Searches and seizures come in many different forms. This column looks at two recent challenges under the Fourth Amendment, which protects us from unreasonable searches and seizures by the government.
Traffic stops for investigative purposes form the basis of many Fourth Amendment challenges. The police may not just stop motorists on a whim. The police may make an investigative stop of a car only if the officer has "a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot.' "
That language comes from the leading U.S. Supreme Court decision on the subject. In deciding whether that standard is met in a particular case, the court must look at the totality of the circumstances in each case.
Last month the U.S. Court of Appeals for the Sixth Circuit, which sits in Cincinnati, was faced with the question of whether a 911 call to the police, in which the caller simply hung up, was enough to provide the police with reasonable suspicion in a subsequent traffic stop and arrest.
Two Kentucky police officers were sent on a "trouble run" by a dispatcher to an address on Wooded Glen Court in Jeffersontown, Ky. Someone at that address had placed a 911 call but hung up without speaking to the 911 operator.
When the officers got to the street — although not to the particular house in question — they saw a car turning off Wooded Glen Court.
The officers stopped the car and told the driver, Demetrius Cohen, they had stopped him because of a 911 hang-up. Cohen was asked for his registration, license and proof of insurance. At first he provided none of these but then he got out of his car, hands in the air, and provided his license. After checking, the dispatcher reported the suspension of Cohen's driver's license and the fact that there was an outstanding arrest warrant for an Indiana probation violation. Cohen was placed under arrest.
After arresting Cohen, one officer searched his car and found a handgun in the trunk and ammunition under the driver's seat. Cohen was charged under federal laws prohibiting a felon from possessing a gun and ammunition.
Cohen filed a motion to suppress the gun and the ammunition found during the search of his car, on the grounds that the officers had no proper basis to stop his car in the first place. If a motion to suppress is granted, that evidence cannot be used against an accused at trial.
The trial judge granted Cohen's motion to suppress. The government appealed that decision to the Sixth Circuit, which, in a unanimous ruling, agreed with the trial court.
The issue in this appeal was whether the officers had reasonable suspicion to stop Cohen's car. When deciding such issues, lower courts always look first to pertinent U.S. Supreme Court precedent. The case most relevant was a decision dealing with anonymous tips to police.
In 2000, the high court held that an anonymous tip might or might not provide enough information to justify an investigatory stop. If, for example, all the caller gives to the dispatcher is an accurate description of a person's appearance and location, that's not good enough. By contrast, if the tipster provides predictive information about specific illegal behavior and corroborating details, that might be good enough.
The Sixth Circuit observed that citizens might call 911 for a variety of reasons, such as to report a fire or for a medical emergency. Some might dial 911 accidentally or as a prank. The court concluded that "the virtually complete lack of information conveyed by the silent 911 hang-up call and the total absence of corroborating evidence indicating that criminal activity was afoot" meant the police didn't have the necessary reasonable suspicion for the investigative stop. Cohen won his Fourth Amendment challenge.
A quite different kind of Fourth Amendment decision was handed down at about the same time as the Cohen case by the 10th Circuit Court of Appeals, which sits in Denver. The case arose in Oklahoma, which is part of the 10th Circuit.
Michael Barrows was the treasurer of the city of Glencoe, Okla. He shared a workspace and a computer with the city clerk in an open office in the town's city hall. There was little privacy. The space was frequently invaded by other workers to use the fax and copy machines. Because Barrows and his co-worker could not use the computer at the same time, he brought his personal computer to work. He networked his computer with the city's and then did all of his city work on his personal computer.
But Barrows didn't restrict access to his computer. He provided no password protection. He didn't prohibit others from using it. He left it on all the time.
One day the city clerk who shared the space with Barrows developed trouble accessing city files on the city computer. She sought help from a reserve police officer, who happened to be at City Hall, because he was also a former computer salesman. To try and solve her problem, the officer accessed Barrows' networked computer and found files containing child pornography. Barrows was arrested and convicted of child pornography charges.
At his trial, he tried to get the pornography evidence suppressed. Like Cohen, in a different context, Barrows argued his Fourth Amendment right to be free from unreasonable searches and seizures was violated.
To resolve Barrows' challenge, the appeals court had to determine whether Barrows had a legitimate expectation of privacy in his personal computer. If he did, the evidence would be suppressed. To answer that, the court had to determine if Barrows manifested a subjective expectation of privacy in the computer and, if so, whether it was reasonable.
The court found that, although private ownership is a very important factor in favor of Fourth Amendment protection, it is not dispositive. Here the fact that Barrows voluntarily moved his computer into a public space, knowingly networked it to the city computer, took no steps to prevent third-party use of it and never turned it off meant that, even if he did have a subjective expectation of privacy, it was not a reasonable one.
Thus the evidence seized was properly used against him, and his conviction and sentence were upheld.
Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.
