February Newsletter (Issue 02-2018)

Search Warrant Not Required to Search Abandoned Cell Phone

cell-phoneFacts and Procedure: On October 21, 2014, police received reports of shots being fired between two vehicles in St. Paul, Minnesota.  Dispatch informed responding officers that one of the vehicles, a tan Buick, had crashed into a house and its two male occupants had fled on foot.  Officers arrived at the scene to find the wrecked Buick with bullet holes along its passenger side and a shot-out rear window.  They noticed the Buick’s key in its ignition and a handgun on the driver’s side floorboard.  A witness informed the officers that after the crash the other vehicle’s shooter continued to fire at the Buick.

The witness stated that the Buick’s two occupants fled the scene on foot heading west, describing the suspects.  Officers found a man matching the description hiding behind a shed a block and a half away.  That man was appellant Prentiss Crumble.

Officers took Crumble into custody and drove him to the scene of the wrecked Buick, where he denied any knowledge of the shooting at the Buick.  When an officer searched the Buick later that day, he found a cell phone on the driver’s seat, which he secured into evidence.  The following day, the officer applied for a search warrant to search the cell phone for “information as to the second occupant in the Buick or further information related to the crime.”  A county judge issued a warrant to search “[a]ll electronic data (including but not limited to contacts, calenders, call records, voice messages, text messages, photo and video files) stored in” the phone.  In a subsequent search of the cell phone, the officer found a video of Crumble inside the vehicle that matched the description of the person who fled from the scene brandishing a handgun similar to that recovered from the Buick.  The video was recorded shortly before the shooting on October 21, 2014 at 1:15 p.m.

Crumble was charged with being a felon in possession of a firearm.  Crumble moved to suppress the evidence recovered from the cell phone.  The district court concluded that the evidence from the cell phone was admissible because Crumble abandoned the Buick and the phone left in it when he fled and subsequently denied any knowledge of the vehicle.  The district court alternatively held that the search warrant was supported by probable cause and did not lack particularity or amount to a general warrant.  Finally, even if there were no probable cause or a lack of particularity, the good-faith exception applied because it was objectively reasonable for the police to rely on the warrant.

Crumble entered a plea, reserving his right to appeal the district court’s denial of his motion to suppress evidence obtained in the search of his cell phone.  At sentencing, the government sought application of the Armed Career Criminal Act and imposed the mandatory minimum sentence of 15 years in prison.  Crumble appealed his conviction and sentence to the Eighth Circuit.

 Opinion: The Fourth Amendment protects citizens “against unreasonable searches and seizures.”  In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has a “reasonable expectation of privacy in the place searched․”  Therefore, the Court considered whether or not Crumble had a reasonable expectation of privacy in the cell phone he left behind in the Buick.

The Opinion starts with the premise that a defendant does not have a reasonable expectation of privacy in abandoned property; therefore, the police had the right to search the cell phone without a warrant.  Case law strongly supports the proposition that a “… warrantless search of abandoned property does not implicate the Fourth Amendment, for any expectation of privacy in the item searched is forfeited upon its abandonment.”  The Opinion determined that the cell phone was abandoned.

Does the abandonment rule apply to cell phones: The Eighth Circuit concluded that the United States Supreme Courts opinion in Riley v. California that required a search warrant to search a cell phone could be distinguished because the Riley holding is limited to cell phones seized incident to and arrest.  “Riley was explicit that “other case-specific exceptions may still justify a warrantless search of a particular phone.”  Other courts have found abandonment to be one such exception to the search warrant requirement because Riley did not eliminate the abandonment exception for cell phones.  United States of America v. Crumble, (8th Cir., 16-4308, 01/02/18)

Comment Howard: It seems pretty clear to me that the Eighth Circuit has teed this case up for review by the Supreme Court because the opinion does not rely upon the fact that the police officers obtained a search warrant.  The search warrant is simply a backup in case the abandonment theory fails.  If this case stands, it would be a major victory for law enforcement. Since our entire lives seem to be tied up with information stored on our cell phones I would be very cautious about this opinion.  Stay tuned.

Probable Cause to Make an Arrest Should Be Based on the Totality of the Circumstances

Facts and Procedure: District of Columbia police officers responded to a complaint about loud music and illegal activities in a vacant house.  Inside, they found the house nearly barren and in disarray.  The officers smelled marijuana and observed beer bottles and cups of liquor on a dirty floor.  They found a make-shift strip club in the living room, and a naked woman and several men in an upstairs bedroom.  Many partygoers scattered when they saw the uniformed officers. The officers questioned everyone and got inconsistent stories.  Two women identified “Peaches” as the tenant and said that she had given the partygoers permission to have the party.  But Peaches was not there.  When the officers spoke by phone to Peaches, she initially claimed that she was renting the house and had given the partygoers permission to have the party, but eventually she admitted that she did not have permission to use the house.  The owner confirmed that he had not given anyone permission to be there.  The officers then arrested 21 of the partygoers for unlawful entry.  The police transported the partygoers to the police station, where the lieutenant decided to charge them with disorderly conduct.  The partygoers were released, and the charges were eventually dropped.

Several partygoers sued for false arrest under the Fourth Amendment and District law. The partygoers’ claims were all “predicated upon the allegation that [they] were arrested without probable cause.”  The District Court concluded that the officers lacked probable cause to arrest the partygoers for unlawful entry and that two of the officers, were not entitled to qualified immunity.  A divided panel of the D. C. Circuit affirmed noting that there was no evidence that the partygoers had any reason to think the invitation was invalid; therefore, in the absence of any conflicting information there was no evidence in the record that the partygoers had any reason to think otherwise.  The D. C. Circuit concluded that a person with a good purpose and a bona fide belief of the right to enter lacked the necessary intent for unlawful entry.  The officers needed some evidence that the partygoers “knew or should have known” that they were entering against the will of the lawful owner.  Since there was no probable cause the officers were also not entitled to qualified immunity.  The U.S. Supreme Court granted certiorari to resolve whether the officers had probable cause to arrest partygoers, and whether the officers were entitled to qualified immunity.

Opinion: Probable Caused Is Based On Totality of the Circumstances: The Supreme Court noted that probable cause is an objective standard, and the arrest is lawful only if the officer has probable cause to arrest for any offense at the time of the arrest or booking.  Probable cause “deals with probabilities and depends on the totality of the circumstances.” It is “a fluid concept.”

In this case, there is no dispute that the partygoers entered the house against the will of the owner.  Considering the totality of the circumstances the Supreme Court concluded that the officers made an “entirely reasonable inference” that partygoers were knowingly taking advantage of a vacant house as a venue for their late-night party. Based on the condition of the house and the activities that were taking place it was reasonable to infer that the house was unoccupied.  Based on these facts the officers could infer that the partygoers knew that their party was not authorized.

The Supreme Court concluded that the Circuit opinion improperly viewed each fact “in isolation rather than as a factor in the “totality of the circumstances.” The “totality of the circumstances” standard requires courts to consider the whole picture recognizing that the whole is often greater than the sum of the parts.  Therefore, the officers had probable cause to arrest the partygoers.

The officers were also entitled to qualified immunity because there was no precedent that was “clearly established” that prohibited the officer’s conduct in these particular circumstances. District of Columbia v. Wesby, (U. S., 15–1485, 01/22/18)

Comment Howard: I think that this opinion is very useful and should be part of the training manual for police officers with respect to how to deal with vacant property. The opinion is particularly helpful with respect to what police officers can infer from the circumstances. Seems like Justice Thomas and the Court gave police officers a lot of running room with respect inferences based upon their observations that appear to be logical based upon the “totality of the circumstances.”


A recent case illustrating the use of mootness involved the Libertarian Party of Arkansas v. Martin, which involved a challenge to an Arkansas law, which treated new political parties differently than political parties as to how candidates were selected.

In the Libertarian Party case, a declaratory judgment brought under the Civil Rights Act was obtained that found the practices of Arkansas with respect to treating new political parties differently than existing parties was unconstitutional.  After this decision, before the case was final, the Arkansas legislature amended the state law to provide for similar treatment of the Libertarian Party as other existing political parties. The Secretary of State then filed a motion to dismiss the declaratory judgment on the grounds that the case was moot because there was no longer a “case or controversy,” as required by federal law.  The Secretary of State also argued that by mooting the case the Libertarian Party was not entitled to attorney fees and costs.  The motion to dismiss was sustained on the grounds that the case was moot. “When a law has been amended or repealed, actions seeking declaratory or injunctive relief for earlier versions are generally moot unless the problems are capable of repetition yet evading review.”  Despite the efforts of Arkansas the attorney’s fees and cost incurred by the Libertarian Party remained because the Libertarian party had succeeded on part of its claim.  Libertarian Party of Arkansas v. Martin, (8th Cir., 16–3794, 11/30 17)

Comment Howard: One useful tool that local government officials have in their arsenal, in the event an ordinance is found unconstitutional, is to fix the constitutional infirmity while the case is still active, thereby making the case moot.  The application of the mootness doctrine for federal cases, is based upon the United States Constitution, which requires that there must be a “case or controversy” in order for there to be federal jurisdiction.  The Missouri Declaratory Judgment Act also requires that there must be an actual controversy, which prohibits Missouri courts from issuing advisory opinions; therefore, mootness may also be used as a means to short-circuit a case in state court if the controversy is made moot by an amendment to an ordinance.

Offers of Judgment

When and how to make an offer of judgment was something that occasionally crossed my desk.  Because this was a rare occurrence, I felt I had to go to the books and refresh my memory on how this process worked as I weighed a decision as to whether or not to make an offer of judgment.  A recent article by Jeffrey D. Lester in the January–February 2018 edition of the Journal of the Missouri Bar, on the effective use of offers of judgment, provides an excellent source for reviewing this topic.  Local government lawyers who occasionally deal with the subject would do well to read this article and bookmark it.  Thank you, Jeffrey D. Lester for your excellent article.  MO BAR JOURNAL

Jury Verdict With Respect to Retaliation Upheld

Facts and Procedure: Respondent Janet Mignone was employed as a Corrections Officer I, at the Department of Corrections’ Western Missouri Correctional Center in Cameron, Missouri.  Mignone filed suit against the Department.  She alleged that she had been the victim of sexual harassment in her employment in violation of the Missouri Human Rights Act (or “MHRA”).  Mignone also alleged that employees of the Missouri Department of Corrections (Department) had retaliated against her for complaining about her sexual harassment.

A jury returned a verdict in favor of the Department on Mignone’s sexual harassment claim.  The jury however found in Mignone’s favor on her two claims of retaliation.  The jury awarded her $100,000 in compensatory damages, and $1 million in punitive damages. The Department appealed to the Western District.

Opinion: Disjunctive Argument: The Department argued that the jury instruction that Mignone submitted, setting forth the basis for the retaliation claim, was in error because Mignone failed to present sufficient evidence to support each of the alleged acts; therefore, the disjunctive submission was reversible error.

The Instruction, proffered by Mignone, read as follows:

“Your verdict must be for plaintiff and against defendant on plaintiff’s claim of unlawful retaliation if you believe:

First, Plaintiff reasonably believed that she was subjected to unwelcome comment(s) or conduct by Kevin Fagan, and

Second, either
Defendant reassigned Plaintiff from Housing Unit 6 to Administrative Segregation, or

Defendant issued Plaintiff a log entry for insubordination on or about October 11, 2012, or

Defendant issued Plaintiff a log entry on or about October 17, 2012, or

Defendant issued Plaintiff a log entry on or about Dec [sic] 12, 2012 for making exaggerated gestures/movements with her arms legs and for leaning across a desk, or

Defendant issued Plaintiff a log entry on or about January 16, 2013, for telling another officer she had a lawsuit pending against defendant, or

Defendant issued Plaintiff a log entry on or about January 30, 2013, for being “unprofessional” for walking backwards, and

Third, plaintiff’s complaint of unwelcome comment(s) or conduct by Kevin Fagan was a contributing factor in any of the conduct in Paragraph Second, and

Fourth, such conduct directly caused or directly contributed to cause damage to plaintiff.”

The Department admitted there was sufficient evidence that the acts took place thereby satisfying the requirement that there must be evidence to support each of the disjunctives.

What About Evidence of Damages? The Department, argued that the individual log notes should not have been submitted as independent acts of retaliation, because there was no evidence to show that each of the five log notes resulted in damage to Mignone.  The Department acknowledged that Mignone testified to the emotional distress she suffered as a result of the actions alleged in the log notes but the Department argued, “some evidence of damage beyond Mignone’s own statements should have been offered.” The Western District found that the testimony by Mignone of emotional distress was sufficient to support the claim of damages.

Retaliation Is Different Under Missouri Law than Federal Law: The Department contended that there was no actual retaliation because the Department “did not reduce [Mignone’s] pay, lower her work hours, and did not change her job duties” as a result of the purportedly retaliatory log entries.  The argument by the Department failed to acknowledge that Missouri law is different than federal law with respect to retaliatory claims.  Under federal law, it is necessary to prove that there was action taken to lower pay, hours worked or job duties; however, under Missouri law these requirements do not apply.  All the plaintiff is required to prove under Missouri law is that he or she suffered some damage due to an act of reprisal. In this case, the evidence of emotional distress was sufficient to show acts of reprisal by the Department as evidenced by the Log Entries.  Mignone v. Missouri Department of Corrections, (WD80108, 02/06/18)

Comment Howard: A recent study by the Missouri Attorney General showed that Missouri paid out $23 million in damages in 2016.  Sixteen of the Forty-five major payouts were related to employment discrimination.  One of the largest payouts was the $5.5 million judgment against Harris-Stowe State University recently reported in the MMAA newsletter.  In Mignone v. Missouri Department of Corrections, it seems that the damages were entirely preventable caused by sloppy management of the initial sex discrimination allegation.  This is also true with respect to the Harris-Stowe case although in many respects personal agendas influenced the outcome and significantly multiplied the damages.

Missouri Municipalities Settle Lawsuit Involving Underpaid Business License Taxes

The February 12, 2018 Edition of Missouri Lawyers Weekly reported that 254 municipalities reached a class action settlement of nearly $20.6 million with Ameren for underpaid business license taxes related to payments to Ameren “…from third parties for use of its utility poles and rights-of-way, ranging from cable-television lines to streetlights placed by subdivisions.”  Congratulations to John Mulligan and Howard Pepper, attorneys for a job well done.  If you were not a party to the lawsuit you may want to review payments made by your utility for similar mistakes.

Detroit Stray Dog Ordinance Unconstitutional But Application Generally Withstands Challenge

Facts and Procedure: Detroit has a stray-dog problem.  As many as 50,000 of them roam the city’s streets and abandoned homes, sometimes in packs.  One group in a position to appreciate the seriousness of the problem, the United States Postal Service, ranked Detroit sixth in its “Annual Dog Attack City Rankings” in 2016.

The Detroit City Council sought to address the problem by enacting an ordinance that tightened the regulation of animals within City limits.  The law imposed licensing and vaccination requirements on owners, sought to prevent the spread of rabies, and targeted “dangerous” or “vicious” animals.  It also empowered law enforcement to enter the homes and yards of pet owners if probable cause existed that they (or their dogs) had violated the regulations.  An assortment of dog seizures under the ordinance by officers of Detroit Animal Control, an agency of the City, prompted a dispute.  Some of the seizures arose from dog attacks on other dogs, some from attacks on people, some from reports of dogs menacing the neighborhood, some from rabies concerns, some from neglected dogs, and some from unlicensed dogs.

In response to these seizures, fourteen individuals, the owners collectively of twenty-three dogs (18 Pit Bulls, 3 Presa Canarios, 1 German were Shepherd, 1 Boxer), filed this § 1983 action, making three essential claims against the City and the Director of Detroit Animal Control.  The first: One part of the 2004 Detroit ordinance violated the Fourth Amendment by permitting officers to make warrantless searches of houses and yards to determine if the owners were complying with the City’s dog-licensing rules and related regulations.  The second: The City had a policy of unreasonably seizing dogs in violation of the Fourth Amendment.  The third: The City had a policy of depriving owners of their pets without due process in violation of the Fourteenth Amendment.  The individuals did not sue any of the individual officers who conducted the seizures.

The district court granted the plaintiffs an injunction with respect to the warrantless search-and-seizure claim, which was not contested by the City.  The district court then granted the defendants judgment as a matter of law as to the other claims because the plaintiffs could not show any constitutional violations.  The plaintiff’s appealed to the 8th Circuit.

Opinion: Must Show Direct Cause: In order for the plaintiff’s to prevail on their § 1983 Monell claims against the City and Director Ward under the Fourth and Fourteenth Amendments, the plaintiffs must show (1) that they suffered a constitutional violation and (2) that a municipal policy or custom directly caused the violation.  Plaintiffs appealed to the Eighth Circuit.

While the ordinance was unconstitutional, the Plaintiffs did not connect each alleged constitutional violation to the policy by showing that the policy “directly caused the violation” of Plaintiffs’ constitutional rights.  Plaintiffs tried to show that the city had a policy of rounding up as many dogs as possible in order to reduce the severity of the nuisance as a way to show that the city had a policy that violated the Constitution.  The review of the enforcement policy of the city showed that it was constitutional and that it did not contain the unconstitutional ordinance provision that allowed entry onto property without a warrant.  Without being able to show a policy the plaintiffs were stuck with individual cases to prove that a constitutional rights of dog owners were violated.

Most of the dogs that were seized violated other provisions of the ordinance like being on a public sidewalk, street or situations involving exigent circumstances.  All but two of Plaintiff’s claims came up short in proving there was a direct cause.  These cases involved city employees entering private property without a warrant to seize the dogs. Both were remanded to the district court for trial since there were material factual disputes.

In the case of Savage, the owner of the dog was absent from his home when the officers entered his yard and seized Savage.  The officer’s entry onto private property to seize the dogs without a warrant was a seizure of property in violation of the Fourth Amendment.  No exigent circumstances existed since the dog was seized some 53 days after the complaint.  These facts satisfied the direct-cause component of a Monell claim.

A similar conclusion applied to Rice’s dog: Charlotte because there was a material fact dispute, which precluded summary judgment.  The key problem for the government is that the evidence is unclear about where the officer seized Charlotte: on private property or on public property?  Some of the evidence suggested that the officers might have seized Charlotte after she left the property.  Other evidence, however, would permit the conclusion that the officer seized Charlotte on Rice’s property.  That material fact dispute precluded the city from disavowing reliance on the ordinance in making this seizure.  Moreover, there is no Fourth Amendment exception that would have allowed the officers to enter the property without permission.  A jury must resolve this claim.

Due Process Claim – A Claim of Negligence Will Not Support a Violation of section 1983: The plaintiffs also claimed a deprivation of property without due process because the officers placed their pets in the city’s animal shelter, which caused them to become sick and in some instances die.  The plaintiffs argued that this was a denial of due process after the seizures due to the lack of a citation that would have enabled them to contest the seizure or fines.  These claims failed because the plaintiffs did not show an underlying violation because negligence does not constitute a violation of Section 1983.

The Eighth Circuit affirmed in large part and reversed in small part based on the two outstanding claims.  Harrick v. City of Detroit, (6th Cir.,  16–2704, 11/22/17)

Comment Howard: As the court noted, there are not a lot of dog cases, (no pun intended) involving 1983 lawsuits making this case interesting and hopefully useful.  It seems like the plaintiffs, in this case, thought they had hit a gold mine when they found that the Detroit dog ordinance was clearly unconstitutional.  Once the court drilled down on the facts most of the cases went up in smoke.  The plaintiffs lost track of the basics of a 1983 action by failing to connect the actions of the city to the ordinance.

Circumstantial Evidence Can Be Used To Prove That Person Charged Was Driving The Vehicle In DWI Matter

Facts and Procedure: Trooper Smith was dispatched to Route O for a report of debris in the roadway.  Trooper Smith arrived at approximately 12:38 a.m. and found a black bumper in the road, a damaged guardrail with black paint transferred onto it, seven damaged support beams, and a license plate stuck in the guardrail.  Trooper Smith ran the number on the license plate, learned the plate was registered to Stuart, obtained Stuart’s contact information, and immediately drove to Stuart’s home.  No witnesses observed the accident.

At Stuart’s home, Trooper Smith found a vehicle with heavy front-end damage, a missing bumper, and a missing license plate.  Stuart’s wife answered the door and identified Stuart as the driver of the vehicle.  Stuart’s wife invited Trooper Smith inside the house, and Trooper Smith started speaking with Stuart.  Trooper Smith smelled a strong odor of intoxicants on Stuart, noticed that Stuart was mumbling and slurring his speech, and saw that Stuart’s eyes were watery and bloodshot.  Stuart admitted that he was the driver and that he had been drinking.  Trooper Smith observed Stuart swaying as he stood up and using a chair to maintain his balance.  Stuart told Trooper Smith two times that he had not been drinking after he arrived home following the crash.  Stuart’s wife corroborated Stuart’s statement to Trooper Smith.

Trooper Smith arrested Stuart for driving while intoxicated.  Stuart was read the Missouri Implied Consent Law and his Miranda rights.  Stuart later submitted to a proper breath test, which showed his blood alcohol content to be .176% at 2:24 a.m. and .160% at 2:56 a.m.

The Director of Revenue (“the Director”) suspended Stuart’s driver’s license, and subsequently conducted an administrative hearing at Stuart’s request.  After the bench trial, the trial court issued its written Findings of Fact, Conclusions of Law, and Judgment, which found in favor of the Director.  Defendant appealed to the Eastern District.

Opinion: On appeal, Stuart claimed that the trial court erred in finding that Trooper Smith had probable cause to arrest him for driving while intoxicated.

An officer does not actually have to observe a person driving to form probable cause to arrest a person for driving while intoxicated.  Circumstantial evidence can be shown to prove that a fact in issue because it “…gives rise to a logical inference that the fact exist.”  Probable cause needs to be more than a mere suspicion and “…turns on the assessment of the probabilities in particular factual contexts.”

Based on the facts, Trooper Smith had more than “mere suspicion” that Stuart had been driving while intoxicated.  Trooper Smith was dispatched to clear debris from a road when he encountered an apparent one-vehicle accident with no vehicles at the scene.  Using a license plate found at the scene, Trooper Smith obtained Stuart’s contact information and drove to Stuart’s house.

“At Stuart’s house, Trooper Smith found a vehicle with a badly damaged front-end. Trooper Smith also found Stuart obviously intoxicated inside the house.  Stuart smelled of alcohol and slurred his speech; his eyes were watery and bloodshot, Stuart admitted driving the vehicle during the crash.  Importantly, Trooper Smith asked two times whether Stuart had consumed alcohol since arriving home after the crash, and Stuart twice said that he had not.  Stuart’s wife corroborated Stuart’s assertion.  At this point, viewing the facts most favorably to the trial court’s judgment and rejecting contradicting evidence and inferences, a prudent, cautious, and trained police officer would have developed probable cause to believe that Stuart had been driving while intoxicated.”  Stuart v. Director of Revenue, 488 S. W.3d 743 (2016)

Comment Howard: The opinion written by Judge Odenwald is short but extremely powerful because it provides an excellent review of the law pertaining to making an arrest of a person based on probable cause, when there is only circumstantial evidence to show that the person arrested was driving the vehicle while intoxicated.

Clean Water Jurisdiction To Determine If Waters Are Subject To the CWA Lies In Federal District Court

In National Association of Manufacturers v. Department of Defense, the United States Supreme Court unanimously held that lawsuits challenging whether or not “waters” are subject to the Clean Water Act must be filed in federal district courts rather than federal courts of appeals.  Only two parts of the Act were at issue in this case: subparagraph (E), which encompasses actions “approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345,” §1369(b)(1)(E), and subparagraph (F), which covers actions “issuing or denying any [NPDES] permit,” §1369(b)(1)(F).6.  You should be aware that jurisdiction for effluent limitations and NP DES permits will lie in federal districts court instead of federal Circuit Courts.  National Association of Manufacturers v. Department of Defense, (US Sup, 16-299, 1/22/18)