Thursday, July 19, 2018

The Fourth Amendment: Have we mentioned it's not dead yet?

"Border search" six years after border crossing? Um, no.  

The year is 2012. Border agents seize a traveler's cellphone and analyze it without a warrant---which is okay under the border-search exception. They don't search the cellphone's contents. They do, however, hang on to the phone (and to the traveler, for that matter).

Fast forward to 2018. The traveler is about to stand trial for sex trafficking and other crimes. A week before jury selection, the government reveals that it has, just this month, searched the cellphone's contents. Without a warrant. And, according to Southern District of Texas Chief Judge Lee Rosenthal, without any applicable warrant exceptions:
The government’s second, warrantless search of Gandy’s phone did not occur at a border or at the time of the crossing. It happened six years after Gandy returned to the United States . . . . Gandy and his phone have both been in custody since 2012, within the United States. Searching Gandy’s phone had no connection to the government’s interest in preventing illegal entry or contraband smuggling at an international border. Extending the border-search exception to the government’s warrantless search would both undervalue the core Fourth Amendment protection afforded cell phones under Riley and untether the border-search exception from the justifications underlying it.
United States v. Gandy, No 12-cr-00503, 2018 WL 3455534 (S.D. Tex. July 17, 2018) (rejecting as well government's independent-source, inevitable-discovery, attenuation, and good-faith arguments).

Motion to suppress granted.  

No current or corroborated nexus? No probable cause.

An affidavit that relies on speculation, stale information, old criminal history, and uncorroborated informant tips does not supply probable cause for a search warrant. So said the Sixth Circuit last month in United States v. Christian, 893 F.3d 846 (6th Cir. 2018). And the Court declined to apply Leon's good-faith exception: "By suppressing the evidence in this case, we will incentivize the police to take such corroborative action in the future."

Motion to suppress should have been granted.

"It doesn't hurt to ask" is not reasonable suspicion.

Officer stops car for illegal left turn; completes traffic stop; continues to question driver even when driver indicates he wishes to leave; ultimately gets driver's exasperated "consent" to search ("I mean, shit, I don't care"). But officer can't seem to articulate why he wanted to search. He had a "suspicion," a "feeling," "I guess you would call it something"---what the heck, "it doesn't hurt to ask." This was (duh) not reasonable suspicion. In the words of Northern District of Alabama Judge Madeline Hughes Haikala, "[t]he ‘it doesn't hurt to ask’ standard is not even ‘unparticularized suspicion.’ At best, Officer Long had a hunch." United States v. Wilson, No. 17-cr-00428, 2018 WL 3428635 (N.D. Ala. July 16, 2018) (also explaining why driver's consent not consensual, why passenger was also illegally detained, and why evidence found during passenger pat-down was fruit of illegal detention).

Motion to suppress granted.

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