police search houseSCOTUS Dips a Toe into 4th Amendment's Warrant Requirement to Decide Three Cases Last Term

It’s been a long haul through the last year and half for me, and loads of others, too. In addition to the pandemic lock-down, I’ve been away from work because of an extended medical disability. Now, over a year of lock-down and three surgeries in eight months later I am slowly working my way back to full strength. So, let’s start touching base again, OK? 

The Supreme Court of the United States’ last term was certainly eventful. I didn’t much follow the high profile, politically charged cases. In fact, I pretty much avoided SCOTUS reports entirely. When I went to catch up on the Court, I was looking at those cases that have a lesser media profile but still affect how we do our jobs responding to gender-based violence. One such case iEdward A. Caniglia v. Robert R. Strom, et al. 593 U.S. ___ (May 17, 2021), a firearm and 4th Amendment case with a curious outcome. 


The ruling in Caniglia is that rarest of beasts these days, a unanimous opinion (to say nothing about its brevity, coming in at four pages). But even in unanimity, this Court still showed fault lines as justices filed three separate concurring opinions, ranging in length from one paragraph (Chief Justice Roberts, joined by Justice Breyer) to several pages longer than the majority opinion (Justice Cavanaugh), with one stuck between those two (Justice Alito). 

The Court attempted to clarify whether there is a “community caretaker” exception to the 4th Amendment’s warrant requirement to be found in Cady v. Dombrowski431 U.S. 433 (1973). To recap, the Cady opinion permitted the warrantless search of a disabled vehicle involved in a crash, which it characterized as a non-criminal community care-taking function. Something, I guess, like rescuing a cat stuck in a tree. The question of the limits of that exception came up because the police in Rhode Island were called by his wife to do a welfare check on Mr. Caniglia.

The Caniglia’s had argued the night before. During the argument, Mr. Caniglia put one of his handguns on the dining room table and asked his wife to shoot him. She refused, preferring to leave the house and spend the night in a hotel. 

The following morning when Mr. Caniglia wouldn’t answer his phone, his wife called the police and asked that they check on his welfare. When they arrived at the house, Mr. Caniglia met them on the porch and assured them he had no intention of killing himself. The police were not reassured and determined that he posed a risk to himself and others and called an ambulance. Mr. Caniglia eventually agreed to go in the ambulance but only after the police promised not to confiscate his firearms. 

Once the ambulance left with Mr. Caniglia, the police set about searching his house for and seizing his firearms. The police were guided to the guns by his wife. They got her guidance only after they lied to her about Mr. Caniglia’s wishes, suggesting that he had agreed to the search. 

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Bulldog on phone


It’s a familiar trope in film and TV. The flawed yet noble protagonist faces his tormentor, and says, “If you so much as look at my family again, I will kill you.” The tormentor, a rich, powerful crime boss, leans forward and says, “Is that a threat?” “No,” says our hero, “it’s a promise.” Have we ever stopped to think whether the two are mutually exclusive? What’s the difference? When is a threat a true threat, and what is a true threat, anyway? Is it a “true threat” only if harm is intended, and the one uttering it is capable of carrying it out? 

That familiar movie scene hardly qualifies as being “ripped from today’s headlines,” but the underlying questions have been the subject of recent judicial attention, as courts wrestle with when and under what circumstances a threat can be considered a crime. Enter the recent 6th Circuit decision in United States v. Artel Howard, No. 18-4213, (6th Cir. 1/20/2020). Howard was convicted of one count of communicating a threat in interstate commerce, contrary to 18 U.S.C. § 875(c). 


Howard lives in Ohio. In late 2017 he made a series of calls to the law firm of former Attorney General Eric Holder. In doing that, he had to negotiate through the voicemail system of the law firm, thus the phone calls leading up to the charged event. He had to figure out how to get to Holder’s voicemail at a time when he could be certain that Holder wouldn’t answer. 

In the final call, Howard left the following voicemail:

Former U.S. Attorney General Eric Holder, I’m going to kill you. My name is – former U.S. Attorney General Eric Holder, I am going to murder you. My name is Atrel Howard. We had spoken in February of 2010. I was a United States unconstitutional convicted, uh, uh, prisoner by the Common Pleas Court of Cuyahoga County of the State of Ohio, by Judge John Sutula, through the second part of the clause of the double jeopardy law of the United States Constitution stating that a man cannot be put twice in jeopardy of loss of life — I mean a man cannot be put in jeopardy of loss of limb for the same — a man cannot be twice put in jeopardy for a loss of limb for the same charge.

Seems like a clear threat, and the jury thought so, too. Howard appealed his conviction, alleging deficiencies in the indictment, the jury instructions, and the sufficiency of the evidence. Each alleged error was based upon the argument that the government did not allege or prove that Howard intended to threaten the former A.G., nor did the government prove that the threat was a “true threat.” 

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man in cuffs

Idaho Supreme Court Finds Warrantless DV Arrest Unconstitutional 

I was in Vermont with the International Association of Chiefs of Police Leadership Institute on Violent Crimes Against Women, when a colleague from Idaho alerted me to a recent Idaho Supreme Court decision on the constitutionality of warrantless misdemeanor arrest. The decision invalidated as unconstitutional the Idaho statutes authorizing law enforcement to arrest on a misdemeanor not committed in the officer’s presence. Now, in Idaho at least, officers cannot arrest a batterer unless the officer sees the assault, or the investigation develops probable cause and an arrest warrant is issued. 

The potential for havoc from this case is immense. Simply think of the statutes that permit arrest without a warrant. Domestic Violence, protection order violations, even bond violations, are all cases that permit arrest in many states upon establishing probable cause even if the violation wasn’t witnessed by officers.

The History of Warrantless Misdemeanor Arrest

The decision is short and clear in its reasoning. Article 1, Sec. 17, states: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue without probable cause shown by affidavit, particularly describing the place to be searched and the person or thing to be seized.” At the time that the Idaho Constitution was adopted, Idaho’s statute on arrests mirrored the then existing federal standard, allowing warrantless arrests “if the arresting officer had probable cause to believe a felony had been committed or if the offender had committed a misdemeanor in the presence of the officer.” That held until at least 1979, when the statute was amended to permit “the warrantless arrest of a person when there was reasonable cause to believe he had committed a misdemeanor assault or battery outside the presence of the officer, e.g., in a domestic violence situation. State v. Clarke, pg 4.  

Called upon to determine the intent of the drafters of Idaho’s Constitution, and their understanding of the language they set forth, the Idaho Supreme Court searched the history of warrantless arrest. They found near universal understanding of the law to be that the Constitution permits warrantless arrest for misdemeanors only if committed in arresting officer’s presence.

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A New Series from Reveal and Pro Publica

As we slide into the holidays I hope everyone stays happy and healthy, looking forward to the new year. Without a doubt the last few months have been tumultuous for those of us working with and for victims of crime. So much turmoil, in fact, that one can be forgiven for not keeping up. I certainly haven’t. I started a post months ago about new research on the impact of firearms in interpersonal violence, only to get sidetracked by the tragedy of the Parkland shooting. Likewise, events took over intended posts about the present SCOTUS term, and new changes to the Department of Education’s Office of Civil Rights rules for investigating and adjudicating sexual harassment and sexual assault in educational institutions. But posts will be coming soon. 

Reveal Banner


As I said in my last post, I’ve had the opportunity to respond to several media outlet requests for interviews and comment about some of the news of the day. Among them was the chance to talk with journalists from Reveal and Pro Publica about how prosecutors make the decision to charge, or more likely, not charge cases of sexual assault. 

The two-part series aired on November 10 and November 17. Both are worth a listen, and are available wherever you get your podcasts, and here at the Reveal website. Here’s how the series is described by Reveal.


"We team up with Newsy and ProPube rape cases than they actually are."








part 2"He seemed to confess to the crime, twice to his ex-girlfriend, once to police. But prosecutors never charged him." 








Woman checks airport   To everyone who is, like me, travelling this season for work or family, here's wishing all safe travels with no delays. I will be catching up on posting soon. Tips on topice you want to hear about are always welcome. Remember my new email address. This email address is being protected from spambots. You need JavaScript enabled to view it..

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We have so many wonderful things to look forward to in June. The beginning of summer, Father’s Day, Juneteenth, and for us law geeks, a flurry of decisions at the end of SCOTUS’s term. This past June the flurry included a decision in United States v. Carpenter, 585 U.S. ___ (2018), in which a 5-4 majority held that we have a reasonable expectation of privacy in historical cell-site location information (CSLI) collected and stored by our cellphone service provider. Accordingly, law enforcement must get a search warrant to gather CSLI from cellphone companies.


CSLI is a continuous record of the cell towers a cell phone connects to in order to send and receive information. As noted by Chief Justice Roberts, smartphones connect to the wireless network several times a minute when it is on, without the owner doing anything on the phone. In other words, the connection occurs whether we’re using the phone to make a call, or actively using any other application or feature on the phone. In short, the cell service provider knows where we are and when we are there, and stores that time-stamped location data.

CLSI is maintained by the cell companies for a legitimate business purpose; analyzing these data helps the companies measure demand for cell service in certain geographic areas, which drives the decision whether to install additional towers or antennas to handle areas of high volume demand. With the proliferation of smartphones, and by necessity the towers and antennas to handle the massive amounts of data transmitted by them, the ability to locate a specific device has increased to “a level of accuracy that can approach that of GPS”. Amicus Brief of Electronic Frontier Foundation, et al. 


The issue in Carpenter was the extent of the privacy interest cellphone subscribers have in that historical CSLI data. In Carpenter, investigators used the procedures set out in the Stored Communications Act18 U.S.C. 2703(d), to get CSLI data for Carpenter’s phone in order to establish he was at a series of robberies of Radio Shack’s and T-Mobile stores in Detroit and Ohio. The Stored Communications Act sets out a procedure for law enforcement to secure an order directing the wireless provider to turn over CSLI. Investigators must give the court “specific and articulable facts showing that there are reasonable grounds to believe" that the CSLI data "are relevant and material to an ongoing criminal investigation." 18 U.S.C. §2703(d). 

The SCA is something of a restatement of the third-party doctrine that has its roots in United States v. Miller, 425 U.S. 435 (1976), which held that a person does not have a legitimate expectation of privacy in information voluntarily turned over to third parties. In Miller, a tax evasion case, the information sought was bank records, cancelled checks and deposit slips kept by Miller’s bank. The SCOTUS held that no reasonable expectation of privacy existed because those documents and records were business records kept by the bank and not owned or possessed by Miller, and because they could not in any manner be considered private or confidential communications that Miller tried to keep from general disclosure. In other words, when we do business with entities that collect information about us, we run the risk that the business will give that information to law enforcement when asked.

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Firearms at home
One can hardly escape the steady drumbeat of stories about gun violence and mass shootings in America. Occasionally an event will capture the attention of the 24-hour news cycle, and the too familiar themes of the debate are repeated. In the wake of the mass shooting at a Texas church the debate took a new turn when it was discovered that the shooter was convicted of domestic violence while in the Navy, but that conviction was never reported to the NCICS. That may have stopped the sale of firearms to the shooter. It would not have stopped the Texas shooter from using guns he already had, nor would it stop the private purchase of a gun. But while the debate about federal law and the purchase of firearms rages, it obscures a broader problem: women and children are murdered daily by batterers with guns they already have. The solution to that problem is not going to found in federal law. It’s going to be up to the states to disarm batterers in a manner consistent with the Constitution.


It sounds like a reasonable proposition. If there’s a gun available to a batterer the risk of inter-partner homicide is greater than when a gun isn’t available. Research suggests that the risk of inter-partner homicide, particularly femicide, increases 5-fold when a violent intimate partner has access to a gun. (Campbell JC, Webster DW, Koziol-McLain J, et al. Risk factors for femicide in abusive relationships: results from a multisite case control study. Am J Public Health. 2003;93(7):1069-1097). That research has been around for a long-time, and no doubt provided impetus to state lawmakers to pass laws giving judges the authority to require surrender of any firearms in a domestic violence restraining order or as a condition of bond release.

What was unanswered, until recently, was whether those restrictions effectively reduced the rate of inter-partner homicide. Research published late in 2017 in the American Journal of Epidemiology shows that firearms restrictions can and do save lives, but only if every part of the justice system is committed to implementing them.


The study was designed to fill in some gaps in our knowledge about whether domestic violence restraining orders (DVROs) work to reduce intimate partner homicides, or IPH. It also set out to determine whether certain aspects of DVROs, which vary considerably from state-to-state in requirements, implementation, and enforcement, are more protective.

Some of the results seem pretty intuitive; guns are lethal and one can’t take back a pull on the trigger, so we might expect to see an overall reduction in IPH by firearms when firearms aren’t readily available at times of high conflict. As Michigan State University criminal justice professor, and lead researcher, April Zeoli said, “If we can prevent people from having firearms during this time of crisis, then we might be able to better safeguard lives.” (Michigan Public Radio, Study: Gun restrictions could cut intimate partner homicides, Kate Wells, Michigan Public Radio.)  And that is indeed what the research found. A reduction of the instances of IPH was associated with DVRO laws.

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