Legal Update for ICAC
Investigators
February 26, 2015
Chuck Gillingham
Webinar Information
This webinar is supported by grant 2013-MC-FX-K104,
provided by the Office of Juvenile Justice and
Delinquency Prevention (OJJDP), and is brought to you by
the ICAC Training & Technical Assistance Program. Points
of view or opinions in this document are those of the
author and do not necessarily represent the official
position or policies of the U.S. Department of Justice or
Fox Valley Technical College.
ICAC Training & Technical Assistance is a program of the
Fox Valley Technical College-National Criminal Justice
Training Center (NCJTC).
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4th Amendment
• Expectation of Privacy
• Trespass
Plain View
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Legal right to be where you are
Anything you see in Plain View is fine
NOT a search
Cannot necessarily search contemporaneous
to plain view sighting
Trespass
Jones GPS
FLORIDA V. JARDINES
PC For Electronic Search?
• D is accused of molest at mall.
• D is ID’d and has molest and CP possession
priors
• Officer says based on prior and CP possession
D is a person who will possess CP
• Nothing More
• Yes/NO?
Suppressed
• D molesting children without any link to CP is
not sufficient for PC
• U.S. v. Needham (9th Cir 2013) 718 F.3d 1190
• See also Dougherty v. City of Covina (9th Cir
2011) 654 F.3d 892
• Followed throughout Country
Fernandez v. California
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Gang Tip
DV
D says no search
D taken in
Discover he is gang suspect and go back
Consent given by girlfriend
USSC says fine
133 S. Ct. 1126
Name this defense
• Victim/Officer initiated discussion of sex. D
claims no interest in sexual activity. “I was just
going along with victim. She started it and it was
all her idea.”
Entrapment
Entrapment
•
•
Two elements to the entrapment defense:
– government inducement of the subject to
engage in criminal conduct;
– the subject’s lack of predisposition to
engage in such conduct
U.S. v. Gifford, 17 F.3d 462 (1st Cir. 1990)
Entrapment
• Key factor: defendant’s eager and prompt
response to sting (government solicitation). See,
for example, U.S. v. Byrd, 31 F.3d 1329 (5th Cir.
1994); U.S. v. Gendron, 18 F.3d 955 (1st Cir. 1994)
• But see U.S. v. Gamache, 156 F.3d 1 (1st Cir. 1998)
(reversed for not giving entrapment jury
instruction)
Entrapment
• Entrapment jury instruction not warranted where
the agents merely offered the subject the
opportunity to order child pornography through
the mails, and subject promptly and affirmatively
responded.
• Jacobson v. U.S., 503 U.S. 540 (1992)
Particularity
•
•
•
•
U.S. v. Richards 659 F.3d 527 (2011)
READ THIS CASE
Search of a server
Issue was how much does one get to look at
that is not related to the suspect.
• The court held that the SW that allowed
search of the server was particular enough.
Property Description
• Define property to include all forms of
evidence
– Use terms Documentary / Magnetic /
Optical media
– Include standard boilerplate computer
equipment language (carefully edited to
exclude what you do not need)
• Description of property must be clear enough
so that any police officer can identify which
property is covered by the warrant.
Questions?
Knock & Talk
• Deception generally allowed in UC
investigations.
• But, deception to gain entry or consent?
• Voluntary consent???
Knock & Talk,
Three categories, # 1
The Defendant is left with the impression that his consent cannot be lawfully
withheld.
The resulting consent is not "the product of an essentially free and unconstrained
choice."
Bumper v. North Carolina, 391 U.S. 543, 550, 88 S. Ct. 1788, 20 L. Ed. 2d 797
(1968) .
Knock & Talk
Three categories, #2
Police inform the person of certain dire or exigent
circumstances and request permission to enter/search for the
purpose of investigating or addressing those circumstances.
A person is "deprive[d] . . . of the ability to make a fair
assessment of the need to surrender his privacy," and therefore
the resulting "consent “ should not be considered valid."
Wayne R. LaFave et al., Criminal Procedure § 3.10(c) (3d ed.
2007).
Knock & Talk
Three categories, 2
United States v. Giraldo, 743 F. Supp. 152
(E.D.N.Y. 1990), LE disguised as gas company
workers asked permission to enter to check for
a gas leak.
The consent was considered involuntary under
these circumstances because the "defendant
was led to believe there was a life-threatening
emergency," and that his consent to search was
required to prevent a impending calamity.
Knock & Talk
Three categories, 3
• Consent was found to be voluntary despite some form
of deception by law enforcement. Almost exclusively
populated by cases in which the deception in question
was the use of an undercover agent who obtained
otherwise voluntary consent through the use of his
adopted identity.
• Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424,
17 L. Ed. 2d 312 (1966)
Knock & Talk
9th Circuit Rule
The Ninth Circuit has articulated a broader, per se rule that
"access gained by a government agent, known to be such by
the person with whom the agent is dealing, violates the fourth
amendment's bar against unreasonable searches and seizures if
such entry was acquired by affirmative or deliberate
misrepresentation of the nature of the government's
investigation." United States v. Little, 753 F.2d 1420, 1438 (9th
Cir. 1984). This approach appears to have been adopted by
several other courts. SEC v. ESM Government Secs., Inc., 645
F.2d 310, 316 (5th Cir. 1981)
Knock & Talk Example
• “I am doing a illegal downloading
investigation”--OKAY
• “I am here on an identity theft investigation”--NO
Miranda
Miranda
U.S. Supreme Court recently set forth
two “bright line” rule cases
Both remove any ambiguity in the area
and are helpful to us
All Miranda cases are very fact specific
Miranda
Invocation of the right to remain silent
Berghuis v. Thompkins
Must be unambiguous
USSC changed the law to comport with
the right to an attorney
130 S. Ct. 2250
INVOKING MIRANDA
• REMAIN SILENT
– Only by clear and express request to re main silent
• RIGHT TO ATTORNEY
– Only by clear and express request for an attorney
• ALL QUESTIONING MUST CEASE
WAIVERS
• EXPRESS
– Specific Words
• IMPLIED---Totally fine. Same case Berghuis
– Conduct
• CONDITIONAL
– Limitation on Questioning
Invocation?
• “Can you tells us what happened” “I can’t.”
• “I don’t know if I wanna talk anymore”
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–
–
–
How did it go down?
Well I did it all, it was self defense
I know, but tell me
Do I still gotta tell you after I admit it?
• I don’t know what you, I don’t want to talk about
this. You are getting me all confused. I don’t even
know what you are talking about.
Invocation?
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•
•
•
Would you like to quit the interview now?
Nods head
Maybe I should talk to a lawyer
You have the right to a lawyer
• “There aren’t any running around here now, would
there?”
• Do you think I need a lawyer?
• I don’t know if I need an attorney.
Invocation?
• I’ll take the 5th.
• Having these rights in mind….
– I ain’t go nothing to say
• Want to talk to me about a burglary
– I don’t want to talk about a burglary
• Do I need a lawyer?
– I don’t know, do you?
Invocation?
• "I need to know, am I being charged with this,
because if I'm being charged with this I think I
need a lawyer.” "Well at this point, no you're
not being charged with this,"
• Officer was sure they were going to charge D
and DA in next room monitoring the interview.
• NOT AN INVOCATION D NOT YET ARRESTED
Invocation
• Juvi request for a parent.
• Juvi request for a parent “to let her know
what is going on” not an invocation.
• Implied waiver for juvi is fine
Anticipatory Waiver
• Officers contact suspect on street. He is 6f and
arrested. He immediately asks for attorney
when informed of arrest. What do you do?
• Read him his rights, get a waiver and question
him
• Cannot invoke rights you don’t have
Miranda
Maryland v. Shatzer
Addresses when you can reinitiate
questioning with a suspect who has
invoked right to an attorney
130 S. Ct. 1213
What about right to remain silent?
Miranda
Illegal two-step?
What is the two-step?
Is it illegal---YES, DON’T DO IT!
What the two step is NOT!!
Re-initiation by D
• 4 steps
• Contact initiated by D, not you. Although you
can give D opportunity
• Free and voluntary contact by D—no
threats/coercion etc.
• D open to general questioning—not specific to
procedure etc. must be open to all
questioning
• MIRANDA WAIVER
Miranda
Implied Waiver—Totally OKAY Berghuis
v. Thompkins
New 5th Amendment Case
• SALINAS V. TEXAS 133 S.Ct. 2174
• Pre Custody Pre Miranda Silence
• California
• People v. Tom 2014 DJDAR 10881
• Post Custody/Pre Miranda Silence can be used
Poll Question
Search Incident to Arrest
NO MORE
Cell Phone Warrant Overbroad
• U.S v. Winn 2015 W.L. 553286—Monday
• SW for cell phone
• Suspect seen taking pics of young girls in
public while touching himself.
• SW asked for all evidence of public indecency
stored inside it.
• Cellbrite—312 images 25 videos with CP
Winn cont.
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•
•
•
•
Judge found 2 problems
Did not limit type of evidence, asked for “all”
Not jpg, videos etc
Second,
Judge found police did not have PC to believe
everything on phone was evidence of the
crime of public indecency
• Used template, court complained it wasn’t
narrowly tailored
Winn cont.
• Judge said based on evidence only PC to
search for photos and video
• Judge then said even if they asked for photos
and video it would have been suppressed
• Not particular as it should have been
• Should have been limited to the day and
describe V’s and scene
Navarette v. California
134 S. Ct. 50 (2013)
• 911 call after near collision
• Officer locate vehicle and stop suspect
• Defense argues no RS because anonymous
911 call
Navarette cont.
• Court held 911 call had indicia of reliability
– Specific info about truck
– Same area
– Short amount of time between near collision and
911 call
– Near collision provides RS of impaired driving
– RS can be innocent behavior
• PO’s do not need to wait for more poor driving
to make stop
Probable Cause
• Fair Probability or Substantial chance
• Of criminal activity
• NOT ACTUAL showing of criminal activity
Cell Tower Dump
• 11 th Circuit found a reasonable expectation
of privacy and required a warrant
• General rule is that electronic evidence from
ISP’s, telecommunication etc is not subject to
suppression U.S. v. Davis
• En Banc hearing this week, Tuesday
• 5th Circuit held otherwise in July of 2013—not
per se unconstitutional w/o warrant
Presently, safest route is a search warrant.
Cell Tower cont
• Florida says reasonable expectation of privacy
in real time—ie need warrant or exigency
• Fourth Circuit pending decision on historical
cell site info.
• Of course, U.S. v. Skinner 6th Circuit also
suggested cell site data is not protected. But
that case said pinging a phone needs warrant.
Questions?