This case decided the same day as Rodriguez should be now be reversed. In this cryptic opinion, a traffic stop appears to have led to the use of a drug dog for no apparent reason, and the dog alerted. No indication of why the drug dog was used, and the whole stop was 14 minutes. United States v. Anthony, 2015 U.S. App. LEXIS 6558 (11th Cir. April 21, 2015).
Two points:
First, this case is also emblematic of the total disregard of the Fourth Amendment courts give cars. And I confess to that thinking when puzzling through it as an assistant prosecutor in the 70’s. The police sure did, even then. But, a car is not a moving target subject to search on a whim, and Rodriguez makes that point for sure; finally.
Second, when the same issue is pending before SCOTUS, why do courts even bother to rule? Or are they not paying attention? They don’t always keep up with what’s pending when they have their own work to worry about. That’s a lawyers’ and judges’ problem. One problem is, however, that SCOTUS can grant cert and decide a case within the time some circuit’s briefs are filed and a case decided.
The affidavit here was short, but not “bare bones.” Also, nexus is shown because defendant left the drug deal and went home. United States v. Hooks, 2014 U.S. Dist. LEXIS 183573 (D.S.C. April 21, 2014).
2255 petitioner did not show that defense counsel was ineffective. After he pled he reviewed the discovery more, and claimed errors in the investigative file. “Lacey’s sparse factual allegations largely consist of him haphazardly pointing out various portions of Corporal Whittington’s Investigative Narrative and simply claiming ‘that’s not what happened,’ without putting forth a specific and consistent narrative to counter Corporal Whittington’s.” He doesn’t allege enough to show that there was anything close to a Fourth Amendment violation that defense counsel overlooked. Lacey v. United States, 2015 U.S. Dist. LEXIS 52240 (E.D. Ala. February 11, 2015).*
Defendant was lawfully stopped because there were warrants out for his arrest. First, the gun was seen in plain view. Second, his arrest led to an inventory of the car which produced drugs from the console. Third, the second gun was valid either by the automobile exception or inventory. United States v. Stinnett, 2015 U.S. Dist. LEXIS 52210 (W.D. Mo. January 29, 2015).*
“In this interlocutory appeal, the People seek review of the trial court’s order suppressing the results of a blood draw taken from the defendant. The trial court found that a warrant was required before the police could order a blood draw and that the police lacked exigent circumstances that would justify the involuntary, warrantless blood draw under the Fourth Amendment. The People appealed on the sole issue of whether the facts of this case constituted exigent circumstances. The supreme court holds that exigent circumstances existed where the police were still investigating the scene of the crime and were not finished preparing the affidavit for a warrant when they learned that hospital personnel were taking the unconscious and injured defendant for medical procedures that could alter his blood-alcohol content. Under the totality of the circumstances, these exigent circumstances made it impractical for the police to obtain a search warrant and justified the blood draw. Accordingly, the supreme court reverses the trial court’s suppression order and remands the matter to the trial court.” [Syllabus by the court] People v. Ackerman, 2015 CO 27, 2015 Colo. LEXIS 312 (April 20, 2015).
This case arose from a mortgage fraud indictment and trial where a combined Brady/Fourth Amendment issue arose after the trial. The government’s lead witness in procuring evidence testified after the trial that the defendant’s records were procured at the request of the government. The district court erred in denying a hearing and further discovery on whether this was truly a private search. And, as this issue develops, it could change the district court’s outcome on the Brady impeachment issue, too. United States v. Mazzarella, 2015 U.S. App. LEXIS 6448 (9th Cir. April 20, 2015):
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Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers Concerning Mail Cover Surveillance adopted at Spring Meeting, April 19, 2015:
WHEREAS, mail cover surveillance is the investigative practice of recording the information listed on the outside of mail going to or from a designated address, which has existed in the United States since the nineteenth century;
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Baltimore Sun: Baltimore judge allows police use of Stingray phone tracking in murder case by Justin Fenton:
A city judge turned back a challenge Monday to the Baltimore Police Department’s use of a controversial cellphone surveillance tool in a murder case, ruling that a suspect can’t complain about police deploying the device to find a stolen phone.
Rodriguez v. United States, 2015 U.S. LEXIS 2807 (April 21, 2015). The syllabus:
Officer Struble, a K–9 officer, stopped petitioner Rodriguez for driving on a highway shoulder, a violation of Nebraska law. After Struble attended to everything relating to the stop, including, inter alia, checking the driver’s licenses of Rodriguez and his passenger and issuing a warning for the traffic offense, he asked Rodriguez for permission to walk his dog around the vehicle. When Rodriguez refused, Struble detained him until a second officer arrived. Struble then retrieved his dog, who alerted to the presence of drugs in the vehicle. The ensuing search revealed methamphetamine. Seven or eight minutes elapsed from the time Struble issued the written warning until the dog alerted.
Rodriguez was indicted on federal drug charges. He moved to suppress the evidence seized from the vehicle on the ground, among others, that Struble had prolonged the traffic stop without reasonable suspicion in order to conduct the dog sniff. The Magistrate Judge recommended denial of the motion. He found no reasonable suspicion supporting detention once Struble issued the written warning. Under Eighth Circuit precedent, however, he concluded that prolonging the stop by “seven to eight minutes” for the dog sniff was only a de minimis intrusion on Rodriguez’s Fourth Amendment rights and was for that reason permissible. The District Court then denied the motion to suppress. Rodriguez entered a conditional guilty plea and was sentenced to five years in prison. The Eighth Circuit affirmed. Noting that the seven or eight minute delay was an acceptable “de minimis intrusion on Rodriguez’s personal liberty,” the court declined to reach the question whether Struble had reasonable suspicion to continue Rodriguez’s detention after issuing the written warning.
Held:
1. Absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures. A routine traffic stop is more like a brief stop under Terry v. Ohio, 392 U.S. 1, than an arrest, see, e.g., Arizona v. Johnson, 555 U.S. 323, 330. Its tolerable duration is determined by the seizure’s “mission,” which is to address the traffic violation that warranted the stop, Illinois v. Caballes, 543 U.S. 405, 407 and attend to related safety concerns. Authority for the seizure ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. The Fourth Amendment may tolerate certain unrelated investigations that do not lengthen the roadside detention, Johnson, 555 U.S., at 327–328 (questioning); Caballes, 543 U.S., at 406, 408 (dog sniff), but a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a warning ticket, id., at 407. Beyond determining whether to issue a traffic ticket, an officer’s mission during a traffic stop typically includes checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly. See Delaware v. Prouse, 440 U.S. 648, 658–659. Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.
In concluding that the de minimis intrusion here could be offset by the Government’s interest in stopping the flow of illegal drugs, the Eighth Circuit relied on Pennsylvania v. Mimms, 434 U.S. 106. The Court reasoned in Mimms that the government’s “legitimate and weighty” interest in officer safety outweighed the “de minimis” additional intrusion of requiring a driver, lawfully stopped, to exit a vehicle, id., at 110–111. The officer-safety interest recognized in Mimms, however, stemmed from the danger to the officer associated with the traffic stop itself. On-scene investigation into other crimes, in contrast, detours from the officer’s traffic-control mission and therefore gains no support from Mimms.
The Government’s argument that an officer who completes all traffic-related tasks expeditiously should earn extra time to pursue an unrelated criminal investigation is unpersuasive, for a traffic stop “prolonged beyond” the time in fact needed for the officer to complete his traffic-based inquiries is “unlawful,” Caballes, 543 U.S., at 407. The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop. Pp. 5–8.
2. The determination adopted by the District Court that detention for the dog sniff was not independently supported by individualized suspicion was not reviewed by the Eighth Circuit. That question therefore remains open for consideration on remand. P. 9.
741 F. 3d 905, vacated and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. KENNEDY, J., filed a dissenting opinion. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined, and in which KENNEDY, J., joined as to all but Part III. ALITO, J., filed a dissenting opinion.
This was the law in my circuit too long. The standard order to “run the dog” is void.
And, at least in the Eighth Circuit, the law was so well settled, that all these dog sniffs prior to today are going to be potentially valid under Davis good faith. Not that I like it, but that’s going to be the AUSA’s argument.
NYTimes: Report Seeks Overhaul of Postal Service Surveillance Program by Ron Nixon:
U.S. Postal Service Logging All Mail for Law Enforcement
WASHINGTON — A Postal Service surveillance program that records the information on the outside of letters and packages delivered to people suspected of criminal activity should be overhauled because of a lack of oversight, according to a report by a national defense lawyers’ group.
An audit by the service’s inspector general last year found that about 20 percent of the orders for surveillance under the program, known as mail covers, were improperly approved. The New York Times reported on abuses in the program, including a case in which law enforcement officials in Arizona used it to investigate a political opponent.
Police Technical: Acquiring Android Data Using JTAG (whitepaper)
Detective Robert Craig covers how to retreive data from an Android device using the Joint Test Access Group (JTAG).
New Americcan: Paul Calls on GOP to Defend the “Whole Bill of Rights” by Jack Kenny:
Rand Paul called on his fellow Republicans Saturday to defend the “whole Bill of Rights,” not just the Second Amendment right “to keep and bear arms.” Speaking as one of 20 Republican presidential possibilities at a gathering in Nashua, New Hampshire, the Kentucky senator, who announced his candidacy for president on April 7, said defending constitutional liberties is good politics as well as good government.
The Fourth Amendment was sacrificed first with Prohibition, then the War on Drugs, then the Patriot Act, and both parties were complicit. Now, 45 years into the War on Drugs and 13½ years after the Patriot Act, one lone politician asks for the entire Bill of Rights to be recognized? Remembered? Protecting the Constitution is not a GOP value. The Arkansas legislature proved that this year because they adopted at least a dozen unconstitutional bills because catering to its base for immediate benefit is more important than the long view of life in America. Unless it’s “life in America, but only as we envision it.”
And will the Patriot Act be renewed June 1st? Almost certainly, unless a bunch of Congressmen and women suddenly find they still have backbones. You know, the one they yanked out to get elected in the first place?
Racial profiling as a reason for a knock-and-talk was rejected on the facts, but the court concedes that it could happen in some case with egregious facts. United States v. Horne, 2015 U.S. Dist. LEXIS 50981 (M.D. Fla. April 17, 2015):
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Defendant’s stop for having an invalid temporary tag led to his window being rolled down and the officer smelling marijuana. The fact it was in a small plastic bag wasn’t proof that the officer didn’t smell it. A gun was seen in the car during the stop. United States v. Hudson, 2015 U.S. Dist. LEXIS 50200 (W.D. Mo. March 16, 2015).*
Defendant was involved in a robbery, and search warrants were issued for two residences, neither of which was his. The government pled a lack of standing, but the parties didn’t really litigate it. Assuming defendant had standing, he loses on the probable cause for issuance of the search warrants. United States v. Johnson, 2015 U.S. Dist. LEXIS 50223 (D.Minn. March 13, 2015).*
The affidavit for the search warrant for defendant’s computer based on P2P downloads showed probable cause, and the affidavit for the warrant was not misleading. United States v. Burns, 2015 U.S. Dist. LEXIS 50220 (D.Minn. March 10, 2015).*
The court accepts as true the trooper’s testimony that he could smell marijuana coming from the car despite the defendant’s contention that it was less than an ounce. United States v. Pierre, 2015 DNH 083, 2015 U.S. Dist. LEXIS 50724 (D.N.H. April 17, 2015).*
The search of defendant’s car was with probable cause to believe a small quantity of drugs and a needle would be found. State v. Overman, 2015 Kan. LEXIS 227 (April 17, 2015).*
NYTimes: Police Unions, Facing Public Anger, Rethink How to Address Shootings by Al Baker:
Amid nationwide outrage over a police officer’s shooting eight bullets at the back of an unarmed, fleeing suspect in South Carolina, the statement by the local police union had a half-sentence of regret and contrition: Yes, it said, the fatal shooting was “beyond comprehension.”
But the rest of the seven-paragraph statement by John C. Blackmon, the president of Tri-County Fraternal Order of Police Lodge No. 3 in South Carolina, was more about lashing out at the “untruths” of critics and defending the police than reflecting on the shots fired by Michael T. Slager, the North Charleston police officer who killed Walter L. Scott.
American Thinker: Liberty receding in the wake of non-judicial government search and seizure by Mark J. Fitzgibbons:
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In a fraud case, probable cause was shown to search a cell phone for both evidence of the fraud and text messages where the co-conspirators were communicating with each other. Nexus was shown because defendant was using his cell phone just before he was arrested. As with computers, there was no way in advance of the search the officers could know the forms of the information. “At the time of the seizure, however, the officers could not have known where this information was located in the phone or in what format. Thus, the broad scope of the warrant was reasonable under the circumstances at that time. See id. at 541 (quoting United states v. Meek, 366 F.3d 705, 716 (9th Cir. 2004) (‘The proper metric of sufficient specificity is whether it was reasonable to provide a more specific description of the items at that juncture of the investigation.’)).” United States v. Bass, 2015 U.S. App. LEXIS 6383 (6th Cir. April 15, 2015) (later ordered published).
In a “tragic” case of a young woman dying from lock of oxygen to the brain from an asthma attack, police responded to a 911 call of a “woman screaming” and didn’t know what they had. When they arrived, the screaming woman didn’t say what the emergency was, and “Vargas testified that, as Diaz was trying to explain their medical emergency, the officer walked in front of Diaz’s car to the driver’s side and said, ‘get the f*** out of the car, turn off the engine now.’” By the time the officer figured out what they had, the ambulance was near and had them wait. The young woman, however, was shortly brain dead at the hospital and was taken off life support and died days later. Without having to decide the difficult question of whether a seizure occurred, the direction to wait for an ambulance was reasonable because it was so close. Thus, the officers have qualified immunity. Vargas v. City of Philadelphia, 2015 U.S. App. LEXIS 6331 (3d Cir. April 17, 2015):
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Thirteen police came to defendant’s house, and four came on the porch for a knock-and-talk. His wife answered and opened the door three feet. She stepped back and officers entered to conduct a protective sweep. After explaining the reasonable suspicion necessity for a protective sweep, the court finds the sweep valid without identifying any facts that support reasonable suspicion. However, since nothing was found, the question is moot. She then was found to have consented to a search, despite her testifying she was scared by all the officers. United States v. Davila, 2015 U.S. Dist. LEXIS 50943 (E.D. Tex. February 13, 2015)*:
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