Per United States v. Jones, 2008 WL 1073739, *15 (1st Cir. Apr. 11, 2008)
Whenever an appellate court begins it opinion reviewing a criminal conviction for drug crimes by calling the defendant “Smoke,” it is not going to end well. Rashaun “Smoke” Jones checked into the Towneplace Suites hotel. The manager informed a police sergeant of this fact (the case does not say why), and a database search revealed an outstanding warrant. While a team was assembling to effect the Jones’s arrest, officers observed others leaving the hotel room and behaving in such a manner as to indicate a drug transaction had just taken place.
Six officers subsequently entered the hotel room, without knocking and without a warrant. Marijuana was in plain sight, and the four occupants of the room were handcuffed. Jones was identified, brought to a separate room, and read his Miranda rights. An agent then asked if they could search the suite, and Jones gave his consent. Heroin and ecstacy were found inside a cabinet in the kitchenette.
Jones appeals his conviction for possession with intent to distribute, arguing that the no-knock entry requires suppression, that his consent was not knowing or voluntary, and that his consent did not extend outside the bedroom in which he was being held. While hotel occupants have the same Fourth Amendment rights as homeowners, Hudson v. Michigan held that the exclusionary rule does not apply to no-knock entries when the police have a valid reason to enter.
The consent issue is tougher. Can consent be truly free and voluntary when one has just been shocked by the entry of fifteen police officers with weapons drawn and is now handcuffed? The district court says yes, and the First Circuit affirms under the clearly erroneous standard. As a personal matter, I am inclined to agree that the Miranda warnings did help ensure the voluntariness of Jones's consent.
Judge Torruella does note that the circuits have split over the proper standard for reviewing the scope of this freely given consent. The CA 5 believes that this is a legal issue to be reviewed de novo, whereas the CA 8 treats it as a factual issue under the clearly erroneous standard. The CA 1 does not decide what standard it would apply as would affirm under either. Finally, the panel also rejects two different sentencing appeals.
Appellate Law & Practice also provides a typically thorough summary of the case.
Showing posts with label Fourth Amendment. Show all posts
Showing posts with label Fourth Amendment. Show all posts
Saturday, April 12, 2008
Thursday, April 10, 2008
Split Widened: Is a Standardized Impoundment Policy Constitutionally Required?
Per United States v. Smith, 2008 WL 942666 (3d Cir. Apr. 9, 2008)
Seeing defendant Smith in the passenger seat of a car, two patrolmen stopped the car because they knew that Smith had an outstanding arrest warrant. During the arrest, the driver started a fight with one of the officers. Subsequently, both the driver and Smith were arrested, leaving no one available to take possession of the car. The police officers concluded that they should not leave the vehicle where it was, because it was a rough neighborhood and the car might be damaged or stolen. After impoundment, a routine warrantless inventory search revealed a loaded semi-automatic handgun. Smith admitted that he had placed the weapon there and was charged for being a felon in possession of a firearm. Smith moved to suppress the gun, arguing that the decision to impound was unconstitutional in the absence of any standardized policy governing the officers’ discretion.
Judge Greenberg, on behalf of a unanimous panel, recognizes that the circuits have split on this point. The source of the disagreement is ambiguous language contained in the Supreme Court’s decision in Colorado v. Bertine. There, the Court upheld an impoundment where officers had the discretion either to park and lock the vehicle or to impound it, stating that “[n]othing in [previous cases] prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria . . . .” Should this language be read to create a prophylactic rule requiring standard criteria, or simply a rejection on a false limitation of police discretion?
The CAs 1 and now 3 do not require a standard procedure (although encouraging their adopition), but have held that the proper test is whether the impoundment was reasonable given the circumstances – applying the Fourth Amendment directly. On the other hand, the CAs 8,DC both read Bertine to require a policy document that cabins the officers’ discretion – reading Bertine as a new prophylactic requirement.
Finally, if you think I have been busy today, you should check out the Tenth Circuit Blog for its many interesting entries today.
Seeing defendant Smith in the passenger seat of a car, two patrolmen stopped the car because they knew that Smith had an outstanding arrest warrant. During the arrest, the driver started a fight with one of the officers. Subsequently, both the driver and Smith were arrested, leaving no one available to take possession of the car. The police officers concluded that they should not leave the vehicle where it was, because it was a rough neighborhood and the car might be damaged or stolen. After impoundment, a routine warrantless inventory search revealed a loaded semi-automatic handgun. Smith admitted that he had placed the weapon there and was charged for being a felon in possession of a firearm. Smith moved to suppress the gun, arguing that the decision to impound was unconstitutional in the absence of any standardized policy governing the officers’ discretion.
Judge Greenberg, on behalf of a unanimous panel, recognizes that the circuits have split on this point. The source of the disagreement is ambiguous language contained in the Supreme Court’s decision in Colorado v. Bertine. There, the Court upheld an impoundment where officers had the discretion either to park and lock the vehicle or to impound it, stating that “[n]othing in [previous cases] prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria . . . .” Should this language be read to create a prophylactic rule requiring standard criteria, or simply a rejection on a false limitation of police discretion?
The CAs 1 and now 3 do not require a standard procedure (although encouraging their adopition), but have held that the proper test is whether the impoundment was reasonable given the circumstances – applying the Fourth Amendment directly. On the other hand, the CAs 8,DC both read Bertine to require a policy document that cabins the officers’ discretion – reading Bertine as a new prophylactic requirement.
Finally, if you think I have been busy today, you should check out the Tenth Circuit Blog for its many interesting entries today.
Wednesday, April 2, 2008
Split Noted: Does the Odor of Marijuana in the Passenger Compartment of a Vehicle Create Probable Cause to Search the Entire Vehicle?
Per Com. v. Garden, 2008 WL 835961 (Mass. Apr. 1, 2008)
A confidential informant told police that ‘Bubs’ was involved in a shooting and could now be found with three other men in a white car. ‘Bubs’ was a known alias of Leroy Wells, a felon with a history of violent crimes. Two hours later, officers saw Leroy Wells and two other men enter a black car as passengers. A registry search revealed that the owner of that car (a female) had a suspended license, giving the officers a reason to pull the car over. As the officer approached the car, they were able to see the driver – defendant Garden – was a man, removing the probable cause.
The officer, however, smelled burnt marijuana coming from the clothes of the occupants of the car. The police frisked Garden and Wells, and searched the passenger compartment of the car. No contraband was found. The officer asked the defendant for permission to search the trunk, and Garden said no. Nevertheless, the officer did unlock the trunk and discovered three pistols and two bags of marijuana.
The Massachusetts Supreme Judicial Court considers whether opening the trunk exceeded the permissible scope of a search justified by the odor of burnt marijuana coming from the clothes of passengers. They hold, in a 4-3 opinion, that the officer could not reasonably have believed that the smell was coming from the trunk – “it is unreasonable to believe people smoke marijuana in the trunks of cars.” Thus the search lacked any probable cause, and all of the evidence must be suppressed.
The dissenting judges note that the circuits are split on this issue. The CA 5 permits searches of the entire vehicle, whereas the CA 10 limits the search to the location in which the odor was detected. The states are also split, but a clear majority permits the search of the entire vehicle. Compare 114 A.L.R.5th 173 § 7 with id. § 6. Although this decision does not explicitly rely on the Massachusetts Constitution as an independent state ground, the heavy citation of Massachusetts precedent would seem to insulate it from any review.
Repeat readers of this blog might have noticed that my discussion of the decisions of state courts of last resort has had a decidedly northeastern flavor. That should not be taken as any indication of my location, but rather simply a reflection of the results of my search algorithm.
A confidential informant told police that ‘Bubs’ was involved in a shooting and could now be found with three other men in a white car. ‘Bubs’ was a known alias of Leroy Wells, a felon with a history of violent crimes. Two hours later, officers saw Leroy Wells and two other men enter a black car as passengers. A registry search revealed that the owner of that car (a female) had a suspended license, giving the officers a reason to pull the car over. As the officer approached the car, they were able to see the driver – defendant Garden – was a man, removing the probable cause.
The officer, however, smelled burnt marijuana coming from the clothes of the occupants of the car. The police frisked Garden and Wells, and searched the passenger compartment of the car. No contraband was found. The officer asked the defendant for permission to search the trunk, and Garden said no. Nevertheless, the officer did unlock the trunk and discovered three pistols and two bags of marijuana.
The Massachusetts Supreme Judicial Court considers whether opening the trunk exceeded the permissible scope of a search justified by the odor of burnt marijuana coming from the clothes of passengers. They hold, in a 4-3 opinion, that the officer could not reasonably have believed that the smell was coming from the trunk – “it is unreasonable to believe people smoke marijuana in the trunks of cars.” Thus the search lacked any probable cause, and all of the evidence must be suppressed.
The dissenting judges note that the circuits are split on this issue. The CA 5 permits searches of the entire vehicle, whereas the CA 10 limits the search to the location in which the odor was detected. The states are also split, but a clear majority permits the search of the entire vehicle. Compare 114 A.L.R.5th 173 § 7 with id. § 6. Although this decision does not explicitly rely on the Massachusetts Constitution as an independent state ground, the heavy citation of Massachusetts precedent would seem to insulate it from any review.
Repeat readers of this blog might have noticed that my discussion of the decisions of state courts of last resort has had a decidedly northeastern flavor. That should not be taken as any indication of my location, but rather simply a reflection of the results of my search algorithm.
Wednesday, March 26, 2008
Split Noted: What is the Fourth Amendment Standard for a Visual Body Cavity Search of an Arrestee?
Per People v. Hall, 2008 WL 762250, *5-*9 (N.Y. Mar. 25, 2008)
A police officer with twenty years narcotics experience observed Azim Hall take cash from a friend, go into a bodega, and, three minutes later, hand the friend two small white objects appearing to be crack. Mr. Hall was taken into custody. A search of his clothing revealed no contraband. He was then taken into a private detention room, asked to remove his clothing and bend over. A visual inspection revealed a string of plastic hanging out of his rectum. The officer thereupon pulled on the string and removed a plastic bag containing crack.
The New York Court of Appeals (their court of last resort) suppresses the drugs and, therefore, dismisses the indictment. It reasons that a manual body cavity search (the removal of the drugs) requires a warrant under the Supreme Court’s decision in Schmerber v. California (1966). In Schmerber, the Court held that a warrant would be needed for searches which intruded into the body, absent emergency circumstances.
In the course of so holding, the court noted that the circuits have split over whether a warrant is required for a visual body cavity search. The Supreme Court has expressly reserved judgment on this issue. A majority of the courts which have considered the issue have ruled that reasonable suspicion justifies such a search – CAs 2,5,7. On the other hand, the CA 9 and several Virginia state courts have held that a warrant is still required for such searches. The CA 8 also has precedent which seems to point in this direction. A quick google search also indicates that some states’ operating procedures require officers to seek warrants before performing such searches.
A police officer with twenty years narcotics experience observed Azim Hall take cash from a friend, go into a bodega, and, three minutes later, hand the friend two small white objects appearing to be crack. Mr. Hall was taken into custody. A search of his clothing revealed no contraband. He was then taken into a private detention room, asked to remove his clothing and bend over. A visual inspection revealed a string of plastic hanging out of his rectum. The officer thereupon pulled on the string and removed a plastic bag containing crack.
The New York Court of Appeals (their court of last resort) suppresses the drugs and, therefore, dismisses the indictment. It reasons that a manual body cavity search (the removal of the drugs) requires a warrant under the Supreme Court’s decision in Schmerber v. California (1966). In Schmerber, the Court held that a warrant would be needed for searches which intruded into the body, absent emergency circumstances.
In the course of so holding, the court noted that the circuits have split over whether a warrant is required for a visual body cavity search. The Supreme Court has expressly reserved judgment on this issue. A majority of the courts which have considered the issue have ruled that reasonable suspicion justifies such a search – CAs 2,5,7. On the other hand, the CA 9 and several Virginia state courts have held that a warrant is still required for such searches. The CA 8 also has precedent which seems to point in this direction. A quick google search also indicates that some states’ operating procedures require officers to seek warrants before performing such searches.
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