Recently in Fourth Amendment Category

Sixth Circuit Court of Appeals Finds that Nervousness and Too Much Eye Contact Do Not Provide Reasonable Suspicion of Criminal Activity

June 12, 2012, by The McKellar Law Firm, PLLC

Last week, in the case of United States v. Kelvin Johnson, an unpublished case out of Chattanooga, Tennessee, the Sixth Circuit Court of Appeals decided that it takes more than subjective suspicion to extend a traffic stop after a citation is written. The Court's decision was a 2-1 vote.


The facts of the case are rather straightforward: Kelvin Johnson was stopped by Officer Duggan of the Chattanooga Police Department for going 72 mph in a 65 mph zone. Duggan issued a speeding citation and then engaged Johnson in conversation. Duggan eventually asked for consent to search Johnson's vehicle. Johnson refused. Duggan then called a canine to sniff the car for drugs. The canine passively alerted that it smelled drugs. Officer Duggan was then able to search the vehicle at which time he found a firearm. No drugs were ever found.

Johnson had a prior felony conviction, and, therefore, he was prohibited from possessing a firearm. He was subsequently arrested. At trial he made a Motion to Suppress the firearm, arguing that Officer Duggan did not have reasonable suspicion of criminal activity to prolong the traffic stop. The trial court disagreed with Johnson, but the Sixth Circuit Court overturned the trial court's ruling.

Officer Duggan noted that his reasons for prolonging the stop were the following:

• Johnson was "overly focus[ed] on making eye contact;"
• Johnson's rental agreement only included travel states as Georgia and Florida, yet he was pulled over in Tennessee;
• Johnson told the officer he was meeting a woman in Kentucky, but only had two shopping bags of clothes;
• Johnson had degreaser in the car which could be seen prior to the search;
• Johnson was overly-nervous;
• Johnson took a "bladed stance" (this was later decided to be incorrect after review of the in-car police video).

The Sixth Circuit Court noted that most citizens with no reason to fear the law are nervous during a traffic stop. They cited Duggan's observations as "weak indicators," and reversed and remanded the case back to the lower court for further proceedings in line with its decision.

Attaching GPS Device to Vehicle Constitutes a Search Under the Fourth Amendment

February 14, 2012, by The McKellar Law Firm, PLLC

In United States v. Jones, the United States Supreme Court unanimously held that attaching a GPS device to a defendant's car to track their movements constitutes a "search" under the Fourth Amendment.


Antoine Jones was a drug defendant convicted of conspiracy to distribute cocaine after police installed a GPS device on his Jeep. While cars generally are held to a lower standard than other private property, Justice Scalia opined that "the government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted." Therefore, the police were required to have a warrant before the GPS device was attached, leading the Supreme Court's blog to call the case's outcome a "big loss for the Federal government." In her concurring opinion, Justice Sotomayor added that even in the absence of a trespass, the Fourth Amendment applies when a defendant's reasonable expectation of privacy has been violated.

The ACLU lauded the decision, exclaiming that a "majority of the court acknowledged that advancing technology, like cell phone tracking, gives the government unprecedented ability to collect, store, and analyze and enormous amount of information about our private lives."