Reporting on the OCDLA Search and Seizure Conference
by: Abassos • September 19, 2012 • no comments
Erick Tobias and Stephanie Clark came all the way from Vermont Law School to work with Metropolitan Public Defender this semester. Enthusiastic to learn about criminal defense work in Oregon, they attended the OCDLA Search and Seizure Conference last weekend for an introduction from the experts. Here are some highlights they gleaned from each speaker.
Stops: What is a Show of Authority? Erik Blumenthal
- Defining a show of authority: "A display of the power or right to give orders and enforce obedience."
- When arguing a show of authority, remember the lead case on the issue: State v. Ashbaugh, 349 Or 297 (2010). Under Ashbaugh, determining whether a show of authority constituted a stop is an objective test. The defendant's subjective belief is irrelevant. The test is what a reasonable person would believe, not what a reasonable person could believe.
- The law continues to develop. Watch in particular for the cases of "Highlanderstrand." State v. Highley, 219 Or 130 (2008); State v. Anderson, 231 Or App 621 (2010); State v. Backstrand, 231 Or App 621 (2009). Appeal allowed, 250 Or 130 (2011).
Searching Your Client's Cell Phone and Mobile Devices - Joe Metcalfe
- A very important case, State v. Nix, 236 Or App 32 (2010), upheld a warrantless search of defendant's cell phone under the search incident to arrest ("SIA") exception to the warrant requirement.
- Challenging these searches in the future will be very important. Argue that mobile devices are categorically different that of SIA items like wallets and purses and fall outside the exception. A mobile device has a virtually infinite amount of potential storage, especially when considering a device's access to information stored in the cloud. Second, even if mobile devices do fall within the exception, individual searches may be challenged under the doctrine itself. In Oregon, there must a reasonable belief that the object searched contains evidence relating to a crime for which there was PC to arrest. This nexus may be challenged depending upon what in the phone was searched. SIA searches must also be reasonable in time, space, and intensity. If an entire smart phone is combed through (emails, texts, pictures, etc), a good argument exists that the search was overly intense.
Cars/Automobile Exception: Where Are We Going? Jonah Morningstar
- Under the automobile exception to the warrant requirement, an officer may lawfully search a stopped vehicle and its contents without a warrant or consent if the vehicle was mobile when stopped and PC exists for the search of the vehicle. State v. Brown, 301 Or 268 (1986).
- Where are we? The recent case of State v. Kurokawa-Lasciak, 351 Or 179 (2011), held that a car must be mobile at the time that it is encountered in connection with a crime. It is not enough that a car is capable of mobility. This case overturned two decades of Court of Appeals precedent.
- When challenging an auto-exception search, attack (as appropriate) probable cause, defining the vehicle as an automobile, or mobility. Alternatively, try defeating the entire automobile exception. A creative argument is that the exception is no longer valid under Article I section 9. See footnote six of Brown.
Search Warrants: Creative Challenges - David T. McDonald
- Despite what one might think, there are some good opinions coming out in federal courts in favor of privacy rights. While the progress is arguably still not to Oregon standards, it is an improvement. As a result, ICE and the FBI in Washington have recently been going to state courts as opposed to federal magistrates to get approval for search warrants for computers.
- In U.S. v. Comprehensive Drug Testing, Inc. (CDT II), 579 F.3d 989 (9th Cir 2010), Chief Judge Kozinski listed five requirements that should be necessary for the issuance of a search warrant for electronic data. Upon rehearing en banc, Kozinski's test became a concurrence. But the majority endorsed the test, and the district courts have held it in high esteem, requiring police to meet the requirements when applying for a warrant.
- Under Kozinski's test, the government must, in their affidavit: 1) waive plain view; 2) segregate and redact non-relevant materials; 3) disclose risks of destruction of information; 4) utilize specific search protocols for finding the information sought; 5) destroy or return any "non-responsive" data the recipient may lawfully possess. While CDTwas a federal case, there is merit in arguing for the requirements in other jurisdictions because they are important for protecting clients' privacy rights, and they just make sense.
Federal Search and Seizure Update - Craig Weinerman
- The decision in United States v. Jones, 132 S. Ct. 945 (2012), produced more questions than answers about what constitutes a search, but the Court will eventually have to consider what a reasonable expectation of privacy is in a technologically advanced society. (Keep your eye on Florida v. Jardines, 132 S. Ct. 995 (2012), in the upcoming term.)
- In the meantime, under the "mosaic" theory of privacy created by the majority and concurrences in Jones, the whole is greater than the sum of the parts-at a minimum physical trespass onto private property is an illegal search without a warrant, and the reasonable expectation of privacy test also applies.
- Be creative with your arguments! The concurrence by Justice Sotomayor in Jonesand the dissent by Kozinski in U.S. v. Pineda-Moreno, 917 F.3d 1120 (9th Cir. 2010), have great language about our need to reconsider expectations of privacy in such a technologically advanced society.
Lessons from the Big Easy: Kyles v. Whitley and Secret Police Files - John H. Hingson
- The case of Kyles v. Whitely, 514 U.S. 419 (1995) is a hugely important but sparsely cited case. It has been cited in only state appellate opinion in Oregon, and not for its core holding. At a minimum, read the case. For more information, read Desire Street: A True Story of Death and Deliverance in New Orleans by Jed Horne. It is time for Kyles to become a common word around the criminal courts of Oregon.
- Under Kyles, an "individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf, including the police." Similarly, in Oregon, "the prosecutor is responsible for evidence in the possession of the police." State v. Warren, 304 Or 428 (1987).
- Without a thorough understanding of Kyles's requirements, many Oregon prosecutors seem to believe that their duty to disclose "material" evidence under Brady and Kyles means "admissible evidence"-not "information"-that would probably lead to an acquittal. This has led to the Ninth Circuit reversing convictions for the prosecution's failure to comply with Kyles. Know Kyles, and force prosecutors to comply with it.
Strategies for Litigating and Challenging a Police Officer in a Motion Hearing - Rachel Philips
- In a motion to suppress hearing, remember that you are the "good guy." You are protecting the Constitution!
- Be like the Avengers! Like Hawkeye, ask about training received for in-court testimony and the officer's salary. (Often court appearances are overtime). Like Black Widow, be nice while planting the seeds for jurors and appeal. Like Thor, enter the courtroom with winning confidence, give the facts, and say why you win. Finally, when appropriate, smash like the Hulk!
- Be mindful of your goals: to get a better offer; to get a dismissal; to set your record for appeal; to get discovery prior to getting in front of the jury.
- Knowledge is power, so be the expert. Know the facts better than everyone, and know the caselaw better than the DA.
Current Dog-Assisted Search Issues - Lisa J. Ludwig
- Under State v. Foster, 350 Or 161 (2011), and State v. Helzer, 350 Or 153 (2011), an alert by a properly trained and sufficiently reliable drug-detection dog can provide PC to search. The burden is on the state, when challenged, to demonstrate that the dog's alert was sufficiently reliable to provide PC.
- Think of drug-detection dogs as expert witnesses. Find out and challenge the dog's training, certification and performance in the field. This area is rife with potential challenges. The "standards" used to "certify" dogs are often poor, secret, changed, and not standardized. They are not subject to any laws, regulations, or auditing. There are also many potential conflicts of interest between the breeder, trainer, and certifier.
- Watch for the results this term in the Supreme Court in the dog-sniffing cases of Florida v. Jardines and Florida v. Harris.
State Search and Seizure Update - Kali Montague
- Show of Authority - Look for officers retaining anything that belongs to the defendant. Under State v. Lay, 242 Or App 28 (2011), an officer is exhibiting a show of authority by holding onto something that a reasonable person would not feel free to abandon. Further, the burden is on the state to establish that a stop was lawful, so if the officer cannot recall when he or she returned something to the defendant (e.g., a driver's license), the state is not entitled to an inference of prompt return.
- Possessory and Privacy Interests -- Social norms that bear on members of the public, not government officials, dictate whether a person has a protected privacy interest in a space. When police entered a personal office without permission and found drugs, they violated defendant's privacy interests because a member of the public would not have felt free to venture past the reception area into the defendant's office. Thus, the search was invalid. State v. Mast, 250 Or App 605 (2012).
- While the subjective requirements of the PC and RS analysis have lacked bite in recent years, the case of State v. Shirk, 248 Or App 278 (2012), is a good reminder to pay attention to situations where officers attempt to label an encounter a casual interaction by claiming they were not investigating a crime. In so testifying, they hurt the state's argument that the officers subjectively had PC or RS. In Shirk, the state argued that the seizure of the defendant was supported by PC. The Court of Appeals rejected the argument because the officers testified below that the defendant was not being investigated for a crime, but merely being temporarily detained.
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