By: Matthew Welch & Gilbert Smolenski

On March 1, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for United States v. Brian Bowman.  The court held that Bowman’s Fourth Amendment right, freedom from unreasonable seizures, was violated and reversed the district court ruling.

I. Facts and Procedural History

In the predawn hours the morning of June 20, 2015, Officer Waycaster was patrolling on Route 25 in Henderson County, North Carolina.  He received a tip from the DEA that two individuals driving a red, older model Lexus could be narcotics runners.  The DEA also provided a license plate number for the car.  At 3:40 a.m., Officer Waycaster spotted an older red Lexus.  Rather than stopping the vehicle based on information from the DEA, Officer Waycaster followed the car “looking for [his] own infractions . . . for [his own] reason to stop the vehicle.”  When the vehicle weaved over a fog line and accelerated to 10 mph over the speed limit, Officer Waycaster pulled the vehicle over, suspecting that the driver may have been under the influence.  The government agrees that the DEA tip should not be considered in any legal analysis.

After stopping the vehicle, Officer Waycaster noticed two men in the vehicle: Bowman, the driver, and Alvarez, the passenger.  Officer Waycaster testified that Bowman appeared nervous because his hands were shaking, he failed to make eye contact with Waycaster, and that his carotid artery was moving, indicating an elevated heart rate.  Officer Waycaster did not see any alcohol or firearms in the vehicle, but he did notice an energy drink in the center console, food wrappers, and a suitcase in the back seat.  Officer Waycaster explained why Bowman was stopped and then asked Bowman to exit the vehicle and go to the patrol car so that Officer Waycaster could check his information.  Alvarez remained in the passenger seat the entire time.

After Bowman exited the vehicle, he consented to a weapons frisk.  Officer Waycaster found no weapons.  Officer Waycaster then told Bowman to sit in the patrol car while Waycaster ran his driver’s license and registration.  While Officer Waycaster was running Bowman’s information, he asked Bowman where he was coming from.  Bowman said that he was heading home after picking up Alvarez from Alvarez’s girlfriend’s house.  He said he was returning the favor because Alvarez had done the same for him in the past. When questioned about the address of Alvarez’s girlfriend’s house, Bowman said he did not know it but that it was in his car’s GPS.  Officer Waycaster also asked Bowman what he did for a living.  Bowman replied, saying that he was a welder but was currently unemployed.  Bowman also said that he recently bought the Lexus off Craigslist.  Officer Bowman testified that this was a suspicious activity because “it was a known practice with narcotics traffickers to either use rental vehicles or use multiple, different vehicles, or buy and sell vehicles to transport narcotics.”  Officer Waycaster, believing that Bowman was not under the influence, then issued Bowman a ticket for speeding and unsafe movement of the vehicle.

Bowman then began to exit the vehicle but Officer Waycaster asked if he could speak further with Bowman.  Bowman consented.  After another round of questions about what Bowman and Alvarez had been doing that night, Officer Waycaster, who was seated in the patrol car with Bowman said that he “was going to ask [Alvarez] questions if you don’t mind, okay?”  Bowman responded, “okay,” and remained in the vehicle.  As Officer Waycaster exited the patrol car he told Bowman, “just hang tight right there, okay.”  Bowman responded with, “oh, okay.”  Office Waycaster testified that at this point, Bowman was not free to get out of the patrol car because Waycaster had developed, from the traffic stop alone, reasonable suspicion of criminal activity.

Office Waycaster then went back to the Lexus and interviewed Alvarez about what had transpired before the two men were pulled over.  Alvarez’s story conflicted with Bowman’s.  Officer Waycaster then return to the patrol car and asked Bowman if there was meth in the Lexus, to which Bowman responded no.  Bowman then refused to let Officer Waycaster search the Lexus.  Thereafter, Officer Waycaster removed Alvarez from the Lexus and placed him in the patrol car with Bowman.  Then Office Waycaster summoned a K-9 team.  The K-9 team passed around the outside of the Lexus.  The dog alerted an officer that illegal narcotics were present in the vehicle.  Thereafter, Office Waycaster and the K-9 handler searched the interior of the car.  They found meth, digital scales, and containers of ammunition.

Bowman was charged with possession with intent to distribute methamphetamine.  Bowman filed a motion to suppress the methamphetamine evidence, arguing that Officer Waycaster unlawfully prolonged the completed traffic stop without consent or reasonable suspicion.  The district court followed the recommendation of the magistrate judge in denying the motion to suppress.  The magistrate judge admitted that Bowman was not free to leave the patrol car but that the prolonged detention was permissible because “Waycaster had a justified, reasonable suspicion that Defendant Bowman was engaged in criminal activity.” The judge said that the totality of the circumstances supported this finding.  Bowman then filed an appeal.

II. Standard of Review

The Fourth Circuit reviews the district court’s determination that the officer had a reasonable suspicion to prolong the traffic stop de novo.

III. Reasoning

First, a traffic stop must be reasonable.  Here, Bowman does not challenge the reasonableness of the traffic stop.  Bowman was swerving and traveling 10 mph over the speed limit.  Instead Bowman’s Fourth Amendment challenge rests on the unreasonableness of his prolonged detention in the patrol car. The Fourth Amendment allows an officer to conduct an investigation unrelated to the reasons for the traffic stop as long as it does not lengthen the roadside detention.  To extend the length of the detention beyond the time necessary to accomplish the traffic stop’s purpose, an officer must have reasonable suspicion or receive the driver’s consent.  Here, the officer did not receive Bowman’s consent or have a reasonable suspicion.

The government argued that Bowman consented to the prolonged detention when he said “okay” after Officer Waycaster asked him to “hang tight right there, ok?”  However, under a reasonable person standard, the court said that this was not consent by Bowman.  Bowman never had time to respond to Officer Waycaster before Waycaster exited the vehicle and many would feel they were not free to leave in a similar situation. Furthermore, Waycaster was not asking a question, instead he was instructing Bowman what to do.  Thus, when Bowman remained in the patrol car as the officer went to question Alvarez, the encounter was no longer a consensual one but instead became a non-consensual seizure.

After the Fourth Circuit concluded the search constituted a non-consensual seizure, the Court then analyzed whether Waycaster’s “prolonged seizure was justified by reasonable suspicion.”  The Court noted there is no precise definition for what constitutes reasonable suspicion.  Instead, reasonable suspicion is a commonsense, nontechnical standard that considers the realities of everyday life.  The bar for reasonable suspicion is less than the probable cause standard and the facts articulated by the stopping officer and trial court must be taken in their totality.  However, each factor can be analyzed separately by the court before being taken together in a full consideration of the circumstances surrounding the traffic stop.

The Fourth Circuit focuses on four specific factors in its analysis.  First, Waycaster noted that both Bowman and Alvarez appeared to be nervous.  However, a driver’s nervousness is not a good indicator since most citizens are nervous when dealing with police.  The record indicated that Bowman and Alvarez did not exhibit any signs of nervousness above the norm, and the government conceded Bowman was calm once exiting the vehicle.  Moreover, although a suspect’s increased heart rate, which can be evidenced by a suspect’s throbbing carotid artery, can help support there was a reasonable suspicion of criminal activity, the present facts do not show Bowman demonstrated nervousness beyond the norm. The fact that Bowman remained calm in the patrol car and failed to make eye contact with an officer is not indicative of criminal behavior.  Thus, the first factor weighed in favor of the Bowman.

Second, Waycaster stated that several articles in the car, specifically clothes, food, and an energy drink, helped give rise to a reasonable suspicion.  However, these items are consistent with innocent travel and “in the absence of contradictory information,” cannot reasonably imply criminal activity.  While Bowman may have made false statements about his travel plans, the government failed to connect that fact to any wrongdoing in the case.  Therefore, just the articles alone cannot be used to established untruthfulness, and subsequently reasonable suspicion.

Third, the district court noted that Bowman’s inability to recall Alvarez’s girlfriend’s address contributed to Waycaster’s reasonable suspicion.  But, the Fourth Circuit stated this was entirely reasonable, as it is clear from the video recording that Bowman repeatedly said he used the car’s GPS to find the house, and Waycaster could find the address by looking at the car’s GPS history.  The government failed to connect Bowman’s response with criminal activity, and the Fourth Circuit stated it is reasonable that Bowman did not know the address and was relying on GPS in a dark, unfamiliar area.

Finally, Waycaster believed Bowman’s vehicle purchases gave suspicion of criminal activity since he thought it was strange Bowman could afford to purchase multiple vehicles while unemployed and the use of multiple cars was a known practice of drug traffickers.  The Fourth Circuit readily disposed of Bowman’s vehicle purchasing habits, noting that Waycaster made “unsubstantiated assumptions.”  Even though Bowman was unemployed, there are numerous possible explanations to explain the car purchases that are all within the confines of the law.  Likewise, innocent travelers may use multiple vehicles, some of which they could buy from Craigslist, and that fact is entitled to little weight.

Consequently, none of the factors alone provide a basis for reasonable suspicion.  Even when looking at the totality of the circumstances, as mandated by precedent, the Fourth Circuit similarly found that the “combination of wholly innocent factors” did not give rise to reasonable suspicion.  Therefore, the Fourth Circuit reversed the district court, as Bowman’s motion to suppress should have been granted.


By Sophia Blair

On March 30, 2017, the Fourth Circuit issued a published criminal opinion, United States v. Hill. Donald Hill (“Hill”) pled guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). However, he appealed the district court’s denial of his motion to suppress his statements and a firearm seized during a traffic stop because he alleged that the police officers’ actions exceeded the scope of the stop. Specifically, he alleged that the stop continued beyond the justifiable amount of time needed, thereby violating his Fourth Amendment rights. The Fourth Circuit affirmed the district court’s dismissal of Hill’s motion to suppress because the stop’s duration was reasonable to complete the tasks incident to the stop.

Facts of the Stop

On October 20, 2014, two police officers patrolling in Richmond, pulled over a car because it was driving over the speed limit and crossed a double-yellow line. The officers recognized both Jeremy Taylor (“Taylor”), the driver, and Hill, the passenger from previous interactions. After Taylor produced his driver’s license, one of the officers returned to the police cruiser to confirm the identity of both men in the Department of Motor Vehicles database, and to check whether either of the men had outstanding warrants on the National Crime Information Center database. The officer discovered that Taylor’s license was suspended. The officer briefly interrupted writing the relevant summons to check for both men in the PISTOL system, which tracks individuals’ prior contacts with the police. There he found that both men were connected with drug activity and were “likely armed.” The officer in the patrol car called for a K-9 unit and continued writing the summons.

The second officer made small talk with both men while the first officer wrote the summons and asked them three times whether they had drugs or firearms in the car. After the third question, Hill admitted that he had a firearm on his person. The officer shouted “gun” and the K-9 unit arrived on the scene almost simultaneously. The district court determined that twenty minutes elapsed between the initiation of the stop and the time the gun was discovered.

Hill’s Claims

Hill argued that the length of the stop exceeded a lawful duration because the second officer talked to him and Taylor instead of helping the first officer search the databases. He also challenged the call to the K-9 unit and searching the PISTOL database. Hill argued that the cumulative effect was to deprive him of his Fourth Amendment Rights under Rodriguez v. United States, 135 S. Ct. 1609 (2015).

The Duration and Scope of the Stop Did Not Violate the Fourth Amendment

In order to be reasonable under the Fourth Amendment, a traffic stop must be legitimate at its inception and the officers’ actions during the stop must be reasonably related in scope to the basis for the stop. Because Hill did not contest that the stop was legitimate at its inception, the Fourth Circuit limited its analysis to whether the officers’ actions were reasonably within the scope of the basis for the stop.

Determining the reasonable length of a stop is not a mathematical endeavor; instead a court determines reasonableness by looking at what police in fact do and whether the officers acted reasonably under the totality of the circumstances. Additionally, officers may undertake investigative techniques unrelated to the underlying traffic infraction without offending the Fourth Amendment as long as the activity does not prolong the duration of the stop.

In analyzing the unfolding of the stop at issue, the Fourth Circuit did not observe any evidence that suggested that either of the officers delayed the completion of the traffic stop. The officers accounted for eighteen minutes of the twenty minute stop, and the Fourth Circuit did not find that the additional two minutes unlawfully extended the duration of the stop. Moreover, the first officer had not finished writing the summons when the second officer yelled “gun.”

The Fourth Circuit also held that the officer’s decision to search PISTOL did not violate the Fourth Amendment because the Fourth Amendment does not require the officers to use the least intrusive means possible to complete a stop. Searching PISTOL was material to the officers insuring their safety in furtherance of their duties. Because of the inherent safety risks  during a traffic stop, the Fourth Circuit also held that the second officer’s choice to stand by the stopped vehicle instead of helping to search the database was reasonable. Finally, requesting the K-9 unit did not violate the Fourth Amendment because the call did not extend the duration of the stop.


Because the officers exercised reasonable diligence in executing the traffic stop, the stop was not impermissibly prolonged. The Fourth Circuit affirmed the district court’s denial of Hill’s motion to suppress evidence.


By Eric Jones

On June 16, 2015, the Fourth Circuit issued a published opinion in the civil removal case Yanez-Marquez v. Lynch.  Maria Yanez-Marquez (Yanez) was petitioning to the Fourth Circuit for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal from an order for her removal from the United States.  The Circuit Court held that the violations of Yanez’s Fourth Amendment rights were not egregious, and thus denied her petition for review.


The Execution of the Search Warrant

In June of 2008, agents from Immigration and Customs Enforcement (ICE) were granted a search warrant for 402 Harbor Drive, Annapolis, Maryland, because it was suspected that the landlord was harboring illegal aliens.  The warrant was to be executed between 6:00 a.m. and 10:00 p.m., and described the residence as a “single-family home.”  The warrant was broad and authorized agents to seize “illegal aliens, travel documents, financial records, and photographs of harbored aliens.”  At approximately 5:00 a.m. on June 30, ICE agents knocked on the door of the residence and entered to begin the search.  According to Yanez, the agents burst into the bedroom where she and her partner were sleeping, and pointed guns at them while demanding that they “don’t move” in both English and Spanish.  Upon being informed that Yanez was pregnant, the agents called a female agent to assist and reassure her.  Yanez was never handcuffed or led outside of the dwelling, but was questioned for 5-10 minutes about her identity.  As a result of the search, the agents arrested Yanez’s partner, and had her sign several forms indicating that Yanez had been illegally present in the United States since April of 2007.  The agents also seized Yanez’s pay stubs, tax returns, and photo albums as they left at 9:15 a.m.  The ICE contested Yanez’s statements regarding the timing of the search as well as the force used during the search.


The Removal Proceedings

Yanez was issued a notice to appear before an Immigration Judge (IJ) for removal proceedings.  On February 10, 2010, the Department of Homeland Security (DHS) filed a submission of intended evidence, including the forms Yanez signed during the search, the warrant itself, and the affidavit supporting the warrant.  Yanez filed a motion to suppress the evidence, arguing that during the search, the agents “egregiously violated” her Fourth Amendment rights.  The IJ found that, accepting Yanez’s claims as true, her rights had not been “egregiously violated.”  Although the execution of a search warrant prior to the time it was granted would constitute a violation of Yanez’s Fourth Amendment rights, the IJ reasoned that being early by a single hour “does not amount to conduct that ‘shocks the conscience,’” and thus was not an egregious violation.  As to the force used, the IJ found that Yanez had made no showing of excessive force, noting that agents executing a search warrant are reasonably cautious about dangerous situations.  The IJ found that the agents had acted reasonably, had not brandished their guns for longer than necessary to assure their safety, and had gotten a female agent to aid and comfort Yanez as soon as was reasonable.  For these reasons, the IJ denied the motion to suppress the evidence.  On December 13, 2010, the IJ found that the DHS had satisfied their burden, and ordered that Yanez be removed from the United States and returned to El Salvador.

On appeal to the BIA, the BIA held that the exclusionary rule, which operates to exclude evidence obtained in violation of the defendant’s Fourth Amendment rights, does not apply in civil removal proceedings unless the violations were egregious.  The BIA then, relying on the reasoning of the IJ, held that the violations had not been egregious, and thus affirmed the IJ’s order.


The Applicability of the Fourth Amendment in Civil Removal Cases in the Fourth Circuit

Initially, the Fourth Circuit noted that the question of the applicability of the Fourth Amendment exclusionary principle was a matter of first impression for the Circuit.  The Court began by analyzing the Supreme Court of the United States’ ruling in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).  In Lopez-Mendoza, the Supreme Court held that the ordinary Fourth Amendment exclusion, which barred all evidence obtained through any violation of the Fourth Amendment, was inapplicable to civil removal proceedings because the costs of exclusionary principle, including dramatically increased complexity to the streamlined process of removal, outweighed the benefits of the exclusionary principle.  Additionally, because civil removal proceedings are not criminal and do not punish but merely prevent continued illegal activity, the Court reasoned that the Fourth Amendment protections were not as critical.  Four Justices in Lopez-Mendoza vigorously dissented, and the majority opinion opined in dicta that “egregious violations” and “widespread” violations by officers may nevertheless render the exclusionary principle applicable in some instances.

In this case, the Fourth Circuit held that the exclusionary principle must apply to all egregious violations of the Fourth Amendment because “[t]o hold otherwise would give no effect to the language used by the Supreme Court in Lopez–Mendoza expressing concern over fundamentally unfair methods of obtaining evidence.”  The Circuit Court further held that refusing to apply the exclusion “would ignore the fact that eight justices in Lopez–Mendoza seem to have agreed that the exclusionary rule applies in removal proceedings in some form.”  Thus, in the Fourth Circuit, an petitioner in a civil removal case must show not only that her Fourth Amendment rights were violated, but also that those violations were “egregious.”


The Standard for “Egregiousness” of a Fourth Amendment Violation

The Lopez-Mendoza Court stated “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained” might be reason to apply the exclusion. Despite the use of “and” by the Supreme Court, the Fourth Circuit held that a petitioner can succeed if she can show either (1) egregious violation or (2) a violation that undermines the probative value of the evidence.  To hold otherwise, the Circuit explained, would dramatically reduce the application of the rule because nearly all evidence obtained through egregious violations is physical evidence, which has the same probative value regardless of the manner of acquisition.  Examples given by the Circuit of egregious violations included “a stop based on Hispanic appearance alone,” “repeatedly ignor[ing a] detainee’s request for counsel,” and “a nighttime warrantless entry into the aliens’ residence.”

The Fourth Circuit rejected the Ninth Circuit’s standard for egregiousness, which focuses on the “bad faith” of the agents, and embraced the “totality of the circumstances” test used by the Second, Third, and Eighth Circuits.


Yanez’s Alleged Fourth Amendment Violations

Yanez’s first allegation of egregious violation of her Fourth Amendment rights was that the warrant listed her residence as a “single-family home,” when it was in fact a multi-unit dwelling.  The Fourth Circuit explained that the warrant is sufficiently tailored when an agent executing it can “reasonably ascertain and identify the intended place to be searched.”  In holding that the warrant used to search Yanez’s home was adequate, the Circuit emphasized that the premises had been under ICE surveillance and agents had no reason to believe multiple families dwelled there, it was a small single-story home, and the premises had just one mailbox.  Thus, because the outward appearance is reasonably identified by a description of a “single-family home,” the Fourth Circuit rejected Yanez’s first argument.

Yanez next argued that, upon entry, the agents should have known it was a multi-family dwelling because “the bedroom door was locked,” which transforms it into a separate dwelling.  However, because it is not unusual for a bedroom door to be locked and there was no other indication in the home that it was a multi-unit dwelling, the Circuit held that the ICE agents had not made any mistake in proceeding with the warrant, and even if they had, it was an innocent and reasonable mistake.

Yanez’s final argument was that entering the home at 5:00 a.m. constituted a “nighttime search,” which fell outside of the warrant and implicates higher scrutiny because of the heightened intrusion.  The Fourth Circuit agreed that because a daytime search is defined as between 6:00 a.m. and 10:00 p.m., the search of Yanez’s residence was by definition a nighttime search.  The Fourth Circuit went on to hold that nighttime execution of a daytime warrant is a violation of the Fourth Amendment, absent consent or exigent circumstances.  Thus, because there was no consent given by either Yanez or the judge who issued the warrant, nor were there any additional facts which may have constituted exigent circumstances justifying a nighttime search, the Fourth Circuit held that the ICE had violated Yanez’s Fourth Amendment rights by executing the search.  However, when considering the totality of the circumstances, the Circuit held that this violation was not egregious.

Facts to support a finding of egregiousness included the fact that it was a nighttime search and the fact that the search was of Yanez’s home, where her privacy interests are strong.  Supporting the non-egregiousness of the search included the fact that no ICE agents threatened, coerced, or physically abused Yanez, nor did they offer or promise her anything in exchange for cooperation.  Additionally, Yanez was not handcuffed, nor was she removed from the home.  Furthermore, there was no evidence of diminished capacity, the questioning was not particularly lengthy, and there is no evidence that the agents were motivated by racial considerations.  Finally, the Circuit explained that presence of a valid search warrant for the premises reduces the harm of the intrusion, and the agents executing the warrant did not use force beyond that necessary to secure their safety.  The Fourth Circuit thus held that the nighttime search, while a violation, was nevertheless not an egregious violation of Yanez’s Fourth Amendment Rights.


The Fourth Circuit Denied Yanez’s Petition for Review

Because the alleged violations of Yanez’s Fourth Amendment rights were all either not violations at all or not egregious, the Fourth Circuit denied Yanez’s petition for review of the IJ’s order for her removal from the United States.

by David Darr

On Friday, in United States v. Walker, an unpublished per curium opinion, the Fourth Circuit affirmed the decision of the District of Maryland to deny the defendant’s motion to suppress evidence. The court held that police had a reasonable suspicion to both arrest and search the defendant.

Was Arrest and Search Proper?

The issue in this case was whether the police had a reasonable suspicion to arrest the defendant and a reasonable fear for the officer’s own and others’ safety to search the defendant.

Walker’s Arrest and Search

Early in the morning on January 30, 2011, the police received a call from a 911 dispatcher that a man with a gun was at a Denny’s in Baltimore. An officer who was already in the area responded to the call and upon exiting his vehicle he encountered two men pointing to the defendant, Stephan Sylvester Walker, Jr., and telling the officer that Walker is “the guy with the gun.” The officer ordered Walker to get down on the ground and drew his service weapon, but Walker attempted to hide behind a car. As other officers arrived on the scene, Walker acquiesced and the police found a .45 caliber pistol in Walker’s waistband.

At trial, Walker moved to suppress, arguing that both his arrest and seizure of property were improper. The district court denied this motion, finding both the initial stop and taking of the gun were legal. Subsequently, a jury found Walker guilty of possessing a firearm and ammunition after having been convicted of a felony and he was sentenced to 293 months in prison. Walker appealed the denial of his motion to suppress because he claimed the officers lacked a reasonable suspicion.

Legal Requirements for Arrest and Search

When a motion to suppress is denied, the appellate court views the evidence in the light most favorable to the Government. The Fourth Amendment allows a police officer to stop a person when the officer has a reasonable suspicion based on the facts that criminal activity may be afoot. A reasonable suspicion depends on the totality of the circumstances, including any reasonable inferences. Additionally, an officer may also search a suspect’s person if the officer has a reasonable fear for his own or others’ safety based on a suspicion that the suspect may be armed and dangerous.

The Officer Had a Reasonable Suspicion

The Fourth Circuit, viewing the evidence in the light most favorable to the Government, found that the officer had more than enough evidence to arrest and search Walker. The circumstances surrounding the stop of Walker would create a reasonable suspicion that Walker had a gun. While an anonymous tip alone might not be enough for an officer to stop someone, the 911 call, the witnesses claiming Walker had a gun, and Walker’s evasive behavior all show there was a reasonable suspicion for the stop. Additionally, the totality of the circumstances also show that Walker was armed and potentially dangerous, creating a reasonable fear in the officers to justify the search of Walker’s person.

Fourth Circuit Affirms Decision

For the reasons stated above, the Fourth Circuit affirmed the decision of the District of Maryland.

By Joshua P. Bussen

Today in United States v. Mitchell, the Fourth Circuit, in a per curiam opinion affirmed the conviction of Sidney Mitchell for unlawful possession of a firearm by a felon. Mitchell entered a conditional plea of guilty in the Middle District of North Carolina, reserving his right to appeal the judgment of the district court. Mitchell contends that the district court erred in denying his motion to suppress evidence of a firearm that was found while police were conducting a search of his vehicle. Mitchell was sentenced to twenty-six months in prison.

In the waning hours of sunlight on November 20, 2012, a North Carolina police officer stopped Mitchell’s car on a suspicion that the tint on the vehicle’s windows was darker than allowed under North Carolina law. While performing a test that would gauge the level of tint on Mitchell’s windows—a process that involves placing a device on the inside of the vehicle—the officer claims he noticed the smell of “burnt marijuana.” Though Mitchell denied smoking marijuana, he consented to a search of his person. After searching Mitchell the officer turned to the vehicle, discovering a small amount of marijuana resin and a gun on the driver’s side floorboard.

In the Middle District of North Carolina Mitchell moved to suppress the firearm due to an improper search and seizure. The district court found that the tint on Mitchell’s windows gave the officer reasonable cause to pull the car over, and the smell of burnt marijuana subsequently warranted probable cause to search the vehicle. On appeal Mitchell did not question the officer’s motivation for detaining the vehicle, but disputed “lawfulness of the subsequent search of the [inside of the] car.”

The Fourth Circuit, relying on United States v. Scheetz, 293 F.3d 175, 184 (4th Cir. 2002), held that the odor of marijuana emanating from a car warranted sufficient probable cause to search the vehicle. Mitchell’s final argument that the officer’s credibility should be questioned fell on deaf ears, the Circuit judges were not willing to disturb the factual findings of the district court because “the district court is so much better situated to evaluate these matters.”

By Bradley Pollina


The Supreme Court recently handed down its decision in Florida v. Jardines,[1] affirming by a 5-4 vote the Florida Supreme Court’s ruling[2] that the police’s use of a trained narcotics detection dog on the front porch of a home is a “search” within the meaning of the Fourth Amendment.  This case is the first time the Court has applied the non-Katz-based search doctrine articulated in United States v. Jones.[3]  As will be more fully elaborated below, it is my claim that the Court purposely avoided using the word “trespass” so as not to reverse the Florida state courts, which had decided that the police were lawfully present on the defendant’s property at the time of the dog sniff, on an issue lying at the heart of state court competence—that is, application of the common law of trespass.

Recall that in Katz v. United States,[4] the Court overruled Olmstead v. United States.[5]  The Court in Olmstead held that wiretapping was not a Fourth Amendment search because there was no physical police invasion of property that would constitute a trespass—there was no “entry of the houses or offices of the defendants.”[6]  Justice Harlan authored a concurring opinion in Katz that was to become the dominant formulation of the test for a search under the Fourth Amendment[7]—if the individual has manifested a subjective expectation of privacy and society is prepared to accept that expectation as reasonable, then there is a right to privacy protected by the Fourth Amendment in those circumstances.[8]

Justice Scalia, writing for the Court in Jones, reasoned that the “persons, houses, papers and effects” portion of the Fourth Amendment would be rendered superfluous if the Fourth Amendment were not closely tied to property rights.[9]  According to Justice Scalia’s opinion, and much to the surprise of many observers, Katz’s reasonable expectation of privacy (“REOP”) standard “added to”—but did not “substitute[] for”—the common law trespassory test used by the Court for decades prior and embodied inOlmstead.[10]  As the Court put it, “for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.  Katz did not repudiate that understanding.”[11]  As a result, information gained by the government’s trespassory activity would be the product of a search within the meaning of the Fourth Amendment.[12]  Five members of the Court saw the police’s placement of a GPS device on the defendant’s car as a governmental trespass on private property, therefore constituting a Fourth Amendment search.[13]  Four others concurred in the judgment, but rejected the trespass rationale.[14]

I.  Dissecting Jardines: Rationalizing the Court’s Options

It is quite clear that in Jardines, Justice Scalia did not rely on the REOP strand of Jones.  But what is curious is that he did not use the word “trespass” once in his majority opinion.[15]  Instead, Justice Scalia conspicuously referred to that portion of theJones opinion as holding that “‘when the Government obtains information by physically intruding’ on persons, houses, papers or effects,” a search has occurred.[16]  Because, according to the majority, that occurred when the police brought a narcotics-sniffing dog to the defendant’s front door to search for drug activity, there was no reason to reach the question of whether the defendant’s reasonable expectation of privacy was violated.[17]

In my view, the “trespass” test articulated in Jones and the “physical intrusion” application in Jardines are identical in content.  Indeed, Justice Kagan’s concurring opinion understands the majority opinion to have found that the police conduct constituted a trespass.[18]  The dissent reached a similar conclusion (though it obviously did not agree that one had occurred).[19]  What is more difficult to discern is whether or not this branch of Fourth Amendment doctrine relies on common law trespass—as theJones majority articulated it—or on some notion of constitutional common law, under which the federal and state courts are to decide if the police committed a “physical intrusion” having constitutional significance.  But in my view, there is little reason to think it is the latter.  Aside from the understanding evidenced by the concurring and dissenting justices, the remainder of this Article offers another reason to think that the Jones test is alive and well as articulated in that opinion, and that there were other, more deeply-rooted reasons for the Court to avoid using the magic word “trespass” in Jardines, and instead rely on a notion of “physical intrusion” in.

It will be interesting to see how this issue plays out in the lower courts, but for the sake of observation, I suspect that the majority in Jardines had a particular reason for not using the word “trespass” despite the strong expectation that it would do so based on the opinion in Jones.  My theory is that Justice Scalia did not want to intrude upon the Florida courts’ handling of the trespass issue.  As the dissent in the Florida Supreme Court decision points out, it was undisputed that the police were lawfully present at Jardines’ front door.[20]  There was no trespass under state law-that much was clear for the remainder of litigation in the Florida courts[21]-and the United States Supreme Court.[22]  Conversely, the Florida Supreme Court had found a search under the more traditional Katz/REOP test.[23]  It decidedly did not revisit the trespass issue, and let stand the Florida Court of Appeals’ ruling that the police were lawfully present at the defendant’s front door.[24]

Thus, in order for the U.S. Supreme Court to affirm the finding of a “search,” I think it had three main options: 1) affirm that a search had occurred on the REOP rationale, 2) vacate on the REOP analysis and remand to the state courts for consideration in light of Jones and the trespass rationale (decided after the Florida Supreme Court decided Jardines), or 3) find a search based on the Jones trespass test and commit a blunder of judicial federalism.[25]

The first option would seem the easiest, and it is what I thought the Court was poised to do.  However, the majority turned out to be much more eager to apply the “new” Jones rationale (that Justice Scalia claimed was actually an old rationale) instead of traditional REOP doctrine from Katz.[26]  The second option would be unsatisfactory, since it would leave the ultimate disposition of an important Fourth Amendment issue (dog sniffs as searches) unresolved during more litigation in the state courts, and even then, the Florida courts’ resolution of the Fourth Amendment question would not necessarily be binding in other states.  Furthermore, if the Supreme Court reversed the state courts on the REOP rationale, the judgment entered on remand would probably be one finding “no search” since there is no reason to believe the issue of trespass would be decided any differently by the state courts the second time around.[27]  This option would accomplish little, save for virtually requiring the state courts to find that no search occurred and, perhaps more cynically, would only be useful if that is the result the justices wanted.

The third option would be something of an intrusion into the routine workings of the state courts, since it would involve the United States Supreme Court resolving a basic question of state tort law that was settled below in the state courts.[28]  Answering the question of whether a common law trespass occurred is an issue at the heart of state court decision making.  In other words, if the Supreme Court disagreed that the dog sniff violated a reasonable expectation of privacy, but nevertheless thought that a trespass—and therefore a search—had occurred, it essentially would be telling the Florida state courts that they had misapplied the common law of trespass.[29]

While not inconceivable,[30] this approach would not comport with a reasonable sense of federal non-interference with state court adjudication.  This is best understood as a question of jurisdictional discretion—while the Supreme Court could reverse a state court’s resolution of a state law issue, it might decline to do so based on respect for the state court.  Similarly, it could simply resolve the case on other grounds to avoid the problem.  Here, the Court could have simply affirmed on the REOP rationale and declined to apply the new Jones analysis.[31]

The way that the Court decided Jardines is substantively in line with the third option—it found that a search had occurred, but not on the traditional REOP framework.  And this is what precipitated the fourth “option.”  The Court resolved the search issue on the new Jones rationale without saying it was actually finding a “trespass.”

II.  Why the Court Didn’t Say “Trespass”

My claim is that Justice Scalia took this approach (“physical intrusion” instead of “trespass”) in the first instance, and gained the support of four other justices in conference, in order not to offend the Florida state courts by re-working (i.e., reversing) their resolution of the common law trespass issue.  I see no explanation in the majority opinion of how the Jones “trespass” test has changed in any way in Jardines, where it was described as a “physical intrusion” rationale.[32]  Nor is an explanation provided by the other justices writing separately in concurrence or dissent.[33]  Instead, I think Justice Scalia purposely minced his words in a way that allowed de facto application of the Jones trespass rationale without using the word “trespass.”  There is a strong background notion shared by many onlookers that, despite the Court’s technical ability to do so, it should not (and in this case would not) re-visit an issue so central to the daily work of a state court.[34]  The majority could, to some extent, blunt the resonance of such a move by carefully selecting its words.

To ground things a bit more in federal courts doctrine, consider the jurisdictional principles at play in the case.  There is no doubt that the Supreme Court possesses the jurisdiction to decide non-federal issues when they are antecedent to the resolution of an issue of federal statutory or constitutional right, as in these Fourth Amendment search cases.[35]  The issue of whether a common law trespass occurred must be determined in order to decide whether a “search” occurred within the meaning of the federal Constitution—indeed, the answer to the “search” question is entirely answered by the “trespass question.”  But I think that larger issues of federal-state judicial relations were at play in this case, and that was what was driving the unexpected outcome.  As Professor Shapiro has explained, “a court will often acknowledge that it has jurisdiction over the subject matter of a dispute yet, despite Marshall’s dictum, will refrain from exercising it.”[36]  In other jurisdictional settings (i.e., not on review of a state court judgment), the Court has developed a set of abstention doctrines designed to promote equity, comity, and federalism—Pullman,[37] Burford,[38] and Younger[39] to name a few of the most prominent examples.  Similarly, on direct review of state court judgments, the Court’s decision in a given case not to visit certain issues resolved in the state courts may also be driven by concerns for comity and federalism.  Leaving undisturbed a state court’s ruling on an issue in a case is a vote of confidence for the state courts; on the other hand, a reversal of a state court’s ruling on a run-of-the mill question may create friction between the federal and state judicial systems.  By not using the word “trespass” and appearing to retreat from the repeated use of that word inJones, Justice Scalia seems to have decided the case on an altered rationale.  But on closer examination, it appears that he may have been trying to avoid the affront to the state courts that would have occurred had he explicitly second-guessed a common law question at the core of their competence by saying that a trespass took place.  Calling the conduct at issue a “physical intrusion,” at the very least, avoided this in name.  How successful this attempt was at avoiding friction with the Florida state courts on a decidedly non-federal issue is another matter entirely.


In summary, the Court decided that the sanctity of the home was offended by the dog sniff in this case since the police entered this constitutionally protected area, but it did so in a roundabout way.  The result is that the state of the Jones “trespass” test is in flux and will spawn more litigation over whether there must be a finding of a common law trespass in order to rely upon that branch of Fourth Amendment search doctrine, or if instead, state and federal courts are to rely upon some notion of an unconstitutional “physical intrusion” whose relationship to common law trespass is unclear at this point in time.  Moreover, this case illustrates that the procedural posture of a case on certiorari from a state supreme court may affect the substantive content of the decision in the United States Supreme Court.  Here, there is strong reason to believe—in light of judicial federalism—that the finding in the Florida Court of Appeals that the officer and dog were lawfully present on the property tied the hands of the Supreme Court ever so slightly.  As a result, the Court’s holding finding a search was less than straightforward and tiptoed around the word “trespass” while, in effect, holding that is precisely what occurred.


         [1].   133 S. Ct. 1409 (2013).

         [2].   See Jardines v. Florida, 73 So. 3d 34 (Fla. 2011).  The Florida Supreme Court held that the Fourth Amendment draws a “firm line at the entrance of the house” and that the “sniff test” undertaken by the police and K9 partner was a search requiring probable cause and a warrant.  Id. at 55-56.  Since the dog sniff was conducted without a warrant, the search was held unreasonable and the evidence of drug activity was suppressed.  See id.

         [3].   132 S. Ct. 945 (2012).  The Court held that Fourth Amendment protections do not “rise or fall” with the Katzformulation, and that the Amendment is also concerned with government trespass.  Id. at 950.

         [4].   389 U.S. 347 (1967).

         [5].   277 U.S. 438 (1928).

         [6].   Id. at 464.

         [7].   See, e.g., Orin Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 820 (2004) (noting, in this pre-Jones article, that the touchstone of the Fourth Amendment is the “reasonable expectation of privacy” test which first appeared in Justice Harlan’s Katz concurrence).

         [8].   Katz, 389 U.S. at 361 (Harlan, J., concurring).

         [9].   Jones, 132 S. Ct. at 950.

       [10].   Id. at 952.

       [11].   Id. at 950 (citation omitted).

       [12].   A “search” requires probable cause and a warrant.  So the syllogism continues: if the government is trespassing, it quite obviously does not have a warrant, and is thus committing an unreasonable search within the meaning of the Fourth Amendment.

       [13].   James, 132 S. Ct. at 954.

       [14].   Id. at 957 (Alito, J., concurring).  Justice Alito’s analysis began: “I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.”  Id. at 958.

       [15].   Professor Kerr first identified this issue in an article in The Volokh Conspiracy.  See Orin Kerr, Supreme Court Hands Down Florida v. Jardines, Volokh Conspiracy (Mar. 26, 2013 10:38 AM),

       [16].   Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013) (quoting Jones, 132 S. Ct. at 950-51 n.3 (emphasis added)).

       [17].   See id. at 1417.

       [18].   See id. at 1418 (Kagan, J., concurring).

       [19].   See id. at 1420 (Alito, J., dissenting).

       [20].   Jardines v. Florida, 73 So. 3d 34, 61 (Fla. 2011) (Polston, J., dissenting) (“[I]t is undisputed that one dog and two officers were lawfully and briefly present near the front door of Jardines’ residence when the dog sniff at issue in this case took place.”).

       [21].   State v. Jardines, 9 So. 3d 1, 4 (Fla. Dist. Ct. App. 2008) (“[T]he officer and the dog were lawfully present at the defendant’s front door . . .”).

       [22].   See supra text accompanying note 16.

       [23].   See Jardines, 73 So. 3d at 46.

       [24].   See supra note 21.

       [25].   At oral argument, Justice Alito explicitly asked counsel for the defendant why the Court should not accept as a statement of Florida law that no trespass occurred, indicating some uneasiness from the bench with re-deciding an issue of state tort law and causing friction between the federal and state courts in our system of dual sovereignty.  See Transcript of Oral Argument at 59, Florida v. Jardines, 133 S. Ct. 1409 (2013) (No. 11-564), available at

       [26].   See Jardines, 133 S. Ct. at 1417.

       [27].   That is, there is no reason to think the finding of “no trespass” would be re-visited in any way.

       [28].   See supra note 21.

       [29].   To be clear, since there is no federal law of trespass, a judgment from the Supreme Court holding that a search had occurred due to a governmental trespass would effectively reverse the Florida courts on their resolution of an issue of common law.

       [30].   See infra note 34.

       [31].   See generally David L. Shapiro, Jurisdiction and Discretion, 60. N.Y.U. L. Rev. 543 (1985) (outlining the various ways in which the Supreme Court could exercise discretion on review of state court cases and concluding the discretion is necessary to avoid undue interference with the states).

       [32].   See supra note 16.

       [33].   See supra text accompanying notes 18-19.

       [34].   In conversations with Judge Raymond Lohier of the Second Circuit Court of Appeals, Judge John Koeltl of the District Court for the Southern District of New York, and Professor Helen Herhskoff of NYU Law, all told me that they had strong doubts that the Court would decide the Jardines case on anything but the REOP rationale, since going beyond that issue, and onto the new Jones test, would require a disagreement with the Florida courts on whether a common law trespass had occurred.  They all echoed Justice Alito’s concern of failing to accept the state courts’ resolution as an authoritative statement of Florida law.  Discussion with Judge Raymond Lohier, 2nd Circuit Court of Appeals and Judge John Koeltl, United States District Court for the Southern District of New York, in New York City., N.Y. (February 27, 2013) during New York University School of Law Constitutional Litigation Seminar, held at the United States District Court for the Southern District of New York, 500 Pearl Street, New York, NY; Interview with Helen Hershkoff, Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties, New York University School of Law, in New York City., N.Y. (March 4, 2013).

       [35].   The Supreme Court has certiorari jurisdiction to review state court judgments under 28 U.S.C. § 1257 (2012).  It has been relatively clear since Martin v. Hunter’s Lessee, 14 U.S. 304 (1816), that the Supreme Court, on review of a state court judgment, can review antecedent state law questions, which are those that must be decided in order to ultimately determine whether the state court properly decided an issue of federal law.  However, the Supreme Courts (and federal courts more generally) has adopted a set of abstention doctrines under which jurisdiction—and competence to address a certain issue—may be declined for reasons of equity, comity, or federalism.  The federal courts have not held fast to Justice Marshall’s admonition inCohens v. Virginia: “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.  The one or the other would be treason to the Constitution.”  Cohens v. Virginia, 19 U.S. 264, 404 (1821).

       [36].   Shapiro, supra note 31 at 547.

       [37].   See generally, Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941).  Pullman abstention involves staying a federal court action, but retaining jurisdiction, so that the state courts have an opportunity to interpret the constitutionally-suspect statute in question and thereby, potentially avoid the need for a constitutional decision.

       [38].   See Burford v. Sun Oil Co., 319 U.S. 315 (1943).  Under Burford abstention, a federal court sitting in diversity may stay its hand where the state courts have greater expertise in a question of state policy, and the question is of substantial importance to a state administrative scheme.  The idea is that the federal court should hesitate before interfering in a state administrative scheme in which the state courts play a vital role.

       [39].   See generally, Younger v. Harris, 401 U.S. 37 (1971).  Younger abstention is based on a rule of equity which forbids a court of equity from enjoining ongoing criminal proceedings, even where the individual being prosecuted is raising federal constitutional claims.  Also at play is a principle of comity, which holds that the state court will give the federal constitutional defenses in the criminal case a fair shake.