Articles Posted in Fourth Amendment

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.
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Criminal cases involving search and seizures by police officers continue to bedevil the courts more than two centuries after the Fourth Amendment was added to our Constitution. As we all know, the Fourth Amendment says that there cannot be a “search” or a subsequent “seizure” of evidence unless there is a search warrant, or unless there is “probable cause.” One of the many exceptions to this rule is that the police can search if the owner of some property “consents” to the search. However, what happens when two people live there, and one says they can search, but the other refuses? A case that started here in Georgia a few years back ended up at the Supreme Court, Georgia v. Randolph. In that case, the wife told the cops they could search, the husband showed up and demanded that they not look for evidence unless they had a warrant. The cops searched anyway, and the U.S. Supreme Court ruled that the search was illegal because the cops should not have relied on the wife’s consent when the husband refused to let them in. Last week, the Supreme Court heard oral arguments in a case that will decide how far the rule from Randolph will extend. This recent case is Fernandez v. California, and can be accessed here.

The police suspected Walter Fernandez of being involved in a stabbing. They went to his building and heard screaming from in and near his apartment. His girlfriend answered the door, and appeared to be bloody and bruised. Mr. Fernandez, who was inside, told the police “Get out. I know my rights. You can’t come in.” Despite not being allowed to enter, the cops took Fernandez into custody on suspicion of domestic violence . About an hour later, the police returned and obtained the girlfriend’s consent to search the apartment. You guessed it, they found evidence used to later convict Fernanzed of the stabbing crime.
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Criminal defense lawyers here in Atlanta, throughout Georgia and the rest of the Nation, whether in federal court or state court, all need to be aware of developments in the law, especially such hot topic areas like search and seizure. Many attorneys are able to either win, or at least put their client’s case in a better posture, by pointing out that the investigating officials either did or came close to going over the Constitutional line when obtaining incriminating evidence. I’ve written in earlier posts about how more and more courts are grappling with search and seizure rules when applying modern technology to the Fourth Amendment, the rule created by the Founders of our country in the 18th century.

Another of these rulings came out the other day, and was issued by the United States Court of Appeals for the First Circuit. That case held that when the police arrest a person, they generally cannot look through the person’s cell phone unless they first get a warrant. The First Circuit case applies to federal criminal matters that arise in Maine, New Hampshire, Massachusetts and Puerto Rico. An earlier ruling by the Seventh Circuit (which is governing authority in federal cases in Illinois, indiana and Wisconsin) came to a different result, holding that no warrant is needed. Look to see this issue going up the the United States Supreme Court at some point in the not too distant future.
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We occasionally handle cases in Florida, and since I am also licensed in the Sunshine State we pay attention to legal issues happening there. As readers of this Blog realize, I have a fascination with how the law is developing in the intersection between modern technology and the Eighteenth Century rules enshrined in our Fourth Amendment, and have written on such issues, such as in this post. Two weeks ago me and my law partner Carl had a big oral argument in front of a federal judge concerning such issues, so this area of the law is on my mind currently.

The Florida Supreme Court issued what could be a very important decision last week, Smallwood v. Florida. In that case, a police officer arrested Mr. Smallwood for an armed robbery that happened the previous day. The robber had taken currency from a local store. After the arrest, the police officer opened up Smallwood’s smartphone, looking through his pictures. Like too many foolish criminals, Mr. Smallwood had apparently taken pictures so he could brag about his crime, photos that showed the gun, the money, and his girlfriend all in proximity to the loot. The defense attorney argued that Mr. Smallwood, like all of us, had an expectation of privacy in the contents of his cell phone, and that a search without a warrant was therefore unreasonable and illegal. The trial court and intermediate appellate judges sided with the prosecution, ruling that the older Supreme Court cases on searches incident to an arrest justified the officer’s actions. One of these older cases was issued in 1973, United States v. Robinson. In that case, the U.S. Supreme Court said it was OK for the arresting officer to look through a package of cigarettes in the Defendant’s pocket after the arrest, a peek which led to the discovery of heroin.
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