An undercover FBI agent infiltrated the Hutaree and recorded the group discussing plans to kill a police officer and then to kill more law enforcement officers at the officer’s funeral. However, the defendants maintained at trial that the talk was just talk, and that they did not intend to go forward with the alleged plan.

If you or a family member are facing a criminal matter, or have a civil matter in need of expert representation, contact our offices in Atlanta and Savannah.

According to Wired, the prosecution argued to the Court, in response to a motion by Jones to suppress his cellphone location data, that individuals have no “reasonable expectation of privacy” in cellphone location data. Counsel for the government contended that the data is similar to banking records, which are records created by third-parties which individuals possess no right to keep private. The government also argued that cellphone users create the risk that cellular service providers will create records of which cell towers host their telephone calls. There is furthermore no physical intrusion in gathering cellphone location data. The government maintains, therefore, that it does not require probable cause in order to obtain a warrant for cellphone location data. The defense, naturally, has disagreed.

Following the Supreme Court’s earlier decision, the FBI ceased its use of approximately 3,000 GPS tracking devices.

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.

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.

Image source: http://www.fieldtechnologies.com/more-employers-using-gps-tracking-system-to-manage-workers/

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?

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.
 

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.

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.

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.
 

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.