Court Tells Cops They Can't Seize Luggage And Send It Hundreds Of Miles Away In Hopes Of Generating Probable Cause

from the Fourth-Amendment-also-deals-with-seizure dept

There’s no universal law enforcement “best practices” for searches and seizures, but simply respecting the Fourth Amendment would seem to be a good base guideline. However, that baseline is rarely used. Far too often, searches and seizures seem to be officers seeing what they can get away with — and expecting the legal system to assist in applying “good faith” to unconstitutional searches after the fact.

Ethan Moore landed at the Dillingham, Alaska airport, where he was met by two police officers. According to the officers, informants claimed Moore was transporting marijuana. They seized his luggage and took it to the local police station while they sought a search warrant. (via

This effort failed.

After hearing the warrant application, the magistrate concluded that there was no probable cause for the search, so he refused to issue the search warrant. More specifically, the magistrate concluded that the officers had failed to provide sufficient proof of their informants’ credibility to satisfy the Aguilar-Spinelli test.

When the magistrate issued this ruling, he invited the officers to present more information to corroborate their informants.

The Aguilar-Spinelli test basically states informants — if used to support probable cause claims — must be shown to be reliable and credible. The three informants relied on here weren’t. Rather than follow up with the informants or simply return Moore’s luggage, the officers went with option C.

Instead, the officers kept Moore’s luggage overnight and then, the next morning, they shipped it to the Alaska State Troopers in Anchorage. After the luggage arrived in Anchorage, it was subjected to sniffing by a drug-detection dog. The dog alerted to the luggage, and the troopers then applied for a search warrant, this time in front of an Anchorage judge. The warrant was granted.

Armed with this warrant, issued by another judge in another city after being “pre-searched” by a drug dog, the officers opened the suitcase and found seven ounces of marijuana. Moore challenged the search and the court finds the officers’ decision to do something no one recommended violated Moore’s Fourth Amendment rights.

We therefore hold that the police violated Moore’s rights under the Fourth Amendment when they continued to hold his luggage after the magistrate denied their application for a search warrant. All evidence derived from the later search of that luggage must be suppressed.

The state did try to save the search with some pretty bad arguments. For one, it argued that because officers told Moore they were going to perform some questionable actions in search of a warrant, the warrant and search should be valid. The court disagrees.

[E]ven though the police may have accurately informed Moore that they were going to ship his luggage to Anchorage, and that he would be deprived of his luggage at least until the next day, the fact that the police communicated this information to Moore could not turn an unconstitutional seizure into a lawful one. In other words, the police could not obtain a license to violate Moore’s Fourth Amendment rights merely by informing Moore that they intended to do so.

In addition, the court informs the state that it cannot do whatever it wants with seized items just because it feels it may eventually reach a point where it will have enough probable cause to obtain a search warrant.

The State is effectively arguing that if the police have probable cause to believe that an article of luggage contains evidence of a crime, the police may seize the luggage, hold it for as long as is reasonably necessary to complete any desired additional investigation or testing, and even ship the luggage hundreds of miles to accomplish this additional investigation or testing — all without seeking a judicial warrant until the additional investigation is done.

We are aware of no legal authority to support this argument.

The seizure of Moore’s luggage should have ended when the magistrate denied the warrant. The US Supreme Court has held that people and their belongings cannot be unreasonably detained just so officers can attempt to sniff up some probable cause (in the context of traffic stops and drug dogs). The magistrate — while noting the severe deficiencies in the hearsay presented as “probable cause” — gave the officers a few options. Because they chose “none of the above,” their drug bust has vanished.

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Comments on “Court Tells Cops They Can't Seize Luggage And Send It Hundreds Of Miles Away In Hopes Of Generating Probable Cause”

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Anonymous Coward says:

The State is effectively arguing that if the police have probable cause to believe that an article of luggage contains evidence of a crime

Except the first judge effectively told them there wasn’t even probable cause, right? So they basically held onto the luggage completely unlawfully.
And how bad do you have to be to have THREE informants’ claims thrown out?

The Wanderer (profile) says:

Re: Re:

The argument is that since the second judge granted the warrant, there was probable cause after all, they just didn’t have the basis to demonstrate it at the time of applying to the first judge.

The obvious counterargument to that (although not necessarily the one which the court is using) would seem to be that if they didn’t have the basis to demonstrate it at the time of the seizure, they did not have probable cause for that seizure itself.

Bergman (profile) says:

Re: Re: Re:

The obvious question to ask though, is whether police told that second judge that he was the second judge, or that another judge had already found there was insufficient evidence for a warrant?

Did police simply tell the second judge that a dog had alerted on the luggage, and nothing else? If they did that, then of course the second judge would have issued the warrant.

Anonymous Coward says:

These are some really fucking stupid cops. Informing a suspect that you intend to violate his rights doesn’t make it constitutional. The fourth amendment is in the bill of rights to protect ALL defendants. It’s never designed as a loophole for cops to violate.

I’m all for bringing someone to justice, but telling somebody you intend to violate their rights still does not make it constitutional. When a course of action is unconstitutional, no conduct you engage in can ever make it constitutional.

Apparently, the cops in this case decided to scam the judge and the courts. If I didn’t know better, I’d swear that these cops have Prenda Law working for them.

Anonymous Coward says:

Re: Re: Re:

Not only that but the Supreme Court of United Slaves has declared the borders as a constitution free zone.

The Constitution does not have borders. The Constitution applies to all US Citizens when dealing with the US Government even if they were on the fucking moon!

It is “WE the People, FOR the People, BY The People.”

Not When THEY fucking want it, and WHERE they say its okay!

Uriel-238 (profile) says:

Re: Re: Re: The bill of rights applies to everyone.

I would argue that refusing non-Americans those rights at least when regarded by agents of the US, is as tyrannical as refusing them to US Citizens.

They are rights due to persons on the basis that they are persons, not on the basis they are Americans.

Of course, when the Bill of Rights inconveniences agents of our current government, they seek to circumvent them regardless of citizenship.

Anonymous Coward says:

Re: Retroactive Constitutionality

“When a course of action is unconstitutional, no conduct you engage in can ever make it constitutional.”

Mr. Bush and Mr. Yoo would like to have a word with you.

In Guantanamo.

“Cruel and inhuman punishments are being carefully described in tiny paragraphs so they won’t conflict with the Constitution (which, itself, is being modified in order to accommodate…THE FUTURE).” – The Central Scrutinizer

Anonymous Anonymous Coward (profile) says:

Re: Re:

Point of clarification. The first ten Articles constitute the Bill of Rights. The Fourth Amendment is…an amendment to the original 10. This does not diminish the importance of the Fourth or any other amendment, but amendments are not part of the Bill of Rights. All of them together make up the Constitution.

freedomfan (profile) says:

Re: Re: 1st 10 amendments == Bill of Rights (in U.S.)

Point of clarification. The first ten Articles constitute the Bill of Rights. The Fourth Amendment is…an amendment to the original 10. This does not diminish the importance of the Fourth or any other amendment, but amendments are not part of the Bill of Rights. All of them together make up the Constitution.

It’s late here, but that sounds like you are saying that the first 10 amendments to the U.S. Constitution are not what we call the U.S. Bill of Rights. I am pretty sure that they are.

David says:

Know what pisses me off?

We only get to see this crap when someone sues to have evidence suppressed. Namely when he is on the line for something bad.

When the police pull this kind of crap on somebody who has nothing to hide, they will not get called because there is no permanent damage to sue for, particularly not in relation to the cost of litigation.

That makes me think that generally in cases of private-person-against-state, fee-shifting provisions should apply. Possibly with options for the state to reimburse itself when the case is the result of egregious misconduct.

That would make it more likely for the victims of illegal searches to sue even when they don’t depend on getting evidence suppressed.

Uriel-238 (profile) says:

Re: Know what pisses me off?

It is an intrinsic weakness in our judicial system that in order for fourth amendment protections to be preserved, someone criminal has to get away, which is supposed to serve as a penalty to the state, but it more affects the people (by making us less safe).

This is less of an issue when illegal pot is suppressed by a search, but what if it’s a graveyard of unidentified children?

That’s why it becomes so tempting to dismiss constitutional rights. We don’t want serial murderers walking on a technicality right?

And that’s how we got right here, where protections of common citizens are neglected, because protections of heinous criminals are neglected.

TRX (profile) says:

Most PDs claim to be undermanned and overworked, and many freely admit they will ignore small crimes to have manpower available to work larger ones.

Yet I keep reading about this sort of thing, often complicit with the prosecutors, who also claim to be undermanned and overworked. And do they not only go beyond reasonable allocation of resources, they go beyond the limits of the law in order to pursue a case that is, at best, trivial.

That, or crime is so low in their jurisdictions they’re going to ridiculous lengths to look busy enough to justify their budgets…

Anonymous Coward says:

Silly cops, the All Writs Act opens everything!

Why not just claim the luggage contained an electronic device containing child pornography, then imprison the suspect in solitary confinement until he opens the luggage?

A Federal judge would probably jizz his pants and issue an All Writs Act order before the cops were done saying “child pornography.”

peter says:


Why do I get the strong suspision that the police had already opened the luggage and found the drugs before applying for a warrant.

Also, why did they not have a dog available at the airport as it was for specifically a drugs but that they were there for?

Finally why did they not apply for a warrant before they went to the airport?

It is not difficult to conclude they had a source of information they do not want to disclose and when they were sure the drugs existed, the ‘informants’ was their go-to excuse to get a warrant. When that failed they had to resort to their back-up excuse, the convoluted method of arranging a dog sniff.

This has all the hallmarks of ‘get the drugs and legalize it afterwards’.

Anonymous Coward says:

The only thing I’m waiting for is when the American citizenry decide that enough is enough and then you’re going to see the people inflicting violence on the very law enforcement agencies that are abusing the civil and constitutional rights of the people.

This has been getting worse and worse ever since September 11th and I’m telling everyone here that the day is coming soon when the American people decide that they have had enough.

I’m sure that there are a lot of good police officers out there but it’s the bad cops that are going to turn this country into a war zone between the police and the people. It’s going to be a whole new civil war, civil unrest, riot or whatever you want to call it.

freedomfan (profile) says:

Police: D'oh! What we did was *almost* legal. What we wanted was to be *barely* legal.

It always strikes me that law enforcement types think it’s perfectly okay to stretch the meaning of what they can legally do. But, when some non-LEO is doing that, they deserve to be treated like the scum of the earth. How can it not negatively effect law enforcement when police spend so much effort coming up with ways to circumvent the law?

(Admittedly, these LEOs know they will suffer zero consequences for these shenanigans, so this sort of thing should hardly be a surprise.)

Also, it seems that a huge fraction of these incursions against the 4th amendment are due to drug cases. I don’t do drugs and I don’t it’s generally a great thing to do. But, it drives me crazy that my rights are shredded because law enforcement thinks its the only way to effectively combat “drug crimes”. I would legalize all of them just to take away so many excuses for poor law enforcement behavior.

freedomfan (profile) says:

Re: Re:

Hehe. I recall a similar learning experience. I think the obvious conclusion is true: Parents willing to deter misbehavior produce kids who don’t misbehave as much.

The problem in cases like the one in the post is that, effectively, no one plays the role of the strict disciplinarian when law enforcement misbehaves. The higher-ups in the police are lax parents and either ignore misbehavior or hand down ineffective (deterrent) punishments; the courts take the marshmallow parent position that “He didn’t know” or “He’s a nice boy, but he forgets”; and – sad to say – we, the public, are no better when we refuse to force our politicians to take a “tough on crime and tough on police misbehavior” position.

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