Category: Fourth Amendment
Rare En Banc Second Circuit Says “Spread Eagle” Order Not a Search Over Spirited Dissents Decrying State of Fourth Amendment Jurisprudence
The Second Circuit, sitting en banc, reversed a panel decision holding that officers lacked reasonable suspicion to frisk defendant Calvin Weaver after a traffic stop. The en banc majority (Judge Nardini, who authored the opinion, Chief Judge Livingston, and Judges Cabranes, Sullivan, Bianco, Park, and Menashi) concluded that the officers’ order to “spread eagle” did not transform the stop into a search because it did not amount to a physical trespass or invasion of an area to which Weaver had a reasonable expectation of privacy. Moreover, the en banc majority concluded that the circumstances prior to the frisk provided reasonable suspicion that Weaver was armed and dangerous. Two judges (Judge Lohier, along with Judge Carney) concurred in affirming the district court decision while largely rejecting the majority’s rationale, while three judges (Judges Calabresi, Pooler, and Chin) all wrote separate dissents in which each joined, leaving the Court with a 7-2-3 vote split.
In United States v. Purcell, the Second Circuit (Lynch, Pooler, and Park) considered the conviction of defendant Lavellous Purcell on five counts all arising out of his operation of a prostitution business. On appeal, Purcell argued that the warrants obtained in New York state court to retrieve data from Facebook violated the Fourth Amendment, that the convictions were based on insufficient evidence, and that the district court erroneously admitted certain testimony at trial. In a thorough and detailed opinion, the Court denied nearly all of Purcell’s arguments. However, in a reminder that venue is not to be assumed – nor can it involve “guesswork” – the Court reversed and remanded one of Purcell’s five convictions due to insufficient evidence of venue in the Southern District of New York. The U.S. Attorney for the Southern District of New York has at times taken a broad view of venue, and while the Circuit has approved of its long reach in many prior cases, this was a bridge too far for the Circuit.
Fourth Amendment Rights Without Remedies: Split Panel Holds That Delayed Warrant Was Unreasonable, But Exclusionary Rule Does Not Attach
In United States v. Smith, the Second Circuit (Katzmann, Kearse, Meyer, by designation) issued a split opinion weighing whether a month-long delay between authorities’ seizure of a tablet computer and their application for a search warrant violated the Fourth Amendment. The full panel upheld the conviction, but by different routes. The majority opinion found a Fourth Amendment violation, but held that evidence from the tablet should not be suppressed because the delay was due to “isolated negligence,” and thus the exclusionary rule did not attach. Judge Kearse wrote separately, explaining her view that the month-long delay did not violate the Fourth Amendment, largely because the investigating officer had other demands on his time. Speaking with one voice, the panel also rejected substantive and procedural reasonableness challenges to the 212-month child pornography sentence. The opinion highlights the extreme difficulty in mounting suppression challenges—both in persuading jurists that law enforcement officers have acted improperly, and in ultimately winning suppression under the vanishing exclusionary rule. The panel applies controlling law in its Fourth Amendment analysis, making it fair to ask whether the legal system provides optimal deterrence of constitutional violations.
In United States v. Walker, the Second Circuit (Calabresi, Pooler, Carney) considered a challenge to the conviction of Jaquan Walker on drug charges. Police officers found drugs on Walker after they stopped and questioned him. The justification for the stop was that Walker resembles an image of a black man believed to have been involved in a shooting, and because Walker happened to be walking about five blocks from the site of that shooting. In a remarkably pointed decision, the Circuit threw out the conviction.
On September 3, 2019, a divided panel issued a decision in United States v. Wallace (Winter, Pooler, Abrams, by designation) affirming the district court’s denial of Wallace’s suppression motion as well as Wallace’s 15-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). Judge Pooler wrote an 18-page dissent explaining why she believed Wallace’s suppression motion should have been granted. The primary issue addressed in the competing opinions was whether the prolonging of a traffic stop was supported by reasonable suspicion.
In United States v. DiTomasso, Defendant was convicted of producing child pornography and transporting and distributing child pornography in the Southern District of New York. The Second Circuit (Kearse, Jacobs, and Sack) held that searches of Defendant’s emails and chats on internet service providers AOL and Omegle, used for a search warrant leading to evidence against Defendant, did not violate Defendant’s Fourth Amendment rights, and that Defendant failed to preserve on appeal his argument that an entity which reports illegal user activity to authorities was a government entity or actor, subjecting that entity’s search to the Fourth Amendment. In addition, the Circuit held that Defendant’s trial counsel was not ineffective where counsel made a strategy decision not to call Defendant’s uncle (“Marcus”)—who allegedly admitted to Defendant’s crimes—as a witness.
In United States v. O’Brien, the Second Circuit (Kearse, Livingston, Carney) affirmed the conviction of Michael O’Brien for importing and possessing with intent to distribute methylone and anabolic steroids. The Court held that (1) the District Court properly denied O’Brien’s suppression motion based on the fact that he was experiencing drug withdrawal symptoms at the time of his arrest, (2) the evidence at trial was sufficient to sustain O’Brien’s conviction, and (3) O’Brien failed to timely raise his defense that methylone was designated as a controlled substance through an unconstitutional delegation of Congressional legislative authority to the Attorney General and the DEA.
Circuit Holds No Reasonable Expectation of Privacy in Rental Car for Unauthorized and Unlicensed Driver
In United States v. Lyle, 15-058-cr (April 1, 2019) (Raggi, Chin, Lohier), the Second Circuit, following a remand from the United States Supreme Court, once again held that the search of a rental car that James Lyle was driving (1) without a valid driver’s license, (2) without the permission of the rental car company, but (3) with the permission of the authorized driver, was lawful. We covered the panel’s original opinion in United States v. Lyle, 856 F.3d 191 (2d Cir. 2017) in a June 1, 2017 post. That post lays out the rather interesting facts and procedural history of this methamphetamine distribution and conspiracy case, and discusses each of the issues originally raised on appeal by Lyles and his co-defendant, Michael Van Praagh, including the panel’s original treatment of the rental car search issue. Subsequent to that blog post, the United States Supreme Court granted Lyle’s petition for a writ of certiorari challenging the search of the rental car and remanded to the Second Circuit for further consideration in light of its unanimous decision in Byrd v. United States, 584 U.S. ---, 138 S. Ct. 1518 (2018). Byrd included grand rhetoric about the Fourth Amendment, with Justice Kennedy writing that “[f]ew protections are as essential to individual liberty as the right to be free from unreasonable searches and seizures.” 138 S. Ct. at 1526. On remand, however, the Circuit once again upheld the search of the rental car.
Circuit Remands Case for Determination of Whether the Delay In Obtaining A Search Warrant Violated the Fourth Amendment
In a recent summary order in United States v. Smith, 17-2446, the Second Circuit (Katzmann, Kearse, Meyer by designation) remanded a case for additional fact-finding on a narrow issue relating to the duration of the time it took police to obtain a warrant to search the contents of a tablet computing device following the lawful warrantless seizure of the tablet.
In United States v. Bekim Fiseku, the Second Circuit (Cabranes, Lynch, Carney) rejected the defendant’s argument that police officers unlawfully seized evidence from the trunk of his co-defendant’s vehicle. The Panel held that an officer acted reasonably and consistent with the Fourth Amendment when he handcuffed Fiseku—despite lacking probable cause to believe Fiseku was engaged in criminal activity and having already determined that Fiseku was unarmed—due to the “unusual circumstances” of the encounter. Despite the Court’s assertions that its holding was based on the “unusual circumstances” presented by the case, the decision could be incorrectly taken by law enforcement personnel as permission to handcuff a suspect during a routine Terry stop, even in the absence of more tangible indications that the suspect is armed or otherwise dangerous.
Appeal “Tanks” After Circuit Holds That Defendant Gave Implied Consent to Have K-9 Unit Present in His Apartment After Calling 911 to Report Prowler
On July 31, the Second Circuit issued a decision in United States v. Iverson (Kearse, Calabresi, Livingston) and affirmed the conviction of a defendant who had challenged the district court’s denial of his suppression motion and the district court’s mid-trial decision to excuse one of two black persons on the jury for cause right before summations based on an interview of the juror conducted in camera. The decision presents an interesting set of facts and applies established law in the Second Circuit.
On July 25, 2018, in United States v. Lambus, No. 16-4296 (Kearse, Livingston, Jeffrey Meyer, D.J.), the Second Circuit issued a lengthy decision analyzing two questions related to the suppression of GPS data from an ankle bracelet and evidence obtained from a wiretap. The GPS question raises interesting issues about when a federal prosecution can make use of evidence obtained in connection with state parole supervision without a federal warrant and the relevance of state-federal coordination when making that assessment. And the wiretap issue addresses whether an undisputed, but inadvertent, error in a wiretap application should result in the suppression of evidence. On both issues, the district court (Weinstein, J.) granted the defendants’ motions to suppress, but the Circuit reversed.
Second Circuit Reverses Immigration Proceeding Based on Constitutional Violation, Criticizes Immigration Enforcement Based on Ethnic Generalizations As "Teeter[ing] On The Verge of The Ugly Abyss of Racism"
In the context of an appeal from a decision of the Board of Immigration appeals, Zuniga-Perez v. Sessions, the Second Circuit (Pooley, Wesley, Chin, C.JJ) ruled that a search conducted by law enforcement personnel violated the Fourth Amendment. The Court recognized that the petitioner “made a sufficient showing of an egregious constitutional violation” by law enforcement agents, and reversed the immigration judge’s decision to deny a suppression motion without a hearing. While this is not a criminal law decision, it raises some important criminal law issues, so we have decided to cover it.
On July 25, 2018, in United States v. Lambus, No. 16-4296 (Kearse, Livingston, Jeffrey Meyer, D.J.), the Second Circuit issued a lengthy decision reversing pretrial rulings suppressing evidence obtained from wiretaps and GPS monitoring.
Be Careful Where You Park: Circuit Finds No Legitimate Expectation of Privacy in Common Residential Lot
Earlier this year, in Collins v. Virginia, the U.S. Supreme Court held that the “automobile exception” to the warrant requirement does not authorize “a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein.” 138 S.Ct. 1663, 1668 (2018). Earlier this week, in United States v. Jones, No. 16-87 (Jacobs, Cabranes, Raggi) (June 19, 2018), the Circuit had its first opportunity to grapple with the import of Collins. But it had little difficulty finding that a vehicle parked in a common lot shared by multi-family apartment buildings is not entitled to the same expectation of privacy as a vehicle parked “within the curtilage of one’s home,” and in a published opinion, affirmed the district court’s denial of a motion to suppress. In a separate summary order, the Circuit addressed and disposed of the defendant’s other arguments, and affirmed his conviction and sentence in full.
On May 1, 2018, the Second Circuit (Lynch, Carney, Hellerstein D.J. (concurring)) reversed the district court’s denial of Defendant Robert Alexander’s motion to suppress guns found after a search of a bag in front of a shed in Alexander’s backyard. The panel closely reviewed Supreme Court case law on whether certain areas near the home are considered the “curtilage,” and thus are protected to by the Fourth Amendment. The decision also includes a notable concurrence from Judge Hellerstein, who argued for extending Terry v. Ohio’s “stop and frisk” doctrine to include searches of areas near the home based on reasonable suspicion of wrongdoing.
In United States v. Gomez, 16-181-cr (Parker, Wesley, and Droney), the Second Circuit found that the defendant’s Fourth Amendment rights were violated during a five-minute traffic stop because the police officers extended the stop for reasons unrelated to the defendant’s traffic violations. However, the Court nonetheless affirmed the conviction, ruling that the good-faith exception applied given that the officers acted legally under the Second Circuit’s prior precedent.
Federal Agent’s Misrepresentation in LG Search Warrant Affidavit Insufficient to Clear Qualified Immunity Hurdle
In Ganek v. Leibowitz, No. 16-1463 (2d Cir. Oct. 17, 2017) (Raggi, Chin, Carney), the Second Circuit reversed and remanded a district court’s determination that federal law enforcement authorities were not entitled to qualified immunity from plaintiff’s Bivens claims for money damages for violations of the Fourth and Fifth Amendment in procuring and executing a search warrant.
The Second Circuit issued a published opinion on September 11, 2017 in United States v. Pabon, No. 16-1754 (Cabranes, Livingston, Pauley), a case arising from an interesting set of facts involving the warrantless arrest of an individual suspected of body-packing narcotics who behaved erratically while in police custody. On appeal, the defendant argued that evidence he had been body-packing narcotics should have been suppressed because it was obtained only after probable cause to detain him had dissipated. In the alternative, the defendant argued that suppression was warranted because police allegedly failed obtain a probable cause determination from a neutral magistrate in a timely fashion (typically 48 hours).
In United States v. Browder, the Second Circuit (Cabranes, Lohier, Forrest, sitting by designation) has vacated in part an order finding that the defendant violated two conditions of supervised release. The Court’s decision sheds light on the respective roles of the district court and the Probation Office in entering and executing an order of supervised release, and it suggests that the Court may look with increased scrutiny at generalized conditions that defer to the Probation Office without sufficient judicial scrutiny, and may reject violation specifications based on those infirm conditions.
Yesterday the Second Circuit, in United States v. Huertas (15-4014) weighed in on the question of when a suspect’s brief encounter with police can support a finding that the suspect was “seized” within the meaning of the Fourth Amendment. Judge Jacobs, joined by Judge Winter, concluded that a suspect who briefly pauses to answer a police officer’s questions, but then proceeds to flee, has not been “seized.” Judge Pooler dissented, pointing to out-of-Circuit precedent and arguing that a suspect’s encounter with police generally constitutes a seizure if it extends beyond a “momentary halt.”
Exigent Circumstances Under the Fourth Amendment May Extend to the Need to Interview an Arrestee in Place
In a split decision in United States v. Delva, No. 15-cr-683 (Kearse, Winter, Jacobs), the Second Circuit held that the Fourth Amendment allowed law enforcement officers to seize cell phones and a number of letters that were in plain view in the room of a suspect’s home where he was interviewed immediately after an arrest. The majority opinion, written by Judge Kearse, relied on the “exigent circumstances” doctrine to hold that it was reasonable under the circumstances to hold an interview in the suspect’s home, which allowed the officers to seize incriminating evidence that was in plain view without obtaining a search warrant. Although the majority opinion is careful to recognize that the exigent circumstances exception requires a case-by-case analysis, the decision extends the infrequently applied exigent circumstances doctrine to a new set of facts. The decision drew a dissent from Judge Jacobs, who objected to the majority’s reliance on the exigent circumstances doctrine when the government had not raised it in the trial or appellate court, thus denying the defendant any chance to respond to this somewhat novel analysis offered by the Court.
In United States v. Lyle, 15-958-cr (Raggi, Chin, Lohier), the Second Circuit covered an array of criminal procedure issues—including the Fourth Amendment concerns associated with rental car searches, proffer agreement waivers, and the admissibility of a co-defendant’s confession—in the course of affirming the defendants’ narcotics conspiracy convictions. Lyle leaves unresolved the issue of whether an unauthorized driver ever has a reasonable expectation of privacy in a rental car. It does provide, however, an important reminder of the potential pitfalls of proffer agreements and the challenges that arise when trying multiple defendants together.
The murder-for-hire statute makes it a crime to agree to commit murder in exchange for “anything of pecuniary value.” 18 U.S.C. § 1958. The Second Circuit has understood this language to require that, at the time of the agreement, there was a quid pro quo or at least the promise of some pecuniary consideration. In United States v. Babilonia, No. 14-3739, the Court (Chin, Carney, and Cogan, sitting by designation) reaffirmed this “pecuniary consideration” requirement, but then suggested it presents a minimal hurdle where there was payment after the fact.
The Circuit Raises A Glass To A Broad Construction Of Law Enforcement’s Authority Under The Fourth Amendment
Yesterday the Second Circuit issued a decision in United States v. Diaz, No. 15-3776 (Walker, Sack, Chin). In an opinion by Judge Sack, the Court addressed two questions under the Fourth Amendment: when does a police officer have probable cause to make an arrest under an ambiguous law, and whether an officer can conduct a search incident to arrest if she only intends to issue a citation.
Law Enforcement Permitted To Obtain GPS Location Data Without A Warrant In A Sex Trafficking Investigation
In United States v. Gilliam, 15-387, the Second Circuit (Newman, Winter, Cabranes) held that, under the exigent circumstances present in that case, law enforcement could use cell phone GPS data to locate a suspect without obtaining a warrant consistent with both the Stored Communications Act and the Fourth Amendment. This appeal presents one of many unanswered questions arising out of cellphone technology. While cellphones are far from new, there are still some questions about how cellphone data can be used in investigations and at trial.
Recently, in U.S. v. Hussain et al., No. 14-4425-cr, the Court (Calabresi, J., Lynch, J., Lohier, J.) reversed a district court’s denial of a motion to suppress a loaded gun found during a protective search of the defendant’s car. In so doing, the Court noted its doubt that the same set of facts would have given rise to a suspicion of dangerousness had the Jamaican-American defendant been of a different race, gender, or socio-economic background. This candid remark from the Court is in keeping with the social and political issues that have been raised more broadly about the need for fairness and the appearance of fairness in how our criminal laws are enforced.
In United States v. Caraballo, 12-3839-cr (L) (August 1, 2016) (Calabresi, Lynch, Lohier), the Court held that “exigent circumstances”—here, suspicion of involvement in a recent murder and potential danger to law enforcement—justified a warrantless “pinging” of defendant’s cell phone to determine his location. The Court accordingly affirmed the district court’s denial of defendant’s motion to suppress statements he made after police located him through a series of “pings” executed by his cell phone carrier.
Second Circuit Affirms Reasonableness of Extended Terry Stop: Two Brothers, 145 Pounds of Marijuana, and a “Sudden Pepper Emergency”
In United States v. Compton, 15-942-cr (Walker, Raggi, Hall), the Second Circuit held that an extended Terry stop by Border Patrol agents was justified by reasonable suspicion and declined to suppress evidence obtained during the stop. Compton confirms the proposition that a court may consider a defendant’s attempt to avoid a checkpoint as a relevant factor in the “reasonable suspicion analysis” and highlights the fact-intensive nature of that analysis.
Can the Government employ a domestic search warrant to compel disclosure of communications stored on servers located outside of the United States? In its much anticipated decision in In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation, 14-2985 (“Microsoft”), a Second Circuit panel (Lynch, J., Carney, J., Bolden, J., sitting by designation) answered that it cannot.
How does the Government successfully “toe the line” when it comes to custodial interrogations for suppression purposes? In United States v. Faux, 15-1282-cr, the Court (Jacobs, J., Hall, J., Restani, J., sitting by designation) answered this question after undertaking a fact-intensive inquiry and determining that the weight of the evidence balanced against suppression. Faux underscores that there is no bright-line rule for determining whether an individual is in custody (and therefore entitled to Miranda warnings); rather, the court must engage in a fact-specific analysis that carefully weighs mitigating and aggravating factors.
No Fourth Amendment Violation Where Subject of Valid Arrest Warrant is Arrested While in Residence of Third Party
In United States v. Bohannon, No. 14-4679 (RR, RCW, CFD), the Second Circuit held that when the subject of an arrest warrant is arrested at a third party’s residence where he is a guest, his Fourth Amendment privacy rights are satisfied so long as the arresting officers possess (1) a valid arrest warrant for the subject, and (2) reason to believe that the subject is on the premises. In so doing, the Court declined to require law enforcement officials to take the additional step of obtaining a search warrant for the third party’s residence in order to arrest the suspect guest. This was an interlocutory appeal after the district court suppressed evidence seized incident to the defendant’s arrest. While the panel affirmed the district court’s legal analysis on an open question of search-and-seizure law, it reversed the suppression order after a close analysis of the relevant facts.
In United States v. Stavros Ganias, 12-240, the Second Circuit, in a rare en banc ruling jointly written by Judges Livingston and Lynch, sidestepped a complicated Fourth Amendment issue related to the government’s retention of files from a hard drive outside the scope of a warrant, and instead affirmed the defendant’s conviction on the ground that, regardless of whether there was a Fourth Amendment violation, the government reasonably relied in good faith on a later warrant to search those files. The en banc holding reversed the decision of a divided Second Circuit panel that came down nearly a year ago, which reversed the district court’s denial of the motion to suppress and vacated the judgment of conviction. All of the judges on the Court, except for Judge Chin, either joined in the opinion or concurred in the result. The novel and important question raised in this appeal—whether the government can retain electronic files collected pursuant to a search warrant and later search those files for a separate purpose, pursuant to a second search warrant—will need to be addressed in another case or by Congress.