4th Amendment

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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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

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Agent Brenneman told Mr. Harrison they were there because, “our office received an anonymous phone call there were drugs and bombs at this apartment,” and he asked if Mr. Harrison “would mind if we look around the apartment.” Id. at 19. The government concedes the ATF had no reason to believe there were bombs in the apartment, but Agent Brenneman testified he had planned to say this to Mr. Harrison “in an effort to gain his consent to search.”

It is true that not all deception or trickery will render a search invalid. For example, “an undercover agent may gain entry to a person’s home by deception and purchase narcotics with no violation of the fourth amendment.” Pleasant v. Lovell, 876 F.2d 787, 802 (10th Cir. 1989) (citing Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966)). But the government’s reliance on this line of cases is misplaced. In cases involving undercover police work, the defendant does not know he or she is permitting the government to enter the premises. Unlike the defendants in those cases, Mr. Harrison did not “unwisely repose[] trust in what later turn[ed] out to be a government agent,” Pleasant, 876 F.2d at 802. Instead, Mr. Harrison knew he was opening his home to law enforcement officials who have expertise in explosives. The question is whether the Agents’ deceptive tactics in these circumstances rendered his consent involuntary.

We should be especially cautious when this deception creates the impression that the defendant will be in physical danger if he or she refuses to consent to the search.

Where “the effect of the ruse is to convince the resident that he . . . has no choice but to invite the undercover officer in, the ruse may not pass constitutional muster”

In U.S. v. Harrison, 639 F.3d 1273, 1278–79 (10th Cir. 2011), the Tenth Circuit held that “when government agents seek an individual’s cooperation with a government investigation by misrepresenting the nature of that investigation, this deception is appropriately considered as part of the totality of circumstances in determining whether consent was gained by coercion or duress.”

Read full case here: U.S. v. Harrison, 639 F.3d 1273 (10th Cir. 2011), https://casetext.com/case/us-v-harrison-112/

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Officer Harold Cheirs and his partner, Officer Robinson, tried to serve an arrest warrant on Phyllis Brown at 3171 Hendricks Avenue in Memphis, Tennessee. When they got to Hendricks Avenue, they could not find a house with a 3171 address. They eventually found two houses on opposite sides of the street with a 3170 address, at which point, you might say, they were getting warmer. One of the houses presumably was mislabeled, and the officers had several options at their fingertips to figure out which house was 3171 Hendricks and which was not. They could have determined which side of the street contained odd-numbered addresses and served the warrant on the “3170” address on that side of the street. They could have checked city records or for that matter Google Maps to identify which house was the right one. Or they could have gone up to one of the houses and asked an occupant which house was 3171 Hendricks and which one was 3170 Hendricks.

The officers picked the last option—in part. Noticing that one of the two houses was occupied, they proceeded to that one. Now they were getting colder. Officer Cheirs knocked, a woman answered, and she promptly shut the door. While Officer Robinson went to the back of the house, Officer Cheirs knocked again. The occupant eventually opened the door, though not for seven or eight minutes. Instead of asking the woman what the address of the house was, whether Phyllis Brown lived there or whether this was the odd-numbered side of the street, Officer Cheirs represented to the woman that he had a warrant “for this address.” False. He had a warrant for 3171 Hendricks, and this was 3170 Hendricks.

Having no reason to know that this representation was false and opting not to insist on looking at the warrant, the woman let the officers into the house—the house of Phyllis Brown’s hapless neighbor, Steven Shaw. The officers performed a protective sweep of the house. Instead of finding Brown, they found a lot of cocaine. They arrested Shaw, and a grand jury charged him with a battery of drug-dealing and drug-possession offenses. The district court denied Shaw’s motion to suppress the drugs found at his house. He pled guilty to distributing cocaine, see21 U.S.C. § 841(a)(1), all the while reserving the right to appeal the suppression ruling. The district court sentenced him to 126 months in prison.

The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. That means, among treatises full of other requirements, that officers must “take steps to reasonably ensure” they are not entering the wrong home when they execute an arrest warrant. El Bey v. Roop,530 F.3d 407, 416 (6th Cir.2008); see Steagald v. United States,451 U.S. 204, 216, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Payton v. New York,445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Pruitt,458 F.3d 477, 480 (6th Cir.2006).

An officer may not falsely tell a homeowner that he has an arrest warrant for a house, then use that falsity as the basis for obtaining entry into the house.

The Supreme Court has said as much. Forty-five years ago, it faced this question: whether “a search can be justified as lawful on the basis of consent when that ‘consent’ has been given only after the official conducting the search has asserted that he possesses a warrant” when he does not? The answer was no. Bumper v. North Carolina, 391 U.S. 543, 546–51, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); see also United States v. Escobar, 389 F.3d 781, 786 (8th Cir.2004) (holding that officers may not obtain consent to search through a “false claim of legal authority”). The equivalent is true here.

Read full case here: United States v. Shaw, 707 F.3d 666 (6th Cir. 2013), https://casetext.com/case/united-states-v-shaw-18/

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Nora next contends that, even if the officers had probable cause to arrest him, they arrested him in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The Court held in Payton that the Fourth Amendment forbids arresting a suspect inside his home unless the police first obtain an arrest warrant or an exception to the warrant requirement applies. Id. at 590, 100 S.Ct. 1371. That rule is designed to protect “the privacy and the sanctity of the home,” id. at 588, 100 S.Ct. 1371, and stems from “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.” Id. at 601, 100 S.Ct. 1371.

The government properly concedes that the police arrested Nora “inside” his home for purposes of the Payton rule. Although officers physically took Nora into custody outside his home in the front yard, they accomplished that feat only by surrounding his house and ordering him to come out at gunpoint. We’ve held that forcing a suspect to exit his home in those circumstances constitutes an in-home arrest under Payton. See, e.g., Fisher v. City of San Jose, 558 F.3d 1069, 1074–75 (9th Cir.2009) (en banc); United States v. Al–Azzawy, 784 F.2d 890, 893 (9th Cir.1985). Since the officers didn’t obtain an arrest warrant, Nora’s arrest violated the Fourth Amendment unless an exception to the warrant requirement applies.

…

Although Nora’s arrest was supported by probable cause, the manner in which officers made the arrest violated Payton. Evidence obtained as a result of Nora’s unlawful arrest must be suppressed, which renders the portions of the warrant authorizing a search for narcotics-related evidence and evidence of gang membership invalid. The remaining untainted evidence did not establish probable cause to search Nora’s home for the broad range of firearms described in the warrant. As a consequence, the entire warrant was invalid and all evidence seized pursuant to it must be suppressed. We reverse the district court’s order denying Nora’s suppression motion and remand for further proceedings.

Read the full case here: United States v. Nora, 765 F.3d 1049 (9th Cir. 2014), https://casetext.com/case/united-states-v-nora

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Robertson:

Robertson encounters a fundamental obstacle: standing. A defendant must show standing even if the government has not pressed the issue in the district court. United States v. Nadler,698 F.2d 995, 998 (9th Cir. 1983). Fourth Amendment rights are personal rights which may not be vicariously asserted. Rakas v. Illinois,439 U.S. 128, 133-34, 99 S.Ct. 421, 425-26, 58 L.Ed.2d 387 (1978). Even when officers make a blatantly pretextual arrest of one defendant that creates exigent circumstances justifying search of a second defendant’s house, the second defendant may not challenge the legality of the arrest. United States v. Chase,692 F.2d 69, 70 (9th Cir. 1982). Here it is undisputed that the arrest warrant named only Johnson. Had he survived, he could have raised a challenge to the delay in execution of the warrant. Standing in for the dead man, Robertson may not invoke any rights Johnson might have had.

Steeprow – Detention and Search:

Whether an arrest has occurred depends on all the surrounding circumstances, including the extent to which liberty of movement is curtailed and the type of force or authority employed. See United States v. Patterson,648 F.2d 625, 632 (9th Cir. 1981) (citing United States v. Harrington,636 F.2d 1182, 1186 (9th Cir. 1981) (citations omitted)). We often confront the issue of when a legitimate ” Terry stop,” for which only reasonable suspicion of criminal activity is required, escalates into an arrest for which probable cause is required. The differing standards for each reflect the differing degrees of intrusion characteristic to each. A Terry stop involves no more than a brief stop, interrogation and, under the proper circumstances, a brief check for weapons. Beyond such a brief and narrowly circumscribed intrusion, an arrest occurs, for which probable cause is required. See Kraus v. City of Pierce,793 F.2d 1105, 1108-09 (9th Cir. 1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1571, 94 L.Ed.2d 763 (1987). The ultimate question is whether, in view of all the circumstances, a reasonable person would believe himself to be under arrest. Id.

We conclude that the officers’ detention of Steeprow at gunpoint was an arrest which required probable cause. Steeprow was confronted by seven to ten police officers, one of whom aimed his gun at her nose, told her to freeze, and detained her for at least five and perhaps fifteen minutes. The restriction of her liberty of movement was complete upon this encirclement by officers who gave her orders at gunpoint.

We hold that probable cause for her arrest was absent. For all that was then known to the officers, Steeprow was an innocent visitor. Lacking from both the arrest warrant for Johnson and the search warrant for the premises was the slightest indication that Steeprow was involved in criminal activity. Her mere presence on the premises, without more, cannot support an arrest of her under these circumstances.

Search:

The warrant in this case authorized a search of

the premises known as 855 68th Street, Springfield Oregon and curtilage and appurtences [sic] and vehicles.

The government and the dissent would have us hold that the particularity requirement of the Fourth Amendment was satisfied either by the reference to “appurtences” or to “curtilage.” Steeprow contends that the warrant cannot be read to describe her backpack, and thus that the search of it was a warrantless search in violation of the Fourth Amendment. We reject the government’s and the dissent’s expansive reading of the warrant and agree with Steeprow. The search of Steeprow’s backpack was an unreasonable search which violated the Fourth Amendme

Read full case here: U.S. v. Robertson, 833 F.2d 777 (9th Cir. 1987), https://casetext.com/case/us-v-robertson-96

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