GPS, The FBI, and the Fourth Amendment

 

 

In 2004, Antoine Jones, owner and operator of a nightclub in D.C. was suspected of trafficking in narcotics. Various investigative leads were used by the DC police and the FBI, including visual surveillance, use of a camera focused on the front door of his club, and a pen register.

Based on information gathered from the sources, the investigators sought a search warrant allowing them to install an electronic tracking devise on a vehicle Jones used, a Jeep Grand Cherokee. The United States District Court for the District of Columbia issued a warrant authorizing the investigators to install the GPS tracking device in the District of Columbia within ten days. Then agents installed the device on the undercarriage of the Jeep on the 11th day, and while the jeep was in a public parking lot in Maryland.

After 28-day’s surveillance, Jones’ associates and stash houses were identified. District Police seized a total of 97 kilos of cocaine and $850,000. Jones and several of his co-conspirators were indicted, tried, and convicted in 2007.  They were sentenced to life in prison.

On appeal, the government had to concede they did not comply with the terms of the warrant, so they argued that a warrant was not needed. All 9 justices disagreed, for three different reasons. The main argument was that Jones’ vehicle was on a public street and there was no reasonable expectation of privacy.

The Justices also took the position that police already had probable cause (which they needed for the warrant).  This probable cause was usually sufficient to search a car on the roadway, but that argument failed as it was not made to the lower court. Another position argued below was that it was not Jones’ car, as it was registered to his wife.  That argument was also waived as not being raised in the Supreme Court.  What was the ruling?

Five justices said the government trespassed upon private property (the undercarriage), similar to a constable hiding in the baggage compartment to see where it was going, or to overhear the conversations of the passengers, something which would have violated the constitution at the time it was first adopted.

Four others felt Jones did have a reasonable expectation of privacy in the use of the long term GPS tracking of his movements. One of the five, agreeing with the trespass holding, was more concerned with short term tracking, finding it invasive to see if a person visited a psychiatrist, an abortion clinic, a criminal defense attorney, a gay bar, an AIDS treatment center, which house of worship you go to or a pay by the hour motel.

What do we learn from this case? Comply with the conditions of the warrant. Serve it in the jurisdiction, and within the time frame. The court left open the question of the modern technology that would also allow tracking without actually placing a device on the car, with or without a warrant. U.S. v. Jones, January 23, 2012

David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with of the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigations, and Criminal Law, at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida.  He also taught for twenty years at the Homicide Seminar for the Southern Police Institute. His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first degree murder. He is the author of the Search and Seizure Handbook, 3/ed.  It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall.

Learn more about this article here:

http://www.amazon.com/David-M.-Waksman/e/B001JRV3Q8

– See more at: http://www.lawenforcementtoday.com/2012/09/24/gps-the-fbi-and-the-fourth-amendment/#sthash.w0UcIBKb.dpuf

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Judge dismisses federal lawsuit over "forced catheterization"

 

 

Updated: 10:38 am | Published: 12:27 am

Reported by: Jonelle Merrill
Written by: Jonelle Merrill

Gavel (ABC 4 News)

Gavel (ABC 4 News)

SANPETE COUNTY, (ABC 4 News) – A federal judge has dismissed a lawsuit involving a young man who believes his constitutional rights were violated when police forced a catheter inside him.

Stephan Cook, 22, brought the lawsuit against several law enforcement officers in Sanpete County and Ephraim City, claiming that they performed a forced catheterization on him, after he refused a drug test in 2008 while attending Snow College.

As the plaintiff in the case, Cook claims the incident in question started on a quiet side road in Ephraim where he was parked smoking cigarettes inside a car with friends. Cook says police officers approached the car, suspecting the young men were smoking marijuana.

“When they approached us, they said it smelled like marijuana, but we said no, we’re smoking cigarettes and we just put the cigarettes out like you asked us to,” says Cook.

Cook refused to offer a urine sample after the cops demanded it numerous times. He adds that he repeatedly asked for an attorney to be present.

 
After obtaining what Cook’s attorneys call a “botched” search warrant, he was forced by police to be catheterized at Sanpete County Hospital.

“The nurse told the officers to hold my shoulders while they catherized me, and after that they took me straight to jail,” said Cook.

According to the attorneys, Sanpete County Hospital still has not produced the urine sample as evidence, or even a record of Cook coming to the hospital. They say it further adds to their belief that the law enforcement agencies involved did not follow correct procedure.

 
Criminal defense attorney Lindsay Jarvis calls the forced catheterization the ultimate violation of her client’s civil rights. “I would say anybody who’s in that position would feel as though they were sexually assaulted – yes. You’ve got a female nurse who is unbuttoning his pants while another individual holds him down. And then, they stick an object into his private parts.”

Prior to filing his civil lawsuit, Cook fought the case in criminal court, where he accepted a plea of abeyance. The agreement allowed him to admit to one count of possession of marijuana and a fine, in exchange for dropping the rest of the charges against him. According to Cook’s legal team, the federal judge dismissed his civil lawsuit partially due to the fact that Cook had previously admitted guilt. However, both Cook and his attorneys say the plea of abeyance was made under duress. The attorneys, who plan to appeal, say the ruling to dismiss the case on those grounds is just plain wrong. “Irrespective of whether he committed this crime, that’s irrelevant to whether they’re entitled to forcibly catheterize him,” said attorney Justin Heideman.

Peter Stirba, defense counsel for the Sanpete County officers issued this statement in response to the dismissal of the lawsuit: “The officers’ behavior was fully justified and certainly was not violative of any of Mr. Cook’s constitutional rights.”

Cook’s mother who is a fellow police officer for a different city strongly opposes the defense counsel’s statement, calling this a matter of police brutality.

“This is a story of contemptive cops. He (Stephan) wouldn’t voluntarily pee, and they were gonna do whatever it took to get his urine – period,” said Stephan Cook’s mother Holly Ziegenhorn.

Cook wants to keep fighting and move forward with an appeal. He says he does not want another person to have to go through what he did. “I never wanted this to happen. I’m willing to stand up for everybody else who can’t,” said Cook.

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A convicted drug trafficker will get a new trial after a state appeals court overturned his conviction

 

Man Central To Supreme Court Case Wins Trial

Posted: Sep 30, 2012 4:29 PM

LOUISVILLE, Ky. (AP) – A convicted drug trafficker from Honduras who won a 2010 U.S. Supreme Court ruling will get a new trial after a state appeals court overturned his conviction because his attorney gave bad advice about deportation.
The Kentucky Court of Appeals on Friday ordered a new trial for Jose Padilla, a native of Honduras and permanent legal resident of the United States. Judge Kelly Thompson wrote for a three-judge panel that Padilla’s attorney improperly told him that deportation wouldn’t be a concern when he pleaded guilty to transporting 1,000 pounds of marijuana.
Thompson concluded that because Padilla wasn’t properly informed about possible deportation, his decision to accept a guilty plea and five-year prison sentence wasn’t rational.
“There was substantial evidence that had Padilla been properly informed that if he pleaded guilty he faced mandatory deportation, he would have insisted on going to trial,” Thompson wrote. “Under the circumstances, his decision would have been rational.”
The attorney’s advice became central to the U.S. Supreme Court’s decision in 2010, in which it concluded that the attorney’s advice was unconstitutionally bad. The case has made an impact on plea agreements and immigration cases around the country.
The high court at the time did not decide whether the ruling would apply retroactively, sending the case back to Kentucky for a determination about whether Padilla would be allowed to benefit from the case.
Padilla, a U.S. military veteran who received an honorable discharge after serving in Vietnam, was driving 32,000 pounds of cargo from California to Illinois. For unexplained reasons, he passed through Kentucky and was stopped in Hardin County, near Elizabethtown. A police search of his truck turned up 23 boxes of marijuana stacked near the rear of his load.
After being told that deportation wasn’t an issue, Padilla agreed to the guilty plea. Only later, after being paroled from state prison, did Padilla learn he was going to be returned to Honduras.
Hardin Circuit Judge Kelly Easton ruled that Padilla made a reasonable decision to take a plea, despite the errant advice from his attorney. Padilla appealed, hoping to withdraw the guilty plea and work out a deal that wouldn’t result in deportation.
Thompson found that Padilla had several valid defenses he could have used with proper attorney advice. Thompson ruled that Padilla could still be convicted and deported to Honduras, which would take him away permanently from family living in California.
“However, for Padilla, exile is a far worst prospect than the maximum ten year sentence,” Thompson wrote.
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Follow Associated Press reporter Brett Barrouquere on Twitter: http://twitter.com/BBarrouquereAP

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