Court Tells Cops They Can't Seize Luggage And Send It Hundreds Of Miles Away In Hopes Of Generating Probable Cause
from the Fourth-Amendment-also-deals-with-seizure dept
There's no universal law enforcement "best practices" for searches and seizures, but simply respecting the Fourth Amendment would seem to be a good base guideline. However, that baseline is rarely used. Far too often, searches and seizures seem to be officers seeing what they can get away with -- and expecting the legal system to assist in applying "good faith" to unconstitutional searches after the fact.
Ethan Moore landed at the Dillingham, Alaska airport, where he was met by two police officers. According to the officers, informants claimed Moore was transporting marijuana. They seized his luggage and took it to the local police station while they sought a search warrant. (via FourthAmendment.com)
This effort failed.
After hearing the warrant application, the magistrate concluded that there was no probable cause for the search, so he refused to issue the search warrant. More specifically, the magistrate concluded that the officers had failed to provide sufficient proof of their informants’ credibility to satisfy the Aguilar-Spinelli test.
When the magistrate issued this ruling, he invited the officers to present more information to corroborate their informants.
The Aguilar-Spinelli test basically states informants -- if used to support probable cause claims -- must be shown to be reliable and credible. The three informants relied on here weren't. Rather than follow up with the informants or simply return Moore's luggage, the officers went with option C.
Instead, the officers kept Moore’s luggage overnight and then, the next morning, they shipped it to the Alaska State Troopers in Anchorage. After the luggage arrived in Anchorage, it was subjected to sniffing by a drug-detection dog. The dog alerted to the luggage, and the troopers then applied for a search warrant, this time in front of an Anchorage judge. The warrant was granted.
Armed with this warrant, issued by another judge in another city after being "pre-searched" by a drug dog, the officers opened the suitcase and found seven ounces of marijuana. Moore challenged the search and the court finds the officers' decision to do something no one recommended violated Moore's Fourth Amendment rights.
We therefore hold that the police violated Moore’s rights under the Fourth Amendment when they continued to hold his luggage after the magistrate denied their application for a search warrant. All evidence derived from the later search of that luggage must be suppressed.
The state did try to save the search with some pretty bad arguments. For one, it argued that because officers told Moore they were going to perform some questionable actions in search of a warrant, the warrant and search should be valid. The court disagrees.
[E]ven though the police may have accurately informed Moore that they were going to ship his luggage to Anchorage, and that he would be deprived of his luggage at least until the next day, the fact that the police communicated this information to Moore could not turn an unconstitutional seizure into a lawful one. In other words, the police could not obtain a license to violate Moore’s Fourth Amendment rights merely by informing Moore that they intended to do so.
In addition, the court informs the state that it cannot do whatever it wants with seized items just because it feels it may eventually reach a point where it will have enough probable cause to obtain a search warrant.
The State is effectively arguing that if the police have probable cause to believe that an article of luggage contains evidence of a crime, the police may seize the luggage, hold it for as long as is reasonably necessary to complete any desired additional investigation or testing, and even ship the luggage hundreds of miles to accomplish this additional investigation or testing — all without seeking a judicial warrant until the additional investigation is done.
We are aware of no legal authority to support this argument.
The seizure of Moore's luggage should have ended when the magistrate denied the warrant. The US Supreme Court has held that people and their belongings cannot be unreasonably detained just so officers can attempt to sniff up some probable cause (in the context of traffic stops and drug dogs). The magistrate -- while noting the severe deficiencies in the hearsay presented as "probable cause" -- gave the officers a few options. Because they chose "none of the above," their drug bust has vanished.
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Filed Under: 4th amendment, ethan moore, law enforcement, probable cause, seizures, warrants
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And how bad do you have to be to have THREE informants' claims thrown out?
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The obvious counterargument to that (although not necessarily the one which the court is using) would seem to be that if they didn't have the basis to demonstrate it at the time of the seizure, they did not have probable cause for that seizure itself.
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Did police simply tell the second judge that a dog had alerted on the luggage, and nothing else? If they did that, then of course the second judge would have issued the warrant.
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I'm all for bringing someone to justice, but telling somebody you intend to violate their rights still does not make it constitutional. When a course of action is unconstitutional, no conduct you engage in can ever make it constitutional.
Apparently, the cops in this case decided to scam the judge and the courts. If I didn't know better, I'd swear that these cops have Prenda Law working for them.
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How many innocent people would challenge it in court?
For that matter, what recourse would you have, if the violation ALSO did not provide evidence of a crime?
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The Constitution does not have borders. The Constitution applies to all US Citizens when dealing with the US Government even if they were on the fucking moon!
It is "WE the People, FOR the People, BY The People."
Not When THEY fucking want it, and WHERE they say its okay!
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The bill of rights applies to everyone.
They are rights due to persons on the basis that they are persons, not on the basis they are Americans.
Of course, when the Bill of Rights inconveniences agents of our current government, they seek to circumvent them regardless of citizenship.
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Re: Retroactive Constitutionality
Mr. Bush and Mr. Yoo would like to have a word with you.
In Guantanamo.
"Cruel and inhuman punishments are being carefully described in tiny paragraphs so they won't conflict with the Constitution (which, itself, is being modified in order to accommodate...THE FUTURE)." - The Central Scrutinizer
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Anyway, there are only 7 articles in the original Constitution, not 10.
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1st 10 amendments == Bill of Rights (in U.S.)
It's late here, but that sounds like you are saying that the first 10 amendments to the U.S. Constitution are not what we call the U.S. Bill of Rights. I am pretty sure that they are.
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Know what pisses me off?
When the police pull this kind of crap on somebody who has nothing to hide, they will not get called because there is no permanent damage to sue for, particularly not in relation to the cost of litigation.
That makes me think that generally in cases of private-person-against-state, fee-shifting provisions should apply. Possibly with options for the state to reimburse itself when the case is the result of egregious misconduct.
That would make it more likely for the victims of illegal searches to sue even when they don't depend on getting evidence suppressed.
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Re: Know what pisses me off?
This is less of an issue when illegal pot is suppressed by a search, but what if it's a graveyard of unidentified children?
That's why it becomes so tempting to dismiss constitutional rights. We don't want serial murderers walking on a technicality right?
And that's how we got right here, where protections of common citizens are neglected, because protections of heinous criminals are neglected.
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Did that bag you pulled off these College kids have that sticker?
Rabbit:
Uummm...
[secretly looks at a bag he hid in his pocket]
I don't believe it did.
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(No, I don't think I'm being one bit unfair, given the pattern of willful criminality shown by the police in this case.)
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To return it to Moore would only allow the cops to then have a second crack at charging him with possession and anything else.
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parallel construction
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Re: parallel construction
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Yet I keep reading about this sort of thing, often complicit with the prosecutors, who also claim to be undermanned and overworked. And do they not only go beyond reasonable allocation of resources, they go beyond the limits of the law in order to pursue a case that is, at best, trivial.
That, or crime is so low in their jurisdictions they're going to ridiculous lengths to look busy enough to justify their budgets...
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there are a lot of people in jail over the dumbest fucking shit.
They ARE targeting easy crimes! The only time they don't is if an when they see a person they think they might like or feel bad fucking over or a pair of underpants they might get into!
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Silly cops, the All Writs Act opens everything!
A Federal judge would probably jizz his pants and issue an All Writs Act order before the cops were done saying "child pornography."
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Re: Silly cops, the All Writs Act opens everything!
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Re: Re: Silly cops, the All Writs Act opens everything!
inb4 "That's not why they call that one cop 'Porn Dog'"
Dogs Trained To Sniff Out Child Pornography
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Future Technology
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Hmmmmm
Also, why did they not have a dog available at the airport as it was for specifically a drugs but that they were there for?
Finally why did they not apply for a warrant before they went to the airport?
It is not difficult to conclude they had a source of information they do not want to disclose and when they were sure the drugs existed, the 'informants' was their go-to excuse to get a warrant. When that failed they had to resort to their back-up excuse, the convoluted method of arranging a dog sniff.
This has all the hallmarks of 'get the drugs and legalize it afterwards'.
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Seems like overkill
Did the cops have nothing better to do? Or did they really think they just caught themselves a major drug kingpin and searching his luggage would break the drug cartel wide open?
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Re: Seems like overkill
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Why not use the word Criminal to describe their criminal actions, followed by the word "police officer" to clarify.
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PLEASE
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Dogs
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This has been getting worse and worse ever since September 11th and I'm telling everyone here that the day is coming soon when the American people decide that they have had enough.
I'm sure that there are a lot of good police officers out there but it's the bad cops that are going to turn this country into a war zone between the police and the people. It's going to be a whole new civil war, civil unrest, riot or whatever you want to call it.
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Police: D'oh! What we did was *almost* legal. What we wanted was to be *barely* legal.
(Admittedly, these LEOs know they will suffer zero consequences for these shenanigans, so this sort of thing should hardly be a surprise.)
Also, it seems that a huge fraction of these incursions against the 4th amendment are due to drug cases. I don't do drugs and I don't it's generally a great thing to do. But, it drives me crazy that my rights are shredded because law enforcement thinks its the only way to effectively combat "drug crimes". I would legalize all of them just to take away so many excuses for poor law enforcement behavior.
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Although my my case my dad came looking for me about 45 minutes later and lets just say I NEVER tried that again ...
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The problem in cases like the one in the post is that, effectively, no one plays the role of the strict disciplinarian when law enforcement misbehaves. The higher-ups in the police are lax parents and either ignore misbehavior or hand down ineffective (deterrent) punishments; the courts take the marshmallow parent position that "He didn't know" or "He's a nice boy, but he forgets"; and - sad to say - we, the public, are no better when we refuse to force our politicians to take a "tough on crime and tough on police misbehavior" position.
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