Thursday, June 12, 2014

Use of a "Moocher Hunter" to Determine a Computer's Whereabouts is not a Search Under the Fourth Amendment

In United States v. Stanley, No. 13-1910, the defendant was "mooching" off a neighbor's wireless internet router, which was not password-protected.  The officer realized this when he traced the IP address and obtained the subscriber information from Comcast, executed a search warrant at the neighbor's home, and did not find the child pornography he suspected had been downloaded from a file sharing network.  The officer then used a "moocher hunter," which is a mobile tracking software tool, to determine the whereabouts of the computer that was "mooching" off the neighbor's wireless router.

The Third Circuit held that this was not a search within the meaning of the Fourth Amendment.  The Court distinguished Kyllo v. United States, 537 U.S. 27 (2001) (the thermal imaging case), because in that case, the defendant confined his marijuana growing activities to the home.  Here, the defendant made no effort to confine his activities to his own home.  The Court reasoned that in effect, the defendant reached a "virtual arm" across the street to exploit the neighbor's internet connection.  Thus, any subjective expectation of privacy he may have had is not one society is prepared to recognize as reasonable.  The Court appeared to leave open a distinction between unauthorized wireless connections and authorized ones.

Importantly, the Third Circuit rejected the district court's finding that the defendant had no legitimate expectation of privacy because he voluntarily disclosed his signal to third parties, a rationale the Court feared "might open a veritable Pandora's Box of Internet-related privacy concerns."


Wednesday, June 04, 2014

To qualify for the exception to the warrant requirement, a "knock and talk" encounter must begin at the front door

Responding to a police dispatch, Pennsylvania State Trooper Jeremy Carroll and another trooper proceeded to the home of Andrew and Karen Carman. The troopers were looking for a man who had stolen two loaded handguns and a car with New Jersey plates. They had neither a warrant to search the Carmans' property, nor a warrant to arrest the theft suspect. Upon arriving at the Carman residence, the troopers bypassed the front door of the home and proceeded directly to the back of the house and onto a deck adjoining the kitchen. On the deck, Trooper Carroll and Andrew Carman scuffled. The Carmans' brought unlawful entry and unlawful seizure claims under 42 U.S.C. § 1983. The case proceeded to trial. After opening arguments and at the close of Carroll's testimony, the Carmans moved for a directed verdict based on Florida v. Jardines, 133 S.Ct. 1409 (2013). The District Court denied the motions. Both claims were also rejected by a jury. This appeal followed.

On appeal, the Third Circuit, in Carman v. Carroll, No. 13-2371 (3d Cir. May 15, 2014), reversed the district court's denial of the Carmans' motion for judgment as a matter of law on their unlawful entry claim, but affirmed the jury's verdict on the Carmans' unlawful seizure claim, finding sufficient evidence to support the jury's verdict. The Court began by reiterating the Supreme Court's holding in Jardines, that a warrantless search of a home's curtilage is presumptively unreasonable. It was undisputed that Carroll entered the Carmans' curtilage (backyard) without a warrant, without consent, and without exigent circumstances. Carroll argued that his entry was justified as a "knock and talk" encounter, which was a permitted exception to the warrant requirement.

Under the "knock and talk" exception, a police officer may approach a home and knock, just as any private citizen may do. In order to satisfy the "knock and talk" exception, three requirements must be met. First, a police officer, like any visitor, must knock promptly, wait briefly to be received, and then leave if not expressly invited to stay. Second, the purpose of a "knock and talk" must be to interview the occupants of the home, not to conduct a search. Finally, "a 'knock and talk' encounter must begin at the front door because that is where police officers, like any other visitors, have an implied invitation to go." Here, the Court held that Trooper Carroll could not avail himself of the "knock and talk" exception because he entered the back of the Carmans' property without approaching the front door first. The Court rejected Carroll's explanation that the layout of the Carmans' property (a corner lot with side street parking) made the back door the most expedient and direct access to the house from where the troopers had to park. The Court noted that the Fourth Amendment is not grounded in expediency and the "knock and talk" exception does not give police license to bypass the front door and enter other parts of the curtilage based on expediency concerns. Accordingly, the Court reversed the district court's denial of the Carmans' motion for judgement as a matter of law on the unlawful entry claim.

Tuesday, June 03, 2014

Five Years of Inaction Leads to Dismissal of Case Due to Violation of Right to Speedy Trial

In United States v.Velazquez, No 12-3992 (3d. Cir. April 14, 2014), the Third Circuit reversed the district court’s decision to deny Velazquez’s motion to dismiss based on a violation of his right to a speedy trial.
After investigating Velazquez on narcotics charges, the DEA attempted to find him at the address of one of his associates, but he was not there.  The DEA declared Velazquez a fugitive, leaving his apprehension to the United States Marshalls Service, where Degan was assigned to the case.  In November 2005, Degan transferred.  Between November 2005 and November 2010, authorities only checked NCIC eight times to find out whether any law enforcement agencies encountered Velazquez.  The DEA included him on the “Most Wanted” section of the website for the local DEA office.  The DEA renewed the search for Velazquez in November 2010.  In December 2011, he was arrested on an unrelated narcotics charge and extradited to the Eastern District of Pennsylvania. 

Velazquez filed a motion to dismiss the indictment based on a speedy-trial violation.  The district court denied the motion finding that the government acted reasonably diligent in pursuing him.  Velazquez pleaded guilty conditionally, reserving his right to appeal the speedy trial issue, and was sentenced to 80 months in prison followed by five years of supervised release.

On appeal, the Third Circuit applied the test from Barker v. Wingo, 407 U.S. 514 (1972), using four factors to determine whether there was a violation of Velazquez’s right to a speedy trial:  (1) the length of the delay before the trial, (2) the reason for the delay, including a consideration of whether the government was to blame, (3) the extent to which the defendant asserted his right to a speedy trial and (4) the amount of prejudice suffered by the defendant. 

The Third Circuit found the length of time of the delay, nearly seven years between indictment and trial, was sufficient to trigger an inquiry into the other factors.  Once the existence of a delay was shown, the government had the burden of justifying the delay, which the government in this case failed to do.

The government asserted that Velazquez caused the delay in trial, arguing that his lack of verifiable employment history, his receiving mail at a post office box, and his ability to avoid apprehension until his arrest on unrelated charges indicates his deliberate attempt to conceal his whereabouts.  However, the Third Circuit found that the delay, and particularly the five years of inaction, demonstrates the government’s failure to make a “serious effort” to apprehend Velazquez, thereby causing the delay.

The Third Circuit held that asserting the right to a speedy trial after arrest, when Velazquez discovered the indictment against him, is considered a timely assertion of the right and weighs in favor of Velazquez.

The extraordinary length of delay in this case led to a presumption of general prejudice against the defendant, which the government failed to overcome. 

The Third Circuit found the district court’s determination that the government utilized reasonable diligence to find Velazquez was clearly erroneous.  For this reason, the Third Circuit reversed the district court’s judgment and remanded for the purpose of dismissing the indictment against Velazquez with prejudice. 

The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

              In United States v. Packer , 83 F.4th 193 (3d Cir. Sept. 26, 2023), , the ...