We have mentioned the case of U.S. v. Jones which was pending before the United States Supreme Court, and  the issue of whether placement of a gobal positioning satellite (GPS)  device on a vehicle by law enforcement constitutes a search. Late last month, the Court issued an opinion holding that the government’s installation of a GPS device on a target’s vehicle constituted a search.  Justice Scalia authored the opinion of the plurality, which was joined by Justices Kennedy, Thomas and Sotomayor. Two concurring opinions were issued, the first by Justice Sotomayor and the second by Justice Alito, joined by Justices Ginsburg, Breyer and Kagan.

The main opinion begins with the premise that the Fourth Amendment to the United States Constitution "protects people, not places." Katz v.  U.S., 389 U. S. 347, 351 (1967).  The Court also observed that the Fourth Amendment was historically viewed as embodying a concern for governmental trespass to a person's person, property, papers and "effects."

The government's primary argument was that the device was placed on the vehicle in an area which was accessible to the public and regarding which the petitioner lacked a reasonable expectation of privacy, and therefore the placement did not implicate the Fourth Amendment. The main opinion, however, rejected this argument, concluding that the officers encroached on a protected area in attaching the GPS device.

Justice Alito's concurrence took issue with the approach in the main opinion, claiming that the Court concluded that the affixing of the GPS device constituted a search based upon the tort law of trespass to chattels.


U.S. Supreme Court to Hear Arguments in Warrantless GPS Surveillance and Tracking Case on November 8

The U.S. Supreme Court's 2011-2012 term begins on Monday. Among several issues prominent in the public eye at the moment--i.e. healthcare, immigration--the Court will hear argument on warrantless surveillance. According to a press release yesterday by the National Association of Criminal Defense Lawyers (NACDL), on November 8, 2011, the Court will hear arguments in United States v. Jones, No. 10-1259, a case from the Court of Appeals for the District of Columbia Circuit. Jones involved an investigation by D.C. police of drug activity in 2005. The police obtained a warrant authorizing placement of a Global Positioning Satellite (GPS) device on a vehicle belonging to defendant Antoine Jone's wife, although the warrant was only good for 10 days. Officers placed the device on the vehicle while it was parked in a parking lot in Maryland. The officers monitored Jones using the device for four weeks, and never returned to the court to extend or renew the warrant.

The D.C. Circuit held the "search" of Jones to be unreasonable. Defense and civil liberties groups have filed amicus briefs arguing that warrantless GPS surveillance and tracking places an unacceptable burden on both Fourth Amendment and First Amendment privacy rights, and are urging the Court to condition installation and monitoring upon judicial issuance of a warrant. The case has been touted by experts as the most important privacy case in decades. The NACDL's amicus brief may be read here.

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Kentucky v. King, or The Police Know Exigent Circumstances When They Hear Them


Police officers set up a controlled buy of crack cocaine at an apartment complex in Kentucky and observed the deal take place. The officers then moved to intercept the suspect before he re-entered his apartment. The officers heard a door shut and detected an alleged strong odor of marijuana outside of two apartment doors, although they did not know which door the suspect had entered. The officers banged on the door of the apartment to the left and announced themselves. The officers then allegedly heard the sound of items being moved in the apartment. The officers announced that they were going to enter the apartment and kicked the door in, where they found Hollis King, his girlfriend and a guest who was smoking marijuana. The officers conducted a protective sweep of the apartment, discovering marijuana and powder cocaine in plain view. In a subsequent search, the officers discovered crack cocaine.

The police later entered the apartment to the right, which was the actual apartment which the suspect had entered.

King was charged with trafficking controlled substances and filed a motion to suppress the evidence obtained from the search of his apartment without a warrant. The Kentucky Circuit Court denied the motion and King entered a guilty plea and was sentenced to 11 years’ imprisonment. King appealed, and the Kentucky Court of Appeals affirmed the Circuit Court’s denial of his motion to suppress, holding that the officers’ warrantless entry into the apartment was justified based upon “exigent circumstances” because the officers believed that evidence would be destroyed. However, the Kentucky Supreme Court reversed, questioning whether the mere sound of people moving inside an apartment was sufficient to support a conclusion that evidence was being destroyed. It then held that the search was not justified by exigent circumstances because it was reasonably foreseeable that the occupants of the apartment would destroy evidence when the police knocked on the door and announced themselves. The Commonwealth of Kentucky then took its turn to appeal, and the U.S. Supreme Court granted certiorari.

In Kentucky v. King, which may be read here, in an opinion authored by Justice Samuel Alito, the majority noted the long-established exception to the Fourth Amendment’s requirement that searches and seizures without a warrant are presumptively unreasonable where “the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.” (citing Mincey v. Arizona, 437 U.S. 385, 394 (1978)). “Exigent circumstances” can arise where there is a need to prevent the “imminent destruction of evidence.”

However, the Court also recognized that an exception to the exception had developed—the police cannot rely on the need to prevent the destruction of evidence where the exigent circumstances were created or manufactured by the police themselves. (Citing United States v. Chambers, 395 F.3d 563, 566 (6th Cir. 2005); United States v. Gould, 364 F.3d 578, 590 (5th Cir. 2004)). The majority held that this exception unreasonably shrinks the exigent circumstances exception to the warrant requirement, since the presence of law enforcement always “create” exigent circumstances where persons are engaged in illegal conduct.

The Court then ruled that where the conduct of the police is reasonable and they do not violate the Fourth Amendment prior to the exigent circumstances arising, a warrantless entry to prevent the destruction of evidence is allowed. The majority noted that “When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.” (Citing Florida v. Royer, 460 U.S. 491, 497-98 (1983)). The Court proceeded to reversed the decision of the Kentucky Supreme Court.

The Court’s actual holding in King, which has been discussed on NPR, is actually understandable—police do not “create” or “manufacture” exigent circumstances where they act reasonably, which understandably includes knocking on a door to in pursuit of a fleeing suspect. However, the concerns over the implications of King are also understandable. The decision suggests that sufficient exigent circumstances exist to search a premises where they knock and announce their presence, although hopefully lower courts will require something more when applying the decision.

The particular facts of the case itself are also troubling. The police in King searched the wrong apartment. In addition, is the mere sound of things being moved in an apartment sufficient to support a conclusion that evidence is allegedly being destroyed and to create exigent circumstances to search, especially where police are not certain who the occupants of the apartment are?


Ninth Circuit Upholds "Border" Searches of Electronic Devices Hundreds of Miles from Border

The Ninth Circuit Court of Appeals last week issued an opinion holding that Customs agents may seize electronic storage devices, including computers, hard drives, USB sticks, smart phones and digital cameras carried at the U.S. border and search the devices either at the port of entry or at an off-site forensic laboratory under the border search exception to the Fourth Amendment's prohibition against unreasonable searches and seizures. According to an article by Forbes magazine, the Court held that such searches must be reasonable, and the duration of the deprivation cannot be egregious. The opinion, U.S. v. Cotterman, may be viewed here.

The case arose from the prosecution of Howard Cotterman who crossed the U.S./Mexican border with his wife at Lukeville, Arizona, on April 6, 2007. U.S. Customs and Border Protection agents received a Treasury Enforcement Communications System alert to be on the lookout for child pornography, as a result of Cotterman's 1992 conviction for sex crimes involving children.

The agents screened Cotterman and his wife at the border and seized two laptop computers and three digital cameras. The agents conducted a search of the devices at the border, but were unable to find any alleged illicit material since much of the data on the computers was password-protected. The agents then returned the cameras to the Cottermans and allowed them to enter the U.S., but retained the computers and sent them to Tucson, Arizona, for forensic examination. A forensic examination discovered hundreds of images containing child pornography on Cotterman's laptop.

Cotterman was charged with possession of child pornography. The trial court granted his motion to suppress the evidence seized from his laptop as the result of an illegal search and seizure, and the government appealed. In its opinion, the Ninth Circuit reversed the trial court's decision, holding that whatever an individual brings into the U.S. can be searched and that such searches may take place hundreds or thousands of miles from the physical border. Border searches are distinguishable from other types of searches in that there is no reasonable expectation of privacy. Where a search is prolonged, however, the government must justify the search by showing a reasonable suspicion that the search may uncover contraband or evidence of criminal activity.

DOJ Publishes Reference for Search and Seizure of Electronic Evidence

A large portion of government searches and seizures today involve the seizure and search of electronic media and information. The manner in which such searches and seizures of electronic media and information are conducted can become critically important afterwards if criminal proceedings are instituted. Well on Tuesday, the U.S. Department of Justice's Office of Justice Programs announced the publication of Electronic Crime Scene Investigation: An On-the-Scene Reference for First Responders by the National Institute of Justice, and may be viewed in its entirety on OJP's website. The publication is a guide for first responders responding to electronic crime scenes, and is a companion to an earlier publication, Electronic Crime Scene Investigation: A Guide for First Responders, Second Edition.

The publication is available as a "flip book" which agents may consult on-scene during investigations and searches. It describes the types of electronic devices, guidelines for securing and evaluating a scene, guidelines for packaging and transporting digital evidence, and special considerations for electronic and digital crime evidence by type of crime. The guide instructs investigators, among other things, to:

*Document, photograph and secure digital evidence.

*Not to alter any electronic device.

*To exclude unauthorized persons from the area where the evidence is being collected.


*To interview witnesses regarding the use and users of any computers or devices.

*To document various facts relating to the electronic devices, as well as to video, photograph or sketch the scene.


*Not to alter devices or attempt to explore them on the scene, or even to press a key or click a mouse.

The OJP publication may prove of great assistance to defense practitioners in attempting to suppress the fruits of searches and seizures of electronic information and media. Counsel should carefully review the facts of any search and seizure of such evidence and interview all witnesses to any search and seizure to ascertain whether these procedures have been followed.

Interesting Criminal Case Fact of the Day

Though apropos of absolutely nothing for January 13, 2010, I recently came across an interesting fact in my research of some Consititutional issues. The case in question is Mapp v. Ohio, 367 U.S. 643 (1961), which applied the exclusionary rule to the states through the Fourteenth Amendment. The fascinating fact of note is that the investigation and unlawful search of the residence of Dollree Mapp, of Cleveland, Ohio, began as a result of a tip from now famous boxing promoter, Don King, who had been the victim of a fire-bombing and his cooperation against a local member of the numbers racket caused the search of Ms. Mapp's residence. Of course, no evidence of any bombing was found in Ms. Mapp’s residence, rather she was prosecuted for possession of obscene material. See State v. Mapp, 166 N.E. 2d 427 (1960).

Of course, Don King went on to wealth and fame as a boxing promoter and was twice acquitted in federal criminal trials, and coined the famous phrase, “Only in America,” following his first acquittal.


Moscow Offices of Two U.S. Law Firms Searched/Foreign Searches

As reported in, Russian authorities raided the Moscow offices of U.S. law firms White & Case and DLA Piper on Tuesday and seized documents relating to an $87.5 million fraud case involving the Hotel Moskva, one of Moscow' finest hotels.

The firms issued statements stating that the searches related to activities of the firms’ clients and not the firms, their Moscow operations or their employees. They insisted that their Moscow offices are now operating normally. The searches were apparently among many others Russian authorities have performed across Moscow.

Russian authorities apparently also raided American law firms last August, prompting the International Bar Association to urge the Russian government to protect lawyer’s rights.

All of which raises a question of how domestic entities with offices and personnel abroad, including law firms, react to searches and seizures by foreign authorities. The only pronouncement from the Supreme Court which we were able to uncover relating to the subject is from U.S. v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056 (1990), in which DEA agents searched residences in Mexico belonging to an alien involved in drug trafficking. The majority opinion, authored by late Chief Justice Rhenquist, held “the history of the drafting of the Fourth Amendment also suggests that its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters.” Id. at 267. The Court noted that “[f]or better or for worse, we live in a world of nation-states in which our Government must be able to “functio[n] effectively in the company of sovereign nations.” Id. at 275 (quoting Perez v. Brownell, 356 U.S. 44, 57, 78 S.Ct. 568, 575 (1958)).

Some countries have protections similar to the Fourth Amendment, but many others do not. American businesses doing business abroad which have concerns regarding potential searches or seizures, or even criminal proceedings, should consult with counsel, including foreign counsel or counsel familiar with applicable laws.

Reasonable Suspicion Justifies Search of Probationer's Home

Today the Eleventh Circuit held in United States v. Carter, No. 08-14460, that a search of the home of a probationer is reasonable under the Fourth Amendment, if supported by reasonable suspicion. Carter was on probation in 2007, however, his probation did not contain a Fourth Amendment waiver provision. His probation officer though, was suspicious that his lifestyle could not be supported by the unskilled labor he performed and he, along with other probation officers, searched Carter’s town home, which lead to him being charged with possession with intent to distribute crack and possession of a firearm by a convicted felon.

Carter moved to suppress the evidence discovered during the warrantless search. Relying on the balancing test set forth in United States v. Knights, 534 U.S. 112 (2001), Judge Carnes writing for the Court, noted that the Knights case first addressed the probationer’s individual privacy interests - in short - not much. Then Judge Carnes addresses the “governmental interests at stake” - in short - for a guy like Carter - prior violent crime and drug conviction - “the government’s interest in monitoring the probationer is particularly high.” This may be a common sense conclusion, but Judge Carnes draws this conclusion virtually out of thin air, citing only U.S.S.G. 4B1.1(a)(providing enhanced penalties for criminals with a history of drug felonies or crimes of violence). However, U.S.S.G. 4B1.1 says nothing about probationers, or the government’s interest in monitoring them more closely. 

Judge Carnes ultimately holds that “the search in this case need only be supported by reasonable suspicion to be reasonable under the Fourth Amendment” and that the search of Carter’s home was permissible.

A Rare Eleventh Circuit Reversal

Yesterday the Eleventh Circuit reversed the trial court’s denial of a motion to suppress in an internet child porn case. As we all know, reversals in the Eleventh Circuit are as rare as hen’s teeth. This case United States v. Mitchell, No. 09-10791, here, arises out of Savannah and was handled by our good friend Steve Beauvais of Zipperer, Lorberbaum and Beauvais. Mitchell entered a guilty plea, was sentenced to 78 months in prison, but preserved his right to appeal the denial of the motion to suppress.

On February 27, 2007 an ICE agent and FBI agent went to Mitchell’s house to conduct a knock and talk related to a child porn investigation. The agents asked Mitchell if he had purchased any subscriptions to porn websites and he said yes. When they asked him if any of his computers contained contraband, he said “yes, probably.” When they asked Mitchell if his computer contained child pornography, he said, “yes, probably.” The agents, had Mitchell execute a “Consent to Search” form, examined his computer, then seized it.

The seizing agent took Mitchell’s computer back to his office, then departed on a 2 week ICE training course. Twenty one days after the seizure, he presented an application for a search warrant to search the seized computer to the magistrate judge who issued the warrant. Child pornography was found on the computer during a forensic exam.

Mitchell moved to suppress based in part on the unreasonable delay in obtaining a search warrant. The magistrate denied the motion to suppress. Beauvais then appealed to the district judge, who adopted the magistrate’s report and recommendation. The appeal to the Eleventh Circuit followed.

In a fairly narrow holding, the Eleventh Circuit reversed the district court finding that the 21 day delay in obtaining the search warrant under the circumstances presented, was not reasonable and ordered that the evidence seized be suppressed.

Supreme Court Limits Warrantless Car Searches

In Arizona v. Gant, 07-542, the Supreme Court held on Tuesday that police may search a car incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment or the officers have a reasonable belief that the car contains “evidence of the offense of arrest.”

Demonstrating that the wheels of justice do indeed turn slowly, the Supreme Court affirmed the Arizona Supreme Court suppressing evidence found in Gant’s car when he was arrested for driving with a suspended license in 1999. The state court held that Gant could not have reached his car during the search and posed no safety threat to the officers, making a vehicle search unreasonable under the “reaching-distance rule” of New York v. Belton, 453 U.S. 454 (1981).

Scotus blog’s excellent discussion of the Gant case comments that Justice Scalia’s concurrence was clearly the swing vote in the 5-4 decision and that Justice Scalia suggests that the court abandon the “charade of officer safety” rule pronounced by the court earlier in Belton, for the rule that the majority ultimately adopts in its opinion.

This is an important decision for our citizens and for the every day practitioners of criminal law because it effectively extinguishes the “search incident to arrest” that we see in virtually all cases involving cars.

Eleventh Circuit/Georgia Federal Authority: Standing to Challenge Non-Administrative Searches and Seizures on Commercial Property

  In criminal cases involving non-administrative searches and seizures on corporate or commercial property, defense practitioners who represent officers or employees of the corporation will sometimes face the contention by the government that the officer or employee does not possess standing to challenge the search and seizure. Following is an analysis of Eleventh Circuit Court of Appeals and former Fifth Circuit Court of Appeals decisions in this area, and suggestions as to what the practitioner should argue when confronted with such contentions.

   The Supreme Court of the United States, in Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120 (1968), held that the protections of the Fourth Amendment “may extend to commercial premises,” id. at 368 (citing See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737 (1967); Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153 (1932); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182 (1920)). “It has long been settled that one has standing to object to a search of his office, as well as of his home.” Id. at 369 (citing Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261 (1921); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420 (1932); Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993 (1942); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381 (1963); Osborn v. United States, 385 U.S. 323, 87 S.Ct. 439 (1966)). “‘[C]apacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion.’” Id. at 368 (quoting Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967)).

    Similarly, the Eleventh Circuit Court of Appeals and former Fifth Circuit Court of Appeals have held that “a corporation has the same rights as a natural person to be free from illegal searches and seizures…” Henzel v. United States, 296 F.2d 650, 652 (5th Cir. 1961) (citing Silverthorne Lumber Co., 251 U.S. 385). “[U]nder certain circumstances a corporate officer or employee can be a person aggrieved by a search of corporate premises and a seizure of corporate property.” United States v. Britt, 508 F.2d 1052, 1055 (5th Cir. 1975) (citing Henzel, 296 F.2d 650); see also United States v. Delgado, 903 F.2d 1495, 1501 (11th Cir. 1990) (“in certain circumstances, an employee has standing to challenge searches conducted in his place of employment”) (citing Mancusi, 392 U.S. 364). “A person possesses standing when he has a reasonable expectation of privacy from governmental intrusion in either the premises searched or the items seized.” Delgado, at 1501 (citing Mancusi, at 368). “This is not to say that every employee of a corporation can attack the illegal seizure of corporate property if the fruits of the search are proposed to be used against him. Each case must be decided on its own facts.” Henzel, at 653.

   Moreover, “even where a defendant does not own the property searched, he or she may nonetheless have a reasonable expectation of privacy in that place by virtue of his or her relationship with that place.” United States v. Chaves, 169 F.3d 687, 690 (11th Cir. 1999) (citing Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 474, 478-79 (1998); Minnesota v. Olson, 495 U.S. 91, 96-100, 110 S.Ct. 1684 (1990); O'Connor v. Ortega, 480 U.S. 709, 714-19, 107 S.Ct. 1492 (1987)). Furthermore, “‘where the defendant’s possession was the object of the search, the defendant has standing to challenge the search even though he does not have an expectation of privacy in the premises searched.” Delgado, 903 F.2d at 1502 (citing United States v. Alewelt, 532 F.2d 1165, 1167 (7th Cir. 1976); Martinez v. Nygaard, 831 F.2d 822, 826 (9th Cir.1987)).

Gillen Withers & Lake LLC are white collar and corporate criminal defense attorneys with an outstanding reputation and track record, handling cases throughout Georgia and the nation. Call our Atlanta, Georgia, office at (404) 842-9700 or our Savannah, Georgia, office at (912) 447-8400.


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Border Searches Reach Laptops, BlackBerrys, Cellphones

As set forth in a detailed article in the National Law Journal, the Fourth Circuit and Ninth Circuit Court of Appeals have recently affirmed decisions upholding warrantless, suspicionless searches of laptop computers at international airports. See United States v. Arnold, 523 F.3d 941 (9th Cir. 2008), petition for reh'g en banc filed, No. 06-50581 (9th Cir. June 2, 2008); United States v. Ickes, 393 F.3d 501 (4th Cir. 2005). Courts have compared warrantless searches of laptops in customs inspections at a border or international airport to warrantless searches of luggage, suitcases, briefcases, pockets, papers and filmsat such locations.The government's power to conduct border searches is plenary, and does not require a warrant, probable cause or reasonable suspicion. See United States v. Montoya de Hernandez, 478 U.S. 531, 538 (1985). The United States Supreme Court has suggested that only some types of searches of persons, or searches carried out in a particularly "offensive" manner, might be unconstitutional. See Montoya,at 538-40; United States v. Ramsay , 431 U.S. 606, 618 n.13 (1977). No district court has yet ruled on whether the government must possess reasonable suspicion to search electronic data at the border, since all cases thus far in which the issue has arisen have held that reasonable suspicion to search existed (all have so far involved child pornography). See United States v. Irving, 434 F.3d 401 (2d Cir. 2005); United States v. Bunty, No. 07-641, 2008 WL 2371211, at *3 (E.D. Pa. June 10, 2008); United States v. McAuley, No. DR-07-CR-786(1), 2008 WL 2387979, at *4-*6 (W.D. Texas June 6, 2008). Defendants have attempted to distinguish computers from other personal property because of the massive amounts of data they can hold, invoking the First Amendment for expressive material, so far to no avail.

Other countries including the United Kingdom, Canada, Australia and China have conducted similar searches. All these cases have caused companies growing concern about how to protect their confidential information from the prying eyes of government agents. Several are putting policies in place to limit the electronic information officers and employees may take with them when they travel.

Congress may be preparing to take action, however. In June the Senate Judiciary Committee's Subcommittee on the Constitution held a hearing on border laptop searches entitled "Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel." Subcommittee Chairman Senator Russ Feingold of Wisconsin expressed the view that the border-search exception to the warrant requirement should be limited. Witnesses before the Subcommittee recommended legislation requiring reasonable suspicion for laptop searches and probable cause for seizure of data, limits on the duration and location of such searches, and more express policies regarding searches and seizures by  United States Customs and Border Patrol.