Editor’s Note: NDAA’s monthly case digest, Case Commentaries & Briefs (CC&B), was formerly printed as a separate periodical. Because the information is now so readily available on the Internet, we will be printing an abbreviated version of our former periodical in The Prosecutor magazine. The April 2001 issue of CC&B was the last to be printed.

U.S. Supreme Court

Diagnostic Test to Obtain Evidence of Patient’s Criminal Conduct Is Unreasonable Search Without Patient’s Prior Consent

Ferguson et al. v. City of Charleston et al., certiorari to the United States Court of Appeals for the Fourth Circuit, No. 99-936. Argued October 4, 2000, Decided March 21, 2001

In 1988, staff members at the Charleston public hospital, operated by the Medical University of South Carolina (MUSC), became concerned about an apparent increase in the use of cocaine by prenatal patients at their facility and offered to cooperate with the city in prosecuting mothers whose children tested positive for drugs at birth. A task force of MUSC representatives, police and local officials established procedures for identifying and testing pregnant patients suspected of drug use and for arresting patients who tested positive. Patients were prosecuted for drug offenses and/or child neglect, depending on the stage of the suspect’s pregnancy. MUSC obstetrical patients arrested after testing positive for cocaine filed this suit challenging the policy’s validity on the theory that warrantless and nonconsensual drug tests conducted for criminal investigatory purposes were unconstitutional searches.

Held: A state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search without the patient’s prior consent to the procedure. The interest in using the threat of criminal sanctions to deter pregnant women from using cocaine cannot justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant.

Two-Hour Seizure of Defendant Until Search Warrant Obtained Upheld

Illinois v. McArthur (99-1132) 304 Ill. App. 3d 395, 713 N.E. 2d 93, reversed and remanded, No. 99-1132 February 20, 2001

Respondent McArthur was charged with unlawfully possessing drug paraphernalia and marijuana (less than 2.5 grams), both misdemeanors under Illinois law. Police officers, with probable cause to believe that McArthur had hidden marijuana in his home, prevented him from entering the home unaccompanied while they obtained a search warrant. Upon entry, the officers found drug paraphernalia and marijuana, arrested McArthur and charged him with misdemeanor possession. He moved to suppress the evidence as the “fruit” of an unlawful police seizure, namely, the refusal to let him reenter his home unaccompanied. The Illinois trial court granted the motion, and the State Appellate Court affirmed. The Supreme Court reversed, holding that the seizure did not violate McArthur’s fourth amendment rights.

Police officers originally accompanied the respondent’s wife to the trailer they shared to keep the peace while she removed her belongings. The officers remained outside the trailer, and when the woman emerged, she suggested officers check the trailer because McArthur “had some dope in there.” Officers knocked on the door, told McArthur what his wife had said, and asked for permission to search the trailer, which he denied. One officer was sent to obtain a search warrant. The remaining officer told McArthur, who by that time was outside on the porch, that he could not reenter the trailer unless a police officer accompanied him. Approximately two hours later, officers returned with a warrant, searched the trailer, found a small amount of marijuana, and arrested McArthur.

In an opinion by Justice Breyer, the Supreme Court held that the seizure was lawful, noting that the officers had: (1) probable cause to believe the trailer contained drugs; (2) good reason to believe that unless restrained, McArthur would destroy the drugs before they could return with a warrant; (3) made reasonable efforts to reconcile law enforcement efforts with the demands of personal privacy by neither searching the trailer nor arresting McArthur before obtaining a warrant; and (4) imposed the restraint for a limited period of time, namely, two hours which was no longer than reasonably necessary for the police, acting with due diligence, to obtain a warrant. Citing Segura v. United States, 468 U.S. 796 (1984) and Mincey v. Arizona, 437 U.S. 385, 394 (1978), the court noted: “We have found no case in which this court has held unlawful a temporary seizure that was supported by probable cause and was designed to prevent the loss of evidence while the police diligently obtained a warrant in a reasonable period of time.”

The lone dissent came from Justice Stevens, who noted that: “Each of the Illinois jurists who participated in the decision of this case placed a higher value on the sanctity of the ordinary citizen’s home than on the prosecution of this petty offense. They correctly viewed that interest— whether the home be a humble cottage, a secondhand trailer, of a stately mansion—as one meriting the most serious constitutional protection. Following their analysis and the reasoning of our decision in Welsh v. Wisconsin, 466 U.S. 740 (1984) (holding that some offenses may be so minor as to make it unreasonable for police to undertake searches that would be constitutionally permissible if graver offenses were suspected), I would affirm.”

Federal Cases

Government Employees and Private Investigators Later Hired as County Criminal Investigators Entitled to Qualified Immunity

James York Brown v. Rolan Scott Lyford; et. al., No. 99-41297, Fifth Circuit, February 20, 2001

Appeal from a judgment of the district court granting summary judgment to various defendants in a section 1983 lawsuit. This suit arose from an aborted criminal investigation of child abuse and murder, presenting claims against arresting officials including malicious prosecution and false arrest. The court held that all the officer defendants were entitled to qualified immunity, that none was a policymaking official for the county defendant and affirmed the judgment of the district court.

This case involved two employees of the Texas Department of Protective and Regulatory Services (DPRS) assigned to investigate child abuse, a prosecutor “pro tem” who was appointed after the county’s regular district attorney recused himself, and two private “occult investigators” who were initially recruited by the DPRS employees and, during the course of the case and at the recommendation of the prosecutor pro tem, were hired by the county as criminal investigators. The charges against plaintiff-appellant Brown were dropped for lack of evidence and he brought an action under section 1983 against the five named defendants and the county.

Summary judgment against plaintiff-appellant Brown was affirmed.

Government’s Failure to Disclose Statements of Cooperating Co-conspirator does not Constitute Brady Violation

United States v. Gilberto Zuazo, No. 00-1728, Eighth Circuit, March 7, 2001

Defendant-appellant Zuazo was convicted of conspiracy to distribute controlled substances and aiding and abetting distribution of methamphetamine and cocaine. Zuazo’s counsel did not learn of the co-conspirator’s statements until the sentencing hearing. The defendant and one other individual, Gomez Corro, drove a car from Los Angeles to Minneapolis. The gas tank of the car was later found to contain cocaine and methamphetamine. Prior to Zuazo’s trial, Corro participated in two proffer sessions in conjunction with his plea. Although the government notified Zuazo’s counsel that it expected to have a cooperating co-conspirator, it neither revealed Corro’s identity nor made his statements available.

At trial, Zuazo testified he did not know the car contained drugs and that he accompanied Corro to Minneapolis in order to drive a van back to Los Angeles for $500. The government offered no direct evidence that the defendant knew of the drugs, but argued that he could not have been an unknowing participant for a variety of reasons.

Zuazo was convicted and at the sentencing hearing, defense counsel learned of Corro’s statements, which corroborated Zuazo’s account. Zuazo argued that the government was obligated to disclose Corro’s statements prior to trial under Brady, and that its failure to do so entitled him to either a new trial or a hearing to determine the necessity of a new trial, and that even if there was no Brady violation, Corro’s statements constituted newly discovered evidence entitling Zuazo to a new trial.

The court held that the government did not suppress evidence in violation of Brady by failing to disclose evidence to which the defendant had access through other channels. Similarly, when the government does not disclose a potential source of evidence but the evidence available from that source is cumulative of evidence already available to the defendant, it has committed no Brady violation. Because the defendant was well aware of Corro and his potential testimony, and because Corro’s statements would have done little to diminish the government’s theory and might have served to buttress it, the court concluded the government committed no Brady violation and the defendant was not entitled to a new trial.

Replevin Not Adequate Post-Deprivation State Remedy for 1983 Purposes When Plaintiff Required to File Lawsuits in Four Different Counties

Lathon v. City of St. Louis et. al., No. 00-1521EM, Eighth Circuit, February 28, 2001

Lathon appeals from summary judgment against him in a 1983 action for deprivation of property. In August of 1994, police officers executed a valid search warrant of Mr. Lathon’s residence. The officers seized numerous items, including 18 firearms and assorted ammunition. No criminal charges were ever filed against Lathon in connection with the property seized. His requests for the return of his weapons and ammunition, however, were rejected. The refusal to return property was based upon the police department’s decision that because of the circumstances of the seizure and the nature of the weapons as assault weapons (though it was not illegal for the plaintiff to possess them), the weapons and ammunition should not be returned absent a court order to do so. Five of the weapons were given by the police department to third parties—the sheriffs’ offices of three different counties in Missouri.

Held: the defendant-appellee government officials were not entitled to summary judgment because an action for replevin under Missouri state law was not an adequate post-deprivation state remedy in this case. Under Missouri law, a replevin action must be brought in the county where the property can be found. This would require Mr. Lathon to file separate suits to secure the return of his weapons. This was not found to be an “adequate” state remedy, and the judgment of the district court granting summary judgment on behalf of the named government officials was reversed and the case remanded.

Defendant Who Stayed in Hotel Room After Scheduled Check-out Time and After Housekeeper’s Visit to Clean Room Did Not Have Reasonable Expectation of Privacy in Room

United States v. Dorias, No. 99-10091, Ninth Circuit, March 1, 2001

Defendant Dorias rented a hotel room with a check-out time of noon. During his stay, hotel management became suspicious and alerted police that Dorias might be engaged in drug activity. On the day of check-out, at 10:00 am, Dorias was sent a message reminding him of the noon check-out time. Shortly after noon, the housekeeper knocked on the door to inquire when Dorias would be checking out, and he indicated that he would be staying until 12:30. At about 12:40, hotel management and six police officers went to the room to evict the defendant. Police entered the room and found controlled substances.

In holding that Dorias did not have a reasonable expectation of privacy in the room in this instance and therefore lacked standing to challenge the search, the court noted that it is possible for a hotel guest to have an expectation of privacy in their room after check-out time, because the mere expiration of the rental period, in the absence of affirmative acts of repossession by the lessor, does not automatically end a lessee’s expectation of privacy. In this case, the manager testified that it was the hotel’s policy to ask those guests staying past check-out time whether they would be leaving or extending their stay; it was not the hotel’s policy to evict guests who were staying past check-out time for brief periods. Nonetheless, the court found that the defendant’s reasonable expectation of privacy ended at 12:30, based on the facts that: the hotel made clear to the defendant that any extension past the check-out time would be of limited duration; and the defendant indicated his intent to vacate the room at that time. Therefore, the court concluded that the defendant’s expectation of privacy was reasonable only until 12:30, and affirmed the district court’s ruling that the defendant lacked standing to challenge the police entry of the room at 12:40.

Deputy Attempting to Serve Civil Process Did Not Violate Defendant’s Rights by Entering the Curtilage of the Defendant’s Home

United States v. Raines. Nos. 00-1984/1985, Eighth Circuit, March 5, 2001

Defendant Raines was convicted of cultivating marijuana after a sheriff’s deputy, at Raines’s home to attempt to serve civil process on a third party, entered the back yard of the home and discovered marijuana plants growing there.

After receiving no response at the front door but seeing several cars parked in the driveway, the deputy followed county procedure and proceeded to the back of the home believing the inhabitants might be outside and unable to hear him knocking at the front door. The deputy walked through a 10-foot wide opening in a wall of debris that acted as a make-shift fence around the perimeter of the property. Once through this opening, the deputy observed a large number of marijuana plants growing east of the defendant’s home. The court noted that officers must sometimes move away from the front door when attempting to contact the occupants of a residence. Thus, the court concluded, the deputy did not interfere with the defendant’s privacy interest when he, in good faith, went unimpeded to the back of the defendant’s home to attempt to contact the occupants of the residence.

Where the Court Finds that a Peremptory Strike was Based upon Several Race-Neutral Reasons as well as One Non-Race-Neutral Motive, No Batson Violation

Weaver v. Bowersox, No. 99-3462, Eighth Circuit, February 23, 2001

In response to a Batson claim, the prosecutor offered several racially neutral motives for striking a juror, as well as one non-racially neutral motive. The Missouri Supreme Court found that the peremptory strike “was based” upon the several race-neutral reasons. The Eighth Circuit Court of Appeals found that that decision by the Missouri court is equivalent to a finding (and necessarily implies) that the prosecutor would have exercised the strike even if he hadn’t expressed a facially discriminatory motive.

One judge dissented, and would have remanded to the district court to make a specific finding regarding whether the prosecutor would have stricken the juror but for her race, noting that if he would not have, then the petitioner would be entitled to habeus corpus relief.

State Cases

Kentucky Adopts “Head of Household” Standard for Third Party Consent Searches

Colbert v. Kentucky, 1998-SC-1070-DG

The Supreme Court of Kentucky upheld a mother’s consent to the search of her adult son’s bedroom and a closed container in the room, even though there was no evidence that she had common authority over the room.

After being called on a report that 19-year-old Colbert was “trashing” the house, officers arrested him, and obtained permission from his mother to search his basement bedroom. Officers found a small fireproof safe on the floor and opened it. The safe contained drugs and ammunition. Colbert was convicted of a controlled substance crime resulting from the possession of evidence inside the safe.

Colbert challenged the legality of the searches of both his bedroom and the safe found inside. He argued that, even if his mother had authority to consent to a search of the room, she did not have authority to consent to a search of the safe where the evidence was found, especially since he was present to object to the search. The record before the Supreme Court did not disclose whether the safe or the bedroom door was locked, nor did it indicate the degree to which Colbert’s mother had access to or common authority over his room. In upholding the search, the court noted that Colbert did not pay rent for his room, and applied a broad “head of household” standard, reasoning that as the parent, homeowner and head of the household, Colbert’s mother had authority to consent to a search of her home, specifically Colbert’s room, as well as its contents therein.

Two justices dissented.

New Jersey Court Rules Evidence of Drug Use Not Admissible to Show Motive

State v. Mazowski, N.J. Super Ct. App. Div., No A-2148-98T4, February 15, 2001

The New Jersey Superior Court, Appellate Division, ruled that evidence of a defendant’s drug problem should not have been admitted to show motive for theft and burglary. At trial, the state argued that the defendant’s motive for committing the crimes was to obtain money to support his drug habit. The court ruled that the state’s theory was evidence of an “undifferentiated motive to steal,” and not motive for committing these particular criminal acts. The court also noted that the evidence was irrelevant to any material issue, and its probative value was outweighed by the prejudicial effect of characterizing the defendant as a drug addict. The court rejected decisions from other jurisdictions that have allowed evidence of drug use to show motive.