Search and Seizure: A Constitutional Update. Pending Supreme Court Cases 1/28/2018. Carpenter v. United States

Size: px

Start display at page:

Download "Search and Seizure: A Constitutional Update. Pending Supreme Court Cases 1/28/2018. Carpenter v. United States"

Buddy Crawford
5 years ago
Views:

1 Search and Seizure: A Constitutional Update Benton Martin, Federal Defender Office, Eastern District of Michigan Pending Supreme Court Cases Carpenter v. United States Issue: Does warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days violate the Fourth Amendment? 6th Cir: No. Argued: 11/29/17 1

2 Images from The Federalist Society s YouTube series SCOTUSBrief Carpenter v. United States Police arrest some people involved in robberies in Detroit and get Carpenter s phone number Records reveal he s in the vicinity of the robberies, and on that basis, he s convicted Police obtain records from cell-phone company via pen register order Carpenter v. United States How far does the third party doctrine go? Can SCOTUS draw a line other than always get a warrant? Collins v. Virginia Issue: Does 4 th Amendment automobile exception permit police, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house? Va.S.Ct: Yes. Argued: 1/9/18 2

3 Collins v. Virginia Officers sees speeding motorist who eludes them Officers see what they think is the motorcycle under a tarp in curtilage of Collins s residence Police take off the tarp, run VIN number, and discover motorcycle is stolen No dispute officers had probable cause. Question is whether they needed a warrant. Collins v. Virginia Which trumps the automobile exception or the curtilage rule? Could courts distinguish the curtilage from open garages or carports? Byrd v. United States Issue: Does driver have reasonable expectation of privacy in a rental car when he has the renter's permission to drive it but isn t on rental agreement? 3d Cir: No. Argued: 1/9/18 3

4 Byrd v. United States Byrd v. United States Did it give the renter standing to challenge the search because he admitted the good in the trunk were his? Does it matter that a renter violates the contract? Should contracts affect Fourth Amendment protections (i.e. reasonable expectations of privacy)? United States v. Microsoft Issue: Must a US provider comply with warrant by disclosing s within that provider's control, even if they are stored abroad? 2d Cir.: No. Argument: 2/27/18 Deals with statutory interpretation of 18 USC 2703, but CA2 analysis ties its interpretation to the domestic restrictions on the Fourth Amendment warrant requirement. 4

suppression of wiretap evidence if order is

s territorial jurisdiction? 10th Cir.: No.

(before any crime is committed) violates the

Argument ordered 1/12/18 MI Supreme Court

Frederick (2017): Permission to knock and talk

Amendment for officers to trespass and knock

5 Dahda v. United States Issue: Does Title III require suppression of wiretap evidence if order is facially insufficient because it exceeds judge s territorial jurisdiction? 10th Cir.: No. Argument: 2/21/18 10 th Circuit decided wiretap authorization was facially insufficient but that no suppression is permitted. Johnson v. Vanderkooi Issue: Whether Grand Rapids police policy of collecting photographs and fingerprints during investigatory stops (before any crime is committed) violates the Fourth Amendment. Argument ordered 1/12/18 MI Supreme Court People v. Frederick (2017): Permission to knock and talk is time sensitive it violated the 4 th Amendment for officers to trespass and knock in predawn hours (4am & 5:30am). 299 Mich People v. Franklin (2017): A trial court may hold an evidentiary to examine the veracity of allegations in a warrant affidavit even if Franks would not require a hearing. 500 Mich

Evolving Issues to Watch Border Searches

6 Evolving Issues to Watch Border Searches of Electronics Argument for stricter rules comes from Riley v. California, 134 S. Ct (2014) saw a 60% increase in searches of digital devices Government argues border = 100 miles inland, basically all of Michigan DHS guidelines require reasonable suspicion to carry out advanced search on electronic devices Advocates argue the policy permits unconstitutional searches For more, read EFF s article, at Probation/Parole Searches US v. Lara (9th Cir. 2016): Probationer s acceptance of search term doesn t permit warrantless search of his cell phone after Riley. 815 F3d 605. US v. Deon Bell (E.D.Mich. 2017): Officers not allowed to search whole house when Bell did not have a search condition in his probation order. Cr. No US v. Fisher-Bembery (E.D.Mich. 2017): Gov t can t use defendant s shotgun found in plain view when officers came to his house with an arrest warrant for his parole-absconder cousin. 6

Woodard (MCOA 2017): Person consented to

unlawful stop allows seizure of evidence

demand your identification, and check it

Carolina (2015): State s satellite-based

7 Blood Draws Birchfield v. N.Dakota (2016): Police may conduct warrantless breath tests incident to drunk-driving arrests, but not warrantless blood collection. 136 S.Ct People v. Woodard (MCOA 2017): Person consented to blood draw, but then withdrew consent. Court held that, once blood is lawfully obtained, there is no 4 th Amendment problem with testing WL Pre-existing warrants Utah v. Strieff (2016): Officer s discovery of valid, pre-existing warrant during unlawful stop allows seizure of evidence incident to arrest. 136 S.Ct J. Sotomayor s dissent: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants even if you are doing nothing wrong. And it is no secret that people of color are disproportionate victims of this type of scrutiny. People v. Maggit (MCOA 2017): If order is reversed: invalid seizure, then discovery of contraband, then discovery of valid arrest warrant then suppression is warranted. 319 Mich.App Electronic Monitoring Grady v. N.Carolina (2015): State s satellite-based monitoring of sex-offenders constitutes a search subject to 4 th Amendment scrutiny. 135 S.Ct People v. Simon (MCOA 2016): Monitoring of defendants convicted of CSC I against person 13 to 15 is reasonable WL MI Supreme Court denied appeal in October

Inventory Searches Generally permissible if underlying

with standard police procedure. But Ohio v.

2018): Officers retrieval and search of purse from car

inventory search or search incident to arrest.

Wood (MCOA 2017): At traffic stop for speeding, trooper

No PC for car search because no reason to suspect

No inventory search either because no probable cause to

stop, absent reasonable suspicion, to conduct dog-sniff.

Following Rodriguez, several MCOA panels have held

Malone, 2016 WL 5853288 (MCOA 2016) People v.

8 Inventory Searches Generally permissible if underlying arrest is valid and search is conducted in accordance with standard police procedure. But Ohio v. Banks-Harvey (Ohio S.Ct. 2018): Officers retrieval and search of purse from car after arrest on preexisting warrant was not a valid inventory search or search incident to arrest Ohio-201. And People v. Wood (MCOA 2017): At traffic stop for speeding, trooper sees nitrous oxide containers. No PC for car search because no reason to suspect intoxication. No inventory search either because no probable cause to arrest driver WL Extended Traffic Stops Rodriguez v. United States (2015): Police may not prolong traffic stop, absent reasonable suspicion, to conduct dog-sniff. 135 S.Ct Following Rodriguez, several MCOA panels have held police unlawfully prolonged stops: People v. Malone, 2016 WL (MCOA 2016) People v. Kocevar, 2017 WL (MCOA 2017) People v. Kavanaugh, 320 Mich.App. 293 (MCOA 2017) Home Searches Based on Activity Outside the Home Peffer v. Stephens (6 th Cir. 2018): Police suspect man of sending threatening computer-generated letters = PC to search his home for computers. US v. Brown (6 th Cir. 2016): Search warrant failed to show nexus between home of known drug dealer and illegal acts because it never said he used home to sell or store drugs 8

Home Searches Based on Activity Outside the Home US v. Tagg (pending 6 th Cir.): E.D. Mich.

with CP but not that defendant actually viewed CP. New Fed. R. Crim.

anonymizing software. United States v. Martin (E.D. Mich.

2016 WL 4493675. Community Caretaking exception Michigan v.

they get a warrant). 130 S.Ct. 546. US v. Lewis (6 th Cir.

door to wake her sleeping boyfriend. See drugs. 869 F.3d 460. Grise v. Allen (6 th Cir.

cell-site simulators including: DC COA Md. COA S.D.N.Y. (But see 7 th Cir.

9 Home Searches Based on Activity Outside the Home US v. Tagg (pending 6 th Cir.): E.D. Mich. suppressed evidence from home search for CP when warrant alleged remote access to website with CP but not that defendant actually viewed CP. New Fed. R. Crim. P 41 amendment permits extra-jurisdictional searches of unknown computer users running anonymizing software. United States v. Martin (E.D. Mich. 2016): State judge cannot issue Rule 41(b)(4) tracking order if USMJ unavailable WL Community Caretaking exception Michigan v. Fisher (2009): Police okay to enter home on seeing man cut his hand (despite his demand they get a warrant). 130 S.Ct US v. Lewis (6 th Cir. 2017): Applied when police escorted drunk woman at Wal-Mart to her car, and open passenger door to wake her sleeping boyfriend. See drugs. 869 F.3d 460. Grise v. Allen (6 th Cir. 2017): Applied when police saw elderly woman fall inside her house and entered home with paramedics WL Stingrays At least three courts have suppressed evidence obtained by warrantless use of cell-site simulators including: DC COA Md. COA S.D.N.Y. (But see 7 th Cir., 842 F3d 540) Differs from CSLI because 3d party doctrine doesn t apply Non-disclosure agreements make discovery difficult New DOJ Guidance (2015): Must get warrant (not just pen-register order) unless exigent or other (undefined) exceptional circumstances 9

10 Stingrays ACLU, Stingray Tracking Devices: Who's Got Them? Questions? My me for copies of specific cases mentioned. The Sixth Circuit Blog: 10

By Jane Lynch and Jared Wagner

By Jane Lynch and Jared Wagner Can police obtain cell-site location information without a warrant? - The crossroads of the Fourth Amendment, privacy, and technology; addressing whether a new test is required to determine the constitutionality