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Wednesday, December 24th, 2008

Dogged Determination

United States v. Hayes, No. 07-0063-cr (2d Cir. December 24, 2008) (Miner, McLaughlin, Pooler, CJJ)

On the morning of September 3, 2002, Derrick Hayes overdosed on cocaine. After he was put in an ambulance, his girlfriend gave local police officers permission to search the house. They found evidence suggesting that Hayes was a large-scale drug trafficker, so they suspended the search and made arrangements to obtain a search warrant. One of the officers, while waiting for the warrant, released a drug-sniffing dog, “Kilo,” from the car, where it had been confined for several hours. During a Frisbee came with the officer in Hayes’ front yard, the dog alerted. The officer encouraged the dog to continue investigating, and it ran around Hayes’ house, toward the back of a detached garage. From an area of thick brush, about sixty-five feet from the house, and near the border with a neighbor’s property, the …

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Categories: curtilage, Fourth Amendment, Uncategorized

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Sunday, November 30th, 2008

Embassy Suite

In re Terrorist Bombings of U.S. Embassies in East Africa, No. 01-1535-cr (2d Cir. November 24, 2008) (Feinberg, Newman, Cabranes, CJJ)

This trio of long opinions, captioned In re Terrorist Bombings of U.S. Embassies in East Africa, resolves the appeals of the defendants convicted of the embassy bombings in Kenya and Tanzania in 1998. One opinion deals with trial and sentencing issues, the second deals specifically with Fifth Amendment claims, and the third deals specifically with Fourth Amendment claims. The convictions of all defendants were affirmed, although one defendant asked for, and received, a Fagans remand.

The Trial Opinion

This opinion covers a host of issues, some of which are surprisingly mundane and are treated rather cursorily by the court. A few, however, are more interesting and are discussed here.

1. The Capital Indictment

Defendant Al-‘Owalhi was charged with capital offenses. Although not sentenced to death, he challenged the sufficiency …

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Categories: Fifth Amendment, Fourth Amendment, terrorism, Uncategorized

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Friday, November 14th, 2008

Uninformed Consent

United States v. Lopez, No. 081269-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)

Albert Lopez violated his supervised release by failing a drug test, and marshals went to his house to arrest him. After he was cuffed, the marshals took his girlfriend upstairs to get clothes for him. Once there, they asked the girlfriend if they could search the bedroom. She gave consent and the marshals found a loaded gun under a pillow. Lopez was charged with possessing the gun, and moved to suppress arguing that the search of the bedroom was unreasonable because, although the girlfriend consented, the marshals did not seek his consent.

On appeal, the circuit disagreed. Under the relevant Supreme Court precedents, the Fourth Amendment permits searches consented to by a co-occupant. Nor did Lopez’ case present a situation like that in Georgia v. Randolph, 547 U.S. 103 (2006), which held that where one …

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Categories: consent, Fourth Amendment, Uncategorized

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Wednesday, November 12th, 2008

Driving While Incriminated

United States v. Lopez, No. 06-3730-cr (2d Cir. November 10, 2008) (Kearse, Leval, Cabranes, CJJ)

Police officers arrested Lopez for drunk driving. He has a gun in his pocket. Meanwhile, other officers, while looking for Lopez’ girlfriend’s identification, found cocaine in her purse.

Both were arrested and the car was brought to the 41st Precinct, where officers conducted an inventory search. This produced, in addition to some innocuous personal items, two glassines of cocaine in the center console, and a bag in the trunk that contained cocaine and cocaine trafficking equipment. Later, while arranging for a family member to pick up his personal belongings, an officer looked in the glove compartment of the car and found a second gun.

After a combined suppression hearing and bench trial, Lopez was convicted and received a seventy-month sentence.

On appeal, he challenged the inventory search on the grounds that it was not a …

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Categories: Fourth Amendment, inventory search, Uncategorized

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Tuesday, September 25th, 2007

SUPPRESS NOT THESE FRUITS

United States v. Acosta, Docket No. 05-1283-cr (2d Cir. September 5, 2007) (Pooler, Parker, Wesley, CJJ)

Last term, the United States Supreme Court held that the exclusionary rule does not apply to violations of the Fourth Amendment’s “knock-and-announce” rule. Hudson v. Michigan, 126 S.Ct. 2169 (2006). Here, the Circuit, unsurprisingly, holds that the same is true for violations of the knock and announce statute, 18 U.S.C. § 3109.

It is almost too sad to blog, but here, in brief, is the court’s reasoning. Both § 3109 and the Fourth Amendment’s knock-and-announce principle “share the same common law roots, overlap in scope, and protect the same interests, which necessitates similar results in terms of the exclusionary rule’s application.” Moreover, a civil remedy is available; a citizen can file a Bivens action. This, according to the Circuit, is an adequate deterrent to federal agents who might contemplate violating the knock-and-announce statute.

However …

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