2012 United States Supreme Court and Circuit Courts of Appeals Case Summaries – By Subject (As reported in 2 Informer 12 through 1 Informer 13, covering January – December 2012) Table of Contents First Amendment ..................................................................................................................................................... 4 Fourth Amendment ................................................................................................................................................. 6 Governmental Action / Private Searches ............................................................................................................ 6 Reasonable Expectation of Privacy ..................................................................................................................... 7 Abandonment .................................................................................................................................................. 9 Cellphones ..................................................................................................................................................... 10 Strip Searches ................................................................................................................................................ 11 Curtilage ........................................................................................................................................................ 12 Parolees/Probationers .................................................................................................................................... 14 Passengers in Vehicles .................................................................................................................................. 16 Use of GPS Information From Cell Phones .................................................................................................. 16 Warrantless Search After Private Search ...................................................................................................... 17 Searches (Jones) ................................................................................................................................................ 18 Officers Acting Outside Their Jurisdiction ....................................................................................................... 19 Voluntary Contacts / Consensual Encounters ................................................................................................... 20 Terry Stops / Reasonable Suspicion .................................................................................................................. 23 Terry Frisks-Person/Vehicle ............................................................................................................................. 35 Traffic Stops / Detaining Vehicles / Occupants ................................................................................................ 38 Collective Knowledge Doctrine ........................................................................................................................ 51 Canine Sniffs ..................................................................................................................................................... 51 Arrest (Probable Cause) .................................................................................................................................... 54 Entering Third Party’s Home to Make an Arrest .......................................................................................... 57 The Exclusionary Rule ...................................................................................................................................... 58 Exceptions to the Exclusionary Rule ................................................................................................................ 59 Good Faith ..................................................................................................................................................... 59 Independent Source Doctrine ........................................................................................................................ 62 Inevitable Discovery Doctrine ...................................................................................................................... 63 Search Warrants ................................................................................................................................................ 64 Probable Cause .............................................................................................................................................. 64 Delay in Execution ........................................................................................................................................ 73 Detaining Occupants During Search Warrant Execution .............................................................................. 75 Knock and Announce .................................................................................................................................... 75 Stale Information ........................................................................................................................................... 76 Automobile Exception (mobile conveyance exception) ................................................................................... 77 Border Searches ................................................................................................................................................ 82 Reasonable Suspicion During a Routine Border Search ............................................................................... 82 Computers / Electronic Devices / Wiretaps ...................................................................................................... 83 Wiretaps ............................................................................................................................................................ 84 Consent Searches .............................................................................................................................................. 87 Third Party Consent ...................................................................................................................................... 93 Exigent Circumstances ...................................................................................................................................... 95 Destruction of Evidence ................................................................................................................................ 95 Emergency Scene .......................................................................................................................................... 99 Hot Pursuit .................................................................................................................................................. 100 Inventory Searches .......................................................................................................................................... 101 Plain View Seizure .......................................................................................................................................... 103 Protective Sweeps ........................................................................................................................................... 105 Searches Incident to Arrest (vehicles) ............................................................................................................. 106 Searches Incident to Arrest (cellphones) ......................................................................................................... 108 Qualified Immunity / Absolute Immunity / Civil – Municipal - Supervisor Liability / Bivens ...................... 109 Prosecutors .................................................................................................................................................. 109 Witnesses..................................................................................................................................................... 111 Use of Force Situations (Detention / Arrest) ............................................................................................... 111 Use of Force / Qualified Immunity – Taser ................................................................................................ 134 Mistaken Use of Deadly Force (Firearm / Taser) ........................................................................................ 137 Non-Use of Force Situations (Search Warrant Application / Execution / Other) ....................................... 137 Federal Tort Claims Act (FTCA) ................................................................................................................ 143 Municipal Liability ...................................................................................................................................... 144 Fifth Amendment ................................................................................................................................................ 145 Pre-Trial Identification (Line-Ups, Show-Ups, Photo Arrays) ....................................................................... 145 Miranda ........................................................................................................................................................... 148 Admission of Statements After 4th Amendment Violation .............................................................................. 158 Custody ........................................................................................................................................................... 159 Immunity From Prosecution ........................................................................................................................... 166 Miranda and Fed. Rule Crim. Pro. 5(a) / McNabb-Mallory/ Corley .............................................................. 166 Public Safety Exception .................................................................................................................................. 167 Sixth Amendment................................................................................................................................................ 168 Confrontation Clause ...................................................................................................................................... 168 Right to Counsel .............................................................................................................................................. 169 Brady Material .................................................................................................................................................... 170 Federal Rules of Evidence (FRE)........................................................................................................................ 170 FRE (615) ............................................................................................................................................................ 170 Freedom of Information Act (FOIA) .................................................................................................................. 171 Entrapment ...................................................................................................................................................... 171 Miscellaneous Criminal Statutes / CFR Provisions ............................................................................................ 173 18 U.S.C § 1152 .............................................................................................................................................. 173 18 U.S.C. § 922 ............................................................................................................................................... 173 18 U.S.C. § 924 ............................................................................................................................................... 174 18 U.S.C. § 2252 ............................................................................................................................................. 175 31 U.S.C. § 3729 (False Claims Act) .............................................................................................................. 175 First Amendment Marcavage v. The City of New York, 689 F.3d 98 (2nd Cir. 2012) Police arrested Marcavage and another protester during the 2004 Republican National Convention after they failed to comply with police instructions to move from a no-protest-zone to a designated protest-zone. The protesters sued under 42 U.S.C. § 1983, claiming that the New York City Police Department’s (NYPD) protest-zone policy violated the First Amendment and their arrests violated the Fourth Amendment. The court held that the NYPD’s protest-zone policy was a permissible time, place and manner restriction on First Amendment expression and that the protesters’ arrests were supported by probable cause. First, the NYPD policy on expressive activity around the convention was content-neutral. The restriction was not aimed at the content of the protesters’ message; no demonstrating of any kind was allowed in the no-protest-zones. Second, the no-protest-zones were confined to a two-block stretch of Seventh Avenue and were in place only during the four days of the convention. The policy that created the no-protest-zones was tailored to meet the congestion and security challenges presented by the convention. Finally, the designated protest-zone, located one block from the primary entrance to the Convention site, was an ample alternative site for the protesters. Click HERE for the court’s opinion. ***** Marcavage v. National Park Service, 666 F. 3d 856 (3d Cir. 2012) The court held that the NPS Rangers were entitled to qualified immunity from Marcavage’s claim that they arrested him in violation of the First and Fourth Amendments and the Equal Protection Clause of the Fourteenth Amendment. Although this court ultimately held otherwise, the fact that two judges in the court below found no First Amendment violation by the Rangers indicates that Marcavage’s constitutional right to demonstrate on the sidewalk was not clearly established. At the time, it was reasonable for the Rangers to believe that they could lawfully escort Marcavage off the sidewalk and issue him a citation. They should not be denied qualified immunity simply because this belief turned out to be mistaken. Regarding Marcavage’s arrest, the court found that the government presented sufficient evidence for the Magistrate Judge to have reasonably found Marcavage committed the charged offense. The fact that Marcavage’s conviction was eventually reversed is of no consequence. A criminal conviction requires proof of guilt beyond a reasonable doubt, a much higher standard than that required for a finding of probable cause to arrest. Finally, the court held that Marcavage was not similarly situated to the tourists, the horse and carriage operators and the breast-cancer-walk participants who were also on the sidewalk. Unlike the others, Marcavage was escorted from the sidewalk because he was leading a demonstration without a permit, creating excessive noise and potentially interfering with traffic flow. 4 Click HERE for the court’s opinion. See 7 Informer 10 for the summary for the criminal case. ***** Lefemine v. Wideman, 672 F. 3d 292 (4th Cir. 2012) Police officers told members of an anti-abortion organization to remove large graphic signs, depicting aborted fetuses that they were using as part of a roadside demonstration. Neither party challenged the district court’s holding that the officers’ actions were impermissible content- based restriction on the demonstrators’ First Amendment rights. The court, however, agreed with the district court and held that the officers were entitled to qualified immunity. In November 2005, the case law from this circuit and from the Supreme Court was ambiguous concerning whether requiring demonstrators to remove such signs would violate their First Amendment rights. Therefore, it was not objectively unreasonable for the officers to believe they could allow the demonstrators to continue to remain on the sidewalk, but order them to remove the graphic signs to protect the public from potential traffic hazards based on the signs’ proximity to the road and to prevent children from seeing the images. Click HERE for the court’s opinion. ***** American Civil Liberties Union of Illinois v. Alvarez, 679 F. 3d 583 (7th Cir. 2012) The court ordered the district court to enter a preliminary injunction prohibiting the State’s Attorney from applying the Illinois eavesdropping statute against the American Civil Liberties Union (ACLU) and its employees or agents who openly audio record the audible communications of law enforcement officers, or others, when the officers are engaged in their official duties in public places. The court noted that Illinois has criminalized the non-consensual recording of most oral communications, including recordings of public officials doing the public’s business in public, regardless of whether the recording is open or surreptitious. The court further commented the Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests and as applied in this case it likely violates the First Amendment’s free-speech and free-press guarantees. Click HERE for the court’s opinion. ***** Bernini v. City of St. Paul, 665 F. 3d 997 (8th Cir. 2012) The court held the officers did not arrest anyone in retaliation for exercising their First Amendment free speech rights. Although the protestors were engaged in protected speech, officers did not arrest anyone until the group moved towards them in a threatening manner and began to block traffic along a major roadway. The group’s conduct, not the protected speech, motivated the officers’ actions. Click HERE for the court’s opinion. 5 ***** Reichle v. Howards, 132 S. Ct. 2088 (S. Ct. 2012) Howards brought suit against United States Secret Service Agents, claiming that he was arrested and searched without probable cause, in violation of the Fourth Amendment. Howards also claimed that he was arrested in retaliation for criticizing the Vice-President, in violation of the First Amendment. The Tenth Circuit Court of Appeals held that the agents were entitled to qualified immunity for Howards’ Fourth Amendment claim because they had probable cause to arrest him for making a materially false statement to a federal official in violation of 18 U.S.C. § 1001. However, the Court of Appeals denied the agents qualified immunity on Howards’ First Amendment claim. The Supreme Court concluded that when the agents arrested Howards, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. As a result, the agents were entitled to qualified immunity for allegedly violating Howards’ First Amendment rights when they had probable cause to arrest him for committing a federal crime. Click HERE for the court’s opinion. Click HERE for the case summary for the 10th Circuit Court of Appeals opinion. ***** Fourth Amendment Governmental Action / Private Searches United States v. Cameron, 699 F.3d 621 (1st Cir. 2012) Yahoo!, Inc. received an anonymous report that child pornography images were contained in a particular Yahoo! Photo account. Yahoo! personnel searched the account and discovered images they believed to be child pornography. As part of its internal process after discovering child pornography, Yahoo! created a child pornography (CP) Report and sent a copy to the National Center for Missing and Exploited Children (NCMEC). Based on the Yahoo! CP Report, the NCMEC created and sent a CyberTipline Report to the Maine State Police. The Maine State Police eventually obtained a warrant to search Cameron’s residence and seize his computers. At trial, the government introduced evidence from Yahoo! through the testimony of an employee who had knowledge about Yahoo!’s data retention and legal procedures. The employee testified that Yahoo! recorded user log-on, IP address, and other user account information in the regular course of business. The employee also testified that Yahoo! automatically stored each CP Report as part of its ordinary business practice. Cameron argued Yahoo!’s search for child pornography in his account violated the Fourth Amendment because Yahoo! had acted as an agent of the government. The court disagreed. The Fourth Amendment does not apply to searches and seizures, even unreasonable ones, conducted by private individuals who are not acting as agents of the government. Here, there was no 6 evidence that the government had any role in initiating or participating in the initial search. Yahoo! began searching Cameron’s accounts after it received an anonymous tip concerning child pornography in one of the Yahoo! Photo albums registered to him. The Yahoo! employees conducted their search pursuant to Yahoo!’s own internal policy and there was no evidence that the government compelled Yahoo! to maintain such a policy. Even though Yahoo! had a duty under federal law to report child pornography to the NCMEC, the court noted that the statute did not impose any obligation to search for child pornography; it only required Yahoo! to report any child pornography it discovered. Click HERE for the court’s opinion. ***** Reasonable Expectation of Privacy U.S. v. Symonevich, 688 F.3d 12 (1st Cir. 2012) A police officer conducted a traffic stop on the vehicle in which Symonevich was a front-seat passenger. As the officer approached the vehicle, he saw Symonevich lean down as if placing or retrieving something from underneath his seat. The officer searched under Symonevich’s seat and found a can of tire-puncture sealant. The officer felt something solid move around inside the can and noticed that the bottom of the can was slightly separated from the rest of the can. The officer unscrewed the bottom of the can and found heroin inside. The officer arrested the Symonevich and the driver. The court held that, as a passenger in the vehicle, Symonevich did not have a reasonable expectation of privacy in the space below the passenger seat from which the heroin was recovered. The court stated that even if Symonevich demonstrated that he owned the can, that ownership would not have created an expectation of privacy in it, because he placed the can in an area where he had no expectation of privacy. Click HERE for the court’s opinion. ***** U.S. v. Pope, 686 F.3d 1078 (9th Cir. 2012) A federal law enforcement officer in a national forest responded to an area where some people were creating a disturbance. The officer encountered Pope, whom he suspected was under the influence of marijuana. Pope told the officer that he had been smoking marijuana but denied that he had any on his person. The officer then ordered Pope to empty his pockets, but Pope refused. The officer asked Pope, a second time, if he had any marijuana on his person. This time Pope admitted that he had marijuana in his pockets. The officer ordered Pope to place the marijuana on the hood of his police car and Pope complied. The court held the officer’s initial command to Pope to empty his pockets was not a search under the Fourth Amendment. Even though Pope had a reasonable expectation of privacy in the contents of his pockets, his non-compliance with the officer’s command to empty them did not intrude on that reasonable expectation of privacy. 7 The government conceded the officer’s second command for Pope to place the marijuana on the hood of his police car was a search under the Fourth Amendment because of Pope’s compliance. However, the court held this warrantless search was reasonable because of the potential for the destruction of the evidence. When Pope admitted that he was in possession of marijuana, the officer had probable cause to arrest him for possession of a controlled substance. If the officer had allowed Pope to leave his presence, without searching him, there was a high risk that the evidence would have been hidden or destroyed. Finally, the search was minimally intrusive because the officer merely told Pope to place whatever marijuana he had on the hood of the car. Click HERE for the court’s opinion. ***** United States v. Wahchumwah, 2012 U.S. App. LEXIS 24296 (9th Cir. 2012) United States Fish and Wildlife Service (USFWS) agents began an investigation on Wahchumwah after receiving anonymous complaints that he was selling eagle parts. During a visit to Wahchumwah’s home, an undercover agent wearing a concealed audio-video recording device purchased two eagle plumes from him. Wahchumwah argued the warrantless audio-video recordings of the sale of the eagle plumes inside his home violated the Fourth Amendment. The court disagreed and following the Second, Third and Fifth circuits held an undercover agent’s warrantless use of a concealed audio-video device in a home into which he has been invited by a suspect does not violate the Fourth Amendment. As a result, the district court properly denied Wahchumwah’s motion to suppress the evidence obtained by the use of the concealed audio-video device. The court explained a person’s expectation of privacy does not extend to what a person knowingly exposes to the public, even in his own home. In addition, a person generally has no privacy interest in that which he voluntarily reveals to a government agent. A government agent may also make an audio recording of a suspect’s statements and those audio recordings, made with the consent of the government agent, do not require a warrant. When Wahchumwah invited the undercover agent into his home, he forfeited his expectation of privacy as to those areas that were knowingly exposed to the agent. Wahchumwah could not reasonably argue that the recording violated his legitimate privacy interests when it revealed no more than what was already visible to the agent. Click HERE for the court’s opinion. ***** U.S. v. Ruiz, 664 F. 3d 833 (10th Cir. 2012) Ruiz flew a rented airplane to a small airport in Kansas. At the airport, Ruiz paid cash for fuel and for storing the plane overnight in a hangar. The hangar was secure but it contained airplanes belonging to other customers. 8 During Ruiz’s flight, the Air and Marine Operations Center (AMOC) became suspicious because Ruiz had not filed a flight plan and an aircraft carrying drugs had landed at that airport six months earlier. The AMOC contacted an agent with Immigration and Customs Enforcement who arranged for local law enforcement officers to bring a drug detecting dog to the hangar. Once at the hangar, officers walked a certified drug dog around Ruiz’s airplane and the dog alerted several times to the presence of narcotics. Officers obtained a search warrant for the airplane and discovered a suitcase containing twenty-eight kilograms of cocaine. The court agreed with the Sixth Circuit Court of Appeals, holding that Ruiz had no objectively reasonable expectation of privacy in the airplane hangar. Here, the owner of the airport maintained control over the hangar at all times. The hangar stored aircraft and equipment belonging to the owner and other customers and Ruiz had no access to it after business hours. Even if Ruiz had a subjective expectation of privacy in the hangar, it was not an objectively reasonable one. Additionally, Ruiz argued the search warrant affidavit improperly omitted the fact that the drug dog had falsely alerted his handler to the presence of drugs on three of his last ten sniffs. The court disagreed. Generally, a search warrant based on a narcotics canine alert will be sufficient on its face if the affidavit states that the dog is trained and certified to detect narcotics. The court does not require the affiant to include a complete history of a drug dog’s reliability beyond the statement that the dog has been trained and certified to detect drugs. Here, it was established that the drug dog was certified to detect heroin, cocaine methamphetamine and marijuana by the State of Oklahoma and by the National Narcotic Detector Dog Association. Ruiz also contested an unrelated search of a rental home in which police officers found cocaine. Ruiz sent the owner a letter stating that he would no longer need to rent the house. The owner entered the house and called the police after he found several thousand dollars in the bathroom. Officers saw what appeared to be kilo packages of cocaine on a rafter in the basement ceiling. The officers stopped their search and obtained a search warrant. The court held the officers’ warrantless entry and initial search of the rental home was valid. When Ruiz sent the owner the letter terminating the lease, he effectively abandoned the rental house and any reasonable expectation of privacy he had in it when the police searched it at the request of the owner. Click HERE for the court’s opinion. ***** Abandonment U.S. v. Harrison, 689 F.3d 301 (3rd Cir. 2012) Three police officers entered a house without a warrant because they believed it was abandoned. Once inside, the officers found Harrison sitting in a chair with a gun, scales, pills and cocaine on a table next to him. The court concluded that Harrison had a reasonable expectation of privacy in the house; however, based on the totality of the circumstances it was reasonable for the officers to 9 mistakenly believe that the house was abandoned. As a result, the warrantless entry into the house did not violate the Fourth Amendment. The officers testified consistently that the exterior of the house was in a severe state of disrepair and that there was trash all over the lawn, which was overgrown with weeds. In addition, the windows on both levels were either boarded up or exposed and the front door was left open. While this information alone would not have been enough to make their mistake reasonable, the officers knew more. First, they knew that the house was a drug-den. Second, the interior matched the rundown condition of the exterior. Third, there were no furnishings other than a single mattress on the top floor. Fourth, that human waste filled the bathtub and toilets. Finally, there was no running water or electricity in the house. Click HERE for the court’s opinion. ***** U.S. v. Williams, 669 F. 3d 903 (8th Cir. 2012) A police officer went to the defendant’s house and retrieved three bags of trash that had been left at the curb for pick-up by a trash company. After finding cocaine residue within that trash, officers obtained a search warrant for the defendant’s house. The court stated that it is well settled there is no reasonable expectation of privacy in trash left at the curb in an area accessible to the public for pick-up by a trash company. Click HERE for the court’s opinion. ***** Cellphones U.S. v. Flores-Lopez, 670 F. 3d 803 (7th Cir. 2012) Officers arrested the defendant, searched him and seized a cell phone from his person. An officer searched the cell phone to determine its telephone number, which the government later used to subpoena three months of call history from the service provider. At trial, the government introduced the call history into evidence. The defendant argued the search of his cell phone was unreasonable because it was not conducted pursuant to a warrant. The court disagreed and held the warrantless search of the defendant’s cell phone was reasonable under the Fourth Amendment. Any invasion of the defendant’s privacy was slight because the officer only sought to determine the cell phone’s number. The court declined to address the issue of whether a more intrusive search of the cell phone’s contents would have been reasonable. Click HERE for the court’s opinion. ***** 10