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.

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.

Law Enforcement Agencies Push Cell Phone Providers to Store Text Messages

The major cell phone providers, including AT&T, Verizon and Sprint, may be required to keep information about their customers’ text messages for at least two years according to a proposal that various law enforcement agencies submitted to Congress.

A group of different police organizations asked legislators to require wireless companies to retain information, warning that a lack of federal requirements leaves a major hole in the ability of law enforcement agencies to launch proper investigations. The move was designed to include text message retention in an upcoming overhaul of the 1986 Electronic Communications Privacy Act, a privacy law meant to reflect the new realities of the modern technological era.

As text message usage has exploded recently so have the instances of their use in criminal investigations. They have been used as evidence in robberies, drug dealing and financial fraud cases. One great example occurred in 2009 when SkyTel turned over a whopping 626,638 text messages in Michigan.

Currently, the approaches used by the various companies are all over the place. Verizon and some others retain their text messages only for a brief period of time. Others, including T-Mobile do not store the messages at all. A Justice Department document obtained by the ACLU found that in 2010, AT&T, T-Mobile, and Sprint did not store the contents of text messages. Verizon did for up to five days, a change from its earlier no-logs-at-all position, and Virgin Mobile kept them for 90 days. The carriers generally kept data like the phone numbers associated with the text for 90 days to 18 months; AT&T was an outlier, keeping it for as long as seven years, according to the chart.

The groups making the request include the Major Cities Chiefs Police Association, the National District Attorneys’ Association and the National Sheriffs’ Association. It has not yet been made clear by the groups whether they want the telecommunications companies to store the content of the text messages or only to hold on to data including the numbers used to send and receive the messages. No matter which approach is employed it will be a massive responsibility for the cell phone providers with some 2 trillion text messages sent in the U.S. last year, coming out to nearly 6 billion per day.

The problem with the request for retaining the text messages is that there is ultimately only one reason for companies to do such a thing: to keep databases of information on their customers so police officers can fish for evidence at their leisure.

Source: “Cops to Congress: We need logs of Americans' text messages,” by Declan McCullagh, published at CNET.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.
​
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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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.

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U.S. Supreme Court to Rule on DUI Forced Blood Draws
Sixth Circuit says cell phone GPS data can be used to track criminals

U.S. Supreme Court to Rule on DUI Forced Blood Draws

By Jay Perry           

            The U.S. Supreme Court has just granted certiorari to hear an appeal to decide whether the police can force a suspected drunken driver to submit to a blood test without a search warrant.  The case is an appeal from a decision by the Missouri Supreme Court, Missouri v.McNeely, which held that in a typical DUI case the police must obtain a search warrant before forcing a suspect to provide a blood sample.  The State argued that the delay in obtaining a warrant would allow for the alcohol in a suspect’s blood to naturally dissipate and thus the “evidence” would be destroyed.  The question before the Supreme Court then is whether the “exigent circumstances” exception to the 4^th Amendment warrant requirement allows for the police to force a blood draw from a DUI suspect.    

            

            The decision by the Supreme Court will be very important because as it stands there is considerable variety in state laws regarding forced blood draws.  Here in Tennessee, there are currently a few situations in which the police can obtain a blood sample without either the suspect’s consent or a search warrant:

            1) the suspect is involved in an accident resulting in the injury or death of another;

2) the suspect has a previously been convicted of DUI, Vehicular Homicide by Intoxication, or Aggravated Vehicular Assault;

3) the suspect has a child passenger in the car under the age of 16.

In each of the three situations above, if police have probable cause to believe that a suspect has committed a DUI, they can force that person to give a blood sample without consent.

Even if one of the above situations isn’t present, a DUI suspect will still have to consider whether to provide a blood sample.  In Tennessee, all persons driving are presumed to have given consent to a test to determine the alcohol content of their blood.  Failure to provide either a blood or breath sample is a violation of Tennessee’s Implied Consent Law.  That provision (TCA 55-10-406), holds that refusal to submit to a blood alcohol sample is a violation of state law.  Importantly, a violation of the Implied Consent Law is not a criminal offense but does carry a loss of driving privileges for one year.    

The Supreme Court’s decision will answer the question of whether a forced blood draw violates the 4^th Amendment’s prohibition against “unreasonable searches”.  The constitutionality of the above Tennessee provisions will likely be affected by how they rule, and so the case merits attention.  Oral arguments will be scheduled sometime in early 2013.  

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

Sixth Circuit says cell phone GPS data can be used to track criminals

by Lee Davis

• United States v. Melvin Skinner

The Sixth Circuit recently ruled that using GPS data to track the owner of a pay-as-you-go cell phone is constitutional and much the same as using dogs to hunt for a fugitive.

In the case of U.S. v. Skinner, the defendant used a pre-paid cell phone obtained by providing false identity information (also known as a “burner“) to communicate with co-conspirators as he brought a motor home filled with marijuana from Arizona from Tennessee.

Agents discovered the cell phone number that the defendant was using and obtained a court order requiring the cell phone company to disclose location information of the phone to the agents. The government used the location information to track the car for three days, eventually catching up to the car at a rest stop in Texas. Local police then brought out a dog to sniff for marijuana which resulted in the dog finding 1,100 pounds of pot.

Skinner was ultimately arrested and charged with various drug-related crimes, including possession with the intent to distribute and conspiracy to commit money laundering. He was convicted on all counts and sentenced to more than 19 years in prison. Skinner appealed, claiming law enforcement’s use of GPS data from his cell phone was a warrantless search in violation of his Fourth Amendment rights.

The Sixth Circuit disagreed, upholding the conviction of Skinner, saying, “The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools.” Judge John Rogers wrote, “Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent.”

Rogers noted that criminals often use pay-as-you-go phones, presumably because they are more difficult to trace. "When criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them,” Rogers wrote. The majority opinion concluded by saying that the defendant did not have a reasonable expectation of privacy regarding the location broadcast by his cell phone.  

To read the full opinion, click here.

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Lying to Probation Officer is a Federal Crime

Sixth Circuit Court of Appeals: Is Evading Arrest a Violent Felony?

Lying to Probation Officer is a Federal Crime

By Lee Davis
United States v. Vreeland

Everyone knows that a person has the right to remain silent when faced with questioning by police and most people understand that you have the right to have an attorney present during questioning. Perhaps fewer people know that it is a crime to lie to federal agents.

In Vreeland, the court was faced with these issues in the context of a man who lied to his probation officer during his monthly probation meeting. Vreeland denied knowing a man involved in a crime. He too was a suspect in this crime. His probation officer pressed on these facts. Vreeland's statements are what formed the basis of both a probation violation and the substantive new crime of lying to the PO--a federal agent. This is a novel issue in the Sixth Circuit.

In Vreeland the Court was face with two questions: whether his false statements to a probation officer during the course of a monthly supervisory meeting are protected by the Fifth Amendment privilege against self-incrimination, and whether such statements fall within the “judicial function exception” to prosecution set forth in 18 U.S.C. § 1001(b). The answer to both questions is no.

The Court reasoned that:
We have held that “the Fifth Amendment privilege against self-incrimination is not self-executing in the context of a meeting with a probation officer.” United States v. Miller, 910 F.2d 1321, 1326 (6th Cir. 1990) (holding that the defendant’s voluntary revelation to his probation officer during a presentence meeting that he regularly purchased cocaine to support his habit, resulting in the probation officer’s recalculation of the defendant’s base offense level and sentencing range for his drug offense, was not a compelled incrimination); see also United States v. Humphrey, 34 F.3d 551, 555 (7th Cir. 1994) (“[U]nless a state overtly threatens to revoke probation in retaliation for the legitimate exercise of the self-incrimination privilege, there is no reasonable basis for a probationer to believe that his Fifth Amendment rights are in jeopardy.”) (citing Murphy, 465 U.S. at 438).

As to the notion that these are protected communications that are not subject to prosecution, the Court rejected that idea.
A meeting between a probation officer and a defendant under supervision is not a “judicial proceeding” protected by § 1001(b) because it serves an administrative, not an adjudicative, function.

Vreeland received a two year sentence for lying to his PO and an additional two years for his probation violation.

The full opinion can be found here.

New Laws Broaden Scope of Sex Offender Registry

 By Stevie Phillips

The Tennessee General Assembly passed four new laws that broaden the scope of the sex offender registry.  A brief explanation of each new law follows: 

House Bill 2853

The main difference between registering as a standard sex offender and registering as a violent sex offender is that a standard sex offender may petition to be removed from the registry ten (10) years after completion of probation, parole, or incarceration.  The violent sex offender registry, on the other hand, is for life. 

After passage of House Bill 2853, a person convicted of first-offense promotion of prostitution must register as a standard sex offender.  It’s only upon conviction of a subsequent offense that he or she must register as a violent sex offender.

House Bill 2939

After the passage of House Bill 2939, a person convicted of trafficking a person for a commercial sex act must register as a sex offender. 

This requirement is only a small part of this new law, however.  The main purpose of House Bill 2939 is to revise the definition of “trafficking a person for a commercial sex act.”  Specifically, a sex act can now be commercial if secured by causing or threatening physical harm, restraint, abuse of law or legal process, destruction of a passport or immigration/government document, blackmail, or facilitating access to a controlled substance.  

House Bill 3283

Previously, a judge could only require a person convicted of statutory rape to register as a sex offender if that person had a prior conviction for mitigated statutory rape, statutory rape, or aggravated statutory rape. 

After the passage of House Bill 3283, a judge may require a person convicted of statutory rape for the first time to register as a sex offender.  In determining whether to impose this requirement, the trial court must consider the totality of the facts and circumstances surrounding the offense, including the offense for which the person was actually charged and whether the conviction is the result of a plea agreement.

House Bill 3398

House Bill 3398 applies to registered sex offenders whose victims were minors and who are later convicted of violating the residential and work restrictions in the TN Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004. 

Under this new law, which amends section 39-13-530(a), any conveyance or personal property (not real property) is subject to judicial forfeiture if used during the commission of such a violation.  The proceeds of the judicial forfeiture will be allotted to the child abuse fund.  Under current law, 50% of that money funds child advocacy centers, 25% funds court appointed special advocates, and 25% funds child abuse prevention.

State v. Anderson – The Tennessee Court of Criminal Appeals Reverses a Finding of Exigent Circumstances

By Stevie Phillips

Deputies were dispatched to Stoney Anderson’s neighborhood at about 1 a.m. in response to an unknown disturbance involving shots fired.  They encountered a car leaving Anderson’s home.  The occupants told them that they were coming from a small get together and had not heard any shots.  Nonetheless, the deputies proceeded to Anderson’s home and walked around to the back of the house.

As the deputies were walking onto the back deck, Anderson exited the house holding a duffle bag.  When asked, he told them that he had not heard any shots.  At this point, however, the deputies could smell marijuana and saw several people sitting at the kitchen table.  They then entered Anderson’s home and eventually searched the duffle bag where they found marijuana and paraphernalia. 

Before trial, Anderson moved to suppress the evidence found in the bag.  The trial court denied his motion on the basis that exigent circumstances existed to justify the warrantless search, namely that the deputies were responding to an immediate risk of serious harm to themselves and others based on their concern that the bag contained a weapon. 

On appeal, Anderson argued that, even if there were exigent circumstances, those circumstances could not support the search of his bag because the deputies created the exigency when they unconstitutionally intruded into the curtilage of his home.  The Court of Criminal Appeals agreed.

In the Court’s analysis, Anderson’s back deck was “an area to which the activity of home life extends” and therefore plainly within the curtilage of his home.  The Court also determined that the deputies’ intrusion onto the deck without a warrant was unreasonable because they had no information connecting Anderson’s house to the disturbance.  Because any risk to the deputies’ safety resulted from their violation of Anderson’s constitutional rights, even a reasonable fear for their safety could not support the search of Anderson’s bag.

In sum, the exigent circumstances exception to the warrant requirement does not apply if the police themselves create the exigency.  Kentucky v. King, 131 S. Ct. 1849, 1857-58 (2011).  Case dismissed. 

The full opinion can be found here. 

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

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.