Articles Posted in Fourth Amendment

I’m currently working on a federal criminal case in a court near Atlanta, and am plowing through the manner by which various law enforcement agents seized evidence that the Assistant United States Attorney (also called the “AUSA”)  wants to use against my client.  This process has me thinking about the many ways that law enforcement can obtain evidence, and the questions of whether the lawyer representing the Defendant should, or should not, file a “Motion to Suppress.”  Lots of people know that our wonderful Constitution contains the Fourth Amendment, which says the government cannot search for or seize evidence unless they have “probable cause”, and usually a warrant issued by a judge.  When they do not have sufficient grounds for a search or seizure, sometimes the Court will “suppress” the evidence, meaning it cannot be used during the trial.

My clients and others sometimes do not realize that law enforcement officials are allowed to gather evidence in many other situations where they do not have a warrant, or any level of suspicion at all. For example, the law does not prevent a police officer from walking up to your front door, ringing the doorbell, and asking you some questions.  This is sometimes called a “police-citizen encounter”, and federal agents lovingly refer to this as a “knock and talk.”  Anyone foolish enough to talk to law enforcement in this situation needs to know full well that anything coming out of their mouth, as the old saying goes, “can and will be used against you in court.”  A Motion to Suppress will not help any Defendant in this context, if he or she voluntarily made statements (although there certainly are situations where the police at the front door make it seem as if the person is obligated to talk; that is a totally different matter).

Another way that federal law enforcement officials get evidence without a warrant is by using various administrative processes that result in an order that some person or company turn over information.  It usually works like this:  a company in an area regulated by some federal agency has an obligation to cooperate with that agency’s investigations.  The agency sends an order, directing the company to turn over a boatload of information.  If the company fails to do so, the agency can go to court to enforce the court order, and can make other bad things happen to the company.  Again, no search warrant, and no Motion to Suppress will help if the company or its officials are later charged with a crime.

In a huge decision impacting how criminal defense lawyers handle their cases, here in Atlanta and elsewhere, the Supreme Court issued a ruling in Carpenter v. United States.  For me, the case demonstrates two aspects of handling criminal defense matters here in the second decade of the 21st century, slow change in the legal field, and the need for defense lawyers to never give up.

First, let’s talk about the glacial rate of change in the legal field.  The law is old, slow, and develops incrementally.  Judges tend to be older, more thoughtful than the average citizen, and less likely to climb on board with the latest craze or fad.  Now, compare the slowly crawling legal field with technology.  As we all know, the IT world yields a new cell phone, device or application at least every year, and is encapsulated by Moore’s law (more or less accurately predicting the doubling of computing storage every 18 months).  Regular readers know I like to talk about how the creaky legal system deals with rapid developments from the world of technology.  The Carpenter case is a perfect example.

Law enforcement arrested some guys for knocking off Radio Shack stores in Detroit (as if this company or the place of my birth needed any more bad stuff happening to them).  One guy says that this group and 15 others had been doing this same thing throughout Michigan and Ohio.  The snitch gives the officers some cell phone numbers.  The Officers get some court rulings to get cell phone location records, using the Stored Communications Act (the SCA).  Now, here’s the important part.  The SCA does NOT require the same level of suspicion as is needed for a warrant.  Warrants require “probable cause” while orders under the SCA can be issued  if an agent has “reasonable grounds” for thinking that the cell phone records might be “relevant.”  So, agents got their SCA orders, then got the cell phone records, and voila, were able to prove that Carpenter’s phone was around the other guys at the same times as the various Radio Shack heists took place throughout the Midwest.  One two three, guilty, but wait, there’s more!

Swear to God, same thing happened to me!  Go to a party on a Saturday night, cops bust in,  homeowner claims to “know nothing”, everybody gets busted and goes down to the police station.  Officers make arrests for trespassing, since the homeowner dummies up.  That is basically the fact pattern from District of Columbia v. Westby, to be argued in the Supreme Court soon.  However, there is no crime of “trespassing” if there is nothing to suggest that that the partygoers knew or should have known that they were entering against the owner’s will.  The arrested folks brought a lawsuit against the arresting officers for false arrest, they won a judgment, and the DC police brought the case to the Supreme Court, arguing that its officers had probable cause under the Fourth Amendment to make the arrests.

Westby is a bit more interesting, and salacious, than my aborted party that one Saturday eons ago.  First, there was someone named either “Peaches” or “Tasty” identified by some of the partiers as the person who told them about the shindig.  Also, when the cops arrived, some of the women were selling lap dances, some had money hanging out from their undergarments, and most shockingly, the officers smelled marijuana.   Continue reading

OK, those unfortunate souls who occasionally read this blog know that I like to go on about the intersection of the 18th Century language in our Bill of Rights (which includes such tremendous ideas like religious liberty, freedom of expression, the right to not incriminate oneself and the right to be free from unreasonable searches), with the world of smartphones, digital communications, and mountains of data for each person and incident that happens to be captured by some device or trove of information.  We all know the the “Framers” or our Constitution had no way of predicting what the world would look like in 2017, but it is fascinating that we try to match their expectations up with modern existence.

Carpenter v. United States is the latest case involving this confluence of our rights and the Digital Age. Mr. Carpenter was indicted for being involved with a series of armed robberies. One of his buddies gave the police a series of phone numbers that Carpenter had used.  The police then went to the cell phone providers, seeking lots of different kinds of information that can be dredged up involving how a device was used, where it was located, and other data that essentially provides a road map to the device-user’s life.  But, here’s why the case is in the Supreme Court:  the police did not get a search warrant from a judge, but instead they resorted to a federal law called the Stored Communications Act (the “SCA”), a 1986 law that allows phone companies to disclose records when the government provides them with “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation”. Under the SCA, a prosecutor can get around the need to show that there is probable cause to believe that a crime has been committed.  More and more every year, we see cases where the police regularly avoid search warrants, and instead get mountains of data from cell phone providers under the more lenient SCA. As a matter of fact, my law partner Carl and I did a case very similar to what happened in Carpenter, cell phone data obtained under the SCA that was going to be used against our client. Continue reading

Here in Atlanta and the rest of Georgia we have a law that prohibits texting and driving.  This law says that a driver cannot operate his or her motor vehicle “…while engaging in a wireless communication using a wireless telecommunications device.”  To “engage in a wireless communication” means “talking, writing, sending, or reading a text-based communication, or listening on a wireless telecommunications device. ”  Indiana has a similar law, a statute that allows talking on a cell phone but which prohibits texting.  Many years ago, the United States Supreme Court said that if a police officer has probable cause to believe that a driver has violated any law while driving the officer can stop the motorist.  In many of our federal criminal cases, these traffic violations leads to a search of the vehicle, and some unfortunate motorists end up in jail when the policeman or woman finds drugs, illegal weapons and the like.

When I first heard about these anti-texting laws in Georgia, they made a lot of sense, especially since my then teenagers were just learning to drive when the law went into effect in 2008.  However, I wondered, how can an officer know if the motorist whose head is pointed down toward a cellphone is “engaging in a wireless communication” as opposed to looking at photos or his calendar?  The difference can be huge, especially if the reason the officer stopped the vehicle is for an alleged violation of the no-texting law, and the officer subsequently finds contraband.

It turns out I was not the only person pondering whether a traffic stop in this context would be legal.  In the case of United States v. Paniagua-Garciathe Defendant was prosecuted for a large quantity of heroin located after his vehicle was stopped and searched.  However, here is why he was stopped:

A major decision on the future of technology and crime investigations was issued a few hours ago by all the judges who sit on the United States Court of Appeals for the Eleventh Circuit, the offices of which are a few blocks away from us here in Atlanta.  The eleven judges wrote over 100 pages of opinions on the question of whether the police can use information that is less than the usual “probable cause” standard when obtaining data about the various cell towers hit by your mobile phone as you move through your daily life.  This “less than probable cause” standard is written into the Stored Communications Act  (the SCA), a law that was enacted before smart phones became such prevalent features of modern life.  The case is United States v. Davis, and can be read here.

As we see so often, whether we win or lose, the best description of what a case is really all about comes from the judges who disagree, or as we lawyers call it, “the dissent.”  Judge Beverly Martin described the case this way:

In this case, the government got 67 days of cell site location data disclosing Quartavious Davis’s location every time he made or received a call on his cell phone. It got all this without obtaining a warrant. During that time, Mr. Davis made or received 5,803 phone calls, so the prosecution had 11,606 data points about Mr. Davis’s location. We are asked to decide whether the government’s actions violated Mr. Davis’s Fourth Amendment rights. The majority says our analysis is dictated by the third-party doctrine, a rule the Supreme Court developed almost forty years ago in the context of bank records and telephone numbers. But such an expansive application of the third-party doctrine would allow the government warrantless access not only to where we are at any given time, but also to whom we send e-mails, our search-engine histories, our online dating and shopping records, and by logical extension, our entire online personas.

The United States Supreme Court yesterday issued another “dog case”, an opinion discussing whether and when the police can use a K-9 to sniff for drugs or contraband prior to getting authorization to do so from a judge.  We have previously posted about these issues.  Yesterday’s case concerned the question as to how long the police can detain a motorist who has done nothing other than commit a minor traffic violation, in order to keep the driver at the side of the road while the cops bring out the pooch to sniff for dope.  The answer? Twenty-two minutes is too long, and evidence obtained as a result of an “alert” by the dog must be suppressed unless the cops otherwise had reasonable suspicion to continue detaining the motorist.  The case is Rodriguez v. United States, and can be read here.

This is just the latest in a series of cases in which the majority of the Supreme Court have reinvigorated the need to protect personal freedom from unwarranted police intrusion.  These cases have renewed the recognition that courts need to protect against “unreasonable searches and seizures.”   As is now well-known, the Supreme Court held last year that the police now need a warrant in order to inspect the cellphone of an arrested person.  Two years ago the court held that police need a warrant before they can let a drug-sniffing dog wander around the outside of a person’s home.  A few years ago, they also issued a unanimous decision that mandated a warrant from a Judge before the police can install a GPS tracker on a person’s automobile.

Yesterday’s case tightens up the rules that the cops need to follow when using drug-sniffing dogs during a traffic stop.  In essence, the Supreme Court held that such procedures become unlawful if the cop holds the driver at the side of the road solely to conduct the search. “We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures,” Justice Ruth Bader Ginsburg wrote for the majority. “A seizure for a traffic violation justifies a police investigation of that violation,” Justice Ginsburg wrote. While the court has allowed police to take certain actions in a traffic stop that go beyond its narrow purpose, such as requiring motorists to exit their vehicles, those have been closely tied to officer safety or other practical needs, she said.

Federal criminal cases are no different than cases brought in state courts such as Georgia, Florida or Alabama. The explosion of technology requires courts to balance the needs of law enforcement with the protections for individual liberty enshrined in our Constitution. Sometimes, when the suspect is investigated for a “bad” crime like targeting minors for sex, the courts simply ignore that the protections for individual liberty apply to everybody equally. In an opinion issued today by the United States Court of Appeals here in Atlanta several blocks from our offices, that court permitted the search of a cellphone that had no connection to the alleged crime from seven years earlier. The case is U.S. v. Mathis and can be read here.

In 2004, the Defendant supposedly got a then 14-year old to have sex. Remember, this was 2004, a veritable lifetime ago in the world of cellphones and communication technology. Seven long years later, the young person was by then 21, and decided to tell the police about his encounter with the Defendant back in 2004. The young person said that back in 2004 he and the Defendant had phone calls and exchanged text messages using the Defendant’s phone. Now, here’s the important part: the police knew that the Defendant, like just about everybody else, had changed cellphones in the intervening seven years.
Continue reading

I previously posted here about a case in front of the United States Supreme Court that deals with how far does the rule from Georgia v. Randolph extend. Recall that in Randolph, the Supreme Court confronted the question of what happens when one resident of a home (there it was the wife) tells the police it’s OK to search the house even if they don’t have a warrant, yet the other occupant (the husband) refuses to consent to a search. In that earlier case from right here in Georgia, the Supreme Court said it is not reasonable for the police to think they have the right to enter a home and search without a warrant if one of the occupants is right there on the scene and objects to the search. Two days ago, the Supreme Court issued its ruling in Fernandez v. California, which restricted this rule a bit. You can read the opinion here.

The facts in Fernandez are a little different than the case from Georgia. Mr. Fernandez shared his apartment with his wife. When the police came to the door, he refused them the right to enter, although she said it was OK. The police arrested Fernandez for other reasons, and later returned after he was in custody and asks his wife again if they could look in the apartment. She again consented, and they entered, searched, and found incriminating evidence.
Continue reading

Casual readers know that we try to keep abreast of federal criminal cases, including appeals of criminal convictions involving decisions where the issue revolves around whether a particular search or seizure of evidence falls within the Fourth Amendment. As many of us know, if evidence is seized in violation of the Constitution’s Fourth Amendment, such evidence generally is inadmissible and cannot be used against the accused person (assuming that the Defendant in question has “standing” to contest the search). A pair of recent cases from the United States Court of Appeals for the Eleventh Circuit reached opposite conclusions on this issue. In one case, the appellate court ruled that the police violated the Constitution when they entered an apartment without a warrant. In the second case, the police installed GPS monitors on the Defendant’s vehicle without getting a warrant. In that case, the Eleventh Circuit ruled that earlier decisions from decades ago made it reasonable for the police to think they would be acting in “good faith” by installing the monitors, even if later Supreme Court rulings reached a different conclusion.

In the first case, one of Ronald Timmann’s neighbors noticed a bullet hole in her apartment wall, and the hole indicated that it was caused by a weapon that likely was discharged from inside Timman’s adjacent apartment. After the police were unsuccessful in trying to locate and talk with Timman, they decided about 39 hours later to enter his apartment. Inside they found weapons that were used to prosecute him for criminal violations. His attorneys argued that the warrantless entry into the apartment was illegal. Prosecutors pointed to the “emergency aid” exception, by which in certain situations the police are allowed to enter locations without a warrant in order to assist a person who might be in danger. Here, the appellate court decided that the situation the officers confronted wasn’t an urgent emergency. “The officers here did not receive an emergency report regarding an ongoing disturbance, but rather a service call regarding what appeared to be a bullet hole, which circumstances known to the officers indicated had been made at least 39 hours prior to when the officers made entry.” The first office on the scene “…did not encounter a tumultuous scene, nor were the officers met with chaos when they returned to the building the next day. The officers observed no violent behavior, nor did they see or hear evidence that a fight had taken place or that anyone had been hurt…” As a result, the Court held that the entry and discovery of the guns and certain statements made by Timman could not be used against him.
Continue reading