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Who Let the Dogs Out at SCOTUS?

November 1, 2012 in dog sniffs, Fourth Amendment, Illegal Search, Supreme Court by Adele Nicholas | No comments

The U.S. Supreme Court heard arguments yesterday in two cases involving drug sniffing dogs.

In Florida v. Jardines, 11-564, the court is considering whether police officers in Miami violated the 4th Amendment when they brought Franky, a dog trained to identify the odor of narcotics, to nose around the exterior of a private home without a warrant. Franky detected the odor of marijuana, and police obtained a warrant to search the house. That led to felony charges against Joelis Jardines. The Florida Supreme Court upheld the decision to suppress the pot, finding that the police tactic of using Franky to smell around a suspected grow house without a warrant amounted to an unconstitutional search. The U.S. Supreme Court accepted review of the case, which tests the outer boundaries of permissible police use of narcotics sniffing dogs.

In 2005, the Supreme Court approved warrantless drug sniffs of cars during routine traffic stops in the case Illinois v. Caballes. However, the sanctity of the home has always been the core concern of 4th Amendment jurisprudence. During oral argument some justices questioned whether a warrantless house sniff passed the smell test. Justice Scalia, in particular, likened the case to Supreme Court precedent which held that police cannot without a warrant, intrude on the “curtilage” (immediately surrounding areas) of a home to see what they could not see from the public sidewalk.

Other justices likened Jardines to the 2001 case Kyllo v. United States, in which the Court put limits on law enforcement’s use of technology, such as thermal imaging devices, to scan the exterior of a home to obtain evidence that the residents were growing marijuana inside.

Justice Kagan was skeptical of Florida’s argument that there was a fundamental distinction between using Franky’s “god-given” nose to conduct the search as opposed to a mechanical device to gain the same information. Kagan asked whether police could walk up to doors with a “smell-o-matic” device that gleaned the same information as a drug sniffing dog.

Justice Ginsburg, likewise, didn’t like where Florida’s arguments led: She questioned whether, under their logic police could in “a neighborhood that’s known to be a drug-dealing neighborhood, just go down the street, have the dog sniff in front of every door, or go into an apartment building?” Gregory Garre, who represented Florida, agreed that would be constitutionally permissible.

In Florida v. Harris, the court will consider whether drug sniffing dogs are sufficiently reliable that an “alert” from such a dog should be considered probable cause to conduct a search. The Florida Supreme Court held that the government must provide evidence to establish the reliability of the dog’s alert including “the dog’s training and certification records, … field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer.” The Supreme Court seemed disinclined to mandate certain qualifications before a dog could be deemed sufficiently reliable.

A decision is expected on both cases by summer.

Are Routine Strip Searches Constitutional?

October 12, 2011 in Cook County, Cook County Jail, Fourth Amendment, Illegal Search, Supreme Court by Adele Nicholas | No comments

Albert Florence thought he was going out to dinner with his wife and kids to celebrate the purchase of their new home one evening in 2005 when he was pulled over by New Jersey police officers and arrested on a warrant for an unpaid traffic ticket. Florence had paid the fine two years before, but the warrant had never been removed from the courts’ computer systems. Instead of a celebratory dinner, Florence found himself in a humiliating six day ordeal in which he was held in county jails in Essex and Burlington counties in New Jersey while the courts sorted out the faulty record-keeping that led to his mistaken arrest. Adding to his horrible experience, Florence was strip searched at both jails. The Supreme Court of the United States heard oral argument today in the case Florence v. Burlington County, 10-945, in which Florence argues that the strip searches were unconstitutional.

In 1979, the high court held in Bell v. Wolfish that it was constitutional for jails to strip search every inmate after contact with a visitor. Attorneys for Florence argue that the issues are different when it comes to someone like Florence, who was arrested on sight by police for a minor ticketable offense and there is little risk that he’d be trying to smuggle contraband into the jail. They argue that it was unreasonable to strip search Florence in the absence of any reasonable suspicion that he was carrying concealed drugs or weapons.

The lower courts are divided on this question with the 9th and 11th Circuits siding with jails’ unconditional right to strip search all arrestees without regard to the presence of reasonable suspicion, and seven other circuit courts favoring a requirement that strip searches be supported by a reasonable basis to believe the arrestee is smuggling contraband. In Florence’s case, the 3rd Circuit sided with the jails.

Supreme Court rockstar Carter Phillips represents the jails. Susan Chana Lask represents Florence.

Strip search litigation has received a lot of attention here in Chicago in the past few years. In 2010, Cook County reached a $55.3 million settlement with detainees who were unnecessarily strip searched. In January 2011, the County agreed to pay another $4.2 million to compensate people who were strip searched after a judge had already dismissed their cases and found that they should be released.

Do Police Need A Warrant to Track Your Movement Via GPS?

October 2, 2011 in Fourth Amendment, Illegal Search, Supreme Court by Adele Nicholas | No comments

The U.S. Supreme Court has several important civil rights cases on its docket for the fall term which started this week. Among the most interesting cases is United States v. Jones, No. 10-1259, in which the court will decide whether police need a warrant to attach a GPS device to a suspect’s car.

In September 2005, FBI agents planted a GPS tracking device on Antoine Jones’ car while his vehicle was parked in a public lot in Maryland. Jones was suspected of involvement in drug trafficking. The GPS device tracked Jones’ movements for an entire month, transmitting his whereabouts to law enforcement every 10 seconds. After the device tracked Jones repeatedly frequenting a stash house where a lot of narcotics were stored, Jones was arrested and charged in a drug conspiracy.

The FBI had obtained a warrant to put the device on Jones’ car within ten days within the District of Columbia. But ultimately, they didn’t install the device until the 11th day, and did so in Maryland, not Washington, D.C. So essentially, the government is now arguing that it has the right to track people via GPS without a warrant at all.

In the trial court, Jones’ motion to quash was denied (except to the extent the device captured data while Jones’ car was parked in his private garage). Jones was convicted. On appeal, the U.S. Court of Appeals for the District of Columbia found that monitoring Jones’ car 24 hours a day was an unreasonable search that violated the Fourth Amendment. The Supreme Court granted cert and will hear oral argument on November 8, 2011.

Solicitor General Donald Verrilli (whom I met and interviewed way back when he was a Jenner & Block partner) will argue for the government. Skadden partner Michael Scudder will appear for Jones.

Supreme Court: Eroding the Limits on Warrantless Searches

May 16, 2011 in Exigent Circumstances, Illegal Search, Supreme Court by Adele Nicholas | No comments

The Supreme Court issued its decision today in Kentucky v. King, 09-1272, ruling that police officers can enter a home without a warrant when they have reason to believe that evidence is being destroyed inside, even if their actions are the reason for the suspected destruction of the evidence.

The case arose from a “buy-bust” operation in Lexington, Kentucky. Undercover cops watched a suspected drug dealer buy cocaine and then head for an apartment building. Officers followed the dealer into a breezeway flanked by entrances to different apartment units, but they lost sight of him. The officers heard a door close and smelled marijuana. They approached the door with the suspicious smells and started banging on the door “as loud as they could” and yelling “police.” Needless to say, the people inside the apartment reacted, and the officers heard unspecified “noises” and people moving stuff around. According to them, they suspected that evidence was being destroyed. So they kicked the door in. Inside they found marijuana and cocaine. The case was before the Supreme Court on review of the Kentucky Supreme Court’s ruling that the drugs should have been suppressed because the entry was illegal. (Coincidentally, the guy they were originally trying to bust was in a different apartment nearby.)

In general, under the Fourth Amendment, the police must have a warrant before entering a home. There are two basic exceptions to this rule: consent of the home’s occupants, or exigent circumstances, such as hot pursuit of a fleeing felon or imminent destruction of evidence.

The Kentucky Supreme Court ruled that police may not rely on the exigent circumstances exception to the warrant requirement if they “deliber­ately create the exigent circumstances with the bad faith intent to avoid the warrant requirement” or “if it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.” In King, the Kentucky Supreme Court held that the search was not justified by the exigent circumstances exception because it was reasonably foreseeable that the occupants of the apartment would destroy evidence in response to the police banging on their door and shouting “police.”

The Supreme Court ruled that it was reasonable for the officers to kick in the door without a warrant because they “did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment,” by banging “as loud as they could” on the door and shouting “police.” (Nevermind the fact that any reasonable human would be likely to interpret this not as a request to come inside, but rather a threat that police entry was imminent.)

Justice Alito, writing for the 8-1 majority, thought that the occupants could have protected their constitutional rights by either remaining quiet inside the apartment (so as not to give the impression that evidence was being destroyed) or by coming to the door and informing the screaming officers that they were not welcome to come inside. The Court wrote, “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evi­dence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.”

It seems to be a results-based approach to this particular question (i.e. because the occupants had drugs, the Court looked for a way to justify the officers’ conduct). One wonders what the result would have been if the “noises” and shuffling inside had been someone who just got out of the shower (or perhaps a couple involved in an intimate encounter) trying to put clothes on before the police break down the door.

In any event, the decision significantly erodes the “police-created exigency” exception that many lower courts had articulated to prevent police officers from manufacturing an exigency to justify a warrantless entry. See, e.g., United States v. Chambers, 395 F. 3d 563, 566 (6th Cir. 2005) (“[F]or a war­rantless search to stand, law enforcement officers must be responding to an unanticipated exigency rather than simply creating the exigency for themselves”); United States v. Gould, 364 F. 3d 578, 590 (5th Cir. 2004) (“[A]lthough exigent circumstances may justify a war­rantless probable cause entry into the home, they will not do so if the exigent circumstances were manufactured by the agents”)

Justice Ginsberg wrote a forceful dissent, criticizing the 8-1 majority’s “reduction of the Fourth Amendment’s force.” She wrote:

The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.

The decision is available in PDF format here.