Monday, December 30, 2013

The Expired License, the NSA and the 4th Amendment

After Daniel Folkman was charged with one count of operating a motor vehicle while intoxicated in violation of Wisconsin Statutes § 346.63(1)(a) and one count of operating a motor vehicle with prohibited alcohol concentration in violation of Wisconsin Statutes § 346.63(1)(b), he moved to suppress certain evidence.  State v. Folkman, 2013 WL 6598725 (Wisconsin Court of Appeals 2013).

When the trial judge denied his motion, Folkman entered a plea of no contest to the charge of operating a motor vehicle while intoxicated and was found guilty. State v. Folkman, supra.  Folkman appealed.  State v. Folkman, supra.  The opinion does not say what, if any, penalty the judge imposed, but this site outlines the possibilities.

This, according to the brief Folkman filed on appeal, is how the case arose:

In the early morning hours of May 27, 2012. Shawano Sheriff Deputy B. Klenke was on patrol in the Village of Cecil. . . . At approximately 2:30 AM, Klenke observed a vehicle traveling northbound on N. Warrington Ave., approaching State Highway 22. . . . Klenke did not see anything unusual about the vehicle: for example, [it] was not speeding, nor was it going too slow, it was traveling within its lane boundaries without problem and all of the vehicle's running lights were operating normally. . . .

Nevertheless, after Klenke observed the vehicle's front license plate, he ran the vehicle's registration through the eTime system: the system returned a match for the same vehicle. . . . After doing that, Klenke decided to run the registered owner of the vehicle, who was . . . Folkman. . . . Klenke learned upon running Daniel’s registration check that his driver's license had been expired for about four months. . . .

Upon learning of Daniel's expired status. Klenke turned his vehicle around, activated his emergency lights and initiated a traffic stop. . . . Klenke made contact with Daniel, who was the driver of the vehicle, and after obtaining information that lead [him] to believe Daniel was impaired arrested him for suspicion of Operating While Intoxicated. . . .

Defendant-Appellant’s Brief, State v. Folkman, 2013 WL 5676409 (Wisconsin Court of Appeals 2013).

This is how the prosecution’s brief on appeal explains how the prosecution arose:

On May 27, 2012, at approximately 0230 Shawano County Deputy Ben Klenke was on patrol in the Village of Cecil in Shawano County when he observed a vehicle northbound on North Warrington Avenue approaching Hwy 22. . . . He observed the vehicle's front registration plate as Wisconsin auto 606CCT. Klenke then ran the vehicle's registration through eTime and the return matched the vehicle he saw. . . .

Klenke then ran the registered owner of the vehicle, Daniel Folkman, through the same eTime System and Folkman had an expired license and it had been expired for approximately four (4) months. . . . Klenke turned around and caught up to the vehicle on CTH H just west of CTH R, activated his emergency red and blue lights and initiated a traffic stop on the vehicle. . . . After notifying dispatch of his location Klenke approached the vehicle and made contact with the driver. . . .

The driver was the only person in the vehicle. . . . Klenke explained why he stopped the vehicle and asked for a driver's license. . . . The driver admitted he was Daniel Folkman. . . . Klenke . . . then made observations of the driver and after Folkman refused to do Standard Field Sobriety Tests Folkman was placed under arrest for Operating While Intoxicated.

Brief of Plaintiff-Respondent, State v. Folkman, 2013 WL 6077153 (Wisconsin Court of Appeals 2013).

On appeal, Folkman argued that the trial judge erred in denying his motion to suppress.  State v. Folkman, supra.  In his motion, Folkman “conceded Klenke lawfully viewed his license plate number and that, once Klenke knew the vehicle's owner was not validly licensed, Klenke had reasonable suspicion to stop the vehicle.”  State v. Folkman, supra. 

The concession means Folkman was not claiming that Klenke’s looking at and reading his vehicle license plate was a “search” under the 4th Amendment.  As I have explained in prior posts, the 4th Amendment creates a right to be free from unreasonable searches and seizures, and a “search” violates a “reasonable expectation of privacy” under the Supreme Court’s decision in Katz v. U.S., 389 U.S. 347 (1967).  So Folkman was not claiming he had a reasonable expectation of privacy in his license plate, which would not have been a viable argument; under Katz, he forfeited any expectation of privacy in the plate by “knowingly exposing” it to public view.  

By conceding that Klenke had “reasonable suspicion” to stop his vehicle, Folkman was not claiming the “stop” of him and his vehicle was an “unreasonable” seizure in violation of the 4th Amendment’s ban on unreasonable searches and seizures.  As Wikpedia notes, a traffic stop is a 4th Amendment “seizure” of a person because it interferes with the person’s freedom of movement.  As Wikipedia also notes, under the Supreme Court’s decision in Delaware v. Prouse, 440 U.S. 648 (1979)

an officer has made an illegal seizure when he stops an automobile and detains the driver in order to check his driver's license and the registration of the automobile, unless the officer has articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or either the vehicle or an occupant is otherwise subject to seizure for violation of law.
Here, Folkman claimed Klenke’s stopping him and his vehicle “was unlawful because Klenke needed, but did not have, `some exigent circumstance’ in order to begin querying registration and driver's license information on the eTime system.”  State v. Folkman, supra.  In other words, Folkman claimed Klenke’s running checks on his registration and license information was a 4th Amendment “search”, and for such a search to be “reasonable” Klente had to either have a search warrant (which he did not ) or his actions had to be authorized by an exception to the 4th Amendment’s default requirement that searches be justified by a warrant.  Folkman claimed (i) the exigent circumstance exception did not apply here and (ii) because it did not apply Klente’s actions violated the 4th Amendment. State v. Folkman, supra.

The judge denied Folkman’s motion to suppress because he found the issue presented was

`whether the running of . . . registration information . . . violate[s] any type of 4th Amendment issues.’ The court stated to answer that question it needed to determine whether there is `a reasonable privacy expectation that individuals, including law enforcement officers, will not be able to check the registration[.]’ The court concluded individuals do not have a reasonable expectation of privacy in registration or license information. It reasoned, `when you have your plate, it's made visible’ and must remain visible per law. The court explained a license plate is required to be visible so that

`officers can see your plate. Also, you have to register your vehicle with the State. Everyone knows that it is subject to check. It can be checked by law enforcement. So I don't think that anyone has a reasonable expectation of privacy that an officer will not run that plate. So, I do believe that an officer can legally, under ... our State law and under the U.S. Constitution, . . . run a license check on your vehicle without having probable cause that a crime was committed.’

State v. Folkman, supra.

On appeal, Folkman did not “directly address the circuit court's conclusion that he lacked a reasonable expectation of privacy in his registration and license information on the eTime system.” State v. Folkman, supra. Instead, he repeated the argument noted above, i.e., that “Klenke needed `exigent circumstances’ before he could query information about Folkman's registration and license.” State v. Folkman, supra.

In making that argument, Folkman relied on two cases, the first of which was the Supreme Court’s decision in Delaware v. Prouse, supra.  In Prouse, the Court held that unless an officer has “reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law,” it is a violation of the 4th Amendment for the officer to stop the vehicle and detain “in order to check his driver's license and the registration of the automobile”.  State v. Folkman, supra. 

He also relied on the Wisconsin Supreme Court’s decision in State v. Lord, 297 Wis.2d 592, 723 N.W.2d 425 (2006), in which that court held that it violates the 4th Amendment for an officer to stop a vehicle and detain a driver “without probable cause or reasonable suspicion simply to check the registration and license information.”  State v. Folkman, supra.  More precisely, Folkman argued that
`[t]he only difference between the facts in Lord and the instant case is that the officer physically stopped Lord's car to check his vehicle registration because Lord was displaying temporary plates that could not be checked through the eTime system.’ 

He contends, `carrying the holding of Lord to its logical conclusion, since Klenke had no knowledge of any other independent exigent circumstances regarding [Folkman] or his vehicle, his running the vehicle's license plate was unreasonable, . . .a violation of [Folkman's] 4th Amendment right against unreasonable search[es] and seizure[s].’

State v. Folkman, supra. 

The Court of Appeals did not agree, noting there is “a considerable difference” between an

officer stopping, or seizing, a vehicle to check the registration and license information and an officer running registration and license queries in a law enforcement database. In the former situation, it is well-established that an individual possesses `a reasonable expectation of privacy, under the 4th Amendment . . . to travel free of any unreasonable governmental intrusion.’ State v. Harris, 206 Wis.2d 243, 557 N.W.2d 245 (Wisconsin Supreme Court 1996).

Because individuals have a reasonable expectation of privacy to travel free from government intrusion, any intrusion on an individual's travel must be reasonable to be constitutional. See State v. Popke, 317 Wis.2d 118, 765 N.W.2d 569 (Wisconsin Supreme Court 2009). `A traffic stop is generally reasonable if the officers have probable cause to believe that a traffic violation has occurred, . . . or have grounds to reasonably suspect a violation has been or will be committed.’ State v. Popke, supra.

State v. Folkman, supra. 

The court therefore noted that “[n]either Prouse nor Lord establish Folkman has a reasonable expectation of privacy in his registration and driver's license information.”  State v. Folkman, supra.  As I noted earlier, if he did not have such an expectation of privacy in that information, it was not a 4th Amendment “search” for Klente to run a check on either or both, which meant Klente did not need either reasonable suspicion or probable cause or a warrant or an exception to the warrant requirement in order to do so without violating the 4th Amendment. 

Folkman had one final argument on that issue. As the Court of Appeals noted

[he] argues . . . that he has an expectation of privacy in the information because it is `inaccessible to civilians, and is only usable by government officers in the exercise of their police powers[.]’

He then likens the State's collection of registration and driver's license information to the National Security Agency's purported `hacking’ and collection of personal emails and telephone conversations. He asserts that, because the federal government has stated it will only examine the information it collected if it has a valid reason to do so, it must follow that `Klenke had every right to access the eTime system so long as he has a valid reason for doing so.’

State v. Folkman, supra. 

Once again, the Court of Appeals did not agree, explaining that Folkman’s argument

fails to establish he has a reasonable expectation of privacy in his registration and license information. As previously stated, an individual has a reasonable expectation of privacy if the individual has a subjective expectation of privacy that society recognizes as reasonable. . . .

That individuals have an expectation of privacy in personal emails and telephone conversations that were collected through `hacking’ does not mean individuals have the same expectation of privacy in vehicle registration and licensing information, which, as the circuit court observed, is information that individuals are required to submit to the state.

State v. Folkman, supra. 

It held, therefore, that Folkman

has the burden of proving by a preponderance of the evidence that he has a reasonable expectation of privacy in the information. . . . Because he failed to establish he has a reasonable expectation of privacy in the information, Folkman has not triggered the 4th Amendment's prohibition against unreasonable searches and seizures. . . .

State v. Folkman, supra.  So the court affirmed Folkman’s conviction. State v. Folkman, supra. If you are interested, you can read a little more about the case in the story you can find here, including a statement from Folkman's lawyer, who wants the Wisconsin Supreme Court to hear the case because "police should not be allowed to randomly check license plates without a good reason."

Friday, December 27, 2013

The Cell Phone, Cellebrite and Search Incident to Arrest

After he was charged with violating 18 U.S. Code § 1951(a) (the Hobbs Act) and 18 U.S. Code § 924(c)(1)(A)(i), Woodrow Rudolph Dixon, Jr. filed a motion to suppress certain evidence, as I explain below. U.S. v. Dixon, 2013 WL 6055396 (U.S.District Court for the Northern District of Georgia 2013).   

Section 1951(a) makes it a federal crime to obstruct, delay or affect commerce by “robbery or extortion” or by committing or threatening physical violence against “any person or property”.  Section 924(c)(1)(A)(i) makes it a federal crime to use or carry a firearm “during and in relation to any crime of violence or drug trafficking crime”.

The only information I can find about how the case arose is in this opinion, and all it says is at the evidentiary hearing on the motion to suppress,

[Federal] Agent Spence Burnett testified that [Dixon] was arrested on an arrest warrant issued on the basis of a complaint charging him with conspiracy to rob an individual he believed was a drug trafficker and with possession of firearms in relation to the conspiracy. . . .

Burnett confirmed [Dixon] was arrested as he exited a building and was handcuffed and secured at that time. . . . Burnett also testified that before the arrest he was aware of information indicating [Dixon] had used telephones in connection with the commission of the offense for which he was being arrested.

U.S. v. Dixon, supra.

Dixon moved to suppress “any evidence obtained from the search of his Samsung cell phone by an agent with the Bureau of Alcohol, Tobacco,and Firearms (`BATF’) conducted after it was seized from him at the time of his arrest”. U.S. v. Dixon, supra.  According to the opinion, this is how the search came about and what it involved:

[T]he only phone at issue is the Samsung cell phone [Dixon] had open in his hand and was using when he was arrested. . . . [It] is a Samsung Galaxy `smart-phone’ with an Android operating system. . . . Agent Daniel Arrugueta with BATF testified that he was present when [Dixon] was arrested and that he was the agent who seized the phone. . . .

[Dixon] had exited a nearby building and was starting to get into his car when he was arrested. . . . He was ordered to put his hands on the car. . . . The phone . . . was taken from him and put on top of the car. . . . Arrugueta seized the phone off of the car roof and took the phone back to his office. . . .

Arrugueta testified that when he got back to his offices he extracted the data from [Dixon’s] cell phone, from the phone itself and from the micro `SD Card,’ a storage media in the phone. . . . He is trained in extracting evidence as a `Computer Examiner.’ . . . He used a device called `Cellebrite’ which plugs into the phone to extract data from the phone. . . .

While he was performing his extractions, Arrugueta called Agent Spence to be sure the process of booking [Dixon], which was being done at a different location, was still ongoing so that his search would be `within the parameters of the incident to arrest.’ . . . He was advised [Dixon] was still being booked. . . . He burned CDs of the information he extracted from the phone. . . .

Arrugueta had no concern that the device was dangerous. . . . But he also allowed as how there is always concern that data might disappear by virtue of a `remote wipe.’ . . . Therefore, the first thing Arrugueta would do would be to turn the phone off and take out the battery. . . . These actions eliminate the possibility that the phone could be wiped remotely. . . .

Arrugueta did not do a `full dump’ on the phone because that process can take hours and likely would extend beyond arrest and booking. . . . He would usually get a warrant if a `full dump’ were needed. . . . But he did extract data from the SD card, a form of storage media, which took about thirty minutes. . . . Arrugueta considered the cell phone to be a `container’ that he could go through as long as it was done while the booking process was still ongoing. . . .

U.S. v. Dixon, supra. The reference to the agent’s assuming the phone was a “container” indicates he thought it was an item he could search without obtaining a search warrant under the search incident exception to the 4th Amendment’s default requirement that officers have a warrant to search someone’s property. 

In his motion to suppress, Dixon argued that the warrantless search of his phone

cannot be sustained in light of the Supreme Court's recent decision in Arizona v. Gant, 556 U.S.332 (2009). . . . He submits that neither officer security nor evidence preservation -- the dual justifications for searches incident to arrest -- apply to validate the search of Defendant's cell phone and the extraction of its data. . . .

U.S. v. Dixon, supra.  In U.S. v. Robinson, 414 U.S. 218 (1973), the Supreme Court held that when an officer arrests someone, he can search the arrestee and anything he/she is carrying for either or both of two reasons:  to disarm the suspect and/or to find and take possession of any evidence the person is carrying to prevent it from being destroyed.

The prosecution argued, in response, that the search of the cell phone fell within the

well-established exception to the warrant requirement permitting searches and seizures from persons incident to their arrest. . . . The government argues that this exception encompasses the right to search any closed containers, including a cell phone taken from the arrestee's person, and Arizona v. Gant does not limit this well-established exception. . . . The government alludes to the risk the phone could be remotely locked or its data remotely deleted, implicating the need to preserve evidence. . . .

U.S. v. Dixon, supra.  

The judge began her analysis of the arguments by noting that the issue presented in

is whether the search of [Dixon’s] cell phone . . . was authorized under . . . the `search incident to arrest’ exception to the warrant requirement. The government relies upon this `long-standing’ exception to the warrant requirement permitting not only the seizure of items from the arrestee's person but the search of any container, to include cigarette packs and cell phones, found on the arrestee as well, even when made after the actual arrest back at the agents' offices.

The government cites U.S. v. Robinson, supra (upholding search of closed cigarette package on arrestee's person); U.S. v.Edwards, 415 U.S. 800 (1974) (warrantless search and seizure of Defendant's clothing ten hours after arrest upheld where search of clothing could have been made `on the spot’); U.S. v. Finley, 477 F.3d 250 (U.S. Court of Appeals for the 5th Circuit 2007) (upholding search of cell phone incident to arrest); and U.S. v. Flores–Lopez, 670 F.3d 803, 810 (U.S. Court of Appeals for the 7th Circuit 2012) (upholding search incident to arrest of cell phone for its phone number but questioning whether more invasive search would be permissible).

U.S. v. Dixon, supra.  

As noted above, Dixon relied on the Supreme Court’s decision in Arizona v. Gant, supra,

as having changed the calculus used to determine the applicability of this exception to seizure of cell phones. [He] also highlights recent authority in the wake of Gant that limits the warrantless search of cell phone data seized incident to arrest. See U.S. v. Wurie, 2013 WL 2129119 (U.S. Court of Appeals for the 1st Circuit 2013) (`the search-incident-to-arrest exception does not authorize the warrantless search of data on a cell phone seized from an arrestee's person, because the government has not convinced us such a search is ever necessary to protect arresting officers or preserve destructible evidence’); Smallwood v. State, 113 So.3d 724 (Florida Supreme Court 2013) (`while law enforcement officers properly separated and assumed possession of a cell phone from Smallwood's person during the search incident to arrest, a warrant was required before the information, data, and content of the cell phone could be accessed and searched by law enforcement.’).

U.S. v. Dixon, supra.

The judge then began her analysis of the issue, noting that if “if Robinson and its progeny were the governing authority applicable in this case, it would not be difficult to conclude that the search in this case should be sustained, so long as it was considered to be incident to [Dixon’s] arrest.”  U.S. v. Dixon, supra.  She noted, though, that several factors

make this case more difficult. For one thing, this case involves the extraction and seizure of data and private information from a cell phone. 

A second factor is that the search of the cell phone, while roughly contemporaneous with [Dixon’s] arrest, booking, and interview, was conducted at the agents' offices, outside of [his] presence, after [he] had been taken into custody and removed to another location for booking and interview, and involved much more than just a limited search for the phone's log history or recent calls. 

Superimposed upon these factors is the fact that Arizona v. Gant was decided in April of 2009 and casts the prior legal authority in a different light.

U.S. v. Dixon, supra.  As to Gant, she explained that in its opinion, the Supreme Court made it clear that in applying the search incident to arrest exception, it intends to enforce the two original justifications for it, i.e., to disarm the suspect and/or find evidence.

She then took up the issues in the case, pointing out that Dixon was not challenging the

seizure of the phone; instead, he challenges the search of the phone that was conducted after the arrest, away from the scene of the arrest, outside of [his] presence at the agent's office, where the agent plugged a device into the phone and extracted the data from the phone itself and from its `SD card.’ . . . 

Recently, at least one circuit court and one state supreme court have addressed similar situations involving seizures and searches of cell phones and have concluded . . . that such a search violates the 4th Amendment. See U.S. v. Wurie, supra; Smallwood v. State, supra.

U.S. v. Dixon, supra.  

The judge found that Arrugueta lawfully seized Dixon’s phone under the search incident exception, but

went beyond merely seizing the phone, examining it to ascertain that it was not a weapon, and preserving it. He took it back to his office and extracted all the data he could extract using a data extraction device. This intrusion was more than minimal.

U.S. v. Dixon, supra.  

She therefore found that this was not a case in which there was

any threat that the arrestee might use the cell phone as a weapon, in view of the fact that the phone had been immediately seized from him, and, secondly, because it was immediately ascertained that it was not a weapon. Nor is this a case where there was any viable threat that the phone data could be remotely wiped or destroyed. 

Once the officer had possession of the phone it could be immediately shut off or put in `airplane mode’ and/or its battery removed, effectively eliminating any possibility of such a remote intrusion pending examination of the phone in a controlled environment. . . . 

There would have been ample time, in other words, for the agents to obtain a warrant, properly limited in scope, assuming the officers had probable cause to justify the search.

Furthermore, the privacy interests an individual has in his or her cell phone, given the nature of such phones today, distinguishes it from an individual's wallet, . . . which may be examined immediately upon arrest to confirm identity, among other things, or a briefcase, which may contain a weapon, or other dangerous instrumentality, or destructible evidence.

Modern cell phones, like [Dixon’s] Samsung, are in effect mini-computers, and contain contacts, text messages, photographs, calendars, notes and memos, instant messages, voice memos, and e-mail messages—a wealth of private information held within a small digital `container,’ as it were, but a different kind of container from a crumpled cigarette package or even a footlocker.   

As opposed to a footlocker, or a cigarette pack, which are capable of holding other objects, a cell phone is an integrated digital device that holds only data and digitally stored information.

U.S. v. Dixon, supra.  

She also found that requiring

a warrant in these circumstances before such a search may be conducted does not impair the legitimate interests of the government in ensuring the safety of the arresting officers and the preservation of any evidence. These interests were fully protected in this case by immediately taking the phone from [Dixon’s] hands incident to his arrest and securing it.

At the same time, by requiring a warrant in this situation for the search of the phone, the legitimate privacy interests of the arrestee can be protected, while still permitting the phone to be immediately seized and preserved pending further action.

U.S. v. Dixon, supra.  

Because the judge found Arrugueta violated Dixon’s 4th Amendment rights “when he took Defendant's cell phone back to his office and searched, downloaded, and extracted all the data he could from it and its storage media”, she granted Dixon’s motion to suppress. U.S. v. Dixon, supra.  

Wednesday, December 25, 2013

The Email, Supervised Release and Probable Cause

After a jury convicted James Lykins of one count of manufacturing methamphetamine in violation of 21 U.S. Code § 841(a)(1) and one count of being a felon in possession of a firearm in violation of 18 U.S. Code § 922(g)(1) and the trial judge sentenced him to “262 months’ imprisonment”, he appealed. U.S. v. Lykins, 2013 WL 6125933 (U.S. Court of Appeals for the 6th Circuit 2013).

The Court of Appeals began its opinion by providing some background on the case:

In October 2004, [Lykins] pleaded guilty to conspiracy to manufacture and distribute methamphetamine. [He] admitted in his plea agreement that he had been a member of the conspiracy for approximately six months and had actively participated in manufacturing and distributing methamphetamine. [Lykins] was sentenced to 60 months' imprisonment, followed by five years of supervised release. [He] was released from federal custody in August 2009 and began his term of supervised release.

As a condition of supervised release, `[Lykins] was ordered to “permit a probation officer to visit him . . . at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer.”’ U.S. v. Lykins, 2012 WL 1947346 (U.S. District Court for the Eastern District of Kentucky 2012) (quoting [Lykins’] release agreement)). [Lykins] also agreed to ‘”submit his person, residence and curtilage, office or vehicle to a search, upon direction and discretion of the United States Probation Office.”’ U.S. v. Lykins release agreement.

U.S. v. Lykins, supra.

The court then outlined how this prosecution arose:

[Lykins’] first two years of supervised release proceeded without major incident. But on September 12, 2011, his probation officer, John D'Alessandro, received an undated, anonymous letter stating that `[s]omeone really needs to check on Jimmy Lykins. He is out of control and needs drug tested [sic].’ Id. at *2. Prompted by this letter, D'Alessandro visited [Lykins’] residence on October 12, 2011.

D'Alessandro originally intended to conduct a home inspection, meaning he would walk though [Lykins’] home and look for anything suspicious in plain view. But once [he] arrived at [Lykins’] home, accompanied by Craig Peoples, the local sheriff, D'Alessandro changed his mind and ordered a full search. That search turned up voluminous evidence of methamphetamine manufacturing, including chemical precursors and hardware needed to make the drug. D'Alessandro also found a .38–caliber revolver in the microwave oven.

[Lykins] was arrested after the search by state officials. A federal prosecution began in January 2012, when [he] was indicted in the United States District Court for the Eastern District of Kentucky for manufacturing methamphetamine and being a felon in possession of a firearm. [Lykins] was transferred into federal custody and pleaded not guilty to all counts.

U.S. v. Lykins, supra.

That brings us to the first issue Lykins raised in his appeal – his argument that the U.S. District Court Judge erred in denying his motion to suppress certain evidence. U.S. v. Lykins, supra.  The District Court judge “held an evidentiary hearing, focusing on the facts supporting D'Alessandro's decision to order a full-fledged search, not just a home inspection.” U.S. v. Lykins, supra.

The Court of Appeals began by summarizing what the evidence presented at that hearing established about what happened before D’Allessandro arrived at Lykins’ home:

In D'Alessandro's recounting, as he was en route to [Lykins] home on October 12, 2011, he stopped by the office of the sheriff of Pendleton County, Kentucky – Peoples --to speak about an unrelated matter. When D'Alessandro mentioned his ultimate destination, Peoples mentioned that he had just received an e-mail notification from the National Precursor Log Exchange (`NPLEx’) stating that [Lykins’] wife had just purchased a methamphetamine precursor nearby.

NPLEx is an online system that tracks sales of methamphetamine precursors. The NPLEx e-mail listed [Lykins’] address as one of his wife's last known addresses. Peoples had been investigating [Lykins] and his wife for possible involvement with methamphetamine manufacturing. . . .

[W]hen Peoples received an NPLEx notice concerning an individual under investigation, it led him `to believe that if they're not preparing to manufacture methamphetamine that day, then they will maybe in the, in the next day or so.’ Suppression Hearing Transcript 154. Peoples shared these concerns with D'Alessandro. D'Alessandro suspected [Lykins] might be using or manufacturing methamphetamine in his home and set off for there with Peoples in tow.

U.S. v. Lykins, supra.

The court then described what happened after D’Allessandro and Peoples arrived at

[Lykins] home shortly after leaving Peoples' office. The car belonging to [Lykins’] wife was nowhere to be seen. D'Alessandro knocked on [Lykins’] front door, and [he] promptly answered. D'Alessandro told [Lykins] that he was concerned [Lykins] was violating his release conditions. [Lykins] voluntarily let D'Alessandro inside.

What happened next is the subject of controversy. D'Alessandro testified that, as he entered the residence, he held the door open for Peoples to come in with him. Peoples had originally gone around to the side of [Lykins’] residence. Peoples testified that he followed D'Alessandro into the residence, but that `[i]t took [him] a few minutes, seconds to get from where [he] was standing at the end of the trailer up to D'Alessandro at the front door.’ . . . .

At a proceeding in state court prior to the federal government taking over [Lykins’] prosecution, Peoples had testified that he entered the residence a few minutes after D'Alessandro. [Lykins], who testified at the suppression hearing, reported that Peoples and D'Alessandro came in separately. But under cross-examination, [he] conceded he was unsure how much time passed before Peoples entered. Weighing this evidence, the district court found `D'Alessandro walked in first and held the door open for Peoples to follow.’ U.S. v. Lykins, 2012 WL 1947346, supra.

U.S. v. Lykins, supra.

The Court of Appeals noted that these details mattered because of

what Peoples ostensibly said to D'Alessandro as they entered. [Lykins]  was cooking hamburgers, and the smell filled the home. But as Peoples testified: `First breaking through the threshold of the home, I received a smell, an odor that I knew was a chemical odor, and in this instance it was camping fuel or Coleman fuel.’ Suppression Hearing Transcript 157. 

Peoples had extensive training and experience concerning methamphetamine manufacturing, and knew that `Coleman fuel or camping fuel is one of the ingredients used in the manufacture of methamphetamine.’ . . . The smell of the fuel made Peoples suspect that methamphetamine was being cooked in [Lykins’] home.

D'Alessandro also smelled hamburgers cooking as he entered the home, but testified that Peoples drew his attention to the smell of the fuel. The district court heard a range of testimony about this brief conversation. Peoples testified that he asked D'Alessandro `if he smelled that,’ but did not recall the exact words he used. . . .

D'Alessandro initially testified during the suppression hearing that `right when we were entering the door, the sheriff tapped me on the shoulder and asked me if I smelled something’ apart from the hamburgers. . . . On cross-examination, D'Alessandro elaborated: `the sheriff indicated that he smelled what he indicated was a methamphetamine precursor. . . . When I crossed the threshold [ ] the sheriff said hey, I smell something I know could be methamphetamine trafficking.’ . . .

From this testimony, the district court found that `Peoples tapped D'Alessandro on the shoulder and asked if he smelled something. Peoples described the smell to D'Alessandro, at which time D'Alessandro distinguished the chemical odor from the hamburgers. . . . Peoples also indicated to D'Alessandro that the chemical odor smelled like Coleman fuel, a potential ingredient used to manufacture methamphetamine.’ U.S. v. Lykins, 2012 WL 1947346, supra. (footnotes omitted). 

According to D'Alessandro, once Peoples informed him of the fuel smell and its import, D'Alessandro decided to conduct a full search.

U.S. v. Lykins, supra.

On appeal, Lykins argued that the District Court judge “should have granted his motion to suppress the evidence obtained from the search of his home.” U.S. v. Lykins, supra. The opinion does not explain precisely what he argued, but it clearly was based on the premise that searching his home violated the requirements of the 4th Amendment.

The Court of Appeals noted that

`[w]hen reviewing a district court's decision on a motion to suppress, we review its findings of fact for clear error and its legal conclusions de novo.’ U.S.  v. Lyons, 687 F.3d 754 (U.S. Court of Appeals for the 6th Circuit 2012). `A factual finding is clearly erroneous when a court, on reviewing the evidence, is left with the definite and firm conviction that a mistake has been committed.” U.S. v. Gunter, 551 F.3d 472 (U.S. Court of Appeals for the 6th Circuit 2009).

U.S. v. Lykins, supra.

The court then took up the legality of the search of Lykins’ home, noting that it was

conducted without a warrant. However, because [he] was on supervised release, the warrantless search may pass constitutional muster if it was reasonable under ‘”the totality of the circumstances.”’ U.S. v. Knights, 534 U.S. 112 (2001) (quoting Ohio v. Robinette, 519 U.S. 33 (1996)).

The key circumstances in Knights were the defendant's status as a California state parolee -- which affected both his privacy interest and the government's interest in protecting the public -- and the search condition placed on the defendant's parole. See U.S. v. Knights, supra. Considering these circumstances, the search in Knights required only reasonable suspicion that criminal activity was afoot. See U.S. v. Knights, supra.

In the instant case, the district court concluded that the reasoning of Knights meant  that D'Alessandro required only reasonable suspicion before ordering the search. See U.S. v. Lykins, 2012 WL 1947346, supra. Unlike the defendant in Knights, though, , [Lykins] was on federal supervised release . . . and the search conditions on his release were less invasive than those in Knights. But based on the facts of the case before us, we need not resolve whether reasonable suspicion alone would have justified this search. Even if the standard were as high as probable cause, the search of [Lykins’] residence was constitutional.

U.S. v. Lykins, supra.

The Court of Appeals also noted that probable cause exists when an officer has

`reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion . . . [that] there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ U.S. v. Lyons, 687 F.3d 754 (U.S. Court of Appeals for the 6th Circuit 2012).  

On appeal, the government contends that four facts justify the search of [Lykins’] home: [His] prior conviction, the anonymous letter, the NPLEx e-mail, and the odor that Peoples smelled. The district court correctly concluded that the anonymous letter carries little weight in this analysis -- it simply prompted D'Alessandro to visit [Lykins’] home. . . .

But the remaining facts -- the NPLEx e-mail, [Lykins’] history of manufacturing methamphetamine, and, above all, the odor of a methamphetamine precursor -- together gave D'Alessandro probable cause to believe that criminal activity was afoot. . . .

U.S. v. Lykins, supra.

The court pointed out that its analysis “would be more complicated” if the district court judge had “clearly erred in finding that Peoples had told D'Alessandro that Peoples smelled Coleman fuel, and that this fuel was an ingredient of methamphetamine”. U.S. v. Lykins, supra.  But it could not “conclude . . . that this finding was clear error” because while the district court judge had “heard conflicting testimony on whether Peoples and D'Alessandro entered” the Lykins home together, the testimony “did not entirely overlap, but nor did they contradict one another.” U.S. v. Lykins, supra.

The court then noted that the district court judge’s

factual finding thus rests primarily on D'Alessandro's credibility. We accord great deference to a district court's credibility determination made during a suppression hearing. . . . The district court implicitly credited D'Alessandro's version of events. 

Given our due deference to the district court's findings of fact, we cannot conclude this reliance was clear error. Because the district court's factual findings remain undisturbed, so does the legal conclusion that follows from the totality of the circumstances.

U.S. v. Lykins, supra.  It therefore held that the district court judge did not err in denying Lykins’ motion to suppress.  U.S. v. Lykins, supra.  For this and other reasons, the Court of Appeals affirmed Lykins’ convictions and sentence.  U.S. v. Lykins, supra.