Parole Evidence

United States v. Barner, No. 10-3700-cr (2d Cir. (Sack, Raggi, CJJ, Eaton, JCIT)

This decision, a government appeal, reverses a district court order suppressing evidence obtained during a parole search.

Barner was released to New York State parole in 2007, and signed a Certificate of Release that included his consent to having his parole officer visit him at home and search and inspect his person, residence and property. Barner was also forbidden from possessing any sort of firearm, ammunition or body armor, and was subject to a curfew.

In early 2008, someone called Barner’s parole officer and told her that Barner had fired a gun at him. She and other officers tried to reach Barner at home that night - during his curfew period - but Barner was not there. This prompted Barner to obtain a parole violation arrest warrant. Two days later, Barner reported for his weekly appointment with his P.O., and was placed under arrest. Barner denied having any firearms, consented to a search of his residence, and gave the P.O. a key ring that had three keys - one to his apartment building, one to his apartment, and one to a storage area adjacent to the apartment. Barner was now in custody, and the officers brought him back to his apartment while they searched it. During that search, P.O.’s found various forbidden items, including a small bag of crack cocaine. One officer noticed the storage area, which was ten feet away from the entrance to the apartment, and used one of Barner’s keys to open it. Inside were four guns, a bulletproof vest, ammunition, a scale and some marijuana. Barner was charged in the Western District with being a felon in possession of the guns and ammo.

After a hearing, the district court suppressed the evidence. It held that the consent-to-search condition of Barner’s parole no longer applied because he was back in custody, and hence no longer on parole, and that the scope of the consent that Barner gave on the day of his arrest included his apartment only, and not the storage room.

The circuit disagreed. Given the “special needs” of supervising parolees, the relevant question was not the scope or validity of Barner's consent. It was “whether the conduct of the parole officer[s] was rationally and reasonably related to the performance of [their] dut[ies].” The P.O. began this investigation with information that Barner had possessed a gun and fired it at someone else, both criminal parole violations. It was “clearly reasonable” for the officer to investigate those allegations further, and it was reasonable for that investigation to include a search.

The district court also erred in concluding that Barner’s full Fourth Amendment rights were restored to him once he was arrested; to the contrary, the allegation of a parole violation and the issuance of the arrest warrant placed him “one step farther from the constitutional protection enjoyed by ordinary citizens.” Thus, Barner’s arrest for a parole violation did not render the search unreasonable. While it is possible that a search “conducted days or weeks after a parolee’s arrest and detention” might be “so attenuated from the parole officers’ duties” as to render it unconstitutional, Barner's not such a case.

By focusing on the “special needs” doctrine, and not the specifics of the consent, the circuit easily concluded the search of the storage room was lawful. That search was “reasonably related to the parole officers’ duties” and was “performed in furtherance” of them.

Summers-Time Blues

United States v. Bailey, No. 07-3819-cr (2d Cir. July 6, 2011) (Cabranes, Pooler, Raggi, CJJ)

In Michigan v Summers, 452 U.S. 602 (1981), the Supreme Court held that the Fourth Amendment permitted police officers to detain the occupant of a premises during the execution of a search warrant, without need for individualized suspicion of the person detained. Here, the circuit, joining an issue in which the courts are divided, held that Summers also permits detaining the occupants after they have left the premises.

Background

In July of 2005, Suffolk County detectives obtained a search warrant for a basement apartment in Wyandanch, based on an informant’s tip that there was a gun there. When they arrived at the location to execute the warrant, they saw Bailey and an associate exiting the apartment. They drove off and the officers followed; about a mile from the apartment, the officers stopped Bailey’s car.

The officers patted Bailey down and, although he produced a driver’s license with a different address, he said that he was coming from “his” house at the target address. His friend also told the police that Bailey lived there. The officers took Bailey into custody and told him that the detention was incident to the search of the target location. Bailey answered that he did not live there and would not cooperate with the investigation.

Back at the original location, a gun and drugs were found in the apartment. Bailey was arrested and his keys were seized incident to the arrest. One of them opened the door of the apartment.

In the district court, Bailey moved to suppress the evidence obtained as a result of his detention - his statements and the physical evidence, including his keys. The district court denied the motion, citing Summers.

The Circuit’s Reasoning

On Bailey’s appeal, the circuit affirmed. Like the district court, it relied on Summers, which had concluded that the intrusion associated with being detained during a lawful search was minimal, while the justifications for it were substantial: law enforcement’s interests in preventing a suspect from fleeing; minimizing the risk of harm to the officers; and completing the search in a “orderly” manner.

The circuit had little difficulty concluding that the authority to detain an occupant “at” the premises during the search also covered detaining an occupant who “leaves” the premises “during or immediately before the execution of a search warrant.” The court noted that three circuits had extended Summers to these facts, while two had not, and decided to join with the majority, citing the “guiding principle ... of reasonableness.”

The circuit concluded that, like a detention at the premises, the intrusion of an off-premises detention is “de minimis” and the law enforcement interests substantial. Summers does not draw a “bright line” at “the residence’s curb.” Rather, the interests identified in Summers also permit detention of an occupant “nearby, but outside of, the premises.”

The court noted that this rule would prevent officers from having to make the “Hobson’s choice” of either immediately detaining an occupant who is leaving - thus risking officer safety and the destruction of evidence - or letting him leave the scene - thus risking the inability to arrest him if incriminating evidence is found.

On these grounds, then, Bailey’s detention was lawful. Detaining him out of view of the house out of concern for the officers’ safety and to prevent alerting other possible occupants was, here, “reasonable and prudent.” Moreover, the detention was not “unreasonably prolonged.” By the time Bailey was returned to the location the search was underway, and he was placed under arrest within five minutes of the execution of the warrant.

The court ended with a “note of caution.” Summers is not “a license for law enforcement to detain ‘occupants’ of premises subject to a search warrant anywhere they [may] be found incident to that search.” Rather, the rule announced here applies only when the occupant “is seen leaving those premises and the detention is effected as soon as reasonably practicable.” The court also announced its expectation that these geographic and temporal limitations “will be policed vigilantly by the courts.”

PATRIOT Games

United States v. Abu-Jihaad, No. 09-1375-cr (2d Cir. December 20, 2010) (Raggi, Hall, Chin, CJJ)

Defendant Hassan Abu-Jihaad, whose birth name was Paul R. Hall, was convicted of communicating national defense information about the movement of a Navy battlegroup to unauthorized persons. On appeal, his primary challenge was to the use of evidence that the government obtained pursuant to the Foreign Intelligence Surveillance Act (“FISA”). The circuit affirmed.

Background

Despite changing his last name from “Hall” to “Abu-Jihaad,” which, according to the court, means “Father of Jihad,” the defendant enlisted in the Navy in January of 1998 without any trouble. For the next four years he was cleared to receive classified national defense information. But a chain of circumstantial evidence revealed that, in 2001, he passed classified information about the movement of Navy ships headed for the Persian Gulf to other jihad supporters.

The investigation of Abu-Jihaad began after the 2003 search of the bedroom of one Babar Ahmad, a London-based individual with ties to Azzam publications, an organization that in 2001 maintained several pro-jihad websites. Authorities found a computer disc containing a file with a three-page document describing the anticipated spring 2001 deployment of ten Navy ships carrying about 15,000 people from the Pacific coast to the Persian Gulf.

The evidence proving that Abu-Jihaad had been the source of this information was strong, even if circumstantial. First, he had access to the information - out of hundreds of potential individuals, he was one of only forty with access to the relevant transit plan. Second, he had communicated with Azzam via email during the relevant period, and in those communications had revealed his personal support for jihad, even against the United States. Third, in 2006, he made statements in wiretapped telephone conversations in which he all but admitted what he had done.

After a jury trial, Abu-Jihaad was convicted and sentenced to the statutory maximum of ten years’ imprisonment.

The Appeal

On appeal, Abu-Jihad challenged the use of evidence obtained through court orders issued under FISA. He argued primarily that the statute, 50 U.S.C. 1801, et seq., as amended by the PATRIOT Act, was unconstitutional on its face.

FISA permits a special FISA court to authorize electronic surveillance “for the purpose of obtaining foreign intelligence information.” As originally enacted in 1978, FISA required a high-ranking executive branch official to certify that this was “the purpose” of the warrant. Courts, including the Second Circuit, noted that FISA intended for the gathering of foreign intelligence information to be the “primary” objective of the surveillance. But the 2001 PATRIOT Act changed this standard. Under the PATRIOT Act’s amendments to FISA, foreign intelligence gathering need no longer be the “primary” purpose of the requested surveillance; it need only be “a significant purpose.”

Abu-Jihad argued the “primary purpose” requirement was essential to the constitutionality of FISA surveillance under the Fourth Amendment, but the circuit disagreed. All the Fourth Amendment’s warrant requirement demands is a “showing of probable cause reasonable to the purpose being pursued.” But if multiple purposes are being pursued - such as both foreign intelligence gathering and a criminal investigation - the Fourth Amendment “does not require the government to identify a primary purpose or limit its ability to secure a warrant to satisfaction of the standards for that purpose.” Rather, the government may “secure a warrant under the probable cause standards applicable to any purpose that it pursues in good faith.”

The PATRIOT Act did not modify the standards underlying FISA’s warrant requirement. It only changed the degree to which foreign intelligence gathering must be the purpose of the surveillance. The change from certifying foreign intelligence gathering as a “significant” rather than a “primary” purpose of the surveillance is not unreasonable under the Fourth Amendment. Indeed, when the circuit first identified the “primary purpose” standard it was identifying Congress’ intent in enacting FISA, not creating a constitutional mandate.

But, in any event, there is no constitutional problem with the “significant purpose” requirement, because it sufficiently protects against the possibility that the government will be able to obtain surveillance warrants for criminal investigations without demonstrating probable cause. The Fourth Amendment does not require the government to segregate foreign intelligence gathering from law enforcement efforts. As long as foreign intelligence gathering is a “bona fide” purpose of the surveillance the Fourth Amendment is satisfied.

Julius’ Seizure

United States v. Julius, No. 08-4267-cr (2d Cir. June 11, 2010) (Pooler, Hall, CJJ, Sweet, DJ)

Here, the district court granted the defendant’s motion to suppress a gun seized during Julius’ arrest on a parole violation. on the government's appeal, the circuit remanded for reconsideration in light of Herring v. United States, 129 S.Ct. 695 (2009).

In 2007, Julius violated the conditions of a term of special parole imposed after a state court conviction in Connecticut. He had failed to attend court-mandated counseling sessions and had changed his residence but refused to disclose his new address to his parole officer.

The officer finally found Julius at his girlfriend’s house, where the officer, accompanied by another parole officer and a deputy marshal found him lying on a bed in a back bedroom. They arrested him without incident. As an officer removed him from the room, in handcuffs, the marshal searched the bed to see if Julius had discarded any contraband. He partially lifted the mattress and found a gun. With that, the officers contacted the local police department for assistance. Local police arrived and secured consent to search the entire apartment; returning to the same mattress, they lifted it completely and found ammunition.

The district court held that the ammunition was properly obtained as the product of a consent search, but that the gun was improperly seized - the marshal's the initial search under the mattress was not an incident search because Julius was already handcuffed and the mattress was plainly beyond his control. It also held that Julius’ status as a parolee did not legitimize the search because the marshal lacked even reasonable suspicion.

On appeal, the circuit began by surveying the current state of the law with respect to the Fourth Amendment rights of parolees and identifying the central area of dispute here: Julius’ expectation of privacy as a parole absconder.

Having identified the issue, however, the court declined to resolve it. Instead, it remanded the case for reconsideration under Herring. In Herring, the defendant was erroneously arrested after “negligent bookkeeping” by the police department resulted in an officer’s erroneous belief that there was an outstanding warrant for his arrest. The Supreme Court held that this violated the Fourth Amendment, but that the exclusionary rule should not apply because it would not serve the purpose of “deterring Fourth Amendment violations in the future.” According to the circuit, Herring requires a district court to conduct a “cost/benefit analysis” in deciding whether “the deterrent effect of applying the exclusionary rule outweighs the cost of the rule’s application.” This balance should consider “whether the degree of police culpability in this case rose beyond mere administrative negligence such that application of the rule is necessary to compel respect for the Fourth Amendment’s guarantees.”

Trailer Trashed

United States v. Navas, No. 09-1144-cr (2d Cir. March 8, 2010) (Leval, Wesley, CJJ, Gleeson, DJ)

In connection with a narcotics investigation, DEA agents watched the defendants unload a tractor-trailer at the Hunts Point Market. The defendants then drove it to a private warehouse, where they parked it, unhitched the cab, and lowered the legs in front of the trailer to stabilize it.

After further surveillance, the agents arrested the defendants, one of whom admitted that drugs were hidden in a rooftop compartment of the trailer. After receiving verbal consent to search the warehouse and its contents, but with no search warrant, the agents ripped open the roof of the trailer and discovered 230 kilograms of cocaine.

The district court suppressed the cocaine. It rejected the argument that the verbal consent to a general search of the warehouse extended to a physically invasive search of the trailer. The court also concluded that the automobile exception did not apply, holding that a stationary trailer stored in a warehouse, detached from its cab with its legs dropped, was not subject to the exception.

On the government's appeal, the circuit reversed. After surveying the rationales underlying the exception - the inherent mobility of and reduced expectation of privacy in an automobile - the court held that the search of the trailer was permissible.

First, as to mobility, it is a vehicle’s inherent mobility, not the probability that it might actually be set in motion, that matters. Thus, the “trailer sans cab” could be treated as inherently mobile in the same way that, decades ago, the Supreme Court held that a “wagon without a horse” could be. The trailer had its own wheels, could have been connected to any cab and driven away, and its legs served only to stabilize it temporarily. Nor was it relevant that the defendants were all detained and the warehouse secured by the time of the search - those facts “had no bearing on the inherent mobility of the trailer itself.”

The circuit also found a reduced expectation of privacy in the trailer - an issue that the district court did not consider at all. The trailer was used for transportation, with no objective indicia of residential use. Moreover, the pervasive state and federal regulation of interstate commercial trucking further supported a reduced expectation of privacy.

If You Love Her, Let Her Go

United States v. McGee, No. 07-4509-cr (2d Cir. April 24, 2009)(Leval, Katzmann, Livingston, CJJ)

A Rochester police officer responded to 911 call at defendant McGee’s home. When the officer arrived, he saw McGee running away through the backyard. McGee’s girlfriend was outside the house. She told the officer that she lived there with McGee, but was trying to move out. She had packed her bags and put them on the front porch, but McGee, to prevent her from leaving, had grabbed her bags, put them back inside, locked the door and taken away her keys. She asked the officer to break down the door so she could retrieve her belongings. He refused, but once she proved she really lived there, he let her break in herself.

The officer then accompanied her while she collected belongings. When she observed that McGee stored guns in the front closet, the officer asked for permission to search and she agreed. The officer found four firearms, ammunition and a bulletproof vest. In the bedroom, the officer saw photographs protruding from under the mattress. The girlfriend gave him permission both to look at and keep them. They showed McGee holding a gun.

McGee was convicted of possessing the firearms. On appeal, he challenged the denial of his motion to suppress, and the circuit affirmed. The court found that officer reasonably concluded that the girlfriend had the authority to consent to a search.

McGee relied primarily on Moore v. Andreno, 505 F.3d 203 (2d Cir. 2007), in which a girlfriend’s consent was found to be ineffective. In Moore, the girlfriend gave the police consent to enter and search Moore’s study after she cut a lock on the door. The lock had been placed on the door to keep her out, and the police knew it. McGee argued that his girlfriend had similarly been locked out and thus lacked “access” to the house.

While the court found this argument “by no means unreasonable,” it nevertheless disagreed. A third-party’s access to a premises “depends on the understandings communicated by the titular owner to that person.” The girlfriend in Moore lacked access to the study because the lock was intended to keep her out.

Here, by contrast, although McGee had locked the girlfriend out of the house, his purpose was different. “McGee did not lock [her] out of the house and take away her key with the intention of excluding her from continuing to live in his house with him. ... To the contrary, McGee locked her bags in the house and locked her out temporarily in an effort to prevent her from leaving the house. Far from seeking to expel her from the house, his conduct was designed to insure that she would continue to reside in it.” Accordingly, the girlfriend had “access” to McGee’s house in the sense in which the term is used in analyzing this type of Fourth Amendment issue.

Dogged Determination

United States v. Hayes, No. 07-0063-cr (2d Cir. December 24, 2008) (Miner, McLaughlin, Pooler, CJJ)

On the morning of September 3, 2002, Derrick Hayes overdosed on cocaine. After he was put in an ambulance, his girlfriend gave local police officers permission to search the house. They found evidence suggesting that Hayes was a large-scale drug trafficker, so they suspended the search and made arrangements to obtain a search warrant. One of the officers, while waiting for the warrant, released a drug-sniffing dog, “Kilo,” from the car, where it had been confined for several hours. During a Frisbee came with the officer in Hayes’ front yard, the dog alerted. The officer encouraged the dog to continue investigating, and it ran around Hayes’ house, toward the back of a detached garage. From an area of thick brush, about sixty-five feet from the house, and near the border with a neighbor’s property, the dog retrieved a black bag. Without waiting for the warrant, the officer opened the bag and found about fourteen ounces of cocaine.

In the district court, Hayes unsuccessfully alleged that his Fourth Amendment rights had been violated. The circuit affirmed.

The Dog Sniff

Hayes first argued that Kilo’s sniff was a warrantless search of his property. The Second Circuit has held that a canine sniff outside the door of a private residence - unlike one at an airport or other public area - is a “search,” and thus subject to the constraints of the Fourth Amendment. Hayes argued that this rule should apply here, but the court disagreed. The contents of the black bag that Kilo detected were not inside his residence; they were outside, in the brush some sixty-five feet away. Hayes had no legitimate expectation of privacy in “the air in [his] front yard.”

Curtilage

In addition, the area where the bag was found was not part of the curtilage of Hayes’ home. The court held that Hayes did not have a reasonable expectation of privacy in the area, even assuming that Kilo passed through the curtilage en route to the black bag. “Such a transient trespass does not implicate the Fourth Amendment where the incriminating evidence is discovered outside the curtilage.”

The court then gave a detailed analysis of the curtilage question itself. This issue is governed by Fourth Amendment principles, not common law property factors, and there is a four-factor test: the proximity of the area to the main residence; any enclosure of the area; the use of the area; and steps taken to protect it from view. See United States v. Dunn, 480 U.S. 294, 300 (1987).

As to proximity, the sixty-five-foot distance between Hayes’ house and the brush area weighed against a proximity finding. While in some cases such a distance could satisfy the proximity factor, here the brush was a border and served as the fringe of Hayes’ property in relation to his home.

Hayes conceded that there was no enclosure, but argued that the nature of his property should exempt him from this requirement. The court disagreed because the purpose of the enclosure factor is to determine those areas the homeowner intended to keep private.

As for use, the only use Hayes made of the area was to hide the black bag. It was of no moment that Hayes expected that the area would be immune from police scrutiny. “A finding of curtilage cannot be supported absent evidence in the record that the area was designated and used for other intimate purposes that one might ordinarily conduct inside of one’s home.”

Finally, the court found that Hayes took no meaningful steps to shield the area in question from observation. There was no fence or other structure, and the general area was visible from the street.

The Opening of the Bag

The court also rejected the claim that the officer should have waited for the warrant before he opened the bag. Since there was no expectation of privacy in the “non-curtilage area” where the bag was recovered, there was likewise no expectation of privacy in the bag itself.

Embassy Suite

In re Terrorist Bombings of U.S. Embassies in East Africa, No. 01-1535-cr (2d Cir. November 24, 2008) (Feinberg, Newman, Cabranes, CJJ)

This trio of long opinions, captioned In re Terrorist Bombings of U.S. Embassies in East Africa, resolves the appeals of the defendants convicted of the embassy bombings in Kenya and Tanzania in 1998. One opinion deals with trial and sentencing issues, the second deals specifically with Fifth Amendment claims, and the third deals specifically with Fourth Amendment claims. The convictions of all defendants were affirmed, although one defendant asked for, and received, a Fagans remand.

The Trial Opinion

This opinion covers a host of issues, some of which are surprisingly mundane and are treated rather cursorily by the court. A few, however, are more interesting and are discussed here.

1. The Capital Indictment

Defendant Al-'Owalhi was charged with capital offenses. Although not sentenced to death, he challenged the sufficiency of the capital counts in the indictment. Specifically, he claimed that those counts did not sufficiently allege statutory aggravating factors, as required by Ring v. Arizona, 536 U.S. 584 (2002). The circuit found that the indictment was sufficient, because each capital count alleged the requisite intent and at least one statutory aggravator.

2. The Classified Information Procedures Act

Defendant El-Hage raised a number of claims relating to the procedures the district court invoked under CIPA. He first claimed that the district court erred in limiting access to classified information to persons with a security clearance. While El-Hage’s attorney received such a clearance, he himself did not. As a result, there was evidence that only his counsel could see. The court held that CIPA authorizes such limitations “as long as the application of this requirement does not deprive the defendant of evidence that would be useful to counter the government’s case or bolster a defense.” Here, the district court committed no error in imposing a security clearance requirement given the nature of the case.

El-Hage also argued that the security clearance requirement violated both his Fifth and Sixth Amendment rights. The circuit disagreed. It first noted that the materials at issue were not discoverable under Rule 16 and that, even if they had been, El-Hage’s interest in personally inspecting them was outweighed by the government’s interest in avoiding disclosure of matters that, in the interest of national security, should not be divulged. Indeed, the “production of materials to a party’s attorney alone falls within the common meaning of ‘discovery.’” Moreover, here, the government agreed to stipulate to the information that El-Hage sought to introduce, stipulations that in some instances were better for El-Hage than the actual evidence. Accordingly, there was no violation of his right to present a defense.

Nor did the restriction violate El-Hage’s right to counsel; it fell within the narrow category of situations where a court can restrict a defendant’s ability to consult with his attorney. Here, El-Hage’s attorneys were permitted to share the relevant facts with him, even though they could disclose the actual materials.

Finally, El-Hage’s exclusion from the district court’s CIPA hearings did not violate his Fifth Amendment right to be present. The justification for doing so was compelling - the need to avoid jeopardizing lives through the unauthorized disclosure of sensitive information. Moreover, El-Hage’s ties to Osama Bin Laden created a strong reason to doubt that he could keep the classified information confidential. His attorneys were present and permitted to participate in the hearings, and the matters at issue “bore no relationship at all to the question of [his] guilt or innocence.”

3. Severance

El-Hage also argued that his case should have been severed from the death-eligible defendants for trial. The circuit rejected out of hand his claim that he was prejudiced by being tried by a “death qualified” jury. It also rejected his claim that his defense and theirs were antagonistic because the death-eligible defendants “attempted to rationalize the targeting” of the embassies and “elicited evidence about the violent nature of al Qaeda” in an effort to “emphasize their lesser culpability.” El-Hage claimed that this prejudiced him because it represented an attempt to justify acts that he considered unjustifiable and because it undermined his claim that he was unaware of the violent agenda of his Al Qaeda associates. But the circuit found “no conflict” between El-Hage’s position and his co-defendants' strategy.

4. Post-Conviction Disclosure of a Prosecution Witness’ Statements

Several months after trial, the government discovered that twelve of the government’s pretrial teleconferences with a cooperating witness had been videotaped by that witness’ liaison to the witness security program. After the government received the videos, they transcribed them and turned them over to the defense. El-Hage then moved for a new trial under Rule 33.

The circuit found no abuse of discretion in the denial of that motion. First, those responsible for the discovery violation were not the prosecutors, but representatives of the United States Marshals service, who did not intentionally commit a discovery violation; indeed, they had “no idea they were” obligated to produce the tapes. In addition, there was no reasonable probability that the result would have been different if the evidence had been disclosed before trial.

5. Sentencing Issues

El-Hage challenged several aspects of the district court’s calculations under the sentencing guidelines. Of particular note was his claim that the hate crime enhancement should not apply.

El-Hage received the hate crime enhancement because he selected his victims based on their national origin. His primary argument was that his victims were selected out of his political beliefs, and not out of hatred. But the “line ... between political activism and hate as the basis for the selection of his victims is a false distinction.” The enhancement does not turn the defendant’s motivations; it turns on intent. As long as the defendant intentionally selected any victim on the basis of one of the listed factors, there is no “good reason” for doing so, and the enhancement applies.

He also argued that he selected victims based on their United States citizenship, and not their national origin. This was “[e]ven less persuasive,” since the jury found that he conspired to murder “nationals of the United States,” and there are categories of persons who are nationals, but not citizens. In any event, there was no evidence that al Qaeda distinguished between United States citizens and others with ties to the United States, thus no evidence that the conspiracy in fact selected its victims based on citizenship and not national origin.

The court rejected all of El-Hage’s other sentencing claims, but, as noted above, granted him a Fagans remand since the district court treated the guidelines as mandatory, and the error was preserved.

The Fifth Amendment Opinion

Two defendants were interrogated by U.S. representatives abroad, and raised Fifth Amendment challenges to the introduction of the resulting statements at trial.

The circuit agreed that the Fifth Amendment’s self-incrimination clause prohibited the use at an American criminal trial of involuntary statements taken by agents of the United States in foreign countries. Here, however, there was no credible claim that the statements were actually coerced or involuntary; the issue was whether, and to what degree, Miranda applied. The circuit “assumed” but did not actually hold, that the Miranda “framework” should apply to U.S.-conducted interrogations overseas: “we proceed on the assumption that the Miranda ‘warning/waiver’ framework generally governs the admissibility in our domestic courts of custodial statements obtained by U.S. officials from individuals during their detention under the authority of foreign governments.” But, given the variations in foreign law with respect to the right to counsel, there is a great deal of flexibility in how the warnings can be worded.

Here, the defendants were correctly advised that they had the right to remain silent, were not required to speak at all, and that if they did speak their statements could be used against him. There was some difficulty, however, as to how the right to counsel was explained. Both defendants were initially given an advice of rights form (the “AOR”) that explained that, in the United States, they would have the right to speak to attorney, to have the attorney present during questioning, and to have counsel appointed before any questioning, but that because they were not in the United States, there was no way to “ensure” that counsel could be appointed before questioning. A short time later, each was read standard Miranda rights by an AUSA.

The district court found significant problems with the AOR’s treatment of the right to counsel - in that court’s view the AOR seemed to indicate that the arrestee had no opportunity to obtain counsel before or during questioning. The circuit did not think that the AOR was that bad - it did not indicate that counsel was unavailable, only that because the suspects were not in the United States, under local law the U.S. agents “could not ensure” that counsel would be appointed. That said, the court noted that the “advice as to the right to counsel could have been made clearer.” U.S. agents working abroad are not required to study local criminal procedure and urge local authorities to provide counsel, if requested, so as to “replicate” Miranda. The agents are supposed to be a source information to the suspects, not their advocates. Thus as long as they advise them of their rights under the U.S. Constitution and the procedures through which they might vindicate those rights locally, Miranda is satisfied.

The court also suggested alternative language for the AOR to avoid any future misunderstanding by a suspect. The AOR should state what rights are available, not what rights would be available had the interrogation occurred in the United States. The circuit’s suggested AOR would inform suspects that whether they can retain counsel, have counsel appointed, or consult with counsel before questioning depends on local law.

The Fourth Amendment Opinion

Defendant El-Hage, a United States citizen, argued that the warrantless search of his residence in Nairobi, Kenya, and the warrantless monitoring of his Kenyan telephone lines, all by U.S. agents, violated the Fourth Amendment. The circuit held that the Fourth Amendment’s warrant requirement does not apply to foreign searches of U.S. citizens by U.S. agents; such searches “need only satisfy the Fourth Amendment’s requirement of reasonableness.”

The court offered several reasons for recognizing an exception to the warrant requirement for “foreign soil” searches. First, “nothing in our history or precedents” suggests that U.S. agents must obtain a warrant in a domestic court before conducting an overseas search. Second, “nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own.” Third, “if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation.” Finally, there is no apparent authority for U.S. judicial officers to issue warrants for overseas searches.

Here, the warrantless searches were reasonable, and in fact El-Hage did not “explicitly contest the District Court’s reasonableness determination.” The intrusions into El-Hage’s privacy were outweighed by the government’s “manifest need to monitor his activities as an operative of al Qaeda because of the extreme threat al Qaeda presented, and continues to present, to national security.”

The search of El-Hage’s home occurred during the daytime, in the presence of his wife, and was limited in scope. It “was not covert,” was under the authority of a “Kenyan warrant authorizing [a search],” and the agents gave his wife an inventory of the items seized. Moreover, the search occurred only after several months of investigation revealed that El-Hage was an al Qaeda operative; thus, it was not based on a “whim” or an “unsubstantiated tip.”

The monitoring of El-Hage’s telephone lines was also reasonable, even though it lasted a year, covered many calls made for social, family or business purposes, and the surveillance was not properly “minimized.” The court recognized the “significant invasion of privacy” that El-Hage suffered. Nevertheless, the court agreed that this invasion was outweighed by the government’s interest in investigating “threats to national security presented by foreign terrorist organizations.” Organizations like al Qaeda - “complex, wide-ranging, and decentralized” - require sustained and intense monitoring. Moreover, foreign intelligence must “delve into the superficially mundane because it is not always readily apparent what information is relevant.” In addition, terrorists often “communicate in code, or at least through ambiguous language” and decoding their messages is “further complicated” by the fact that the communications occur in foreign languages.

Uninformed Consent

United States v. Lopez, No. 081269-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)

Albert Lopez violated his supervised release by failing a drug test, and marshals went to his house to arrest him. After he was cuffed, the marshals took his girlfriend upstairs to get clothes for him. Once there, they asked the girlfriend if they could search the bedroom. She gave consent and the marshals found a loaded gun under a pillow. Lopez was charged with possessing the gun, and moved to suppress arguing that the search of the bedroom was unreasonable because, although the girlfriend consented, the marshals did not seek his consent.

On appeal, the circuit disagreed. Under the relevant Supreme Court precedents, the Fourth Amendment permits searches consented to by a co-occupant. Nor did Lopez’ case present a situation like that in Georgia v. Randolph, 547 U.S. 103 (2006), which held that where one occupant consents to the search but the other objects, the search is unreasonable as to the objector. Rather, “having obtained the consent of one co-occupant, the officers are under no obligation to inquire of the other occupant whether he consents, even when the other occupant is present at the premises when the consent is given.” Indeed, dictum in Randolph specifically noted that officers are not required to seek consent from potential objectors.

Here, the girlfriend’s consent was voluntary, and there was no claim that the marshals separated her from Lopez to hide the fact that they were going to solicit her consent. Nor did it matter that the marshals would not have to “find” Lopez because he was right downstairs. Consent by a co-occupant suffices even when a potentially objecting co-occupant is readily accessible.

Driving While Incriminated

United States v. Lopez, No. 06-3730-cr (2d Cir. November 10, 2008) (Kearse, Leval, Cabranes, CJJ)

Police officers arrested Lopez for drunk driving. He has a gun in his pocket. Meanwhile, other officers, while looking for Lopez’ girlfriend’s identification, found cocaine in her purse.

Both were arrested and the car was brought to the 41st Precinct, where officers conducted an inventory search. This produced, in addition to some innocuous personal items, two glassines of cocaine in the center console, and a bag in the trunk that contained cocaine and cocaine trafficking equipment. Later, while arranging for a family member to pick up his personal belongings, an officer looked in the glove compartment of the car and found a second gun.

After a combined suppression hearing and bench trial, Lopez was convicted and received a seventy-month sentence.

On appeal, he challenged the inventory search on the grounds that it was not a true inventory search because it was not dictated by a standardized policy, and because the police did not create a complete inventory list of the objects found. The circuit affirmed.

Lopez first pointed to the lack of a standard NYPD policy as to whether the officers must produce an itemized list of every object found, or whether items of little value can be grouped under a general category. But the circuit did not view the relevant Supreme Court cases as requiring that “every detail of search procedure must be governed by a standardized policy” because a “standardized policy governing” things like the order in which the parts of a car are searched or the way the results are reported “would do nothing to safeguard the interests protected by the Fourth Amendment.”

Likewise, there was no Fourth Amendment violation even though the officers grouped items of little value under the general category “personal belongings” and did not itemize each one. “That an officer might use a catch-all to cover objects of little or no value in no way casts doubt on the officer’s claim that the purpose of the search was to make an inventory” and it would “serve no useful purpose to require separate itemization of each object found, regardless of its value, as a precondition to accepting a search as an inventory search.”

Finally it did not matter that the search was motivated by the officers’ desire to find more incriminating evidence. “Such motivation ... cannot reasonably disqualify an inventory search that is performed under standardized procedures for legitimate custodial purposes.”

SUPPRESS NOT THESE FRUITS

United States v. Acosta, Docket No. 05-1283-cr (2d Cir. September 5, 2007) (Pooler, Parker, Wesley, CJJ)

Last term, the United States Supreme Court held that the exclusionary rule does not apply to violations of the Fourth Amendment’s “knock-and-announce” rule. Hudson v. Michigan, 126 S.Ct. 2169 (2006). Here, the Circuit, unsurprisingly, holds that the same is true for violations of the knock and announce statute, 18 U.S.C. § 3109.

It is almost too sad to blog, but here, in brief, is the court’s reasoning. Both § 3109 and the Fourth Amendment’s knock-and-announce principle “share the same common law roots, overlap in scope, and protect the same interests, which necessitates similar results in terms of the exclusionary rule’s application.” Moreover, a civil remedy is available; a citizen can file a Bivens action. This, according to the Circuit, is an adequate deterrent to federal agents who might contemplate violating the knock-and-announce statute.

However pathetic this decision is, we really have to blame the Bush Supreme Court for it, and not the Circuit. The Bush court simply loves making categorical rules that cut off entire branches of Fourth Amendment relief, and Hudson is not the only example. Samson v. California, 126 S.Ct. 2193 (2006), ended all Fourth Amendment protection for parolees. Expect more like this in the future, folks, for that is surely the trend.