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Friday, August 27, 2010

Search Incident to Execution of Warrant Upheld

U.S. v. Allen, 2010 WL 3222107 (Aug 17, 2010) At approximately 8:00 p.m., police accompanied by a SWAT team executed a search warrant at a bar where Allen worked as a security guard. The warrant, issued in conjunction with a homicide investigation unrelated to Allen or the bar, authorized collection of security videotapes. The bar was in a high-crime area and was patronized by some with histories of violence, firearm possession, and drug activity. Roughly four months before the raid, a person had been shot at the bar, and a few weeks before the raid an individual was arrested for illegally possessing a firearm inside the bar.

Officers secured the premises inside and outside the bar. Five people-including Allen, who was on duty as a security guard-were standing directly in front of the bar. The SWAT team, wearing armor and with guns drawn, ordered them to lie face down on the sidewalk with their hands in front of them, and explained that they would be detained just long enough to ensure the officers' safety and for the officers to gather the evidence they were seeking. The district court found that Allen, while lying on the ground, volunteered he had a firearm upon observing police take a gun from an individual lying next to him. An officer then searched Allen, seized the gun, and inquired if he had a permit for it. Allen responded that he had an expired, out-of-state permit. Allen was arrested.

In denying Allen’s motion to suppress, the district court concluded that pursuant to Michigan v. Summers, 452 U.S. 692 (1981) (upholding detention of resident during execution of warrant to search house for contraband), and Los Angeles County v. Rettele, 550 U.S. 609 (2007) (approving detention of occupants of home during execution of warrant to search residence and other persons believed to live there for evidence), the search warrant carried with it a limited authorization to secure persons at the bar and that the officers’ actions were reasonable to ensure their safety.

The Third Circuit affirmed. The Court first found Summers distinguishable, because there police had a warrant to search the arrestee’s home for contraband, and thus some basis to suspect the arrestee of potential criminal activity. The arrestee’s detention served to prevent flight, minimize risk of harm from the person who may own the contraband being sought, and assist in orderly completion of the search - of which only minimizing the risk of harm was applicable here. However, relying on Rettele, the Court held that safety concerns alone may be sufficient to detain individuals during execution of a warrant, regardless of whether the search warrant was for evidence (as in Rettele) or contraband (as in Summers). That was the case here, the Court concluded, as police were executing a valid search warrant for evidence at a bar located in a high-crime area, where patrons were known to carry firearms, and where several firearm-related crimes had recently been committed.
The Court distinguished its own precedent in Leveto v. Lapina, 258 F.3d 156 (3d Cir. 2001), in which plaintiffs’ detention during a search was held to violate the Fourth Amendment, finding the detention there far more intrusive. It also noted that, at least with respect to language in Leveto distinguishing between searches for contraband and searches for evidence, Retelle supersedes Leveto and renders that distinction immaterial.

Tuesday, August 17, 2010

In first treatment of Gant, Third Circuit applies limited search-incident-to-arrest rule beyond vehicle searches

In its first treatment of Arizona v. Gant, 129 S. Ct. 1710 (2009), which overruled the Belton rule allowing police to search a suspect's car incident to his arrest even if the suspect no longer has access to the car at the time of the search, the Third Circuit has held that Gant applies to all searches incident to arrest, not just to car searches. The case is United States v. Shakir, No. 09-2665 (3d Cir. Aug. 10, 2010).

The search-incident-to-arrest exception to the warrant requirement permits police to search an arrestee's person and "grab area," to ensure officer safety and guard against evidence destruction. Fueled by Belton, many courts had expanded the exception to permit search of the arrest area even after the suspect no longer conceivably has access to that area (e.g., when he had already been transported from the scene)-- unmooring the exception from its rationale.

Gant put an end to that, but like Belton, was decided in the vehicle context. The Third Cicuit has now made clear that the newly limited search-incident-to-arrest rule applies in all contexts: police may search only the area reasonably accessible to the arrestee at the time of the search.

In Shakir, the arrestee was handcuffed and guarded by two police officers in a crowded hotel lobby. When arrested, a duffel bag he was carrying dropped to his feet. Applying the Gant standard, the Court held that a search of the bag was permissible because -- although Mr. Shakir was guarded and handcuffed -- the bag remained within his reach in a chaotic public venue.

As the result in Shakir suggests, the Gant standard will be broadly, but perhaps not rigorously, applied. As the Court put it: "th[e] standard requires something more than the mere theoretical possibility that a suspect might access a weapon or evidence, [but] it remains a lenient standard."

Tuesday, August 10, 2010

Fractured Third Circuit panel clarifies government waiver rules and previews looming Fourth Amendment issue

In a rare, three-opinion panel decision, the Third Circuit has weighed in on -- but, for now, has not resolved -- an important issue concerning the Fourth Amendment exclusionary rule: when a suspect is unlawfully seized, but then breaks away and discards evidence while being chased by police, should the evidence be suppressed? The case is United States v. Dupree, No. 09-3391 (3d Cir. Aug. 6, 2010). The district court suppressed the evidence in question, a gun, and the government appealed. The Third Circuit affirmed the suppression order, with one judge concluding that the government had waived the suppression argument it made on appeal, and another judge concluding that the order should be affirmed on the merits.

A standard exclusionary rule "fruits" analysis would lead to suppression when a "forced abandonment" occurs after an unlawful seizure, since there is no meaningful causal attenuation between the unlawful seizure and the discovery of the discarded evidence. The Third Circuit assumed as much in United States v. Coggins, 986 F.2d 651 (3d Cir. 1993), which presented the same factual scenario. The Coggins court did not have to reach the fruits issue, however, because the Court in that case held that the initial seizure was lawful.

But in Dupree, everyone agreed -- the government a bit later, as explained below -- that there was an unlawful seizure. The fruits issue was thus in play.

In dictum in California v. Hodari D., 499 U.S. 621 (1991), the Supreme Court arguably cast doubt on whether suppression is appropriate in this situation. Hodari D.'s holding is that a show of authority to which a suspect does not submit is not a seizure -- regardless of whether a reasonable person in the suspect's position would have thought he was free to leave. Since there was no seizure in Hodari D. (just as there was no unlawful seizure in Coggins), the Supreme Court had no occasion to conduct a fruits analysis. But the Court stated at one point in its opinion that, had the suspect in Hodari D. been touched by the police and thereafter had broken away and discarded evidence, "it would hardly be realistic to say that disclosure had been made during the course of the arrest." 499 U.S. at 625.

On appeal in Dupree, the government argued that this dictum from Hodari D. -- coupled with the deterrence rationale for the exclusionary rule recently emphasized by the Supreme Court in cases such as Hudson v. Michigan, 547 U.S. 586 (2006) and Herring v. United States, 129 S. Ct. 695 (2009) -- means that evidence discarded after a brief seizure has ended is not fruit of the seizure, and suppression is therefore inappropriate. But in the district court, the government had argued a different point: that, under Hodari D., Dupree had never been seized before discarding the evidence. It was only on appeal that the government conceded that an unlawful seizure -- however momentary -- had taken place (without reasonable suspicion, a police officer had grabbed Dupree for approximately two seconds before Dupree broke away and fled).

Most of the courts that have addressed the dictum from Hodari D. have held that it does not mean that such evidence is admissible -- instead, they adhere to a standard fruits analysis and suppress the evidence. See, e.g., United States v. Wilson, 953 F.2d 116, 127 (4th Cir. 1991).

Two of the three judges on the Dupree panel were ready to engage the fruits issue on the merits. Judge Fisher would have affirmed suppression of the evidence under a standard fruits analysis, concluding that the government's Hodari D. argument rests on dictum that has rarely been read in accordance with the government's interpretation, and is in "manifest tension" with established fruits law. Judge Cowen, on the other hand, favored the government's reading of the Hodari D. dictum and would have applied it to reverse the suppression order.

Judge Hardiman, the third judge on the panel, declined to address the merits because he concluded that the government waived its fruits argument by not raising it in the district court. Judge Hardiman emphasized that, as an appellant, the government is subject to strict waiver principles no less than are defendants. Simply relying on Hodari D. in the district court was not enough to preserve the government's fruits argument, because Hodari D. had been used below not to argue fruits, but to argue no seizure.

Dupree is a precedential decision, but what law does it announce beyond affirming the suppression order in the case? The decision's impact appears to lie in its "institutional value," a criterion the Third Circuit uses to determine what decisions receive precedential status. Waiver law has developed for the most part with defendants as appellants, so clarifying waiver's impact on the government is crucial. But perhaps even more, the important Fourth Amendment issue raised in this case is bound to arise again -- in this circuit and others -- and the thoughtful analyses of its merits is surely valuable in that context.