Point of Law

In 2004-2005, Antoine Jones was the subject of a drug investigation in and around the District of Columbia (Washington D.C.).  In 2005, federal agents sought a federal warrant authorizing the use of a GPS tracker on a Jeep owned by Antonine’s wife, but used exclusively by Antonine.  The warrant was to be executed within 10 days, and the GPS unit placed upon the Jeep while the Jeep was in D.C.  Neither of those things happened.  Agents placed the GPS on the Jeep on the warrant’s 11^th day, and in Maryland, effectively making the search warrant moot.  The GPS was then monitored for 4 weeks.  Antonine was later indicted and convicted of cocaine distribution.  Some of the evidence used by the government in the trial was gained through the use of the GPS.  Antonine complained that the government needed a search warrant to use the GPS unit.  The case ended up in the U.S. Supreme Court, and last week in a 9-0 vote the Court held that a search warrant was required to install AND monitor a GPS unit for a lengthy period of time.  It is still up in the air whether simply installing a GPS, but not monitoring it, requires a warrant; and, it is unknown whether placing a GPS and monitoring it for a period of time less than 4 weeks requires a warrant.  The best practice until the dust settles is to get a warrant for all GPS installations; or, if you have one warrantlessly-installed now, and probable cause exists, go to a judge and get a warrant to continue; tell the court of the current installation, and do not use any information gained from the GPS prior to the issuance of the new warrant in the affidavit.

The Court split three ways on its reasoning about why the Fourth Amendment had been violated, and those differing opinions are more involved than needs to be discussed here.  But, suffice it to say that new technology and the Fourth Amendment will be hot in the coming years; and, the courts will be grappling with new societal “reasonable expectations of privacy” and government “trespassing.”  I predict that in the coming cases (and legislative fixes) past law enforcement assumptions on which investigative techniques do not require warrants will get roughed up a little.

Florida v. Joelis Jardines; 11-564

BY: Colin Wood (USAKS)
UPDATE:  January 12, 2012

We talked about this pending case a week or so ago.  The U.S. Supreme Court has now decided to review one of the two questions presented in that “dog sniff at a residence door requires probable cause”  case.  The Court agreed to decide whether the Florida Supreme Court was correct in holding that officers are required to have probable cause of a crime prior to deploying a dog at the door of a house; but, somewhat surprisingly will not review the second question in the case: whether it is automatically a 4th Amendment search when officers are simply maintaining a perimeter and remaining outside a residence awaiting a search warrant. 

Not sure why the Court is not formally going to take up that second question, and maybe they will informally address it when answering the first question.  If the Court does not in any way take up the second question (like, “that is just so stupid we are not going to even talk about it”), the worst case scenario will be the second-question-craziness will only be the law in Florida.  So, we should know about the dog sniff part of the case by summer.  Stay tuned.

BY: Colin Wood (USAKS)
DATE: Wednesday, January 04, 2012 3:50 PM

The U.S. Supreme Court should decide this week whether to hear a new dog sniff case from the Florida Supreme Court.  Franky, a loveable 8 year old chocolate Lab working for the Miami-Dade Police Department, was deployed in 2006 at the front door of the Joelis Jardines residence during the investigation of a Crimestoppers drug tip.  After Franky alerted to the odor of marijuana at the door, Franky and his handler left.  A detective then approached the front door and while there also smelled the “scent of live marijuana.”  No one responded to the detective’s knocking.  The detective left to obtain a warrant, and numerous other local and federal officers sealed off of the residence, all in public view.  During the later execution of the search warrant, a marijuana grow was found inside the house.  Currently, the law nationally is 1) a dog sniff is not a search and requires no suspicion to perform as long as the handler and dog have the right to be in the place of the sniff; and 2) the public front door of a residence is a place the officer and dog had the right to be.

State v. Oram; No. 104,163

Reference:  Inventory Searches

BY: Colin Wood (USAKS)
DATE:  Wednesday, December 07, 2011

The appellate courts have not been too active the past couple of months on street law enforcement issues so you have not seen a summary for awhile.  But, man, did we ever take a drubbin' in a case last Friday.  The case involved multiple issues (all losers to the State), but as a practical matter for your future investigations only the holding concerning inventory searches is important.

Misty Oram, along with her passenger, Emanuel Butler, were stopped for a traffic offense.  During the event, Butler was arrested on a warrant and Oram was arrested for obstruction.  A search of the car was performed.  Multiple and somewhat conflicting justifications/testimony were later given for the search, including  “inventory search”.  This Court of Appeals panel held that the search was illegal, and then went on to give us some new guidance for inventory searches in Kansas.

You will remember that inventory searches are an exception to the warrant rule because it is reasonable for police agencies to safeguard seized property and to protect the agencies from allegations of theft.  But, for such safeguarding to occur, a law enforcement agency has to know what property they have in their custody.  Therefore, following a lawful seizure (many times a vehicle impoundment) the agency is allowed to do an inventory of the property.    

An inventory search is NOT to be used to further a criminal investigation.  However, should during a valid inventory search an officer locate  evidence of a crime, the evidence may be seized.  Inventory searches in Kansas are to be conducted pursuant to an established, written agency policy. 

The panel emphasized that at a suppression hearing the burden is on the State to show the legality of a warrantless search.  Since the State had failed to put on evidence of the agency's inventory search policy, or that the policy had been followed, or that an inventory of the property had actually been performed, this particular inventory search could not be upheld.  “Although incriminating evidence may be discovered as a result of an inventory search, it should not be its purpose.  An inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.  The policy or practice governing inventory searches should be designed to produce inventory…..the individual police officer must not be allowed so much latitude that inventory searches are turned into ‘a purposeful and general means of discovering evidence of a crime.”

So, the bottom line today is 1) inventory searches are only reasonable because they protect owners and law enforcement agencies; 2) inventory searches are not intended to seek out criminal evidence or to further a criminal investigation; and, 3) at a suppression hearing, the State will be required to put on evidence of a written agency policy, that the officer followed the policy, and that an inventory of the property was actually performed.

Officer Awareness Bulletin:
Impeachment via Social Network Websites

Washington Regional
Threat and Analysis Center
2720 Martin Luther King, Jr. Avenue, S.E.,
Washington, D.C. 20032
202-481-3007  |  202-563-2768 (Fax)

Issue:
Postings on social network websites such as Facebook and MySpace have been used to successfully attack law enforcement officers' credibility in courts.

Examples:
In a New York State court, a NYPD officer was questioned by the defense attorney regarding statements he had posted on his Facebook webpage that portrayed him as a rogue cop. At the conclusion of his testimony, what should have been a slam-dunk "ex-con with a gun" case, resulted in an acquittal for the defendant because of the reasonable doubt created by the officer's own postings on Facebook and MySpace. In other words, his own website statements were used to impeach him.

Convictions rest on the credibility of the officer(s). The defense strategy was to show the jury that what the officer writes about himself on social network websites is how he "really" conducts police work. The suspect in this case claimed that the officer used excessive force on him and broke three ribs. The suspect went on to allege that when the police officer realized that he would have to explain the broken ribs, he "planted" a stolen 9mm Beretta on the suspect and charged him with the offense.

The officer in this case had made questionable social network postings but claimed it was simply bravado, similar to what might be said in a locker room. But the difference between jokingly "talking' trash" in person and posting it on the Internet is that postings are preserved indefinitely on a digital server. One of the notable postings introduced to the jury was that the officer watched the movie "Training Day" (a motion picture that displayed corrupt police behavior and brutality) to brush up on "proper police procedure." Another series of postings revolve around miscellaneous internet video clips of police arrests. One of his postings said, "if he wanted to tune him up some, he should have delayed cuffing him." In another he added, "If you were going to hit a cuffed suspect, at least get your money's worth 'cause now he's going to get disciplined for a relatively light punch."

In another example of poor judgment, an Indiana State Trooper foolishly posted comments on his Facebook page that were in direct conflict with the policies and procedures of his own department. In one comment he shares his views of police work, referring to himself not a state trooper, but as a "garbage man, because I pick up trash for a living." Another comment was, "These people should have died when they were young anyway, I'm just doing them a favor." An off-duty picture posted by the officer shows him holding a gun to a fellow officer's head. Both officers had been consuming alcohol, which the officer personally validated when he posted that they were "drinking lots of beer" that day.

Social Network Consequences:
Take a moment to consider the consequences of how a skilled defense attorney would use these postings to aid in the defense of their clients. In law enforcement work, there are no second chances when it comes to one's integrity and social network postings are available for the world to see and use, even when made in jest, so think through the significance and possible consequences of all postings before you hit the ENTER Button, and preserve them on a digital server for all of eternity.

MPD Policy Reference is found in the MPD Sworn Law Enforcement Officer Code of Ethics, GO-RAR-201.36, dtd April 11, 2005. Section III - Regulations...
"I will keep my private life unsullied as an example to all, and will behave in a manner that does not bring discredit to me or my agency."

Related Materials
Brady v. Maryland (1963)
Under Brady, evidence affecting the credibility of the police officer as a witness may be exculpatory evidence and shall be given to the defense. Indeed, evidence that the officer has had in his personnel file that displays a sustained finding of untruthfulness is exculpatory to the defense.

Tennison v. City and County of San Francisco (2008)
The Ninth Circuit U.S. Court of Appeals held that "exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does. That would undermine Brady by allowing the investigating agency to prevent production by keeping a report out of the prosecutor's hands until the agency decided the prosecutor ought to have it..." This ruling reiterates that the investigating agency is a part of the prosecutorial team.

Source: Derived from Los Angeles County Sheriff's Department News Letter, Vol. 9, No. 7, dtd May 27, 2009

References/Citations
Dwyer, Jim. "The Officer Who Posted Too Much on MySpace." New York Times 10 March 2009.

Segal, Bob. "Trooper in Trouble Over Facebook Photos." Indianapolis WTHR13 24 March 2009

Noble, Jeff (October 2003). Police Officer Truthfulness and the Brady Decision. The Police Chief, vol. 70, no. 10, Retrieved March 18, 2009

MPD Manual of Policy & Procedure: 3-01/000.10 - Professional Conduct

Brady v. Maryland (83 S. Ct. 1194).

Tennison v. City and County of San Francisco (548 F.3d 1293).
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Arrests and Detentions of Foreign Nationals

Whenever a foreign national is arrested or detained in the United States, there are legal requirements to ensure that the foreign national's government can offer him/her appropriate consular assistance. In all cases, the foreign national must be told of the right of consular notification and access. In most cases, the foreign national then has the option to decide whether to have consular representatives notified of the arrest or detention.  In some cases, "mandatory notification" must be made to the nearest consulate or embassy "without delay," "immediately," or within the time specified in a bilateral agreement between the United States and a foreign national's country, regardless of whether the foreign national requests such notification.