News You Can Use: Tenth Circuit Vacates Denial of Suppression Motion in a Published Decision (With Photos!)

In US v. Gaines, the Tenth Circuit vacated the denial of a motion to suppress in a published opinion, ruling: (1) the defendant was seized when police officers confronted him about reported drug sales in a parking lot; and (2) the subsequent discovery of an arrest warrant did not attenuate the connection between the seizure and the evidence. And they did so with style, buttressing their points with actual photographs of the alleged seizure in question. The opinion doesn’t break new legal ground, but it provides a nice review of some basic Fourth Amendment principles—and is a great example of creative appellate advocacy.

Background

Kansas City police received a 911 call reporting a man dressed in red had sold drugs in a local parking lot. Based on that call, uniformed officers driving two separate police cars pulled into the parking lot and parked behind a car occupied by a man wearing red clothing—Mr. Gaines. Police turned on their flashing roof lights and gestured for Mr. Gaines to get out of his car. To help established the scene, Mr. Gaines included the following image the Opening Brief:

Photo1

After Mr. Gaines got out of his car, one officer confronted him about the reported drug sale, observed an open container of alcohol, and smelled PCP. Officers told Mr. Gaines he would be detained. Mr. Gaines then grabbed a pouch from his car and fled the scene. He was soon captured. Meanwhile, police discovered cocaine, marijuana, PCP, drug paraphernalia, cash, and a handgun in his car.  Mr. Gaines unsuccessfully moved to suppress this evidence, and was convicted after trial. He appealed the denial of his motion to suppress.

Tenth Circuit Decision

The Tenth Circuit vacated the denial of the suppression motion in a published opinion, focusing on two issues: (1) whether there was a seizure; and (2) whether the relationship between the seizure and the evidence was attenuated.

  • There was a seizure

The Tenth Circuit found Mr. Gaines was seized because a reasonable person would not have felt free to leave the scene, and Mr. Gaines in fact yielded to the police’s show of authority. The opinion goes into a lot of detail about what specifically made the encounter a seizure, including that it involved uniformed police officers in marked police cars with flashing lights, where state law requires motorists to stop for flashing lights. The Court also emphasized one of the officers had gestured for Mr. Gaines to get out of his car before asking him an accusatory question.

  • There was no attenuation

The Tenth Circuit also rejected the government’s attempt to salvage the case through the attenuation doctrine. Under that doctrine, evidence does not need to be excluded if the Government can meet its heavy burden of showing that there is only a weak or attenuated connection to the asserted Fourth Amendment violation. When applying the attenuation doctrine, the court considers: (1) the temporal proximity between the alleged Fourth Amendment violation and the discovery of the evidence; (2) the presence or absence of intervening circumstances; and (3) the purpose and flagrancy of the police wrongdoing.

Specifically, the Tenth Circuit rejected the government’s arguments that either an outstanding arrest warrant or the subsequent development of probable cause established attenuation in this case. With respect to the warrant, the Tenth Circuit noted that executing the warrant and arresting Mr. Gaines would not automatically have allowed the search of his vehicle—citing the Court’s recent decision limiting officer authority to conduct warrantless searches of arrestees in US v. Knapp. The Court also observed that neither the warrant nor the observations arguably amounting to probable cause were discovered until after the challenged seizure. The Court therefore reasoned both the close temporal proximity and the absence of intervening circumstances weighed against application of the attenuation doctrine in this case.

Takeaways

  • Preservation matters. The standard of review is important, and this is another appellate win born of  preservation. Mr. Gaines moved before trial for an order suppressing all evidence derived from law enforcement’s initial seizure of him. The court held an evidentiary hearing on the motion, ultimately denying it. Mr. Gaines reasserted his motion towards the end of trial.  Notably, this belt and suspenders approach is commendable, but the issue was already preserved for appeal. Under  Federal Rule of Evidence 103(b):“[o]nce the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” 
  • Detail matters. Suppression motions often require fact-intensive inquiries, and as this case demonstrates, it’s useful to do everything you can to marshal the facts in your favor. Explain in detail exactly what happened: How many police officers were there? What were they wearing? What were they driving? And what exactly did they do when they encountered the defendant? And then those details to the relevant legal standard.
  • A picture is worth a thousand words. Check out the Opening Brief  in this appeal(filed by the Kansas FPD). Sometimes, it’s useful not only to tell the court why your motion should be granted, but also show them. If there’s an image that really captures the essence of your argument, consider including it in your brief so your point doesn’t get lost in the shuffle. Nobody’s suggesting you file a comic book, but when done right, this technique shakes up legal writing and can be quite effective.
  • Arrest authority is not the end of the story. As the Tenth Circuit’s in-depth attenuation analysis demonstrates, the fact that police could have lawfully arrested your client doesn’t necessarily excuse any Fourth Amendment violations. Pick apart any attenuation argument to see if the Government’s claim holds up: Would an arrest really have led to the discovery of the evidence, independent of the Fourth Amendment violation? And can the warrant really be considered an “intervening event” that weakens the causal connection between the Fourth Amendment violation and the evidence sought to be excluded?

News You Can Use: Tenth Circuit Limits Officers’ Authority to Search Incident to Arrest

In United States v. Knapp, the Tenth Circuit reversed the denial of a motion to suppress and held a warrantless search of an arrestee’s purse could not be sustained as a search incident to arrest.

Defendant Stacy Knapp was arrested on an outstanding warrant. Police officers seized the purse she was carrying and handcuffed her behind her back. The police walked Ms. Knapp to the police car while they carried her purse.  An officer then put Ms. Knapp’s purse on the hood of the car, about three to four feet away from Ms. Knapp (who was still handcuffed). One officer stood next to Ms. Knapp and two other officers were nearby. After Ms. Knapp admitted there was a gun inside her purse, an officer searched the purse and recovered a pistol.

The Government argued the warrantless search was permissible as a search incident to Ms. Knapp’s arrest. The Tenth Circuit disagreed and held that the search violated the Fourth Amendment.

First, the Court rejected the Government’s argument that the search of Ms. Knapp’s purse amounted to a “search of the person,” which is allowed automatically under United States v. Robinson. The Court held that Robinson should be limited to searches of an arrestee’s clothing — explicitly rejecting authority from other courts that had extended Robinson to apply to searches of handheld containers. The Court explained that searches incident to arrest are justified by the possibility that an arrestee might have a weapon and by the officers’ need to disarm her. In this light, automatic searches of an arrestee’s clothing make sense because separating an arrestee from her clothing to deny her access to any weapon “would be impractical (not to mention demeaning).” But that rationale doesn’t apply to handheld containers like purses, the Court held, because such items are “easily capable of separation from [the] person.”

Second, the Court rejected the district court’s holding that the search of Ms. Knapp’s purse was justified on the ground that she could have accessed it at the time of the search. The Court recognized that, under Chimel v. California, police can search not only an arrestee’s person but also anything else they reasonably believe the arrestee might access to get a weapon or destroy evidence. However, the Court held that, unlike Robinson searches, Chimel searches are not automatic and “must be justified on a case-by-case basis by the need to disarm or to preserve evidence.” Further, the Court held that Arizona v. Gant, which arose in the context of an automobile search, was not limited to that context and required the Court to evaluate “the arrestee’s ability to access weapons or destroy evidence at the time of the search, rather than the time of the arrest, regardless of whether the search involved a vehicle.” Applying Gant and Chimel, the Court held that “it was unreasonable to believe Ms. Knapp could have gained possession of a weapon or destructible evidence within her purse at the time of the search.” Ms. Knapp could not have accessed the contents of her purse, the Court explained, because “not only were Ms. Knapp’s hands cuffed behind her back, [an officer] was next to her, and two other officers were nearby. Moreover, the purse was closed and three to four feet behind her, and officers had maintained exclusive possession of it since placing her in handcuffs.”

Takeaways

  • Preservation matters. This awesome appellate win was born in the district court.  The trial lawyers made a great record, filing a motion to suppress on Fourth Amendment grounds (and later, a reply in support of the motion) and emphasizing the government’s burden to prove that the search and seizure was reasonable.  Because the issue was raised and ruled upon below, the Tenth Circuit applied de novo review on appeal. This favorable standard of review is the result of preservation; and it was the first step on the path to victory.
  • A purse is not a pocket! Searches “of the person” incident to an arrest are allowed automatically, but such searches are limited to searches of the arrestee’s clothing and cannot extend to a search of a handheld container, like a purse.
  • A search of the “grab area” must be justified.  A search of the area within the arrestee’s immediate control (the “grab area”) is not a search “of the person” and must be “justified on a case-by-case basis by the need to disarm or to preserve evidence.”
  • Justification depends on what’s happening at the time of the search, not the time of the arrest.  If, at the time of the search, it isn’t reasonable to believe that an arrestee could access a place or item to destroy evidence or get a weapon, the search of that place or item cannot be justified as a search incident to arrest.

 

 

News You Can Use: Carpenter v. United States – the latest from SCOTUS on 4th Amendment Protections for Cellphone Data

Carpenter v. US

When you use a cell phone you leave a footprint of your location. To send and receive information, cell phones connect to the cell tower that is geographically closest. The connection leaves an approximate map of where you are and where you were. This information is collected and stored by private cell phone carriers and often sold to private parties for market research. In Carpenter, the Supreme Court held that police will generally need a warrant to obtain this cell-site location information (CSLI).

Background:

Timothy Carpenter was sentenced to nearly 116 years’ imprisonment for several armed robberies of Radio Shack and T-Mobile stores. The government’s case hinged on the cell phone records which placed Mr. Carpenter in the vicinity of the robberies at the time of the crimes. The government obtained these records after receiving an order from a magistrate judge compelling disclosure. In order to receive the order from the magistrate judge, the government had to provide “specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). This standard falls far short of the probable-cause standard demanded for the issuance of a warrant.

Before trial, Mr. Carpenter move to suppress the CSLI records arguing that they were obtained without a warrant. The district court denied the motion and the Sixth Circuit Court of Appeals affirmed.

Holding:

Writing for the majority, Justice Robert observed that the issue fell in the middle of two seemingly incompatible lines of caselaw. The first line involves the “reasonable expectation of privacy” standard. The Court has held that “when an individual seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable . . . that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.”

The second line of cases concerns what has been deemed the “third-party doctrine.” “A person has no legitimate expectation of privacy in information if he voluntarily turns it over to third parties.” In Carpenter, the question was whether such private data gleamed from cells phone could be subject to Fourth Amendment protections despite it being collected by a third-party. The Court held that it could.

The Court premised its holding on the fact that cell-site record are “qualitatively different” from the type of records historically subject to the third-party doctrine. CSLI offers “a detailed and comprehensive record of the person’s movement” and “hold[s] for many Americans the ‘privacies of life.’” CLSI provides “a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years.” Thus, “the fact that the information it is held by a third party does not by itself overcomes the user’s claim to Fourth Amendment protection.”

Thus any access of the record “invaded Carpenter’s reasonable expectation of privacy in the whole of his physical movements.” In other words, there can still be a Fourth amendment violation even if the information was handed over to a third party. “Whether the Government employs its own surveillance technology . . . or leverages the technology of a wireless carrier. . . an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.”

The Court also downplayed the notion that the information was voluntarily provided to the third-party. “Cell phone location information is not truly ‘shared’ as one normally understands the term. In the first place, cell phones and the services they provide are such a pervasive and insistent part of daily life that carrying one is indispensable to participation in modern society. Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up.” Accordingly, “in no meaningful sense does the user voluntarily assume the risk of turning over a comprehensive dossier of his physical movements.”

Dissents:

Justice Thomas dissented because he believes the Court should do away with the reasonable- expectation-of-privacy test.

Justice Alito dissented on the grounds that the Fourth Amendment does not apply to documents such as bank records or, in this case, cell phone data.

Finally, and most interestingly, Justice Gorsuch dissented because he would do away with both the third-party doctrine and the reasonable-expectation-of-privacy test and instead adhere to a test that determined whether someone had a “property interest” in the record. But Gorsuch noted that such an argument was not made in Carpenter and could not be decided on the record as it existed.

 

Carpenter is a narrow decision.  It expressly leaves open whether police would need a warrant to obtain “real-time CSLI” (same-time tracking) or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval).”

Takeaways:

  • Carpenter overrules United States v. Thompson, 866 F.3d 1149 (10th Cir. 2017) (holding that the third-party doctrine prevented a finding that the cell phone records were protected by the Fourth Amendment).
  • Carpenter chips away at the third-party doctrine in that it makes clear that “[o]ne does not surrender all Fourth Amendment protection by venturing into the public sphere.”
  • Always object to the introduction of CSLI obtained without a warrant