November 7, 2009
A Shock To The System: Court Of Appeals Of Texas Makes Difficult Determinations On Excited Utterances In Assault Appeal
Like its federal counterpart, Texas Rule of Evidence 803(2) provides an exception to the rule against hearsay for an "excited utterance," i.e., "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The rationale behind the excited utterance exception is that the stress of nervous excitement or physical shock stills the reflective faculties, thus removing an impediment to truthfulness. Based upon this rationale, I am not sure that I can agree with the recent opinion of the Court of Appeals of Texas, Texarkana, in James v. State, 2009 WL 3643554 (Tex.App.-Texarkana 2009).
Valentine appeared at the house of her mother, Robbie Denise Cooks, sporting a newly-acquired swollen eye. Cooks promptly called the emergency 9-1-1 number and informed the dispatcher that "this guy named Cedric James has jumped on my daughter" and she "got a big knot upside her head-beside her eye." Valentine, who was not served with a subpoena, did not appear at James's trial. Instead, Cooks was called to testify that her daughter had come to her house "crying, her eye was swollen." Over hearsay objections, Cooks claimed that Valentine "said that her and Cedric got into it." However, no objections were lodged at a later time during Cooks's testimony when she repeated that "[Valentine] said they was arguing" and "[t]hey had got into it." Cooks then told the jury she did not remember what Valentine said and just "assumed they must have been fighting." During cross-examination, Cooks clarified that Valentine did not actually say that James had struck her and that "[s]he didn't actually tell me that they got into it."
In addition to the evidence provided by Cooks, the State presented testimony from Officer Justin Mills of the Marshall Police Department, who discussed the condition of Valentine's eye and told the jury Valentine was still upset and crying when he talked to her. Over hearsay objections, Mills was allowed to testify that "[s]he said that her boyfriend, Cedric James, hit her in the face." Yet, subsequent testimony that Valentine said, "Cedric James was the one that hit her,” was met with
Now, based upon these facts alone, it would seem clear that the trial court did not err in admitting Valentine's statements through the testimony of Cooks and Mills because they certainly seemed to be excited utterances under Texas Rule of Evidence 803(2) (even though Cooks' contradictory testimony seems problematic). But, on James' subsequent appeal, the Court of Appeals of Texas, Texarkana, noted a few other facts. First, Mills apparently testified that with regard to Valentine that “[b]y the time we got there, I mean, I'm sure the shock had worn off." The court, however, shrugged off this testimony, noting that Mills also testified that he “had to calm [Valentine] down to find out, you know, where the actor might be at” and that Valentine's answer to a standard form provided by Mills said she would feel danger after the officer left."
Second, Cooks apparently testified that Valentine was not "excited" when she made the aforementioned statements to her. The court again shrugged off this testimony, concluding,
The word “excited” has many connotations. We believe the trial court was in the best position to determine how Cooks interpreted the term based on Cooks's expressions during her testimony.
Now, I don't want to take the court to task for its opinion because the above facts certainly provide strong indications that Valentine was exhibiting signs of stress when she made the subject statements. That said, the excited utterance exception is premised upon the declarant being under the stress or shock of excitement caused by a startling event or condition when making a statement regarding that even or condition. And in James, one witness testified that he was sure that the shock had worn off when the declarant made her statements, and the other witness testified that the declarant was not "excited" when she made her statements. Based upon these facts, it seems difficult to conclude that these statements were excited utterances.
November 6, 2009
Curiosity Killed The Jury, Take 2: Boston Globe Article Addresses Problems New Technologies Present To Jury Deliberations
Is the jury system broken? I've done several posts over the last year about how new technologies are causing (or should be causing) mistrials across the country. Back in March, I posted an entry about jurors improperly exchanging e-mails during trial and "wonder[ed] whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." Later that month, I posted an entry about mistrials being declared after jurors improperly used Google and twitter to look up and communicate details about the cases they were hearing. In May, I posted an entry about a mistrial being declared after a witness engaged in text-messaging while he was on the witness stand. In June and October, I posted entries about attempts to reign in this type of jury conduct in Michigan and Oklahoma, and it appears clearer than ever that these attempts need to be redoubled because the hits just keep on coming.
In March, a judge in a Florida drug trial discovered that nine jurors had been conducting their own research on the Internet. Blithely ignoring the judge’s instructions, they were doing Google searches on the defendant, checking Wikipedia definitions of legal terms, and unearthing evidence that had been explicitly excluded. The judge called a mistrial.In Arkansas, a building materials company called Stoam Holdings demanded that a $12 million judgment against it be thrown out because a juror had been sending Twitter messages. One of the juror’s tweets read: “oh, and nobody buy Stoam. Its bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter.’’In a Massachusetts rape case, a juror sent an e-mail to her 800-member listserv halfway through the prosecution’s argument. “Just say he’s guilty and lets get on with our lives!’’ she wrote.
Judge Rufo, who chairs the state’s Jury Management Advisory Committee, has been enlisted to come up with new juror guidelines to help prevent Google mistrials. The debate is roiling legal circles nationwide, with some saying that confiscating mobile devices at the courtroom door is needed and others saying it’s too late to put the genie back in the bottle. In Massachusetts, cellphones are banned at federal trials, but most jurors have access to their PDAs at least during long hours in the deliberation room.
The article also indicates that
Massachusetts Appeals Court Justice James McHugh has been conferring with Rufo on the matter of rogue juries. “I think what’s going on is really a revolution in the way people approach problem-solving,’’ he said. He thinks court procedures need to adapt, or risk slipping into irrelevance. “The trick is to recognize the changing dynamics of learning...and find a way to harness the capabilities of both."
I'm not sure yet about what solution(s) to this problem would work. That said, it appears that the new Michigan regulations in this area (which I mentioned in this post) have worked well so far. According to an article in the Grand Haven Tribune, these regulations, which bar jurors from using cellular phones, computers or any electronic devices while attending a trial or during deliberation, has been enforced in Michigan courtrooms. As a result, "Jury rooms are free of any electronics — 'the only thing in there is a chalk board.'"
November 5, 2009
Conspiracy Theory: Second Circuit Reverses Alien Trafficking Convictions Based In Part On Improperly Admitted Co-Conspirator Admissions
Federal Rule of Evidence 801(d)(2)(E) provides that "[a] statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Rule 801(d)(2), however, goes on to provide that "[t]he contents of the statement shall be considered but are not alone sufficient to establish...the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E)." This latter sentence was the problem for the prosecution in United States v. Liera, 2009 WL 3617813 (9th Cir. 2009).
In Liera, Carlos Zarate Liera was convicted of two counts of bringing aliens into the United States for financial gain, two counts of bringing aliens into the United States without presentation, and aiding and abetting. One of the aliens Liera allegedly brought into the U.S. was Le Chen, a citizen of the People's Republic of China. During Liera's trial, Le Chen testified, inter alia, that while he was in China his mother told him what it would cost to have a person smuggled into the U.S. The district court allowed this testimony because it determined that Le Chen's mother was Liera's co-conspirator and that her statement was thus admissible under Federal Rule of Evidence 801(d)(2)(E).
After Liera was convicted, he appealed, claiming, inter alia, that the prosecution presented insufficient evidence to establish that Le Chen's mother was his co-conspirator. The Second Circuit agreed, concluding that
Here, the only evidence offered by the government to establish that Le Chen's mother was involved in a conspiracy are the hearsay statements the government sought to introduce regarding what Le Chen's mother told Le Chen. During Liera's trial, Le Chen testified that his mother told him that a "middleman" was going to help smuggle Le Chen into the United States. In particular, Le Chen's mother told Le Chen that they "would pay the same amount [their] neighbors paid before," and that Le Chen would work to pay back the money once he arrived in the United States. Under Federal Rule of Evidence 801(d)(2)(E), these statements are insufficient to establish that Le Chen's mother was involved in a conspiracy.
In other words, the contents of Le Chen's mother's statements were some evidence that she was in a conspiracy with Liera, but they were "not alone sufficient to establish...the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement [wa]s offered under subdivision (E)."
The government did argue "that there [wa]s sufficient independent evidence to establish that Le Chen's mother was a co-conspirator, because on one occasion Le Chen saw his mother speaking to a man he thought was the 'middleman.'" The Second Circuit, however, found that this argument failed because
Le Chen testified that he never personally met or spoke to the "middleman" and that he was not present for the conversation between his mother and this man. Accordingly, it does not constitute sufficient independent evidence to establish that Le Chen's mother was involved in a conspiracy.
November 4, 2009
Steak Umm In Your Mouth: Steak Umm Vs. Steak 'Em Up Trademark Action Prompts Rule 408 Ruling
Steak Umm is a company that manufactures, advertises, and sells Steak Umm steak sandwich meat and hamburgers as part of frozen sandwich food kits (which I used to have when I was a kid but which I haven't had in years). It is also the owner of United States Registration Numbers 1,033,176 (“176”); 1,116,446 (“446”); and 2,375,933 (“933”) for the marks "STEAK-UMM," which were issued in 1976 for steak food products, 1979 for rolls, and 2000 for frozen sandwich kits, respectively. Meanwhile, Steak 'Em Up is a Pennsylvania corporation with its principal place of business, a restaurant, at 2600 South 11th Street in Philadelphia. Steak Umm has sued Steak 'Em Up, claiming that by using terms colorably similar to Steak Umm's marks, including "steak ‘em" or "steak ‘em up," Steak 'Em Up is infringing Steak Umm's marks. So, who will win the action? Who knows, but the case has already produced an interesting evidentiary ruling.
In Steak Umm Co., LLC v. Steak 'Em Up, Inc., 2009 WL 3540786 (E.D. Pa. 2009) Steak Umm made references to settlement negotiations between itself and Steak 'Em Up, and Steak 'Em Up moved to strike those references, claiming that they were inadmissible under Federal Rule of Evidence 408, which provides:
(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.
(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.
According to Steak Umm, however, evidence of settlement negotiations would be admissible at trial because it plans to use this evidence "not to prove Steak ‘Em Up's liability, but to emphasize that its conduct is wilful and deliberate." According to the court, it did not have to resolve this issue because Federal Rule of Evidence 408 is "a rule of evidence and does not govern pleadings. While the reference to settlement discussions may be inadmissible, it is not so irrelevant as to warrant striking any part of Steak Umm's complaint."
The court did acknowledge however, that
[c]ourts in this Circuit have issued divergent rulings on this issue. See McAndrews Law Offices v. School Dist. of Philadelphia, 2007 WL 515412 at *3 (E.D.Pa.2007) (denying motion to strike a complaint referencing settlement discussions even though the evidence could later be found in inadmissible at trial); but see Ciolli v. Iravani, 625 F.Supp.2d 276, 285-289 (E.D.Pa.2009) (analyzing whether Rule 408 applied to offered statements and striking references to settlement discussions contained in the complaint as immaterial); DeFazio at *2 (striking reference to settlement discussions from complaint as immaterial without engaging in an in-depth analysis of the applicability of Rule 408); Bergman v. Jefferson-Pilot Life. Ins. Co., 2003 WL 23142155 at *1 (E.D.Pa.2003) (same).
I'm not sure where I fall on the issue. Federal Rule of Evidence 408 was enacted to encourage settlement negotiations. The Rule makes evidence of such negotiations inadmissible to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction because otherwise parties would be afraid to engage in such negotiations. But does the prospect of evidence of such negotiations being mentioned in a complaint discourage settlement negotiations? It seems to me that in most cases this would not be true, but I could see how the mere mention of such negotiations could be damaging to a party in a given case. Perhaps, then, the best approach is to consider the issue on a case-by-case basis, with courts striking settlement evidence from complaints only when the moving party can prove prejudice.
November 3, 2009
From Exclusionary To Inclusionary: Kentucky Case Reveals Different Approaches To Character Evidence Under Rule 404(b)
Federal Rule of Evidence 404(b) provides that
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
Our Courts have repeatedly held that KRE 404(b) is to be interpreted as exclusionary in nature. "It is a well-known fundamental rule that evidence that a defendant on trial had committed other offenses is never admissible unless it comes with certain exceptions, which are well defined as the rule itself."...For this reason, trial courts must apply the rule cautiously, with an eye toward eliminating evidence which is relevant only as proof of an accused's propensity to commit a certain type of crime.
Rule 404(b) of the Federal Rules of Evidence codified the "uncharged misconduct" doctrine in two sentences, but it shifted the doctrine from being exclusionary to being inclusionary. That is to say, under Rule 404(b), it became easier to admit evidence of other bad acts.
Despite the common law's exclusionary approach, the drafters of the Federal Rules also endorsed the inclusionary notion that the more evidence presented at trial, the more likely the fact finder will learn the "truth." This latter policy encourages the admission of even marginally relevant evidence.
November 2, 2009
But It Was Only A Fantasy: North Carolina Opinion Reveals Troubling Exception To The State's Rape Shield Rule
Rape shield rules prevent the defendant from presenting evidence regarding the alleged victim's other sexual behavior and sexual predisposition to prove that she consented to the sexual act at issue. Typically, these rules contain three exceptions. First, a defendant can sometimes present evidence regarding the alleged victim's other sexual acts close in time to the act at issue to prove that a person other than the defendant was the source of semen, injury, or other physical evidence. Second, a defendant can sometimes present evidence of other sexual acts between the alleged victim and himself to prove consent. Third, a defendant can sometimes present evidence of other sexual acts by the alleged victim if the court concludes that the exclusion of that evidence would violate the defendant's constitutional rights.
Upon reading the recent opinion of the Court of Appeals of North Carolina in State v. Oliver, 2009 WL 3350638 (N.C.App. 2009), I came upon a fourth exception which appears to be unique to North Carolina. Pursuant to North Carolina Rule of Evidence 412(b)(4), there is an exception to North Carolina's rape shield rule for "evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged." This post argues that this exception makes no sense, given the history of rape shield rules.
Now, the Oliver opinion merely mentioned this fourth exception but did not apply it. That said, according to Tess Wilkinson-Ryan in her comment, Admitting Mental Health Evidence to Impeach the Credibility of a Sexual Assault Complainant, 153 U. Pa. L.Rev. 1373 (2005), North Carolina courts apply this exception somewhat frequently, with disturbing results. According to Wilkinson-Ryan,
North Carolina takes a unique and deeply problematic approach to the issue of psychological testimony in rape prosecutions. The North Carolina rape shield statute, like most rape shield provisions, allows for testimony about sexual history between the complainant and the defendant or evidence that would call into question the identity of the perpetrator. However, it also allows for "evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged." This law makes questions about the complainant's capacity to confuse fantasy and reality, or to confabulate, a routine part of a rape trial. In order to introduce psychological testimony, the mere suggestion of psychological aberration is adequate. In State v. Heath, the court of appeals found that when the defense suggests that "the victim may have had a history of fantasizing or fabricating stories, expert psychological or psychiatric testimony should be admissible to show that the victim does or does not suffer from a mental condition suggestive of fabrication."
Prosecutors have found ways to employ this rule to their advantage, using the opening as a means of introducing evidence of a truthful character via expert witnesses, who may be most credible to a jury. In State v. Norfleet, the court of appeals upheld the prosecutor's direct examination of a clinical social worker, in which the prosecutor asked if she "had any concerns about [the complainant's] ability to distinguish between fantasy and reality." Not only was the question deemed proper, but the social worker's expansive encomium to the complainant's truthfulness was also permitted even though the defense counsel argued that the testimony "amounted to an expert opinion that [the] victim was telling the truth." This apparent boon for prosecutors, however, is actually just a preemptive strike that is tactically necessary under a regime that places the victim's predisposition for confabulation at the crux of the trial. Yet, by introducing expert testimony as to the complainant's psychological health, the prosecution raises the issue for the jury and opens the door for the defense to cross-examine the expert and potentially introduce psychiatric testimony in rebuttal.
The North Carolina law is an explicit expression of distrust of women accusing men of rape. However, women's rape fantasies (a controversial subject in itself) are not necessarily--or even usually--linked to real-world desires to be raped. The law contributes directly to the “no means yes” stereotype that encourages male aggression and female passivity. It seems particularly outrageous to imagine that women are unable to distinguish these fantasies from reality in such numbers that the issue required legislation. The North Carolina law is unusually invasive because the fantasy provision also allows evidence of sexual history if it pertains to sexual confabulation and fantasy. The existence of the statute implies an authoritative stance on a supposed female predisposition to confuse fantasies of rape with the real thing.
So, what led to the creation of this fourth North Carolina rape shield exception? I couldn't find any legislative history on the subject, but it seems clear to me that the exception was born out of the writings of John Henry Wigmore, probably evidence's greatest scholar but also possibly its biggest misogynist. Wigmore believed that many women falsely accuse men of rape because they confuse a sexual fantasy with a violent crime, leading Wigmore to conclude that every sex offense complainant should be tested and examined by a qualified physician. See id.
Of course, "Wigmore's view that such expert opinion is indispensable to the inquiry has been soundly rejected by the courts." Harriet R. Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 Minn. L. Rev. 763, 863 n.476 (1986). Instead, most courts have adopted a general rule under which a judge, "in [her] discretion, may order a psychiatric examination of the complainant when presented with compelling reasons." Id. Indeed, the assumptions made by Wigmore and others played a large role in the eventual passage of rape shield rules. See, e.g., Denise R. Johnson, Prior False Allegations of Rape: Falsus in Uno, Falsus in Omnibus, 7 Yale J.L. & Feminism 243, 256 (1995).
This being the case, how can North Carolina have a rape shield rule and yet include in it an exception which allows for the routine admission of the very type of evidence that rape shield rules were passed to exclude? To me, North Carolina's approach seems horribly misguided, and I hope that the state reconsiders its approach and repeals this fourth rape shield exception.
November 1, 2009
Recalculating, Take 6: Supreme Judicial Court Of Massachusetts Finds Installation Of GPS Device On Suspect's Vehicle Constitutes A Seizure
I have written four previous posts (here, here, here, and here) about court opinions and articles addressing the issue of whether police should be required to obtain a search warrant before attaching a GPS device to a suspect's vehicle Those posts analyzed precedent from across the country and concluded that most courts have found that nothing in the federal constitution requires the obtainment of a warrant but that certain protections in state constitutions could require a warrant. The latest court to address this question was the Supreme Judicial Court of Massachusetts in Commonwealth v. Connolly, 913 N.E.2d 356 (Mass. 2009), which found in dicta that a warrant is required.
[a] Superior Court jury convicted [Everett Connolly] of trafficking in cocaine...and distribution of cocaine....Much of the evidence at trial was obtained as the result of a warrant that was issued to search the defendant's minivan....The affidavit attached to the application for the warrant contained information obtained from informants, from police investigation, and from a global positioning system (GPS) device. The GPS device had been installed in the defendant's minivan pursuant to a warrant previously issued.
Connolly thereafter appealed, claiming, inter alia, that "he should receive a new trial because a warrant is required for the use of a GPS device, and, while a warrant in fact issued in this case, the police obtained data from the GPS device after the warrant had expired, thereafter using that data to obtain the other search warrant as well as to locate his minivan in order to stop and search it."
In resolving this claim, the Supreme Judicial Court of Massachusetts started by noting that the few federal courts that have addressed the claim that the warrantless installation of a GPS violates the Fourth Amendment of the federal constitution have rejected it, relying upon Supreme Court precedent such as United States v. Karo, 468 U.S. 705 (1984), and United States v. Knotts, 460 U.S. 276 (1983). The court then noted that some state courts had found that the warrantless installation of GPS devices was unconstitutional under state constitutional provisions. The court pointed out that most of these courts reached this conclusion by finding that the GPS installation was a search but observed that "[w]hile no State court has explicitly addressed the question whether use of a GPS tracking device constitutes a seizure, the [Supreme Court of Washington in State v.Jackson, 76 P.3d 217 (Wash. 2003] concluded, without further distinguishing the two subjects, that installation and use of a GPS device was both a search and a seizure."
The court then found that the installation of the GPS device in the case before it constituted a "seizure" pursuant to Article XIV of the Massachusetts Declaration of Rights, which provides that
Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.
According to the court,
We conclude that a warrant was required here because the initial installation of the particular device clearly constituted a seizure under art. 14. The installation required not only entry by the police into the minivan for one hour, but also operation of the vehicle's electrical system, in order to attach the device to the vehicle's power source and to verify that it was operating properly. Moreover, operation of the device required power from the defendant's vehicle, an ongoing physical intrusion....In addition, and apart from the installation of the GPS device, the police use of the defendant's minivan to conduct GPS monitoring for their own purposes constituted a seizure....When an electronic surveillance device is installed in a motor vehicle, be it a beeper, radio transmitter, or GPS device, the government's control and use of the defendant's vehicle to track its movements interferes with the defendant's interest in the vehicle notwithstanding that he maintains possession of it. The owner of property has a right to exclude it from "all the world,"...and the police use "infringes that exclusionary right."...The interference occurs regardless whether the device draws power from the vehicle and regardless whether the data is transmitted to a monitoring computer. It is a seizure not by virtue of the technology employed, but because the police use private property (the vehicle) to obtain information for their own purposes.As stated, in gathering and using the GPS data by means of the minivan, the police used the defendant's minivan for government purposes, and did so without the defendant's knowledge or authorization. Tracking of the GPS data by the police constituted use and control of the defendant's minivan by them, and interfered with the defendant's right to exclude others from his vehicle....Although the defendant was not deprived of the ability to drive the minivan, by using the GPS device on the vehicle to track its movements the police asserted control over it, converting the minivan to their own use notwithstanding the defendant's continued possession. The continual monitoring of the GPS data also substantially infringed on another meaningful possessory interest in the minivan: the defendant's use and enjoyment of his vehicle....Accordingly, we conclude that the monitoring and use of data from GPS devices requires a warrant under art. 14.
Based upon this conclusion, the court did not need to address the issue of whether the GPS installation also constituted a search. The court, however, also did not need to address the issue of whether the GPS installation was a seizure. Why? According to the court, "the tracking warrant had not expired when the minivan was seized," meaning that there was no constitutional violation.