Constitutional Criminal Procedure - Edward D. Lukemire and John Lynch

• Publication year: 1995

Constitutional Criminal Procedureby Edward D. Lukemire^* and John Lynch^**

I. Introduction

This year's survey of Eleventh Circuit criminal cases is primarily a review of those decisions which involve significant constitutional issues. As in recent years, a substantial number of the court's decisions resulted from drug prosecutions. This is due to the increase in federal resources devoted to drug prosecutions and the substantially longer sentences which often result from a federal drug conviction as compared to a state conviction for the same offense. The court also decided a great many cases involving issued interpreting the Federal Sentencing Guidelines. Even though these cases do not usually involve constitutional issues, the authors decided to include a Sentencing Guidelines section because this area of law has such a significant affect on the federal criminal law practitioner.

Even though both authors are career prosecutors, this article is not intended to present a "prosecution view" of the cases and issues discussed. Rather, our purpose is to provide all federal criminal law practitioners with a review of those decisions in the Eleventh Circuit which involve significant issues or developments.

II. Fourth Amendment

In United States v. Ford,¹ the Eleventh Circuit decided for the first time whether surveillance of a home by law enforcement officers using a thermal imager constitutes a search under the Fourth Amendment. In that case, the defendant owned a mobile home which was located on land leased by Ford and his co-defendant in Venus, Florida.² Law enforcement officers received information that the defendants were growing marijuana inside the mobile home. The officers entered the defendants' property over a locked gate and traveled a quarter of a mile onto the leased property where they established surveillance in thick foliage approximately thirty-five yards from the mobile home.³

An agent viewed the mobile home through a thermal imager, which is a passive, non-intrusive device which measures infrared heat.⁴ The agent determined that the mobile home was emitting an inordinate amount of heat through its floor and walls which was consistent with the generation of excess heat from artificial lights used in indoor marijuana growing operations.⁵ Based on information gained from the thermal imager and from other sources, the agents obtained a search warrant for the mobile home.⁶ When the agents executed the search warrant, they discovered a sophisticated hydroponic laboratory and over four hundred marijuana plants.⁷

On appeal, Ford challenged the district court's denial of his suppression motion in which he contended that the use of the thermal imager to detect heat emitted from his mobile home was an unconstitutional, warrantless search.⁸ The Eleventh Circuit held that thermal imagery, as used by the agents in this case, was not an unreasonable search under the Fourth Amendment.⁹ The court determined that Ford made no attempt to conceal the heat generated by his marijuana operation. Thus, he did not exhibit a subjective expectation of privacy in the heat emitted by his mobile home.¹⁰ Even if Ford had a subjective expectation of privacy in his vented heat, the court stated that it is not one that society is prepared to accept as objectively reasonable.¹¹ The court noted that, like aerial photography, thermal imagery is incapable of revealing the intimacy of detail and activity protected by the Fourth Amendment.¹² The court observed that the thermal imager operates by detecting differences in the surface temperatures of objects and cannot penetrate walls or windows to reveal conversations or human activities.¹³

A significant issue which was not addressed by the court was whether the agents conducted a warrantless search by invading the curtilage of the mobile home.¹⁴ The Eleventh Circuit ruled that the defendant waived the curtilage issue by not raising it in his pretrial suppression motion.¹⁵

In United States v. McGregor,¹⁶ the Eleventh Circuit addressed the issue of whether law enforcement officers created exigent circumstances when they made a warrantless entry into the defendant's house. United States Customs inspectors at a mail examining facility in Miami discovered cocaine in a package that had been sent from Peru.¹⁷ The inspectors decided to make a controlled delivery and obtained a warrant to place a beeper inside the package of cocaine; the beeper would alert the inspectors when the package was opened.¹⁸ The package was delivered to McGregor's home and the agents set up surveillance outside the home.¹⁹ Almost six hours after the delivery, the beeper sounded indicating that the package had been opened.²⁰ The inspectors then entered the defendant's house without a warrant and arrested him.²¹

In a motion to suppress, the defendant argued that the agents created the exigency by planting the beeper in the package, and that this made their warrantless search unreasonable.²² The majority of the Eleventh Circuit panel disagreed stating that the planting of the beeper did not create the exigency.²³ The exigency resulted from the package being opened and the tracing device being discovered.²⁴ The court determined that the agents reasonably believed that, once the package was opened, the cocaine could be destroyed if they did not immediately take action.²⁵ The court placed particular emphasis on the agents' uncertainty regarding when, where, or by whom the package would be opened, although McGregor was suspected.²⁶ The court concluded that, under the circumstances of this case, including the disposability of the cocaine, the inspectors did not act unreasonably when they decided that obtaining a warrant would be impractical.²⁷

There were some troubling facts in this case which lent credence to the dissenting judge's position that the agents created the exigency and a warrant could have been obtained. Prior to the delivery of the package, the inspectors initially attempted to get a warrant from a Florida state magistrate to enter McGregor's home if the beeper sounded.²⁸ These efforts were abandoned when they were informed that, under Florida law, they were required to wait fifteen minutes after the beeper sounded before entering the house.²⁹ The dissenting judge also noted that the agents had over five hours before the beeper indicated that the package had been opened to obtain a federal warrant, which would not have contained the waiting period required under Florida law.³⁰ This case is an illustration of the reluctance by judges to second-guess judgment calls of law enforcement officers made during rapidly developing undercover investigations, unless they appear to be inherently unreasonable or made in bad faith.

In United States v. Smith,³¹ the Eleventh Circuit considered the issue of standing to object to the warrantless search of a letter which contained LSD. In that case, United States Postal inspectors had obtained information that Smith was receiving LSD through the mail.³² In the course of the investigation, the inspector learned that Smith had asked a mail carrier about mail going to another person's address.³³ The inspector subsequently intercepted an envelope addressed to this other person which bore a crossed-out address to Smith.³⁴ The inspec- tor confronted the recipient of the letter and informed her that they believed she was being used to receive drugs in the mail.³⁵ The addressee of the letter said that the letter belonged to Smith, but she gave the inspector permission to open the letter in her presence.³⁶ The envelope contained LSD impregnated on blotter paper.³⁷ Prior to trial, Smith filed a motion to suppress the evidence seized from the envelope.³⁸

The Eleventh Circuit held that Smith did not have a legitimate expectation of privacy in the envelope and thus had no standing to object to the search of its contents.³⁹ The court based this decision on equivocal testimony which Smith gave at the suppression hearing regarding his ownership interest in the letter, and the fact that he was neither the sender nor the addressee of the letter.⁴⁰

The court declined to establish a bright line rule that a person who is neither the sender nor addressee of the letter could never have standing to object to the search of the letter. The implication of the court's ruling is that, had the defendant not equivocated concerning his ownership interest in the letter, he could have had standing to challenge the search even though his name did not appear on the envelope.

In United States v. Harris,⁴¹ the Eleventh Circuit upheld the validity of a search warrant in a complex drug and money laundering conspiracy, notwithstanding the fact that most of the information contained in the search warrant affidavit recited events which took place over two years prior to the application for the warrant.⁴² The court noted that the affidavit was sufficiently updated with contemporaneous information which overcame the defendant's claim that the search warrant was based on stale information.⁴³ The updated information consisted of the defendant's failure to report earnings or file income tax returns and alleged that as of one week prior to the search, records indicated that no state tax was being withheld for the defendant.⁴⁴ Of greater significance to the court were the facts in the affidavit which indicated that the defendant was maintaining an ongoing relationship with his co- conspirators as reflected by the observation of the co-conspirators at his house.⁴⁵

In rejecting the defendant's staleness claim, the court stated that the updated information supported the reasonable inference that criminal activity was continuing because it showed that Harris had no visible source of income, yet owned a large house, and that he continued to associate with members of the drug conspiracy.⁴⁶ This updated information made it probable that drug-related activities took place or that drug-related documents were stored at his house.⁴⁷

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