Archive | Fourth Amendment

Tuesday, December 5th, 2017

“Unrelated inquiries that prolong or add time to a traffic stop violate the Fourth Amendment absent reasonable suspicion of a separate crime.”

The title is the holding of today’s Second Circuit opinion in United States v. Gomez (Parker, Wesley, Droney) (on appeal from D. Conn.). Specifically, the Circuit held that (1) the Fourth Amendment was violated when officers prolonged a minutes-long traffic stop to investigate matters unrelated to the pretextual basis for the stop, but that (2) suppression was not warranted because the good-faith exception to the exclusionary rule applied. The opinion is available here.

A DEA task force had been investigating Mr. Gomez in connection with a heroin trafficking operation. One of the task force members, a Hartford police officer, testified that he observed the defendant commit three traffic violations. The officer used these violations as grounds to conduct a traffic stop. “From the moment” the officer first approached the car, “his questioning detoured from the mission of the stop (Gomez’s traffic violations) to the DEA’s heroin-trafficking investigation.” Slip …


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Categories: forfeiture, Fourth Amendment, good faith, traffic stop, waiver

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Monday, November 13th, 2017

This Week’s Cert. Grants

The Supreme Court has recently granted certiorari in three First Amendment cases relevant to criminal practice:

Lozman v. City of Riviera Beach, Florida, No. 17-21
Question presented: Does the existence of probable cause defeat a First Amendment retaliatory-arrest claim as a matter of law?

Cert. papers and opinion below available here:

Lozman v. City of Riviera Beach, Florida

Minnesota Voters Alliance v. Mansky, No. 16-1435
Question Presented: Is Minnesota Statute Section 211B.11, which broadly bans all political apparel at the polling place, facially overbroad under the First Amendment?

Cert. papers and opinion below available here:

Minnesota Voters Alliance v. Mansky

National Institute of Family and Life Advocates v. Becerra, No. 16-1140
Question Presented: Whether the Free Speech Clause or the Free Exercise Clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling …


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Categories: First Amendment, Fourth Amendment

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Friday, October 6th, 2017

Recent Cert. Grants

The Supreme Court granted certiorari on a number of criminal cases in orders from its September 25 conference. The details are below, courtesy of Sentencing Resource Counsel:

City of Hays, Kansas v. Vogt, No. 16-1495
Question Presented: Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.

Cert papers and opinion below available here:
http://www.scotusblog.com/case-files/cases/city-hays-kansas-v-vogt/

Collins v. Virginia, No. 16-1027
Question Presented: Whether the Fourth Amendment’s automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Cert papers and opinion below available here:
http://www.scotusblog.com/case-files/cases/collins-v-virginia/

Byrd v. United States, No. 16-1371
Question Presented: Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is …


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Categories: certiorari, due process, Fifth Amendment, Fourth Amendment, plain error, probable cause

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Monday, September 11th, 2017

Nuanced Second Circuit Opinion on Dissipated Probable Cause & McLaughlin Violations

The Second Circuit issued two criminal opinions today, both of which we will cover this week. In one, United States v. Pabon, the Circuit rejected a set of Fourth Amendment challenges where police obtained a CT scan which revealed that the defendant was body-packing narcotics. The opinion, available here, is as notable for what it does not hold as for what it does.

In Pabon, police obtained a search warrant authorizing an x-ray of the defendant’s lower abdomen to determine whether he was body-packing narcotics. Based on the x-ray, an emergency room physician reported that body-packing was “unlikely.” A detective nevertheless obtained a search warrant for a CT scan based on his testimony that the x-ray results were consistent with those he had observed in other body-packing cases. The CT scan suggested body-packing, and the defendant was given laxatives that led him to pass eight packages of …


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Categories: car stop, Exclusionary Rule, Fourth Amendment, probable cause, search warrant

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Monday, July 24th, 2017

Circuit Upholds Conviction Where Defendant “Never Submitted to Police Authority”

The Circuit affirmed the denial of a suppression motion today in United States v. Huertas.  You can access the opinion here.

A woman drove up to a patrol car and told the officer that “a man named Branden was nearby with a gun.”  The officer drove in the direction the woman pointed and saw Huertas, who was standing on a street corner holding a black bag.  The officer asked Huertas questions through his car window.  The questioning lasted about thirty-sixty seconds.  Huertas “stayed in a fixed position” and “answer[ed] the questions.”  When the officer got out of his car, Huertas ran away.  He was later found and arrested by other officers.

Relying on United States v. Baldwin, 496 F.3d 215, 219 (2d Cir 2007), the Circuit held that Huertas did not actually submit to police authority when he answered the officer’s questions because his actions were “evasive, …


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Categories: Fourth Amendment

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Thursday, June 15th, 2017

Judge Nathan Grants Suppression in Fraud Case

Southern District Judge Alison Nathan suppressed evidence obtained as a result of “essentially limitless” warrants that were “insufficiently particularized.”  The 92-page opinion in United States v. Wey,  15-cr-611 (AJN), can be accessed here.  Agents executing the searches collected, among other things, personal documents and materials from Wey’s home and office.  The Court found that the “catch-all” gathering of all of this material had no “linkage to the suspected criminal activity, or indeed any meaningful content-based parameter or other limiting principle” and that the Agents’ actions ran afoul of “well-established constitutional principles that provide a bulwark against the execution of general warrants.”  Recognizing that it was and “extraordinary remedy,” the Court ordered suppression of all evidence gathered from both search locations.…


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Categories: Fourth Amendment, search warrant

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Tuesday, December 6th, 2016

“Exigent Circumstances” Includes Potential Sexual Exploitation of a Minor; Allows for GPS Cellphone Tracking

On 12/1/16, the Second Circuit (Newman, Winter & Cabranes) handed down a decision finding that exigent circumstances justified the warrantless GPS tracking of a suspected sex trafficker. In United States v. Gilliam, the defendant, who was suspected of prostituting an underage girl, was located thanks to GPS coordinates on his cellphone provided to the police by Sprint. The girl had been reported missing and her involvement in prostitution was confirmed through credible sources.  During the course of the investigation, the police obtained the GPS location for the defendant’s cellphone from Sprint by informing them that there were “exigent circumstances” and a “missing child.”  GPS tracking led police to the defendant and the girl on a street in the Bronx.

The defendant challenged the use of the GPS information that lead to his location and arrest. The Second Circuit affirmed the district court’s decision that the Stored Communications Act (18 …


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Categories: Fourth Amendment, sex offenses

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Tuesday, July 19th, 2016

“Precipitous Pepper Purchase” Precludes Pot Pushers’ Partying

peppers

In today’s United States v. Compton, the Second Circuit (Walker, Raggi, Hall, C.JJ.) held a Border Patrol agent had reasonable suspicion to stop Compton and his brother, found to be transporting 145 pounds of marijuana, based on “(1) the brothers’ avoidance of [a Border Patrol] checkpoint, (2) the checkpoint’s proximity to the [Canadian] border, and (3) the brothers’ peculiar attempt to conceal the avoidance.”  The “peculiar attempt” was the brothers’ “abruptly slow[ing] down” when their SUV came within sight of the checkpoint and then “veer[ing] into the U‐shaped driveway of [a] vegetable stand” where they each bought “a pint of peppers.”

“Because [the agent] had already determined that the SUV had made the abrupt turn into the vegetable stand in order to avoid the checkpoint, [he] could reasonably interpret the pepper purchase to be an attempt to conceal that avoidance.  He could reasonably discount the probability of an alternate …


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Categories: Fourth Amendment, reasonable suspicion, terry stop

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Tuesday, June 21st, 2016

Supreme Court Again Excuses “Unconstitutional Police Conduct”

whoops

In yesterday’s Utah v. Strieff, five of the eight members of the Supreme Court held the existence of an arrest warrant for someone a police officer unlawfully stops sufficiently “attenuates” the taint of the illegal stop, at least where the stop is not “flagrantly” unconstitutional.

Based on an anonymous tip, a South Salt Lake City police detective conducted “intermittent surveillance” of a house to see if it was being used to sell drugs.  He saw people leave “a few minutes after arriving at the house,” and this “raise[d] his suspicion that the occupants were dealing drugs.”  One day he saw Strieff leave the house; he followed Strieff on foot and stopped him.  When he got Strieff’s ID card and relayed the information to a colleague, he discovered “Strieff had an outstanding arrest warrant for a traffic violation.”  The detective then arrested Strieff and searched him, finding drugs in his …


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Categories: Exclusionary Rule, Fourth Amendment

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Friday, May 27th, 2016

More Thoughts on Ganias

Today there was a big decision (both metaphorically and literally – the decision runs 104-pages) from the Second Circuit in United States v. Ganias about search warrants in an age of digital data. In Ganias, the government seized and made identical copies of three hard drives that belonged to an accountant, Stavros Ganias, pursuant to a warrant (the “2003 warrant”) in a fraud investigation. The government continued to hold the files, even after reviewing them for all relevant information contained in the 2003 warrant. In 2006, the government obtained a second warrant (the “2006 warrant”) as part of an IRS tax evasion investigation and they searched the files anew pursuant to that second warrant.

There were two questions presented:

  1. Whether the fourth amendment was violated when, pursuant to a warrant, the government seized and cloned three computer hard drives containing both responsive and non-responsive files, retained the cloned hard

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Categories: Fourth Amendment, good faith, search warrant

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Tuesday, March 29th, 2016

Woe Betide Those Who Park on the Wrong Side of the Street (and those who produce child pornography)

no-parking-sign-e1446323913593

No relevant opinions today; two summary orders.

In United States v. Grady, Syracuse police noticed that Grady’s car was parked in violation of the city’s odd/even street parking rules.  They approached the car, shone their flashlights inside and saw, in plain view, a bag of crack cocaine on Grady’s lap.  A loaded gun was also found in the car.

Assuming the officers’ approach of the car constituted a stop, the Court (Jacobs, Hall, Lynch, CJJ) held there was reasonable suspicion given the car’s being parked on the wrong side of the street.  Though a car isn’t “parked” if it’s stopped only to load or unload goods or passengers, the officers observed no such activity and the Court held they watched the car for long enough — 10 seconds — before deciding to approach.  “The officers were not required to conduct surveillance long enough to ‘rule out the possibility of …


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Categories: car stop, child pornography, expert witnesses, Fourth Amendment, reasonable suspicion, substantive reasonableness

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