Significant Federal Criminal Procedure Decisions 2010 Utah Sheriffs Association Conference Ken Wallentine

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1 Significant Federal Criminal Procedure Decisions 2010 Utah Sheriffs Association Conference Ken Wallentine The impact of Arizona v. Gant and the Good Faith exception Good faith exception applied to evidence subject to suppression under Arizona v. Gant The Tenth Circuit Court of Appeals created a significant new rule in the area of the good-faith exception to the exclusionary rule. The new case will have a substantial impact on prosecutions based on searches of vehicles incident to arrest where the arrest preceded the Supreme Court s ruling in Arizona v. Gant. The court s decision significantly tempers the ill effects of applying the Gant ruling retroactively to pending criminal cases. An officer saw McCane driving his car and straddling the lane divider lanes. The officer stopped McCane, suspecting that he was impaired. McCane told the officer that his driver license was suspended. After confirming the license suspension, the officer arrested McCane, handcuffed him and placed him in the back seat of the patrol car. The officer also directed a passenger to get out of the car. The officer searched the car incident to the arrest and found a loaded handgun in the driver side door pocket. Upon seeing the gun, McCane said, I forgot that was even there. McCane was charged with being a felon in possession of a handgun. The trial court refused to suppress the gun. While the case was on appeal to the Tenth Circuit Court of Appeals, the Supreme Court issued its decision in Arizona v. Gant. Gant held that a vehicle search is not valid as incident to a lawful arrest when a defendant is stopped for a traffic violation and handcuffed in the back of the patrol car at the time of the search. Under the rule of Gant, the gun found next to McCane s seat should have been suppressed. However, the court chose to extend the good faith exception to the exclusionary rule, uphold the admission of the evidence, and sustain McCane s conviction. The court acknowledged that the facts in McCane s case were indistinguishable from Gant. However, the court stated, we agree with the government that it would be proper for this court to apply the good-faith exception to a search justified under the settled case law of a United States Court of Appeals, but later rendered unconstitutional by a Supreme Court decision. In applying the good faith exception, the court relied on another recent Supreme Court decision, Herring v. United States, ---U.S. ----, 129 S.Ct. 695 (2009). In Herring, the Supreme Court held that evidence obtained in a search incident to arrest based on a warrant later found to be recalled should not be suppressed. The Supreme Court stated that, evidence should be suppressed only if it can be said that the law

2 enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment. In this case, the officer was relying on legal principles taught for decades following the decision in New York v. Belton, 453 U.S. 454 (1981). The Supreme Court has repeatedly articulated deterrence of police misconduct as the prime purpose of the exclusionary rule. Here the deterrence principle could have no application because the officer was relying on well-established law. United States v. McCane, 573 F.3d 1037 (10th Cir. 2009). Gant didn't bar search of gym bag dropped during arrest Shakir was wanted on a Pennsylvania arrest warrant for bank robbery. An officer learned that Shakir might be staying at the Trump Casino in Atlantic City. When the officer went to the casino, he learned that Shakir had been gambling there and was expected to check into the hotel that afternoon. Shortly after that, the officer spotted Shakir. He approached him, grabbed him and arrested Shakir. Shakir dropped a nylon gym bag that he was holding. The officer frisked Shakir and attempted to handcuff him. Shakir explained to the officer that three pairs of handcuffs were normally required to secure him. Once Shakir was secured by two backup officers, the officer searched the gym bag and found a large amount of cash. Some of the bills were traced to another bank robbery (not the robbery that lead to the arrest warrant). Shakir was convicted of the second robbery. He appealed, claiming that the search of the bag and seizure of the cash was not part of a valid search incident to arrest. Shakir argued that he was compliant and secured at the time of the search. Thus, Shakir argued that the officer safety and evidence destruction rationales articulated in Chimel v. California, 395 U.S. 752 (1969), did not justify the search incident to the arrest. For many years, officers understood that a search incident to arrest could be conducted even after a person was temporarily secured in handcuffs as long as the search was reasonably contemporaneous with the arrest. This approach found support in New York v. Belton, 453 U.S. 454 (1981). In Arizona v. Gant, 129 S.Ct (2009), the Supreme Court retreated from the Belton holding and overturned a search after Rodney Gant had been handcuffed and placed in a patrol car near the vehicle that Gant had been driving at the time of his arrest. The Court said that the search could not be justified under the officer safety and evidence preservation rationales of Chimel because Gant was no longer a threat and could no longer access the car. Another important factor is that Gant was initially arrested for a driver license violation and it was unlikely that there would be evidence of that violation found in the car which he was driving. The Supreme Court stated, we hold that Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle. If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.

3 The Third Circuit appellate court disagreed with Shakir s argument that Gant prevented a lawful search of his gym bag and the seizure of the incriminating cash that it contained. Although it would have been more difficult for Shakir to open the bag and retrieve a weapon while handcuffed, we do not regard this possibility as remote enough to render unconstitutional the search incident to arrest. The court did acknowledge that Gant had signaled a retreat from Belton. The Gant opinion should be understood to have focused on the question of whether Gant could get to his car or not at the time of the search. The Third Circuit continued: We do read Gant as refocusing our attention on a suspect's ability (or inability) to access weapons or destroy evidence at the time a search incident to arrest is conducted. The court must consider whether the suspect was effectively secured at the time of the search. Even though the suspect s ability to access weapons and evidence is an important factor, that does not automatically preclude a lawful search incident to an arrest of items found on or near an arrested person. Accordingly, we understand Gant to stand for the proposition that police cannot search a location or item when there is no reasonable possibility that the suspect might access it.... We hold that a search is permissible incident to a suspect's arrest when, under all the circumstances, there remains a reasonable possibility that the arrestee could access a weapon or destructible evidence in the container or area being searched. Although this standard requires something more than the mere theoretical possibility that a suspect might access a weapon or evidence, it remains a lenient standard. The court acknowledged that handcuffs have temporary and limited utility to secure suspects. The opinion cited reports of officers being killed by handcuffed suspects and said that handcuffs are not failsafe. Because the bag was located at Shakir s feet, even though he was handcuffed at the time of the search, there was a reasonable possibility that he could reach into the bag for a weapon. Thus, the court upheld the search and conviction. United States v. Shakir, --- F.3d ----, 2010 WL (3rd Cir. 2010). Search of key chain vial held by suspect not permitted incident to arrest The Court of Appeals for the Ninth Circuit considered the search incident to arrest doctrine in light of Arizona v. Gant in a case where an officer found methamphetamine in a key chain vial held by the arrestee. Though the court also noted that the search incident to arrest exception to the Fourth Amendment warrant clause is justified by officer safety concerns and evidence preservation, just as in the Third Circuit case, the Ninth Circuit reached an opposite result, upholding suppression of the evidence. An officer saw Maddox drive into an intersection, stop in the intersection and then drive in reverse gear. Maddox nearly hit another driver, then made a three-point turn and sped away. The officer stopped Maddox. Maddox ignored the officer s direction to get out of the truck. The truck had a temporary registration that appeared to be phony and Maddox offered a suspicious story about buying the truck from a friend some weeks prior. When Maddox would not get out of the truck, the officer took Maddox s cell

4 phone and key chain and tossed them onto the truck seat. He arrested Maddox, handcuffed him and placed him in the patrol car. The officer then went back to the truck, found the methamphetamine inside a vial attached to the key chain and a handgun and more methamphetamine inside a computer case. The prosecution asked the court to consider the search of the vial as a search of an item taken from an arrestee at the time of arrest and not a search of the vehicle. Maddox was holding the key chain vial just before arrest and was holding it when the officer took the keys in an apparent step to prevent Maddox from driving away. The court held that subsequent events namely handcuffing Maddox and placing Maddox in the back of the patrol car rendered the search unreasonable. The Ninth Circuit s aggressive interpretation of Arizona v. Gant presents the very real danger that officers may be tempted to leave arrestees unsecured in order to legally justify a search incident to arrest. The court said as much, mere temporal or spatial proximity of the search to the arrest does not justify a search; some threat or exigency must be present to justify the delay. The very brief majority opinion is notable for the fact that it fails to discuss or even mention the Supreme Court decision in Arizona v. Gant. The majority relies on a pre-gant Ninth Circuit case, United States v. Turner, 926 F.2d 883 (9th Cir. 1990). That case asks two questions to assess a lawful search incident to arrest: First, was the item within the arrestee's immediate control at the moment of arrest, and second, did any events following the arrest but preceding the search make the search unreasonable? Even under that analysis, one could easily conclude that the search was lawful. Maddox was holding the methamphetamine just before the time of arrest. However, the search became unreasonable in the majority s view when Maddox was secured and moved to the patrol car. United States v. Maddox, --- F.3d ----, 2010 WL (9th Cir. 2010). Court limits Gant; upholds admission of weapons from locked briefcase An officer stopped Vinton for traffic violations (speeding and window tint). When the officer approached Vinton s car, he saw a large knife in a sheath on the back seat, easily within Vinton s reach. The officer knew that there had been a stabbing murder in the area in the prior 24 hours. The officer took the knife and placed it out of Vinton s reach. The officer asked Vinton whether there were other weapons in the car. The officer wrote a citation and told Vinton that he intended to check the car for other weapons. He asked Vinton whether there were other weapons in the car. Vinton initially denied that there were other weapons, but then said not that I know of. The officer handcuffed Vinton, told him that he was not under arrest and conducted a protective search of the car. In Michigan v. Long, 463 U.S (1983), the Supreme Court authorized vehicle frisks and ruled that an officer may search a vehicle's passenger compartment for weapons during a traffic stop if the officer has a reasonable suspicion that the driver is dangerous and may reach weapons inside the car. The officer found a butterfly knife, two cans of a chemical weapon and a locked briefcase. Vinton denied that the briefcase was his and said that he didn t know why it was in his car. The officer pried the briefcase open and found ecstasy, another knife, brass knuckles and a

5 loaded gun with three additional magazines. Vinton asked the court to suppress the evidence of the search, seeking to benefit from Arizona v. Gant. Vinton argued that he was handcuffed at the time of the search and therefore the officer could not conduct a search incident to arrest. The appellate court rejected Vinton s claim. The court stated that, Gant held police may search a vehicle incident to the arrest of an occupant only in two circumstances: (1) when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search (the safety rationale); or (2) when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle (the evidentiary rationale). In Vinton s case, the evidentiary rationale justified the search because finding other weapons would show that Vinton had a specific intent to possess an illegal weapon (the butterfly knife). The Gant decision did not hold that handcuffing or securing a person defeats the evidentiary rationale for a search incident to arrest. Gant was a decision involving an arrest for a driver license violation and there was little, if any, likelihood that evidence supporting the driver license offense would be found in a search of the car that Gant was driving. In Vinton, the appellate court strongly suggested that Gant s holding is narrowly limited to crimes where little or no likelihood of finding evidence of the crime under investigation. Because the chemical weapons and knife strongly suggested that there would be other weapons in the car, the search was justified and the evidence was properly admitted against Vinton. United States v. Vinton, 594 F.3d 14 (D.C. Cir. 2010). Gant decision can't bar gun seen in plain view of passenger compartment In Arizona v. Gant, the Supreme Court held that search of a vehicle incident to a recent occupant's arrest is justified only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. In the months following the Gant decision, courts have wrestled with its parameters. One of the main questions has been whether to apply the Gant holding to cases already charged at the time of the decision. An officer stopped Rumley for a taillight violation. Rumley told the officer that he had a suspended license. When the officer learned that Rumley had two prior convictions for driving on a suspended license, he arrested him and place him in the patrol car. The officer went back to Rumley s truck to conduct a search incident to arrest. Before the officer began the search, he ordered the passenger to step out. The Supreme Court, in Maryland v. Wilson, 519 U.S. 408 (1997), held that an officer conducting a lawful traffic stop may, as a safety measure, order any passenger to exit the vehicle as a matter of course. As the passenger moved his leg to get out, the officer saw a handgun. The officer seized the gun and searched the truck. The officer gave a Miranda warning to Rumley. Rumley admitted that it was his gun and that he put it on the floor when the officer stopped him. Rumley was charged with being a felon in possession of a firearm. Rumley claimed that the Gant decision rendered the search of his truck

6 unconstitutional. Unlike the facts in Gant, where there was only one occupant, once Rumley was arrested and secured, the truck was still occupied by someone who could easily access the weapon to hide it or use it. The court of appeals held that the search should be evaluated by objectively assessing the reasonableness of the officer s actions, and not the subjective reason that the officer had for searching the passenger compartment. The court then considered the officer s order to the passenger to get out of the car. Nothing in Gant, which limits permissible searches incident to arrest, undermines the bright-line rule established in Wilson allowing officers to order the vehicle occupants out, even if there is no particular basis to believe that the occupants present a danger to the officer. Once the passenger moved his leg, the gun was in plain view. Under the plain-view doctrine, an officer may, without a warrant, seize incriminating evidence when (1) the officer is lawfully in a place from which the object may be plainly viewed; (2) the officer has a lawful right of access to the object itself; and (3) the object's incriminating character is immediately apparent. Horton v. California, 496 U.S. 128 (1990). Thus, the officer s seizure of the gun in plain view was proper, and it preceded any search incident to arrest. United States v. Rumley, 588 F.3d 202 (4th Cir. 2009). The use of GPS trackers Court limits GPS tracker use The United States Court of Appeals for the District of Columbia struck down the warrantless placement of a GPS tracking device on a car. This case is causing some confusion in law enforcement circles because some officers are misinformed about the decision's limited precedential authority. Though the recent decision creates a split in federal appellate courts and sets up the issue for a possible decision by the United States Supreme Court, the court's binding authority is limited to the District of Columbia. Thus, the decision is not binding on the majority of U.S. law enforcement officers. Maynard worked for Jones as the manager of Jones' Club Levels nightclub in Washington, D.C. A task force investigated Jones and Maynard in 2004 and 2005 for drug trafficking and they were indicted in October Jones and Maynard challenged officers' investigative use of operated wiretaps, evidence seized during a traffic stop and evidence gleaned from a global positioning satellite (GPS) tracker placed on Jones' car for one month. Officers combined the GPS tracker data with cell phone records to create a picture of a traffic pattern that the prosecution claimed was strongly corroborative of drug trafficking. The threshold question is whether Jones held a reasonable privacy interest in his vehicular movements, thus triggering Fourth Amendment protections. If there is no reasonable expectation of privacy in movements on public streets, then there is no search under Fourth Amendment principles. In United States v. Knotts, 460 U.S. 276 (1983), the Supreme Court held that police monitoring of a bumper beeper did not

7 violate the Fourth Amendment because it did not provide officers with any information that could not have been gathered by physical surveillance of Knotts' vehicle as he transported precursor chemicals from Minneapolis to a drug lab in a Wisconsin cabin. In Knotts, Justice Rhenquist observed that "nothing in the Fourth Amendment prohibited the police from augmenting the sensory facilities bestowed upon them at birth with such enhancement as science and technology afforded them in this case." Following the principle articulated in Knotts, three other federal appellate courts have held that the use of a GPS tracking device to monitor an individual's movements in his vehicle over a prolonged period is not a search. Most recently, the Ninth Circuit ruled in United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), that officers violated no expectation of privacy in attaching a GPS device to a car parked in a publicly accessible location and monitoring the movement. Three years ago, in United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), the Seventh Circuit held that there was no search when a GPS device was surreptitiously placed on the undercarriage, did not draw power from the car and did not impair the car's operation or utility. The Eighth Circuit also stated the use of a GPS device to track a truck used by a drug trafficking operation was not a search in United States v. Marquez, 605 F.3d 604 (2010), when the device was installed for a reasonable period of time and affixed when the vehicle was in a public location. Some courts impose a requirement for a warrant for monitoring based upon their respective state constitutions. People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009); State v. Campbell, 759 P.2d 1040 (Or. 1988). If the device is installed under the hood or within the car itself, or if officers must otherwise violate a legitimate expectation of privacy, a warrant to install is required. Federal agents are also restricted by federal rules of criminal procedure addressing tracker placement and monitoring. A few states (including Utah) have statutory limitations on tracker use. The D.C. Circuit disagreed with its sister courts and other state and federal courts on the issue of whether placing and monitoring a GPS tracking device constitutes a search. The court reasoned that Jones' movements were followed for an extensive period (28 days), 24 hours a day, giving a complete picture of his movements. Judge Ginsburg wrote: "A single trip to a gynecologist's office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another's travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups -- and not just one such fact about a person, but all such facts." The disagreement between several federal appellate courts and some state appellate courts presents the type of criminal procedure case that the Supreme Court is likely to consider and decide. It is likely that prosecutors are even now considering petitioning the Supreme Court to review this case. Questions about the reasonable expectation of privacy in electronic data that reveals movement portend broader application than vehicle GPS tracking. Federal law requires cell phone manufacturers to include a GPS chip to facilitate enhanced 911 emergency services. In a novel application of cell phone GPS tracking, one prosecutor used a bank robbery suspect's phone records to

8 show that the suspect was in close proximity to other identified suspects during the robbery. That case is now pending before the Third Circuit appellate court. Other courts are considering whether a warrant is required to download history from a GPS system in a seized vehicle. Though the D.C. Circuit stands in the minority on this issue, recent search and seizure decisions from the United States Supreme Court, coupled with the appointment of a justice with a relatively unknown history, make any prediction of the outcome uncertain at best. United States v. Maynard, --- F.3d ----, 2010 WL (D.C. Cir. 2010). Placement of GPS tracker and monitoring for several months not a search Drug task force officers in Iowa learned that a white pickup truck was being used to carry marijuana. Officers placed a GPS tracking device on the bumper and monitored the tracker for several months, discovering that the truck was traveling to and from Denver. On seven occasions, the officers changed the batteries on the tracker while the truck was parked in a public place. Several search warrants were executed, including a warrant for Marquez's home in Iowa. Officers seized hundreds of pounds of marijuana, and seized guns and scales at Marquez's home. Marquez claimed that the placement of the GPS tracker on his truck was a search. The court of appeals first held that Marquez did not have legal standing to challenge the search because he was not the owner or driver, but only an occasional passenger in the truck. However, the court also held that no Fourth Amendment violation occurred in the tracker placement. The tracker installation was non-invasive and the installation and all battery changes happened in public places. The tracker only revealed movement that could be observed by an officer watching or following the truck. The court noted that the tracker installation "merely allowed the police to reduce the cost of lawful surveillance." Officers should be aware that some states may have more restrictive statutes or case law. For example, in People v. Weaver, 909 N.E.2d 1195 (N.Y. 2009), the New York Court of Appeals imposed greater limits under the state constitution. United States v. Marquez, 605 F.3d 604 (8th Cir. 2010). GPS tracker installation and monitoring permitted An alert officer noticed Pineda-Moreno and other men at a Home Depot buying a large amount of the type of fertilizer used in marijuana plantations. The officer learned that Pineda-Morales also had recently bought large amounts of groceries, irrigation equipment and deer repellant (California boasts happy cows in cheese ads; does California also have happy deer?) at several stores. Investigators attached a GPS tracking device to the underside of Pineda-Morales Jeep on seven occasions over the course of four months. On two of the times that a new GPS device was attached, the Jeep was parked in Pineda-Morales driveway, next to his home. There was no fence around the property, nor was there any no trespassing sign. On the other times, the Jeep was parked in a public parking lot or on the public street. The installations were done in the early morning hours under cover of darkness. The tracking information

9 helped lead to a marijuana grow. When the GPS device signaled that the Jeep was leaving the grow site, officers stopped the Jeep and smelled fresh marijuana. Pineda-Morales consented to a search of his home and officers found a large amount of harvested marijuana. Pineda-Morales claimed that the installation of the GPS devices violated the Fourth Amendment because the officers came onto the curtilage of his property. He also claimed that the continuous monitoring of the Jeep s movements violated his Fourth Amendment privacy interest. Courts routinely hold that there is no expectation of privacy in the exterior of a car, and therefore no expectation of privacy that protects against installation of a tracking device on the exterior of a car. Pineda-Moreno claimed that the intrusion on the curtilage itself created a violation. The court disagreed, holding that the driveway was a semi-private area, lacking barriers or enclosures that would hide it from street view. Because Pineda-Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of his home. The fact that officers installed the GPS devices during the night was of no consequence. The Supreme Court has held that there is no expectation of privacy in the movement of a vehicle on roadways. United States v. Karo, 468 U.S. 705 (1984); United States v. Knotts, 460 U.S. 276 (1983). As long as the officer installs the tracking device from a place where the officer has a right to be, no warrant is required. Pineda-Morales asked the court to apply a more recent Supreme Court case, Kyllo v. United States, 533 U.S. 27 (2001), in which the Court held that police cannot use a thermal imager to detect the activities inside a private dwelling. Pineda-Morales argued that Kyllo bans sensory-enhancing technology to track private movements. The Court of Appeals disagreed, holding that tracking movement of a car on public roadways is not a search in any sense under the Fourth Amendment. If the device is installed under the hood or within the car itself, or if officers must otherwise violate a legitimate expectation of privacy, a warrant to install is required. United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010). Cell phone site location information does not require warrant or probable cause A recent decision by the Third Circuit Court of Appeals produced a mixed result for the government s effort to obtain cell site location information from a cellular service provider without a showing of probable cause and a search warrant. Federal prosecutors working on a drug investigation in Pittsburg requested a court order under the Stored Communications Act, 18 U.S.C. 2703(d), to compel an unnamed cell phone provider to produce a customer s historical cellular tower data, also known as cell site location information or CSLI. The prosecutors argued that the appropriate legal standard was a showing of reasonable grounds, a standard lower than probable cause. The judge denied the request and issued a lengthy opinion ruling that statutory language and legislative history suggested that a search warrant was required to obtain such historical information. The Third Circuit appellate court reversed, although the

10 court s holding did not go as far as the government wanted. In United States v. Karo, 468 U.S. 705 (1984) and United States v. Knotts, 460 U.S. 276 (1983), the Supreme Court held that there is no probable cause and warrant requirement for data obtained by a tracking device moving in public areas and on public roadways, but a warrant is required to track movement when the tracking device moves into a residence or other private area. The CSLI information shows the position of the cell phone within an area of a few hundred feet. The government argued that the CSLI information was not tracking data because of the inaccuracy of the data and the wide range of location revealed by the data. The government also argued that the law does not require a warrant for non-content data, that is data that does not reveal the content of an electronic communication. The court sided with the government on the question of probable cause and a warrant, with an important exception. We therefore cannot accept the [lower court]'s conclusion that CSLI by definition should be considered information from a tracking device that, for that reason, requires probable cause for its production.... We hold that CSLI from cell phone calls is obtainable under a 2703(d) order and that such an order does not require the traditional probable cause determination. Instead, the standard is governed by the text of 2703(d), i.e., specific and articulable facts showing 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. However, the appellate court also held that the term may in Section 2703(d) and the legislative history of the Stored Communications Act supports the conclusion that trial judges have some discretion to require a showing probable cause and a search warrant in some cases. The court did not offer much guidance on what factors should guide the trial court s determination of whether to require probable cause. This is an issue that is likely to be revisited soon in other courts. In re Application of United States of America for Order Directing Provider of Electronic Communication Service to Disclose Records to Government, --- F.3d ----, 2010 WL (3rd Cir. 2010). Extraneous questions during traffic stops Officer entitled to ask for passengers' names and DOBs An officer stopped a car in which Fernandez was a passenger. As the officer approached, he could see that none of the passengers were wearing seatbelts as required by Massachusetts law. The officer asked for Fernandez s name and DOB so that he could issue a citation to him for the seatbelt violation. The officer then learned that Fernandez had an active arrest warrant. A search incident to arrest produced marijuana, cocaine and a gun. Fernandez asked that the evidence be suppressed, arguing that the questioning about his name and DOB was improper under the application of Massachusetts seatbelt law.

11 The federal appellate court declined to interpret state law, instead holding that the Fourth Amendment permits an officer to inquire about passengers names and other information, so long as the inquiry does not appreciably extend the duration of the traffic stop. The court recognized that the recent Supreme Court decision in Arizona v. Johnson, 129 S.Ct. 781 (U.S. 2009), held that a traffic detention must be limited in duration and scope relating to the reason for the detention. The court considered the many decisions that have relied on Muehler v. Mena, 544 U.S. 93 (2005) and Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004), to hold that asking for a passenger's identification and running warrants check does not automatically unreasonably expand the scope of the passenger's detention incident to the stop of the vehicle. In Arizona v. Johnson, the Supreme Court held that, an officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. Even before the recent Supreme Court decisions, this was established law in the Tenth Circuit Court of Appeals. See United States v. Rice, 483 F.3d 1079 (10th Cir. 2007) ( Because passengers present a risk to officer safety equal to the risk presented by the driver, an officer may ask for identification from passengers and run background checks on them as well. ) Because the warrant check for Fernandez took no longer than the warrant check for the driver, the scope of the stop was not improperly expanded and the discovery of the arrest warrant leading to the arrest was proper. Therefore, the search incident to arrest was valid. United States v. Fernandez, 600 F.3d 56 (1st Cir. 2010). Court discusses relaxed limits on unrelated questioning during a traffic detention You just got to love tax day. April 15 was just not Everett s day. In the evening, Everett kindly helped soon to be ex-wife move into a new house. She told Everett that he had to take away some of his belongings, including his shotgun. By the time he had finished, it was approximately Being tax day, Everett needed to get to the tax-preparation company office, before closing time-which he believed to be 9:00 p.m.-in order to seek help filing for an extension to file his tax return. Not surprisingly, he was speeding and a detective assigned to a crime suppression unit saw him. The detective followed Everett into a parking lot and spoke with him. His day plummeting to the bottom of the toilet, Everett admitted that his driver license was suspended. The detective smelled the odor of alcohol on Everett s breath. She asked Everett whether he had any alcohol. Everett told her that he had a Big Gulp-sized beer and a shotgun. He also volunteered that he knew that he should not have the shotgun because he was a convicted felon. You have to ask yourself when you last had a defendant or client who was so refreshingly candid. Everett was charged with possession of a dangerous weapon by a convicted felon. Everett sought suppression of the evidence and the statements obtained during the traffic stop. Everett claimed, and the detective conceded, that the traffic detention was a pretext to investigate other criminal activity. Pretextual traffic stops were expressly approved by the U.S. Supreme Court in Whren v. United States, 517 U.S. 806 (1996).

12 In Whren v. United States, the United States Supreme Court ruled that no Fourth Amendment violation occurs for a traffic stop based on a minor violation when the violation is a pretext rather than the actual motivation for the stop. Following Muehler v. Mena, 544 U.S. 93 (2005), most courts have allowed questioning unrelated to the initial purpose of the traffic detention. After Whren, courts applied the reasonableness test of the Fourth Amendment to determine whether the particular stop was appropriate. Courts consider whether the duration and scope of the stop were justified by reasonable suspicion for the stop. Last year, in Arizona v. Johnson, the Supreme Court held that an officer's inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. The Court s holding raised the question of what it means to measurably extend the duration of the stop. In this case, the court declined to construe Muehler and Johnson as imposing a categorical ban on suspicionless unrelated questioning that may minimally prolong a traffic stop. Thus, there is no bright line rule prohibiting a brief extension to a traffic stop to ask a few questions unrelated to the initial justification for the stop. Muehler and Johnson make clear that an officer may ask unrelated questions to his heart's content, provided he does so during the supposedly dead time while he or another officer is completing a task related to the traffic violation. A police officer intent on asking extraneous questions could... delegate the standard traffic-stop routine to a backup officer, leaving himself free to conduct unrelated questioning all the while, or simply by learning to write and ask questions at the same time. The court did note that in many cases where other courts reached different results, the questioning occurred after the officer had completed all of the business associated with the initial purpose of the stop. This strongly suggests that officers consider using the free time or dead time during the stop. The ultimate question that courts should ask is whether the totality of the circumstances surrounding the stop indicates that the duration of the stop as a whole including any prolongation due to suspicionless unrelated questioning was reasonable. The court noted that it would examine the content of the officer s extraneous questioning, as well as the length of the questioning, to rule on the reasonableness of the detention. The court suggested that questions about travel plans, travel history, officer safety issues and dangerous weapons will generally be permitted. In this case, the detective was asking about weapons, which the court found to be is reasonably related to the legitimate and weighty consideration of officer safety. Thus, almost two years to the day after tax day, the court of appeals upheld Everett s conviction. United States v. Everett, 601 F.3d 484 (6th Cir. 2010).

13 Developments in Miranda rules Supreme Court limits Edwards reinterrogation rule Shatzer was serving time for child sexual abuse. An officer was investigating a report that Shatzer had forced his 3 year-old son to fellate him and had masturbated next to the child (before his incarceration). The officer attempted to interrogate Shatzer and Shatzer invoked his right to have counsel present. Two and one-half years later, a social worker provided the police with additional details. A different officer visited Shatzer, who was now incarcerated in a different prison. Shatzer agreed to waive his Miranda rights and he made incriminating statements. Shatzer was charged with additional child sexual abuse felonies. He asked the court to suppress his statements, arguing that the second interrogation was unlawful because he had invoked his right to have counsel present during the first interrogation. The landmark criminal procedure decision in Miranda v. Arizona, 384 U.S. 436 (1966), held that custodial interrogation must stop once the suspect invokes the right to have counsel present during interrogation or the right to remain silent. In Edwards v. Arizona, 451 U.S. 477 (1981), the Court ruled that a suspect who invokes the right to have counsel present during interrogation may not be approached by officers attempting renewed interrogation. The Court stayed true to the Edwards rule in Arizona v. Roberson, 486 U.S. 675, (1988), and Minnick v. Mississippi, 498 U.S. 146 (1990), holding that the Edwards rule applies even if interrogation is attempted by a different officer about a different crime, and even if the suspect has been consulted with legal counsel in the interim. However, many appellate courts have imposed a break in custody exception to the Edwards rule. The Supreme Court hinted, in McNeil v. Wisconsin, 501 U.S. 171 (1991), that it might recognize such an exception. In Maryland v. Shatzer, the Court created a break-in-custody rule and imposed their own notion of a bright line requirement of a two week cooling-off period. Several members of the Court have expressed doubts over the policy reasons behind rigid application of the Edwards rule. Justice Scalia wrote for the Court: When a suspect has been released from his pretrial custody and has returned to his normal life for some time before the later attempted interrogation, there is little reason to think that his change of heart regarding interrogation without counsel has been coerced. He has no longer been isolated. He has likely been able to seek advice from an attorney, family members, and friends. And he knows from his earlier experience that he need only demand counsel to bring the interrogation to a halt; and that investigative custody does not last indefinitely. In these circumstances, it is far-fetched to think that a police officer's asking the suspect whether he would like to waive his Miranda rights will any more wear down the accused than did the first such request at the original attempted interrogation. Justice Scalia noted that the Edwards rule carries the cost of excluding some truly voluntary confessions from trial evidence and deters officers from attempting to obtain voluntary confessions.

14 The Court went on to approve the break-in-custody exception to the Miranda/Edwards rule: The protections offered by Miranda, which we have deemed sufficient to ensure that the police respect the suspect's desire to have an attorney present the first time police interrogate him, adequately ensure that result when a suspect who initially requested counsel is re-interrogated after a break in custody that is of sufficient duration to dissipate its coercive effects. Neither the attorneys for Shatzer or Maryland had argued for a specific cooling-off time frame. After all, two and one-half years had passed in this case. The Court chose a 14-day period. The 14-day limitation meets Shatzer's concern that a break-in-custody rule lends itself to police abuse. He envisions that once a suspect invokes his Miranda right to counsel, the police will release the suspect briefly (to end the Edwards presumption) and then promptly bring him back into custody for re-interrogation. But once the suspect has been out of custody long enough (14 days) to eliminate its coercive effect, there will be nothing to gain by such gamesmanship -- nothing, that is, except the entirely appropriate gain of being able to interrogate a suspect who has made a valid waiver of his Miranda rights. Thus, the bright-line rule for officers resulting from this case is that when a suspect invokes his right to counsel during custodial interrogation, and the suspect is then released, an officer may attempt renewed interrogation after a 14-day break and after a fresh set of Miranda warnings. In every case involving Edwards, the courts must determine whether the suspect was in custody when he requested counsel and when he later made the statements he seeks to suppress. Now, in cases where there is an alleged break in custody, they simply have to repeat the inquiry for the time between the initial invocation and reinterrogation. In most cases that determination will be easy. And when it is determined that the defendant pleading Edwards has been out of custody for two weeks before the contested interrogation, the court is spared the fact-intensive inquiry into whether he ever, anywhere, asserted his Miranda right to counsel. Maryland v. Shatzer, 130 S.Ct (U.S. 2010). Miranda warnings need not be given in a particular form Officers looking for Powell in connection with a robbery went to his girlfriend s apartment and saw Powell coming out of a bedroom. They arrested Powell and searched the bedroom, finding a gun. At the police station, officers read the following warning statement: "You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview." Powell agreed to talk to the officers. He told the officers that he bought the gun for $150 from a street source because he needed protection. The Florida Supreme Court held that the warning was inadequate, because Powell was not clearly informed of his right to have counsel present during questioning. The United States Supreme Court reversed the Florida court. Relying on an earlier decision, Duckworth v. Eagan, 492 U.S. 195 (1989), in which the Supreme Court held

15 that there was no magic language required to give a Miranda warning, the Court held that, in combination, the two warnings reasonably conveyed Powell's right to have an attorney present, not only at the outset of interrogation, but at all times. The Court applied the reasonable person standard. A reasonable suspect in a custodial setting who has just been read his rights, we believe, would not come to the counterintuitive conclusion that he is obligated, or allowed, to hop in and out of the holding area to seek his attorney's advice. The landmark Miranda decision required that officers administer the following warnings prior to custodial interrogation: (1) the person has a right to remain silent, (2) that anything the person says can be used against him in a court of law, (3) that the person has the right to the presence of an attorney, and (4) that if the person cannot afford an attorney one will be appointed for him prior to any questioning, if he desires. In Powell, the Court stated: In determining whether police officers adequately conveyed the four warnings, we have said, reviewing courts are not required to examine the works employed as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda. Florida v. Powell, 130 S.Ct (U.S. 2010). Suspect must affirmatively invoke the right to remain silent Thompkins was questioned about a fatal shooting. After advising Thompkins of his Miranda rights, officers interrogated him. Thompkins did not state at any time that he wanted to rely on his right to remain silent, nor that he did not want to talk to the police, nor that he wanted an attorney. Officers spoke to Thompkins for nearly three hours in a virtual monologue. At the end of the interrogation, the officer assumed a a spiritual tac." They asked Thompkins whether he believed in God, whether he prayed to God, and whether he asked God to forgive him for shooting the victim. He answered "yes" to each of these. These answers were introduced at his trial. Thompkins was found guilty by a jury and sentenced to life imprisonment without the possibility of parole. Thompkins appealed, asserting that he had invoked and not waived his right to remain silent. The Supreme Court held that Thompkins' silence during the interrogation did not invoke his right to remain silent and that he had waived his right to remain silent when he knowingly and voluntarily made a statement to police. "In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police." Berghuis v. Thompkins, 130 S.Ct (U.S. 2010).