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Sunday, July 10th, 2011

Summers-Time Blues

United States v. Bailey, No. 07-3819-cr (2d Cir. July 6, 2011) (Cabranes, Pooler, Raggi, CJJ)

In Michigan v Summers, 452 U.S. 602 (1981), the Supreme Court held that the Fourth Amendment permitted police officers to detain the occupant of a premises during the execution of a search warrant, without need for individualized suspicion of the person detained. Here, the circuit, joining an issue in which the courts are divided, held that Summers also permits detaining the occupants after they have left the premises.

Background

In July of 2005, Suffolk County detectives obtained a search warrant for a basement apartment in Wyandanch, based on an informant’s tip that there was a gun there. When they arrived at the location to execute the warrant, they saw Bailey and an associate exiting the apartment. They drove off and the officers followed; about a mile from the apartment, the officers stopped Bailey’s car.

The …

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Categories: detention, Fourth Amendment, search warrant, Uncategorized

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Sunday, January 2nd, 2011

PATRIOT Games

United States v. Abu-Jihaad, No. 09-1375-cr (2d Cir. December 20, 2010) (Raggi, Hall, Chin, CJJ)

Defendant Hassan Abu-Jihaad, whose birth name was Paul R. Hall, was convicted of communicating national defense information about the movement of a Navy battlegroup to unauthorized persons. On appeal, his primary challenge was to the use of evidence that the government obtained pursuant to the Foreign Intelligence Surveillance Act (“FISA”). The circuit affirmed.

Background

Despite changing his last name from “Hall” to “Abu-Jihaad,” which, according to the court, means “Father of Jihad,” the defendant enlisted in the Navy in January of 1998 without any trouble. For the next four years he was cleared to receive classified national defense information. But a chain of circumstantial evidence revealed that, in 2001, he passed classified information about the movement of Navy ships headed for the Persian Gulf to other jihad supporters.

The investigation of Abu-Jihaad began after the …

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Categories: FISA, Fourth Amendment, Uncategorized

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Saturday, June 19th, 2010

Julius’ Seizure

United States v. Julius, No. 08-4267-cr (2d Cir. June 11, 2010) (Pooler, Hall, CJJ, Sweet, DJ)

Here, the district court granted the defendant’s motion to suppress a gun seized during Julius’ arrest on a parole violation. on the government’s appeal, the circuit remanded for reconsideration in light of Herring v. United States, 129 S.Ct. 695 (2009).

In 2007, Julius violated the conditions of a term of special parole imposed after a state court conviction in Connecticut. He had failed to attend court-mandated counseling sessions and had changed his residence but refused to disclose his new address to his parole officer.

The officer finally found Julius at his girlfriend’s house, where the officer, accompanied by another parole officer and a deputy marshal found him lying on a bed in a back bedroom. They arrested him without incident. As an officer removed him from the room, in handcuffs, the marshal searched the …

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Categories: Exclusionary Rule, Fourth Amendment, Uncategorized

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Saturday, March 13th, 2010

Trailer Trashed

United States v. Navas, No. 09-1144-cr (2d Cir. March 8, 2010) (Leval, Wesley, CJJ, Gleeson, DJ)

In connection with a narcotics investigation, DEA agents watched the defendants unload a tractor-trailer at the Hunts Point Market. The defendants then drove it to a private warehouse, where they parked it, unhitched the cab, and lowered the legs in front of the trailer to stabilize it.

After further surveillance, the agents arrested the defendants, one of whom admitted that drugs were hidden in a rooftop compartment of the trailer. After receiving verbal consent to search the warehouse and its contents, but with no search warrant, the agents ripped open the roof of the trailer and discovered 230 kilograms of cocaine.

The district court suppressed the cocaine. It rejected the argument that the verbal consent to a general search of the warehouse extended to a physically invasive search of the trailer. The court also …

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Categories: automobile exception, Fourth Amendment, Uncategorized

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Sunday, May 3rd, 2009

If You Love Her, Let Her Go

United States v. McGee, No. 07-4509-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Livingston, CJJ)

A Rochester police officer responded to 911 call at defendant McGee’s home. When the officer arrived, he saw McGee running away through the backyard. McGee’s girlfriend was outside the house. She told the officer that she lived there with McGee, but was trying to move out. She had packed her bags and put them on the front porch, but McGee, to prevent her from leaving, had grabbed her bags, put them back inside, locked the door and taken away her keys. She asked the officer to break down the door so she could retrieve her belongings. He refused, but once she proved she really lived there, he let her break in herself.

The officer then accompanied her while she collected belongings. When she observed that McGee stored guns in the front closet, the officer asked for …

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Categories: consent, Fourth Amendment, Uncategorized

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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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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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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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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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