Tag Archives: fourth amendment

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. 

Biometric Features are Testimonial in Nature and are Protected Statements Under the Fifth Amendment

Published By Stephen Preziosi

Biometric Features are Testimonial in Nature and are Protected Statements Under the Fifth Amendment

In the Matter of the SEARCH OF A RESIDENCE IN OAKLAND, CALIFORNIA

United States District Court, Northern District of California

Case No. 4-19-70053

Author’s Note: A Federal Court in the Northern District of California has held that the police may not force a suspect to provide biometric features when they want to unlock an electronic device because those biometric features are testimonial and protected by the Fifth Amendment. Biometric features are typically fingerprints, iris scans or facial scans. Although this case comes from a trial court, which I don’t normally blog on, I thought the holding was interesting. Even more interesting will be the appeal to the Ninth Circuit and how it will hold up compared to Schmerber v. California, 384 U.S. 757 (1966) and its progeny. 

Decided on January 10th, 2019

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ISSUE:

Whether the Police may compel the use of biometric features, such as finger prints, facial or iris recognition, to open electronic devices such as cell phones and whether such police activity results in self-incriminating testimonial communication in violation of the Fifth Amendment where the government sought the authority to compel individuals to provide any biometric feature necessary to unlock a digital device.

HOLDING:

The Court held that biometric features, including finger prints, facial or iris recognition, are testimonial in nature and are, therefore, protected by the Fifth Amendment. The use of a suspect’s biometric feature to unlock an electronic device violates the Fifth Amendment right against self-incrimination because biometric features serve the same purpose of a password, and a person cannot be compelled to provide a passcode because it is a testimonial communication and, therefore, protected by the Fifth Amendment.

FACTS OF THE CASE:

In the investigation of two individuals believed to be involved in extortion, the Government submitted an application to the United States District Court for the Northern District of California for a search warrant to seize several items connected to the two suspects; amongst the items were electronic devices such as mobile phones and computers.  The Government sought the authority to compel any individual present at the time of search to utilize biometric features, such as fingerprinting or facial or iris recognition, for the purpose of unlocking the digital devices found in order to permit a search of the contents.

COURT’S ANALYSIS:

The Court held that biometric features, including finger prints, facial or iris recognition, are testimonial in nature and are therefore protected by the Fifth Amendment. The use of a suspect’s biometric feature to unlock an electronic device violates the Fifth Amendment’s right against self-incrimination.  The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.  While the Fifth Amendment does not specifically mention biometric features or digital devices, it is the duty of all Courts to safeguard Constitutional rights despite the advancement of technology.  To assume that citizens anticipate a waiver of their civil rights when using new technology is to leave them at the mercy of the ever-advancing technology. 

In Doe v. United States, 487 U.S. 201, 291 (1988) it was held that a passcode cannot be compelled under the Fifth Amendment because the act of communicating the passcode is testimonial and expressing the contents of one’s mind falls directly within the protection of the Fifth Amendment.  Testimony is not limited to verbal or written communication.  An act that implies assertion of fact can constitute testimonial communication for the purposes of the Fifth Amendment, particularly a witness’s act of producing something could qualify as testimonial if conceding the existence, possession and control, and authenticity of the documents tended to incriminate them.  Certain acts, while incriminating, do not fall within the privilege. For example, furnishing a blood sample, submitting to fingerprinting, providing a handwriting or voice exemplar, or standing in a lineup.  There is a disparity between compulsion of communications or testimony, which violates the Fifth Amendment, and compulsion which makes a suspect or accused the source of real or physical evidence, which does not.   

The Court Makes Two Major Distinctions Between Using Biometric Features to Unlock an Electronic Device and Submitting to Fingerprinting or a DNA Swab 

One: Biometric features serve the same purpose of a passcode; they are used interchangeably, and both serve the purpose of securing the owner’s content.  The Court used the example of restarting a phone or keeping it locked for too long; in those cases, the phone may not accept any biometric feature at all and force the user to enter the passcode.  This is done to add an additional layer of security against someone who does not have the passcode.  The Government placed a sense of urgency on compelling individuals to provide biometric features as a means of bypassing their inability to compel the production of a passcode.  However, if a person cannot be compelled to provide a passcode because it is testimonial communication, a person cannot be compelled to provide one’s fingerprint, thumb, iris, face or other biometric feature to unlock the same device. 

Two: Requiring someone to place their finger or thumb to a digital device is fundamentally different than requiring a suspect to submit to fingerprinting.  When a person uses their finger or thumb to unlock a device, they are asserting that the device belongs to them. By doing so, they assert that they are in the possession and control of the device with ownership or access to the phone and all of its digital contents are verified.  The act of unlocking a phone with a finger or thumbprint scan far exceeds the physical evidence created when a suspect submits to fingerprinting to compare his fingerprints to existing physical evidence found at a crime scene because there is no comparison or witness for the former.  A finger or thumb scan either confirms or denies the ownership or control of a device and, unlike fingerprinting, the authenticity cannot be reasonably disputed.   

The Court held that the foregone conclusion doctrine does not apply here.  The foregone conclusion doctrine is an application of the Fifth Amendment by which the Government can show that no testimony is at issue.  It is used when the witness adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the documents.  It does not apply when the Government cannot show prior knowledge of the existence or the whereabouts of the documents ultimately produced in response to a subpoena.  Advanced mobile phones are entitled to greater privacy protection because they contain not only a digital form of many sensitive records that can be found in a search of a home but also a broad array of private information never found in a home in any form in the absence of the phone.  Therefore, mobile phones are subject to different treatment than more traditional storage devices, like safes, and should be awarded more protection.  

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Fourth Amendment Search and Seizure: The Origin of the “Terry Stop” – Temporary Stops and Searches

Published By Stephen Preziosi

Terry v. Ohio

88 S.Ct. 1868

U.S. Supreme Court

Decided June 10, 1968

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Fourth Amendment Search and Seizure: The Origin of the “Terry Stop” – Temporary Stops and Searches

This week’s Throw-Back-Thursday blog is the case that established the infamous Terry Stop where police were authorized to stop and frisk a suspect when the police believe that there is reasonable suspicion that the person is committing, has committed or is about to commit a crime and the person may be armed.  This case eventually would lead to the recent controversy of “stop and frisk” in many State jurisdictions.

Issue: Whether a police officer’s “stop and frisk” of an individual violates of the Fourth Amendment of the United States Constitution.

Holding: The Supreme Court held that when an officer acts “reasonably” in performing a search and seizure, even without probable cause, the search and seizure is not a violation of the Fourth Amendment when the if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.

The Stop and Frisk and Arrests of Terry and Chilton

A detective patrolling downtown Cleveland spotted two men, John Terry and Richard Chilton, on a street corner and suspected that something was amiss based on the behavior of the men. The detective observed Terry and Chilton repeatedly walking back in forth on the same street, pausing to look into the same store window each time they passed by. Suspecting that the men were about to perform a “stick up,” the detective approached Terry and Chilton along with a third man who had met them named Katz, identified himself as an officer, and proceeded to pat down Terry. The detective felt a revolver on Terry’s person and, after leading the three men inside the store, he ordered Terry to remove his coat so he could retrieve the weapon. The officer went on to perform a complete pat down of Terry, Chilton, and Katz. Another revolver was discovered on Chilton’s person and Terry and Chilton were subsequently charged with carrying concealed weapons.

Fourth Amendment Issue at Trial

The defense counsel of Terry and Chilton moved to suppress the weapons as evidence, arguing that the seizure violated the Fourth Amendment. The court denied the motion and admitted the revolvers into evidence on the grounds that the detective had reason to believe that Terry and Chilton were acting suspiciously and that because the officer had reason to believe the men might be armed, he was allowed to frisk them for his own safety. After the trial court denied the motion to suppress, Terry and Chilton pled guilty.

When is a Search or Seizure “Reasonable”?

Under the U.S. Constitution, the Fourth Amendment provides that citizens have the right against unreasonable searches and seizures by police. While the Court conceded that petitioner Terry was generally entitled to protection under the Fourth Amendment as he walked the streets, the Court questioned whether, under the circumstances as described by the arresting officer, the search and seizure was unreasonable. How, then, the Court questioned, do we know when a search or seizure is reasonable and when a search or seizure violates an individual’s Fourth Amendment rights?

When an intrusion occurs without a warrant, courts look to the testimony of the arresting officer to see whether the actions taken were justified and whether the officer’s specific, articulated accounts “taken together with rational inferences from those facts, reasonably warrant the intrusion.” The Court urged lower courts to ask these questions and to require evidence of reasonableness that is based on more than just a “hunch”— evidence that the officer acted in “good faith” would not be enough. The Court held that if mere “good faith” requirement were all that was necessary to determine that the search and seizure was legal, “the protections of the Fourth Amendment would evaporate.”

Was Terry’s “Stop and Frisk” Reasonable under the Fourth Amendment?

After establishing that courts must assess the context and facts of a warrantless search or seizure, the Supreme Court was called to determine whether Terry’s “stop and frisk” was unreasonable and in violation of his Fourth Amendment rights. The Court didn’t doubt that Terry was “seized” and subjected to a “search” when the detective patted him down for weapons on the outside of his clothing. However, the question remained: did the circumstances preceding the detective’s “stop and frisk” render his decision to perform the search and seizure reasonable according to the Court’s principles?

Following its own guidelines, the Court analyzed the facts of Terry’s case and concluded that the detective’s warrantless search and seizure was reasonable. The Court rationalized that because the detective’s observations of Terry and his two companions (pacing up and down the street, continuously stopping in front of the store, etc.) led him to believe Terry and his crew were about to execute a stick-up, the detective acted reasonably. Also noting that the detective initially limited his search to a pat down of the outside clothing, the Court concluded that his decision was a reasonable in order to protect himself and others from possible danger. Subsequently, the Court held that the weapon was properly admitted into evidence.

The Controversy that Followed

Since the decision of Terry v. Ohio, controversy over the constitutionality of “stop and frisk” searches has remained prevalent throughout the United States. In 2013, the United States District Court for the Southern District of New York axed the “stop and frisk” policy. That Court held that the “stop and frisk” rule violated the Fourth Amendment, noting that officers too often take advantage of the policy by unfairly target minorities.

 

 

 

Mapp v. Ohio: The Origin of The Exclusionary Rule In State Courts

Published By Stephen Preziosi

The “Throw Back Thursday” Blog: Examining classic cases that continue to be relevant.

 

In my first “Throw-Back-Thursday” blog issue, I take the reader back to the ultimate classic in criminal law, to what is probably the most earth-shattering opinion in criminal law decided in the twentieth century, which is still applicable and going strong in the criminal courts today throughout the United States.  If there is any one case that has had more influence and generated more change in the way criminal cases are handled in state courts throughout the United States, it must be Mapp v. Ohio.  I am sure that we are all familiar with the holding in general, but here is a refresher on the case in this week’s Throw-Back-Thursday Blog.

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