Colorado Court of Appeals People v. Tunis 09CA0593

Decision here.

   The Colorado Court of Appeals has recognized the admissibility of Y-strand DNA (DNA which is passed down from father to son relatively unchanged, and so is less unique than DNA that both parents contribute to).  You can relax now, I know the suspense was killing you.

Tenth Circuit US v. Esquivel-Rios 12-3141

Decision here.

   A Kansas trooper saw Esquivel-Rios driving a van down the highway.  The van was displaying a Colorado temp tag, and the trooper called the tag into dispatch to have it checked against all the various databases that we use for that sort of thing.  The dispatcher informed the trooper that there was no record found for the tag, and that Colorado temp tags usually have no record.  Based solely on the information that there was no record found, the trooper stopped the van.  During the traffic stop, he received consent to search the van and found a hidden compartment with a lot of meth.

   Esquivel-Rios was subsequently convicted of federal drug charges.  At the trial (and in his appeal), he argued that the stop was unreasonable and everything found as a result of the stop should be suppressed.

   The trial court denied his motion to suppress, and the Tenth Circuit sort of decided not to decide.  The Tenth observed that they and other courts have upheld stops based on there being no record of a plate.  The idea behind that is that when a government database for license plates doesn't contain information about a particular license plate being used, it "raises a non-trivial possibility that the tag wasn't lawfully issued in the first place but falsified in some way."  So ordinarily a stop based solely on information from a database is good to go.  The problem is that in this case, the evidence suggests that the problem was likely to be with the database.

   When the dispatch said that records of Colorado temp tags usually don't come back, this suggests that there's some explanation other than wrongdoing on Esquivel-Rios' part.  Maybe Colorado doesn't put temp tags into a database (until recently, Colorado didn't).  Maybe there's some other bug between the Colorado database and the Kansas one.  Or maybe the tag is suspicious and there's just a lot of fake Colorado temp tags in Kansas.  The trial court didn't really look into it.

   The Tenth found that the "no record" issue could go either way.  It could still meet the standard or reasonable suspicion, or it could fall far short of it.  It all depends on facts which weren't explored by the trial court because the trial court just ignored Esquivel-Rios' challenges to the database's reliability.  So rather than decide this case, the Tenth sent it back to the trial court to more fully develop the record as to what the dispatcher meant by "usually," and as to what the trooper's previous experience with Colorado temporary tags has been.

   I bet the dispatcher wishes he could take that remark back now that it's getting picked apart in court.

Tenth Circuit US v. Barajas 12-3003

Decision here.

   The DEA was investigating a conspiracy to distribute meth, and the investigation involved lots of wiretaps on cell phones and pinging phones (which the decision describes as a way to query a phone for GPS data).  All of this cell-phone-voodoo was authorized by court orders issued in California, although the charges landed in the tenth circuit because there was a pretty significant seizure of meth and cash in Kansas City which was tied to the conspiracy.  Anyway, Barajas was identified and arrested based on evidence obtained from secretly listening to phone calls and pinging his phone.  He moved to suppress the evidence, he lost, he was convicted at trial, and then he appealed.  

   He argued that pinging his cell phone was a search.  The tenth circuit assumed without deciding that pinging cell phones is, in fact, a search.  Apparently courts around the country are still mulling that question over.  I don't see how anyone could seriously argue that pinging a phone is not a search, but I'm not a lawyer.  But for going-forward purposes, we know that the tenth circuit is humoring the idea that pinging is a search, but hasn't completely made up its mind.  Do with that what you will.

   Barajas also argued that the affidavits which supported the wiretap orders were insufficient.  He argued that they didn't contain probable cause, but the tenth held that they did.  He argued that they didn't explain why a wiretap was necessary (one of the requirements of both California and Federal wiretap laws is that you have to show why more traditional investigative techniques won't work), but the tenth held that the affidavits met that burden too.  Barajas pointed out that the affidavit didn't even request authorization to ping the phones.  The wiretap orders did authorize phone pinging, but there was no request anywhere in the affidavits requesting that authorization.

   Oops.

   The Tenth pointed out that even though the affidavit didn't specifically request that authority, the court could still grant it if the facts contained in the affidavit established probable cause to search the phone's GPS.  The court could rely on the same facts that were used to show PC to listen in on the conversations, as long as those facts showed a fair probability of a nexus between the phone's location and criminal activity.  The court even went so far as to say that next time the officers might want to include in their affidavit something explaining how they could use the GPS data to identify the suspect (since at the time they only knew his nickname).  But the court hesitated to say that the affidavits established PC for the phone ping.  In the end, they decided not to make a decision about that.

   Instead, the courts ruled that the officers' reliance on the warrant invoked the good faith exception.  The affidavits might not have been the best work (despite averaging 115 pages), but they weren't plainly defective either.  They were good enough for the cops to reasonably rely on the warrants, so the court held that whether they actually showed PC for the authorization of phone pinging or not, they were close enough that the evidence is admissible.

   Barajas' conviction was affirmed.

Colorado Court of Appeals People v. Taylor 09CA2681

Decision here.

   Undercover narcotics investigators watched Taylor make gestures which they later testified were consistent with trying to initiate drugs sales.  So they asked him for a hook up (specifically crack).  He told them that he doesn't sell drugs, but offered to call a dealer for them.  He made the call, and a female showed up and sold the cops some crack.  Both the dealer and Taylor were arrested after the sale.  Incident to the arrest, a sergeant checked Taylor's cell phone call log.

   Taylor was convicted of conspiracy to distribute a controlled substance (and acquitted of actually distributing said controlled substance).  He appealed his conviction on several grounds: he argued that the search of his cell phone was unlawful, that the court should have given the jury an entrapment instruction, and that the court improperly denied one of his juror challenges (I won't be summarizing the juror challenge issue, but the appellate court didn't buy it).

   As far as entrapment goes, in Colorado entrapment is an affirmative defense which the defendant has to present some evidence of in order to  claim.  The court held that since Taylor was contesting the allegations, he couldn't claim the defense.  The court also explained that nothing in the record would have supported an entrapment defense anyway (the fact that the police initiated contact with Taylor and asked him to sell them drugs wasn't the sort of action that would induce someone to commit a crime they were not already predisposed to, so it wasn't entrapment).

   But most of the decision deals with the search of the cell phone.  The trial court apparently held that the search was admissible as a search incident to arrest, and alternately that it was admissible based on exigency or on plain view (I have no idea what facts could possibly support either conclusion, but the court of appeals didn't address either one).  The court of appeals observed that the authority to search incident to arrest is based on the authority to arrest, and does not depend on any independent suspicion of weapons or contraband.  And although over time the courts have frequently modified police authority to search the area within a suspect's control, the authority to search a suspect's person has remained constant.  The court held that in this case, searching the phone's call log incident to arrest was valid.

US Supreme Court US v. Jones 10-1259

Decision here. 

   I meant to write this one up last Monday, but I've been in training all week and haven't had time.

   Here's the facts: Jones was being investigated for drug trafficking, and as part of of the investigation the government (an FBI/Metro PD task force) obtained a search warrant to place a GPS on his jeep (his wife's actually, but he was the only driver). The warrant authorized the police to install the GPS on the jeep within 10 days of its issuance, and the installation had to occur within Washington, D.C. So they did what anyone would do, and installed the GPS 11 days later while the jeep was parked in Maryland. They continued their investigation using the GPS, and eventually Jones was convicted of drug trafficking. After his conviction, Jones was sentenced to life in prison.

   Prior to his trial, Jones had filed a motion to suppress the evidence obtained from the GPS, which was substantial in that it tied him to a stash house that contained lots of money and cocaine. The district court suppressed the evidence obtained while the jeep was parked at Jones' residence, but admitted the rest because it held that Jones had no reasonable expectation of privacy in his location while moving along a public roadway. The first trial resulted in a hung jury, and a retrial ended with his conviction. Jones appealed, on the grounds that the GPS evidence should have been suppressed.

   The court of appeals held that the GPS evidence should have been suppressed. The government appealed, arguing that the GPS was not a search for Fourth Amendment purposes (because Jones didn't have a REP in his location?). At first, I thought that the government had effectively abrogated this position back in the beginning of the investigation, when they applied for a warrant (something that we don't normally do when our intended activity doesn't amount to a search). But since an officer's subjective intent doesn't matter for Fourth Amendment analysis, so long as the facts are reasonable, the government could have argued that the officers thought they were conducting a search (and therefore applied for a warrant) even though they actually weren't... I don't know if that's what they were going for, it's just the only thing I could think of to salvage such a bizarre argument. The government raised an alternate argument on appeal that even if this was a search, it was a reasonable one. Since this argument was first raised on appeal, the Court refused to consider it.

   Anyway, the opinion. Here's where it gets confusing. There are actually three opinions written for this decision. Every Justice held that the evidence should have been suppressed, but they couldn't seem to agree on why. Five justices joined in the majority opinion, and one of those also wrote her own concurring opinion. The four remaining justices joined in a concurring opinion which concurred only in the outcome. So:

   Majority (barely) opinion: For most of US history, the primary test for determining whether or not something was a search for Fourth Amendment purposes was whether or not the government's actions would have been trespass under common law (specifically, trespass against someone's person, house, papers, or effects. Even though it was possible to commit common law trespass in an open field, open fields are not mentioned in the Fourth Amendment, so the Fourth Amendment is not implicated at all when an open field is searched. A vehicle, on the other hand, is someone's "affect," so the Fourth Amendment is implicated here). In 1967, the Supreme Court in Katz v. US created the reasonable expectation of privacy test (that phrase actually appears in a concurring opinion, but subsequent search and seizure decisions have followed its reasoning). However, nothing in that decision actually abrogated the old test, but only added to it. In this case, the police installed a hidden device on Jones' car (the Court compares this to a constable stowing away in a carriage to obtain information that would incriminate the occupants, such as their destination or conversations). Under the English Common Law prevalent at the time that the Fourth Amendment was drafted, this would have been a trespass. Therefore, installing the GPS was a search. Since installing the GPS was a search, and since there was no valid warrant or exception to the requirement for one, the evidence should be supressed.

   Concurring opinion #1: One of the Justices who joined in the majority opinion wrote this. This opinion suggests that the real concern isn't the installation of the GPS device, but the detailed personal information which can be surreptitiously obtained by one. This opinion suggests that a person's expectation of privacy in her GPS location may be something that society is prepared to recognize as reasonable, because of the wealth of personal information that can be obtained. Under the reasoning of this opinion, obtaining someone's location by using GPS information signals from their own phone might be protected by the Fourth Amendment (as it should be, in my opinion). However, since the trespass test is sufficient to dispose of the case at hand, it isn't necessary to make a ruling on the other issues raised by this opinion.

   Concurring opinion #2 (in which four justices joined): This opinion suggest that the actual installation of the GPS isn't the issue, and criticizes the majority for using 18th century common law as the basis for a decision on 21st century technology. Regarding the stowaway constable metaphor, this decision says "The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience." This opinion suggests that the issue is the amount of time that the police continued to monitor Jones' location by GPS, and that sometime before reaching the four week mark this became a search for Fourth Amendment purposes. Prior to the advent of GPS technology, this kind of surveillance would have required a team of agents, multiple vehicles, and perhaps aerial assistance. The amount of resources required meant that only important investigations would include this sort of tactic. Now, this kind of surveillance can be accomplished cheaply and easily. This opinion reasons that relatively short-term surveillance is ok, but longer term surveillance conflicts with a person's reasonable expectation of privacy (depending in part on the severity of the offense). The only guidance this opinion offers to differentiate between short term and long term surveillance is that four weeks falls well within the realm of long term.

   Personally, I'd have liked to see a majority opinion that more closely resembled concurring opinion #1. It was the opinion that made the most sense to me, and that focused the most on what I see as the real issue in this case (electronically monitoring someone's location without their knowledge). But I guess that unless I eventually end up with "the honorable" in front of my name, I'll just have to roll with what the court gives me.

US Supreme Court Kyllo v. US 99-8608

Decided June 11, 2001

   A federal agent suspected that Kyllo was growing marijuana in his home, which requires high intensity lamps.  As part of his investigation, he used a thermal imaging device to see if Kyllo's condo was warmer than his neighbors' was.  The scan took place from across the street, and from another street behind Kyllo's home, using a device that picks up infrared radiation.  The device found that a section of his roof was warmer than the rest of his home and a lot warmer than the other homes in the complex.  From this, the agent discerned (correctly) the type of lamp which Kyllo was using.

   Based on this information, and on the use of informants and information from utility bills, the agents got a warrant for Kyllo's condo.  They found an indoor grow with more than 100 plants, and Kyllo went to jail.  He moved to suppress the marijuana, arguing that the warrant was obtained using information from an illegal search.  The trial court denied his motion, so he conditionally pled guilty and appealed.

   The US Supreme Court observed that searches within a home are presumptively unreasonable under the Fourth Amendment, but surveillance from outside the home does not ordinarily qualify as a search.  By simply looking at a house, the police are not infringing on any reasonable expectation of privacy.  The important question in this case is whether or not the use of sense enhancing equipment (like a thermal imager) converts ordinary surveillance to a search.

   The Court ruled that a search has occurred when the police use a sense enhancing device which is not in general public use, and which reveals information which could not otherwise be discerned from outside the area being searched.  So using a thermal imaging device is a search, since the police couldn't tell what temperature the inside of the house is unless they went into the house or used the device.  Since there was no warrant and no justification for a warrantless search, this search in this case was unreasonable and the infrared evidence had to be suppressed.  The case was remanded back to the trial court for a hearing on whether or not the other information used to apply for a warrant would have been sufficient to obtain one.