Articles Posted in Fourth Amendment

Swear to God, same thing happened to me!  Go to a party on a Saturday night, cops bust in,  homeowner claims to “know nothing”, everybody gets busted and goes down to the police station.  Officers make arrests for trespassing, since the homeowner dummies up.  That is basically the fact pattern from District of Columbia v. Westby, to be argued in the Supreme Court soon.  However, there is no crime of “trespassing” if there is nothing to suggest that that the partygoers knew or should have known that they were entering against the owner’s will.  The arrested folks brought a lawsuit against the arresting officers for false arrest, they won a judgment, and the DC police brought the case to the Supreme Court, arguing that its officers had probable cause under the Fourth Amendment to make the arrests.

Westby is a bit more interesting, and salacious, than my aborted party that one Saturday eons ago.  First, there was someone named either “Peaches” or “Tasty” identified by some of the partiers as the person who told them about the shindig.  Also, when the cops arrived, some of the women were selling lap dances, some had money hanging out from their undergarments, and most shockingly, the officers smelled marijuana.   Continue Reading

OK, those unfortunate souls who occasionally read this blog know that I like to go on about the intersection of the 18th Century language in our Bill of Rights (which includes such tremendous ideas like religious liberty, freedom of expression, the right to not incriminate oneself and the right to be free from unreasonable searches), with the world of smartphones, digital communications, and mountains of data for each person and incident that happens to be captured by some device or trove of information.  We all know the the “Framers” or our Constitution had no way of predicting what the world would look like in 2017, but it is fascinating that we try to match their expectations up with modern existence.

Carpenter v. United States is the latest case involving this confluence of our rights and the Digital Age. Mr. Carpenter was indicted for being involved with a series of armed robberies. One of his buddies gave the police a series of phone numbers that Carpenter had used.  The police then went to the cell phone providers, seeking lots of different kinds of information that can be dredged up involving how a device was used, where it was located, and other data that essentially provides a road map to the device-user’s life.  But, here’s why the case is in the Supreme Court:  the police did not get a search warrant from a judge, but instead they resorted to a federal law called the Stored Communications Act (the “SCA”), a 1986 law that allows phone companies to disclose records when the government provides them with “specific and articulable facts showing that there are reasonable grounds to believe” that records at issue “are relevant and material to an ongoing criminal investigation”. Under the SCA, a prosecutor can get around the need to show that there is probable cause to believe that a crime has been committed.  More and more every year, we see cases where the police regularly avoid search warrants, and instead get mountains of data from cell phone providers under the more lenient SCA. As a matter of fact, my law partner Carl and I did a case very similar to what happened in Carpenter, cell phone data obtained under the SCA that was going to be used against our client. Continue Reading

Here in Atlanta and the rest of Georgia we have a law that prohibits texting and driving.  This law says that a driver cannot operate his or her motor vehicle “…while engaging in a wireless communication using a wireless telecommunications device.”  To “engage in a wireless communication” means “talking, writing, sending, or reading a text-based communication, or listening on a wireless telecommunications device. ”  Indiana has a similar law, a statute that allows talking on a cell phone but which prohibits texting.  Many years ago, the United States Supreme Court said that if a police officer has probable cause to believe that a driver has violated any law while driving the officer can stop the motorist.  In many of our federal criminal cases, these traffic violations leads to a search of the vehicle, and some unfortunate motorists end up in jail when the policeman or woman finds drugs, illegal weapons and the like.

When I first heard about these anti-texting laws in Georgia, they made a lot of sense, especially since my then teenagers were just learning to drive when the law went into effect in 2008.  However, I wondered, how can an officer know if the motorist whose head is pointed down toward a cellphone is “engaging in a wireless communication” as opposed to looking at photos or his calendar?  The difference can be huge, especially if the reason the officer stopped the vehicle is for an alleged violation of the no-texting law, and the officer subsequently finds contraband.

It turns out I was not the only person pondering whether a traffic stop in this context would be legal.  In the case of United States v. Paniagua-Garciathe Defendant was prosecuted for a large quantity of heroin located after his vehicle was stopped and searched.  However, here is why he was stopped:

Federal criminal cases are no different than cases brought in state courts such as Georgia, Florida or Alabama. The explosion of technology requires courts to balance the needs of law enforcement with the protections for individual liberty enshrined in our Constitution. Sometimes, when the suspect is investigated for a “bad” crime like targeting minors for sex, the courts simply ignore that the protections for individual liberty apply to everybody equally. In an opinion issued today by the United States Court of Appeals here in Atlanta several blocks from our offices, that court permitted the search of a cellphone that had no connection to the alleged crime from seven years earlier. The case is U.S. v. Mathis and can be read here.

In 2004, the Defendant supposedly got a then 14-year old to have sex. Remember, this was 2004, a veritable lifetime ago in the world of cellphones and communication technology. Seven long years later, the young person was by then 21, and decided to tell the police about his encounter with the Defendant back in 2004. The young person said that back in 2004 he and the Defendant had phone calls and exchanged text messages using the Defendant’s phone. Now, here’s the important part: the police knew that the Defendant, like just about everybody else, had changed cellphones in the intervening seven years.
Continue Reading

I previously posted here about a case in front of the United States Supreme Court that deals with how far does the rule from Georgia v. Randolph extend. Recall that in Randolph, the Supreme Court confronted the question of what happens when one resident of a home (there it was the wife) tells the police it’s OK to search the house even if they don’t have a warrant, yet the other occupant (the husband) refuses to consent to a search. In that earlier case from right here in Georgia, the Supreme Court said it is not reasonable for the police to think they have the right to enter a home and search without a warrant if one of the occupants is right there on the scene and objects to the search. Two days ago, the Supreme Court issued its ruling in Fernandez v. California, which restricted this rule a bit. You can read the opinion here.

The facts in Fernandez are a little different than the case from Georgia. Mr. Fernandez shared his apartment with his wife. When the police came to the door, he refused them the right to enter, although she said it was OK. The police arrested Fernandez for other reasons, and later returned after he was in custody and asks his wife again if they could look in the apartment. She again consented, and they entered, searched, and found incriminating evidence.
Continue Reading

Casual readers know that we try to keep abreast of federal criminal cases, including appeals of criminal convictions involving decisions where the issue revolves around whether a particular search or seizure of evidence falls within the Fourth Amendment. As many of us know, if evidence is seized in violation of the Constitution’s Fourth Amendment, such evidence generally is inadmissible and cannot be used against the accused person (assuming that the Defendant in question has “standing” to contest the search). A pair of recent cases from the United States Court of Appeals for the Eleventh Circuit reached opposite conclusions on this issue. In one case, the appellate court ruled that the police violated the Constitution when they entered an apartment without a warrant. In the second case, the police installed GPS monitors on the Defendant’s vehicle without getting a warrant. In that case, the Eleventh Circuit ruled that earlier decisions from decades ago made it reasonable for the police to think they would be acting in “good faith” by installing the monitors, even if later Supreme Court rulings reached a different conclusion.

In the first case, one of Ronald Timmann’s neighbors noticed a bullet hole in her apartment wall, and the hole indicated that it was caused by a weapon that likely was discharged from inside Timman’s adjacent apartment. After the police were unsuccessful in trying to locate and talk with Timman, they decided about 39 hours later to enter his apartment. Inside they found weapons that were used to prosecute him for criminal violations. His attorneys argued that the warrantless entry into the apartment was illegal. Prosecutors pointed to the “emergency aid” exception, by which in certain situations the police are allowed to enter locations without a warrant in order to assist a person who might be in danger. Here, the appellate court decided that the situation the officers confronted wasn’t an urgent emergency. “The officers here did not receive an emergency report regarding an ongoing disturbance, but rather a service call regarding what appeared to be a bullet hole, which circumstances known to the officers indicated had been made at least 39 hours prior to when the officers made entry.” The first office on the scene “…did not encounter a tumultuous scene, nor were the officers met with chaos when they returned to the building the next day. The officers observed no violent behavior, nor did they see or hear evidence that a fight had taken place or that anyone had been hurt…” As a result, the Court held that the entry and discovery of the guns and certain statements made by Timman could not be used against him.
Continue Reading

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

The police suspected Walter Fernandez of being involved in a stabbing. They went to his building and heard screaming from in and near his apartment. His girlfriend answered the door, and appeared to be bloody and bruised. Mr. Fernandez, who was inside, told the police “Get out. I know my rights. You can’t come in.” Despite not being allowed to enter, the cops took Fernandez into custody on suspicion of domestic violence . About an hour later, the police returned and obtained the girlfriend’s consent to search the apartment. You guessed it, they found evidence used to later convict Fernanzed of the stabbing crime.
Continue Reading

In a case that criminal defense lawyers here in Atlanta and around the country need to all read, yesterday the United States Supreme Court ruled that the police can take DNA samples from people who are merely arrested for serious crimes, and that the Fourth Amendment to the United States Constitution does not prohibit this practice. The decision can be found here. I predicted in a previous post that this would be a close decision, and it was: 5-4. One major surprise was that Justice Breyer, normally a friend of personal liberties, sided with the majority in ruling that warrantless extraction of DNA samples passes constitutional scrutiny. The dissent was sort of “Nino and the Ladies”, with Justice Antonin Scalia being joined by the three female Justices, Sotomayor, Ginsberg and Kagan.

Recall that this case involved Alonzo King, who was arrested in Maryland for menacing a crowd with a gun. Under Maryland law, the police extracted a DNA swab which was later sent to and made a part of a national database. Sometime later still, King’s DNA was matched to a rape investigation from six years earlier. The Maryland Supreme Court threw out King’s conviction because the DNA was extracted without a warrant nor was there any individualized suspicion that justified taking the DNA sample. On Monday, the U.S. Supreme Court reversed the Maryland judges, and instead compared the process of taking DNA with other activities during the criminal booking process such as photographing and fingerprinting suspects when they are booked.
Continue Reading

Criminal defense lawyers here in Atlanta, throughout Georgia and the rest of the Nation, whether in federal court or state court, all need to be aware of developments in the law, especially such hot topic areas like search and seizure. Many attorneys are able to either win, or at least put their client’s case in a better posture, by pointing out that the investigating officials either did or came close to going over the Constitutional line when obtaining incriminating evidence. I’ve written in earlier posts about how more and more courts are grappling with search and seizure rules when applying modern technology to the Fourth Amendment, the rule created by the Founders of our country in the 18th century.

Another of these rulings came out the other day, and was issued by the United States Court of Appeals for the First Circuit. That case held that when the police arrest a person, they generally cannot look through the person’s cell phone unless they first get a warrant. The First Circuit case applies to federal criminal matters that arise in Maine, New Hampshire, Massachusetts and Puerto Rico. An earlier ruling by the Seventh Circuit (which is governing authority in federal cases in Illinois, indiana and Wisconsin) came to a different result, holding that no warrant is needed. Look to see this issue going up the the United States Supreme Court at some point in the not too distant future.
Continue Reading

We occasionally handle cases in Florida, and since I am also licensed in the Sunshine State we pay attention to legal issues happening there. As readers of this Blog realize, I have a fascination with how the law is developing in the intersection between modern technology and the Eighteenth Century rules enshrined in our Fourth Amendment, and have written on such issues, such as in this post. Two weeks ago me and my law partner Carl had a big oral argument in front of a federal judge concerning such issues, so this area of the law is on my mind currently.

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