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US Supreme Court Allows Police to Take DNA When Person Is Arrested

The United States Supreme Court has held that when officers make an arrest for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is permissible under the Fourth Amendment.

The case is Maryland v. King.

This is significant in Ohio, as the Ohio Supreme Court has held that a person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample, and may not object to its use by the state in a subsequent criminal investigation.

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“Legal Reasoning Has Plunged off the Slippery Slope:” Police Officers May Enter Home to Make Arrest for Minor Traffic Violation.

An Ohio Court of Appeals has permitted police officers to enter a private home to make an arrest for a minor traffic violation.  Once in the home, any evidence of crimes observed could be used against an occupant.

The case is State v. Lam, 2013-Ohio-505.

The Defendant was arrested by Dayton police officers.  The officers had observed the Defendant’s brother driving a gold Intrigue; they were aware of the brother’s criminal history and also were aware that the Defendant and his brother had “possessed firearms and drugs during past contacts with the police.” Continue Reading →

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Search of Cell Phone Prohibited by Ohio Supreme Court Not Followed by Kansas Court

On the Stockycat Blog, I note a Kansas Court of Appeals decision that declined to follow the Ohio Supreme Court on whether police may search the contents of a cell phone incident to an arrest without a warrant.

The case is STATE OF KANSAS v. TOMMY RAY JAMES, No. 106,083 (November 9, 2012).

The Defendant was convicted of possession of marijuana with the intent to sell and other related offenses.  He was sentenced to 30 months in prison.

The defendant was stopped while driving his car because he had a headlight out.  The deputy smelled the odor of alcohol coming from the vehicle and the defendant later admitted he had been drinking.  He was arrested.  A search of the vehicle revealed a plastic bag containing approximately a half pound of marijuana. The defendant told the Deputy that the marijuana might belong to his brother. The Defendant suggested that he could call his brother and said that he was “pretty sure” the number was in his cell phone. The defendant, who was in handcuffs, then allowed the Deputy to retrieve the cell phone from his pants pocket. The deputy asked “are there going to be any text messages on here relating to drug sales?”  The Defendant said no.

The Deputy proceeded to look at the cell phone and found incriminating text messages:  “U got green I will meet U somewhere;” “Hey T-Ray this is Cotie. U got a 20?”

The defendant argued that the police violated his constitutional rights under the Fourth Amendment to the United States Constitution by searching the text messages on his cell phone without a warrant. In response, the State contends that the search of the text messages was part of a valid search incident to arrest.

My views on this issue can be found in this law review article.

The court noted that the scope of a search incident to a lawful arrest extends to containers found on an arrestee’s person. The court relied on United States v. Robinson, 414 U.S. 218 (1973), a case where the Supreme Court found that a law enforcement officer had the right to inspect a cigarette package found on an arrestee’s person incident to a lawful arrest.  The court found that “the weight of authority applies Robinson to cases involving the search of a cell phone— including the viewing of text messages—seized from an arrestee incident to arrest.”

The court did note that “there are jurisdictions that have found searches of cell phones incident to arrest to be illegal.”  In reviewing the Ohio case on this issue, State v. Smith, 124 Ohio St. 3d 163 (2009), the court acknowledged that the Ohio Supreme Court has held that a warrant was necessary to search a defendant’s cell phone because a cell phone is not a container “capable of holding other physical objects.” The court said in regards to this decision:  “We do not necessarily agree with the premise that the information kept on a cell phone should be treated differently than information written on a piece of paper found on an arrestee’s person.”

The court addressed concerns about the privacy implications of the decision:

The issue in dispute is not whether an individual has a reasonable expectation of privacy in the text messages found on his or her cell phone. Likewise, the issue in this case does not involve the recovery of sophisticated data from a cell phone. Rather, the issue presented is whether the scope of a search incident to a lawful arrest includes text messages contained in cell phones found on an arrestee’s person.

We recognize that many cell phones, tablets, and similar electronic devices are capable of storing a wealth of personal information. But we find that the Fourth Amendment and the exceptions to the warrant requirement adequately protect such information from unreasonable search and seizure. Accordingly, we conclude that as part of a search incident to arrest, it is reasonable for a law enforcement officer to view the text messages contained in a cell phone found on an arrestee’s person for evidence probative of criminal conduct. (Citations omitted.)

The court rejected the defendant’s other arguments challenging his conviction and affirmed his sentence.

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OH SCT: Person Does Not Have Expectation of Privacy in DNA Profile Kept by Law Enforcement

In a significant opinion for law enforcement, the Ohio Supreme Court has held that a person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample, and may not object to its use by the state in a subsequent criminal investigation.

The case is State v. Emerson, Slip Opinion No. 2012-Ohio-5047.

The case involves that The Combined DNA Index System (“CODIS”).  This is a database of DNA profiles obtained from convicted offenders, forensic samples, suspects, missing persons, unidentified remains and relatives of missing persons.

In 2005 the defendant was accused of rape.  Law enforcement officers obtained his DNA pursuant to a search warrant.  The DNA profile was placed into CODIS and remained there even after he was acquitted of the charges.

In 2007, the Defendant’s DNA matched a DNA sample found at a murder scene.  He was, as a result, charged with aggravated murder and other offenses.

The defendant argued that the use of the DNA sample in the database violated the Fourth Amendment because he has a reasonable expectation of privacy in the DNA profile obtained from his sample.  The Fourth Amendment applies, and a person has standing to object to the warrantless use of evidence, when the person has a reasonable expectation of privacy in the evidence seized.

To determine whether a person has a reasonable expectation of privacy, the court applies a two part test.  First, the person must subjectively expect of privacy.  Second, society must be willing to recognize that expectation as reasonable.

The court noted that a “person has a legitimate expectation of privacy in his or her bodily fluids.”  However, the sample in this case obtained lawfully pursuant to a warrant.  The question is whether that expectation of privacy extends to a DNA profile.  The court noted that a “DNA sample and a DNA profile  are not one and the same.”  The court explained:

a DNA sample is processed by  a specialist to obtain the DNA profile. . . .  Once the sample is processed, a record is made of the profile.  Accordingly, this scientific process results in a record separate and distinct from the DNA sample.  Because a scientific process must be performed on a DNA sample by an agent of the government to obtain the DNA profile, and the DNA profile is separate and distinct from the DNA sample, we conclude that the DNA profile obtained from appellant’s DNA sample was the work product of the government.  

As a result, a defendant has no “possessory or ownership interest in the DNA profile.”  Significantly, the state permits a person to request expungement of the profile from CODIS.  The defendant did not do so.  As a result, the court concluded that the defendant “did not manifest a subjective expectation of privacy in the profile, at least to the extent that it remained in the possession of the state for criminal investigatory purposes.”

The court also concluded that, even if the person had a legitimate subjective expectation of privacy in the DNA profile, society would not recognize this expectation as reasonable.  Citing Maryland and New York cases, the court concluded that “Although, human blood, with its unique genetic properties, may initially be quantitatively different from such evidence, once constitutional concerns have been satisfied, a blood sample is not unlike other tangible property which can be subject to a battery of scientific tests.”  The court reasoned that “retention by the state of a DNA profile for possible future comparison with profiles obtained from unknown samples taken from a victim or a crime scene does not differ from the retention by the state of fingerprints for use in subsequent investigations.”

The state was free to use the DNA sample in later cases because the defendant “was not subjected to  a new Fourth Amendment search and seizure when the DNA profile was used during the second criminal investigation.”  Moreover:  “The state did not violate any reasonable expectation of privacy held by appellant by using the DNA profile,  which was the state’s own record and which [the defendant] took no action to have removed from CODIS after his acquittal.”

The court also noted that the state was not required, on its own initiative, to remove DNA profiles from CODIS after an acquittal.  In addition, even if the state had violated the state statutory scheme by maintaining the DNA profile, this would not lead to suppression of the evidence because the Fourth amendment exclusionary rule would not be implicated for this type of violation of state law.

 

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Officers May Not Extend Traffic Stop to Ask Permission to Search Home

An Ohio appeals court concluded that, after the purposes of a traffic stop have been completed, an officer may not ask the driver for permission to search his apartment.

The case is State v. Rogers, 2012-Ohio-4753.

The Defendant was convicted of a felony offense of having weapons under disability.

The case started when a Dayton Metropolitan Housing Authority employee sent an e-mail to the Dayton Police concerning possible drug activity at Defendant’s residence.  The e-mail identified that location both by address and by Defendant’s full name.

An officer, while attempting “a knock and advise” at the Defendant’s home saw a vehicle with darkly tinted windows approaching and decided to initiate a traffic stop.   The Defendant exited the vehicle.  The officer issued a verbal warning for the window tint and told the driver she was free to leave.  The Officer then asked Defendant to step out of the vehicle.

The officers showed the Defendant the e-mail complaint and then asked for permission to search his apartment.  The Defendant agreed.  The Defendant admitted that there was a shotgun in his living room closet and showed it to the officers.  An also found a loaded handgun in the Defendant’s bedroom.

The Defendant argued that his constitutional rights were violated because the officers illegally expanded the scope and duration of the original traffic stop when they asked Defendant to talk with them without first advising him that he could refuse.  The state responded that this was a permissible consensual encounter.

The court noted that the “purposes of the traffic stop were complete when the driver was given a warning citation and then drove off. . . .

With respect to Defendant, as opposed to the driver, there was no termination or interruption of the detention that commenced when the vehicle was stopped.  Because the purposes of the traffic stop had been completed, Defendant’s continued detention was illegal.  Under these unique circumstances, the officers could have told Defendant he was free to leave, but they did not.  Perhaps they believed their explanation of the purpose of their knock-and-announce and the tip about drugs in his apartment would be sufficient to demonstrate a purpose different from the traffic stop.  However, such a conclusion would be speculative.

The court concluded, citing State v. Robinette, 80 Ohio St.3d 234, 1997-Ohio-343, 685 N.E.2d 762,  that, after the purposes of a traffic stop have been completed, an officer may not ask the driver for permission to search his vehicle.  The court extended this reasoning to a request to search the Defendant’s apartment.

For this reason, the court concluded that the consent Defendant gave was invalid and the seizure of the two guns that were inside was unreasonable for purposes of the Fourth Amendment.  The gun evidence should be, a result, suppressed.

Judge Froelich wrote a concurring opinion to emphasize “the fact-specific nature of our holding.”  In the judge’s view, “without some reasonable articulable suspicion of criminal activity, the continued detention was unlawful.”

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Review of Search Warrants Should Be Done With Language Used by Nonlawyers.

The Ohio Supreme Court has held that a determination whether information in a search-warrant affidavit is false must take into account the nontechnical language used by nonlawyers.

The case is State v. Dibble, Slip Opinion No. 2012-Ohio-4630.

In 2010 an Upper Arlington Police Detective asked a Franklin County municipal court judge to issue a warrant to search the defendant’s home.  The Detective sought the warrant after speaking with two young women who claimed that the defendant had engaged in unlawful sexual contact with them.  One of the women claimed that the Defendant had taken nude photos of her.

The warrant was issued and the police seized several items, including a laptop computer, a camera, and several videotapes and DVDs.  The Defendant was arrested and charged with felony counts of voyeurism and some other misdemeanor counts, including sexual imposition.

The Defendant charged that the search warrant contained false information.  In particular, he claimed that one of the women mentioned in the search warrant was not a minor, so that the sexual acts described in the affidavit would not have been unlawful.  The detective had referred to the woman as a “victim.”  The Detective “explained that he had referred to [the woman] as a victim even though she was an adult when the incident described in the affidavit occurred because he believed that she had been manipulated by [the Defendant].”

The court noted that the focus of the lower courts – which had tossed out the search warrant — was on the detective’s use of the word “victim.” The court believed that this reading of the word was “too narrow a definition of ‘victim’ by viewing the term to encompass only victims of crime.”  And:  “We find this hypertechnical analysis inappropriate.”

Instead, the Ohio Supreme Court held that, because “search warrant affidavits are usually drafted by nonlawyers” they should be reviewed using broader terms.  In this case, the term “victim” could refer to:

a person who suffers from a destructive or injurious action,” or (2) “a person who is deceived or cheated, as by his own emotions or ignorance, by the dishonesty of others, or by some impersonal agency.”  Webster’s Encyclopedic Unabridged Dictionary (Random House 1997).

The court explained that the validity of a search-warrant affidavit “should not turn on the identifier that an officer selects when trying to protect a person’s identity.”  In this case, the court was satisfied that the use of the term “victim” was a general term to describe the women in the affidavit.  The Defendant allegedly exploited the young women while employed as a teacher at their school, including back rubs, inappropriate touching, and photographing both women in see-through unitards.  The court believed that, in these circumstances, a non-lawyer would see the women as “victims.”

The lower court decision suppressing the search warrant was reversed and the case was sent back to the trial court for a trial.

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Suppression Denied When Court Believes Officers Instead of Defendant

An Ohio Court of Appeals, in a criminal appeal, has denied a motion to suppress.  The case came down to who was more believable:  the police or the defendant

The case is State v. Arrazzaq, 2012-Ohio-4365.

The defendant was convicted of trafficking in cocaine, possession of cocaine, carrying a concealed weapon, and having a weapon while under a disability. Both drug offenses carried firearm specifications.

The Defendant was parked in the parking lot of a motel known for drug activity when he was spotted by a Deputy Sheriff.  The Deputy saw the defendant “engaging in suspicious activity in the front seat—appearing to slouch to avoid being seen—and he also noticed that the car did not have a properly displayed front license plate.”  The Defendant drove away, and was subsequently stopped for the obscured plate and driving with an expired license.

The Defendant, according to the police, consented to a search of his car.  The Deputy found crack cocaine and a handgun. The Defendant denied that he had given consent for the search.

The initial stop of the vehicle was not challenged.

A consent to search is one of the exceptions to the warrant requirement in the Fourth Amendment.  The trial court believed the testimony of the officers that consent had been given, and was not willing to reverse the lower court on a matter related to the “credibility of evidence.”  The court explained:  “We will not reverse a decision because the trial court chose one credible version of events over another.”

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Court Among a Number of Authorities Citing Law Review Article on Searches of Cell Phones

A Rhode Island Superior Court Judge has cited one of my law review articles in a recent decision reviewing the ability of law enforcement to search the content of text messages.

The case is State v. Patino, RI: Superior Court 2012 no. C.A. No.:P1-10-1155A (September 4, 2012.)

The opening paragraph lets us know what is at stake:

When the precious rights of individuals to keep private the expression of their innermost thoughts collides with the desire of law enforcement to know all at all costs, this Court must take special care to ensure that what it says today is fair game for police conduct does not sacrifice on the altar of tomorrow the rights that we hold most dear under our state and federal constitutions.

The court cited one of my previous law review articles for the proposition that:

Information that a person otherwise would be incapable of carrying in his or her pocket is now easily accessible, at any moment, via cell phones. See Joshua A. Engel, Doctrinal Collapse: Smart Phones Cause Courts to Reconsider Fourth Amendment Searches of Electronic Devices, 41 U. Mem. L. Rev. 233, 260 (Winter 2010). “[T]he vast amount of information that may be stored digitally [in a cell phone or in the cloud as accessed through a cell phone" far exceeds traditional [physical boundaries].” . . . Thus, a different notion of scope, virtual rather than spatial, is at play when discussing searches of cell phones and other electronic devices. Id.

The law review article cited by the court can be found here.

Where else has this article been cited?

Professor Lawton cites the article a number of times in Warrantless Searches and Smart Phones: Privacy in the Palm of Your Hand?  As I noted in this post, the Professor and I don’t necessaru;ly agree about where the law is, or should be headed.

 The article has also been cited in a few other law review articles, including:

 Privacy Distortion Rationale for Reinterpreting the Third-Party Doctrine of the Fourth Amendment, S Ghoshray – Fla. Coastal L. Rev., 2011, and The Fourth Amendment and New Technologies: The Misapplication of Analogical Reasoning by M McAllister.

 

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Drunk Driving Conviction Reversed Because of Unconstitutional Stop

An Ohio Court of Appeals has reversed a Drunk Driving Conviction.  The Court concluded that the initial stop of the Defendant was made without probable cause in violation of the Fourth Amendment.

The case is State v. Browning, 2012-Ohio-4026.

The case started in March 2011.  Early in the morning, a Patrol Officer Ryan Price observed a car parked on a private drive with a man standing beside it.  The officer noticed that the car had an out of state license plate and observed the defendant get into the car and proceed down the private drive.  He testified as follows:

I didn’t know if the person was taking a leak.  If they were checking the mail.  Getting the trash cans.  Stopped because they were lost.  Being it was an out-of-state plate, pulled in there to check direction or what, but when he got in the car and drove to the back—I know it’s a dead end, so I figured, well, if they’re legit, maybe they’ll turn around and come back.  So I went down the road a little bit, sat in my cruiser, and sure enough the car came back out, got on State Route 21, went southbound.    

The Officer followed the car and pulled it over.  He observed that the defendant appeared to be intoxicated.  The Defendant refused to step out of the car in order to perform field sobriety tests.  He was subsequently arrested and charged with drunk driving.

The defendant argued that the police lacked probable cause for the initial stop.  As a result, his arrest was in violation of the Fourth Amendment to the United States Constitution.

The court agreed.  The court noted that an officer cannot rely on a “mere hunch” that criminal activity was occurring in order to justify a stop.  In this case, the officer “did not state any reasonable, articulable suspicion for stopping” the defendant.  The officer did not observe any traffic violations, and had no reason to believe that the defendant was “engaged in criminal activity” when he “initiated the traffic stop.”

Judge Whitmore dissented.  The judge noted that the officer “had a great deal of experience and encountered” the defendant’s car in a spot where he could reasonably conclude that “the driver was not there for a legitimate purpose.”

 

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Tinted License Plate Sufficient to Justify Stop of Motorist

An Ohio Appeals Court has held that a tinted license plate cover provided sufficient reasonable suspicion for a traffic stop.  The court reached this conclusion despite seeing photographs that appeared to show that the view of the license plate was not obstructed by the cover.

The case is State v. Coleman, 2012-Ohio-3630.

The defendant in this case was stopped by the police near a high-crime area.  The officer testified that the car the defendant was driving had “a tinted license plate cover on his rear license plate,” which prevented the officer from being able to read the lettering on the plate.

The officer stopped the car and called for a canine unit.  The dog alerted to the vehicle’s side door.  During a subsequent search of the defendant and the car, illegal drugs were discovered.

The defendant challenged the testimony of the officer that the “license plate was obstructed as a result of the plastic cover on it and that he was unable to read the license plate until he activated his cruiser’s takedown lights and spotlights.”  The court noted that the officers testimony was corroborated by another officer.

The defendant presented photographs that showed that the clear plastic cover on the license plate could not have obstructed anyone’s view of the license plate.  The court disagreed with the conclusion that this evidence contradicted the testimony of the officers:

A review of the photographs admitted into evidence at the suppression hearing shows that the license plate is legible and that the plastic covering on it cannot be seen in the photographs. . . . [The officer] testified that the plastic covering on the license plate prevented him from being able to read it.  [The officer] testified that one of the reasons he was not able to read the license plate was because the plastic cover on it created a “glare” that prevented him from making out any of the lettering on the plate.  . . . While the lettering on the license plate is legible in the photographs, those photographs nevertheless show how the plastic covering on the license plate could have created a glare that would have prevented [the officers] from being able to read the license plate prior to the stop on the night in question.

Full disclosure:  the author of the opinion in this case, Judge Rachel Hutzel, is my former boss.

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