Wake Forest Law Review
23Oct

Fourth Circuit Affirms Motion to Suppress After Warrantless Search

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By Sarah Saint

On October 23, 2015, in the criminal case of United States v. Dmytro Patiutka, the Fourth Circuit issued a published opinion affirming the district court’s grant of Defendant Dmytro Patiutka’s motion to suppress evidence. In this case, the Fourth Circuit answered the United States of America’s interlocutory appeal to the district court’s ruling arguing in the alternative that the search was either incident to an arrest or fell within the Fourth Amendment’s warrant requirement automobile exception.

State Troopers Searched Patiutka’s Car Without Warrant

A patrol car camera recorded the following stop. Virginia State Trooper G.S. Cox pulled over an SUV with tinted windows and tinted license plate cover when the driver failed to maintain lane on April 27, 2013. Patiutka gave the trooper a license with the name “Roman Pak.” When the trooper asked Patiutka for his birth date, Patiutka told him a date eight years from the date on the license. The trooper testified he thought Patiutka was lying in violation of Virginia law, but the trooper asked Patiutka no more questions about this. The trooper ran the supplied information through police databases, received no results, and told Patiutka he was “free to go.”

Once Patiutka began to walk to his car, the trooper asked if he could search Patiutka’s car, which the trooper believes he received consent for, and signaled to other troopers to begin searching the car. One trooper found a bag containing a credit card reader and a suitcase containing four unopened iPads. Patiutka asked the trooper who had stopped him why his car was being searched. The trooper responded that Patiutka consented. Patiutka asked for them to stop. Then, when another trooper announce Patiutka was under investigative detention, the first trooper put handcuffs on Patiutka and took him back to the patrol car. The troopers then found a credit card embosser, credit card re-encoder, and blank credit cards. At the end of the search, a trooper transported Patiutka to the state police station and read him his Miranda rights. He was questioned at the station and made incriminating statements.

On January 13, 2014, the Government filed a criminal complaint against Patiutka, charging him with access device fraud and aggravated identity theft. On March 20, 2014, a grand jury indicted Patiutka.

Patiutka Moved to Suppress Evidence from Warrantless Search

Patiutka moved to suppress the physical evidence found in his car as well as all statements and evidence that flowed from the warrantless search. The Government claimed that the statements and evidence were admissible under the vehicle exceptions to the Fourth Amendment’s warrant requirement. The district court wholly rejected the Government’s assertions. The Government then filed an interlocutory appeal.

Standard of Review

The Fourth Circuit reviewed the district court’s legal determinations underlying the grant of the motion to suppress evidence de novo and the factual findings for clear error.

Fourth Amendment Prohibits Warrantless Searches Save For Small Exceptions

The Fourth Amendment protects people from unreasonable searches and seizures. Warrantless searchers are presumed unreasonable except in a limited number of cases. The Government argued that the warrantless search was reasonable for two reasons in the alterative: either the search was incident to Patiutka’s arrest or the search fell within the automobile exception.

Incident to Arrest Exception Does Not Apply Here

Officers may search a vehicle if the arrestee is near the car or it is reasonable to believe there is evidence incident to the arrest near the car. If the search begins before arrest, officers must have probable cause to arrest prior to the search. The Government contends that the officers had probable cause because Patiutka gave false identity information, but the Fourth Circuit did not find this persuasive because the district court found the officer did not have cause to arrest Patiutka before the search based on the evidence provided. Because the officers did not have cause to arrest Patiutka for any reason when they continued the search without Patiutka’s consent, the incident to arrest exception cannot apply and the search violated the Fourth Amendment.

Automobile Exception Does Not Apply Here

Officers may search a vehicle if they have probable cause it contains evidence of any criminal activity. The district court found that when the officers only found a credit card reader and suitcase with new iPads, this was not enough to provide a basis for probable cause after Patiutka withdrew consent. The officers should have questioned Patiutka about the contents found during the consensual search. Because the officers had no probable cause to search, the automobile exception cannot apply and the search violated the Fourth Amendment.

Government Tried to Apply the Collective-Knowledge Doctrine

The Government argued that the collective-knowledge doctrine gave the searching officers probable cause to search the car. The collective-knowledge doctrine allows a court to substitute the knowledge of the instructing officer to the acting officer. However, the officers did not communicate with each other, so the doctrine cannot save the search, and no officer had sufficient knowledge to justify a warrantless search.

Fourth Circuit Affirmed the District Court’s Judgment

The Fourth Circuit found neither of the Government’s contentions that a Fourth Amendment exception applied here persuasive. Thus, the Fourth Circuit affirmed the district court’s judgment to grant Patiutka’s motion to suppress evidence.

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22Oct

Fourth Circuit Found that Police Did Not Have a Reasonable Suspicion Justifying Detention of an Individual

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By Whitney Pakalka

On October 22, 2015, the Fourth Circuit issued its published opinion in the criminal case of United States v. Slocumb. The Fourth Circuit reversed the District Court for the Western District of Virginia’s denial of a motion to suppress evidence. Because there was no particular and objective basis that created a reasonable suspicion for officers to detain Slocumb, the Fourth Circuit reversed the denial of Slocumb’s motion.

Slocumb’s Arrest and Conviction 

On March 18, 2013, Andre Slocumb, his girlfriend, Sierra Lewis, and an infant were in the parking lot of a salvage yard around midnight, transferring a child car seat from one vehicle to another. This same parking lot was chosen by the Culpeper, Virginia Police Department as a staging area prior to executing a search warrant on a nearby home. Approximately ten officers arrived at the parking lot, including Lieutenant Timothy Chilton. Chilton approached Slocumb and Lewis to inquire about their presence because the parking lot was known for criminal activity. Slocumb informed Chilton that he was there to pick up Lewis, whose car had broken down. Officer Chilton though Slocumb began hurrying Lewis, acted evasively, did not make eye contact, and gave mumbled responses to his questions.

When another officer asked Slocumb for identification, Slocumb provided a false name. The name given came back as valid for someone that matched Slocumb’s appearance. One of the officers then asked Lewis for Slocumb’s name, and she identified him as Hakeem Jones, a different name than Slocumb had given. Slocumb was placed under arrest for providing a false name, and officers discovered close to $6,000 on his person. Lewis gave consent for the officers to search the car that Slocumb had arrived in to pick her up. The officers found methamphetamine, cocaine powder, cocaine base, and a small amount of marijuana in the car.

Slocumb was indicted by a federal grand jury on three counts, and filed a motion to suppress the physical evidence seized by officers and incriminating statements he made after his arrest. The District Court denied Slocumb’s motion, finding that the officers had reasonable suspicion to justify Slocumb’s initial detention and had probable cause to arrest him. Slocumb pleaded guilty and was sentenced to ninety-four months on all three counts, to run concurrently. He appealed the denial of his motion to suppress, arguing that his Fourth Amendment right had been violated because he was detained by the police without a reasonable suspicion he had violated the law.

Fourth Amendment Right to be Free from Unreasonable Search and Seizure 

The Fourth Amendment provides the right to be free from unreasonable search and seizure. In considering when a police stop constitutes an unreasonable seizure, The Supreme Court has held that an officer may detain a person to conduct a brief investigation if he “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968). In order for the police to have a reasonable basis for stopping an individual, “the officer ‘must be able to point to specific and articulable facts which . . . reasonably warrant that intrusion.’” Id. at 21.

The Fourth Circuit applies a totality of the circumstances test in considering whether an officer had a reasonable suspicion of criminal activity justifying a stop. The Court cautioned that the government “must do more than simply label a behavior as ‘suspicious’ to make it so,” but must “articulate why a particular behavior is suspicious . . . given the surrounding circumstances.” United States v. Massenburg, 654 F.3d 480, 491 (4th Cir. 2011).

The Officers in this Case Did Not Have a Reasonable Basis for Detaining Slocumb

 The Fourth Circuit concluded that the factors considered by the District Court did not satisfy the totality of the circumstances test. The District Court considered, among other things, the lateness of the hour that Slocumb was in the parking lot, the fact that the parking lot belonged to a business that had been closed for several hours, and that it was a high crime area. The Fourth Circuit found that all of these considerations could contribute to a finding of a reasonable suspicion, however these “objective factors ‘do[] little to support the claimed particularized suspicion as to [Slocumb].’” Id. at 488.

The District Court had also considered Slocumb’s particular behavior in hurrying Lewis, avoiding eye contact, and giving mumbled answers. The Fourth Circuit found this behavior to be insufficient to support reasonable suspicion. The Court noted that behavior that has supported a reasonable suspicion included attempts to flee or “more ‘extreme’ or unusual nervousness or acts of evasion.” United States v. Foreman, 369 F.3d 776, 784 (4th Cir. 2004). Heavy breathing, sweating, and trembling hands were suggested by the Court as behaviors that may demonstrate an unusual nervousness, and thus support a reasonable suspicion. The Court found that Slocumb did not attempt to evade officers, but instead acknowledged them and answered their questions in a way that was consistent with his behavior. The Court found that the police had “no more reason to suspect that Slocumb was engaged in criminal activity than [they did] to believe his stated purpose and corresponding actions.”

The Fourth Circuit Reversed the District Court’s Denial of Slocumb’s Motion to Suppress

Because the police could not provide a sufficient objective and particular basis to create a reasonable doubt that would justify detaining Slocumb, the Fourth Circuit reversed the District Court’s ruling, vacated Slocumb’s conviction and sentence, and remanded for further proceedings.

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14Oct

Fourth Amendment Protections Weakened in Deportation Proceedings

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By Eric Jones

On June 16, 2015, the Fourth Circuit issued a published opinion in the civil removal case Yanez-Marquez v. Lynch.  Maria Yanez-Marquez (Yanez) was petitioning to the Fourth Circuit for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal from an order for her removal from the United States.  The Circuit Court held that the violations of Yanez’s Fourth Amendment rights were not egregious, and thus denied her petition for review.

 

The Execution of the Search Warrant

In June of 2008, agents from Immigration and Customs Enforcement (ICE) were granted a search warrant for 402 Harbor Drive, Annapolis, Maryland, because it was suspected that the landlord was harboring illegal aliens.  The warrant was to be executed between 6:00 a.m. and 10:00 p.m., and described the residence as a “single-family home.”  The warrant was broad and authorized agents to seize “illegal aliens, travel documents, financial records, and photographs of harbored aliens.”  At approximately 5:00 a.m. on June 30, ICE agents knocked on the door of the residence and entered to begin the search.  According to Yanez, the agents burst into the bedroom where she and her partner were sleeping, and pointed guns at them while demanding that they “don’t move” in both English and Spanish.  Upon being informed that Yanez was pregnant, the agents called a female agent to assist and reassure her.  Yanez was never handcuffed or led outside of the dwelling, but was questioned for 5-10 minutes about her identity.  As a result of the search, the agents arrested Yanez’s partner, and had her sign several forms indicating that Yanez had been illegally present in the United States since April of 2007.  The agents also seized Yanez’s pay stubs, tax returns, and photo albums as they left at 9:15 a.m.  The ICE contested Yanez’s statements regarding the timing of the search as well as the force used during the search.

 

The Removal Proceedings

Yanez was issued a notice to appear before an Immigration Judge (IJ) for removal proceedings.  On February 10, 2010, the Department of Homeland Security (DHS) filed a submission of intended evidence, including the forms Yanez signed during the search, the warrant itself, and the affidavit supporting the warrant.  Yanez filed a motion to suppress the evidence, arguing that during the search, the agents “egregiously violated” her Fourth Amendment rights.  The IJ found that, accepting Yanez’s claims as true, her rights had not been “egregiously violated.”  Although the execution of a search warrant prior to the time it was granted would constitute a violation of Yanez’s Fourth Amendment rights, the IJ reasoned that being early by a single hour “does not amount to conduct that ‘shocks the conscience,’” and thus was not an egregious violation.  As to the force used, the IJ found that Yanez had made no showing of excessive force, noting that agents executing a search warrant are reasonably cautious about dangerous situations.  The IJ found that the agents had acted reasonably, had not brandished their guns for longer than necessary to assure their safety, and had gotten a female agent to aid and comfort Yanez as soon as was reasonable.  For these reasons, the IJ denied the motion to suppress the evidence.  On December 13, 2010, the IJ found that the DHS had satisfied their burden, and ordered that Yanez be removed from the United States and returned to El Salvador.

On appeal to the BIA, the BIA held that the exclusionary rule, which operates to exclude evidence obtained in violation of the defendant’s Fourth Amendment rights, does not apply in civil removal proceedings unless the violations were egregious.  The BIA then, relying on the reasoning of the IJ, held that the violations had not been egregious, and thus affirmed the IJ’s order.

 

The Applicability of the Fourth Amendment in Civil Removal Cases in the Fourth Circuit

Initially, the Fourth Circuit noted that the question of the applicability of the Fourth Amendment exclusionary principle was a matter of first impression for the Circuit.  The Court began by analyzing the Supreme Court of the United States’ ruling in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).  In Lopez-Mendoza, the Supreme Court held that the ordinary Fourth Amendment exclusion, which barred all evidence obtained through any violation of the Fourth Amendment, was inapplicable to civil removal proceedings because the costs of exclusionary principle, including dramatically increased complexity to the streamlined process of removal, outweighed the benefits of the exclusionary principle.  Additionally, because civil removal proceedings are not criminal and do not punish but merely prevent continued illegal activity, the Court reasoned that the Fourth Amendment protections were not as critical.  Four Justices in Lopez-Mendoza vigorously dissented, and the majority opinion opined in dicta that “egregious violations” and “widespread” violations by officers may nevertheless render the exclusionary principle applicable in some instances.

In this case, the Fourth Circuit held that the exclusionary principle must apply to all egregious violations of the Fourth Amendment because “[t]o hold otherwise would give no effect to the language used by the Supreme Court in Lopez–Mendoza expressing concern over fundamentally unfair methods of obtaining evidence.”  The Circuit Court further held that refusing to apply the exclusion “would ignore the fact that eight justices in Lopez–Mendoza seem to have agreed that the exclusionary rule applies in removal proceedings in some form.”  Thus, in the Fourth Circuit, an petitioner in a civil removal case must show not only that her Fourth Amendment rights were violated, but also that those violations were “egregious.”

 

The Standard for “Egregiousness” of a Fourth Amendment Violation

The Lopez-Mendoza Court stated “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained” might be reason to apply the exclusion. Despite the use of “and” by the Supreme Court, the Fourth Circuit held that a petitioner can succeed if she can show either (1) egregious violation or (2) a violation that undermines the probative value of the evidence.  To hold otherwise, the Circuit explained, would dramatically reduce the application of the rule because nearly all evidence obtained through egregious violations is physical evidence, which has the same probative value regardless of the manner of acquisition.  Examples given by the Circuit of egregious violations included “a stop based on Hispanic appearance alone,” “repeatedly ignor[ing a] detainee’s request for counsel,” and “a nighttime warrantless entry into the aliens’ residence.”

The Fourth Circuit rejected the Ninth Circuit’s standard for egregiousness, which focuses on the “bad faith” of the agents, and embraced the “totality of the circumstances” test used by the Second, Third, and Eighth Circuits.

 

Yanez’s Alleged Fourth Amendment Violations

Yanez’s first allegation of egregious violation of her Fourth Amendment rights was that the warrant listed her residence as a “single-family home,” when it was in fact a multi-unit dwelling.  The Fourth Circuit explained that the warrant is sufficiently tailored when an agent executing it can “reasonably ascertain and identify the intended place to be searched.”  In holding that the warrant used to search Yanez’s home was adequate, the Circuit emphasized that the premises had been under ICE surveillance and agents had no reason to believe multiple families dwelled there, it was a small single-story home, and the premises had just one mailbox.  Thus, because the outward appearance is reasonably identified by a description of a “single-family home,” the Fourth Circuit rejected Yanez’s first argument.

Yanez next argued that, upon entry, the agents should have known it was a multi-family dwelling because “the bedroom door was locked,” which transforms it into a separate dwelling.  However, because it is not unusual for a bedroom door to be locked and there was no other indication in the home that it was a multi-unit dwelling, the Circuit held that the ICE agents had not made any mistake in proceeding with the warrant, and even if they had, it was an innocent and reasonable mistake.

Yanez’s final argument was that entering the home at 5:00 a.m. constituted a “nighttime search,” which fell outside of the warrant and implicates higher scrutiny because of the heightened intrusion.  The Fourth Circuit agreed that because a daytime search is defined as between 6:00 a.m. and 10:00 p.m., the search of Yanez’s residence was by definition a nighttime search.  The Fourth Circuit went on to hold that nighttime execution of a daytime warrant is a violation of the Fourth Amendment, absent consent or exigent circumstances.  Thus, because there was no consent given by either Yanez or the judge who issued the warrant, nor were there any additional facts which may have constituted exigent circumstances justifying a nighttime search, the Fourth Circuit held that the ICE had violated Yanez’s Fourth Amendment rights by executing the search.  However, when considering the totality of the circumstances, the Circuit held that this violation was not egregious.

Facts to support a finding of egregiousness included the fact that it was a nighttime search and the fact that the search was of Yanez’s home, where her privacy interests are strong.  Supporting the non-egregiousness of the search included the fact that no ICE agents threatened, coerced, or physically abused Yanez, nor did they offer or promise her anything in exchange for cooperation.  Additionally, Yanez was not handcuffed, nor was she removed from the home.  Furthermore, there was no evidence of diminished capacity, the questioning was not particularly lengthy, and there is no evidence that the agents were motivated by racial considerations.  Finally, the Circuit explained that presence of a valid search warrant for the premises reduces the harm of the intrusion, and the agents executing the warrant did not use force beyond that necessary to secure their safety.  The Fourth Circuit thus held that the nighttime search, while a violation, was nevertheless not an egregious violation of Yanez’s Fourth Amendment Rights.

 

The Fourth Circuit Denied Yanez’s Petition for Review

Because the alleged violations of Yanez’s Fourth Amendment rights were all either not violations at all or not egregious, the Fourth Circuit denied Yanez’s petition for review of the IJ’s order for her removal from the United States.

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16Sep

Fourth Circuit Affirms Summary Judgment on the Basis of Qualified Immunity

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By Malorie Letcavage

Overview

In a published opinion of a civil case issued on April 28, 2015, the Fourth Circuit affirmed the lower court’s decision to grant summary judgment on the basis of qualified immunity in the case of Raub v. Campbell. The appellant, Brandon Raub, argued that his Fourth Amendment right to be free from unreasonable seizures, and his First Amendment right to free speech were violated by the appellee, Michael Campbell. Raub also sought injunctive relief even if his constitutional claims failed. In reviewing the district court’s grant of summary judgment, the Fourth Circuit used a de novo standard. The Fourth Circuit upheld the district court’s grant of summary judgment on the basis of qualified immunity because it found that Raub’s Fourth Amendment rights were not violated, he had not pled sufficient facts for a First Amendment claim and there was no abuse of discretion in the district court’s dismissal of his injunctive claim for relief.

Factual Background

In the summer of 2012, two Marine veterans that had served with Brandon Raub contacted the FBI about Raub’s Facebook posts. Raub posted threatening messages and employed extremist language in numerous posts. The FBI and local law enforcement visited Raub to question him about his Facebook activity. The agents reported that Raub’s behavior was unusual because during the interview he was preoccupied, could not maintain eye contact and displayed extreme mood swings.

The agents contacted Michael Campbell, a certified mental health “prescreener” affiliated with the local emergency services. Campbell recommended Raub be detained for evaluation, at which point the officers took Raub to the local jail. Campbell interviewed Raub and noted the same behavior the officers had described; Raub was distracted, and had trouble answering questions. Campbell concluded Raub might be paranoid and delusional.

Campbell petitioned and was granted a temporary detention from the magistrate because Raub was displaying signs of psychosis. Four days into the temporary detention, the court ordered that Raub be admitted to the hospital for thirty days. However, a few days later Raub was released because the court found that the petition had insufficient factual allegations. Raub then filed suit under 42 U.S.C. §1983 against Campbell. The district court granted Campbell’s motion for summary judgment due to qualified immunity and denied Raub’s request for injunctive relief.

42 U.S.C. 1983

This statute provides an avenue to pursue a civil action for a deprivation of constitutional rights. It lays out that any person acting under the color of state law (which, as in this case, can include a mental health professional associated with emergency services) who subjects anyone to a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” will be liable to the party injured.

Appellant’s Fourth Amendment Rights Were Not Violated

The court explained that qualified immunity analysis has two prongs: 1. Whether the plaintiff has established the violation of a constitutional right and 2. Whether that right was clearly established at the time of the alleged violation.

The court decided to start its evaluation with the second prong and held that Campbell’s conduct was not proscribed by clearly established law. The court noted that a seizure requires probable cause but there is a lack of clarity in the law concerning seizures for psychological evaluations. The court then went on to cite the major cases in the Fourth Circuit which all held that that seizures for psychological evaluation were upheld when the person was a threat to himself or others. The court held that due to the totality of the factors, including the content of Raub’s Facebook posts, the initial observations by the officers and Campbell’s observations of Raub, Campbell did not violate Raub’s Fourth Amendment rights because his petition to detain was reasonable based on existing precedent.

Appellant Failed to Allege Sufficient Facts for a First Amendment Claim

            Though Raub contended that Campbell only recommended detention based on Raub’s “unorthodox political statements,” the court found that Campbell had numerous other reasons for recommending detention. The court cited the content of the Facebook posts, Raub’s behavior during the interview, and the increasingly threatening nature of his posts. Even if the political statements were part of the decision, the court found Campbell had plenty of other reasons for Raub to be detained. Thus the court held that Raub did not sufficiently allege facts for a First Amendment violation and Campbell was entitled to qualified immunity.

Appellant’s Claim for Injunctive Relief Was Properly Rejected 

            The court reviewed the denial of injunctive relief for abuse of discretion, and it found none. Under §1983 when a plaintiff is seeking injunctive relief, he needs to demonstrate a real or immediate threat that he will be wronged again in a similar way. However, Raub only alleged that his political beliefs would subject him to seizures and retaliation in the future. The court found that this claim was too speculative and did not reach the level needed to grant equitable relief.

Conclusion

The court did not find that Raub’s Fourth Amendment rights were violated nor did it find that he had alleged sufficient facts for a First Amendment claim. It also found no abuse of discretion in the dismissal of the claim for injunctive relief. Therefore, the court affirmed the lower court’s grant of summary judgment.

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30Mar

Mandate Rule Bars 4th Amendment Claim on Appeal

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By Dan Menken

Today, in the unpublished opinion of United States v. Hawkins, the Fourth Circuit affirmed the conviction of Collin Hawkins for being a felon in possession of a firearm.  Hawkins was sentenced to 63 months’ imprisonment and two years of supervised release.

Hawkins Participated in Carjacking

On November 22, 2006, the Defendant participated in the carjacking and robbery of a Baltimore taxi driver.  When the Defendant was arrested, the arresting officer witnessed the Defendant reach for his waistband and subsequently discovered a firearm.  The Defendant was initially convicted of (1) carjacking, (2) possessing and brandishing a firearm in furtherance of a crime of violence, and (3) being a felon in possession of a firearm.  He was sentenced to 360 months’ imprisonment.  On appeal, the Fourth Circuit reversed the Defendant’s convictions on the first two counts because they were improperly joined to the third count.  On remand, the government elected not to retry the first two counts, and the Defendant was eventually sentenced to 63 months’ imprisonment.

On appeal, Hawkins argued that the gun underpinning his conviction should have been suppressed because the search and seizure violated the Fourth Amendment.  Additionally, Hawkins argued that he had ineffective assistance of counsel.

Mandate Rule Bars Fourth Amendment Appeal 

The Fourth Circuit looked to whether the mandate rule precluded the Defendant from raising the Fourth Amendment claim.  The mandate rule generally bars litigation of issues that could have been, but were not, raised before remand.  Exceptions to the mandate rule include circumstances where (1) a litigant can demonstrate that the legal landscape has dramatically changed, (2) significant new evidence has come to light, or (3) a “blatant error in the prior decision will, if uncorrected, result in a serious injustice.”  United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993).

The Fourth Circuit concluded that the error here was not blatant.  The Fourth Circuit and other circuits have determined that grabbing, touching, or securing a waistband may be evidence of the possession of a firearm when considering the totality of the circumstances.  Because the Defendant waived his Fourth Amendment claim by not raising it on his first appeal and no exception applied, the Fourth Circuit concluded that the mandate rule barred his Fourth Amendment claim.

Ineffective Counsel Claim Fails

Additionally, the Defendant asserted that his appellate counsel was ineffective for failing to raise his Fourth Amendment claim previously.  To raise a cognizable ineffective assistance of counsel claim, a Defendant must demonstrate that (1) his appellate counsel was deficient and (2) he suffered prejudice as a direct result of this deficiency. Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc).

The Court noted that the law presumes effective assistance.  In order to overcome that presumption, the Defendant must show that their appellate counsel ignored clearly strong arguments on appeal.  Based on the success of the Defendant’s counsel in reducing Defendant’s sentence on the previous appeal, the Fourth Circuit concluded that the Defendant’s ineffective counsel claim failed.

Affirmed

The Fourth Circuit affirmed the judgment of the district court and upheld Hawkins’ sentence.

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27Feb

The “Totality of the Circumstances” Includes Conduct By Defendant Between The Time Police Officer Turns On Siren And When Vehicle Stops

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By: Michael Klotz

Today, in the unpublished opinion of Unites States v. Skyler Jovelle Holley, the Fourth Circuit reversed the decision of Senior District Judge W. Earl Britt of the District Court for the Eastern District of North Carolina. The court held that the district court erred in failing to consider conduct by the Defendant between the time that the police officer turned on his siren and when the Defendant was actually stopped in assessing “reasonable suspicion” under the Fourth Amendment.

Facts

Deputy John McArthur, who was on duty in Edenton, North Carolina, received a call from a confidential informant to be on the lookout for Mr. Holley, who had just pulled a gun on someone near the Crown Mart on Oakum Street and driven away in a white Cadillac. Deputy McArthur did not know Mr. Holley, but he had previously seen his headshot and knew that he was a black man. Shortly after receiving this call, Deputy McArthur saw a white Cadillac with two black male passengers on the other side of town. Deputy McArthur judged that enough time had passed that this could be the same vehicle referenced by the informant. Deputy McArthur turned on his lights and attempted to stop the vehicle. The driver of the white Cadillac, who was leaned back in his seat, did not pull over, but instead made a right turn and drove slowly and erratically. The vehicle eventually pulled into a driveway and stopped. When Duty McArthur searched the vehicle he discovered that Mr. Holley was one of the occupants. Mr. Holley had a .38 caliber pistol in his pocket, and another .38 caliber gun was discovered on the floor of the vehicle. Mr. Holley was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924.

District Court Grants Defendant’s Motion To Suppress

Mr. Holley filed a motion to the suppress the evidence discovered at the scene, including the guns, on the theory that Deputy McArthur did not have “reasonable suspicion” to stop his vehicle merely on the basis of a tip to be on the lookout for a black male driving a white Cadillac. Reasonable suspicion by a police officer is necessary to justify a stop under the Fourth Amendment of the U.S. Constitution.

The district court granted Defendant’s Motion to Suppress, holding that there was no “reasonable, articulable” grounds for the officer to believe that the vehicle stopped was the same vehicle referenced by the confidential informant. The court noted that Deputy McArthur did not recognize the driver as being Mr. Holley, and the fact that the driver was slumped in his seat—along with the fact that it was a white Cadillac with black occupants—was insufficient to justify the stop. The district court noted that Cadillacs are common in the black community in rural eastern North Carolina, and thus the vehicle stopped might have been uninvolved in the alleged incident. In rendering its decision, the district court did not consider Mr. Holley’s conduct between the time that Deputy McArthur initiated his siren and when the vehicle eventually pulled over. The government filed a motion for an evidentiary hearing or to reconsider the motion to suppress on the existing record, which was denied. The government timely appealed.

The Fourth Circuit Reverses Based Upon The “Totality Of The Circumstances”

The Fourth Circuit reversed the district court, denying the Defendant’s Motion to Suppress, and finding that based upon the “totality of the circumstances” Deputy McArthur did have reasonable suspicion to stop the suspect vehicle. The district court failed to consider the conduct by the Defendant while he was being followed by the police officer. However, under clear Fourth Circuit precedent a seizure requires either 1. the application of physical force; or 2. both an assertion of authority and submission or acquiescence to that show of authority. In this case, the second form of seizure is at issue. There was an “assertion of authority” by Deputy McArthur when he turned on his police siren. However, the Defendant did not acquiesce to this “show of authority” until the vehicle actually stopped. Thus, the district court erred as a matter of law in failing to consider the Defendant’s conduct between the time that the police siren was turned on and when the vehicle came to a halt. During this time, the Defendant failed to pull over and exhibited an “unusual driving pattern.” The Fourth Circuit concluded that this conduct, considered in light of the fact that the vehicle was a white Cadillac with black occupants as referenced by the informant, was sufficient to create “reasonable suspicion” to justify a Fourth Amendment seizure. Thus, the Fourth Circuit concluded that the district court erred in granting Defendant’s Motion to Suppress, and the decision was reversed and remanded.

 

 

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26Jan

Fourth Amendment Protects Curtilage of Home From Unreasonable Search

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By Dan Menken

Today, in the civil case of Covey v. Assessor of Ohio County, a published opinion, the Fourth Circuit reversed the district court’s dismissal of Christopher and Lela Covey’s suit against government officials for entering the curtilage of their house without a search warrant.

Question of Fourth Amendment Protection From Unreasonable Government Intrusion

The Court was asked to decide whether government officials violated the Coveys’ Fourth Amendment right to protection from unreasonable government intrusion when the government officials entered the curtilage of the Covey’s home in search of marijuana without a warrant.

Government Tax Assessor Relayed Information to Police Regarding Marijuana Plants

On October 21, 2009, a field deputy for the tax assessor of Ohio County, West Virginia, entered the Covey’s property to collect data to assess the value of the property for tax purposes. The tax assessor entered the Covey’s property despite seeing “No Trespassing” signs, which is against West Virginia law. When searching the property, the tax assessor found marijuana in the Covey’s walk-out basement patio. The tax assessor then contacted the police.

When the police arrived, they entered the curtilage of the Covey’s residence and proceeded to the area where the marijuana was located. As they were searching the property they encountered Mr. Covey. The officers detained Mr. Covey and continued their search. The officers then waited several hours to obtain a warrant to search the house. During that time, Mrs. Covey returned home and was warned that she would be arrested if she entered the house, after which she left the premises. Upon returning an hour later, Mrs. Covey was seized and interrogated. After the police received the search warrant, the Coveys were arrested and jailed overnight.

On March 30, 2010, Mr. Covey pleaded guilty in state court to manufacturing marijuana in exchange for the government’s promise that they would not initiate prosecution against Mrs. Covey. He was sentenced to home confinement for a period of not less than one year and not more than five years. On October 20, 2011, the Coveys brought this suit pro se. The claims, brought under 42 U.S.C. § 1983 and Bivens, alleged that several defendants violated the Coveys’ Fourth Amendment rights by conducting an unreasonable search. The district court dismissed the Coveys’ claim concluding that none of the defendants violated the Fourth Amendment. This appeal followed.

Fourth Amendment Protects Curtilage of Home

The Court reviewed the district court’s grant of a motion to dismiss de novo. To prevail on a motion to dismiss, a plaintiff must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal. A claim is plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

According to Oliver v. United States (1984), the Fourth Amendment protects homes and the “land immediately surrounding and associated” with homes, known as curtilage, from unreasonable government intrusions. Probable cause is the appropriate standard for searches of the curtilage and warrantless searches of curtilage is unreasonable.   The knock-and-talk exception to the Fourth Amendment’s warrant requirement allows an officer, without a warrant, to approach a home and knock on the door, just as any ordinary citizen could do. An officer may bypass the front door when circumstances reasonably indicate the officer might find the homeowner elsewhere on the property. The right to knock and talk does not entail a right to conduct a general investigation on a home’s curtilage.

The Complaint Presented Plausible Claims For Violations of the Fourth Amendment

Properly construed in the Coveys’ favor, the complaint alleges that the officers saw Mr. Covey only after they entered the curtilage. Thus, applying the Rule 12(b)(6) standard, the Court found that the Coveys plausibly alleged that the officers violated their Fourth Amendment rights by entering and searching the curtilage of their home without warrant. The district court erred by accepting the officers account of events, in which they stated that they saw Mr. Covey prior to entering the curtilage.

Turning to the tax assessor, the Court believed that his entering of the property, although illegal, was not a per se violation of the Fourth Amendment. In this case, the Court believed that the governmental interest in the search for tax purposes was minimal, while the Covey’s privacy interest is significant. Therefore, the Fourth Circuit held that the Coveys pleaded a plausible claim that the tax assessor conducted an unreasonable search of their home and curtilage.

Defendants’ Affirmative Defenses

According to Ashcroft v. al-Kidd (2011) qualified immunity “shields federal and state officials form money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct. As to the police officers, the Court stated that they should be aware that a warrantless search of the home, absent consent or exigency, is presumptively unconstitutional. Additionally, the Court noted that Fourth Circuit has, for over a decade, recognized that the curtilage of the home is entitled to Fourth Amendment protection. The Court felt that the tax assessor presented a closer case. Because there was no case law that spoke to a similar set of facts, and the tax assessor should have been aware that he was violating a Constitutional right by searching the property, the Court ruled that the tax assessor was not entitled to qualified immunity.

Finally, the defendants claimed that the Coveys’ § 1983 and Bivens claims are barred by Heck v. Humphrey (1994). There are two requirements for Heck to bar the Coveys’ claims. First, “a judgment in favor of the plaintiff [must] necessarily imply the invalidity of [a plaintiff’s] conviction or sentence.” Second, the claim must be brought by a claimant who is either (i) currently in custody or (ii) no longer in custody because the sentence has been served, but nevertheless could have practicably sought habeas relief while in custody. The court concluded that Mr. Covey’s claims did not necessarily imply the invalidity of his conviction and thus are not necessarily barred by Heck. The Court remanded the district court for further analysis under Heck.

Reversed and Remanded

Thus, the Fourth Circuit reversed the district court’s grant of dismissal and remanded the case for further proceedings.

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13Jan

Fourth Circuit Considers Fourth Amendment Rights of Parolees

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By: Caroline Daniel

In United States v. Hill, a published opinion released today, the Fourth Circuit considered how Fourth Amendment protections apply to citizens who are on supervised release.

Question About Conditions of Defendant’s Supervised Release

Defendant Eric Barker was serving a term of supervised release in February 2013.  As a condition of the release, Barker was required to notify his probation officer if he moved.  He was also required to allow his probation officer to visit any time, whether scheduled or unscheduled.  During the probation officer’s visit, the officer could “confiscate contraband in plain view.”

Based on a suspicion that Barker had moved without giving proper notification, officers obtained a warrant for his arrest and served it at his new residence.  Barker was present at the residence with two other persons (also on supervised release, and also defendants in this case).  The officers took all defendants into custody and performed an initial sweep of the home.  Upon seeing needles, cotton balls, and spoons in the bathroom of the home, the officers then used a drug-detection dog to search the apartment.  The dog led the officers to heroin, prescription pills, LSD, synthetic marijuana, and other paraphernalia.  After the dog and his handler walked through the home, the officers obtained a search warrant and seized the illegal items.

Fourth Circuit Considers Whether the Second Search Was Permissible

The defendants were charged with various drug offenses based on the contraband found in the residence.  Based on the Fourth Amendment, they filed motions to suppress any evidence found during the search.  The defendants claimed that the second search was illegal, as the officers failed to obtain a warrant until after the search was complete.  The district judge denied the motions, reasoning that by allowing his probation officer to visit him at any time, Barker had consented to any searches based on the visiting officer’s reasonable suspicions.

The Fourth Circuit considered whether the district court erred, and whether the scope of the Fourth Amendment as applied to persons on supervised release invalidated the second search as illegal.

Defendant Consented to Visits From Parole Officer, But Not Searches

Reviewing the motions de novo, the Fourth Circuit relied on a thirty-year-old decision, United States v. Bradley, to conclude that the search in question was illegal.  In Bradley, the Fourth Circuit held that when a parolee consented to unannounced visits by his parole officer, he was not completely giving up the rights afforded to him in the Fourth Amendment.  In both Bradley and the current case, the defendants had consented to visits from their parole officers, but not to any other searches.

Though the Fourth Circuit had considered similar issues in three more recent cases, the Court determined that none of these overruled the holding of Bradley.  Accordingly, the Court, reaffirmed Bradley’s holding, concluding that “a parole officer must secure a warrant prior to conducting a search of a parolee’s place of residence even where, as a condition of parole, the parolee has consented to periodic and unannounced visits by the parole officer.”

Search Illegal, But Question About Whether Evidence Admissible Still Lingers

The Fourth Circuit found both factual and legal errors in the district court’s analysis of whether the contraband seized could be admitted despite the illegality of the search.  The Court reversed and remanded the case for further proceedings consistent with the opinion.

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10Nov

Search and Stop Are Proper with a Reasonable Suspicion

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by David Darr

On Friday, in United States v. Walker, an unpublished per curium opinion, the Fourth Circuit affirmed the decision of the District of Maryland to deny the defendant’s motion to suppress evidence. The court held that police had a reasonable suspicion to both arrest and search the defendant.

Was Arrest and Search Proper?

The issue in this case was whether the police had a reasonable suspicion to arrest the defendant and a reasonable fear for the officer’s own and others’ safety to search the defendant.

Walker’s Arrest and Search

Early in the morning on January 30, 2011, the police received a call from a 911 dispatcher that a man with a gun was at a Denny’s in Baltimore. An officer who was already in the area responded to the call and upon exiting his vehicle he encountered two men pointing to the defendant, Stephan Sylvester Walker, Jr., and telling the officer that Walker is “the guy with the gun.” The officer ordered Walker to get down on the ground and drew his service weapon, but Walker attempted to hide behind a car. As other officers arrived on the scene, Walker acquiesced and the police found a .45 caliber pistol in Walker’s waistband.

At trial, Walker moved to suppress, arguing that both his arrest and seizure of property were improper. The district court denied this motion, finding both the initial stop and taking of the gun were legal. Subsequently, a jury found Walker guilty of possessing a firearm and ammunition after having been convicted of a felony and he was sentenced to 293 months in prison. Walker appealed the denial of his motion to suppress because he claimed the officers lacked a reasonable suspicion.

Legal Requirements for Arrest and Search

When a motion to suppress is denied, the appellate court views the evidence in the light most favorable to the Government. The Fourth Amendment allows a police officer to stop a person when the officer has a reasonable suspicion based on the facts that criminal activity may be afoot. A reasonable suspicion depends on the totality of the circumstances, including any reasonable inferences. Additionally, an officer may also search a suspect’s person if the officer has a reasonable fear for his own or others’ safety based on a suspicion that the suspect may be armed and dangerous.

The Officer Had a Reasonable Suspicion

The Fourth Circuit, viewing the evidence in the light most favorable to the Government, found that the officer had more than enough evidence to arrest and search Walker. The circumstances surrounding the stop of Walker would create a reasonable suspicion that Walker had a gun. While an anonymous tip alone might not be enough for an officer to stop someone, the 911 call, the witnesses claiming Walker had a gun, and Walker’s evasive behavior all show there was a reasonable suspicion for the stop. Additionally, the totality of the circumstances also show that Walker was armed and potentially dangerous, creating a reasonable fear in the officers to justify the search of Walker’s person.

Fourth Circuit Affirms Decision

For the reasons stated above, the Fourth Circuit affirmed the decision of the District of Maryland.

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3Nov

Fourth Circuit Reviews for Probable Cause

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By: Diana C. Castro

Today, in United States v. Jayad Zainab Ester Conteh, the Fourth Circuit affirmed by unpublished per curiam opinion the District Court of Maryland’s denial of a motion to suppress, holding there was probable cause to justify the issuance of a search warrant. The Fourth Circuit reviewed the District Court’s factual findings for clear error and its legal conclusions de novo.

Defendant Argues the Sworn Application Supporting her Arrest Warrant Was Insufficient to Establish Probable Cause.

On appeal the defendant raised three issues: (1) the sworn application supporting her arrest warrant was insufficient to establish probable cause; (2) the officer executing the warrant did not act in reasonable good faith reliance on the state commissioner’s determination of probable cause; and (3) the District Court abused its discretion in qualifying a witness as an expert in Sierra Leoneon Creole.

Defendant was Convicted of Conspiracy to Commit Bank Fraud, Aggravated Identity Theft, and Exceeding Authorized Access to a Computer Thereby Obtaining Information Contained in a Financial Record of a Financial Institution.

Conteh, a teller for the bank, accessed accounts with information personally identifying the account holders in a way that suggested her access was unauthorized. Several bank accounts were compromised when information for the accounts was changed and checks were ordered without authorization. Further, the owner of a vehicle observed attempting to retrieve checks ordered without authorization from one of the compromised accounts relied on a bank insider to provide him information.

Probable Cause to Justify an Arrest Means a Police Officer is Aware of Facts and Circumstances That Are Sufficient to Warrant a Prudent Person in Believing That the Suspect Has committed an Offense, Under the Circumstances Shown.

Determined by the totality of the circumstances, probable cause is a fluid concept that turns on the assessment of probabilities. United States v. Dickey-Bey, 393 F.3d 449, 453–54. In reviewing the state commissioner’s probable cause determination, the court may only ask whether the commissioner had a substantial basis for concluding there was probable cause. Under this standard, the court grants much deference to the commissioner’s assessment of the facts presented to him. United States v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990).

Taking the facts of this case as a whole, the commissioner had a substantial basis to conclude that the supporting application established probable cause.

Alternatively, the Fourth Circuit Rejects the Defendant’s Claim That the Officer Did Not Rely on the Warrant in Good Faith.

Under the good faith exception, created by the Supreme Court of the United States in United States v. Leon, evidence obtained from an invalid warrant will not be suppressed if the officer’s reliance on the warrant was objectively reasonable. United States v. Perez, 393 F.3d 457, 461 (4th Cir. 2004).

Leon identifies four ways in which an officer’s reliance on a warrant would not qualify as good faith reliance. Conteh argued one of these exceptions, noting that an officer’s reliance on a warrant would not qualify as good faith if the warrant was so facially deficient that no reasonable officer could presume its validity.

However, the Court rejected, as unsupported by the record, Conteh’s assertion that probable cause is lacking because the application contains a “significant misstatement” that she was the individual who changed the information.

Reviewing for Abuse of Discretion, the Fourth Circuit Affirmed the District Court’s Decision to Qualify an Expert Witness.

In ensuring that evidence is reliable under Fed. R. Evid. 702, a district court “must decide whether the expert has ‘sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case.’” Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 162 (4th Cir. 2012). In making this decision, the court should “consider the proposed expert’s full range of experience and training.” United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009). Federal Rule of Evidence 702 “does not require any particular imprimatur.” United States v. Gutierrez, 757 F.3d 785, 788 (8th Cir. 2014).

Despite the facts that the witness does not hold degrees in Sierra Leoneon Creole, works as a teacher in another field, and had not acted as a translator for any government agency prior to his involvement in the case at bar, the Court concluded that the witness was properly qualified as an expert in Sierra Leoneon Creole based on his education and experience with the language. The witness testified regarding messages in Sierra Leoneon Creole obtained from the cellular phone seized from Conteh incident to her arrest.

Court of Appeals for the Fourth Circuit Affirmed.

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10Oct

Fourth Circuit Affirms that Motions to Suppress Evidence are Time-barred

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by David Darr

Today, in United States v. Moore, the Fourth Circuit affirmed the District of Maryland’s judgment finding the Defendant guilty of drug trafficking, possession of a firearm in furtherance of drug trafficking, and possession of a firearm by a felon. The defendant, Corey A. Moore, appealed his conviction based on the District Court’s denial of his motion to suppress evidence of a police officer’s stop and the District Court’s finding that his possession of a firearm was “in furtherance of a drug trafficking crime.”

On September 25, 2010, an officer observed Moore walking down the street carrying a green bottle. Thinking this bottle might be alcohol, the officer initiated a stop and Moore took off running. The officer and two bystanders observed Moore toss a package in the dumpster. That package contained a half kilogram of cocaine, worth over $10,000. Moore was then arrested. Two days later, there was an attempted break-in at an apartment rented by Moore. Upon discovering Moore resided in the apartment (he had given them a different address when he was arrested), the police obtained a search warrant. In the apartment, the police found 2.8 kilograms of PCP, drug distributing materials with traces of cocaine on them, $45,000 in cash, and two handguns. Moore was charged with possession with intent to distribute cocaine and PCP, possession firearms in the furtherance of drug trafficking, and possession of firearms by a felon. Before closing arguments, the defense moved to suppress all tangible evidence on the grounds that the officer did not have a reasonable suspicion to stop Moore in the first place. The District Court denied the motion on the grounds that the defense had waived the right to suppress evidence by not raising it before the trial as required by the Federal Rules of Civil Procedure. The court then found Moore guilty on all counts and sentenced Moore to 271 months in prison. Moore raised two issues on appeal; the District Court’s denial of his motion to suppress evidence and the District Court’s finding that Moore possessed firearms “in furtherance of drug trafficking.”

Moore first claimed that the District Court did not decide that he waived his right to a motion to suppress evidence, but instead found on the merits of his motion that no Fourth Amendment violation had occurred. Alternatively, Moore claimed that he qualified for a “good cause” exception to the waiver rule because he learned new evidence at the trial. The Federal Rules of Criminal Procedure require parties to raise motions to suppress evidence before trial, unless the court grants relief for a good cause. This rule is not merely procedural and it is an important rule due to fairness considerations. The rule helps parties to know what evidence to base their case on before the trial. The rule also prevents from unnecessary delays in the trial that may inconvenience the jury. The Fourth Circuit ruled that despite that the District Court briefly brought up the merits of Moore’s motion when it decided the issue was waived, the court was very clear that it was deciding that the issue was waived. The Fourth Circuit decided that the District Court waived the motion instead of deciding the issue on its merits. The Fourth Circuit also decided that new information is not sufficient good cause because new information is learned all the time at trial. It does not change that the evidence could have been challenged before the trial. Because the District Court properly and correctly decided the issue was waived and that there was no good cause for the motion coming late, the Fourth Circuit affirmed the District Court’s decision to deny the motion to suppress evidence.

Moore next claimed that the firearms found in his apartment with the drugs were insufficient evidence that the firearms were used in the furtherance of drug trafficking. The Fourth Circuit reviewed this issue on a clearly erroneous standard because the nexus between the firearms and the drug trafficking crime is a factual question. The Fourth Circuit found plenty of evidence in the record supporting a close nexus between the firearms and drugs. The cash and amount of drugs found with the firearms suggested that Moore was dealing the drugs. Further, Moore did not challenge his conviction on the drug trafficking charges. The firearms being beside Moore’s bed was evidence that Moore used the firearms for protection of the drugs. Another factor that the Fourth Circuit considered was that Moore was not allowed to legally own firearms in the first place as a convicted felon. The Fourth Circuit affirmed the District Courts conviction on this count because it was completely reasonable for the court to find the firearms were in the furtherance of drug trafficking. Ultimately, the Fourth Circuit affirmed Moore’s conviction on all counts.

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15Apr

GPS “Bullets” and the Fourth Amendment

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By Matthew F. Meyers

For as long as there have been cars, there have been car chases.  A car chase connotes a dangerous, high-speed dash through city streets.  Fleeing from justice, the criminal finds himself weaving between cars and driving onto sidewalks to evade his pursuers.  In the popular imagination, a car chase entails the possibility of danger and injury to the public.  This view is confirmed by a number of studies.  The National Highway Traffic Safety Administration found that of the 314 people killed in car chases in 1998, 36% were innocent bystanders.[1]  One study estimated that police pursuits caused “14,000 injuries and 700 pursuit deaths each year.”[2]  These tragic consequences belie the fact that the majority of these pursuits begin as traffic stops.[3]  Whatever reason a particular suspect has for fleeing, it is clear that it is a dangerous choice.

Law enforcement’s traditional approach to flight has only exacerbated the potential for danger.  Many officers believe that they need to catch fleeing suspects “if it’s the last thing (they’ll) ever do.”[4]  With an ever-proliferating number of new technologies that law enforcement can employ against suspects,[5] this cavalier attitude no longer seems necessary.  But courts have refused to limit officers’ discretion as to how to end a chase.  As recently as 2007, the Supreme Court has held that an officer may use deadly force to stop a suspect fleeing by car.[6]

In 2006, Starchase LLC., a small Virginia-based startup, began pre-commercial testing of Starchase, “a real-time tagging and tracking tool to reduce dangerous high-speed pursuits.”[7]  There are two technologies at work in the Starchase system: a compressed-air launcher and a GPS Bullet—a small cylindrical tube with a GPS tag.[8]  The launcher is mounted into the front-grill of a police cruiser.  When an officer is chasing a fleeing suspect, he can load the GPS Bullet into the launcher and fire it at the suspect’s car.  The bullet attaches to the car.  In principle, officers may cease pursuit and track the car.  A suspect will then voluntarily reduce his speed in order to blend in.  Once he does, officers converge on his position without exposing the public to harm.  Starchase is a more sophisticated version of the helicopter flyover, with one basic advantage: the suspect does not know he is being tracked.

Although Starchase’s efficacy remains speculative, the technology has come about at a fairly unique point in constitutional history.  The judiciary has so far struggled to apply traditional Fourth Amendment doctrines to new technologies like GPS tracking.  The Supreme Court’s most recent attempt was in United States v. Jones, where it held that the placement of a GPS tracker on a suspect’s vehicle constituted a search under the Fourth Amendment.[9]  Since Starchase is a GPS tracker that attaches to a vehicle, the Jones test applies.  The purpose of this Article is to analyze Starchase’s constitutionality by considering how the general principles of Jones and its progeny will apply in real life situations.  I conclude that while it may be unconstitutional in normal circumstances to deploy Starchase without a warrant, the exigencies of a police pursuit justify its use.  It is, therefore, constitutional.

I.  Starchase, Searches, and United States v. Jones

Many had hoped the Court’s decision in United States v. Jones would settle the question of whether the government conducts a search under the Fourth Amendment when it tracks a vehicle with a GPS device.  At oral argument, the government contended that an individual has no reasonable expectation of privacy when he or she is in public.  A GPS device tracking public movements does not undermine any protected privacy interest—thus, it is not a search within the meaning of the Fourth Amendment.  One case relating to beeper tracking supports this interpretation.  In Knotts v. United States, the Supreme Court stated, “A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.”[10]  A person conveys his movements to the public when he drives on public streets and highways.  For the Court, “[t]he fact that the officers in this case relied . . . on the use of the beeper to signal the presence of [the suspect’s] automobile to the police” does not change the analysis.[11]  Since beeper tracking is not a search under the Fourth Amendment, the government argued that GPS tracking should not be considered a search.

Privacy advocates claimed that Knotts did not control the analysis.  Although Knotts permitted the government to track a person’spublic movements, later cases barred law enforcement from using a beeper to track private movements.  In United States v. Karo, the Supreme Court held that the government could not use a beeper to track the movements of a person inside his or her home without obtaining a warrant.[12]  “Indiscriminate monitoring of property that has been withdrawn from public view would present far too serious a threat to privacy interests in the home to escape entirely some sort of Fourth Amendment oversight.”[13]  When the government seeks certain kinds of private information via beeper tracking, it is a search under the Fourth Amendment.

The Knotts Court also expressly disavowed that its holding would permit “twenty-four hour surveillance of any citizen of this country . . . without judicial knowledge or supervision.”[14]  Rather, the Court stated, “if such dragnet type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.”[15]  For advocates, long-term GPS tracking is the exact circumstance that requires different constitutional principles.  GPS tracking uncovers far more than a person’s public movements.  As Justice Sotomayor wrote in Jones, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”[16]  Under this “mosaic theory” of the Fourth Amendment, the otherwise constitutional monitoring of public movements becomes unconstitutional when, in its totality, it reveals private information about the person.[17]

The majority opinion in Jones ultimately found the installation of a GPS tracker on a vehicle is a search under the Fourth Amendment, though it applied a seemingly anachronistic “trespass” test to reach its conclusion.  This test had fallen into disuse since Katz, but the Court made clear that “the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.”[18]  Under the latter test, a court must determine whether the government has physically intruded upon a protected area.[19]  A vehicle is an “effect,” which is one of the areas protected by the Fourth Amendment.[20]  In the Court’s view, the government intruded on the vehicle by attaching a GPS device to the undercarriage of the defendant’s Jeep.[21]  This amounted to a search under the Fourth Amendment because “[t]he Government physically occupied private property for the purpose of obtaining information.”[22]

The facts in Jones would be similar to the kinds of fact scenarios that would arise with the use of Starchase.  An officer using Starchase would launch the GPS Bullet at a suspect’s car.  The GPS Bullet would attach to the back of the vehicle, allowing police to monitor the car’s movements.[23]  The slight distinction from Jones is that Jones concerned the attachment of a device to the undercarriage of a vehicle.[24]  But where the attachment on the vehicle occurs is ultimately irrelevant; what matters is whether there has been a physical intrusion by law enforcement onto private property.  And the back of a car is no less the private property of a suspect than the undercarriage of the car.  The attachment of the GPS Bullet to the back of a car intrudes on the driver’s private property in the same way the device in Jones did to the defendant’s Jeep.  An officer thus conducts a search when he deploys the Bullet.

II.  Starchase and the Warrant Requirement

The Jones court expressly refused to consider whether police must obtain a warrant before attaching a GPS device to a vehicle.[25]  In general, to conduct a lawful search under the Fourth Amendment, an officer must first obtain a warrant.[26]  There are a myriad of exceptions to the warrant requirement, however, including an exception for searches of automobiles.[27]  In lieu of a warrant, police must have probable cause to believe there is evidence of a crime inside the vehicle.[28]  The Supreme Court has justified the exception based on the automobile’s inherent mobility, which renders it impracticable to secure a warrant.[29]  Furthermore, citizens have a reduced expectation of privacy in their vehicles than in other areas, like their homes.[30]  This second justification is inapplicable to a search based on Jones, where expectations of privacy are irrelevant.

The Third Circuit is the first federal circuit court of appeals to decide the issue left open by Jones.[31]  In holding that police are required to obtain a warrant before attaching a GPS device to a vehicle, the panel noted, “Attaching and monitoring a GPS tracker is different [from a search of a car]: It creates a continuous police presence for the purpose of discovering evidence that may come into existence and/or be placed within the vehicle at some point in the future.”[32]  The court distinguished a normal automobile search from a GPS search on the basis of the temporality of the search.[33]  Officers who have probable cause to believe evidence is in a car at that moment in time are permitted to search it without a warrant; but police would not be justified in acting on that probable cause weeks or months later.[34]  Officers who attach a GPS device do so to secure evidence that may exist in the future.  It is a far more pervasive search than the nominal investigation of a car’s interior.  And the officers’ decisions to search with a GPS device are likely more deliberative than the kind of decisions officers make on the sides of streets and highways.  A search by GPS device does not strongly implicate the considerations underlying the automobile exception.

Assuming the Third Circuit is correct, a police officer would violate the Fourth Amendment by using Starchase without first obtaining a warrant.  Unlike most GPS devices, however, the GPS Bullet is used in a situation that permits no time for thoughtful deliberation.  A warrant requirement would defeat the very purpose of Starchase—if officers had the time to get a warrant during a police pursuit, they would not need a GPS device to track the suspect.  This is the reason why Starchase falls within the exigent-circumstances exception to the Fourth Amendment.  Officers may engage in a search that would otherwise violate the Fourth Amendment when there is a sufficient exigency warranting the search.[35]  For example, officers may engage in a warrantless search to render emergency aid, to pursue fleeing suspects, or to prevent the destruction of evidence.[36]  A police pursuit by car is a paradigmatic case of an exigent circumstance justifying a warrantless search.[37]  But, it should be noted that an otherwise valid use of Starchase might become unconstitutional depending on the length of the tracking.  If police were to end pursuit and then track the suspect for hours or days after the chase, the search would no longer fall into the exigent-circumstance exception.[38]

As its website states, Starchase is used to “reduce dangerous high-speed pursuits.”[39]  The exigency of a police pursuit would excuse the otherwise unlawful search with the GPS Bullet.  It is ultimately a reasonable application of the exigent circumstance exception, and the Supreme Court has noted, “warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement.”[40]  In addition, it would be asymmetrical to prohibit GPS searches during a police pursuit while permitting officers to use deadly force against the suspect.  The exemption of Starchase from the warrant requirement makes sense as a policy matter because it offers police a safe alternative to end the chase.

Conclusion

United States v. Jones upended fifty years of settled constitutional doctrine.  But it did so out of necessity.  Technology has pervaded our lives and changed the way we interact with one another.  It has also changed the way police interact with citizens.  Starchase exemplifies this new, tech-centered approach to law enforcement.  Many privacy advocates criticize Jones as inadequate to protect privacy rights in the twenty-first century.[41]  But as applied to Starchase, Jones sufficiently balances the privacy rights of citizens with the reasonable needs of law enforcement.

Installation of a GPS device is undoubtedly a significant physical intrusion on a citizen’s private property.  But in the limited circumstances in which Starchase is used, the governmental interests outweigh the suspect’s privacy rights.  As noted above, car chases put the public at serious risk of injury or death.  The government has a significant interest in ending a chase safely and quickly.  In contrast, the intrusion on the suspect’s property is limited in time and extent.  The search lasts only as long as the chase does, and the information gathered is only used for that purpose.  In the end, Starchase does not evoke the specter of Orwellian dystopia as other kinds of GPS devices do.


      [1].   John Hill, High-speed Police Pursuits: Dangers, Dynamics, and Risk Reduction, 71 FBI L. Enforcement Bull., July 1, 2002, at 14, 15–16, available at http://leb.fbi.gov/2002-pdfs/leb-july-2002.

      [2].   Ad Hoc Committee on Law Enforcement Pursuits, Law Enforcement Pursuits in Georgia: Review and Recommendations 3 (2006) [hereinafter Pursuits in Georgia], http://www.gachiefs.com/pdfs/Pursuit
%20Committee%20Recommendations%20Report.pdf.

      [3].   David P. Schultz, et al., Evidence-Based Decisions on Police Pursuits: The Officer’s Perspective, FBI L. Enforcement Bull., Mar. 2010, at 1, 1, available at http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/2010-pdfs/march10leb.

      [4].   Hill, supra note 1, at 16.

      [5].   See Ric Simmons, Why 2007 Is Not Like 1984: A Broader Perspective on Technology’s Effect on Privacy and Fourth Amendment Jurisprudence, 97 J. Crim. L. & Criminology 531, 533–34 (2007).

      [6].   Scott v. Harris, 550 U.S. 372, 386 (2007).

      [7].   Frequently Asked Questions, Starchase, http://www.starchase.com/how
-it-workss/faq.html (last visited Apr. 10, 2014).

      [8].   Id.

      [9].   United States v. Jones, 132 S. Ct. 945, 949 (2012).

    [10].   United States v. Knotts, 460 U.S. 276, 281 (1983).

    [11].   Id. at 282.

    [12].   United States v. Karo, 468 U.S. 705, 714 (1984).

    [13].   Id. at 716.

    [14].   Knotts, 460 U.S. at 283.

    [15].   Id. at 284.

    [16].   Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring).

    [17].   See generally Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311 (2012) (discussing how the mosaic theory would fundamentally change Fourth Amendment analyses).

    [18].   Jones, 132 S. Ct. at 955.

    [19].   See Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013) (“When ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a “search” . . . “undoubtedly occurred.””) (quoting United States v. Jones, 132 S. Ct. 945, 954 (2012) (Sotomayor, J., concurring)).

    [20].   Jones, 132 S. Ct. at 949.

    [21].   Id.

    [22].   Id.

    [23].   See Frequently Asked Questions, Starchase, http://www.starchase.com
/how-it-workss/faq.html (last visited Apr. 10, 2014).

    [24].   Jones, 132 S. Ct. at 947.

    [25].   Id. at 953–4.

    [26].   Carroll v. United States, 267 U.S. 132, 144 (1925).

    [27].   Id. at 153.

    [28].   United States v. Katzin, 732 F.3d 187, 202 (3d Cir. 2013).

    [29].   See Carroll, 267 U.S. at 153.

    [30].   Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (“A car has little capacity for escaping public scrutiny.  It travels public thoroughfares where its occupants and its contents are in plain view.”).

    [31].   Katzin, 732 F.3d at 197 n.2.

    [32].   Id. at 203.

    [33].   Id.

    [34].   Id. at 204–05.

    [35].   United States v. Santana, 427 U.S. 38, 42–43 (1976).

    [36].   Kentucky v. King, 131 S. Ct. 1849, 1856 (2011).

    [37].   Missouri v. NcNeely, 133 S. Ct. 1552, 1558 (2013) (stating that the “‘hot pursuit’ of a fleeing suspect” is an exigency justifying a warrantless search).

    [38].   Terry v. Ohio, 392 U.S. 1, 25–26 (1968) (holding that a warrantless search must be “strictly circumscribed by the exigencies which justify its initiation”); see, e.g., Mincey v. Arizona, 437 U.S. 385, 393 (1978) (holding that no exigent circumstances existed to justify warrantless four-day search of defendant’s apartment where homicide took place when defendant was already in custody).

    [39].   Frequently Asked Questions, Starchase, http://www.starchase.com/how
-it-workss/faq.html (last visited Apr. 10, 2014).

    [40].   King, 131 S. Ct. at 1858.

    [41].   John A. Stratford, Adventures on the Autobahn and Infobahn: United States v. Jones, Mandatory Data Retention, and a More Reasonable “Reasonable Expectation of Privacy,” 103 J. Crim. L. & Criminology 985, 997 (2013) (“[P]rivacy advocates continue to argue that GPS technology . . . provides the government another ‘irresistible temptation’ to undertake unreasonably broad monitoring of individuals.”).

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