Supreme Court October 2012 Term begins Monday

The annual fall term of the high court traditionally begins with the cry of “oyez, oyez, oyez”  on the first Monday of October.  Several cases previously highlighted in Xiphos are on the Supreme Court docket.  There are two drug detector dog cases that will be argued on Halloween.

In Florida v. Jardines, the Court will consider the question of whether a warrant is necessary when officers take a drug detector dog to the front door of a house.  Detector dog sniffs are traditionally not considered to be “searches” under the Fourth Amendment because they reveal only the odor of contraband.  Crashing against this logic is the Court view of thermal imaging and GPS/radio beepers that may reveal activities or contraband within a home.

Another Florida case, Florida v. Harris, presents the question of establishing a detector dog’s reliability prior to a finding that the dog’s sniff established probable cause to search.  The Florida court required training and certification records, records of field deployment reliability, evidence of the handler’s training and experience and other evidence relating to reliability that is known to the dog’s handler.  Compare this to established law in many courts that the prosecution need only show that the dog is trained and certified at the time of the sniff.   For example, see United States v. Ludwig, 10 F.3d 1523 (10th Cir. 2011).

Just this past week, the Court agreed to consider whether the evanescent nature of alcohol in the blood justifies a warrantless blood draw in impaired driving cases.  There is a split among many state and federal courts on this question.  In  Missouri v. McNeely, the Supreme Court will weigh in.  Caution: some states that have disallowed warrantless blood draws based on the Fourth Amendment exigency evidence doctrine have done so under their state constitutions.  The decision in Missouri v. McNeely may have no impact in those states.

 

TASER deployment converts detention into arrest

 

An officer received a tip from a reliable informant that a man was selling drugs out of a black Honda at a particular corner.  Several officers wearing badges and guns saw Reid standing near a black Honda, parked at the reported location.  They approached Reid to speak with him.  When he saw the officers, Reid bladed away from the officers as if to conceal his side.  He turned and ran as one officer called out to him.

As he ran, the officers could see that one pocket was swinging as if it contained a gun or other heavy object. An officer fired a TASER at Reid.  The two probes struck Reid in the back and officers were able to detain him.  One officer asked Reid whether he was holding anything that was illegal.  Reid said that he had a gun in his pocket.

Reid claimed that he was under arrest at the time that he made the statement about the gun.  He asked that the court suppress his statement because he had not been given a Miranda warning and waived his rights.  The appellate court agreed that Reid was under arrest and ordered suppression.

In two similar cases, United States v. Russ, 772 F.Supp.2d 880 (N.D. Ohio) and United States v. Colon, 654 F.Supp.2d 236 (E.D. Pa. 2011), federal judges reached the opposite conclusion.  In the Colon case, the suspect experienced three energy cycles during the effort to detain him.  Many other cases hold that tackling or knocking down a suspect does not necessarily convert a detention into an arrest.  Officers must take care to report the reasons that force was necessary to detain the suspect and to explain each distinct application of force.

The court agreed that there was reasonable suspicion to detain and to frisk Reid.  Unfortunately, the appellate court did not consider the question of whether the gun would have inevitably discovered.  The court disallowed that application of the public safety exception to the Miranda rule.  The court was divided, four to three, and the dissent would have found the use of the TASER to detain Reid a reasonable step.  This  case reminds officers to carefully report all factors justifying each distinct use of force.  Remember, too, the possibility of injury from falls by elevated or fleeing suspects.  Reid v. State, 2012 WL 3639058 (Md. 2012).

No expectation of privacy in cell phone location data

Melvin Skinner was known to federal agents by his drug courier code name, “Big Foot.”  Agents learned that Skinner and his co-conspirator were using a particular cell phone to communicate.  The agents obtained a court order to require the cell phone service provider to release subscriber identification, cell site location information and real time GPS location information through pinging the phone.

Agents located Skinner at a truck stop in Texas.  They approached Skinner and asked for consent to search his motor home.  When he refused, a drug detector dog sniffed the exterior and gave a positive final response to the odor of controlled substances.  A search yielded 1,100 pounds of marijuana and two guns.

Relying on the 2012 Supreme Court case, United States v. Jones (see Xiphos archives), Skinner argued that tracking his location constituted a search.  Skinner also claimed that the cell location tracking was a search because there was no physical surveillance and the agents did not know his true identity.  Thus, he claimed, the officers were not merely using technology to do that which they might have otherwise accomplished through physical surveillance.

The court of appeals held that there was no search because Skinner had no expectation of privacy in his cell phone GPS location data.  Thus, no warrant was required.  The court distinguished this case from the Jones decision by noting that there was no “trespassory interference” with Skinner’s vehicle because no tracker was attached to it. United States v. Skinner, 690 F.3d 772 (6th Cir. 2012).  For a more detailed discussion of cell site location information court rulings, see Wallentine, Cell Site Location Evidence: A New Frontier in Cyber-Investigation, 2011 (2) AELE Mo. L. J. 401.

 

Tips of child pornography on computers don’t grow stale

 

Officers learned that Ronald Seiver downloaded a pornographic video of a 13 year-old girl, then uploaded still images extracted from the video to a child pornography sharing site. However, the officers learned that the download/upload activity happened seven months prior to the tip.  The officers obtained a warrant, searched Seiver’s computer and located child pornography.  Seiver was convicted and sentenced to 35 years in federal prison.

Seiver claimed that the tip was stale and the affidavit for the warrant lacked probable cause.  The court of appeals shifted focus from earlier cases that addressed staleness in the context of the likelihood for child pornography collectors to hang on to illicit images.  Instead, the court joined a few other courta that examine current computer technology and the likely ability for computer forensic examiners to be able to retrieve deleted files up to the point that storage space utilization forces overwriting of the deleted images.

The Seiver case is a must-read for officers and prosecutors considering the freshness versus staleness of tips relating to evidence on a computer.  The court’s decision lists a number of resources and cites supports from other courts using analogous reasoning.  United States v. Seiver, 2012 WL 3686387 (7th Cir. 2012).

 

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