Wake Forest Law Review
21Sep

Community Caretaking Function: A Doctrinal Overview

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By: Nick Christopherson

On August 30, 2019, twenty-three year old Elijah McClain died[1] from injuries sustained during a police welfare check.[2]  On the night of the encounter, police responded to a report of a man (McClain) who “look[ed] sketchy,” and after perceiving McClain to be resisting arrest, the officers quickly initiated a takedown.[3] An independent report of the incident stated that it was unclear whether “McClain’s movements, interpreted by the officers as resisting, were attempts to escape or simply an effort . . . to avoid the painful force being applied on him, to improve his breathing, or to accommodate his vomiting.”[4] Paramedics later injected McClain with a sedative, the misapplication of which caused McClain to suffer a heart attack and die several days later.[5]

Police departments dispatch thousands of welfare checks per year in response to a variety of requests submitted by the community.[6] These calls are unpredictable and require talented and flexible responses. Some callers report that their neighbor’s home is being burgled,[7] others worry about unresponsive grandparents,[8] others call to report “sketchy” or sick-looking individuals in the community.[9] For this reason, courts have described police officers as “a ‘jack-of-all emergencies,’” who are “expected to aid those in distress, combat actual hazards, prevent potential hazards from materializing, and provide an infinite variety of services to preserve and protect community safety.”[10] Courts describe this police function as “community caretaking.”[11]

When an officer acts “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute,” she acts in her capacity as a community caretaker.[12] However, the doctrine of community caretaking also acts as an umbrella term that covers other exceptions to the Fourth Amendment’s protections against unreasonable searches and seizures. For instance, the doctrines of exigent circumstances,[13] emergency aid,[14] public servant,[15] and warrantless entry[16] all fall under the community caretaking doctrine and are often analyzed simultaneously by courts.

Nevertheless, in rare instances, the community caretaking doctrine is applied by itself—unaccompanied by other exceptions—to justify instances of abusive discretion. For example, in Tinius v. Carrol Cnty. Sheriff Dept.,[17] officers observed a man, named Tinius, walking along the highway in the middle of winter without a coat.[18] After suspecting Tinius was on drugs, the officers cuffed Tinius and took him to the hospital, where medical staff recommended admitting Tinius to the hospital’s psychiatric facility.[19] Admission required a urine sample, which the officers obtained through a physically forced catheterization.[20] Tinius was never suspected of any crimes, nor did he give his consent to the detainment and forced catheterization.[21]

On appeal, the court stated that the officers “were exercising their community caretaking functions when they transported Tinius to the hospital and later restrained him” while obtaining the urine sample, and that the officers’ actions did not create the basis for a tort claim.[22] Courts have justified other tortious conduct by officers under similar reasoning. For example, a man crying on the sidewalk ended in a physical encounter with police during which the man sustained serious injuries.[23]

The topic of police accountability has dominated recent news cycles, and a legal doctrine that enables officers to initiate stops, obtain evidence, and utilize force without a warrant and probable cause is dangerous. All Tinius did to suffer detention and forced catheterization was walk along the side of the road without a coat during the winter. Currently under the community caretaking doctrine, courts allow intrusive police conduct meant to protect citizens from potential self-harm. But is this right?

In response to this question, the Supreme Court recently limited the scope of the community caretaking doctrine in Caniglia v. Strom.[24] There, the Supreme Court stated that officers’ “caretaking duties” do not create “a standalone doctrine that justifies warrantless searches and seizures in the home.”[25] The Court reasoned that officer conduct must satisfy one of the four exceptions to the Fourth Amendment’s prohibition of unreasonable searches—(1) possessing a valid warrant, (2) entering amidst exigent circumstances, (3) rendering emergency aid to injured or imminently threatened individuals, and (4) acting as any normal citizen might act (ex., knocking on door)—but that the community caretaking doctrine by itself is insufficient to justify otherwise unexcused tortious conduct by an officer in a private home.[26]

Caniglia’s holding aims to limit the abusive nature of the community caretaking doctrine by preventing its application to home entry.[27] However, the effects of Caniglia are still uncertain, and the doctrines application to tortious police conduct outside the home remains unresolved.  Given the state of unrest in America today and the Supreme Court’s recent interest in this topic, it is likely these ambiguities will be fleshed out in coming jurisprudence.[28]

[1] Claire Lampen, What We Know About the Killing of Elijah McClain, The Cut, https://www.thecut.com/2021/09/the-killing-of-elijah-mcclain-everything-we-know.html (last updated Sept. 1, 2021).

[2] Welfare checks, also called wellness checks, occur when police dispatch to determine if an individual is safe and healthy. While the term encompasses police responses to a variety of non-criminal activity, one example might be a family member calling to request an officer check on an elderly relative whom the caller suspects is ill, fallen, or even dead in their home, However, sometimes police initiate their own checks on individuals they feel are sick, mentally ill, or pose a danger to themselves or the community. See generally State v. Brumelow 289 So.3d 955, 956 (Fla. Dist. Ct. App. 2019).

[3] Lampen, supra note 1.

[4] Jonathan Smith et al., City of Aurora, Investigation Report and Recommendations 18 (Feb. 22, 2021), https://p1cdn4static.civiclive.com/UserFiles/Servers/Server_1881137/File/News%20Items/Investigation%20Report%20and%20Recommendations%20(FINAL).pdf.

[5] Id. at 10.

[6] Andrea L. Steffan, Law Enforcement Welfare Checks and the Community Caretaking Exception, 53 Loy. L.A. L. Rev. 1071, 1072 (2020) (“[A]t least one suburban police department made around 2,000 welfare checks in 2017.”)

[7] See, e.g., State v. Alexander, 124 Md.App. 258 (1998) (involving neighbors who called police suspecting their neighbor’s house had been burgled and officers entered home and discovered a large marijuana growing operation).

[8] See, e.g., Craig v. County of Santa Clara, No. 17-CV-02115-LHK, 2018 WL 3777363, at *1 (N.D. Cal. Aug. 9, 2018) (Involving officers checking on an unresponsive grandmother with welfare check resulting in grandfather being shot and killed by police).

[9] See, e.g., United States v. Garner, 416 F.3d 1208 (10th Cir. 2005) (involving reports of a man who had been sitting slumped over in a field outside an apartment complex for hours and police later tackled and arrested after he attempted to flee officer’s detainment.).

[10] United States v. Rodriguez-Morales, 929 F.2d 780, 784 (1st Cir. 1991).

[11] Id.

[12] Cady v. Dobrowski, 413 U.S. 433, 441 (1973).

[13] See United States v. Rohrig, 98 F3d 1506 (6th Cir. 1996) (holding that loud music created exigent circumstances that justified warrantless entry into home).

[14] See Randall v. State, 101 N.E.3d 831 (Ind. App. 2018) (holding that man slumped over in his car created the need for emergency aid from officer).

[15] See Wilson v. State, 975 A.2d 877, 888 (2009) (“When the police act to protect the public in a manner outside their normal law enforcement function, many courts have applied the [public servant] doctrine to validate many warrantless searches.”).

[16] Id.  See also United States v. Jackson, 189 F.3d 502 (1999); Ermini v. Scott, 249 F.Supp.3d 1253 (2017); State v. Deneui, 775 N.W.2d 221 (S.D. 2009); State v. Pinkard, 785 N.W.2d 592 (Wis. 2010); United States v. Johnson, 410 F.3d 137, (4th Cir. 2005); United States v. Gwinn, 219 F.3d 326 (4th Cir. 2000). The vast majority of community caretaking cases involve warrantless searches, seizures, and entries.

[17] 321 F. Supp. 2d (N.D. Iowa 2004).

[18] Id. at 1069.

[19] Id.

[20] Id. at 1070.

[21] Id. at 1068–1070.

[22] Id. at 1084.

[23] Gallegos v. City of Colo. Springs, 114 F.3d 1024 (10th Cir. 1997).

[24] 141 S. Ct. 1596 (2021).

[25] Id. at 1598.

[26] Id.

[27] Id.

[28] For further reading on the community caretaking doctrine, see Matthew C. Shapiro, The Road to Fourth Amendment Erosion Is Paved with Good Intentions: Examining Why Florida Should Limit the Community Caretaker Exception, 6 FIU L. Rev. 351 (2011); David Fox, The Community Caretaking Exception: How the Courts Can Allow the Police to Keep Us Safe Without Opening the Floodgates to Abuse, 63 Wayne L. Rev. 407 (2018); Valerie Moss, The Community Caretaking Doctrine: The Necessary Expansion of the New Fourth Amendment Exception, 85 Miss. L.J. (2017); Mark Goreczny, Taking Care While Doing Right by the Fourth Amendment: A Pragmatic Approach to the Community Caretaker Exception, 14 Cardozo Pub. L. Pol’y & Ethics J. 229 (2015); Alyssa L. Lazar, Protecting Individuals’ Fourth Amendment Rights Against Government Usurpation: Resolutions to the Problematic and Redundant Community Caretaking Doctrine, 57 Duq. L. Rev. 198 (2019); Debra Livingston, Police, Community Caretaking, and the Fourth Amendment, 1998 U. Chi. Legal F. 261 (1998); Michael R. Dimino, Sr., Police Paternalism: Community Caretaking, Assistance Searches, and Fourth Amendment Reasonableness, 66 Wash. & Lee L. Rev. 1485 (2009); Andrea L. Steffan, Law Enforcement Welfare Checks and the Community Caretaking Exception to the Fourth Amendment Warrant Requirement, 53 Loy. L.A. L. Rev. 1071 (2020).

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22Feb

Weekly Roundup – 2/18-2/22

Categories: 4th Cir. Blog Weekly Roundup
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By Ryan C Dibilio and Robert M. Padget III

Hannah P. v. Daniel Coats

In this case, Appellant Hannah P. (“Hannah”) asserted that her former employer, the Office of the Director of National Intelligence (“Appellee”), discriminated against her pursuant to the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701, et seq., and violated the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et. seq., by not hiring her for a permanent position.  The district court granted summary judgment for Appellee as to all claims.  The Fourth Circuit affirmed the district court’s judgment as to the Rehabilitation Act and FMLA retaliation claims; however, the Fourth Circuit vacated the judgment as to Hannah’s FMLA interference claim.  The Court determined a genuine issue of material fact remains as to whether Hannah provided notice of her disability and interest in FMLA leave sufficient to trigger Appellee’s duty to inquire.  The Fourth Circuit held that a reasonable jury could find that Hannah’s disclosure of her depression and her April 9, 2015 request for psychiatrist-recommended leave was indeed sufficient to trigger Appellee’s duty to inquire further as to whether she was seeking FMLA leave.  Disclosure of a potentially FMLA-qualifying circumstance, such as depression, and an inquiry into leave options has been held by the Fourth Circuit as sufficient to create a material question of fact regarded whether the employer’s FMLA inquiry obligations have been triggered.  Thus, the case was remanded for consideration of Hannah’s FMLA interference claim.

United States v. Gregory Kyle Seerden

In January 2017, George Kyle Seeden (“Appellant”) was accused of sexual assault on a woman he met in Virginia Beach, Virginia, while visiting for training.  Subsequently, the Naval Criminal Investigation Service (“NCIS”) obtained a military search warrant and found child pornography on Appellant’s phone.  NCIS used this to obtain a federal search warrant and discovered more child pornography.  Appellant sought to suppress the evidence because it violated the Military Rules of Evidence and because it was fruit of the poisonous tree.  While the district court agreed the evidence violated the Military Rules of Evidence “authorization” requirement in Rule 315, the Court admitted the child pornography found in the second search under the good faith exception.  Appellant entered a conditional guilty plea in violation of 18 U.S.C. §§ 2251(a) and (e), production of child pornography.  He then appealed.  The Fourth Circuit reviews a district court’s decision to deny a motion to suppress under two standards of review: (1) findings of fact are reviewed for clear error; and (2) legal conclusions are reviewed de novo.  The Court held that the evidence should not be suppressed under the Military Rules of Evidence because the Federal Rules of Evidence govern admissibility in federal criminal proceedings.  The Court stated, “just as states ‘lack the power to impose on federal courts requirements stricter than those mandated by the federal Constitution . . . so too does the military.’”  Consequently, the Fourth Amendment provides the standard for whether evidence seized pursuant to a non-federal warrant is admissible in federal court.  Further, even if the initial search violated the Fourth Amendment, the good faith exception to the exclusionary rule precludes the evidence obtained in the first and second searches.  The good faith exception admits evidence obtained in unlawful searches on reasonable reliance on a defective warrant.  As Appellant’s commanding officers authorized the search of his phone believing it to be a valid authorization, the good faith exception applies and the evidence is admissible.  For these reasons, the Fourth Circuit affirmed the district court’s judgment.

United States v. Nicholas Young

This was a criminal case in the Eastern District of Virginia where a jury convicted Nicholas Young (“Young”) on one count of attempting to provide material support to the Islamic State of Iraq and the Levant and two counts of attempting to obstruct justice.  Young asserted five sets of errors on appeal.  The first pertained to the district court admitting Nazi and White Supremacist paraphernalia that the FBI discovered in a search of his home and whether the seizure of the items exceeded the search warrant’s scope.  The Fourth Circuit affirmed the district court’s ruling and concluded the seizure did not exceed the warrant’s scope.  The second alleged error was the district court’s admission of an expert witness.  However, determining a witness is an expert is a highly deferential standard, and the Fourth Circuit concluded the district court did not abuse its discretion by admitting the expert.  The next error that Young alleged was that the district court erred when it allowed admission of evidence of Young owning weapons and of evidence of comments Young made about attacking federal buildings. Young also argued that the district court erred in excluding certain comments made by Young and several FBI agents that Young believed to be exculpatory. However, the Fourth Circuit again concluded the district court did not abuse its discretion in its evidentiary rulings.  The fourth alleged error is that the government did not provide sufficient evidence to prove the attempted obstruction of justice charges.  Here, the Fourth Circuit concluded that the evidence presented at trial was insufficient to convict Young on the attempted obstruction of justice counts.  Thus, the Fourth Circuit affirmed the material support conviction, vacated the obstruction convictions, and remanded for resentencing.

ACA Financial Guaranty v. City of Buena Vista, Virginia

In this case, bonds were issued to refinance debt on a municipal golf course in the City of Buena Vista, Virginia (the “City”).  The repayment of the bonds depended on the City making lease payments of the golf course and the City failed to make these payments.  After the City did not make the lease payments, this litigation ensued.  The district court dismissed the complaint.  The Fourth Circuit affirmed the dismissal of the complaint, holding the City’s obligation to make rent payments is not legally enforceable when the obligation to make the payments is expressly subject to the City’s annual decision to appropriate funds.  The Court reasoned that the language of the lease agreement was unambiguous in that if the City did not appropriate funds, the City had no obligation to make the rent payments.  The City decided not to appropriate funds for the rent payments and therefore had no obligation to make the rent payments.  The Fourth Circuit opined that there can be no suit against a party for breaching an obligation if the party never had the obligation in the first place.  Thus, the district court’s judgment was affirmed.

Nikki T. Thomas v. Nancy A. Berryhill

This was a civil case in which the Commissioner of Social Security denied Nikki Thomas’s (“Thomas”) application for supplemental security income (“SSI”).  Thomas obtained review in the district court, which affirmed the denial.  She then appealed to the Fourth Circuit, which found that the Administrative Law Judge (“ALJ”) made two errors, vacated the ruling, and remanded the case.  The issues on appeal were, first, whether the ALJ erred by failing to provide a logical explanation about how the judge weighed the evidence and made the ultimate conclusion regarding Thomas’s residual functional capacity (“RFC”).  The second issue was whether there was an apparent conflict between the dictionary of occupational titles and the vocational expert’s testimony.  The Fourth Circuit determined that when evaluating Thomas’s RFC, the ALJ did not adequately explain the conclusions pertaining to Thomas’s mental impairments because the analysis contained too little explanation for the Court to be able to conduct a meaningful review. Additionally, the Fourth Circuit concluded that there was a conflict between the dictionary of occupational titles and the testimony of the vocational expert, but the ALJ did not identify or resolve it.  For these reasons, the Fourth Circuit vacated the district court’s grant of summary judgment and remanded to the district court with instructions to remand to remand to the Commissioner of Social Security for further administrative proceedings.

Mitra Rangarajan v. Johns Hopkins University

In this civil case, Mitra Rangarajan (“Rangarajan”) was constructively discharged from her job as a nurse practitioner at the School of Medicine of Johns Hopkins University (“Johns Hopkins”).  Rangarajan contended that she was discharged because of discrimination and retaliation, while Johns Hopkins contended that she was discharged because of her performance.  Rangarajan commenced four separate actions against Johns Hopkins arising out of her discharge, alleging state torts of defamation and interference with prospective advantage, as well as violations of the False Claims Act, the Maryland False Health Claims Act, Title VII, and 42 U.S.C. § 1981.  The district court dismissed all four of the actions.  Three of the actions were dismissed by the district court as a sanction for “flagrant and unremitting” violations of the Federal Rules of Civil Procedure by Rangarajan.  The Fourth Circuit held that the district court did not abuse its discretion by dismissing those actions as a sanction.  The Fourth Circuit noted that Rangarajan received notice that dismissal of her actions was a potential sanction that the district court would take.  There was a full opportunity for Rangarajan to respond, and she did in fact respond before any decision on sanctions was actually made.  Rangarajan also rendered the entire discovery process virtually useless by her actions, and the parties had invested substantial time and money in the discovery process.  The Court finally opined that Rangarajan’s abuse of the proceeding would have likely continued into the future.  Thus, the district court did not abuse its discretion and the judgment of the district court was affirmed.

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30Nov

Weekly Roundup – 11/26-11/30

Categories: 4th Cir. Blog Civil Cases Criminal Cases Weekly Roundup
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By Kayla West and Jim Twiddy

Mark Lawlor v. David Zook

In this criminal case, the Appellant sought a review of his death sentence. A Virginia state court sentenced the Appellant to death after his conviction for capital murder. During his sentencing, the sentencing jury found that the Appellant would likely continue to commit criminal acts of violence, making him a continuous threat to society. The state court had excluded relevant testimony of a qualified witness who would have explained that the Appellant represented a low risk for committing acts of violence while incarcerated. The Appellant filed the instant federal petition for review of his death sentence which was dismissed by the district court. The Fourth Circuit granted certificate of appealability on three issues, including whether it was a constitutional error for the trial court to exclude expert testimony about the Appellant’s risk of future violence in prison. The Fourth Circuit concluded that the state court’s exclusion of the expert testimony was an unreasonable application of the established federal law because the evidence was potentially mitigating, and such evidence may not be excluded from the sentencer’s consideration. The Fourth Circuit relied on the Supreme Court’s long recognized principle that a capital sentencing body must be permitted to consider any admissible and relevant mitigating information in determining whether to assign the defendant a sentence less than death. Thus, the district court’s decision was reversed and remanded.

 

Sierra Club v. U.S. Army Corps of Engineers

In this civil case, petitioners asked for the Court to set aside respondent’s verification and reinstated verification that construction of the Mountain Valley Pipeline can proceed under the terms and conditions of Clean Water Act Nationwide Permit 12 (“NWP 12”), rather than an individual permit. The 42-inch diameter natural gas Pipeline proposes to run 304 miles through parts of Virginia and West Virginia, crossing several federal water bodies. Because the construction of the Pipeline will involve the discharge of fill material into federal waters, the Clean Water Act requires that Mountain Valley Pipeline, LLC (certified to construct and operate the Pipeline) obtain clearance from the U.S. Army Corps of Engineers’ before beginning construction. Mountain Valley elected to pursue the general permit approach to obtain Corps clearance under NWP 12 which requires that all terms and conditions are satisfied before valid authorization occurs. Additionally, Mountain Valley must provide the Corps with a certification from the state in which the discharge originates. Under NWP 12, West Virginia’s certification imposes additional “special conditions” which the Corps must make regional conditions. However, the Corps decided to substitute its Special Condition 6 “in lieu of” NWP 12’s Special Condition C (imposed by West Virginia). The Fourth Circuit held that the Corps lacked the statutory authority to substitute its own special conditions “in lieu of” West Virginia’s special conditions. Further, the State Department for West Virginia waived Special Condition A, imposed as part of its certification of NWP 12. However, the Fourth Circuit held that a state cannot waive a special condition previously imposed as part of a nationwide permit absent completion of the notice-and-comment procedures required by the Clean Water Act under Section 1341(a)(1). Accordingly, the Fourth Circuit vacated, in their entirety, the verification and reinstated verification authorizing the Pipeline’s compliance with NWP 12.

 

US v. Terry

In this criminal case, Terry appealed his conviction of possessing methamphetamine with the intent to distribute. The key issue in this appeal was whether the district court erred in denying Terry’s motion to suppress evidence seized during a traffic stop. The stop was conducted through the illegal use of a GPS search. The district court asserted that because Terry relinquished control over the car, he lacked standing to challenge the GPS search. The Fourth Circuit concluded that the government agents committed a flagrant constitutional violation when they secretly placed a GPS on Terry’s car without a warrant, and that the discovery of the evidence seized during the traffic stop was not sufficiently attenuated from the unlawful GPS search to purge the effect of the unlawful search because the GPS and discovery of evidence were so closely tied. Additionally, the Fourth Circuit concluded that Terry did not lose his standing to assert a constitutional violation because when the tracker was placed, he was legitimately in possession of the vehicle. The Fourth Circuit reversed the holding of the district court, and vacated Terry’s conviction.

 

US v. Brown

In this criminal case, Brown asserted that a district court erred in calculating his criminal history category because the court added two points to Brown’s criminal history score based on a prior Virginia state conviction for which Brown received a suspended sentence. Brown’s suspended sentence was conditioned on a period of good behavior for ten years upon release from the prior Virginia State conviction. He was released in July of 2009, meaning that at the time of the present case, Brown had not completed his period of ten years good behavior. The district court concluded that a period of good behavior constitutes a criminal justice sentence, making it relevant to a defendant’s criminal history score. Brown asserted that a period of good behavior is not a criminal justice sentence because it lacks a custodial or supervisory component. The Fourth Circuit concluded that during a period of good behavior, Brown was still subject to the authority of the state. This operated as a supervisory component significant enough to constitute a criminal justice sentence. Because Brown committed the present offense while under a criminal justice sentence, the additional two points to his criminal history score were correctly added. The Fourth Circuit affirmed.

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21Mar

Fourth Circuit Limits Qualified Immunity in Sexually Intrusive Searches

Categories: 4th Cir. Blog Issues in the 4th Circuit
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By: Hailey Cleek & Mike Garrigan

In 2014, David E. Abbott, a detective with the Manassas City Police Department in Virginia, investigated allegations that seventeen-year-old Trey Sims used his cell phone to send sexually explicit photographs and video recordings of himself to his fifteen-year-old girlfriend.[1] Detective Abbott obtained a search warrant authorizing photography of Sims’ naked body, including his erect penis. When Abbott executed the warrant, he allegedly demanded that Sims manipulate his penis to achieve an erection. Sims unsuccessfully attempted to comply with Abbott’s order. Detective Abbott died before the present case was filed. Sims therefore initiated this action against Kenneth Labowitz, the administrator of Abbott’s estate.

Suspect Sims brought a 42 U.S.C. § 1983 action[2] against the administrator of Detective Abbott’s estate, alleging that this search violated his Fourth Amendment right of privacy and that, as result of search, he was victim of manufactured child pornography. Traditionally, public officials are granted either absolute or qualified immunity from lawsuits when performing their official duties.[3] Qualified immunity is generally extended to police officers or other officials. Yet, actions taken by these officials with a “deliberate indifference” may impose liability.[4] The district court determined that the administrator was entitled to qualified immunity on the § 1983 claims. The Fourth Circuit heard arguments on whether a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment.

Plaintiff’s Arguments

Plaintiff argued that while the Fourth Amendment does at times protect sexually invasive searches, Detective Abbott clearly violated personal privacy rights. In examining sexually invasive searches under the Fourth Amendment, courts balance “the invasion of personal rights caused by the search against the need for that particular search.”[5] Factors to determine this balance are: (1) the scope of the particular intrusion; (2) the manner in which the search was conducted; (3) the justification for initiating the search; and (4) the place in which the search was performed.[6] Courts have described such sexually invasive searches, including strip searches, as humiliating and demeaning.[7] In  King v. Rubenstein,[8] the Fourth Circuit previously held that sexually invasive searches relate to deep “interest[s] of bodily integrity,” which “involves the most personal and deep-rooted expectations of privacy.”[9]

Using these factors, Plaintiff-Appellant Sims illustrated the severe Fourth Amendment violations by Detective Abbott. Although Detective Abbott sought to obtain photographs of Sims’ erect penis for an evidentiary purpose, the Commonwealth ultimately agreed not to use the photographs of Sims’ body as evidence.[10] There was no need to take these photographs. Instead, Detective Abbot executed the search warrant by ordering teenager Sims to masturbate to obtain an erection in the presence of three armed officers.[11] Such alleged conduct would necessarily invade Sims’ bodily integrity, regardless if Sims’ body was not penetrated or physically harmed.[12] Plaintiff was humiliated throughout the reckless disregard of his bodily privacy; he deferred applying for college, despite his outstanding academic and extracurricular records.[13] Throughout the investigation and prosecution, he was mortified to face his peers.[14]

Plaintiff strongly asserted that Detective Abbott was not entitled to qualified immunity. Qualified immunity only protects public officials from constitutional violations when resulting from “reasonable mistakes.”[15] It does not protect “the plainly incompetent or those who knowingly violate the law.”[16] A Virginia police detective is properly charged with knowledge of laws criminalizing the creation of child pornography.[17] There is no exception for police officers. While there were fortunately no other related cases on point to illustrate a lack of exception, the Fourth Circuit has previously held that some facts of abuse are so clear that they do not require case law justification.[18] Beyond a passive excuse of following orders, Detective Abbott had no reason to believe that this search was reasonable. Yet, even with a warrant, Detective Abbott was not bound to seek or execute a plainly unconstitutional warrant.[19] The request of a prosecutor for a search is not nullifying to the responsibility to act reasonably. An officer cannot receive the protections of qualified immunity when asking a teenager to masturbate in front of three armed guards.

Defense’s Arguments

Labowitz asserted that Sims failed to state enough facts to support a Fourth Amendment violation.[20] Here, Labowitz argued that Abbott’s search neither placed Sims at risk of bodily harm nor physically invaded Sims’ body,[21] and therefore fell outside of Fourth Amendment protection. The defense used four arguments to assert that this search fell outside of Fourth Amendment protection. First, Labowitz cited several cases where valid search warrants were issued in similar circumstances–namely involving identifying scars, moles, and/or tattoos on a suspect’s genitalia.[22] Second, Labowitz observed that Abbott took no action that aimed to bring about an erection by Sims.[23] Third, Labowitz cited multiple cases that validate warrantless custodial strip searches of juveniles.[24] Finally, Labowitz argued that a photograph is not invasive, but even if it were, case law supports warrantless searches of a defendant’s physical person in certain circumstances.[25]

Labowtiz also argued that the district court properly recognized Abbott’s immunity. Qualified immunity protects government officials from civil liability as long as their conduct does not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[26] Here, the key question was whether Abbott “acted as an objectively reasonable police officer would have acted under similar circumstances.”[27]  Labowitz offered three reasons why Abbott behaved as a reasonable police officer.[28] First, a reasonable officer would rely on a warrant an attorney directed him to seek. Second, a reasonable officer would conclude that strip search conducted at a detention center under a warrant is appropriate. Third, no reasonable officer would have thought that he was producing child pornography when acting under a search warrant.

Sexually Intrusive Search Jurisprudence Addresses Questions for Immunity

While the majority for the Fourth Circuit strongly condemned Detective Abbott’s actions and held that such alleged conduct necessarily invaded Sims’ bodily integrity and privacy rights,[29] Judge King, in a dissenting opinion, notes that the case raises distinct questions for qualified immunity.[30] He notes that Detective Abbott was acting pursuant to the advice of counsel and adhering to a court order.[31] It is a foundational rule to the legal system and independent judiciary that court orders should be respected, complied with, and obeyed among law enforcement officers.[32] Court orders ensure compliance with the rule of law in society, and public officials are bound by both the cultural and institutional weight afforded to judge’s decisions.[33] When a judicial officer, Judge King suggests, has issued a search warrant upon probable cause, it is “unreasonable to require the officer charged with executing the warrant to reject the judicial decision and disobey the court’s directive.”[34] Generally, citizens want officers to comply and follow court orders in respect for the rule of law

Although the rule of law encourages officers to comply with and follow warrants accordingly, an entire body of sexual search jurisprudence has emerged to establish limits on sexually invasive searches. In Illinois v. Lafayette,[35] the Supreme Court held that an officer cannot disrobe an arrestee publicly without justifying factors. In United States v. Edwards,[36] the Fourth Circuit held that an officer’s sexually invasive search was unlawful because the dangerous manner in which he removed the contraband outweighed the interest in retrieving contraband. Likewise, in Amaechi v. West,[37] the Fourth Circuit found no justification for an officer’s pat-down search to include touching arrestee’s buttocks and penetrating her exposed genitalia. While these cases involved warrantless searches, they highlight the plainly unreasonable nature of the present case, as sexually invasive searches generally only happen in exigent circumstances.[38] Officers are encouraged to follow the boundaries of the search warrant, yet citizens cannot be expected to tolerate an officer acting beyond the guided parameters of sexual search warrants. Here, the warrant did not authorize Abbott’s conduct of requiring Sims to masturbate in the presence of the officers.[39] There was neither an evidentiary justification nor valid reason to demand Sims to masturbate in the presence of others.[40]

Conclusion

A little over a month after the Fourth Circuit heard Sims v. Labowitz, the Children’s Justice Fund (“CJF”), a nonprofit organization dedicated to aiding victims of child sex abuse, filed an amicus brief in support of a rehearing.[41] CJF argued that the Fourth Circuit panel erred by defining “sexually explicit conduct” in a way that could have “potentially profound implications for this case and future plaintiff victims.”[42] The Court, CJF argued, eschewed four objective terms for a subjective term. “Sexual intercourse,” “bestiality,” “masturbation,” and “sadistic or masochistic abuse” are more or less objective while “lascivious exhibition of the genitals or pubic area” relies on subjective “Dost factors.”[43] CJF contended that masturbation is per se explicit conduct under 18 U.S.C. § 2256(2)(A) and bringing Dost factors into the analysis was “unnecessary and unwarranted.”[44]

On March 14, 2018, the Fourth Circuit granted the motion for rehearing. While the rehearing will likely only correct the definitional scope of “sexually explicit conduct,” Sims reinforces the limits of police immunity. Moving forward, public officials in Maryland, South Carolina, North Carolina, West Virginia, and Virginia are officially on notice that such unreasonable sexual search conduct is not permissible. In line with previous sexual search jurisprudence, the Fourth Circuit has reaffirmed the bodily integrity of individuals.

 

 

 

[1] Sims v. Labowitz, 877 F.3d 171 (4th Cir. 2017).

[2] This refers to lawsuits brought under Section 1983 of Title 42 of the United States Code. See 42 U.S.C. § 1983. Section 1983 provides an individual the right to sue state government employees and others acting “under color of state law” for civil rights violations.

[3] Janell M. Byrd, Rejecting Absolute Immunity for Federal Officials, 71 Cal. L. Rev. 1707, 1713 (1983).

[4] See Farmer v. Brennan, 511 U.S. 825, 843 (1994).

[5] Bell v. Wolfish, 441 U.S. 520, 559 (1979).

[6] Id.

[7] See, e.g., Mary Beth v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983).

[8] 825 F.3d 206 (4th Cir. 2016).

[9] Id. at 215.

[10] Brief for Appellant at 10–11, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[11] Id. at 8.

[12] Id. at 38 (“Manifestly, this amounts to ‘state intrusion[] into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.’”)(quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)).

[13] Id. at 12.

[14] Id.

[15] Saucier v. Katz, 533 U.S. 194, 206 (2001).

[16] Malley v. Briggs, 475 U.S. 335, 341 (1986).

[17] Brief for Appellant at 36, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[18] Clem v. Corbeau, 284 F.3d 543, 553 (4th Cir. 2002) (“[W]hen the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance . . .  closely analogous pre-existing case law is not required to show the law is clearly established.”).

[19] See Graham v. Gagnon, 831 F.3d 176, 183 (4th Cir. 2016)(“I]f no officer of reasonable competence would have requested the warrant… [t]he officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate.”).

[20] Sims v. Labowitz, 877 F.3d 171, 177 (4th Cir. 2017).

[21] Id.

[22] Response Brief for Appellee at 10, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[23] Id. at 11.

[24] Id. at 12.

[25] Id. at 13.

[26] Harlow v. Fitzgerald, 457 U.S. 800 (1982).

[27] Defendant Estate of David Abbott’s Memoradum in Support of Motion to Dismiss Second Amended Complaint at 17, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[28] Response Brief for Appellee at 30, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[29] Sims v. Labowitz, 877 F.3d 171, 178 (4th Cir. 2017).

[30] Id. at 183 (J. King, dissenting).

[31] Id.

[32] Id.

[33] See Stephen G. Breyer, Judicial Independence in the United States, 40 St. Louis U. L.J. 989, 994-96 (1996)

[34] Sims v. Labowitz, 877 F.3d 171, 184 (4th Cir. 2017) (J. King, dissenting).

[35] 462 U.S. 640 (1983).

[36] 666 F.3d 877 (4th Cir. 2011).

[37] 237 F.3d 356 (4th Cir. 2001).

[38] Sims v. Labowitz, 877 F.3d 171, 182 (4th Cir. 2017).

[39] Id. at 182, n. 3.

[40] Id. at 180.

[41] Under Federal Rule of Appellate Procedure 27(b)(2), “[t]he United States or its officer or agency or a state may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court.”

[42] Amicus Brief of the Children’s Justice Fund and Child USA in Support of the Plaintiff-Appellant Trey Sims at *4, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[43] Id. at *3.

[44] Id. at *8.

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14Mar

4th Amendment Rights: The Reasonableness of Prolonged Traffic Stops

Categories: 4th Cir. Blog Weekly Roundup
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By: Matthew Welch & Gilbert Smolenski

On March 1, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for United States v. Brian Bowman.  The court held that Bowman’s Fourth Amendment right, freedom from unreasonable seizures, was violated and reversed the district court ruling.

I. Facts and Procedural History

In the predawn hours the morning of June 20, 2015, Officer Waycaster was patrolling on Route 25 in Henderson County, North Carolina.  He received a tip from the DEA that two individuals driving a red, older model Lexus could be narcotics runners.  The DEA also provided a license plate number for the car.  At 3:40 a.m., Officer Waycaster spotted an older red Lexus.  Rather than stopping the vehicle based on information from the DEA, Officer Waycaster followed the car “looking for [his] own infractions . . . for [his own] reason to stop the vehicle.”  When the vehicle weaved over a fog line and accelerated to 10 mph over the speed limit, Officer Waycaster pulled the vehicle over, suspecting that the driver may have been under the influence.  The government agrees that the DEA tip should not be considered in any legal analysis.

After stopping the vehicle, Officer Waycaster noticed two men in the vehicle: Bowman, the driver, and Alvarez, the passenger.  Officer Waycaster testified that Bowman appeared nervous because his hands were shaking, he failed to make eye contact with Waycaster, and that his carotid artery was moving, indicating an elevated heart rate.  Officer Waycaster did not see any alcohol or firearms in the vehicle, but he did notice an energy drink in the center console, food wrappers, and a suitcase in the back seat.  Officer Waycaster explained why Bowman was stopped and then asked Bowman to exit the vehicle and go to the patrol car so that Officer Waycaster could check his information.  Alvarez remained in the passenger seat the entire time.

After Bowman exited the vehicle, he consented to a weapons frisk.  Officer Waycaster found no weapons.  Officer Waycaster then told Bowman to sit in the patrol car while Waycaster ran his driver’s license and registration.  While Officer Waycaster was running Bowman’s information, he asked Bowman where he was coming from.  Bowman said that he was heading home after picking up Alvarez from Alvarez’s girlfriend’s house.  He said he was returning the favor because Alvarez had done the same for him in the past. When questioned about the address of Alvarez’s girlfriend’s house, Bowman said he did not know it but that it was in his car’s GPS.  Officer Waycaster also asked Bowman what he did for a living.  Bowman replied, saying that he was a welder but was currently unemployed.  Bowman also said that he recently bought the Lexus off Craigslist.  Officer Bowman testified that this was a suspicious activity because “it was a known practice with narcotics traffickers to either use rental vehicles or use multiple, different vehicles, or buy and sell vehicles to transport narcotics.”  Officer Waycaster, believing that Bowman was not under the influence, then issued Bowman a ticket for speeding and unsafe movement of the vehicle.

Bowman then began to exit the vehicle but Officer Waycaster asked if he could speak further with Bowman.  Bowman consented.  After another round of questions about what Bowman and Alvarez had been doing that night, Officer Waycaster, who was seated in the patrol car with Bowman said that he “was going to ask [Alvarez] questions if you don’t mind, okay?”  Bowman responded, “okay,” and remained in the vehicle.  As Officer Waycaster exited the patrol car he told Bowman, “just hang tight right there, okay.”  Bowman responded with, “oh, okay.”  Office Waycaster testified that at this point, Bowman was not free to get out of the patrol car because Waycaster had developed, from the traffic stop alone, reasonable suspicion of criminal activity.

Office Waycaster then went back to the Lexus and interviewed Alvarez about what had transpired before the two men were pulled over.  Alvarez’s story conflicted with Bowman’s.  Officer Waycaster then return to the patrol car and asked Bowman if there was meth in the Lexus, to which Bowman responded no.  Bowman then refused to let Officer Waycaster search the Lexus.  Thereafter, Officer Waycaster removed Alvarez from the Lexus and placed him in the patrol car with Bowman.  Then Office Waycaster summoned a K-9 team.  The K-9 team passed around the outside of the Lexus.  The dog alerted an officer that illegal narcotics were present in the vehicle.  Thereafter, Office Waycaster and the K-9 handler searched the interior of the car.  They found meth, digital scales, and containers of ammunition.

Bowman was charged with possession with intent to distribute methamphetamine.  Bowman filed a motion to suppress the methamphetamine evidence, arguing that Officer Waycaster unlawfully prolonged the completed traffic stop without consent or reasonable suspicion.  The district court followed the recommendation of the magistrate judge in denying the motion to suppress.  The magistrate judge admitted that Bowman was not free to leave the patrol car but that the prolonged detention was permissible because “Waycaster had a justified, reasonable suspicion that Defendant Bowman was engaged in criminal activity.” The judge said that the totality of the circumstances supported this finding.  Bowman then filed an appeal.

II. Standard of Review

The Fourth Circuit reviews the district court’s determination that the officer had a reasonable suspicion to prolong the traffic stop de novo.

III. Reasoning

First, a traffic stop must be reasonable.  Here, Bowman does not challenge the reasonableness of the traffic stop.  Bowman was swerving and traveling 10 mph over the speed limit.  Instead Bowman’s Fourth Amendment challenge rests on the unreasonableness of his prolonged detention in the patrol car. The Fourth Amendment allows an officer to conduct an investigation unrelated to the reasons for the traffic stop as long as it does not lengthen the roadside detention.  To extend the length of the detention beyond the time necessary to accomplish the traffic stop’s purpose, an officer must have reasonable suspicion or receive the driver’s consent.  Here, the officer did not receive Bowman’s consent or have a reasonable suspicion.

The government argued that Bowman consented to the prolonged detention when he said “okay” after Officer Waycaster asked him to “hang tight right there, ok?”  However, under a reasonable person standard, the court said that this was not consent by Bowman.  Bowman never had time to respond to Officer Waycaster before Waycaster exited the vehicle and many would feel they were not free to leave in a similar situation. Furthermore, Waycaster was not asking a question, instead he was instructing Bowman what to do.  Thus, when Bowman remained in the patrol car as the officer went to question Alvarez, the encounter was no longer a consensual one but instead became a non-consensual seizure.

After the Fourth Circuit concluded the search constituted a non-consensual seizure, the Court then analyzed whether Waycaster’s “prolonged seizure was justified by reasonable suspicion.”  The Court noted there is no precise definition for what constitutes reasonable suspicion.  Instead, reasonable suspicion is a commonsense, nontechnical standard that considers the realities of everyday life.  The bar for reasonable suspicion is less than the probable cause standard and the facts articulated by the stopping officer and trial court must be taken in their totality.  However, each factor can be analyzed separately by the court before being taken together in a full consideration of the circumstances surrounding the traffic stop.

The Fourth Circuit focuses on four specific factors in its analysis.  First, Waycaster noted that both Bowman and Alvarez appeared to be nervous.  However, a driver’s nervousness is not a good indicator since most citizens are nervous when dealing with police.  The record indicated that Bowman and Alvarez did not exhibit any signs of nervousness above the norm, and the government conceded Bowman was calm once exiting the vehicle.  Moreover, although a suspect’s increased heart rate, which can be evidenced by a suspect’s throbbing carotid artery, can help support there was a reasonable suspicion of criminal activity, the present facts do not show Bowman demonstrated nervousness beyond the norm. The fact that Bowman remained calm in the patrol car and failed to make eye contact with an officer is not indicative of criminal behavior.  Thus, the first factor weighed in favor of the Bowman.

Second, Waycaster stated that several articles in the car, specifically clothes, food, and an energy drink, helped give rise to a reasonable suspicion.  However, these items are consistent with innocent travel and “in the absence of contradictory information,” cannot reasonably imply criminal activity.  While Bowman may have made false statements about his travel plans, the government failed to connect that fact to any wrongdoing in the case.  Therefore, just the articles alone cannot be used to established untruthfulness, and subsequently reasonable suspicion.

Third, the district court noted that Bowman’s inability to recall Alvarez’s girlfriend’s address contributed to Waycaster’s reasonable suspicion.  But, the Fourth Circuit stated this was entirely reasonable, as it is clear from the video recording that Bowman repeatedly said he used the car’s GPS to find the house, and Waycaster could find the address by looking at the car’s GPS history.  The government failed to connect Bowman’s response with criminal activity, and the Fourth Circuit stated it is reasonable that Bowman did not know the address and was relying on GPS in a dark, unfamiliar area.

Finally, Waycaster believed Bowman’s vehicle purchases gave suspicion of criminal activity since he thought it was strange Bowman could afford to purchase multiple vehicles while unemployed and the use of multiple cars was a known practice of drug traffickers.  The Fourth Circuit readily disposed of Bowman’s vehicle purchasing habits, noting that Waycaster made “unsubstantiated assumptions.”  Even though Bowman was unemployed, there are numerous possible explanations to explain the car purchases that are all within the confines of the law.  Likewise, innocent travelers may use multiple vehicles, some of which they could buy from Craigslist, and that fact is entitled to little weight.

Consequently, none of the factors alone provide a basis for reasonable suspicion.  Even when looking at the totality of the circumstances, as mandated by precedent, the Fourth Circuit similarly found that the “combination of wholly innocent factors” did not give rise to reasonable suspicion.  Therefore, the Fourth Circuit reversed the district court, as Bowman’s motion to suppress should have been granted.

 

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30Mar

Fourth Circuit Finds Duration of Traffic Stop Reasonable under Fourth Amendment

Categories: 4th Cir. Blog Archive Criminal Cases
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By Sophia Blair

On March 30, 2017, the Fourth Circuit issued a published criminal opinion, United States v. Hill. Donald Hill (“Hill”) pled guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). However, he appealed the district court’s denial of his motion to suppress his statements and a firearm seized during a traffic stop because he alleged that the police officers’ actions exceeded the scope of the stop. Specifically, he alleged that the stop continued beyond the justifiable amount of time needed, thereby violating his Fourth Amendment rights. The Fourth Circuit affirmed the district court’s dismissal of Hill’s motion to suppress because the stop’s duration was reasonable to complete the tasks incident to the stop.

Facts of the Stop

On October 20, 2014, two police officers patrolling in Richmond, pulled over a car because it was driving over the speed limit and crossed a double-yellow line. The officers recognized both Jeremy Taylor (“Taylor”), the driver, and Hill, the passenger from previous interactions. After Taylor produced his driver’s license, one of the officers returned to the police cruiser to confirm the identity of both men in the Department of Motor Vehicles database, and to check whether either of the men had outstanding warrants on the National Crime Information Center database. The officer discovered that Taylor’s license was suspended. The officer briefly interrupted writing the relevant summons to check for both men in the PISTOL system, which tracks individuals’ prior contacts with the police. There he found that both men were connected with drug activity and were “likely armed.” The officer in the patrol car called for a K-9 unit and continued writing the summons.

The second officer made small talk with both men while the first officer wrote the summons and asked them three times whether they had drugs or firearms in the car. After the third question, Hill admitted that he had a firearm on his person. The officer shouted “gun” and the K-9 unit arrived on the scene almost simultaneously. The district court determined that twenty minutes elapsed between the initiation of the stop and the time the gun was discovered.

Hill’s Claims

Hill argued that the length of the stop exceeded a lawful duration because the second officer talked to him and Taylor instead of helping the first officer search the databases. He also challenged the call to the K-9 unit and searching the PISTOL database. Hill argued that the cumulative effect was to deprive him of his Fourth Amendment Rights under Rodriguez v. United States, 135 S. Ct. 1609 (2015).

The Duration and Scope of the Stop Did Not Violate the Fourth Amendment

In order to be reasonable under the Fourth Amendment, a traffic stop must be legitimate at its inception and the officers’ actions during the stop must be reasonably related in scope to the basis for the stop. Because Hill did not contest that the stop was legitimate at its inception, the Fourth Circuit limited its analysis to whether the officers’ actions were reasonably within the scope of the basis for the stop.

Determining the reasonable length of a stop is not a mathematical endeavor; instead a court determines reasonableness by looking at what police in fact do and whether the officers acted reasonably under the totality of the circumstances. Additionally, officers may undertake investigative techniques unrelated to the underlying traffic infraction without offending the Fourth Amendment as long as the activity does not prolong the duration of the stop.

In analyzing the unfolding of the stop at issue, the Fourth Circuit did not observe any evidence that suggested that either of the officers delayed the completion of the traffic stop. The officers accounted for eighteen minutes of the twenty minute stop, and the Fourth Circuit did not find that the additional two minutes unlawfully extended the duration of the stop. Moreover, the first officer had not finished writing the summons when the second officer yelled “gun.”

The Fourth Circuit also held that the officer’s decision to search PISTOL did not violate the Fourth Amendment because the Fourth Amendment does not require the officers to use the least intrusive means possible to complete a stop. Searching PISTOL was material to the officers insuring their safety in furtherance of their duties. Because of the inherent safety risks  during a traffic stop, the Fourth Circuit also held that the second officer’s choice to stand by the stopped vehicle instead of helping to search the database was reasonable. Finally, requesting the K-9 unit did not violate the Fourth Amendment because the call did not extend the duration of the stop.

Disposition

Because the officers exercised reasonable diligence in executing the traffic stop, the stop was not impermissibly prolonged. The Fourth Circuit affirmed the district court’s denial of Hill’s motion to suppress evidence.

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23Feb

Fourth Circuit Upholds Traffic Stop as Constitutional Under the Fourth Amendment

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By Kelsey Mellan

On February 23, 2017, the Fourth Circuit issued a published opinion in United States v. Hill, a criminal appeal on behalf of two defendants. Defendant-Appellants Darren Hill (“Hill”) and Lloyd Dodwell (“Dodwell”) appealed the Western District of North Carolina’s denial of their motion to suppress evidence pertaining to an allegedly unconstitutional traffic stop in 2012. The Defendants argue this traffic  stop violated their Fourth Amendment search and seizure rights. The Fourth Circuit affirmed the district court’s denial of the motion to suppress, determining that the stop did not offend its Fourth Amendment jurisprudence at the time it occurred.

 Facts & Procedural History  

On May 2, 2012, Defendants were traveling in an SUV through Henderson County, North Carolina. Deputy David McMurray (“Deputy McMurray”) was patrolling the area when he noticed Defendants’ SUV traveling closely behind another vehicle. Deputy McMurray subsequently pulled over Defendant’s and approached their vehicle. Dodwell was driving and Hill was in the passenger seat. After Deputy McMurray explained the stop, Dodwell admitted to following too closely. Deputy McMurray then asked Dodwell to exit the vehicle and follow him to his patrol car so he could issue a warning ticket. While Deputy McMurray was entering the ticket information, he engaged Dodwell in conversation. Some of Deputy McMurray’s questions pertained to the stop and others ranged to more personal, off-topic questions. Specifically, Deputy McMurray asked Dodwell who owned the vehicle – to which Dodwell answered that he it belonged to either Hill’s girlfriend or sister. Upon questioning, Dodwell also acknowledged that he had previously been arrested for drugs.

Deputy McMurray then returned to the vehicle to speak with Hill to determine who owned the vehicle. While speaking with Deputy McMurray, Hill made numerous statements that conflicted with information Dodwell provided. As he later testified, Deputy McMurray became concerned that some criminal activity was occurring because of Defendants’ contradictory statements and nervous behavior, and the confusion over the owner of the SUV. Moreover, Defendants were traveling from Atlanta which, according to the government, is the “largest source of narcotics on the east coast.” in a type of vehicle commonly used for drug trafficking. After further discussion with each Defendant, Deputy McMurray notified them he was going to call for another deputy so he could run his drug-detection dog around the SUV. He explained that he would only search the vehicle of the drug-detection dog alerted, but would not search if the dog did not alert. Both Defendants consented to this search.

As a result of the search, Deputy McMurray and his team found over $30,000 of bundled U.S. currency, which Deputy McMurray believed to be drug proceeds. During the search, another officer on the scene read Defendants their Miranda rights and each Defendant consented to questioning. The rest of the search revealed no other contraband in the SUV. Ten days later while reviewing the recording of the stop, Deputy McMurray saw that Hill had deposited a bag containing cocaine hydrochloride behind the patrol car’s driver seat.

A grand jury indicted Defendants for possession with intent to distribute at least 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). Both Defendants filed a motion to suppress which the magistrate joined for hearing. After the hearing, the magistrate recommended that the district court deny Defendants’ motion. Defendants generally objected to the magistrate’s memorandum and recommendation (“M&R”) on the grounds that the traffic stop violated the Fourth Amendment. The district court accepted the M&R and denied Defendants’ motion to suppress in full because (1) Deputy McMurray did not unreasonably extend the traffic stop prior to issuing the ticket and (2) Deputy McMurray’s post-ticket extension was justified by both reasonable suspicion and Defendants’ consent.

Defendants’ Fourth Amendment Challenge

On appeal, Defendants argue that Deputy McMurray impermissibly extended the traffic stop both before and after issuing a warning ticket, based on Supreme Court precedent from Rodriguez v. United States and Fourth Circuit precedent set in United States v. Williams. The government argues that any de minimis pre-ticket delay was allowed under governing precedent at the time of the stop. Moreover, the government claims Defendants waived their rights to challenge the reasonableness of the post-ticket extension by failing to sufficiently object on that ground.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” According to the Supreme Court in Illinois v. Caballes, a routine traffic stop becomes an unreasonable seizure when law enforcement impermissibly exceeds the stop’s scope or duration. The Supreme Court limited the permissible scope and duration of a traffic stop in Terry v. Ohio. If a traffic stop strays outside the boundaries of its permissible scope or duration, the Fourth Amendment’s exclusionary rule normally prevents the government from using evidence obtained during said search against the victim of the illegal seizure. The Supreme Court explained an exception to this exclusionary rule in Davis v. United States – the good-faith doctrine. This doctrine protects law enforcement action taken in “objectively reasonable reliance on binding appellate precedent” at the time of the search or seizure. The Fourth Circuit determined this doctrine applies in this case.

Yet, Defendants asked the Fourth Circuit to analyze Deputy McMurray’s conduct in 2012 under the standards set out in Rodriguez and Williams – cases that were not decided until 2015. Defendants argued that Deputy McMurray violated their Fourth Amendment rights by asking off-topic questions before writing a ticket. But when this search was conducted in 2012, the Fourth Circuit’s binding precedent set in United States v. Digiovanni held that questioning or other activity unrelated to the initial purposes of the stop only rendered the stop unreasonable if the officer “failed to diligently pursue the purposes of the stop.” In Digiovanni, the Fourth Circuit determined that de minimis delay in issuing a ticket warranted suppression only when an officer did not begin, or completely abandoned, actions related to the cited purpose of the stop.

In this case, the Fourth Circuit decided that the record sufficiently demonstrates that Deputy McMurray’s questions were in continuance of the pursuit of activities related to the initial stop. Moreover, the Deputy continued issuing the warning throughout the pre-ticket process. Although his questions may have been off-topic, Deputy McMurray never strayed from diligently pursuing the purposes of the stop. Moreover, Defendants effectively waived their challenge to any post-ticket extension by failing to specifically object on those grounds before the district court. Therefore, the Fourth Circuit deemed this stop constitutional.

 Disposition

Thus, the Fourth Circuit affirmed the judgment of the district court.

 

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23Jan

Fourth Circuit Affirms Denial of Motion to Suppress by Clarifying the Terry Doctrine

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By John Van Swearingen

On Monday, January 23, 2017 the Fourth Circuit issued a published opinion following a rehearing en banc in the criminal case United States v. Robinson. The defendant Robinson appealed his conviction under 18 U.S.C. § 922(g)(1), which prohibits the possession of a firearm by a felon. The Fourth Circuit Court of Appeals affirmed the district court’s denial of Robinson’s motion to suppress evidence of weapon possession, holding that the potential legal status of a concealed weapon does not automatically render that weapon harmless, and therefore, any officer that lawfully stops an individual and reasonably believes that individual to be armed is justified in frisking that individual to secure any weapons.

Facts and Procedural History

On March 24, 2014, an anonymous caller called the Ranson Police Department (West Virginia) to report seeing a black male, the defendant Robinson, in a “bluish greenish Toyota Camry load a firearm [and] conceal it in his pocket” while parked at a 7-Eleven. After this occurred, according to the tipster, the driver of the vehicle, a white female, pulled the Camry out of the parking lot and headed southbound.

This particular 7-Eleven, as several officers would later testify, was located next to the Apple Tree Garden Apartments. The 7-Eleven and the apartment complex were both part of “the highest crime area in Ranson,” especially with regard to drug trafficking, and calls to either location were treated with a heightened sense of alertness.

Two officers responded to the call, and within minutes, spotted the subject Camry containing the defendant and the white female. Neither occupant in the Camry was wearing a seatbelt. The first officer, Officer Hudson, effected a traffic stop for the seatbelt violations. Because the anonymous caller stated that defendant was armed, Officer Hudson asked Robinson to step out of the car.

The second officer, Captain Roberts, opened Robinson’s door and, as Robinson was getting out, asked if Robinson was armed. The Captain later testified that Robinson gave him an “oh, crap” look in lieu of a verbal response. Captain Roberts then frisked Robinson, discovering and securing a loaded handgun from Robinson’s pants pocket.

Captain Roberts, recognizing Robinson as a known felon, then arrested Robinson for illegal possession of a firearm by a felon.

Robinson filed a motion to suppress the firearm, claiming the frisk was a violation of his Fourth Amendment rights. More specifically, Robinson contended that, while the officers may have reasonably suspected that he was armed, West Virginia’s generally permissive laws regarding concealed carry mean an armed individual cannot be assumed to be dangerous absent other factual information. The United States District Court for the Northern District of West Virginia denied his motion.

Armed and Dangerous Means Armed and thus Dangerous

Terry v. Ohio, 392 U.S. 1, 30 (1968), governs the doctrine of weapons frisks by law enforcement officers. If an officer reasonably believes that criminal activity is afoot and suspects an individual is armed and dangerous, that officer may stop that individual and pat down that persons clothing to feel for weapons.

Robinson argued that language of Terry – “armed and dangerous” – requires an officer to reasonably suspect an individual be armed and – as a separate consideration – also dangerous.

Robinson correctly noted that West Virginia generally permits its citizens to acquire permits to arm themselves with concealed weapons. Therefore, Robinson contended, the suspicion that an individual is armed in and of itself does not give rise to suspicion that the individual is dangerous. Robinson conceded that Officer Hudson’s stop of the Camry was lawful. Thus, this challenge turns on the “armed and dangerous” language of the Terry opinion.

Robinson misconstrues both the language of Terry and the Supreme Court’s jurisprudence regard frisks. The Court does use the phrase “armed and dangerous” near the end of the Terry opinion. However, in the preceding discussion regarding the legality of frisks, the Court stated that an officer may frisk a lawfully-stopped individual if “a reasonably prudent man would have been warranted in believing [that individual] was armed and thus presented a threat to the officer’s safety.”

The Court applied the Terry doctrine to traffic stops in Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977). The Mimms opinion echoed Terry, holding that an officer’s frisk of a lawfully-stopped individual was proper where the officer reasonably believed the individual was “armed and thus posed a serious and present danger to the safety of the officer.”

The language of the Terry and Mimms opinions is fatal to Robinson’s argument. The phrase “armed and dangerous” does not, as Robinson argued, create a two element test wherein an officer must have reasonable suspicion that an individual is armed and also dangerous. Rather, Terry and its progeny state that, where an individual is reasonably suspected of being armed, they are presumed dangerous as a matter of law and fact.

Robinson’s argument also fails to account for the factual circumstances of his stop. First, an anonymous tip reported a man concealing a gun in a high-crime, high-drug activity area. The tip was then corroborated when the responding officers observed Robinson and the female driver in the blue-green Camry heading south away from the 7-Eleven. Further, Robinson’s “oh, crap” look to Captain Roberts was reasonably perceived as an evasive response to a direct question about being armed.

The Fourth Circuit also noted that widespread legal concealed carry does not render the presence of a firearm somehow less dangerous. The court held that concerns for officer safety logically permit an officer to secure a firearm when that officer lawfully stops an unknown individual who is reasonably suspected of being armed.

In sum, when an individual is lawfully stopped by law enforcement and that individual is reasonably suspected of being armed, that individual is therefore suspected of being dangerous as a matter of law. Therefore, Robinson’s Fourth Amendment rights were not violated when he was frisked.

                                                                    Disposition

The Fourth Circuit affirmed the district court’s denial of Robinson’s motion to suppress the firearm. Robinson was lawfully stopped, and based on the facts of this case, the responding officers reasonably suspected that Robinson was armed and thus dangerous. Therefore, Captain Roberts’ frisk of Robinson was permissible, and the firearm recovered pursuant to that frisk was admissible as evidence against Robinson.

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23Oct

Fourth Circuit Affirms Conviction in Unlawful Receipt of Government Benefits Case

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By: Kristina Wilson

On Friday, October 21, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Wharton. The Fourth Circuit affirmed the District Court’s conviction of the defendant for conspiracy, making a false statement, theft, and embezzlement, all in connection with her unlawful receipt of government benefits. On appeal, the defendant argued that the affidavit upon which the search warrant was based was materially false and thus violated her Fourth Amendment rights. The Fourth Circuit affirmed the District Court’s decision that there was no Fourth Amendment violation because the affidavit’s omitted facts were not material.

Facts and Procedural History

After the death of the defendant’s daughter in 2002, the defendant took her two granddaughters into her home. She began receiving Social Security survivors’ benefits on her granddaughters’ behalf. In 2012, the Government discovered that the defendant’s granddaughters had not lived with the defendant since 2009 and were not receiving their benefits. The Government then launched an investigation into the defendant’s use of the Social Security funds.

Following the investigation, a grand jury indicted the defendant on two counts of theft of government property in violation of 18 USC § 641 and 42 USC § 1381a(a)(3) on January 31, 2013. The grand jury issued a sealed superseding indictment on June 26, 2013, which was unsealed on July 10, 2013. The indictment charged both the defendant and her husband with conspiracy to embezzle, embezzlement, and making false statements. While the indictment remained sealed, on July 1, 2013, a special agent from the Social Security Administrator’s office executed an affidavit in which he asserted that the defendant and her husband lived together in the defendant’s home. The magistrate issued a search warrant based on the agent’s affidavit, and the Social Security Administrator’s office searched the defendant’s home, discovering a number of documents relevant to the criminal charges.

Prior to trial, the defendant moved to suppress all evidence uncovered in the search of her home. The District Court denied her motion to suppress for all evidence except that which was obtained from her second-floor bedroom. Ultimately, the District Court convicted the defendant and her husband for conspiracy to embezzle money in violation of 18 U.S.C. § 371, making false statements in violation of 42 U.S.C. § 1383a(a)(2), and embezzlement in violation of 18 USC § 641.

The Information Was Recklessly Omitted but Not Material

The defendant asserted that special agent’s affidavit was materially false in violation of the Fourth Amendment because it omitted the fact that she and her husband did not live together.

In the affidavit, the special agent asserted that the defendant and her husband lived together on the basis of interviews he conducted with the defendant, her husband, and their children. Both the defendant and her husband stated that they had been married continuously for 43 years and lived together in the defendant’s home. The special agent also discovered that the defendant’s husband’s electricity account provided power to the entire home, not just his basement living space. Additionally, the special agent discovered that Dish Network provided cable television to the entire home with the defendant and her husband both listed as authorized users.

The District Court held that the defendant and her husband did live separately in that the defendant’s husband only occupied the common areas of the home upon invitation and kept the door to his basement living area locked. However, the omission was not material and did not violate the Fourth Amendment.

The Omission Did Not Violate the Fourth Amendment

On appeal, the Fourth Circuit applied a de novo standard of review to the denial of the defendant’s motion to suppress.

According to the Fourth Circuit, the District Court properly addressed the defendant’s claim as a Franks v. Delaware question. Franks v. Delaware, 438 U.S. 154 (1978). Although a Franks analysis usually begins with the threshold question of whether a district court improperly denied an evidentiary hearing, the Fourth Circuit eschewed that preliminary question because the District Court granted the defendant an evidentiary hearing before denying the motion to suppress.

When a defendant asserts that an affiant has omitted material facts in the affidavit, the defendant must prove that the affiant intentionally or recklessly made a materially false statement or omitted material information.

While Franks requires proof of both intentionality and materiality, only materiality was at issue on appeal. An omission is material if it is necessary to the magistrate’s finding of probable cause to support the warrant. When evaluating materiality, a court inserts the omitted facts and then determines whether the corrected affidavit supports probable cause. If it does, there is no Franks violation.

In recent cases United States v. Lull, 824 F.3d 109 (4th Cir. 2016) and United States v. Tate, 524 F.3d 449 (4th Cir. 2008), the Fourth Circuit reversed the defendants’ convictions after concluding that the omitted information in question undermined the entire foundation of the affidavits. In Lull, an officer omitted facts that undermined the reliability of a confidential informant who supplied many of the facts in the affidavit. In Tate, an officer omitted the fact that much of the evidence supporting his affidavit originated from a questionable search of the defendant’s trash. The Fourth Circuit reasoned that if the trash search was illegal, that evidence would have to be suppressed. Without the trash search evidence, the officer’s warrant lacked probable cause.

In contrast, the fact that the defendant and her husband did not live together did not change the fair probability that evidence relating to the defendant’s crimes would be discovered in the common areas of the house. The magistrate was reasonable in concluding that the defendant and her husband lived together because they stated that they lived together, and they shared utilities and cable services, creating a reasonable inference that both individuals used those services throughout the home. Finally, the omitted fact did not call into question the inherent reliability or validity of the affidavit supporting the warrant, unlike in Lull and Tate.

Disposition

Therefore, the Fourth Circuit affirmed the District Court’s conviction of the plaintiff on all counts.

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23Feb

Fourth Circuit Vacates Decision Dismissing Defendant’s Motion to Suppress Evidence Unlawfully Obtained in Violation of the Fourth Amendment

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By Taylor Ey

Anonymous Tip to Police, Pretextual Traffic Stop, and Subsequent Frisk

Today, the Fourth Circuit issued its published in the criminal case of United States v. Robinson, deciding 2-1, the Court reversed and vacated the decision of District Court of the Northern District of West Virginia, holding that Defendant Robinson’s motion to suppress evidence should have been granted.  In this case, the West Virginia police department received an anonymous tip.  The tipper reported that the tipper saw a man load a gun in a 7-Eleven parking lot, the man subsequently concealed the gun, and then left the parking lot in a car.  Only a few minutes passed when the police stopped a car matching the tipper’s description.  The police stopped the car because the driver and passenger’s failure to wear a seatbelt in violation of West Virginia traffic law.  Defendant Robinson was the passenger in the car.  He complied with the police requests to exit the car.  Then an officer frisked Defendant Robinson and found a firearm in one of Defendant Robinson’s pockets.  Defendant Robinson was indicted by a grand jury on one count of being a felon in possession of a firearm and ammunition.  Defendant Robinson sought to exclude the evidence recovered by the officer during the stop and frisk.  The district court referred Defendant’s motion to a magistrate.  The magistrate recommended that the evidence did not indicate that the officer had reasonable suspicion that Defendant was dangerous.  However, the district court did not grant his motion to suppress.  At issue in this case is whether the officer complied with the Fourth Amendment when the officer conducted the stop and frisk.

Under Terry v. Ohio, Whether the Officer Had Reasonable Suspicion that Defendant Robinson Was Both Armed and Dangerous when the Officer Conducted the Stop and Frisk

Under Terry v. Ohio, the test for whether a stop and frisk is lawful is to determine if the officer had reasonable suspicion that the suspect was both armed and dangerous at the time of the stop and frisk.  This question is two-fold: the officer has to have reasonable suspicion that the suspect is armed and that the suspect is dangerous.  In this case, the question of whether the police had reasonable suspicion that Defendant Robinson was armed at the time of the traffic stop and frisk was not at issue due to the anonymous tip.  However, because this case arose in West Virginia, and West Virginia allows its citizens to carry concealed weapons, the question on appeal was whether the police had reasonable suspicion that Defendant Robinson was dangerous at the time of the traffic stop and frisk.

The Court applied the totality of the circumstances test to determine whether the officer had reasonable suspicion that Defendant was dangerous.  First, the Court considered that, in West Virginia, carrying a concealed firearm is not prohibited by law, thus the fact that Defendant was carrying alone was not enough to give the officer reasonable suspicion that he was dangerous because the state legislature decided that its citizens could carry.  The Court noted that this same approach has been adopted by the Third, Sixth, and Seventh Circuits.  The Court was worried that allowing an officer in states that allow for concealed carry to have reasonable suspicion of danger if a suspect is carrying would eliminate Fourth Amendment protections for carriers and would not allow them to exercise their Second Amendment rights.  Further, the Court was concerned that such a rule would create a “serious and recurring threat” to their privacy, and it would give police officers “unbridled discretion.”

Second, the Court looked at the circumstances surrounding the stop.  These included that there was an anonymous tip, that Defendant Robinson failed to answer the officer’s question of whether he had a gun on his person, and that Defendant Robinson was in a “high-crime area” at the time of the stop.  The Court concluded that the circumstances did not give the officer reasonable suspicion.  Instead, Defendant Robinson was otherwise cooperative during his encounter with the police, he never made a gesture that he was reaching for a weapon, and the officer did not give Defendant Robinson enough time to respond to the question about whether he was armed.  Even though Defendant Robinson was in a high-crime area, the Court reasoned that this was just the area where you would expect to find people carrying a weapon to protect themselves.

Looking at the Totality of the Circumstances, the Fourth Circuit Reversed the District Court’s Decision Denying Defendant Robinson’s Motion to Suppress and Vacated His Conviction and Sentence.

The Dissenting Opinion Articulated Three Reasons for Disagreement with the Majority

The three reasons that the dissenting judge articulated for his opinion were (1) that an officer need only reasonable suspicion that the suspect is armed and thus dangerous, (2) that West Virginia allows its citizens to carry a concealed weapon does not minimize the danger to officers and officers should still be allowed to stop and frisk under the Fourth Amendment, and (3) that even though Defendant Robinson may have been innocent, “reasonable suspicion need not rule out the possibility of innocent conduct.”

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29Jan

Fourth Circuit Extends Feres Test To § 1983 Claims

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By Sarah Saint

On February 1, 2016, the Fourth Circuit amended its opinion in the civil case, Aikens v. Ingram (as amended), holding that the Feres “incident to service” test applies to 42 U.S.C. § 1983 claims alleging constitutional violations that arise out of or in the course of activity incident to federal military service. Because Appellant alleged a constitutional violation that occurred while he was on active duty, while he was deployed, and through his Department of Defense email, Feres bars recovery under § 1983.

The Email Scandal

In 2001, Appellant Frederick Aikens (“Aikens”) was promoted to full colonel of the 139th Rear Operations Center of the North Carolina National Guard. Respondent Peter von Jess (“von Jess”) was named executive officer and a subordinate to Aikens. In December 2002, Aikens gave von Jess a negative officer evaluation report, which von Jess appealed to Respondent William E. Ingram (“Ingram”), arguing that Aikens evaluation was made with malice.

In 2003, while Aikens was deployed to Kuwait and von Jess remained in North Carolina, Paul Jones (“Jones”) and Brian McCarthy (“McCarthy”), information technology personnel, used illegal means to read and forward around 130 of Aikens’ personal emails to von Jess. Von Jess used those emails to compose a damning memorandum to the North Carolina Governor’s chief of staff, alleging that Aikens planned to overthrow the Adjutant General. Von Jess also forward the emails to the Department of the Army Inspector General (“DAIG”).

In May 2004, DAIG found six instances of misconduct on Aikens’ part, even though DAIG concluded Jones and McCarthy improperly accessed Aikens’ emails. DAIG provided such findings to the Governor of North Carolina and Ingram. Ingram forwarded the findings to Lieutenant General Russel Honoré (“Honoré”), who withdrew federal recognition from Aikens, resulting in Aikens’ constructive termination. Aikens subsequently transferred to the retired reserve.

Respondents’ Motion for Summary Judgment

On April 27, 2006, Aikens sued von Jess and Ingram in their individual capacities under 42 U.S.C. § 1983, arguing that they facilitated unconstitutional searches and seizures of his personal emails while he was deployed in Kuwait. In support, he claimed that von Jess and Ingram, motivated by revenge, authorized and directed McCarthy and Jones to send Aikens’ incriminating emails to von Jess because of Aikens contentious history with von Jess.

Von Jess and Ingram moved for summary judgment for two reasons. (1) Aikens had no reasonable expectation of privacy in his emails because Army Regulations made clear that emails sent and received over the Department of Defense computer system could be monitored. (2) Aikens’ claims are nonjusticiable under Feres v. United States, 340 U.S. 135 (1950). The district court granted Von Jess’ and Ingram’s motion for summary judgment, which Aikens appealed.

Standard of Review

The Fourth Circuit considered de novo the threshold legal question of whether the district court properly abstained from ruling on Aikens’ claims, taking all facts in the light most favorable to the non-movant.

Mindes Test Has No Place

The district court granted summary judgment on Aikens’ claim for equitable relief, relying on Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), which sets forth a four-factor test for reviewability of claims based on internal military affairs. Though in his reply brief, Aikens only requests damages, when he first sued von Jess and Ingram, Aikens also requested equitable relief. Typically, Mindes is only applicable to claims for equitable relief, but Aikens abandoned his claim for equitable relief. Further, the Fourth Circuit found that the Mindes test was inapplicable in this case because, in the Fourth Circuit, the Mindes test has only been applied to internal personnel matters, such as challenges to convening of retention boards and military discharge, which is not similar to the case here of improper email monitoring.

Feres Test Applies to § 1983 Claims

The Fourth Circuit looked at the evolution of the Feres test to determine if Feres barred Aikens from seeking damages under 42 U.S.C. § 1983. Feres first applied to Federal Tort Claims Acts claims, barring government liability for injuries to service persons where the injuries arise out of or are in the course of activity incident to service. The Supreme Court then extended the Feres “incident to service” test to causes of action outside the Federal Tort Claims Act, including for Bivens actions, or constitutional claims brought against federal officers. However, neither the Supreme Court nor the Fourth Circuit had extended the Feres test to apply to constitutional claims brought against state officers under 42 U.S.C. § 1983.

In this case, the Fourth Circuit decided to the Feres test to § 1983 actions against state officers for two reasons. First, suits under § 1983 and Bivens address constitutional violations by government officials, it is logical to extend the Feres test to § 1983 actions when it applies to Bivens actions. Second, courts generally do not expand liability for injuries arising out of military service to maintain separation of powers. Accordingly, the court decided not to allow damages actions pursuant to § 1983 against state officials for injuries suffered incident to service, which is foreclosed against federal officials, when Congress has not expressly authorized them.

Feres Test Applies to Aikens’ Injuries

The Fourth Circuit then addressed whether the Feres test applied to the case at hand by determining whether the search and seizure of Aikens’ emails arose out or of were in the course of activity incident to service. To determine whether Feres applies, courts look to whether specific suits call into question military discipline and decision-making, requiring judicial intrusion upon military matters. The Supreme Court interprets the Feres test broadly. The Feres test applies to all injuries suffered by military personnel that are even remotely related to the individual’s status as a member of the military. Application of the Feres test does not require that the plaintiff be on duty and does not depend on the military status of the defendant.

Accordingly, the Fourth Circuit concluded that Aikens’ alleged injuries arose out of activity incident to service because he was on active duty, was deployed in a war zone, and used a computer system set up by the Department of Defense for military personnel. The Court noted that it was irrelevant that Aikens was a National Guardsman because he was serving in a federal capacity when he was called to active duty. Further, the Court found irrelevant that von Jess and Ingram were not in Aiken’s direct chain of command.

Nevertheless, the Court abstained from reviewing Aikens’ § 1983 claim based on the Feres “incident to service” test. Accordingly, the Fourth Circuit affirmed the district court’s dismissal of Aikens’ case.

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25Jan

Fourth Circuit Suppresses Evidence Obtained through Unlawful Search

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By Anthony Biraglia

In United States v. Kenneth Rush, a criminal case decided and published on December 21, 2015, the Fourth Circuit reversed a West Virginia district court’s denial of a motion to suppress evidence. The Court found that the good-faith exception to the exclusionary rule did not apply, and that lying about the existence of a search warrant was exactly the type of police conduct that the exclusionary rule guards against. The Court thus determined that evidence found during a search of Kenneth Rush’s (“Rush”) apartment should be suppressed, and remanded the case for further proceedings.

Circumstances of the Search and Motion In Limine

Police in Charleston, West Virginia, searched the apartment where Rush was staying pursuant to the consent of a co-habitant, who had earlier told police that she was afraid of Rush and that he was dealing drugs out of the apartment. During the search, a police officer told Rush that they had a warrant to search the apartment in response to his inquiries about why the officers were conducting the search. The officers knew that they did not, in fact, have a valid warrant to search the apartment. The search turned up crack cocaine and digital scales, which Rush admitted were his. However, the police did not arrest Rush at that time, nor did they arrest him when he made a voluntary trip to the police station to answer questions about his supplier. He was eventually arrested and charged with one count of knowingly and intentionally possessing with the intent to distribute twenty-eight grams or more of cocaine base under 21 U.S.C. § 841(a)(1).

Rush moved in limine to suppress the evidence seized. While the district court did find a violation of Rush’s Fourth Amendment right to object to the search, it determined that the officers’ lie about the search warrant was a “justifiable attempt to protect” the co-habitant and that exclusion would have little deterrent effect on police conduct. Rush pled guilty while reserving the right to appeal the district court’s decision on his suppression motion. On appeal, the Fourth Circuit reviewed the district court’s legal conclusions de novo and factual findings for clear error.

The Good-Faith Exception to the Exclusionary Rule is Not Applicable

The exclusionary rule is designed to deter violations of the Fourth Amendment by police through the exclusion of evidence that is the fruit of an unlawful search. Even though the search in this case was unlawful, the United States argued that the evidence should still be admissible under the good-faith exception to the exclusionary rule. The good-faith exception applies where the police act with an objectively reasonable, good-faith belief that their conduct is lawful. The Supreme Court has applied the good-faith exception in cases where the police relied upon a facially valid warrant, and where police relied upon erroneous information from the Clerk of Court’s office concerning an outstanding warrant.

The Court found that a deliberate lie about the existence of a warrant was unlike other situations where the good-faith exception has applied. The officer who made the statement in this case was a sixteen-year veteran of the police force that the Court reasoned could not have believed that it was lawful to lie about the existence of a search warrant. It is settled law that such lies are violative of the Fourth Amendment.

The government argued that the officers did not intend to violate Rush’s rights, but rather lied to him in order to protect the co-habitant. Whether or not this was truly their motive, (and the Court cited evidence showing that it was likely not) the test for the good-faith exception is subjective rather than objective. The the police officers’ subjective intentions are therefore irrelevant.

Exclusion of this Evidence will Deter Police Misconduct

Unlike the district court, the Fourth Circuit found that excluding the evidence would likely deter police officers from violating the Fourth Amendment in similar circumstances going forward. Quoting the Sixth Circuit, the Court stated “so long as there is an exclusionary rule, it seems safe to say that it will apply to officers who enter and remain in a house based on false pretense.”

Reversed and Remanded

For the above reasons, the Fourth Circuit reversed the district court’s decision on the suppression motion and remanded the case for further proceedings.

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