Category Archives: 4th Amendment Issues

Supreme Court: Dog Sniffs At Persons’ Homes Are Searches Requiring Probable Cause Under the Fourth Amendment

Washington, DC (March 26, 2013) – In its decision in Florida v. Jardines (11-564), the U.S. Supreme Court today upheld the Florida Supreme Court, which affirmed the suppression of marijuana evidence unearthed by law enforcement arising out of their use of a canine sniff at Mr. Jardines’s front door without probable cause. This is the second dog sniff opinion of the term. This time, though, the Court sided with personal rights over law enforcement’s use of enhanced searching technologies.

In summary,

Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

 As in United States v. Jones, the GPS case from last term, the Court’s majority today reaffirmed a centuries-old tradition to “keep easy cases easy”—the government must obtain a warrant before it may intrude upon private property in order to gather evidence of a crime.  By finding the conduct of law enforcement in this case to have violated a person’s constitutional right to protection from unwarranted search and seizure, the Supreme Court made clear today that the Fourth Amendment is not, in fact, dead.

The use of a trained police narcotics dog is no different than the use of GPS or thermal heat imaging technology. Law enforcement may not use enhanced search technologies to intrude upon private spaces without a warrant. Today’s ruling reinforces the old adage that “a man’s home is his castle” and the Government, even in the form of a “drug sniffing” dog, cannot intrude on that fundamental right with the purpose of gathering incriminating evidence without a warrant.

Some highlights from the opinion:

 (a) When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U. S. ___, ___, n. 3.

(b) At the Fourth Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511. The area “immediately surrounding and associated with the home”—the curtilage—is “part of the home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U. S. 170, 180. The officers entered the curtilage here: The front porch is the classic exemplar of an area “to which the activity of home life extends.” Id., at 182, n. 12.

(c) The officers’ entry was not explicitly or implicitly invited. Officers need not “shield their eyes” when passing by a home “on public thoroughfares,” California v. Ciraolo, 476 U. S. 207, 213, but “no man can set his foot upon his neighbor’s close without his leave,” Entick v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817. A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is “no more than any private citizen might do.” Kentucky v. King, 563 U. S. ___, ___. But the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. Pp. 5–8.

(d) It is unnecessary to decide whether the officers violated Jardines’ expectation of privacy under Katz v. United States, 389 U. S. 347.

And the best part about it: Scalia delivered it!

A link to the Supreme Court’s opinion in Florida v. Jardines is available here.

Because sometimes the finger just isn’t enough…

I have to appreciate the New York Courts and the recent decisions that have come through the gates.  Recently, I wrote about how giving a cop the finger didn’t amount to reasonable suspicion to warrant an investigation by that officer.  (See Hello Officer, Read my Middle Finger!).  Yesterday, the New York Court of Appeals declared swearing at a police officer equally didn’t amount to the commission of a crime or probable cause.

Here are the facts:

… Officer Johnson and another police officer were parked in separate marked police vehicles on a residential street in Rochester. Johnson noticed that a woman (later determined to be defendant’s girlfriend) was standing in front of a house across the street from where he was parked and was videotaping his activities. Curious about the woman’s identity, Johnson ran the license plate of a Cadillac that was parked in her driveway and discovered that the plate number had been issued for a Toyota — not a Cadillac.

Johnson briefly stepped out of his car to ask who owned the automobile and the woman responded that it was her grandfather’s vehicle. The officer then reentered his patrol car. A few minutes later, defendant Trevis Baker approached the open passenger-side window of Johnson’s car, leaned his head in and inquired why Johnson had checked the license plate. Johnson said something to the effect that he could run a plate if he wanted to.

Defendant started backing away from the police vehicle towards the middle of the street, swearing at the officer. When Officer Johnson asked “what did you say,” defendant repeated the profanity and accused Johnson of harassing him. After radioing his partner that he intended to make an arrest, Johnson exited his vehicle and, with the assistance of his partner, placed defendant under arrest. These activities apparently attracted the attention of various civilian bystanders and, by the time of the arrest, about ten people had congregated on the sidewalk behind defendant and his girlfriend. In a search incident to arrest, the police discovered that defendant was in possession of 25 bags of crack cocaine.

 Based on these facts, Baker was arrested and charged with possession of a controlled substance and disorderly conduct. Baker attorney argued at a suppression hearing, that “the First Amendment protects the right of a citizen to express disagreement with police actions, which was precisely all that defendant was doing in this case.”

The trial court denied Barker’s motion to suppress evidence and to dismiss the case.  But the Court of Appeals had a different view, deciding that the proof was insufficient to support a finding of probable cause to arrest because there was no “public harm”  in Barker’s statements.

 The court rationalized because the swearing at the police officer occurred

 During daylight hours on a public street, defendant made two abusive statements claiming harassment to a police officer who was seated in a patrol car. It is clear from the videotape that the public outburst was extremely brief, lasting about 15 seconds. The statements were not accompanied by menacing conduct — defendant was stepping away from the vehicle when he made them.

 And my favorite part of the opinion,

there is no basis to infer that Officer Johnson felt threatened by the statements. If he had, he would likely have remained in his vehicle, rolled up the windows, radioed his partner to do the same and requested backup.

 If you’re scared, you stay in your car. You don’t do what Officer Johnson did…

Instead, Johnson immediately exited his vehicle. The fact that another police officer was present — also safely ensconced inside his own patrol car and fully able to provide assistance — diluted the risk that others in the vicinity would join forces with defendant and gang up on Johnson.


And the last important aspect of the case, the exchange occurred between a single civilian and a police officer. Baker’s statements were directed exclusively at a police officer who, according to the courts, is “a party trained to diffuse situations involving angry or emotionally distraught persons,” which further undermined any threat of public harm because the police officer was in a position of safety and could have closed his windows and ignored Baker.

Here’s the Opinion.

If it’s good for my dog, it must be good for my kid. Right?

Reuters is reporting that a public school district in Texas can require students to wear locator chips when they are on school property, a federal judge ruled on Tuesday. Yeah, that’s right. You read that correctly. The same technology I am using to track my dog, I can now legally track my kid in at least one school district in Texas.

According to the school district – the fourth largest in Texas with about 100,000 students – it is not attempting to track or regulate students’ activities, or spy on them, district spokesman Pascual Gonzalez said. Northside is using the technology to locate students who are in the school building but not in the classroom when the morning bell rings, he said.

Why is this important? Do we really care if Miss Congeniality and Captain Football are making out under the bleachers between 4th and 5th period? It seems Texas has lost track of its students, and luring them back to class with a Milk Bone dog biscuit isn’t going to be enough. I’m sure the school district has a legitimate rationale for this.

Apparently, “Texas law counts a student present for purposes of distributing state aid to education funds based on the number of pupils in the classroom at the start of the day. Northside said it was losing $1.7 million a year due to students loitering in the stairwells or chatting in the hallways,” according to the article. Is there really no other less intrusive solution for the school to get hall monitors out in the hall and document who is in the school at bell time?

Well, luckily “The software works only within the walls of the school building, cannot track the movements of students, and does not allow students to be monitored by third parties.” That’s reassuring.

I’m not sure if we should be looking to Orwell or Pavlov here to get control of a situation that warrants nothing more than a dinner bell or a grade grubber hall monitor to keep track of the students inside the doors when the bell rings.

Here’s the story

Hello Officer, read my middle finger!!

In a 14-page opinion, the U.S. Court of Appeals for the 2nd Circuit ruled that the “ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.” Read this: giving a cop the finger!

This case all started when John Swartz  flipped off an officer who was using a radar device at an intersection in St. Johnsville, N.Y. Swartz was later charged with a violation of New York’s disorderly conduct statute. Swartz and his wife Judy Mayton-Swartz sued the two police officers who arrested him.

The officer’s record and explanation as to why he pulled over the couple on this case is classic! Richard Insogna, the officer who stopped Swartz and his wife claimed he pulled the couple over because he believed Swartz was “trying to get my attention for some reason.” The officer further claimed: “I thought that maybe there could be a problem in the car. I just wanted to assure the safety of the passengers,” and “I was concerned for the female driver, if there was a domestic dispute.”

Thankfully the appeals court didn’t buy that crap, ruling that the “nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.”

This opinion is awesome. In a wonderful analysis of the standard of “reasonable suspicion” the Court lamented

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer.

Hey officer Krupke, Krup you!

indexHere’s the opinion.

CA Supreme Court: No warrant needed to search cell phone

This disturbs me.  One’s expectation of privacy has been shattered in California. The California Supreme Court ruled Monday that police can search the cell phone of a person who’s been arrested — including text messages — without obtaining a warrant, and use that data as evidence.

This ruling opens up the flood gates of abuse by law enforcement, such as unfettered warrantless searches of e-mails, documents and contacts your IPhone or Blackberry.  Not to mention, that tablet and laptop computer you’re toting around.

The ruling involves the 2007 arrest of Gregory Diaz, who purchased drugs from a police informant. Investigators later looked through Diaz’s phone and found text messages that implicated him in a drug deal.  Diaz appealed his conviction, saying the evidence was gathered in violation of the Fourth Amendment, which prohibits unreasonable searches and seizures. The court disagreed, comparing Diaz cell phone to personal effects like clothing, which can be searched by arresting officers.

“The cell phone was an item (of personal property) on (Diaz’s) person at the time of his arrest and during the administrative processing at the police station,” the justices wrote. “Because the cell phone was immediately associated with defendant’s person, (police were) entitled to inspect its contents without a warrant.”

What a bunch of junk. When are the courts going to stand up for the 4th Amendment instead of chipping away at it?  Generally, the 4th Amendment protects one from unreasonable searches and seizures without a warrant.  The CA Supremes here didn’t even carve out an exception to the warrant requirement, such as exigency or a crime in progress.  So, where does that leave us?  That makes this ruling the RULE, not the exception.

What’s the moral here?  Don’t have your cell phone in your pocket when you’re arrested.  Stick it in the trunk along with your gym bag; that seems to be the only place where the 4th Amendment maintains a little dignity.

Read the opinion here!


E-MAIL gets 4th Amendment Protection

The Sixth Circuit United States Court of Appeals, Tuesday, ruled that e-mail is legally protected by the Fourth Amendment. It determined in a 3-0 vote that users still had a reasonable expectation of privacy online, that e-mail was similar to traditional communication and thus that the government still needed a search warrant to intercept and read e-mail.

The Court stated:

Given the fundamental similarities between email and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford emails lesser Fourth Amendment protection…. It follows that email requires strong protection under the Fourth Amendment; otherwise the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve…. [T]he police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call–unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement….

Applying the Fourth Amendment sets the first legal precedent of its sort and could prevent the government from any further attempts to snoop civilian e-mail without a warrant.

Read the opinion here!


By An Anonymous Student

In October of this year TSA was able to implement the new pat-downs or body scans.  Not everyone will need to do these.  There is much criticism over these new pat-downs and body scans and that is due to people feeling like their privacy is being invaded.  Not to mention, the delay associated with the search is making lines at the airport much longer then they have typically been.

I know we all can agree that we want it to be safe for us to travel by plane, but at what cost?  It wasn’t an easy decision for TSA to make in changing how they do their security checks; they had to get approval all the way up to the white house and give reasons for the change.  A lot of people seem to think that pat-downs are going above and beyond a reasonable search.  Some people feel as if they have been assaulted.

TSA already uses a method called profiling;  “behavioral and country-of-origin profiling” to be exact. This method is how they determine whom to subject to secondary screenings.  The pat-downs really only occur about 1 in every 100 passengers.  Usually, pat-downs would be done when someone refuses to go through the body scan.  They also occur randomly, or if the airport doesn’t have a scan machine.

No one is exempt from these new security checks, including kids and elderly.  Subjecting children to pat down searches raises concern to some that their children are being touched on parts of their body that they have never been touched before.  Critics argue, on the other hand, that it’s just as easy to use a child to bring a bomb on a plane as it is an adult.  One has to wonder if they are doing these new security checks on your body, then what more are they doing with your bags.

Advocates argue that while these new security measures may seem like they are taking away our rights to privacy, they are here for the point of making our country safer. You don’t hear much if any about bombs being smuggled in on a person traveling from the U.S. to another country.  The reason for this is because their security is so high there and the punishment is so harsh that it detours people from even trying.

So, what can we make of all this?  Well, it may be as simple as more people resorting to other ways we use to travel — car, train or even bus.  Leaving airlines with no ticket holders can lead airlines bankrupted and many would loose their jobs. But that is unlikely. Efficiency and speed dictate the airlines will be here to stay, and with it the enhanced invasions. Security has it’s price in one way or another.



Loose Lips Sink Ships

There’s and old saying; I’m sure you’ve heard it. “Loose lips sink ships.” It an old adage about keeping your mouth shut so the enemy can’t find you, and destroy you. As a criminal defense attorney I am amazed at the number of people who find it compelling to talk to law enforcement about their cases with the hopes of them “dropping the charges.” And with the recent developments of Tiger Woods and his refusal to speak with law enforcement about his accident, I am amazed at the number of “legal experts” who are going on the record saying that Tiger should have spoken with the police. WHAT?! Are you serious? A legal expert said that?  Yeah, maybe a prosecutor! Every prosecutor loves a confession.  It makes their job so much easier! (Not that it wasn’t easy enough to begin with).

Anyway, my law partner recently watched these so called “legal experts” and was appalled by their “come hither and tell me your secrets” attitude.  It kind of reminds me of Kaa, the snake, in Jungle Book, hypnotizing young Mowgli saying “trusssst in meeee…” as he slowly wraps himself around him, to crush him and eat him. However, she was greatly with impressed with the Today Show’s legal reporter Dan Abrams for sticking up for the Constitution and the Right to Remain Silent. So much in fact, she drafted an email to the show:


As a criminal defense lawyer, I am shocked and dismayed to see the parade of so-called legal experts declaring that Tiger Woods made the wrong decision by choosing not to talk to police about the accident at his home.  With the exception of Dan Abrams (go Dan!), I have not heard anyone assert the very important fact that Tiger and every other individual in America have the absolute right NOT to talk to authorities.  In thirteen years of criminal practice, I have never seen a situation where making a statement to police led to anything positive.  Law enforcement leads the general public to believe that they will not file or will drop the charges “if you just explain.”  This is far from true. Rather, if they didn’t have enough evidence to charge you before, you just gave it to them by talking.  I wish more of my clients would follow Tiger’s example and exercise their constitutional right to remain silent!

Lia Fazzone, Esq.

Way to go Lia!

So, what can we learn from all of this? It used to be patriotic to keep your mouth shut.  So, just follow Uncle Sam’s advice:

ISPs: The new police on the virtual streets…

Some time ago, I wrote about the “Geek Squad” from Best Buy acting as agents for law enforcement and monitoring the data on customers’ computers when they brought their machines in for servicing. (See “Geek Squad” has whole new meaning… from October 4, 2007).

I am all for protecting children and the prosecution of those who knowingly and/or intentionally seek, view, display, disseminate or create materials that sexually exploit children. The issue I had there was with theBest Buy Geek Squad searching a man’s computer and the deputization of local computer repair guys as government agents to search through people’s files and ultimately turning them into government actors, especially if they are working in coordination with local and national law enforcement as informants and butchering the United States Constitution.

And now, it has gone one more step further.

According to MSNBC, “new technologies and changes in U.S. law are adding to pressures to turn Internet service providers into cops examining all Internet traffic for child pornography.” (Source) The story states that

One new tool, being marketed in the U.S. by an Australian company, offers to check every file passing through an Internet provider’s network — every image, every movie, every document attached to an e-mail or found in a Web search — to see if it matches a list of illegal images.

Clearly, privacy advocates are in an uproar about the program.  According to MSNBC

Privacy advocates are raising objections to such tools, saying that monitoring all traffic would be an unconstitutional invasion. They say companies can’t start watching every customer’s activity, and blocking files thought to be illegal, even when the goal is as noble as protecting children.

The law requiring ISPs to monitor such files easily passed Congress and was signed into law by President Bush last week,

Read the full story here.

Border Searches of Laptop Computers

Believe it or not, but the 9th Circuit Court of Appeals recently upheld warrantless searches of people’s lap top computers by Department of Homeland Security Agents at the border.  Under the decision, Agent had unbridled access to search laptop computers of people entering the United States regardless of whether they believed the individual had committed, was committing or would be committing a crime.  In legalese we call that type of search one without “reasonable suspicion” or “probable cause.” It seems, however, that Congress is trying to better define the searches.

A new bill introduced to Congress last week reportedly limits the Department of Home Security, Customs and Border Patrol agents when searching your laptop, external hard drive or mobile device.

“I was deeply concerned to learn about the lack of protections individuals’ have when their electronic equipment is randomly seized,” Rep. Loretta Sanchez (D-CA), who introduced the bill, told Ars Technica. “With the passage of the Border Search Accountability Act of 2008, Americans will be able to travel with more peace of mind knowing that their data will be further protected and that there are stringent accountability measures in place for safeguarding their personal information.”

Unfortunately, the Bill does not make the searches more difficult to conduct. The 9th Circuit Judges noted that precedent already allows searches of 1) briefcases and luggage, 2) a purse, wallet, or pocket, 3) papers found in pockets, and 4) pictures, films, and other graphic material. They had no hesitation to extend it to lap top computers.  There were attempts to limit the decision to the protection of the territorial integrity of the United States. While such searches would not appear to be legal within the country, courts have long recognized the government’s right to “protect its territorial integrity” by controlling the material passing across its borders.

I’m having a difficult time with this. The Patriot Act was passed to obstruct terrorism but i have seen prosecutors bootstrap that law onto cases where there wasn’t even a breath uttered about terrorism. I wouldn’t doubt an ambitious prosecutor’s efforts to use the 9th Circuit case to justify a search within the territory.

For those of you traveling abroad … leave the lap top at home.