Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Tag: Fourth Amendment

Florida v. Jardines: United States Supreme Court Holds that Using Drug Dog on Homeowner’s Front Porch is a Search Under Fourth Amendment

You may recall in one of my previous posts that I was waiting for the Supreme Court to issue opinions in a couple of Florida cases involving drug dogs.  Well, on March 26, 2013, the Supreme Court issued its opinion in the second case, Florida v. Jardines, No. 11-564, and held that using a drug dog on a homeowner’s  front porch to investigate the contents of the home is a “search” within the meaning of the 4th Amendment.  If you are a criminal defense or criminal appeals attorney who handles a lot of cases involving the Fourth Amendment, this is a good case to keep in handy.  At a mere 10 pages, the majority opinion is a straightforward application of the Fourth Amendment’s property-based protections.  In short, the Court affirmed the Florida Supreme Court’s decision, and held that the officer’s act of entering the curtilage with the drug dog for the sole purpose of conducting a drug sniff of the residence violated the Fourth Amendment.

Not surprisingly, the best part of the opinion lies in the unusual composition of the majority and dissenting camps.  While Justice Scalia authored the majority opinion, (he was joined by Justices Thomas, Kagan, Ginsburg, and Sotomayor), the dissenters were Justices Alito, Kennedy, Breyer, and Chief Justice Roberts.  Justices Kagan, Ginsburg, and Sotomayor issued a concurring opinion, wherein they stated that they would have also affirmed on privacy grounds, following Kyollo v. United States, 533 U.S. 27 (2001).

United States v. Griffin, No. 11-15558: Eleventh Circuit Considers Whether Unrelated Police Questioning Posed During Terry Stop Violate the Fourth Amendment

In reviewing recent Eleventh Circuit opinions, I came across United States v. Griffin, No. 11-15558, an opinion where the Court considered the issue of whether unrelated police questions posed during a valid Terry stop violate the 4th Amendment.  The answer?  Not necessarily.  As noted at page 13 of the slip opinion, such questions would not violate the 4th Amendment unless they “measurably extend the duration of the stop.”  Like other Circuits, the court refused to adopt  bright-line “no prolongation rule,” and instead stated that the analysis should focus on whether the time it took the officer to ask the questions, and for Griffin to answer them, measurably extended or prolonged the duration of the stop so as to render the stop unreasonable under the 4th Amendment.  Griffin, slip op., pg. 14.  In conducting this analysis, the Court stated that one should assess the length of the stop as a whole, considering all the facts and circumstances.  Griffin, slip op., pg. 14.  If you are a criminal defense attorney who deals with Fourth Amendment issues a lot, then this would be a good opinion for you to read.

The opinion was authored by Judge Adalberto Jordan, who formerly presided in the United States District Court for the Southern District of Florida.  (You can read my post about his elevation to the Circuit Court here).  I have not yet read any other opinions authored by Judge Jordan, but I hope that the Griffin opinion is a sign of things to come.  If you are an attorney who handles criminal appeals, you may appreciate several things about the Griffin opinion.  At 19 pages long, the opinion is relatively short, by Eleventh Circuit standards.  Also, the opinion is written in a direct manner, flows logically, and contains nothing which might make anyone think that the Court had given anything less than full consideration to the positions of each of the parties.  Isn’t that what the best appellate opinions do?  I don’t know about you, but I look forward to reading more opinions by Judge Jordan!

United States Issues Another 4th Amendment Opinion: Ryburn v. Huff, No. 11-208

Last week, I commented on United States v. Jones, No. 10-1259, a case where the Supreme Court ruled that the Government violated the 4th Amendment by installing and monitoring a GPS tracking device on Jones’ vehicle for 28 days.  In Ryburn v. Huff, No. 11-208, the Supreme Court takes on the 4th Amendment again, but this time, finds that no Fourth Amendment violation occurred.

As far as Supreme Court opinions go, this one is pretty straightforward.  The Court issued a per curiam opinion reversing a ruling issued by the Ninth Circuit in a section 1983 case.  In so doing, the Court determined that the police officers enjoyed qualified immunity, and therefore could not be sued for a violation of the Fourth Amendment, after a warrantless entry into the home of a high school student, Huff, whom they were investigating for threatening to “shoot up” the school.  Ryburn, No. 11-208, slip opinion at *1.  After dedicating the first 5 pages of the 9 page opinion to the facts of the case, the Court began its analysis by recalling its previous rulings in Brigham City v. Stuart, 547 U. S. 398, 400 (2006), and Georgia v. Randolph, 547 U. S. 103, 118 (2006), for the proposition that “[a] reasonable police officer could read these decisions to mean that the Fourth Amendment permits an officer to enter a residence if the officer has a reasonable basis for concluding that there is an imminent threat of violence.”  Ryburn, No. 11-208, slip opinion at *5.  Such discussion is the most important part of the case for South Florida’s criminal defense lawyers.

However, the Supreme Court buffs out there may want to focus on the remainder of the Court’s opinion.  In pages 5 to 9 of the slip opinion, the Court devotes its analysis to criticizing the majority panel of the Ninth Circuit for substituting its own 20-20 hindsight conclusions for the detailed findings of fact entered by the District Court.  You can practically see the finger-wagging, and hear the sarcasm, in the Court’s statement: “The panel majority—far removed from the scene and with the opportunity to dissect the elements of the situation—confidently concluded that the officers really had no reason to fear for their safety or that of anyone else.”  Ryburn, No. 11-208, slip opinion at *6 (emphasis added).  The Court also took the Ninth Circuit to task for (1) purporting to accept the District Court’s findings of fact, but then changing them in several respects; (2) concluding that lawful activity cannot be a cause for concern to police officers; (3) taking an unrealistic view of the events as they unfolded at the Huff residence; and, (4) failing to “heed the District Court’s wise admonition that judges should be cautious about second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation.”

What I find most striking about this opinion is the fact that not a single Justice thought strongly enough about the case, one way or the other, to write separately in his or her own name, or to take ownership of the unanimous opinion.  Considering the fact that the Court has two fairly new Justices on board, and also considering the fact that the spectrum of views on the Court is so broad, I was really surprised that the Court issued only a per curiam unanimous opinion in this case.  With that in mind, I am glad to say that I’m not one of the Judges sitting on the Ninth Circuit!

Government’s Use of GPS Tracking Device to Monitor Vehicle for 28 Days Violates Fourth Amendment: United States v. Jones, No. 10-1259

On January 23, 2012, the United States Supreme Court issued an opinion in United States v. Jones, No. 10-1259, the GPS tracking device case that I mentioned in a previous post.  Justice Scalia delivered the majority opinion, and was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor.  Concurring opinions were drafted by Justices Sotomayor and Alito.  Interestingly, none of the Justices dissented.  The issue, as framed by the Court was,

 . . . whether the attachment of a  Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes  a search or seizure within the meaning of the Fourth Amendment.

The essence of the opinion can be summarized as follows: (1) the Government attached the GPS device to Jones’ car one day after the warrant permitting installation of the device expired; (2) the Government monitored Jones’ vehicle for the next 28 days, and collected more than 2,000 pages of data as to the vehicle’s location over a four-week period; (3) although the District Court held that the Government’s tracking of Jones’ vehicle on public streets did not violate the Fourth Amendment, the United States Supreme Court disagreed.

In holding that the Government’s installation of a GPS device on Jones’ vehicle, and the subsequent use of that device to monitor the vehicle’s movements, constituted a “search” under the Fourth Amendment, the Court first highlighted a key fact: “[t]he Government physically occupied private property for the purpose of obtaining information.”  The Court emphasized the Fourth Amendment’s historically close relationship to property rights, and, then, in classic Scalia strict-constructionist-style, observed that it is the Court’s duty to “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”  Next, the Court distinguished Jones from other cases involving electronic tracking technology, United States v. Knotts, 460 U. S. 276, 281 (1983), and United States v. Karo, 468 U. S. 705 (1984), by noting that neither Knotts nor Karo dealt with the Government’s trespassory installation of a tracking device.  The Court further reasoned that the Government’s trespassory installation of the device, and collection of data over the next 28 days, violated the Fourth Amendment because the Government did more than merely visually monitor the location of Jones’ vehicle.

For those of you who love reading Scalia on the attack, you will not be disappointed, for even though Scalia authored the majority opinion, he still took a few good swings at the concurring Justices’ opinions.  If you are a criminal defense attorney who does any work in the area of searches and seizures, you really need to take a few minutes to read Scalia’s critique of the concurrences because he compares and contrasts several key search and seizure cases so succinctly.  Nevertheless, the concurrences should be read because they also raise the issue of whether a Fourth Amendment violation would have been found in the Jones case had the majority analyzed the case under the Katz “reasonable expectation of privacy” test, as opposed to more traditional property-trespass framework.

What does the Jones opinion mean for the criminal defense lawyer of South Florida?  We all know that these days, the Government is increasingly using technology in criminal investigations.  (You can read a previous post of mine on the topic here).  In that light, I suggest that the Jones opinion is significant because it shows that the Court may be swinging back to the protect the rights of the individual against unlawful Government and law enforcement intrusion.

Do Police Need Probable Cause to Obtain Cell Site Information?

Florida’s Fourth District Court of Appeal has published an opinion on an interesting and timely topic-whether police need probable cause to obtain prospective cell site information.  In Tracey v. State, No. 4D09-3565, the Court held that the police did not violate the Fourth Amendment when they used “real time” or prospective cell site information to track a suspect on public roads.

By way of background, footnotes 1 and 2 of the opinion discuss two tools which are related to cell phone use, and which allow law enforcement officers to track suspects: pen registers and trap and trace devices.  Under Florida law, a pen register is defined as “a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but such information does not include the contents of any communication.” See Fla. Stat. § 934.02(20) (2009).  A “trap and trace device” is defined as “a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but such information does not include the contents of any communication.” See Fla. Stat. § 934.02(21) (2009).

Key to the Fourth District’s analysis was the fact that the police were tracking Tracey on public roads.  The Fourth relied on United States v. Knotts, 460 U.S. 276 (1983) and United States v. Karo, 468 U.S. 705, 707 (1984), where the United States Supreme Court upheld a law enforcement officer’s installation of a beeper to track a suspect’s car on public roads because the police officer did not obtain information which could not have been obtained
through visual surveillance.

Federal courts are presented with this issue much more often than the State courts.  I know from my time as a Law Clerk in the United States District Court for the Southern District of Florida that federal prosecutors routinely apply to the Court for pen registers and trap and trace devices as part of their criminal investigations.  While Judges in the Southern District require the prosecutors to show probable cause before they will allow a pen register or trap and trace to issue, it is important to note that the Federal courts do not approach the issue uniformly.

Some Federal courts have held that prospective or “real time” cell site information can only be obtained upon a showing of probable cause, contrary to the Fourth District’s holding in Tracey.  See In re APPLICATION FOR PEN REGISTER AND TRAP/TRACE DEVICE WITH CELL SITE LOCATION AUTHORITY, 396 F. Supp. 2d 747 (S.D. Tex. 2005); In re APPLICATION OF THE UNITED STATES FOR AN ORDER (1) AUTHORIZING THE USE OF A PEN REGISTER AND A TRAP AND TRACE DEVICE, 396 F. Supp. 2d 294 (E.D.N.Y. 2005).  Federal courts may also differ on the issue of whether a showing of probable cause is required to obtain historical cell site data.  See In re Application of the UNITED STATES of America FOR HISTORICAL CELL SITE DATA, 747 F. Supp. 2d 827 (S.D. Tex. 2010); In re APPLICATION OF the UNITED STATES of America FOR AN ORDER DIRECTING A PROVIDER OF ELECTRONIC COMMUNICATION SERVICE TO DISCLOSE RECORDS TO the GOVERNMENT, 620 F. 3d 304 (3rd Cir. 2010).

A note of caution: this listing of cases is only the tip of the iceberg.  Florida criminal defense attorneys will have to undertake a thorough review of the facts of their cases and the relevant caselaw to determine how to proceed if they are presented with an issue regarding their client’s cell phone data.  While the Fourth District’s opinion in Tracey gives law enforcement the upper hand in some respects, Florida criminal defense attorneys must keep in mind that Florida courts are bound to follow Fourth Amendment analysis as enunciated by the United States Supreme Court.  See Rolling v. State, 695 So. 2d 278, 297 n. 10 (Fla. 1997); Fla. Const. art. I, sec. 12.  Given the different approaches being taken by the Federal courts, perhaps the United States Supreme Court will have the opportunity to address the issue sooner rather than later.  And if the Court does find that probable cause is required to obtain these types of cell phone information, that would mean a victory for the defense!


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