Natty Shafer Law

Utah lawyer for criminal and immigration cases

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DNA Can Be Taken for ‘Serious Crimes;’ What’s Next?

This Monday, the Supreme Court ruled that states may collect DNA from people who have been arrested for “serious crimes.” By itself, the case of Maryland v. King is only somewhat concerning if the Court stays true to its word, but, as with many precedents, the Court could build on it. The Court did not define what “serious crimes” are, which leaves open the possibility of nearly any crime being defined as “serious.” After all, our elected leaders thought the crimes were serious enough to make them illegal. In the future, public intoxication might be considered serious.

Incidentally, I do not take a “slippery slope” argument lightly. Sometimes people see a slippery slope where there really is not one. There can be many intermediate points before a supposed inevitable conclusion. What do I mean? Consider a hypothetical city considering raising its speed limit by five miles per hour on a 4 lane thoroughfare. Those in favor of the increase argue that it can be done safely and improve traffic flow. Those against it argue that if they raise the speed limit 5 mph, there is no end to how high it can be raised, and pretty soon people will be driving 65 mph on a city street. Here, the slippery slope argument is fallacious because each time the city raises the speed limit, a new assessment of safety and speed would be in order.

On this particular issue, however, I believe I am on safe ground to wonder if the Court is treading on a slippery slope. The only guidance the Fourth Amendment gives on the issue of search and seizure is that it must not be “unreasonable.” With such flimsy guidance, the Court has walked down the slippery slope before and in essence said, “we took a step along this path before and that was not unreasonable so it is not unreasonable to take one more step.”

The new rule only negatively affects the people who would have been acquitted of their crimes. In Maryland v. King, the defendant Alonzo King was convicted of assault. It was only a matter of time until Maryland took his DNA as a result of his conviction. Now, everyone who is arrested for a serious crime—whatever that is—might have their DNA information permanently on file. Soon, it will be possible to use that information to implicate a family member as well as the arrestee. Since people related biologically share several DNA markers, it is only a matter of time until someone is held on a serious crime, acquitted, and then unknowingly implicates their loved family member. It is a good bet that a judge will find “probable cause” to take DNA samples of everyone who could be guilty.

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Warrant Exceptions: Exigent Circumstances

Another exception the search warrant requirement is “exigent circumstances.” Exigent circumstances are situations where immediate action is necessary because a delay would result in irrevocable harm. It would take too much time for an officer to get a search or arrest warrant. Such situations include: imminent danger to life, serious damage to property, possibility of a suspect escaping, or destruction of evidence. Of these four broad categories where exigent circumstances could be said to exist, it is the last one that is problematic. Most people, I believe, would not object on principle to officers going into homes where they hear gunshots being fired. The “destruction of evidence” category is so broad that far too many situations can become exigent circumstances.

When officers use the exigent circumstances exception to enter property, they are only supposed to take steps to end the emergency. The officer can retrieve and secure any evidence found in plain view, but cannot conduct a full search. Once the situation is stabilized, the officer is required to obtain a search warrant to continue searching for evidence. However, if the exigent circumstance is the destruction of evidence, the situation is not stabilized until the officer has secured the evidence. The officer is going to search the area around all the suspects and examine what they were hiding or how they were planning to destroy evidence.

Since illegal drugs are easily destroyed, exigent circumstances can occur in too many situations. In Kentucky v. King, the Supreme Court held that the exigent circumstances doctrine applies when the police do not “violate the Fourth Amendment or threaten to do so.” In other words, if the police have not conducted an illegal search before they knock on your door, anything that happens afterward could potentially fall within the exigent circumstances exception.

In King, the police broke down the door—without a warrant—of the defendant’s apartment. The police said they smelled burnt marijuana and knocked on the door, at which point they heard things being moved inside the apartment. If that is all it takes to create exigent circumstances then the police really have license to break into many people’s homes. All they have to do is testify that they smelled a narcotic and heard something moving inside. One can imagine a completely innocent person using a toilet for its intended purpose and hearing a knock on the door. If the officers suspect the occupant of committing any crime that would leave behind concealable evidence, flushing the toilet, presumably, would give police license to break down the door.

I’m not sure how to keep the police from breaking down your door once they have knocked on it. All I can tell you is that I would not make any quick movements.


Warrant Exceptions: Consent

Perhaps the largest category of exceptions to the warrant requirement is consent. If you voluntarily tell police officers that they can search you or your belongings, that is all the permission they need. They can search anything and everything if you allow them. On an intuitive level, there is nothing really wrong with this. If we tell someone they can search us, we cannot really complain about what they find. To the degree that the consent it truly voluntary, I agree with the consent exception. However, I am skeptical about how voluntary it is and am skeptical that people consent as often as police officers claim.

An officer is under no obligation to tell someone that they can say, “no” to a request to search. At the outset, this makes it questionable about whether a person has truly consented to be searched, and most police officers endeavor to make it sound as though they are just being polite when they ask for permission. Before officers ask for permission, they will frequently ask a somewhat incriminating question, such as, “you don’t have any weapons or drugs on you?” After the person denies possession, the officer will say, “so you won’t mind if I look around your car for a bit?” Most people would answer a bit differently if they knew what was really being said: “Before I can search you for illegal items, I need your permission so please give it to me.”

Suffice it to say, you do not want to give an officer permission to search you or your belongings. I do not let strangers rifle through my belongings or search my pockets, no matter how well meaning they are. Neither should you. Politely tell the officer that you will not consent to a search and you would like to leave. The officer might not let you go, but it is important to make your lack of consent clear. You give yourself a chance to end the encounter sooner and the majority of officers feel constrained by your refusal. There are times that officers can think of other warrant exceptions, but by refusing consent, your lawyer can argue the legality of the exception. There are also times officers believe probable cause exists for a judge to issue a search warrant, but then you have a third party deciding the legality. There is not much left to argue once a citizen gives consent.

Unfortunately, some officers will ignore a person’s refusal entirely and plow ahead as though the person had given consent. Equally problematic, judges give officers the benefit of the doubt during a suppression hearing. When a police officer says that a person consented, judges tend to believe the officer, regardless of how illogical or implausible the story is. This is despite the burden of proof ostensibly residing on the government to show that there was consent for the warrantless search.

To some degree, smart phones are able to combat this problem. The ACLU chapters in some states offer apps that record police interactions. The app hides the record icon and makes it difficult to find the recorded file so an officer cannot just delete it. A user can send a copy of the file to the ACLU for backup. I hope that this app or a similar app will spread to Utah, and that the possibility of recording will deter officers from lying about consent.


Warrant Exceptions: Search Incident to Arrest

Most laypeople are vaguely aware that warrants allow police officers to search private belongings or property, and lack of a warrant can make a search illegal and render any evidence obtained inadmissible in court. However, there are so many exceptions to the warrant requirement that an officer can often find an exception. It sometimes seems as though the warrant requirement is no requirement at all. Today, I’m writing about one of those exceptions: the search incident to arrest.

When an officer arrests a person, the officer can search a person’s body to check for weapons or contraband. The rationale has been that officers need to protect themselves and they need to preserve evidence. The exception has a fairly long history. As Professor Orin Kerr showed, it goes back to at least 1914 and probably earlier. It is pretty well settled that officers can search everyone they arrest and the area within arm’s reach of the arrestee.

The problem comes with changes in technology and how intrusive such searches can be. We are in limbo as to whether or not police officers can search a person’s cell phone after an arrest. A police officer is allowed to remove the cell phone from someone they arrest, but are they allowed to open the cell phone and search for possibly incriminating evidence? A cell phone makes a poor weapon. Once an officer has removed it from a person’s possession, there is no threat of it harming the officer or of the arrestee deleting evidence. Unfortunately, the Supreme Court has not ruled on the issue of search incident to arrest recently, and lower courts are left analogizing new technologies to dissimilar objects from past rulings. Different courts are split on the issue. Neither the Utah Supreme Court nor the Tenth Circuit Court of Appeals have yet weighed in on the issue.

In United States v. Robinson, a 1973 case, the Court said that an officer could search a man’s pocket, which contained a crumpled up cigarette packet with heroin inside. As a result, some courts such as the California Supreme Court, have held that a cell phone on a person’s body is subject to search. A police officer, after a lawful arrest, can examine all of a phone’s contents without a search warrant.

It is not just the guilty who should be worried about this type of intrusion, either. Innocent people do get arrested, and there is a lot of personal information on a cell phone. I don’t know about you, but if an officer were so inclined, he could find a lot of embarrassing but not illegal information on my phone. I would not want a stranger poking around my text messages, call logs, appointment calendar, and pictures. Some people have even more sensitive information on their phone such as sensitive emails or trade secrets on their business phone.

Fortunately, there are other courts that have ruled differently, such as the Florida Supreme Court, and recognized that the rationale for this warrant exception does not apply to cell phones. Once an officer has taken a phone, the need to protect evidence or the officer’s safety is gone.

Until there is a ruling in Utah, it wouldn’t hurt to password protect your cell phone.

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Your Privacy Rights Are in the Control of a Canine

The Supreme Court issued a ruling yesterday that is disappointing for anyone concerned with civil rights. In Florida v. Harris, the Court unanimously overruled the Florida Supreme Court and held that a “dog sniff” is enough to establish probable cause for a police officer to search your vehicle.

Last summer, I wrote about a case that has yet to be decided, Florida v. Jardines, that also challenges the validity of drug-sniffing dogs. The problem with drug-sniffing dogs is that they can be influenced by their human handlers, and the prejudices and preconceptions of dog handlers should not be enough to establish probable cause. The latter case could still be decided differently since the Court has traditionally been more protective of rights when a house is involved, but its decision in Harris indicates a reluctance to second guess the use of drug-sniffing dogs, despite a lack of science establishing their reliability.

In this case, the dog was wrong that the defendant, Clayton Harris, had any of the narcotics that it was trained to uncover. Mr. Harris was pulled over twice, two months apart, and the same dog and handler walked around his car. Both times the dog alerted. The first time, Mr. Harris had ingredients and equipment for making methamphetamine, but the dog was not trained to find those ingredients. The second time, he had nothing illegal at all.

From a civil rights perspective, the problem is that most police departments do not keep records of stops involving drug-sniffing dogs. For people who are truly innocent, this means their lives can be disrupted while an officer tears apart their car looking for the contraband that will never be found. The innocent person may or may not receive an apology from the officer, but that will be cold comfort for anyone who missed a crucial appointment or had embarrassing (but not illegal) personal belongings uncovered while the officer searched. For the guilty, it shifts the burden of proof from the prosecution to the defense. A defendant must show that the dog and the handler are unreliable, and if police departments do not keep records or a dog’s mistakes, this will be nearly impossible.

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Supreme Court to Hear Challenge on Drug Dogs

This fall, the Supreme Court of the United States will hear oral arguments in a case that challenges the use of drug-sniffing dogs to perform warrantless searches outside a suspect’s house. The case, Florida v. Jardines, arose when Miami police received a tip that Joelis Jardines was growing marijuana in his home. The police took a drug-sniffing dog around the perimeter of his house, and the dog indicated that it smelled drugs. Based on that information, the police obtained a search warrant of the house, and they found marijuana plants growing inside.

The Supreme Court has previously allowed drug-sniffing dogs to be used around cars or in the airport, but since that time a study from UC Davis has called into question the validity of drug-sniffing dogs. UC Davis recruited 18 law enforcement dogs with their human handlers for the study. Experimenters told the handlers that drugs or explosives might be present at the testing site, but neither one was present in any of the rooms. If the dogs had behaved appropriately, they would have passed through all four rooms without alerting their handlers. Only one of the 18 dogs did not falsely alert in any of the rooms.

Nick Estrada of the U.S. Navy trains a drug-sniffing dog

UC Davis researchers hypothesized that the dogs were taking cues from their handlers. If that is true, the dogs are merely relaying the preconceptions of their handlers, and it calls into question the validity of drug-sniffing dogs in any circumstance.

The Supreme Court might not speak on the validity of drug-sniffing dogs when it rules on this case, but it should. It is important that police have actual evidence when they request that a search warrant from a judge; the preconceptions of dog handlers should not be enough for probable cause.


More on the GPS Case

Professor Orin Kerr made an interesting point over at The Volokh Conspiracy: the Supreme Court did not explicitly state that police officers need a warrant to attach a GPS device to a car. On Monday’s post I said that police will need a warrant, but the Court’s decision stops short of stating that. The Court said that the GPS device constituted a “search,” which generally requires a warrant, but there are so many exceptions to that rule that lawyers frequently get them mixed-up.

However, in practicality, the police really will need a warrant. Neither prosecutors nor police officers are going to risk losing otherwise good evidence just to test the state of the law. It may be a few years before the Court resolves this issue definitively.

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Supreme Court Wary of Newfangled Technology

In a case decided last week, United States v. Jones, the Supreme Court said that police need a warrant to attach a GPS device to your car and track everywhere you go for an extended period of time. The decision is most surprising for its unanimity—all nine of the justices agreed that the police needed a warrant—although the Court split on the reason why.

Generally speaking over the last couple decades, the Court has given law enforcement leeway to do what they want. In this case, though, the Court ruled that the police trespassed onto Antoine Jones’ property—his car—in order to attach a GPS device; the trespass was a “search” and required a warrant. In the past, the Court has rejected the argument that a trespass is a search.

Justice Scalia wrote the Court’s opinion, but he joined six other justices in rejecting that notion in a 1987 case. Apparently, hopping multiple fences, standing on private property, and shining a flashlight into a barn is perfectly okay for law enforcement, but attaching a GPS device to a car parked in a public parking lot is an unacceptable trespass. Personally speaking, a tiny GPS device attached to my car is way less intrusive than having multiple officers run around on my fenced-off property. I don’t think there is a way to reconcile these two cases. The Court just doesn’t trust new technology.

The Court has shown its reservations with new technology before. For example in Kyllo v. United States the Court reversed a drug conviction because the government used a thermal imaging device, without a warrant, to look at Danny Lee Kyllo’s home. The thermal imaging device in use didn’t reveal much private information. It just showed inchoate, shapeless blobs of heat. But the Court didn’t trust the newfangled device and said the government needed a warrant to use it.

Last week’s decision is good news for those of us concerned about privacy. The Court hinted it may have ruled the same way even if the police never attached a GPS device to Mr. Jones car. Because of advancing technology, the day may soon come where everyone can be tracked endlessly, without a trespass ever occurring. The company Google is nearly there right now, and if private citizens can do it, the government won’t be far behind.