Stop and Flop

United States v. Wilson, No. 11-915 (2d Cir. October 25, 2012) (Jacobs, Calabresi, Pooler, CJJ)

Defendant Wilson was subject to a car stop near New York’s border with Canada. He was just outside of the St. Regis Mohawk reservation, not a member of the tribe, and the officers who stopped the car - which was registered to a known marijuana dealer - were members of the tribal police department. As tribal officers, under state law they were without authority to exercise police duties outside of the reservation, although one of them was also cross-designated as a U.S. Customers Officer by ICE. After a brief interview, in which Wilson admitted traveling into and out of Canada, and scoring a bit of weed while there, a U.S. Border Patrol Agent, who had arrived after the stop, searched Wilson’s car and found three bags of marijuana.

The district court suppressed the evidence, finding that the car stop violated the Fourth Amendment. The lower court concluded that the tribal officers lacked the authority to stop the car: as tribal police officers they could not act and, although one was designated a Customers Officer, the regulation covering such designations required him to obtain prior authorization to exercise customs authority, which he had not. 

On this, the government’s appeal, the circuit reversed.  The court held that the relevant Supreme Court Fourth Amendment precedents make clear that the legality of a stop turns on the existence of probable cause and not on the officers’ jurisdictional bounds. While a search or seizure based on probable cause might violate the Fourth Amendment if conducted in an “extraordinary manner” that is “unusually harmful to an individual’s privacy” or “physical interests,” that exception is not implicated by a run-of-the-mill car stop. “[T]he Fourth Amendment does not generally incorporate local statutory or regulatory restrictions on seizures and ... the violation of such restrictions will not generally affect the constitutionality of a seizure supported by probable cause.”

Here, the officers had probable cause to believe that Wilson had intentionally failed to enter the United States at a designated border crossing, a violation of federal law, and that he was driving with an obstructed license plate, in violation of New York’s Vehicle and Traffic Law.  And the ICE directive that would have given the tribal officer authority to act but that was not followed here was of no consequence to the analysis. “Nothing about the Fourth Amendment elevates an internal law enforcement agency directive regarding the chain of command to constitutional significance.” The agent’s failure to seek authorization did not result in the stop’s being conducted in an “extraordinary manner.” After all, he was indeed a Customs Officer at the time.

As a separate matter, the court also concluded that there was probable cause for the search of Wilson’s car, not just the stop. The officers knew that Wilson was driving a car registered to a marijuana dealer, and he admitted buying marijuana while in Canada.

Finally, this decision leaves open an important question: whether a violation of the state’s jurisdictional statute - under which the tribal officers lacked authority to act outside of the reservation - affected the reasonableness of the stop. The government’s position was that all that matters is the level of suspicion, but the court did not take on this question. Deciding whether local geographical jurisdictional limitations are relevant to the Fourth Amendment will have “far reaching effects,” and it was not necessary to decide the question here.

A Good-Faith-Based Decision

United States v. Clark, No. 09-3462-cr (2d Cir. March 8, 2011) (Sack, Raggi, Lynch, CJJ)

In the district court, defendant Clark moved to suppress physical evidence and statements obtained after execution of a search warrant, and the district court granted the motion. On this, the government’s appeal, the circuit agreed that the warrant was defective - it did not establish probable cause - but that, contrary to the district court’s conclusion, the good faith exception applied. The court accordingly reversed and remanded.

Background

Local police officers in Niagara Falls, New York, obtained a warrant from a city court judge to search Clark and "1015 Fairfield Ave, being a multi family dwelling” for drugs and drug dealing paraphernalia. The supporting affidavit disclosed that an informant of “unknown reliability” told them that Clark was selling cocaine there, and that Clark had “full control” over the location. The affidavit also described two controlled purchases of cocaine that took place in “the area of 1015 Fairfield Ave.”

When the officers executed the warrant, Clark was in a downstairs apartment, and the officers found cocaine base, money, and other evidence. They arrested and Mirandized Clark who asked, “What am I looking at? 25 or what?”

On Clark’s suppression motion, the district court held that the warrant was not supported by probable cause to search the entire multi-family dwelling, and that the search tainted Clark’s statement. It also held that the good faith exception did not apply because the issuing judge “failed to act as a neutral and detached magistrate,” the warrant was “facially defective,” and the lack of probable cause was “so apparent that the police could not reasonably rely on the validity of the warrant.”

The Appeal

The circuit, like the district court, could not identify a “substantial basis” for the local judge to authorize a search of the entire multi-family dwelling. Included in the Fourth Amendment is a particularity requirement. Concerns as to this requirement most often arise when the warrant does not concretely or accurately describe the place to be searched. But particularity is also an issue when the warrant describes a multi-family dwelling, because it is possible that the “breadth of that description outruns the probable cause supporting the warrant.”

The government tried to argue that the warrant application asserted that Clark exercised “control over the entire premises,” and thus that there was no particularity problem. The circuit was not convinced. Control over a multiple-occupancy building can support a warrant to search the whole premises, but only where the warrant is supported by probable cause to believe that “evidence of criminality will be found throughout the building.” The mere allegation of “control,” without more, is not enough. Here, the allegations of “control” were not enough to establish probable cause to support a search of all residences in the building. The allegation came from an untried informant, and the assertion was entirely conclusory. There was thus no basis for the issuing judge to find probable cause. The judge was not told the size of the building or the number of units, and the affidavit did not explain what the informant meant by “full control,” or include any descriptive facts on the issue. Moreover, the affidavit’s description of the controlled purchases only established that Clark was in the “area” of 1015 Fairfield Avenue. It did not establish where within the building he conducted his drug business and certainly did not establish that he had control over all parts of the building.

Thus, even though there was probable cause that Clark was dealing drugs from “somewhere within 1015 Fairfield Avenue,” the totality of the circumstances did not provide a “substantial basis to conclude that Clark so controlled the various residential units in that multi-family dwelling that there was probable cause to think evidence of his criminal conduct could be found throughout the building.”

But, nevertheless, the court held that the district court erred in its application of the good faith exception. First, the issuing judge did not abandon his judicial role. While he made a legal error in identifying probable cause, this does not indicate the “sort of wholesale abandonment” necessary to overcome the good faith exception. Nor was the warrant facially deficient. That occurs only when “it omits or misstates information specifically required to be contained therein,” that is, “the place to be searched, and the persons or things to be seized.” The warrant here had no such defect. While the warrant was not, in fact, based on probable cause, the probable cause need not be “stated in the warrant itself.” Rather, a lack of probable cause is a defect in the supporting affidavit, not the warrant. Finally, the warrant was not so lacking in probable cause as to preclude reasonable reliance. The affidavit here was not “bare bones” - it was not “totally devoid of factual circumstances to support conclusory allegations,” even though it did not provide “detailed factual allegations” to support probable cause to search the entire building. It still had enough detail to render reliance on it reasonable, since it clearly established probable cause to believe that Clark was dealing drugs form somewhere within the building. And, while the affidavit’s allegation of “control” was “entirely conclusory,” the officers’ reliance on the warrant was not so “flagrant or culpable” as to warrant suppression. When the warrant was issued it was not yet settled that “control” had to be alleged with “some factual specificity.” Thus, a well-trained officer could not be faulted for relying on a warrant that lacked such specificity.

Crosswalk Puzzle

United States v. Stewart, No. 07-3003-cr (2d Cir. January 8, 2009) (Winter, Miner, Cabranes, CJJ)

Brett Stewart was a passenger in a livery cab that stopped at a red light. Two police officers claimed that the cab’s front wheels ended up in the crosswalk, a traffic violation. They pulled over the cab and recovered a gun from Stewart.

At Stewart’s suppression hearing, the officers gave their account, while the cab driver testified that he stopped before entering the crosswalk, which the district court credited. The court found that the officers had been subject to an optical illusion or distraction; it took judicial notice “of the fact that a stationary object may shift in one’s visual perception as one moves past it [and thus] that an object abutting a straight line may appear to be over that line as an observer moves past and away from that line.” The district court granted the motion, concluding that the police lacked probable cause for the stop and that there was no reasonable suspicion of criminal activity because “a traffic violation for infringing on an intersection does not quality as ‘criminal activity.’”

On the government’s appeal, the circuit reversed, holding that the district court applied the wrong legal standard. A traffic stop “based on reasonable suspicion of a traffic violation comports with the Fourth Amendment.” Neither reasonable suspicion of a crime more serious than a traffic violation nor probable cause is necessary.

On remand, the district court is to determine whether the officers had reasonable suspicion that the cab committed a traffic violation, bearing in mind that “a mistake of fact does not undermine the existence of reasonable suspicion.”

Good Faith Efforts

United States v. Falso, No. 06-2721-cr (2d Cir. September 24, 2008) (Jacobs, Sotomayor, Livingston, CJJ)

This opinion, a three-way split, adds another confusing piece to the circuit’s oeuvre in reviewing search warrants in child pornography cases. Judges Sotomayor and Jacobs held that the warrant lacked probable cause; Judge Livingston held that it did not. Judges Sotomayor and Livingston held that the agents relied on the warrant in good faith; Judge Jacobs held that the good faith exception should not apply. In the end, Falso’s conviction and thirty-year sentence were affirmed.

Background

All of the evidence against Falso was recovered from a search of his home and a consensual interview that took place there. This led to a 242-count indictment that covered travel with the intent to engage in sexual contact with minors, production of child pornography, receiving child pornography via the internet, and transporting and possessing child pornography - 242 counts in all.

Probable Cause

The affidavit in support of the search warrant was unusually thin. Sworn out by an FBI agent, it contained mostly generalized information about the use of the internet to view and collect child pornography, and the characteristics of the collectors.

With respect to Falso, the affidavit explained that the FBI had learned of a website, www.cpfreedom.com, which contained approximately eleven images of child pornography. The site also advertised additional such materials at an internet address that was hidden until a visitor purchased a membership. With respect to Falso, all the affidavit alleged was that his email address was one of several listed on the site; this suggested that “it appeared” that Falso “either gained access to or attempted to gain access to” it.

The affidavit also revealed that eighteen years earlier, Falso had been arrested in New York for sexually abusing a seven-year-old girl. He pled guilty to a misdemeanor and was sentenced to probation.

The circuit majority concluded, unlike the district court, that this information did not establish probable cause. First, the affidavit did not allege that Falso was a member of the website. That fact, while not dispositive, is an “important consideration” in these cases because it “supports the ultimate inference ... that illegal activity is afoot.” Here, the only allegation was that Falso “appeared to” have accessed or tried to access the website, but there was no specific allegation that he accessed, downloaded or viewed child pornography. And while the site contained a few such images, there was no information about where or how the images could be accessed or whether they were downloadable.

Accordingly, “inconclusive statements” about whether Falso even accessed the site, coupled with the absence of details about the site itself “falls short of probable cause.”

Nor did any of the other allegations in the affidavit furnish it. Specifically, information about Falso’s eighteen-year-old conviction was not enough. The affidavit did not allege that all or most people who are attracted to minors collect child pornography. In addition, the age of the conviction rendered it stale, and the affidavit had no information to bridge the temporal gap. Finally, the past offense did not relate to child pornography. “That the law criminalizes both child pornography and the sexual abuse (or endangerment) of children cannot be enough.”

Accordingly, the court reversed the district court’s finding of probable cause.

Judge Livingston, in her dissent, noted that Falso’s email address appeared on the subject website, that it could not have appeared there simply by his visiting the site, and that the site used email to correspond with its members. To her, this was “probative evidence” that he not only visited the site, but that he either signed up to attempted to sign up for a membership. She also disagreed with the majority’s treatment of Falso’s prior conviction, both as to its probative meaning and its age.

Good Faith

The majority - a different one - also held that the good faith exception saved the day.

Falso first claimed that the affidavit misleadingly suggested something more than that his email appeared on the website. The court disagreed, because it was true that the investigation had revealed more than just this. It revealed not only that Falso’s address was on the website but that the site communicated with its members by email. Nor did the affidavit misleadingly suggest that Falso was a subscriber to the subject site. According to the majority, in context, it was clear that the affidavit’s use of the term “subscriber” referred to his Yahoo account, through which he maintained an email address.

The majority also held that the affidavit was not “so lacking in indicia of probable cause as to render reliance upon it unreasonable.” Whether the affidavit established probable cause is an issue “upon which reasonable minds [could] differ.” Thus, the error was “committed by the district court in issuing the warrant, not by the officers who executed it.”

Chief Judge Jacobs, in dissent, characterized the affidavit as “recklessly misleading (at best).” He focused first on the affidavit’s failure to allege a “substantial nexus” between Falso and the website. In his view, the agent tried to “create the impression that more was known than was known in fact” to fill this gap, by using the term “subscriber” in the affidavit to misleadingly make Falso look like a “subscriber” to the target website, and not just to Yahoo. In Judge Jacobs’ view this was an “artifice that carefully confuses a very important question of fact” and was not merely an instance of poor drafting. Since the agent who drafted the misleading affidavit was also the executing officer, the good faith exception should not apply.

Valentine’s Day Off

United States v. Valentine, No. 06-5648-cr (2d Cir. August 5, 2008) (Leval, Calabresi, CJJ, Nevas, DJ)

Federal agents intercepted a fifty kilogram drug shipment that was addressed to an apartment building in Brooklyn. They arranged for a controlled delivery, and watched from a surveillance van across the street. Valentine went to the fake FedEx truck and called over a friend. He also agreed to help offload the delivery if he got paid. He then found someone else inside the building, who tried to locate the recipient of the delivery, but ultimately no one signed for it, and the fake FedEx truck left.

Surveillance officers stayed behind, however. They saw Valentine go in and out of the building, speak to people, and go with them to a nearby vacant lot. A few minutes later, he reappeared holding a beverage and went back to the building. He also took of his sweatshirt and put it in his car. At this point, the agents arrested him. They also searched his car, and found glassines containing heroin in the sweatshirt.

The agents then went to Valentine’s apartment, which was in the target building, and his wife gave them permission to search it. There, they found guns and another small quantity of heroin.

Valentine moved to suppress the evidence, claiming that he had been arrested without probable cause. The district court denied the motion. Although it held that Valentine’s actions during the attempted FedEx delivery were too ambiguous to provide probable cause, his later actions - the entry into the vacant lot with others, and his reappearance with a beverage, were enough.

The circuit reversed, holding that the arrest was not supported by probable cause. It agreed with the district court that there was no basis for arresting Valentine based on his conduct prior to the attempted controlled delivery. But it concluded, contrary to the district court, that Valentine’s actions after the delivery were likewise “too ambiguous to raise more than a generalized suspicion of involvement in criminal activity.” The arrest, ultimately, was based on the agents’ assumption that Valentine had consummated a drug deal in the vacant lot. But the officers never observed any actual transaction, or any evidence of narcotics trafficking at all, except for a shipment of drugs addressed to a different person in a different apartment in Valentine’s building. And nothing linked Valentine to the FedEx delivery; his presence at that building, which was also his residence, could not support probable cause.

The court went on to hold that the search of Valentine’s car, which was incident to the arrest, was also unlawful, and it suppressed the evidence recovered therefrom. But, as to the evidence recovered from Valentine’s apartment - which was the basis of his conviction - there was insufficient evidence to determine whether the illegal arrest had tainted that. The court remanded the case further proceedings and an attenuation analysis.

Car Trouble

United States v. Delossantos, No. 06-4713-cr (2d Cir. July 25, 2008) (Feinberg, Miner, Parker, CJJ)

Marino Delossantos was a drug dealer, who was negotiating a deal with an undercover officer. While Delossantos was under surveillance, defendant Rodriguez was seen at the building where Delossantos lived ,and also drove him to and from various locations related to the drug deal. Rodriguez was arrested at the end of one such trip; he made statements and gave consent to search his apartment and car, where officers found drugs and other evidence. He moved to suppress the statements and evidence as the fruit of an illegal arrest, and the district court granted the motion, holding that no probable cause for the warrantless arrest of Rodriguez.

On the government’s appeal, the circuit reversed, holding that the agents had probable cause to arrest Rodriguez without a warrant, based on the available facts. A car passenger is often engaged in a “common enterprise” with the driver, and it is “reasonable” for an officer to “infer that if one person in a vehicle is engaged in drug dealing, so are the other[s].”

Nor was the court impressed with Rodriguez’ efforts to qualify or explain the individual facts upon which probable cause rested. Those explanations, even though “persuasive in varying degrees,” do not alter the existence of probable cause because the facts must be considered in their totality, and in light of the “training and experience of the arresting agents.”