“The war is basically a question of numbers: stop enough cars and you’re bound to discover drugs,” wrote Senior Judge Kathryn H. Vratil of the Federal District Court. “And what’s the harm if a few constitutional rights are trampled along the way?”
Always nice, especially given its rarity, to see a federal judge sticking up for the rights of ordinary citizens. The Fourth Amendment to our Constitutional prohibits unreasonable searches and seizures of our persons and things.
"No" the Supreme Court has answered in Collins v. Virginia. The case arises from an intersection of two prongs to the Fourth Amendment: (1) the protection offered a home and its immediate surroundings (called "curtilage") and, (2) the automobile (better called the motor vehicle) exception to the warrant requirement.
Here's what happened. Police became suspicious that Ryan Collins had and was operating a stolen motorcycle. They set up surveillance of Collins'residence and saw parked there at the top of the driveway a motorcycle covered by a tarp. A police officer walked up the driveway, lifted up the tarp, recorded the license plate and VIN numbers, which were then used to confirm that the motorcycle was stolen. Collins was later arrested at the house, while standing in its front door, and charged with receiving stolen property.
Collins argued that the Fourth Amendment prohibited police from walking up the driveway of his residence and examining the motorcycle. The state, having nothing better to rely upon, argued that the vehicle exception to the Fourth Amendment applied and allowed the warrantless search.
The Court held that the vehicle "exception [to the Fourth Amendment] does not permit an officer without a warrant to enter a home or its curtilage in order to search the vehicle therein."
This seems an easy case and, indeed, the ruling commanded an 8-1 majority. Unsurprisingly, Justice Alito dissented and colorfully lambasted the majority:
An ordinary person of common sense would react to the Court's decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life. If that is the law, he exclaimed, "the law is a ass – a idiot." C. Dickens, Oliver Twist 277 (1867).
That is harsh and misdirected criticism since all the Court was doing was applying the very core of the Fourth Amendment's purpose:
When it comes to the Fourth Amendment, the home is first among equals. Florida v. Jardines, 569 U.S. 1, 6 (2013).
To give full practical effect to that right, the court considers curtilage – "the area 'immediately surrounding and associated with the home -- to be part of the home itself for Fourth Amendment purposes. Oliver v. United States, 466 U.S. 170, 180 (1984).
The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened. California v. Ciraolo, 476 U.S. 207, 212-13 (1986).
Justice Alito will likely go his entire tenure on the Supreme Court without ever voting for a criminal defendant; for some umpires with some batters it is a strike every time. According to him, government agents should be able to walk right onto your property and rummage around in your belongings. Wake up, Sam!
Does the Fourth Amendment apply when a rental car is stopped and the driver is not an authorized driver? As a general rule, yes, the Supreme Court ruled recently in Byrd v. United States.
Terrence Byrd and his girlfriend, Latasha Reed, drove to Budget car rental center. Reed went in and rented a Ford Fusion, while Byrd stayed in his car. Reed signed the rental contract stating that she would be the only driver, and it included notice that the agreement would be violated if an unauthorized driver drove the vehicle. Nevertheless, Byrd drove off in the Fusion and Reed left driving Byrd's car, a Honda.
Byrd headed toward Pittsburgh. He provoked suspicion, according to the Court, "because he was driving with his hands at the '10 and 2' position on the steering wheel, sitting far back from the steering wheel, and driving a rental car." The opinion does not identify Byrd's race, but that explanation strongly suggests that Byrd provoked suspicion for driving while black. In any event, Byrd was stopped "for a possible traffic infraction." The police officer described him as "visibly nervous." After inspecting the rental agreement and finding that Byrd was not an authorized driver, the law enforcement officers decided that Byrd had no Fourth Amendment protections, search the car and recovered drugs.
The Court ruled in Byrd's favor holding that, "as a general rule, someone an otherwise lawful possession and control of a rental car is a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver."
The Court didn't give Byrd a complete victory, however. The case was sent back to the lower courts to address the question of whether one who intentionally uses a third-party to procure a rental car by fraudulent scheme for the purpose of committing a crime may have Fourth Amendment protections. In other words, did Byrd use Reed to get a rental car for the purpose of using the rental car to deliver drugs to Pittsburgh?
"Many good Fourth Amendment stories begin with dogs" and, so it is, a dog's sniff alerted law enforcement to the presence of methamphetamine in a package addressed to "B. PERKINS" at an address in Belvidere, Tennessee. B. PERKINS, according to information known to law enforcement and a trusted confidential informant, was a meth trafficker. A DEA officer obtained an anticipatory warrant to search Perkins' residence.
An anticipatory search warrant is one for which probable cause is contingent upon an anticipated future event; in other words, if this happens, it will establish probable cause for the warrant that may then be executed. The contingent event, as set out in the warrant, was for a DEA officer, a Brewer, to "hand deliver the above mentioned package to PERKINS." So, upon hand-delivery of the package to PERKINS the contingency would be fulfilled, and the warrant effective.
But things got fouled up, perhaps because agent Brewer didn't read the warrant the court suggests, and the package was not delivered to PERKINS but to an unknown woman (later determined to be Perkins' fiancee) who answered the door. Nevertheless, law enforcement then executed the search warrant and recovered at least the meth in the package.
The government's argument was that hand-delivery to the unknown woman at the residence was close enough. Not good enough the Court ruled:
In this case, requiring delivery to Perkins is the only common sense reading of the warrant's triggering event. Hand-deliver "to Perkins" means hand-deliver "to Perkins." This reading is hardly hypertechnical.
By contrast, the government's interpretation lacks common sense. In its view, there is no need to read the triggering event to require hand-delivery "to Perkins." Instead, we should just read it to say "to anybody inside the residence with apparent authority to accept delivery." But the replace-some-words canon of construction has never caught on in the courts. And there is no reason it should here. Plus, it is not as if requiring delivery "to Perkins" was unintended.
The stop of a vehicle requires a reasonable suspicion that an occupant has been engaged in criminal activity or is, for some other reason, subject to seizure, i.e., arrest. If the registered owner of a vehicle is the subject of an outstanding arrest warrant, he or she would be subject to seizure, so is that fact alone enough to support a constitutional stop of the vehicle? The Kentucky Supreme Court has just addressed and slightly blown the answer to this question in Traft v. Commonwealth.
Traft was driving "during the early morning hours" and a deputy sheriff determined from a license plate check that the registered owner of the vehicle was the subject of an outstanding arrest warrant for missing a court appearance. The deputy sheriff "could not even discern the gender or race of the truck's driver, much less identify [Traft] as the driver." There were no alleged traffic violations. The driver, Traft, was found to be intoxicated when he was pulled over. Traft was charged with DUI, lost on a motion to suppress, entered a conditional guilty plea and had the suppression ruling affirmed by both the circuit court and Court of Appeals.
Traft first argued, somewhat implausibly, that he possessed an expectation of privacy in the information shown on his vehicle's license plate. The Court rejected that argument, although in a kind way.
Traft's second argument was that the deputy sheriff could not tell that he was driving the truck, could not tell the race or gender of the driver, and took no further investigative steps before pulling it over. The Court rejected this argument also and overstated its ruling, which is where the mistake was made:
While it is true that [the deputy sheriff] did not know the identity of the driver when he initiated the stop, we hold that the fact that the owner of the vehicle was subject to seizure for violation of law creates an articulable and reasonable suspicion for an officer to initiate a traffic stop.
The mistake here is that the Court's ruling sweeps too broadly. What about a situation where the information available to the law enforcement officer is that a vehicle is registered to a female, who is subject of an outstanding arrest warrant, but the officer sees that the vehicle contains only men and gives testimony such as the following:
Q: You’ve determined that the registrant of the car was Angela Burdine?
A: That’s correct.
Q: You recognized Angela – or believed Angela Burdine was a woman, correct?
A: Yes.
Q: And you hadn’t seen any women – didn’t appear to you that there was a woman in the car, right?
A: That’s right.
…
Q: But the information available to you at the time that the car stopped along the interstate was there’s three males in there, right?
A: Yes.
Q: And your resolution is, well, maybe I’ll stop ‘em and look in there and see if Angela Burdine’s in there, right?
A: That’s right.
Q: Now, you had no idea who the three male occupants were at the time you stopped the car, correct?
A: That’s correct.
Where the officer has information readily available to him or her indicating that the registered owner is not in the vehicle, there is no reasonable suspicion that anyone in the car is subject to seizure. This is the issue presented to the Sixth Circuit in United States v. Pyles, No. 17-6334.
Meanwhile, the Kentucky Supreme Court's failure to cabin its ruling consistent with the facts before it will cause many, many vehicle stops that are unsupported by reasonable suspicion of any kind that the occupants are subject to seizure.
Generally, under American law an unreasonable act equates with negligence giving rise to liability for the wrongful conduct. The Fourth Amendment, of course, prohibits unreasonable searches and seizures, at least until the Supreme Court's distressing decision last week in Utah v. Strieff.
The initial sign of a bad moon rising was the identity of the majority opinion's author, Justice Clarence Thomas.
The case started with an anonymous tip to police about drug trafficking activity going on at a particular residence. Police conducted some surveillance but apparently or presumably not enough to establish probable cause, since no search warrant was sought, although one was not needed and will not in the future be sought given the Court's decision. Police observed Strieff leave the location and stopped him in the parking lot of a nearby convenience store, conducting what is known as an "investigatory stop,", which means detaining an individual to find out who he or she is and what he or she claims to be up to. It was conceded that there were no lawful grounds for this investigatory stop, a stop that requires only a reasonable suspicion that criminal activity may be afoot. So it would seem, as far as the Fourth Amendment is concerned, that there no reasonable basis to make this investigatory stop.
Nevertheless, the stop was made, a warrant check run, which revealed some type of outstanding traffic tickets and warrant, the defendant was arrested and the search incident to his arrest revealed a small quantity of drugs.
The Court reversed the Utah Supreme Court and held that the unconstitutionality of the initial stop could be disregarded because of the fact of the outstanding warrant, which, in turn, allowed an arrest and, in turn, allowed a search incident to arrest.
Part of the court's rationale was that "the stop was an isolated instance of negligence [.]" Nearly all stops of all individuals are isolated instances. This is how the law disappears, by being made meaningless.
Freedom from malicious prosecution, according to the Sixth Circuit, is a clearly established Fourth Amendment right. To prevail on a malicious prosecution a plaintiff must prove that (1) the defendant made, influenced or participated in the decision to prosecute the plaintiff; (2) there was no probable cause for the criminal prosecution; (3) "as a consequence of the legal proceedings, the plaintiff suffered a deprivation of liberty apart from the initial arrest"; and, (4) the criminal proceedings resolved in the plaintiff's favor. The Sixth Circuit discussed these elements recently in Webb v. United States, a case arising from a disturbingly widespread endeavor to frame a number of individuals as part of a drug investigation. See Mansfield, Ohio DEA Drug Sting Self-Destructs When Informant Admits Manufacturing Evidence.
Within the meaning of the first element, "the term 'participated' should be construed within the context of tort causation principles. Its meaning is akin to 'aided.' To be liable for 'participating' in the decision to prosecute, the officer must participate in a way that aids in the decision, as opposed to passively or neutrally participating."
The Sixth Circuit made the following rulings regarding this issue as to the defendants: (1) where the indictment was based solely on one defendant's (Lucas's) testimony, "there is no doubt that Lucas participated in the decision to prosecute"; (2) defendant Metcalf, who misdated the date on which a phone call supposedly occurred, could have influenced Lucas to testify falsely to the grand jury and also influenced the prosecutor's decision to bring charges. Metcalf's misconduct was prolific and included "concealing exculpatory video evidence, altering the transcripts of recordings, and perjury," all of which would allow a reasonable jury to conclude that Metcalf intended to falsely incriminate the plaintiff.
The Fourth Amendment does not permit police to extend a traffic stop after they have completed all the traffic and safety business related to the stop the Supreme Court ruled 6-3 yesterday in Rodriguez v. United States. The ruling appears to stem the slow disappearance of Fourth Amendment rights that the federal courts had created by their "de minimis" rule, a doctrine that sanctioned the continuing erosion of a basic constitutional right.
Rodriguez was driving a Mercury Mountaineer on a state highway in Nebraska shortly after midnight. A police officer Struble saw the Mountaineer veer briefly up onto the shoulder and stopped it. Struble questioned Rodriguez and his passenger, checked if either had any outstanding warrants and issued Rodriguez a written warning. At that point, as Struble later testified at a suppression hearing, "I got all the reasons for the stop out of the way." Nevertheless, Struble further detained Rodriguez and the vehicle for an additional 7-8 minutes while he walked a drug dog around the vehicle; the dog, of course, alerted and Rodriguez was charged with a drug crime.
A magistrate judge conducted the suppression hearing and found as fact that no reasonable suspicion of possible criminal activity by Rodriguez existed to extend the traffic stop beyond the time that Struble "got all the reasons for the stop out of the way." The lower courts rejected Rodriguez's suppression motion and ruled that the short violation of Rodriguez's Fourth Amendment rights was "de minimis" and unworthy of constitutional recognition.
The "de minimis" rule is much loathed in some quarters, as it sanctions the continuing erosion of the Fourth Amendment's prohibition on unreasonable seizures. After all, if an extra seven minutes of detention isn't worthy of constitutional concern, eight isn't either, and, if an extra eight minutes of detention isn't worthy of constitutional recognition, nine isn't either and so on and so on.
The Court's ruling draws a simple line:
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, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.
Key to the ruling here is the absence of any reasonable suspicion of some criminal activity to justify extending the seizure to let the drug dog work. A contrast is presented by the Sixth Circuit's recent ruling in United States v Winters, where it held that reasonable suspicion existed to justify extending the seizure for the drug dog inspection.
