Extended Roadside Questioning: Don’t Let Police Use “Just One More Thing” Line of Questioning.

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Most drivers do not know that they have a right to deny consent,and troopers are more than happy to exploit their lack of knowledge of their legal rights. Even though the law requires that consent be knowing, intelligent and voluntary, troopers don’t generally let such niceties stand in their way. For drivers who are not initially forthcoming with consent, troopers are trained to conclude the traffic stop, somehow signal that the driver is free to go, then immediately re-engage the driver in friendly, casual conversation to keep the driver at the scene and enable the trooper to develop reasonable suspicion or take another stab at getting consent . . .

The Court found that the Kansas Highway Patrol “is engaged in a pattern or practice of prolonging traffic stops by using the Kansas Two-Step to coerce drivers into answering questions when the troopers do not have reasonable suspicion and the drivers do not feel free to leave. This practice violates the Fourth Amendment by extending traffic stops without reasonable suspicion and without the knowing, intelligent and voluntary consent of the drivers.”

Full case here: BLAINE FRANKLIN SHAW et al., v. HERMAN JONES, in his official capacity as the ) Superintendent of the Kansas Highway Patrol, ) et al.,

https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2020cv1067-86

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Outrageous: Wearing a Fanny Pack Over Your Shoulder Could Land You in a Police Search!?!

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At approximately 1:00 a.m. on October 14, 2020, officers from the New York City Police Department (NYPD) encountered Defendant Michael Hagood near a housing complex managed by the New York City Housing Authority (NYCHA) in the Bronx. Mr. Hagood was notably wearing a fanny pack slung across his chest while standing beside a double-parked vehicle. The officers observed that Mr. Hagood appeared visibly anxious upon spotting them, with one officer noticing an unusual protrusion in his fanny pack that resembled the shape of a handgun.

Prompted by these observations, the officers decided to stop and frisk Mr. Hagood, leading to the discovery of a loaded semi-automatic pistol in the fanny pack. Consequently, Mr. Hagood faced charges under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for possessing a firearm subsequent to a felony conviction. He subsequently sought to suppress the firearm as evidence, contending that the initial stop violated his Fourth Amendment rights due to the officers lacking reasonable suspicion of criminal activity.

However, the circumstances surrounding this case, which encompasses the officer’s expertise in retrieving firearms from fanny packs, Mr. Hagood’s unconventional method of wearing the fanny pack, his nervous demeanor upon encountering the officers, and the late hour within a high-crime neighborhood, collectively established reasonable suspicion.

Dissent:
The ordinary, reasonable person looking at this case would describe it as follows: Officer Migliaccio drove by Michael Hagood late one night from thirty feet away and had a two- or three-second window during which to observe Hagood. Migliaccio saw Hagood standing outside, calmly talking to two friends and wearing a fanny pack over his shoulder and across his chest. For whatever reason, Migliaccio had a hunch that Hagood was up to no good. Migliaccio acted on his hunch and decided to find a way to search Hagood. His hunch turned out to be right. Hagood was, indeed, a past felon improperly in possession of a gun. […D]espite the majority’s Herculean efforts, the record, at best, merely supports that Migliaccio had a hunch that turned out right.

Read the full case here: United States v. Hagood, No. 22-588 (2d Cir. 2023), https://law.justia.com/cases/federal/appellate-courts/ca2/22-588/22-588-2023-08-30.html

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Unlawful Police Home Entry: Violating Fourth Amendment Rights of House Guests | Girlfriend Apartment

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In Steagald v. United States, 451 U.S. 204 (1981), the Supreme Court held that, in the absence of valid consent or exigent circumstances, warrantless searches are per se unreasonable and violate the Fourth Amendment. Id. at 211, 101 S.Ct. 1642. Here, the only warrant the police possessed at the time they entered Cruz’s home was an old warrant for Medina’s arrest for driving a car with a suspended license. In Steagald, the Supreme Court stated that an arrest warrant for a non-resident was insufficient to authorize a search of a third party’s home.Id. at 216, 101 S.Ct. 1642. Operating under the premise that the police did not have valid consent or exigent circumstances to search Cruz’s home, Medina contends that the search by the HPD violated the principle stated in Steagald.

What about girlfriend’s consent in this case?

Consent is not voluntary if it is merely the acquiescence to a claim of lawful authority. Bumper, 391 U.S. at 548-49. Moreover, “[w]here there is coercion, there cannot be consent.”Id. at 550. Consent must be voluntary and courts look to several factors in order to determine whether consent was given voluntarily or through coercion. United States v. Barnett, 989 F.2d 546, 554-55 (1st Cir. 1993). Those factors include age, education, experience, intelligence, knowledge of the right to withhold consent and evidence of coercive means or inherently coercive circumstances. United States v. Corain, 198 F.3d 306, 309 (1st Cir. 1999). No one factor is determinative because the Court must examine the totality of the circumstances surrounding the purported consent. Barnett, 989 F.2d at 554-55.

Read full case here: U.S. v. Medina, 451 F. Supp. 2d 262 (D. Mass. 2006), https://casetext.com/case/us-v-medina-10

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Unlawful Trunk Search? Analyzing a Case of Police Misconduct and the Automobile Exception

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“[W]hen an officer has probable cause to believe evidence of a crime will be found specifically in the passenger compartment of a vehicle, and no other subsequent discovery or information provides further probable cause to believe the evidence will be found in the trunk, an officer’s search of the trunk exceeds the permissible scope of a warrantless search under the automobile exception.”

The Fourth Amendment’s guarantee of the right to be free from unreasonable searches and seizures is fundamental to our sense of liberty and justice. (U.S. Const., 4th Amend.) The general rule is that warrantless searches are unreasonable.(Katz v. United States (1967) 389U.S.347, 357.)Certain circumstances, however, create exceptions to the general ban on warrantless searches. (Ibid.) One such exception—the automobile exception—is the focus of this appeal.

“The automobile exception provides ‘police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found.’” (People v. McGee(2020) 53Cal.App.5th 796, 801, quoting People v. Evans(2011) 200Cal.App.4th 735, 753.) The scope of a warrantless search is “defined by the object of the search and the places in which there is probable cause to believe that it may be found.” (United States v. Ross(1982) 456U.S.798, 824 (Ross).)In deciding whether a warrantless search was justified under the automobile exception, the facts are determinative. That is because probable cause exists “where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” (Ornelas v. United States(1996) 517U.S.690, 696.)

Here, the searching police officer received information via a radio broadcast from another officer that a juvenile on probation with a firearm restriction likely placed a firearm under the front passenger seat in defendant Hilario Leal, Jr.’s car before the defendant got into his car and drove away. Defendant’s car was under constant surveillance from the timeof the alleged firearm placement until the searching officer conducted the search. When search the passenger compartment of defendant’s car yielded no firearm, the searching officer decided to search the trunk, where he discovered a firearm. Defendant was charged withseveraloffenses and filed a motion to suppress the firearm; the trial court denied the motion. Defendant ultimately pled no contest to being a felon in possession of a firearm. The question presented is whether the search of the defendant’s trunk was justified under the automobile exception. We conclude it was not.

Read full case here: California v. Leal, https://law.justia.com/cases/california/court-of-appeal/2023/c096463.html

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Understanding the 4th Amendment: What Happened with the Abandoned Vehicle?

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Alexander Hillel Treisman appeals the district court’s denial of his motion to suppress evidence that police discovered while searching his van without a warrant. But warrantless searches of vehicles carried out as part of law enforcement’s community caretaking functions do not violate the Fourth Amendment if they are reasonable under the circumstances. And because the record here supports the district court’s conclusion that the officers acted reasonably in searching the van under their community caretaking functions, we affirm.

The Supreme Court first mentioned this concept in Cady v. Dombrowski, 413 U.S. 433 (1973). There, the Court explained,

Some [contacts between citizens and police involving automobiles] will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers [] frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions ….
Id. at 441. Elaborating, the Court described community caretaking functions as conduct “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. And it also clarified that the test for evaluating whether community caretaking searches violate the Fourth Amendment is reasonableness. Id. at 442. In other words, is the search reasonable given the totality of the circumstances?

Full case here: United States v. Treisman, No. 21-4687 (4th Cir. Jun. 23, 2023), https://casetext.com/case/united-states-v-treisman

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How Dog Sniffs and Unrelated Inquiries Can Turn a Traffic Stop into a Constitutional Violation

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What began as a lawful traffic stop violated the Fourth Amendment’s shield against unreasonable seizures when the officers detoured from the traffic stop’s mission by conducting the dog sniff and inquiring into matters unrelated to the traffic violation and these detours prolonged the stop “‘beyond the time reasonably required to complete the mission’ of issuing a ticket for the [traffic] violation. [Citation.]” (Rodriguez, supra, 575 U.S. at pp. 350–351.)

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The United States Supreme Court has identified tasks that are part of an officer’s mission during a stop for a traffic violation: “Beyond determining whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop.’ [Citation.] Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. [Citations.]” (Rodriguez, supra, 575 U.S. at p. 355.) The temporary detention may also include “a criminal history check [citation], which is done by consulting an incar computer terminal or radioing dispatch. [Citations.]” (People v. Lopez (2019) 8 Cal.5th 353, 363, fn. 4.) “‘And although not specifically compelled by law, certain other steps customarily taken as matters of good police practice are no less intimately related to the citation process: for example, the officer will usually discuss the violation with the motorist and listen to any explanation the latter may wish to offer.’” (People v. Tully (2012) 54 Cal.4th 952, 981.) These tasks are included within the officer’s mission during a traffic stop because they “serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly. [Citations.]” (Rodriguez, supra, 575 U.S. at p. 355.) An officer may also require a lawfully stopped driver to exit the vehicle for officer safety to complete his traffic stop mission. (Id. at p. 356.)

“On-scene investigation into other crimes, however, detours from [the traffic stop’s] mission. So too do safety precautions taken in order to facilitate such detours. [Citation.]” (Rodriguez, supra, 575 U.S. at p. 356.) While “[a]n officer . . . may conduct certain unrelated checks during an otherwise lawful traffic stop,” the officer “may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual. [Citation.]” (Id. at p. 355.)

Full case here: THE PEOPLE v. JOSEPH GYORGY, G061567 (Super. Ct. No. 18NF2747), (7/14/2023), https://www.courts.ca.gov/opinions/documents/G061567.PDF

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Police promises NOT to arrest, “settled notions of fundamental fairness” may require a DISMISSAL.

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On September 24, 2019, shortly after witnessing Manley Johnson leave Appellant Maurice Bailey’s home, Kannapolis, North Carolina police officer Jeremy Page discovered 0.1 grams of cocaine base during a search of Johnson’s vehicle. Officer Page then confronted Bailey about the cocaine sale and instructed him to turn over any drugs still in his possession. In return, Officer Page assured Bailey that he was “going to take it and ․ leave,” and everything would still be “squared away.” J.A. 112. As he later testified, Officer Page expected that Bailey would assist him in future investigations. Prompted by Officer Page’s offer, Bailey handed over 0.7 grams of cocaine base.

In the following weeks, Bailey helped Officer Page locate and arrest an individual for whom the police had an outstanding warrant but did not otherwise aid in Officer Page’s investigations. Then, on November 7, 2019, Officer Page obtained two warrants for Bailey’s arrest: one for the 0.1 grams Bailey sold to Johnson on September 24, and one for the 0.7 grams Bailey turned over that same day. In the process of executing those warrants, Kannapolis police discovered 17.8 grams of cocaine base on Bailey’s person, which led to Bailey’s prosecution for possession with intent to distribute cocaine.

Bailey unsuccessfully moved to suppress the 17.8 grams of cocaine and was convicted of the charge. On appeal, Bailey argues that the district court should have granted his suppression motion because his arrest constituted a breach of Officer Page’s September 24 promise that all would be “squared away.” Because the district court failed to make the factual findings necessary to resolve this argument, we vacate its decision denying Bailey’s motion to suppress and the judgment of conviction and remand for proceedings consistent with this opinion.

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In all such contexts, therefore, where an individual fulfills his obligations under the agreement, “settled notions of fundamental fairness” may require the government “to uphold its end of the bargain,” too. Carrillo, 709 F.2d at 37. To hold otherwise would rubberstamp a police practice that stands to undermine “the honor of the government” and “public confidence in the fair administration of justice.” Carter, 454 F.2d at 428.
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Full case here: UNITED STATES v. BAILEY (2023), https://caselaw.findlaw.com/court/us-4th-circuit/114625754.html

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Unbelievable Injustice: How the Government Failed to Prosecute for 8 Years | Case must be dropped!

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In February 1980, petitioner Doggett was indicted on federal drug charges, but he left the country before the Drug Enforcement Agency could secure his arrest. The DEA knew that he was later imprisoned in Panama, but after requesting that he be expelled back to the United States, never followed up on his status. Once the DEA discovered that he had left Panama for Colombia, it made no further attempt to locate him. Thus, it was unaware that he reentered this country in 1982 and subsequently married, earned a college degree, found steady employment, lived openly under his own name, and stayed within the law. The Marshal’s Service eventually located him during a simple credit check on individuals with outstanding warrants. He was arrested in September 1988, 81/2 years after his indictment. He moved to dismiss the indictment on the ground that the Government’s failure to prosecute him earlier violated his Sixth Amendment right to a speedy trial, but the District Court denied the motion, and he entered a conditional guilty plea. The Court of Appeals affirmed.

Held: The delay between Doggett’s indictment and arrest violated his right to a speedy trial. His claim meets the Barker v. Wingo, 407 U. S. 514, 530, criteria for evaluating speedy trial claims. First, the extraordinary 8 1/2-year lag between his indictment and arrest clearly suffices to trigger the speedy trial enquiry. Second, the Government was to blame for the delay. The District Court’s finding that the Government was negligent in pursuing Doggett should be viewed with considerable deference, and neither the Government nor the record provides any reason to reject that finding. Third, Doggett asserted in due course his right to a speedy trial. The courts below found that he did not know of his indictment before his arrest, and, in the factual basis supporting his guilty plea, the Government essentially conceded this point. Finally, the negligent delay between Doggett’s indictment and arrest presumptively prejudiced his ability to prepare an adequate defense. The Government errs in arguing that the Speedy Trial Clause does not significantly protect a defendant’s interest in fair adjudication. United States v. Marion, 404 U. S. 307, 320-323; United States v. MacDonald, 456 U. S. 1, 8; United States v. Loud Hawk, 474 U. S. 302, 312, distinguished. Nor does Doggett’s failure to cite any specifically demonstrable prejudice doom his claim, since excessive delay can compromise a trial’s reliability in unidentifiable ways. Presumptive prejudice is part of the mix of relevant Barker factors and increases in importance with the length of the delay. Here, the Government’s egregious persistence in failing to prosecute Doggett is sufficient to warrant granting relief. The negligence caused delay six times as long as that generally deemed sufficient to trigger judicial review, and the presumption of prejudice is neither extenuated, as by Doggett’s acquiescence, nor persuasively rebutted. Pp.651-658.

Read the full case here: Doggett v. United States, 505 U.S. 647 (1992), https://supreme.justia.com/cases/federal/us/505/647/case.pdf

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Phone Searches at the Border: What CBP Can and Can’t Do

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The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. “[W]arrantless searches are typically unreasonable where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing.” Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018) (quotation omitted).

The border search exception is a “longstanding, historically recognized exception to the Fourth Amendment’s general principle that a warrant be obtained” for a search. Ramsey, 431 U.S. at 621. “[T]he border-search exception allows officers to conduct ‘routine inspections and searches of individuals or conveyances seeking to cross . . . borders’ without any particularized suspicion of wrongdoing.” United States v. Aguilar, 973 F.3d 445, 449 (5th Cir. 2020) (quoting Ramsey, 431 U.S. at 619) (emphasis added). Moreover, even “[s]o-called ‘nonroutine’ searches need only reasonable suspicion, not the higher threshold of probable cause.” United States v. Molina-Isidoro, 884 F.3d 287, 291 (5th Cir. 2018). “For border searches both routine and not, no case has required a warrant.” Id

The border search exception reflects “the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.” Ramsey, 431 U.S. at 616. “The Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border” and has been recognized “since the beginning of our Government.” United States v. Flores-Montano, 541 U.S. 149, 152–53 (2004). “Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry.” Ramsey, 431 U.S. at 619.

Accordingly, when it comes to manual cell phone searches at the border, our sister circuits have uniformly held that Riley does not require either a warrant or reasonable suspicion. See, e.g., United States v. Xiang, 67 F.4th 895, 900 (8th Cir. 2023) (“No Circuit has held that the government must obtain a warrant to conduct a routine border search of electronic devices.”); Alasaad v. Mayorkas, 988 F.3d 8, 18–19 (1st Cir. 2021) (“We . . . agree with the holdings of the Ninth and Eleventh circuits that basic border searches are routine searches and need not be supported by reasonable suspicion.”); United States v. Cano, 934 F.3d 1002, 1016 (9th Cir. 2019) (“manual searches of cell phones at the border are reasonable without individualized suspicion”).

Read the full case here: USA v. Castillo, No. 21-50406 (5th Cir. 2023), https://law.justia.com/cases/federal/appellate-courts/ca5/21-50406/21-50406-2023-06-19.html

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Agents Point Guns and Order Home Residents Outside: Understanding the 4th Amendment and Curtilage

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Border Patrol agents watched a man climb over the Mexico-United States border fence and followed him as he took a taxi to Heriberto Perea-Rey’s home. An agent watched the suspected undocumented alien walk through the gated entrance to the home and knock on the front door. The agent followed him through the front yard, around the side of the house and into the carport. He found the suspect there, standing with Perea-Rey in front of a side door entrance to the home, and detained both men until other agents arrived. Perea-Rey refused to allow the agents to enter his house. Forgetting for a moment that the Fourth Amendment ordinarily requires that the government obtain a warrant before it conducts a search or seizure, particularly of persons in their homes, the agents, pointing their guns at the home, ordered everyone outside. The individuals who emerged were later found to be undocumented aliens.

Indicted for harboring the aliens in violation of 8 U.S.C. § 1324, Perea-Rey moved to suppress evidence of the aliens as the fruit of a warrantless search and seizure. Though the district court found that the agents entered the curtilage of Perea-Rey’s home and that there were no exigent circumstances that might justify the failure to obtain a warrant, the court denied the motion. Perea-Rey entered a conditional guilty plea and filed this appeal. Because the agents physically occupied the curtilage of Perea-Rey’s home without obtaining a warrant, and no exceptions to the warrant requirement otherwise justified the search or seizure, we reverse Perea-Rey’s conviction and remand.
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Where the government “physically occupie[s] private property for the purpose of obtaining information,” that is a “`search’ within the meaning of the Fourth Amendment.” United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012). “[S]earches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Because the curtilage is part of the home, searches and seizures in the curtilage without a warrant are also presumptively unreasonable. See Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).

Although a warrant is not required to observe readily visible items within the curtilage, and “officers [need not] shield their eyes when passing by a home on public thoroughfares,” California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), a warrant is required to enter the home.

Full case here: US v. Perea-Rey, 680 F. 3d 1179 – Court of Appeals, 9th Circuit 2012, https://scholar.google.com/scholar_case?case=3328995699668028305&hl=en&as_sdt=6&as_vis=1&oi=scholarr

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(619) 357-6677

Do you want to buy our Lawstache merchandise? Maybe a t-shirt?
https://lawstache.com/merch/

Do you 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?
https://lawstache.com/results-notable-cases/

Are you are a Russian speaker? Вы говорите по-русски?
https://russiansandiegoattorney.com

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!