Natty Shafer Law

Utah lawyer for criminal and immigration cases

Tag Archives: 4th Amendment


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How Long Can a Traffic Stop Last? It Has to Be Reasonable

Today, the Supreme Court clarified how long police officers may keep someone they have pulled over for a traffic stop. Thankfully, the answer is only for a short time. “Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed,” the Court said. This means that an officer may not require people to stay and chit-chat or wait for a drug-sniffing dog to arrive once the officer has issued a ticket or a warning.

Some courts had been allowing police officers to keep people a few minutes extra as long as the intrusion was minimal (“de minimis“). This is good news for anyone who will ever be pulled over for speeding or any other traffic infraction. Police officers will not be allowed to waste more of your time as they go on fishing expeditions for illegal conduct.


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Why Are Police Departments Reluctant to Use Body Cams?

On September 30, Salt Lake County District Attorney Sim Gill announced that the prosecutor’s office had reviewed body camera footage and cleared a police officer of potential charges for shooting an unarmed man. The body-cam video (available from the Salt Lake Tribune) shows the man walking away from the officer before turning around and lifting up his shirt. Sim Gill said the video showed the officer was justified in his fear for his safety and the use of a firearm was reasonable.

Over the last couple months, there been heightened public scrutiny of police shootings and other actions. A properly used body-cam would record whenever a police officer is on duty. Unfortunately, no police department in Utah requires all officers to use them. This video helped clear one officer. With regular use, officers should become accustomed to having everything on tape and just behave in their usual manner.

Digital recording technology has advanced to the point that police departments throughout Utah could have every officer regularly wear a body cam. They would be invaluable in bolstering police officer testimony, and they would not be susceptible to the problems of memory. It is curious that police departments are the least bit reluctant to start requiring every officer to wear one.


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Police Officers of America, You Have a Problem

Last night I was talking to my 4-year old niece. She told me Biscuit the Dog was missing. I told her, “You should call the police!”

“No, the police shoot dogs,” she told me.*

I was shocked to hear this because I have not done anything to educate her about police officer excesses. She learned of police officers shooting dogs from someone else. As near as I can tell, children’s television programming still portrays law enforcement officers in a glowing light. There are other places she could have picked up this tidbit, perhaps from news stories about the Salt Lake City police officer who shot a dog that was in its own yard. Unfortunately, there is nothing unique about that story and she could have heard similar stories anywhere.

*I, of course, asked her where she heard of police officers shooting dogs, but she was unable to tell me where she learned of this.


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Cell Phones Are Private, Supreme Court Says

The United States Supreme Court issued a ruling today which requires law enforcement officers to obtain a search warrant for most searches of a cell phone. While the Court left open the possibility of officers conducting a cell phone search during “exigent circumstances,” the ruling in Riley v. California means officers cannot casually peruse cell phones.

The ruling was unanimous, which is a bit of a surprise for me, but this is a pretty big victory for champions of privacy rights. Often the Court refuses to protect the rights of those accused of crimes, but cell phones have becomes so ubiquitous that the Court could not ignore that cell phones are now among our most personal possessions. “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” the Court said.

Many phones now contain more personal information than anyone has in any one location, including our homes. As the Court said, cell phones are not just phones. “The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.”

This ruling does necessarily guarantee that police officers will never look through your phone, but it does make such evidence generally inadmissible during criminal court proceedings. Anyone who has been subjected to a cell phone search should contact a lawyer about various options.

You can read my previous posts on the subject of cell phone searches here and here.


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Standard Operating Procedure

The home of former Utah attorney general Mark Shurtleff was the subject of a search warrant earlier this week, as various law enforcement agencies investigate alleged wrongdoing. Shurtleff accused the agents of “Dirty Harry” tactics on a local radio broadcast yesterday.

Shurtleff’s accusations are short on specifics, but what he does describe is not out of the ordinary. The officers were armed and wearing body armor. Shurtleff says they took his children’s computers and the memory cards from his wife’s camera, and that they trashed his house. It is standard operating procedure for law enforcement officers to be armed while on duty, and they are not careful about keeping a house orderly and clean when executing a search warrant. They confiscate anything that could hold relevant information such as computers or memory cards.

“I think if they’ll do that to me, with my entire life and career in service to law enforcement and public safety, they’ll do it to anybody,” he said. In today’s world, having a search warrant executed on one’s home is traumatizing. Imagine if Shurtleff had come to this realization when he was in a position to do something about it.


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When the ‘War on Drugs’ Affects the Wealthy

NPR reported today that U.S. Customs and Border Protection’s Office of Air and Marine Operations will alter its policy that has led to private aircraft pilots being searched, sometimes at gunpoint, by law enforcement officers.

How Customs and Border Protection (CPB) will alter its policy is not yet clear. Currently, CPB operate a tracking center, which monitors privately operated flights. They look for patterns that suggests drug transportation, such as taking an alleged drug route or flying in a manner that evades radar. When they find suspicious activity, CPB can alert law enforcement at the flight’s destination. Unfortunately, various law enforcement officials have used that information to aggressively search the planes of anyone suspected.

Tom and Bonnie Lewis love to fly airplanes so much that they live in a residential airpark near Fort Worth, Texas, where their garage is a hangar.

Two years ago, they packed their bags, loaded them into the airplane, and took off for Nashua, New Hampshire, to visit their daughter and her family. Mid-route, they stopped at an airport in Frankfort, Kentucky, to refuel and spend the night, when they noticed that a small jet had landed directly behind them, with no radio communication.

Four federal agents shouldering assault rifles scrambled out of the jet and surrounded the Lewis’s little two-seater plane, asking for IDs.

“Asking where we’d been, basically checking us out,” says Tom Lewis. “It didn’t take them too long to figure out they had grandma and grandpa that were taking a trip to New Hampshire to visit the grandkids.”

When the Constitution conflicts with the aims of the War on Drugs, the Constitution frequently loses. CPB acknowledges that in 68% of the cases this year where law enforcement was notified, no illegal activity was found. The NPR story quotes Eddie Young, a deputy assistant commissioner at CPB, as saying, “A 32-percent success rate is not bad in the law enforcement community.” That Mr. Young could soberly make that defense of the old policy is more than a little appalling. For the innocent 68%, the trauma of being searched at gunpoint is apparently an acceptable cost of the War on Drugs.

Assuming the policy is in fact changed, it will be because most pilots are more wealthy and influential than the average citizen. Most people just have their complaints ignored when law enforcement officers violate civil liberties.


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Court Will Soon Clarify Cell Phone Searches

Tomorrow, the Supreme Court is scheduled to hear oral arguments in two cases that will decide the extent law enforcement officers can search a person’s cell phone after an arrest. I have written about this issue before, and about how much sensitive data most people keep on their cell phones. Once the Court issues its ruling, we will know where whether our cell phones are really private.

People put embarrassing and deeply personal information on their cell phones, but most data files do not relate to criminal acts. The couple depicted in the commercial below probably would not want anyone looking through their cell phones. If the Court allows it, police departments will routinely copy all the information from seized cell phones and upload it to a database for permanent storage. Government officials could peruse the data whenever it suits them.

The capabilities of cell phones allow for nearly unlimited personal information to be stored. Some smartphones now hold 64 gigabytes of data. Right now, phones have enough space to store thousands of personal emails, pictures, videos, and text messages simultaneously, and data storage capacity increases each successive year.

If the Court rules that an arrest does not necessarily justify a search of a suspect’s phone, the police will still have the option to request a warrant. With electronic warrants, it is possible to issue a search warrant within a couple of minutes. The importance of this is that you have a neutral judge deciding whether there is probable cause to search the phone. Otherwise, we will have police officers fishing for evidence for each person they arrest, and the private lives of everyone will be a little less private.


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Anonymous Tip? Enough for a Traffic Stop

A Supreme Court decision came out today, and it now appears the police can pull over anyone with just an anonymous tip. The case, Navarette v. California, involved a tip from an unknown caller describing the truck and license plate of the defendants.

The driver in this case drove perfectly, at least while the police observed. An anonymous caller alerted 9-1-1 dispatch that a truck had allegedly run her off the road. Concerned about possible drunken driving, police located the truck and followed it for five minutes, but they failed to observe a single traffic violation. It is extraordinarily difficult to drive perfectly for five minutes. The police usually can find a traffic violation to pull over a vehicle, but they did not find a single reason. They pulled over the car anyway. But the Court said that is fine.

This should concern anyone who drives or rides in a car. The Court has put the threshold for pulling over someone at a very low point. Someone can now identify your car and allege some sort of traffic violation, and you may be pulled over. Anyone with a grudge can use the police to harass citizens. Jilted exes, disgruntled coworkers, or stalkers need to allege something, and the police can make a traffic stop, and detain the unfortunate victim. The Court’s rationale hinged on the fact that 9-1-1 calls can be traced, but if no one is motivated to investigate, callers will remain anonymous.


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Warrant Exceptions: Stop and Frisk

An officer is allowed to conduct a stop and frisk (sometimes called a “Terry Stop” after the Supreme Court case that established their legality, Terry v. Ohio) when it is reasonable to believe that criminal activity may be taking place or is about to take place. The Court authorized the practice with the intention of improving police officer safety. Many crimes involve the use of dangerous weapons, and so, the rationale goes, it is reasonable to search for weapons when a person may be committing a crime.

Because a stop and frisk is supposed to be a search for dangerous weapons, an officer is not supposed to investigate further into objects which are obviously not weapons. A soft, powdery substance encased in a plastic bag, for example, could not be investigated further because the officer does not have reason to believe that the object could be a threat to officer safety.

The problem comes with how nebulous an officer’s suspicions can be. The Supreme Court has specifically said the standard for whether an officer can conduct a stop and frisk is lower than probable cause (which is low to begin with). The even lower standard is a “reasonable articulable suspicion” that a crime is taking place or is about to take place.

In plain language, officers must be able to explain to judges why they believe a specific person was about to commit a crime or was in the process of committing a crime. However, the Supreme Court has not required a particularly high threshold for what amounts to reasonable suspicion. In Illinois v. Wardlow , the Court held that running away from an officer in a “high crime area” was enough to arouse reasonable suspicion. With such a low threshold, judges often find in the officer’s favor.


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Warrant Exceptions: Plain View

The police are allowed to look at anything else that a regular citizen can look at. Officers legally in a place do not need a warrant to observe everything around them. While this is generally called the “plain view doctrine,” nothing prevents officers from using all of their senses to listen, feel, or otherwise observe, and if the incriminating nature of the object is obvious, seize it. (For the rest of this post, I will use the sense of “sight,” as a shorthand for any of the senses.)

Once officers see contraband, assuming they are legally present, they can seize it. The incriminating nature of the evidence has to be immediately apparent. Any further sleuthing by the officer is not allowed, such as moving a stereo to check its serial numbers. But something like illegal drugs, which are always illegal, can generally be seized.

An officer can even seize contraband in situations where they are on private property. For example, an officer does not need a warrant to seize a marijuana plant growing on someone’s property, even if there is a wooded fence keeping intruders out. Because anyone could see the plant, the police can also seize it or use the information for an arrest warrant.

The phrase “plain view,” can be a little misleading. Often, the incriminating item is not in “plain” view, but it is visible. For example, officers can press their noses to a car window and contort their heads to look for evidence. If an officer saw a loaded firearm, that would qualify for the plain view exception, even though most people would believe that the officer’s necessary contortions show that the firearm may have been in view, it was not in plain view. The bottom line is that an officer is not forbidden from seeing what anyone else can see, and anyone else could do the same thing, obnoxious manners though it would be.