Federal Criminal Defense Blog : Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

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.

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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.

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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.

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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.

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