4th Amendment

Following denial of his suppression motion, defendant pleaded guilty to possession of marijuana for sale. Defendant had approached the Needles, California plant quarantine inspection station in a vehicle bearing Michigan license plates. The quarantine officer, feeling that a more detailed inspection was necessary, identified himself and requested to look into defendant’s vehicle trunk. Defendant opened the trunk for the officer’s inspection. Inside were 200 to 300 pounds of marijuana wrapped in plastic. The officer reached in and took a pinch of the substance to inspect it. He discussed the substance with defendant and they agreed that it appeared to be compost, although the officer in fact suspected that it was marijuana. The officer gave defendant a clearance slip and defendant drove away. The officer then contacted the California Highway Patrol, showed them a sample of the substance, which had fallen to the ground during the inspection of the trunk, and the Highway Patrol thereafter apprehended defendant. (Superior Court of San Bernardino County, No. VCR 517, Joseph A. Katz, Judge.)

The Court of Appeal affirmed the conviction, holding the quarantine officers may stop motorists at inspection stations and request to look into the trunks of their vehicles without a warrant or probable cause, and that if the motorist voluntarily opens the trunk, the quarantine officer may look therein and remove any plant materials in plain view for further inspection. The court rejected defendant’s suggestion that a sign should be placed at inspection stations or quarantine officers should advise motorists that they may refuse to give their consent to any search. (Opinion by Gardner, P. J., with McDaniel and Morris, JJ., concurring.)

Read full case here: People v. Dickinson, 104 Cal. App. 3d 505, 163 Cal. Rptr. 575 (Ct. App. 1980), https://law.justia.com/cases/california/court-of-appeal/3d/104/505.html

https://en.wikipedia.org/wiki/California_Border_Protection_Stations

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Police stopped Robert Lidster at a checkpoint set up to find information about a recent hit-and-run accident. Lidster was arrested, and later convicted, for drunk driving. Lidster successfully appealed his conviction to the Illinois Appellate Court. It relied on the U.S. Supreme Court’s decision in Indianapolis v. Edmond (2000) holding that a checkpoint is unconstitutional if its only purpose is to uncover “ordinary criminal wrongdoing.” The Illinois Supreme Court affirmed.

Does Indianapolis v. Edmond, which dealt with the Fourth and 14th Amendment prohibitions of unreasonable searches and seizures, prohibit checkpoints organized to question motorists about a previous offense and arrest motorists for drunk driving?

No. In an opinion delivered by Justice Breyer, the Court held 6-3 that the Illinois checkpoint did not violate the Fourth Amendment’s prohibition of unreasonable searches and seizures and was constitutional. It ruled that the checkpoint was reasonable because it advanced a “grave” public interest – “investigating a crime that had resulted in a human death” – and interfered minimally with Fourth Amendment liberty. The Court distinguished Illinois’s “information-seeking” checkpoint from the “crime control” checkpoint struck down in Edmond. Justices Stevens, Souter, and Ginsburg – while agreeing that Edmond does not invalidate the Illinois checkpoint – dissented from the majority’s decision granting constitutional approval to the checkpoint. They argued that the case should have been remanded to the Illinois courts.

Read the full case here: Illinois v. Lidster, 540 U.S. 419 (2004), https://supreme.justia.com/cases/federal/us/540/419/#tab-opinion-1961418

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Upon this evidence, and knowing that the box was at the airport in the possession of DEA agents, the magistrate issued a warrant for a search of Hendrick’s residence at N. Sidney. Although the warrant states that “on the premises known as 2835 N. Sidney . . . there is now being concealed . . . a . . . cardboard box [containing cocaine],” (emphasis added) it further states “this search warrant is to be executed only upon the condition that the above described box is brought to the aforesaid premises” (emphasis added).

In making the determination as to probable cause, our role is limited to “ensuring that the magistrate had a `substantial basis for . . . conclud[ing]’ that probable cause existed.” Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). The Supreme Court has stressed that “courts must continue to conscientiously review the sufficiency of affidavits in which warrants are issued,” Gates, 103 S.Ct. at 2332, see Leon, 104 S.Ct. 3422-23. The condition inserted into the warrant by the magistrate, that the warrant was not to be executed until the suitcase arrived at the house, is the principal source of our concern in this case.

If the suitcase had been in the house, or if probable cause existed to believe it was there, issuance of the warrant would have been proper. However, at the time the warrant was issued, the magistrate knew the suitcase was in the possession of the agents, not at the house. The agents, by calling Hendricks to come for the suitcase tried to ensure that the condition subsequent inserted into the warrant would happen. However, at the time the warrant issued and, in fact, until the suitcase was actually brought to the house, there was no certainty that it would ever be brought there.

Read the full case here: United States v. Hendricks, 743 F.2d 653, 654 (9th Cir. 1984), https://casetext.com/case/united-states-v-hendricks-2

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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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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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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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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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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/

________________________________________

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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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/

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