Category Archives: Evidence

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.

 Brilliant!

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.


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!

MSNBC Link


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!


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:

Dear TODAY:

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.


A Cop’s Opinion isn’t Expert Opinion

As I promised, I was going to give you an update to the story below about entrapment and how it was affecting a trial I was just involved in. And that event is still to come. However, equally as important is to give you a little taste of my trial and how I wanted desperately to convince the judge in this trial to keep out a police officer’s opinion that my client was involved in a drug deal. To give you a little bit of a background (please note that the names have been changed to protect the legally challenged), the Investigator asserted in his report that

“At approximately 8:30 p.m., [the] Investigator drove past [my client] in the parking lot. This male looked towards the Investigator and nodded his head several times. [The] Investigator has participated in undercover narcotic operations in this area for a year and half, and has completed nearly thirty (30) crack cocaine transactions. [The] Investigator has learned through training and experience that street level narcotic dealers will nod and waive at passing vehicles and pedestrians in an attempt to attract potential customers.”

Yes, I know what you are thinking. You need to turn yourself in for narcotics dealing, and you didn’t even know it. To quote Patrick from Spongebob Squarepants “I didn’t even know I was an alien.” And these are the officials we have entrusted to our streets. Careful as to who might be watching the next time you try to get someone’s attention.

Obviously, I saw an opportunity to pounce on this investigator (figuratively of course) and file a motion to keep his speculative and unsupported (lame man’s) opinion to himself at trial. I never got the opportunity but, here’s what I was ready to argue (please note that because this was a Colorado case, I was applying Colorado law. Please don’t think for a moment that this analysis applies in every state, or even in federal court, or that it would even fly again here in Colorado. Hire a good lawyer first) :

Under Colorado law, opinion evidence is expert testimony and is now determined by Colorado Rule of Evidence 702 and its applicable case law. The Colorado Supreme Court has determined that C.R.E. 702 and 403 represented a better standard for determining the admissibility of scientific evidence than the general acceptance test set forth in Frye v. United States, 293 F. 1014 (D.C. Cir. 1923). People v. Shreck, 22 P.3d 68 (Colo. 2001). The Shreck Court noted that this is due to the fact that the flexible approach represented by the Rules considers a wide range of issues. The Shreck Court noted that the approach set forth in the Rules was to be applied to all scientific evidence and not limited to the novel scientific evidence previously governed by the standards set forth in Frye v. United States, 293 F. 1014 (D.C. Cir. 1923.) Pursuant to 702 and 403, the focus of a court’s inquiry should be to determine: (1) the reliability of the scientific principles as to which the witness is testifying; (2) the qualifications of the witness to opine on such matters; and (3) the usefulness of the testimony to the jury in understanding the evidence or to determine a fact in issue. Id.

As further modified under Masters v. People, 58 P.3d 979 (Colo. 2002), the Shreck four step analysis requires 1.) the opinion and the knowledge on which the opinion is based be reasonably reliable; 2.) the expert is qualified to give the opinion; 3.) the testimony will assist the jury, and 4.) the probative value is not outweighed by the danger of unfair prejudice or other trail concerns of Rule 403. The Colorado Supreme Court also recognized that factors mentioned by other courts may be pertinent, including: (1) the relationship of the proffered technique to more established modes of scientific analysis; (2) the existence of specialized literature dealing with the technique; (3) the non-judicial uses to which the technique are put; (4) the frequency and type of error generated by the technique; and (5) whether such evidence has been offered in previous cases to support or dispute the merits of a particular scientific procedure. See Shreck, 22 P.3d 68.

Furthermore, in applying C.R.E. 702 to determine the reliability of the evidence, the court should consider a wide range of factors, including those set forth in Daubert v. Merrell Dow Pharaceuticals, Inc., 509 U.S. 579, 593-94 (1993). Under Daubert, the Supreme Court enumerated a non-exclusive list of “scientific validation factors” a court might consider to wit: (1) whether the technique can and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the scientific technique’s known or potential rate of error, and the existence and maintenance of standards controlling the technique’s operation; and (4) whether the technique has been generally accepted. Daubert, 509 U.S. 579.

In the present case, the scientific determination that “[the] Investigator has learned through training and experience that street level narcotic dealers will nod and waive at passing vehicles and pedestrians in an attempt to attract potential customers” is not evidence or testimony that the finder of fact should be allowed to consider as testified to by the Investigator due to the lack of scientific reliability under Daubert, Shreck, and the subsequent cases. This expert statement is not backed by any proof, peer review, publication or otherwise scientific research and application. Moreover, the Investigator is not qualified to make this statement as fact or present it as evidence within any degree of scientific certainty. The Investigator’s opinion as to this fact is not sufficiently reliable to be used by the finder of fact to determine the underlying issue in this case.

And what I really wanted to tell the judge:

Not to mention, it’s just damn silly as hell.