MA Top Court Raises Safeguards Against Police Home Intrusion When Serving an Arrest Warrant

By Dorian Page, Law Clerk, Dhar Law LLP

      On January 14th, 2014, the Massachusetts Supreme Judicial Court issued an opinion reaffirming the Court’s commitment to safeguarding the sanctity of the home against illicit government intrusion.  The case, Commonwealth v. Conan GentileSJC-11372, clarified further the meaning of the terms “reasonable suspicion” and “reasonable belief” as they relate to the degree of knowledge that the police must have before a person’s home can be entered while the police execute an arrest warrant.

FACTS

      On June 24th, 2010, troopers of the Massachusetts State Police, along with three Leominster police officers, went to an apartment in Leominster to execute two arrest warrants for driving-related matters for the defendant.  One of the troopers had encountered the defendant one week earlier on an unrelated issue and had noted that the defendant possessed a state identification card listing his home address as being at the apartment.

      A trooper knocked on the rear door of the apartment, which was answered by a teenage girl who then called her mother to the doorway.  The mother was asked if the defendant was in the apartment, and she replied twice that the defendant was not there.  After speaking with the mother briefly, the trooper entered the apartment and pushed open a bedroom door, where he found the defendant.  The trooper also noticed the end of an antique musket protruding from underneath the defendant’s bed.  The trooper then searched under the bed and found two shotguns in gun cases.  While the trooper searched under the bed, the defendant was screaming that the police were illegally searching his bedroom.  The defendant was arrested and the firearms were seized.

     After being taken to the State Police Barracks and interrogated by the troopers regarding recent burglaries from which firearms and a sword had been stolen, the defendant told the police that the stolen items were in his apartment.  He told the troopers that he had received the items from someone else, who had committed the burglaries.  The defendant then gave consent for the police to return to his apartment to search for the stolen items, which they did.

      The defendant was charged with five counts of receiving stolen property, one count for each item seized from the defendant’s apartment.

HISTORY

     By August of 2010, the defendant was facing five indictments in superior court for the stolen goods.  He filed a motion to suppress all of the evidence taken from his home, as well as the statements he made during custodial interrogation at the State Police Barracks.  The judge denied the defendant’s motion and allowed the evidence to be introduced at trial.  The defendant was convicted by a jury of two counts of receiving stolen property.  The defendant appealed and the Supreme Judicial Court transferred the appeal directly to itself, bypassing the intermediate Appeals Court.

SUPREME JUDICIAL COURT’S RULING

      The defendant’s appeal was based on the trial judge’s denial of the motion to suppress evidence.  The defendant argued that the police never had a “reasonable belief” that he was present in the apartment, as required to enter the home while serving an arrest warrant.  Although the police may have had a reasonable belief that the defendant lived at the apartment, more is required to “reasonably believe” that the defendant was present in the apartment at the time the police entered for the purpose of arresting him.

      The Commonwealth responded by arguing that the evidence heard by the original judge was enough to conclude that the police did, in fact, reach reasonable conclusions that the defendant was in the home.  The Commonwealth argued that while the trooper was at the back door, he heard sounds of movement coming from elsewhere in the apartment.  The trooper had stated that while he was speaking with the mother, she had replied twice that the defendant was not present, while turning her head to look at the bedroom door each time.  The trooper also said that he had developed a sense of when people were lying to him about the presence of those being sought.

      The Supreme Judicial Court (“SJC”) looked to their previous holdings in Commonwealth v. Grandison and Commonwealth v. Silva, which required that the police have “specific articulable facts” from which to conclude that the person sought is actually at the place the police enter, at that time, to arrest the person.  The SJC stated that, while the belief need not rise to the level of probable cause, the belief cannot simply be a hunch or an ambiguous suspicion that is not based on valid reasons.

The SJC concluded that the simple fact that the police were aware that the defendant usually resided in the apartment was insufficient to believe he was physically present when they executed the warrant.  The trooper’s conclusion that he could sense when someone was lying was likewise not a valid reason to believe the defendant was there.  The Court said that if the trooper’s “sense” was enough to be an objectively “reasonable belief”, then the privacy of people in their homes could be violated by the police every time the police had a subjective feeling that crime was occurring in any house.  The trooper never asked the mother if there was anyone else besides the defendant in the home, which could have provided an innocent explanation for the “sound of movement” that the trooper heard.  Nor did the troopers conduct any form of surveillance on the apartment prior to knocking on the door, which could have either confirmed or denied the defendant’s presence.  The SJC noted:

Because the trooper arrived at the residence after the commencement of the normal work day and had obtained no information that the defendant was there, any information supporting a reasonable belief that the defendant was inside the residence only could have been obtained after the trooper knocked on the door and before he entered the residence.

      The SJC pointed to the sheer lack of any objectively valid “specific articulable facts” for the police to believe the defendant was present when they entered the home.  The Court said that a “hunch is still a hunch, even if it turns out to be correct.  And if the belief were reasonable, it would remain so even if the defendant was not in the residence.”  The SJC ruled that the illegal entry by the troopers, in the absence of “reasonable belief”, so tainted the evidence obtained afterwards that all of the evidence should have been excluded from the trial.  The defendant’s convictions were reversed and the SJC ordered that the charges be dismissed.

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Fifth Circuit Upholds the Warrantless Search of Cell Phone Location Information

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By Wassem Amin, Esq.

In a 2-1 decision, the Fifth Circuit Court (link to full opinion in PDF) held that the Government does not need a warrant to obtain Cell Site Location Information (CSLI).  CSLI is the information that is obtained when a person’s cell phone “pings” nearby towers  of his or her service provider.  The cell phone pings the three nearest towers, thereby triangulating the owner’s approximate location.  In an area with high cell phone tower density, such as most metropolitan cities, the cell phone’s actual location could be within a few feet of the triangulation.

Cell phone service providers store the data gathered, including location data, every time a cell phone pings its towers.  In essence, the Government could use that information to determine a person’s location and movement over a period of time.

There is a split of opinion between Courts in the United States as to whether this information is protected under the Fourth Amendment’s Search & Seizure Clause–which would trigger the warrant and probable cause requirement.  The Government, in almost all cases that have been appealed so far, and in this case, relies on the antiquated Stored Communications Act (SCA), specifically Section 2703(d) to obtain this information without a warrant.  Also know as a 2703(d) order, this provision allows the Government to obtain a person’s CSLI if it can show “specific and articulable facts” that it needs it–a standard that is far less than probable cause.

In this case, what was especially alarming is that the Government contends that this location information is only obtained when a user makes a phone call.  However, a cell phone pings its towers not only when making a call, but every time it uses data services.  The ubiquity of smartphones in today’s society makes this especially problematic.  Most smartphones automatically use data to update, for example, a user’s email.  This continuous communication between the cell phone and the service provider’s towers allows the Government to precisely track a person’s past movements—and predict future ones.

The reasoning used by the Fifth Circuit indicates that the Court simply does not understand the way CSLI works and, in fact, many other courts, such as the Sixth Circuit, do not as well.  In affirming that the Government can continue to obtain CSLI records without a warrant, it noted the Government’s assertion that CSLI is transmitted only during phone calls.  Relying on that fact, the Court goes on to say that since this information is voluntarily transmitted by the user, the user loses his or her “reasonable expectation of privacy” that is required under the Fourth Amendment.

The wide divergence in opinion between Courts is in part because of the fact that there were no smart phones or even wide spread consumer cell phone use when the SCA was enacted.  The SCA is an antiquated statute that must be overhauled in order to address, and prevent, use of CSLI without a warrant by the Government.

The Fifth Circuit’s holding demonstrates the need for the United States Supreme Court to clarify the Fourth Amendment’s applicability in this area–an opportunity it side-stepped in US. v. Jones. The ambiguity of the current law necessitates that the inquiry be answered on a case-by-case basis by thousands of different magistrate judges—many of whom who have their own understandings as to what is private or not and may lack the necessary technological expertise to ascertain what kind of information is disclosed.

*The opinions expressed in this post are that of the Author’s and do not necessarily reflect the Firm’s views.

New Facebook Friend? Be Careful or You Might Find Yourself Served!

Written by Muthena Alsahlani and Edited By Wassem M. Amin

Social networking site likes Facebook and Twitter play a significant role in society and in most people’s daily life. So big, in fact, that a court ruled that Service of Process via Facebook is permissible under Federal Rules of Civil Procedure 4(f) .

Facts of the Case

The Defendants allegedly operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers. This scheme was operated in large part out of call centers located in India.

The U. S. District Court of Southern District of New York issued a temporary restraining order on the defendants’ business practices. On September 27, 2012, the Federal Trade Commission (FTC) submitted the Summons, Complaint, and related documents to the Indian Central Authority for service on defendants, in accordance with Federal Rule of Civil Procedure 4(f)(1) and The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention” or “Convention”). The FTC also sent these documents to defendants by three alternative means: (1) by email to defendants’ known email addresses; (2) by Federal Express (“FedEx”); and (3) by personal service via a process server.

The FTC moved for leave to effect service by alternative means, mainly email and Facebook, on five of the defendants. The defendants sought a preliminary injunction to prevent this method of service.

Holding

The District Court enjoys discretion of whether to order service of process under Rule 4(f)(3) . Both the United States and India are signatories to the Hague Service Convention, mentioned in Rule 4(f). Article 10 of the Hague Convention allows for service of process through alternative means, provided the destination state does not object to those means. Thus far, service by email and Facebook are not among the means listed in Article 10 and India has not specifically objected to them. As well, service via email comports with due process where a plaintiff demonstrates that the email is likely to reach the defendant.

The District Court noted that if the plaintiff proposed serving the defendants only through Facebook, without a supplemental form of service, then a substantial question of due process would arise. However, the FTC’s proposal does not suffer that defect. The FTC proposes service via Facebook in conjunction with traditional email. The plaintiffs were able to establish that the Facebook accounts identified are actually operated by the defendants. Thus, there is a likelihood that the message will be received.

Important to note that Facebook is routinely used to serve claims in Australia, New Zeland, and Britain to a lesser extent.

Implications

Foreign defendants can be served process via Facebook, in addition to email, provided that the message will likely reach its intended target, under Fed. Rule of Civil Procedure 4(f). The Court did not that “[H]istory teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.”

It’s only natural to wonder: will this open the door for an eventual change in Federal Rule of Civil Procedure, which applies to service of process for defendants residing in the U.S.? It’s plausible the traditional rules of service may evolve in order to appropriately reflect the technological shift. Electronic service is more effective and the more common mode of communication in many respects. The challenge, of course, is establishing receipt or acknowledgment of electronic service. Given the struggles of the U.S. Postal Service and the uncertain future of traditional mail, there may not be an option but to evolve and accommodate.

US Supreme Court: K-9 Dog Sniff Sufficient to Establish Probable Cause

On February 19, 2013, the Supreme Court decided the case of Florida v. Harris, and held that use of a drug dog to establish probable cause to search a vehicle does not violate the Fourth Amendment of the United States Constitution.

Facts: Respondent was pulled over by a law enforcement officer for a routine traffic stop.  While speaking to the respondent, the officer noticed that the respondent was becoming increasingly nervous and also observed an open beer can.  Respondent refused the officer’s request to search the vehicle; the officer subsequently executed a sniff test with his trained narcotics dog, Aldo.  The dog alerted at the driver’s side door, leading the officer to determine that he had probable cause to search the vehicle.  The search did not provide anything that the dog was trained to detect, but did reveal ingredients that are used to manufacture methamphetamine.  When the respondent was released on bail he was pulled over by the same officer who again had Aldo do a sniff of the vehicle, this time producing nothing.  The respondent moved to have the evidence from the stop suppressed, arguing that the officer did not have probable cause to search his vehicle based on the dog’s alert.  The trial court held that the officer had probable cause and denied the motion to suppress.  The respondent then entered a no-contest plea, reserving the right to appeal the trial court’s ruling.  After an intermediate state court affirmed, The Florida Supreme Court reversed.

Florida Supreme Court: The Florida Supreme Court held that the officer lacked probable cause to search the defendant’s vehicle under the Fourth Amendment.  The court went on to say that “When a dog alerts, the fact that the dog has been trained, and is certified, is simply not enough to establish probable cause.”  The court held that the State needed to produce a wider array of evidence to demonstrate a dog’s reliability.  The Florida Supreme Court gave several examples: the dog’s training and certification records; an explanation of the meaning of the particular training and certification; field performance records; and evidence concerning the experience and training of the officer handling the dog.

Supreme Court’s Ruling: The Court began by tracing the history of probable cause and establishing the foundation for the Courts decision.  The Court stressed that, in determining whether the State has met the probable cause standard, the Court has consistently looked to the “totality of the circumstances” test.  Foreshadowing its ultimate decision, the Court noted that in Gates, the Court abandoned the old test for assessing the reliability of informant’s tips “because it had devolved into a “complex superstructure of evidentiary and analytical rules.” (1)  The Court continued, describing probable cause as a “fluid concept-turning on the assessment of probabilities in any particular factual context-not readily, or even usefully, reduced to a neat set of legal rules.”  The Supreme Court determined that this is exactly what the Florida Supreme Court did in its decision, created a strict evidentiary checklist, which requires the state to mark off each item.

Rather than having the “strict evidentiary checklist” that the Florida Supreme Court determined was the best approach, the Supreme Court held that evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.  “If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume that the dog’s alert provides probable cause to search.”

Regarding a probable-cause hearing on a dog’s alert, the Court gave guidance to the lower courts on how these should be administered.  The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure.  After evaluating the proffered evidence to decide what all the circumstances demonstrate; if the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.  However, if the defendant has challenged the State’s case, then the court should weigh the competing evidence.  Overruling the Florida Supreme Court test, the Court once again stated that the question is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonable prudent person think that a search would reveal contraband or evidence of a crime.

(1)    Illinois v. Gates, 462 U.S. 213, 235 (1983)

Obama’s Recess Appointments Struck Down by Court of Appeals

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The  Court of Appeals for the D.C. Circuit, which has jurisdiction to review Cases arising from decision involving federal agencies, struck down three recess appointments President Obama made to the National Labor Relations Board (NLRB) in January 2012.

The case arose following a routine review of the NLRB.  The Petitioner, Noel Canning, challenged the NLRB’s authority to render a verdict.  He argued that a quorum, at least three of a five-member Board, were required to act, and because three of the five members were appointed unconstitutionally, the decision is null and void.  The Court of Appeals concurred.

At the heart of the decision is Article II Section 2 of the Constitution:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

The case hinged on whether President Obama’s appointment did, in fact, occur during the recess of the Senate, and what is the meaning of “recess” for constitutional interpretation purposes.

The Court of Appeals rejected the Department of Justice’s Office of Legal Counsel’s interpretation of “the Recess” which grants the President the discretion to determine when the Senate is in recess. Granting the President such discretion flies completely in the face of checks and balances and would “eviscerate the Constitution’s separation of powers.”  The Court of Appeals also rejected an interpretation of “the Recess” as an adjournment lasting more than three days.

The Court of Appeals held that “the Recess” is limited to intersession recession.  Congress began a new session on January 3, 2012, while the President made his three appointments to the NLRB on January 4, 2012.   As a result, his three appointments were invalid, and a quorum was lacking to render a binding decision.

Link to Court’s Opinion