Tag: Fourth Amendment

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Warrant required: Supreme Court ruling in Albemarle case bolsters Fourth Amendment

The Supreme Court says evidence from police peeking under a tarp within a home’s curtilage without a warrant is inadmissible in Collins v. Virginia. Submitted photo

Ryan Collins already was on the radar of Albemarle police in 2013 after he eluded officers on two separate occasions on a flashy orange and black motorcycle. Five years later on May 29, the U.S. Supreme Court upheld his argument 8-1 that police needed a warrant to search for the bike outside his girlfriend’s house in what legal experts are calling a big win for the Fourth Amendment.

The county cops suspected the bike that got away from them was stolen, and when Officer David Rhodes saw a photo of a similar motorcycle on Collins’ Facebook page, he tracked it down to a house where Collins’ girlfriend lived, according to court documents.

Rhodes could see a tarp covering what appeared to be a motorcycle next to the house, walked up the driveway “to investigate further,” says the court opinion, and removed the tarp. The license plate number showed the bike was stolen, and when Collins returned to the house, he told Rhodes the bike was his and he’d bought it without a title. Rhodes arrested him and Collins was convicted of receiving stolen property in May 2014.

Collins argued that Rhodes needed a warrant to enter the house’s curtilage—the area immediately around a house that’s also protected by the Fourth Amendment—but the state Court of Appeals and Supreme Court of Virginia upheld the warrantless search under the “automobile exception,” which gives police greater leeway to search vehicles on public streets.

Supreme Court Justice Sonia Sotomayor—and seven other justices—did not agree. “The question before the court is whether the automobile exception justifies the invasion of the curtilage. The answer is no,” she writes in the court’s decision.

Allowing police to use the automobile exception to conduct warrantless searches “would render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage,” she says. “Indeed, its name alone should make all this clear enough: It is, after all, an exception for automobiles.”

Collins’ attorney, McGuireWoods’ Matthew Fitzgerald, UVA law class of ’08, has been described as a rising star in the rare air of Supreme Court litigation. He calls the court’s favorable ruling “excellent,” but says Collins’ legal battle isn’t over.

“The state has the opportunity to argue another exemption applies—the exigent exemption,” he says. The Supreme Court corrected the Supreme Court of Virginia in that the automobile exemption does not apply, he says, but the state is “entitled to argue” that it was an emergency that Rhodes conduct a warrantless search.

Police were looking for the bike because Collins had eluded them, not because the bike was stolen, says Fitzgerald, and it was easier to pursue the receipt of stolen goods charge because “it’s difficult to prove who was driving it months earlier.” Collins, who is in his early 30s, served several months in jail, says his attorney.

“If police had been doing things right, they would have gotten a warrant,” says Fitzgerald.

Albemarle County Police Chief Ron Lantz declined to comment on the SCOTUS ruling.

The Rutherford Institute filed an amicus brief in the case focusing on the sanctity of curtilage, and its founder, John Whitehead, applauds the ruling. He says it makes clear that police should stay off driveways and lawns unless they have a warrant. “If not, nothing in your yard is safe,” he says.

Supreme Court decision in Collins v. Virginia courtesy Rutherford Institute

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First brush with the law: Know your rights when encountering police

Let’s just go ahead and get the obligatory warning out of the way: Don’t do illegal stuff.

But we know that some of you will, and when you encounter police, at least be aware of your rights so you don’t get yourself in more trouble than you’re already in. For legal advice, we consulted attorney David Heilberg, who reiterates: Don’t do illegal stuff. Don’t possess anything on your person, in your home or in your car that you don’t want the police to find in a search.

Here’s his advice for those who don’t heed that advice and find themselves in these typical situations.

Pulled over by police

The most common question Heilberg gets when he talks to sororities or fraternities is what to do if an officer asks you to consent to a search of your car. Decline permission. “That’s like waving a red flag in front of a bull,” he concedes. “They’re going to come up with a way to do it. The police can smell marijuana better than ordinary folks whether it’s there or not. Often they will try to detain you long enough for backup to arrive with a drug-sniffing K-9 to justify your search and arrest.”

However, “You have to assert your rights,” he says. And we don’t have to tell you that would be the Fourth Amendment protection against unreasonable and warrantless searches, right?

Make sure dashboard camera footage is preserved. And don’t talk to officers if they find anything.

Underage drinking party raid

“Don’t have a party, don’t have alcohol,” stipulates Heilberg.

First, dump the contraband. Should you run into the woods?

“If you’re not physically under arrest, you can walk away,” says Heilberg.

You’re under no obligation to take a breathalyzer, he says, “but if they smell alcohol, they may arrest you for possession.”

Stopped on the street

“If accosted on the street, without being rude or impolite or a jerk, you’ve got to assert your rights,” says Heilberg.

Again, you don’t have to talk to police unless you’re in a traffic accident when you are required to exchange personal, vehicle and insurance information with anyone else involved and police.

Remember these questions: Am I under arrest? Am I free to go?

Help solve a crime

In the 2007 alleged smoke bomb plot in which a disturbed teen talked about blowing up two Albemarle high schools, a 13-year-old boy was asked to come to the police station to help with the case—and he was charged with conspiracy.

If you’re asked to come down to the station for a friendly chat, “That’s when you call your lawyer,” says Heilberg. And make sure your parents are involved to stop the questioning until you have a lawyer, he advises.

Heilberg’s pet peeve: “Most people don’t know police are allowed to lie to you. I don’t think this should ever be permitted when the suspect is a juvenile. Why should your first encounter with the law teach you you can’t trust police?”

You don’t have to talk to police. “If you didn’t do anything wrong and want to talk to police, if that conversation doesn’t end in a reasonable time and shifts to an interrogation, it’s okay to say, ‘I want my parents, I want a lawyer,’” he says.

In another notorious local case, 18-year-old Robert Davis was arrested for a double homicide in Crozet, coerced into what has been called a “textbook” false confession and spent 13 years in prison before he was pardoned by then Governor Terry McAuliffe. His mother, Sandy Seal, before she died just weeks after his full pardon, said, “I’ve been kicking myself. I never talked to my kids and said, ‘If a policeman wants to talk to you to clear something up, say you want a lawyer.’”

Says Heilberg to would-be teen clients, “I look forward to not meeting you in my office.”

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Racial profiling: Case against Albemarle cop moves forward

Albemarle police officer Andrew Holmes, photographed in 2011, received qualified immunity on two of the claims against him, but the racial profiling part of the lawsuit will move forward. Photo Hawes Spencer

A federal judge issued an opinion last week that allows a lawsuit against Albemarle County and police officer Andrew Holmes to proceed on its racial profiling claim, while giving Holmes qualified immunity on claims he violated the plaintiffs’ Fourth Amendment rights when he showed up at their home around midnight to look for a DMV license suspension notice.

Holmes pulled over Delmar Canada April 26, 2014, and ticketed him for driving on a suspended license. The next day Holmes obtained a search warrant and asserted that from his training and nine years of law enforcement experience, he was aware that people kept driver’s license suspension documents in their homes, according to a brief.

Five days later, on a Friday night, Holmes and three other officers showed up at the Turtle Creek condo Canada shared with Bianca Johnson, and detained the couple for two hours while they searched the residence.

Judge Glen Conrad ruled that Holmes had qualified immunity in the unlawful search and seizure claims because “the doctrine gives ample room for mistaken judgments ‘by protecting all but the plainly incompetent or those who knowingly violate the law.’” Conrad said the plaintiffs’ argument that the officer should have known there was no probable cause for the search warrant was “unpersuasive.”

Canada and Johnson gained more traction on their equal protection claim that Holmes’ application for the warrant and the search itself were motivated by their race. Wrote Conrad, “The plaintiffs allege that Holmes has ‘a history and practice of targeting African-American males for vehicle stops and intrusive searches.’”

He also denied Albemarle’s motion to dismiss the suit against the county on the grounds that “numerous complaints by African-Americans” had been lodged with the police department before this incident, and the county, by not taking corrective or disciplinary action, condoned his actions.

“We can hold the county liable because they were aware of the complaints,” says Jeff Fogel, who represents Canada and Johnson. “I know a number of complaints were filed because I have the names of people who did.”

Through discovery, says Fogel, he will scrutinize all summons Holmes issued over the past five years for race.

“In a sense, it’s an important hurdle but we still have a lot of work to prove what we’ve alleged,” he says. The case was really about racial profiling, he says, and he’s “quite content” with the judge’s ruling.

Jim Guynn, who represents Holmes and the county, says he’s pleased about “two-thirds” of the judge’s ruling. “It’s very early in the case and the fact the judge thought any of it could be dismissed is a good thing for the defendants,” he says.

As the case proceeds, he says he’ll give the judge another opportunity to dismiss the suit.

Holmes still faces two other racial profiling lawsuits, and Conrad said he would rule on the motions to dismiss those separately. In both those cases, the plaintiffs contend Holmes pulled them over, claimed he smelled marijuana and held them for two hours without turning up any drugs.

Johnson is happy the racial profiling part of the suit can proceed. “We can bring attention to how the police are abusing their power and stopping African-Americans,” she says. “[Holmes] is well-known in the community for targeting African-American men.”

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