Can police search your home if they found a small amount of drugs in your car during a traffic stop?

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The Ninth Circuit has repeatedly affirmed searches of homes of suspected drug dealers even where there is no direct evidence linking the homes to illegal activity, because the presence of evidence in a drug dealer’s home is a reasonable inference to draw. See, e.g., United States v. Fannin, 817 F.2d 1379, 1381–82 (9th Cir.1987); United States v. Angulo–Lopez, 791 F.2d 1394, 1399 (9th Cir.1986); United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.1985). The government argues that this caselaw can and should be extended to drug users, especially since Inspector Lau stated in his affidavit that it is “common” for drug users to have additional drugs and paraphernalia at their residences.

Such an affidavit is available in every case. In effect, the government is looking for a bright-line rule that the police have probable cause to search the house of any person found with any amount of illegal drugs anywhere. This would be a significant extension of the case law, taking it beyond the bounds of what is permitted by the Fourth Amendment. The Ninth Circuit has held that “probable cause that a resident of the location has committed a crime is in itself insufficient to satisfy” the requirement that evidence probably will be found at the locations to be searched. See United States v. Fernandez, 388 F.3d 1199, 1254 (9th Cir.2004); United States v. Gil, 58 F.3d 1414, 1418 (9th Cir.1995). Drug dealing and drug using are categorically different crimes. To extend the exception in Fannin and Angulo–Lopez is to eviscerate the rule stated in Fernandez and Gil. See United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.1970) (explaining that if mere probable cause to arrest a suspect also established probable cause to search the suspect’s home, there would be no reason to distinguish search warrants from arrest warrants). The search warrant in this case was facially invalid.

Read the full case here: United States v. Garcia, 809 F. Supp. 2d 1165 (N.D. Cal. 2011), https://casetext.com/case/us-v-garcia-335

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Police persistently pounded on the front door and windows for 2.5 minutes at 9:00 at night.

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The general rule in the Ninth Circuit concerning knock and talk encounters is:

Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof-whether the questioner be a pollster, a salesman, or an officer of the law. Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964). In other words, a knock and talk is a consensual encounter. Consensual encounters between police officers and citizens are not seizures. See Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In Cormier the Ninth Circuit identified two sets of coercive circumstances that would transform a knock and talk into a seizure: (1) if the police compelled an occupant to open the door under the badge of authority and (2) if the police were unreasonably persistent in attempting to gain entry. Cormier, 220 F.3d at 1109 (citing United States v. Winsor, 846 F.2d 1569 (9th Cir. 1988) (en banc), and United States v. Jerez, 108 F.3d 684 (7th Cir. 1997)). The court further noted that a nighttime encounter weighs in favor of a seizure. Id. at 1110.

In this case, the police unreasonably persisted for approximately two and a half minutes in loud knocking rising to the level of heavy pounding on doors and windows in summoning Defendant to the door. By all indications they were not leaving until and unless Defendant came to the door. The duration and volume of the knocking was far more than necessary to announce their presence to anyone inside and greatly exceeded the knocking that, at 9:00 at night in this community, a reasonable person would take as an invitation to answer or not. As a whole, the officers’ conduct was of an entirely different character than that of a neighbor or salesman on an ordinary visit. Although Detective Torres did not employ literal words of command, his announcement that the police wanted someone to come to the front door to speak with them when coupled with the unreasonably loud and persistent knocking would be taken by a reasonable person as an order, as indeed Defendant did take it. Certainly the police officers “convey[ed] a message that compliance with their requests was required.” Bostick, 501 U.S. at 435, 111 S.Ct. 2382. When compliance with a request is required, the request is more accurately described as a demand. As the Ninth Circuit has stated, “compliance with a police demand is not consent.” Winsor, 846 F.2d at 1573 n. 3 (internal quotations omitted). Under the totality of the circumstances — the unreasonably loud and persistent knocking, the announcement that the police wanted to talk with someone, and the nighttime setting — the conduct of the police would have communicated to a reasonable person that he was not free to decline the officers’ requests or otherwise terminate the encounter. Therefore, Defendant was seized within the meaning of the Fourth Amendment.

Read the full case here: U.S. v. Velazco-Durazo, 372 F. Supp. 2d 520, 524-25 (D. Ariz. 2005), https://casetext.com/case/us-v-velazco-durazo-2

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Police Demanded the Resident Open the Door for Visual Inspection, Followed by Forced Entry.

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https://youtu.be/Sm_2uK-VnL8

It is well established that, even when officers have probable cause to believe that contraband is present in a home, a warrantless search of the home is unlawful unless exigent circumstances exist at the time of entry. See Payton v. New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The government bears the burden of demonstrating exigent circumstances that overcome their presumptively unreasonable entry. See Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). And exigency is determined at the moment the search occurs. See United States v. Reed, 935 F.2d 641, 643 (4th Cir. 1991) (per curiam). This court has enumerated five factors that district courts should consider in determining whether an exigency existed at the time a search commenced:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) the officers’ reasonable belief that the contraband is about to be removed or destroyed; (3) the possibility of danger to police guarding the site; (4) information indicating the possessors of the contraband are aware that police are on their trail; and (5) the ready destructibility of the contraband. Turner, 650 F.2d at 528.

It is well established that a search occurs for Fourth Amendment purposes “when officers gain visual or physical access to a . . . room after an occupant opens the door not voluntarily, but in response to a demand under color of authority.” United States v. Conner, 127 F.3d 663, 666 (8th Cir. 1997).

The officers here likewise offered no justification for not seeking a warrant prior to knocking on the door, other than the slight delay or inconvenience that obtaining a warrant might have caused, reasons Johnson held were not sufficient. See id. Thus, although the officers had every right to knock on Mowatt’s door to try to talk to him about the complaint, see United States v. Cephas, 254 F.3d 488, 494 (4th Cir. 2001), without a warrant, they could not require him to open it.

Read the full case here: U.S. v. Mowatt, 513 F.3d 395 (4th Cir. 2008), https://casetext.com/case/us-v-mowatt

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Can police operate a drug checkpoint or does the roadblock violate the 4th Amendment?

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Petitioner city operates vehicle checkpoints on its roads in an effort to interdict unlawful drugs.

The District Court denied respondents a preliminary injunction, but the Seventh Circuit reversed, holding that the checkpoints contravened the Fourth Amendment.

Held: Because the checkpoint program’s primary purpose is indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment. Pp. 37-48.

(a) The rule that a search or seizure is unreasonable under the Fourth Amendment absent individualized suspicion of wrongdoing has limited exceptions. For example, this Court has upheld brief, suspicionless seizures at a fixed checkpoint designed to intercept illegal aliens, United States v. Martinez-Fuerte, 428 U. S. 543, and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U. S. 444. The Court has also suggested that a similar roadblock to verify drivers’ licenses and registrations would be permissible to serve a highway safety interest. Delaware v. Prouse, 440 U. S. 648, 663. However, the Court has never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Pp. 37-40.

(b) The latter purpose is what principally distinguishes the checkpoints at issue from those the Court has previously approved, which were designed to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Petitioners state that the Sitz and Martinez-Fuerte checkpoints had the same ultimate purpose of arresting those suspected of committing crimes. Securing the border and apprehending drunken drivers are law enforcement activities, and authorities employ arrests and criminal prosecutions to pursue these goals. But if this case were to rest at such a high level of generality, there would be little check on the authorities’ ability to construct roadblocks for almost any conceivable law enforcement purpose. The checkpoint program is also not justified by the severe and intractable nature of the drug problem. The gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement may employ to pursue a given purpose. Rather, in determining whether individualized suspicion is required, the Court must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. Nor can the checkpoints’ purpose be rationalized in terms of a highway safety concern similar to that in Sitz, or merely likened to the antismuggling purpose in MartinezFuerte. Neither Whren v. United States, 517 U. S. 806, nor Bond v. United States, 529 U. S. 334, precludes an inquiry into the checkpoint program’s purposes. And if the program could be justified by its lawful secondary purposes of keeping impaired motorists off the road and verifying licenses and registrations, authorities would be able to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check. That is why the Court must determine the primary purpose of the checkpoint program. This holding does not alter the constitutional status of the checkpoints approved in Sitz and Martinez-Fuerte, or the type of checkpoint suggested in Prouse. It also does not affect the validity of border searches or searches in airports and government buildings, where the need for such measures to ensure public safety can be particularly acute. Nor does it impair police officers’ ability to act appropriately upon information that they properly learn during a checkpoint stop justified by a lawful primary purpose. Finally, the purpose inquiry is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene. Pp. 40-48.

Read full opinion here: Indianapolis v. Edmond, 531 U.S. 32 (2000), https://supreme.justia.com/cases/federal/us/531/32/#top

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A Game of Russian Roulette Ended in a Shooting Death. Police Search Witness’s Room Without a Warrant

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Because the Fourth Amendment protects “people, not places,” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), Davis must first demonstrate that he personally had a “legitimate expectation of privacy” in the place searched or the thing seized. Rakas v. Illinois,439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

If the Fourth Amendment does not protect Davis’ expectation of privacy in the contents of his bag, stored under the bed in an apartment where he sleeps and keeps his belongings, we find it difficult to imagine what the Fourth Amendment does protect.

Having determined that Davis had a legitimate expectation of privacy in his bag, we must next decide whether Smith had authority to consent to the search. The government has the burden of establishing the effectiveness of Smith’s consent. See Welch,4 F.3d at 764 (citing Illinois v. Rodriguez,497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)). To meet its burden, the government must demonstrate that Smith had either actual or apparent authority to consent to the search. See Fultz,146 F.3d at 1105; Welch,4 F.3d at 764.

A third party has actual authority to consent to a search of a container if the owner of the container has expressly authorized the third party to give consent or if the third party has mutual use of the container and joint access to or control over the container.” Fultz, 146 F.3d at 1105; Welch, 4 F.3d at 764. Because there is nothing in the record to suggest that Smith had express authorization from Davis to consent to a search of the bag, the government must prevail on a mutual use and joint access or control theory in order to demonstrate actual authority.

“Under the apparent authority doctrine, a search is valid if the government proves that the officers who conducted it reasonably believed that the person from whom they obtained consent had the actual authority to grant that consent.” Welch, 4 F.3d at 764; Fultz, 146 F.3d at 1105. The government contends that the officers reasonably believed that Smith had authority to consent to a search of the entire apartment. Again, however, we stress that the relevant question is whether the officers reasonably believed that Smith had authority to consent to a search of Davis’ bag.

Given the circumstances, to the extent that the officers believed that Smith’s consent to search the apartment legally authorized them to search Davis’ bag, they were either indifferent to known facts or mistaken as to the law.

In sum, Smith had neither actual nor apparent authority to consent to the search. Because Davis had a reasonable expectation of privacy in the gym bag, and because the government failed to carry its burden of demonstrating that Smith’s consent was valid, we hold that the search was illegal.

Read the full case here: U.S. v. Davis, 332 F.3d 1163 (9th Cir. 2003), https://casetext.com/case/us-v-davis-128

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DOJ to reclassify cannabis to schedule III, drug priors trigger mandatory min., say sorry to a cop.

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Justice Department Publishes Proposed Rule to Reclassify Cannabis, Begins Accepting Public Comments

The Department of Justice (“DOJ”) proposes to transfer marijuana from schedule I of the Controlled Substances Act (“CSA”) to schedule III of the CSA. If marijuana is transferred into schedule III, the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the CSA.

Even if marijuana is rescheduled, it would still be a controlled substance that’s subject to federal rules and regulations. More importantly, rescheduling does not decriminalize marijuana or make it legal for recreational use on the federal level.

Instead, the DEA’s proposal would recognize the medical uses of cannabis and acknowledge it has less potential for abuse than some of the nation’s most dangerous drugs. Becoming a Schedule III drug would make it easier for research to be done on marijuana as well.

https://www.federalregister.gov/documents/2024/05/21/2024-11137/schedules-of-controlled-substances-rescheduling-of-marijuana
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May 23, 2024 BROWN v. UNITED STATES

The Armed Career Criminal Act mandates a 15-year sentence for being a felon in possession of a firearm if the defendant has been previously convicted of three violent felonies or “serious drug offenses,” and the case dealt with when that mandatory minimum sentence should be applied when it comes to drug crimes.

The parties propose three different answers to the question whether the federal and state definitions of a drug must match when the state crime is committed or at some later point in time.

The Government argues that a prior state drug conviction qualifies if the federal and state definitions of the relevant drug matched when the defendant committed the state crime.

Jackson argues instead that the definitions must match when the defendant violates the federal felon in-possession statute.

Finally, Brown contends that the definitions must match when the defendant is sentenced for the federal felon-in possession offense.

By a 6-3 vote, the justices held that some state drug convictions can trigger a federal sentencing enhancement even if the drug involved is later reclassified under the Controlled Substances Act.

https://www.supremecourt.gov/opinions/23pdf/22-6389_6537.pdf
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Alabama driver ordered to say sorry or face jail for telling officer ‘get your ass out of the way’

https://www.al.com/news/2024/05/alabama-driver-ordered-to-say-sorry-or-face-jail-for-telling-officer-get-your-ass-out-of-the-way.html

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Police enter a home WITHOUT consent for welfare check, find woman unharmed, ILLEGALLY search anyway.

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During the evening hours of January 5, 2019, officers were dispatched to Dane Arredondo’s (“Dane”) house on a neighbor’s report of a woman screaming and crying inside the residence. When the officers arrived, they entered the home without consent to check on the woman. They found her downstairs, extremely intoxicated but apparently unharmed. While inside the house questioning Dane’s brother, David Arredondo (“David”), about the disturbance, the officers discovered small glass medicine vials. Dane was charged with (1) health care fraud, in violation of 18 U.S.C. § 1347 ; (2) acquiring controlled substances by fraud, in violation of 21 U.S.C. § 843(a)(3) ; and (3) possession of controlled substances, in violation of 21 U.S.C. § 844. The government appeals the district court’s order granting Dane’s motion to suppress the vials.

The Fourth Amendment protects the right of persons to be free from unreasonable seizures of their papers and effects. U.S. Const. Amend. IV. A warrantless seizure of property is per se unreasonable unless it falls within a well-defined exception to the warrant requirement. Robbins v. City of Des Moines, 984 F.3d 673, 680 (8th Cir. 2021). The government contends exigent circumstances and the community caretaker function justified the officers’ presence upstairs and a warrantless seizure of the vials was permissible under the plain view exception.

While we have reservations about the government’s claim that the officers were lawfully present upstairs, the exigent circumstances and community caretaker function having dissipated and the issue of consent being questionable, it is unnecessary to resolve this issue because the plain view exception does not apply. The plain view exception authorizes an officer to seize an object without a warrant if (1) the officer lawfully arrived at the location from which he or she views the object, (2) the object’s “incriminating character” is “immediately apparent,” and (3) “the officer has a lawful right of access to the object itself.” United States v. Lewis, 864 F.3d 937, 943 (8th Cir. 2017) (citation omitted). Here, even assuming the first and third prongs are satisfied, the second prong is not because the record does not establish the “incriminating character” of the vials was “immediately apparent.”

For an item’s “incriminating character” to be “immediately apparent,” the officer must have probable cause to associate it with criminal activity. Id. at 944. Deputy Fenton possessed no such probable cause. When he came upon small glass containers that looked similar to containers that hold common household items, such as contact lenses, essential oils, or medications for insulin or fertility, there was no basis to immediately suspect contraband.

Read full case here: United States v. Arredondo, 996 F.3d 903 (8th Cir. 2021), https://casetext.com/case/united-states-v-arredondo-47

Anton Vialtsin, Esq.
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#PoliceBrutality #IllegalSearch #WelfareCheck #UnlawfulEntry #4thamendment #4thamendment #FourthAmendment #CivilRights #PoliceMisconduct #UnjustifiedSearch #ConstitutionalRights #PoliceState #InvasionofPrivacy #UnwarrantedSearch #PoliceAbuse #ViolationofRights #Unconstitutional #PoliceCorruption #ExcessiveForce #UnjustifiedEntry #PoliceAccountability #UnlawfulActions #policeaudit #nowarrant #police #illegalarrest #unlawfuldetention

Felon in Possession Unconstitutional, Right to Protest, and Cryptocurrency, own cases

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Ninth Circuit Holds Felon-in-Possession Unconstitutional as to Non-Violent Offenders After Bruen

May 9th 2024, in United States v. Duarte, No. 22-50048 (9th Cir. May 9, 2024), a split panel of the United States Court of Appeals for the Ninth Circuit held that under New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the Second Amendment as applied to Duarte, a non-violent offender who has served his time in prison and reentered society. The opinion, written by Judge Bea and joined by Judge VanDyke, begins:

18 U.S.C. § 922(g)(1) makes it a crime for any person to possess a firearm if he has been convicted of an offense “punishable by imprisonment for a term exceeding one year.” Steven Duarte, who has five prior non-violent state criminal convictions—all punishable for more than a year— was charged and convicted under § 922(g)(1) after police saw him toss a handgun out of the window of a moving car. Duarte now challenges the constitutionality of his conviction. He argues that, under the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society. We agree.

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/05/09/22-50048.pdf
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A federal judge in Washington, D.C., sentenced an antiabortion activist to five years in prison for illegally blockading a reproductive health clinic. Lauren Handy is the first person sentenced for violating the Freedom of Access to Clinic Entrances Act.

“Americans have been protesting in favor of and against abortion access for the better part of a century, and there may be nothing more American than these protests” over conflicting views of fundamental rights, U.S. District Judge Colleen Kollar-Kotelly said in handing down the penalty.
“But the law does not protect violence or obstructive conduct — nor should it,” Kollar-Kotelly continued. “That’s what you’re being punished for, not your views on abortion nor your very-American commitment to peaceful protest.”

https://www.washingtonpost.com/dc-md-va/2024/05/14/lauren-handy-abortion-clinic-blockade-sentence/

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Southern District of New York: Authorities have charged two brothers with allegedly stealing $25M worth of cryptocurrency in 12 seconds. The duo, graduates of the prestigious MIT, allegedly engineered a first-of-its-kind wire fraud scheme to gain access to pending crypto transactions.

https://www.justice.gov/opa/pr/two-brothers-arrested-attacking-ethereum-blockchain-and-stealing-25m-cryptocurrency

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Police searched ENTIRE vehicle without a warrant or authority. Limitations on consent!

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The Fourth Amendment proscribes unreasonable searches and seizures, but it permits a warrantless search to which the suspect consents. “When conducting a warrantless search of a vehicle based on consent, officers have no more authority to search than it appears was given by the consent.” Thus, it is “important to take account of any express or implied limitations or qualifications attending that consent which establish the permissible scope of the search in terms of such matters as time, duration, area, or intensity.” The Supreme Court’s standard, under Florida v. Jimeno, is “that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?”

The government’s argument rests on faulty understandings of both law and fact. True, if Cotton properly limited his consent to a search of his luggage, that consent would permit Viator to enter the car and search those items. It is also true that if, during such a limited entry into the vehicle, Viator were to discover evidence of a hidden compartment, that discovery might provide probable cause to search the suspected compartment. The video evidence and Viator’s own testimony, however, reveal that he discovered the loose screws and tool markings on the driver’s-side rear door panel not as he was trying to locate Cotton’s luggage and not as he was examining the contents of such luggage. Rather, after locating and searching the luggage in the backseat area of the car, Viator expanded his search for evidence of contraband to the vehicle itself by proceeding to examine, inter alia, the driver’s-side rear door. Authority to enter and search the car for Cotton’s luggage was not authority to search discrete locations within the car where luggage could not reasonably be expected to be found. Neither was it justification for lingering in and around the vehicle for 40 minutes—much longer than a search for and of Cotton’s luggage should or could conceivably last.

Read full case here: United States v. Cotton, 722 F.3d 271 (5th Cir. 2013), https://casetext.com/case/united-states-v-cotton-13/

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
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(619) 357-6677

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Police took the man’s phone and ANSWERED an incoming call IMPERSONATING the person being arrested.

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When Andres Lopez–Cruz (“Lopez”) gave a border patrol agent permission to “look in” or “search” the two cell phones he had with him, the agent did not ask him whether he would also consent to the agent’s answering any incoming calls. Nonetheless, when one of the phones rang while the agent was conducting his search, he answered it, passing himself off as Lopez. By answering the call, the agent obtained information leading to Lopez’s arrest and felony charges of conspiracy to transport illegal aliens under 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(I). Lopez moved to suppress the evidence obtained from the phone calls. The district court granted the motion to suppress and denied the government’s motion for reconsideration. The government appeals.

The scope of consent is determined by asking “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno,500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). The test is an objective one. The district court explained that a reasonable person would not “believe that a consent to look at or search a cell phone would include consent to answer incoming calls.” It held that Lopez’s “consent in this case was limited to an examination of the phone itself and that further legal justification was required before the agents answered it.”

Here, the agent’s answering of the phone exceeded the scope of the consent that he obtained and, thus, violated Lopez’s Fourth Amendment right. As a general matter, consent to search a cell phone is insufficient to allow an agent to answer that phone; rather, specific consent to answer is necessary.

Read the full case here: United States v. Lopez-Cruz, 730 F.3d 803 (9th Cir. 2013), https://casetext.com/case/united-states-v-lopez-cruz-2

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
https://lawstache.com
(619) 357-6677

Do you want to buy our Lawstache merchandise? Maybe a T-shirt?
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Want to mail me something (usually mustache-related)? Send it to 185 West F Street, Suite 100-D, San Diego, CA 92101

Want to learn about our recent victories?
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Are you a Russian speaker? Вы говорите по-русски?
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Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

The San Diego-based business litigation and criminal defense attorneys at LAWSTACHE™ LAW FIRM are experienced and dedicated professionals singularly focused on one goal: achieving the best results for our clients. Through our hard work and expertise, we guarantee all of our clients that we will diligently protect their rights and zealously pursue justice. Our clients deserve nothing less!