Search & Seizure Commentary: A Human Look at Canine Sniffing

The government contended that the police officer’s conduct was allowed under two exceptions: the plain view doctrine and the automobile exception. Did the appellate court agree?

Imagine a juror not only hearing the recording of a wiretapped phone but watching a recording of a video call for the same meeting. Does the government have the capability to intercept Zoom calls? How would video conferencing companies react to a subpoena or search warrant?

The open fields doctrine is an exception to the Fourth Amendment prohibition on unreasonable searches, not seizures. While police officers can lawfully search a person’s property under the open fields doctrine, that doctrine does not speak to whether they can seize items they see.

During a traffic stop, a state trooper arranged for a dog sniff of the vehicle. The vehicle contained fentanyl pills and cocaine. Did the trooper have reasonable suspicion to extend the traffic stop to arrange for the dog sniff?

and ‘Exigent Circumstances’ When Police Confront the Sanctity of the Home

Does the pursuit of a fleeing misdemeanor suspect always qualify as an exigent circumstance that permits warrantless entry into a home? In Lange v. California, the Supreme Court held that it does not. 

Knowledgeable attorneys can minimize the impact of a search warrant by ensuring that a client or a company is prepared for the disruption and agitation that the execution of a warrant causes.

The U.S. Supreme Court’s 2016 decision in Utah v. Strieff curtailed Fourth Amendment protections. The government conceded the initial stop of Edward Strieff was unlawful, but nonetheless said the arrest, search, and seizure were lawful pursuant to the attenuation doctrine (i.e., unlawfully seized evidence can be admitted when the connection between unlawful police conduct and obtaining evidence is either remote in time or has been interrupted by an intervening circumstance). Defense attorneys Bridget Krause and Deja Vishny recommend that defense attorneys focus their litigation strategy on the third prong of the attenuation analysis — showing that the police officer’s conduct was purposeful and flagrant. The authors offer several scenarios in which — notwithstanding Strieff — the defense might prevail in a motion to suppress evidence.

In United States v. Warshak, the Sixth Circuit held that the government's warrantless seizure of an individual's emails, while held in storage by an Internet Service Provider, violated the Fourth Amendment. While the Department of Justice presumably honors the Warshak decision within the Sixth Circuit, its reported use of subpoenas or orders, rather than warrants, in all other jurisdictions raised significant privacy concerns. To date, there is no legislation codifying the Warshak decision, and there has been no change in the DOJ manual. Does the Warshak decision foretell future court rulings? In June 2014 the U.S. Supreme Court, in Riley v. California, determined that warrantless cellphone searches incident to arrest were, absent exigent circumstances, prohibited by the Fourth Amendment. This holding is a hopeful sign that Supreme Court justices are open to protecting the content of emails by requiring a warrant before they are accessed.