warrantless search – Techdirt (original) (raw)

Second Circuit: Yeah, You Can’t Arrest Someone For Asserting Their Fourth Amendment Rights

from the they're-rights,-not-privileges dept

As the country most famous for enshrining civil rights, it sure seems like we spend a lot of time and money reminding the government of this fact. And it shouldn’t need to be reminded! These rights were defined by the government and considered inherent to American life. They weren’t granted. They were recognized as natural rights and it was the government that was required to respect them.

And yet there are still tons of civil rights litigation, most of it aimed at law enforcement officers who, for some reason, have far more trouble respecting rights than other government entities and employees.

Worse, cops tend to feel anyone invoking their rights must be doing something wrong. Invoking rights tends to increase shows of force, rather than negate them. Rarely does an invocation of rights stop law enforcement from doing what it wanted to do, requiring the victim of rights violations to spend their own money to file a lawsuit. In other cases, it means being subjected to the full force of a criminal trial (a place where juries and even some judges consider the accused to be guilty long before any evidence has been presented) and hoping an evidence suppression attempt is successful.

That’s why rights are violated regularly. The victims of rights violations carry the entire cost of the violation. Prosecutors may lose some evidence. Cops may occasionally see civil cases reach the jury trial stage. But in both cases, the public pays the literal price with their tax dollars for the government’s unwillingness to recognize, much less respect, their civil rights.

This case [PDF] being handled on appeal by the Second Circuit doesn’t exactly end the lawsuit. It does allow it to continue. Most importantly, despite all the procedural maneuvering, it overturns the lower court’s inexplicable conclusion that it’s ok to arrest someone just because they asserted their rights.

This one started with a concerning call placed to law enforcement, in which a person claimed the defendant had been sexually abusing his newborn daughter. (The footnote points out that the defendant’s sister-in-law made the call after seeing diaper rash on the child. The footnote says the sister-in-law “apparently suffered from a mental illness.” In any event, it was determined the defendant had never abused the child.)

Officer Pagiel Clark (along with other officers) responded to the 911 call. They were met by Larry Thompson who refused to allow them to search the home. At this point, the officers had nothing more than the 911 call to work with. They definitely did not have a warrant.

Rather than seek a warrant to search the residence for evidence of sexual abuse, Officer Clark decided to do this:

[Thompson] was arrested for obstructing governmental administration (“OGA”), in violation of New York Penal Law §195.05, and resisting arrest, in violation of New York Penal Law §205.30. The next day, Clark swore out a criminal complaint making factual allegations about the events that occurred on January 15, 2014, and formally charging Thompson with OGA and resisting arrest. As a result, Thompson was detained for two days until his arraignment, at which time he was released on his own recognizance. After arraignment, Thompson made two additional court appearances before his criminal case was dismissed.

Demanding to see a warrant is not a crime. It definitely isn’t “obstruction,” because if it was, it would render the Fourth Amendment irrelevant. Unfortunately, things didn’t go all that well for Thompson at the district court level. The court found in favor of the government (and officer Pagiel Clark, who was named as the sole law enforcement officer defendant) on certain claims. Others went to trial. The jury sided with the government and the remaining malicious prosecution claim was decided in favor of Officer Clark by the court instead of being handed to the jury.

That single claim was appealed by Thompson. It went all the way to the Supreme Court, where the nation’s top court found that Thompson had sufficiently demonstrated a “favorable termination” of his criminal case — a requirement needed to pursue malicious prosecution charges.

It went down to the district court again. This time the court sided with Thompson. And this time, the government appealed, bringing back to the Second Circuit for a second time. The government should have taken notice of the chain of judicial events. If it had, it possibly wouldn’t have wasted everyone’s time.

The nation’s top court revived the malicious prosecution claim and the lower court upheld it. The Second Circuit follows the Supreme Court’s lead. You simply cannot arrest someone for asserting their rights. That’s pretty malicious when it comes to prosecution. Or as close as is needed to put this allegation in front of a jury.

A reasonable jury could find that Clark lacked probable cause to charge Thompson with OGA because Thompson’s actions – opening his door, standing in his doorway, speaking peacefully with officers, and verbally invoking his Fourth Amendment rights – did not constitute interference. The interference “element of the statute is satisfied when an individual intrudes himself into, or gets in the way of, an ongoing police activity.”

Conversing with cops but refusing to consent to a search is not “interference” or “obstruction.” If the officers had a warrant in hand, things would have been quite different. But they didn’t, so this allegation is revived (again) and sustained.

Nor does the allegation that Thompson got a bit shout-y during this unwanted interaction change anything about the correct application of New York’s obstruction statute.

A reasonable jury could also conclude that Thompson did not exhibit “inappropriate and disruptive conduct at the scene.” The parties dispute whether Thompson yelled or raised his voice during the conversation, and who initiated the physical contact between Thompson and the officers. And Thompson testified that as soon as the officers grabbed him, he submitted, telling them “[y]ou have it” to indicate that he was not attempting to resist. Viewing the evidence in the light most favorable to Thompson, as we are required to do, we conclude that a reasonable jury could have found that Thompson did not interfere with the officers.

Finally, the court says Officer Clark is not entitled to qualified immunity on the malicious prosecution charge. He might have been, had he chosen to raise it at any time prior to this second visit to the Appeals Court. But since he didn’t, the argument is forfeited and the officer will join the plaintiff in facing a jury for a second time.

It’s a good decision but it should never have gotten to this point. The lower court blew the call in the first instance. Because it did, the man whose rights were clearly violated by this arrest has had to take his case all the way up to the top court in the land. And now he’s going to take a third trip to the district court to get this final charge sorted out.

Invoking rights isn’t a criminal act. It certainly isn’t obstruction, at least not in this case. If the cops really wanted to search Thompson’s place, they could have sought a warrant to do that. That they didn’t makes it clear they really had nothing more on their side than a show of force they hoped would coerce Thompson into complying. When he didn’t, Officer Clark decided to go the most vindictive route and have him arrested for “contempt of cop.” Hopefully, someone in law enforcement learns something from this experience, starting with Officer Pagiel Clark.

Filed Under: 2nd circuit, 4th amendment, civil rights, lawsuit, new york, pagiel clark, warrantless search

Alabama Couple Awarded $1 Million Over Warrantless Raid Of Their House That Saw Cops Walk Off With All Their Cash

from the violations-so-blatant-even-a-court-couldn't-excuse-them dept

Very rarely do you see anyone prevail in court when any form of forfeiture is in play. The forfeiture litigation deck is firmly stacked in favor of the government, which rarely needs anything approaching actual proof to walk off with someone’s property.

It’s even more rare to see someone awarded damages in a civil lawsuit against law enforcement officers. In most cases, qualified immunity terminates the lawsuit. If qualified immunity is not awarded, agencies and governments are often swift to offer plaintiffs no-fault settlements that allow the accused to walk away from the lawsuit without having to admit any wrongdoing, much less pay out of their own pockets for their misdeeds.

This case contains both rarities. Not only does it involve regular people securing some sort of justice for their violated rights, but the underlying set of rights violations included officers walking out the home they’d raided without a warrant with all the valuables they could get their hands on, including $4,000 in cash.

Here’s how the raid went down, as recounted by C.J. Ciaramella for Reason back in 2019.

On January 31, 2018, a Randolph County sheriff’s deputy showed up at the home of Greg and Teresa Almond in Woodland, Alabama, to serve Greg court papers in a civil matter.

Greg, 50, wasn’t home, but his wife Teresa told the deputy he would be back before long. About two hours later, after Greg had returned home, he heard loud knocking on the door. He remembers shouting “hang on” and walking toward the door when it suddenly flew open. The next thing he knew he was on the floor—ears ringing, dazed, wondering if he’d just been shot.

Several deputies from the Randolph County Sheriff’s Department had kicked in his front door and thrown a flashbang grenade at his feet. The officers handcuffed and detained the couple at gunpoint, then started searching their house. The deputy from earlier had reportedly smelled marijuana, and so a county drug task force was descending on the Almonds’ home, looking for illegal drugs.

The supposed odor of marijuana eventually led the deputies to a small marijuana plant, a few scattered leaves, and a single prescription pill that was not located in its bottle. The home invasion also led deputies to other stuff they wanted, but had no legitimate reason to take. They took the cash they found in the house, a wedding ring, some guns, a coin collection, and a couple guitars.

To the Sheriff’s Office, the $4,000 probably seemed insignificant. But it was pretty much all they had. They were in the middle of refinancing an agricultural loan to ensure their chicken farm remained solvent. Thanks to being forced to spend most of two days in jail, they missed their refinancing deadline. That ultimately resulted in the couple losing their house. They were residing in an insulated shed by the time the court took up their lawsuit.

More than four years after the raid, the couple has finally secured some form of justice. The $1 million in damages awarded by the jury will likely be appealed by the sheriff’s department, but for now, that’s what a jury has said the couple is entitled to.

The judge overseeing the case issued an order [PDF] along with the directed verdict, stating that the “rarity” of a directed verdict in a civil rights lawsuit necessitates some explanation.

The explanation reveals just how much of a blatant violation of rights this raid was. Deputy Kevin Walker had no excuse for his actions.

During trial, Judge Amy Newsome testified that she never issued a telephonic warrant to Defendant Walker, or to the drug task force, on January 31, 2018, for a search of the Plaintiffs’ home. She also testified that she did not tell Walker that he had a warrant. In addition, Defendant Walker testified that Judge Newsome did not tell him that he had a telephonic search warrant, although she did tell him that he probably had enough for a warrant.

He also acknowledged that the requirements for a telephonic warrant were not satisfied, that he did not have a search warrant, and that it was a warrantless search. Given this undisputed testimony, even when considered in the light most favorable to Defendant Walker, the search of the Plaintiffs’ home was without a warrant, even a defective one, and therefore violated the Fourth Amendment. No reasonable jury could have concluded otherwise as there was no question of fact on this issue.

Yeah. That’s inexcusable. And yet, Walker had an excuse: good faith. He attempted to avail himself of the good faith warrant exception. But, as the judge points out, good faith relies on someone believing a valid warrant has actually been issued, not just thinking they could probably obtain one at some point in the future. On top of that, the good faith exception invoked by the deputy only applies in criminal trials, not civil trials. Even if it did apply in this content, Walker would still lose. (Emphasis in the original.)

But even if the good faith exception to the exclusionary rule can apply in the civil context, the good faith exception still would not apply in the circumstances of this case. First, per Judge Newsome and Defendant Walker, there was no warrant, telephonic or written, and thus there was nothing upon which Walker could rely in good faith. In other words, because Defendant Walker knew that he did not have a warrant at the time of the incident, the good faith exception does not apply.

And the cases Walker cites are inapplicable to the facts here: Taylor, Moorehead, Henderson, and Ganzer all involved situations where written warrants were issued, not situations where a warrant was never issued in the first place. And secondly, as a matter of law, given the undisputed facts concerning the non-existence of a warrant, it was objectively unreasonable for an experienced law enforcement officer to believe that he could search an occupied home when no warrant existed, when no judge told him that he had a warrant, when he was merely told that he had enough for a warrant, and when none of the formalities or requirements associated with a telephonic or written warrant were followed.

As the court notes in this order, it fully expects Walker to raise the other form of good faith in a future motion, indicating that while a jury has already said the couple is owed $1 million in damages, the court has yet to issue an order blessing that payout. Hopefully, if nothing else, this utter failure to salvage a blatantly unconstitutional search will urge Walker’s employers to cut a check, rather than continue to embarrass itself in court.

Filed Under: 4th amendment, alabama, civil asset forfeiture, good faith, greg almond, kevin walker, qualified immunity, randolph county, teresa almond, warrantless search, warrants

FBI Director Admits Agency Rarely Has Probable Cause When It Performs Backdoor Searches Of NSA Collections

from the just-laying-it-right-out-there-like-it-doesn't-mean-anything dept

After years of continuous, unrepentant abuse of surveillance powers, the FBI is facing the real possibility of seeing Section 702 curtailed, if not scuttled entirely.

Section 702 allows the NSA to gather foreign communications in bulk. The FBI benefits from this collection by being allowed to perform “backdoor” searches of NSA collections to obtain communications originating from US citizens and residents.

There are rules to follow, of course. But the FBI has shown little interest in adhering to these rules, just as much as the NSA has shown little interest in curtailing the amount of US persons’ communications “incidentally” collected by its dragnet.

In recent months, several Republicans have argued against a clean re-authorization of Section 702 powers, citing the FBI’s backdoor snooping on Trump administration figures, as well as certain Republicans who have outlasted Trump’s four-year stint as the supposed leader of the free world.

On top of this opposition, there’s something more bipartisan. Every time surveillance powers are up for renewal, Senator Ron Wyden and other privacy focused legislators have offered up comprehensive surveillance reform packages.

The latest effort by Wyden would create a warrant requirement for these backdoor searches by the FBI. Senate leaders tried to dodge this by slapping a clean re-auth rider on a “must pass” budget bill, but legislators found a way to keep the government funded for a little bit longer while they continue to argue over who gets what and how much of it.

Faced with the real possibility of seeing this surveillance authority heavily altered, if not discarded completely, the FBI is making its case for a year-end approval of status quo continuation. But it’s making some really bad arguments.

FBI director Chris Wray took time out his busy “everything is going dark” schedule to speak to House representatives on behalf of his agency and its desire to continue to abuse this access to NSA collections. Unfortunately for Wray, the statements he made inadvertently exposed the lack of legal basis for FBI access to communications collected by the NSA.

First though, he pretended he cared whether or not Americans were subject to unconstitutional spying, as Jessica Hardcastle reports for The Register.

He did address the FBI’s earlier abuses of Section 702 to spy on protesters, campaign donors, and even elected officials.

“To be sure, no one more deeply shares Members’ concerns regarding past FBI compliance violations related to FISA, including the rules for querying Section 702 collection using US person identifiers, than I do,” Wray said.

That can’t possibly be true. If it were, Wray’s concern would surpass the concern expressed by any number of rights and privacy groups, as well as legislators who have worked for years to curtail this abuse, only to see their reform efforts shot down by the lawmakers who care even less about the FBI’s violations than the FBI itself.

If this statement were even remotely true, Wray wouldn’t be trying to talk legislators into dumping Wyden’s reform bill, much less advocating for continued warrantless access to US persons’ communications.

Wray’s argument for continued warrantless access was somehow even worse than his pretending to care about surveillance abuses. Somehow, the FBI director managed to blurt out what everyone was already thinking: that the FBI needs this backdoor access because it almost never has the probable cause to support the search warrant normally needed to access the content of US persons’ communications.

“A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources, the submission and review of a lengthy legal filing, and the passage of significant time — which, in the world of rapidly evolving threats, the government often does not have,” Wray said.

Holy shit. He just flat-out admitted it: a majority of FBI searches of US persons’ communications via Section 702 are unsupported by probable cause. That alone should be enough to, if nothing else, forbid the FBI from using this back door. This is on top of the years of continuous abuse of these surveillance powers by the FBI — something so egregious even the FISA court has considered shutting down the FBI’s access. And that’s with the FISA court’s unwavering ability to both forgive and forget the FBI’s constant trespasses.

If Wray is to be believed — and there’s no reason not to, since he’s arguing in self-interest — probable cause either doesn’t exist or takes too long. This is the same guy who, moments earlier, claimed he was the most concerned about FBI abuse of this surveillance power. Yet, moments later, he’s telling legislators his agency is incapable of complying with the Fourth Amendment, or simply just unwilling to do so.

While I’m less than thrilled certain Republicans have decided Section 702 is bad only when it hurts them, I’m happy to see this power face the real possibility of meaningful reform, if not actual extinction. It’s been a long time coming. Unfortunately, both the FBI and the current administration are united in their desire to keep this executive authority intact. Both Wray and the Biden administration call the warrant requirement a “red line.” So, even if the House decides it needs to go (for mostly political reasons) and/or Wyden’s reform bill lands on the President’s desk, odds are the FBI will get its wish: warrantless access to domestic communications for the foreseeable future.

Filed Under: 4th amendment, backdoor searches, chris wray, fbi, section 702, warrantless search, warrants

WV Supreme Court: Omnipresent Concern Like ‘Officer Safety’ Can’t Be Used To Excuse Constitutional Violations

from the time-to-find-some-new-catch-phrases dept

The things said by law enforcement when trying to keep evidence from being tossed all sound the same. There are only a handful of acceptable excuses for performing warrantless searches and, man, do they get used so frequently we can probably all repeat them in our sleep.

“Exigent circumstances.” This one means things were happening so fast no one had time to respect the Constitution. “Plain view” is a big one. It means a cop saw something in an area they had access to and used that to justify a broader warrantless search of someone’s premises. “Odor of marijuana.” This means a cop pretended to smell something in order to perform a warrantless search or entry. This trick can also be performed by drug dogs, who will smell whatever cops want them to smell. “Good faith” is probably the worst one. It just means a cop violated the Constitution but was too stupid to realize it at the time. In other words, it’s the excuse offered by a child: “I didn’t do it on purpose!” Then there’s “officer safety,” which usually means nothing more than people exist where cops are doing cop things.

Back to “plain view” because that’s only part of the problem here. In this case, brought to us by FourthAmendment.com, plain view resulted in criminal charges. The real problem is the steps taken by officers to turn something that would never have been in “plain view” into something plainly viewed.

It’s a felon-in-possession case [PDF]. Officers responded to a call (the record doesn’t say much about this but that it appeared to involve people other than the person who was ultimately arrested and charged) and showed up at the residence of Charles Ward’s mother. Ward was outside the home. Officers approached him and asked him for ID. He told them his ID was downstairs in the t-shirt print shop he ran out of his mother’s basement, which had its own entrance.

Detective Roger Queen followed Ward inside the basement entrance door and stood inside the interior door to the print shop. Detective Queen testified he needed to step into the residence uninvited because… cop reasons.

Until this point, Det. Queen had not asked permission to enter because he was there to watch Mr. Ward retrieve his identification and “[f]or officer safety.” Det. Queen indicated he acted with general caution, but that he did not have a specific reason to fear for his safety. Mr. Ward was compliant and did not appear to be impaired, but he did seem “agitated.”

When asked for more detail on this “officer safety” concern by the trial court, Det. Queen was similarly vague:

We don’t know who we’re dealing with on the road. Once we show up at a place, it could be a cordial conversation or it could turn ugly, so you’re always on guard every time you get out of the vehicle. And when you’re talking to people, you want to keep them in front of you. You want to keep their hands available, because you don’t know what’s going to happen next.

None of this is stupid. It’s all very reasonable. But it’s not all that enlightening. And it certainly doesn’t explain why someone concerned about safety would use this non-specific motivation to move further inside someone’s home without so much as a hint of reasonable suspicion, much less probable cause.

Once further inside the residence, the detective saw a gun. He asked Ward about it (indirectly) and finally got an admission that Ward was a felon. (He did not, however, receive an admission that the gun belonged to Ward.) That was the sole evidence submitted by the government to secure a felon-in-possession conviction against Ward, who then moved to challenge this minimal amount of evidence.

The trial court denied the motion to suppress, finding vague claims about officer safety enough to bypass any constitutional concerns raised by Ward.

The West Virginia Supreme Court is far less willing to play along with this vague, cliched assertion. First, it points out that nothing in Det. Queen’s statements or testimony point to anything specifically concerning about this particular interaction with this particular person that would have made him so “concerned” he felt the need to intrude on Ward’s private residence.

While Det. Queen testified that he entered the premises for officer safety because he was “there for a [neighbor] disturbance[,]” he testified that he perceived nospecific or particular threat to his safety. In fact, Det. Queen testified only to a general concern that officers “don’t know what’s going to happen next[,]” which led him to follow Mr. Ward inside the premises. He had limited information about the neighbors’ dispute, and was unaware of the exact reason law enforcement was called to the scene. Det. Queen believed that the neighbor, not Mr. Ward, had called for assistance, but he was unaware of what the neighbor had said to the other officer or whether Mr. Ward had made any specific threats. He stated that Mr. Ward was compliant and did not appear to be impaired during their encounter. There was no testimony or evidence presented that Det. Queen had a particular suspicion that a firearm was present, or that a firearm posed a threat to himself or the other officer present.

Given this dearth of specificity, the state Supreme Court refuses to bless Detective Queen’s actions.

Det. Queen made only a general allegation that Mr. Ward was agitated without elaborating on any particular or specific behavior. He provided no testimony that Mr. Ward was yelling, threatening, or acting erratically. In fact, Det. Queen stated that Mr. Ward was compliant with law enforcement. We do not find this general “agitation” to be a specific and particularized fact supporting a warrantless search and seizure for the purpose of officer safety. Consequently, we find that the officer safety exception does not apply.

“Officer safety” is always a concern. But that doesn’t mean it can always be used to excuse warrantless intrusions. The detective needed specifics about his concerns. He didn’t have them. All he had was the vague assertion that sometimes police work is dangerous. And that excuse is so bad the court doesn’t even have to take a pass at the second prong of its constitutional analysis. This was bad from the start and the lower court blew it by giving Detective Queen a pass on his warrantless search.

The evidence (what there was of it) is suppressed. Considering the sole evidence was the gun the cop saw after violating Ward’s rights, this is going to result in a quick dismissal of charges. And while I appreciate the admonishments delivered by the state’s top court, the courts are the reason cops act like this in the first place. Why not just trot out “officer safety” as an excuse for rights violations? After all, the lower court said it was a perfectly good excuse. That this decision has been reversed is good, but cops wouldn’t do this sort of thing if more trial courts called them out on this bullshit during criminal cases. Until more courts are willing to do that, this sort of thing will remain distressingly common.

Filed Under: 4th amendment, charles ward, officer safety, roger queen, warrantless search, west virginia

One Way To Lose Judicial Immunity: Perform Impromptu Warrantless Searches Of People’s Houses

from the what-even-the-fuck dept

Judicial immunity is one of a handful of absolute immunities. Like the name suggests, absolute immunity is a pretty tough shield to pierce. Every so often, someone will do something terrible enough to be stripped of immunity they assumed was absolute. But those cases are extremely rare.

Rarer still is hearing of a judge being stripped of immunity. Judges are granted considerable leeway in how they handle cases. And most judges don’t come anywhere near the extremely generous guardrails that limit their judicial conduct.

Wherever the confining walls are on judicial conduct are, this West Virginia family court judge not only found them, but blew the doors off them as well. (via Volokh Conspiracy).

Here’s how you lose your judicial immunity, as recounted [PDF] by the federal judge handling family court judge Louise Goldston’s case.

On September 18, 2018, Mr. Gibson appeared before Family Court Judge Louise Goldston in his divorce action. Judge Goldston granted the parties’ divorce and adopted their property settlement agreement.

On September 26, 2019, Kyle Lusk, the attorney for Mr. Gibson’s soon-to-be-ex-wife, filed a Petition for Contempt, alleging defects in the property disbursement. On March 4, 2020, a hearing was held on this contempt petition. Judge Goldston sua sponte halted the hearing, requested Mr. Gibson’s home address, and ordered the parties to reconvene at Mr. Gibson’s home in ten minutes without explanation as to why the home visit was necessary.

You may have some idea where this is headed. But, trust me, it exceeds these presuppositions.

Having been caught off-guard by this extremely unexpected turn of events, Matthew Gibson and his girlfriend researched how to get a judge removed from a case while making the ten-minute trip. Once they arrived, Matthew Gibson approached Judge Goldston and moved to disqualify on the grounds “she had become a potential witness” by visiting Gibson’s house.

That didn’t go well.

Judge Goldston denied the motion as untimely.

That would have provoked some laughter if this were a harmless farce. But it was a harmful farce being perpetrated by a judge who seemed to believe she could resolve arguments over property disbursements by personally searching the disputed residence.

Things went downhill quickly after that.

Mr. Gibson informed Judge Goldston that she was not going inside his house without a search warrant; she replied, “oh, yes, I will.” Judge Goldston continued, “let me in that house or [the bailiff] is going to arrest you for being in direct contempt of court.” Judge Goldston admitted to threatening Mr. Gibson with arrest if he refused to allow her and others into his home. Additionally, Bailiff McPeake testified that he witnessed Judge Goldston threaten Mr. Gibson with arrest, and that as a sworn, on-duty police officer with arrest powers, he would have been obliged to effect the arrest.

Holy shit.

The judge proceeded to search the house. Gibson tried to record it but the judge ordered the bailiff to seize the homeowner’s phone. The bailiff, however, continued to record the search and took photographs inside Gibson’s house, including filming the interior of his gun safe. Once the judge was notified the bailiff was filming the search, she told him the recording was “improper” and to not do it any more.

The bailiff was accompanied by Deputy Bobby Stump, who arrived to serve as the bailiff’s requested law enforcement backup. The deputy also participated in the warrantless search (its own cause of action) “at the direction of Judge Goldston.” The search lasted for almost a half-hour. Even more bizarre and lawless bullshit happened.

Many different items of personal property were seized from Mr. Gibson’s residence without his consent, only some of which were later returned. Law enforcement created no contemporaneous inventory of the items taken or any police report.

Gibson took his recording to the media. Shortly thereafter, two complaints were filed against the judge. Gibson also sued the judge, along with the county that employed her. Apparently this wasn’t Judge Goldston’s first extrajudicial rodeo.

On September 18, 2020, the West Virginia Judicial Investigation Commission issued a Formal Statement of Charges, filed with the Supreme Court of Appeals of West Virginia, which revealed Judge Goldston admitted to conducting similar “home visits” in her capacity as Family Court Judge on at least eleven (11) separate occasions.

The end result? No judicial immunity for Judge Goldston because this rights violating field trip was so far removed from actual judicial duties, immunity cannot be applied to it.

The nature of the act was a warrantless search of Mr. Gibson’s residence and a warrantless seizure of his property. The twofold inquiry is (1) whether a search of a residence was an act normally performed by a judge, and (2) the expectations of the parties, namely, whether Mr. Gibson was dealing with Judge Goldston in her judicial capacity.

Respecting the first prong, does a judge normally execute a search warrant or personally search a residence? To quote Judge Posner, “[t]o ask the question is pretty much to answer it.” While “the issuance of a search warrant is unquestionably a judicial act,” the execution of a search and seizure is not. Indeed, searches are so quintessentially executive in nature that a judge who participates in one acts “not … as a judicial officer, but as an adjunct law enforcement officer.”

And since Judge Goldston admitted she had done this same thing “at least 11” times in the past, the claims against the Raleigh County Commission (which oversees county judges) are allowed to continue. Eleven previous warrantless searches of people’s residences suggests the Commission allows judges (and their law enforcement partners, like the bailiff and the deputy) to engage in warrantless searches. The Commission is not excused from the lawsuit.

However, the two law enforcement officers have been excused. Because qualified immunity awards officers for being ignorant and incapable/unwilling of exercising their own judgment, the two officers are free to go.

The authorities are legion that, absent a recognized exception, citizens have a clearly established right to be free from warrantless searches and seizures. […] The Court is unable, however, to find authority analogous to the present situation where officers participate in a warrantless search and seizure when a judge is physically present and personally directing the effort.

[…]

The Court is unable to conclude that reasonable law enforcement officers positioned akin to Bailiff McPeake and Deputy Stump would have known that their conduct — that is, following Judge Goldston’s orders and participating in the search and seizure that she directed — would violate Mr. Gibson’s Fourth Amendment rights.

The judge can continue to be sued by her victim. Perhaps this will lead to something far more substantial that the half-hearted wrist slap handed down by the state’s top court.

Based upon the facts and circumstances of this case, and taking into account the mitigating factors present, as well as the parties’ previous stipulations in this matter, we impose a censure and a fine of $1,000.

Yeah. That ought to do it. Hopefully, this lawsuit does more damage to a judge who has admitted a pattern and practice of exceeding the limits of her judicial duties. Maybe it will be damaging enough state and local officials will decide Judge Goldston would be better off exploring private sector employment opportunities. But that seems doubtful when the best it can do is a grand and some censure at this point.

Filed Under: 4th amendment, judicial immunity, louise goldston, matthew gibson, warrantless search, west virginia

Appeals Court Says It’s Perfectly Fine For Cops To Unreasonably Extend Traffic Stops

from the what-4th-amendment? dept

The Supreme Court made it pretty clear in its Rodriguez decision that pretextual traffic stops were fine, but once the pretext evaporated, it was time to cut civilians loose.

We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation.

That’s all there is to it. If you pull someone over for, say, a malfunctioning tail light, once a ticket is issued for the tail light, the stop needs to end. It cannot become — without the natural development of reasonable suspicion — into a fishing expedition for serious criminal activity or an excuse to pervert the already substantial automobile exception to warrant requirements.

Some cops thought this just meant any Fourth Amendment violations needed to be performed quickly. Courts have responded (in some cases) by pointing out it’s not the length of the constitutional violation, but rather the fact that the Constitution was violated.

A case recently handled by the Eighth Circuit Appeals Court appears to ignore Supreme Court precedent. This decision [PDF] says cops can ignore the Rodriguez decision and make up their own rules for traffic stops. It all starts with a pretextual stop and some vivid cop imagination that ended up with a drug bust. The stated cause for the stop was a lane violation. Everything else was just good police work, as the Eighth Circuit sees it.

After stopping Noriega, Officer Miller approached Noriega’s front passenger-side window and smelled an overwhelming “perfume-type odor” emanating from Noriega’s front and rear passenger-side windows. When Noriega handed Officer Miller his driver’s license, registration, and proof of insurance, Officer Miller observed that Noriega’s hand was “trembling” and his face was “twitching.” Officer Miller noticed that Noriega had a Nevada driver’s license and license plate and a Las Vegas, Nevada address. Officer Miller testified that Las Vegas is a “transshipment center[],” i.e., a location where large quantities of narcotics are shipped to and then trafficked to states further inland.

Perfume ain’t exactly the “odor of marijuana” that justifies so many extended traffic stops. The “trembling” and “twitching” is left to the officers’ imagination, since there appears to be no body cam or dash cam record of this stop. Las Vegas may indeed be a “transshipment center,” but it’s also an incredibly popular tourist destination. How this adds up to reasonable suspicion is anyone’s guess, but the Appeals Court has delivered a published opinion, which makes the following speculation akin to settled law in the circuit.

Officer Miller explained that Noriega appeared to be uncomfortable answering questions about his travel plans and repeatedly attempted to divert the conversation to other topics. Similarly, Special Agent Gosnell explained that when Officer Miller returned to his patrol vehicle to run Noriega’s driver’s license, registration, and proof of insurance, he mentioned that Noriega was “overly nervous,” was providing “vague and implausible travel plans,” and a “strong perfume-like odor [was] coming from the vehicle.”

At this point, the officers only had some flawed assumptions about human behavior, an odor described as “perfume-like,” and a purported lane violation. Officers ran Noriega’s license and discovered it was valid and he had no outstanding warrants. At that point, the traffic stop should have been over. Officer Miller admitted as much when he returned Noriega’s license to him. (Emphasis mine.)

Officer Miller returned Noriega’s driver’s license, registration, and proof of insurance and told him that he was “good to go.” Noriega thanked Officer Miller and put his vehicle into gear.

Free to go is free to go. Or so you would think. It’s never that simple, even though it should have been that simple, given Supreme Court precedent. But that’s not what happened. Despite being told he was “good to go,” Noriega was not, in fact, good to go. (Emphasis mine, again, because there’s no way the Appeals Court is going to emphasize something that plainly disagrees with its conclusion.)

However, before Noriega pulled away, Officer Miller asked Noriega if he was carrying any narcotics. Noriega said no, so Officer Miller asked to search Noriega’s vehicle. Noriega expressed his confusion, telling Officer Miller that he thought that he was free to go. This exchange continued, with Noriega asking if he was required to consent to a search and Officer Miller telling Noriega that he had a drug dog in his patrol vehicle. Eventually, Officer Miller directed Special Agent Gosnell to remove the drug dog from the patrol vehicle. Officer Miller testified that upon seeing the dog, Noriega agreed to a dog sniff around the perimeter of his vehicle. Officer Miller testified that Noriega asked to exit the vehicle prior to the dog sniff, which Officer Miller allowed, and according to Officer Miller’s testimony, upon Noriega’s exit, Noriega’s legs were visibly “shaking.” The dog alerted Officer Miller to the driver-side lower rear door seam. Officer Miller testified that he asked Noriega if he could search the interior of Noriega’s vehicle and Noriega agreed.

The end result was the discovery of 22 packages of meth in Noriega’s vehicle. Despite being free to go, Noriega was subjected to multiple searches. And while he may have agreed to the K-9 search, he clearly only did so because he was made to feel he had no other options. There was nothing consensual about this search, despite officers portraying it as a consensual search in their reports. Their supporting statements pointed to nothing more than the normal reactions a person might have when pulled over for nebulous reasons by multiple law enforcement officers: nervousness, “trembling,” etc.

The Supreme Court’s holding in Rodriguez was unambiguous: when the objective of the traffic stop is fulfilled, officers cannot keep attempting to talk people into warrantless searches or otherwise detain them. Officer Miller clearly told the driver he was free to go. When the driver attempted to go, he was detained again and multiple searches were performed. Somehow, the Appeals Court feels this did not violate Supreme Court precedent. Rodriguez arrived in 2015. This traffic stop occurred in 2019. There should be no question about the constitutionality of this illegally extended stop.

The district court — which erred first — could not have gotten this more wrong.

The district court ultimately denied Noriega’s motion to suppress. First, the district court found that, in light of Officer Miller’s experience and training, his testimony was credible. It then concluded that after Officer Miller returned Noriega’s driver’s license, registration, and proof of insurance, the encounter was consensual, meaning that Noriega was not seized for purposes of the Fourth Amendment, but that even if Noriega was seized, “the facts testified to . . . provide reasonable suspicion for the ongoing investigation of illegal narcotics trafficking.”

But it wasn’t consensual. If it were truly consensual, we wouldn’t be reading this opinion and we wouldn’t be writing about it. When Miller told Noriega he was free to go, it should have ended there. Noriega would have continued driving and his rights never would have been violated. But that’s not what happened. The return of Noriega’s documents may have made it easier for him to extricate himself from this stop, but the officer’s continued questions heavily hinted he could not leave. And his follow-up statements about a drug dog made it clear the officer intended to perform a search of the vehicle. Very few people would have felt comfortable driving away from this encounter. That’s the ambiguity cops abuse. And that abuse is exactly the thing courts are supposed to punish cops for.

That didn’t happen at the lower level. And this failure is affirmed by the Appeals Court.

We need not decide whether a seizure occurred because, even assuming that Noriega was seized, the traffic stop was not unlawfully extended.

This is a truly astounding conclusion. The officer’s own testimony states he told Noriega he was “good to go.” But then he didn’t let him go. He kept asking questions unrelated to the alleged lane violation. Just because the officer felt there was some drug trafficking going on, his assertions about non-drug odors and subjective perceptions of the driver’s nervousness add up to nothing. If the involved officers felt they had reasonable suspicion to extend the stop, they never should have told the driver he was free to go.

This decision needs to be appealed to the Supreme Court. There is no way this extension is valid. When a law enforcement officer tells someone they’re free to go, the objective of the stop has clearly been seen to its conclusion. If an officer wishes to extend a stop, they need to make sure they don’t tell drivers they’re free to go before insinuating that leaving is out of the question… at least not until they can run a drug dog around the vehicle. Nothing about the search was consensual, no matter how the officers choose to portray it.

The Eighth Circuit fell down on the job here and it’s up to the Supreme Court to reverse this decision. Whether or not it will remains to be seen. The defendant needs to appeal. And the Supreme Court needs to do its job and benchslap lower courts that are apparently unable to decipher precedential decisions.

Filed Under: 4th amendment, 8th circuit, extended traffic stop, pretextual traffic stops, traffic stops, warrantless search

from the small-Constitutional-violations-are-still-violations dept

A case involving a DUI stop that somehow morphed into the search of a passenger has earned a couple of cops a rebuke from the Third Circuit Court of Appeals and a couple of handy reminders in a precedential decision that will make it that much tougher for law enforcement officers in this circuit to get away with stuff like this in the future.

Here’s how the stop unfolded, as recounted in the Third Circuit decision [PDF]:

Around 2:00 a.m. on February 23, 2019, Philadelphia Police Officers Lance Cannon and Daniel Gonzalez were patrolling North Philadelphia’s 35th District, an area both officers described as “very violent.” They saw a two-door pickup truck roll through a stop sign and fail to signal a turn. After they pulled the truck over, Officer Cannon approached the truck on the driver’s side and Gonzalez approached on the passenger’s side. Three people were in the truck: a driver, a front seat passenger, and, in the backseat, Jamel Hurtt.

The driver and front seat passenger both rolled down their windows. As Cannon collected the license, registration, and keys from the driver, the officers smelled alcohol. The front seat passenger was heavily intoxicated and voluble, and Hurtt, from behind, attempted to calm and quiet him. When Cannon asked the intoxicated passenger for identification, Hurtt volunteered his as well. The officers asked the driver to step out for a sobriety test. He complied and left the door open as he got out of the truck. Uninvited and without apparent justification, Cannon then “physically [went] into [the truck], partially put[ting his] body into the cabin of the truck” through the open door. He eventually climbed further into the truck, placing both knees on the driver’s seat. During the subsequent suppression hearing, he explained that he did so for the purpose of “engag[ing]” with the passengers.

It’s that last bit that turned this from a routine traffic stop into a couple of rights violations. Those rights violations led to the discovery of a gun the back seat passenger had tucked in his waistband. Those criminal charges led to a suppression hearing which led to this appeal… and a reminder that traffic stops are governed by the Supreme Court’s Rodriguez decision, which limits how much unrelated stuff cops can do while addressing the matter at hand.

In this case, the matter at hand was the supposedly drunken driver. But the field sobriety test showed the driver was under the legal limit. While one officer was performing the duties related to the stop, the other officer was ordering passengers out of the car and entering the vehicle without consent. The driver (despite having a suspended license) and the drunk passenger were allowed to drive away. Hurtt, who had been patted down by Officer Cannon (the officer who decided he needed to enter the vehicle while the other officer was actually doing traffic stop stuff), was arrested.

The court reminds Officer Cannon that the Supreme Court’s ruling says officers must remain “on-mission.” If other suspicion develops during the course of this, officers can extend the investigation. What they absolutely can’t do is put themselves in danger to create a situation where further law enforcement intrusion is necessary.

Rodriguez reasoned that “‘safety precautions taken in order to facilitate’ investigation of other crimes are not justified as part of a routine traffic stop.” Therefore, an officer cannot create a safety concern while off-mission and then rely upon that concern to justify a detour from the basic mission of the traffic stop. The limitations of the Fourth Amendment simply do not tolerate intrusions stemming from a detour from a lawful inquiry that is justified only by an exigency which police themselves have created.

The court notes that the stop occurring in an alleged “high crime area” doesn’t change the constitutional equation. What changed this from a good stop to a bad stop was the officer’s decision to enter the stopped vehicle, which resulted in an unconstitutional delay because it took the other officer “off mission.”

It is uncontested that the initial “mission” of the traffic stop was the DUI investigation of the driver of the truck. While Gonzalez conducted the on-mission field sobriety test, Cannon entered the truck and kneeled on the front seat, putting himself in a very vulnerable position. Consequently, Gonzalez had to interrupt—indeed he stopped—his attempt to determine the sobriety of the driver for the purpose of ensuring Cannon’s safety. At that point, neither officer had reasonable suspicion to search Hurtt. Without reasonable suspicion, an inquiry resulting in an extension of the traffic stop is unlawful if not related to the mission (i.e., offmission).

The government argued this was a minor interruption, but the Appeals Court reiterates the findings of the Supreme Court decision: it’s not the length of the violation that matters. It’s that the violation occurred.

Moreover, as should be obvious from our discussion, we are not persuaded by the government’s argument that the Fourth Amendment intrusion resulting from Gonzalez going off-mission was permissible because the off-mission conduct was de minimis. We need only address this argument briefly as Rodriguez clearly forecloses it. In Rodriguez, the Court held that even de minimis extensions of a traffic stop for “unrelated inquiries,” such as checking on Cannon’s off-mission activity, are unlawful.

In conclusion, Hurtt’s rights were violated:

Here, Officers Cannon and Gonzalez did what Rodriguez prohibits. Officer Cannon created a safety concern while off-mission from the purpose of the original traffic stop and thereby prolonged Hurtt’s detention. Since the disputed evidence was only uncovered after the officers went off-mission, the officers wrongly extended the traffic stop and violated Hurtt’s Fourth Amendment right to be free from unreasonable searches and seizures.

That reverses the trial court’s refusal to suppress the evidence. And with that evidence now gone, the conviction is vacated. Rights are rights. Violating them quickly doesn’t make them any less violated.

Filed Under: 3rd circuit, 4th amendment, daniel gonzalez, exigent circumstances, jamel hurtt, lance cannon, philadelphia, warrantless search

Court Calls Bullshit On Cop Who Claimed He Could Smell Weed In Sealed Bags In A Moving Car From His Own Moving Cruiser

from the STEAMED-HAMS-but-it's-this-cop's-story dept

It doesn’t happen nearly often enough, but it’s always enjoyable to watch a court lay the smackdown on a law enforcement officer’s literally unbelievable assertions. And this case [PDF] — via FourthAmendment.com — contains a claim from a supposedly trained and experienced officer that’s so ridiculous, the court has no choice but to discredit his testimony completely.

Indianapolis police officer Daniel Hiser performed a traffic stop that resulted in the discovery of marijuana and a handgun in Davon Gray’s possession. But it’s the events leading up to the stop that triggered the court’s BS detector — events that include Officer Hiser’s apparently miraculous olfactory sense.

Officer Hiser is surprisingly humble about his superhuman gift, something that has served him well during his years as a law enforcement officer.

Though Officer Hiser has never had his sense of smell tested and does not generally consider his sense of smell extraordinary, he estimates that he smells raw marijuana at some point during approximately a quarter of the traffic stops he conducts.

But any officer with similar training (“_Officer Hiser received a ‘couple of hours’ training on the appearance and odor of multiple [drugs]…_“) could be expected to smell marijuana in a stopped car with its windows down. Officer Hiser, however, can smell it in moving vehicles with their windows up located a few car lengths away from his impressive nose.

At about 3:30 p.m. on January 11, 2018, Officer Hiser was patrolling in his police cruiser in the East District when he turned south onto Arlington Avenue from 31st Street. As he moved into the left lane of Arlington Avenue behind a Dodge Stratus driven by Gray, Officer Hiser testified that he could smell the strong odor of raw marijuana. Officer Hiser believed the scent to be coming from the Stratus, so he continued southbound to try to verify that this vehicle was the source of the aroma. (Filing No. 72-1 at 5.) While cars were not “bumper to bumper,” there was still some traffic present. Several blocks later, around 23rd Street, the Stratus moved into the right lane, and Officer Hiser could no longer smell the marijuana odor. Officer Hiser then switched lanes and the fragrance returned. Id. The Stratus then slowed, turning into an Express Mart at the corner of 21st Street and Arlington Avenue. Again, as the Stratus departed the lane, Officer Hiser testified that the scent vanished. At this point, Officer Hiser decided to stop the vehicle and pulled behind the parked Stratus, initiating his emergency lights and siren.

Hiser could not state with any certainty whether he had ever performed this superhuman feat of olfactory awareness prior to this stop. He also could not state with any certainty whether his cruiser’s windows were down or whether Gray’s windows were down. The 3.59 ounces of marijuana found in the car Hiser claimed smelled like weed was located under the front seat inside resealable plastic bags.

Yes, courts are supposed to defer a bit to “trained” and “experienced” officers and their assertions about their ability to determine whether something is reasonably suspicious or objectively innocuous. And courts far too often reward unreasonable assertions made by cops with good faith passes or denials of motions to suppress.

But the court isn’t impressed by Hiser or his freak-of-olfactory-nature superpowers. You have got to be fucking kidding me, says the court.

_The Court agrees with Gray that it is incredible that Officer Hiser—who self-admittedly does not have a heightened olfactory system—could smell the scent of two resealable sandwich sized plastic baggies of unburnt marijuana coming from a moving vehicle when patrolling in his cruiser. This occurrence is not only contrary to any common experiences, but is “implausible” and seemingly “contrary to the laws of nature._”

Unsurprisingly, there is exactly zero precedent that supports Hiser’s “if I smelt it they probably were in the process of, um, dealting it” theory of reasonable suspicion. (Emphasis in the original.)

The dearth of appellate caselaw considering—let alone upholding—Terry stops solely based on an officer smelling three ounces of raw marijuana emanating from two small ziplocked sandwich baggies located under the front seat a moving car, while he drives his own vehicle, supports a finding of incredibility of Officer Hiser’s testimony as a matter of law.

In fact, it can only find precedent that quotes an officer just as full of shit as Hiser.

“The arresting officer’s testimony that he observed defendant exchanging a 2-inch glass vial with a dark top, from a distance of approximately 74 feet, from a moving patrol car, after dark, is, in our view, contrary to common experience and, as such, was incredible as a matter of law and did not support the verdict.”

Away goes the stop, which means away goes the evidence. And without the evidence, the government has nothing, which it has acknowledged by dismissing Gray’s indictment.

It’s already impossible to believe cops smell as much marijuana as they do — something that handily allows them to start tossing vehicles and patting down vehicle occupants without troubling themselves with a warrant. This cop just took the lie too far.

Filed Under: 4th amendment, daniel hiser, davon gray, smell, traffic stop, warrantless search

from the how-high-were-you-when-you-wrote-your-report dept

When cops are looking to perform warrantless searches, the only thing more useful than drug dogs is officers’ own noses. The invocation of the phrase “smell of marijuana” magically dissipates the protective shield of the Fourth Amendment, allowing officers to engage in searches that often seem to resemble “general rummaging.”

Every so often, this Constitutional evasion scheme fails to pay off. And it’s usually because the officer engaging in a warrantless search or unjustified arrest has gotten used to getting away with it and is caught off-guard when someone questions their actions or challenges their methods.

That’s the case here in this Delaware Superior Court decision [PDF], coming to us via FourthAmendment.com. This suppression order is the direct result of the assertions and actions of a particularly unreliable narrator, Wilmington Police Department Detective James Wiggins.

Detective Wiggins was roaming the streets in an unmarked car when he came across Ivan Cornelius sitting in his parked car. This soon turned into a full-blown search of Cornelius’ vehicle, one that attracted the helping hands of six other officers before it concluded. The end result of the search was this:

Detective Wiggins claimed during direct examination that he found “a bunch of marijuana.” When pressed for more information during cross-examination, Detective Wiggins clarified and stated he meant a “bunch of leaves.” However, there was not enough to send to the lab for testing.

Training and experience etc.

When asked how many leaves it would take to submit the marijuana to the state lab, Detective Wiggins replied that he does not know.

That’s kind of embarrassing for someone on the “Safe Streets Task Force” who’s been given permission to fight crime on pretty much his own terms.

Detective Wiggins stated that it is his job “to stop things from happening before they happen” and, accordingly, to proactively stop cars and ride around looking for suspicious activity.

Wait. He wasn’t finished. Here’s how cross-examination went for Wiggins.

After being unable to state how many leaves are needed to send for testing, the Detective conceded that the lab is able to test even small, personal amounts of marijuana.

Mistakes were made, but at least the detective safetened the streets a bit by removing a “bunch” of drugs from circulation.

The Detective further conceded that the amount he allegedly observed was probably either less than personal use or just personal use.

What Wiggins does know is that the smell of marijuana is a pretty handy way to airgap his actions from the Constitution. As a free-roaming detective, Wiggins firmly believes this odor is all the reasonable suspicion he needs to engage in hundreds of undocumented stops and searches.

Notably, it is Detective Wiggins’s understanding that he can search the entirety of a car as long as he smells marijuana. Detective Wiggins explained that, as a standard patrol officer, he would normally have to call in a traffic stop into WILCOM if he stopped a vehicle. However, as a Task Force officer, he does not need to report to WILCOM when he stops a vehicle for a traffic stop. As Detective Wiggins puts it, if he stops a car and smells marijuana, but does not issue a ticket, there would be no record of it. Moreover, Detective Wiggins estimated that he has made around a thousand traffic stops in the four years that he has been assigned to the Task Force and that he stopped around fifty vehicles the week prior.

Completing Detective Wiggins’ zero accountability loadout was the lack of recording equipment in his unmarked car and his employer being extremely slow on the body cam uptake.

All of this combined to give us the complete botchery observed above (and observed for a bit more below): a detective who doesn’t seem to know much about weed making completely undocumented stops hundreds of times a year based almost solely on the unverifiable claim that he “smelled” something suspicious.

The court here isn’t going to let Wiggins get away with this one. In addition to his inconsistent testimony on the amount of weed recovered during the search, the detective’s narrative shifted when challenged by the defendant’s lawyer.

Detective Wiggins’s initial testimony concerning his observation of the marijuana leaves and air freshener is contradicted by his later testimony. First, in response to what Detective Wiggins noticed about the car while engaging with Mr. Cornelius in the vehicle, Detective Wiggins claimed he smelled marijuana, observed marijuana leaves, and air freshener. Later, in response to Mr. Cornelius’s counsel’s statement concerning whether Detective Wiggins observed marijuana leaves before the two minutes and twenty second mark in the video, Detective Wiggins responded “I’m not sure if I’ve seen it yet or not.”

Finally, the court says the smell of marijuana alone cannot be enough to justify a stop or a warrantless search. (Emphasis in the original.)

The State argues that the smell of marijuana alone is sufficient to establish probable cause. Marijuana odors, while relevant to probable-cause determinations, does not require this Court to find that probable cause exists in every circumstance on sole basis of the odor. Probable cause determinations are made by evaluating the totality of the circumstances.

For instance, in Law v. State, the vehicle’s speed, the occupant’s extreme nervousness, and the odor of marijuana contributed to the Court’s determination that probable cause existed for the search of the car. Likewise, in Valentine v. State, the occupant’s excessive speed, the time of day, and the odor of marijuana contributed to the Court’s determination that probable cause existed.

No probable cause here. The court says the odor of marijuana likely didn’t exist, the other officers at the scene positioned themselves “in a manner consistent with preparing for a search” despite there being no evidence a search was necessary, and the complete lack of normal procedures or documentation are fatal to the state’s case. The detective’s inability to maintain consistency during testimony and cross-examination certainly didn’t help. The evidence (what little there was of it) is now gone and without it, the state has nothing left to prosecute.

Filed Under: 4th amendment, odor, police, search, suspicion, warrantless search

Federal Court Blasts Lying Cop Using His Warrantless Search Of A Room To Fraudulently Obtain A Search Warrant

from the I-didn't-have-probable-cause-for-a-search-until-after-I-searched dept

It’s not often you see a court actually call a police officer a liar, but it happened in this case [PDF], via FourthAmendment.com. While investigating a murder, Puerto Rico PD Homicide Division Agent Pedro Medina-Negron performed a sweep of the house to ensure there were no more victims or dangerous perpetrators inside.

While performing his sweep of the scene, Agent Medina claimed to have seen several things in plain view:

He described seeing raw rice on the floor, a gun magazine on top of the dresser, a large amount of cash in a gray bag on the floor, and bags of rubber bands, boxes of ziplock bags, and empty instant coffee packets on the bed. He also described finding a large quantity of rice in plain view in the kitchen trashcan. Agent Medina explained that rice and coffee are often used to conceal the smell of drugs and that the size of the coffee packets he observed—approximately one pound bags—matched his professional experience with the size of coffee bags used in drug trafficking. He also noted that, in his experience, ziplock bags, rubber bands, firearms, and cash are associated with drug trafficking. He confirmed with defendants that they did not have gun permits.

Building from his supposed “plain view” observations, Agent Medina called in a drug dog to perform a search of the room. It alerted on a suitcase in the closet and officers discovered two guns in the closet after moving clothing to get to the suitcase. Medina then applied for a search warrant to search the home and open the suitcase, establishing probable cause with all the stuff he claimed he saw in plain sight when he performed the sweep. Eight hours after his first “observations,” Medina obtained a search warrant. This search turned up a large quantity of drugs and cash.

The search was challenged by the defendants, who were pretty sure everything Medina claimed to have seen in plain sight wasn’t actually out in the open. Utilizing the metadata from the ~600 photos the PD’s forensic team took of the house during their murder investigation, the defendants exposed Agent Medina for the liar he is.

This is only one of Medina’s many lies, undercut by the forensic team’s photos of the crime scene.

Although Agent Medina asserted in his sworn statement and evidentiary hearing testimony that he saw the grey bag of cash in plain view, he later testified to the opposite. He stated on cross?examination that he did not see the grey bag during his protective sweep. Rather, Agent Medina testified that the forensics officers alerted him to the bag while they were “working the room,” a phrase he clarified meant “searching.” According to a 4:54 p.m. photograph, officers found the bag on the bedroom floor, wedged between the wall and a large armchair and obscured by a floor?length curtain. The bag appears to be a small, nylon, reusable grocery tote. In a photograph taken at 5:29 p.m., the armchair had been pushed away from the wall, better revealing the gray bag, which was tied shut. Its contents were concealed. By 5:37 p.m., investigators had moved the gray bag onto a countertop and placed a yellow evidence tag next to it. The bag is still closed in that photo, but the photograph taken one minute later shows the bag open. Inside the bag is a roll of cash and what appears to be a brown paper bag containing a rectangular object. Agent Medina confirmed that he had to open the bag to ascertain its contents and he admitted that he opened the bag before obtaining a search warrant. Evidence on record shows that all cash had been seized, counted, displayed and a picture taken by 7:31 p.m.; hours prior to the request and issuance of the search warrant.

Photographs further proved Medina was lying about the gun magazine he claimed to have seen in plain sight, along with the coffee bags and rice he said he saw out in the open. Here’s the court being a bit more polite about Medina’s inability to tell the truth.

Agent Medina’s testimony about the items found in the locked bedroom is rather remarkable. He admitted he did not see the grey bag in his safety sweep and that its incriminating contents were also not in plain view. He testified that forensics found the bag around 4:54 p.m. while “searching” the locked room. And he affirmed that he opened the bag before obtaining the search warrant, so he could rely on its contents in support of his warrant application. He swore in the search warrant application that he observed a “large sum of money,” which is clearly refuted by the photographs and now by his testimony on cross?examination.

Every search performed by Puerto Rican law enforcement officers at the scene was tainted.

According to Agent Médina, the entire house was clear when he found the gun magazine on the dresser, coffee on the bed, and the grey bag of money behind the chair. The metadata on the photographs indicate that the government’s search occurred several hours after Agent Medina arrived on the scene, after the home was secured, took several hours, and was not limited to places where a person may be hiding, such as, e.g., inside a small reusable bag.

[…]

The government offers no other justification for the warrantless search of the bedroom and the Court finds none. The government’s rummaging in the locked bedroom, moving furniture, clothing, blankets, and draperies and opening cabinets and drawers, violated the defendants’ Fourth Amendment rights.

The court adds this rebuke to the Puerto Rican PD’s assertions, as well as to any others who believe all Constitutional bets are off if the crime is severe enough:

The Supreme Court has definitively rejected this argument, holding that there is no “murder scene exception” to the Fourth Amendment.

After blasting the PD as a whole, the court focuses again on Agent Medina. This is one of the most thorough benchslappings I’ve read, one that says the court thinks Medina is a habitual liar who should not be allowed to wear a badge.

[T]he Court admonishes Agent Medina’s flagrant dishonesty before this Court and the court issuing the search warrant. Indeed, the Court considers his behavior sufficiently egregious to warrant a perjury and/or obstruction of justice investigation. The Court has no means to determine if this is the first time that Agent Medina lied to this Court. However, as it relates to this case, he blatantly lied to the state judiciary while submitting a sworn statement with firsthand information he clearly knew to be false. Secondly, he appeared in federal court and after taking an oath to testify truthfully, he once again testified falsely. Agent Medina’s behavior and testimony may be suggestive of a routinary practice as a law enforcement officer to lie under oath and mischaracterize evidence to serve his investigatory purposes. If so, Agent Medina’s disregard of constitutional rights and basic rules of criminal procedure and investigation, poses a threat to individual’s rights and to the community he purports to serve and needs to be addressed and investigated.

Everything Medina claimed to have seen with his own eyes out in the open is suppressed. So is everything else discovered during the warrantless searches of the house and the minimal amount of rummaging that occurred after the warrant finally showed up eight hours after Medina did. All the drugs. All the guns. Everything. And all because one officer, who was already on a murder scene, lied about his “plain view” discoveries to fraudulently obtain a warrant.

Filed Under: 4th amendment, pedro media-negron, police, puerto rico, puerto rico police department, warrantless search