Category Archives: Fourth Amendment

DEA’s Warrantless Use of StingRay Technology is Unreasonable Search

Published By Stephen Preziosi

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US v. Lambis

197 F.Supp.3d 606

Southern District of New York

Decided on July 12, 2016

Issue:

Is Defendant Entitled to a Suppression of Evidence

Whether defendant is entitled to a suppression of evidence obtained after the warrantless use of a cell-site simulator, known as a “StingRay,” to identify defendant’s apartment as the location of a target cell phone.

Holding:

Suppression of Evidence Granted After Unreasonable Search Using StingRay Technology

The Court held that the warrantless use of the StingRay to target defendant’s apartment was an unreasonable search under the Fourth Amendment; defendant’s motion to suppress evidence was granted.

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Facts:

In 2015, the Drug Enforcement Administration (DEA) conducted an investigation into an international drug-trafficking organization, and as part of the investigation, the administration sought a warrant for pen register information and cell site location information (CSLI) for a target cell phone. CSLI is a record of non-content-based location information from the service provider derived from “pings” sent to cell sites by target cell phones. Using CSLI, DEA agents approximated the target cell phone’s location in the Washington Heights area, but were unable to identify the specific apartment building.

To more precisely isolate the location, the DEA employed a technician with a cell-site simulator, sometimes referred to as a “StingRay” “Hailstorm” or “TriggerFish.” This device locates cell phones by mimicking the service provider’s cell tower and forcing cell phones to transmit “pings” to the simulator. By calculating the strength of the pings, the target phone is pinpointed. The StingRay identified Lambis’s apartment as the most likely location of the cell phone. The DEA agents knocked on the door and obtained consent from Lambis’s father to enter the apartment. Once inside, they obtained Lambis’s permission to search the bedroom, from which they recovered narcotics, digital scales, empty ziplock bags and other drug paraphernalia. Lambis sought to suppress the evidence.

Analysis:

Kyllo v. US

In Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed2d 94 (2001), the Supreme Court held that a Fourth Amendment search occurred when government agents used a thermal-imaging device to detect infrared radiation emanating from a home. The Court rejected the Government’s argument that because the device only detected “heat radiating from the external surface of the house,” there was no search. The Court explained in Kyllo that, “where…the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” The trial court explained that here, as in Kyllo, the DEA’s use of the cell site simulator was an unreasonable search because it revealed “details of the home that would previously have been unknowable without physical intrusion.”

DEA Obtained Warrant for CSLI, Not Cell-Site Simulator

The trial court explained that the DEA’s use of the cell-site simulator was not contemplated by the original warrant application. Absent that warrant, “the Government may not turn a citizen’s cell phone into a tracking device.” The Government argues, however, that exceptions apply in this case as any taint arising from the search dissipated when the agents obtained consent to enter the apartment and the bedroom. But the court explained that any “procurement of a ‘voluntary’ consent to search based upon prior illegal search may taint the consent.” (United States v. Tortorello, 533 F.2d 809, 815 (2d Cir. 1976), and it concluded that the consent was so tainted in this case. Lambis’s motion to suppress the evidence recovered by DEA agents was granted.

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Fourth Amendment: What Constitutes The Seizure of a Person?

Published By Stephen Preziosi

Torres v. Madrid

No. 19-292

Supreme Court

Decided March 25, 2021

Issue:

Whether A Person Is Seized When Police Shoot At Her But She Escapes By Driving Away? 

Whether 1) defendant Torres’ “continued flight after being shot by police” negates a Fourth Amendment excessive force-claim where police shot into defendant’s vehicle from a distance, striking her twice before she escaped and 2) whether the shooting constituted a “seizure” under the Fourth Amendment when defendant was not apprehended.

Holding:

Application of Physical Force is Seizure

The Supreme Court held that 1) officers seized the defendant for the instant that the bullets struck her, that her escape does not negate an excessive force claim, and 2) the application of physical force with intent to restrain is a Fourth Amendment seizure even when the person does not submit and is not subdued.

Facts:

Officers Janice Madrid and Richard Williamson arrived at an Albuquerque apartment complex to execute an arrest warrant. They approached defendant Roxanne Torres, who was not the target of the warrant, as she stood near her vehicle. The officers attempted to speak with her as she got in the driver’s seat. Although the officers wore tactical vests marked with police identification, Torres, then experiencing methamphetamine withdrawal, saw that they had guns and believed the officers to be carjackers trying to steal her car, so she hit the gas to escape them. Police fired their service pistols to stop her, aiming 13 shots at Torres and striking her twice, temporarily paralyzing her left arm.

Torres “accelerated through the fusillade of bullets,” exited the apartment complex, drove a short distance and stopped in a parking lot where she asked a bystander to report an attempted carjacking. She then stole a Kia Soul that happened to be idling nearby and drove 75 miles to a hospital in Grants, New Mexico. The hospital in Grants airlifted Torres to another hospital back in Albuquerque, where she was arrested the next day. She pled no contest to aggravated fleeing from a law enforcement officer, assault on a peace officer, and unlawfully take a motor vehicle.

Torres later sought damages from officers Madrid and Williamson under 42 U.S.C. § 1983, claiming that the officers applied excessive force, making the shooting an unreasonable seizure under the Fourth Amendment. The District Court granted summary judgement to the officers, and the Tenth Circuit Court of Appeals affirmed on the ground that “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim.” 769 Fed. Appx. 654, 657 (2019). The court relied on Circuit precedent providing that “no seizure can occur unless there is physical touch or a show of authority, and that “such physical touch (or force) must terminate that suspect’s movement” or otherwise give rise to physical control over the suspect. Brooks v Gaenzle, 614 F.3d 1213, 1223 (10th Circ.2010). The Supreme Court granted certiorari. 

Analysis:

Bullets From a Distance Are Physical Force

In California v. Hodari D., 499 U.S. 621, 11 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the Supreme Court interpreted the term “seizure” by consulting the common law of arrest, which treated “the mere grasping or application of physical force with lawful authority” as an arrest, “whether or not it succeeded in subduing the arrestee.” (Ibid.)  Put another way, an officer’s application of physical force to the body of a person “for the purpose of arresting him” was itself an arrest—not an attempted arrest—even if the person did not yield (Id.). The Court held that this logic applies to apprehension by firearm as well, and that the officers’ shooting applied force to Torres’ body and objectively manifested an intent to restrain her from driving away. The officers seized her for the instant that the bullets struck her, and “brief seizures are seizures all the same.”

‘Seizure by Force’ Does Not Require Physical Control

The officers argue that the common law doctrine recognized in Hodari D. applies only to civil arrests, and that Hodari D. is just “a narrow legal rule intended to govern liability in civil cases involving debtors.” They further argue that seizures of a person are “intentional acquisitions[s] of physical control.” Brower v. County of Inyo 489 U.S. 593, 596 109 S. Ct. 1378, 103 L.Ed.2d 628 (1989). Under their alternative rule, the use of force becomes seizure “only when there is a governmental termination of freedom of movement through means intentionally applied.” Id. At 597.

But the Court explains this approach erases the distinction between seizures by control and seizures by force. The former involves either voluntary submission to a show of authority or the termination of freedom of movement. The latter will often be unclear: courts will puzzle over whether an officer exercises control when he grabs a suspect, when he tackles him, when he slaps on cuffs, and for how long control must be maintained—only for a moment, to the squad car, to the station. For example, counsel for the officers in this case speculated that the shooting would have been seizure if Torres stopped “maybe 50 feet” or “half a block” from the scene of the shooting to allow the officers to promptly acquire control. None of this squares with the Court’s view that “seizure is a single act, not a continuous fact.” Hodari D. , 499 U.S. at 625.

The Court held that officers seized Torres by shooting her with the intent to restrain her movement even though the person does not submit and was not subdued. However, this was just the first step in the Fourth Amendment analysis because the Fourth Amendment does not forbid all or even most seizures, only unreasonable seizures. The Court did not address the reasonableness of the seizure, the damages caused by the seizure, or the officers’ entitlement to immunity. They vacated the judgment of the Court of Appeals and remanded the case for further proceedings.

Adequacy of Wiretap Applications: Title III of the Omnibus Crime Control and Safe Streets Act in the First Circuit Court of Appeals

Published By Stephen Preziosi

Wiretap Application was More Than Minimally Adequate to Justify the Authorization of a Wiretap

United States of America v. Hugo Santana-Dones

United States Court of Appeals for the First Circuit

920 F.3d 70 (1st Cir. 2019)

Decided on March 29, 2019

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ISSUE:

Whether the district court erred in concluding that the court which issued the wiretap warrant could have found the facts in the application to be at least minimally adequate to support the a wiretap warrant and whether any reasonable view of the evidence supports the district court’s finding under both Title III of the Omnibus Crime Control and Safe Streets Act and the Fourth Amendment.   

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HOLDING:

The Court held that the wiretap application, read in tandem with its supporting affidavit, was more than minimally adequate to justify the authorization of a wiretap because the Court’s inquiry is guided by Title III.  Title III provides a comprehensive scheme for the regulation of electronic surveillance, prohibiting all secret interception of communications except as authorized by certain state and federal judges in response to applications from specified federal and state law enforcement officials.

FACTS OF THE CASE:

Following several other methods of investigation and surveillance, Drug Enforcement Administration (DEA) agents then went a step further and made use of a wiretap of Vasquez’s cellular telephone, which had been authorized and periodically renewed by a federal district judge.  A month later, a federal grand jury in the District of Massachusetts charged all defendants on multiple counts of distributing heroin and cocaine under 21 U.S.C. §§ 841 (a)(1) and 846.  After maintaining their innocence for an extended period of time, the defendants pleaded guilty to all the charges, reversing the right to challenge the district court’s suppression-related rulings and to claim ineffective assistance of counsel.   

Federal Appeals: Drug Convictions and Conspiracy to Distribute

COURT’S ANALYSIS:

The First Circuit Court of Appeals held that the wiretap application, read in tandem with its supporting affidavit, was more than minimally adequate to justify the authorization of a wiretap.  When examining a district court’s ruling on a motion to suppress wiretap evidence, this Court reviews its factual findings for clear error and its legal conclusions de novo.  To find clear error, the Court must form a strong, unyielding belief, based on the whole of the record, that a mistake has been made.  In this instance, the Court’s inquiry is guided by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522, which governs the rules for federal telephone wiretaps.  Title III provides a comprehensive scheme for the regulation of electronic surveillance, prohibiting all secret interception of communications except as authorized by certain state and federal judges in response to applications from specified federal and state law enforcement officials.

The law’s main purposes: (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.  It follows that wiretapping is an exception, not a rule.  The law imposes a set of statutory requirements on top of the constitutional requirements applicable to ordinary search warrants.  A wiretap application must contain, in addition to the foundational showing of probable cause, a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.  Necessity must, therefore, be viewed through the lens of what is pragmatic and achievable in the real world.  Since drug trafficking is inherently difficult to detect and presents formidable problems in pinning down the participants and defining their roles, investigative personnel must be accorded some latitude in choosing their approaches.

Federal Appeals of Firearm Convictions: 18 U.S.C. §§ 921, 922, 924

The Supreme Court has warned that a wiretap is not to be routinely employed as the initial step in criminal investigation.  A reviewing court must examine whether reasonable procedures were attempted, or at least thoroughly considered, prior to seeking a wiretap.  The inquiry into whether the government has sufficiently demonstrated necessity does not hinge on whether it already has garnered enough goods to pursue criminal prosecution.  After all, an application for a wiretap will always have to disclose some meaningful level of previous success in order to satisfy the probable cause requirement and justify further investigation.  To be sure, the level of success achieved through a given procedure will vary in relation to the scope of the investigation as established by the government.  It follows that, in seeking a wiretap, the government cannot be permitted to set out goals that are either unrealistic or overly expansive.

            In this case, the defendants argue that the government made a Gadarene rush to employ electronic surveillance and that its attempt to show necessity in the affidavits supporting the warrant were unconvincing.  The First Circuit found that the affidavit was sufficient to allay reasonable concern that the wiretap was being sought prematurely.  It demonstrated that the government had employed and exhausted a number of traditional investigative measures over the course of more than six months.

Fourth Amendment Searches: Reasonable Suspicion and Anonymous 911 Calls

Published By Stephen Preziosi

Anonymous Tip Sufficient Indicium of Reliability for Reasonable Suspicion

United States of America v. Ibrahim McCants

No. 17-3103

United States Court of Appeals for the Third Circuit

Decided April 5th, 2019

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ISSUE:

Whether an anonymous 911 tip describing a man wearing a red hat with braids beating up a woman and maybe had a gun, provides a sufficient indica of reliability for reasonable suspicion of ongoing criminal activity allowing the police to conduct a search of a man wearing a red hat and braids in the neighborhood.  

HOLDING:

The Court held that the police may conduct brief investigatory stops under Terry v. Ohio,  392 U.S. 1 (1968) if they have reasonable articulable suspicion that criminal activity is afoot.  Such reasonable suspicion requires at least a minimal level of objective justification for making the stop and more than an inchoate and unparticularized suspicion or hunch or criminal activity.

A caller’s anonymous tip bore sufficient indicia of reliability for the Fourth Amendment’s reasonable suspicion because it provided information helpful to investigations.  The Court has identified five factors that indicate reliability for anonymous tips and they are not all required to deem an anonymous tip reliable.  

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FACTS OF THE CASE:

In June of 2015, a woman called 911 to report an ongoing domestic dispute she had been witnessing first hand.  During her call, she described a physical fight between the defendant, Ibrahim McCants, and his girlfriend, stating that he was beating her up really bad, he was wearing a red hat and had braids, and it looked like he had a gun.  She described his appearance, which perfectly matched when the police arrived and engaged with McCants.  They initiated a Terry stop and frisked him because of the nature of the call for service.  During the pat down, they found a loaded handgun and distributable amounts of heroine.  McCants was charged with unlawful possession of a firearm and possession with intent to distribute heroin, and sentenced to 120 months’ imprisonment followed by three years of supervised release. 

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COURT’S ANAYLSIS:

The Court held that a caller’s anonymous tip bore sufficient indicia of reliability for the Fourth Amendment’s reasonable suspicion.  The Fourth Amendment prohibits unreasonable searches and seizures.  Searches require warrants supported by probable cause however, an officer may conduct a brief investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968) if they have reasonable articulable suspicion that criminal activity is afoot.  Reasonable articulable suspicion requires at least a minimum level of objective justification for making the stop and more than an undeveloped and unparticularized suspicion or hunch of criminal activity.  Anonymous tips can provide information helpful to investigations and can create reasonable suspicion of ongoing criminal activity.  The Court has identified five factors that indicate reliability for anonymous tips:

(1) The tip information was relayed from the informant to the officer in a face-to-face interaction such that the officer had an opportunity to appraise the witness’s credibility through observation.

(2) The person providing the tip can be held responsible if her allegations turn out to be fabricated.

(3) The content of the tip is not information that would be available to any observer. 

(4) The person providing the information has recently witnessed the alleged criminal activity.

(5) The tip predicts what will follow, as this provides police the means to test the informant’s knowledge or credibility.

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While the 911 call here did not present all of the reliability factors, this deficiency does not preclude a finding of reasonable suspicion because a tip does not need to bare all of the indicia, nor any particular indicium, to supply reasonable suspicion.  The tip was sufficiently reliable because it met two of the factors: the informant witnessed the alleged criminal and can be held

responsible if the allegations turn out to be fabricated. 

In this case, the caller’s anonymous 911 tip bore sufficient indicia of reliability because the called used the 911 system to report firsthand knowledge of ongoing domestic violence, and the informant gave an accurate description that was quickly confirmed by the police.  This case differs from Florida v J.L., 529 U.S. 266 (2000), which determined that a bare report of an unknown, unaccountable informant who did not explain the bases for their tip lacked sufficient indicia of reliability. 

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Here, the 911 caller gave a firsthand account of ongoing criminal activity, as well as a highly specific and accurate description of the suspect’s location, clothing and hair.  In Navarette, 572 U.S. 399 – 401,the Court determined that an eyewitness’s firsthand knowledge of ongoing criminality lends significant support to the tip’s reliability and a 911 call bolsters the tip’s credibility because the system is able to identify callers therefore safeguarding against false reports.