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APRIL 2012

summary of applicable recent court decisions

Detention of companions lawful when officers knew that some group members were armed
Lewis and three other men were standing in the parking lot of a restaurant located in an undisputedly high crime area. The men were standing between two cars, moving computer equipment from an open trunk. Two officers walked up to the men and started a casual conversation. When one of the officers asked whether the men were armed, two of the four responded affirmatively.

The situation then changed from a voluntary encounter to an investigatory detention as the officers commanded the men to show their hands and sit on the ground. Lewis did not immediately comply. He moved a few feet away, turned away from the officers and moved to the front of the cars. Lewis complied with commands after a few seconds. A third officer arrived.

Lewis looked extremely nervous; he would not sit still and would not keep his hands in one position where the officers could see them. He moved his hands to his sides, towards his pockets and towards his back. He scooted his body around. An officer checked the area where Lewis had been standing and found a gun on the ground. Lewis's DNA was later found on the gun. Lewis was charged with a federal gun crime.

Lewis asked the court to suppress the gun, claiming that the officers did not have reasonable suspicion particular to him to detain him. The court acknowledged the significant threat inherent in officers dealing with armed persons. The court held that the officers had a valid reason to detain the persons who admitted to holding weapons, at least until the officers could determine whether the possession was lawful or not. Further, not only could the officers properly detain the admittedly-armed men, but the officers could also control the scene and detain their companions because weapons were involved.

This decision teaches officers that a lawful investigative detention of a subject may also involve detaining companions or others in the immediate area when weapons are involved. The underlying detention must be based on reasonable suspicion. United States v. Lewis, --- F.3d ----, 2012 WL 967969 (11th Cir. 2012).

Search of cell phone incident to arrest allowed
Flores-Lopez delivered a pound of methamphetamine to a confidential informant. Officers arrested him and seized a cell phone from his person. Incident to the arrest, the officers searched the memory of the cell phone, providing information that lead to obtaining full call records. The call records contained evidence of calls to other drug dealers.

Flores-Lopez asked the court to suppress the information derived from his cell phone memory, claiming that it was an improper warrantless search because it exceeded the scope of a search incident to an arrest. Federal appellate courts that have considered cell phone searches incident to arrest have allowed such searches. However, some state courts and some federal trial courts have disallowed them.

The court of appeals disagreed with Flores-Lopez, and upheld the admission of the cell phone evidence. The court compared a modern smart phone with a handwritten personal diary. Typically, a diary would be treated as any other container and would be subject to search incident to a valid arrest. The court observed that a smart phone is also like a small computer, and federal courts have not carved out exceptions or special rules for searches of computers that would otherwise be subject to search incident to arrest.

In this case, the officers used only the cell call information to pursue further investigation. The court left for another day whether it would allow a more thorough search of personal information stored on a smart phone (but hinted that it would). The black letter rule from this case is that officers may search a cell phone incident to a lawful arrest. However, officers should verify with local prosecutors that the rule is applicable in their jurisdiction. United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012).

Supreme Court to consider two drug detector K9 cases
The United States Supreme Court has agreed to decide two cases involving drug detector dogs in the coming months. In the first case, Florida v. Jardines, the Court will consider whether police use a drug detector dog at the front door of a house, when police believe the house is being used in drug trafficking. Just last week, the Court agreed to consider Florida v. Harris. The question before the high court in Harris is whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle. The Harris case will consider the requirements to establish reliability of a drug detector dog. Watch for further reports in Xiphos.

California forced blood draws
Thanks to a reader in a California District Attorney office for the following information that clarifies the California rule on forced blood draws for DUI arrests: The taking of a blood sample after a DUI arrest is not considered an exigent circumstance in California. Officers may use reasonable force, i.e., the amount necessary to overcome a suspect's resistance, to obtain a blood sample from a person suspected of DUI or other offense. (Carleton (1985) 170 Cal.App.3d 1182, 1188.) It was permissible for six persons to hold down combative Carleton, who had been arrested for DUI and two counts of vehicular manslaughter, as a nurse withdrew his blood, which showed a BAC level of .20. (Carleton (1985) 170 Cal.App.3d 1182, 1188; see also Fiscalini (1991) 228 Cal.App.3d 1639, 1644.)


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