Court of Appeals recently heard an interesting case out of Tennessee involving evidence that was uncovered during the search of a house that occurred after executing an arrest warrant at the wrong address.

The case, U.S. v. Shaw, began when Memphis police officers were dispatched to to arrest Phyllis Brown at her home. The problem was that the woman’s address, 3171 Hendricks Avenue, did not appear to exist. When the officers arrived on the street they discovered that there were two houses across from one another that both listed their address as 3170 Hendricks Avenue. Instead of clarifying the problem through investigation, the police chose to simply approach one of the two houses--the one that appeared to be occupied.

The police knocked on the door and were greeted by a woman. Rather than asking about Phyllis Brown or checking about the confused addresses, they only told the woman that they had a warrant for the address. It turns out the house they had selected was actually 3170.

Unfortunately for the woman at home, she never bothered to question the officers or demand to see the warrant. Instead, she let them in the house where they discovered a substantial amount of cocaine and no Phyllis Brown.

Rather than admit the misidentification with the adress, the government claimed that it had several really good reasons why the officers’ entry into the house was reasonable. They claimed that because it was occupied, a woman answered the door, the officers saw scales inside the house and finally, and because the odds were 50/50 that they had the right house, the execution of the warrant should be deemed reasonable. 

The Sixth Circuit disagreed with the government’s rationale, deciding that none of the justifications were sufficient. Instead, the Court said that the police lacked any reasonable basis for entering the house and that the evidence gathered would be suppressed.

The Sixth Circuit took special care to address the false statements made by the officers to gain entrance to the house. Not only did the officers lie once, saying that they had a warrant to search “this address,” but they continued their lie once inside, saying that they were there looking for the house located at 3170 Hendricks. The officers said their goal in misleading the woman was to then force her to admit that she was actually in 3171 Hendricks. Regardless, the Court said the officers behaved inappropriately and that all evidence derived from searches based on false pretenses will be excluded at trial. 

To read the full opinion, click here.

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Supreme Court Decides Case Testing Limits Of Detention During Searches

A recent ruling released by the U.S. Supreme Court last week, Bailey v. United States, dealt with the authority of police officers to detain those who leave a residence that officers have come to search.

In an earlier case, Michigan v. Summers, decided in the early 1980s, the Supreme Court held that when police are executing a search warrant the police are entitled to temporarily hold people they discover on the premises even if they do not have a reason to suspect them of engaging in any wrongdoing.

This issue was tested in 2005 when police in Wyandanch, NY arrested a man, Chunon Bailey, even though he had already left the premises before any police arrived to search the building. Furthermore, Mr. Bailey was not stopped on the property in question, but was instead found a mile away from the house. Police officers who stopped Bailey found evidence that linked him to drugs and a weapon found in the house they were sent to search.

On Tuesday, the Court voted 6-3 to refuse to extend the principle laid out in 1981 to the facts of the present case. The justices agreed that the distance, in both time and geography, were too great to allow police the same authority found in the previously decided case. Justice Kennedy wrote that the practical necessities for why an officer might need to detain someone on the premises during a search disappear when that person is a great distance from the scene of the search.

Kennedy elaborated on the problem with allowing such a detention away from the premises. He said that the extraordinary intrusion on personal liberty would be even greater in such a circumstance given that the person would be stopped in public and then be forced to go back to the premises of the search, giving an outward appearance that the subject had been arrested.

The case resulted in a very odd voting alliance among the justices. Besides Kennedy, Roberts, and Scalia joined with Justices Ginsburg, Sotomayor and Kagan to form the majority. Thomas and Alito, two staunch conservatives, joined Justice Breyer in dissenting.

To read the full opinion, click here.

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Supreme Court Addresses Whether Drug Dog Sniffs Are Up To Snuff

The U.S. Supreme Court ruled on Tuesday in Florida v. Harris that prosecutors are not required to present evidence detailing the stellar records of police dogs before their results can be used in court. The ruling, written by Justice Elena Kagan, said that courts should subject sniff tests by drug dogs to the same scrutiny given to other issues that police use to demonstrate probable cause prior to a search, and no more.

Kagan, writing for a unanimous Court, said that the question should be whether all the facts surrounding the dog’s sniff alert would lead a reasonably prudent person to believe that a search would turn up evidence of a crime.

The ruling by the Supreme Court overturns an earlier decision by the Florida Supreme Court about a drug dog named Aldo. Aldo had been trained by police in Liberty County, FL to sniff for marijuana, cocaine, heroin, ecstasy and methamphetamine. During a routine traffic stop in 2006, Aldo gave a signal to his handler that he detected something in the truck.

A search was performed by officers and 200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, antifreeze and iodine were discovered. In combination these ingredients make methamphetamine, but individually they are not things Aldo was trained to detect. The man was arrested and charged and later appealed the issue asking that a judge throw out the evidence obtained during the search given that the defense claimed Aldo’s search was not a sufficient basis for probable cause to search the vehicle.

The Florida Supreme Court agreed with the defendant, saying that the police lacked probable cause to search the truck. The Florida Court claimed that prosecutors should have to present evidence of training, certification records, field performance records and other objective evidence concerning a drug dog’s abilities and experience.

The Supreme Court disagreed, voting unanimously to reverse the Florida high court. The Court said that such a lengthy laundry list of documents are not needed to support the reliability of a drug sniffing dog.

The Court, in an odd coincidence, is preparing to release a second opinion concerning drug-sniffing dogs. The second case involves officers who brought a police dog up to a private residence. The issue for the justices to decide is whether judges may issue search warrants for private residences when a drug-sniffing dog outside the home reacts as if it smells drugs inside.

To read the full opinion, click here.

Source: “Supreme Court: Police Dog Ability Doesn't Need To Be Extensively Tested, 'Sniff Is Up To Snuff,” by, published at HuffingtonPost.com.

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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.

Tennessee Vehicle Forfeiture Procedure Questioned by Hamilton County Sheriff

Hamilton County sheriff Jim Hammond has asked the Tennessee Bureau of Investigation to decide whether he violated state procedure when he returned a car to its owner after it was seized during a drug-related arrest of the owner’s son. The investigation is meant to clarify the state’s vehicle forfeiture procedures so that law enforcement agencies are clear in the future of exactly what to do in such circumstances.

The owner of the car, Marcia Tenenbaum, told reporters that she called Hamilton County Sheriff in April after her son was arrested for possession of marijuana in her Lincoln sedan. Tenenbaum knew Hammond from her past. Both studied criminal justice at the University of Tennessee at Chattanooga. Tenenbaum is merely an acquaintance of the Sheriff's and he says the the decision was not meant as a personal favor.

Tenenbaum said that she called the sheriff to say that she was disabled and needed the car to get around. Hammond apparently agreed and returned the car. However, some people question whether the return was proper. One official says that sheriffs are not permitted to release a car without a direct order from the state Department of Safety. No such order was ever issued by the agency and the car should have remained state property under that interpretation. Others in law enforcement and many attorneys say that the sheriff is well within his authority to return the vehicle. He has the discretion they say to return vehicles that his officers seized under his authority.
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Hammond says he was concerned about the decision and wanted it to be reviewed to settle the matter. To him the issue is purely procedural and not one about improper influence. Some paperwork may have been improperly filed which could have led to the release of the vehicle. The sheriff’s office launched an internal investigation into the matter in an attempt to sort out the issue.

Police officers across the state often seize automobiles when they find drivers in the possession of drugs. Tennessee law allows law enforcement agencies to confiscate an automobile that is used in to transport illegal drugs, regardless of whether the person transporting the drugs actually owns the car. The person found in possession of drugs is issued a notice of seizure and is informed that they must submit a petition to the Tennessee Department of Safety if they wish to contest the seizure.

There is an exception to a seizure under Tennessee law for those that simply possess such drugs for their own personal use.

Whether a Sheriff can return a vehicle for good cause once it has been seized under his authority without approval of the Department of Safety is the underlying issue.



Read: “Sheriff asks TBI to probe seized car procedure,” by The Associated Press, published at SFGate.com.
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When GPS Tracking Violates Privacy Rights

For the right to personal privacy to survive in America in this digital age, courts must be meticulous in applying longstanding privacy protections to new technology. This did not happen in an unfortunate ruling last month by a three-judge panel of the United States Court of Appeals for the Sixth Circuit.

The case concerned a drug conviction based on information about the defendant’s location that the government acquired from a cellphone he carried on a three-day road trip in a motor home. The data, apparently obtained with a phone company’s help, led to a warrantless search of the motor home and the seizure of incriminating evidence.

The majority opinion held that there was no constitutional violation of the defendant’s rights because he “did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cellphone.”

The panel drew a distinction between its ruling and a ruling by the Supreme Court last January in United States v. Jones, which held that the placement of a hidden device on a suspect’s car without a valid warrant violated the Fourth Amendment. The three-judge panel said that its case, in contrast, did not involve physical trespass on the suspect’s private property. The judges also asserted that the tracking in the case before them was not sufficiently “comprehensive” to be “unreasonable for Fourth Amendment purposes” and trigger the need for a warrant — even though the police tracked the defendant’s every move for three days, hardly a negligible time period.

The Jones case suggests that the Supreme Court’s future direction may be more protective of privacy in cases involving new and potentially invasive technologies. In two concurring opinions in that case, a majority of justices agreed that “longer-term” GPS monitoring impinged on expectations of privacy.

As Justice Sonia Sotomayor stressed in her concurrence, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” If anything, tracking someone using cellphone GPS capabilities is even more invasive than following someone with a GPS device attached to a car since it allows for 24/7 coverage. Most people carry their phones wherever they go, including into their homes.

The circuit court panel majority concluded that because the defendant’s phone emitted information that could be picked up by law enforcement agents, he had no reasonable expectation of privacy and thus no warrant was needed to conduct the surveillance. This was at odds with yet another Supreme Court ruling, in 2001, involving a thermal-imaging device aimed at a private home from a public street.

Carrying a cellphone should not obliterate privacy rights or the Fourth Amendment’s warrant requirement. The full Sixth Circuit should grant a pending request for a rehearing and reverse the panel’s damaging ruling.

Editorial in Sunday, September 23, 2012 New York Times

Tennessee Supreme Court Rules Police Must Corroborate Tips Before Frisking

by Lee Davis

• State of Tennessee v. Guy Alvin Williamson

The Tennessee Supreme Court recently ruled that police officers across the state must corroborate anonymous tips before they are permitted to stop and frisk someone. The rule came from a case involving about a man, Guy Alvin Williamson, who was convicted of being a felon in possession of a firearm and of firearm possession while intoxicated. The ruling by the Tennessee Supreme Court overturned an earlier ruling by the Tennessee Court of Criminal Appeals. 

The Court held that police had no grounds to stop and frisk Williamson at a hotel he was staying in because there was no indication, beyond one anonymous tip, that a crime had been committed. As a result, the high court said evidence against Williamson should have been suppressed at trial. The tip came in May of 2009 that there was an armed party at a local motel. Williamson was found in possession of a firearm and arrested as a result. Police based their search only on one report before drawing their guns on Williamson and two others.

The opinion should help protect others wrongfully stopped and frisked by police officers against illegal searches and seizures. From now on police in the state will have to have additional grounds to believe that a crime has been committed beyond a simple anonymous tip. In this case especially the fact that someone is carrying is gun is not sufficient to justify a search and seizure because many individuals are legally permitted to carry a firearm. 

It’s important to note that the opinion did not say that police can’t act on anonymous tips, only that law enforcement must have some reason to believe that a crime has been committed before stopping and frisking potentially innocent individuals. 

To read the full opinion, click here.

Earlier:

Tennessee Court of Criminal Appeals Affirms Revocation of Probation for Weapons Possession

Tennessee’s New Expungement Statute Goes into Effect July 1

Tennessee Court of Criminal Appeals says stops based on dirty license plates constitutional

by Lee Davis

• State of Tennessee v. Eric A. Martin

Eric Martin was stopped by a police officer for violation of a the law requiring that a car license plate be maintained free from foreign materials and in a clearly legible condition. Martin’s plate was covered in oil or dirt and was illegible. The officer soon discovered that Martin was driving on a revoked license and arrested him.

Martin struck a plea deal with prosecutors and pled guilty to driving on a revoked license, fifth offense. He was sentenced to 11 months and 29 days but the trial court suspended all of the sentence but for the 29 days and placed Martin on probation. Martin has now appealed the section of Tennessee Code dealing with the condition of license plates. The Court of Criminal Appeals held that no question of law was raised by the appeal and it was dismissed.

Martin claims that T.C.A. Section 55-4-110(b) is unconstitutionally vague and overbroad in that fails to establish sufficient guidelines for determining that a tag is free from foreign materials and clearly legible. Martin claims the law as written permits police officers with far too much discretion. The statute specifically states:

Every registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued so to prevent the plate from swinging and at a height of not less than twelve inches (12) from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible and shall be maintained free from foreign materials and in a condition to be clearly legible. No tinted materials may be placed over a license plate even if the information upon the license plate is not concealed.

The Court held that the officer in this case executed a traffic stop due to an equipment violation, something that the Tennessee Supreme Court has found to be a valid reason to stop a vehicle. As a result, the traffic stop was constitutional. After a brief investigation the officer determined that Martin was driving on a revoked license. The question that Martin now wants reviewed does not concern the revoked license, but the license plate. The Court found that the license plate issue was not dispositive to the case at trial. 

Even if the issue were dispositive the Court stated that both Tennessee state courts and the U.S. Court of Appeals for the Sixth Circuit have found that traffic stops made pursuant to T.C.A. Section 55-4-110(b) are valid and constitutional.  The bottom line is that police can pull over a vehicle if the license is illegible--that is a valid reason to base a police stop.

To read the full opinion, click here.

Earlier:

Tennessee Court of Criminal Appeals Says that Post-Conviction Petitions Must Contain Specific Facts, Defendants Can’t Simply Check Boxes

Tennessee Court of Criminal Appeals Affirms Revocation of Probation for Weapons Possession

Lee Davis practices criminal law in Chattanooga and across Tennessee.

Federal Judge Grants Class-Action Certification in NYC 4th Amendment Violation Suit

New York City

by Jay A. Perry

A Federal Judge in New York recently granted class-action status to potentially thousands of plaintiffs in a suit involving alleged 4^th Amendment violations by the New York City Police Department.  The suit claims that the New York City Police engaged in a policy of committing rampant unlawful “Terry stops” or short stops and frisks of people on the streets of the city. 

The Fourth Amendment prohibits “unreasonable searches and seizures” and in Terry v. Ohio, the Supreme Court ruled that the prohibition is not violated when the police stop a suspect on the street and frisk them without probable cause to arrest.  However, the Court said that before making such a stop the police need “reasonable suspicion” that the suspect is committing (or is about to commit) a crime.  Furthermore, the police need reasonable suspicion that the suspect is armed or dangerous to take the further step of frisking for weapons.  Reasonable suspicion is more than just a “hunch” and needs to be based on “specific and articulable facts”.

The Plaintiffs claim that the police department of New York City disproportionately stop and frisk minority people and have not reformed their policies as required by a settlement in 2003 of a similar suit.  The Court in granting the class certification noted that between 2004 and 2009 there were over 2.8 million Terry stops.  Over half of those stops were of Black people and thirty percent were of Latinos.  Only ten percent of the stops were of Whites.  The Court also recognized the important societal interest in the case and noted that the plaintiffs are not seeking monetary damages but only a declarative judgment and injunction. 

It will be interesting to follow this case and see how many plaintiffs come forward to take part.  In over 2.8 million stops there must be thousands (if not hundreds of thousands) of people involved.  If the Plaintiffs allegations are true then a good number of those people had their constitutional rights violated.  While a “stop and frisk” does not take a long time it surely has consequence to the person detained and frisked without good cause.  As the Supreme Court in Terry noted, being stop and frisked “must surely be an annoying, frightening, and perhaps humiliating experience.”

For more on the alleged abuses by the New York City Police Department, see This American Life #414 “Right to Remain Silent”.  The episode contains the story of a NYC police officer who secretly recorded himself and fellow officers for 17 months capturing evidence of the type of abuses alleged by the Plaintiffs in the suit.           

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.

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