Category Archives: Fourth Amendment

Firearms & Terry Stops

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In State v. Tarango, the WA Court of Appeals held that the presence of a firearm in public and the presence of an individual openly carrying a handgun in a “high-risk setting,” are insufficient, standing alone, to support an investigatory stop.

BACKGROUND FACTS

At around 2:00 in the afternoon on a winter day in 2016, Mr. Matthews drove to a neighborhood grocery store in Spokane, parking his car next to a Chevrolet Suburban in which music was playing loudly. A man was sitting in the passenger seat of the Suburban, next to its female driver. When Mr. Matthews stepped out of his car and got a better look at the passenger, who later turned out to be the defendant Mr. Tarango, he noticed that Mr. Tarango was holding a gun in his right hand, resting it on his thigh. Mr. Matthews would later describe it as a semiautomatic, Glock-style gun.

As he headed into the store, Mr. Matthews called 911 to report what he had seen, providing the 911 operator with his name and telephone number. The first officer to respond saw a vehicle meeting Mr. Matthews’s description parked on the east side of the store. He called in the license plate number and waited for backup to arrive. Before other officers could arrive, however, the Suburban left the parking area, traveling west.

The Suburban was followed by an officer and once several other officers reached the vicinity, they conducted a felony stop. According to one of the officers, the driver, Lacey Hutchinson, claimed to be the vehicle’s owner. When told why she had been pulled over, she denied having firearms in the vehicle and gave consent to search it.

After officers obtained Mr. Tarango’s identification, however, they realized he was under Department of Corrections (DOC) supervision and decided to call DOC officers to perform the search.

In searching the area within reach of where Mr. Tarango had been seated, a DOC officer observed what appeared to be the grip of a firearm located behind the passenger seat, covered by a canvas bag. When the officer moved the bag to get a better view of the visible firearm—the visible firearm turned out to be a black semiautomatic—a second firearm, a revolver, fell out. Moving the bag also revealed a couple of boxes of ammunition. At that point, officers decided to terminate the search, seal the vehicle, and obtain a search warrant. A loaded Glock Model 22 and a Colt Frontier Scout revolver were recovered when the vehicle was later searched.

The State charged Mr. Tarango, who had prior felony convictions, with two counts of first degree unlawful possession of a firearm. Because Mr. Tarango had recently failed to report to his community custody officer as ordered, he was also charged with Escape from community custody.

Before trial, Mr. Tarango moved to suppress evidence obtained as a result of the traffic stop, arguing that police lacked reasonable suspicion of criminal activity. However, the trial court denied the suppression motion. Later, at trial, the jury found Mr. Tarango guilty as charged. He appealed.

ISSUE

The issue on appeal was whether a reliable informant’s tip that Mr. Tarango was seen openly holding a handgun while seated in a vehicle in a grocery store parking lot was a sufficient basis, without more, for conducting a Terry stop of the vehicle after it left the lot.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals held that Mr. Tarango’s motion to suppress should have been granted because officers lacked reasonable suspicion that Mr. Tarango had engaged in or was about to engage in criminal activity.

The Court reasoned that warrantless searches and seizures are per se unreasonable unless one of the few jealously and carefully drawn exceptions to the warrant requirement applies.

“A Terry investigative stop is a well-established exception,” said the Court. “The purpose of a Terry stop is to allow the police to make an intermediate response to a situation for which there is no probable cause to arrest but which calls for further investigation . . . To conduct a valid Terry stop, an officer must have reasonable suspicion of criminal activity based on specific and articulable facts known to the officer at the inception of the stop.”

Additionally, the Court of Appeals reasoned that in evaluating whether the circumstances supported a reasonable suspicion of criminal conduct, it reminded that Washington is an “open carry” state, meaning that it is legal in Washington to carry an unconcealed firearm unless the circumstances manifest an intent to intimidate another or warrant alarm for the safety of other persons.

“Since openly carrying a handgun is not only not unlawful, but is an individual right protected by the federal and state constitutions, it defies reason to contend that it can be the basis, without more, for an investigative stop.”

Here, because the officers conducting the Terry stop of the Suburban had no information that Mr. Tarango had engaged in or was about to engage in criminal activity, the officers lacked reasonable suspicion.

Consequently, the Court of Appeals ruled that Tarango’s motion to suppress should have been granted. The Court also reversed and dismissed his firearm possession convictions.

Please contact my office if, a friend or family member face criminal charges. Similar to the excellent defense attorney in this case, experienced attorneys routinely research, file and argue motions to suppress evidence when it is gained by unlawful search and seizure and in violation a defendant’s Constitutional rights.

Unlawful Vehicle Stops

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In United States v. Landeros, the Ninth Circuit Court of Appeals held that law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.

BACKGROUND FACTS

Early in the morning of February 9, 2016, police officer Baker pulled over a car driving 11 miles over the speed limit. The stop occurred on a road near the Pascua Yaqui Indian Reservation. Defendant Alfredo Landeros sat in the front passenger seat next to the driver. Two young women were in the back seat. The driver apologized to Officer Baker for speeding and provided identification.

Officer Baker wrote in his incident report and testified that he smelled alcohol in the car. The two women in the backseat appeared to him to be minors, and therefore subject to the underage drinking laws.  The two women—who were 21 and 19 years old—complied.

Officer Baker did not believe that Landeros was underage, and he was not. Nonetheless, Officer Baker commanded Landeros to provide identification.

Landeros refused to identify himself, and informed Officer Baker that he was not required to do so. Officer Baker then repeated his demand to see Landeros’s ID.” Landeros again refused. As a result, Officer Baker called for back-up, prolonging the stop. Officer Romero then arrived, and he too asked for Landeros’s identification. The two officers also repeatedly commanded Landeros to exit the car because he was not being compliant.

Landeros eventually did leave the car. At least several minutes passed between Officer Baker’s initial request for Landeros’s identification and his exit from the car. As Landeros exited the car, he saw for the first time pocketknives, a machete, and two open beer bottles on the floorboards by the front passenger seat. Under Ariz. Rev. Stat. Ann. § 4-251, Arizona prohibits open containers of alcohol in cars on public highways. Officer Baker then placed Landeros under arrest.

Landeros was arrested both for possessing an open container and for “failure to provide his true full name and refusal to comply with directions of police officers under Ariz. Rev. Stat. Ann. § 13-2412(A). Under that statute, it is unlawful for a person, after being advised that the person’s refusal to answer is unlawful, to fail or refuse to state the person’s true full name on request of a peace officer who has lawfully detained the person based on reasonable suspicion that the person has committed, is committing or is about to commit a crime.”

The officers handcuffed Landeros as soon as he exited the car. Officer Romero asked Landeros if he had any weapons. Landeros confirmed that he had a knife in a pocket. Officer Romero requested consent to search Landeros’s pockets, and Landeros agreed. During that search, Officer Romero found a smoking pipe and six bullets in Landeros’s pockets.

Landeros was federally indicted for possession of ammunition by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2). He moved to suppress the evidence based on the circumstances of the stop, however, the lower federal district court denied the motion. Landeros then entered into a plea agreement that preserved his right to appeal the denials of the two motions. The district court accepted the agreement and sentenced Landeros to 405 days in prison and three years of supervised release. He appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit held that law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.

The Court reasoned held that because the lower court mistakenly approved the duration of the stop in this case based on United States v. Turvin and wrongfully disregarded Rodriguez v. United States.

“Applying Rodriguez, we shall assume that Officer Baker was permitted to prolong the initially lawful stop to ask the two women for identification, because he had reasonable suspicion they were underage. But the several minutes of additional questioning to ascertain Landeros’s identity was permissible only if it was (1) part of the stop’s “mission” or (2) supported by independent reasonable suspicion.”

The Ninth Circuit also held that any extension of the traffic stop to investigate those matters was an unlawful seizure because there was no evidence that the officer had a reasonable suspicion that the defendant was out past his curfew or drinking underage. As a result, the record does not demonstrate that Officer Baker had a reasonable suspicion that Landeros was out past his curfew or drinking underage. Any extension of the traffic stop to investigate those matters was an unlawful seizure under the Fourth Amendment.

Furthermore, the Ninth Circuit rejected the government’s arguments that the defendant’s refusal to identify himself provided reasonable suspicion of the additional offenses of failure to provide identification and failure to comply with law enforcement orders.

The Court reasoned that here, the officers insisted several times that Landeros identify himself after he initially refused, and detained him while making those demands. “At the time they did so, the officers had no reasonable suspicion that Landeros had committed an offense,” said the Ninth Circuit. “Accordingly, the police could not lawfully order him to identify himself. His repeated refusal to do so thus did not, as the government claims, constitute a failure to comply with an officer’s lawful order . . .” Consequently, reasoned the Ninth Circuit, there was therefore no justification for the extension of the detention to allow the officers to press Landeros further for his identity.

The Ninth Circuit concluded that there was therefore no justification for the extension of the detention to allow the officers to press the defendant further for his identity. It reasoned that the bullets the defendant was convicted of possessing cannot be introduced at trial because he was ordered from the car as part of the unlawfully extended seizure and subsequently consented to a search of his pockets. Furthermore, because the stop was no longer lawful by the time the officers ordered the defendant to leave the car, the validity (or not) of the police officer’s order to exit the vehicle did not matter.

Good opinion.

“Ruse” Searches Held Unconstitutional.

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In Whalen v. McMullen, the Ninth Circuit Court of Appeals held that an officer’s warrantless entry into a home via a ruse such as by asking the homeowner for assistance in a fictitious criminal investigation, violates the Fourth Amendment. A “ruse” entry is when a known government agent misrepresents his purpose in seeking entry.

FACTUAL BACKGROUND

While investigating Kathleen Whalen for fraud related to her application for social security benefits, Washington State Patrol officer McMullen gained both her cooperation and entrance into her home by requesting her assistance in a fictitious criminal investigation. During his investigation, McMullen secretly videotaped Whalen both outside and inside her home. No criminal charges were ever lodged against Whalen, but the Washington Disability Determination Services division (“DDS”) of the Washington Department of Social and Health Services (“DSHS”) used at her social security hearing the footage surreptitiously filmed inside her home.

Whalen brought suit against McMullen under 42 U.S.C. § 1983, alleging that McMullen’s entry into her home without a warrant and under false pretenses violated her Fourth Amendment right to be free from unreasonable searches and seizures.

LEGAL ISSUES

(1) whether McMullen’s warrantless entry into Whalen’s home under false pretenses was an unreasonable search under the Fourth Amendment, and (2) whether it was clearly established that such an entry was a Fourth Amendment violation.

COURT’S ANALYSIS AND CONCLUSIONS

The Ninth Circuit held that McMullen violated Whalen’s Fourth and Fourteenth Amendment rights, but agreed with the lower federal district court that McMullen had qualified immunity from suit because the right was not clearly established.

A. Whether the Officer’s Conduct Violated the Constitution.

The Ninth Circuit explained that the Fourth Amendment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, instructs that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

“Without question, the home is accorded the full range of Fourth Amendment protections,” said the Court, citing Lewis v. United States. “Indeed, at the very core’ of the Fourth Amendment ‘stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”

Furthermore, the Court reasoned that a Fourth Amendment “search” occurs when a government agent obtains information by physically intruding on a constitutionally protected area. The Court distinguished between “undercover” entries, where a person invites a government agent who is concealing that he is a government agent into her home, and “ruse” entries, where a known government agent misrepresents his purpose in seeking entry. The former does not violate the Fourth Amendment, as long as the undercover agent does not exceed the scope of his invitation while inside the home.

However, it also reasoned that a ruse entry – one when the suspect is informed that the person seeking entry is a government agent but is misinformed as to the purpose for which the agent seeks entr – cannot be justified by consent. This is because access gained by a government agent, known to be such by the person with whom the agent is dealing, violates the Fourth Amendment’s bar against unreasonable searches and seizures if such entry was acquired by affirmative or deliberate misrepresentation of the nature of the government’s investigation.

In this case, McMullen identified himself as a law enforcement officer and requested Whalen’s assistance in a fictitious investigation, gaining entry into her home using this ruse.

“McMullen appealed to Whalen’s trust in law enforcement and her sense of civic duty to assist him in his “identity theft” investigation. McMullen’s description of an identity theft investigation was perfectly plausible, and Whalen readily agreed to cooperate. But there was no identify theft investigation underway. McMullen lied to Whalen about his real purpose—to investigate her for possible social security fraud. Whalen’s consent to McMullen’s entry into her home is vitiated by his deception.”

Consequently, reasoned the Court, it was entirely immaterial that McMullen could have lawfully searched Whalen’s home by securing her consent without using a ruse. “His argument is akin to justifying a warrantless search on the ground that a warrant would have been issued if one had been sought,” said the Court. Regardless of whether Whalen would have consented to McMullen’s entry into her home if he had not used a ruse, she did not validly consent here.

“Once we add to this the fact that McMullen videotaped his entire visit, any illusion that this was not a Fourth Amendment search evaporates. McMullen had two cameras running while he was talking with Whalen, and at least one of the cameras captured his entire visit inside her home. Of course it was a search: not only was McMullen there to observe Whalen, but he had also been asked specifically to seek evidence concerning Whalen’s use of an electric wheelchair, how wheelchair accessible the house was, were the wheelchairs used, were clothes on them, etc.”

With that, the Ninth Circuit concluded that McMullen’s entry into Whalen’s home without consent or a warrant in the course of a civil fraud investigation related to Whalen’s benefits claim was an unreasonable search under the Fourth Amendment.

B. Whether the Violation Was “Clearly Established.”

Here, the Ninth Circuit reasoned that in order to hold McMullen personally liable under § 1983, Whalen’s right to be free from a search in this context must have been clearly established. To be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.

“The right Whalen asserts was not clearly established,” said the Court. “Therefore, officer McMullen was entitled to qualified immunity from this suit.”

My opinion? Good decision, mostly. I’m happy to see the Ninth found that the officer’s ruse violated Ms. Whalen’s constitutional rights. And although I would’ve liked to see the Ninth Circuit award Ms. Whalen damages for the violation of her rights, the reality is that it’s extremely difficult to succeed on suing police for misconduct.

Racial Profiling of Latinos in LA County

Excellent article by Joel Rubin and Ben Poston of the LA Times examines a disturbing trend. Apparently, more than two-thirds of the drivers pulled over by the Domestic Highway Enforcement Team were Latino, according to a Times analysis of Sheriff’s Department data. And sheriff’s deputies searched the vehicles of more than 3,500 drivers who turned out to have no drugs or other illegal items, the analysis found. The overwhelming majority of those were Latino.

Several of the team’s big drug busts have been dismissed in federal court as the credibility of some deputies came under fire and judges ruled that deputies violated the rights of motorists by conducting unconstitutional searches.

The Times analyzed data from every traffic stop recorded by the team from 2012 through the end of last year — more than 9,000 stops in all — and reviewed records from hundreds of court cases. Among its findings:

  • Latino drivers accounted for 69% of the deputies’ stops. Officers from the California Highway Patrol, mainly policing traffic violations on the same section of freeway, pulled over nearly 378,000 motorists during the same period; 40% of them were Latino.
  • Two-thirds of Latinos who were pulled over by the Sheriff’s Department team had their vehicles searched, while cars belonging to all other drivers were searched less than half the time.
  • Three-quarters of the team’s searches came after deputies asked motorists for consent rather than having evidence of criminal behavior. Several legal scholars said such a high rate of requests for consent is concerning because people typically feel pressured to allow a search or are unaware they can refuse.
  • Though Latinos were much more likely to be searched, deputies found drugs or other illegal items in their vehicles at a rate that was not significantly higher than that of black or white drivers.

From top to bottom: L.A. County Sheriff’s Deputies search a motorist’s suitcase. Also a deputy uses a device for measuring density to search for hidden drugs and clutches some tools he uses to perform vehicle searches. (Myung J. Chun / Los Angeles Times)

The L.A. County Sheriff’s Department said that racial profiling plays no role in the deputies’ work and that they base their stops only on a person’s driving and other impartial factors.

In December, Sheriff Jim McDonnell heaped praise on the team, ticking off its accomplishments in a lengthy statement. “The importance of this mission cannot be overstated,” the sheriff said.

But several legal and law enforcement experts said the department’s own records strongly suggest the deputies are violating the civil rights of Latinos by racially profiling, whether intentionally or not.

“When they say, ‘We’re getting all these drugs out of here,’ they are not taking into account the cost,” said David Harris, a law professor at the University of Pittsburgh who studies racial profiling by police. “They are sacrificing their own legitimacy in the community as a whole and the Latino community in particular.”

Kimberly Fuentes, research director for the California League of United Latin American Citizens, described The Times’ findings as “extremely disturbing and troubling” and said the advocacy organization would demand a meeting with Sheriff’s Department officials.

“These findings risk tarnishing any trust between the Sheriff’s Department and the Latino community,” Fuentes said.

My opinion? A pullover and search of your vehicle is unlawful if the reason for the pullover/search is racial profiling. Racial profiling is the practice of targeting individuals for police or security detention based on their race or ethnicity in the belief that certain minority groups are more likely to engage in unlawful behavior. Examples of racial profiling by federal, state, and local law enforcement agencies are illustrated in legal settlements and data collected by governmental agencies and private groups, suggesting that minorities are disproportionately the subject of routine traffic stops and other security-related practices.

Also, pretextual searches are also unlawful. Pretext is an excuse to do something or say something that is not accurate. Pretexts may be based on a half-truth or developed in the context of a misleading fabrication. Pretexts have been used to conceal the true purpose or rationale behind actions and words. A pretextual search and arrest by law enforcement officers is one carried out for illegal purposes such as to conduct an unjustified search and seizure.

Please contact my office if you, a friend or family member was charged with a crime after being racially profiled and/or pulled over for unlawful pretext. I provide zealous representation to all defendants facing these circumstances.

Facebook Photos Admissible

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The 6th Circuit Federal Court of Appeals‘ recent court decision United States v. Farrad gives a very comprehensive analysis regarding the admissibility of Facebook records. In short, the  Court held that (1) photographs from a Facebook account were properly authenticated by evidence that the photos in question came from a Facebook account registered to the defendant and the photos appeared to show the defendant in his own apartment, and (2) The Facebook photographs were self-authenticating as a business record.

Washington’s evidence rules are either identical to, or extremely similar, to the federal rules discussed in the opinion.

BACKGROUND FACTS

After serving time in prison for a previous felony, Farrad was released from federal
custody in January 2013. Farrad came to the attention of local law enforcement sometime after June 10 of that same year, when various confidential informants and concerned citizens evidently reported observing Farrad to be in possession of one or more firearms while in Johnson City, Tennessee.

Some time later, a Officer Garrison of the Johnson City Police Department used an undercover account and sent Farrad a friend request on Facebook. After Farrad accepted the friend request, Garrison was able to see more of Farrad’s photos. One photo in particular caught his interest: a photo that showed what appeared to be three handguns sitting on a closed toilet lid in a bathroom. The photo was uploaded on October 7, 2013.

Garrison brought the photo to the attention of Johnson City police officer and FBI task
force officer Matthew Gryder, who applied on October 25, 2013, for a warrant to search Farrad’s Facebook’s records. A federal magistrate judge granted the warrant. The warrant allowed execution “on or before November 6, 2013,” and the return executed by federal law enforcement indicates that the warrant was “served electronically” on Facebook on November 1, 2013.

The resulting data yielded a series of additional photos that were central to this case: some show a person who looks like Farrad holding what appears to be a gun, while others show a closer-up version of a hand holding what appears to be a gun.

While none of the photos shows a calendar, date, or one-of-a-kind distinguishing feature, the person in the photos has relatively distinctive tattoos, and some of the photos show, as backdrop, the décor of the room in which they were taken. Facebook records revealed that the photos had been uploaded on October 11, 2013.

In September 2014, a federal grand jury charged Farrad with having, on or about October 11, 2013, knowingly possessed a firearm, namely, a Springfield, Model XD, .45 caliber, semiautomatic pistol.

On March 26, 2015, Farrad filed a pro se motion seeking an evidentiary hearing, dismissal of the indictment against him, and suppression of the Facebook photos on Fourth Amendment grounds. The magistrate judge assigned to Farrad’s case denied that motion on April 9, 2015, on the grounds that Farrad already had appointed counsel and the local rules prohibited a represented party from acting in his or her own behalf without an order of substitution. Farrad’s trial counsel did not renew Farrad’s motion.

The parties did, however, litigate the admission of the photos on evidentiary grounds.
The Government argued that the Facebook photos qualified as business records under Federal Rule of Evidence 803(6) and that they were, as such, self-authenticating under Federal Rule of Evidence 902(11).

In support of its assertion, the Government introduced a certification by a Facebook-authorized records custodian, who attested that the records provided by Facebook—including “search results for basic subscriber information, IP logs, messages, photos, and other content and records for Farrad’s Facebook identity were made and kept by the automated systems of Facebook in the course of regularly conducted activity as a regular practice of Facebook and made at or near the time the information was transmitted by the Facebook user.

In addition to disputing admissibility under Federal Rules of Evidence 401, 402, 403, 404, 405, and 406, Farrad’s trial counsel argued that the photos, despite the custodian’s affidavit having been “done correctly under the federal rules,” were “hearsay within hearsay” and did not “authenticate who took the pictures, when the pictures were taken, by whom, at what time. All that the custodian could attest to, trial counsel emphasized, was that at some point these pictures were uploaded to what was allegedly Farrad’s Facebook account, the custodian could not testify as to who took the photos, when they were taken, where they were taken.

On June 15, 2015, the district court concluded that it had found no indication of a lack of trustworthiness and that the photos qualified as business records under Rules 803(6) and 902(11). It also determined that the photos were relevant.

The jury found Farrad guilty. He appealed his case to the 6th Circuit Court of Appeals.

ISSUES

Farrad raises seven arguments on appeal: (1) that there was insufficient evidence
introduced at trial to support his conviction; (2) that the Facebook photos should not have been admitted into evidence; (3) that Officers Hinkle and Garrison should not have been permitted to testify as experts; (4) that the district court should have granted Farrad’s motion for a new trial; (5) that Farrad did not in fact qualify as an armed career criminal under the ACCA; (6) that finding him to be an armed career criminal at sentencing violated his Fifth and Sixth Amendment rights; and (7) that the district court should have excluded the Facebook photos on Fourth Amendment grounds.

In this blog post, we focus on the issue of whether the Facebook photos were admissible at trial.

COURT’S ANALYSIS & CONCLUSIONS

Admissibility of Photos

The Court reasoned that like other evidence, photographs must be authenticated prior to being admitted into evidence. To satisfy this requirement, under federal evidence rule (FRE) 901, the person seeking to admit the evidence (proponent) must produce evidence proving that the item is what the proponent claims it is. This authentication rule requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.

The Court further reasoned that under FRE 902, some items – like, apparently Facebook posts – are self-authenticating. In other words, they require no extrinsic evidence of authenticity in order to be admitted. This category of self-authenticating evidence includes “certified domestic records of a regularly conducted activity”—that is, a business “record that meets the requirements of Rule 803(6)(A)–(C), so long as properly certified by a custodian or other qualified person  and so long as the evidence is subject to challenge by  the opposing party.

“The question, then, is the central one: the authentication of the photos,” said the Court. “They appeared to show Farrad, his tattoos, and (perhaps most probatively) distinctive features of Farrad’s apartment, as confirmed by police investigation . . . The district court was correct to admit them.”

Fourth Amendment Suppression

After addressing the admissibility issue, the Court went on to reject Farrad’s claim that admitting the Facebook photos violated the Fourth Amendment. The Court reasoned that while a search made by a private entity acting at the direction of law enforcement agents must comport with the Fourth Amendment, Farrad has pointed to no authority or rationale to suggest that a date of execution similarly binds a third party’s certification of its records for evidentiary purposes. “This argument lacks merit,” said the Court.

“The bottom line in this case—that Farrad has been sentenced to serve 188 months in prison because the Government found Facebook photos of him with what appears to be a gun—may well raise a lay reader’s hackles. There are likewise aspects of Farrad’s trial and
conviction—the date issue, Officer Garrison’s testimony—that are at least debatably troubling from a legal perspective. Nevertheless, we are not empowered to grant relief based on arguments not made or where errors were harmless.”

With that, the Sixth Circuit affirmed Farrad’s conviction and sentencing.

My opinion? Today’s defense attorney must be proficient in the admissibility of social media evidence. And the answers are fairly straightforward. Although the general rule is that hearsay is not admissible, and that social media evidence is hearsay, some hearsay evidence is admissible under the business record exception. Clearly, anything and everything that social media outlets like Facebook produces – from profiles to posts – are business records, arguably.

This is a classic example telling us to watch what we post on Facebook and other social media. Information is private until its not.

Pretext Traffic Stop

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In State v. Hendricks, the WA Court of Appeals held that a traffic stop for Failure to Transfer Title was not unlawfully pretextual because the stop was initiated based upon running license plates as vehicles passed him and the deputy did not recognize the vehicle’s occupants until after initiating the traffic stop.

BACKGROUND FACTS

Ms. Ciulla was named as a protected party in a no contact order issued against
Hendricks. On September 8, 2016, the State charged Hendricks with violation of a no contact order, alleging that he knowingly had contact with Ciulla. Hendricks filed a CrR 3.6 motion to suppress evidence seized from the traffic stop leading to his arrest, asserting that there was no lawful basis for the traffic stop.

At the CrR 3.6 hearing, Clallam County Sheriff’s Deputy Federline testified that he
was on duty on the evening of September 7, 2016 when he saw a Mazda pickup truck and ran the license plate of the vehicle. Upon his check of the truck’s license plate, Deputy Federline found that more than 15 days had passed since ownership of the vehicle had changed, but the title had not been transferred.

When the truck passed, Deputy Federline also saw that the truck’s back license plate was partially obscured by a trailer hitch. Deputy Federline conducted a traffic stop of the truck. When Deputy Federline made contact with the vehicle’s occupants, he recognized Ciulla in the front passenger seat and Hendricks in the back seat. Deputy Federline arrested Hendricks. Following this testimony, Hendricks argued that Deputy Federline lacked authority to stop the truck based either on a failure to timely transfer title or on an obscured license plate.

The trial court denied Hendricks’s motion to suppress. Following the trial court’s denial of his CrR 3.6 suppression motion, Hendricks waived his right to a jury trial, and the matter proceeded to bench trial on a stipulated record. The trial court found Hendricks guilty of violation of no contact order. The trial court also found that Hendricks committed his offense against a family or household member. Hendricks appealed from his conviction.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution generally prohibit searches and seizures absent a warrant or a recognized exception to the warrant requirement. One such exception to the warrant requirement is an investigative stop as set forth in Terry v. Ohio, a landmark search and seizure case which applies to traffic violations. Also, a law enforcement officer may conduct a warrantless traffic stop if the officer has a reasonable and articulable suspicion that a traffic violation has occurred or is occurring.

The court rejected Hendricks’s arguments that the failure to comply with RCW 46.12.650(5)(a)’s requirement of transferring title within 15 days of delivery of a vehicle does not constitute a traffic infraction under RCW 46.63.020 because the failure to timely transfer title is not a parking, standing, stopping, or pedestrian offense.

“The plain language of RCW 46.63.020 shows that the legislature intended to treat the failure to timely register a vehicle’s title as a traffic infraction and, thus, the trial court correctly concluded that Deputy Federline had an articulable suspicion justifying his stop of the vehicle in which Hendricks was riding as a passenger.”

Next, the Court of Appeals addressed whether the stop was unlawfully pretextual.

Pretextual Traffic Stops

The Court reasoned that Article I, section 7 of the Washington Constitution prohibits pretextual traffic stops. State v. Ladson, 138 Wn.2d at 358. A pretextual traffic stop occurs when a law enforcement officer  stops a vehicle in order to conduct a speculative criminal investigation unrelated to enforcement of the traffic code. Ladson, 138 Wn.2d at 349. Whether a given stop is pretextual depends on the totality of the circumstances, “including both the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior.” Ladson, 138 Wn.2d at 359. A traffic stop is not pretextual even where the officer has an additional motivation for conducting the stop apart from a suspected traffic violation, so long as the officer’s purported motive in investigating a suspected traffic violation was an actual, conscious, and independent reason for the stop. State v.
Arreola, 176 Wn.2d 284, 299-300, 290 P.3d 983 (2012).

“Hendricks suggests that Deputy Federline had suspected the vehicle’s occupants of being
involved in drug activity and used the failure to timely transfer title as a pretext to investigate the vehicle and its occupants for drug related offenses,” said the Court. “This is pure speculation without any support in the record.”

The Court reasoned that Deputy Federline was the only witness at the CrR 3.6 hearing. Furthermore, the deputy testified that he was parked at an intersection running the license plates of southbound traveling vehicles when he saw the vehicle at issue. Deputy Federline began to initiate his traffic stop after finding that the title to the vehicle at issue was not timely transferred following a change in ownership. Finally, Deputy Federline recognized Hendricks and Ciulla only after initiating the traffic stop and contacting the driver of the vehicle.

“In short, Hendricks fails to identify any evidence in the record that would have supported a claim that Deputy Federline’s traffic stop was a pretext to investigate a crime unrelated to a suspected traffic infraction.”

Consequently, the Court held that because the record lacked of any evidence supporting a claim that Deputy Federline conducted a pretextual traffic stop, Hendricks can show neither deficient performance nor resulting prejudice from defense counsel’s decision to decline raising the issue at the CrR 3.6 hearing.  Accordingly, the Court of Appeals affirmed Hendrick’s conviction.

Contact my office if you, a friend or family member was contacted by police under circumstances which appear unlawfully pretextual. Despite the above case, Washington case law protects the rights of those who appear to be searched and seized under fabricated pretenses.

Praying While Arrested

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In Sause v. Bauer, the United States Supreme Court held that a police officer may lawfully prevent a person from praying at a particular time and place, such as when a suspect who is under arrest seeks to delay the trip to the jail by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment.

BACKGROUND FACTS

Petitioner Mary Ann Sause filed this civil rights action under U. S. C. §1983, and named the Louisburg, Kansas, police department as the defendant/respondent in the lawsuit.

The centerpiece of Ms. Sause’s complaint was the allegation that two of the town’s police officers visited her apartment in response to a noise complaint, gained admittance to her apartment, and then proceeded to engage in a course of strange and abusive conduct, before citing her for disorderly conduct and interfering with law enforcement.

At one point, Ms. Sause knelt and began to pray. However, one of the officers ordered her to stop. She also claimed that officers refused to investigate her complaint that she was assaulted by residents of her apartment complex, and that officers threatened to issue a citation if she reported this to another police department. In addition, she alleged that the police chief failed to follow up on a promise to investigate the officers’ conduct.

Ms. Sause’s complaint asserted a violation of her First Amendment right to the free exercise of religion and her Fourth Amendment right to be free of any unreasonable search or seizure. The defendants moved to dismiss the complaint for failure to state a claim on which relief may be granted, arguing that the defendants were entitled to qualified immunity. The Federal District Court granted the motion to dismiss her lawsuit.

Ms. Sause appealed, however, the Court of Appeals for the Tenth Circuit affirmed the decision of the District Court, concluding that the officers were entitled to qualified immunity.

COURT’S ANALYSIS AND CONCLUSIONS

“There can be no doubt that the First Amendment protects the right to pray,” said the Court. “Prayer unquestionably constitutes the “exercise” of religion.” The Supremem Court also reasoned that at the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. “For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment.”

Furthermore, the Court also reasoned that when an officer’s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable.

The court ruled that in this case, it was is unclear whether the police officers were in Ms. Sause’s apartment at the time in question based on her consent, whether they had some other ground consistent with the Fourth Amendment for entering and remaining there, or whether their entry or continued presence was unlawful. The Court found that Ms. Sause’s complaint contains no express allegations on these matters. “Nor does her complaint state what, if anything, the officers wanted her to do at the time when she was allegedly told to stop praying. Without knowing the answers to these questions, it is impossible to analyze petitioner’s free exercise claim.”

Despite agreeing with the Government on this issue, the Supreme Court nevertheless reversed the judgment of the Tenth Circuit which dismissed Ms. Sause’s case and remanded her case back to federal court for further proceedings consistent with this opinion.

Cell Site Location Information

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In Carpenter v. United States, the United States Supreme Court held that the government generally needs a search warrant to collect troves of location data about the customers of cellphone companies.

BACKGROUND FACTS

In April 2011, police arrested four men suspected of committing a string of armed robberies at Radio Shack and T-Mobile stores in and around Detroit. One of the men confessed that the group had robbed nine different stores in Michigan and Ohio between December 2010 and March 2011, supported by a shifting ensemble of 15 other men who served as getaway drivers and lookouts. The robber who confessed to the crimes gave the FBI his own cellphone number and the numbers of other participants; the FBI then reviewed his call records to identify still more numbers that he had called around the time of the robberies.

In May and June 2011, the FBI applied for three federal court orders from magistrate judges to obtain “transactional records” from various wireless carriers for 16 different phone numbers. As part of those applications, the FBI recited that these records included “all subscriber information, toll records and call detail records including listed and unlisted numbers dialed or otherwise transmitted to and from [the] target telephones from December 1, 2010 to present,” as well as “cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls.”

The FBI also stated that these records would “provide evidence that Timothy Carpenter and other known and unknown individuals” had violated the Hobbs Act, 18 U.S.C. § 1951. The magistrates granted the applications pursuant to the Stored Communications Act, under which the government may require the disclosure of certain telecommunications records when “specific and articulable facts show that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”

The government later charged Carpenter with six counts of aiding and abetting robbery that affected interstate commerce, in violation of the Hobbs Act, and aiding and abetting the use or carriage of a firearm during a federal crime of violence. Before trial, Carpenter and Sanders moved to suppress the government’s cell-site evidence on Fourth Amendment grounds, arguing that the records could be seized only with a warrant supported by probable cause. The district court denied the motion.

At trial, seven accomplices testified that Carpenter organized most of the robberies and
often supplied the guns. They also testified that Carpenter and his half-brother Sanders had served as lookouts during the robberies. According to these witnesses, Carpenter typically waited in a stolen car across the street from the targeted store. At his signal, the robbers entered the store, brandished their guns, herded customers and employees to the back, and ordered the employees to fill the robbers’ bags with new smartphones. After each robbery, the team met nearby to dispose of the guns and getaway vehicle and to sell the stolen phones.

Also at trial, the Government admitted cell-site location information (CSLI) provided by Carpenter’s wireless carriers. The State’s expert witness created maps showing that Carpenter’s phone was within a half-mile to two miles of the location of each of the robberies around the time the robberies happened. Hess used MetroPCS call-detail records, for example, to show that Carpenter was within that proximity of a Detroit Radio Shack that was robbed around 10:35 a.m. on December 13, 2010. Specifically, MetroPCS records showed that at 10:24 a.m. Carpenter’s phone received a call that lasted about four minutes. At the start and end of the call, Carpenter’s phone drew its signal from MetroPCS tower 173, sectors 1 and 2, located southwest of the store and whose signals point northeast.

After the robbery, Carpenter placed an eight-minute call originating at tower 145, sector 3, located northeast of the store, its signal pointing southwest; when the call ended, Carpenter’s phone was receiving its signal from tower 164, sector 1, alongside Interstate 94, north of the Radio Shack. The expert witness provided similar analysis
concerning the locations of Carpenter’s phone at the time of a December 18, 2010 robbery in Detroit; a March 4, 2011 robbery in Warren, Ohio; and an April 5, 2011 robbery in Detroit. See Carpenter App’x at 12-15.

The jury convicted Carpenter on all of the Hobbs Act counts and convicted him on all but one of the gun counts. Carpenter’s convictions subjected him to four mandatory-minimum prison sentences of 25 years, each to be served consecutively, leaving him with a Sentencing Guidelines range of 1,395 to 1,428 months’ prison. The district court sentenced Carpenter to 1,395 months’ imprisonment. He appealed his convictions and sentences.

COURT’S ANALYSIS AND CONCLUSIONS

Justice Roberts delivered the majority opinion of the Supreme Court.

Preliminarily, the Court held that the Government’s acquisition of Carpenter’s cell-site records was a Fourth Amendment search. It reasoned that Fourth Amendment protects not only property interests but certain expectations of privacy as well.

“Thus, when an individual seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause,” said the Court.

“Tracking a person’s past movements through CSLI partakes of many of the qualities of GPS monitoring considered in Jones—it is detailed, encyclopedic, and effortlessly compiled.”

The Court further reasoned that cell phone location information is not truly “shared” as the term is normally understood. “First, cell phones and the services they provide are such a pervasive and insistent part of daily life, that carrying one is indispensable to participation in modern society,” said the Court. “Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the user’s part beyond powering up.”

Finally, the Court reasoned that the Government did not obtain a warrant supported by probable cause before acquiring Carpenter’s cell-site records. It acquired those records pursuant to a court order under the Stored Communications Act, which required the Government to show reasonable grounds for believing that the records were relevant and material to an ongoing investigation. “That showing falls well short of the probable cause required for a warrant,” said the Court. “Consequently, an order issued under §2703(d) is not a permissible mechanism for accessing historical cell-site records. Not all orders compelling the production of documents will require a showing of probable cause.”

Justice Ginsberg, Breyer, Sotomayor, and Kagan joined. Justice Kennedy filed a dissenting opinion, in which Justice Thomas and Alito joined. Justice Gorsuch also filed a dissenting opinion.

It’s imperative to hire competent defense counsel willing to argue motions to suppress information that the Government creatively – and sometimes illegally – obtains. Please contact my office if you, a friend or family member are arrested for crimes involving searches of cell phones and/or cell phone records.

Search Within Curtilage

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In Collins v. Virginia, the United States Supreme Court held that officers may not enter the curtilage of a house without a search warrant in order to remove the tarp from a motorcycle in order to confirm that the motorcycle was stolen.

BACKGROUND FACTS

During the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame, Officer David Rhodes learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. Officer Rhodes discovered photographs on Collins’ Facebook profile of an orange and black motorcycle parked in the driveway of a house, drove to the house, and parked on the street. From there, he could see what appeared to be the motorcycle under a white tarp parked in the same location as the motorcycle in the photograph.

Without a search warrant, Office Rhodes walked to the top of the driveway, removed the tarp, confirmed that the motorcycle was stolen by running the license plate and vehicle identification numbers, took a photograph of the uncovered motorcycle, replaced the tarp, and returned to his car to wait for Collins. When Collins returned, Officer Rhodes arrested him.

Collins was indicted by a Virginia grand jury for receiving stolen property. He filed a pretrial motion to suppress the evidence that Officer Rhodes had obtained as a result of the warrantless search of the motorcycle on the grounds that Officer Rhodes violated the Fourth Amendment when he trespassed on the house’s curtilage to conduct a search. The trial court denied Collins’ motion to suppress the evidence. Collins was convicted as charged. The Virginia Court of Appeals affirmed. The Virginia State Supreme Court also affirmed, holding that the warrantless search was justified under the Fourth Amendment’s automobile exception to the warrant requirement.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court held the automobile exception to the warrant requirement does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein.

“This case arises at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.”

Justice Sotomayor delivered the opinion of the Court. First, the court discussed the automobile exception to the warrant requirement. Basically, under the exception, a vehicle may be searched without a warrant when the evidence or contraband may possibly be removed from the scene due to the mobility of a vehicle and it is not practical to secure a warrant without jeopardizing the potential evidence.  For instance, the automobile exception allows an officer to make a warrantless traffic stop and search a truck of a vehicle when gun parts were observed in plain view on the front seat of the vehicle.

Here, the Supreme Court emphasized that the automobile exception rationales applied only to automobiles and not to houses, and therefore supported their different treatment as a constitutional matter. “When these justifications are present, officers may search an automobile without a warrant so long as they have probable cause,” said the Court.

The court also discussed “curtilage.” In short, curtilage includes the area immediately surrounding a dwelling, and it counts as part of the home for many legal purposes, including searches. “Curtilage—the area immediately surrounding and associated with the home—is considered part of the home itself for Fourth Amendment purposes,” said the Court. Thus, when an officer physically intrudes on the curtilage to gather evidence, a Fourth Amendment search has occurred and is presumptively unreasonable absent a warrant.

Consequently, the court reasoned that the part of the driveway where Collins’ motorcycle was parked and subsequently searched is curtilage:

“When Officer Rhodes searched the motorcycle, it was parked inside a partially enclosed top portion of the driveway that abuts the house. Just like the front porch, side garden, or area outside the front window, that enclosure constitutes an area adjacent to the home and to which the activity of home life extends.” Jardines, 569 U. S., at 6, 7.”

The Court also reasoned because the scope of the automobile exception extends no further than the automobile itself, it did not justify Officer Rhodes’ invasion of the curtilage. “Nothing in this Court’s case law suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant,” said the Court. “Such an expansion would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and untether the exception from the justifications underlying it.”

This Court also reasoned that just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception. “To allow otherwise would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application,” said the Court.

Furthermore, the Court disagreed with Virginia’s proposed bright line rule for an automobile exception that would not permit warrantless entry only of the house itself or another fixed structure, e.g., a garage, inside the curtilage. “This Court has long been clear that curtilage is afforded constitutional protection, and creating a carve-out for certain types of curtilage seems more likely to create confusion than does uniform application of the Court’s doctrine,” said the Court. “Virginia’s rule also rests on a mistaken premise, for the ability to observe inside curtilage from a lawful vantage point is not the same as the right to enter curtilage without a warrant to search for information not otherwise accessible.”

Finally, the Court held that Virginia’s rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage.

With that, the Supreme Court reversed and remanded Collins’ conviction for receiving stolen property.

Justice Roberts, Kennedy, Thomas, Ginsberg, Breyer, Kagan and Gorsuch joined the majority opinion.  Justice Thomas also filed a concurring opinion. Justice Alito filed a dissenting opinion.

Please contact my office if you, a friend or family member’s house is searched by law enforcement officers who don’t have a search warrant. It’s quite possible to suppress evidence based on an unlawful search and get any criminal charges dismissed.

Search of Rental Cars

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In Byrd v. United States, the United States Supreme Court held that while a car thief does not have right to privacy in a stolen car no matter the degree of possession and control, the driver of a rental car can challenge a warrantless search of the vehicle even if the driver is not listed as an authorized driver on the rental agreement.

BACKGROUND FACTS

Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility. Her signed agreement warned that permitting an unauthorized driver to drive the car would violate the agreement. Reed listed no additional drivers on the form, but she gave the keys to Byrd upon leaving the building. He stored personal belongings in the rental car’s trunk and then left alone for Pittsburgh, Pennsylvania.

Pennsylvania State Troopers stopped Byrd for a traffic infraction. They learned that the car was rented, that Byrd was not listed as an authorized driver, and that Byrd had prior drug and weapons convictions. Byrd also stated he had a marijuana cigarette in the car.

The troopers proceeded to search the car, discovering body armor and 49 bricks of heroin in the trunk. The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute in violation of 21 U. S. C. §841(a)(1) and possession of body armor by a prohibited person in violation of 18 U. S. C. §931(a)(1). The District Court denied Byrd’s motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car.

COURT’S ANALYSIS AND CONCLUSIONS

In a unanimous decision favoring Byrd, Justice Anthony Kennedy wrote, “The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.”

The Court added that there can be numerous reasons why a driver unlisted on a rental contract may need to drive the rental car, and that the government had not shown that whether the simple breach of the rental contract would affect the expectation of privacy.

Also, the Court reasoned that one of the main rights attaching to property is the right to exclude others. Also, one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude. “This general property-based concept guides resolution of the instant case,” said Justice Kennedy:

“The Government’s contention that drivers who are not listed on rental agreements always lack an expectation of privacy in the car rests on too restrictive a view of the Fourth Amendment’s protections. But Byrd’s proposal that a rental car’s sole occupant always has an expectation of privacy based on mere possession and control would, without qualification, include thieves or others who have no reasonable expectation of privacy.”

The Court rejected the Government’s arguments that an unauthorized driver has no privacy interest in the vehicle. Byrd, in contrast, was the rental car’s driver and sole occupant. His situation is similar to the defendant in Jones v. United States, who had a reasonable expectation of privacy in his friend’s apartment because he had complete dominion and control over the apartment and could exclude others from it:

“The expectation of privacy that comes from lawful possession and control and the attendant right to exclude should not differ depending on whether a car is rented or owned by someone other than the person currently possessing it, much as it did not seem to matter whether the defendant’s friend in Jones owned or leased the apartment he permitted the defendant to use in his absence.”

The Court also rejected the Government’s argument that Byrd had no basis for claiming an expectation of privacy in the rental car because his driving of that car was so serious a breach of Reed’s rental agreement that the rental company would have voided the contract once he took the wheel. “But the contract says only that the violation may result in coverage, not the agreement, being void and the renter’s being fully responsible for any loss or damage,” said Justice Kennedy. “And the Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car.”

Kennedy’s decision concluded that there remained two issues which the Supreme Court remanded back to the lower courts: (1) whether Officer Long had probable cause to search the car in the first place, and (2) whether Byrd intentionally used a third party as a straw man in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime.

With that, the Supreme Court vacated Byrd’s conviction and remanded back to the Third Circuit Court of Appeals.

Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined. Justice Alito also filed a concurring opinion.