Crime & Federalism

Eighth Circuit Upholds Warrantless Destruction of Property

The Eighth Circuit Court of appeals handed down a shocking opinion today.  In United States v. Santana-Aguirre, No. 07-3706 (8th Cir. August 12, 2008) (opinion), a 2-1 panel held that when you consent to a search, you also consent to the destruction of your property.

In Santana-Aguirre, a police officer obtained consent to search a passenger's bag.

While searching the bag, the officer saw two larges candles.  The candles appeared to be low quality.  Without obtaining the passenger's consent, and without obtaining a warrant, the officer destroyed the candles with his knife.

Under earlier Eighth Circuit precedent, the candle's destruction may have been constitutional.  In United States v. Alverez, 235 F.3d 1086 (8th Cir. 2000), a three-judge panel held that, under automobile exception to the Fourth Amendment, destruction of spare tire was reasonable when police had probable cause to believe that that tire contained drugs. 

While the Alverez rule is bad enough, the application of the rule is doubly-bad here.  The split panel held that these facts constituted probable cause:

The candles looked standard and inexpensive, but stood out to him because it would be easier for someone to buy identical candles at his destination rather than transport them. [The officer] then noticed that 'the layering of the candle was inconsistent'—'[t]here were bumps separating the different layers of the candle.' The original packaging had been removed, torn, and then re-taped. There were also holes around the candlewick.

Slip op. at 3.  In other words, these were your typical crappy candles that poor people buy.  There is nothing suspicious about a poorly-constructed candle.  Go into a Dollar General store, and you'll see that every large candle is poorly constructed.  A candle looking like it should look should not create probable cause.

That said, even being in the Alverez framework is disturbing.  We should question Alverez's premise.

The Fourth Amendment requires searches to be reasonable. Is it really reasonable to allow police to destroy your property without first obtaining a warrant or your consent?  In Alverez and Santana-Aguirre, no neutral and detached magistrate issued a warrant.  Rather, officers made an on-the-spot determination that the property contained contraband. 

In a free society, should our property be valued so little that an officer who believes that it might contain drugs may destroy it?

What if the property had been a lap top, a digital camera, or a set of family pictures?  It's easy not to care about Santana-Aguirre.  Who cares about a cheap candle? 

An appellate court must not forget that today's candle is tomorrow's lap top: Police will use Santana-Aguirre to justify the destruction of valuable property.

I have a controversial idea.  Before officers may destroy property, they must get consent or a warrant.  Alverez was wrongly decided in 2000.  Santana-Aguirre was wrongly decided today.

"Pirate" CDs in Plain View Equal PC to Search?

McLaughlin v. Commonwealth (pdf) is a Virginia appellate court decision that highlights an odd angle on Fourth Amendment plain view doctrine. After an apparently legit stop for an "equipment violation," an officer saw compact discs in a "poor quality made CD case with the labeling" in the defendant's car. He and fellow officers came to the conclusion that the CDs were pirated. Based on this "plain view" of the illegal "pirate" cds, the officers searched the car and found marijuana. This evidence was used to convict the defendant for possession with intent to distribute. The  trial court denied the defendant's motion to suppress the evidence. The appellate court, however, saw things a bit differently.

A hat tip goes to Metafilter for this one.

Community Caretaker Doctrine and Parked Cars

Today the Ninth Circuit held that it was unconstitutional for a police officer to seize a vehicle under the community caretaker doctrine.  Miranda v. City of Corneliu (here).  The panel's opinion was exactly right, though I would not be surprised if the Court summarily reversed.  When one looks at the facts of the case, and the rationale for the community caretaker doctrine, the correctness of the panel's opinion is inescapable.

A husband wanted to teach his wife how to drive.  Husband had a license, wife did not have a license.  Fifteen-year-old high school students obtain blue slips and regularly learn how to drive from a licensed driver, usually a parent.  But because the Mirandas did not speak English well, they did not know about such driver's ed. programs.

The wife drove through their neighborhood at about 10 m.p.h.  A police officer saw the car moving slowly and pulled them over just as they were pulling into their driveway.  Rather than giving the Mirandas a warning, the police officer ticketed both of them.  He also had their car impounded.

Having one's care impounded is a major hassle.  During my first year in law school I went to a meet a friend at the Los Angeles courthouse. Because the meter maid did not see my registration sticker that was visible in the back window of my car, he or she had my car impounded. 

The impound lot was in a very seedy place - not the type of place for smaller-sized people.  They told me it would cost $425 to recover my car.  My then-fiance and I - both of us students - did not have $425 laying around.  We had to borrow the money from a relative.  All said, it took us over 6 hours to recover a car that should never have been impounded. 

Why is the impound fee so expensive?  Simple: the city shares in the revenue.  Impound fees are basically another way for cities to tax people.  Thus, when the police officer had the Mirandas' car seized from their drive-way, he was putting them through great fiscal and emotional stress - all so the city could pick up a few extra bucks, and not so the public could be protected from a road hazard.

With the help of the Oregon Law Center, the Mirandas files a Section 1983 action against the city.  They city argued that because the officer seized the car subject to a traffic stop, the seizure was per se constitutional.  In other words, under the city's view, any time the police stop you, they can take away your car.  This rule would have been a radical departure from existing law.  Thankfully the Ninth Circuit rejected this invitation for judicial activism.

When it comes to traffic stops where there is no reason to believe guns, drugs, or other illegal things are hidden in the care, the police only have the power to seize a motorist's car under the "community caretaker" exception to the Fourth Amendment.  Under this exception, first articulated in Cady v. Dombroski, the police may seize a motorist's vehicle to protect the public. Having a car hanging out on the side of the road is dangerous.  Thus, by removing the car, the police are serving as "community caretakers." (That this exception is regularly abused, and often serves as a pretext to what would otherwise be unconstitutional searches is irrelevant here.)

However, how did the police act as a community caretaker here?  The car was parked in the Mirandas' driveway.  The car did not present a hazard to others.  Thus, the community caretaker-rationale imploded. 

Indeed, seizing someone's car when there is a licensed driver in the car has always seemed to me to fall outside the community caretaker exception.  Again, the community caretaker exception's rationale is that the police should not leave cars that will serve as road hazards.  If there is a licensed driver in the car, then the car will not remain unattended on the side of the road.  Here, it's more perverse: Not only was the car not going to be left by the side of the road, but the car was in a driveway.

The Ninth Circuit got this one right, and properly held that a car parked in a driveway that does not contain anything illegal in it cannot be seized under the community caretaker exception.

Another Computer Seized in a Blue Collar Case

Prosecutors suspect that Steven Avery, a man who served 18 years in prison for a rape he did not commit, is now suspected of recently murdering someone. 

Investigators searching for Teresa Halbach found human teeth and charred bone fragments in a burn pit behind Avery's garage, authorities said.

...

Halbach vanished October 31 after going to the Avery family's auto salvage business in Manitowoc County to photograph a minivan that was for sale. Her relatives later found her sport utility vehicle at the salvage yard.

The most interesting part of the story is this:

Seized Avery's computer, looking on the hard drive for images of sexually explicit material, including pornographic images, bondage, torture and death, that could point to a possible motive.

Apropos this recent post, it's beginning to seem that police will attempt to seize the computer of anyone charged with crime, even if the crime charged has nothing to do with computers.

Searching and Seizing Computers to Prove Violent Crimes?

In a case where someone is suspected of downloand child pornography, it would make perfect sense for prosecutors to seize the suspect's computers.  But when someone is accused of a crime of violence, should prosecutors be able to seize his computer?

Robert Petrick has been accused of murdering his wife.  Among the evidence supporting the prosecution's case:

Robert Petrick searched for the words "neck," "snap," "break" and "hold" on an Internet search engine before his wife died, according to prosecutors Wednesday.

More than two years after Janine Sutphen's body was discovered floating in a Raleigh lake, investigators continue to find new evidence on computers seized from Robert Petrick's home that prosecutors say support their arguments that Petrick killed his wife.

The Google search was the latest in recently discovered evidence found in the 100 million pages of content removed from computers.

I've done some research and haven't been able to figure out on what basis they seized his computer.  Allowing prosecutors to seize someone's home computer because he might have researched how to kill someone raises a lot of issues.  What if the police find other incriminating evidence?  Is that evidence in "plan view"?  Must computer specialist's limit their searches terms when searching someone's computer?  In other words, if prosecutors want to prove that Petrick snapped his wife's neck, must they limit their search to areas touching murdering one's wife, or can they also snoop around for child pornography?

Should, as a constitutional matter, prosecutors be allowed to seize every blue collar defendant's computer, on the theory that any computer user would likely search for ways to commit blue collar crimes?

If prosecutors are going to start searching and seizing computers in garden-variety cases, it might be smart to think of these issues now.  One of the best articles discussing these issues - which, again, now seem like they might start coming up in any street crime involving a defendant who owns a computer - is Searches and Seizures in Digital World.  Here is the abstract:

  The new frontier of the Fourth Amendment is the search and seizure of computer data. Created to regulate entering homes and seizing physical evidence, the Fourth Amendment's prohibition on unreasonable searches and seizures is now called on to regulate a very different process: retrieval of digital evidence from electronic storage devices. While obvious analogies exist between searching computers and searching physical spaces, important differences between them will force courts to rethink the basic meaning of the Fourth Amendment's key concepts. What does it mean to "search" computer data? When is computer data "seized"? When is a computer search or seizure "reasonable"?

This article offers a normative framework for applying the Fourth Amendment to searches of computer data. It begins by exploring the basic differences between physical searches of physical property and electronic searches of digital evidence. It then proposes an exposure theory of Fourth Amendment searches: any exposure of data to an output device such as a monitor should be a search of that data, and only that data. The exposure approach is then matched with a rule for computer seizures: while copying data should not be deemed a seizure of that data, searches of copies should be treated the same as searches of the original. In the final section, the article proposes a rethinking of the plain view exception in computer searches to reflect the new dynamic of digital evidence investigations. The plain view exception should be narrowed or even eliminated in digital evidence cases to ensure that digital warrants that are narrow in theory do not devolve into general warrants in practice. Tailoring the doctrine in light of the new realities of computer investigations will protect the function of existing Fourth Amendment rules in the new world of digital evidence.

The Fourth Amendment's Reasonable People

If a police officer yelled at you, "Stop!" would you feel free to continue walking?  If a police officer began chasing you, would you feel like you could ignore him?  I'm being sincere.  Would you really feel free to continue on your way?

I know my rights, and if a police officer told me to stop walking, I would, for fear that I might get shot in the back for disobeying him.  Indeed, I don't know any person who, if told by police officers to freeze, would feel free to leave.

Yet courts continued to hold that when the police tell a citizen to stop walking, that the citizen is not seized for purposes of the Fourth Amendment, because a  reasonable person would feel free to leave.  What reasonable person would feel free to leave under such circumstances?

Indeed, if a police officer has probable cause to prevent you from moving, and you disobey, then you can be charged with obstructing a police officer.  If a police officer does not have probable cause to tell you, e.g., to stop moving, and you do stop moving, you can't later vindicate your rights for the unlawful seizure.  In other words, if you don't listen to the police, you might go to jail for obstruction; if you do listen to the police, you won't later be able to sue them for unlawfully seizing you.  (Because, remember, a reasonable person would feel free to disregard a police officer's command to stop.)  Heads they win, tails you lose.

The courts need to adopt a clear rule based on human experience.  When a police officer tells someone to stop, that person does not feel free to leave, and is therefore seized.  That the current rule even exists illustrates the current law-and-order activism that pervades our legal system.  How else could courts reach the conclusion that a reasonable person would feel free to ignore a police officer's commands?  Did the judges take a poll?  Did they talk to their (non-DOJ-connected) friends?  Did they even look deep within themselves?

Most legal matters are sufficiently ambiguous that men and women of reasonable minds can disagree.  But there's no room room for any disagreement on this: Reasonable people, when told by the police to stop, will stop; and they won't feel like they had any choice in the matter.

Even writing that "point" makes me feel trite. "Do you really need to argue something so obvious?"  Until courts get it right, and end the fiction of the reasonable person who feels free to disregard police orders, then something that should be banal will remain controversial.

Hudson v. Michigan

Absent extreme circumstances, the Fourth Amendment prevents police officers from kicking down a citizen's door when executing a search warrant.  The police are required to knock on the door, announced their presence, and wait from 20-30 seconds before kicking down a citizen's door.  This is the so-called "knock and announce" rule. 

The Fourth Amendment mandates that evidence obtained through unconstitutional searches be suppressed.  If the police would have found the evidence anyway, i.e., they would have found the evidence even if they hadn't violated the citizen's Fourth Amendment rights, then courts will not suppress evidence obtained unconstitutionally. This is the inevitable discovery doctrine. 

This Term, the Supreme Court will answer this question: How do we reconcile the inevitable discovery doctrine with the knock and announce rule.  More formally, the Court will answer: "Does the inevitable discovery doctrine create a per se exception to the exclusionary rule for evidence seized after a Fourth Amendment 'knock and announce' violation ... or is evidence subject to suppression after such violations...?"

The Cato Institute has filed, as they usually do in important civil rights cases, an extremely interesting amicus brief. For the first time I can remember, I disagree with Cato's position in a criminal case, and I support the government's position.

I'll note initially that I don't care for the exclusionary rule.  If anything, the exclusionary rule has made police officers more lawless. Before the exclusionary rule, police officers unconstitutionally searched and seized evidence, and they truthfully told the judge how they obtained the evidence.  After the exclusionary rule, police began perjuring themselves, since they viewed the exclusionary rule as a mere technicality.  In other words, same result (evidence is admitted), different process (the police lie).  See Morgan Cloud, The Dirty Little Secret ("Police perjury is the dirty little secret of our criminal justice system. It is 'dirty' in the way that any lie under oath is dishonest, unfair, and unethical. But it is a uniquely corrupt lie, because it is offered by government officials who are sworn to enforce and uphold the law.")

Lying degenerates a person's soul.  It throws off one's moral compass.  The more a person lies, the easier it becomes to lie, until the person no longer knows deceit from truth, moral from immoral.  Many (not most, but many) police officers, because of the exclusionary rule and the way it encourages police perjury, are utterly debased.  In a perfect, or even good world, prosecutors would prosecute police for perjury.  But we don't live in a good world.  Indeed, when one assistant district attorney suggested to a supervisor that he thought a police officer had perjured himself, he was demoted.  Garcetti et al. punish A.D.A for seeking justice. Because I think the exclusionary rule has caused more harm than good, it's not hard to persuade me that it should not apply in Hudson. 

Cato's position is that the police would have no incentive to follow the knock-and-announce rule if they know any evidence obtained through a breach would not be excluded.  Yet if the police have a warrant to search someone's home, they're going to discover whatever illegal evidence is in the home, unless the suspect first hears them coming and destroys the evidence.  Moreover, a person can file a section 1983 action against the police for violating their rights by not knocking and announcing.  Fear of civil liability should provide enough of a deterrent to police misconduct.  Failure to knock and announce is actionable under section 1983.

I don't know how this case will be decided.  But it will be well argued.  David Moran of Wayne State is representing the individual rights side of the case.  Mr. Moran is, by all reports, knowledgeable, talented, and gracious.  Good luck.

By the way, feel free to persuade me that my views on the exclusionary rule are wrong.  I'm open-minded, so do leave a comment.

Failure to "Knock and Announce" is Per Se Fourth Amendment Violation

"In sum, a reasonable officer would not believe that a parolee’s consent to submit to search on demand eliminates the need to make such a demand, absent an exigency or demonstrated futility."  Green v. Butler, No. 04-2993, slip op. at 17 (7th Cir. Aug. 24, 2005).  In Butler, agents went to search a parolee's residence.  The parolee was renting from friends, though, and thus when the police barged into the house without knocking or announcing, the family sued.  The language in the case is much broader, though, and provides not just that someone with an expectation of privacy in his home be given notice before police officers barge in, but that parolees (who have no expectation of privacy) must also be warned before the police enter.

In explaining the importance of the knock and announce rule, Judge Ripple wrote:

More importantly, the entry alleged presented significant dangers for the officers, who, in entering unannounced, exposed themselves to the risk that an occupant would mistake their entry for an invasion and reasonably would take defensive measures to protect himself from the perceived, though mistaken, threat.

In the same vein, observance of the knock and announce rule is a significant safeguard to the occupants of the home, including innocent third parties for whom the surprise of an unannounced entry by law enforcement officers might elicit panic or other forms of irrational conduct—action that easily can be misapprehended by law enforcement officers and result in deadly defensive measures on their part. Specific to the facts of this case, notice of impending entry might have given the occupants a chance to control the dog, reducing the risk to the agents of an accidental attack or of the need to “shoot” the animal.  [Fortunately, their beloved family dog wasn't shot.]

That's exactly right.  Imagine if the homeowner's had thought the plain clothes officers had been burglars?  Someone might have been killed.  The knock and announce rule should be required to keep everyone safe.  That is, a search can't be reasonable absent knock and announce.

As an aside, the opinion is somewhat amusing given this introduction:

The named Illinois parole agents ... entered the residence to search Belter, prompting Mr. Green and Ms. Poulsen to file this § 1983 action for violations of their rights under the Fourth Amendment.

Section 1983 actions are apparently so common that courts needn't bother with a full citation. 

Strip Search Case

This case is about an arresting officer’s investigatory strip search for the purpose of discovering drugs on persons who had been arrested lawfully but had been arrested for offenses that were not drug crimes.

***

We mainly must decide two issues. Whether the strip searches performed on Plaintiffs violated their rights under the United States Constitution and, if so, whether that right -- given the circumstances facing Officer Stephens -- was already so clearly established that every objectively reasonable officer would have known that Defendant was violating federal law at the time. We conclude that the strip search here violated two rights of Plaintiffs, both arising under the Fourth Amendment. First, the strip searches -- as a post-arrest criminal investigation -- were unreasonable, because they were not supported by a reasonable suspicion of the existence of drug evidence. Second, even if some strip search might have been lawful, the manner in which these strip searches were performed was also unreasonable as a matter of federal law. In addition, we conclude that the right to be free altogether of a strip search was, under the circumstances, not already clearly established at the time of the incident, but that the Fourth Amendment itself provided, at the time, sufficient notice that the manner of these particular searches was “unreasonable” in the constitutional sense.

Evans v. City of Zebulon, Georgia, No. 02-16424 (11th Cir. May 9, 2005) (en banc).

More later...