Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

Tuesday’s other opinion from the Ninth Circuit also involved the unusual service offered by the Portland police.  However, in U.S. v. Ankeny , the Ninth Circuit refused to suppress, despite a far more outrageous example of the Portland police department crossing a line. 

While Mr. Washington, see previous post, was treated with courtesy throughout the time during which he was being unlawfully seized, Ankeny, the defendant here, physically suffered at the hands of a gang of officers executing a valid search warrant.   Even though the police stormed the house, essentially performed a no-knock without authorization, causes thousands of dollars in damage, and caused 1^st and 2d burns on the defendant, near whom a flash bang device thrown by police exploded, the evidence was no suppressed because a failure to obtain a “no-knock” component to an otherwise valid warrant cannot justify suppression under Hudson v. Michigan, 126 S.Ct. 2159 (2006), and because the arguably unreasonable nature of the search did not actually  lead to discovery of the evidence.

Judge Reinhardt dissented, arguing that the suppression was warranted by “the extreme use of excessive force,” which rendered the search unreasonable. Reinhardt felt that facts showed “a lack of professionalism and disdain for the rights of individuals on the part of some law enforcement officers” unlikely to be cured by the threat of a § 1983 action.  Reinhardt fears the majority ruling creates a blanket exception to the exclusionary rule whenever the officers have a valid warrant.

Reinhardt’s description of the conduct as unprofessional is an understament.  Electric Lawyer notes the facts of the case are truly shocking, with which I agree.  Indeed,  with the enthusiastic text message of officers gloating over the property damage and the  injuries suffered by the defendant, and declaring a “good time had by all,” the Portland police come off sounding like teenagers enthusing over the latest violent video game.

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In U.S. v. Washington,  the Ninth Circuit held that a defendant’s consent to a search was not voluntary, as he reasonably believed he had no choice by to permit the search. The state conceded the investigatory stop was not supported by reasonably suspicion, but had claimed the search of the defendant’s car, which yielded a gun, had been by consent. Reviewing the totality of the circumstances, the Court held Washington’s belief that he was not free to leave, and had no choice by to consent to the search, was reasonable.

Important factors in the defendant’s belief that he was not free to leave were the officer’s authoritative manner, as well as the city’s recent, highly publicized shootings of African American males during traffic stops. Following these incidents, the Portland, Oregon Police Department apparently created some pamphlets to advise its citizens, especially its African American citizens,  how to avoid being shot by the police during a stop. Among the tips: “follow the officer’s instructions” and “if ordered, comply with the procedures for a search.”  

Decision of the Day asserts that the opinion turned ordinary Fourth Amendment Analysis on its head, because it focused on the defendant’s safety, rather than the officer’s.   I don’t agree that the Ninth’s analysis here was particularly out of the ordinary, as the focus of fourth amendment analysis is generally the reasonable belief of the defendant. 

But I would agree that the Portland police’s views of protection and service seem quite skewed.

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"Smilin' Bob" must be really grinning today.

A victory for cyber privacy was won today in the Sixth Circuit’s ruling in Warshak v. U.S.       The Court upholds a district court’s preliminary injunction prohibiting the seizure of email communications without a warrant, or a subpoena issued with notice to the sender. The Court held “e-mail users maintain a reasonable expectation of privacy in the content e-mails that are stored  with, or sent or received through,  a commercial ISP.”

The case arose in the context of a federal investigation of an herbal supplement company, . Berkley Premium Nutraceuticals. The company is perhaps best known for its advertisements featuring “Smilin’ Bob,” whose happy face, the ads suggest, is evoked by the “natural male enhancement” offered by the company’s supplements.   

Federal investigators had searched emails obtained from Warshak’s ISP without a warrant, and without notice to Warshak, president of the company.  While the government failed to follow the procedure set forth in the statute strictly, the method used to obtain the emails pursuant to the Stored Communications Act, 18 U.S.C. § 2703 (SCA), which allows for seizure of emails without a warrant or notice to the user, if a court determines the emails may be relevant to an ongoing criminal investigation. The parties agreed that this standard fell short of probably cause.

The Court compared email communications to both sealed hard copy communications sent through the mail, and telephone calls, both of which carry an expectation of privacy.  The Court rejected the notion that because ISPs have the capability to access the contents of emails, there is no expectation of privacy.

The Sixth Circuit cited the Ninth Circuit’s recent opinion in U.S. v. Heckencamp, which upheld a reasonably expectation of privacy despite Heckencamp’s use of the university network, because the university had no blanketing monitoring system.

Of course, both Warshak and Heckencamp leave open the situation where there is a policy of monitoring of content. So check your user policies of your provider before assuming your email is private. Big brother may be watching – and may have company.

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This has been a week in which we’ve gotten some revealing glimpses into the extraordinary lengths law enforcement will go in their “investigations.” On Monday,   U.S. v. Mayer told us of an FBI agent’s intrepid masquerade as an enthusiastic member of NAMBLA.  On Friday, we learn of the skill shown by the DEA and cooperating local police in staging an elaborate scam beginning with a staged car accident, included a mock car chase, and culminated in a car seizure disguised as a theft.  The elaborate ruse was employed because law enforcement want to prevent delivery of the contraband in the  car without tipping off the conspirators about he ongoing investigation.  

 In U.S. v. Alverez-Tejeda,  the Ninth Circuit upheld the search of the vehicle, concededly made with a warrant after the car had been seized through the staged theft. The District Court had suppressed the drugs found in the car, but the Ninth Circuit reversed. The parties had conceded that the government had the authority to seize the car, because there was probable cause to believe the car was being used to carry contraband.  The issue was whether the lawful seizure was carried out in an unreasonable manner.  The Court found the intrusion into the defendant was mild, as the staged accident used minimal force, without serious risk of injury.  While the use of deception to gain access to areas the government could not otherwise access would be inappropriate, there was not constitutional violation here, as the government was entitled to seize the property anyway.

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The U.S. Supreme Court took a giant leap into the 21^st century today, issuing an opinion which included a citation to a URL, located on the court’ own website, where a video tape of the car chase in question in the opinion can be viewed in a RealPlayer video file.

The 8-1 decision in Scott v. Harris, authored by Justice Scalia, notes that ordinarily in an appeal of the grant of summary judgment, the Court would accept the Plaintiff’s version of events. However, the existence of the video eliminated he factual dispute, and the court makes he video available to prove it. Justice Breyer, in his concurring opinion, states,                "[b]ecause watching the video footage of the car chase made a difference to my own view of the case, I suggest that the interested reader take advantage of the link in the Court's opinion . . .  and watch it."

Oh - and the opinion also includes this straightforward rule: "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death."

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