By Ernie Lewis, Public Advocate
Morgan v. Commonwealth
(Ky. 2008)
This is a case about anonymous tips. Hart County Sheriff Jeff Staples was familiar with the reputation for drug trafficking and drug manufacturing that Christy Morgan, Guy Evans, and Dale Mansfield had. He received a call from an anonymous person on December 17, 2002, that her 16 year old son had returned home high from a night of partying at Morgan’s trailer. The caller said that the three were manufacturing methamphetamine that was still in the trailer and that the materials to make it were outside in a trash can. Sheriff Staples contacted KSP trooper Shannon West and the two of them drove past Morgan’s trailer, where they saw Evans on the porch. They turned their car around, and as they drove back toward the trailer, they saw Morgan and Evans in a car. Sheriff Staples stopped Evans and Morgan, and when he patted down Evans he found meth. He then obtained consent to search the trailer from Morgan, a search that resulted in more evidence found. Morgan was indicted for first-degree trafficking and other charges. She lost her motion to suppress, and entered a conditional plea of guilty to a 5 year sentence. However, the Court of Appeals reversed the trial court decision, holding that because the anonymous tip had not been sufficiently corroborated that the stopping of Morgan’s car had been illegal.
The Supreme Court reversed the Court of Appeals in a decision by Justice Abramson. In essence, the Court held that the Sheriff’s prior knowledge of Morgan’s reputation and Morgan and Evans’ leaving the trailer after Staples drove by was sufficient corroboration to justify the stopping of the car. What was the nature and quality of Staples’ prior knowledge? “Staples stated that he had arrested Morgan on at least one prior occasion for her involvement with drugs, Mansfield had been involved with Morgan for years and had a bad reputation for dealing drugs, and Evans had several charges pending against him for manufacturing drugs.” “Staples could not have been expected to ignore his prior knowledge about their drug involvement and proceed as if the tip had identified three strangers. In short, because the tip identified three individuals as engaging in the same type of criminal activity for which they already had prior records, Sheriff Staples’s knowledge about their prior records corroborated the tip, rendering it more reliable.” Counsel should be alert to the Commonwealth’s attempts to use “reputation” as corroboration of an anonymous tip, arguing that Morgan requires extensive knowledge of the individuals about whom the call is made.
The Court also found that Evans and Morgan’s leaving the trailer corroborated the tip. This is more troublesome, as driving away from a residence is commonplace and in no sense “evasive.” However, the Court found it to be corroboration of the tip. “Although two people leaving their residence on a weekday morning is certainly consistent with noncriminal activity, in light of the totality of the circumstances, Evans’s and Morgan’s leaving is a relevant factor that added to Sheriff Staples’s reasonable suspicion and served to corroborate the anonymous tip.”
Justice Noble concurred in the opinion but “would stress that merely leaving one’s home after a police car drives by, would never, standing alone, constitute reasonable suspicion to make an investigatory stop.” Justice Schroder dissented “because the anonymous tip was not sufficiently corroborated under Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000) to justify the stop.”
Hampton v. Commonwealth
(Ky. 2007)
Surely a person cannot go to prison for 20 years, at a cost of $400,000 to the taxpayers of Kentucky, for possessing cocaine residue, can he?
The answer is yes. Here’s how. On April 30, 2005, the Bowling Green Police got an anonymous tip at 4:00 a.m. that possible drug activity was occurring at a house where the police had received previous reports regarding drug activity. Officers went to the house. They saw 8-10 people running away from the house, including Leroy Hampton. Hampton got into a car and closed the door. Officer Eversoll opened the door and saw Hampton put something in his shoe. Eversoll told Hampton to get out, and “[a}fter several minutes” Hampton “consented” to a search of his person, which revealed a pipe with cocaine residue on it. Another pipe was discovered during a search at the jail. Hampton was arrested, charged, and eventually found guilty of possession of a controlled substance (second offense), first-degree promoting contraband (for having the pipe on his person at the jail), possession of drug paraphernalia, and PFO1st.
This conviction was affirmed in a decision written by Justice Noble. The Court first held that the officers had a right to perform a Terry stop based upon a reasonable and articulable suspicion. The Court held that the tip received was from an unnamed person riding on a bike near the house. The police testified that the tipster had given “three to five tips that had proven reliable” in the past. No such tips had been followed up, however. Nor did the tipster name Hampton, nor did he describe any of the vehicles in the area. He did describe the house and its location. The tipster was not viewed by the Court as an anonymous tipster, but rather as a “citizen informant, whose tip inherently bears more indicia of reliability than that of a purely anonymous informant.” While the tip in itself was viewed as insufficient to constitute a reasonable suspicion, under the totality of the circumstances the Court found the standard had been reached. “When the fleeing is combined with the somewhat reliable tip that drug activity was occurring at the house, along with previous reports of drug activity at the house and the fact that the fleeing occurred just as police began approaching, the situation takes on an entirely new—and suspicious—light. The convergence of those events gives rise to more than a nebulous and inchoate suspicion of criminal activity, and would lead a reasonable officer to conclude that the people had been involved in drug activity at the house and were then attempting to leave the scene of the crime. That Appellant was one of the fleeing people would justify the officers’ belief that it was appropriate to investigate him, stopping him temporarily in the process.”
Once the officer had reasonable suspicion justifying his stopping Hampton, the Court further held that it was legal to open the car door. They rejected Hampton’s assertion that the police should first have asked him to leave the car under Pennsylvania v. Mimms, 434 U.S. 106 (1977), a case allowing for the police to order drivers to get out of cars during investigatory stops. “[W]hile it may be that opening a car door without first asking the suspect to exit the car is inappropriate in some cases, it is not clear that such a wait-and-see approach is always the best method. That approach seems particularly ill-suited in a case like this one, where the suspect had just been seen running from a house suspected of accommodating drug sales and use and getting into the rear seat of a car whose door he now claims should have shielded him from the police.”
The Court next rejected Hampton’s allegation that his consent was involuntary because he was in pain from his handcuffs at the time. Hampton had been handcuffed by Officer Eversoll after refusing to give his name and becoming “belligerent” with the officer. Eversoll handcuffed him and then asked for consent several times before it was given. The Court held that the trial court’s finding of voluntariness was “not clearly erroneous.” The Court also found reasonable the trial court’s finding that the search of Hampton was justified by concern over safety since the officer had seen Hampton place something in his shoe.
So there you have it--twenty years in prison for possession of cocaine residue. And you wonder why our prisons are overcrowded?
Owens v. Commonwealth
(Ky. 2008)
This is an exceptionally important case of first impression in Kentucky, and one that cuts against Fourth Amendment rights. In essence, it states that the police may search without any level of suspicion a passenger of a car when the driver has been arrested and the search is incident to that lawful arrest. “[W]e conclude that officer safety and public safety demand that the police officer have discretion to frisk the passenger under these circumstances.”
The police stopped Chris Thornton in Taylor County on suspicion that his license had been suspended. Keith Owens was a passenger in the car. Once it was confirmed that Thornton’s license was suspended, Thornton was arrested and searched incident to the arrest. That search resulted in finding of a crack pipe on Thornton. Owens was asked to step outside the car, and was then asked if he had any weapons. Owens started pulling money from his pockets, and then pulled out a baggie which the officer suspected contained drugs. The baggie contained marijuana, pills, and methamphetamine. Owens testified that the officer had pulled the baggie out of his pocket. Owens was arrested and charged with drug offenses. His motion to suppress was denied. He went to trial where he was found guilty with a twenty year sentence being imposed due to his status as a PFO1st. Owens appealed to the Supreme Court.
Justice Minton wrote the opinion for the Court. The propriety of the stopping of the car was not at issue. The Court emphasized that under Maryland v. Wilson, 519 U.S. 408 (1997), when a car is legally stopped the police may order the passengers to get out of the car until the stop is over.
The Court described two schools of thought: the automatic companion rule in which a search may be done when a driver has been arrested, and the totality of circumstances rule. The Court quoted from United States v. Berryhill, 445 F. 2d 1189 (9th Cir. 1971) to describe the automatic companion rules: “[a]ll companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed.” The Court decided to adopt the automatic companion rule in Kentucky.
The Court based its decision to adopt the automatic companion rule primarily on officer safety. “Limiting the right to make a protective search would increase the chances that an officer could be harmed by a passenger who had been carrying a concealed weapon.”
The Court cautioned law enforcement not to take this rule too far. “In no sense should our holding in this case be taken as a license for law enforcement officers to believe that all frisks of all persons are always proper. We also reject any implication that our holding creates a ‘guilt by association’ mentality. To the contrary, our holding is simply an avenue to protect the officer working at the point of contact and the public. Toward that end, our holding is a limited and narrow exception to the exclusionary rule, designed to apply only in situations in which the driver of a vehicle has been lawfully arrested and the passengers of the vehicle have been lawfully expelled in preparation for a lawful search of the vehicle. Only in those limited circumstances, which are fraught with danger for officers and bystanders alike, may an officer conduct a brief pat-down for weapons (not a full-blown search) of the vehicle’s passengers, regardless of whether those passengers’ actions or appearance evidenced any independent indicia of dangerousness or suspicion.”
Pate v. Commonwealth
(Ky. 2007)
In September of 2002, KSP Sergeant Lilly went to execute a search warrant on Lawrence Pate. When he got to Pate’s house, he saw a black pressure tank sitting outside, with “what appeared to be a green corroded fitting on the top and a section of pipe with a valve welded to the bottom.” Pate recognized that the tank had been used to hold anhydrous ammonia. Lilly knocked on the door and when Pate’s wife answered, he asked for and received consent. Once inside, he saw many items associated with the manufacturing of methamphetamine. Lilly asked Mrs. Pate what the items were, and she responded that the items were equipment for the manufacture of methamphetamine. Lilly seized the evidence. He then found Lawrence Pate in a nearby apartment. Pate was charged with complicity to manufacture methamphetamine. After his motion to suppress was denied, he was found guilty and sentenced to twenty years in prison.
Pate’s appeal to the Kentucky Supreme Court was affirmed in an opinion by Justice Scott. Justice Scott first rejected Pate’s contention that his wife’s consent was flawed. The Court instead said that the consent was voluntary despite the fact that Lilly had told Mrs. Pate that he had an arrest warrant for her husband.
The Court held also that once Lilly saw contraband it was legal to seize it because it was in plain view. Several items not in plain view were legally seized under the exigent circumstances exception to the warrant requirement.
Greene v. Commonwealth
(Ky. Ct. App. 2008)
Ten days before Mr. Hampton’s unfortunate series of events, up 1-75 about 90 miles in Hardin County, one Donna Green called the Elizabethtown Police Department and said that Robert Greene was at a Dairy Queen on Highway 62 in a Mazda pickup truck, that he had been drinking, and that his license was suspended. Officer Cox went to the Dairy Queen and saw the Mazda pickup truck, and then verified that Greene’s license was suspended. He then saw the pickup truck leave the parking lot, go on the street briefly, and then drive into the parking lot of a welding supply store, return to the street, and then onto highway 62. Officer Cox stopped Greene and asked him for his license. Greene, who smelled of alcohol, said that he had no license. Greene agreed that he had drunk two beers. He failed two field sobriety tests, and a PBT indicated the presence of alcohol. Greene was charged with DUI and driving on a suspended license. His BA level was later tested at .096%.
The Court of Appeals, in a decision written by Judge Wine and joined by Judges Stumbo and Guidugli, affirmed the decision of the trial court overruling Greene’s motion to suppress. The Court found that there was a reasonable and articulable suspicion sufficient to justify the stopping of Greene. “First, Officer Cox received a credible report that Greene was operating his vehicle under the influence of alcohol. Second, Officer Cox observed the vehicle as described in the report. Third and most importantly, Officer Cox confirmed that Greene’s license was suspended. Finally, Officer Cox saw Greene’s truck miss the turn on Cardin Street and drive into an empty parking lot. Considering the totality of these circumstances, we agree with the trial court that Officer Cox had a reasonable and articulable suspicion that Greene was operating the vehicle under the influence of alcohol.” As a result, all of the evidence that came in after the initial stopping was admissible and the motion to suppress was properly overruled.
Grigsby v. Commonwealth
(Ky. Ct, App. 2007)
This case began with a call to the Campbell County police Department indicating that a domestic dispute had occurred. Officer Kunkel drove toward the scene when he saw Jermaine Grigsby and his girlfriend, Syneisha Mason, “engaged in what he believed to be an argument.” Kunkel approached the couple, who he recognized from an allegation made by Mason’s father that Grigsby was using Mason in his drug dealing business. Both Grigsby and Mason began to walk away when they saw Kunkel. Kunkel told Grigsby to sit down, and separated Mason from him. Neither agreed that they had been arguing, although they “appeared nervous.” As he sat there, Grigsby began to choke. After an EMT was called, Grigsby said he did not want any assistance. Kunkel then received information that the couple he had stopped had not been the subjects of the original domestic violence call. Kunkel asked Mason to give him any drugs in her possession, and Mason gave him 3 bags of marijuana. A car that Grigsby had temporary possession of was also searched by consent of the owner. That search revealed counterfeit bills as well as a handgun. Grigsby was indicted on one count of first degree criminal possession of a forged instrument, possession of a handgun by a convicted felon, and PFO1st. Grigsby entered a conditional plea of guilty following a denial of his motion to suppress.
The Court of Appeals affirmed in an opinion written by Judge Thompson joined by Judges Wine and Henry. The Court found that Grigsby had been detained pursuant to a legal Terry stop. “[B]oth Grigsby and Mason engaged in evasive behavior. Although Grigsby’s behavior may have been as consistent with innocent activity as with illegal activity, his presence in the area of a reported domestic dispute involved in what appeared to an argument with his girlfriend combined with his evasive behavior, justified the investigatory stop.” The Court rejected Grigsby’s contention that once Kunkel was informed that they were not involved in the domestic violence that any further detention became illegal. The Court held that because “Officer Kunkel reasonably believed that Grigsby was involved in drug-related activities” that further detention was justified. During that detention, the owner of a car gave consent to search the car which revealed a gun. The owner had authority to consent to a search of the car despite having given Grigsby temporary possession of it.
Horn v. Commonwealth
Ky. Ct. App. 2007)
On October 4, 2005, officers of the Greater Hardin County Narcotics Task Force were contacted about two men who were buying lithium batteries and pseudoephedrine. Police approached the men, who said they were delivering the items to Nicholas Horn. The men agreed to cooperate with the police. The next day, the two were supplied with pseudoephedrine and batteries that had been treated with a traceable substance. The men went to Horn’s garage and delivered the packages of pseudoephedrine and batteries. The men left the garage and told the police that they had seen anhydrous ammonia in the garage. The police then went to the garage and requested entry. When Horn declined, the police forced their way into the garage where they requested consent to search. Horn again declined. The police detained Horn and sought a search warrant. During its execution, the police found a firearm and additional evidence. Horn was arrested and charged with manufacturing methamphetamine enhanced by the possession of a firearm. His motion to suppress was denied, with the trial court finding that while the forced entry was not justified by exigent circumstances, that the taint had been removed by the obtaining of the search warrant. Horn entered a conditional plea of guilty and was given ten years in prison.
In an opinion written by Judge Thompson joined by Judges Stumbo and Nickell, the Court of Appeals affirmed. The Court specifically rejected Horn’s position that the search of the garage pursuant to the search warrant was an illegal fruit of the illegal initial entry. Horn cited United States v. Chambers, (6th Cir. 2005) for the proposition that the “evidence should be suppressed following an illegal entry of a residence despite the subsequent issuance of a search warrant which was based on information obtained prior to the illegal entry.” The Court found Chambers inapplicable, stating that Chambers had been resolved on other grounds. The Court relied instead upon Segura v. United States, (1984), the seminal case establishing the independent source exception, for the proposition that “evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint of the illegal police conduct.” “[W]e conclude that the issuance of the search warrant, which was based solely on information obtained from the two confidential informants prior to the forced entry of the garage, constituted an independent source that was sufficiently distinguishable from the illegal forced entry of the garage. Because the two informants provided the requisite information which would authorize the search warrant prior to the illegal forced entry, the forced entry was purged of its illegality because it was not responsible for the discovery and seizure of the contraband.”
The Court also rejected Horn’s contention that the warrant was invalid as based upon a defective affidavit. “[W]e conclude that the search warrant affidavit sufficiently stated grounds that warranted the issuing of the search warrant by the district court. The search warrant affidavit provided that: the two informants were provided with approximately thirty grams of pseudoephedrine and a package containing eight lithium batteries; police observed the informants enter and leave the garage after several minutes; and the two informants did not have the contraband in their possession when they met with police following the drug transaction.”
Jones v. Commonwealth
(Ky. Ct. App. 2007)
This case began early in the morning of June 5, 2005, with a Kentucky State Police roadblock in Muldraugh, Kentucky. Every vehicle was being stopped. When Calvin Jones was stopped, Trooper Woodside asked him for his license, which he could not produce. Woodside asked Jones to get out of his car, and seeing a ”marijuana leaf embroidered on Jones’ vest”, asked Jones for consent to search him. A search revealed 9 grams of marijuana in Jones’ front pocket. Jones then consented to a search of his car, which resulted in the finding of a loaded semi-automatic pistol, cocaine, marijuana, and paraphernalia. Jones was arrested and charged with trafficking in cocaine, second offense, enhanced by possession of a firearm, possession of marijuana, enhanced by the firearm, and possession of a handgun by a convicted felon, and PFO 1st. Jones filed a motion to suppress, alleging that the search had been beyond the scope of a Terry frisk, and that his consent to search had not been valid. Jones motion to suppress was denied, and Jones entered a conditional plea of guilty.
Jones filed an appeal based on the nature of the roadblock, an issue that had not been litigated in the trial court. The Court explained the reason for the preservation requirement. “At the hearing on the motion to suppress, the Commonwealth put on evidence to rebut Jones’s argument that the search exceeded the scope of Terry. It did not, however, put on evidence about the nature of the checkpoint because that was not an issue. If Jones wanted to appeal this issue, it was incumbent upon him to have a hearing on the issue and secure a ruling from the trial court. Failure to get a ruling on this issue prior to pleading guilty precludes appellate review.”
Boyle v. Commonwealth
(Ky. Ct. App. 2007)
This is an interesting case. The police in Stanford saw Joshua Boyle with an orange road construction barrel in his truck, so they pulled him over. Their theory was that he must have stolen the barrel. Once they stopped him, because he smelled of alcohol, they began to investigate him for DUI. Eventually, he was arrested and charged with DUI. His motion to suppress was denied. Boyle entered a conditional plea of guilty. Boyle appealed to circuit court, which affirmed the district court decision. The Court of Appeals granted discretionary review, and in a decision by Judge Lambert, affirmed the decision. The decision is straight-forward: “Because we know ‘as a matter of ordinary human experience’ that the increasingly ubiquitous orange, road-construction barrel is ordinarily transported during daylight hours, in bunches, and by marked construction or government vehicles, we find that, at the time of the investigatory stop leading to Boyle’s arrest and guilty plea, there was indeed a reasonable and articulable suspicion that Boyle was in possession of a stolen barrel…Thus, even though the barrel was later shown to have been borrowed, not stolen, the arresting officer’s investigatory stop was not unconstitutional or improper.”
Judge Nickell dissented. He revealed that Boyle was carrying the barrel for his employer for use in his landscaping business. Judge Nickell believed that the trooper acted on a hunch rather than a reasonable and articulable suspicion when he stopped Boyle. “The majority fails to note there is no legal proscription against private ownership or possession of a construction barrel, nor does the majority take into account the increasing amount of public and private construction work which occurs during the nighttime hours so as to not disturb traffic flow during the day. I believe the precedent the majority sets today takes a huge step down the wrong path. The slippery slope of the majority’s reasoning might just as easily be applied to other items of legally owned or possessed property being hauled about in one’s privately owned vehicle.”
Simmons v. Commonwealth
(Ky. Ct. App. 2007)
On April 26, 2003, Michaela Carmen Simmons ran a stop sign in Radcliff. When Sergeant McLeod stopped her, he was “aware that Simmons’ address was associated with drug activity.” As a result, he asked for backup, gave her a citation for running the stop sign, and asked to search her car. She asked what he was looking for, and he said that he was looking for guns and drugs. She replied that she had two guns in a gym bag in the backseat of the car. McLeod again asked for consent, and Simmons asked whether she had a choice, to which McLeod told her that she had little choice. A search then resulted in the finding of two guns, marijuana, and methamphetamine. Simmons was arrested and charged with possession of methamphetamine, marijuana, and drug paraphernalia. Her motions to suppress were denied, she went to trial, and was found guilty.
In a decision written by Judge Howard joined by Judges Wine and Guidugli, the Court of Appeals affirmed. The Court rejected the contention that Simmons had been illegally detained following her citation. The Court noted that Simmons had admitted to possessing guns in the gym bag without a permit, justifying further detention. The Court also rejected Simmons’ contention that her consent to search was involuntarily given. The Court stated that the officer’s statement that he would get a search warrant did not cause the consent to be involuntary. Nor did the fact that the officer asked several times for consent cause it to be involuntary.
Hensley v. Commonwealth
(Ky. Ct. App. 2007)
On September 5, 2004, Officer Hodge of the Corbin Police Department went with an informant to Michael Hensley’s residence that he shared with Shawna Wilson. Hodge spoke with Ms. Wilson while there. She denied his request to come in and search. Hodge left to get a search warrant while other officers remained behind and secured the house. He then filed an affidavit to search Hensley’s house, stating that he had received complaints of possible production of methamphetamine at Hensley’s house, and that when he had gone to the house and spoken with Wilson he had smelled ether. Because no judge was available, Hodge had to send the affidavit to a neighboring county. The warrant was executed and items used in the manufacture of meth were seized. Hensley was indicted on manufacturing meth and possession of a controlled substance. After Hensley’s motion to suppress was denied, he entered a conditional plea of guilty to attempting to manufacture meth and received a 7 ½ year sentence.
The Court of Appeals reversed in a decision written by Judge Nickell joined by Judges Combs and Wine. The Court found that the affidavit was not sufficient to justify a finding of probable cause. The Court found the affidavit similar to that of the famous case of Aguilar v. Texas, 378 U.S. 108 (1964). “In Aguilar, just as in the case at bar, no information was given to the magistrate identifying the source or the age of the information regarding illegal activity from which the issuing judge could determine the veracity or the basis of knowledge of the one offering the information to law enforcement. Additionally, the issuing judges had absolutely no information, other than conclusory remarks from the officer, about the reliability of the confidential informant.” The Court cautioned trial judges that when they are asked to issue search warrants, they “may not simply act as rubber stamps for the police and merely ratify the bare conclusions of others, nor may they consider information outside the affidavit.”
The Court rejected the trial court’s decision that the search could be saved by the good faith exception to the warrant requirement. The Court said that “it is clear the magistrate was misled by false information provided by Officer Hodge, and the officer’s later reliance on the resultant search warrant was wholly unreasonable.” Officer Hodge had actually admitted at the suppression hearing that he had not received any complaints on September 5, 2004, regarding manufacturing meth, contrary to his affidavit. The Court was further troubled by the fact that while Hodge had stated that he had smelled the strong odor of ether when he visited Hensley’s house earlier in the day, no ether or substances containing ether were found during the execution of the warrant.
The Court also cast serious doubt on the good faith exception itself, recalling Justice Stephens’ dissent in Crayton v. Commonwealth, (Ky. 1992). Stephens had predicted that Crayton would “’encourage representatives of the Commonwealth to become slovenly, less careful and less prepared in their work.’” Judge Nickell went on to state that if “the courts sanction such sub par performance by law enforcement officers of the Commonwealth, confidence in the judicial system will be lost and all citizens within our borders will suffer. The courts, as defenders of the Constitution and the rights afforded there under, should be loathe to accede to such lowered standards or knowingly participate in any harm to the Commonwealth, as those basic rights must be jealously guarded.”
Hamilton v. Commonwealth
(Ky. Ct. App. 2007)
On January 11, 2005, Officer Justice stopped Ryan Sloan on a traffic violation. Seeing a bulge in his pocket, Justice asked Sloan about it. Sloan pulled $2000 out of his pocket, and said he was going to Hamilton’s house, and that he was going to buy a car. Sloan drove on. Shortly thereafter, Sloan was stopped again. He no longer had the $2000. He said that he had bought a car from Hamilton, but could not say what kind of car he had bought. Because the officer believed Hamilton to be involved in drug activity, Hamilton was contacted. He denied knowing about a car purchase. Several officers then went to Hamilton’s house for a “knock and talk”. When Hamilton answered the door, a woman ran through the house. Hamilton stated that there might be an outstanding arrest warrant for her, and that she might be heading out the back door. Justice entered the house based upon Hamilton’s statement and upon his concern for his safety. Justice found Beverley Hamilton in the closet. Beverley said she would show the police where drugs and money were kept, resulting in a seizure of $12,000 in cash, a gun, oxycontin, xanax, and cocaine. Hamilton was charged and entered a conditional plea of guilty after having his motion to suppress denied.
The Court of Appeals affirmed in an opinion written by Judge Lambert joined by Judge Keller. The Court stated that “Justice had some information that Hamilton may have been involved in drug trafficking. On this particular occasion, with the questionable information given by Sloan concerning a ‘car deal,’ the officers would have reason to believe that a drug transaction had recently taken place. Moreover, when the officers arrived at Hamilton’s residence, Beverly’s erratic behavior…gave reason to the police to suspect she could be concealing or destroying evidence or worse taking actions that could bring the officers’ safety into question.” The Court also mentioned the protective sweep exception to the warrant requirement, stating that the “protective sweep concept has been acknowledged in several Kentucky and Sixth Circuit cases,” but does not explicitly state that this search was based upon that. Similarly, the Court mentioned that exigent circumstances may have been present. The Court did not explicitly justify the entry of the police into Hamilton’s house without a warrant.
Judge Stumbo wrote a dissenting opinion. She stated that the police observation of Beverly moving in the house did not establish an exigent circumstance sufficient to justify a warrantless entry. “Before law enforcement may invade the sanctity of the home, the burden is on the Commonwealth to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries…The commonwealth has not adequately demonstrated that exigent circumstances existed to overcome that presumption by merely showing a person was moving around in the house. Due to there being no exigent circumstances, the entry into the house was illegal.”
Morton v. Commonwealth
(Ky. Ct. App. 2007)
Markus Morton was stopped in Maysville after not signaling when he turned onto US 68, and after he was observed to be weaving from side to side on the highway. Officer Hord looked at Morton’s license, but Morton had no proof of insurance. At some point during the stop, Hord used a drug-sniffing dog which had been in Hord’s car. The dog alerted to the trunk of the car and the driver’s side door. Hord put the dog back in his car and then asked Morton for consent to search the car. Morton refused consent. Hord asked Morton to get out of the car and then conducted a pat down search of Morton. Feeling something unknown in Morton’s pocket, Hord removed it, finding a ten dollar bill with crack cocaine inside it. Morton was arrested and charged with possession of cocaine. After his motion to suppress was denied, Morton entered a conditional plea of guilty.
Notably, there is nothing in the opinion indicating that Morton was intoxicated. Remember that Morton was stopped partly for “weaving” from side to side on the highway. That left the failure to signal from a side street as the sole justification for stopping Morton. Another notable fact is that the drug-sniffing dog alerted to the trunk of Morton’s car. Yet, no drugs were found in the search of the car.
Notwithstanding those obvious problems, the Court of Appeals affirmed the trial court decision overruling the motion to suppress. Morton did not challenge the stop. Morton also acknowledged that there was probable cause to search the car under the automobile exception. Morton’s only challenge was that probable cause to search the car did not justify the warrantless search of Morton’s person. In an opinion written by Judge Thompson and joined by Judges Wine and Henry, the Court disagreed with Morton. “[W]hen the drug dog detected the odor of drugs inside Morton’s vehicle, particularly at the driver’s side door, Hord was provided with probable cause to search the vehicle pursuant to the automobile exception which extended to a search of Morton under the facts of this case.”
The Court’s opinion does not extend to passengers. Thus, passengers may not be searched when a drug dog alerts to a car. “[W]e conclude that a positive canine alert, signifying the presence of drugs inside a vehicle, provides law enforcement with the authority to search the driver for drugs but does not permit the search of the vehicle’s passengers for drugs unless law enforcement can articulate an independent showing of probable cause as to each passenger searched.”
The Court concluded by acknowledging that Morton would have been unlawfully searched without the drug dog’s alerting. The Court found that the police conducting a pat-down could not have reached into Morton’s pocket to pull out the folded 10-dollar bill without some information that it was either a weapon or contraband. However, because there was probable cause established by the dog alerting, the search was in fact legal.
United States v. Gooch
(6th Cir. 2007)
Club Prizm was apparently a hot spot in Nashville, complete with a VIP section of a public parking lot, valet parking according to status, and lots of fights, drugs, and shootings. Metro Police would regularly come to the parking lot and shine flashlights into cars. One night they did so and saw a gun sticking out of a Crown Royal bag. They determined that the car was owned by Gooch and that Gooch was a convicted felon. The police waited until Gooch came out of the club with his wife, and when he tried to pull out, he was stopped. Gooch was arrested, and a search of the car resulted in a seizure of the weapon. Gooch was charged with unlawfully possessing the gun. He challenged the search of the car, and when he lost, he entered a conditional plea of guilty.
The Sixth Circuit affirmed in an opinion written by Judge Boyce Martin, joined by Judges Rogers and Hood. The case was resolved entirely upon the question of whether Gooch enjoyed a reasonable expectation of privacy in the contents of his car which could be reasonably viewed by flashing a light into its interior, as well as the area in which he parked. The Court acknowledged that there is a reasonable expectation of privacy on occasion even in public parking lots. However, because the general public could walk through this particular lot, the expectation of privacy was not reasonable. “We do not mean to suggest than an individual who parks his or her vehicle in any parking garage or parking lot will necessarily lose all expectations of privacy. There may exist some scenarios in which outside access to a parking garage or lot is so restricted that a reasonable person would not expect a pedestrian or police officer to be able to approach and look into his or her vehicle. However, speculating on when these cases could arise is outside the scope of this case. Here, members of the public and police officers had access to, and were able to walk through, the VIP area. Additionally, the testimony revealed that patrons parked in this area not only for security purposes, but in some cases for notoriety. We hold that here, Gooch had no reasonable expectation of privacy, and therefore, there was no search within the meaning of the Fourth Amendment.
United States v. Davis
(6th Cir. 2008)
A Knoxville City Police Officer named Gilreath was working with the FBI on a task force. On March 9, 2005, he was told that Melvin Davis, who he knew as Tate, was involved in illegal drug activities. He and Officer Fortner went to the area described by the caller, parked their car, and saw Davis standing at the place where the informant said that he would be. When Davis got into a Maxima, the officers followed. They ran a records check and found that he did not have a license. They saw him get out of his car, and go toward a barber shop. Gilreath got out and yelled at him to come to the officers. At the door of the barber shop, Gilreath saw “bits of what appeared to be marijuana stuck to the thighs and abdomen area of Davis’s pants.” Gilreath arrested Davis, and found crack cocaine in Davis’s sock during the search incident to arrest. In conversation with Davis, it was determined that he would be suitable as a confidential source.
On August 24, 2005, Davis was arrested again. A week before, Gilreath had heard that Davis was again selling drugs. On August 24, 2005, an informant told Gilreath that Davis was back at the same location in a black Jeep Cherokee smoking marijuana. Gilreath went to the location, and followed Davis when he drove away. They followed him to a high school, where he dropped students off. Gilreath went up to Davis and asked him if he had a license, and he said that he did not. Gilreath could smell marijuana smoke. A student in the car with Davis told the police that she was holding something for Davis, and she showed a baggie of crack cocaine. Davis was arrested. He was charged in federal court and after losing his motion to suppress went to trial, where he was convicted.
The Sixth Circuit affirmed in a decision by Judge Moore joined by Judges Griffin and Tarnow. The Court held that the March 9, 2005 arrest was a legal Terry stop based upon specific articulable suspicion. This suspicion was generated by the informant’s tip that he would be at a specific location, that he was in a high crime area, and that he was driving without a license. The Court held that once the stop occurred, Gilreath approached Davis in a “manner reasonably related to the scope of the situation at hand.”
The Court also affirmed the August 24, 2005 arrest. Their decision was based again upon the informant’s tip, conversations in which Davis had said he had not yet obtained a license, and an exchange between Davis and the passenger in his car.
United States v. Garcia
(6th Cir. 2007)
This is a complicated marijuana conspiracy case beginning in 1992, involving pages of complicated facts, superseding indictments, and two previous decisions by the Sixth Circuit. The opinion of the Sixth Circuit affirming the search was written by Judge Batchelder, joined by Judges Hood and Moore.
Garcia challenged the government’s search of his Suburban in Michigan. The Suburban had been searched pursuant to a warrant that was issued following a stopping of the vehicle and obtaining a pager during a pat down of Garcia. Garcia challenged the initial stop, and alleged that the search of the Suburban was a fruit of the illegal stop. The Court found reasonable suspicion sufficient to justify a stopping of the Suburban. The Court further held that the canine narcotics sniff of the Suburban did not exceed the scope or duration of the stop. The Court rejected the district court’s holding that the seizure of the pager was justified under Terry, but held that it was admissible as an item that would have been inevitably discovered.
The Court also rejected Garcia’s challenge to the search of his Texas home. Here the Court granted Garcia the force of his arguments, but found the admission of the evidence to be harmless. The DEA had accompanied the San Antonio Police Department on the execution of a state search warrant to search for cocaine. The DEA instead seized hundreds of documents. Garcia challenged this as a general search. “Thus, where the officers unlawfully seize certain items but do not flagrantly disregard the limits of the warrant by unreasonably searching places not authorized in the warrant, the court must suppress the unlawfully seized items, but ‘there is certainly no requirement that lawfully seized evidence be suppressed as well.’” The Court held that the DEA search had not exceeded the scope of the warrant and thus was not a general search. However, the Court went on to hold that because the documents were not obvious contraband, their seizure under the plain view doctrine was unlawful.
United States v. Watson
(6th Cir. 2007)
The Knoxville Police Department made 4 controlled buys at a house in Knoxville. They used that to obtain a warrant to search the house and the 4 people in the house. The warrant named the four individuals, but failed to name the residence itself. When they executed the warrant, they found $1494 on Watson, as well as a gun, 2 grams of marijuana, and eighteen grams of crack cocaine. Watson admitted the cocaine was his. He was charged with both a drug and firearm offense and after losing his motion to suppress entered a conditional plea of guilty.
The Sixth Circuit affirmed in an opinion written by Judge Cole and joined by Judges Gilman and Marbley. The government conceded that the warrant had failed to name the residence in the search warrant. The Court did not make a finding regarding the legality of the warrant but rather went immediately to the good faith exception, holding that it applied. The Court rejected Watson’s argument that the warrant was so facially deficient that the good faith exception should not apply. “The omission of the residence from the grant-of-authority section was apparently the result of a clerical error. This is evident because the warrant thoroughly described the residence, and the warrant’s affidavit and incorporated documents—maps of the area, a tax-assessment printout, and photographs of the residence—make clear, that the warrant’s purpose was to, among other things, authorize a search of the residence.”
United States v. Ayoub
(6th Cir. 2007)
Ayoub’s half-brother Puzai contacted Homeland Security Agent Howe and told him that his half-brother was engaged in drug activity at their parents’ house. After stopping Ayoub and failing to find anything, they went to the house and obtained consent to search from Puzai’s sister, Raja Atoui. The search revealed scales, two handguns, and marijuana. Ayoub arrived during the execution of the search and admitted possessing the drugs. Ayoub was charged with possession with intent to distribute marijuana and being a felon in possession of a handgun. His motion to suppress was denied. After being convicted at trial, he appealed.
The Sixth Circuit affirmed in a decision written by Judge Cole and joined by Judges Gilman and Marbley. Ayoub challenged Raja Atoui’s authority to consent to the search of the home in which he lived. This contention was rejected, with the court holding that Raja Atoui had the authority to consent and that her consent was voluntary. “Here, not only was Atoui the caretaker of the home during the time her parents were in Lebanon, she of course also has greater authority than a typical employee as the daughter of the homeowners who were not occupying the premises at the time.” The Court noted that the officers never asked Ayoub for consent, nor did they obtain a warrant. “That would have been the preferred course in light of the Fourth Amendment’s strong partiality to searches conducted pursuant to a warrant.” Relying upon the recent case of Georgia v. Randolph, 547 U.S. 103 (2006), the Court held that even though Ayoub was present and was never asked to consent, this was not fatal to the government’s argument that Atoui had consented voluntarily. “In short, because Ayoub was not present and objecting, Atoui had authority to consent to the search.”
United States v. Herndon
(6th Cir. 2007)
Herndon was a convicted sex offender in Tennessee and was placed on probation after serving nine months in prison. One of his conditions of probation was that he not have the internet on his home computer, and that he consent to his probation and parole officer’s checking on his computer to ensure compliance. While on probation, Herndon failed to comply with treatment requirements and was kicked out of the treatment program. He told his parole officer that he was looking for work on the internet. In response, the parole officer went to Herndon’s home and checked his computer, which revealed evidence of pornography. Herndon was charged with knowing receipt and possession of child pornography. His motion to suppress was denied, and he entered a plea of guilty.
The Sixth Circuit affirmed in a decision written by Judge Gibbons and joined by Cook and Cleland. The Court noted that there were two possible analyses of the propriety of a probation search, Griffin v. Wisconsin,(1987) and United States v. Knights, (2001). The Court noted that the Griffin analysis would be inappropriate because the directive authorizing a search of the computer did not articulate reasonable suspicion. Thus, the Court analyzed the search under Knights. “Under Knights, a search of a probationer’s property must be tested for reasonableness in light of the totality of the circumstances ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’” The Court found Herndon’s privacy interests were reduced based upon Herndon’s having agreed to have his computer checked as a condition of his probation. The government’s interest in reducing recidivism was viewed as strong. “The requisite weighing of Herndon’s diminished privacy interest in his computer activities and the government’s comparatively substantial interest in monitoring probationers’ activities leads us to the conclusion that Harrien required no more than reasonable suspicion to conduct a check of Herndon’s computer.”
United States v. Wilson
(6th Cir. 2007)
Michael Jones and his passenger, Lamar Wilson, were driving without their seat belt on Highway 78 in Tiptonville, Tennessee. They were pulled over because of that. As the police began to talk with them, they began to act nervous. Neither Wilson nor Jones were able to produce proof of registration or insurance. Jones then consented to a search of the car. Jones and Wilson were asked to get out of the car. A pat-down of Wilson caused a package wrapped in duct tape to fall from Wilson’s pant leg. It was later found to be a pound of powder cocaine. Wilson moved to suppress, and the district court granted the motion. The court granted Jones’ motion to suppress.
In an opinion written by Judge Gilman and joined by Judges Varlan and Batchelder, the Sixth Circuit affirmed, agreeing that the police officer did not have a reasonable suspicion sufficient to pat-down Wilson. The government contended that Wilson could be searched due to the need to “protect the officers from an armed and dangerous suspect.” Wilson’s not owning the car did not support the pat-down. “Most passengers do not own the vehicle in which they are riding.” The Court rejected the government’s contention that Wilson’s “extreme nervousness” was sufficient to justify the pat-down. “Nervous behavior, standing alone, is not enough to justify a Terry search.” “In sum, the government can point to no specific and articulable facts to justify the pat-down of Wilson on the basis of a reasonable suspicion that he was armed and dangerous….We thus find no error in granting the motion to suppress as to Wilson. Although we do not relish the consequence that the possessor of a large quantity of drugs will escape punishment, our overriding concern is that the police must abide by the Fourth Amendment protections afforded to all of the inhabitants of this great country, guilty and innocent alike.” Cf., Owens, Supra.
United States v. Smith
(6th Cir. 2007)
The DEA and the West Michigan Enforcement Team (WEMET) received a great deal of information that Lakento Brian Smith was trafficking in cocaine in Muskegon County, Michigan. Several confidential informants were involved in trying to purchase cocaine from Smith. Ultimately, Officer Lewkowski applied for a search warrant to search a particular address and all vehicles there. The execution of the warrant resulted in the seizure of $17,000 in cash, cocaine residue, three guns, jewelry, and electronic equipment. Many of the items were seized for forfeiture purposes. Smith was arrested. A search of the vehicles resulted in the seizure of powder cocaine, crack cocaine, a hand mixer, and digital scales. Smith was charged with possession with intent to distribute 50 grams or more of cocaine base, as well as other charges. Smith’s motion to suppress was denied. Smith was convicted by a jury and sentenced to life in prison. He appealed to the Sixth Circuit.
In a decision by Judge Gibbons and joined by Judges Martin and Sutton, the Sixth Circuit affirmed. The focus of the opinion was the search of a Pontiac where most of the cocaine was found. The Court held that this search was legal based upon the probable cause exception to the warrant requirement. “{W]hen the officers searched the Pontiac, they possessed information—gleaned both from the lengthy investigation of Smith and from the warrant-supported search of his residence—suggesting that Smith trafficked in cocaine and that he used” his residence to store the cocaine. “Because the officers were aware of Smith’s use of vehicles in his drug-trafficking activities, and because they had information indicating that Smith stored cocaine at his residence, there was a ‘fair probability’ that contraband—in this case, the cocaine referenced by the tipster—would be found in the Pontiac.” The Court also found that the Pontiac was validly searched based upon the inventory exception to the warrant requirement. “When police have probable cause to believe that an automobile is forfeitable contraband, it may be seized from a public place without a warrant.”
United States v. Stuart
(6th Cir. 2007)
Richard Hale was a twice convicted felon driving in Michigan carrying a gallon-sized bag of marijuana. He was speeding. When stopped, knowing he faced a life sentence, he told the police that he had purchased the marijuana from Daniel Stuart. The police obtained a warrant to search Stuart’s house. When the warrant was executed, the police found four pounds of marijuana and numerous guns. Stuart sought to suppress the evidence, contending that the search had occurred before the warrant had issued. After the motion was denied, Stuart was tried and convicted.
The Sixth Circuit affirmed his conviction in a decision by Judge Sutton, joined by Judges Martin and Gibbons. Stuart contended that the trial court had erred in failing to hold a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). The Court found that Stuart had “made no showing that any of the information in the affidavit was deliberately false or submitted with reckless disregard for its truth” and thus there was no error in failing to hold a Franks hearing.
United States v. Kenny
(6th Cir. 2007)
In 2003, the police in Harrison, Michigan executed a search warrant at property on Coolidge Street. Nearby they also arrested Kenny and his son Christopher in a nearby barn, where they also found a methamphetamine lab and numerous weapons. The following day they executed a search warrant for Kenny’s residence. This search resulted in the seizure of more evidence of manufacturing methamphetamine as well as more weapons. Kenny was charged with drug offenses. After his motion to suppress was denied, he was convicted by a jury to 6 years in prison.
On his appeal to the Sixth Circuit, the Court affirmed in a decision by Judge Schwarzer joined by Judges Gibbons and Daughtrey. The Court held that there was probable cause to believe that Kenny was manufacturing methamphetamine, and that evidence would be found at his house. The Court reviewed the affidavit of Officer Stoppa which stated that Kenny had been arrested in a barn where a meth lab was, and that Stoppa’s informant had stated that Kenny was cooking meth in that lab. The Court relied upon United States v. Miggins, 302 F. 3d 384 (6th Cir. 2002), to hold that “a sufficient nexus existed to search the residence of a known drug dealer after he had been arrested for possession of cocaine.”
United States v. Gonzalez
(6th Cir. 2008)
Gonzalez was pulled over on May 27, 2004, in Milan, Ohio, for “minor moving violations.” As the officer was writing his warning, Gonzalez invited him to search his van. The officer agreed, and in searching the van saw a “piece of molding in the rear storage area that was slightly out of place.” When he touched the molding, it fell off, exposing the face of a rear speaker and the rear quarter-panel. There, the officer could see two plastic-wrapped packages. A narcotics dog alerted to the van. A search warrant was obtained, the execution of which resulted in seven packages of seven kilograms of cocaine. Gonzalez was charged with possessing with intent to distribute more than five kilos of cocaine. Gonzalez’s motion to suppress was denied. He was tried and convicted and sentenced to life imprisonment due to his having two prior offenses.
The Sixth Circuit affirmed in a decision by Judge McKeague and joined by Judges Boggs and Cohn. Gonzalez agreed that he had consented to a search, but contended that the search exceeded the scope of his consent, whereby the officer had damaged the van. The Court rejected this contention, saying that the molding had fallen off upon touch, revealing the plastic baggies. All the actions thereafter were as a result of a legal search warrant.
United States v. Moon
(6th Cir. 2008)
Dr. Young Moon was a provider for TennCare in Crossville, Tennessee. After receiving an allegation that Dr. Moon was giving only partial doses of chemotherapy but charging for full doses, agents of the TBI as well as others conducted a review of her billing practices in her office. They requested permission to scan patient records, and Dr. Moon agreed. Evidence of fraud was discovered and Dr. Moon was charged. Her motion to suppress was denied. At trial, Dr. Moon was convicted on four counts and sentenced to 188 months in federal prison.
In a decision by the Sixth Circuit, written by Judge Clay and joined by Judges Merritt and Cox, the Court affirmed. Among other allegations, the Court rejected Moon’s assertion that her consent to search was invalid. The Court rejected Moon’s allegation that her consent had not been voluntary but rather than she had acquiesced to a claim of lawful authority.
United States v. Nichols
(6th Cir. 2008)
In September 2004, several Nashville police officers were patrolling in north Nashville near Tennessee State. They saw a car that “grabbed” their “attention.” They began to check the license tag and eventually came up with information that Elbert Nichols had an outstanding warrant for robbery. Later they saw the car again and pulled it over and arrested Nichols. A search of the car resulted in a loaded .38 being found near where Nichols had been sitting. Nichols was charged with being a felon in possession of a handgun. His motion to suppress was denied. He entered a conditional plea of guilty.
The Sixth Circuit affirmed in a decision written by Judge Boggs joined by judges Kennedy and Jordan. The Court first rejected Nichols’ claim that the police had run a records check on him based upon his race. Judge Boggs stated that “selective enforcement of the law based on a suspect’s race may violate the Fourteenth Amendment, we do not agree that the proper remedy for such violations is necessarily suppression of evidence otherwise lawfully obtained. The exclusionary rule is typically applied as a remedy for Fourth Amendment violations, which Amendment does not apply to pre-contact investigatory steps like that presented here…” “Rather, we believe the proper remedy for any alleged violation is a 42 U.S.C. #1983 action against the offending officers.”
The Court further rejected Nichols’ claim that the officers in this case had acted in a discriminatory fashion. “Nichols cites no direct evidence of discrimination in his case and only the barest of circumstantial evidence. He asserts that ‘[t]he officer’s knowledge boils down to three criteria: early-morning hours, a congregation [of men], and black. Had this been a white congregation at 1:15 a.m. near another university [instead of the historically black Tennessee State University], would an officer decide to run a check for warrants? No.’…Nichols then cites statistical data demonstrating that ‘roughly one third of young black men are under control of the criminal justice system’…But bald accusations and irrelevant generalized statistics do not even come close to constituting what is necessary to establish a prima facie case of an equal protection violation.” “[T]he decision to check for outstanding warrants on Elbert Nichols did not require ‘reasonable suspicion’—indeed, it did not require any suspicion at all. All it required was that the decision not be based solely on Nichols’s race…To hold otherwise would be to prohibit police from taking even the most basic initial investigatory steps absent some articulable suspicion, such as when officers simply have a ‘hunch’ or are just following routine procedure—steps which, in this case, led to the apprehension of a dangerous fugitive.”
The Court also rejected Nichols’ argument that the search of the glove box exceeded the scope of a search incident to arrest, citing New York v. Belton, 453 U.S. 454 (1981). Belton had stated that a search incident to arrest included “‘the passenger compartment of that automobile’ including ‘any containers found within the passenger compartment’… ‘Container’ here denotes any object capable of holding another object. It thus includes closed or open glove compartments…” The Court reminded that under Thornton v. United States, 541 U.S. 615 (2004), “the rule in Belton applies even where a police officer does not make contact with a suspect until after he has already left his vehicle.” “We therefore join the unanimous view of our sister circuits in holding that the search-incident-to-arrest authority permits an officer to search a glove box, whether open or closed, locked or unlocked.”
The Short View
1. State v. Chamberlin, (Wash. 2007). There is no per se requirement that a judge must recuse herself where she was the judge who issued a search warrant.
2. State v. Elders, (N.J. 2007). The New Jersey Constitution requires the police to have reasonable suspicion prior to their requesting consent to search a disabled car. The Court had previously held that the same constitutional provision mandated reasonable suspicion for requesting permission to search following a traffic stop for a moving violation. “Clearly, in the case of a disabled vehicle, if the police are fulfilling a caretaker function, the consent search of a car for evidence of criminality is hardly in keeping with that mission. The driver of a disabled car facing police officers whose offer of assistance quickly turns into a ‘fishing expedition’ based on a ‘hunch’ that criminal activity is afoot is subject to no less compulsion to accede to a consent search than the driver subject to a typical motor vehicle stop.”
3. United States v. Aukai, (9th Cir. 2007). The en banc 9th Circuit has held that when you go into an airport you may be searched without suspicion, and that consent is irrelevant. “Today we clarify that the reasonableness of [airport screening] searches does not depend, in whole or in part, upon the consent of the passenger being searched…The constitutionality of an airport screening search…does not depend on consent,…and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world…[A]ll that is required is the passenger’s election to attempt entry into the secured area of an airport.”
4. United States v. Grigg, (9th Cir. 2007). The police may not make a Terry stop based upon a completed minor misdemeanor about which they have a reasonable suspicion. As a result, evidence of a machine gun found during a stop to investigate the violation of a noise ordinance should have been suppressed. “We adopt the rule that a reviewing court must consider the nature of the misdemeanor offense in question, with particular attention to the potential for ongoing or repeated danger…An assessment of the ‘public safety’ factor should be considered within the totality of the circumstances, when balancing the privacy interests at stake against the efficacy of a Terry stop, along with the possibility that the police may have alternative means to identify the suspect or achieve the investigative purpose of the stop.”
5. State v. Berrios, (Tenn. 2007). The Tennessee Supreme Court has held that it violates the Fourth Amendment to require a driver stopped for speeding to get out of his car and sit in a patrol car without any suspicion of his being armed and dangerous. “[T]the placement of a driver into the backseat of a patrol car cannot be described as ‘de minimus’ or a ‘mere inconvenience.’ A process involving a frisk and placement into the back of a locked patrol car is more akin to a full-scale arrest than the brief detention generally incident to an ordinary traffic stop.”
6. United States v. Moran, (10th Cir. 2007). The 10th Circuit has extended the rule of United States v. Hensley, (19850, which allowed for a Terry stop based upon a reasonable suspicion of a completed felony, to completed misdemeanors. The Ninth Circuit disagreed with this in United States v. Grigg, (9th Cir. 2007), while the Sixth Circuit agreed in Gaddis ex rel. Gaddis v. Redford Twp., (6th Cir. 2004). Thus, the Terry stop of Moran who had trespassed in the past, was legal, and thus his conviction for being a felon in possession of a firearm was affirmed
7. Virginia v. Moore (Va. 2007), cert. granted, (2007) presents the question of whether the Fourth Amendment requires suppression of evidence that was obtained incident to an arrest where the arrest violated state law.
8. State v. Washington, (Ind. Ct. App. 2007). The Indiana Constitution prohibits police officers from asking motorists whether they have drugs in the car unless they have a level of suspicion at the time they are asking. “[T]o allow police to routinely question individuals during a traffic stop about the presence of drugs would open the door to all sorts of inquiries, including whether the person cheated on his last year’s tax return or had in the past illegally pirated music from the internet. While tax fraud and internet piracy are—like illegal drug possession—serious concerns, routine traffic stops are not the place for such inquiries.”
9. Jones v. State, (Ga. 2007). When there is no probation condition allowing for a warrantless search, a probationer maintains his reasonable expectation of privacy. Thus, the police in this capital case violated the defendant’s Fourth Amendment rights by searching his home without a warrant, despite the fact that he was on probation. This holding was made in the context of both United States v. Knights, (2001) and Samson v. California, (2006), both of which allowed for searches of probationers where there are probation conditions. Here the Georgia Supreme Court held that Knights and Samson would not be extended to searches without probation conditions.
10. People v. Garry, (Cal. Ct. App., 2007). An officer who bathes a pedestrian with light and runs at him asking whether he’s on probation or parole has seized the person and thus reasonable suspicion is required, according to the California Court of Appeals. Thus, evidence obtained after the initial approach should have been suppressed. “No matter how politely [the officer] may have stated his probation/parole question, any reasonable person who found himself in the defendant’s circumstances, suddenly illuminated by a police spotlight with a uniformed, armed officer rushing directly at him asking about his legal status, would believe themselves to be ‘under compulsion of a direct command by the officer.’”
11. State v. Stone, (N.C. 2007). The North Carolina Supreme Court states that when a passenger of a lawfully stopped vehicle gives consent for a search, that does not include shining a flashlight down the passenger’s pants. As succinctly stated by Justice Robin Hudson, a “reasonable person in defendant’s circumstances would not have understood that his general consent to search included allowing the law enforcement officer to pull his pants and underwear away from his body and shine a flashlight on his genitals.”
12. State v. Jackson and State v. Jordan, (Minn. 2007). Despite having a warrant authorizing a nighttime search, the Minnesota Supreme Court held that in both cases there was insufficient evidence presented in the affidavit to justify specifically the execution of the warrant at night. “While the Supreme Court has never held that a nighttime search implicates the reasonableness requirement of the Fourth Amendment, it has repeatedly acknowledged the especially intrusive nature of nighttime searches of the home…[W]e conclude that the search of a home at night is a factor to be considered in determining whether a search is reasonable under the Fourth Amendment. We further conclude that in order to be constitutionally reasonable, nighttime searches require additional justification beyond the probable cause required for a daytime search.”
13. United States v. Collins, (7th Cir. 2007). The Seventh Circuit holds in this case that where the police have probable cause to believe that drugs are being sold out of a house, and go to the house without a warrant but with a battering ram, that they violate the Fourth Amendment by bursting in after 20 seconds and hearing someone say “the police are at the door.” This was not a sufficient exigency to justify a warrantless entry.
14. State v. Young, (Fla. Dist. Ct. App. 2008). A Florida Methodist minister had a reasonable expectation of privacy in his computer provided for him by his church, and thus the permission given by a regional church official was not valid, and a search of the computer resulting in finding child pornography was violative of the Fourth Amendment. Essential to the holding was that the church had no policy regarding computers. “[W]here an employer has a clear policy allowing others to monitor a workplace computer, an employee who uses the computer has no reasonable expectation of privacy in it. In the absence of such a policy, the legitimacy of an expectation of privacy depends on the other circumstances of the workplace.”
15. Lake City v. Bench, (Utah Ct. App. 2008). When an ex-wife calls the police and tells them that her husband had been to her house and that he was drunk, that is not sufficiently reliable to constitute an articulable suspicion sufficient for a stopping. Here, the police found the husband, followed him (while he was driving cautiously), and stopped him. The Court was not willing to treat her as a typical anonymous tipster, viewing her rather as “Bench’s ex-wife and that malice or ill will is a typical—albeit not inevitable—product of divorce.” The Court also said the following about the husband’s cautious driving: “Safe, ultra-cautious driving, however, even if motivated by a desire to avoid police contact, does not, without more, create reasonable suspicion sufficient to justify a traffic stop. Simply put, a desire to avoid an encounter with police does not indicate that a person is driving while intoxicated or is otherwise engaged in criminal activity.”
