4th Amendment

Here are a couple of recent cases out of the Fifth Circuit regarding the 4th Amendment:

United States v. Rico-Soto, 2012 U.S. App. LEXIS 16002 (August 2, 2012)

A Border Patrol Agent conducted a traffic stop on appellant's van and eventually arrested him for harboring illegal aliens.  The court held the agent did not violate the Fourth Amendment's prohibition against unreasonable search and seizure because the stop was supported by reasonable suspicion.

First, the van was traveling on Interstate 10, a major corridor for alien smuggling, and the agent had pulled over vans transporting illegal aliens on this route multiple times.  Second, various characteristics of the van and its passengers added to the agent's suspicions.  The van was a fifteen-passenger model of the kind often used in transporting illegal aliens.  There was a company name stenciled on the side of the van, but it was registered to a woman and not the transportation company.  The agent knew that vans used to transport illegal aliens were often registered to individual women rather than to a transportation company.  Third, the agent noticed that the passengers were seated in separate rows rather than clustered together as people normally would sit.  Finally, the agent had specific information from his agency that this particular transportation company had become active in transporting illegal aliens.  The agent's 19 1⁄2 years of experience allowed him to recognize suspicious circumstances that might not be recognized by others and by themselves might not arouse suspicion, but when examined together, established reasonable suspicion to support the traffic stop.

United States v. Mubdi, 2012 U.S. App. LEXIS 16708, August 10, 2012 

Two police officers stopped appellant after they both visually estimated that he was speeding and that he was following one of the officer's patrol cars too closely.  One of the officers issued appellant a warning ticket and then had him step out of his car while the other officer walked his drug-detection dog around it.  After the dog alerted to the presence of drugs, the officers searched appellant's car and found cocaine and two loaded firearms.

The court agreed with the district court, which held that the officers had probable cause to stop appellant for speeding because they were trained in estimating vehicle speed and that their testimony regarding appellant's rate of speed was credible.  The court further held that even if the officers were mistaken in believing that appellant was violating the law by following the officer's patrol vehicle too closely, it was a reasonable mistake, which did not affect the officers' probable cause to stop appellant for speeding.

The court held that after the officers issued appellant the warning ticket, they had reasonable suspicion to detain him for further investigation.  First, appellant took an excessive amount of time to pull over and he was extremely nervous when talking to the officers.  Second, during the stop, he kept his foot on the car's brake pedal instead of shifting the transmission into park.  Third, he could not provide details as to his destination or the family member he was going to visit.  Fourth, he lied to the officer about who had rented the car; he was not an authorized driver of the car and the rental car was being driven out-of-state, which was prohibited by the rental contract.  All of these circumstances supported the officers' decision to extend the duration of the initial 3 traffic stop to conduct the open-air canine sniff, which eventually alerted the officers to the presence of contraband in appellant's car.

Below are some case summaries from recent Fifth Circuit Cases regarding search and seizure and confessions.

4th Amendment Search and Seizure

United States v. Gray, February 1, 2012

Officers had probable cause to believe that appellant was concealing crack cocaine in his rectum.  After conducting two strip searches, in which appellant was not fully cooperative, an officer told appellant that he could either undergo a third strip search, be placed in a cell with a waterless toilet or he could consent to a rectal x-ray examination.  After appellant refused to consent to any of these options, officers obtained a search warrant in which appellant was forced to submit to a proctoscopic examination under sedation.  A doctor eventually recovered over nine grams of crack cocaine from within appellant.

The court held that the search was unreasonable because it was demeaning and intrusive to appellant’s personal privacy and bodily integrity and that there were less invasive ways to recover the evidence, such as a cathartic or an enema.  However, court held the evidence should not be suppressed because the police acted on good-faith reliance on a valid search warrant. In doing so, the court encouraged magistrates, where feasible, to hold a hearing to allow for more careful consideration of the competing interests at stake in medical procedure search cases.

United States v. Hernandez, February 8, 2012

Federal agents received an anonymous tip that appellant was harboring illegal aliens in her trailer.  The agents conducted a knock-and–talk in which they banged on the doors and windows, with their weapons drawn, while demanding entry and then attempted a forced entry by breaking the glass on the door.  When appellant answered the door, she admitted that an illegal alien was inside her trailer.  Agents entered the trailer and arrested appellant and two illegal aliens.  The court held that the agents’ conduct during their knock-and-talk violated the Fourth Amendment.  Since a Fourth Amendment violation had occurred by the time appellant came to the door, the agents could not rely on her admission as probable cause to either enter the trailer or arrest her.

Next, the court held that the incriminating statements appellant made to the agents, after her arrest at their office, were also inadmissible.  They occurred only a few hours after an egregious Fourth Amendment violation and no intervening events occurred to break the connection between her arrest and her statements.
Finally, the court held that the statements obtained from the two illegal aliens were inadmissible against appellant.  The government offered nothing more than pure speculation that their statements would have been inevitably obtained but even if they had, their statements were not sufficiently separated from the Fourth Amendment violation to make them admissible.

Voluntariness of Confession

United States v. Cantu-Ramirez, February 6, 2012

In this multiple defendant case, appellant Lauro Grimaldo argued that the district court should have suppressed his confession because federal agents delayed in presenting him to a magistrate judge for more than two hours for the purpose of interviewing him and obtaining a confession.

The court disagreed after applying the Supreme Court’s guidance from Corley v. United States.  First, because appellant’s presentment was delayed for less than six hours, his confession was admissible as long as it was obtained voluntarily.

Second, based on the totality of the circumstances, the court found that nothing about the interview indicated that his confession was involuntary.  The interview lasted only ninety minutes, the agents wore casual clothing, appellant was not handcuffed and the agents offered him food and drink and allowed him to make several phone calls.  The agents advised appellant of his Miranda rights and took care to ensure that he understood and voluntarily waived them.  The agents obtained appellant’s confession voluntarily and it was properly admitted against him.

United States Supreme Court Holds that Attachment of GPS Tracking Device is a Search Under the 4th Amendment

Much like the landmark (and terribly confusing) opinion in Crawford v. Washington several years ago, the Supreme Court once again issued an opinion that appears likely to raise more questions going forward than answers.  The issue presented in United States v. Jones was whether the attachment of a Global Positioning-System GPS tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the FourthAmendment.  The Court held:

The Government’s attachment of the GPS tracking device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.

     (a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.

     (b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position. Pp. 4–12.

     (c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12. 615 F. 3d 544, affirmed.

See the full opinion in United States v. Jones.  Okay, so it's a search (and in this case, an unlawful one), but where are the limits?  What instructions should be given to police officers and investigators?  Here's what Lyle Denniston over at ScotusBlog had to say:

Amid a disagreement about what a privacy invasion meant in 1791, but with a strong embrace of privacy in the electronic age, the Supreme Court on Monday suggested that police probably should get a warrant before they physically attach an electronic monitor — like a GPS tracking device — to a car or truck, while leaving some doubt about how long such a device may be used, and about what kinds of suspected crimes allow its use. In effect, the Court seemed to have launched years of new lawsuits to sort it all out. The choice Monday was between a minimalist approach, one in the middle, and an expansive view of Fourth Amendment privacy. Each had support among the Justices, but counting the votes was a bit tricky.

Justice Scalia delivered the opinion of the court.  He was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayer.  Justice Sotomayor, however, penned her own concurring opinion, as did Justice Alito (joined by Justices Ginsburg, Breyer, and Kagan).

To be honest, I haven't had the time yet to fully digest the opinion, so I'll save any more comments for another time.  However, I will say that I am initially disappointed by the name of the case.  Fourth Amendment cases are supposed to have cool and interesting names (e.g. Katz, Ciraolo, Kyllo), not Jones.  C'Mon.  When you cite U.S. v. Jones, people are going to thing you're making the case up.  Oh well.  At a very minimum, this case should give all the hardworking criminal defense lawyers ample ammunition for motions to suppress.

Does the 4th Amendment apply to a Cell Phone Search?

Boy, do we love our cellphones.  They are our phone books, our computers, our gaming systems, our cameras, our music players, you name it.  When a person's cell phone is such a multifaceted device, how can that affect their legal rights under a search warrant?  Read the summary of the case below to find out more about how the 4th Amendment applies to a cell phone search.

United States v. Aguirre, U.S. Court of Appeals for the Fifth Circuit (Federal), December 13, 2011

In this case, Appellant was convicted of using a communications facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(b).  On appeal, she challenges the district court’s denial of her motion to suppress evidence, claiming that the search and seizure of her cell phone was tainted by law enforcement officers’ illegal entry into a home where she was a guest.  The 5th Circuit found her arguments unpersuasive and affirmed the judgment.

Federal agents arrested a drug suspect shortly after he drove away from his home and they recovered marijuana and cocaine from his car.  The agents went back to the suspect’s home to conduct a knock and talk interview with the remaining occupants.  After knocking on the door and announcing themselves, the agents received no verbal response but did see a person look through the window, then quickly retreat toward the back of the home.  Fearing the destruction of drug evidence, the officers immediately entered the home without a warrant or consent.  Once inside the home the agents saw marijuana and drug paraphernalia in plain sight.  The agents secured the home and the occupants while they applied for a search warrant.  After obtaining the search warrant, the agents searched Appellant’s cell phone that was lying in plain view on a bed, and discovered several incriminating text messages.

The court held that the agents’ warrantless entry into the home was lawful.  First, they had probable cause to believe it contained evidence of illegal drugs and drug dealing.  Agents had just arrested the first drug suspect, after watching him leave the home, and had recovered marijuana and cocaine from his car.  Second, after knocking and announcing their presence, the reaction of the remaining occupants reasonably caused the agents to believe that evidence was being destroyed.  The agents’ entry into the home was justified by the exigent circumstance of destruction of evidence and supported by probable cause.

Appellant argued that the search and seizure of her cell phone was improper because the warrant did not particularly describe it as one of the items to be seized.  The court noted that while the Fourth Amendment requires that a warrant particularly describe the place to be searched and the person or thing to be seized, each item does not need to be precisely described in the warrant.  The particularity requirement can be satisfied where a seized item is not specifically named in the warrant, but the functional equivalent of other items are adequately described.  Here, the agents were authorized to search for items used to facilitate drug trafficking to include records, correspondence, address books and telephone directories.  While this list did not include cell phones, the court held that cellular text messages, the directory and call logs of Appellant’s cell phone could be characterized as the functional equivalent of several items included in the search warrant such as: correspondence, address books and telephone directories.  Appellant’s cell phone served as the equivalent of records and documentation of sales or other drug activities and as such, the agents lawfully searched it under the authority of the search warrant.

I suppose this ruling was just a matter of time in our iPhone culture.

The propriety of a Terry stop (a.k.a. investigative detention) can be, and often is, a hotly contested issue during pre-trial suppression hearings and on appeal.  I've written about the legal standard required for a Terry stop many times, but one can never get enough Terry law, so here it is again, complete with case citations, as recited by the 2nd District Court of Appeals (Fort Worth):

A temporary or investigative detention is a seizure.  Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996); Josey v. State, 981 S.W.2d 831, 838 (Tex. App.—Houston [14th Dist.] 1988, pet. ref‘d).  An investigative detention occurs when an individual is encountered by a police officer, yields to the officer‘s display of authority, and is temporarily detained for purposes of an investigation.  Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995).  Because an investigative detention is a seizure, reasonable suspicion must be shown by the officer to justify the seizure.  State v. Larue, 28 S.W.3d 549, 553 n.8 (Tex. Crim. App. 2000).

An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Ford, 158 S.W.3d at 492.  "[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."  Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).  The articulable facts must show unusual activity, some evidence that connects the detainee to the unusual activity, and some indication that the unusual activity is related to a crime. Martinez, 2011 WL 2555712, at *2.  Articulable facts must amount to more than a mere inarticulate hunch, suspicion, or good faith suspicion that a crime was in progress. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010).

In State v. Kerwick, a recent case designated for publication by the 2nd COA, the Court was called upon to consider whether the trial court abused its discretion when it suppressed the evidence of a defendant's warrantless arrest.  The arresting officer had been dispatched to the Stockyards after a brawl was reported outside a bar.  When he arrived, an unidentified person pointed at a group of people in a car and said "There they are right there."  The car was pulling away when the officer approached on foot and ordered the driver to stop.  The driver was later arrested for DWI.

The Court of Appeals agreed with the trial court (or at least found that the ruling was not outside the reasonable zone of disagreement) that the officer did not have "reasonable suspicion" to justify the Terry stop when the only facts he had were that a brawl was reported and an unidentified person said "There they are."

While I agree that the officer did not have reasonable suspicion to justify the stop in this case, I think this case really hinged on the trial court's initial ruling.  The standard of review (abuse of discretion - outside the zone of reasonable disagreement) is very deferential and had the trial court ruled for the State, it would not be hard to imagine the appellate court upholding that ruling as well (with the exact same facts).  Perhaps an obvious observation on my part.