Alley-way questioning and pat-down request give rise to Fourth Amendment seizure in light of officers’ targeted approach and persistent questioning, the limits on appellant’s movement, and the fact that the encounter occurred in a high crime area with “high visibility” patrols

Nowhere to run by Douglas M. Paine, licensed under Creative Commons

Dozier v. U.S., 15-CF-1098

• Holding 1: Appellant was seized for Fourth Amendment purposes by the time he complied with an officer’s request to put his hands on the wall so that police could frisk him for weapons, where armed, uniformed police parked in front of the alley appellant was walking out of, got out, walked up to appellant, and asked if they could speak to him (twice), if he had any weapons, and after appellant exposed his waistband to prove he did not, if they could pat him down. “Even assuming [this] interaction . . . began in a consensual manner, . . . there was a Fourth Amendment seizure by the time appellant submitted to the officers’ request to a pat-down” because “an innocent person in appellant’s situation would not have felt free to decline that request.” Slip Op. at 12. Factors relevant to the court’s determination include: the natural apprehensiveness any person would feel when approached by multiple officers in a secluded alley late at night, id. at 15; the officers’ persistence which signaled that appellant could not terminate the encounter until police finished their investigation, id. at 15-16, 23-24; and the restraint on appellant’s movement caused by the officers parking at the secluded alley’s entrance and walking toward appellant from that direction, id. at 23. 
• Of Note: In addition, the Court considered that “the encounter took place in a ‘high crime area’”--one subject to “frequent[] and visibl[e]” patrols--“and involved an African-American man.” Id. at 16, 17. The court deemed these factors relevant because even an innocent man in such a neighborhood might reasonably perceive that he is the target of a criminal investigation when approached by police; id. at 16-17, 19; because “persons of color” were “more likely to be subjected to this type of police surveillance” and therefore “particularly justified” in fearing it; id. at 19; and because “[i]n the isolated setting where the encounter took place, appellant . . . reasonably could have feared that unless he complied with the police requests, he would be vulnerable to police violence, without hope that anyone would come to his aid or witness what happened,” id. at 22.
• Holding 2: Because there was no reasonable articulable suspicion to seize by the time appellant submitted to being patted down, testimony that appellant took flight during the pat-down and subsequently threw an object containing a controlled substance should have been suppressed as the fruits of the illegal seizure. Id. at 27-28.

Read the full opinion here.

A copy of this post has been added to the Fourth Amendment section of the (Early) Year In Review (Part 1).

WCC

Ask for sanctions! Convictions affirmed, despite lost and excluded third-party perpetrator evidence.

Ashby, Logan, & Watson v. United States (decided January 10, 2019)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Fisher, and Senior Judge Nebeker. Opinion by Senior Judge Nebeker. PDS for Mr. Ashby. Thomas T. Heslep for Mr. Logan. Margaret M. Cassidy for Mr. Watson. Trial Judge: Herbert B. Dixon.

Facts: Ashby, Logan, and Watson were convicted of multiple offenses in connection with the kidnapping and murder of Carnell Bolden and the shooting of his girlfriend, Danielle Daniels. Around 7 p.m. on December 30, 2009, Daniels dropped Bolden off on W Street N.W. and waited for him to return. When he did not return as expected, Daniels sought him out unsuccessfully. Eventually, someone opened fire on the car, wounding her. The next morning, police found Bolden bound and deceased, having suffered two gunshot wounds to the face.

On January 1, 2010, police went to 70 W Street, N.W. looking for Bolden’s associate Derrick Hill. Logan and his girlfriend occupied and sold heroin from the the top two floors of the house. Hill sold Bolden’s drugs out of the basement, which he rented until November 2009, when he surrendered his keys to everything but the basement. Nevertheless, Logan and his girlfriend told police that Hill lived there and offered to let them look around the basement, which contained Hill’s belongings. Police returned later with a search warrant and documented that the television was missing a cord like one used to bind Bolden.

On January 4, 2010, Hill accompanied police to 70 W Street but could not open the door, which was latched from the inside. On January 11, he told them he had entered and found one of his jackets covered in blood (later determined to be Bolden’s). When they arrived, Hill gave written consent to search the basement again. This time, they found blood stains and duct tape consistent with that used to bind Bolden.

The same day, police arrested Ashby on an unrelated charge, seized his phone, and placed calls with it to learn his phone number. Police later obtained a warrant for the phone’s contents, including its number and call logs, which showed calls to and from Logan and Watson on the night of the murder. Finally, police used Ashby’s number to obtain a warrant for his cell site location information, which placed him near W Street and where police found Bolden’s body.

At trial, the government relied on the aforementioned evidence, Ashby and Watson’s connection to Logan and the W Street house, and the recovery of Bolden’s blood from a nearby car. In addition, Bolden’s acquaintances implicated the defendants. John Carrington testified that Logan had proposed killing Bolden weeks before his murder. Melvin Thomas, who knew both Logan and Bolden through heroin trade, claimed that Ashby had admitted all three defendants’ guilt.

The defendants sought, but were not permitted, to cross-examine Thomas about his motive to kill Bolden and fabricate Ashby’s confessions in light of Thomas’s own alleged drug distribution. Ashby proffered that Thomas and Bolden had competing operations and pointed to ongoing criminal investigations into Thomas’s alleged operation as evidence of his motive to help the government. The trial court barred the proposed cross-examination, ruling that the proffer was insufficient to link Thomas to Bolden’s murder for purposes of a third-party perpetrator defense or to suggest motive to lie.

Holdings:
1. In light of the remedies and sanctions granted, the trial court did not abuse its discretion in denying a missing evidence instruction based on the failure to preserve evidence that someone else used Bolden’s credit cards after his death.

2. Hill had authority to consent to search of the basement apartment.

3. Ashby’s call logs and cellsite location information were not fruits of an illegal search of his phone. The phone information used to obtain warrants for the logs and location information was printed on the “interior hardware” of the phone itself, which police may still access incident to arrest without a warrant after Riley v. California, 134 S. Ct. 2473 (2014).

4. The trial court did not err in (a) admitting Ashby’s alleged statements to Thomas as statements against penal interest, (b) admitting Logan’s alleged statements to Carrington under the state-of-mind exception, or (c) denying severance based on the admission of those statements.

5. Ashby’s proffer was insufficient to allow him to present a third-party perpetrator defense based on Thomas’s competing drug operation. 

6. The trial court did not err in precluding bias cross-examination about Thomas’s involvement in Mr. Bolden’s murder and other serious crimes being investigated at the time of trial. Even if it did, any error was harmless.

7. The evidence that Logan shot Ms. Daniels was sufficient to sustain his assault conviction.

8. The trial court did not err in instructing on the Pinkerton theory of liability.

9. Logan’s PFCV conviction must be vacated because the jury did not announce it in open court.


Of Note: 
- The Court’s opinion underscores the need to seek an array of remedies and sanctions for Brady and Rule 16 violations, including discovery. Here, even after it was clear that the government had lost evidence related to a potential alternate suspect, the government withheld investigative notes related to that missing evidence. The Court holds that the trial court had discretion to deny a more drastic sanction because it correctly ordered the disclosure of those notes, which enabled the defense to attack the integrity of the “investigatory process and conclusions.” Slip Op. at 18.

- The Court does not resolve Ashby’s claim that the police violated Riley by using his phone to make phone calls in an attempt to learn his phone number because it determines that this information bore no “fruit” in the investigation. Slip Op. at 32 (deeming the question “immaterial”).  Given the unsettled nature of this area of law, advocates should continue to argue that “manipulations” of a phone used to generate evidence require a warrant under Riley. WC.

Read the full opinion here.

Newsflash! MPD’s warrantless use of a cell-site simulator constitutes an unlawful search

Jones v. United States (decided September 21, 2017).

Players: Associate Judges Thompson and Beckwith, Senior Judge Farrell.  Opinion by Judge Beckwith.  Partial concurrence/dissent by Judge Farrell.  Dissent by Judge Thompson.  PDS for Mr. Jones.  ACLU and Electronic Frontier Foundation as amicus.  Trial judge: Jennifer M. Anderson.

Facts: Evidence at the suppression hearing established that in October of 2013, officers of the Metropolitan Police Department were investigating two reports of sexual assault.  The complainants in both cases reported that the perpetrator had contacted them by phone to arrange to pay for sexual services in response to advertisements the complainants had posted.  At the arranged meetings, the perpetrator sexually assaulted the women at knifepoint and stole their cell phones.  MPD investigation revealed that each complainant had received a call from the same number during the relevant time periods.  

Police then obtained information about the location of the suspect’s and complainants’ phones from the relevant cell phone companies.  The data they received indicated that one complainant’s phone and the suspect’s phone appeared to be together in the vicinity of the Minnesota Avenue Metro station.  MPD officers took a cell-site simulator to the area and used the device to track the Mr. Jones’s phone.  The signal led them to a parked car.  Inside the car were Mr. Jones and his girlfriend, Nora Williams.  The police arrested Mr. Jones and recovered evidence from his person and his car, and from Ms. Williams.  

Cell-site simulators work as follows: The police first obtain subscriber information and real-time location information from a target’s cell phone service provider to narrow down a search area.  Then police proceed to that area with a cell-site simulator.  When the simulator detects the target phone, it “grabs” the target phone.  The simulator then begins reporting location and signal strength information that can be used to locate the target phone.  Because cell phones are “dumb devices,” as the defense expert put it, and are unable to differentiate between a legitimate cell tower and a cell-site simulator, the simulator induces the phone to divulge its indentifying information.  Slip. op at 16-17.  (The “StingRay” is a popular cell-site simulator produced by the Harris Corporation.  The record in this case does not include the name of the device used against Mr. Jones.  Slip op. at 2 n.2.)  

The trial court denied the suppression motion, ruling that the inevitable-discovery doctrine rendered the exclusionary rule inapplicable.  This appeal follows Mr. Jones’s conviction at trial.

Issue: Whether the government’s use of a cell-site simulator to locate Mr. Jones’s cell phone constituted a search for purposes of the Fourth Amendment.  

Holding: Yes.  The Court distinguished this case from Supreme Court precedent in which location data transmitted by trackers was found not to constitute a search.  See, e.g., United States v. Jones, 565 U.S. 400, 402-03 (2012) (GPS tracker placed on the defendant’s wife’s car); United States v. Karo, 468 U.S. 705, 708 (1984) (tracker placed in container of chemicals the defendants purchased).  Unlike a tracking device, the Court reasoned, a cell-site simulator enables police to locate a person whose whereabouts were previously “completely unknown.”  Slip op. at 15.  “A cell-site simulator allows police officer’s who possess a person’s telephone number to discover that person’s precise location remotely and at will.”  Id. at 17.  Furthermore, unlike a person’s location that can be observed through visual surveillance, the information obtained by a cell-site simulator is not “readily available and in the public view,” Slip op. at 19 (quoting Andrews, 134 A.3d at 348).  Therefore, “under ordinary circumstances, the use of a cell-site simulator to locate a person through his or her cell phone invades the person’s actual, legitimate, and reasonable expectation of privacy in his or her location information and is a search.”  Slip op at 20-21.  As the government’s use of the cell-site simulator to locate Mr. Jones was a search for which the police did not obtain a warrant, their conduct violated the Fourth Amendment.  

Of Note:

The question of whether the government is required to obtain a warrant before using a cell-site simulator to locate a cell phone was an issue of first impression not only here in the District, but virtually everywhere in the country.

The Court considered and rejected the government’s arguments that a warrant was not required:

• Exigent circumstances: The trial court rejected the government’s argument that exigent circumstances justified noncompliance with any otherwise applicable warrant requirement, given the ten hours that elapsed between the sexual assault and Mr. Jones’s arrest.  Slip op. at 11. 

• Inevitable-discovery doctrine: This exception to the exclusionary rule applies if the government can show that the evidence would have been discovered by lawful means.  The lawful process by which the evidence would have been discovered must have commenced before the constitutionally invalid seizure of evidence.  Here, it was undisputed that MPD had only one functioning cell-site simulator, that it could locate only a single phone at a time, and that police were using it to search for Mr. Jones’s cell phone.  Since the lawful search of the complainant’s phone never occurred, it could not have commenced before the illegal search.  Therefore, the inevitable-discovery doctrine did not apply.  Slip op. at 26-30.

• Good-faith exception: Evidence obtained when the police act with an objectively reasonable good-faith belief that their conduct is legal is not subject to the exclusionary rule.  The Court reasoned that it was not reasonable for police to believe that their warrantless use of the cell-site simulator was lawful, given the secrecy surrounding the device and the lack of law on the issue.  Slip op. at 31-34. 

• Change in DOJ policy:  The government argued that a change in Department of Justice policy has made it unlikely that exclusion in this case would deter future police misconduct.  In September of 2015, the DOJ issued guidance requiring law enforcement to obtain a search warrant supported by probable cause before using a cell-site simulator.  According to the government, MPD is bound by this policy.  The Court was not persuaded by this argument, reasoning that there is no precedent for not applying the exclusionary rule based on the government’s representation that it will avoid in future unlawful conduct.  The Court also noted that there is no enforcement mechanism described in the DOJ policy to ensure compliance, and that the policy could be changed by the present administration or a future one. 

The Court determined whether the following evidence should be excluded as “fruits of the poisonous tree:” 

• Mr. Jones’s statement: At the scene of his arrest, police asked Mr. Jones for his address.  He gave the address of one of the sexual-assault complainants.  The government argued that this statement was obtained merely as part of a routine booking procedure, so the rationale for using exclusion to deter police misconduct did not apply.  The Court rejected this argument, reasoning that “very little time and no substantial intervening circumstances” separated the illegal search from Mr. Jones’s statement.  Slip op. at 37-38. 

• Cell phones in Ms. Williams’s handbag: When the police searched Ms. Williams’s handbag, they found two of the complainants’ phones and Mr. Jones’s phone.  The government argued that Mr. Jones had no standing to contest the search of Ms. Williams’s bag, and that Ms. Williams consented to the search.  Applying the factors described in Brown v. Illinois, 422 U.S. 590, 603-4 (1975), the Court determined that the contents of Ms. Williams’s purse constituted tainted fruits: (1) Little time passed between the unlawful search and recovery of the evidence; (2) Ms. Williams’s consent was not a significant intervening circumstance (given that she was faced with the options of consenting to the search or surrendering the purse to the police while they obtained a warrant); and (3) the recovered phones were closely related to the underlying illegality, since the police were using the cell-site simulator to locate the phones.  Slip op. at 39-41.

• Ms. Williams’s testimony: Judge Beckwith applied the four factors articulated in United States v. Ceccolini, 435 U.S. 268 (1978) to determine whether Ms. Williams’s testimony against Mr. Jones at trial was tainted by the illegal search.  Judge Beckwith noted that (1) Ms. Williams was not a willing witness and testified only pursuant to a court order granting her immunity from prosecution; (2) in questioning Ms. Williams, police confronted her with the unlawfully seized cell phones; (3) little time passed between the illegal search and Ms. Williams’s first contact with the police; and (4) the evidence at the suppression hearing did not establish that police would have learned of Ms. Williams without the illegal search.  While the fifth Ceccolini factor – whether the police intended their illegal search to find a witness to testify against the defendant – favored the government, Judge Beckwith found that it was outweighed by the other four factors, and that the testimony therefore constituted a fruit of the unlawful search.  Slip op. at 41-45.  However, as Judge Farrell did not join this portion of the opinion and Judge Thompson dissented, this ruling was not the opinion of the Court.  NG

Read full opinion here.