Articles Posted in Searches and Seizures

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It’s now almost unremarkable that the Fourth Circuit had a defense-friendly published opinion. Yet, on that fact, I will now remark, since the Fourth Circuit recently decided United States v. Gaines.

Driving in Baltimore

Travis Gaines was sitting in the back of a white Crown Victoria, traveling down the streets of Baltimore City. The Crown Vic drove past a police car, with three cops inside.

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Perhaps January 24, 2009 was a normal day for Joseph Edwards. He woke, tied some crack cocaine around his penis, threatened his ex-girlfriend with a gun, and went out into the Baltimore night.

His ex-girlfriend, however, had complained to the police about his threat. The police began to prepare an arrest warrant and went into the streets to look for Mr. Edwards. Around 11 p.m., the officers found him.

1142077_knife_2.jpgThe police officers asked Mr. Edwards to approach them. He did, calmly. He “looked like he was just walking down the street” according to the officers. He didn’t act like a man with a gun – he wasn’t fussing with his waistline. He also didn’t look like he was involved in drug dealing; the officers didn’t see him doing any hand-to-hand transactions before they called out to him.

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The Fourth Circuit continues in its celebration of the Fourth Amendment. In the past few months, the Fourth Circuit has been kind to criminal defendants who have been searched by law enforcement without a warrant.

As the Fourth Circuit itself noted in yesterday’s case of United States v Powell,

Earlier this year, in United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011), we noted “our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity.” Twice in the past few months, we reiterated this concern. See United States v. Massenburg, 654 F.3d 480, 482 (4th Cir. 2011); United States v. Digiovanni, 650 F.3d 498, 512 (4th Cir. 2011). In all three cases, we held that the Government failed to meet its minimal burden of articulating facts sufficient to support a finding of reasonable suspicion.

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We may be seeing a revolution in the way Terry stops are reviewed by the courts of appeals.

The Fourth Circuit, long a bastion of conservative unpublished opinions, has recently published a series of opinions affirming a robust right under the Fourth Amendment to be free from suspicionless Terry stops. (see coverage here, for example).

independence_hall_philadelphia_pa_.jpgNow the Sixth Circuit has joined the action in United States v. Beauchamp.

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In many ways, riding in a car is so much worse for you than, say, walking or riding a bike. When I drive, I know I’m not exercising; I can almost feel my muscles convert to fat. Driving burns gasoline, which is bad for the environment. Cars clog roads.

Other than the massive convenience and the ability to privately listen to bad radio, cars don’t have much to recommend them.

Cars are even worse when you realize that driving a car also diminishes your Fourth Amendment rights. If the police have probable cause to think you have some contraband, they normally need a warrant to go in your house. Not so for your car. Because cars can move, the courts don’t require a warrant to search a vehicle – mere probable cause is enough.

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It was an ordinary Tuesday night. Lannerick Johnson was at home with his ex-wife, Karen. Their kids were home too. Lannerick and Karen had been through hard times before, but he’d partly moved back in – he was sleeping there frequently and had left some things in the room they shared.

Perhaps they were watching Tim Russert moderate a debate between Barack Obama, Hillary Clinton, Joe Biden, and John Edwards on NBC. Karen’s mom and grandmother were home too; they all lived in the house, which was owned by Karen’s mom.

Then the police came knocking.

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The Fourth Circuit has – for the second time in the past few weeks – given meaning to the Fourth Amendment’s prohibition against unreasonable searches and seizures.

In United States v. Massenburg, Judge Andre Davis rejected a government claim that a police officer had reasonable articulable suspicion to search a citizen. This is fresh on the heels of the Fourth Circuit’s holding that wanting to avoid wrinkled shirts is not an indicicator of criminality.

In Massenburg, the police were in a neighborhood where shots had been fired. A group of four young African-American men were walking by two police officers. The officers asked if they could speak with the men. The men stopped and answered a few questions. One of the men, Mr. Massenburg, stood a few feet away from the others. A police officer asked one of the men for his identification. The man complied. A police officer asked if he could pat the men down. Three said that he could.

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What good is a hunch if you can’t say why you have it? If you want to stay inside the Fourth Amendment, not much.

Stephen Digiovanni was driving through Maryland. He was stopped by the Maryland State Police for following too close to another car.

The officer who pulled him over, though, was a member of a Pro-Active Criminal Enforcement Team, a task force set up to investigate drug and terrorist activities. When the officer pulled Mr. Digiovanni over, he didn’t see a man in his late fifties driving from Florida to Boston. No, this officer saw a drug trafficker.*