Currie 1

Jonathan Currie
Barnum
PSC 262
12 March 2015
United States v. Khan and United States v. Jorgenson
Defendants Khan and Jorgenson while linked, have their own separate issues legally.
With Khan, the issue was the detainment, whereas in Jorgenson, the issue was the right to make
the search of Jorgenson's property. I would argue that in these cases, circumstances mirror
those of earlier cases that the Supreme Court has decided. I would treat the cases separately
and find one for and one against the defendants. I would find for Jorgenson and against Khan.
The defendant Jameel Khan was at O'Hare International Airport when he was identified
as a possible risk by FBI agents. They approached him and asked him for identification. While
police are asking him questions, a dog trained to identify a mark on books that advocate for
violent attacks against America. The police then detained him briefly and discovered a letter
opener in his pocket as well as a circumstantial letter that could signify a planned terrorist plot.
Khan was charged for attempting to bring a prohibited item aboard an aircraft.
The police pursuit of a case against Jameel Khan rests on a preemptive approach to
stopping terrorism(which ends up correlating to crime). In this case, marking books as was
done by investigators did not cross the line. The investigation attempt is like the one used in
United States v. Karo. The Court reasoned that the beeper used by the investigators during the
following of the container of chemicals did not violate any privacy interest. The information
being conveyed to the surveillance team did not intrude upon something that the defendant

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would have wanted to be kept private, just as Khan would not have an interest in keeping
private a book that by itself does not imply guilt in any crime.1
Additionally, the Court has been favorable toward law enforcement and specifically detection
dogs with the searching of luggage. Dating back to United States v. Place in 1983, the Court
has seen a sniff test by dogs to be a minimally invasive "search" and has allowed the practice
as long as it did not overextend the briefness of the temporary detention as in Place.2 As a rule,
these temporary detentions follow the guidance of the precedent set down in the case Terry v.
Ohio in 1967. The Court argued that if police have a reason to stop a person and detain the
subject temporarily for questioning. If there is further reason to believe that the suspect is
armed then the officer can proceed and search for the weapons.3 Terrorism is the ultimate
armed threat and as such merits a response equal to if not more decisive than a "stick-up artist"
with a handgun or even the violent drug trade. Using temporary detention for questioning and a
deemed non-invasive search that the Court has upheld before, I would approve of the use of the
dog sniff on the marked books.
Next in the process comes the detainment. The Court had ruled in that past as previously stated
with Terry that detentions only required reasonable suspicion to be carried out. Khan may not
have consented to the search, but he does not have the right to refuse. The Court ruled in
Untied States v. Place(1983) that a dog sniff test gave reasonable suspicion and that had a
search followed immediately after the sniff, then the brief detention would have been
reasonable.4 The Court has always placed a greater importance on the privacy of luggage and
1 C.M. p.37, United States v. Karo(1984)
2 C.M. p. 189, United States v. Place(1983)
3 C.M. p. 157, Terry v. Ohio(1968)
4C.M. p. 189, United States v. Place(1983)

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effects, so if they are willing to deem the sniff test valid for luggage then it is reasonable that
law enforcement has the right to search the readily accessible intended subject of a Terry stopthe person himself. What was expected in the search even matches the initial intent of the Terry
decision-weapons. So the detention itself was also reasonable.
The evidence in Khan's pockets is then undisputed. The letter opener was found after a
reasonable search and seizure and therefore should be allowed into evidence without any
reason for suppression. The letter is another matter as it was a key piece of evidence in
obtaining a search in the Jorgenson case. We will come back to this later.
The case against Ole Jorgenson is significantly more difficult as it relies on evidence
obtained from an investigation of another person. Thus, the argument grows more complicated
as the subject does not match the initial purpose. After the finding of the stationary letter, the
FBI went further with the investigation. They obtained permission from a judge to cruise the
streets in the neighborhood where the letter was postmarked, the place where coincidentally the
police would want to look for ethnic groups that might perpetrate attacks on planes. The police
picked up a signal from a specific electronic part in three houses in the neighborhood. Police
found Ole Jorgenson amidst a bomb-making factory. Jorgenson was then arrested and tried for
illegally manufacturing explosives.
First, the police were not looking for Jorgenson when they found the factory. They were
searching for contacts and associates in the neighborhood. As it turned out Jorgenson was
completely unaffiliated with Khan and his Islamic associates. The police were searching for
another party or parties. This is somewhat like the case Steagald v. United States(1981) in
which police had an arrest warrant out for someone in someone else's home. Ricky Lyons, the
person the warrant was issued for, was not at Steagald's house as information had indicated.

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The police then arrested Steagald for having drugs in plain view. The Court ruled that the
police were using the arrest warrant to search Steagald's home.5 This is not however the case
with Jorgenson. Unlike Steagald, they did not know who they were expecting to find at the
residence however they had a good idea of what they were expecting. The Court has no issue
with searching for one individual and finding another.
Next in question is the method of the search itself. The police used a highly sophisticated
tracking system that allowed them to track evidence with a minimally invasive search. The
Court has ruled on this before in the case of Kyllo v. Untied States(2001). Police used thermal
imaging to track heat signatures coming from a suspected marijuana growing site in the
defendant's home. The Court found that the details of the home were not to be obtained through
obtrusive measures such as the thermal imaging scan. The details of something within the
home, even something as seemingly unobtrusive as a heat scan reveal intimate details,
something the Court has long held to a high degree of privacy.6 The use of the police tracker to
pick up signals for the electronic beeper follow this exact same process of law. There was a
pursuit of a case that then relied on evidence from a seemingly non-intrusive search of a
residence that ultimately yielded probable cause to secure a warrant for search. Because I link
the Kyllo decision and the details of Jorgenson's case, it is natural to find the same conclusion
that the search that was conducted was a violation of the Fourth Amendment expectation of
security in the home.
Next is the issue of probable cause to issue a warrant to conduct the "signal sweep" for the
beeper in the flagged neighborhood. Again, citing my reasons for disagreement above, I would
challenge the ability for the practice to be carried out. I would argue that probable cause to
5 C.M. p. 115, Steagald v. United States(1981)
6 C.M. p. 42, Kyllov. United States(2001)

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obtain the warrant was not obtained on the part of police. Police have the burden of showing
probable cause in an affidavit to the magistrate to obtain a warrant. Merely relying on the letter
in Khan's possession containing a frequently stereotyped ethnic group and circumstantial
message does not constituted proper probable cause. In fact, I would challenge the judge that
issued the warrant to justify that decision. Time and again, the Court has interpreted probable
cause to come from knowledgeable informants or from more concrete evidence from an
investigation. Cases like Spinelli v. Untied States and Aguilar v. Texas pointed out the need for
an agreed upon standard of probable cause. This lack of evidence that would have been
presented in the affidavit shows a lack of consideration of procedure in the warrant process. I
would not allow the sweep in the first place. And because the warrant that allowed the police to
conduct the sweep should not have been granted, their results returning sufficient evidence for
probable cause should not be considered for a warrant for an entry to the home.
Based on my interpretation of the Court's rulings in previous cases, I would rule that
police violated Jorgenson's Fourth Amendment rights. From here there is more than one way to
go. Since the Weeks ruling in 1914, the Court has struggled with how to handle admissibility of
evidence if rights have been violated. The initial practice involved excluding evidence and has
since evolved to a middle ground between total exclusion and total inclusion. Wolf v. Colorado
was the first case to lay out this discretionary judgment for how to handle illegally obtained
evidence and the role of the Court in considering it.7 The Court has stated that nowhere in the
Fourth Amendment does it say that evidence must be excluded. The Court followed the Wolf
debate with the total exclusion rule in Mapp v. Ohio. Since then, the Court has created
exceptions that can permit some evidence in certain circumstances even when violations are
present. I believe that for the interests of society to be served and for the powers of an almost
7 C.M. p. 1, Wolf v. Colorado(1949)

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unchecked police force to be regulated, evidence obtained from a search stemming from a
warrant carried out under less than probable cause is the only way to prevent future abuse. For
this reason, I would suppress the evidence obtained from the illegal search of Jorgenson's
residence.
For me, the case against Khan is clear. Following strict guidelines for brief detainment and the
goals it is supposed to accomplish, police conducted a legal search that yielded admissible
evidence. The case against Jorgenson is less complete. Stemming from the fact that probable
cause for a warrant that yielded compelling evidence against Jorgenson was less than
satisfactory, it is not just to uphold this search. I would rule to suppress the evidence then
obtained from Jorgenson.