Following denial of his suppression motion, defendant pleaded guilty to possession of marijuana for sale. Defendant had approached the Needles, California plant quarantine inspection station in a vehicle bearing Michigan license plates. The quarantine officer, feeling that a more detailed inspection was necessary, identified himself and requested to look into defendant's vehicle trunk. Defendant opened the trunk for the officer's inspection. Inside were 200 to 300 pounds of marijuana wrapped in plastic. The officer reached in and took a pinch of the substance to inspect it. He discussed the substance with defendant and they agreed that it appeared to be compost, although the officer in fact suspected that it was marijuana. The officer gave defendant a clearance slip and defendant drove away. The officer then contacted the California Highway Patrol, showed them a sample of the substance, which had fallen to the ground during the inspection of the trunk, and the Highway Patrol thereafter apprehended defendant. (Superior Court of San Bernardino County, No. VCR 517, Joseph A. Katz, Judge.)

The Court of Appeal affirmed the conviction, holding the quarantine officers may stop motorists at inspection stations and request to look into the trunks of their vehicles without a warrant or probable cause, and that if the motorist voluntarily opens the trunk, the quarantine officer may look therein and remove any plant materials in plain view for further inspection. The court rejected defendant's suggestion that a sign should be placed at inspection stations or quarantine officers should advise motorists that they may refuse to give their consent to any search. (Opinion by Gardner, P. J., with McDaniel and Morris, JJ., concurring.)


Read full case here: People v. Dickinson, 104 Cal. App. 3d 505, 163 Cal. Rptr. 575 (Ct. App. 1980), https://law.justia.com/cases/california/court-of-appeal/3d/104/505.html

https://en.wikipedia.org/wiki/California_Border_Protection_Stations

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Police stopped Robert Lidster at a checkpoint set up to find information about a recent hit-and-run accident. Lidster was arrested, and later convicted, for drunk driving. Lidster successfully appealed his conviction to the Illinois Appellate Court. It relied on the U.S. Supreme Court's decision in Indianapolis v. Edmond (2000) holding that a checkpoint is unconstitutional if its only purpose is to uncover "ordinary criminal wrongdoing." The Illinois Supreme Court affirmed.

Does Indianapolis v. Edmond, which dealt with the Fourth and 14th Amendment prohibitions of unreasonable searches and seizures, prohibit checkpoints organized to question motorists about a previous offense and arrest motorists for drunk driving?

No. In an opinion delivered by Justice Breyer, the Court held 6-3 that the Illinois checkpoint did not violate the Fourth Amendment's prohibition of unreasonable searches and seizures and was constitutional. It ruled that the checkpoint was reasonable because it advanced a "grave" public interest - "investigating a crime that had resulted in a human death" - and interfered minimally with Fourth Amendment liberty. The Court distinguished Illinois's "information-seeking" checkpoint from the "crime control" checkpoint struck down in Edmond. Justices Stevens, Souter, and Ginsburg - while agreeing that Edmond does not invalidate the Illinois checkpoint - dissented from the majority's decision granting constitutional approval to the checkpoint. They argued that the case should have been remanded to the Illinois courts.

Read the full case here: Illinois v. Lidster, 540 U.S. 419 (2004), https://supreme.justia.com/cases/federal/us/540/419/#tab-opinion-1961418

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Homeland Security Investigations and Customs and Border Protection have credible information that an individual in the Baja California border region (the “Recruiter”) has placed help wanted advertisements on Facebook seeking persons to transport currency across the border.

Credible information indicates at least some individuals who responded to the ads and drove vehicles across the border were not told they were instead smuggling aliens into the United States.

Based on the investigation, there are a few common characteristics linked to the Recruiter:
􀁸 After a person responds to one of the advertisements, they typically encounter a person that identifies him- or herself as “Javier,” “Javier Alberto,” “Alberto,” “Sandra,” “Sarahi,” or “Omar.”
􀁸 The Recruiter uses a few common telephone numbers, each with a 664-area code, to communicate with drivers.
􀁸 The Recruiter instructs drivers to meet at a convenience store on Boulevard Padre Kino in Tijuana before the drivers cross the border.
􀁸 The amount the Recruiter pays drivers varies but is often between $500 and $1000 per crossing.

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We review questions of probable cause de novo, but with "due weight to inferences drawn from [the] facts by resident judges and local law enforcement officers." Ornelas v. United States,517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We need only find that the issuing magistrate had a substantial basis for finding probable cause. Illinois v. Gates,462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In making this determination, a magistrate judge must assess the totality of the circumstances and make a "practical, common-sense decision." Id. at 238, 103 S.Ct. 2317. Under the totality of the circumstances test, otherwise innocent behavior may be indicative of criminality when viewed in context. See United States v. Ocampo,937 F.2d 485, 490 (9th Cir. 1991). Additionally, issuing judges may rely on the training and experience of affiant police officers. United States v. Gil,58 F.3d 1414, 1418 (9th Cir. 1995).

When a magistrate judge issues a search warrant for a residence, he must find a "reasonable nexus" between the contraband sought and the residence. United States v. Rodriguez,869 F.2d 479, 484 (9th Cir. 1989). In making this determination, a magistrate judge need only find that it would be reasonable to seek the evidence there. United States v. Terry,911 F.2d 272, 275 (9th Cir. 1990).

The Knock and Announce Rule allows an officer to "break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance. . . ." 18 U.S.C. § 3109. Officers can infer constructive refusal to admit from silence, but only after a "significant amount of time." Granville,222 F.3d at 1218 (internal quotation marks omitted). There is no established time that the police must wait; instead, the time lapse must be reasonable considering the particular circumstances of the situation. See United States v. Banks,282 F.3d 699, 703-05 (9th Cir. 2002); McClure v. United States,332 F.2d 19, 22 (9th Cir. 1964) (concluding that a 4 to 5 second wait was justified when police heard someone running away from door). When evaluating reasonableness, we consider such circumstances as (1) the size and layout of the residence; (2) the time of day; (3) the nature of the suspected offense; (4) the evidence demonstrating guilt; and (5) the officers' other observations that would support forced entry. See Banks,282 F.3

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Upon this evidence, and knowing that the box was at the airport in the possession of DEA agents, the magistrate issued a warrant for a search of Hendrick's residence at N. Sidney. Although the warrant states that "on the premises known as 2835 N. Sidney . . . there is now being concealed . . . a . . . cardboard box [containing cocaine]," (emphasis added) it further states "this search warrant is to be executed only upon the condition that the above described box is brought to the aforesaid premises" (emphasis added).

In making the determination as to probable cause, our role is limited to "ensuring that the magistrate had a `substantial basis for . . . conclud[ing]' that probable cause existed." Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). The Supreme Court has stressed that "courts must continue to conscientiously review the sufficiency of affidavits in which warrants are issued," Gates, 103 S.Ct. at 2332, see Leon, 104 S.Ct. 3422-23. The condition inserted into the warrant by the magistrate, that the warrant was not to be executed until the suitcase arrived at the house, is the principal source of our concern in this case.

If the suitcase had been in the house, or if probable cause existed to believe it was there, issuance of the warrant would have been proper. However, at the time the warrant was issued, the magistrate knew the suitcase was in the possession of the agents, not at the house. The agents, by calling Hendricks to come for the suitcase tried to ensure that the condition subsequent inserted into the warrant would happen. However, at the time the warrant issued and, in fact, until the suitcase was actually brought to the house, there was no certainty that it would ever be brought there.

Read the full case here: United States v. Hendricks, 743 F.2d 653, 654 (9th Cir. 1984), https://casetext.com/case/united-states-v-hendricks-2

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The Ninth Circuit has repeatedly affirmed searches of homes of suspected drug dealers even where there is no direct evidence linking the homes to illegal activity, because the presence of evidence in a drug dealer's home is a reasonable inference to draw. See, e.g., United States v. Fannin, 817 F.2d 1379, 1381–82 (9th Cir.1987); United States v. Angulo–Lopez, 791 F.2d 1394, 1399 (9th Cir.1986); United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.1985). The government argues that this caselaw can and should be extended to drug users, especially since Inspector Lau stated in his affidavit that it is “common” for drug users to have additional drugs and paraphernalia at their residences.

Such an affidavit is available in every case. In effect, the government is looking for a bright-line rule that the police have probable cause to search the house of any person found with any amount of illegal drugs anywhere. This would be a significant extension of the case law, taking it beyond the bounds of what is permitted by the Fourth Amendment. The Ninth Circuit has held that “probable cause that a resident of the location has committed a crime is in itself insufficient to satisfy” the requirement that evidence probably will be found at the locations to be searched. See United States v. Fernandez, 388 F.3d 1199, 1254 (9th Cir.2004); United States v. Gil, 58 F.3d 1414, 1418 (9th Cir.1995). Drug dealing and drug using are categorically different crimes. To extend the exception in Fannin and Angulo–Lopez is to eviscerate the rule stated in Fernandez and Gil. See United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.1970) (explaining that if mere probable cause to arrest a suspect also established probable cause to search the suspect's home, there would be no reason to distinguish search warrants from arrest warrants). The search warrant in this case was facially invalid.

Read the full case here: United States v. Garcia, 809 F. Supp. 2d 1165 (N.D. Cal. 2011), https://casetext.com/case/us-v-garcia-335

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The general rule in the Ninth Circuit concerning knock and talk encounters is:

Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's "castle" with the honest intent of asking questions of the occupant thereof-whether the questioner be a pollster, a salesman, or an officer of the law. Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964). In other words, a knock and talk is a consensual encounter. Consensual encounters between police officers and citizens are not seizures. See Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In Cormier the Ninth Circuit identified two sets of coercive circumstances that would transform a knock and talk into a seizure: (1) if the police compelled an occupant to open the door under the badge of authority and (2) if the police were unreasonably persistent in attempting to gain entry. Cormier, 220 F.3d at 1109 (citing United States v. Winsor, 846 F.2d 1569 (9th Cir. 1988) (en banc), and United States v. Jerez, 108 F.3d 684 (7th Cir. 1997)). The court further noted that a nighttime encounter weighs in favor of a seizure. Id. at 1110.

In this case, the police unreasonably persisted for approximately two and a half minutes in loud knocking rising to the level of heavy pounding on doors and windows in summoning Defendant to the door. By all indications they were not leaving until and unless Defendant came to the door. The duration and volume of the knocking was far more than necessary to announce their presence to anyone inside and greatly exceeded the knocking that, at 9:00 at night in this community, a reasonable person would take as an invitation to answer or not. As a whole, the officers' conduct was of an entirely different character than that of a neighbor or salesman on an ordinary visit. Although Detective Torres did not employ literal words of command, his announcement that the police wanted someone to come to the front door to speak with them when coupled with the unreasonably loud and persistent knocking would be taken by a reasonable person as an order, as indeed Defendant did take it. Certainly the police officers "convey[ed] a message that compliance with their requests was required." Bostick,

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It is well established that, even when officers have probable cause to believe that contraband is present in a home, a warrantless search of the home is unlawful unless exigent circumstances exist at the time of entry. See Payton v. New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The government bears the burden of demonstrating exigent circumstances that overcome their presumptively unreasonable entry. See Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). And exigency is determined at the moment the search occurs. See United States v. Reed, 935 F.2d 641, 643 (4th Cir. 1991) (per curiam). This court has enumerated five factors that district courts should consider in determining whether an exigency existed at the time a search commenced:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) the officers' reasonable belief that the contraband is about to be removed or destroyed; (3) the possibility of danger to police guarding the site; (4) information indicating the possessors of the contraband are aware that police are on their trail; and (5) the ready destructibility of the contraband. Turner, 650 F.2d at 528.

It is well established that a search occurs for Fourth Amendment purposes "when officers gain visual or physical access to a . . . room after an occupant opens the door not voluntarily, but in response to a demand under color of authority." United States v. Conner, 127 F.3d 663, 666 (8th Cir. 1997).

The officers here likewise offered no justification for not seeking a warrant prior to knocking on the door, other than the slight delay or inconvenience that obtaining a warrant might have caused, reasons Johnson held were not sufficient. See id. Thus, although the officers had every right to knock on Mowatt's door to try to talk to him about the complaint, see United States v. Cephas, 254 F.3d 488, 494 (4th Cir. 2001), without a warrant, they could not require him to open it.

Read the full case here: U.S. v. Mowatt, 513 F.3d 395 (4th Cir. 2008), https://casetext.com/case/us-v-mowatt

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