Category Archives: Fourth Amendment

Your Home is no longer your Castle

According to the Indiana Supreme Court in a 3-2 decision this week. Barnes v. State.

From the dissent:

The poorest man may in his cottage bid defiance to all the forces of the Crown.  It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!

The same is no less true today and applies equally to forces of the State.

From the majority:

In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.

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From Consent to Marijuana

When I wrote last week’s post about how the evidence in drug cases has evolved from dropsy to consent, I had already decided what to write about this week. I planned on writing what I thought was the next step in the evidence evolution for the war on drugs – the smell of marijuana.

From the “anything you can do…” department comes Scott Greenfield who tells us that dropsy has not evolved into consent.

Consent has been part of the arsenal since those early, immature days.  As has the ability to use the few provable facts combined with the unprovable, like the “poignant” smell of marijuana, or the omnipresent glassine handed off, as seen from 700 yards away through two buildings and a parked car.  Whatever was needed, arose.

He’s right. Consent has been around and so has marijuana but it just seems that there has been a larger-than-life explosion in search cases with the smell of marijuana. This appears to be especially the case in traffic stops. I believe that it may have something to do with advanced technology.

In the old days a police officer pulled someone over and searched their car. If they needed a reason at court then consent was always a good answer. Nowadays though patrol cars are wired for video and audio recording. Pull someone over and it’s all on tape.  It’s good for prosecuting the bad guy.

The problem sometimes is that it’s all on tape – including the part where the defendant says: “No you can’t search my car.” At the risk of sounding cynical, the “smell of marijuana” takes care of that problem. To paraphrase Irving Younger: Surely, though, not in every case was the defendant unlucky enough to be smoking marijuana at the feet of a policeman.

And what if the traffic stop search doesn’t turn up any marijuana? Not to worry, there are other ways to handle the suppression hearing, including simply saying: I could’ve sworn I smelled marijuana.

From Simple Justice:

Times have grown more complicated, and the police have adapted.  No matter how good your fastball, you need to change it up with a curve every now and then.  Maybe even a spitball if the ump will let you get away with it.

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From dropsy to consent

Are police officers lying at suppression hearings? That question was raised last week by the Florida Court of Appeals in Ruiz v. State.  I think every criminal defense lawyer should read that opinion. In fact, I hope that everyone involved in the criminal justice system reads it.

Why is a court of appeals opinion from another jurisdiction important? It’s important because the court called it the way they saw it. The cops were lying:

the story told by the police is unbelievable.

Unfortunately, the court didn’t “see” it. They weren’t there to watch the witness testify. Under the standard of review, the appellate court defers to the trial court to judge the credibility of the witness. If the trial judge believed it, the appellate court accepts it.

Reluctantly, the court accepted it in Ruiz. They affirmed the conviction, but not before blasting away at consent.

The opinion quotes extensively from Younger, ‘The Perjury Routine,’ The Nation, May 8, 1967. Again, this opinion is well worth reading.

In Mapp  v. Ohio, 367 U.S. 643  (1961), the Supreme  Court  laid  down  the  rule  that  evidence obtained  by the police  through  an unreasonable search and seizure may not be used in a state criminal prosecution.

Before  Mapp,  the  policeman typically  testified  that  he  stopped  the  defendant  for little or no reason, searched him, and found narcotics on his person.  This had the ring of truth.  It was an illegal search (not based upon ‘probable cause’), but the evidence was admissible because Mapp had not yet been decided.  Since it made no difference, the policeman testified truthfully. After the decision in Mapp, it made a great deal of difference. For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that evidence was suppressed.  Then  the police made  the  great  discovery  that  if  the  defendant drops  the  narcotics  on  the  ground,  after  which  the policeman  arrests  him,  the  search  is  reasonable  and the  evidence  is  admissible. Spend a few hours  in  the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the  defendant  dropped the  narcotics  on the ground, whereupon  the  policeman arrested  him.  Usually  the very  language  of  the  testimony  is  identical  from  the case  to  another. This is now known among defense lawyers and prosecutors as ‘dropsy’ testimony.  The judge has no  reason  to disbelieve  it  in any particular case,  and of  course  the  judge must  decide  each  case on its own evidence, without regard to the testimony in other cases. Surely, though, not in every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman.  It follows that at least in some of these cases the police are lying.

“Dropsy” in 1970 has evolved into “consent” in 2010.  The more things change the more they stay the same.

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Is there a perjury routine at suppression hearings?

An appellate court case out of Florida came pretty damn close to getting it right last week. It read like a home run for the defendant and for citizens everywhere, but by the time all was said and done, it was merely a long fly ball.

Ruiz v. State involved the issue of an alleged illegal search and seizure. Two police officers testified that Ruiz gave consent to search his apartment. Ruiz testified that he didn’t. Typical hearing; two different stories. It’s up to the judge to determine who to believe and we know how that goes. The problem with Ruiz is that the police officers’ story doesn’t make any sense. On paper, it simply is not believable.

Right away you know the opinion is going to be a good one. The first sentence tells us we are in for a ride:

This case is a paradigm for a type of case that is common in our courts, where “consent” to a search is found under objectively questionable circumstances.

Here is the short version of the officers’ testimony.

They “nonchalantly” approached Ruiz on the street and “calmly” asked his name. He told them his name was Freddie and that his identification was upstairs in his apartment. He offered to take them up there if they wanted to see it.  They wanted to see it.  Ruiz led them up to his apartment and “motioned” the officers to come inside.  The police officers saw a scale and some cocaine residue in plain view. They arrested Ruiz and he told them about some cocaine hidden in a shaving cream can and some “weed” hidden in his dresser drawer.

Does that sound believable?

The defendant’s story was a little different.

Ruiz was on his way back from the store when three officers stopped their vehicle in front of him, jumped out with their guns drawn, and told him not to move.  Ruiz did not think he was free to leave.  One officer frisked him and asked for his identification.  Ruiz said he did not have any identification and  the police  said  they  would  arrest  him  if  he could  not  produce  some identification.  Ruiz said that his identification was in his apartment.  The officers escorted him to his apartment.  After he opened the door, the officers went inside and searched through everything.  Ruiz did not give the officers permission to enter his residence.

This case is a great illustration of what is typically wrong with suppression hearings.

Cases like this one call into question the fairness of some trial court proceedings.  On  the  pages  of  the  record,  the  story  told  by the police  is  unbelievable—an anonymous informant  gives  incriminating information;  police  surveillance  uncovers  no criminal  conduct;  the defendant  is  “nonchalantly” and “casually” approached by the police on the  street;  the  defendant  cooperatively  leads  the  police  back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband  in plain view, a fact certainly known  to  the defendant when he issued  the  invitation; after his arrest,  the defendant tells the police about all the hidden drugs in the apartment.

That’s pretty strong language: the story told by the police is unbelievable.

Unfortunately, the court affirmed the trial judge’s refusal to suppress the drugs: If believed, the detectives’ testimony supports the ruling.

Whoever wins at the trial level is almost always assured of victory at the appellate court. This is especially true if the issue is consent. The reason is that the appellate court is going to defer to the lower court for findings of fact. That makes sense because the trial judge gets to look at the witness and is therefore, in a better position to judge credibility.

I have yet to find a case where the appellate court reversed under this standard. If unbelievable is not enough, I’m not sure what it would take.

H/T: @kreyes

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Another Traffic Stop, Another Consent to Search, Another Reversal

An Arkansas Trooper pulled Lesa Menne over for speeding. After asking her for her driver’s license information, the trooper returned to his car and called for a drug dog. He wrote her a warning ticket. But before he handed it to her, he asked if he could search her car. She said she refused the request; he said she consented.

The trooper then searched her car and found drug paraphernalia and marijuana. The trooper also found methamphetamine in Menne’s purse.

The Arkansas Court of Appeals reversed her conviction in Menne v. State.

Therefore, based on the totality of the circumstances, we hold that the trial court committed error in denying Menne’s motion to suppress evidence. The legitimate purpose of the traffic stop was complete nine-and-a-half minutes after the initial stop when Trooper Roark, by his own testimony, had obtained, verified, and returned Menne’s documentation to her, he had completed his speeding investigation, and he had written the warning citation. Any consent given after that point by Menne was invalid, and the search was illegal.

H/T: John Wesley Hall, Jr. Note: Finally, cases are starting to recognize the deliberate stall in traffic stops.

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Justice? An Illegal Search – Part 1

Below is a picture of Justice, the drug dog, and his handler as they work their way around a car. A police officer previously radioed the handler and asked him to come to the scene of a traffic stop. He asked him to come to the scene with Justice and try to get consent to search the car.

You see the officer had stopped the rental car in a store parking lot for following too closely back on the interstate. The officer wanted to search the car, but the two young black men both said no. So, the officer said he was going to write a warning ticket. But before he would start writing the ticket, he would end up doing some other things.

He would ask them some questions. He really wanted to know why the young man who rented the car was in the passenger seat, while the other young fellow was driving. He really wanted to know where they had been. So he separated them and asked them.  He also wanted to know the last time they smoked marijuana. If it was in Georgia the officer explained then there was nothing he could do. They didn’t smoke marijuana. They did, however, smoke cigars – Black & Mild.

The young men had pulled off the interstate to use the restroom. When they asked if they could go, the officer had another idea. He asked the young men if they would agree to be searched. The officer had a constable with him and he helped with the search and the armed escort to the bathroom.

Back in the squad car, the officer radioed the drug dog handler. He explained that he had two young black men from out of state, traveling from Georgia to N.C. in a rental car, one had a prior drug conviction, and there was “shake” in the car (tobacco taken out of the cigars). He also said they had given different versions of where they had been: one said to watch a basketball game; the other to visit some girls. There was also some energy drinks in the car.

The officer did not say that he smelled marijuana. He never even used the word. He did ask the dog handler to try to use Justice to get consent to search the car.

When the dog handler got there, he asked the young men if he could search the car or whether he had to get the dog out.  They said no. So, he went and got Justice out and went about doing the tasks that drug dogs and their handlers do.

This is a picture of Justice’s handler after Justice did not hit or alert on the automobile.

The officer asked again if he could search the car, adding that he could have sworn he smelled marijuana earlier on one of the young men.

After the young men said no, the officer and the handler looked around and talked. But no one could hear what they said. Then they searched the car.

They searched the inside of the car. They did not find any contraband. Then they searched the trunk and found drugs.

This might be an amusing story if it were not for the fact that it was an illegal search that resulted in a 30 year prison sentence for one young man.

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