4th Amendment

The district court found inexplicable discrepancies between, on the one hand, the events as depicted in an audio recording and reports of agents nearly contemporaneous with the arrest and, on the other hand, later statements, reports and testimony of the agents. Accordingly, the district court discredited the later statements, reports and testimony, and confined its determination of probable cause to the sparse earlier evidence. The government does not challenge the adverse credibility finding on appeal, but contends that the remaining evidence was sufficient to establish probable cause.

As the district judge noted, the relevant inquiry is what the agents knew, collectively, at the time they arrested Collins. Facts uncovered after the arrest are irrelevant. See Allen v. City of Portland, 73 F.3d 232, 236 (9th Cir. 1996) (amended opinion) (stating that facts uncovered “as a result of a stop or arrest cannot be used to support probable cause unless they were known . . . at the moment the arrest was made.”). As the facts already recited indicate, the only thing the agents knew about Collins was that he had shown up (perhaps in the white Cadillac) in a public parking lot, had talked briefly to the driver of another car in that lot, and had gone into a fast-food restaurant and purchased a drink. It is true that the agents were expecting a person or persons to arrive in the lot who would be carrying stolen checks. At least one such person, Flores, did arrive and was carrying checks. Entirely missing, however, was any connection between Collins and Flores other than the fact that they appeared (from somewhere) in a public parking lot relatively contemporaneously. Equally missing is any connection between Collins and Pass.

These facts did not give rise to a fair probability that Collins was part of the conspiracy. The principal fact that tied Collins to this criminal activity was his “mere propinquity to others independently suspected of criminal activity,” which “does not, without more, give rise to probable cause.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (holding that officers lacked probable cause to search the defendant solely because of his presence in a tavern in which the officers suspected the bartender dealt heroin). The facts showed only that Collins was close to the wrong people at the wrong time.

The connections ended there. Collins was not associating with a suspected conspirator.

The government challenges this conclusion, primarily relying on Maryland v. Pringle,540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). In Pringle, the Supreme Court held that officers had probable cause to arrest the defendant for possession of cocaine because officers found cocaine in the rear seat of a vehicle in which Pringle was the front-seat passenger, they found a large amount of cash in the glove box in front of Pringle, and the other two occupants denied ownership of the cocaine. Id. at 368, 372, 124 S.Ct. 795.

The intimate interior of a private vehicle is worlds apart from the public parking lot of a strip mall.

Unlike the interior of a private vehicle, the public parking lot setting does not support the inference that everyone in a segment of the parking lot probably knows each other ( and that they are participating in the others’ illegal activities).

Read full case here: U.S. v. Collins, 427 F.3d 688 (9th Cir. 2005), https://casetext.com/case/us-v-collins-99

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Warrantless searches by law enforcement officers “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States,389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Under the automobile exception to the Fourth Amendment’s warrant requirement, “[t]he police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” California v. Acevedo,500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). An officer will have probable cause to search if “there is a fair probability that contraband or evidence of a crime will be found in a particular place, ‘based on the totality of circumstances.’ ” Dawson v. City of Seattle,435 F.3d 1054, 1062 (9th Cir.2006) (quoting Illinois v. Gates,462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

“One of the themes which runs through the decisions on the Fourth Amendment probable cause requirement is that when the ultimate probable cause determination is made, whether by a magistrate when a warrant is sought or upon a motion to suppress evidence obtained without a warrant, mere conclusions will not suffice.” 2 Wayne Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 3.5(e), at 297 (4th ed. 2004). See, e.g., Gates,462 U.S. at 239, 103 S.Ct. 2317 (noting that “wholly conclusory” statements of officers are insufficient to establish probable cause); United States v. Ventresca,380 U.S. 102, 108–09, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (noting that “purely conclusory” statements of officers, without detailing any of the underlying circumstances, will be insufficient to establish probable cause); Nathanson v. United States,290 U.S. 41, 47, 54 S.Ct. 11, 78 L.Ed. 159 (1933) (noting that an officer’s “mere affirmance of suspicion or belief without disclosure of supporting facts or circumstances” is insufficient to establish probable cause).

United States v. Cervantes, 703 F.3d 1135, 1139 (9th Cir. 2012)

Read full case here: United States v. Cervantes, 703 F.3d 1135, 1137 (9th Cir. 2012), https://casetext.com/case/united-states-v-cervantes-7

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The Supreme Court has held that police need no warrant to arrest a felony suspect on probable cause in a public place; United States v. Watson, 1976, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598; United States v. Santana, 1976, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300.

In Coolidge the Court stated in dicta that “the notion that the warrantless entry of a man’s house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man’s house without warrant are per se unreasonable in the absence of some one of a number of well defined ‘exigent circumstances.'” 403 U.S. 477-78, 91 S.Ct. 2044.

Pitt said, “Every man’s house [is] his castle.” id., fn. 7. United States v. Prescott, 581 F.2d 1343, 1349 (9th Cir. 1978)

We join the District of Columbia Circuit, Dorman v. United States, 1970, 140 U.S.App.D.C. 313, 435 F.2d 385 ( in banc), and the Second Circuit, United States v. Reed,572 F.2d 412, 1978, and hold that, absent exigent circumstances, police who have probable cause to arrest a felony suspect must obtain a warrant before entering a dwelling to carry out the arrest.

REFUSAL OF ADMISSION

“When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.” Bumper v. North Carolina, 1968, 391 U.S. 543, 550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797. When, on the other hand, the officer demands entry but presents no warrant, there is a presumption that the officer has no right to enter, because it is only in certain carefully defined circumstances that lack of a warrant is excused. Camara v. Municipal Court, 1967, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 18 L.Ed.2d 930. An occupant can act on that presumption and refuse admission. He need not try to ascertain whether, in a particular case, the absence of a warrant is excused. He is not required to surrender his Fourth Amendment protection on the say so of the officer. The Amendment gives him a constitutional right to refuse to consent to entry and search. His asserting it cannot be a crime, Camara, supra,387 U.S. at 532-33, 87 S.Ct. 1727. Nor can it be evidence of a crime. District of Columbia v. Little, 1950, 339 U.S. 1, 7, 70 S.Ct. 468, 471, 94 L.Ed. 599

Read the full case here: United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978), https://casetext.com/case/united-states-v-prescott-5

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This appeal stemmed from two individuals’ cross-country car trip. Inside the car were secret compartments containing bundles of methamphetamine. But to the casual observer, the car looked like any other car.

The driver apparently knew about the secret compartments of methamphetamine, but did the passenger? It’s possible, but there was no evidence that

• the driver had told the passenger about the methamphetamine or
• the passenger had detected the secret compartments.

Without such evidence, could a reasonable jury find the passenger guilty of crimes that required her knowledge of the drugs? We answer no.

Ms. Garcia-Rodriguez rode across the country in a car containing roughly 29 pounds of methamphetamine. “But mere presence, as a passenger, in a car found to be carrying drugs is insufficient to implicate the passenger in the conspiracy.” United States v. Jones, 44 F.3d 860, 865 (10th Cir. 1995). The issue here is whether any other proof existed on Ms. Garcia-Rodriguez’s knowledge of the methamphetamine.

Read full case at United States v. Rodriguez, No. 22-6194, 6 (10th Cir. Feb. 21, 2024), https://casetext.com/case/united-states-v-rodriguez-3183

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The Supreme Court itself has recognized that distinguishing a Terry investigative stop from a de facto arrest “may in some instances create difficult line-drawing problems.” United States v. Sharpe,470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). As noted by the Court in the seminal case of Terry v. Ohio,392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968), each case must be decided on its own facts. “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.” United States v. Robertson,833 F.2d 777, 780 (9th Cir. 1987). In reviewing the facts and circumstances of each case, we must be mindful of the narrow scope of the Terry exception — an exception based on a brief, street encounter between police and a suspect. To do otherwise would be to risk allowing the “`exception’ . . . to swallow the general rule that Fourth Amendment seizures are `reasonable’ only if based on probable cause.” Dunaway v. New York,442 U.S. 200, 213, 99 S.Ct. 2248, 2257, 60 L.Ed.2d 824 (1979); see Florida v. Royer,460 U.S. 491, 510, 103 S.Ct. 1319, 1331, 75 L.Ed.2d 229 (1983) (plurality opinion) (Brennan, J., concurring).

Although the movement of Ricardo to the patrol car is a significant factor in our analysis, we reiterate that each case is decided under the totality of the particular circumstances. For example, in conjunction with the place of detention, in Baron we considered the disparity in power stemming from the fact that Baron was a female detained by three male officers. Baron,860 F.2d at 916. Here, we take into account that a juvenile was confronted by several officers. To a limited extent, we also consider Officer Bork’s threat of arrest for providing false information as adding to the coercive atmosphere of the detention. Thus, all the circumstances, including the facts that the suspect was sixteen, taken by the arm, told not to run, and placed in the back of the police car, indicate a degree of coercion unacceptable as part of a Terry stop, and unsupportable on anything less than probable cause. We therefore hold that the officers effectively arrested Ricardo when they detained him in the patrol car for questioning.

Having determined that Ricardo was in fact under arrest during the field questioning by Officers Bork and Emery, we next briefly address the question of probable cause. Our review is de novo. United States v. Delgadillo-Velasquez,856 F.2d 1292, 1295 (9th Cir. 1988). The officers had probable cause to arrest Ricardo if, at the time of the arrest, they had knowledge and reasonably trustworthy information of facts and circumstances sufficient to lead a prudent person to believe that Ricardo had committed or was committing a crime. Holtzman,871 F.2d at 1503.

As the government apparently concedes, probable cause to arrest Ricardo did not exist prior to Ricardo’s initial admission to Agent Emery that Ricardo was the one who fled from the van. At the time of Ricardo’s arrest, the only knowledge possessed by the officers was that a “young, thin man, not too tall” had run from a van containing marijuana, and that a truck driver had picked up a “young, Mexican male” approximately one-half mile from where the van had been stopped, and had given him a ride to a pay phone in Nicksville. In a location only thirty miles north of the Mexican border, it can hardly be said that the presence of a young, Mexican male is highly unusual. Furthermore, although Officer Bork found Ricardo “crouching” behind a tree, Ricardo made no attempt to flee when approached by the officer. In sum, while there may have been reasonable suspicion to justify a Terry stop, there was insufficient information to lead a reasonable person to believe that Ricardo had committed a criminal offense. Ricardo’s arrest was, thus, illegal.

Full case: U.S. v. Ricardo D, 912 F.2d 337 (9th Cir. 1990), https://casetext.com/case/us-v-ricardo-d

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The Constitution’s Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. A “state search warrant being challenged in a federal court must be judged by federal constitutional standards.” United States v. McManus , 719 F.2d 1395, 1397 (6th Cir. 1983) (citing Elkins v. United States , 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) ). “Probable cause is defined as ‘reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.’ ” United States v. King , 227 F.3d 732, 739 (6th Cir. 2000) (quoting United States v. Bennett , 905 F.2d 931, 934 (6th Cir. 1990) ). In assessing whether a warrant to search a residence passes muster under the Fourth Amendment, the “critical element … is … that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily , 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978).

It is well established in this Circuit that drug paraphernalia recovered from a trash pull establishes probable cause to search a home when combined with other evidence of the resident’s involvement in drug crimes.

The Court held that the marijuana roaches and T2-laced plastic bags Detective Particelli recovered from the trash pull here were insufficient, standing alone, to create probable cause to search Defendant’s residence.

Read full case here: United States v. Abernathy, 843 F.3d 243 (6th Cir. 2016), https://casetext.com/case/united-states-v-abernathy-15

Case about trash:
California v. Greenwood, 486 US 35 (1988)
https://www.oyez.org/cases/1987/86-684
https://youtu.be/mCdJhIweZtk

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The Fourth Amendment’s protections extend to brief investigatory stops that fall short of a traditional arrest. Ramirez v. City of Buena Park, 560 F.3d 1012, 1020 (9th Cir. 2009) (citing United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). Courts must determine, based on the totality of the circumstances, whether a police-initiated stop is supported by the officer’s reasonable suspicion. Id. Reasonable suspicion exists if “specific, articulable facts . . . together with objective and reasonable inferences” suggest that the persons detained by the police are engaged in criminal activity. United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000) (citations omitted).

An officer’s mere hunch is insufficient to meet the reasonable suspicion standard. Arvizu, 534 U.S. at 274. However, conduct that appears innocent to untrained eyes can convey different information to an experienced and trained observer. See United States v. Bernard, 623 F.2d 551, 560 (9th Cir. 1980) (“The test is whether ordinary, reasonable men, possessed of the experience and knowledge of [the police officers] would conclude that the transaction . . . was more likely than not a criminal transaction”) (citations omitted).

The government justifies the officers’ initial stop based on Sergeant Justus’ knowledge of Swingle and his belief that the pressure washer was likely stolen and being traded for drugs. However, this court finds that based on the totality of the circumstances, the police did not have reasonable suspicion to order defendant out of the mobile home. Defendant’s conduct involving the pressure washer did not provide Sergeant Justus with a reasonable basis to “conclude that the transaction . . . was more likely than not a criminal transaction.” Bernard,623 F.2d at 560. The court considered the PPB’s experience with Swingle, but notes that Swingle has never been convicted of stealing property. Additionally, Sergeant Justus’ testified during the hearing that he stops Swingle every time he sees him, regardless of the circumstances. Such conduct, supported only by speculation is unwarranted and falls short of establishing reasonable suspicion to search and detain Swingle, and anybody unfortunate enough to be traveling with him, whenever Swingle is seen in possession of personal property.

U.S. v. Izguerra-Robles, 660 F. Supp. 2d 1202, 1206 (D. Or. 2009), https://casetext.com/case/us-v-izguerra-robles

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Defendant-Appellant Lucas Gregory Fox entered a conditional guilty plea to one count of possession of an unregistered shotgun with a barrel less than 18 inches long, in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5871. Law enforcement officers found the firearm in Fox’s home after his wife consented to the search. Fox appeals the denial of his motion to suppress evidence, arguing that his wife’s consent to search the home was invalid. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and reverse and remand for further proceedings.

A warrantless search of an individual’s home is “per se unreasonable under the Fourth Amendment unless the government can show that it falls within one of a carefully defined set of exceptions.” United States v. Cos, 498 F.3d 1115, 1123 (10th Cir. 2007) (quotation omitted). Here, the government relied on Ms. Chiles’s consent to search the home as an exception to the general warrant requirement. Fox argues that Ms. Chiles’s consent was invalid because it was tainted by a prior illegal seizure and, as a result, her consent was not voluntary.

We have identified three general categories of encounters between police and citizens:

(1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.

Although the government contends that Ms. Chiles could have told Officer Osterdyk to get out of her car, we do not think that under the circumstances a reasonable person would have felt free to do so. Accordingly, we conclude that Ms. Chiles was seized within the meaning of the Fourth Amendment.

Because the officers did not have reasonable suspicion to detain Ms. Chiles, the seizure was unlawful.

Read more here: U.S. v. Fox, 600 F.3d 1253, 1255 (10th Cir. 2010), https://casetext.com/case/us-v-fox-33/

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In sum, under the most recent cases a seizure occurs only if: (1) a reasonable person would feel, under all the circumstances, he could not disregard the police inquiries and go about his business; (2) the restraints imposed upon him result from the police conduct itself rather than the happenstance of where the encounter occurred; and (3) the person actually reacted in a manner consistent with being “seized.”

While a police request for identification does not automatically give rise to a seizure, we have stated on previous occasions that “once the identification is handed over to police and they have had a reasonable opportunity to review it, if the identification is not returned to the detainee [it is] difficult to imagine that any reasonable person would feel free to leave without it.” United States v. Battista, 876 F.2d 201, 205 (D.C.Cir.1989); cf. Royer, 460 U.S. at 501, 103 S.Ct. at 1326 (plurality opinion) (noting that a seizure occurred when, among other things, police “retain[ed the defendant’s] ticket and driver’s license … without indicating in any way that he was free to depart”).

United States v. Jordan, 951 F.2d 1278, 1282 (D.C. Cir. 1991)

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A Fourth Amendment seizure occurs “when physical force is used to restrain movement or when a person submits to an officer’s ‘show of authority.’ ” United States v. Brodie , 742 F.3d 1058, 1061 (D.C. Cir. 2014) (quoting California v. Hodari D. , 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) ). A show of authority sufficient to constitute a seizure occurs where “the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business,” Florida v. Bostick , 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (internal quotation marks omitted), or, put another way, where “a reasonable person would have believed that he was not free to leave,” United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

The officers’ conduct—pulling into the narrow parking lot at night; training the take-down light on the Jeep; and, most importantly, parking their cruiser within a few feet of the Jeep’s nose—amounted to a “show of authority” that “would have communicated to a reasonable person” in Delaney’s position “that he was not at liberty to ignore the police presence and go about his business.”

Read full case here: United States v. Delaney, 955 F.3d 1077, 1083 (D.C. Cir. 2020), https://casetext.com/case/united-states-v-delaney-18/

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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!

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