Blog10/LEARNING_OBJECTIVESWhen_you_complete_this_chapter_you_should_be

LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Explain the justification for regulatory and administrative searches. � Describe regulatory and administrative searches. � Describe consent searches and the issues associated with them.

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213

CHAPTER OUTLINE

Actions Based on Administrative Justification and Consent

C H

A P

T E

7 OUTLINE

Introduction: Casting Off the Fourth Amendment’s Restraints

Actions Based on Administrative Justification Inventories

Vehicle Inventories Person Inventories

Inspections Home Inspections Business Inspections Fire Inspections International Mail Inspections

Checkpoints Border Checkpoints Illegal Immigrant Checkpoints Sobriety Checkpoints License and Safety Checkpoints Crime Investigation Checkpoints Other Types of Checkpoints Unconstitutional Checkpoints

School Discipline Locker Checks and Drug Dog “Sniffs”

“Searches” of Government Employees’ Offices Drug and Alcohol Testing

Drug and Alcohol Testing of Employees Drug and Alcohol Testing of Hospital Patients Drug and Alcohol Testing of School Students

Probation and Parole Supervision More Latitude at the State Level Police/Probation Partnerships Parole Supervision

Consent Searches Voluntariness Scope Limitations Third-Party Consent “Knock and Talk”

Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

Casting Off the Fourth Amendment’s Restraints

As mentioned in Chapter 3, actions based on administrative justifications are those in which the primary purpose is noncriminal. They resemble searches because they intrude on people’s privacy—and can lead to the discovery of evidence. Technically, however, they are not searches. Instead of being based on probable cause or reasonable suspicion, administrative actions invoke a balancing test, weighing citizens’ privacy interests against the interest to ensure public safety. When the latter outweighs the former, an administrative “search” is allowed, subject to certain limitations (e.g., department policy). This chapter briefly introduces several types of actions that the Supreme Court has authorized based on administrative justification.

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South Dakota v. Opperman (428 U.S. 364 [1976])

214 Part 2 • Search and Seizure

This chapter also introduces the topic of consent searches. When a person gives valid consent to search, neither a warrant nor probable cause is required. Closely tied to consent searches is the controversial police practice known as “knock and talk.” The consent search section also delves into third-party consent or the extent to which one person can grant consent to have another person’s property searched. Consent fits nicely in this chapter because neither it nor actions based on administrative justification require probable cause—or any real measure of proof that a crime is being or has been committed.

ACTIONS BASED ON ADMINISTRATIVE JUSTIFICATION

The Supreme Court has authorized numerous varieties of actions under the administra- tive justification exception to the Fourth Amendment’s probable cause and warrant requirements. Sometimes they are described as special needs beyond law enforcement searches; other times, they are called regulatory searches. To avoid confusion, this book lumps all of them under the category of administrative justification. The actions that are considered include (1) inventories; (2) inspections; (3) checkpoints; (4) school discipline; (5) “searches” of government employees’ offices; (6) drug and alcohol testing; and (7) parole and probation supervision. Note that when the term “search” appears in quotes, it is because while a particular action may look like a search, it is not the same as a true Fourth Amendment search.

Inventories

Like seizures based on plain view, inventories can be viewed as another fallback measure. An inventory can be of a vehicle and/or of a person’s personal items. Usually, a search occurs under the automobile exception (in the case of an automobile) or a search incident to arrest (when a person is involved), and an inventory is taken after the fact for the purpose of developing a record of what items have been taken into custody. Both types of inventories are fallbacks in the sense that they often occur after an earlier search.

VEHICLE INVENTORIES A vehicle inventory occurs in a number of situations, usually after a car has been impounded for traffic or parking violations. In South Dakota v. Opperman (428 U.S. 364 [1976]), the Supreme Court held that a warrantless inventory is permissible on administrative/regulatory grounds. However, it must (1) follow a lawful impoundment; (2) be of a routine nature, following standard operating procedures; and (3) not be a “pretext concealing an investigatory police motive.” Thus, even though an inventory can be perceived as a fallback measure, which permits a search when probable cause is lacking, it cannot be used in lieu of a regular search requiring probable cause.

Why did the Court opt for another standard besides probable cause for the inventory, despite the fact that it is still a “search” in the conventional sense of the term? The Court noted that the probable cause requirement of the Fourth Amendment is “unhelpful” in the context of administrative care-taking functions (e.g., inventories) because the concept of probable cause is linked to criminal investigations. Probable cause is irrelevant with this type of administrative action, “particularly when no claim is made that the protective procedures are a subterfuge for criminal investigations” (p. 371).

The Court offered three reasons in support of vehicle inventories. First, an inventory protects the owner’s property while it is in police custody. Second, an inventory protects the police against claims of lost or stolen property. Finally, an inventory protects the police and public from dangerous items (e.g., weapons) that might be concealed in a car.

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Illinois v. Lafayette (462 U.S. 640 [1983])

Colorado v. Bertine (479 U.S. 367 [1987])

Chapter 7 • Actions Based on Administrative Justification and Consent 215

Note that inventories include containers. That is, the police may examine any container discovered during the course of a vehicle inventory, but this should be mandated by departmental procedures. This was the decision reached in Colorado v. Bertine (479 U.S. 367 [1987]). That decision also helped the police insofar as the Court refused to alter the vehicle inventory exception to the Fourth Amendment when secure impound facilities are accessible. As the Court stated, “[T]he security of the storage facility does not completely eliminate the need for inventorying; the police may still wish to protect themselves or the owners of the lot against false claims of theft or dangerous instrumentalities” (p. 373).

In Bertine, the Court also rejected an argument that car owners should be able to make their own arrangements if their vehicles are impounded (e.g., have it towed by a private company, have a friend drive it home). The Court stated, “The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative ‘less intrusive’ means” (p. 374).

Reading Opperman and Bertine would suggest that inventories are relatively standard and intended mainly to take note of a car’s contents. However, in Michigan v. Thomas (458 U.S. 259 [1982]), the Supreme Court concluded that the police could go even further. In that case, officers found a loaded .38 revolver in one of the impounded vehicle’s air vents. The Court upheld the officers’ actions because marijuana had been found in the vehicle shortly before the gun was detected.

In conclusion, two important issues must be understood with regard to vehicle inventories. First, if during the course of a valid inventory, the police discover evidence that gives rise to probable cause to search, then a more extensive search is permissible. However, according to Carroll v. United States (267 U.S. 132 [1925]), discussed in Chapter 5, one of the requirements for such action to be constitutional is the impracticality of securing a warrant.

Second, despite the Supreme Court’s apparent willingness to give police wide latitude with vehicle inventories, what makes them constitutional is clear guidelines as to how the inventory should be conducted. In other words, the Court has authorized inventories without probable cause or a warrant only if, in addition to the other require- ments discussed earlier, it is conducted in accordance with clear departmental policies and procedures. Requiring the police to follow appropriate policies minimizes discretion and the concern that inventories may be used for criminal investigation purposes. The inventory search policy from the Pine Bluff, Arkansas, Police Department’s Policy and Procedure Manual is reprinted in Figure 7.1.

PERSON INVENTORIES The inventory exception to the Fourth Amendment’s warrant requirement applies in the case of a person inventory, as well. The action permitted is often called an arrest inventory. The general rule is that the police may search an arrestee and his or her personal items, including containers found in his or her possession, as part of a routine inventory incident to the booking and jailing procedure. As decided in Illinois v. Lafayette (462 U.S. 640 [1983]), neither a search warrant nor probable cause is required. According to the Court:

Consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station incident to booking and jailing the suspect. The justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search. Here, every consideration of orderly police administration— protection of a suspect’s property, deterrence of false claims of theft against the police, security, and identification of the suspect—benefiting both the police and the public points toward the appropriateness of the examination of respondent’s shoulder bag. (pp. 643–648)

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216 Part 2 • Search and Seizure

SUBJECT:

TOWING & STORAGE OF VEHICLES

CHAPTER: PATROL

ISSUED By:

Chief of Police John E. Howell

POLICY NUMBER 260

ISSUE DATE 02/19/2008

EFFECTIVE DATE 02/19/2008

TOTAL PAGES 6

FIGURE 7.1 Vehicle Inventory Policy (Pine Bluff, AR, Police Department)

I. PROCEDURES

A. GENERAL

1. The Impoundment of motor vehicles shall be accomplished by the use of contract commercial towing services, towing vehicles, and impoundment lots as authorized by this law enforcement agency. All towing agencies must be a member of the Arkansas Towing and Recovery Board, certified for and display inspection documentation indicating they are authorized for non-consent towing.

2. Vehicles impounded by or otherwise taken into the custody by this agency shall be inventoried in a manner consistent with this agencies policy on motor vehicle inventories as stated in Section F of this policy. a. Inventories should be performed at the scene or at a safe place nearby whenever this can be done

safely and effectively. b. A Pine Bluff Police Department wrecker log will be completed on any impounded motor vehicles. c. Motor vehicles shall not be impounded for purposes other than those defined by statute or ordinance,

(e.g., not as a form of punishment, or as a means of conducting vehicle searches when probable cause does not exist or consent to search cannot be obtained).

3. When impoundments are necessary, the operator and any passengers should not be stranded. Officers shall take those measures necessary to ensure that the operator and any passengers of the vehicle are offered transportation. To include but not limited to: a. Call a taxi cab for them. b. Call a friend or relative to pick them up. c. With supervisor approval, transport them to the nearest reasonably safe location.

4. If the driver/owner or passenger(s) decline assistance with transportation and the vehicle is towed at the direction of an officer for any reason, the officer shall document their refusal on an original Information/Incident Report, as Supplemental to and existing Information/Incident Report, or on an Accident Report, whichever is appropriate to the circumstances.

5. Vehicle operators may be permitted to remove unsecured valuables of a non-evidentiary nature from the vehicle prior to its removal for impoundment. The nature of these valuables shall be noted on the appropriate reporting document.

6. Impounded vehicles shall be released to owners with proof of ownership and personal identification, and following proof of payment of any impoundment, storage, or related fees and taxes.

Source: Reprinted courtesy of Pine Bluff, AR, Police Department. IS B

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Camara v. Municipal Court (387 U.S. 523 [1967])

Chapter 7 • Actions Based on Administrative Justification and Consent 217

It is important to understand that an inventory of person must follow a lawful arrest, so the probable cause to search requirement is essentially satisfied at the arrest stage.

The Supreme Court’s decision in Opperman, discussed in the vehicle inventory section, has essentially been extended to person inventories. That is, as part of invento- rying a person’s possessions pursuant to a valid arrest, the police may also examine containers. The Court felt that it would be unduly burdensome on the police to require them to distinguish between which containers may or may not contain evidence of criminal activity.

Inspections

A variety of inspections is permissible without a warrant or probable cause. For all practical purposes, they are “searches.” Even so, the courts have continually stressed that the justification for such searches is the “invasion versus need” balancing act—that is, the benefits of some inspections outweigh the costs of inconveniencing certain segments of the population. Most of these exceptions to the warrant requirement are based on the Court’s decision in Camara v. Municipal Court (387 U.S. 523 [1967]), where it was concluded that “there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails” (pp. 536–537).

HOME INSPECTIONS Two types of home inspection have been authorized by the Court. The first concerns health and safety inspections of residential buildings, such as public housing units. In Frank v. Maryland (359 U.S. 360 [1959]), for example, the Court upheld the constitutionality of a statute designed to punish property holders for failing to cooperate with warrantless health and safety inspections. The Court noted that such inspections “touch at most upon the periphery of the important interests safeguarded by the Fourteenth Amendment’s protection against official intrusion” (p. 367). In 1967, however, the Court overruled the Frank decision in Camara v. Municipal Court (387 U.S. 523 [1967]).

In Camara, the Court noted that nonconsensual administrative inspections of private residences amount to a significant intrusion upon the interests protected by the Fourth Amendment. Today, a warrant is required for authorities to engage in a home inspection. However, the meaning of probable cause in such a warrant differs from that discussed earlier. The Court has stated that if an area “as a whole” needs inspection, based on factors such as the time, age, and condition of the building, then the probable cause requirement will be satisfied. The key is that probable cause in the inspection context is not individualized as in the typical warrant. That is to say, inspections of this sort are geared toward buildings, not persons.

A second type of home inspection is a welfare inspection. In Wyman v. James (400 U.S. 309 [1971]), the Supreme Court upheld the constitutionality of a statute that allowed welfare caseworkers to make warrantless visits to the homes of welfare recipients.

DECISION-MAKING EXERCISE 7.1

Inventoried and Inventoried Again

At the time of the defendant’s arrest, police officers invento- ried his automobile and seized several items. Approximately eight hours after the car was impounded, an officer, without obtaining a warrant, searched the car a second time, seizing

additional evidence. Note that both searches were inventory searches. Do these searches appear, as many courts have stated it, to “pass Fourth Amendment muster”? What if only the second search was deemed unconstitutional?

Wyman v. James (400 U.S. 309 [1971])

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Colonnade Catering Corp. v. United States (397 U.S. 72 [1970])

218 Part 2 • Search and Seizure

The purpose of such inspections is to ensure that welfare recipients are conforming with applicable guidelines and rules. The Court declared that welfare inspections are not searches within the meaning of the Fourth Amendment, which means they can be conducted without a warrant or probable cause. Of course, such inspections should be based on neutral criteria and should not mask intentions to look for evidence of criminal activity.

BUSINESS INSPECTIONS Far more case law exists in the arena of business inspections. See v. City of Seattle (387 U.S. 541 [1967]), which was a companion case to Camara, was one of the first to focus on the constitutionality of business inspections. See involved a citywide inspection of businesses for fire code violations. The Court noted that “[t]he businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property” (p. 543) and therefore that warrants were required to engage in business inspections.

However, soon after See, the Court created what came to be known as the closely regulated business exception to the warrant requirement set forth in Camara and See. Specifically, in Colonnade Catering Corp. v. United States (397 U.S. 72 [1970]), the Court upheld a statute criminalizing refusal to allow warrantless entries of liquor stores by government inspectors. According to the Court:

We agree that Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand. The gen- eral rule laid down in See v. City of Seattle . . . —“that administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure”—is therefore not applica- ble here. In See, we reserved decision on the problems of “licensing programs” requiring inspections, saying they can be resolved “on a case-by-case basis under the general Fourth Amendment standard of reasonableness.” . . . What we said in See reflects this Nation’s traditions that are strongly opposed to

DECISION-MAKING EXERCISE 7.2

Welfare-Related Home Inspections

These are the paraphrased facts from a real case, Calabretta v. Floyd (189 F.3d 808 [9th Cir. 1999]): An anonymous party called the Department of Social Services and said that she was awakened by a child screaming “No, Daddy, no” at 1:30 a.m. at the Calabretta home. Four days after the call, a social worker went to the Calabretta home to investigate. Mrs. Calabretta, the mother, refused to let the social worker in. Then, 10 days after the first visit, the social worker returned to the Calabretta house with a police officer. The officer met the social worker at the Calabretta house, knowing nothing about the case except that he had been assigned to assist her. She told him that they had received a report of the children crying, and he understood her to mean that they might have been beaten. When the police officer knocked on the door of the home, Mrs. Calabretta responded but did not open the door. The police officer said they were checking on the children’s welfare because someone had reported

children crying. Mrs. Calabretta still did not open the door and said she was uncomfortable letting them in without her husband at home. The police officer had the opinion that any check on the welfare of children involved an exigent circumstance and thus that no search warrant was needed. Once the two gained entry, the social worker took the children into one room while the officer remained in another room with the mother. The social worker asked the 12-year-old to pull down the 3-year-old’s pants to check for bruises on her buttocks. The 12-year-old refused and the 3-year-old began crying. At that point, the mother rushed in. The social worker then demanded that the mother pull down the 3-year-old’s pants, which she did. There were no bruises. The Calabrettas sued the social worker, the police officer, and other defendants for, among other things, a violation of their Fourth Amendment rights. Was the entrance into the Calabretta home constitutional?

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United States v. Biswell (406 U.S. 311 [1972])

Chapter 7 • Actions Based on Administrative Justification and Consent 219

using force without definite authority to break down doors. We deal here with the liquor industry long subject to close supervision and inspection. As respects that industry, and its various branches including retailers, Congress has broad authority to fashion standards of reasonableness for searches and seizures. (pp. 76–77)

Similarly, in United States v. Biswell (406 U.S. 311 [1972]), the Court upheld the war- rantless inspection of a firearms dealership. In Biswell, the Court observed that “[w]hen a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms and ammunition will be subject to effective inspection” (p. 311). A key restriction on this ruling, however, is that authorities cannot use unauthorized force for the purpose of gaining entrance.

In a later case, Donovan v. Dewey (452 U.S. 494 [1981]), the Court modified the closely regulated business exception. The Court decided that it is not enough that an industry is “pervasively regulated” for the business inspection exception to apply. Three additional criteria must be met: (1) the government must have a “substantial” interest in the activity at stake; (2) warrantless searches must be necessary to the effective enforcement of the law; and (3) the inspection protocol must provide “a constitutionally adequate substitute for a warrant.”

The Court clarified the Dewey criteria in New York v. Burger (482 U.S. 691 [1987]). In that case, the Court upheld the warrantless inspection of a vehicle junkyard for the purpose of identifying “vehicle dismantlers.” Justice Blackman noted that Dewey’s first criterion was satisfied because vehicle theft was a serious problem in New York. The second criterion was satisfied because surprise inspections were necessary if stolen vehicles and parts were to be identified, and the third criterion—adequate substitute— was satisfied because junkyard operators were notified that inspections would be unan- nounced and conducted during normal business hours. In the Court’s words:

The New York regulatory scheme satisfies the three criteria necessary to make reasonable warrantless inspections pursuant to [the statute in question]. First, the State has a substantial interest in regulating the vehicle-dismantling and automobile-junkyard industry because motor vehicle theft has increased in the State and because the problem of theft is associated with this industry . . . Second, regulation of the vehicle-dismantling industry reasonably serves the State’s substantial interest in eradicating automobile theft . . . [and third, the statute] provides a “constitutionally adequate substitute for a warrant.” . . . . The statute informs the operator of a vehicle dismantling business that inspec- tions will be made on a regular basis . . . . Thus, the vehicle dismantler knows that the inspections to which he is subject do not constitute discretionary acts by a government official but are conducted pursuant to the statute. (pp. 708–709)

DECISION-MAKING EXERCISE 7.3

Business Inspections

Komfortable Kitty Drug Company manufactures and pack- ages veterinary drugs. Several times during a one-year pe- riod, Federal Drug Administration (FDA) agents inspected the company’s premises to ensure compliance with the Food, Drug, and Cosmetic Act (actual legislation). The agents cited Komfortable Kitty for several violations. Drugs that were

allegedly in violation of the act were seized pursuant to an in rem arrest warrant (i.e., a warrant authorizing the arrest of property). Altogether, over $100,000 worth of drugs and equipment were seized. Komfortable Kitty has contested the constitutionality of the seizure. Does the company have a valid case?

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United States v. Ramsey (431 U.S. 606 [1977])

Michigan v. Tyler (436 U.S. 499 [1978])

220 Part 2 • Search and Seizure

It is important to point out, though, that when business inspections become non regulatory (e.g., for the purpose of criminal investigation/prosecution), then a warrant is required (see G.M. Leasing Corp. v. United States, 429 U.S. 338 [1977]).

FIRE INSPECTIONS In Michigan v. Tyler (436 U.S. 499 [1978]), the Supreme Court authorized the warrantless inspection of a burned building/residence (i.e., fire inspec- tion) immediately after the fire has been put out. The key is that the inspection must be contemporaneous, not several days or weeks after the fire. The justification offered by the Court was that it is necessary to determine the cause of a fire as soon as possible after it has been extinguished. A warrant in such an instance, felt the Court, would be unduly burdensome.

In a related case, Michigan v. Clifford (464 U.S. 287 [1984]), the Court decided on the constitutionality of a warrantless arson-related inspection that was conducted five hours after the fire was extinguished. While the inspection began as just that, when evidence of arson was found, a more extensive search was conducted. The Court required a warrant because the officials engaging in the search admitted it was part of a criminal investigation. According to the Court:

The warrantless intrusion into the upstairs regions of the Clifford house presents a telling illustration of the importance of prior judicial review of proposed administrative searches. If an administrative warrant had been obtained in this case, it presumably would have limited the scope of the proposed investigation and would have prevented the warrantless intrusion into the upper rooms of the Clifford home. An administrative search into the cause of a recent fire does not give fire officials license to roam freely through the fire victim’s private residence. (p. 298)

Interestingly, in Clifford, the Court stated that “the home owner is entitled to reasonable advance notice that officers are going to enter his premises for the purposes of ascertaining the cause of the fire” (p. 303), which suggests that notice, but not a warrant, is required for the typical fire inspection. More extensive searches, however, still require warrants supported by probable cause.

INTERNATIONAL MAIL INSPECTIONS The Supreme Court has permitted government officials to open incoming international mail. For example, in United States v. Ramsey (431 U.S. 606 [1977]), customs agents opened mail that was coming into the United States from Thailand, a known source of drugs. Further, the agents felt that a specific envelope was heavier than what would have been considered usual. Considering these factors, the Supreme Court upheld the warrantless search:

The border-search exception is grounded in the recognized right of the sover- eign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country. It is clear that there is nothing in the rationale behind the bordersearch exception which suggests that the mode of entry will be critical. It was conceded at oral argument that customs officials could search, without probable cause and without a warrant, envelopes carried by an entering traveler, whether in his luggage or on his person. . . . Surely no different constitutional standard should apply simply because the envelopes were mailed, not carried. The critical fact is that the envelopes cross the border and enter this country, not that they are brought in by one mode of transportation rather than another. It is their entry into this country from without it that makes a resulting search “reasonable.” (p. 620)

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Chapter 7 • Actions Based on Administrative Justification and Consent 221

Checkpoints

Several types of checkpoints are constitutionally permissible without warrants. A checkpoint is a means of investigating a large number of people and should be distinguished from an inspection. Whereas an inspection targets particular homes and/or businesses, a checkpoint possesses an element of randomness—or total predictability. Either everyone is stopped or every nth person (e.g., every tenth person) is stopped. A checkpoint is similar to an investigation insofar as its purpose is not criminal in the sense that a typical search is. And to the extent that some checkpoints border on looking for evidence of crime (e.g., illegal immigrants), they are often justified because they are not based on individualized suspicion.

BORDER CHECKPOINTS In Carroll v. United States (267 U.S. 132 [1925]), the Supreme Court stated that brief border detentions are constitutionally permissible. Further, it is in the inter- est of “national self protection” to permit government officials to require “one entering the country to identify himself as entitled to come in . . . ” (p. 154). More recently, in United States v. Montoya de Hernandez (473 U.S. 531 [1985]), the Court reaffirmed the need for war- rantless border inspections: “Routine searches of the persons and effects of entrants [at the border] are not subject to any requirement of reasonable suspicion, probable cause, or a warrant . . . [O]ne’s expectation of privacy [is] less at the border” (p. 538). The Court wrote:

[This case reflects] longstanding concern for the protection of the integrity of the border. This concern is, if anything, heightened by the veritable national crisis in law enforcement caused by smuggling of illicit narcotics . . . and in particular by the increasing utilization of alimentary canal smuggling. This desperate practice appears to be a relatively recent addition to the smugglers’ repertoire of deceptive practices, and it also appears to be exceedingly difficult to detect. (pp. 538–539)

Border checkpoints have also been upheld on U.S. waterways (United States v. Villamonte-Marquez, 462 U.S. 579 [1983]), at highway checkpoints well inside the international borders (Almeida-Sanchez v. United States, 413 U.S. 266 [1973]), and at inter- national airports (Illinois v. Andreas, 463 U.S. 765 [1983]). According to a recent Supreme Court decision (United States v. Flores-Montano, 541 U.S. 149 [2004]), it also appears that more than just a detention is permissible at the border. In that case, the Supreme Court sanctioned the removal, disassembly, and reassembly of a vehicle’s fuel tank.

ILLEGAL IMMIGRANT CHECKPOINTS In United States v. Martinez-Fuerte (428 U.S. 543 [1976]), the Court upheld the decision of the Immigration and Naturalization Service (INS) to establish roadblocks near the Mexican border for the purpose of discovering illegal aliens. The Court offered a number of reasons for its decision. First, “[t]he degree of intrusion upon privacy that may be occasioned by a search of a house hardly can be compared with the minor interference with privacy resulting from the mere stop for questioning as to residence” (p. 565). Second, motorists could avoid the checkpoint if they so desired. Third, the Court noted that the traffic flow near the border was heavy, so individualized suspicion was not possible. Fourth, the location of the roadblock was not decided by the officers in the field “but by officials responsible for making overall decisions” (p. 559). Finally, a requirement that such stops be based on probable cause “would largely eliminate any deterrent to the conduct of well-disguised smuggling operations, even though smugglers are known to use these highways regularly” (p. 557). Importantly, law enforcement officers must have justification to examine the bags and personal effects of individuals who are stopped at immigration checkpoints (or during any immigration check) (Bond v. United States, 529 U.S. 334 [2000]).

United States v. Martinez-Fuerte (428 U.S. 543 [1976])

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Michigan Dept. of State Police v. Sitz (496 U.S. 444 [1990])

222 Part 2 • Search and Seizure

SOBRIETY CHECKPOINTS In Michigan Dept. of State Police v. Sitz (496 U.S. 444 [1990]), the Court upheld a warrantless, suspicionless checkpoint designed to detect evidence of drunk-driving. In that case, police checkpoints were set up, at which all drivers were stopped and briefly (approximately 25 seconds) observed for signs of intoxication. If such signs were found, the driver was detained for sobriety testing, and if the indication was that the driver was intoxicated, an arrest was made. The Court weighed the magnitude of the governmental interest in eradicating the drunk-driving problem against the slight intrusion to motorists stopped briefly at such checkpoints. Key to the constitutionality of Michigan’s checkpoint were two additional factors: (1) evenhandedness was ensured because the locations of the checkpoints were chosen pursuant to written guidelines and every driver was stopped; and (2) the officers themselves were not given discretion to decide whom to stop. Significantly, the checkpoint was deemed constitutional even though motorists were not notified of the upcoming checkpoint or given an opportunity to turn around and go the other way. According to the Court:

No one can seriously dispute the magnitude of the drunken driving problem or the State’s interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s roads are legion. The anecdotal is confirmed by the statistical. . . . For decades, this Court has “repeatedly lamented the tragedy.” . . . Conversely, the weight bearing on the other scale—the measure of the intrusion on motorists stopped briefly at sobriety checkpoints—is slight. . . . In sum, the balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment. (pp. 451–455)

LICENSE AND SAFETY CHECKPOINTS In Delaware v. Prouse (440 U.S. 648 [1979]), the Supreme Court held that law enforcement officials cannot randomly stop drivers for the purpose of checking their drivers’ licenses. The Court’s reasoning is interesting:

An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, perva- sive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the

DECISION-MAKING EXERCISE 7.4

Detecting Illegal Aliens

The U.S. Border Patrol relies on checkpoints north of the Mexican border to look for illegal aliens. (In California, these can be found as far as 90 miles north of the border.) These checkpoints are often stationed in the middle of major freeways, where every car must slow down and, at a mini- mum, be waved through by one of several agents standing between the lanes. In addition, there is little, if any, opportunity

to exit the freeway in order to avoid the checkpoints. Can these checkpoints be considered administrative? What if, instead of having the cars slow down, the border patrol required all vehicles to stop, at which point they would briefly search the trunk, cargo compartment (i.e., for a pickup truck, van, or tractor trailer), and so on in an effort to detect illegal aliens? Could they legally do this?

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Chapter 7 • Actions Based on Administrative Justification and Consent 223

individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. . . . Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not regis- tered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment. (pp. 662–663)

The Court did note, however, that “this holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion” (p. 663). In particular, “Questioning of all oncoming traffic at roadblock-type stops is one possible alternative” (p. 663). If officers stopped every fifth, tenth, or twentieth vehicle, then this action would probably conform to the Court’s requirement that roadblocks and checkpoints restrict individual officers’ discretion to the fullest extent possible. See Figure 7.2 for an example of a vehicle safety checkpoint policy.

SUBJECT:

VEHICLE SAFETY CHECKPOINT

CHAPTER: TRAFFIC

ISSUED By:

Chief of Police John E. Howell

POLICY NUMBER 403

ISSUE DATE 02/19/2008

EFFECTIVE DATE 02/19/2008

TOTAL PAGES 4

FIGURE 7.2 Vehicle Safety Checkpoint Policy (Pine Bluff, AR, Police Department)

I. POLICY This agency has a primary mission of creating a safer environment for the citizens within this commu- nity. In furtherance of this mission, this agency shall periodically conduct a vehicle safety checkpoint as directed by the Chief or his or her designee. All vehicle safety checkpoint operations shall be closely supervised as assigned by the Chief or his or her designee. The directives, as stated within this policy, shall be applied as a standard operating procedure in providing guidance to agency personnel in conducting all vehicle safety checkpoints. This policy applies only to vehicle safety checkpoints. It does not apply to sobriety checkpoints, drug interdiction checkpoints, or roadblocks for other purposes.

II. PURPOSE To increase the effectiveness of this agency in checking for unsafe vehicles traveling upon the roadways. Vehicle safety checkpoints will also allow this agency the opportunity to periodically concentrate its efforts in checking for violations of Arkansas traffic and regulatory laws that will ultimately increase the safety of the citizens within the community.

Figure 7.2 continued

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224 Part 2 • Search and Seizure

III. PROCEDURES: A. A decision to implement a vehicle safety checkpoint operation must be approved either by the Chief or

his or her designee. B. The maximum duration of any vehicle safety checkpoint operation shall be four hours unless

otherwise directed by the Chief or his or her designee. C. A safety checkpoint operation shall only be conducted by utilizing the proper equipment. The

following shall be considered as being proper equipment: 1. At least three marked patrol units equipped with emergency lights, siren and communications

devices. One of these marked units shall be positioned at the checkpoint central location and shall have emergency lights operational during the checkpoint operation. The other two patrol units shall be positioned at each end of the checkpoint area. Other patrol units, for prisoner transport, shall be called to the checkpoint area if necessary.

2. At least one portable sign (when traffic is only stopped one way) to be placed alongside the roadway approximately 300 feet from the checkpoint area. The letters on the sign shall be large enough so that passing motorists are able to read it easily. The sign shall display the following messages: a. NOTICE———You are now entering a vehicle safety checkpoint under the direction of the Pine

Bluff Police Department. b. Be prepared to stop.

3. When traffic is being stopped from both directions a second sign shall be utilized and displayed as stated above.

4. A vehicle safety checkpoint operation shall only be conducted by assigning the appropriate number of personnel. The following shall be considered an appropriate number of personnel: a. At least two or three officers (depending on the time of day and the traffic flow) conducting the

checkpoint in full departmental uniform or in clothing, as approved by an immediate supervisor, that identifies him or her as a law enforcement officer. Two officers shall be utilized to approach the vehicles stopped and one officer will be utilized to take any enforcement action as necessary.

b. At least one officer or a properly trained K-9 and K-9 handler occupying the other marked units. These officers shall be in full departmental uniform or in clothing, as approved by an immediate supervisor that identifies him or her as a law enforcement officer.

5. A supervisor as assigned by the Chief or his or her designee. 6. Law Enforcement officers of this agency participating in a vehicle safety checkpoint operation

shall: a. Establish a checkpoint only in an area where there is complete visibility for a minimum of 500

feet from both directions of oncoming traffic to the checkpoint area. b. Establish a checkpoint whereby all vehicles or a designated number, every third vehicle for

instance, is stopped. The Chief of Police or other supervisor assigned to the operation shall make a decision as to how the checkpoint will be conducted at the scene.

c. Cautiously approach all vehicles and be particularly alert to suspicious movements or actions of the vehicle occupants. Policy 403 Page 3

d. Allow the driver and occupants to remain inside their vehicle unless their removal from the vehicle is necessary due to facts leading the officer to reasonably suspect that:

i. A crime has been or is being committed; ii. The vehicle occupant(s) presents some danger to the officer or others; or

iii. The person is armed and presently dangerous.

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e. Courteously advise the driver of the vehicle the following: This is a vehicle safety checkpoint being conducted by the Pine Bluff Police Department. We are checking vehicles for the safety of all motorists within the city of Pine Bluff.

f. Advise the operator of the vehicle to provide a driver’s license, vehicle registration, and proof of vehicle insurance. Also advise the vehicle operator that a brief vehicle safety inspection, checking the general condition of the motor vehicle, will be completed.

g. Complete the vehicle/document inspection and take any enforcement action deemed necessary or appropriate. Drivers of vehicles for which enforcement action is necessary will be directed to a “pull off area” that has been established prior to the beginning of the checkpoint operation. A pull off area is defined as a location such as the following:

i. The shoulder of the roadway that is wide enough that three or more vehicles can be parked in a safe manner.

ii. A parking area that can be utilized either by permission of the owner or a business parking lot for which the business is closed.

iii. The pull off area is necessary to avoid any lane blockage for prolonged periods and to provide for motorists and officer safety.

h. After completing the document/vehicle inspection or taking enforcement action and no arrests are made, law enforcement officers shall:

i. Thank the vehicle operator/occupants for the cooperation extended. ii. Promptly release the vehicle and occupants.

i. The additional patrol unit(s), positioned at each end of the checkpoint area, shall provide back-up for the officers conducting the checkpoint and shall conduct traffic stops in a situation where a vehicle, after observing the portable signs, takes evasive action to avoid entering the checkpoint area.

7. Upon completion of a vehicle safety checkpoint operation, all signs will be removed from alongside the roadway and returned to agency storage. Policy 403 Page 4

8. Agency personnel assigned to a vehicle safety checkpoint operation must first attend a briefing for which a supervisor or designee will further familiarize personnel with agency operational procedures, discuss the location of the checkpoint and emphasize officer safety.

9. Information about any vehicle safety checkpoint operation, or subsequent arrests or seizures as a result of the operation, will be released to the news media in accordance with departmental policy concerning Freedom of Information.

10. At the conclusion of a vehicle safety checkpoint operation, the Chief or supervising officer in charge will assign one of the officers involved in the checkpoint to complete a full report outlining the details associated with the operation. The report shall include the date, time, and location of the checkpoint; personnel assigned including the use of a K-9 and in what capacity each individual was utilized; results of the operation such as, arrests made, searches conducted and items seized subsequent to the search; and any other information specific to the particular event.

11. A completed report shall be forwarded to the supervising officer making the assignment. The supervising officer shall forward a copy to the Criminal Investigation Division for investigative purposes if necessary. The original report shall be filed within the Police Department in accor- dance with departmental filing procedures.

12. Law enforcement officers of this agency may conduct a Vehicle Checkpoint operation in conjunction with other law enforcement agencies within the City only if the cooperating agency will agree to comply with the specific requirements set forth within this policy.

Source: Reprinted courtesy of Pine Bluff, AR, Police Department.

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CRIME INVESTIGATION CHECKPOINTS In Illinois v. Lidster (540 U.S. 419 [2004]), the Supreme Court decided that checkpoints are also authorized for officers to ask questions related to crimes that had occurred earlier at the same area. In Lidster, police briefly detained motorists to ask them if they had any information about a hit-and-run accident between a vehicle and a bicycle that had taken place a week before at the same location. A driver entered the checkpoint, swerved, and nearly hit an officer. He was stopped and subjected to a field sobriety test. He was convicted of drunk-driving and later challenged the constitutionality of the checkpoint. The Supreme Court disagreed, thus permitting yet another type of checkpoint.

OTHER TYPES OF CHECKPOINTS Still other types of checkpoints have come to the Supreme Court’s attention. In United States v. Villamonte-Marquez, for example, the Court distinguished stops of boats on water from stops of vehicles on land. In that case, customs officers stopped and boarded a person’s boat to inspect documents in accordance with 19 U.S.C. Section 1581(a), which permits officers to board any vessel, at any time, without justification, to examine the vessel’s manifest or other docu- ments. While onboard the defendant’s boat, one of the customs officers smelled what he thought was marijuana. Looking through an open hatch, the officer spotted bales that turned out to contain marijuana. The Court noted that fixed checkpoints are not possible, given the expansiveness of open water, so it relied on different reasoning. The Court noted that boardings such as that in Villamonte-Marquez are essential to ensure enforcement of the law in waters, “where the need to deter or apprehend drug smugglers is great” (p. 593). Key restrictions the Court did impose, though, were that such detentions be brief and limited to the inspection of documents. The reason the seizure of the marijuana was upheld in Villamonte-Marquez was that the contraband was in plain view.

Airport checkpoints are also authorized, and there is no need for probable cause or reasonable suspicion in such situations. According to the Ninth Circuit, “The need to prevent airline hijacking is unquestionably grave and urgent. . . . A pre-boarding screening of all passengers and carry-on articles sufficient in scope to detect the presence of weapons or explosives is reasonably necessary to meet the need” (United States v. Davis, 482 F.2d 893 [9th Cir. 1973]). Another court reached a similar conclusion (United States v. Lopez, 328 F. Supp. 1077 [E.D.N.Y. 1971]). And the Fifth Circuit’s opinion in United States v. Skipwith (482 F.2d 1272 [5th Cir. 1971]) is particularly helpful:

[T]he intrusion which the airport search imposes on the public is not insubstan- tial. It is inconvenient and annoying, in some cases it may be embarrassing, and at times it can be incriminating. There are several factors, however, which make this search less offensive to the searched person than similar searches in other contexts. One such factor is the almost complete absence of any stigma attached to being subjected to search at a known, designated airport search point. . . . In addition, the offensiveness of the screening process is somewhat mitigated by the fact that the person to be searched must voluntarily come to and enter the search area. He has every opportunity to avoid the procedure by not entering the boarding area. Finally, the circumstances under which the airport search is conducted make it much less likely that abuses will occur. Unlike searches conducted on dark and lonely streets at night where often the officer and the subject are the only witnesses, these searches are made under supervision and not far from the scrutiny of the traveling public. Moreover, the airlines, which have their representatives present, have a

Illinois v. Lidster (540 U.S. 419 [2004])

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Chapter 7 • Actions Based on Administrative Justification and Consent 227

definite and substantial interest in assuring that their passengers are not unnecessarily harassed. The officers conducting the search under these cir- cumstances are much more likely to be solicitous of the Fourth Amendment rights of the traveling public than in more isolated, unsupervised surroundings. (pp. 1275–1276)

Note that airport screenings are now conducted by public as opposed to private actors. Prior to the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon, airport inspections were conducted by private security companies. Now, they are conducted by Transportation Safety Administration (TSA) officials, who are employed by the federal government. This change is of no consequence to the constitu- tionality of airport screenings, however, even though such inspections are today sometimes more intrusive than prior to September 11 (e.g., “shoe searches” and searches at the boarding gate in addition to at the main security checkpoint).

UNCONSTITUTIONAL CHECKPOINTS The administrative rationale is not acceptable, by comparison, to detect evidence of criminal activity. This was the decision reached in City of Indianapolis v. Edmond (531 U.S. 32 [2000]), a case in which the Supreme Court decided whether a city’s suspicionless checkpoints for detecting illegal drugs were constitutional. Here is how the Supreme Court described the checkpoints:

The city of Indianapolis operated a checkpoint program under which the police, acting without individualized suspicion, stopped a predetermined number of vehicles at roadblocks in various locations on city roads for the primary purpose of the discovery and interdiction of illegal narcotics. Under the program, at least one officer would (1) approach each vehicle, (2) advise the driver that he or she was being stopped briefly at a drug checkpoint, (3) ask the driver to produce a driver’s license and the vehicle’s registration, (4) look for signs of impairment, and (5) conduct an open-view examination of the vehicle from the outside. In addition, a narcotics-detection dog would walk around the outside of each stopped vehicle. (p. 32)

The Court held that stops such as those conducted during Indianapolis’s check- point operations require individualized suspicion. In addition, “because the checkpoint program’s primary purpose [was] indistinguishable from the general interest in crime control” (p. 44), it was deemed violative of the Fourth Amendment.

School Discipline

Public school administrators and teachers may “search” a student without a warrant if they possess reasonable suspicion that the action will yield evidence that the student has violated the law or is violating the law or rules of the school. However, such school discipline “searches” must not be “excessively intrusive in light of the age and sex of the students and the nature of the infraction” (p. 381). This was the decision reached in New Jersey v. T.L.O. (469 U.S. 325 [1985]). In T.L.O., a high school student was caught smoking in a school bathroom (in violation of school policy) and was sent to the vice principal. When the vice principal searched the student’s purse for cigarettes, he also found evidence implicating the student in the sale of marijuana. The Court held that the evidence was admissible because the administra- tor had sufficient justification to search the purse for evidence concerning the school’s antismoking policy.

New Jersey v. T.L.O. (469 U.S. 325 [1985])

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DECISION-MAKING EXERCISE 7.5

A Constitutionally Valid Checkpoint?

The facts from an actual case follow. Was this action constitutional?

During the spring and summer of 1992, street crime, including four drive-by shootings, esca- lated in the Soundview neighborhood of the Bronx. In response, the 43rd precinct instituted the so-called Watson Avenue Special Operation. This involved a temporary vehicular checkpoint in an eight square-block narcotics-ridden area where most of the drive-by shootings had taken place. The checkpoint was to be active three days a week on a random basis and for approximately six hours a day, primarily in the evening hours. When the checkpoint was in operation, officers manning the barricade were to stop every vehicle

seeking to enter the area in order to ascertain the driver’s connection to the neighborhood. Drivers who approached the checkpoint were to be allowed to avoid questioning by driving around the area or by parking their cars and entering the area on foot. Area residents and commercial vehicles were to be allowed into the neighbor- hood. Officers manning the barricades were verbally instructed that they could also allow cars dropping off small children or visiting the local church to enter the area. Other than that, vehicles were not permitted beyond the barricades. The operation was in effect for six weeks, between August 26 and October 10, 1992 (Maxwell v. City of New York, 102 F.3d 664 [2d Cir. 1996], p. 665).

LOCKER CHECKS AND DRUG DOG “SNIFFS” A handful of lower court decisions concern inspections of public school students’ lockers as well as drug dog “sniffs” for the purpose of detecting illicit drugs. First, random, suspicionless locker inspections are generally permissible, assuming the students have been given some notification in advance that their lockers are subject to inspection at any time (see Commonwealth v. Cass, 709 A.2d 350 [Pa. 1998]). However, “searches” of specific lockers would still be subject to the reasonableness test set forth in T.L.O.

In support of its decision in T.L.O., the Court noted that a warrant requirement “would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools . . . [and] . . . the substantial need of teachers and admin- istrators for freedom to maintain order in the schools” (p. 376). The majority further stated that the reasonableness test for school disciplinary “searches” involves a twofold inquiry: “First, one must consider ‘whether the . . . action was justified at its inception . . . ’ second, one must determine whether the search as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place’ ” (p. 341).

There are important limits on school discipline searches, especially in light of the Supreme Court’s decision in Safford Unified School District v. Redding (No. 08-479 [2009]). In that case, Savana Redding, an eighth grader, was “strip searched” by school officials on a belief that she was in possession of certain nonprescription medications, in violation of school policy. Writing for the majority, Justice Souter found that the search violated the Fourth Amendment because there was no “ . . . indication of danger to the students from the power of the drugs or their quantity and any reason to suppose that (Redding) was carrying pills in her underwear.” More than just reasonable suspicion is necessary, then, to support particularly intrusive searches of this nature—for school discipline, but also in the workplace.

Note that T.L.O. concerns students in kindergarten through grade 12. A different story emerges in the context of public and private universities. The courts have generally held that the Fourth Amendment is applicable at the university level. That is, for university personnel to conduct searches of students’ dorm rooms, lockers, and so on, some level of justification is required.

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Chapter 7 • Actions Based on Administrative Justification and Consent 229

With regard to the use of drug dogs, the Fifth Circuit held that so-called sniffs of lockers and cars in public schools are constitutional (Horton v. Goose Creek Independent School District, 690 F.2d 470 [5th Cir. 1982]). The court reasoned that lockers and cars were inanimate objects located in a public place.

Then there is the Seventh Circuit’s controversial holding in Doe v. Renfrow (631 F.2d 91 [7th Cir. 1980]) that the exploratory sniffing of students (as opposed to their property) was not a search. The Seventh Circuit affirmed the lower federal court’s observation that “the presence of the canine team for several minutes was a minimal intrusion at best and not so serious as to invoke the protections of the Fourth Amendment” (Doe v. Renfrow, 475 F. Supp. 1012 [1979], p. 1020). In another appellate court case, though, the Ninth Circuit held that dog sniffs of students’ possession implicate the Fourth Amendment and require probable cause (B.C. v. Plumas Unified School District, 192 F.3d 1260 [9th Cir. 1999]). This is a disagreement between federal circuits that is ripe for some Supreme Court resolution.

“Searches” of Government Employees’ Offices

In a case very similar to T.L.O., although not involving a public school student, the Court held that neither a warrant nor probable cause was required to “search” a gov- ernment employee’s office, but the “search” must be “a noninvestigatory work-related intrusion or an investigatory search for evidence of suspected work-related employee misfeasance” (O’Connor v. Ortega, 480 U.S. 709 [1987]). Justice O’Connor summarized the Court’s reasoning: “[T]he delay in correcting the employee misconduct caused by the need for probable cause rather than reasonable suspicion will be translated into tangible and often irreparable damage to the agency’s work, and ultimately to the public interest” (p. 724). It is important to note, however, that the Court was limiting its decision strictly to work-related matters: “[W]e do not address the appropriate standard when an employee is being investigated for criminal misconduct or breaches of other nonwork-related statutory or regulatory standards” (p. 729). The Court further noted in Ortega that the appropriate standard by which to judge such “searches” is reas- onableness:

We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related mis- conduct, should be judged by the standard of reasonableness under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable. (pp. 725–726)

Recently, the Supreme Court was confronted with the question of whether a police officer’s employer could examine the content of messages sent via a pager. Ontario, California, police officers were given department-issued pagers. When one of them exceeded the number of allotted monthly messages, the department acquired tran- scripts of the officer’s messages, learned that some of them were sexually explicit, and then disciplined the officer accordingly. He sued under Section 1983, alleging his Fourth Amendment rights were violated. However, the Supreme Court disagreed, holding that the department’s “search” of the pager message contents was reasonable (City of Ontario v. Quon, No. 08-1332 [2010]).

At the risk of confusing matters, it should be pointed out that reasonableness in the context of public school student and government employee “searches” is not the same as reasonable suspicion. The latter refers to a certain level of suspicion, while the former focuses on the procedural aspects of the actions in question (e.g., Did authorities go too far in

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Skinner v. Railway Labor Executives’ Association (489 U.S. 602 [1989])

230 Part 2 • Search and Seizure

DECISION-MAKING EXERCISE 7.6

Searches of Government Employees

Federal law enforcement agents suspected that several employees in a government agency were engaged in criminal wrongdoing. Several of the agency’s records were subpoenaed. To ensure that the records were being prepared in accordance with the subpoena, the agents visited the government agency. During the course of their visit, the director of the agency was

asked to open an employee’s office. Upon looking in the employee’s office, the agents found incriminating documents and seized them. They also searched the employee’s file cabinet and found more incriminating documents, which were also seized. Is this a valid search of a government employee’s office, as authorized by O’Connor v. Ortega (480 U.S. 709 [1987])?

looking for evidence?). The distinction between reasonableness and reasonable suspicion is a subtle but important one—hence, the reason for discussing disciplinary and work-related “searches” in the section on administrative justification.

Perhaps more important, none of the foregoing applies to individuals employed in private companies. The reason for this should be fairly clear: Private employees work for private employers, the latter not being bound by the strictures of the Fourth Amendment. Stated simply, private employers can search private employees’ lockers, desks, and the like without infringing on any constitutional rights.

Drug and Alcohol Testing

The Supreme Court has, especially recently, decided on the constitutionality of drug and alcohol testing programs. Three lines of cases can be discerned: (1) employee testing, (2) hospital patient testing, and (3) school student testing. Cases involving drug and alcohol testing of each of these three groups are reviewed in the following subsections.

DRUG AND ALCOHOL TESTING OF EMPLOYEES The Supreme Court has permitted war- rantless, suspicionless drug and alcohol testing of employees. In Skinner v. Railway Labor Executives’ Association (489 U.S. 602 [1989]) and National Treasury Employees Union v. Von Raab (489 U.S. 656 [1989]), the Court upheld the constitutionality of certain regulations that permit drug and alcohol testing, citing two reasons for its decision. The first was deterrence; without suspicionless drug testing, there would be no deterrent to employ- ees to stay off drugs. The second reason was that drug testing promotes businesses’ interest in obtaining accurate information about accidents and who is responsible. In Skinner, Justice Stevens made this observation:

Most people—and I would think most railroad employees as well—do not go to work with the expectation that they may be involved in a major accident, particularly one causing such catastrophic results as loss of life or the release of hazardous material requiring an evacuation. Moreover, even if they are conscious of the possibilities that such an accident might be a contributing factor, if the risk of serious personal injury does not deter their use of these substances, it seems highly unlikely that the additional threat of loss of employment would have any effect on their behavior. (p. 634)

Two interesting limitations should be noted about both these cases. The first is that the Court did not decide whether warrantless, suspicionless drug testing could be used

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Chapter 7 • Actions Based on Administrative Justification and Consent 231

for law enforcement purposes. Rather, such testing was held to be constitutional for regulatory reasons. Second, both cases focused on federal regulations: Federal Railroad Administration guidelines in Skinner and U.S. Customs Service Policy in National Treasury Employees Union. Left open was the question of private business policy. Nevertheless, the courts have since upheld drug and alcohol testing of teachers, police officers, and several other groups.1

This line of cases would seem to suggest that employee drug testing is becoming increasingly common across the United States. While it is certainly true that more employees are subject to drug testing now than in the past, the Supreme Court has clearly stated that certain drug testing policies are unconstitutional. For example, in Chandler v. Miller (520 U.S. 305 [1997]), the Court struck down a Georgia statute that required every person seeking nomination or election to undergo a test for illegal drugs.

DRUG AND ALCOHOL TESTING OF HOSPITAL PATIENTS In a recent case, Ferguson v. Charleston (532 U.S. 67 [2001]), the Supreme Court addressed the constitutionality of drug testing of hospital patients. In the fall of 1988, staff at the Charleston, South Carolina, public hospital became concerned over the apparent increase in the use of cocaine by patients who were receiving prenatal treatment. Staff at the hospital approached the city and agreed to cooperate in prosecuting pregnant mothers who tested positive for drugs. A task force was set up, consisting of hospital personnel, police, and other local officials. The task force formulated a policy for how to conduct the tests, preserve the evidence, and use it to prosecute those who tested positive. Several women tested positive for cocaine. The question before the Supreme Court was, Is the Fourth Amendment violated when hospital personnel, working with the police, test pregnant mothers for drug use without their consent? Not surprisingly, the Court answered “yes”:

Because the hospital seeks to justify its authority to conduct drug tests and to turn the results over to police without the patients’ knowledge or consent, this case differs from the four previous cases in which the Court considered whether comparable drug tests fit within the closely guarded category of constitutionally permissible suspicionless searches . . . . Those cases employed a balancing test weighing the intrusion on the individual’s privacy interest against the “special needs” that supported the program. The invasion of privacy here is far more substantial than in those cases. In previous cases, there was no misunderstanding about the purpose of the test or the potential use of the test results, and there were protections against the dissemination of the results to third parties. Moreover, those cases involved disqualification from eligibility for particular benefits, not the unauthorized dissemination of test results. The critical difference, however, lies in the nature of the “special needs” asserted. In each of the prior cases, the “special need” was one divorced from the State’s general law enforcement interest. Here, the policy’s central and indispensable feature from its inception was the use of law enforcement to coerce patients into substance abuse treatment. (pp. 77–78)

1 P. T. Bookspan, “Jar Wars: Employee Drug Testing, the Constitution, and the American Drug Problem,” American Criminal Law Review 26 (1988): 359–400.

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Griffin v. Wisconsin (483 U.S. 868 [1987])

Board of Education v. Earls (536 U.S. 822 [2002])

232 Part 2 • Search and Seizure

DECISION-MAKING EXERCISE 7.7

Drug Testing of Students

The school board approved a policy prohibiting a high school student from participating in any extracurricular activities or driving to and from school unless the student and his or her parent or guardian consented to and passed tests for drugs, alcohol, and tobacco in random, unannounced urinalysis examinations. (Extracurricular activities include not only athletic teams but also organizations such as the student council, foreign language clubs, and so on.) When consent for testing

had been given and the individuals had taken and passed the tests, then participation in the extracurricular organizations or driving to and from school would be permitted. The testing was to be conducted by Acme Toxicology Services, which would collect the samples, and the local hospital’s laboratory services division, which would perform the tests. Can this type of random, suspicionless drug testing be considered an administrative search?

DRUG AND ALCOHOL TESTING OF SCHOOL STUDENTS The Supreme Court has recently extended its drug testing decisions to include public school students. Specifically, in Vernonia School District 47J v. Acton (515 U.S. 646 [1995]), the Court upheld a random drug testing program for school athletes. The program had been instituted because the district had been experiencing significant student drug use. Under the program, all students who wished to play sports were required to be tested at the beginning of the season and then retested randomly later in the season. The Court noted that athletes enjoy a lesser expecta- tion of privacy, given the semipublic nature of locker rooms, which is where the testing took place. Also, athletes are often subject to other intrusions, including physical exams, so drug testing involved a “negligible” privacy intrusion, according to the Court.

Even more recently, the Supreme Court affirmed Vernonia School District. The case of Board of Education v. Earls (536 U.S. 822 [2002]) dealt with another student drug testing policy. The Student Activities Drug Testing Policy, implemented by the Board of Education of Independent School District no. 92 of Pottawatomie County, required students who participate in extracurricular activities to submit to random, suspicionless drug tests. Urine tests were intended to detect the use of illegal drugs. Together with their parents, two students, Lindsay Earls and Daniel James, brought a Section 1983 lawsuit against the school district, alleging that the drug testing policy violated the Fourth Amendment, as incorporated to the states through the due process clause of the Fourteenth Amendment. The district court found in favor of the school district, but the Tenth Circuit Court reversed the decision, holding that the policy violated the Fourth Amendment. It concluded that random, suspicionless drug tests would only be permissible if there were some identifiable drug abuse problem. However, the Supreme Court held that random, suspicionless drug testing of students who participate in extracurricular activities “is a reasonable means of furthering the School District’s important interest in preventing and deterring drug use among its schoolchildren and does not violate the Fourth Amendment” (p. 822).

Probation and Parole Supervision

A person on probation enjoys a lesser expectation of privacy than the typical citizen. In Griffin v. Wisconsin (483 U.S. 868 [1987]), the Supreme Court held that a state law or agency rule permitting probation officers to search a probationer’s home without a warrant and based on reasonable suspicion was constitutional. The majority (of only five justices) concluded that probation supervision “is a ‘special need’ of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large” (p. 875). The same principle almost certainly applies to parolees, but the Supreme Court has not addressed this issue.

The Court has also ruled that evidence seized by parole officers during an illegal search and seizure need not be excluded at a parole revocation hearing (see Pennsylvania

Vernonia School District 47J v. Acton (515 U.S. 646 [1995])

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Board of Probation and Parole v. Scott, 524 U.S. 357 [1998]). This latter decision can be inter- preted to mean that the exclusionary rule does not apply in parole revocation hearings. A warrant requirement, the Court noted, “would both hinder the function of state parole systems and alter the traditionally flexible, administrative nature of parole revocation proceedings” (p. 364).

More recently, in United States v. Knights (534 U.S. 112 [2001]), the Supreme Court held that warrantless searches of probationers are permissible not only for probation- related purposes (e.g., to ensure that probation conditions are being conformed with) but also for investigative purposes. In that case, a probationer was suspected of vandalizing utility company facilities. A police detective searched the probationer’s residence and found incriminating evidence. The Supreme Court held that “[t]he warrantless search of Knights, supported by reasonable suspicion and authorized by a probation condition, satisfied the Fourth Amendment” (p. 112).

Needless to say, all three of the aforementioned decisions do not provide a great deal of guidance to probation officers on the streets. Griffin, for example, dealt with the constitu- tionality of one statute in one state. This means that probation officers are mostly forced to turn to state-level supreme court decisions for guidance. The California Supreme Court has offered some clarification with regard to searches-and-seizures by probation officers that the Supreme Court has not; but of course, its decisions are limited to California. Some interesting decisions from that state are worth considering, nonetheless.

MORE LATITUDE AT THE STATE LEVEL Probation officers are often given even more latitude at the state level. For example, two weeks after the Supreme Court decided Griffin, the California Supreme Court decided People v. Bravo (738 P.2d 336 [Cal. 1987]), cert. denied, 485 U.S. 904 [1988]). The issue in that case was the constitutionality of a warrantless search conducted in accordance with a probation contract that required the probationer to “sub- mit his person and property to search or seizure at any time of the day or night by any law enforcement officer with or without a warrant” (p. 337, n. 1). Relying on the U.S. Supreme Court’s decision in Schneckloth v. Bustamonte (412 U.S. 218 [1973]), California’s high court ruled that because the search was conducted pursuant to the probationer’s voluntary consent (i.e., consent given when the probationer agreed to the terms specified in the probation contract), it would violate the Fourth Amendment only if it exceeded the scope of the probationer’s consent. The same holds true even for searches of probationers by other peace officers. However, the court also stated that probation searches of the type arising in Bravo can only be conducted for “legitimate law enforcement purposes” and not “for harassment or . . . arbitrary and capricious reasons” (p. 342).

Notwithstanding the restrictions just mentioned, the California Supreme Court requires no justification for probation searches. In fact, the California courts have distin- guished Griffin by arguing that it only applies to searches conducted pursuant to a regu- latory scheme, in which the administrative justification balancing act comes into play. For example, in In re Marcellus L. (279 Cal. Rptr. 901 [Ct. App. 1991]), the court of appeal for California’s first district found that Griffin does not apply when the probationer expressly agrees to consent to searches as a condition of probation: “[T]he authority to search [in Griffin] existed by way of [Wisconsin’s] regulation, not because the defendant specifically agreed to submit to warrantless, unexpected searches” (p. 940).

POLICE/PROBATION PARTNERSHIPS A controversial practice closely connected to searches of probationers comes in the form of police/probation partnerships, a cutting-edge law enforcement strategy now being experimented with across the country. An example of one such approach is Boston’s Operation Night Light. The program began in 1992 as an informal collaboration between probation officers and Boston’s Anti-Gang Violence Unit. Teams composed of one probation officer and two police officers serving as backup make

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A person who is on probation enjoys a lesser expectation of privacy than the average citizen.

surprise visits to the homes, schools, and worksites of high-risk youth probationers, mostly during the hours of 7 p.m. to midnight. The program grew to the extent that 50 police officers and 50 probation officers worked together like this seven nights a week.

Another example of a police/probation partnership in action is the IMPACT project in San Bernardino, California. The program was virtually identical to Boston’s. One difference was that the teams consisted of one San Bernardino police officer and one San Bernardino County probation officer. (Probation is a county-level function in California.) Also, all new probationers were under scrutiny.

What makes these and other police/probation partnerships interesting from a Fourth Amendment standpoint are the search-and-seizure implications. On one hand, these partnerships may be highly effective crime-reduction mechanisms. On the other hand, critics of police/probation partnerships claim that they are little more than a method of circumventing the Fourth Amendment’s probable cause and warrant requirements. In other words, critics claim that police officers use probation officers as “stalking horses” to skirt the Fourth Amendment. The California Supreme Court’s Bravo decision (discussed earlier), for example, permits warrantless, suspicionless searches of probationers, even by police officers.

Here again, due process and crime control collide. Police/probation partnerships may effectively reduce crime, but they may also compromise due process. Someday, the constitutionality of these partnerships will be decided in court. Most likely, the U.S. Supreme Court will decide on the matter in the near future. The Fourth Amendment implications are simply too serious to ignore.

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Florida v. Jimeno (500 U.S. 248 [1991])

Schneckloth v. Bustamonte (412 U.S. 218 [1973])

Samson v. California (547 U.S. 843 [2006])

Chapter 7 • Actions Based on Administrative Justification and Consent 235

PAROLE SUPERVISION In Samson v. California 547 U.S. 843 [2006]), the Supreme Court extended its earlier probation decision to parole supervision. It held that “[t]he Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee” (p. 843). What was the Court’s logic for this decision? It stated, “Parolees, who are on the ‘continuum’ of state-imposed punishments, have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is” (p. 843).

CONSENT SEARCHES

Technically, most administrative exceptions to having a warrant require no justification. Rather, the courts focus on public safety versus individual privacy. That said, there is one clear-cut situation in which absolutely no justification or balancing act is required in order to decide on the constitutionality of a search. That situation is consent. When a person consents to a search, no justification is required. This is known as a consent search.

Cases involving consent searches can be placed into three categories. Consent searches must be voluntary, so several cases have focused on the meaning of that term. Other cases have defined the scope of consent searches, and still others have focused on whether a third-party individual can give consent in order to subject another person’s private effects to a search.

Voluntariness

The general rule is that validly obtained consent justifies a warrantless search, with or without probable cause. However, for consent to be valid, it must be voluntary. Consent cannot be “the result of duress or coercion, express or implied” (Schneckloth v. Bustamonte, 412 U.S. 218 [1973]). When does duress or coercion take place? There is no clear answer to this question. Instead, the Court has opted for a totality of circumstances test. This test requires looking at the surrounding circumstances of the consent, including whether a show of force was made; whether the person’s age, mental condition, or intellectual capacities inhibited understanding; whether the person is or was in custody; and/or whether consent was granted “only after the official conducting the search [had] asserted that he possesses a warrant” (Bumper v. North Carolina, 391 U.S. 543 [1968]).

Importantly, consent to search may be valid even if the consenting party is unaware of the fact that he or she can refuse consent (Schneckloth v. Bustamonte). As the Court stated in Ohio v. Robinette (519 U.S. 33 [1996]), “[J]ust as it ‘would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning,’ so too would it be unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed involuntary” (pp. 39–40). This view was recently reaffirmed in United States v. Drayton (536 U.S. 194 [2002]), a case involving consent searches of bus passengers. Nevertheless, the issue of one’s awareness of the right to refuse consent is still factored into the totality of circumstances analysis (e.g., United States v. Mendenhall, 446 U.S. 544 [1980]), although ignorance of the right to refuse is not enough, in and of itself, to render consent involuntary.

To err on the side of constitutionality, many police departments have suspects complete “consent to search” forms. An example of one such form, from the San Bernardino, California, Police Department, is shown in Figure 7.3.

Scope Limitations

The scope of a consent search is limited to the terms of the consent. In other words, the person giving consent delineates the scope. This was the decision reached in the case of Florida v. Jimeno (500 U.S. 248 [1991]). For example, if a person tells the police “You may look around,” it does not necessarily mean the police can look anywhere for evidence of criminal activity.

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FIGURE 7.3 Example of a Consent to Search Form

Crime Report No.____________

CONSENT TO SEARCH

I, ______________________ give the San Bernardino Police Department my consent to search the below listed property.

Address: _________________________________City _______________________________

_____________________ Country _______________________________________________

Address: _______________________________City _________________________________

_______________________________ Country _____________________________________

Vehicle/s: Make __________Year ________________Veh. Lic. # _________________

Make _______________Year ________________Veh. Lic. # ____________

Other: ___________________________________________________________________________

____________________________________________________________________________

Signed: ___________________

Date: ________________ Time: ___________________

Witness ________________ Witness ___________________

Source: San Bernardino, California, Police Department. Reprinted with permission.

Another issue concerning the scope of a consent search is whether consent can be withdrawn once given. In State v. Brochu (237 A.2d 418 [Me. 1967]), the Maine Supreme Court held that a defendant’s consent to search his house for evidence of his wife’s murder did not extend to another search carried out the day after he was arrested as a suspect. Thus, although the man did not expressly request that the search be terminated, the Maine court still decided that consent had been terminated. The Supreme Court has not directly decided whether consent can be withdrawn, however.

Third-Party Consent

A handful of Supreme Court cases have focused on whether a third party (the third party being someone other than the authority asking for consent to search and the individual whose property he or she hopes to search) can give consent to have another person’s property searched (e.g., a landlord consenting to have a tenant’s apartment searched;

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Illinois v. Rodriguez (497 U.S. 177 [1990])

United States v. Matlock (415 U.S. 164 [1974])

Chapter 7 • Actions Based on Administrative Justification and Consent 237

DECISION-MAKING EXERCISE 7.8

What Constitutes Voluntary Consent?

Here are some interesting facts from a real-world case: Several undercover police officers went to the apartment where it was believed a robbery suspect was hiding out. They did not have probable cause that the suspect was at that location, and indeed, they did not even know the suspect’s name, so no warrant was obtained. Rather, the visit was to be merely investigative, and it was hoped that enough information would be gleaned from the visit so a valid warrant could be obtained. The officers knocked on the apartment door, and the man who answered the door

fit the description of the suspect. The officers identified themselves, arrested the man, and conducted a protective sweep of the apartment, fearing that other dangerous indi- viduals may be present. Once the premises had been secured, the officers asked the suspect, who was seated at a table in handcuffs, to sign a “consent to search” form. The suspect said, “You go ahead and search, but I ain’t signing nothing.” Setting aside the issue of the constitutionality of the arrest and protective sweep, was the suspect’s consent voluntary?

DECISION-MAKING EXERCISE 7.9

Scope of Consent

Hector Lopez is stopped by the highway patrol for speeding. The officer who approaches his car asks if he will consent to a search of his vehicle. As reinforcements arrive, the officer states that they are concerned about drug smuggling on this stretch of freeway. Lopez gives consent and says, “Yes, you can search my car,” and so the officers subject the car to an intensive search. They remove every bag and every moveable item from

the vehicle and scrutinize each one carefully. They further check the spare tire compartment, engine compartment, and glove box and even the panels providing access to lighting, electrical, and so on. Have the officers exceeded the scope of Lopez’s consent? What if, instead, Lopez stated, “Yes you can search my car, but I’m late for a doctor’s appointment, so I have to leave in no more than five minutes”?

parents consenting to have their child’s room searched). As far as the immediate family is concerned, there are several general rules: (1) Wives and husbands can give consent to have their partners’ property searched and (2) parents can give consent to have their children’s property searched, but (3) children cannot give consent to have their parents’ property searched. The reason children cannot give consent is that they are considered incompetent to give voluntary consent, given their age.

More confusing is the situation of a roommate, former girlfriend, friend, or extended family member. Two important Supreme Court cases are relevant here. First, third-party consent can be given if (1) the third-party individual possesses “common authority” over the area to be searched and (2) the nonconsenting party (e.g., the room- mate) is not present (United States v. Matlock, 415 U.S. 164 [1974]). According to the Court, common authority rests on “mutual use of the property by persons generally having joint access or control for most purposes” (p. 172, n. 7). Thus, a third party could give consent to have a shared bathroom searched but not to have his or her roommate’s bedroom searched. What happens, however, if the nonconsenting party is present and affirmatively objects to the search? The courts are divided on this issue.

There are some clear-cut situations, in which two people possess common author- ity over a particular area, but what happens when it is not clear to officers at the scene whether common authority exists? In response to this question, the Supreme Court has held that the warrantless entry of private premises by police officers is valid if based on the apparent authority doctrine. In other words, a warrantless entry of a residence is valid if it is based on the consent of a person whom the police reasonably believe has authority to grant consent, even if their beliefs are ultimately erroneous (Illinois v. Rodriguez, 497 U.S. 177 [1990]). The test for reasonableness in this situation, according to

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the Court, is as follows: “[W]ould the facts available to the officer at the moment [of the entry] . . . warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?” (p. 179). Rodriguez involved consent given by a former girlfriend who possessed apparent authority to grant consent because she still had a key to her ex-boyfriend’s apartment.

Still other cases have focused on whether third-party individuals can give con- sent. Most cannot. For example, a landlord cannot give consent to search property rented to another person (Stoner v. California, 376 U.S. 483 [1964]), one lessor cannot give consent to search the premises of another lessor (United States v. Impink, 728 F.2d 1228 [9th Cir. 1985]), hotel clerks cannot give consent to search guests’ rooms (Stoner v. California), and college officials cannot give consent to search students’ dormitories (Piazzola v. Watkins, 442 F.2d 284 [5th Cir. 1971]). Note, however, that consent given by the driver of a vehicle to search any part of the vehicle is valid even if the driver is not the owner of the vehicle (United States v. Morales, 861 F.2d 396 [3rd Cir. 1988]).

What if both parties who have common authority are present when the police request consent, but one of them refuses consent and the other gives it? This issue came up in the case of Georgia v. Randolph (547 U.S. 103 [2006]), a case in which police were called to the scene of a domestic dispute. When the officers asked for consent to search, the husband unequivocally refused, but the wife readily consented. The officers took the wife up on her consent, searched the premises, and found cocaine. The husband was sought to have the cocaine excluded from his subsequent trial, but a Georgia trial court denied his motion. The Georgia Supreme Court reversed and the U.S. Supreme Court affirmed, holding that “a physically present co-occupant’s stated refusal to permit entry renders warrantless entry and search unreasonable and invalid” (p. 103).

“Knock and Talk”

So-called “knock and talk” consent searches are popular with law enforcement officers because of the difficulty of securing warrants in particular instances. The typical “knock and talk” scenario plays out when police officers approach someone’s house, knock on the front door, and request consent to search the home. In State v. Smith (488 S.E.2d 210 [N.C. 1997]), the North Carolina Supreme Court described the procedure as follows:

The “knock and talk” procedure is a tactic used by law enforcement . . . when they get information that a certain person has drugs in a residence but the officers don’t have probable cause for a search warrant. The officers then proceed to the residence, knock on the door, and ask to be admitted inside. Thereafter gaining entry, the officers inform the person that they’re investi- gating information that drugs are in the house. The officers then ask for permission to search and apparently are successful in many cases in getting the occupant’s “apparent consent.” (p. 212)

“Knock and talk” searches are controversial because they are not predicated on war- rants, probable cause, or both. Such searches strike at the cardinal Fourth Amendment principle that “physical entrance into the home of another without a warrant is the chief evil the Fourth Amendment has sought to alleviate” (Payton v. New York, 445 U.S. 573 [1980], p. 585). What makes “knock and talk” legal, in the strictest sense, however, is that the subsequent search is based on consent. Of course, though, the extent to which ordi- nary people are aware of their right to refuse consent is not altogether clear. To date, the Supreme Court has not ruled on the constitutionality of “knock and talk” practices. More than likely, the tactic will continue as long as consent is validly obtained. See Figure 7.4 for a list of questions that are commonly raised during a “knock and talk” situation.

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Chapter 7 • Actions Based on Administrative Justification and Consent 239

FIGURE 7.4 Questions Often Raised with Regard to “Knock and Talk” Searches

1. How is it known what was said? The wording used by the officer to gain consent is of paramount importance.

2. To what extent was a show of authority relied on by the officer? A show of authority may diminish voluntariness.

3. What is the scope of the search? The scope may be limited by the wording used by the officer or the consenting party.

4. Can the party that gives consent also terminate consent? Generally, yes, but who is to be trusted: the officer(s) or the consenting party?

5. What if the officer threatens to obtain a warrant? Doing so diminishes voluntariness, if not eliminates it.

6. What if the officer makes false statements to gain entry? There is no prohibition against using false statements, but doing so diminishes voluntariness.

7. Should the consenting party be advised of his or her Miranda rights? Giving the Miranda warnings is not necessary unless a custodial interrogation takes place.

8. Can a third party give consent? A third party can give consent only if he or she has authority (or apparent authority) to do so.

9. What if the consenting party is intoxicated? This factors into the voluntariness determination.

10. What if, during the course of a “knock and talk” procedure, exigent circumstances develop? A full search would be permissible under such circumstances.

DECISION-MAKING EXERCISE 7.10

The Bounds of “Knock and Talk”

In response to a neighbor’s complaint, two police officers arrive at a home where there is clearly a loud party taking place. They knock on the door and a person who is visibly intoxicated asks in a slurred manner, “What can I do for you, officers?” The officers respond, “We have received a complaint about the noise coming from your house. Would you please tone it down?” The drunk person at the door responds, “Yup, no problem.” At that point, the officers ask, “Do you mind if we

come in and take a look around?” The drunk responds, “Will you get a search warrant if I refuse?” The officers, in turn, respond, “Yes, we will.” The drunk then gives the officers per- mission to enter. Is doing so acceptable? In particular, assuming the officers do not have probable cause to get a warrant but rather lied in an effort to gain entry, will any contraband that might turn up during the course of the search be considered admissible in a criminal trial?

Summary

1. EXPLAIN THE JUSTIFICATION FOR REGULATORY AND ADMINISTRATIVE SEARCHES.

Actions based on administrative justification and con- sent require neither reasonable suspicion nor probable cause. The term administrative justification is something of a euphemism. It is not really justification at all. Actions based on administrative justification require

that the government’s interest in protecting public safety outweighs individual privacy interests. Consent searches, in contrast, need to be predicated on little more than validly given consent.

Actions based on administrative justification are rich in variety. They have been labeled special needs searches and regulatory searches, but to promote clarity,

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this chapter has used the language administrative justifica- tion to refer to all such actions. The most common actions based on administrative justification are inventories, inspections, checkpoints, school discipline, “searches” of government employees’ offices, drug and alcohol test- ing, and parole and probation supervision.

2. DESCRIBE REGULATORY AND ADMINISTRATIVE SEARCHES.

Inventories fall into two categories: (1) vehicle inven- tories and (2) person inventories. A vehicle inventory must follow a lawful impoundment, be of a routine nature, follow department policy, and not be used as a pretext concealing an investigative police motive. A person inventory is justified on similar grounds, except that it must be preceded by a lawful arrest.

Four types of inspections have been recognized by the U.S. Supreme Court. First, a general home inspection, such as a code inspection, requires a specific type of warrant, but a welfare inspection, conducted for the purpose of determining compliance with welfare conditions, requires no warrant. Second, an inspection of a closely regulated business is permissible without a warrant if (1) the government has a substantial interest in the activity at stake; (2) the search promotes effective enforcement of the law; and (3) the inspection protocol provides a constitutionally adequate substitute for a warrant. Third, a fire inspection, usually tied to an arson investigation, is permissible without a warrant but must be contemporaneous to the fire. Finally, authorities may open and inspect international mail without a warrant.

Several types of checkpoints have also been sanc- tioned by Supreme Court. In general, for a checkpoint to conform to constitutional requirements, it must be minimally intrusive, brief, and not directly tied to a criminal investigation. More specifically, checkpoints at the nation’s borders, well inside the borders, at airports, and on the nation’s waterways are permissible but mainly for the purpose of identifying incoming individ- uals. Illegal alien checkpoints are permissible without a warrant or probable cause for the purpose of detecting illegal aliens entering the country but must conform to established policies and procedures. Checkpoints for determining sobriety, as well as license and safety checkpoints, are constitutionally permissible but must also conform to department policies. Other types of checkpoints, such as airport security checkpoints, have been acknowledged by the Supreme Court and deemed constitutional. Checkpoints intended for the sole purpose of detecting criminal activity are unconsti- tutional, however.

School disciplinary “searches” are constitutionally permissible, but they must be reasonable. Random, suspicionless locker inspections are permissible but only with ample notice to students. The foregoing applies only to schools for kindergarten through grade 12. A traditional Fourth Amendment approach has been adopted for searches of college students. Drug dog “sniffs” of public school students have not been ruled on by the Supreme Court. For now, it appears that the police have fairly wide latitude in this area.

“Searches” of government employees’ offices are permissible with neither a warrant nor probable cause but must amount to noninvestigatory work- related intrusions or investigatory searches for evidence of suspected work-related employee mis- conduct. When the object of interest in the “search” is evidence of non-work-related criminal misconduct, a warrant is required. None of the foregoing applies to private employees. That is, private employees do not enjoy Fourth Amendment protection because their employers are not government actors.

As for drug and alcohol testing, employees and public school students can be screened for sub- stance use but only by properly trained individuals following appropriate policies (e.g., nurses). Hospital patients, however, cannot be subjected to drug and alcohol testing. Probation supervision permits warrantless searches premised on reason- able grounds. Some state Supreme Court decisions have suggested that no justification is necessary— that such searches are consented to as a result of the probation agreement.

3. DESCRIBE CONSENT SEARCHES AND THE ISSUES ASSOCIATED WITH THEM.

Consent searches are constitutional, but consent must be voluntary, as determined by the totality of circum- stances. The scope of a consent search is defined by the person giving consent. Third parties can give consent if they have actual or apparent authority over the premises or property to be searched. A controver- sial law enforcement practice tied to consent searches is “knock and talk,” a strategy in which police seek to gain consent to enter a residence for the purpose of detecting evidence of criminal activity. This concludes Part II, the section on search-and-seizure. Figure 7.5 briefly summarizes, in question-and-answer format, the issues discussed in this and the last four chapters. It serves as a helpful guide for determining the consti- tutionality of searches, seizures, and similar types of law enforcement action.

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Chapter 7 • Actions Based on Administrative Justification and Consent 241

FIGURE 7.5 Guide to the Fourth Amendment

A. Does the Fourth Amendment apply? Each of the questions 1–4 must be answered yes for the amendment to apply.

1. Does the person have standing? 2. Is the evidence in question a person, house, paper, or effect? 3. Is the conduct governmental? 4. Has a reasonable expectation of privacy been infringed upon, or has a seizure

occurred? If all of the questions were answered yes, then proceed to B.

B. Was the conduct in question justified? 1. Identify the type of intrusion (e.g., search, stop, arrest, nonsearch). 2. For the type identified, identify the level of justification required (e.g., probable

cause, reasonable suspicion, administrative justification). If there is a mismatch, between the type and level of justification, then the conduct in question was not justified. If there is not a mismatch, go to C.

C. Was a warrant required? If yes, answer questions 1–3. If no, move to D.

1. Was it issued by a neutral and detached magistrate? 2. Was it supported by probable cause? 3. Was the particularity requirement satisfied? All three questions must be answered yes for the warrant to be valid.

D. If a warrant was not required, were the prerequisites met for a warrantless search or seizure? The answer to this question requires revisiting the material set forth in this and earlier chapters.

E. Any no answers and/or inappropriate justification will result in exclusion of evidence.

Key Terms

apparent authority 237 checkpoints 221 closely regulated

business 218

common authority 237 consent search 235 drug and alcohol

testing 230

“knock and talk” 238 person inventory 215 police/probation

partnerships 233

school disciplinary “searches” 227

vehicle inventory 214

Key Cases

Inventories

• South Dakota v. Opperman, 428 U.S. 364 (1976) • Colorado v. Bertine, 479 U.S. 367 (1987) • Illinois v. Lafayette, 462 U.S. 640 (1983)

Inspections

• Camara v. Municipal Court, 387 U.S. 523 (1967) • Wyman v. James, 400 U.S. 309 (1971) • Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970)

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• United States v. Biswell, 406 U.S. 311 (1972) • Michigan v. Tyler, 436 U.S. 499 (1978) • United States v. Ramsey, 431 U.S. 606 (1977)

Checkpoints

• United States v. Martinez-Fuerte, 428 U.S. 543 (1976) • Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) • Illinois v. Lidster, 540 U.S. 419 (2004) • City of Indianapolis v. Edmond, 531 U.S. 32 (2000)

Other Administrative Searches

• New Jersey v. T.L.O., 469 U.S. 325 (1985) • O’Connor v. Ortega, 480 U.S. 709 (1987)

• Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989)

• Ferguson v. Charleston, 532 U.S. 67 (2001) • Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) • Board of Education v. Earls, 536 U.S. 822 (2002) • Griffin v. Wisconsin, 483 U.S. 868 (1987) • Samson v. California, 547 U.S. 843 (2006)

Consent

• Schneckloth v. Bustamonte, 412 U.S. 218 (1973) • Florida v. Jimeno, 500 U.S. 248 (1991) • United States v. Matlock, 415 U.S. 164 (1974) • Illinois v. Rodriguez, 497 U.S. 177 (1990)

Review Questions

1. In what ways do actions based on administrative justifi- cation get around the requirements of the Fourth Amendment?

2. What types of inventories have been permitted by the Supreme Court? Explain the restrictions on each.

3. What types of inspections have been permitted by the Supreme Court? Explain the restrictions on each.

4. Distinguish between border checkpoints and illegal immigrant checkpoints.

5. Are sobriety and license and safety checkpoints valid? If so, when?

6. At what point do checkpoints become unconstitutional? 7. What are school disciplinary searches? What, if any,

justification is required to conduct such searches?

8. Under what circumstances are suspicionless searches of government employees’ offices constitutional?

9. Summarize the Supreme Court case law involving drug testing.

10. Explain the Supreme Court’s decision in Griffin v. Wisconsin. How influential is this case in terms of proba- tion supervision?

11. Why are police/probation partnerships controversial? 12. Summarize the requirements for a valid consent search. 13. Under what circumstances can a third party give

consent to have another person’s property searched? 14. Explain the law enforcement practice known as “knock

and talk.”

Web Links and Exercises

1. Border checkpoints: Read the Government Accountability Office’s report concerning the performance of border checkpoints, particularly those located in interior areas.

URL: http://www.gao.gov/new.items/d05435.pdf (accessed February 16, 2011).

2. Vehicle checkpoints: Read about the opposition to vehi- cle checkpoints. Are the critics’ argument meritorious?

Suggested URL: http://www.roadblock.org (accessed February 16, 2011)

3. Virtual strip searches: Read about how advanced imag- ing technology works.

Suggested URL: http://www.tsa.gov/approach/tech/ait/ index.shtm (accessed February 16, 2011)

4. Police/probation partnerships: Read about varieties of police/probation partnerships. Which is likely to be most effective?

URL: http://www.ncjrs.gov/pdffiles1/175047.pdf (accessed February 16, 2011).

5. Consent searches: Read Carl Benoit’s article about consent searches. Focus closely on the section about a “physically present objector.” What rules should officers follow?

URL: http://www.fbi.gov/stats-services/publications/ law-enforcement-bulletin/2008-pdfs/july08leb.pdf/ at_download/file (accessed February 16, 2011)

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LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Distinguish between a stop and a nonstop. � Explain when a stop-and-frisk is permissible. � Summarize stop-and-frisk procedure. � Explain the relevance of drug courier profiling in the stop-and-frisk context. � Compare and contrast investigative detentions with stop-and-frisk.

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183

CHAPTER OUTLINE

Actions Based on Reasonable Suspicion

C H

A P

T E

OUTLINE

Introduction: Loosening the Fourth Amendment’s Restraints

Stop and Frisk: Two Separate Acts Between Reasonable Suspicion and

Stop-and-Frisk The Stop

Definition of a Stop Alternative Definitions of a Stop Duration of a Stop The Meaning of “Free to Leave” Can Effects Be Seized?

The Frisk Permissible Grounds for a Frisk Scope of a Frisk

The Evolving Nature of Stop-and-Frisk Law Vehicle Stops and Weapons Searches of

Automobiles Protective Sweeps of Residences Plain Touch and Feel Stops for Loitering

Drug Courier Profiling Landmark Cases Race and Drug Courier Profiling

Investigative Detentions Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

Loosening the Fourth Amendment’s Restraints

Chapter 3 introduced reasonable suspicion as the appropriate standard of justification required for a police officer to conduct a stop-and-frisk. Reasonable suspicion was defined as a lesser degree of certainty than probable cause but a greater degree of certainty than a hunch or unsupported belief.

The term reasonable suspicion is found nowhere in the Constitution. Rather, reasonable suspicion is a standard created by the Supreme Court. The reason that the Court declared that certain confrontations between police and citizens can be based on reasonable suspicion is that crime control could not be accomplished without a lower standard than probable cause. If probable cause was always required, police officers would not even be able to question people about suspected involvement in criminal activity without a high degree of justification.

Reasonable suspicion can be understood in terms of the due process/crime control distinction raised in Chapter 1. The law governing stop-and-frisk attempts to achieve a balance between due process and crime control. On the one hand, most people find it

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desirable for the police to control crime. If crime ran rampant, people would curtail their activities by, for example, not going out at night. On the other hand, the Constitution is a highly prized guarantor of personal freedoms. Many people, despite their desire to see crime decline, would object to aggressive search-and-seizure tactics by the police. Reasonable suspicion is something of a compromise, then, between the conflicting goals of crime control and due process. It can be seen as achieving a balance between having unrestricted law enforcement and being able to apprehend lawbreakers.

Recall two critical points from Chapter 3. First, when police activity does not constitute a search, the Fourth Amendment does not apply. By extension, then, when the Fourth Amendment does not apply, probable cause is not required. Much the same logic applies to a stop and a frisk. If police conduct falls short of a stop or a frisk, the Fourth Amendment does not apply. Thus, when the Fourth Amendment does not apply, reasonable suspicion is not required. And if the police confront a person but such activity does not constitute a stop or a frisk, no justification is required. At the opposite extreme, though, if police conduct amounts to a more significant intrusion than a stop or a frisk, then a different standard of justification will be required—most likely, probable cause.

STOP AND FRISK: TWO SEPARATE ACTS

A stop is separate from a frisk. A stop always precedes a frisk, but a stop does not give a police officer permission to conduct a frisk. Rather, the officer must have separate justi- fication for each act. Reasonable suspicion is required to stop a person, and it is also required to frisk a person.

In Terry v. Ohio (392 U.S. 1 [1968]), the Supreme Court ruled that in addition to the suspicion required to justify a stop, the officer must have reasonable suspicion that the person stopped is armed and dangerous in order to conduct a frisk. In support of this position, the Court used a balancing test: Each intrusion by the government must be justified by a legitimate objective. In other words, no legitimate law enforcement objec- tive is served when a police officer frisks a person whom the officer does not perceive as threatening.

For example, assume a police officer observes two men in an area with much drug traffic activity, whispering to each other and passing items back and forth. Arguably, the officer would have reasonable suspicion that criminal activity is afoot, thus permitting him or her to question the men. However, if the officer does not perceive that either suspect is armed and dangerous, then a frisk would be inappropriate.

Between Reasonable Suspicion and Stop-and-Frisk

In Terry, the Supreme Court also held that before a frisk can take place, the officer must identify himself or herself as a police officer. However, if exigent circumstances exist, the identification may not be necessary. In Adams v. Williams (407 U.S. 143 [1972]), an officer, acting on a tip that a man in a nearby car had a gun at his waist, approached the car and asked the man to open the door. When the suspect rolled down his car window instead of opening the door, the officer reached into the car and removed a gun from the man’s waistband. The officer did not identify himself, but the Supreme Court ruled that the seizure of the weapon was reasonable in light of the circumstances (see also Decision-Making Exercise 3.9).

In addition to requiring that an officer identify himself or herself, the Court in Terry also required an officer to make a “reasonable inquiry.” Few cases have addressed the definition of reasonable inquiry, but as will be considered in the later discussion of

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confession and interrogation law, if the officer’s questions become too accusatory, then they may fall outside the type permitted during the course of a Terry stop.

THE STOP

In many situations, it is clear when a police officer has stopped someone. For instance, when a patrol officer legally pulls a motorist over, it is safe to say that such activity constitutes a stop. Similarly, if a police officer handcuffs a suspect, that person has clearly been stopped (and arrested). But what about a simple confrontation between a foot patrol officer and a pedestrian? If the officer directs general questions—such as “What is your name?”—at the pedestrian, can this be considered a stop? Given that there are many situations such as this, the definition of a stop must be given special attention.

Definition of a Stop

Generally speaking, a stop is the detention of a person by a law enforcement officer for the purpose of investigation. Why does the definition of a stop matter? Remember, if the police officer’s activities do not amount to a stop, then the Fourth Amendment does not apply. This is because a stop is the same thing as a seizure of a person. As the Court observed in Terry v. Ohio, “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person” (p. 16).

In Terry, the Supreme Court stated that “obviously not all personal intercourse between policemen and citizens involves seizures of persons” (p. 20, n. 16). Instead, the Fourth Amendment applies only “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of [a] citizen” (p. 20, n. 16). Thus, there is an important distinction to be drawn between (1) a forcible seizure or a stop and (2) a less intrusive type of confrontation in which, for example, the officer merely ques- tions a person who is free to ignore the officer and leave. The seizure or stop requires reasonable suspicion (provided it is considered a Terry stop and not an arrest), but the simple questioning requires no justification.

There is no easy way to distinguish a stop from a nonstop, but the Supreme Court has attempted to clarify the differences with an objective test. In United States v. Mendenhall (446 U.S. 544 [1980]), the Court observed:

[A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circum- stances that might indicate a seizure, even where the person did not actually attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. (p. 554, emphasis added)

The Court’s decision in Mendenhall stemmed from a confrontation between plain- clothes Drug Enforcement Agency (DEA) agents and a 22-year-old African American woman in the Detroit airport. The agents had asked the woman for her ticket and iden- tification, and she complied. When they realized the name on the ticket did not match her name, the agents asked the woman to accompany them into a nearby private room. The Court did not actually decide whether the woman had been stopped, but it did cre- ate the objective test described in the previous quote. Figure 6.1 lists several criteria used to distinguish between a stop and a consensual encounter.

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United States v. Mendenhall (446 U.S. 544 [1980])

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Florida v. Royer (460 U.S. 491 [1983]) was the first case to apply the test set forth in Mendenhall in order to determine the conditions under which a seizure or stop may take place. The facts in Royer were virtually identical to the facts in Mendenhall, except that the officers did not return the detained individual’s plane ticket or driver’s license. The Supreme Court held, in a 5 to 4 decision, that given the circumstances, when the officers did not indicate that the individual was free to leave, a seizure had taken place. The Court wrote:

The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal secu- rity of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. (p. 500, emphasis added)

The detained individual was subjected to the functional equivalent of an arrest, and as a result, the agents needed probable cause to detain him for as long as they did (which, incidentally, was only about 15 minutes). Moving the subject from a public loca- tion to a private location was one of the key factors that helped turn the encounter from a stop into an arrest.

Contrast Royer with the Supreme Court’s decision in Florida v. Rodriguez (469 U.S. 1 [1984]). In that case, the Court ruled that a seizure had not taken place when a plain- clothes officer approached a man in an airport, displayed his badge, asked permission to talk with the man, and requested that he move approximately 15 feet to where the man’s companions were standing with other police officers. The Court described this type of confrontation as “clearly the sort of consensual encounter that implicates no Fourth Amendment interest” (p. 5). It seems, therefore, at least in the airport context, that certain confrontations that take place in common areas do not amount to stops within the meaning of the Fourth Amendment.

In another case, Michigan v. Chestnut (486 U.S. 567 [1988]), police officers in their car followed a man who fled on foot when he spotted their patrol car. The officers did

FIGURE 6.1 Factors Used to Distinguish between a Stop and a Consensual Encounter

1. Threatening behavior on the part of officers 2. The presence of several officers 3. Display of a weapon by an officer 4. Physical touching of the person by the officer 5. The issuing of orders as opposed to requests 6. The use of intimidating language or tone of voice 7. A lengthy time period 8. Intrusive actions, such as a full-body search 9. Use of lights or sirens

10. The officer blocking the person’s path 11. Coercive police behavior 12. Taking place out of public view

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Chapter 6 • Actions Based on Reasonable Suspicion 187

not activate their siren or lights, display weapons, ask the man to stop, or attempt to block the suspect’s path. The Court acknowledged that this type of conduct can be “somewhat intimidating,” but it ruled, nevertheless, that the act of police officers fol- lowing the man did not amount to a stop. The situation would have been different, however, if the police officers had visibly chased the defendant. In the Court’s words, “[W]hat constitutes a restraint on liberty prompting a person to conclude that he is not free to leave will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs” (p. 573).

Yet another case has applied the objective test set forth in Mendenhall. The case of California v. Hodari D. (449 U.S. 621 [1991]) involved the apprehension of an individual who was chased by the police on foot. The Court ruled that the individual had not been seized at the time he threw away a rock of cocaine because the police had not yet caught up with him. The individual argued that he was “stopped” when he was being pursued by the police officers because the chase was sufficient to cause a reasonable person to believe he was not free to leave. In other words, he argued that he was subjected to a “show of authority” stop. Accordingly, the individual argued in court that the cocaine should not be admissible as evidence. Rejecting his argument, the Court ruled that the seizure of a person during a pursuit occurs only when there is an application of force by the police or the suspect submits to police authority (i.e., gives up).

Another case seeks to give meaning to the definition of a stop. In Florida v. Bostick (501 U.S. 429 [1991]), police officers approached a passenger on a bus and asked to inspect his ticket and identification and also his luggage. Both actions were conducted pursuant to a policy that permitted police officers to conduct suspicionless Terry stops for the purpose of detecting drug activity. The Supreme Court refused to adopt the Florida Supreme Court’s analysis, which held that such drug sweeps were seizures, implicating the Fourth Amendment. Instead, the Court ruled that “in order to deter- mine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer’s requests or otherwise terminate the encounter” (p. 439). The Supreme Court remanded the case back to the Florida Supreme Court, instead of reversing it. Nevertheless, a portion of Justice O’Connor’s opinion suggests that the majority was not satisfied with the Florida court’s decision: The bus passenger’s per- ception of not being free to leave was, according to O’Connor, “the natural result of his decision to take the bus.”

In United States v. Drayton (536 U.S. 194 [2002]), the U.S. Supreme Court held that Bostick-like bus detentions are permissible and that passengers need not be advised of their right to deny consent to search. And another recent decision requires suspects to provide identification if an officer so requests it (Hiibel v. Sixth Judicial District of Nevada, 5YZ U.S. 177 [2004]).

Alternative Definitions of a Stop

It is instructive to look toward the lower courts for further elaboration of the definition of a stop. Of course, the Supreme Court has the last word on that definition, but other courts have created interesting standards and/or looked to different factors than the reasonable person in their Terry-based analyses.

Instead of adopting the reasonable person test, some lower courts have, for exam- ple, focused on the degree of police coercion in determining what constitutes a stop. In State v. Tsukiyama (56 Haw. 8 [1974]), one of the leading state-level cases in this area, the Hawaii Supreme Court found that no search had occurred when police questioned a man after he had asked them for a flashlight so he could repair his car. The man was

California v. Hodari D. (449 U.S. 621 [1991])

Florida v. Bostick (501 U.S. 429 [1991])

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arrested and charged for weapons and drug offenses because when one of the officers on the scene asked him for his identification, he attempted to reach into the glove box of the car for a weapon. At issue in the case before the Hawaii Supreme Court, though, was whether the initial confrontation between the man and the police was a stop.

The Hawaii Supreme Court pointed to the lack of “command, authority, force, threat, coercion, physical stopping or restraint” (p. 17) at the point when the man asked for a flashlight. It further stated, “Since there was no ‘stop’ or ‘seizure’ of the defendant prior to his overtly unlawful act, we do not have to decide whether the circumstances could have given rise to a belief that ‘criminal activity may have been afoot’ and thus justify a ‘stop’ or ‘seizure’ ” (pp. 17–18). Had the court declared the initial confrontation a stop, the “fruit of the poisonous tree” doctrine (see Chapter 2) could have potentially applied.

In another case, Login v. State (394 So.2d 183 [1981]), the Florida District Court of Appeals had occasion to define when a stop took place. In that case, a man walking in the Miami airport was confronted by a police officer, who displayed his badge and asked the man for identification. The officer asked the man if he could talk for a minute, at which point the officer observed cocaine residue around the man’s nostrils. This raised a question similar to that in the Tsukiyama case: Did a stop occur when the officer asked the man if they could talk?

The court declared that a stop had not occurred and went on to note that it would be risky to rule that a stop automatically occurs the moment a person is confronted. In the court’s words, a rule that a stop occurs the moment a person is confronted by a police officer

would cover a multitude of police-citizen encounters which in no way approach a police seizure of the person, such as police questioning of a prob- able witness to a crime or police inquiries directed to a stranded motorist in need of assistance. To label all police encounters with the public as seizures when accompanied by questioning, no matter how cordial, would tremen- dously impede the police in the effective performance of both their criminal investigation and community assistance functions. (p. 14)

However, the court did note that a seizure does occur when the language used by the police “in tone and content bespeak[s] an order to stop, particularly when employed during a fast moving criminal investigation on the street” (p. 13). This observation is similar to the analysis offered by the Hawaii Supreme Court in Tsukiyama. Perhaps the most significant factor, then, in determining when a stop occurs is the tone and content of the police officer’s questioning.

Other cases, though, would seem to suggest that even the act of asking a person to halt, such as the rider of a bicycle, does not constitute a stop within the meaning of the Fourth Amendment (see People v. King, 72 Cal. App.3d 346 [1977]; State v. Davis, 543 So.2d 375 [Fla. 3d D.C.A. 1989]).

DECISION-MAKING EXERCISE 6.1

Looking for Illegal Aliens

Immigration and Customs Enforcement (ICE—formerly the INS) routinely conducts so-called factory surveys to deter- mine whether illegal aliens are employed at certain work- sites. In these surveys, uniformed and armed agents disperse themselves through the building and approach each

employee in order to inquire about his or her citizenship. While this is going on, employees are free to continue with their work and move about the building. Does such activity amount to a stop, thereby implicating the Fourth Amendment?

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Duration of a Stop

What is the proper duration of a stop? Better yet, when does a stop evolve into an arrest because it takes too long? There are no easy answers. In Florida v. Royer, discussed above, the Supreme Court held that a 15-minute detention exceeded the bounds of a proper stop—and became a de facto arrest. Yet, in certain exceptional circumstances, the Supreme Court has permitted detentions lasting much longer. For example, in United States v. Sharpe (470 U.S. 675 [1985]), officers followed two vehicles suspected of involvement in drug trafficking. One vehicle was stopped and the driver was detained for 40 minutes while the officers sought and stopped the second car and its driver. The Court did not establish a bright-line rule for what time period is considered permissible, but it did state that “in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria” (p. 685). Thus, the 40-minute detention of the driver of the first car was permissible.

In another case, United States v. Montoya De Hernandez (473 U.S. 531 [1985]), a woman who was traveling from Colombia was detained for 16 hours in an airport because she was suspected of being a “balloon swallower” (i.e., a person who smug- gles narcotics by hiding them in his or her alimentary canal). This was actually a very controversial case. The woman was given two options: (1) to return on the next avail- able flight to Colombia or (2) to remain in detention until she was able to produce a monitored bowel movement. She chose the first option, but officials were unable to place her on the next flight, and she refused to use toilet facilities. Officials then obtained a court order to conduct a pregnancy test (she claimed to be pregnant), an X-ray exam, and a rectal exam. The exams revealed 88 cocaine-filled balloons in her alimentary canal. She was convicted of numerous federal drug offenses, but the court of appeals reversed that decision, holding that her detention violated the Fourth Amendment. The Supreme Court, in turn, reversed the court of appeals decision and ruled that the 16-hour detention was permissible. According to the Court, “The deten- tion of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts sur- rounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal” (p. 541).

In another case, Courson v. McMillian (939 F.2d 1479 [11th Cir. 1991]), the Eleventh Circuit Court ruled that an officer’s act of stopping a car and holding the occupants at gunpoint for 30 minutes was not illegal because most of the time was spent waiting for backup to arrive. Citing Adams v. Williams, the court observed:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or criminal to escape. On the con- trary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. (pp. 145–146)

DECISION-MAKING EXERCISE 6.2

Creating a “Constitutionally Cognizable” Policy

The city mayor, frustrated with a wave of serious and violent crime in the area, instructs the police to stop and demand identification from each citizen they encounter. As the

mayor’s legal counsel, what would you advise regarding the constitutionality of these instructions to the police?

United States v. Montoya De Hernandez (473 U.S. 531 [1985])

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Contrast the decision reached in Courson v. McMillian with that reached in United States v. Luckett (484 F.2d 89 [9th Cir. 1973]). In Luckett, the Second Circuit Court declared a jaywalker’s detention invalid because it was based on a hunch that there was a war- rant for the jaywalker’s arrest. The court ruled that the stop effectively turned into an arrest, not just because of the duration of the stop but because there was no basis for an arrest at the time of the stop.

Are there any clear answers, then, as to what the appropriate duration of a stop is? Unfortunately, no, but the Supreme Court has stated that the reasonableness of a stop turns on the facts and circumstances of each case. In particular, the Court has emphasized “(1) the public interest served by the seizure, (2) the nature and scope of the intrusion, and (3) the objective facts upon which the law enforcement officer relied in light of his knowledge and expertise” (United States v. Mendenhall, p. 561). Moreover, the Court has ruled that “the use of a particular method to restrain a person’s freedom of movement does not necessarily make police action tantamount to an arrest” and that “police may take reasonable action, based upon the circumstances, to protect themselves . . . or to maintain the status quo” (United States v. Kapperman, 764 F.2d 786 [11th Cir. 1985], p. 790, n. 4).

The Meaning of “Free to Leave”

If a person is confronted but not stopped, is he or she really free to leave? This question invariably arises in criminal procedure class. Many people tend to feel intimidated by police officers, even when asked nonincriminating, innocuous questions. Would it not appear strange to an officer for someone to simply walk away during a conversation with him or her? Would the officer just let the person walk away and go about his or her business? There are no easy answers to questions such as these, but they highlight the differences between theory and reality, as considered in Chapter 1.

Even though the Supreme Court has stated that a stop does not take place when a reasonable person would believe he or she is free to leave, actually leaving during the course of a conversation with a police officer could prove to be something of a risky endeavor. Much the same controversy applies to situations in which a motorist is legally permitted to decline to give a police officer permission to search his or her sur- roundings, even though doing so may create suspicion.

In a similar vein, does a person who is stopped have the right to refuse to answer questions? The answer is yes, for an obvious reason: A person cannot be forced to talk. However, refusing to answer questions could create enough fear on the part of the offi- cer to justify a stop and could also factor into a probable cause determination that could justify an arrest. Despite all Supreme Court rulings to the contrary, then, it is risky to simply walk away from an inquisitive police officer and/or to refuse to provide answers to his or her inquiries.

Can Effects Be Seized?

Terry v. Ohio and subsequent similar cases have mostly focused on stops of persons, but a handful of cases have addressed the stop (i.e., seizure) of property based on less than probable cause. As indicated in Chapter 3, probable cause is required for the seizure of a person if that seizure amounts to an arrest. The same applies to effects, which are usu- ally a person’s personal items. If the detention or seizure of a person’s effects amounts to an arrest, then probable cause is required.

The question, then, is, when does the seizure of a person’s effects rise to the level of an arrest? The Supreme Court attempted to answer this question in United States v. Place (462 U.S. 696 [1983]). In that case, the Court ruled that a 90-minute detention of a person’s luggage in an airport to arrange for a drug dog “sniff” to detect drugs was

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unconstitutional because the detention was too long. Also, the Court stated that “the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion” (p. 710) contributed to the unconstitutional nature of the detention. The Court went on to note that “some brief detentions of personal effects may be so mini- mally intrusive of Fourth Amendment interests that strong countervailing governmen- tal interests will justify seizure based only on specific articulable facts that the property contains contraband or evidence of a crime” (p. 706).

In another case, United States v. Leeuwen (397 U.S. 249 [1970]), the Supreme Court confirmed that there are some situations in which restraints on people’s effects do not amount to a Fourth Amendment seizure. In that case, the police, who were contacted by a suspicious postal clerk, asked post office officials to hold two packages for 29 hours while they investigated the situation and obtained a search warrant. A unanimous Court ruled that the circumstances “certainly justified detention, without a warrant, while an investigation was made” (p. 252). Also, the Court ruled that “[n]o interest protected by the Fourth Amendment was invaded by forwarding the packages the fol- lowing day rather than the day when they were deposited” (p. 253). In short, because the detention of the package did not invade any privacy interest in the package, a Fourth Amendment seizure did not take place.

Summary. A Terry stop/seizure is characterized by two specific events: (1) The police question a person or communicate with him or her and (2) a reasonable person would believe that he or she is not free to leave. Reasonable suspicion is required in order to make a Terry stop conform to Fourth Amendment requirements. Conversely, if an officer detains a person in such a manner that a reasonable person would believe he or she is free to leave, the protections of the Fourth Amendment do not apply and reasonable suspicion is not required. If the officer wishes to conduct a frisk—a separate act from a stop—he or she must have reasonable suspicion that the suspect is armed and dangerous, not just reasonable suspicion, as required for a Terry stop.

There are no clear answers as to what is the appropriate duration for a stop. However, as the Supreme Court suggested in United States v. Mendenhall, a lengthy stop is constitutionally permissible when (1) the public interest is served by the seizure; (2) the nature and scope of the intrusion are not excessive; and (3) the officer possesses enough in the way of objective facts to justify the stop (p. 561). Thus, if a per- son is stopped and detained for a long time based on an officer’s hunch but poses no

DECISION-MAKING EXERCISE 6.3

Stretching the Time Limits of a Stop

Law enforcement officers had a plane under surveillance because they had reasonable suspicion to believe that it was being used to transport narcotics. They approached the aircraft, which was ready for takeoff. Standing near the left wing of the plane, one of the officers raised his badge, identified himself, and, shouting over the noise of the speeding engine, ordered the pilot to shut off the en- gine and get down. The pilot looked from side to side and appeared hesitant about what to do. At that moment, the officer moved in front of the aircraft, drew his gun, pointed it at the pilot, and again yelled to him to shut off

the engine and get out of the plane. The officer identified himself and said he wanted to speak to the pilot because he was suspected of narcotics smuggling. He then patted down the pilot in search of weapons; finding none, he placed his gun back in the holster. The officers then ques- tioned the pilot about the plane’s ownership. The pilot was evasive and ended up supplying inaccurate and contradic- tory information about who owned the plane. The officers then detained him for over an hour while they attempted to determine who owned the plane. Was this action justified?

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threat to public safety, then the stop will probably be declared illegal. In such a situa- tion, the stop would need to be justified by probable cause because it would amount to a de facto arrest.

THE FRISK

As indicated, the additional step of frisking a suspect is a Fourth Amendment intru- sion that requires justification apart from that required to stop the person. Specifically, in order to conduct a frisk (a superficial examination by the officer of the person’s body surface or clothing to discover weapons or items that could be used to cause harm), the officer needs reasonable suspicion that the suspect is armed and danger- ous. This is in addition to the reasonable suspicion required to stop the person for questioning.

Permissible Grounds for a Frisk

While Terry held that a frisk is permissible only when an officer reasonably fears for his or her safety, there is still considerable dispute over the situations in which a frisk is appropriate. What does it mean, in other words, to fear for one’s safety? A number of court decisions have wrestled with this question.

For example, in Pennsylvania v. Mimms (434 U.S. 106 [1977]), police officers observed a man driving a vehicle with expired plates. The officers stopped the vehicle in order to issue the man a traffic summons. When the officers asked the man to step out of the car, the officers observed a large bulge in the pocket of his jacket. Fearing that the bulge might be a weapon, one of the officers frisked the man. It turned out that the bulge was a .38 caliber revolver. The man claimed at his trial that the gun was seized illegally, but the Supreme Court upheld the frisk. Even though a bulge in one’s pocket does not necessarily indicate he or she has a weapon, the Court granted some latitude in its decision to law enforcement personnel.

However, in Ybarra v. Illinois (444 U.S. 85 [1979]), the Court ruled that officers did not have grounds to frisk 12 bar patrons during a search of the bar itself. Justice Stewart stated in Ybarra that “[t]he ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized nar- cotics search is taking place” (p. 94). Thus, just because someone happens to be in an area in which criminal activity is supposedly taking place does not make him or her eligible for a frisk.

DECISION-MAKING EXERCISE 6.4

What Constitutes a Proper Stop?

On a Wednesday afternoon at 3:00 p.m., Officer Weber was on patrol in a neighborhood that had experienced sev- eral daytime burglaries. Her attention was drawn to a car in the driveway of one residence, which had its trunk open. In the trunk were several plastic trash bags of the type report- edly used by the burglar to carry away the loot. Weber pulled her cruiser into the driveway behind the vehicle, blocking its path. At that point, the driver of the car was closing the trunk and preparing to leave. The driver ap- proached Weber, appearing quite nervous, and asked her

to move the cruiser. Instead of doing so, Weber asked the driver for identification, which he produced. The identifica- tion indicated an address on the other side of town. Weber then frisked the driver, found a gun in his left coat pocket, and arrested him. No evidence connected the driver to the burglaries, but he was prosecuted for unlawfully carrying a concealed weapon. He moved to exclude the gun on the grounds that the initial stop was illegal and that the gun was the fruit of that illegal stop. What should the court decide?

Ybarra v. Illinois (444 U.S. 85 [1979])

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Despite the limitations on frisks imposed by the Ybarra decision, the Court has since gone back somewhat on its decision in that case. In Minnesota v. Dickerson (508 U.S. 366 [1993]), police officers observed a man leaving a “crack” house. As he approached and saw the officers, he turned and began walking in the opposite direc- tion. The officers stopped and frisked him and found drugs on him. The frisk was con- ducted without reasonable suspicion or any other level of justification. The Court ruled that the police exceeded the bounds of a valid frisk when they found drugs on the man’s person, but the Court did not rule that the frisk was unconstitutional. It would seem, then, that under certain circumstances, a frisk is permissible on less than reasonable suspicion. Apparently, the act of leaving a “crack” house and acting eva- sively was sufficient justification to conduct a frisk, even though the police went too far in doing so.

In Arizona v. Johnson (No. 07-1122 [2009]), the Court further expanded the frisk doctrine. In that case, gang task force officers were patrolling and stopped a vehicle for a traffic violation. The officers had no reason to suspect the vehicle’s occupants of crim- inal activity, but they nevertheless ordered them out of the car. One of them was frisked and a weapon was found. The Court sanctioned this activity, noting that “a passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver.”

So, are there any clear rules that establish when an officer can reasonably fear for his or her safety? The answer is no. Ultimately, the determination of a potential threat is a subjective one. Almost without exception, the courts will defer to the judgment of the officer, assuming that he or she is able to articulate some specific facts that contributed to reasonable suspicion that the suspect was armed and dangerous. Figure 6.2 summa- rizes the circumstances as to when a frisk is permissible.

Scope of a Frisk

A number of cases have focused specifically on the permissible scope of a frisk. Two issues have been raised: (1) the definition of a frisk—that is, what the officer can physi- cally do to a person that does not rise to the level of a search; and (2) the items that can be felt for during the course of a frisk.

With regard to the first issue, the Supreme Court in Terry described a frisk as “a carefully limited search of the outer clothing . . . in an attempt to discover weapons which might be used to assault [a police officer]” (p. 30). In Sibron v. New York (392 U.S. 40 [1968]), the Court offered additional clarification by declaring that the act of reaching into a suspect’s pockets is impermissible when the officer makes “no attempt at an initial limited exploration for arms” (p. 65). Generally, then, a frisk is little more than an open-handed patdown of someone’s outer clothing. Only if the officer feels something that resembles a weapon can he or she then reach into the suspect’s pocket (or other area used to conceal it) to determine what the item is. And as the Supreme Court

FIGURE 6.2 When a Frisk Is Permissible

1. When the person has a reputation for dangerousness 2. When the person is suspected of having committed a dangerous felony 3. When visual cues suggest the presence of a weapon or similar dangerous instrument 4. When the suspect makes suggestive or furtive gestures

Minnesota v. Dickerson (508 U.S. 366 [1993])

Sibron v. New York (392 U.S. 40 [1968])

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observed in United States v. Richardson (949 F.2d 851 [6th Cir. 1991]), “When actions by the police exceed the bounds permitted by reasonable suspicion, the seizure becomes an arrest and must be supported by probable cause” (p. 856).

With regard to the second issue, or the items that can be felt for during the course of a frisk, the Supreme Court in Ybarra v. Illinois emphasized that frisks must be directed at discovering weapons, not criminal evidence. In Ybarra, one of the police officers had removed what he described as a “cigarette pack with objects in it” from the suspect. The Court basically decided that the officer’s actions were too intrusive; the package could not have been considered a threat to the safety of the officers conducting the search. Significantly, the Court did not declare the seizure illegal because the officer was not looking for weapons but because the officer did not have reasonable suspicion to frisk every patron in the bar. Nevertheless, a frisk should not be used as a “fishing expedi- tion” to see if some kind of usable evidence can be found on the person.

Two additional points concerning the scope of a frisk need to be underscored at this juncture. First, just because the Supreme Court has declared that a frisk should be conducted based on the motive to preserve officer safety, this does not mean the officer cannot seize contraband found during the course of a lawful frisk. This issue is discussed in the section on plain touch and feel later in this chapter. What is important now, though, is that a frisk is supposed to be motivated by the desire to remove weapons and other instruments of potential harm from a criminal suspect.

Second, remember that a valid frisk can always evolve into a Fourth Amendment search, provided that probable cause develops along the way. For example, assume that a Chicago police officer frisks a suspect because she fears he may be carrying a gun. If it turns out that the suspect is carrying a pistol, which is illegal in the city of Chicago, she could arrest the suspect and conduct a full search incident to arrest. In this example, though, the object seized during the frisk (i.e., the gun) must be immediately apparent to the officer for the seizure to be legal. As the Supreme Court stated in Minnesota v. Dickerson:

Although the officer was lawfully in a position to feel the lump in respon- dent’s pocket, because Terry entitled him to place his hands upon respondent’s jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terry or by any other exception to the warrant requirement. (p. 379)

In the example, then, had the seizure followed careful manipulation of the object by the officer, then a seizure based on the frisk would not conform to Fourth Amendment requirements. Figure 6.3 provides additional examples of proper and im- proper frisks.

Summary. A frisk is permissible when an officer reasonably fears for his or her safety. However, there is no easy way to discern the facts that would cause an officer to reasonably fear for his or her safety. If an officer can offer no facts or testimony to support the frisk, it will probably be declared unconstitutional. On the other hand, if the officer possesses some objective information that served as the basis for a frisk (e.g., observing a bulge in a suspect’s pocket), the frisk will probably be legal.

A number of cases have focused on the permissible scope of a frisk, and three important restrictions have been imposed. First, a frisk can be nothing more than a pat- down of someone’s outer clothing. Groping or squeezing is not permissible. Second, a frisk must be motivated by the desire to promote officer safety, not by the desire to seek out any form of contraband. That is, the sole purpose of a Terry patdown is to protect

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Sibron v. New York (392 U.S. 40 [1968])

Chapter 6 • Actions Based on Reasonable Suspicion 195

FIGURE 6.3 Examples of Proper and Improper Frisks

Proper: An officer notices a vehicle being driven erratically and stops it. The driver gives false identification, admits having done time for robbery, and is wearing a bulky jacket that he is having a hard time keeping his hands out of. The officer orders him out of the car, pats him down, and finds syringes in the suspect’s jacked pockets (People v. Autry, 232 Cal. App. 3d 365 [1991]).

Proper: An officer is serving a search warrant and pats down a man who is sitting on the couch in the living room. The man is passive and nonthreatening—and the warrant did not authorize any searches of persons (People v. Thurman, 209 Cal. App. 3d 817 [1989]).

Proper: At 1:15 a.m., officers stop a vehicle for driving with its lights off. The driver gets out of the vehicle and heads toward the officers, leaving two other individuals in vehicle. When the officers asked for the driver’s license, he says it is in his socks. Fearing for his safety, the officer quickly frisks the driver and finds a knife in the driver’s sock (People v. Barnes, 141 Cal. App. 3d 854 [1983]).

Proper: An officer responds to a reported “prowler” call and frisks two individuals who could produce no identification and speak only Spanish (People v. Castaneda, 35 Cal. App. 4th 1222 [1995]).

Proper: Two officers observe a young man looking into two parked cars in a back alley where there have been several complaints of criminal activity. The suspect tries to stay out of view of the officers when he noticed them by hiding behind a dumpster. When the officers approach the suspect and ask questions, he becomes combative. They frisk him for weapons (People v. Michael S., 141 Cal. App. 3d 814 [1983]).

Proper: An officer encounters a suspect walking along a street, carrying a television set in an area known for excessive burglaries. He pats the suspect down, checking for weapons (People V. Myles, 50 Cal. App. 3d 1107 [1975]).

Proper: An officer responds to a report of several suspicious individuals in a restaurant parking lot. On arriving at the scene, one of the suspects turns and walks away, whereupon the officer notices a large bulge in his pocket. The officer stops the man, frisks him, and finds a weapon (People v. Miles, 196 Cal. App. 3d 612 [1987]).

Proper: An officer is having a consensual encounter with a man on the street. The man reaches into his pocket, at which point the officer notices a bulge therein. The officer grabs the man’s wrist to prevent him from reaching into the pocket (People v. Rosales, 211 Cal. App. 3d 325 [1989]).

Proper: In response to a “panhandler” complaint, an officer frisks a man after observing a large bulge in the front waistband of his pants (People v. Snyder, 11 Cal. App. 4th 389 [1992]).

Improper: An officer frisks a man who was sitting in a parked car, with the engine running, in the middle of a rural dirt road. The man had no identification or license and refused to the let the officer search the vehicle. He was also nervous (People v. Dickey, 21 Cal. App. 4th 952 [1994]).

the officer from weapons that might be used by the suspect during the encounter. Finally, for an officer to legally seize an item during the course of a frisk, that item must be immediately apparent to the officer as contraband.

For something of a summary of stop-and-frisk law, see Figure 6.4, which contains the San Bernardino, California, Police Department’s stop-and-frisk policy. It succinctly summarizes the discussion thus far.

Source: From California Peace Officers Legal Sourcebook, electronic edition, revision 113 (Sacramento, CA: California Department

of Justice, Office of the Attorney General), section 2.20.

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196 Part 2 • Search and Seizure

FIGURE 6.4 Stop-and-Frisk Policy (San Bernardino, CA, Police Department)

STANDARD OPERATING PROCEDURE CHAPTER #29 PROCEDURE #3

CURSORY PATDOWN and CUSTODIAL SEARCHES 12-4-02

PURPOSE

To establish a policy governing cursory patdown and custody searches of detained and arrested subjects.

DEFINITIONS

A. Search – A reasonable infringement of an individual’s expectation of privacy. Every individual has the right to be protected from unreasonable searches as set forth by the Fourth Amendment of the United States Constitution and made applicable to the states by the Fourteenth Amendment.

B. Cursory Patdown Search – A search conducted of detained subject for the purpose of detecting weapons.

C. Custody Search – A search conducted of an arrested or detained subject where probable cause exists to arrest, to recover weapons, contraband, or other evidence. Normally custody searches are done during the booking procedure; however, this policy does not preclude in-field custody searches from occurring.

POLICY and PROCEDURES

Cursory Patdown Search

A. Detaining/Arresting 1. When an officer detains any subject suspected of committing a criminal offense

and the officer has reasonable suspicion that subject may have a weapon, the officer shall conduct, or arrange for a cursory patdown search for weapons as soon as practical.

2. When an officer arrests any subject, the officer shall conduct or arrange for a cursory patdown or custody search prior to placing the suspect in a vehicle for transportation.

3. The cursory patdown search for weapons or contraband shall consist of patting the suspect’s body and clothing. The squeezing of loosely fitting clothing, such as jacket seams and pockets or other unexplained masses is permitted. Detected potential weapons and contraband, or containers capable of concealing

DECISION-MAKING EXERCISE 6.5

The Permissible Scope of a Frisk

Two police officers were approached by a person (previously unknown to them) who stated that Jack Smith was in the Valley Grill on First Street and that he had several bags of co- caine for sale. The person provided detailed information con- cerning Smith and described the clothing he was wearing. The officers went to the Valley Grill and found no one of that description. After the officers left the bar, however, they

observed a person walking on the sidewalk who matched the description they had been given. The officers approached him, blocked his path, and asked for his identifi- cation. The man’s identification revealed that his name was Jack Smith. At that point, the officers ordered Smith to remove his shoes. He did so as the officers continued to ask him questions. Was this action appropriate?

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Chapter 6 • Actions Based on Reasonable Suspicion 197

weapons or contraband shall be removed for inspection. Officers shall be cautious of the potential presence of sharp or pointed objects.

B. In the absence of consent or plain sight, other detected objects may not be removed or inspected unless the subject is under arrest or probable cause exists to arrest the subject. Officers are cautioned that probable cause to arrest must exist before non-weapon objects can be removed for inspection.

C. Absent exigent circumstances, an officer of the same sex shall conduct the cursory search. Exigent circumstances are defined as:

• An immediate articulable threat to the officer, public safety, or the potential destruction/disposal of physical evidence.

• Response of a same sex officer will result in an unreasonable period of detention.

Whenever possible, cursory patdown searches by an officer of the opposite sex of the detainee should be in direct sight of a second witnessing officer. Every reasonable effort shall be made to protect the dignity of the arrestee or detainee during the cursory pat- down search.

Custody Search

A. Custody searches shall be conducted of every individual who is arrested and maintained in police custody. A custody search should be conducted as soon as practical. Custody searches may be conducted in the field prior to transport, but must be conducted before an arrestee is allowed to enter the prisoner holding areas of a custodial facility. Most custodial facilities include secure areas away from confined prisoners for the purpose of searching and processing prisoners. Officers will make every reasonable effort to prevent weapons or contraband from entering any jail facility.

B. Custody searches are conducted for the purpose of detecting any and all objects in the possession of the arrestee. Custody searches include the removal of footwear, headwear, or outer clothing such as jackets, coats, sweaters, overpants, coveralls, etc. Non-surgically attached artificial apparatus such as a hairpiece or prosthesis capable of concealing weapons or contraband shall be removed.

C. Absent justification and authorization for a “strip search or body cavity search” (SOP Chapter #29, Procedure #1), arrestees shall not be required to remove shirts, blouses, trousers, pants, skirts, and shorts so long as such clothing items are not so thick to prevent the detection of weapons or contraband, or said items are deter- mined to be of evidentiary value.

D. Absent exigent circumstances, officers of the same sex as the arrestee shall conduct custody searches. Exigent circumstances are defined as: • The immediate destruction of evidence. Opposite sex officers who become

aware of evidence or contraband during a cursory patdown search or other legal means and delaying the custody search would result in the immediate destruc- tion of the evidence or contraband, may conduct a limited custody search for the purpose of recovering the evidence or contraband. If reasonable control tech- niques such as handcuffing the prisoner would prevent the destruction of the evidence or contraband, the custody search shall be delayed until a same sex officer is available.

• The non-availability of a same sex officer or jail custodian. When a same sex of- ficer or jail custodian is not available, a supervisor or watch commander shall authorize an opposite sex custody search. A second opposite sex officer or jail

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THE EVOLVING NATURE OF STOP-AND-FRISK LAW

In Terry v. Ohio, the Supreme Court created an exception to the Fourth Amendment’s re- quirement that probable cause is required for searches by holding that police officers can stop and frisk people based on reasonable suspicion. In the wake of Terry, a number of significant and controversial Supreme Court decisions have modified the scope of the stop-and-frisk exception to the Fourth Amendment’s probable cause requirement. Illustrative cases fall into four categories:

• vehicle stops and weapons searches of automobiles, • protective sweeps of residences, • plain touch and feel, and • stops for loitering.

Vehicle Stops and Weapons Searches of Automobiles

Automobile searches were covered in Chapter 5, but it is appropriate to mention here, during the discussion of stop-and-frisk, what police officers can do with automobiles in the presence of reasonable suspicion. Delaware v. Prouse (440 U.S. 648 [1979]) set forth the rule that police officers can stop and detain motorists in their vehicles so long as the offi- cers have “at least articulable and reasonable suspicion” that the motorists are violating the law. For example, if a police officer observes a driver run a stop sign, the officer is jus- tified in pulling the person over and detaining him or her because reasonable suspicion is present. The decision in Pennsylvania v. Mimms also authorizes a police officer to order a driver out of a car. The logic is that doing so is a minimal intrusion that can be justified by safety concerns. These decisions (as well as Terry) also permit a police officer to frisk a motorist who has been pulled over if the officer reasonably fears for his or her safety.

Interestingly, if a police officer orders a driver (or a passenger, or both) out of the car, is reasonably suspicious that the driver is armed and dangerous, and frisks the driver, the officer may also search the area of the interior of the car within the sus- pect’s immediate control. Such a search is permissible even when the driver has already been ordered to step out of the vehicle. The case that established this ruling was Michigan v. Long (463 U.S. 1032 [1983]). In Long, police officers saw a car swerve

198 Part 2 • Search and Seizure

custodian will witness all opposite sex custody searches. Every reasonable effort shall be made to protect the dignity of the arrestee during the custody search.

E. The department recognizes that there are a limited number of female officers and female jail custodians. It is not the intent of this policy to significantly delay or paralyze the processing of an arrestee due to the non-availability of same sex officers or jail custodians. Nor is it the intent of this policy to delay officers conducting cursory patdown searches from immediately seizing evidence from subjects under arrest or where probable cause exists to arrest. In such cases, offi- cers shall take immediate action and notify a supervisor of that action as soon as practical. Officers will document the circumstances of the search and the results of the search in a report.

F. Officers and/or jail custodians shall document all property discovered during a custody search in a report. Normally this will be accomplished by means of an arrest follow up report or approved prisoner property inventory report.

Delaware v. Prouse (440 U.S. 648 [1979])

Source: Chapter 29, Procedure 3, “Use of Force,” from Standard Operating Procedure, San Bernardino,

California, Police Department (rev. December 22, 2004). Reprinted with permission.

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Chapter 6 • Actions Based on Reasonable Suspicion 199

into a ditch and after stopping to investigate, they observed that the driver was intoxicated and that there was a large hunting knife on the floor of the vehicle. The Supreme Court ruled that the officers were justified in searching the passenger compartment and frisking the driver.

Michigan v. Long is an important decision because a search almost always requires probable cause. Note, however, that the scope of the search in this case was limited to the vehicle occupant’s grabbing area, which included the whole of the interior of the car. Neither containers inside the car nor any in the trunk of the car (if any) can be searched during the course of a vehicle weapons search based on reasonable suspicion.

Protective Sweeps of Residences

Another decision that essentially expands Terry is Maryland v. Buie (494 U.S. 325 [1990])—a case that was already discussed in the search incident to arrest section of the previous chapter. If police lawfully make an arrest in a person’s residence, a protective sweep (defined in Chapter 5 and the glossary) of the home is permitted based on the Terry rationale. A sweep is when one or more officers disperse throughout the home with the intent of looking for other people that could pose a threat to the officers making the arrest. In the Court’s words, a protective sweep is a “quick and limited search of the premises, incident to arrest, and conducted to protect the safety of police officers or others” (p. 325). This protective sweep, which requires reasonable suspicion, should be distinguished from the automatic but more limited sweep that is permitted incident to a lawful arrest (see Chapter 5).

According to the Supreme Court, a sweep is permitted if the officer possesses “a rea- sonable belief based on specific and articulable facts that an area to be swept harbors an individual posing a danger to those at the arrest scene” (p. 337). In addition, a sweep “may extend only to a cursory inspection of those spaces where a person may be found” and may last only as long as is necessary to eliminate the suspicion of danger. The case of Maryland v. Buie thus expands Terry in the sense that police officers can do more than just frisk a person who is arrested in a private residence. Note, however, that this case does not permit officers to search but only to sweep the area. A search would have to be sup- ported by probable cause. However, items in plain view can be seized (see Chapter 5).

The Court’s decision in Maryland v. Buie is not without its critics, however—the dis- senters in the case being perhaps the most vocal. Consider Justice Brennan’s observations in the dissent he wrote:

Terry and its early progeny permitted only brief investigative stops and extremely limited searches based on reasonable suspicion . . . but this Court more recently has applied the rationale underlying Terry to a wide variety of more intrusive searches and seizures prompting my continued criticism of the emerging tendency on the part of the Court to convert the Terry decision from a narrow exception into one that swallows the general rule that [searches] are reasonable only if based on probable cause. (p. 339)

DECISION-MAKING EXERCISE 6.6

A Vehicle Search

A police officer pulled a woman motorist over for exceed- ing the posted speed limit. The officer then ordered the woman out of the car. Without her consent and without probable cause, the officer searched the interior passenger

compartment of the vehicle. He found marijuana and a “bong” under the seat and so arrested the woman. Was the search of the passenger compartment justified?

Maryland v. Buie (494 U.S. 325 [1990])

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The exception Justice Brennan refers to is Terry’s exception to the Fourth Amendment’s requirement that reasonable searches be supported by probable cause. In a sense, Terry chipped away at the Fourth Amendment. Brennan’s concern in this case, then, is that the Fourth Amendment continues to be weakened in cases that continue to uphold po- lice actions that would otherwise be considered searches, but for the Court’s decision in Terry v. Ohio.

This is an important area of law about which to remain informed. No doubt, the Supreme Court will continue to decide cases that involve the relationship among probable cause, reasonable suspicion, and the police activities that each permits.

Plain Touch and Feel

In Minnesota v. Dickerson, discussed earlier in this chapter, the ruling was that police officers exceeded the bounds of Terry when they frisked the suspect because the officer “squeezed, slid, and otherwise manipulated the packet’s content” before learning that it was cocaine. Despite that decision, Dickerson is considered by many to be the case that officially recognized the doctrine known as plain touch (sometimes called plain feel). The Supreme Court has long recognized that the items in plain view fall outside Fourth Amendment protections because they are in plain view to the police. Dickerson is some- thing of a cross between a Terry-based frisk and the “plain view” doctrine. According to one source, “[I]f the officer, while staying within the narrow limits of a frisk for weapons, feels what he has probable cause to believe is a weapon, contraband or evidence, the officer may expand the search or seize the object.”1

The reason the Supreme Court frowned on the frisk conducted by the police in Dickerson was that it was not immediately apparent to the officers that the suspect had contraband in his pocket. Thus, for the plain feel doctrine to apply, two conditions must be met: (1) Police must have reasonable suspicion to frisk, and (2) contraband must be immediately apparent for it to be lawfully seized. Stated more formally, “[T]he police may seize contraband detected solely through the officer’s sense of touch, if, as with the plain-view doctrine, the officer had a right to touch the object in question (lawful vantage point and lawful access) and, upon tactile observation, the object’s identity as contraband was immediately apparent.”2Figure 6.5 presents examples of proper seizures based on plain view, touch, and feel during stop-and-frisk situations.

Stops for Loitering

A somewhat lesser known but equally controversial expansion of Terry has been applied to stops for loitering. Generally, a person cannot be stopped with anything less than reasonable suspicion. However, certain statutes, known collectively as loitering statutes, authorize the police to stop or arrest suspicious-looking individuals based on a lesser degree of certainty than even reasonable suspicion. Because these statutes often permit the police to stop people based on less than reasonable suspicion, many of them have been declared unconstitutional on the grounds that they are too vague.

An illustrative case is Papachristou v. City of Jacksonville (405 U.S. 156 [1972]). In that case, the Supreme Court declared unconstitutional a municipal ordinance that targeted “vagrants” and “rogues and vagabonds, or dissolute persons who go about begging . . . common drunkards, lewd, wanton and lascivious persons, . . . persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, [and] disorderly persons” (p. 157, n. 1). The Court concluded that the ordinance provided “no standards governing the exercise of . . . discretion” and thereby

1 S. L. Emanuel and S. Knowles, Emanuel Law Outlines: Criminal Procedure (Larchmont, NY: Emanuel, 1998), p. 129. 2 J. Dressler, Law Outlines: Criminal Procedure (Santa Monica, CA: Casenotes, 1977), pp. 12–15.

Papachristou v. City of Jacksonville (405 U.S. 156 [1972])

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Source: From California Peace Officers Legal Sourcebook, electronic edition, revision 113 (Sacramento,

CA: California Department of Justice, Office of the Attorney General), section 2.21.

Chapter 6 • Actions Based on Reasonable Suspicion 201

“permit[ted] and encourage[d] an arbitrary and discriminatory enforcement of the law” and resulted “in a regime in which the poor and the unpopular are permitted to ‘stand on the sidewalk . . . only at the whim of any police officer’ ” (p. 170).

In a more recent case, Kolender v. Lawson (461 U.S. 352 [1983]), the Supreme Court struck down another statute that made a misdemeanant of any person “[w]ho loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer to do so, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification” (p. 354, n. 1). The Court ruled that the statute was too vague because it “vests virtu- ally complete discretion in the hands of the police to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest” (p. 358).

FIGURE 6.5 Examples of Proper Seizures Based on Plain View, Feel, and Touch during the course of Stop-and-Frisks

DECISION-MAKING EXERCISE 6.7

The Bounds of a Proper Frisk

An officer on foot patrol observed a known gang member leaving a notorious crack house. When the gang member spotted the officer, he turned and ran in the opposite direc- tion. The officer gave chase, caught up with him, and ordered him to stop. The gang member did stop, at which point the officer administered a patdown frisk. No weapons

were revealed, but the officer felt a lump in the gang mem- ber’s pocket. Upon careful examination with her fingers, the lump was revealed to be a package of cellophane of the type commonly used to package “crack” cocaine. The officer seized the bag. May it be introduced as evidence at the gang member’s trial for narcotics possession?

Kolender v. Lawson (461 U.S. 352 [1983])

Example 1: During a patdown, an officer felt a lumpy object near the suspect’s knee. The officer had already discovered a gram scale and the smell of methamphetamine and, so, was justified in making an arrest. The item near the suspect’s knee turned out to be a baggie of methamphetamine. The officer was justified in seizing the contraband and it could be used at trial (People v. Dibb, 37 Cal. App. 4th 832 [1995]). Example 2: While searching an individual for weapons, an officer felt a small clump of firm objects. He knew it is not a weapon, but based on his experience, he was sure he touched cocaine-filled balloons. He reached into the suspect’s jacket and removed two clear bags, each containing 50 cocaine-filled balloons. The seizure was justified because the officer had probable cause to arrest (People v. Lee, 194 Cal. App. 3d 975 [1987]). Example 3: While serving a search warrant, an officer frisked a man who appeared to have a large bulge in his pocket. Fearing it was a weapon, the officer reached into the man’s pocket and found what turned out to be large rocks of cocaine. The seizure was justified (People v. Thurman, 209 Cal. App. 3d 817 [1989]). Example 4: An officer responds to a complaint and noticed a large bulge in the suspect’s pants. He reached in and found a bottle. The officer’s actions were legal (People v. Snyder, 11 Cal. App. 4th 389 [1992]).

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Even after Kolender, a number of jurisdictions have attempted to devise suffi- ciently specific loitering statutes. For example, the city of Chicago passed a statute pro- viding that “whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area.” Loitering was defined as “to remain in any one place with no apparent purpose.” Despite the more specific language of this statute, though, the Supreme Court also struck it down. Specifically, in Chicago v. Morales (527 U.S. 41 [1999]), the Supreme Court ruled that the statute was unconstitutionally vague. The majority believed that the statute still gave police too much discretion to decide which people could be classified as gang members. The Court suggested it may have upheld the statute if it had applied to gang members or to those with “an apparently harmful purpose or effect,” but instead, that statute applied to “everyone in the city who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them” (p. 41).

Stops, even arrests, for loitering, then, would seem to be constitutionally question- able. Several of the statutes that authorized stops for loitering have been struck down by the Supreme Court. Certainly, loitering statutes can still be found on the books else- where in the United States (some of which might not be too vague), but to be safe, the police should limit their stops of people to those that are based on reasonable suspicion that criminal activity is afoot. Any stop based on less than reasonable suspicion opens the police officer’s actions to a great deal of constitutional scrutiny.

DRUG COURIER PROFILING

An especially controversial variety of Terry-like investigative stops includes those based on so-called drug courier profiles. This chapter gives detailed attention to drug courier profiling not just because it is a controversial criminal justice topic but also because it is an appropriate topic for a chapter on stop-and-frisk. Almost without exception, drug courier profiling occurs in the stop-and-frisk context—that is, when a person is stopped and questioned because he or she appears suspicious in some way. Drug courier profil- ing is most common in airports but also occurs on U.S. highways and elsewhere.

Indeed, profiling of offenders occurs for other offenses, as well. Law enforcement officials have developed profiles of a number of other varieties of offenders, including car thieves (People v. Martinez, 12 Cal. Rptr. 2d 838 [Cal. Ct. App. 1992]), child abusers (Flanagan v. State, 586 So.2d 1085 [Fla. Dist. Ct. App. 1991]), child batterers (Commonwealth v. Day, 569 N.E.2d 397 [Mass. 1991]), and sexual abusers (State v. McMillan, 590 N.E.2d 23 [Ohio Ct. App. 1990]), among others.

202 Part 2 • Search and Seizure

DECISION-MAKING EXERCISE 6.8

Putting It All Together

Deputy Smith was on patrol in his police cruiser when he heard a report over the radio that a bank had just been robbed and that four male perpetrators had fled in a blue 1976 Ford pickup without license plates. Several minutes later, Smith observed a vehicle matching the description given over the radio except that it had license plates. He followed the truck and, after turning on his flashers, ordered the driver

of the truck to pull over to the side of the road, which he did. Smith approached the truck and observed three men and a woman inside, each of whom appeared nervous and upset by the fact that they had been pulled over. After Smith ordered the occupants out of the car, he observed a bulge in the dri- ver’s pocket. He frisked the driver and found a weapon. Was Smith justified in stopping the vehicle and frisking the driver?

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Chapter 6 • Actions Based on Reasonable Suspicion 203

The carrying of controlled substances by airline passengers is a common way that drugs enter the United States from foreign countries. Law enforcement agents could conceivably search every person who passes through an airport, but such an effort would be costly, time consuming, unacceptable to passengers, and almost certainly unconstitutional. Warrantless searches that are based on no articulable justification are always unreasonable under the Fourth Amendment, unless one of a few “specifically established and well-delineated exceptions” applies (Katz v. United States, 389 U.S. 347 [1967], p. 357). In other words, such searches violate the Fourth Amendment because they are not based on probable cause, as the amendment requires.

Given that suspicionless searches are illegal, then, the police are left with two options when it comes to confronting people suspected of being drug couriers. These two options are “consensual encounters in which contact is initiated by a police officer without any articulable reason whatsoever and the citizen is briefly asked some questions [and] a temporary involuntary detention . . . which must be predicated on ‘reasonable suspicion’ ” (United States v. Bueno, 21 F.3d [1978]). Both consensual enco- unters and investigative detentions are not considered searches, so they fall outside the Fourth Amendment’s probable cause requirement.

Consent searches are covered in Chapter 7, but suffice it to say for now that when a person gives consent to the police to conduct a search or ask questions, the Fourth Amendment does not apply. Assuming the citizen remains free to decline the officer’s request to conduct a search, the officer can legally ask a person to look in his or her car, bag, house, or other area. The logic behind consent searches was touched on in Terry v. Ohio, in which the Supreme Court stated that “there is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets” (p. 27). There is one significant restriction, though, for a consent search (or stop) to be truly consensual, and it goes directly to the definition of stop covered earlier in this chapter: “[T]he Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate” (Florida v. Bostick, p. 431). In other words, the constitutionality of a consent search is premised on the requirement that the person is truly free to decline when asked by a police officer to allow a search.

Drug courier profiling often takes place at airports. Some profiling is very visible, but much of it is conducted by officials who work undercover. Most profiling also takes place away from checkpoints, such as the one depicted here. If authorities have reasonable suspicion to stop an individual anywhere in an airport, they will do so.

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Perhaps more common in the practice of drug courier profiling is the use of inves- tigative detentions, or Terry stops. Terry, as addressed throughout the bulk of this chap- ter, permits police officers to stop people based on reasonable suspicion that criminal activity is afoot. Terry stops occur in airports and elsewhere when a person is involun- tarily detained. For this type of stop to occur, however, the officer needs to show that there is, in fact, reasonable suspicion that the person is a drug courier. The primary question that makes drug courier profiling a controversial topic is this: What character- istics must a person display for reasonable suspicion to be established?

Clearly, not every person walking through an airport can be stopped. Thus, law enforcement officials must look for specific characteristics of drug couriers. As the Supreme Court observed in United States v. Mendenhall, “Much . . . drug traffic is highly organized and conducted by sophisticated criminal syndicates . . . And many drugs . . . may be easily concealed. As a result, the obstacles to detection . . . may be unmatched in any other area of law enforcement” (pp. 545–546). Further, one of the most significant impediments in the war on drugs is the “extraordinary and well-documented difficulty of identifying drug couriers” (Florida v. Royer, p. 519).

The drug courier profile is generally attributed to Paul Markonni, a DEA agent who identified a number of suspicious characteristics of likely drug couriers when he was assigned to a drug interdiction unit at the Detroit airport. That profile has since been described as an “informally compiled abstract of characteristics thought typical of persons carrying illicit drugs” (United States v. Mendenhall, p. 547). There is no single, nationally recognized drug courier profile or set of characteristics indicative of drug courier profiling. Instead, specific cases must be considered to ascertain which types of characteristics fit the drug courier profile.

The first drug courier profile case of note, United States v. Van Lewis (409 F. Supp. 535 [E.D. Mich. 1976]), listed several characteristics to be used in identifying drug couri- ers: (1) the use of small denominations of currency for ticket purchase; (2) travel to and from major drug import centers; (3) the absence of luggage or use of empty suitcases on trips that normally require extra clothing; and (4) travel under an alias. In a similar case, the Fifth Circuit Court, in Elmore v. United States (595 F.2d 1036 [5th Cir. 1979]), described these common characteristics of drug couriers:

(1) arrival from or departure to an identified source city; (2) carrying little or no luggage; (3) unusual itinerary, such as rapid turnaround time for a very lengthy airplane trip; (4) use of an alias; (5) carrying unusually large amounts of currency in the many thousands of dollars, usually on their person, or in briefcases or bags; (6) purchasing airline tickets with a large amount of small denomination currency; and (7) unusual nervousness beyond that ordinarily exhibited by passengers. (p. 1039, n. 3)

Some secondary characteristics of drug couriers were also identified in Elmore v. United States, including “(1) the almost exclusive use of public transportation, particularly taxi- cabs, in departing from the airport; (2) immediately making a phone call after deplaning; (3) leaving a false or fictitious call-back telephone number with the airline being utilized; and (4) excessively frequent travel to source or distribution cities” (p. 1039, n. 3).

Still other characteristics of drug couriers include unusual dress, age between 25 and 35, and extreme paleness consistent with being extremely nervous.3 Another study points to characteristics such as “not checking bags at the airport, not using identification

3 B. Wilson, “The War on Drugs: Evening the Odds through the Use of the Airport Drug Courier Profile,” Boston University Public Interest Journal 6 (1994): 202–232.

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tags on luggage, purchasing tickets on the day of a flight, exiting first or last from the plane, visually scanning the terminal for law enforcement, making no eye contact with airport personnel, walking quickly through the terminal while continuously checking over one’s shoulder, and quickly leaving the airport on arrival.”4 See Figure 6.6 for a fairly comprehensive list of the typical characteristics of drug couriers.

Landmark Cases

Reid v. Georgia (448 U.S. 438 [1980]) was one of the first Supreme Court cases to address drug courier profiling. The petitioner, Reid, arrived at the Atlanta airport on an early morning flight. A narcotics agent on duty at the time observed that Reid repeatedly looked over his shoulder at another man and that both were carrying shoulder bags. As the two men left the airport, the narcotics officer approached them and asked them for identification and to consent to a search. Reid tried to run away and, in doing so, left his bag behind, which turned out to contain cocaine. He was later apprehended and brought to trial on drug possession charges. He attempted to have the cocaine thrown out under the exclusionary rule, claiming that he had been unconstitutionally detained as he was leaving the airport with the other man.

Chapter 6 • Actions Based on Reasonable Suspicion 205

FIGURE 6.6 Typical Characteristics of Drug Couriers

1. Use small denominations of currency for ticket purchases 2. Travel to and from major drug import centers 3. Have no luggage or use empty suitcases on trips that normally require extra

clothing 4. Travel under an alias 5. Have an unusual itinerary, such as a rapid turnaround time for a very lengthy

airplane trip 6. Carry unusually large amounts of currency (i.e., many thousands of dollars) 7. Display unusual nervousness beyond that ordinarily exhibited by passengers 8. Use public transportation almost exclusively upon departing the airport 9. Immediately make a phone call after deplaning

10. Leave a false or fictitious call-back telephone number with the airline 11. Dress in an unusual manner 12. Are between 25 and 35 years old 13. Are extremely pale (consistent with being extremely nervous) 14. Do not use identification tags on luggage 15. Purchase tickets on the day of the flight 16. Exit first or last from the plane 17. Walk quickly through the terminal while continuously checking over his or her

shoulder 18. Quickly leave the airport on arrival

4 C. R. Williams and B. A. Arrigo, “Discerning the Margins of Constitutional Encroachment: The Drug Courier Profile in the Airport Milieu,” American Journal of Criminal Justice 24 (1999): 31–46.

Reid v. Georgia (448 U.S. 438 [1980])

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The trial court granted Reid’s motion to suppress the cocaine; however, the Georgia Court of Appeals reversed the lower court’s decision and ruled that the narcotics agent had performed a permissible stop based on the so-called drug courier profile. In its deci- sion, the Georgia Court of Appeals noted that Reid (1) had arrived from Fort Lauderdale, Florida, a place of origin for drugs; (2) was traveling at an unusual hour; (3) was attempting to conceal the fact that he was traveling with another person; and (4) was not traveling with any luggage, other than the shoulder bag (p. 441).

The U.S. Supreme Court granted certiorari, holding that “the judgment of the appellate court cannot be sustained insofar as it rests on the determination that the DEA agent lawfully seized the petitioner when he approached him” (p. 441). The Court went on to note that the agent “could not . . . have reasonably suspected the petitioner of criminal activity on the basis . . . that the petitioner preceded another person and occasionally looked backward at him” (p. 441). The other rea- sons for stopping Reid were also criticized by the Court because the unusual hour, lack of luggage, and place of origin “describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify the seizure” (p. 441). The Court declared that the DEA agent did not have reasonable suspicion to detain Reid.

By now, United States v. Mendenhall should be something of a familiar case; it was covered at length in defining the stop in stop-and-frisk. However, Mendenhall has also had important implications for drug courier profiling in the United States. In that case, DEA agents, who were “present for the [purpose] of detecting unlawful traffic in narcotics” (p. 545), observed Mendenhall in the Detroit airport. They approached her in the airport and identified themselves. They then asked Mendenhall for her identification and airline ticket. When she complied, they noticed that the plane ticket was in another name. At that point, the agents asked Mendenhall if she would accompany them to a private room and consent to a search of her bags. She was told that she had the right to decline, but she handed over her purse and agreed to the search. A female police officer then arrived to search Mendenhall’s person. When she removed her clothing, a package that appeared to contain heroin was revealed. The Supreme Court sanctioned this action and declared that a certain degree of deference should be given to law enforcement agents to inter- pret the circumstances in each case, based on their experience and expertise. The Court reasoned that an experienced law enforcement officer may be “able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer” (United States v. Mendenhall, p. 557).

DECISION-MAKING EXERCISE 6.9

An Application of Drug Courier Profiling

DEA agents at the Dallas/Fort Worth airport observed a woman exiting a plane that had just arrived from Miami. She was carrying a small bag on her shoulder and looking around as if she was expecting to meet another person. Still alone, she walked quickly into a restroom. When she came out, she went directly to a pay phone, where she made a phone call lasting 30 minutes. Finding her conduct suspi- cious, the DEA agents approached the woman, identified themselves, and asked if they could speak with her. The

woman appeared very nervous, and her voice cracked when she conversed with them. The agents asked for the woman’s identification and plane ticket. She furnished her plane ticket but stated that she had lost her identification. The agents asked how long she was going to stay in the Dallas/Fort Worth area. She replied that she would remain for one week, but one of the agents noticed that her ticket indicated that she would be leaving later that same day. Do the agents have justification to further detain the woman?

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Another significant drug courier profiling case decided by the Supreme Court is Florida v. Royer (460 U.S. 491 [1983]). In that case, two detectives at the Miami International Airport observed Royer, who had purchased a one-way ticket to New York under an assumed name. Believing that Royer displayed characteristics associated with the drug courier profile, the officers approached him. Royer produced his ticket and identification after being requested to do so. The officers did not return his ticket and identification and instead asked Royer to accompany them to a nearby room. One of the detectives retrieved the luggage that Royer had checked and brought it to the room. Royer produced a key for the suitcases, and upon opening one of them, marijuana was found. Royer was convicted for felony possession; however, the Florida Court of Appeals reversed the trial court’s decision, holding that the officers detained Royer without probable cause, which was required because of the intrusive nature of the stop.

The detectives argued that Royer fit the drug courier profile for a number of rea- sons. First, he was carrying luggage that appeared to be heavy. Second, he was young, dressed casually, and appeared nervous. Finally, he paid for his plane ticket in cash and did not complete the airline identification tag, opting instead to write only his name and destination on the tag. The court argued on appeal, however, that “any of these fac- tors relied upon by Miami police may have been as consistent with innocence as with guilt” (p. 492) and that the drug courier profile alone was insufficient to establish rea- sonable suspicion, much less probable cause, to detain Royer. The case worked its way up to the U.S. Supreme Court, and the Court upheld the appeals court decision. According to the Supreme Court, Royer was detained illegally, in part because the detectives did not indicate at any point that he was free to leave. Further, the Court argued that “the detention . . . was a more serious intrusion on his personal liberty than is allowable on mere suspicion of criminal activity. What had begun as a consensual encounter . . . escalated into an investigatory procedure in an interrogation room, and [Royer] . . . was under arrest” (p. 503).

In United States v. Sokolow (490 U.S. 1 [1989]), DEA agents stopped Sokolow upon his arrival at Honolulu International Airport and found a large quantity of cocaine in his carry-on luggage. In support of the stop, the agents noted that Sokolow (1) had paid $2,100 for his airline ticket with a roll of $20 bills; (2) traveled under an assumed name; (3) had flown in from a major “source city,” Miami; (4) had stayed in Miami for only 48 hours; (5) appeared nervous; and (6) did not check any luggage. The district court denied Sokolow’s motion to suppress the drugs, finding that the agents had reasonable suspicion to stop him in the airport. However, the court of appeals declared that the stop was illegal, a violation of the Fourth Amendment. The court relied on a two- pronged test to assess the legality of the stop. It required a showing that (1) there was “ongoing criminal activity” and that there were (2) “personal characteristics” of drug courier profiles. While the second prong would seem to have been met in this case, the appeals court decided that the first prong had not been met because the government did not offer “empirical documentation that the combination of facts at issue did not describe the behavior of significant numbers of innocent persons” (p. 2). In other words, the court of appeals found no evidence of ongoing criminal activity and thus ruled that the stop was in violation of the Fourth Amendment.

The U.S. Supreme Court reversed the appeals court decision. It held that the agents did have reasonable suspicion that Sokolow was engaged in the transportation of narcotics. In criticizing the two-pronged test used by the appeals court, the Supreme Court noted that the test “created unnecessary difficulty in dealing with one of the rel- atively simple concepts embodied in the Fourth Amendment” (p. 3). In reference to the suspicious conduct observed by the agents, the Court went on to note that “although each of these factors [e.g., paying $2,100 for a plane ticket with small denomination

United States v. Sokolow (490 U.S. 1 [1989])

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bills] is not by itself proof of illegal conduct and is quite consistent with innocent travel, taken together they amount to reasonable suspicion that criminal activity was afoot” (p. 4).

Race and Drug Courier Profiling

Critics of drug courier profiling have argued that the practice is racially discrimina- tory. One commentator has argued, for example, that “[a]lthough the DEA has refused to commit the entire profile to writing, the profile clearly contains a racial component.”5 In fact, in United States v. Taylor (956 F.2d 572 [6th Cir. 1992]), a case that went before the Sixth Circuit Court, an officer admitted that 75 percent of the persons detained through use of drug courier profiling were African Americans (p. 581, n. 1). In a strong dissent to that case, Judge Damon Keith wrote, “The disproportionate num- ber of African-Americans who are stopped indicates that a racial imbalance against African-Americans does exist and is implicitly sanctioned by the law enforcement agency. . . . We cannot allow law enforcement officers to cloak what may fairly be char- acterized as a racist practice in a generic drug profile that openly targets African- Americans” (pp. 581–582).

Those who argue that race is not a factor in profiling claim, perhaps accurately, that the profile targets minorities because they are, in fact, more likely to be drug couri- ers than nonminorities. Nevertheless, if a disproportionate number of minorities are

5 S. L. Johnson, “Race and the Decision to Detain a Suspect,” Yale Law Journal 93 (1983): 214–258, 234.

DECISION-MAKING EXERCISE 6.10

Terrorist Profiling

In 2004, two Arab gentlemen, Tarik Farag and Amro Elmasry, traveled from San Diego to New York’s JFK airport on American Airlines Flight 236. As soon as they deplaned at JFK, they were met by no less than 10 armed agents in para- military gear with guns and police dogs. They were ordered to raise their hands and were frisked, handcuffed, and whisked off to an interrogation room. The investigation yielded no evidence of wrongdoing. The men sued, arguing that their arrests were unjustified, but the government cited the following as justification for the airport detention (note that these facts were reported to the captain by two coun- terterrorism agents who were on the flight):

• At the beginning of the flight, despite sitting on oppo- site sides of the aisle, plaintiffs spoke to each other over the heads of other passengers in a mixture of Arabic and English;

• Elmasry made an allegedly “unusual” initial seat change “from a window seat . . . to a middle seat . . . between two other male passengers”;

• After Elmasry changed seats, he and Farag talked to each other “loudly” over the heads of other passen- gers in a mixture of Arabic and English;

• Elmasry looked at his watch when the plane took off, when the plane landed, and at other points during the flight;

• After the meal service, Elmasry “got out of his seat . . . , went into the aisle, leaned over to Farag, and spoke a ‘very short sentence’ to Farag in a mixture of Arabic and English”;

• Immediately thereafter, plaintiffs moved together to the back of the plane, and did not take their carry-on luggage with them;

• Plaintiffs got up to return to the front of the cabin at the very end of the flight, after the “fasten seatbelt” indicator was lit;

• Upon returning to the front of the plane, Farag did not sit in his original seat (17E), but rather, in Elmasry’s original seat (18A), which was located directly behind Smith; [and]

• After the plane landed, Elmasry took out his cellular phone and deleted five or six numbers (Farag v. United States, 2008 U.S. Dist. LEXIS 95331 [2008], pp. 23–24).

Is there merit to the government’s argument?

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stopped during profiling, a serious problem is posed—that of a self-fulfilling prophecy. One author’s observations regarding this matter are quite telling:

If the profile assumes that racial minorities are more likely than Whites to be couriers, then the percentage of minorities in the group of people stopped will be higher than the percentage of minorities in the overall pop- ulation. Even if minorities are in reality no more predisposed than Whites to serve as drug couriers, they will nevertheless appear to be more predis- posed, because they will make up a larger proportion of the pool of those persons stopped.6

The race issue in drug courier profiling has yet to be addressed by the Supreme Court, just as the use of profiling itself has yet to be decided. It is likely, however, that the Court, in the not too distant future, will have an opportunity to settle this controver- sial issue once and for all. For now, it cannot be said with complete certainty that race is a factor in drug courier profiling.

INVESTIGATIVE DETENTIONS

The Supreme Court has held that certain police station detentions are justifiable on less than probable cause. One type of investigative detention a stationhouse detention, is less intrusive than an arrest but more intrusive than a Terry stop. Stationhouse deten- tions are used in many locations for such purposes as obtaining fingerprints and pho- tographs, ordering lineups, administering polygraph examinations, and securing other types of evidence.

In Davis v. Mississippi (394 U.S. 721 [1969]), the Court excluded fingerprint evidence obtained from 25 rape suspects, but it did note that detention for fingerprint- ing could have been permissible if “narrowly circumscribed procedures” were in place. In other words, the Court suggested that to justify the detention, there had to be some objective basis for detaining a person, a clear investigation underway, and a court order stating that adequate evidence exists. In another case, Hayes v. Florida (470 U.S. 811 [1985]), the Court stated:

Our view continues to be that the line is crossed when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police sta- tion, where he is detained, although briefly, for investigative purposes. We adhere to the view that such seizures, at least where not under judicial supervision, are sufficiently like arrests to invoke the traditional rule that arrests may constitutionally be made only on probable cause. (p. 816)

The key in Hayes, however, is that the detention was not consensual. In cases in which consent is obtained, probable cause is not necessary. In short, a stationhouse detention for the purpose of fingerprinting is permissible when (1) there is reasonable suspicion to believe the suspect has committed a crime; (2) there is a reasonable belief that the fingerprints will inculpate or exculpate the suspect; and (3) the procedure is carried out promptly. (Note that the Supreme Court has not addressed stationhouse detentions not involving fingerprinting.)

6 T. Yin, “The Probative Values and Pitfalls of Drug Courier Profiles as Probabilistic Evidence,” Texas Forum on Civil Liberties and Civil Rights 5 (2000): 141–190, 151.

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Summary

1. DISTINGUISH BETWEEN A STOP AND A NONSTOP.

A number of specific conclusions can be drawn from the stop-and-frisk discussion in this chapter and from the introduction to reasonable suspicion presented in Chapter 3. First, a police/citizen encounter is not governed by the Fourth Amendment unless it is con- sidered a stop, which is one type of seizure. When the police activity in question rises to the level of a stop, then the Fourth Amendment applies, and the officer is required to have the appropriate level of justification for the stop to be legal.

Factors to consider in determining whether a stop has taken place include (1) whether the police action was threatening; (2) how long the detention lasted; (3) whether the person was physically detained or physi- cally touched by the police; (4) whether the detention took place in public view or removed from public view, such as in a private room; and perhaps most impor- tantly, (5) whether a reasonable person would, under the circumstances, have believed that he or she was free to leave. With regard to the last factor, it is not necessary that police communicate to the detainee that he or she is free to leave. A situation involving only brief questioning, then, is unlikely to be considered a stop, implicating the Fourth Amendment.

2. EXPLAIN WHEN A STOP-AND-FRISK IS PERMISSIBLE.

The Fourth Amendment generally requires that proba- ble cause be in place before a Fourth Amendment seizure can occur. However, the Supreme Court in Terry ruled that a person can be seized on less than probable cause to arrest. The second conclusion, then, focuses on when this can occur. Generally, a seizure based on less than probable cause (i.e., reasonable sus- picion) can occur under three circumstances: (1) when the officer observes a person engaging in unusual activity and can point to specific, articulable facts that contribute to reasonable suspicion that criminal activ- ity is afoot; (2) when the officer receives information from an informant who is reliable; and (3) when the officer receives a communication from another police department that the person to be stopped is suspected of involvement in criminal activity.

3. SUMMARIZE STOP-AND-FRISK PROCEDURE.

When reasonable suspicion is in place and a police offi- cer is entitled to make a stop, he or she must make rea- sonable inquiries. These inquiries should be limited to testing the officer’s suspicion. If the questioning

becomes unreasonable, excessive, or too intrusive, prob- able cause may be required. Then, if the officer reason- ably believes, during the course of questioning, that the person is armed and dangerous, he or she can frisk the person. Factors used in determining whether a frisk is reasonable include (1) whether the person has a reputa- tion for dangerousness; (2) the type of criminal activity in which the person is presumably involved; (3) visual cues that suggest the presence of a weapon; and/or (4) suggestive or furtive gestures on the part of the suspect.

Frisks are limited. If one is authorized because the officer reasonably fears for his or her safety, it is limited to a patdown of the person’s outer clothing. Recent decisions, however, permit a limited search of the area immediately surrounding the person, such as in automobiles and other situations in which several people may be found. Weapon-like objects and con- traband can be removed during the course of the frisk, but both must be immediately apparent to the frisking officer. If a weapon or other item is not imme- diately apparent, then the officer risks exceeding the limits of a frisk, especially if he or she feels, gropes, or otherwise manipulates the object in an attempt to de- termine what it is. Such activity may arise to the level of a search, requiring probable cause.

4. EXPLAIN THE RELEVANCE OF DRUG COURIER PROFILING IN THE STOP-AND-FRISK CONTEXT.

Drug courier profiling remains a controversial practice. While the courts do commonly recognize characteristics of drug courier profiles, a number of cases concerning drug courier profiling have reached the Supreme Court. Even so, the Court has yet to rule on the constitutional- ity of drug courier profiling. Racial discrimination is also at issue in drug courier profiling. There is no short- age of criticism concerning the role of race in profiling, but since the Supreme Court has not decided on the legality of profiling, it is unlikely that racially motivated investigative stops, to the extent they exist, will cease.

5. COMPARE AND CONTRAST INVESTIGATIVE DETENTIONS WITH STOP-AND-FRISK.

Investigative detentions, also called a stationhouse detention, are less intrusive detentions than arrests but more intrusive than a Terry stop. Stationhouse detentions are used in many locations for such pur- poses as obtaining fingerprints and photographs, ordering lineups, administering polygraph examina- tions, and securing other types of evidence.

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Key Terms

drug courier profiling 202 frisk 192 investigative detention 208 stop 185

Key Cases

Stop

• Terry v. Ohio, 392 U.S. 1 (1968) • United States v. Mendenhall, 446 U.S. 544 (1980) • California v. Hodari D., 449 U.S. 621 (1991) • Florida v. Bostick, 501 U.S. 429 (1991) • United States v. Montoya De Hernandez, 473 U.S. 531 (1985)

Frisk

• Pennsylvania v. Mimms, 434 U.S. 106 (1977) • Ybarra v. Illinois, 444 U.S. 85 (1979) • Minnesota v. Dickerson, 508 U.S. 366 (1993) • Sibron v. New York, 392 U.S. 40 (1968)

Evolving Nature of Stop-and-Frisk

• Delaware v. Prouse, 440 U.S. 648 (1979) • Maryland v. Buie, 494 U.S. 325 (1990) • Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) • Kolender v. Lawson, 461 U.S. 352 (1983)

Drug Courier Profiling

• Reid v. Georgia, 448 U.S. 438 (1980) • United States v. Mendenhall, 446 U.S. 544 (1980) • United States v. Sokolow, 490 U.S. 1 (1989)

Review Questions

1. Why is it important to view a stop and a frisk as two separate acts?

2. Assuming a police officer has reasonable suspicion to stop a person, what must the officer do before stopping him or her?

3. Define a stop. 4. Why is the duration of a stop important? 5. Can effects be seized? Explain. 6. Summarize the permissible grounds for a frisk. 7. Summarize the Supreme Court’s view on the proper

scope of a frisk. 8. In what ways has stop-and-frisk law been expanded?

Summarize pertinent cases.

9. Why is it important to distinguish between theory and reality when discussing stop-and-frisk?

10. What is drug courier profiling? 11. Identify several characteristics of drug couriers. 12. Summarize the Supreme Court’s view on drug courier

profiling, citing relevant cases. 13. In what ways is race relevant to the drug courier profile? 14. What are investigative detentions? How do they differ

from stops? 15. Reasonable suspicion is not mentioned in the Fourth

Amendment. Has the Supreme Court overstepped its authority by essentially creating this level of justifica- tion? Why or why not?

Web Links and Exercises

1. Stop-and-frisk: Read more about police actions that fall short of arrest.

URL (read the article called “Police Intervention Short of Arrest”): http://www.fbi.gov/stats-services/publica- tions/law-enforcement-bulletin/2006-pdfs/nov06leb. pdf (accessed February 16, 2011).

2. Traffic stops: Read about traffic stops and the risks. What does it mean to “take AIM” in traffic stops?

Suggested URL: http://www.fbi.gov/stats-services/publi- cations/law-enforcement-bulletin/2008-pdfs/ may08leb.pdf (accessed February 16, 2011).

3. Drug courier profiling: Identify additional characteris- tics of drug couriers. Which of these may lead police to detain innocent persons?

Suggested URL: http://www.cass.net/~w-dogs/lcour.htm (accessed February 16, 2011).

4. Terrorist profiling: Read about terrorist profiling. Suggested URL (there is a section in the report at this URL):

http://www.loc.gov/rr/frd/pdf-files/Soc_Psych_of_ Terrorism.pdf (accessed February 16, 2011).

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LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Summarize the issues involved in warrantless searches and seizures. � Explain the search incident to arrest doctrine. � Explain the concept of hot pursuit. � Summarize the special issues involved in automobile searches. � Summarize the plain view doctrine. � Describe the situations in which warrantless arrests may be made.

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149

CHAPTER OUTLINE

Searches and Arrests without Warrants

C H

A P

T E

OUTLINE

Introduction: Moving beyond the Warrant Requirement

Warrantless Searches Searches Incident to Arrest

Restrictions Timing of the Search Scope of the Search

Searches Based on Exigent Circumstances Hot Pursuit Escape and Endangerment to Others Absent

Hot Pursuit Evanescent Evidence Offense Seriousness and Exigent Circumstances

Automobile Searches Rationale Requirements Scope of the Search Other Actions Sanctioned in a Traffic Stop

When Other Doctrines Govern Searches of Automobiles

Racial Profiling Plain View Searches

The Lawful Access Requirement The “Immediately Apparent” Requirement The Role of Inadvertency Plain Touch, Feel, and Smell Plain View as a Fallback Measure

Warrantless Arrests Arrests Based on Exigent Circumstances Arrests in Public Places

Arrests for Minor Offenses

Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

Moving beyond the Warrant Requirement

If it was not for exceptions to the warrant requirement, the Fourth Amendment would take substantially less effort to understand. At the same time, however, the many exceptions to the Fourth Amendment’s warrant requirement are what make the Fourth Amendment interesting. The so-called warrantless searches and seizures discussed in this chapter are based on Supreme Court decisions, in which it was believed that to require a warrant would constitute an undue burden on law enforcement officials. Still, though, a warrant is always preferable; whenever circumstances permit, one should be obtained.

The exceptions to the Fourth Amendment’s warrant requirement considered in this chapter are those requiring probable cause. This chapter’s first main section covers warrantless searches, but warrantless arrests are also considered. There are other exceptions to the warrant requirement that do not require probable cause; they are

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Chimel v. California (395 U.S. 752 [1969])

discussed in the next two chapters. Chapter 6 examines the law of stop-and-frisk, and Chapter 7 looks at searches and seizures based on administrative justification as well as consent.

WARRANTLESS SEARCHES

Broadly, there are four types of warrantless searches that require probable cause. They are called exceptions to the warrant requirement because the actions at issue do not need to be supported by a search warrant. The four types of warrantless searches are (1) searches incident to (i.e., following) arrest; (2) searches in the presence of exigent cir- cumstances; (3) searches involving automobiles; and (4) searches based on the “plain view” doctrine. Other warrantless searches exist, such as consent searches, but they do not require probable cause. One may be inclined to put “frisks” in the warrantless search category, but they are not technically “searches.” Consent, frisks, and other warrantless actions that require less than probable cause are taken up in the next two chapters.

Searches Incident to Arrest

Imagine a situation in which a police officer has lawfully (i.e., with probable cause) arrested a suspect, is leading him away, and observes the suspect reach into his pocket. What would be going through the police officer’s mind as he or she observed this behavior? Scenarios like this illustrate the reasoning behind the search incident to arrest exception. Namely, police officers must be permitted to engage in a search of a suspect incident to arrest (i.e., following an arrest). It would be impractical, even dangerous, to wait for a warrant before conducting such a search.

The leading case in the area of incident searches is Chimel v. California (395 U.S. 752 [1969]). As the Supreme Court stated, a search incident to arrest is permitted “to remove any weapons that the [arrestee] might seek to use in order to resist arrest or effect his escape” and to “seize any evidence on the arrestee’s person in order to prevent its con- cealment or destruction” (p. 763).

RESTRICTIONS The most basic requirement concerning searches incident to arrest— and one that often goes overlooked—is that the arrest must be lawful. When the arrest itself is not lawful (i.e., when it is not based on probable cause), any search that follows is unlawful (see Draper v. United States, 358 U.S. 307 [1959]).

Another important threshold issue with regard to searches incident to arrest con- cerns the nature of the offense. Courts have grappled with the question as to whether a search should be permitted when the offense on which the arrest is based is not serious. Because the rationale of the exception is to provide officer safety, then is officer safety likely to be compromised when a minor offense, as opposed to a serious offense, justi- fies the arrest?

Two important Supreme Court cases have sought to answer these questions. First, in United States v. Robinson (414 U.S. 218 [1973]), the Court reversed a lower court’s deci- sion that only a patdown of the suspect’s outer clothing was permissible following an arrest for driving with a revoked license. And in a companion case to Robinson, Gustafson v. Florida (414 U.S. 260 [1973]), the Court upheld the search of a suspect after his arrest for failure to have his driver’s license.

The Supreme Court offered two reasons for its opinions in Robinson and Gustafson. First, according to Chief Justice Rehnquist, “It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical

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Terry-stop” (United States v. Robinson, p. 234). Second, the Court believed a bright- line rule was in order given the stakes involved (i.e., officer safety): “A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search” (p. 235).

Thus, any arrest justifies a warrantless search incident to that arrest. A key restric- tion, however, is that the arrest must result in a person being taken into custody. This was the ruling from Knowles v. Iowa (525 U.S. 113 [1998]). In that case, a police officer stopped a person for speeding, and rather than arresting him (which the officer had justification to do), the officer issued him a citation. Then, the officer conducted a search of the car and found a marijuana pipe. The Court noted that traffic stops rarely pose the same threat to officer safety as arrests. This is not to suggest, however, that police officers can- not search people incident to lawful arrest for minor vehicle-related infractions. If the authority to arrest is present, an incident search is permissible. The key restriction is that the person must actually be arrested and taken into custody. Otherwise, the search will not conform with Fourth Amendment requirements.

TIMING OF THE SEARCH Another key restriction pertaining to searches incident to arrest has to do with the timing of the search. In particular, probable cause to arrest must precede the warrantless search (Sibron v. New York, 392 U.S. 40 [1968]). The reason for this is to restrict officers from engaging in “fishing expeditions,” or searches based on less than probable cause that would presumably result in probable cause to make an arrest. Note, however, that if probable cause to arrest is in place, the officer is not required to formally arrest the suspect before engaging in the search (see Rawlings v. Kentucky, 448 U.S. 98 [1980]).

If the search follows an arrest, then it must take place soon after the arrest. In legal parlance, the search must be contemporaneous to the arrest. In Preston v. United States (376 U.S. 364 [1964]), the case that established this rule, Justice Black observed that the “justifications [for the search incident to arrest] are absent where a search is remote in time or place from the arrest” (p. 367). In Preston, police officers arrested the occupants of a car and took them to jail. After this, the officers searched the car, which had been towed to an impound lot. The Supreme Court noted that the possibilities of destruction of evidence and danger to the officers were no longer in place, as the suspects were no longer even present (see also Chambers v. Maroney, 399 U.S. 42 [1970]).

Note that while a noncontemporaneous search is not justified under the search incident to arrest exception, it is authorized under the automobile exception discussed later. Also, the Supreme Court authorizes inventory searches of automobiles that have been lawfully impounded. Inventory searches are discussed later, as well.

There is one significant exception to the contemporaneousness requirement. In United States v. Edwards (415 U.S. 800 [1974]), the Supreme Court, in a 5 to 4 decision, upheld the warrantless search and seizure of an arrestee’s clothing 10 hours after his arrest, during which time he was in jail. The Court noted that “searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention” (p. 803). The Court did point out, how- ever, that the taking of the individual’s clothing at the time of the arrest would have been impractical because it “was late at night[,] no substitute clothing was then avail- able for Edwards to wear, and it would certainly have been unreasonable for the police to have stripped respondent of his clothing and left him exposed in his cell throughout the night” (p. 805). Thus, the Edwards decision established the rule that a noncontempo- raneous search incident to arrest is permissible when (1) an immediate search is nearly impossible and (2) the exigency still exists at the time of the later search.

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Knowles v. Iowa (525 U.S. 113 [1998])

Preston v. United States (376 U.S. 364 [1964])

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SCOPE OF THE SEARCH The case of United States v. Rabinowitz (339 U.S. 56 [1950]) was the first to set limits on the scope of a search incident to arrest. In that case, the officers, armed with a valid arrest warrant, arrested a man and then conducted a warrantless search of his one-room business, including the desk, safe, and file cabinets. The Supreme Court upheld the search because the room “was small and under the immedi- ate and complete control of the respondent” (p. 64).

Nearly 20 years after Rabinowitz, however, the Supreme Court voted to over- turn its earlier decision. In the case of Chimel v. California, the Court argued that the Rabinowitz decision had been construed to mean that “a warrantless search ‘incident to a lawful arrest’ may generally extend to the area that is considered to be in the ‘possession’ or under the ‘control’ of the person arrested” (p. 759). Further, the Court noted that the Rabinowitz standard gave police “the opportunity to engage in searches not justified by probable cause, [but] by the simple expedient of arranging to arrest suspects at home rather than elsewhere” (p. 767). To get around this prob- lem, Justice Stewart argued in favor of a new armspan rule. In the Court’s words, a search incident to arrest would now be limited to the area “within [the] immediate control” of the person arrested—that is, “the area from within which he might have obtained either a weapon or something that could have been used as evidence against him” (p. 768).

An interesting twist on the aforementioned cases can be found in Washington v. Chrisman (455 U.S. 1 [1982]). In that case, an officer stopped a student on suspicion of drinking under age, an action that the Court considered an arrest. The officer asked the student for his identification and followed him to his dorm room, where the student’s identification was presumably located. While at the student’s room, the officer observed in plain view marijuana and drug paraphernalia. The officer seized the evidence. The Supreme Court upheld the seizure of the evidence, stating that “[e]very arrest must be presumed to present a risk of danger to the arresting officer. . . . Moreover, the possibility that an arrested person will attempt to escape if not properly supervised is obvious” (p. 7). Thus, “it is not unreasonable, under the Fourth Amendment for an officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest” (p. 7).

The cases discussed thus far have focused narrowly on the scope of the incident search exception with reference to the arrestee. What if another person besides the arrestee poses a threat to the police? This concern has led to several exceptions to the armspan rule.

First, in Maryland v. Buie (494 U.S. 325 [1990]), the Supreme Court expanded the scope of the incident search in two ways. It held that the police may, as part of a search incident to arrest, look in areas immediately adjoining the place of arrest for other per- sons who might attack the officers; no justification is required. The key, however, is that

DECISION-MAKING EXERCISE 5.1

Timing of a Search Incident to Arrest

A locked suitcase was transported by police officers to the po- lice station, after having been lawfully seized from the open trunk of a parked automobile during the arrests of those who were in its possession. After being back at the police station for over an hour, the officers opened the suitcase. They acted

without a search warrant and without the consent of the arrested persons, but they did have probable cause to believe that the container held contraband. In fact, the suitcase contained large amounts of marijuana. Can this be considered a valid search incident to arrest? IS

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such a search must occur incident to arrest. Next, the Court held that at any point up to the time the arrest is completed, the police may engage in a protective sweep (i.e., “a cursory visual inspection of those places in which a person might be hiding”), but reasonable suspicion must exist for such a sweep to be justified. Thus, no justification is required after arrest, but reasonable suspicion is required to engage in a sweep up to the point of the arrest.

Aside from the possible danger to police officers from “confederates,” there is the potential for such third parties to engage in the destruction of evidence. Only one Supreme Court case appears to address this issue: Vale v. Louisiana (399 U.S. 30 [1970]). In that case, police officers had warrants authorizing the arrest of the defendant. While engaged in surveillance of the house, the officers observed the defendant come out of the house and engage in what appeared to be a drug sale. They arrested the defendant outside the home but then went back inside and searched it, according to the officers, because two of the defendant’s relatives had arrived at the house in the meantime and could have destroyed evidence. Vale was actually a case concerning exigent circum- stances (see later in this chapter), and the Court reversed the Louisiana Supreme Court’s decision that upheld the search. But, in fact, the Court’s opinion was not partic- ularly instructive. It stated, in relevant part, that “no reason, so far as anything before us appears, to suppose that it was impracticable for [the officers] to obtain a search war- rant as well” (p. 35), but it did not expressly state that related searches would always be unconstitutional. Indeed, several lower courts have upheld warrantless searches of homes for evidence after arrest on less than probable cause (e.g., United States v. Hoyos, 892 F.2d 1387 [9th Cir.1989]; United States v. Rubin, 474 F.2d 262 [3rd Cir. 1973]).

Another type of warrantless search of a house following a lawful arrest has been authorized based on the need to secure the premises, usually pending the procural of a search warrant. Thus, if the police believe another person or persons are in the house and could potentially destroy evidence, the house may be secured but not searched until a warrant has been obtained. This was the decision reached in Segura v. United States (468 U.S. 796 [1984]). In that case, the Supreme Court, in another 5 to 4 decision, declared “that where officers, having probable cause, enter premises . . . , arrest the occupants . . . and take them into custody and, for no more than the period here involved [19 hours in this case], secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment’s proscription against unreasonable seizures” (p. 798).

It is appropriate at this juncture to note that the Court has authorized the police to rely on the incident search exception to engage in searches well beyond the arrestee’s armspan—and when no threat exists from people sympathetic to the arrestee. In partic- ular, the Supreme Court has held that officers may engage in a warrantless, suspicion- less search of a car and containers within it following the lawful arrest of the car’s driver (New York v. Belton, 453 U.S. 454 [1981]) but “only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense” in question (Arizona v. Gant, No. 07-542 [2009]). This issue is discussed at greater length later in this chapter in the section “Automobile Searches.”

Summary. A search incident to arrest may be conducted without a warrant, but it is subject to four restrictions. First, the arrest must be based on probable cause and result in custodial detention. Second, the search must follow the arrest closely in time (i.e., be contemporaneous). Third, the police must limit their search to (1) the person arrested and any containers discovered from that search; (2) the arrestee’s immediate grabbing area; (3) a protective sweep of the premises without justification following an arrest but with reasonable suspicion leading up to the arrest; and/or (4) securing

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the premises, if they have a reasonable belief that evidence may be destroyed by someone sympathetic to the arrestee (see Figure 5.1). Finally, the premises to be searched can be secured prior to procural of a warrant, but reasonable suspicion is required. Figure 5.2 presents the Gallatin, Tennessee, Police Department’s policy for a search incident to arrest.

FIGURE 5.2 Search Incident to Arrest Policy (Gallatin, TN, Police Department)

9.7.2 Incident to Arrest

When an officer places a person under arrest, the officer will conduct a thorough search of the person and the area in his/her immediate reach. All items on the person of the subject will be removed and secured by the officer. The search of the immedi- ate reach of the subject is intended to disclose weapons and any possible evidence. If these kinds of items are found, they may also be secured by the officer and placed into evidence. A search incident to arrest will be conducted only after the subject has been placed in restraints (i.e., handcuffs). Whenever possible, the search will be conducted by two officers, one conducting the search, the other providing cover. The search should begin in the immediate area around the subject’s hands, including an inspection of the sub- ject’s waistband. The officer should then search the subject methodically by searching one-half of the subject’s body from head to foot and then returning to the top of the head and search the other side of the subject’s body in the same manner. Only by searching a subject in such a methodical manner will an officer ensure his/her safety in knowing that the subject is not in possession of any weapons. This method for searching an individual incident to an arrest is only offered as one way to search a subject. Under no circumstances is this method considered as the only option an officer has in searching a subject; however, it is a method that has been demonstrated to be effective when used consistently. Any method is acceptable as long as the search is thorough, complete, and effective in discovering weapons and evidence that are occasionally concealed on a subject’s person.

Source: From General Directives Manual, Gallatin, Tennessee, Police Department (December 28, 1999).

Used courtesy of the Gallatin Police Department.

FIGURE 5.1 Permissible Scope of a Search Incident to Arrest (assuming a valid arrest)

Level of Intrusion Justification Required

Search of arrestee None

Search of arrestee’s grabbing area None

Protective sweep Reasonable suspicion that confederates are present

Secure residence Reasonable suspicion to fear destruction of evidence

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DECISION-MAKING EXERCISE 5.2

Proper Scope for a Search Incident to Arrest

Two police officers arrived at Bobby Sheen’s house with a valid warrant for his arrest. The officers were informed by a nosy neighbor that two of Sheen’s accomplices were in the house with him. The officers knocked, announced their pres- ence, and entered the house. They encountered Sheen as he

was descending the stairs. He was placed under arrest. Immediately after the arrest, one of the officers went up- stairs and found drug paraphernalia on a nightstand. May this evidence be lawfully seized? What if the drug parapher- nalia had been found in a drawer instead?

Searches Based on Exigent Circumstances

As indicated earlier, the exceptions to the search warrant requirement are premised on the impracticality of obtaining a warrant. Perhaps no exception illustrates this better than the exigent circumstances exception. Simply put, when the exigencies, or emer- gencies, of the situation require the police to act immediately at the risk of danger to themselves, danger to others, the destruction of evidence, or the escape of the suspect, it would be unreasonable to require the police to take time to obtain a warrant.

Generally, three types of exigencies are recognized by the courts as authorizing the police to act without a warrant: (1) hot pursuit; (2) likelihood of escape or danger to others absent hot pursuit; and (3) evanescent evidence. Despite the fact that these exceptions allow the police to act without a warrant, probable cause is still required. For example, probable cause that the person being pursued is the suspect is required before the police can enter a home or building without a warrant to arrest him or her.

HOT PURSUIT The Supreme Court first recognized the hot pursuit exception in the case of Warden v. Hayden (387 U.S. 294 [1967]), in which the police were called by taxicab drivers who reported that their taxi company had been robbed. The police followed the suspect to a house, where they were granted entry by the suspect’s wife. The suspect was upstairs in the house, pretending to be asleep. While searching the house for the suspect, the police found and seized clothing, a shotgun, and a pistol, all of which were used against the suspect at trial. The Court found the warrantless entry reasonable because the “exigencies of the situation made that course imperative” (p. 298). Several reasons were offered for the decision. First, Justice Brennan stated that “[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely danger their lives or the lives of others” (pp. 298–299). Also, “[s]peed . . . was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape” (p. 299). Despite the sweeping language from the Hayden decision, the Supreme Court has imposed five restrictions on searches and seizures premised on hot pursuit.

• Hot pursuit permits warrantless entry only when, first, the police have probable cause to believe that the person they are chasing has committed a crime and is on the premises entered.

• The police are also required to have reason to believe the suspect will escape or that further harm, either to evidence or to other people, will occur if the suspect is not immediately apprehended. With regard to this second restriction, one court has observed that “[a] hot pursuit, by itself, creates no necessity for dispensing with a warrant” (State v. Wren, 115 Idaho 618 [1989], p. 625). Similarly, the Ninth Circuit has stated that police officers must reasonably believe (1) “that the sus- pect either know[s] or will learn at any moment that they are in immediate

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Minnesota v. Olson (495 U.S. 91 [1990])

Welsh v. Wisconsin (466 U.S. 740 [1984])

danger of apprehension”; (2) that “evidence is being currently removed or destroyed and it is impractical to advert the situation without immediately arresting the suspects or seizing the evidence”; or (3) that “a suspect is currently endangering the lives of themselves or others” (United States v. George, 883 F.2d 1407 [9th Cir. 1989]).

• Although it often goes without saying, the police must begin hot pursuit from a lawful starting point. If, for example, officers are unlawfully on someone’s private property, they will not succeed in claiming hot pursuit to justify any further warrantless action. However, in United States v. Santana (427 U.S. 38 [1976]), the Supreme Court upheld the warrantless arrest of a woman in her house when the police observed a crime on private property from a public vantage point. In that case, police officers observed Santana standing in the open doorway of her house with a brown paper bag, which they had probable cause to believe contained narcotics. They pursued her into the house and arrested her. This decision sug- gests that the police can pursue from a public vantage point a suspect whom they observe on private property.

• The hot pursuit doctrine applies only to serious offenses, including felonies and some misdemeanors (see, e.g., Welsh v. Wisconsin, 466 U.S. 740 [1984]). This restric- tion on the hot pursuit doctrine—and, indeed, on exigent circumstance searches in general—is perhaps the most important one. As such, it is treated in a section by itself later.

• Generally, the scope of a search based on hot pursuit is broad. In Hayden, for exam- ple, the Supreme Court stated, “The permissible scope of search must, at the least, be as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape” (Warden v. Hayden, p. 299). However, the search must be “prior to or immediately contemporaneous with” the arrest of the suspect. Also, officers may only search where the suspect or weapons might reason- ably be found. A simple rule of thumb, then, is that the nature of the exigency defines the scope of the search. Another rule of thumb with regard to hot pursuit is that if the police have a reasonable amount of time to obtain a warrant, they should always do so. In Welsh, for example, Justice Brennan argued that the government’s “claim of hot pursuit . . . [was] . . . unconvincing because there was no immediate or continuous pursuit of the petitioner from the scene of [the] crime” (Welsh v. Wisconsin, p. 753).

ESCAPE AND ENDANGERMENT TO OTHERS ABSENT HOT PURSUIT Hot pursuit is justi- fied, as just discussed, when, among other things, the suspect may escape or inflict harm on police officers or others. In some situations, however, a suspect can potentially escape or inflict harm absent hot pursuit. In Minnesota v. Olson (495 U.S. 91 [1990]), for example, the prosecution sought to justify a warrantless entry and arrest of a suspect in a duplex that the police had surrounded. There was probable cause to believe that Olson, the man in the duplex, had been the driver of a getaway car involved in a robbery/murder the day before. The Supreme Court ruled that the officers acted uncon- stitutionally under the circumstances because Olson was only the driver, not the murder suspect, and the weapon had been recovered, which diminished the urgency of the situation. In addition, it was unlikely Olson would escape because the building was surrounded. On its face, then, this case is not useful on this point. However, the Court seemed to suggest that had Olson not been the driver (i.e., had been the murderer), had the weapon not been recovered, and had the building not been fully surrounded, the warrantless action would have been lawful.

A more recent case, Brigham City v. Stuart (547 U.S. 398 [2006]) brought clarifica- tion. In that case, police were called to a house that received complaints about a loud party. On arriving at the scene, officers witnessed a fight involving four adults and one

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juvenile. One of the adults hit the juvenile. The officers announced their presence, but they couldn’t be heard above the commotion inside, so they entered without a warrant. In a unanimous decision, the Supreme Court held that such warrantless entries are con- stitutionally permissible so long as the police have an objectively reasonable basis to believe the occupant is “seriously injured or threatened with such injury.”

EVANESCENT EVIDENCE In situations in which the search incident to arrest or hot pur- suit exceptions do not apply, the Court has recognized an additional exception to the warrant required, one that permits warrantless searches for evanescent evidence (i.e., disappearing evidence). This can include evidence inside a person, as well as a house, a paper, or an effect.

The best example of vanishing or disappearing evidence inside a person is alcohol in the blood. In Breithaupt v. Abram (352 U.S. 432 [1957]), the Court upheld the warrant- less intrusion (via a needle) into a man’s body for the purpose of drawing blood to see if he had been drinking. The key in this case, however, was that medical personnel had conducted a routine blood test. The majority noted “that the indiscriminate taking of blood under different conditions or by those not competent to do so” (p. 438) would not be allowed. (Indeed, this is why Breithaupt v. Abram is an isolated case; police officers rarely, if ever, draw blood from suspects. Breathalyzers usually provide sufficient evidence of intoxication.)

The Breithaupt decision also established that warrantless searches for evanescent evidence are permissible only when (1) there is no time to obtain a warrant; (2) there is a “clear indication” that the search will result in obtaining the evidence sought; and (3) the search is conducted in a “reasonable manner.” In support of the reasonable manner requirement, the Court offered the following from a later decision, Schmerber v. California (384 U.S. 757 [1966]):

The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interest require law offi- cers to suffer the risk that such evidence may disappear unless there is an immediate search. (pp. 769–770)

In Rochin v. California (342 U.S. 165 [1952]), a case in which the police used a stomach pump to obtain evidence from a man’s stomach, the Court declared that a due process violation occurred and that the officers’ conduct shocked the conscience. The reason was that the police, not medical personnel, extracted the evidence. Another view is that the use of a stomach pump falls somewhat short of a routine medical procedure.

DECISION-MAKING EXERCISE 5.3

Are Exigent Circumstances Present?

An officer attempted to stop a man for speeding 73 miles per hour in a 55-mile-per-hour zone. Instead of stopping, the man sped away and led the officer (and others who quickly joined) on a high-speed pursuit down two-lane roads at speeds of nearly 90 miles per hour. After several unsuc- cessful attempts to stop the fleeing car, one of the pursuing

officers deliberately rammed the fleeing suspect’s car, caus- ing it to crash. The suspect was severely injured and ren- dered quadriplegic. Now he is suing under Section 1983 (see Chapter 2), alleging that the officer who rammed his car used excessive force to effect an unreasonable seizure under the Fourth Amendment. Should his lawsuit go forward?

Breithaupt v. Abram (352 U.S. 432 [1957])

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Cupp v. Murphy (412 U.S. 291 [1973])

As for the clear indication requirement, the Court has been somewhat flexible. For example, in United States v. Montoya de Hernandez (469 U.S. 1204 [1985]), the Court treated the clear indication requirement from Breithaupt as being identical to the reasonable suspicion standard set forth in Terry v. Ohio. This case involved the deten- tion for several hours of a woman who was suspected of smuggling narcotics in her alimentary canal.

Finally, it is important to remember that, like the hot pursuit exception, the exigency used to justify a warrantless search for evanescent evidence must be imme- diate. In other words, there must be good reason to believe that an immediate search will result in the seizure of the evidence in question. An example is Cupp v. Murphy (412 U.S. 291 [1973]). In that case, a man who had been informed of his wife’s stran- gulation volunteered to come to the police station for questioning. While he was at the station, officers observed what appeared to be dried blood on the man’s finger- nails. The officers asked if they could take a scraping from his fingernails, and the man refused. He then started rubbing his hands behind his back and placing them in his pockets. At that point, the officers forcibly removed some of the material from under the man’s fingernails. The Court upheld this action on the grounds that the police had probable cause to believe that “highly evanescent evidence” was in the process of being destroyed.

Recently, in Kentucky v. King (No. 09-1272 [2011]), the Supreme Court held that police can make a forcible warrantless entry into a private residence if they have reason to believe evidence is being destroyed. In that case, officers smelled marijuana outside an apartment, knocked loudly, and announced their presence. They then heard what they believed was the sound of evidence being destroyed. They announced their intent to enter, kicked in the door, and found drugs in plain view—and other evidence during the course of a protective sweep. The Supreme Court ruled that the evidence was admissible.

In certain rare situations, the police may have reason to suspect that evidence may be lost or destroyed not because of the actions of a person (the suspect or the suspect’s confederates) but because of other causes. In United States v. Chadwick (433 U.S. 1 [1977]), for example, the Supreme Court noted that a warrant would not be required to search a footlocker if the officers believed that it contained evidence that would lose its value unless the footlocker were opened at once or if the officers had reason to believe that the footlocker contained explosives or other inherently dangerous items.

The American Law Institute’s Code of Pre-Arraignment Procedure summarizes the law concerning exigencies. Section 206.5 of the code provides that warrantless entries based on reasonable cause are permissible when (1) individuals are in imminent danger of death or serious bodily harm; (2) items are present that are imminently likely

DECISION-MAKING EXERCISE 5.4

Immediacy and Evanescent Evidence

A motor home that federal drug agents believed to contain a methamphetamine laboratory was parked in a secluded area near a river. The agents maintained visual surveillance throughout the afternoon. Around 4 p.m., one of the agents smelled chemicals “cooking.” Shortly after that, the agents observed a man dash out of the motor home, gasping for air. In light of this incident, the agents decided to search the

motor home. They ordered all of the occupants out of the motor home and placed them under arrest. The agents then entered the motor home to see if any other people were inside, to turn off any cooking apparatus, and to inventory the contents. They found a methamphetamine laboratory behind a drawn curtain at the back of the motor home. Was this action justified? IS

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Chapter 5 • Searches and Arrests without Warrants 159

to burn, explode, or otherwise cause death, serious bodily harm, or destruction of property; and/or (3) items subject to seizure are present that will cause or be used to cause death or serious bodily injury if not immediately seized.

OFFENSE SERIOUSNESS AND EXIGENT CIRCUMSTANCES The Supreme Court has also noted that the seriousness of the offense for which the warrantless arrest is to be made may be relevant in determining whether exigent circumstances are present. For exam- ple, in Welsh v. Wisconsin, a witness one night reported that an automobile was being driven erratically. Eventually, the car swerved off the road and stopped in a field. The driver walked away before police could arrive at the scene. When they did arrive, the police checked the registration of the car and found out it belonged to Welsh. They went to Welsh’s house, gained entry, and arrested Welsh without a warrant. The Supreme Court held that the warrantless nighttime entry of a suspect’s home to make an arrest for a nonjailable offense is a violation of the Fourth Amendment:

Before government agents may invade the sanctity of the home, it must demonstrate exigent circumstances that overcome the presumption of unrea- sonableness that attaches to all warrantless home entries. An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made . . . [A]pplication of the exigent circumstances exception in the context of home entry should rarely be sanctioned when there is probable cause that only a minor offense has been committed. (p.750)

The majority also cited another case, McDonald v. United States (335 U.S. 451 [1948]), in its decision: “When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant” (p. 460).

Welsh is controversial for at least two reasons. First, it is not always clear what con- stitutes a minor offense. The Court declared that warrantless entry to make an arrest for drunk driving is in violation of the Fourth Amendment, even though drunk driving is considered a serious offense in every state of the union. Second, although the Court did not say so, it implied that warrants are not required for warrantless home arrests in serious cases. The D.C. Circuit’s opinion in Dorman v. United States (435 F.2d 385 [D.C. Cir. 1970]) highlighted seven factors that may permit warrantless entry, only one of which is an exigency discussed thus far:

• The offense is serious. • The suspect is believed to be armed. • The police have a high degree of probable cause for arrest. • There is an especially strong reason to believe the suspect is on the premises. • Escape is likely. • The entry can be made peaceably. • The entry can be made during the day.

Various lower courts have applied these criteria in their decisions (e.g., United States v. Reed, 572 F.2d 412 [2nd Cir. 1978]; State v. Gregory, 331 N.W.2d 140 [Iowa 1983]), but it is doubtful that the Supreme Court would uphold any one of the criteria besides the fifth and possibly the second.

Summary. The common types of exigent circumstances recognized by the courts include hot pursuit, threats to persons, and threats to evidence. Warrantless action

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Carroll v. United States (267 U.S. 132 [1925])

based on a hot pursuit exigency is constitutional only if the police have probable cause to believe any of the following:

• The person they are pursuing has committed a serious offense. • The person will be found on the premises the police seek to enter. • The suspect will escape or harm someone or evidence will be lost or destroyed. • The pursuit originates from a lawful vantage point. • The scope and timing of the search are reasonable.

In situations in which the hot pursuit exception does not apply (and, presumably, the automobile and search incident to arrest exceptions do not apply), a warrantless search for evanescent evidence is permissible when (1) there is probable cause to believe that evidence will be destroyed, lost, or devalued; (2) the procedures employed are reasonable; and (3) the exigency was not police created. A broad interpretation of the latter condition suggests that the same applies in the case of hot pursuit, but the Supreme Court has not ruled on the problem of police-created exigencies. Also, a warrantless search is permissible absent hot pursuit or the potential for damage or destruction to evidence if probable cause exists to believe a person on the premises is in imminent danger of death or serious bodily harm.

Automobile Searches

In the landmark case of Carroll v. United States (267 U.S. 132 [1925]), the Supreme Court carved out an automobile exception to the Fourth Amendment’s warrant requirement. The Court declared that the warrantless search of an automobile is permissible when (1) there is probable cause to believe the vehicle contains evidence of a crime and (2) securing a warrant is impractical. Carroll, which was decided in 1925, resulted from the vehicle stop of a suspect who was known to have previously engaged in the sale of bootleg whiskey (i.e., during Prohibition). A warrantless search of the car revealed 68 bottles of illegal liquor. The Supreme Court upheld the warrantless search on the grounds that the evidence would be lost if the police had been required to take the time to secure a warrant.

DECISION-MAKING EXERCISE 5.6

Police-Created Exigencies

The police knocked on the door of Patrick Warner, whom they suspected was an armed and dangerous narcotics dealer. When Warner came to the door, the police ordered him to place his hands on the glass door and then to slowly reach down and unlock it. Warner said he did not have a key and would need to go to another room to obtain one.

Believing he would retrieve a gun from the other room, the officers kicked down the door and entered as the suspect retreated to another room. Once inside, the officers con- ducted a protective sweep of the apartment. During the course of the sweep, they found bales of marijuana. Were the entrance and the sweep justified?

DECISION-MAKING EXERCISE 5.5

Exigent Circumstances and the Severity of the Offense

Brian Corman was suspected of burglarizing an apartment while no one was home and stealing a checkbook and a television. But apparently, someone in the apartment com- plex witnessed Corman leaving the victim’s unit and called the police. Officers responded and confronted Corman at

the door to his apartment, which was in the same building. Without a warrant, the officers then entered Corman’s apartment, searched it, found the items stolen in the burglary, and arrested him. Are these actions constitu- tionally valid?

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Note that Carroll deals with vehicle searches, not stops. A different standard is applied to vehicle stops, which are discussed in a dedicated section in Chapter 6.

RATIONALE Three arguments can be offered in support of the automobile exception. First, because of the inherent mobility of vehicles, it is impractical to obtain warrants. According to the Court in Carroll:

The guaranty (sic) of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality in which the warrant must be sought. (p. 153)

The second reason for the automobile exception focuses on people’s reasonable expectation of privacy. In particular, because vehicles are typically operated in public spaces, a lesser expectation of privacy is enjoyed. As the Court observed in Cardwell v. Lewis (417 U.S. 583 [1974]), people have a lesser expectation of privacy in an automobile because it serves a transportation function, not a privacy function; a car “seldom serves as one’s residence or the repository of personal effects” (p. 590). Also, people have a lesser expectation of privacy in their automobiles because by their very nature, automo- biles travel “public thoroughfares where [their] occupants and [their] contents are in plain view” (p. 590).

The third reason for the automobile exception hinges on the government regulations to which vehicles are subjected. The old adage that “driving is a privilege, not a right” applies in this context. The Court’s opinion in United States v. Chadwick is illustrative. There, in deciding that the warrantless search of a man’s footlocker, based

Because vehicles are operated in public spaces, a lesser expectation of privacy is enjoyed, which means warrantless searches may be allowed.

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California v. Carney (471 U.S. 386 [1985])

on the automobile exception (because the footlocker was mobile), was unconstitutional, the Court pointed to five issues concerning the regulated nature of automobiles: Automobiles (1) travel on public roads; (2) are subject to state regulations and licensing requirements; (3) are subject to other strict regulations; (4) are subject to periodic inspec- tions; and (5) may be impounded for public safety reasons. Thus, the Court declared that the automobile exception should not apply to the warrantless search of personal items, despite their mobility.

REQUIREMENTS Three general requirements must be met for a valid warrantless vehicle search: (1) the exception must only apply to automobiles; (2) with one excep- tion, such a search must be premised on probable cause; and (3) it must be impracti- cal to obtain a warrant (i.e., the vehicle stop must be such that it is impractical, burdensome, or risky to take time to obtain a warrant). The third requirement is unresolved, as the courts have relied on lesser expectation of privacy analysis rather than an exigency argument to support warrantless searches of automobiles. Figure 5.3 presents the vehicle search requirements of the Pine Bluff, Arkansas, Police Department.

So far, the term automobile has been tossed around with wild abandon. Note, though, that automobile has a very specific meaning. In other words, precise types of vehicles are covered by the automobile exception. Cars, boats (e.g., United States v. Lee, 274 U.S. 559 [1927]), and planes are all considered automobiles. However, what about the hybrid situation involving a vehicle serving the dual purpose of transportation and residence, such as a motor home or a tractor trailer with a sleeper cab?

The Court was confronted with this question in the case of California v. Carney (471 U.S. 386 [1985]). Unfortunately, the Court adopted another objective reasonable- ness standard and refused to define explicitly the types of automobiles covered by the automobile exception. The Court held that the test of whether a vehicle serves a trans- portation or residence function requires looking at the setting in which the vehicle is located. If the setting “objectively indicates that the vehicle is being used for transporta- tion” (p. 386), then the automobile exception applies.

Four factors are used in determining whether a vehicle serves a transportation function: (1) whether it is mobile or stationary; (2) whether it is licensed; (3) whether it is connected to utilities; and (4) whether it has convenient access to the road. If, for example, a trailer is on blocks, unlicensed, connected to utilities, and in a trailer park, then it will almost certainly be treated in the same way that a residence is for purposes of the Fourth Amendment.

In Carroll, the Court noted that “where seizure is impossible except without war- rant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause” (p. 156). Simply put, despite the fact that a vehicle search is permissi- ble without a warrant, the search must still be based on probable cause. Note, how- ever, that probable cause to search and probable cause to arrest are not one and the same. While probable cause to search may exist, this does not automatically create probable cause to arrest. In Carroll, for example, the police had probable cause to search the vehicle but not probable cause to arrest the occupants.

Similarly, probable cause to arrest does not authorize a full search of a vehicle, including the trunk, but it does authorize a search of the passenger compartment (New York v. Belton, 453 U.S. 454 [1981]). Belton was extended in Thoraton v. United States (541 U.S. 615 [2004]) to include searches where the initial contact between the officer and the suspect took place outside the vehicle, in a parking lot, but it was significantly restricted in an even more recent decision, Arizona v. Gant (No. 07-542 [2009]). In that case, a man was arrested for driving on a suspended license. He was handcuffed and placed in a patrol car, then officers searched his car and found cocaine in the pocket of a

Arizona v. Gant (No. 07-542 [2009])

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I. Policy

It is the policy of this department to conduct motor vehicle searches that are both legal and thorough. Such searches are to be conducted in strict observance of the constitutional rights of the owner and occupants of the motor vehicle being searched, and with due regard for the safety of all officers, other persons and property involved.

II. Definitions

MOTOR VEHICLE: Any vehicle operating or capable of being operated on public streets or highways, to include automobiles, trucks, trailers, recreational vehicles, mobile homes, motor homes, and any other type of vehicle, whether self-propelled or towed. This policy does not apply to vehicles of any type that have been immobilized is one location for use as a temporary or permanent residence or storage facility, or which are otherwise classi- fied by the law as residencies or buildings. SEARCH: An examination of all or a portion of the vehicle with an investigatory motive (i.e., for the purpose of discovering fruits, instrumentalities, or evidence of a crime or contraband). A vehicle search may also be conducted to determine the vehicle identification number or the ownership of the vehicle. Inventories of personal property conducted pursuant to impoundment of a vehicle are not covered by this policy.

III. Procedure

A. Whenever feasible, a warrant will be obtained for the search of a motor vehicle. Warranties searches are to be conducted only when lack of time or other exigencies make it impractical for officers to obtain a warrant.

B. When a vehicle has broken down, or there is otherwise no significant chance the vehicle will be driven away or that evidence contained within it will be removed or destroyed, the vehicle should be searched only after a warrant has be obtained, or the officer determines that some other exception to the warrant requirement is applicable. In other cases, vehicles may be searched: 1. When probable cause to search the vehicle exists; 2. With consent of the operator; 3. Incidental to an arrest of the occupants of the vehicle; 4. search for weapons 5. When necessary to examine the vehicle identification number or to determine the ownership of the

vehicle; or 6. Under emergency circumstances not stated above

Chapter 5 • Searches and Arrests without Warrants 163

FIGURE 5.3 Vehicle Search Policy (Pine Bluff, AR, Police Department)

POLICY NUMBER 352SUBJECT:

SEARCH: MOTOR VEHICLE ISSUE DATE

02/19/2008

CHAPTER: INVESTIGATIONS EFFECTIVE DATE 02/19/2008

ISSUED By:

Chief of Police John E. Howell TOTAL PAGES

Figure 5.3 continued

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C. SCOPE OF VEHICLE SEARCHES 1. SEARCHES WITH A WARRANT. When searching under a warrant, officers may search all areas of the vehicle

unless the warrant states otherwise. 2. PROBABLE CAUSE SEARCHES. Officers may search a vehicle without warrants where there is probable cause

to believe that the vehicle contains fruits, instrumentalities, or evidence of a crime or contraband. This type of warranties search shall be conducted only when the vehicle remains mobile. Probable cause searches may extend to all areas of the motor vehicle, unless the probable cause is limited to a specific area of the vehicle. Officers may not search areas of the vehicle that could not contain the fruits, instrumentalities or evidence of a crime or contraband being sought.

3. CONSENT SEARCHES. The extent of the consent search depends upon the terms of consent itself. If the con- sent is limited to specific areas of the vehicle, officers may search only portions of the vehicle covered by the consent. Officers may search a vehicle with the oral or written consent of the person in apparent control of the vehicle or the owner of the vehicle. Written consent should be obtained whenever possi- ble before conducting these searches. Officers shall not obtain consent by any form of coercion or duress.

4. SEARCH FOR WEAPONS. Where there is an objectively reasonable belief that a driver or occupant of a vehicle is potentially dangerous, officers may conduct a search of the vehicle for weapons. Searches for weapons normally must be confined to the passenger area of the vehicle and those areas of the passenger compartment in which a weapon could be hidden. Areas may not be searched that are not immediately accessible to the vehicle’s occupants, such as locked glove compartments.

5. SEARCHES INCIDENT TO ARREST. Searches of vehicles incident to arrest of the operator or an occupant shall be limited to areas within reach of the arrestee (normally the passenger area of the vehicle). The trunk, the engine compartment and locked compartments within the passenger area may not be searched. (See policy 260 for impounded vehicle inventory).

6. ENTRIES TO EXAMINE VEHICLE IDENTIFICATION NUMBER OR DETERMINE OWNERSHIP OF THE VEHICLE. Where cir- cumstances require that officers determine the vehicle identification number of ownership of a vehicle, and such information cannot be acquired from the exterior of the vehicle, officers may enter the vehicle identification number or to determine the ownership of the vehicle must be limited to actions reason- ably necessary to accomplish these goals.

7. EMERGENCIES. Officers may enter a vehicle without a warrant where emergency circumstances make it necessary for them to do so in order to protect life or property, or when the exigencies of the situation otherwise require such action. Search of a motor vehicle under emergency circumstances not otherwise listed above must be co-extensive with the nature of the emergency. The proper extent of the search must therefore be determined by search personnel in each specific situation, but in no event will the extent of the search exceed that necessary to respond properly to the emergency. Note: Where the initial search discloses probable cause to believe that order portions of the vehicle may contain fruits, instrumentalities or evidence of a crime or contraband, any additional portions of the vehicle may be searched that could reasonably contain the items being sought.

8. SEARCH OF CONTAINERS FOUND IN A VEHICLE. If any otherwise-lawful search of a vehicle is being con- ducted, containers found in the vehicle may be opened and searched. In no instance shall a container in a motor vehicle be searched unless it could contain the item(s) being sought. In addition: a. UNLOCKED CONTAINER

Unlocked containers found in motor vehicles are governed by the nature of the search, as follows: b. PROBABLE CAUSE SEARCH

In a probable cause search, containers such as paper bags, cardboard boxes, wrapped packages, etc., wherever found in the vehicle, may be opened provided they could contains items being searched or incident to arrest.

c. INCIDENT TO ARREST When the passenger compartment of a vehicle is being searched incident to an arrest, such containers found within the passenger compartment may be opened.

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d. CONSENT Containers discovered during a consent search of the vehicle may be opened provided that the terms of the consent expressly permit or reasonably imply that the particular container may be opened.

e. OTHER CIRCUMSTANCES Unlocked containers found in a vehicle under circumstances that do not justify an investigatory search of the container under any of the foregoing exceptions to the search warrant requirement should be secured but not searched until a warrant is obtained to search them.

9. LOCKED CONTAINERS Locked containers such as attaché cases, suitcases and footlockers found during a vehicle search should be opened only if: a. The search is being conducted under a warrant; or b. There is probable cause to believe that a container located in the motor vehicle contains contraband

or evidence. c. A valid consent to open the locked container is first obtained. Where these conditions are not met,

locked containers should be secured by search personnel and opened only after a warrant has been obtained.

10. ITEMS BELONGING TO PASSENGERS Items belonging to passengers (e.g., wallets, handbags, purses) may be examined only in the following cases: a. Officers have probable cause to search the vehicle, and the belonging in question is capable of

concealing the item or items being searched for. b. Officers have received valid consent to search the item. c. A passenger has been placed under arrest, and the arrested passenger’s belongings are being

lawfully searched incident to that arrest. D. LOCATION AND TIME OF SEARCH

Whenever possible, search of a motor vehicle, and of containers found therein should be conducted at the location where the vehicle was discovered or detained. Under exigent circumstances, search of the vehicle or container may be delayed and/or conducted after the vehicle or container has been moved to another loca- tion. However, in all instances searches shall be conducted as soon as reasonably possible; that is, as soon as adequate personnel are available to conduct a thorough search with due regard for the safety of all officers, citizens and property concerned.

E. CONDUCT OF THE SEARCH Motor vehicle searches shall be conducted in a manner that minimizes the intrusiveness of the search and the inconvenience caused to vehicle owners, occupants and other persons involved. Where possi- ble, damage to the vehicle or to other property in the course of the search should be avoided. When unavoidable, such damage should be confined to that reasonably necessary to carry out a safe and through search.

F. ABANDONED VEHICLES If it is determined by an officer that a vehicle has been abandoned, the vehicle may be searched without a warrant.

G. HANDLING OF EVIDENCE FOUND DURING VEHICLE SEARCHES Any evidentiary items discovered in the course of a motor vehicle search shall be collected, handled, packaged, marked, transported, and stored in accordance with applicable policies and procedures of this department. Where appropriate and feasible, itemized receipts for seized property shall be given to owner and/or occupants of the vehicle.

H. SECURITY OF VEHICLES AND PROPERTY CONTAINED THEREIN If a search of a vehicle leaves the vehicle or any property contained therein vulnerable to unauthorized entry, theft, or damage, search personnel shall take such steps as are reasonably necessary to secure and/or preserve the vehicle or property from such hazards.

Figure 5.3 continued

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jacket. He was convicted of drug offenses. The Supreme Court held that a Belton-type search is permissible “only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.” Whereas Belton was a bright-line decision, Gant now makes it somewhat diffi- cult to determine whether a search is sanctioned. It forces officers to decide whether the vehicle contains evidence of the offense in question.

There is one important exception to the rule that probable cause must be in place before a vehicle search can be conducted. In New York v. Class (475 U.S. 106 [1986]), the Court held in a 5 to 4 decision that the warrantless, suspicionless search of a car for the purpose of ascertaining the vehicle identification number (VIN) is permissible. All that is required is a valid traffic stop. This exception does not, however, authorize the police to enter cars at will, without any basis for a search. In support of its opinion, the Court pointed to the lesser expectation of privacy argument. Also, it noted that the search was minimally intrusive. The lower court in Class was not in agreement with the Supreme Court’s decision: “The fact that certain information must be kept, or that it may be of a public nature, does not automatically sanction police intrusion into private space in order to obtain it” (p. 124).

A general rule concerning warrants is that they should be obtained whenever practical. However, given the circumstances surrounding most vehicle stops, it would seem foolish to require that the police obtain a warrant before engaging in the search of an automobile. As the Court observed in Carroll, in cases in which the securing of a war- rant is reasonably practicable, a warrant must be used. In most situations involving the stop of an automobile, securing a warrant is not practical. In Husty v. United States (282 U.S. 694 [1931]), for example, a police officer followed up on a tip from an informant and found contraband in Husty’s unattended car. Given that the car was unattended, one could argue that a warrant should have been secured, but the Court argued that the officer “could not know when Husty would come to the car or how soon it would be removed” (p. 701). Contrast Husty with Coolidge v. New Hampshire (403 U.S. 443 [1971]). In that case, the Court ruled that the automobile exception did not apply to a warrant- less search and seizure of two cars located on the defendant’s property because the police had probable cause to act more than two weeks before the search.

Husty and Coolidge suggest that the warrantless search of an automobile will only be upheld if it was impractical to obtain a warrant. This third requirement is unresolved, however. For example, in Chambers v. Maroney, the Court held that as long as the vehicle is readily mobile, a warrantless search is permissible, even if it is conducted away from the scene at the stationhouse. The actual search of the automobile in Chambers was made at the police station many hours after the car had been stopped on the highway, when the car was no longer movable. Furthermore, at that point, exigent circumstances no longer existed and a magistrate could have required a warrant. Yet the Court sanctioned the search (see also Texas v. White, 423 U.S. 67 [1975]).

One relatively recent case, United States v. Johns (469 U.S. 478 [1985]), seems to suggest that the rationale for the automobile exception is, at least in part, an exigency.

I. RESPONSIBILITY OF SUPERVISING OFFICER An officer supervising a vehicle search shall be responsible for ensuring that it is conducted in accordance with this policy. In the event that the vehicle search is conducted under a warrant, the officer shall ensure that the execution of the warrant is properly reported to the issuing court or other authority. The officer shall also be responsible for making any other reports regarding the search that may be required by law, policy, or procedure.

Source: Reprinted courtesy of Pine Bluff, AR, Police Department.

New York v. Belton (453 U.S. 454 [1981])

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In that case, the Court held that the warrantless search of an automobile is impermissi- ble if it “adversely affect[s] a privacy [or] possessory interest” (p. 487). This argument seems to suggest that a search under the automobile exception needs to be premised on the urgency of the situation; otherwise, a warrant should be secured. Nevertheless, the Court in Johns did state that a three-day delay between the initial stop and the arrest was permissible, partly because the car’s owner did not claim that the delay caused hardship.

So, what is the role of exigency in the automobile exception? A safe rule of thumb is that the presence or absence of exigent circumstances is irrelevant. Instead, a showing that the automobile was readily mobile is enough to justify a warrantless search under the automobile exception (as long as probable cause is in place and the target of the search is, in fact, an automobile, as defined earlier).

SCOPE OF THE SEARCH A number of court decisions have considered the scope of the search authorized under the automobile exception. Most of the decisions have focused on whether a container in an automobile can also be searched if probable cause to search the vehicle exists. In Arkansas v. Sanders (442 U.S. 753 [1979]), the Court ruled that the warrantless search of a suitcase was not permissible when the police waited for the suitcase to be placed in the vehicle. Similarly, in Robbins v. California (453 U.S. 420 [1981]), the Court held that a container discovered during a warrantless vehicle search can be seized but not searched until a warrant can be obtained.

Just one year after Robbins, the Court handed down its decision in United States v. Ross (456 U.S. 798 [1982]), which overturned Robbins. The Court declared that as long as the police have justification to conduct a warrantless vehicle search, they may conduct a search “that is as thorough as a magistrate could authorize in a warrant” (p. 800). The only limitation is “defined by the object of the search and the places in which there is probable cause to believe that it may be found” (p. 824). Accordingly, if the contraband sought is small (e.g., a syringe), the scope of the vehicle search exception is almost lim- itless. Recently, the Supreme Court held that even passengers’ personal belongings can be searched (Wyoming v. Houghton, 526 U.S. 295 [1999]).

Fewer cases have focused on precisely how far the police can go during a vehicle search in terms of inflicting damage to the vehicle. On the one hand, based on a reading of the previous chapter, a due process violation may occur if the damage inflicted is excessive. On the other hand, it would appear that a certain degree of physical damage to an automobile is permissible. The Carroll decision, for example, was based on a warrantless search in which the police sliced open the vehicle’s upholstery to look for contraband.

In another case, the Supreme Court considered whether allowing a drug dog to sniff a vehicle during a traffic stop violated the Fourth Amendment. In Illinois v. Caballes (543 U.S. 405 [2005]), an Illinois state trooper stopped a vehicle for speeding. During the 10-minute stop, while the trooper was going through all the usual motions associated

DECISION-MAKING EXERCISE 5.7

A Twist on Carroll

Two police detectives have probable cause to believe that several illegal automatic weapons are in the trunk of Carmine Lord’s car. However, Lord’s car is broken down and has been left with the local auto mechanic. Furthermore, Lord has proven to be a difficult customer and has refused to

pay for the full amount of the repair. As such, the mechanic has locked Lord’s car in a bay at his service station and refused to release it until he receives payment. Assuming they have the mechanic’s blessing, may the detectives search Lord’s car for the weapons while it is at the station?

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Whren v. United States (517 U.S. 806 [1996])

with a traffic stop, another trooper arrived and allowed a drug dog to sniff the vehicle. The dog was alerted to the trunk. Marijuana was found, and the driver was arrested. The Supreme Court upheld the dog sniff, citing three factors: (1) the legality of the stop; (2) the short duration of the stop; and (3) no one can claim legal ownership to—and thereby assert a privacy interest in—contraband. This was a controversial decision, but one that clearly errs on the side of law enforcement.

OTHER ACTIONS SANCTIONED IN A TRAFFIC STOP The Supreme Court has permitted the police to stop a car based on the belief that a crime has been committed, which includes any traffic violation (Whren v. United States, 517 U.S. 806 [1996]). In addition, once a person has been stopped, the officer can order him or her to stand outside the vehicle without any justification (Maryland v. Wilson, 519 U.S. 408 [1997]; Pennsylvania v. Mimms, 434 U.S. 106 [1997]). The police can also engage in searches with consent (Ohio v. Robinette, 519 U.S. 33 [1996]), seize items that are in plain view (Horton v. California, 496 U.S. 128 [1990]), frisk the driver and/or search the passenger compartment of the vehicle out of concerns for safety (Michigan v. Long, 463 U.S. 1032 [1983]), and search the entire car if probable cause to arrest and/or search is devel- oped (New York v. Belton). Finally, police are not required to provide the Miranda warnings when asking questions pursuant to a routine vehicle stop (Miranda v. Arizona, 384 U.S. 436 [1966]).

Some questions have been raised concerning the constitutional protections afforded to passengers who happen to be riding in a vehicle that is stopped. For exam- ple, in Brendlin v. California (551 U.S. 249 [2007]), the Supreme Court was presented with the question of whether a passenger is considered seized within the meaning of the Fourth Amendment when the vehicle is stopped. It held that passengers, like drivers, are seized in such situations. Why does this matter? Since the passenger was considered seized, he was able to challenge the constitutionality of the stop. He did so because police found contraband on his person.

WHEN OTHER DOCTRINES GOVERN SEARCHES OF AUTOMOBILES Note that the automo- bile exception cases are not the only cases governing warrantless searches of vehicles. Many warrantless searches of vehicles are better analyzed under other exceptions to the Fourth Amendment’s warrant requirement. For example, the Supreme Court has rejected the use of the automobile exception in analyzing searches of automobiles cross- ing international borders. Such cases are better analyzed under the border checkpoints exception discussed in Chapter 7.

Still other warrantless searches of automobiles are permissible based on other decisions unrelated to the automobile exception initially set forth in Carroll. These include searches (1) incident to arrest (see earlier discussion); (2) during the course of a stop-and-frisk (e.g., Adams v. Williams, 407 U.S. 143 [1972]; see Chapter 6); (3) under the

DECISION-MAKING EXERCISE 5.8

Proper Scope for an Automobile Search

Joan Lee was pulled over on Interstate 10 after a highway patrol officer observed her aggressively weaving from one lane to another. The officer had probable cause to search the vehicle for drugs. Accordingly, Lee opened the trunk, at which point the officer’s attention was drawn to the spare tire. To the officer, it looked as though the spare was the wrong one for

the vehicle. In addition, there appeared to be a white, pow- dery substance on the rubber. Based on his knowledge that narcotics are smuggled in such a fashion, the officer pulled the spare out of the vehicle, slashed it open with a knife, and found drugs inside. The drugs were seized and Lee was arrested. In terms of scope, was this search justified?

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plain view doctrine (see later discussion); (4) based on the inventory search exception (see Chapter 7); and (5) with consent by the automobile’s occupant (see Chapter 7). Therefore, searches of automobiles—like searches of other places as well as people— can simultaneously be governed by several different doctrines. Figure 5.4 summarizes the levels of justification required to conduct various types of vehicle searches.

RACIAL PROFILING Clearly, the police have numerous opportunities to detect contra- band during the course of a vehicle stop. And since almost every driver commits a violation of traffic law at some point or other, there is plenty of justification for stopping motorists to begin with. But whether every motorist is stopped for legitimate reasons is questionable. Further, even if the police have legal grounds to stop someone in his or her car, the question of pretext presents itself: Should the police be able to use traffic laws to stop people when they really have other motivations in mind (i.e., to gain con- sent to search)? The Supreme Court has yet to answer this question, which has led to the concern that the police have too much discretion in terms of their authority to stop motorists. Closely tied to this concern are allegations of racial profiling, which have emerged in recent years. Racial profiling occurs when the police use race or ethnicity as a factor in determining whether to stop someone.

A driver’s race or ethnicity obviously does not provide the justification to stop him or her. But many argue that the police use existing traffic laws, which are numerous and easy to violate, to single out certain drivers based on their race or ethnicity. The Supreme Court has yet to decide on the constitutionality of this type of conduct directly, but at least one of its decisions has come close. For example, in Whren v. United States (517 U.S. 806 [1996]), Washington, D.C., police made a traffic stop and observed two bags of crack cocaine in the hands of a passenger who was seated in the front of the car. The police testified that they stopped the driver because he had violated traffic laws. In contrast, the defendants claimed that the stop was made based on their race and that the police used alleged traffic violations as a reason to stop them.

The Supreme Court concluded that the “constitutional reasonableness of traffic stops” does not depend “on the actual motivations of the individual officers” (p. 813). The Court also concluded that the only relevant inquiry is whether the officer had cause to stop the car (pp. 813–814). It rejected the argument that the Fourth Amendment requires a court to consider whether “the officer’s conduct deviated materially from usual police practices, so that a reasonable officer in the same circumstances would not have made the stop for the reasons given” (p. 814). Simply put, the Supreme Court has stated that individual officers’ motivations—whether racial or of any other substance— are irrelevant. The only question worth asking and answering, according to the Court, is whether the officer had cause to stop. Needless to say, this decision did not satisfy critics of racial profiling.

FIGURE 5.4 Levels of Justification for Automobile Searches

Level of Intrusion Justification Required

Search of entire car, including containers Probable cause to search Search of passenger compartment and containers Probable cause to arrest occupant Weapons search of passenger compartment Reasonable suspicion/fear for safety Order occupants out of car Reasonable suspicion to stop Inventory search Administrative

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Justice Kennedy’s dissent in Maryland v. Wilson summarizes the voices of racial profiling critics everywhere:

The practical effect of our holding in Whren, of course, is to allow the police to stop vehicles in almost countless circumstances. When Whren is coupled with today’s holding, the Court puts tens of millions of passengers at risk of arbitrary control by the police. If the command to exit were to become com- monplace, the Constitution would be diminished in a most public way. As the standards suggested in dissent are adequate to protect the safety of the police, we ought not to suffer so great a loss. (p. 422)

The Court’s opinion in Whren effectively closed the door on Fourth Amendment claims of racial discrimination. So what remedies are available? One answer is that motorists can sue, based on 42 U.S.C. 1983, for racial discrimination under the equal protection clause of the Fourteenth Amendment. At least two types of Fourteenth Amendment claims can be identified. The first is a challenge to a law or policy that intentionally classifies people based on race or some other classification. Second, plain- tiffs can argue that a racially neutral policy or statute is being enforced in a discrimina- tory fashion. Another answer to the question of what remedies are available is that people targeted for profiling can seek relief under the Civil Rights Act of 1964.

Equal Protection Claims. For the first type of equal protection claim to succeed, it must be shown that (1) a practice or policy intentionally classifies persons based on race and (2) the practice or policy withstands “strict judicial scrutiny” (Adarand Constructors, Inc. v. Pena, 515 U.S. 200 [1995], p. 227). These are known as Pena’s first and second prongs.

Concerning Pena’s first prong, one court has said that racial discrimination can be shown by a law that “expressly classifies persons on the basis of race” (Hayden v. County of Nassau, 180 F.3d 42 [2nd Cir. 1999]) or by a practice or policy that treats one differently from members of other racial groups. For example, if a police department’s policy authorizes stops based on racial or ethnic characteristics, it would be discriminatory. According to another court, racial discrimination exists when law enforcement personnel “adopt a policy, employ a practice, or in a given situation take steps to initiate an investigation . . . based solely upon the citizen’s race” (United States v. Avery, 128 F.3d 974 [6th Cir. 1997], p. 985).

In most situations, however, there are no formal policies or practices that autho- rize traffic stops based on race. What is necessary in such situations is to use statistical evidence to show that the police acted with intent to discriminate. However, because the saying “you can prove anything with statistics” is at least partly true, the courts have been mixed in terms of their willingness to rely on statistical evidence of racial dis- crimination. In Hunter v. Underwood (471 U.S. 222 [1985]), for instance, the Supreme Court sustained an equal protection claim by African Americans who claimed they were deprived of important rights for convictions under an Alabama law. The Court accepted statistical evidence to the effect that blacks were disenfranchised under the law at a rate 1.7 times more than whites.

However, in McCleskey v. Kemp (481 U.S. 279 [1987]), the Court rejected a statistical analysis related to the application of the death penalty in Georgia. The study presented in that case claimed that the race of the victim was the factor most likely to influence jury members in their death penalty decisions. The Court claimed that the study showed only a correlation between the race of the victim and the death penalty deci- sion. The Court took a similar approach in United States v. Armstrong (517 U.S. 456 [1996]), in which it rejected the defendants’ argument that the federal government engaged in the racially selective prosecution of “crack” cocaine offenders. It held that

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the defendants “failed to satisfy the threshold showing . . . that the Government declined to prosecute similarly situated suspects of other races” (p. 458). Both decisions suggest that it would be exceedingly difficult to show Fourteenth Amendment discrim- ination in the context of racial profiling.

As for Pena’s second prong—that a policy or practice must withstand “strict judicial scrutiny”—the government must show the necessity of the classification scheme. Specifically, a Fourteenth Amendment equal protection claim will not succeed if the government can show that it has a compelling interest justifying the practice or policy. Or stated differently, if the government can show that unequal treatment is necessary to further some clear government purpose, an equal protection claim will not succeed (see, e.g., Heller v. Doe, 509 U.S. 312 [1993]; Romer v. Evans, 517 U.S. 620 [1996]). However, if the government cannot meet this strict scrutiny test, an equal protection claim will probably succeed, provided that Pena’s first prong is also satisfied.

As for the second type of Fourteenth Amendment claim, courts sometimes hear lawsuits in which plaintiffs allege that a racially neutral policy or statute has been enforced in a racially discriminatory fashion. Indeed, as early as 1886, the Supreme Court recognized that laws and policies can be enforced in a discriminatory fashion. In Yick Wo v. Hopkins (118 U.S. 356 [1886]), the Supreme Court held that a racially neutral statute had been enforced “with a mind so unequal and oppressive as to amount to a practical denial by the state of that equal protection of the laws . . . which is secured . . . by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the United States” (p. 373, n. 46).

Relatedly, some plaintiffs have argued that legal searches and seizures conducted with appropriate justification violate the Fourteenth Amendment if they are used to selectively target certain individuals over others. For example, a plaintiff may argue that even though he or she was detained lawfully, the police violated the Fourteenth Amendment’s equal protection clause because they selectively targeted individuals for such actions based solely on race. These types of claims are fairly rare and not often suc- cessful, but one New Jersey court has stated that if a police department embarks “upon an officially sanctioned de facto policy of targeting minorities for investigation and arrest,” then it may be held liable (State v. Kennedy, 588 A.2d 834 [N.J. Super. 1991]).

The recent case of United States v. Travis (62 F.3d 170 [6th Cir. 1995]) illustrates this type of Fourteenth Amendment–based allegation. In it, a woman argued that she was selected for questioning based on her race. A detective, who was assigned to the Cincinnati/Northern Kentucky airport, focused his attention on people arriving on a flight from Los Angeles because numerous passengers from the same flight had been arrested for drug offenses in the past. The woman was stopped by the detective and consented to a search. Drugs were found in her purse. The court held that because the detective did not need reasonable suspicion or probable cause (because of the woman’s consent), no constitutional violation took place. However, the court did point out that consensual encounters based solely on race may violate the equal protection clause of the Fourteenth Amendment, even if the Fourth Amendment is not violated (see Travis, pp. 173–174).

Civil Rights Act of 1964. Based on Armstrong and McKleskey, it is exceedingly difficult, if not currently impossible, to succeed with a Fourteenth Amendment equal protection–based claim. The remaining available remedy is Title VII of the Civil Rights Act of 1964, which requires a showing of disparate impact. Disparate impact is, in general, a method of acting that treats one group in a markedly different fashion than another. (In the present context, the focus is on police actions.)

Title VII states, in relevant part, that recipients of federal funds “may not . . . uti- lize criteria or methods of administration which have the effect of subjecting individuals

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Coolidge v. New Hampshire (403 U.S. 443 [1971])

to discrimination based on their race, color, national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin” (28 C.F.R. 42.104[b][2]).

This legislation looks attractive on its face, but it is primarily a method by which the federal government enforces certain rules against entities that receive federal funds—usually state and local units of government. The question of whether private parties (i.e., average citizens) can enforce Title VII is one that has been litigated exten- sively in the courts. Of particular interest has been the issue of standing. Specifically, a plaintiff must show that he or she was a direct participant in or intended beneficiary of a state or local program or activity that receives federal funds. Fortunately, the Civil Rights Act of 1987 defines program or activity as all operations of a governmental entity that receives federal funds. Thus, traffic stops would appear to fall within the meaning of the legislation. That is, in theory, people should be able to sue under Title VII for racially discriminatory traffic enforcement policies. The Supreme Court has not ruled on this issue, however.

Plain View Searches

Untrained observers frequently suggest that “plain view” applies in situations in which evidence can be seen without having to search for it. While this may be a literal interpre- tation of what it means for something to be in plain view, it is not the interpretation the courts use. Plain view has a very specific meaning in criminal procedure, and the doctrine applies only in certain situations.

The “plain view” doctrine first emerged in the Supreme Court’s decision in Coolidge v. New Hampshire (403 U.S. 443 [1971]). The issue in Coolidge was whether evi- dence seized during a search of cars belonging to Coolidge was admissible. The police had a warrant to search the cars, but it was later deemed invalid, so the state argued that the evidence should still be admissible because the cars were in plain view from a public street and from the house in which Coolidge was arrested. The Court did not accept this argument, pointing out that just because the police could see the cars from where they were not enough to permit seizure of the evidence in question. However, the Court did point out that had the police been in an area, such as a car or a house, evidence that was “immediately apparent as such” and was discovered “inadvertently” would have been admissible. In other words, part of the reason the evidence was not admissible in Coolidge was that the police officers were not lawfully in the cars when the evidence was seized.

DECISION-MAKING EXERCISE 5.9

Racial Profiling

While on patrol, Officer James observed a white van with an African American driver inside, idling in a fire lane adjacent to a shopping mall. Rather than issuing the driver a citation, James parked his cruiser and entered the van’s license plate number into his Law Enforcement Information Network (“LEIN”) computer, which revealed that the van was registered to a Curtis Ellison, who had an outstanding felony warrant. Following department policy, James called for backup and continued to observe the van. Before backup arrived, another African American male got into the van and it drove away.

Officer James followed the van until his backup was close, at which point he activated his lights and stopped the van. James advised the driver that he was being stopped for parking in a fire lane and asked for his license, registration, and proof of insurance. When James learned that Ellison was the passenger, not the driver, he ordered Ellison out of the van, searched him, and found two firearms on his person. Ellison now alleges that he and his friend were victims of racial profil- ing and that the stop (and subsequent search) was invalid under the Fourth Amendment. Is this argument meritorious?

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To summarize, the Court decided in Coolidge that a plain view seizure is autho- rized when (1) the police are lawfully in the area where the evidence is located; (2) the items are immediately apparent as subject to seizure; and (3) the discovery of the evi- dence is inadvertent. The first prong of the Coolidge ruling—the lawful access prong— has remained relatively stable over time. The second and third prongs, however, have undergone significant interpretation in recent years. The remainder of this section is therefore based on these three requirements.

THE LAWFUL ACCESS REQUIREMENT For the plain view doctrine to apply, the police must have lawful access to the object to be seized. As the Supreme Court decided in Coolidge:

[P]lain view alone is never enough to justify the warrantless seizure of evi- dence. This is simply a corollary of the familiar principle . . . that no amount of probable cause can justify a warrantless search or seizure absent “exigent circumstances.” Incontrovertible testimony of the senses that an incriminat- ing object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. (p. 468)

This excerpt from the Court’s opinion in Coolidge reinforces the requirement that just because the police may see contraband does not necessarily mean they can seize it. If, for example, evidence is seen lying in a vacant lot or other public place, it may be seized. In such a situation, a search has not occurred. However, evidence that may be viewed from a public place but is, in fact, on private property cannot be seized unless a warrant is obtained or exigent circumstances are present. So, if a police officer on foot patrol observes a marijuana plant in the window of a private residence, he or she may not enter the premises and seize the plant, even though such observation establishes “the fullest possible measure of probable cause.”

What is meant by lawful vantage point? There are four specific situations in which police officers can be found in a lawful vantage point for purposes of the plain view doctrine. The first is during a warranted search. For example, if an officer comes upon an article during the execution of a valid search warrant, the plain view doctrine may apply (subject to further restrictions described later). Second, officers are in a lawful vantage point during a valid arrest. This includes warrantless arrests in public, war- rantless arrests based on exigent circumstances, and arrests with warrants. Third, when a warrantless search is conducted, the police officer is in a lawful vantage point—assuming, of course, that the warrantless search is based on probable cause. Finally, as illustrated in the previous paragraph, officers are always in a lawful vantage point during nonsearches.

THE “IMMEDIATELY APPARENT” REQUIREMENT In addition to the requirement that the police have lawful access to an object for the plain view doctrine to apply, it must also be immediately apparent that the object is subject to seizure. Immediately apparent means that the officer has probable cause to seize the object.

This was the decision reached in Arizona v. Hicks (480 U.S. 321 [1987]). In that case, the police entered the defendant’s apartment without a warrant because a bullet had been fired through his floor into the apartment below, injuring a person there. The war- rantless entry was based on the exigency of looking for the shooter, for other potential victims, and for the weapon used in the incident. Once inside the apartment, the officer observed new stereo equipment that seemed out of place, given the surroundings.

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The officer suspected the stereo equipment was stolen but did not have probable cause to believe as such, so he picked up a turntable in order to obtain its serial number. He then called in the information and confirmed that it was stolen. The Court held that this warrantless action did not satisfy the plain view doctrine. It was not immediately apparent to the officer that the stereo equipment was stolen.

Remember that probable cause to seize and immediately apparent are one and the same. An officer does not need to be absolutely certain that the object is subject to seizure for the plain view doctrine to apply. That was the decision reached in Texas v. Brown (460 U.S. 730 [1983]). In that case, Brown was stopped late at night at a routine driver’s license checkpoint. When he opened the glove box in order to look for his license, an opaque balloon, knotted at the opening, fell out onto the floor of the passen- ger side of the vehicle. The officer making the stop observed what he perceived to be drug paraphernalia in the glove compartment and ultimately seized the balloon and its contents. The balloon was later proven to contain heroin. Brown was convicted of nar- cotics offenses. The Texas Court of Criminal Appeals reversed Brown’s conviction, pointing out that the plain view doctrine did not apply because the officer did not know incriminatory evidence was before him when he seized the balloon. A unanimous Supreme Court reversed the decision, stating, “The fact that [the officer] could not see through the opaque fabric of the balloon is all but irrelevant; the distinctive character of the balloon itself spoke volumes as to its contents—particularly to the trained eye of the officer” (p. 743).

THE ROLE OF INADVERTENCY The role of inadvertency in the plain view determination has received considerable attention. The original position of the Supreme Court in Coolidge v. New Hampshire was that an object seized under the plain view doctrine must not have been anticipated by the police. For example, assume that a police officer obtains a warrant to search a suspect’s home for the proceeds from a robbery. Assume further that the officer expects to find guns in the house but does not state in the warrant that guns will be sought. If, during the search, the officer finds guns, under the Supreme Court’s old ruling, the guns will not be admissible because the officers expected to find them. This restriction on the plain view doctrine came to be known as the inadvertency requirement. The rationale for this restriction was that an officer who anticipates discovering evidence of a crime should seek prior judicial authorization (i.e., a warrant). Further, the Fourth Amendment’s partic- ularity requirement would be compromised if general searches were permitted.

In Horton v. California (496 U.S. 128 [1990]), the Court declared that inadvertency, although a “characteristic of most legitimate ‘plain view’ seizures, . . . is not a necessary condition” of the doctrine (p. 130). The Court offered two reasons for abandoning the inadvertency requirement imposed in Coolidge. First, according to Horton, as long as a warrant particularly describes the places to be searched and the objects to be seized, the

DECISION-MAKING EXERCISE 5.10

Considering the “Immediately Apparent” Requirement for Plain View

Police officers have a warrant for the arrest of Randy Whitbeck, who is the suspect in a rape. They lawfully exe- cute the warrant and arrest Whitbeck in his home. While there, one of the officers observes a rifle leaning up against the wall in an adjacent bedroom. With probable cause to suspect that it is an illegal assault weapon, she enters the room and seizes the gun. May the gun be introduced into

evidence? Assume further that the gun is not connected in any way to the rape. Does it matter that the seizure of the gun is not connected with the rape? Finally, if the officers knew the rifle was contraband prior to serving the warrant and if the rifle was not named in the search warrant accompanying the arrest warrant, could they still seize it lawfully?

Horton v. California (496 U.S. 128 [1990])

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officer cannot expand the area of the search once the evidence has been found. In other words, it is unlikely that once officers have found the evidence listed in the warrant, they will go on a “fishing expedition,” looking for evidence not listed in the warrant. According to the Court, the particularity requirement itself ensures that people’s privacy is protected.

Second, the Court noted that “evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer” (p. 138). An inadvertency require- ment would force the courts to dwell on police officers’ subjective motivations, which would be both time consuming and distracting. The Court went on to note that “[t]he fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is con- fined in area and duration by the terms of the warrant or a valid exception to the warrant requirement” (p. 138).

PLAIN TOUCH, FEEL, AND SMELL The term plain view suggests that the plain view doc- trine is limited to items that the police can see with their eyes. Actually, in recent years, the Court has extended the plain view doctrine to incorporate items discovered using additional senses, especially smell (United States v. Place, 462 U.S. 696 [1983]) and feel (Cf., Minnesota v. Dickerson, 508 U.S. 366 [1993]). In Dickerson, for example, a police offi- cer spotted Dickerson acting suspiciously near a notorious “crack house.” The officer frisked Dickerson for a weapon, pursuant to Terry v. Ohio, but instead of finding a weapon, the officer found a small lump that he could not immediately identify. Instead of terminating the frisk, the officer carefully examined the object in Dickerson’s pocket, which turned out to be cocaine. The Court ruled that this action was unlawful, arguing that the officer’s actions fell outside the permissible scope of a seizure based on plain touch. Had it been immediately apparent to the officer that the object was contraband, the seizure would have been permissible. Additionally, the plain view doctrine can be extended to what police officers hear, as long as probable cause is in place and all the aforementioned requirements have been satisfied (see, e.g., United States v. Jackson, 588 F.2d 1046, 5th Cir., cert. denied, 442 U.S. 941 [1979]).

PLAIN VIEW AS A FALLBACK MEASURE There are countless situations in which the plain view doctrine would seem to apply but in which the courts have based their deci- sions on other doctrines. An example of such a case can be found in Colorado v. Bannister (449 U.S. 1 [1980]). In that case, a police officer approached a stopped vehicle and observed on the passenger seat chrome lug nuts of the same type that had reportedly been stolen in the vicinity. The occupants of the car also matched the description of those described by the victim. The officer engaged in a warrantless search of the vehicle and seized the lug nuts. The Supreme Court did not apply the plain view doctrine in this case but instead relied on the automobile exception to the warrant requirement set forth in Carroll v. United States (see earlier discussion). The Court argued that the war- rantless search and seizure of the evidence was permissible, given the inherent mobility of the car, so the plain view doctrine did not apply.

Thus, the plain view doctrine can be thought of as something of a fallback mea- sure. If a warrantless search and/or seizure is not authorized by any other doctrine (e.g., search incident to arrest, search in the presence of exigent circumstances), plain view may apply. Consider, for example, the discussion concerning search warrant requirements in Chapter 4. Specifically, the particularity requirement states that the warrant must explicitly describe what is to be seized. However, if during the course of a warranted search, the police stumble across evidence that they believe can be seized but is not set forth in the search warrant, the plain view doctrine may apply. In such a

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situation, the original authorization to engage in the search (i.e., the search warrant) does not clearly permit seizure of the evidence, yet plain view provides another form of authorization to do so.

Similarly, evidence noticed during a hot pursuit (e.g., Warden v. Hayden), when accompanying an arrestee to his or her room (Washington v. Chrisman), when investigat- ing a fire in a home (e.g., Michigan v. Tyler, 436 U.S. 499 [1978]), and many other such situations can be seized but not always on the warrantless action itself. For example, assume police officers during the course of a hot pursuit find a cache of illegal weapons in a house. The hot pursuit exception to the warrant requirement does not authorize seizure of the weapons, but the plain view doctrine does. Again, the plain view doctrine serves as a fallback measure. Another such fallback measure is the inventory search exception, discussed in Chapter 7.

In summary, the plain view doctrine will apply only in situations in which the police have lawful access to the object in question. Provided that the appropriate level of justification is in place to engage in the warrantless action in question (e.g., rob- able cause, reasonable suspicion, administrative justification, or when engaged in a nonsearch), the lawful access requirement will automatically be satisfied.

WARRANTLESS ARRESTS

Just as there are a number of searches that can be conducted without a warrant, the Supreme Court has also sanctioned certain arrests that can be made without a warrant. They include arrests in the presence of exigent circumstances and arrests in public places.

Arrests Based on Exigent Circumstances

Exigent (i.e., emergency) circumstances justify warrantless entry into a private home for the purpose of making an arrest. The five exigencies identified earlier in this chapter justify warrantless entry for this purpose. In other words, a warrantless arrest, with probable cause, is permissible if any of the following is present: (1) hot pursuit; (2) dan- ger to officers; (3) danger to third parties; (4) escape; and (5) destruction of evidence. Figure 5.5 presents the San Bernardino, California, Police Department’s policy for making warrantless arrests based on exigent circumstances.

Arrests in Public Places

Unlike arrests made in the home (or in a third-party residence), arrests made in public do not require warrants. In United States v. Watson (423 U.S. 411 [1976]), the Supreme Court upheld the common-law rule that arrests made in public do not need to be pred- icated on a warrant. The Court expressed confidence in the ability of police officers to make probable cause determinations: “[W]e decline to transform [a] judicial preference [for arrest warrants] into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause” (p. 423).

The court extended this decision to the curtilage of a home in United States v. Santana (427 U.S. 38 [1976]). In that case, the police who had probable cause to arrest Santana arrived at her house to find her standing in the opening of her front door. When she saw the officers approaching, she retreated into the house. The officers followed her into the house and made the arrest. The Supreme Court declared that the officers’ actions were constitutional because when Santana was standing in the doorway, “[s]he was not in an area where she had any expectation of privacy” (p. 42). The entry into Santana’s house was justified on exigent circumstances—namely, hot pursuit.

United States v. Santana (427 U.S. 38 [1976])

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FIGURE 5.5 Warrantless Arrest Policy (San Bernardino, CA, Police Department)

STANDARD OPERATING PROCEDURE CHAPTER #2 PROCEDURE #9

ARREST IN RESIDENCE WITHOUT WARRANT 5-4-89

The “Ramey Decision” by the California Supreme Court commands that a police officer may not enter the residence of a suspect for the purpose of effecting an arrest without a warrant of arrest, unless “exigent (emergency) circumstances” justify such action, or lawful consent for entry is obtained. The opinion defines exigent circumstances as “an emergency situation requiring swift action to prevent (1) imminent danger to life, (2) or serious damage to property, (3) or to forestall the imminent escape of a suspect, (4) or destruction of evidence.” The burden of proof of the existence of one or more of the exigent circumstances defined by the court will be upon the prosecution, and it appears that the courts will closely scrutinize any such claim of justification. The prohibition includes arrests for felonies or misdemeanors whether by day or by night, and the prohibition encompasses arrest of adults and minors. The Ramey rule will be applied to temporary residences such as hotels and motels. With the application of the “vicarious exclusionary rule”, which acts to suppress evidence against any defendant when such evidence is obtained in the violation of any third party’s rights, it appears that the prohibition will extend to residences of others where the suspect may be a guest regardless of the temporary nature of the suspect’s tenancy. The opinion of the court does not discuss the circumstances of “hot pursuit” or close pursuit from another place into a residence. It is believed that if probable cause for arrest exists during a pursuit but the arrest is not made due purely to the actions of the suspect in evading the officers and going into a residence, then the entry and arrest will be reasonable and justifiable in light of the imminent danger of escape. Since the issue addressed by the court is the entry into a residence for the purpose of effecting the arrest and the necessity for judicial review of such process before the entry, it can be assumed that entry by means of a valid search warrant would satisfy the requirement for judicial review, and an arrest based on evidence uncovered during the search would be proper and not in violation of the rule in Ramey. It appears also that if the officer enters the residence lawfully for any purpose other than the arrest of a suspect (in response to a call for service or in the legitimate course of an investigation) an ensuing arrest would be proper, although the courts would cer- tainly scrutinize these circumstances. In light of this opinion, the policy of the San Bernardino Police Department will be: A warrant of arrest shall be obtained prior to any arrest of a suspect from a residence at any time for any offense except:

1. When one or more of the defined exigent circumstances are readily evident. 2. As a result of close pursuit wherein the arrest would have been lawful except for

the suspect’s evading the arrest and going into a residence. 3. When probable cause is developed during the execution of a valid search warrant

for the residence and the suspect is present. 4. When entry has been lawfully made for another purpose (such as investigation

of an offense or response to a call for service) and was not for the purpose of effecting an arrest.

Figure 5.5 continued

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Atwater v. City of Lago Vista (532 U.S. 318 [2001])

Watson and Santana therefore combine to permit another type of warrantless action authorized by the Fourth Amendment. As long as probable cause is in place, the police can make a warrantless arrest in a public place. A warrantless arrest in the curtilage of someone’s home is also authorized. The key in Santana, though, was that the arrest was initiated by the police observing what they perceived to be criminal activity from a public place. This important qualification ensures that the police can- not just wander onto private property, looking for opportunities to make arrests. A crime must be observed from a lawful vantage point; otherwise, a warrant will be required.

What if the offense takes place out of view of the officer? The courts have stated that if probable cause exists, the police can arrest anyone for any offense, as long as the arrest is made in a public place. It is useful, though, to distinguish between (1) various types of offenses and (2) whether the offense in question was committed in the presence of the officer. Generally, any offense committed in an officer’s presence permits an arrest. Also, there is no requirement that the offense for which a person is arrested be “closely related” to the conduct that led to the confrontation between officer and sus- pect (Devenpeck v. Alford, 543 U.S. 146 [2004]). Additionally, serious offenses (felonies) committed out of the officer’s view permit a warrantless, public arrest—provided that probable cause exists. Less clear is the issue of a warrantless, public arrest for a misde- meanor committed out of the officer’s presence.

ARRESTS FOR MINOR OFFENSES The Supreme Court has declared that “the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine” (Atwater v. City of Lago Vista, 532 U.S. 318 [2001]). Texas law makes it a misdemeanor for a front-seat passenger in a car equipped with seatbelts not to wear the seatbelt. The law states that the police may arrest or issue only a citation to the passenger. Atwater was arrested and later filed suit under Section 1983, arguing that the officer violated her Fourth Amendment rights. In the Court’s words, “Atwater has cited no particular evidence that those who framed and ratified the Fourth Amendment sought to limit peace officers’ warrantless

5. When lawful consent for entry for the purpose of effecting an arrest is obtained. In the case of minors, proper consent may be obtained from the parent/s or responsible adult in charge, or, in the absence of a responsible adult, from the minor himself.

During normal business hours, an arrest warrant may be obtained by contacting the District Attorney’s Office. Outside of normal business hours, it will be necessary to contact the “on call” deputy district attorney for review and assistance and then a magistrate for the issuance of a warrant. There is no statutory provision for a tele- phonic arrest warrant, consequently it will be necessary to contact the magistrate in person. A list of on-call deputies will be maintained in the watch commander’s office along with a list of judges’ telephone numbers and home addresses. As has been the case prior to Ramey, it does not appear that the actual physical posses- sion of a warrant of arrest is necessary as long as there is knowledge of the existence of a properly endorsed warrant.

Source: Chapter 2, Procedure 9, “Use of Force,” from Standard Operating Procedure, San Bernardino,

California, Police Department (rev. December 22, 2004). Reprinted with permission.

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misdemeanor arrest authority to instances of actual breach of the peace, and the Court’s review of framing-era documentary history has likewise failed to reveal any such design” (p. 336).

On its face, Atwater seems to be a controversial case. On closer examination, though, the decision is likely to have little impact on criminal procedure. The reason for this is, simply, that it is unpractical (and usually undesirable) to arrest people for viola- tions as trivial as failing to wear a seatbelt. Just because the Court has now said that such warrantless arrests do not violate the Fourth Amendment does not mean that the police will alter their behavior consistent with the Atwater decision.

In another more recent case, Virginia v. Moore (553 U.S. 164 [2008]), police stopped a motorist for driving with a suspended license. Virginia state law required that the officers issue a citation and summons to appear in court. Instead, the officers arrested the driver. In a search incident to arrest, officers found cocaine. Moore’s attorney sought suppression of the cocaine at trial. The trial court judge allowed the evidence, but the Virginia Supreme Court reversed. In a unanimous decision, the Supreme Court held that the officers did not violate Moore’s constitutional rights. The Moore case is similar to Atwater in the sense that the offense that justified the arrest was relatively minor. And the Supreme Court sanctioned the officers’ actions, even though they ran counter to Virginia law.

Virginia v. Moore (553 U.S. 164 [2008])

Summary

1. SUMMARIZE THE ISSUES INVOLVED IN WARRANTLESS SEARCHES AND SEIZURES.

The situations in which law enforcement officials can search without a warrant almost outnumber the num- ber of situations in which they cannot search without a warrant. The Supreme Court has carved out several exceptions to the Fourth Amendment’s warrant requirement. While the exceptions vary considerably, a common thread runs through them: The Court has decided that it is not always practical to obtain a war- rant. Warrantless searches include searches incident to arrest, hot pursuit, automobile searches, and plain view searches.

2. EXPLAIN THE SEARCH INCIDENT TO ARREST DOCTRINE.

Searches incident to arrest are constitutionally per- missible, but the arrest must, of course, be legal (i.e., based on probable cause). Also, the arrest must result in someone being taken into custody. Next, the search must follow the arrest closely in time. Finally, the search incident to arrest is limited to (1) the person arrested and any containers discovered from that search and (2) the arrestee’s immediate grabbing area. Prior to an arrest, the police may engage in a protec- tive sweep of the premises, if they have a reasonable

belief that evidence may be destroyed by someone sympathetic to the arrestee. They may also engage in a protective sweep following arrest. No justification is required for such a postarrest sweep. Finally, the Supreme Court appears to agree that the premises can be searched for evidence that is likely to be destroyed, and probable cause is not required.

3. EXPLAIN THE CONCEPT OF HOT PURSUIT.

Hot pursuit, threats to persons, and threats to evidence are exigent circumstances that also permit dispensing with the Fourth Amendment’s warrant requirement. Warrantless searches and arrests based on hot pursuit are constitutional only if the police have probable cause to believe (1) that the person they are pursuing has committed a serious offense; (2) that the person will be found on the premises the police seek to enter; and (3) that the suspect will escape or harm someone or that evidence will be lost or destroyed. Also, the pursuit must originate from a lawful vantage point and the scope and timing of the search must be reason- able. When hot pursuit does not apply, a warrantless search for evanescent evidence is permissible when (1) there is probable cause to believe that evidence will be destroyed, lost, or devalued; (2) the procedures employed are reasonable; and (3) the exigency was not police created. Finally, if neither hot pursuit nor the

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180 Part 2 • Search and Seizure

potential for damage or destruction to evidence exists, a warrantless search is permissible if the police have probable cause to believe a person on the premises is in imminent danger of death or serious bodily harm.

4. SUMMARIZE THE SPECIAL ISSUES INVOLVED IN AUTOMOBILE SEARCHES.

Warrantless automobile searches are constitutionally permissible because (1) automobiles are mobile, making it difficult to obtain warrants; (2) people enjoy a lesser expectation of privacy when in their cars; and (3) auto- mobiles are subject to a host of government regulations. Even so, for an automobile search to be constitutional, it must be (1) directed at a vehicle ready to serve a trans- portation function; (2) premised on probable cause to believe the vehicle contains evidence of a crime; and (3) completed without unnecessary delay.

Racial profiling is of particular concern in the context of vehicle stops. It occurs when the police use race or ethnicity as a factor in determining whether they will stop someone. While a driver’s race or ethnicity clearly does not provide justifica- tion to stop him or her, critics of profiling claim that the police can use existing traffic laws to single out certain individuals—say, for instance, pulling some- one over for speeding regardless of whether that actually occurred. The Supreme Court has yet to decide directly on the constitutionality of this type of conduct, but at least one decision has come close to

the issue. In Whren, the Court stated that the “consti- tutional reasonableness of traffic stops” does not depend “on the actual motivations of the individual officers” (p. 813). Despite this controversial decision, Fourteenth Amendment due process claims and claims under Title VI of the Civil Rights Act of 1964 can still be raised.

5. SUMMARIZE THE PLAIN VIEW DOCTRINE.

Items in plain view can be seized if the police have lawful access to the items and if it is immediately apparent that the items are contraband. The discovery of such items does not have to be inadvertent. The “plain view” doctrine has been extended to include plain smell and plain feel. Finally, the plain view doctrine should be viewed as something of a fall- back measure because the seizure of evidence can often be justified by other doctrines, such as hot pursuit, search incident to arrest, automobile searches, and so on.

6. DESCRIBE THE SITUATIONS IN WHICH WARRANTLESS ARRESTS MAY BE MADE.

Two types of warrantless arrests have been authorized by the Supreme Court. First, if exigent circumstances are present, the police may make a warrantless arrest. Probable cause is required, however. Second, an arrest in public can be made without a warrant. Even certain minor offenses can support arrest in public places.

Key Terms

armspan rule 152 automobile

exception 160 disparate impact 171 evanescent evidence 157

exceptions to the warrant requirement 150

exigent circumstances 155

hot pursuit 155 immediately

apparent 173 lawful access 173 “plain view” doctrine 172

protective sweep 153 racial profiling 169 search incident to

arrest 150

Key Cases

Searches Incident to Arrest

• Chimel v. California, 395 U.S. 752 (1969) • Knowles v. Iowa, 525 U.S. 113 (1998) • Preston v. United States, 376 U.S. 364 (1964)

Searches Based on Exigent Circumstances

• Warden v. Hayden, 387 U.S. 294 (1967) • Welsh v. Wisconsin, 466 U.S. 740 (1984)

• Minnesota v. Olson, 495 U.S. 91 (1990) • Breithaupt v. Abram, 352 U.S. 432 (1957) • Cupp v. Murphy, 412 U.S. 291 (1973)

Automobile Searches

• Carroll v. United States, 267 U.S. 132 (1925) • California v. Carney, 471 U.S. 386 (1985) • New York v. Belton, 453 U.S. 454 (1981)

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• Arizona v. Gant, No. 07-542 (2009) • Whren v. United States, 517 U.S. 806 (1996)

Plain View Searches

• Coolidge v. New Hampshire, 403 U.S. 443 (1971) • Arizona v. Hicks, 480 U.S. 321 (1987) • Horton v. California, 496 U.S. 128 (1990)

Warrantless Arrests

• United States v. Watson, 423 U.S. 411 (1976) • United States v. Santana, 427 U.S. 38 (1976) • Atwater v. City of Lago Vista, 532 U.S. 318 (2001) • Virginia v. Moore, 553 U.S. 164 (2008)

Review Questions

1. Explain the term exceptions as applied to the Fourth Amendment.

2. Summarize the requirements for a valid search incident to arrest.

3. What type of law enforcement activities fall under the banner of exigent circumstances?

4. Explain the Supreme Court’s rationale for permitting warrantless searches of automobiles.

5. Summarize the requirements for a valid automobile search.

6. Explain the leading cases in the area of racial profiling. 7. What types of arrest are permissible without a warrant? 8. Why does the term plain view mean something different

in criminal procedure than in everyday use?

9. Explain the lawful access prong of the plain view doctrine.

10. Explain the immediately apparent prong of the plain view doctrine.

11. To what extent is inadvertency relevant in the plain view context?

12. How has the plain view doctrine been extended by the Supreme Court?

13. What other Fourth Amendment doctrines may permit the seizure of evidence if the plain view doctrine does not apply?

14. Has the Supreme Court become too generous with exceptions to the Fourth Amendment’s warrant requirement?

Web Links and Exercises

1. Technology and search incident to arrest: Read about some recent lower court cases dealing with the intersec- tion of technology and the search incident to arrest excep- tion to the warrant requirement. One particularly relevant case is United States v. Finley (477 F.3d 250 [5th Cir. 2007]).

Suggested URL: http://cyb3rcrim3.blogspot.com/2007/05/ search-incident-to-arrest.html (accessed February 16, 2011).

2. Police pursuits: Read about policies and training in the area of police vehicle pursuits. What is the key dilemma underlying the decision whether to pursue?

Suggested URL: http://www.ncjrs.gov/pdffiles/164831. pdf (accessed February 16, 2011).

3. Profiling and the war on terror: Read about racial profil- ing before and after 9/11. How has the worst terrorist attack on our nation altered profiling?

Suggested URL: http://www.scu.edu/ethics/publications/ ethicalperspectives/profiling.html (accessed February 16, 2011).

4. Plain smell: Should the smell of burning marijuana justify a warrantless search? Read more in United States v. Mowatt (No. 06-4886 [4th Cir. 2008])

Suggested URL: http://pacer.ca4.uscourts.gov/opinion. pdf/064886.P.pdf (accessed February 16, 2011).

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LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Outline the components of search and arrest warrants. � Describe how search and arrest warrants are executed. � Explain how bodily intrusions, the use of tracking devices, and electronic surveillance create “special

circumstances” for Fourth Amendment purposes.

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105

CHAPTER OUTLINE

Searches and Arrests with Warrants

C H

A P

T E

OUTLINE

Introduction: Provisions of the Fourth Amendment

Components of Warrants A Neutral and Detached Magistrate A Showing of Probable Cause

Showing of Probable Cause in an Arrest Warrant Showing of Probable Cause in a Search Warrant

Particularity Particularity in an Arrest Warrant Particularity in a Search Warrant

Arrests with Warrants The Definition of Arrest

Restricted Liberty of Movement and Beyond Distinguishing between a Stop and an Arrest Distinguishing between a Stop and a Nonstop

When an Arrest Warrant Is Required Arrests in the Home Arrests in Third-Party Homes

Executing an Arrest Warrant The “Knock-and-Announce” Rule Property Damage

Permissible Degree of Force Arresting the Wrong Person

Searches with Warrants Executing a Search Warrant

Time Constraints Scope and Manner of the Search Procedure after Service of a Search Warrant Media Presence

Special Circumstances Search Warrants and Bodily Intrusions Tracking Devices, Video Recordings,

and Detection Devices Electronic Surveillance

Title III and the Electronic Communications Privacy Act The Foreign Intelligence Surveillance Act

Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

Provisions of the Fourth Amendment

Five types of activities are governed by the Fourth Amendment:

• arrests with warrants, • arrests without warrants, • searches with warrants, • searches without warrants, and • the seizure of evidence.

This chapter’s primary focus is on arrests and searches with warrants. Warrantless actions are discussed in the next three chapters.

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The seizure of evidence is often a consequence of arrests and searches with and without warrants. However, if a search or arrest with or without a warrant violates the Fourth Amendment, any evidence seized will be inadmissible in court due to the exclusionary rule. Because of the exclusionary rule, little attention is given here (or in the next three chapters) to the seizure of evidence independent of an arrest or search. While it is possible for a seizure to take place in the absence of a search or arrest (e.g., Soldal v. Cook County, 506 U.S. 56 [1992]), rare is the occasion in which the police (or a private individual acting in a governmental capacity) can seize evidence without a search or an arrest.

The Fourth Amendment seems fairly clear with respect to warrants: “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Despite this seemingly simple language, however, the Fourth Amendment’s warrant requirement has been litigated extensively in the courts. As indicated in Chapter 3, the courts have focused on the meaning of probable cause as well as acceptable sources of information used to determine the presence of probable cause. Many decisions have also focused on the Fourth Amendment’s requirement that warrants be supported by “Oath or affirmation” and on the particularity requirement. This chapter gives special attention to these latter issues.

Even though there are many cases involving searches and arrests with warrants, the law is actually very clear with respect to when a warrant is required. Generally, a search warrant is required for any type of search, regardless of where it is conducted, provided that (1) there are no exigent (i.e., emergency) circumstances and (2) the search is not one justified on so-called administrative grounds. Even searches pursuant to arrest and searches under the automobile exception are justified in terms of exigencies. Arrest warrants, by contrast, are required for arrests in private places, provided exigent circumstances are absent.

COMPONENTS OF WARRANTS

An arrest warrant or a search warrant (see Figures 4.1 and 4.2 for examples) each has three essential components. First, it must be issued by a neutral and detached magistrate. Second, a showing of probable cause is required. Finally, it must conform to the Fourth Amendment’s particularity requirement. The first requirement—a neutral and detached magistrate—is the same regardless of the type of warrant. However, the probable cause and particularity requirements differ, depending on the type of warrant in question. These requirements are considered in the following subsections.

A Neutral and Detached Magistrate

The logic for requiring a neutral and detached magistrate in the issuance of an arrest or a search warrant was described by the Supreme Court over 50 years ago in Johnson v. United States (333 U.S. 10 [1948]):

The point of the Fourth Amendment . . . is not that it denies law enforcement the support of the usual inferences reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. (pp. 13–14)

Most judges are considered neutral and detached. Even so, the Supreme Court has focused, in a number of cases, on this first critical warrant requirement. For example, in

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Coolidge v. New Hampshire (403 U.S. 443 [1971]), the Court declared that a state attorney general cannot issue a search warrant. State attorneys general are chief prosecutors and thus inclined to side with law enforcement officers. Similarly, in United States v. United States District Court (407 U.S. 297 [1972]), the Court decided that the president, acting through the attorney general of the United States, cannot authorize electronic surveillance without judicial approval. Justice Powell observed,

The Fourth Amendment does not contemplate the executive officers of Government as neutral and detached magistrates. Their duty and responsibility is to enforce the laws, to investigate and to prosecute. . . . [T]hose charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech. (p. 317)

There have also been some cases in which the Court has focused on the extent to which judges can be viewed as neutral and detached. For example, in Lo-Ji Sales, Inc. v. New York (442 U.S. 319 [1979]), a magistrate issued a warrant for two obscene items, but

FIGURE 4.1 Sample Arrest Warrant

WARRANT OF ARREST ON COMPLAINT

(RCr 2.04,2.06) (Caption)

TO ALL PEACE OFFICERS

You are hereby commanded to arrest ____________________

(Name of defendant)

and bring him forthwith before judge of the District Court (or, if he be absent or unable to act, before the nearest available magistrate) to answer a complaint made by ____________ charging him with the offense of reckless driving.

Issued this ____________ day of ____________, 19____________.

___________________________ Judge

(Indorsement as to bail)

The defendant may give bail in the amount of $_________. ___________________________ Judge

(Amended October 14, 20__, effective January 1, 20__.)

Coolidge v. New Hampshire (403 U.S. 443 [1971])

Lo-Ji Sales, Inc. v. New York (442 U.S. 319 [1979])

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he also authorized the police to seize any other items that he might find obscene upon examination of the location to be searched. The magistrate then accompanied the officers on the search, discovered items that he deemed to be obscene, and added them to the initial warrant. The items were then admitted into evidence against the defendants. The Supreme Court declared that the magistrate was not acting in a neutral and detached capacity: “[H]e was not acting as a judicial officer but as an adjunct law- enforcement officer” (p. 327).

Finally, if a magistrate has a financial interest in the issuance of warrants, he or she cannot be considered neutral and detached. This issue was presented to the Supreme Court in Connally v. Georgia (429 U.S. 245 [1977]). A Georgia statute autho- rized unsalaried magistrates to receive five dollars for each warrant issued but no money for warrant applications that were denied. The Court unanimously held that the statute violated the Constitution, citing that “judicial action by an officer of a court who has ‘a direct, personal, substantial, pecuniary interest’ in his conclusion to issue or to deny the warrant” (p. 250) cannot possibly be considered neutral and detached.

A Showing of Probable Cause

“Probable cause” was defined in Chapter 3; as such, there is no need to revisit the definition here. However, it is important to point out that probable cause is required as a component of a valid warrant. Also, the meaning of probable cause—as opposed to the sources of information that give rise to it—differs, depending on whether an arrest or a search warrant is issued.

SHOWING OF PROBABLE CAUSE IN AN ARREST WARRANT The showing of probable cause in an arrest warrant is not particularly complex. The officer applying for the war- rant must simply show probable cause that the person to be arrested committed the crime. Acceptable sources of information for a probable cause showing were described in Chapter 3. When applying for an arrest warrant, the officer is not required to show probable cause that the suspect will be found at a particular location. In Payton v. New York (445 U.S. 573 [1980]), the majority stated, “If there is sufficient evidence of a citizen’s participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law” (pp. 602–603).

SHOWING OF PROBABLE CAUSE IN A SEARCH WARRANT The showing of probable cause in a search warrant is twofold. First, the officer applying for the search warrant must show probable cause that the items to be seized are connected with criminal activity. Second, the officer must show probable cause that the items to be seized are in the location to be searched. Note that this second requirement does not apply to an arrest warrant.

Particularity

The Fourth Amendment expressly provides that warrants particularly describe the “place to be searched, and the persons or things to be seized.” Not surprisingly, the particularity requirement differs, depending on the type of warrant issued. For an arrest warrant, the particularity requirement is easily satisfied. The particularity requirement for a search warrant, however, is far more complex.

PARTICULARITY IN AN ARREST WARRANT There are two ways to satisfy the Fourth Amendment’s particularity requirement with regard to an arrest warrant. First, if the suspect’s name is known, then simply supplying his or her name is enough to meet the

108 Part 2 • Search and Seizure

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FIGURE 4.2 Example of a Search Warrant That Meets the Particularity Requirement

IN THE SUPERIOR COURT DISTRICT, EAST DESERT DIVISION COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA

SEARCH WARRANT (PENAL CODE 1529)

THE PEOPLE OF THE STATE OF CALIFORNIA: To any Sheriff, Constable, Peace Officer or Policeman in the County of San Bernardino:

Proof, by Affidavit, having been this day made before me by:

ROGER PEREZ Deputy Sheriff

San Bernardino County Sheriff’s Department Morongo Basin Station

THAT THERE IS PROBABLE CAUSE FOR BELIEVING THAT:

There are narcotics, controlled substances and restricted substances records and docu- ments which tend to show that a felony to wit, Transportation of Controlled Substances, in violation of Health and Safety Code Section 11379, Possession for Sales of Controlled Substances, in violation of Health and Safety Code Section 11378, Sales of Controlled Substances, in violation of Health and Safety Code Section 11379, is being committed in the County of San Bernardino, State of California.

YOU ARE THEREFORE COMMANDED at any time of the day or night ____________ to make a search of:

PREMISES TO BE SEARCHED:

The premises located at:

2400 MAIN STREET, #12 TOWN OF PLEASANTVILLE

COUNTY OF SAN BERNARDINO STATE OF CALIFORNIA

particularity requirement. In some situations, however, the suspect’s name is not known. Then, a specific description of the suspect is sufficient and a “John Doe” warrant will be issued. As long as other officers may locate the suspect with reasonable effort, the suspect’s name is not required.

Even so, an arrest warrant is rarely issued without the suspect’s name. This is not to suggest, however, that the police almost always know the suspect’s name. Remember, there are many occasions involving warrantless arrests (e.g., after a suspect is caught fleeing the bank he or she just robbed) in which an arrest can be made without knowledge of the suspect’s name. As long as probable cause is in place, the name of the suspect is not essential (regardless of whether a warrant is issued).

Chapter 4 • Searches and Arrests with Warrants 109

Figure 4.2 continued

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110 Part 2 • Search and Seizure

The location is further described as a multi-unit apartment complex located on the east side of Main Street south of Oak Dr. The complex consists of numerous two-story build- ings with each building having multiple apartments. Apartment 12 is located in building “C”, which is located at the northwest corner of the complex. The exterior is tan stucco with grayish/blue trim and a gray composite shingle roof. Apartment 12 has the numbers “12” which are black and approximately 4 inches tall, affixed to the wood trim to the right of the front door, which faces north.

And all rooms, attics, basements, cellars, safes, vaults, closed or locked containers, trash receptacles and other parts therein, surrounding grounds, garages, sheds, storage rooms, vehicles, campers, trailers and outbuildings of any kind located thereon.

And all persons located on or at the premises. And all vehicles belonging to or in the control of said persons.

And you are hereby authorized to answer all incoming telephone calls received at the premises and the vehicles to be searched and to further seize and record all the incoming telephonic pager numbers and messages received at the premises and the vehicles to be searched and to seize all telephonic “fax” messages received at the premises and the vehicles to be searched. And to determine if the aforementioned telephone calls, telephonic messages, or “faxed” messages are related to illegal activities.

FOR THE FOLLOWING PROPERTY:

Methamphetamine and paraphernalia commonly associated with the possession, pack- aging, and sale of methamphetamine such as scales, weighing devices and measuring devices; packaging materials including paper bindles, glass vials, plastic baggies, foil; processing materials including sifters, filters, screens and cutting agents; recordation of the purchase and/or sales of methamphetamine including ledgers, notebooks, pay/owe sheets,customer lists, video tapes and phone answering machine tape record- ings, personal phone books; personal photographs which document the possession, sales and/or possession for sales of methamphetamine; and proceeds from the sales of methamphetamine consisting of currency.

Financial records including expenses incurred in obtaining chemicals and apparatus and income derived from sales of narcotics and other controlled substances as well as records showing legitimate income or the lack thereof and general living expenses.

Serial numbers, model numbers, identifying marks and descriptions of all personal property including, but not limited to, televisions, radios, stereo equipment, and other electrical devices, appliances, hand and power tools, firearms, bicycles, items of jewelry, silver, gold and coins which can be identified as stolen and/or evidence of the crime of Burglary and/or Possession of Stolen Property or property which is readily traded for narcotics in lieu of cash.

All articles of personal property which will identify persons in control of the premises, storage areas or containers where controlled substances may be found, including keys to those areas that may be locked, rental agreements and receipts, deeds of trust, documents or papers bearing names, canceled mail, paycheck stubs and other employment records, tax documents and personal identification. IS

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Chapter 4 • Searches and Arrests with Warrants 111

PARTICULARITY IN A SEARCH WARRANT The particularity requirement for a search war- rant is twofold. First, the warrant must specify the place to be searched. Next, the warrant must specify the items to be seized. The reason for this particularity requirement stems from the framers’ concerns with so-called general warrants. General warrants, which were issued by the English Crown, permitted basically limitless searches for evidence of treason.

Contrary to popular belief, a search warrant does not need to state with absolute precision the place to be searched. It “is enough if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended” (Steele v. United States, 267 U.S. 498 [1925], p. 503). However, the items mentioned in the warrant should be described with sufficient specificity that a reason- able officer would know where to look for them.

In situations where the warrant incorrectly specifies the place to be searched, the courts will focus on the reasonableness of the officers’ mistake. For example, in Maryland v. Garrison (480 U.S. 79 [1987]), police officers obtained a warrant to search the person of Lawrence McWebb and the premises known as “2036 Park Avenue, third-floor apartment.” They believed that McWebb’s apartment occupied the entire third floor when, in fact, there were two apartments on that floor—one of which belonged to Garrison. The Court held that the warrant was valid for several reasons: It was based on information by a trusted informant, and the police had inquired with the local utility company and were given the impression that there was only one apartment on the third floor.

As for the items to be seized, the warrant must clearly specify what the police wish to seize. The case of Lo-Ji Sales, Inc. v. New York is again illustrative. Recall from the discussion about the neutral and detached magistrate requirement that the magistrate in Lo-Ji Sales issued a warrant that named two specific items but also permitted the police to seize anything the magistrate considered obscene. The Court unanimously held that the warrant failed to “particularly describe . . . the things to be seized” (p. 319).

DECISION-MAKING EXERCISE 4.1

Who Was That Bald Man?

The police have in their possession the video from a security camera at a bank that was recently robbed. The suspect is a white male, six feet tall, and has a mustache, a bald head, a scar on his left cheek, and a tattoo of a skull

and crossbones on his neck. May the police apply for an arrest warrant based on this information, even if they never learned of the suspect’s name prior to applying for the warrant?

AND IF YOU FIND THE SAME OR ANY PART THEREOF, to bring it forthwith before me at my courtroom

GIVEN UNDER MY HAND, and dated this 17th day of September 2002.

James D. Franklin

Judge of the Superior Court East Desert Division County of San Bernardino State of California

Source: Used courtesy of the San Bernardino County Sheriff’s Department.

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Andresen v. Maryland (427 U.S. 463 [1976])

112 Part 2 • Search and Seizure

Contrast Lo-Ji Sales with Andresen v. Maryland (427 U.S. 463 [1976]), in which the Court upheld a warrant that authorized the seizure of several items “together with other fruits, instrumentalities and evidence of crime at this [time] known” (p. 479). The Court noted that the crime in question was particularly complex and “could be proved only by piecing together many bits of evidence” (p. 482). This is a controversial decision, indeed, because it suggests that, under certain circumstances, the police can circumvent the Fourth Amendment’s particularity requirement.

If the police have a hunch that an item is in a place to be searched but do not include the item in the application for a warrant, the item can be seized under the doctrine of plain view as long as the police are legally authorized (by obtaining a warrant) to be on the premises. Plain view is discussed in the next chapter. Also, if a warrant does not particularly describe the items to be seized (or the place to be searched), then it is not automatically deemed in violation of the Fourth Amendment. If there is an objectively reasonable basis for the officers’ mistaken belief, then the war- rant will most likely be upheld (see Massachusetts v. Sheppard, 468 U.S. 981 [1981]). Also, just because an item is not listed in a warrant does not mean that it cannot be seized. As will be considered in the next chapter, items in plain view can be seized, provided certain conditions are met.

ARRESTS WITH WARRANTS

Justice Powell once stated that “a search may cause only an annoyance and temporary inconvenience to the law-abiding citizen, assuming more serious dimensions only when it turns up evidence of criminality [but an] arrest . . . is a serious personal intrusion regardless of whether the person seized is guilty or innocent” (United States v. Watson, 423 U.S. 411 [1976], p. 428). Even so, an unconstitutional arrest has little significance by itself in criminal procedure. The reason for this is that the remedy for an illegal arrest is simply a release from custody. It is possible that a person unlawfully arrested may sue, but little recourse is generally available to a person who is unlawfully arrested. Why, then, focus attention on the constitutionality of arrests? The answer is that the constitutionality of an arrest is frequently critical in determining whether seized evidence is admissible in court.

Consider this example: Assume that a police officer arrests a defendant without probable cause. Such an arrest is automatically unconstitutional. Assume also that the officer finds an illegal firearm on the defendant and turns it over to the prosecutor, who decides to use it against the defendant at his trial on firearm charges. The defendant will almost certainly seek to have the firearm excluded as evidence on the grounds that it resulted from an unlawful arrest. In other words, the defendant will argue that the firearm is “fruit of the poisonous tree,” as discussed in Chapter 2.

This hypothetical situation is the main reason it is important to study the law of arrest. It is not that the legality of an arrest matters by itself. What is important is that an unconstitutional arrest can lead to the exclusion of evidence. Virtually all arrest cases

DECISION-MAKING EXERCISE 4.2

The Fourth Amendment’s Particularity Requirement

A police officer obtained a search warrant from a judge that authorized the seizure of “numerous marijuana plants and growing equipment” at 123 Main Street. Does this warrant

comport with the Fourth Amendment’s particularity require- ment? What if the warrant also authorized the seizure of “stolen stereo equipment”?

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that make it to the Supreme Court have something in common: A convicted defendant is seeking to have his or her arrest declared unconstitutional so the evidence that led to his or her conviction will be suppressed and/or the conviction reversed.

The Definition of Arrest

Invariably, students of criminal procedure become confused when books and course instructors use terms like seizure, stop, and arrest with little attention to the fact that each term has a very distinct meaning. Think of stops and arrests as being different types of seizures. Additionally, think of each type of seizure as falling along a scale of seriousness: An arrest is the most intrusive type of seizure, and a stop is the next most intrusive. Apart from those simple distinctions, though, it should become clear that there is no easy, ready-made definition of a stop or an arrest (the glossary offers definitions, but even they are imperfect).

Why distinguish between stops and arrests? Arrests require probable cause; stops (the focus of Chapter 6) only require reasonable suspicion. If the circumstances surrounding a stop are such that it evolves into an arrest, then the arrest will be declared unconstitutional and the evidence will be thrown out, assuming the officer did not have probable cause.

RESTRICTED LIBERTY OF MOVEMENT AND BEYOND Prior to the civil rights era, the Supreme Court suggested that anything the police do to restrict a person’s move- ment constitutes an arrest. For example, in Henry v. United States (361 U.S. 98 [1959]), the Court found that an arrest occurred when the police stopped a car whose occupants were suspected of transporting illegal alcohol. According to the Court, “When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete” (p. 103). Since the police in Henry did not have probable cause to stop the men, the so-called arrest was deemed unconstitutional.

Recently, though, the Supreme Court has held that the police must do more than restrict a person’s movement for an arrest to occur. In Terry v. Ohio (392 U.S. 1 [1968]), the case that essentially altered the definition of arrest for all time, the Court ruled that a suspect’s movements can be restricted without such activity being considered an arrest. The Court distinguished between arrests that “eventuate in a trip to the station house and prosecution for crime” and lesser intrusions that can occur “whenever a police officer accosts an individual and restrains his freedom to walk away” (p. 16).

DISTINGUISHING BETWEEN A STOP AND AN ARREST In one sense, distinguishing between an arrest and a lesser type of intrusion, such as a stop, is easy. For example, when a suspect is handcuffed, placed in the back of a patrol car, and driven to the police station for booking, an arrest has clearly occurred. Alternatively, if a person is accosted by a single police officer and asked general questions about his or her suspected involvement in a crime, an arrest has not occurred. However, there are many police/cit- izen encounters that fall between these two extremes. A stop can evolve into an arrest if the circumstances are just so. A seizure that falls short of a formal arrest may be so intrusive as to constitute a de facto arrest, in which case probable cause, rather than reasonable suspicion, would be required to make the encounter constitutional.

Generally, the courts will weigh (1) the duration of a stop and (2) the degree of the intrusion in assessing whether a stop evolved into an arrest. Sometimes, the courts also refer to the officers’ intentions and the manner in which the stop took place. The importance of these issues—particularly, degree and duration—is evidenced by the Supreme Court’s opinion in Florida v. Royer (460 U.S. 491 [1983]):

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The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is neces- sary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. (p. 500, emphasis added)

Several Supreme Court cases are illustrative. Four categories of such cases can be identified: (1) cases involving detention in a stationhouse or similar structure, such as the investigation room in an airport; (2) cases involving an encounter between police and citizens on the street; (3) cases involving a border detention; and (4) cases involving detention in the home. Each category is briefly considered in the paragraphs that follow.

With regard to stationhouse detentions, in Davis v. Mississippi (394 U.S. 721 [1969]), several youths, including Davis, were taken into custody and fingerprinted as part of a rape investigation. The officers did not have probable cause, and Davis was held for two days and interrogated throughout his detention. On the basis of his fingerprints and confession, Davis was charged, convicted, and sentenced to death. The Supreme Court reversed Davis’s conviction on the grounds that detention was too long, too intrusive, and unsupported by probable cause. The Court did not explicitly address the distinction between a stop and an arrest, but it intimated that because probable cause was required to detain Davis, the police officers had effectively arrested him.

In a similar case, Dunaway v. New York (442 U.S. 200 [1979]), the Supreme Court ruled that stationhouse detentions require probable cause. In that case, police officers took a man into custody during the course of a robbery/murder investigation. They read the man the Miranda warnings and subjected him to questioning—without probable cause. The Supreme Court reversed the man’s subsequent conviction. Again, the Court did not decide on the arrest issue, but it did declare that custodial interroga- tion, such as that in Dunaway, must be supported by probable cause. The Court further declared that Terry was inapplicable because it permits only a “limited violation of indi- vidual privacy” while ensuring “interests in both crime prevention and detection and in the police officer’s safety” (p. 209).

In Florida v. Royer, mentioned earlier, the Court ruled again that certain forms of detention can require probable cause, rather than reasonable suspicion. In that case, officers in an airport asked a man to accompany them into a room because he was sus- pected of carrying narcotics. The officers found drugs in the man’s luggage, and he was arrested. The Court declared that the detention, which lasted 15 minutes, constituted an arrest, which required probable cause. As Justice White stated, “What had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room, where the police, unsatisfied with previous explanations, sought to confirm their suspicions” (p. 503). What is important in this case, as well as the preceding two, was that the detention was not consensual. If a person consents to the detention, he or she is not considered under arrest.

It is important to note, also, that not all nonconsensual encounters between police and citizens amount to arrests. As will be addressed later, detentions at the national borders and in other locations are permissible under certain circumstances. In addi- tion, there are situations in which the courts have declared that holding a person for investigative purposes may not arise to the level of an arrest, requiring probable cause. For example, even though the Court reversed a defendant’s conviction in Davis v. Mississippi, it did state that “because of the unique nature of the fingerprinting process, [detentions for the purpose of obtaining fingerprints] might, under narrowly

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defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense” (p. 727).

There are also situations in which encounters on the street (as opposed to questioning in a stationhouse or its equivalent) can evolve into arrests. In Terry, the Supreme Court noted that a stop must be brief, suggesting that any stop that is not brief may require probable cause. While the Supreme Court has been hesitant to put a precise time limit on the length of a stop, it made this statement in United States v. Sharpe (470 U.S. 675 [1985]):

While it is clear that “the brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion,” we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate these purposes. . . . Much as a “bright line” rule would be desirable in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria. (p. 685)

As already noted, Fourth Amendment requirements are significantly relaxed at the nation’s borders. Recall that in United States v. Montoya de Hernandez (473 U.S. 531 [1985]), the Supreme Court upheld law enforcement officials’ 16-hour detention of a suspected drug “balloon swallower” while they waited for nature to take its course, so to speak. The majority approved of the delay because the defendant’s detention “resulted solely from the method by which she chose to smuggle illicit drugs into the country” (p. 559). Justices Brennan and Marshall strongly dissented, however, pointing out that the detention in this case—“indefinite confinement in a squalid back room cut off from the outside world, the absence of basic amenities that would have been provided to even the vilest of hardened criminals, repeated strip searches” (p. 556)— was effectively an arrest, thus requiring probable cause.

Finally, a handful of cases have involved detentions in the home, focusing, in particular, on the extent to which detention of a person (e.g., owner, renter, or guest) in a home can evolve into a full-blown arrest. Somewhat surprisingly, nonconsensual encounters in the home between residents and the police do not always rise to the level of an arrest. For example, in Beckwith v. United States (425 U.S. 341 [1976]), the Supreme Court ruled that questioning by IRS agents of a defendant in his living room was not an arrest or even custodial in nature. Contrast this decision with that of Rawlings v. Kentucky (448 U.S. 98 [1980]), in which several individuals were detained at a house where officers had served an arrest warrant but had failed to find the person named in the warrant. The Court declared that this type of detention amounted to an arrest because there was no probable cause to detain the individuals not named in the warrant. In addition, the detention lasted 45 minutes, which was unnecessarily long, under the circumstances (though not as long as some detentions that the Supreme Court has upheld).

DECISION-MAKING EXERCISE 4.3

What Type of Seizure?

The police concluded that a man who was suspected of rape was also responsible for a recent burglary/rape. Without a war- rant and without probable cause, the police went to the sus- pect’s home to obtain fingerprints. Arriving at the home, the police spoke to the suspect on his front porch, and when he

expressed reluctance to accompany them to the stationhouse, one officer said that they would arrest him. The suspect then replied that he would rather go to the station than be arrested. He was then taken to the station and fingerprinted. Does the police action constitute an arrest?

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The Supreme Court seemed to backpedal on the Rawlings decision in Michigan v. Summers (452 U.S. 692 [1981]), decided a year later. In Summers, the Court held that an individual can be detained during a search of his or her house, without such activity rising to the level of an arrest, as long as the police have a search warrant and even if there is no probable cause to arrest him or her. In support, the Court noted that (1) such detentions are not as embarrassing or stigmatizing as public detentions and (2) when there is probable cause to search for evidence of criminal activity, it is reasonable to assume that the person who lives on the premises is involved. See Figure 4.3 for a summary of this discussion.

DISTINGUISHING BETWEEN A STOP AND A NONSTOP Remember that it is important to distinguish not just between a stop and an arrest but between a stop and a nonstop. If a stop occurs when a reasonable person would not believe that he or she is free to leave, then a nonstop occurs when a reasonable person would believe that he or she is free to leave. A nonstop requires no justification at all because it is not considered a seizure within the meaning of the Fourth Amendment. As will be discussed in Chapter 6, police officers are free to confront people and ask questions of them, as long as the people are free to leave. If the people are stopped, however, then reasonable suspicion is required. And again, if an arrest is made, the requisite standard of justification is probable cause.

Summary. Clearly, distinguishing between arrests and lesser intrusions, such as investigative stops, can be confusing. At one extreme, a seizure that is accompanied by handcuffs, or words to the effect that the person is “under arrest,” is always considered an arrest. At the other extreme, when a person is confronted by a police officer and is not free to leave, but nevertheless briefly detained and not interrogated, an arrest has not occurred. Where the distinction is confusing is in the gray area between a stop and an arrest. A stop can evolve into a de facto arrest in a number of circumstances. The courts will give weight to four factors in making their decision: (1) the purpose of

FIGURE 4.3 Factors Used to Distinguish between a Stop and an Arrest

All four of these criteria should be considered together. For example, if a police/citizen encounter occurs at the stationhouse, the encounter may not be considered an arrest. However, if the encounter is overly lengthy and the citizen is not free to leave, then an arrest has taken place.

1. Purpose a. Intent to arrest = Arrest b. No intent to arrest = Terry stop or nonstop

2. Manner a. Person not free to leave = Arrest or Terry stop b. Person free to leave = Nonstop

3. Location a. At police station or in private = Arrest or Terry stop b. Public = Arrest, Terry stop, or nonstop

4. Duration a. Lengthy = Arrest b. Short = Terry stop or nonstop

Michigan v. Summers (452 U.S. 692 [1981])

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the stop (e.g., to question or interrogate a person); (2) the manner in which the stop takes place (e.g., stopped by one officer or several); (3) the location in which the stop takes place (e.g., stationhouse, street, or home); and (4) the duration of the stop. No single factor is necessarily determinative. If, however, a person is detained by several officers in a stationhouse for several days so as to be interrogated, then the court will almost certainly consider such police activity tantamount to an arrest.

In conclusion, this section has endeavored to provide a definition of arrest, but in fact, no clear definition really exists. The courts must weigh each case individually. Fortunately, most people know an arrest when they see it.

When an Arrest Warrant Is Required

Under common law, if an arresting officer had probable cause to believe that (1) a person was committing or had committed a felony or (2) a person was committing a certain mis- demeanor in the officer’s presence, then an arrest warrant was not required. This held true regardless of where the arrest took place, even if it was effected in someone’s private home (e.g., Trupiano v. United States, 334 U.S. 699 [1948]). The only real situation in which an arrest warrant was required was for a misdemeanor committed out of view of the arresting officer. The logic for this was set forth by the Supreme Court in Carroll v. United States (267 U.S. 132 [1925]):

The reason for arrest for misdemeanors without warrant at common law was to promptly suppress breaches of the peace . . . while the reason for arrest without a warrant on a reliable report of a felony was because the public safety and the due apprehension of criminals charged with heinous offenses required that such arrests should be made at once without warrant. (p. 157)

Since 1925, the Supreme Court has stuck to the rule set forth in Carroll, subject to two exceptions. First, an arrest in someone’s private home cannot be made with- out a warrant, unless exigent circumstances are present. Second, an arrest in the home of a third party is impermissible without a warrant, again providing no exigent circumstances are in place. An example of a third-party situation is one in which the police seek to arrest a person who is visiting a friend’s house. One additional restriction was recognized in Gerstein v. Pugh (420 U.S. 103 [1975])— namely, a judicial determination of probable cause is required when an arrest is made without a warrant (see Chapter 9).

The remainder of this section considers two types of arrest: (1) arrests in the home and (2) arrests in third-party homes. With rare exceptions, a warrant is required for each.

ARRESTS IN THE HOME In the landmark decision of Payton v. New York (445 U.S. 573 [1980]), the Supreme Court held that the Fourth Amendment prohibits a warrantless, non- consensual entry into a private home for the purpose of making an arrest. In that case, police officers, after two days of investigation, had assembled enough evidence to establish probable cause to believe that Payton had murdered the manager of a gas station. The officers went to Payton’s apartment to arrest him. When no one answered the door, they used a crowbar to open the door and entered the apartment. They did not find Payton, but they did find, in plain view, a .30 caliber shell casing lying on the floor. They seized it and admitted it into evidence at Payton’s trial. Payton ultimately surrendered to the police and was indicted for murder. The lower court admitted the shell casing into evidence, but the Supreme Court reversed, stating, “In terms that apply equally to seizures of property and to seizures of

Payton v. New York (445 U.S. 573 [1980])

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persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant” (p. 590). Justice Stevens also stated, citing an earlier case (United States v. United States District Court), that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” (p. 585). In Payton, then, the Court handed down a bright-line rule: An arrest in the home must be accompanied by a warrant in the absence of exigent circumstances. The decision in Kirk v. Louisiana (536 U.S. 635 [2002]) reaffirmed this.

ARRESTS IN THIRD-PARTY HOMES Not long after Payton, the Supreme Court decided Steagald v. United States (451 U.S. 204 [1981]). Justice Marshall expressed concern that although an arrest warrant may protect a person “from an unreasonable seizure, it [does] absolutely nothing to protect [a third party’s] privacy interest in being free from an unreasonable invasion and search of his home” (p. 213). Accordingly, the Court decided that in such situations, the police must obtain not only an arrest warrant for the person they seek but also a separate warrant to search the third-party residence for the arrestee.

The facts in Steagald were as follows: Acting on an arrest warrant issued for a per- son by the name of Lyons, Drug Enforcement Administration (DEA) agents entered the home of Steagald. This entry was made without a warrant. While searching Steagald’s home for Lyons, the agents found cocaine and other incriminating evidence, but they did not find Lyons. Steagald was arrested and convicted on federal drug charges. He appealed, and the Supreme Court eventually reversed Steagald’s conviction. The Court offered the following in support of its position:

Two distinct interests were implicated by the search in this case—Ricky Lyons’ interest in being free from an unreasonable seizure and petitioner’s [Steagald’s] interest in being free from an unreasonable search of his home. Because the arrest warrant for Lyons addressed only the former interest, the search of petitioner’s home was no more reasonable from petitioner’s perspective that it would have been if conducted in the absence of any warrant. (p. 216)

The Court’s decision in Steagald was not without opposition. Justices Rehnquist and White dissented, arguing that the police and judges “will, in their various capacities, have to weigh the time during which a suspect for whom there is an outstanding arrest warrant has been in the building, whether the dwelling is the suspect’s home, how long he has lived there, whether he is likely to leave immediately, and a number of related

DECISION-MAKING EXERCISE 4.4

A Public or Private Arrest?

Federal drug agents had probable cause to arrest John Crook. They knew he was staying at the local motel, but they did not know what room he was in. The agents asked hotel personnel to supply the room number, which they did, and then the agents went to that room. Standing in the hall, one of the agents identified himself to a housekeeping em- ployee and asked him to knock on the door of the room and check whether anyone was in it. The employee knocked and called out, “Housekeeping.” Crook opened the door. The agents recognized him immediately, at which point one of

the agents drew his weapon, pointed it at Crook, and ordered him to raise his hands. Crook immediately raised his hands and said to the agents, “I won’t give you guys any trouble. I’ve got a gun in my right pocket.” Both agents, with their weapons drawn, entered the room. Crook’s gun was removed, and he was advised that he was under arrest. Was a warrant required in this situation? Or, in other words, could this be considered a public arrest? Note that based on the facts supplied, there are no exigent circumstances in place.

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FIGURE 4.4 Summary of Arrest Warrant Requirements

1. When an arrest warrant is required: a. In a home/residence absent exigent circumstances b. In a third-party home; a separate search warrant is also required

2. When an arrest warrant is not required: a. The arrest is made in public (see Chapter 5) b. Exigent circumstances exist (see Chapter 5) c. Consent is given (see Chapter 7)

and equally imponderable questions” (p. 213). The majority countered by pointing out that if the police did not need warrants to enter third-party residences, “[a]rmed solely with an arrest warrant for a single person, [the police] . . . could search all the homes of that individual’s friends and acquaintances” (p. 215). Such a possibility would be controversial, indeed.

Thus, having an arrest warrant does not allow authorities to enter a third-party residence. A warrantless entry into a third-party residence violates the third party’s rights. There are two exceptions to this rule, however. First, if the third party consents to a request by police, a search warrant won’t be necessary (but the arrest warrant will still be necessary). Second, if there is an emergency, or “exigent circumstances,” a warrant may not be required. See Figure 4.4 for a summary of situations in which an arrest warrant is required/not required.

Executing an Arrest Warrant

Assuming a valid warrant is in place, the police cannot use any means available to effect the arrest. For example, they cannot kick in a door without having any reason to do so. Similarly, they cannot use deadly force unless absolutely necessary and for the most dangerous of criminal offenders. In almost all cases, the procedures for executing an arrest warrant are laid out in police department policy manuals. One such policy from the Portland (Oregon) Police Bureau is reprinted in Figure 4.5.

The following subsections focus on four important issues with regard to the service of arrest warrants:

• when the police are required to “knock and announce” their presence, • whether property damage is acceptable, • when deadly force can be used, and • the consequences of arresting the wrong person.

THE “KNOCK-AND-ANNOUNCE” RULE Under common law, the police were entitled to break into a house to make an arrest after announcing their presence and their reason for being there. Today, the method of entry the police can use to serve warrants (arrest and search) is usually set forth in legislation. With regard to federal law enforcement, for example, 18 U.S.C. Section 3109 states that an officer “may break open any outer or inner door or window of a house . . . to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance.”

The law also generally requires that police officers announce their presence and state their authority (e.g., “Police officers! Search warrant!”). Doing so is important for several reasons: (1) it helps avoid needless destruction of property; (2) it helps prevent

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FIGURE 4.5 Arrest Warrant Policy (Portland, OR, Police Bureau)

840.00 ARREST WITH WARRANT

An arrest warrant: An order in writing, in the name of the state, signed by a magistrate with his/her name of office, commanding the arrest of the defendant.

An arrest warrant must specify the name of the defendant. If unknown, the defen- dant may be designated by a fictitious name with a statement therein that his true name is unknown. An arrest warrant must also state a crime in respect to which the magis- trate has authority to issue the warrant.

Obtaining an Arrest Warrant

A complainant or an investigator will appear before a deputy district attorney and justify the complaint.

a. All felony complaints will be handled either by the Detective Division, or by the complainant.

b. On a felony complaint, an investigator may accompany the complainant to the District Attorney’s office and assist if necessary.

c. The investigator may, with the concurrence of a deputy district attorney, justify a felony complaint without the complainant being present.

If justified, an affidavit will be:

a. Prepared by a deputy district attorney or investigator. b. Signed by the complainant or investigator. c. Notarized. d. Sent to a magistrate.

In felony cases, complainants or investigators will accompany the affidavit and swear an oath before the magistrate. The magistrate will examine the affidavit and, if justified, will issue an arrest warrant. On a felony complaint, the district attorney will have the option of bypassing the magistrate and submitting the complaint directly to the Grand Jury.

Arrest Warrant Processing Responsibilities

The Multnomah County Sheriff’s Office (MCSO) is responsible for the physical mainte- nance of all warrants within Multnomah County. They will ensure the entry, modification and clearance of warrants into the computer, publish a computer printout of Warrants on File by Precinct and also a Notice of Warrant on File record card. The record card will be used to record the attempt or service of a warrant.

The Bureau restricts warrant service to the following guidelines:

a. Major Warrants (felony, Class A misdemeanor, and major traffic offense warrants) can be served on any day, at any hour, when the defendant can be found.

b. Minor Warrants (Class B and C misdemeanor, violations, traffic infractions, warrants, etc.) will generally be served during hours that will minimize the inconvenience to the defendant.

c. Exceptions, caused by unusual circumstances, require approval by an immediate supervisor.

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The Bureau will actively undertake the service of arrest warrants issued within the City. The MCSO will deliver daily to the Bureau’s Records Division, Mail Distribution Section, envelopes addressed to the appropriate precincts. The envelopes will contain computer-produced listings of Warrants on File Notices issued the previ- ous day and a Warrant on File Record card for each entry.

a. Precinct commanders will be responsible for the maintenance of the Warrant File Notices computer listing. The computer listings will be retained by each Precinct for thirty (30) days and will reflect the following information: 1. The assignment of the Notice of Warrant on File card to a relief officer and the

date of assignment. 2. The final disposition, whether served or an attempt of service is made, and the date. 3. The date the warrant card is sent back to MCSO (must be ten (10) days of date

assigned).

b. Assigned district officers will make at least one documented attempt to serve the assigned warrant. The attempt will be noted in the space provided at the bottom of the Notice of Warrant on File card. 1. Members attempting service of a warrant will verify its status, prior to making

an arrest, by MDC, radio or telephone to MCSO warrants base. Verification can be made by members directly or through precinct/unit members.

c. After the warrant has been confirmed and the member feels confident the checked subject is the person named on the warrant, the requesting member will complete the arrest procedure and transport the arrested subject to the appropriate booking facility. 1. There is no need for the arresting member to physically serve the verified war-

rant on the arrested subject. The warrant will be served by MCSO staff during the booking process.

2. Unless exceptional circumstances dictate otherwise, members will not pick up warrants from MCSO.

3. Arresting members will not accept bail money or issue receipts to persons attempting to post bail. The arrested subject will be transported to MCDC for purposes of either posting bail or booking. Where specified on the warrant, a citation in lieu of custody may be issued.

4. If the county warrant stipulates that a citation-in-lieu-of-custody can be written, and there are no other bookable charges, the arresting member may issue a cita- tion-in-lieu-of-custody. The member must advise MCSO warrants base of the issuance of such as soon as possible.

d. Members will complete the Notice of Warrant on File Card by noting the served date, time, the name of the serving member and the DPSST number. It will be routed directly to MCSO Detention and Warrant Records by precinct/division members.

In those instances where a member determines a subject has moved to a new address within the city, a supervisor’s approval may be requested for travel to another precinct to continue the apprehension effort. The Notice of Warrant on File Card may be transferred to another precinct if the precinct’s computer produced Warrant Notice List is updated to reflect the transfer. In all cases, the cards must be returned within ten (10) days to the MCSO.

Source: Portland Police Bureau, Manual of Policy and Procedure (January 2007). Reprinted with permission

of the Portland Police Bureau.

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violence resulting from unnecessary surprise; and (3) it helps preserve people’s dignity and privacy. Of course, in certain situations, these reasons for a “knock-and-announce” requirement do not serve their intended purposes. In fact, the second reason can work opposite from what is intended: If the police are required to announce their presence for all manner of suspects, such an announcement could result in violence, rather than reduce the possibility for it. What, then, are the criteria for determining when a “knock and announce” is not required? It is useful to turn to Supreme Court precedent to answer this question.

The first case in which the Court addressed the constitutionality of the common-law knock-and-announce rule was Wilson v. Arkansas (514 U.S. 927 [1995]). In that case, Wilson had conducted several narcotics transactions with an informant over a period of several months. Based on the informant’s information about those transactions, police officers obtained an arrest warrant for Wilson as well as a search warrant for her home. When the officers arrived at Wilson’s residence, they identified themselves and declared that they had a warrant as they entered the home through an unlocked door. They did not knock and wait for an answer. In addition to finding evidence, the officers found Wilson in the bath- room, flushing marijuana down the toilet. At her trial, Wilson moved to suppress the evidence collected by the officers on the grounds that the search was invalid because the officers did not follow the common-law knock-and-announce rule before entering her home to serve the warrants. The Supreme Court ruled that the officers were required to follow the knock-and-announce rule. According to the Court, “An examination of the common law of search and seizure . . . leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announce their presence and authority prior to entering” (p. 931).

The Supreme Court later clarified its position in the case of Richards v. Wisconsin (520 U.S. 385 [1997]). There, the Court held that police can dispense with the knock- and-announce rule if they have reasonable suspicion that such a requirement “would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence” (p. 394). Basically, then, if the police have reasonable suspicion to believe that exigent circumstances are present, they do not necessarily have to knock on the door and announce their presence.

It is critical that when an announcement is required, police officers announce their authority and their intentions. This came to light in Miller v. United States (357 U.S. 301 [1958]). In that case, police officers arrived at Miller’s apartment at 3:45 a.m. without a war- rant but for the purpose of arresting Miller. One of the officers knocked on Miller’s door. When Miller asked who it was, the officers did nothing more than answer “Police.” Miller then opened the door slightly, as it was secured by a chain, and inquired as to the officers’ intentions. At that point, Miller attempted to close the door, but one of the officers reached through the opening and disconnected the chain. The officers then entered the apartment and arrested Miller. The Supreme Court ultimately reversed Miller’s conviction on the grounds that the officers never adequately announced their intention to arrest Miller.

DECISION-MAKING EXERCISE 4.5

Serving a Search Warrant in a Third-Party Residence

Sue Lyons leases an apartment and lives by herself. However, when she found out that her old boyfriend, Fred Taber, had been on the run from authorities for several months, she offered to let him stay at her apartment. She gave him a key so he could come and go at will. After eight weeks, during

which time Fred continued to live with Sue, the police were alerted as to his presence by a vigilant neighbor. Officers then entered Sue’s apartment without a warrant and arrested Fred. Will the arrest hold up? IS

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Sabbath v. United States (391 U.S. 585 [1968])

Hudson v. Michigan (547 U.S. 586 [2006])

In United States v. Banks (540 U.S. 31 [2003]), the Supreme Court considered how long the police should wait after announcing their presence and intentions. In that case, police served a warrant by first knocking on the door and then calling out “Police, search warrant.” They waited 15–20 seconds and, after getting no response, broke down the door with a battering ram. The Supreme Court upheld this action, arguing that the 15–20-second wait—coupled with the announcement—was sufficient. The Court did not, however, require that police always wait 15–20 seconds before entering.

Most recently, in Hudson v. Michigan (547 U.S. 586 [2006]), the Supreme Court decided that a violation of the knock-and-announce rule need not lead to exclusion of evidence. In that case, officers had a search warrant but failed to follow the knock- and-announce rule. Evidence was seized and a trial court judge ruled that it could not be used. A Michigan appeals court reversed and the Supreme Court affirmed. In a 5 to 4 decision, the Court held that evidence need not be excluded simply because the police violated the knock-and-announce rule. The Court offered the following in support of its decision:

The interests protected by the knock-and-announce rule include human life and limb (because an unannounced entry may provoke violence from a surprised resident), property (because citizens presumably would open the door upon an announcement, whereas a forcible entry may destroy it), and privacy and dignity of the sort that can be offended by a sudden entrance. But the rule has never protected one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests violated here have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable. (p. 585)

PROPERTY DAMAGE In Sabbath v. United States (391 U.S. 585 [1968]), the Supreme Court focused on the extent to which police officers can break and enter for the purpose of serving a warrant. In particular, the Court focused on the part of 18 U.S.C. Section 3109 that permits officers to “break open an outer door or window.” In Sabbath, police officers enlisted the help of a man named Jones, whom they had caught trying to smuggle drugs into the country, to apprehend Sabbath, the man who was to receive the shipment of drugs. Jones agreed to deliver the drugs to Sabbath while the police looked on. After Jones entered the apartment, the officers knocked on the door. Not hearing a response, the officers opened the unlocked door, entered the apartment with guns drawn, and arrested Sabbath. The court of appeals affirmed Sabbath’s conviction on the grounds that because the officers did not enter by force, the knock-and-announce rule of Section 3109 was not triggered.

Chapter 4 • Searches and Arrests with Warrants 123

DECISION-MAKING EXERCISE 4.6

A Properly Served Arrest Warrant?

DEA agents and county police officers executed a search war- rant at a drug dealer’s house. In executing the warrant, the agents and officers gathered on the back porch of the house, knocked on the back door, yelled “Police, arrest warrant!” sev- eral times, and then broke down the door. During the search that followed, the officers seized a fully loaded revolver,

150 vials of cocaine, and cash in excess of $27,000. Did this action comport with the federal knock-and-announce rule enunciated in 18 U.S.C. Section 3109, which states that officers “may break open any outer or inner door or window of a house . . . to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance”?

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124 Part 2 • Search and Seizure

The Supreme Court disagreed with this reasoning, however, and reversed Sabbath’s conviction. According to the Court, “An unannounced intrusion into a dwelling—what Section 3109 basically proscribes—is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or, as here, open a closed but unlocked door” (p. 590). This case seems to suggest that whether physical damage inflicted to the premises is immaterial. Instead, what is important is merely that officers knock and announce their presence.

In cases in which physical damage to the premises is significant, even excessive, the Fourteenth Amendment enters in. As this chapter indicates, the service of arrests war- rants (and, by extension, search warrants) is governed by the Fourth Amendment. However, some attempts to seize people are governed by the Fourteenth Amendment’s due process clause. This was the unanimous holding in County of Sacramento v. Lewis (523 U.S. 833 [1998]). In that case, a police officer ran over the passenger on a motorcycle, killing her, while pursuing the driver. This was another case that arrived at the Supreme Court by way of a civil lawsuit.

The Court held that since a stop had not occurred (see the discussion of California v. Hodari D. in the previous chapter), the Fourth Amendment was not implicated. Instead, the Court held that the Fourteenth Amendment’s due process clause was relevant because it protects citizens from arbitrary government action. The Court went on to note that had the police conduct in Lewis “shocked the conscience,” then the police would have been liable. The Court observed that “[w]hile prudence would have repressed the [officer’s] reaction, the officer’s instinct was to do his job as a law enforce- ment officer, not to induce [the driver of the motorcycle’s] lawlessness, or to terrorize, cause harm, or kill” (p. 855).

Applying Lewis to the service of warrants, complaints about excessively destructive police conduct during the service of warrants are also governed by the Fourteenth Amendment. If the police’s conduct shocks the conscience, then they may be liable under the due process clause. But there is no easy way to define what conduct shocks the conscience. At least one case has suggested that when police officers show “deliberate or reckless indifference,” their conduct can be seen as conscience shocking (see Estelle v. Gamble, 429 U.S. 97 [1976]).

PERMISSIBLE DEGREE OF FORCE It is appropriate at this juncture to consider what level of force is permitted against people who are the targets of arrest warrants. Almost every state has a law or regulation concerning police use of force. The American Law Institute adopted just one such regulation, which resembles many others in place around the United States. Section 120.7 states that a police officer “may use such force as is reasonably necessary to effect the arrest, to enter premises to effect the arrest, or to prevent the escape from custody of an arrested person.” Further, deadly force is authorized when the crime in question is a felony and when such force “creates no substantial risk to innocent persons,” and the officer reasonably believes that there is a substantial risk that the fleeing felon will inflict harm on other people or police officers.

In Tennessee v. Garner (471 U.S. 1 [1985])—which involved the shooting death of a young, unarmed, fleeing felon—the Supreme Court adopted a rule similar to the American Law Institute’s formulation. The result was the leading Supreme Court precedent concerning the use of deadly force to apprehend fleeing felons. The Garner decision declared unconstitutional a Tennessee statute that authorized police officers who give notice of the intent to arrest to “use all the necessary means to effect the arrest” if the suspect flees or resists.

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Chapter 4 • Searches and Arrests with Warrants 125

The Court ruled that deadly force may be used when (1) it is necessary to prevent the suspect’s escape and (2) the officer has probable cause to believe the suspect poses a serious threat of death or causes serious physical injury to other people or police officers. One would think that the Supreme Court would be unanimous in a decision such as this, but three justices dissented, noting that the statute struck down by the majority “assist[s] the police in apprehending suspected perpetrators of serious crimes and provide[s] notice that a lawful police order to stop and submit to arrest may not be ignored with impunity” (p. 28).

Four years after Garner, the Supreme Court decided the landmark case of Graham v. Connor 490 U.S. 386 [1989]), which set the standard for nondeadly force. The Court declared emphatically that all claims involving allegations of excessive force against police officers must be analyzed under the Fourth Amendment’s reasonableness requirement. Further, the Court adopted a test of objective reasonableness to decide when excessive force is used. This requires focusing on what a reasonable police officer would do “without regard to [the officer’s] underlying intent or motivation.” In deter- mining what a reasonable police officer would do, the Court looked to three factors: (1) the severity of the crime; (2) whether the suspect posed a threat; and (3) whether the suspect was resisting and/or attempting to flee the scene. Courts must, in focusing on these three factors, allow “for the fact that police officers are often forced to make split-second judgments—about the amount of force that is necessary in a particular situation” (p. 386). Generally, then, if the crime in question is a serious one and the suspect is dangerous and resists arrest, then he or she will have difficulty succeeding with an excessive force claim.

Incidentally, both the Garner and Graham decisions resulted from Section 1983 lawsuits (see Chapter 2). Garner’s surviving family members and Graham himself both sued on the grounds that their constitutional rights were violated. Whereas many of the cases examined in this book focus on the evidence of crimes (e.g., weapons, drugs, confessions), Garner and Graham do not. How evidence was obtained was not at issue because there was none. Thus, the only remedy available to Garner’s family and Graham was civil litigation.

Garner and Graham both are necessarily general. States, cities, and counties around the country have adopted more restrictive guidelines for their officers concerning the use of force. To illustrate, the use of force policy from the San Bernardino, California, Police Department is reprinted in Figure 4.6.

ARRESTING THE WRONG PERSON On occasion, the police have a warrant to arrest someone but end up arresting the wrong person. The most obvious consequence of ar- resting the wrong person is that he or she must be let go (and will possibly file a law- suit). What the courts have focused on, though, is the admissibility of evidence resulting from a wrongful arrest. An example of such a situation would be one in which the

DECISION-MAKING EXERCISE 4.7

Deadly Force beyond Present Dangerousness

Garner seems to be concerned with present dangerousness. That is, police officers contemplating the use of deadly force have to consider, among other factors, how dangerous the suspect is before resorting to deadly force. But what if the

suspect committed the crime days or even months earlier? Can the police use deadly force to apprehend, say, an un- armed, fleeing individual who is the suspect in a weeks-old robbery?

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FIGURE 4.6 Use of Force Policy (San Bernardino, CA, Police Department)

STANDARD OPERATING PROCEDURE CHAPTER #35 PROCEDURE #1

USE OF FORCE Revised 12-22-04

PURPOSE

To provide guidelines and parameters for police personnel concerning their use of force to accomplish their lawful duties and objectives.

POLICY

Police personnel have the legal authority to use the appropriate amount of force to protect themselves and the public from assaultive criminal behavior. However, the amount of force used must be both necessary and reasonable. Personnel shall use only that amount of force that reasonably appears necessary based upon articulable facts and the totality of circumstances known to the officer at the time of the event. Personnel should choose the appropriate force response to overcome active resistance or aggressive behavior. Therefore, personnel should be reasonable in their actions and demonstrate common sense when employing force.

The primary objective in the application of force is to ensure control of resistant or combative suspect(s) with the minimal amount of force necessary. No specific guidelines or policies can apply to all situations; therefore, personnel should constantly evaluate all use of force applications or options. The use of force will either escalate or de-escalate based upon the totality of circumstances during the course of an arrest or detention.

This policy will also include the use of force on combative subject(s) who do not rise to the level of being criminal suspects, such as W&I 5150.

The scale of force options in order of increasing severity are: verbal persuasion, compliance control techniques, intermediate force (chemical agents, lateral vascular neck restraint, or electronic disabling devices), and impact weapons. It is not necessary for personnel to exercise each option before escalating to the next level of force but flexibility is essential to maintain control during the dynamics of a physical confrontation. When choosing a particular force option, these factors should be taken into consideration:

1. The severity of the crime(s) involved or subjected. 2. The conduct/behavior of the suspect(s). 3. Whether the suspect(s) poses an immediate threat to the officer(s) or others. 4. Whether the suspect(s) has, used, or displayed a weapon. 5. The proximity of weapons. 6. Officer/suspect factors (age, physical size, relative strength, skill level, injury/

exhaustion, number of officer(s) versus number of suspect(s)). 7. Influence of drugs or alcohol. 8. Potential for injury to bystanders. 9. Availability of other options.

10. Other exigent circumstances.

PROCEDURE

Personnel shall only possess that equipment authorized or issued by the department. Only those defensive tactics or arrest control techniques authorized by or instructed by department personnel or other authorized persons are permitted excluding exigent

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Chapter 4 • Searches and Arrests with Warrants 127

circumstances. The level of force utilized should be that level which would quickly, safely, and humanely bring resisting subject under physical control. Personnel should employ escalating scale of force options in order of increasing severity to overcome the suspect(s) resistance.

1. Scale of Force

A. Persuasion The presence of a confident uniformed police officer displaying professional demeanor coupled with good verbal communication will generally convince a resistant subject to submit to your authority without the necessity of an escala- tion in force. Good verbalization may be advising, admonishing, warning, or persuading a subject to submit to your authority without the use of profanity or derogatory language. Officers should use their verbal techniques to de-escalate confrontations.

B. Compliance Control Techniques Compliance techniques consist of the physical application of force in the form of joint manipulations, blocks, pain compliance, and takedowns. These empty handed techniques should be coupled with a police officer’s verbal commands.

C. Intermediate Force 1. Chemical Agents

Police personnel may use chemical agents as an intermediate level of force for controlling or subduing combative persons. Chemical agents are defensive control weapons used to control or subdue subjects who are physically resisting arrest. Chemical agents should not be used indiscriminately and shall not be used against non-combative persons. It should not be used against a subject who is under restraint unless that subject is physically assaulting officers or others.

2. Lateral Vascular Neck Restraint The lateral vascular neck restraint (LVNR) is a means of subduing physically combative persons. This technique is a method which permits personnel to apprehend violent subjects who cannot be controlled or restrained with compliance or control holds.

3. Taser The electronic disabling device (taser) is a device, which may be used to subdue physically combative person/s in violent or potentially violent situations lessening the injury to the subject/s or officers involved. The taser may be used if other apprehension methods or restraints have failed or are deemed impractical and there is a reasonable expectation that it would be hazardous for personnel to approach and physically contact the subject/s.

D. Impact Weapons Impact weapons are methods of subduing physically combative persons or immediately impeding the threatening actions of a violently resistant subject with physical strikes to the subject’s body. These physical strikes shall be directed to those areas which are easily accessible, effective for quickly subduing the subject/s, and unlikely to cause serious injury. Other self defense techniques, kicks or arm strikes, can be used if the officer’s baton is unavail- able. Other authorized police equipment may be used as an impact weapon in exigent circumstances.

Figure 4.6 continued

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128 Part 2 • Search and Seizure

2. Reporting the Use of Force

Any physical use of force by personnel of this department shall be documented in an appropriate report depending upon the nature of the incident. When a use of force greater than a compliance control technique occurs, personnel shall promptly make an oral report to the watch commander or a supervisor. If the application of any force including a compliance control hold (See Procedure, Section 1, subsection B for definition) has caused physical injury or complaint of pain, personnel shall make their oral report immediately. Personnel shall document the name of the notified supervisor in their report. Any injury suffered by a suspect in our custody, whether caused by an officer or other person (including self-inflicted wounds) shall be imme- diately reported to a supervisor. Medical assistance shall be obtained for suspects who have been rendered unconscious, sustained injury, or complain of pain. Any supervisor notified of a use of force including compliance control holds that result in a complaint of pain requiring examination by a medical provider or obvious physical injury, shall complete a department approved Use of Force form. The documentation of suspect’s injuries, or claimed injuries, is a valuable part of the use of force process for two reasons: 1) documentation of visible injuries and, 2) prevention of false or inflated allegations of injuries that did not occur during police contact. The reporting supervisor shall ensure photographs are taken of the specific area of the body on which force was used, whether or not the suspect initially claims any injuries. When a suspect is treated at a hospital after the use of force, the reporting supervisor shall document the name of the treating medical provider along with medical provider’s brief statement (when available) as to the extent of the injuries. If a suspect is hospitalized or receives a serious injury due to a use of force incident, the watch commander shall notify the officer’s division commander. If the officer using force is a supervisor, he/she shall promptly make an oral report to the watch commander who will designate another supervisor to respond to the scene and complete the use of force report. The involved super- visor will write a follow up to the crime report describing the circumstances and the force used. The reporting supervisor shall complete a Use of Force report. The completed Use of Force report along with a copy of the corresponding police report will be forwarded to the appropriate district or unit manager for review. The supervisor will request that the photographs be developed and forwarded to the district/unit manager. The district/unit manager will complete his/her review of the facts. If the manager determines there is a need for a more in-depth assessment, he/she will prepare a staff report before forwarding to the division commander.

3. Report Filing

Use of Force reports shall be issued a “UF” number. After final review, Use of Force reports shall be kept in a secure file located in the Internal Affairs Office. Use of Force reports in need of further review will be forwarded to the Assistant Chief of Police for further action. Any use of force report that is referred by the Assistant Chief of Police to Internal Affairs for further review or investigation, will be provided to the officer through the administrative investigation process.

Source: Chapter 35, Procedure I, “Use of Force,” from Standard Operating Procedure, San Bernardino,

California, Police Department (rev. December 22, 2004). Reprinted with permission.

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police serve an arrest warrant at the wrong house and, during the course of arresting the wrong person, discover evidence of another crime. To what extent would such ev- idence be admissible? It depends on the reasonableness of the police action.

In Hill v. California (401 U.S. 797 [1971]), the Supreme Court focused on an arrest of the wrong person. In that case, the police arrived at Hill’s apartment to arrest him, but Miller answered the door. Since Miller fit Hill’s description, the police arrested Miller. Miller even provided identification to prove that he was not Hill, but the Court stated that “aliases and false identifications are not uncommon” (p. 803). A pistol and ammunition clip were in plain view. These were admitted into evidence, and the Supreme Court focused on their admissibility. The Court ruled that the police could have reasonably believed that Miller was Hill. Furthermore, the Court pointed out that “sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers’ mistake was understandable and the arrest a reasonable response to the situation facing them at the time” (p. 803).

SEARCHES WITH WARRANTS

Searches with warrants are subjected to many of the same restrictions that arrests with warrants are. However, because the purpose of obtaining a search warrant is to search for something, as opposed to seizing a person, the courts have placed significant restrictions on what the police can do when searching for evidence with warrants. Just because a warrant is obtained does not mean that the police can look anywhere and take unlimited time to search for the item(s) named in the warrant.

Executing a Search Warrant

The knock-and-announce rules discussed earlier carry over to the service of search war- rants. As indicated before, the police do not have to announce their presence if they have reasonable suspicion that exigent circumstances are present. Likewise, even if police do not “knock and announce,” evidence seized cannot be excluded per Hudson v. Michigan.

Use of force is rarely an issue that arises during the service of a search warrant because, strictly speaking, a search warrant authorizes the police to look for evidence. If a person gets in the way during the service of a search warrant, however, he or she may be arrested and force may be applied, if need be (i.e., subject to the restrictions discussed earlier).

If the police mistakenly search the wrong residence, the search will not automati- cally be declared invalid. As pointed out earlier, as long as the mistake is a reasonable one, any evidence seized during a search of the wrong residence will be admissible in a criminal trial. The key, however, is that the mistake must be an objectively reasonable one, gauged from the standpoint of a reasonable officer.

Four other issues are relevant to the service of a search warrant. These do not necessarily apply in the case of arrest warrants. They are: (1) time restrictions, both for when the warrant can be served and for how long the police can look for evidence; (2) the scope and manner of the search; (3) the procedure after the service of the search warrant; and (4) the presence of the media during the service of a search warrant. To illustrate the complexity inherent in search warrant procedure, the Portland (Oregon) Police Bureau’s search warrant policy is reprinted in Figure 4.7.

It is important to note that the police can sometimes request a search warrant with special instructions, which can include night service, no-knock authorization,

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130 Part 2 • Search and Seizure

FIGURE 4.7 Search Warrant Policy (Portland, OR, Police Bureau)

652.00 SEARCH WARRANTS

POLICY (652.00)

A search warrant should be obtained for all searches whenever there is time to do so and when there is any doubt about the necessity of obtaining a warrant.

PROCEDURE (652.00)

Any magistrate authorized to issue a warrant of arrest may issue a search warrant for:

a. Evidence of, or information concerning, the commission of a criminal offense. b. Property that constitutes contraband or items otherwise criminally possessed. c. Fruits of a crime (see ORS 133.535). d. Property that has been used, or is possessed for the purpose of being used, to

commit or conceal the commission of an offense. e. A person for whose arrest there is probable cause or who is unlawfully held in

concealment.

Search Warrant Issuance (652.00)

a. Application for a search warrant may be made by a district attorney or by any police officer. Search warrants and affidavits will normally be written by the member requesting the warrant. Warrant preparation will be coordinated with the appropriate investigative unit.

b. Search warrants are only issued upon a finding of probable cause to believe that an offense has or will be committed. The probable cause is based upon the mem- ber’s personal knowledge and/or hearsay information from another member, a named citizen or undisclosed informant. The probable cause is relayed to the magistrate through use of an affidavit. The affidavit should: 1. Contain a clear and distinct description of the place(s) to be searched and the

item(s) to be seized. 2. Provide facts and circumstances which provide probable cause for the search.

This includes: a) Information justifying the search; and b) Information leading to the belief that the object(s) of the search are in the

places or the possession of the subject(s) to be searched. c. Before issuing the warrant, the magistrate will need to be satisfied that probable

cause exists. The magistrate may examine the affiant or any witnesses under oath. d. Prior to the issuance of a search warrant, a magistrate may request that a meeting be

arranged at a time and place convenient for all parties involved, so the magistrate can interview any informant(s) contributing information towards the probable cause.

e. When hearsay information of an undisclosed confidential informant is relied upon to establish probable cause, that information must be independently corroborated (e.g., information demonstrating past reliability of the informant or by personal observation and corroboration).

f. An ongoing chronological record will be maintained of each informant’s activities and reliability by those divisions issuing evidence/informant funds. This file is to be reviewed by a supervisor prior to requesting a search warrant based on an informant’s reliability. Members will comply with DIRs 660.00 and 660.32.

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Search Warrant Checklist (652.00)

A search warrant checklist has been adopted by the Bureau, the Multnomah County District Attorney’s Office and Multnomah County court magistrates.

This checklist is available on the Bureau’s Intranet. Included on the checklist is a section indicating the investigator has conducted a check through Oregon State Intelligence Network (OSIN) to ensure that the warrant address is not currently the subject of an investigation by another agency and/or division.

The check is mandatory, and will be done prior to the issuance of any search war- rant. This form will be used for all Multnomah County search warrants obtained by the Bureau. Members should follow warrant application and return procedures for other counties as instructed by local magistrates.

A supervisor should review the probable cause, informant reliability, and the search warrant affidavit prior to its submission to the DA’s office. A deputy district attorney (DDA), from the appropriate county, will review every search warrant affidavit in person or by telephone.

A copy of the search warrant and the original affidavit will be left with the issuing magistrate. Search warrants will be served as soon as possible. Extended delay of service is to be avoided.

Threat Assessment and Planning (652.00)

All search warrant executions involving a potential threat to members or citizens require a Planned Operations Risk Assessment form be completed prior to execution. This form is available on the Bureau’s Intranet.

Examples of a threat might include, but not be limited to, violent suspects, animals, obstacles causing a delay to securing the search location, or even a lack of information about the location to be searched.

The supervisor responsible for the search warrant execution is responsible for the proper completion of the risk assessment form and any other necessary planning to ensure the safe and effective service of the warrant. The supervisor will ensure that the SERT commander, or designee, will be consulted, as required by the completed Planned Operations Risk Assessment form. This will assist the evaluation for need of SERT and/or HNT in the execution of the warrant.

If SERT/HNT are needed or requested, the SERT commander, or designee, will coordinate with HNT and the originating division/unit commander or designee, to ensure all tactical considerations have been discussed. The original completed risk assessment form, if not forwarded to SERT as a request for their services, will be retained in the investigator’s case file.

Execution of the Warrant (652.00)

a. Only a police officer may serve a search warrant. Generally, execution of a search warrant is restricted to between 0700 and 2200 hours unless it is otherwise endorsed on the warrant by the issuing magistrate.

b. A warrant is generally valid for five days after the date of its issuance. If the war- rant is not executed within this period, it is void. A new affidavit must be filed and new search warrant issued. The issuing magistrate may, however, authorize execution of the warrant for up to ten days after its issuance. This authorization must be specified on the face of the warrant. Before entering any premises, the executing member will knock and give appropriate notice of identity, authority and purpose to the person to be searched or to the person in apparent control of the premises to be searched. If the member is not admitted after such notification,

Figure 4.7 continued

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132 Part 2 • Search and Seizure

force may be used to enter the premises. In emergency situations, a no-knock entry may be performed (e.g., where members or others are at risk of bodily harm or where evidence may be destroyed). If such entry occurs, the circumstances leading to the entry will be clearly articulated in the incident report form. If it is determined that no one is at the residence, members have the authority to forcibly enter (see DIR 631.60). Before undertaking any search or seizure pursuant to the warrant, the executing member will: 1. Read and give a copy of the warrant (not the affidavit) to the person to be

searched, or to the person in apparent control of the premises to be searched. 2. Affix a copy of the warrant to the premises if the premises are unoccupied, or

there is no one in apparent control. c. In the course of executing a search warrant, the member may take reasonable

precautions to ensure that property will not be removed while the search is being conducted and to prevent interference with the search. Members have the same power and authority in all respects to break open any door or window and to use all necessary and proper means to overcome any forcible resistance as they do in executing or serving a warrant of arrest. In securing the premises to be searched, the member may seek out all persons on the premises and bring them to a central location for observation during the search.

d. Members of the media will not be allowed to enter private property without the consent of the property owner or individual in charge of the involved property.

Limitations of Warrants (652.00)

a. The scope of searches pursuant to search warrants is limited to the premises specified in the warrant and only for those items specified in the warrant to be seized. 1. The search must be terminated once all items specified in the warrant are

discovered. 2. If during execution of a warrant, there is inadvertent discovery of evidence not

specified in the warrant (even when the evidence is of an unrelated crime), it may be seized under the plain view exception.

3. Unless the warrant(s) authorize the search of a named person(s), a search war- rant for a residence or other premises does not permit a search of all the persons present during the time of the search. if there is probable cause to believe that persons on the premises are carrying or concealing items which reasonably could be the objects of the search warrant, those persons may be detained and searched to the extent necessary to determine whether they are concealing items covered by the warrant.

b. A member may remain on the premises in a search warrant only during the time reasonably necessary to conduct the search for the property described in the warrant.

Post Execution Responsibilities (652.00)

Upon execution of the search warrant, the member will: a. Leave a copy of the warrant and property receipt(s) specifying, in detail, the prop-

erty taken. This copy will be left with the person from whom the property was taken, or in whose possession the property is found. In the absence of any person, the copy of the warrant/receipt(s) will be left in the place where the property was found.

b. Secure the location if the owner or other responsible party is unavailable.

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Chapter 4 • Searches and Arrests with Warrants 133

c. File all affidavits, search warrants and returns, regardless of any associated cases, with the Circuit Court issuing judge. Members will file the search warrant return and receipts as soon as reasonably possible, but no later than five days, after the execution or expiration of the warrant.

d. Following execution of a search warrant which involves the distribution or manu- facture of controlled substances, prostitution and/or gambling, members will complete a Drugs and Vice Division (DVD) Completed Activity Report and for- ward the form to DVD. The information may be used to take action against the property owner under the specified crime property ordinance.

Telephonic Search Warrant Guide (652.00)

a. Preparation: 1. Assemble notes, outline or handwritten affidavit (for dictation). 2. Type or hand write the search warrant. 3. Discuss with the DDA, if appropriate. 4. Locate the judge. 5. Discuss briefly with the judge to resolve any questions.

b. Turn on recorder; remember, what you told the judge before the recording starts does not count, so start over at the very beginning.

c. Preface phrase: 1. Affiant’s name. 2. Date and time. 3. Telephonic warrant. 4. Judge’s name and authority. 5. Note that this is a recording. 6. Example: This is Officer (Name) presenting a telephonic affidavit for a search

warrant on (Date) at (Time). This request is being made to Judge (Name), of the Circuit Court, Multnomah County, State of Oregon, and is being tape recorded for later transcription.

d. Affiant identification phrase: 1. Name. 2. Oath (Upon my oath, I (Name), do hereby depose and say . . . ). 3. Employer, assignment, length of service.

e. Factual information – body of affidavit; organize your dictation to cover all critical areas including: 1. Informant credibility and reliability. 2. Observations of informant. 3. Location of place to be searched, property to be seized, identity of resident. 4. Corroboration, if available. 5. Venue (judge must be from court where search is to be done).

f. Request permission to search (Standard Request for Warrant). g. Have judge administer oath. h. Read typed or handwritten search warrant to judge. Judge must hand write or

type original warrant. i. Obtain permission to search. j. Obtain permission to sign judge’s name to duplicate warrant.

k. Have judge declare that the judge is signing the original search warrant. l. Note time and date of authorization; end tape. Make sure the judge writes the

time and date on the original warrant.

Figure 4.7 continued

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Gooding v. United States (416 U.S. 430 [1974])

134 Part 2 • Search and Seizure

and the like. An example of the face sheet for a special instructions warrant from the state of California is reprinted in Figure 4.8.

TIME CONSTRAINTS There are three means by which the courts impose time constraints on the police when it comes to the service of search warrants. First, the service of a search warrant should take place promptly after its issuance. Clearly, probable cause could dissipate if an excessive amount of time elapses between the time the warrant is issued and the time it is served. To avoid this potential problem, a warrant will sometimes specify that the search be conducted within a certain period of time.

A second time restriction that is occasionally imposed pertains to the time of day. Judges commonly restrict the service of warrants to the daytime hours or at least favor daytime service (see Gooding v. United States, 416 U.S. 430 [1974]). The Federal Rules of Criminal Procedure, for example, restrict the service of warrants to daytime hours, unless the issuing judge specifically authorizes execution at another time. Daytime hours, according to the Federal Rules, are between the hours of 6:00 a.m. and 10:00 p.m.

The third time restriction concerns how long the police can search for evidence. The general rule is that a search cannot last indefinitely. Once the item in the warrant has been discovered, the search must be terminated. If the police have difficulty finding the item or items named in the warrant, they can take as long as necessary to find them. If the police do not succeed in finding the evidence named in the warrant and then leave and come back later, they will be required to obtain another warrant. Steps should always be taken to avoid the appearance of arbitrariness, and people’s Fourth Amendment privacy interests should always be respected.

SCOPE AND MANNER OF THE SEARCH Two additional restrictions with regard to the service of a search warrant concern the scope and manner of the search. Scope refers to where the police can look for evidence. Manner refers to the physical steps the

Return of a Telephonic Search Warrant (652.00)

a. Search warrant: 1. Present to the issuing judge the duplicate warrant that was prepared and

signed by you within the date specified on the warrant (normally five days from the date of issue). Remember this should be the actual duplicate of the original warrant that the judge authorized you to sign over the phone, even if handwritten.

2. Make sure the judge has the original warrant that the judge prepared and signed.

3. Both should be filed with the court. Normally the judge will handle this. b. Tape and transcription:

1. Present both the tape and transcription to the judge at the same time and duplicate warrant is returned.

2. After the judge listens to the tape and reviews the transcription for accuracy, have the judge certify both the tape and the transcription.

3. Both the tape and the transcription should be filed with the court. Normally the judge will handle this.

Source: Portland Police Bureau, Manual of Policy and Procedure (January 2007). Reprinted with permission

of the Portland Police Bureau.

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SUPERIOR COURT OF CALIFORNIA County of

SEARCH WARRANT Special Instructions

THE PEOPLE OF THE STATE OF CALIFORNIA to: Warrant No. ___________

___________________

Any peace officer in ________________________ County The affidavit filed herewith by ___________________________________________, sworn to and subscribed before me, has established probable cause for this warrant which you are ordered to execute as follows:

Place(s) to be searched: Described in Exhibit 1A, attached hereto and incorporated by reference.

Property to be seized: Described in Exhibit 1B, attached hereto and incorporated by reference.

Disposition of property: All property seized pursuant to this search warrant shall be retained in the affiant’s custody pending further court order pursuant to Penal Code §§ 1528(a), 1536.

SPECIAL INSTRUCTIONS The Statement of Probable Cause, filed herewith, has demonstrated legal justification for the following special procedures which are authorized if checked:

Night Service: This warrant may be served at any hour of the day or night.

No Knock Authorization: Compliance with Penal Code § 1531 is excused unless a change in circumstances negates the need for non-compliance.

Special Master: The search shall be conducted by a Special Master pursuant to Penal Code §§ 1524(c)-(g). The Special Master shall be ________________________________________________________.

Sealing Order: The following documents shall be sealed and delivered into the custody of the Clerk of the Superior Court pending further court order: All documents filed herewith. Documents listed in Exhibit 2. Grounds for sealing: Informant protection (Evid. Code § 1041) Official information (Evid. Code § 1040)

Nondisclosure Order: The financial institution served with this warrant, including its employees and agents, shall not disclose any information regarding its content, existence, or execution pending further court order.

Blood draw: (Not for HIV testing per Penal Code § 1524.1): A blood sample shall be drawn from the person described in Exhibit 1A by trained medical personnel in accordance with accepted medical practices.

Anticipatory Warrant: Having determined that probable cause for this search will exist upon the occurrence of the triggering event(s) described in Exhibit 3, and that there is probable cause said triggering event(s) will occur, this warrant shall be executed promptly after said triggering event(s) occur. Exhibit 3 is attached hereto and incorporated by reference.

Covert Warrant: The property described in Exhibit 1B shall not be removed from the premises. An inventory shall be prepared showing the location of all such property discovered on the premises. Said property shall be photographed or videotaped to show its location when discovered. Compliance with the receipt requirements of Penal Code § 1535 is excused until ____________________________ unless an extension is granted by this court. [Initial compliance date must not be more than 7 days following execution of the warrant.] Within two days after executing this warrant, the following shall be filed with this court: (1) the inventory, and (2) the original or copy of all photographs and/or videotape recordings made during the execution of this warrant.

Additional instructions: Additional instructions pertaining to this search warrant are contained in Exhibit 4, attached hereto and incorporated by reference.

____________________________________ ___________________________________________ Date and time warrant issued Judge of the Superior Court

FIGURE 4.8 Example of a Special Instructions Warrant

Source: Reprinted with permission of the District Attorney’s Office of Alameda County, California. Available

online: http://le.alcoda.org/publications/files/sw_multi.pdf (accessed February 16, 2011).

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police can take to find the evidence in question, including breaking down doors, forcibly opening locked cabinets, and so on.

The scope of the search must be reasonable, based on the object of the search. In other words, the police are restricted in looking for evidence insofar as they can only look where the item could reasonably be found. For example, assume the evidence in question is a stolen diamond ring. Such an item is relatively small, so the police will be authorized to look almost anywhere for the ring. However, if the evidence in question is large in size—for example, a stolen big-screen television set—then the police cannot look in small places, where such an item could not possibly be found. The Supreme Court’s statement in Harris v. United States (331 U.S. 145 [1947]) provides further clarifi- cation: “[T]he same meticulous investigation which would be appropriate in a search for two small canceled checks could not be considered reasonable where agents are seeking a stolen automobile or an illegal still” (p. 152).

The police may also detain people as needed while serving a search warrant. According to the Court in Michigan v. Summers (452 U.S. 692 [1981]), “[A] warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted” (p. 704). Although the police may detain people who are on the premises to be searched, they cannot search the people unless probable cause exists (Ybarra v. Illinois, 444 U.S. 85 [1979]). A frisk is permissible, though, as long as the police have a reasonable suspicion that there is a risk to officer safety. If a person does not live on the premises, does not house personal belongings there, and is not a threat, he or she will probably be allowed to leave.

As discussed in the section “Arrest with Warrants,” federal law authorizes the police to break open doors and containers if they are refused admittance (18 U.S.C. Section 3109). Still, there are restrictions. Basically, the manner of the search must be limited to what is reasonably necessary to find the evidence in question. The Supreme Court has stated that “[e]xcessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search not subject to suppression” (United States v. Ramirez, 523 U.S. 65 [1998], p. 71). Additionally, the occupant of the place searched can be detained—even in handcuffs—for the duration of the search (Muehler v. Mena, 544 U.S. 93 [2005]).

PROCEDURE AFTER SERVICE OF A SEARCH WARRANT After a search warrant has been served, the police are required to inventory the items that were seized. Usually the inventory is taken by the searching officer in the presence of whose property was searched. This procedure not only protects against claims of police theft but also helps assure the person whose premises were searched that his or her property has been accounted for. A copy of the inventory is given to the person whose property was searched, and if no one was on the premises during the time of the search, the list must be left at the scene in a prominent place. Also, the police typically have to complete some type of a search record form to be kept on file with the department. Interestingly, the police are not required to notify the property owner of the steps

DECISION-MAKING EXERCISE 4.8

Defining Daytime

On August 26, at approximately 7:30 p.m., the Sunny County Sheriff’s Department executed a search warrant on the premises of 5678 Cherry Lane. The defendants later argued that the search warrant and its execution were defective because the

warrant directed that it be executed during the daytime. In fact, the warrant was executed at approximately 7:30 p.m., and sun- set occurred at 6:43 p.m., according to the National Weather Service. Given this, was the warrant therefore defective?

Harris v. United States (331 U.S. 145 [1947])

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Chapter 4 • Searches and Arrests with Warrants 137

necessary for the return of the property or to remedy any perceived constitutional violation (see City of West Covina v. Perkins, 525 U.S. 234 [1999]).

MEDIA PRESENCE In Wilson v. Layne (526 U.S. 603 [1999]), the Supreme Court decided whether the police can bring members of the media along during the service of a arrest warrant. The facts of the case are as follows: Early in the morning on April 16, 1992, deputy U.S. marshals and Montgomery County police officers entered the suspected home of Dominic Wilson. They were joined by a Washington Post reporter and a photogra- pher as part of a marshals’ service ride-along policy. Dominic’s parents were asleep in bed when the officers arrived. They heard the officers enter the home and ran into the living room to investigate the disturbance. A verbal altercation ensued, and both the Wilsons were subdued. Dominic Wilson was never found. Even though the reporter observed what occurred and the photographer took pictures of what transpired, the story was never printed and the pictures were never published. The parents, Charles and Geraldine Wilson, nonetheless brought a Bivens action (the Section 1983 counterpart for lawsuits against federal officials) against the marshals, alleging the officers violated their Fourth Amendment rights by bringing the media into their home.

The case worked its way up through the courts and was ultimately heard by the Supreme Court, which decided that media presence during the service of arrest war- rants violates the Fourth Amendment, as long as the presence serves no “legitimate law enforcement objectives.” The Court declared that “it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant” (p. 614).

Chief Justice Rehnquist, writing for the majority, began by stating that the Fourth Amendment embodies the “centuries-old principle of respect for the privacy of the home” (p. 610). He went on to note that although the law enforcement officers were authorized to enter the Wilsons’ home, “it does not necessarily follow that they were entitled to bring a

DECISION-MAKING EXERCISE 4.9

Where Can Police Reasonably Look?

Sheriff’s deputies had a search warrant to look for a rare, stolen koala in the house of the local taxidermist. When serving the warrant, they looked through the kitchen cupboards, wherein they found small baggies of a white, powdery substance as

well as a scale. They seized the items and arrested the taxider- mist for drug possession. The koala was never found. May the seized items be admitted into evidence? What if the officers had been looking for a stolen circus elephant?

DECISION-MAKING EXERCISE 4.10

Detention of a Third Party during an Arrest

As officers arrived at a house to serve a search warrant, they encountered Larry McVee descending the front steps. The officers asked McVee to help them gain entry into the house. McVee replied that he did not have keys to the house but would ring someone over the intercom. When he did so, another occupant answered the door but refused to allow the officers into the house. The officers then forced the door open and detained McVee as well as eight

other people who were in the house. All nine people were frisked because the officers feared for their safety. One of the people had a gun on his person. The officers arrested that man, and in his later trial for weapons offenses, he moved to suppress the gun on the grounds that the officers did not have justification to detain him (or the other people in the house) during the execution of a search warrant. Will his motion be granted?

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138 Part 2 • Search and Seizure

newspaper reporter and photographer with them” (p. 611). The Court then considered whether the actions of both parties—the reporters and the police—were related to the objectives of the intrusion into the Wilsons’ home. It ruled that they were not. Since the reporters were in the Wilsons’ residence for their own purposes, they “were not present for any reason related to the justification for police entry into the home” (p. 611). However, if media presence does serve legitimate law enforcement objectives, then the Fourth Amendment will not be violated.

To many observers, the Court’s decision in Wilson v. Layne seemed to decide the fate of the so-called reality-based police television shows—and to an extent, it did. The police cannot take a camera crew with them when a arrest warrant is served. Media accompaniment is still permissible outside people’s homes, however. Figure 4.9 provides a summary of the restrictions on the service of arrest warrants. The last sections of this chapter focus on special circumstances that arise in the arrest-warrant context.

SPECIAL CIRCUMSTANCES

Added restrictions govern bodily intrusions. The same is true of tracking devices, recording instruments, and electronic surveillance in general. The following subsec- tions touch on the special circumstances in each of these areas.

Search Warrants and Bodily Intrusions

The Supreme Court has been especially restrictive with regard to intrusions into the human body. The most well-known case that serves as an example is Rochin v. California (342 U.S. 165 [1952]). In that case, the police had information that a man was selling narcotics. They entered his home and forced their way into his bedroom. When the police asked the man about two capsules that were lying on his bed, he put the capsules in his mouth. The officers could not successfully remove the drugs from the man’s mouth, so they took him to the hospital, where his stomach was pumped. Drugs were found and the man was convicted in California state court for possession of morphine. Rochin was decided in 1952, prior to when the exclusionary rule was applied to the states. As a result, the Court ruled that the way the police handled the man shocked the conscience, thereby violating his Fourteenth Amendment right to due process.

In another case, Winston v. Lee (470 U.S. 753 [1985]), the Supreme Court decided whether the government could require a bullet to be surgically removed from a suspected robber. The Court required not only that a warrant be obtained before allowing such an intrusion but also that the suspect’s safety and privacy interests should be weighed against society’s interest in capturing lawbreakers. The Court noted,

FIGURE 4.9 Summary of Search Warrant Restrictions

1. Time Constraints a. Search must be executed promptly after issuance b. Search must be conducted during daylight hours if possible c. Search must not last indefinitely

2. Scope and Manner a. Search must be based on object sought b. Search must avoid causing excessive and unnecessary property damage c. Cannot search guests or third parties if probable cause to do so is lacking

Wilson v. Layne (526 U.S. 603 [1999])

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A compelled surgical intrusion into an individual’s body for evidence . . . implicates expectations of privacy and security of such magnitude that the intrusion may be “unreasonable” even if likely to produce evidence of a crime. . . . The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure. In a given case, the question whether the community’s need for evidence outweighs the substantial privacy interest at stake is a delicate one admitting of few categorical answers. (pp. 759–760)

The Court did not expressly decide what the appropriate procedure would be before surgery would be permitted, but it did cite a lower court decision, United States v. Crowder (543 F.2d 312 [1977]), in which the D.C. Circuit Court of Appeals decided that before surgery would be permissible (even if a warrant were obtained), an adversarial hearing with appellate review must occur. Thus, under certain circumstances, it would appear that certain types of bodily intrusions require more than a warrant.

Given the importance of bodily intrusions vis-à-vis civil liberties, police departments should take special care for engaging in them. Accordingly, the San Bernardino, California, Police Department’s policy for strip and body cavity searches is reprinted in Figure 4.10.

FIGURE 4.10 Strip and Body Cavity Search Policy (San Bernardino, CA, Police Department)

STANDARD OPERATING PROCEDURE CHAPTER #29 PROCEDURE #1

STRIP and BODY CAVITY SEARCHES (Revised) 4-8-91

PURPOSE

A. To establish a policy governing strip and body cavity searches, and to protect arrested persons from unwarranted intrusions.

B. To conform to the requirements of Penal Code Section 4030.

DEFINITIONS

A. Strip Search – Means a search that requires a person to remove or arrange some or all of his/her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks, or genitalia of that person.

B. Body Cavity – Means the stomach or rectal cavity of any person and the vagina of a female person.

C. Visual Body Cavity Search – The visual inspection of a body cavity. D. Physical Body Cavity Search – Mean physical intrusion into a body cavity for the

purpose of discovering any object concealed in that cavity.

PROCEDURES

A. When an arrestee is taken into custody, that person may be subjected to a pat down search, metal detector search, and thorough clothing search in order to discover and retrieve concealed weapons and/or contraband prior to being trans- ported to County Jail.

Figure 4.10 continued

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140 Part 2 • Search and Seizure

B. Before requesting authority for a strip search or body cavity search, an officer must determine there is a reasonable suspicion based on specific and articulable facts to believe an arrestee is concealing a weapon or contraband, and that a strip search or body cavity search will result in the discovery of the weapon or contraband. No strip search or visual body cavity search may be conducted on a misdemeanor or infraction arrestee, without the prior written authorization of the supervisor on duty. A copy of the written authorization shall remain with the case file and shall be made available upon request. The time, date, and place of the search, the name and sex of the person conducting the search, and a statement of the results of the search, including a list of any items removed from the person searched shall be recorded in the case file and made available upon request of the person search or his/her authorized representative. The authorization shall include specific and ar- ticulable facts and circumstances upon which the reasonable determination was made by the supervisor.

C. No arrestee shall be subjected to a physical body cavity search except under the authority of a search warrant issued by a magistrate specifically authorizing the physical body cavity search. A physical body cavity search shall be conducted under sanitary conditions, and only by a physician, nurse practitioner, registered nurse, licensed vocational nurse, or emergency medical technician licensed to practice in the State of California. Any physician engaged in providing health care to detainees or inmates of a facility may conduct the physical body cavity search. A copy of the warrant shall remain in the case file and shall be made available upon request of the person searched or his/her authorized representative. The time, date, and place of search, the name and sex of the person conducting the search, and a state- ment of the results of the search including a list of items removed from the person searched shall be recorded in the case file.

D. A person conducting a strip search or a visual body cavity search shall not touch the breasts, buttocks, or genitalia of the person being searched.

E. All persons conducting or present during a strip search or visual or physical body cavity search shall be of the same sex as the person being searched, except for physicians or licensed medical personnel.

F. All strip, visual, and physical body cavity searches shall be conducted in an area of privacy so that the search cannot be observed by persons not participating in the search. A person is considered to be participating in the search if his/her offi- cial duties relative to search procedure require him/her to be present at the time the search is conducted.

G. No strip or body cavity search shall be conducted on persons not under arrest, without their consent, or a valid search warrant for that person and the rules herein apply to infraction or misdemeanor arrestees. Officers will also adhere to all procedures when dealing with felony arrestees, except that no prior written authorization of the supervisor is required.

H. Employees are reminded that willful violations of Penal Code Section 4030 relating to strip searches and body cavity searches by persons authorizing or conducting such searches are punishable as misdemeanors and civil actions as well punitive damages are available to a person improperly searched.

Source: Chapter 29, Procedure 1, “Use of Force,” from Standard Operating Procedure, San Bernardino,

California, Police Department (rev. December 22, 2004). Reprinted with permission.

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The body cavity discussion, in particular, deserves careful attention, as this type of search enjoys a high level of Fourth Amendment protection.

Tracking Devices, Video Recordings, and Detection Devices

One of the more common types of tracking devices, known as a beeper, emits a signal that can be tracked by law enforcement officials. Beepers have been around for some time and are relatively crude in terms of their technology. Far more sophisticated types of devices are available nowadays, some that employ GPS technology. These newer devices have attracted little attention by the courts, but beepers have. For example, in United States v. Knotts (460 U.S. 276 [1983]), federal agents placed a beeper in a container of chloroform in a store without a warrant but with the consent of the store’s owner. The container was later picked up, and the police tracked it to a cabin. The officers then obtained a warrant to search the cabin. The Supreme Court upheld their actions, even though they did not obtain a warrant in advance.

A key feature of Knotts was that the beeper led the police to the cabin, not inside it. When the police use beepers to track persons and items indoors, the story is different. In United States v. Karo (468 U.S. 705 [1984]), the police, using a beeper, tracked a suspect’s movements inside a residence. The beeper was placed inside a can of ether. The Court ruled that this action was a violation of the Fourth Amendment.

Video recordings are another method of conducting electronic surveillance. Whether using such devices requires a warrant depends on whether the recording is of a private or a public place. With regard to private places, video recordings are usually governed, according to certain courts anyway, by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, even though the act does not explicitly refer to video recorders. A key case in this area is United States v. Torres (751 F.2d 875 [7th Cir. 1984]). In it, the FBI obtained authorization from a judge to place cameras in so-called safehouses used by a Puerto Rican separatist group. The agents followed the guidelines set forth in Title III, and the Seventh Circuit Court of Appeals upheld their actions. Other courts, however, have held that Title III’s restrictive guidelines need not apply to video recordings. Rather, they have argued that the traditional Fourth Amendment approach should be used (see, e.g., United States v. Cuevas-Sanchez, 821 F.2d 248 [5th Cir. 1987]).

The foregoing does not apply to video cameras in public places. Several cities throughout America use networks of strategically located video cameras to look for crime. While this may smack of Orwellian society, to date, the use of such cameras has been entirely constitutional. In a similar vein, several cities throughout the United States are using so-called red-light cameras to capture motorists who run red lights. Similar cameras are used to catch speeders, as well. While civil libertarians groan at the increased use of such cameras, they remain an effective law enforcement tool and are not considered unconstitutional.

Finally, detection devices are another method of engaging in what amounts to electronic surveillance. One of these devices, the thermal imager (infrared heat sensor), was discussed in Chapter 3. The Supreme Court decided in Kyllo v. United States (533 U.S. 27 [2001]) that a thermal imager cannot be used to scan a private residence without a warrant. Other types of detection devices, such as gun detectors—which can actually help police determine when persons are armed—are being developed, and some are even being used. It will be interesting to see if and when these come to the attention of the Supreme Court, as they almost certainly will.

Electronic Surveillance

The term electronic surveillance includes a variety of methods for spying on the activ- ities of suspected criminals, including conversations as well as criminal actions.

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142 Part 2 • Search and Seizure

The methods used to spy on criminal suspects are quite diverse and include wiretap- ping, “bugging,” hacking into computer transmissions, tracking movements of persons and equipment, video surveillance, and seeing through opaque surfaces using devices such as thermal imagers and “gun detectors.”

Electronic surveillance law is exceedingly complex and rapidly changing, so a thorough introduction is beyond the scope of this text. However, by focusing some attention on legislative developments over time, sufficient familiarity can be developed with the general contours of the law in this important area of criminal procedure. The following subsections begin by looking at early legislative requirements in the area of electronic surveillance, then move into Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (and its 1986 amendments), and finally consider the PATRIOT Act, which was passed following the September 11 terrorist attacks.

Most of the law in this area, especially Title III and the PATRIOT Act, restricts government interception of private communications. Thus, the bulk of the discussion that follows concerns the use of wiretaps and similar strategies to intercept people’s communications. Other types of electronic surveillance—namely, the use of tracking devices, video recorders, and detection devices—are discussed in a separate subsection, as these types of activities are governed mostly by Supreme Court decisions.

Prior to the Supreme Court’s decision in Katz v. United States (389 U.S. 347 [1967]), the constitutionality of searches and seizures was governed by the so-called trespass doctrine (see Chapter 3). The leading case was Olmstead v. United States (277 U.S. 438 [1928]), in which the Court held that a warrantless wiretap was constitutional because it did not “trespass” on the defendant’s property. Then, in Goldman v. United States (316 U.S. 129 [1942]), the Court upheld the use of a “detectaphone” placed against an office wall because it did not amount to a trespass. But in Katz v. United States, the Supreme Court abandoned the trespass doctrine, holding that the appropriate inquiry is whether the law enforcement action in question infringed on a person’s reasonable expectation of privacy.

Following Katz, the Supreme Court decided Berger v. New York (388 U.S. 41 [1967]), in which it decided on the constitutionality of a statute that permitted eavesdropping orders to be issued by magistrates if the police showed reasonable grounds that evidence of a crime would be discovered. The Court declared the statute unconstitutional, holding that a warrant supported by probable cause is necessary to secure permission to intercept people’s communications. Importantly, though, Katz and Berger do not apply to the interception of communications that can be considered consensual, such as when the government plants a listening device on an informant (see On Lee v. United States, 343 U.S. 747 [1952]; Lopez v. United States, 373 U.S. 427 [1963]).

In addition to being governed by the Supreme Court’s decisions in Olmstead, Katz, and Berger, electronic surveillance was also subject to the restrictions in Section 605 of the Federal Communications Act of 1934. In it, Congress provided that “no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, purport, effect or meaning of such intercepted communications to any person.” However, if the person whose conver- sation was intercepted consented to the conversation, any resulting evidence would be admissible (see Rathbun v. United States, 355 U.S. 107 [1957]). In summary, Supreme Court decisions and Section 605 restricted the surveillance of conversations in which the suspect did not consent to the conversation. Importantly, the suspect did not have to consent to the use of a recording device, only the conversation during which it was used. IS

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Electronic surveillance law is rapidly changing. There are several “hoops” authorities have to jump through in order to conduct electronic surveillance of the sort depicted in this picture.

TITLE III AND THE ELECTRONIC COMMUNICATIONS PRIVACY ACT In 1968, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act (18 U.S.C. Sections 2510–20). Then, in 1986, Congress amended the act by passing the Electronic Communications Privacy Act (ECPA) (Pub. L. No. 99-508 [1986]). Both acts govern law enforcement electronic surveillance activities at both the federal and state levels. Both acts are of particular importance in the present context because they preempt state laws addressing electronic surveillance. That is, for electronic surveillance to conform to constitutional requirements, it must not only abide by state law but also by the 1968 and 1986 acts.

Title III restricts the interception of “wire, oral or electronic communications,” unless such interception is authorized by statute (see the act for definitions of each). The 1986 amendments to the act added electronic communications to the list of protected activities. The amendments also covered the electronic storage and processing of information. In short, both acts protect virtually all wire, oral, and electronic communications among private parties. That is to say, for the government to intercept such information, it must obtain a valid search warrant.

In contrast to communications between private parties, communications among government employees and communications between private parties and the general public are not protected. For example, if an individual posts a message to the World Wide Web, it will not be protected in any way. Also, as dis- cussed earlier, communications that are consensual in nature—such as between a suspect and a government informant—do not come under the protection of Title III or its amendments.

The requirements for obtaining a Title III warrant go beyond those for obtaining a typical warrant, as discussed earlier in this chapter. There are seven of them:

• The application for a Title III warrant must identify both the officer filing and the officer approving the application.

• The warrant application must contain “a full and complete statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued.”

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144 Part 2 • Search and Seizure

• The application should contain “a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted.”

• The application must contain a “full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”

• The application must contain “a statement of the period of time for which the interception is required to be maintained,” including, if deemed necessary, “a particular description of facts establishing probable cause to believe that addi- tional communications of the same type will occur” after “the described type of communication has been first obtained.”

• The warrant application must contain “a full and complete statement of the facts concerning all previous applications . . . involving any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each such application.”

• The warrant application must contain “a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.”

When preparing to serve a Title III warrant, authorities can covertly enter the place where the interception is to take place (see Dalia v. United States, 441 U.S. 238 [1979]). The entry must be reasonable and not result in excessive property damage. Indeed, too much, if any, property damage would alert that suspect that an investigation is taking place. Also, if the circumstances of the interception change during the course of the investigation, the Title III warrant will need to be amended. For example, if when listening to conversations, the police are alerted to additional criminal conduct that they would like to hear about, they must seek an amendment to the original warrant.

If all Title III requirements are not met, the remedy is suppression. That is, the exclusionary rule will apply. In fact, Title III has its own set of exclusionary rules, but they are more or less the same as the rule described in Chapter 2. For example, if a Title III warrant fails to describe with particularity the communications to be intercepted, and assuming this is called to the attention of the court, any evidence resulting from the interception will be inadmissible in court. However, if authorities make a reason- able mistake, then the “good faith” exception announced in Leon (468 U.S. 897 [1984]) will apply. Also, only those persons who have standing (i.e., who can show that the interception infringed on a reasonable expectation of privacy) can succeed in having intercepted communications excluded from trial (see Alderman v. United States, 394 U.S. 165 [1969]). Finally, in United States v. Giordano (416 U.S. 505 [1974]), the Court held that suppression of evidence is only required when the part of the act that has been violated “was intended to play a central role in the statutory scheme.” In other words, trivial violations of the act will not likely result in suppression. For example, if fewer than all of the law enforcement officers involved in the investigation are identified in the warrant, then evidence will not be suppressed (see United States v. Donovan, 429 U.S. 413 [1977]).

THE FOREIGN INTELLIGENCE SURVEILLANCE ACT The Foreign Intelligence Surveillance Act (FISA), passed in 1978, regulates electronic surveillance as it pertains to foreign intelligence gathering. In contrast, Title III and ECPA are mostly for domestic law enforcement purposes. FISA regulates a number of specific activities, including physical searches for intelligence-gathering purposes, the use of pen registers and so-called “trap- and-trace” devices, access to business records, and, of course, electronic surveillance. FISA

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Chapter 4 • Searches and Arrests with Warrants 145

Summary

1. OUTLINE THE COMPONENTS OF SEARCH AND ARREST WARRANTS.

A warrant has three required components: (1) a neu- tral and detached magistrate; (2) a showing of proba- ble cause; and (3) particularity. A prosecutor or law enforcement official cannot be considered neu- tral and detached. Neither can a judge who is paid for issuing warrants. Probable cause was defined in Chapter 3, but in this chapter, it was pointed out that the showing of probable cause differs, depending on the type of warrant. An arrest warrant requires show- ing probable cause that the person to be arrested committed the crime. A search warrant requires show- ing probable cause that the evidence to be seized was connected with a crime and that it will be found in the place to be searched. Particularity in an arrest warrant is satisfied when the suspect’s name or a detailed description of the person is given. Particularity in a search warrant is satisfied when the place to be searched and the item or items to be seized are described in detail.

2. DESCRIBE HOW SEARCH AND ARREST WARRANTS ARE EXECUTED.

Arrest warrants are required in two situations: (1) arrests in the home and (2) arrests in third-party homes. Arrests in public do not require warrants. Similarly, arrests in the presence of exigent circumstances do not require warrants, regardless of location. The police are required to announce their presence during the execution of a search warrant unless exigent circum- stances are present.

The police will generally not be liable for property damage during the service of a warrant; however, due process can be violated if the property damage is exces- sive. Deadly force can be used to effect an arrest, but only when the suspect seeks to escape and poses a sig- nificant threat to other officers or citizens. Finally, the courts will admit evidence resulting from a wrongful arrest, as long as the mistake was a reasonable one.

Searches with warrants are subject to many of the same restrictions as arrests with warrants. However, search warrants are also constrained in terms of time, insofar as the police cannot wait too long to serve the warrant or take too long to look for evidence. Also, the courts frequently require that search warrants be served during daylight hours. The scope of the search must be limited to the object of the search, the seized evidence must be inventoried and a list given to the homeowner, and the police cannot bring members of the media along when serving a search warrant if the media presence serves no legitimate law enforcement objectives.

3. EXPLAIN HOW BODILY INTRUSIONS, THE USE OF TRACKING DEVICES, AND ELECTRONIC SURVEILLANCE CREATE “SPECIAL CIRCUMSTANCES” FOR FOURTH AMENDMENT PURPOSES.

The traditional Fourth Amendment approach to determining constitutionality does not always work in the case of bodily intrusions or when tracking devices, video recordings, or detection devices are used. Additionally, the interception of communications, in particular, is governed by a restrictive body of law (e.g., Title III of the Omnibus Crime Control and Safe Streets Act of 1968).

also created the secretive Foreign Intelligence Surveillance Court (50 U.S.C. Section 1802[a][1][A]). The court hears requests for surveillance warrants. Before a warrant is issued, the court must find probable cause that:

• the target of the surveillance is a “foreign power” or “agent of a foreign power,” • the places at which surveillance is sought are being used or will be used by the foreign power or agent, • U.S. persons are properly protected (50 U.S.C Section 1805; 50 U.S.C. Section 1801[5]).

Electronic surveillance law continues to change at a feverish pace. What’s more, when changes are made, they often incorporate “sunset” clauses that essentially terminate the legislation at a specified date. One exam- ple of this is the Protect America Act, signed into law on August 5, 2007. Among other things, the act removed the warrant requirement for government surveillance of foreign intelligence targets. A sunset clause was included partly because of the controversy surrounding the legislation, but certain provisions have since been reauthorized by the FISA Amendments Act of 2008. The latter is set to expire at the end of 2012.

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Review Questions

1. Explain the three components of a valid warrant. 2. How does the showing of probable cause differ for an

arrest warrant versus a search warrant? 3. How does particularity differ for an arrest warrant

versus a search warrant? 4. Distinguish between a stop and an arrest. 5. Distinguish between a stop and a nonstop. 6. When is an arrest warrant required? 7. What reasons have been offered for the so-called

announcement requirement with regard to arrest and search warrants?

8. When can the announcement requirement be dispensed with?

9. Briefly summarize the Supreme Court’s view on property damage during the service of a warrant.

10. Summarize the Supreme Court’s decisions in Tennessee v. Garner and Graham v. Connor. Why are these decisions important to criminal procedure?

11. What restrictions exist concerning the scope and manner of a search with a warrant?

12. What is the Supreme Court’s view on the media’s presence during the service of a search warrant? What is the leading case in this area?

13. Explain the two leading cases that address bodily intrusion during the course of a search.

14. What are the main statutes regulating electronic surveillance?

Key Cases

Warrant Components

• Coolidge v. New Hampshire, 403 U.S. 443 (1971) • Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) • Maryland v. Garrison, 480 U.S. 79 (1987) • Andresen v. Maryland, 427 U.S. 463 (1976)

Arrests with Warrants

• Davis v. Mississippi, 394 U.S. 721 (1969) • Payton v. New York, 445 U.S. 573 (1980) • Steagald v. United States, 451 U.S. 204 (1981)

• Hudson v. Michigan, 547 U.S. 586 (2006) • Sabbath v. United States, 391 U.S. 585 (1968) • Tennessee v. Garner, 471 U.S. 1 (1985) • Graham v. Connor, 490 U.S. 386 (1989)

Searches with Warrants

• Gooding v. United States, 416 U.S. 430 (1974) • Harris v. United States, 331 U.S. 145 (1947) • Michigan v. Summers, 452 U.S. 692 (1981) • City of West Covina v. Perkins, 525 U.S. 234 (1999) • Wilson v. Layne, 526 U.S. 603 (1999)

Key Terms

arrest 113 arrest warrant 106 deadly force 124 Electronic

Communications Privacy Act 143

Federal Communications Act 142

Foreign Intelligence Surveillance Act 144

Foreign Intelligence Surveillance Court 145

neutral and detached magistrate 106

nondeadly force 125 nonstop 116 particularity 108 Protect America

Act 145 search warrant 106

stop 113 Title III of the

Omnibus Crime Control and Safe Streets Act 143

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Web Links and Exercises

1. Developing a policy manual: Read Chief W. Dwayne Orrick’s article “Developing a Police Department Policy- Procedure Manual,” published in the International Association of Chiefs of Police Big Ideas for Smaller Police Departments newsletter. What, according to him, is the best way to develop a policy-procedure manual? What role do court recommendations play in his recommen- dations? You can find the article on page 4 here:

http://www.theiacp.org/LinkClick.aspx?fileticket=On6JR ot3kSc%3d&tabid=392 (accessed February 16, 2011).

2. Foreign Intelligence Surveillance Act: Read about recent developments in FISA. What activities has the FISA Court reported to Congress?

Suggested URL: http://www.fas.org/irp/agency/doj/fisa (accessed February 16, 2011).

3. Knock and announce: Read more about the knock-and- announce rule at the Federal Law Enforcement Training Center’s website. Summarize the federal knock-and- announce rule. Is federal procedure different from state and local procedure?

Suggested URL: http://www.fletc.gov/training/pro- grams/legal-division/the-informer/research-by-sub- ject/4th-amendment/knockandannounce.pdf/view (accessed April 6, 2011).

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Part 1 INTRODUCTION

Chapter 1 Introduction to Criminal Procedure Chapter 2 Remedies

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LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Summarize the constitutional basis for criminal procedure. � Explain the importance of precedent. � Compare the theory of criminal procedure to the reality. � Describe the public order (crime control) and individual rights (due process) perspectives of criminal

justice and how criminal procedure balances the two. � Outline the structure of the court system, including the responsibilities and jurisdictions of each level. � Summarize important issues and trends in criminal procedure. � Provide an overview of the criminal process.

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CHAPTER OUTLINE

Introduction to Criminal Procedure

C H

A P

T E

OUTLINE

Introduction: What Is Criminal Procedure? Emphasis on Constitutional Rights

Sources of Rights Rights of Relevance in Criminal Procedure The Incorporation Controversy

Significance of the Debate Views on Incorporation Outcome of the Debate

The Importance of Precedent Stare Decisis Distinguishing Cases

Theory versus Reality Competing Concerns in Criminal

Procedure Due Process

The Obstacle Course Quality over Quantity Insistence on Formality Faith in the Courts

Crime Control The Assembly Line Quantity over Quality Insistence on Informality Faith in the Police

Finding Court Cases and Tracing Their Progress Finding Cases Tracing the Progress of a Criminal Case How Cases Arrive at the Supreme Court

Important Issues and Trends in Criminal Procedure

Bright-Line Decisions versus Case-by-Case Adjudication

Subjectivity versus Objectivity Increased Faith in the Police Judicial Restraint Personal Privacy Criminal Procedure and the War

on Terror Criminal Procedure and Technology

The Criminal Process: An Overview Pretrial Adjudication Beyond Conviction

Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

What Is Criminal Procedure?

American criminal procedure consists of a vast set of rules and guidelines that describe how suspected and accused criminals are to be handled and processed by the justice system. Of great significance is the relationship between the police and the people suspected of criminal activity. Criminal procedure arms the police with the knowledge necessary to preserve the rights of individuals who are seized, searched,

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4 Part 1 • Introduction

arrested, and otherwise inconvenienced by law enforcement officials. It also arms other actors—such as judges, prosecutors, and defense attorneys—with the necessary information to preserve the rights of individuals accused of criminal activity. In short, criminal procedure begins when the police first contact a person and ends well after his or her conviction.

At least three important themes run throughout criminal procedure. First, there is a concern with the constitutional rights of accused persons, as interpreted by the courts. People enjoy a number of important rights in the United States, but the bulk of criminal procedure consists of constitutional procedure or what the U.S. Constitution says—usually through the interpretation of the U.S. Supreme Court (i.e., the Court)— with regard to the treatment of criminal suspects.

Second, criminal procedure contains an important historical dimension, one that defers regularly to how sensitive legal issues have been approached in the past. The role of precedent, or past decisions by the courts, cannot be overemphasized. At the same time, though, the world continues to evolve, and it is sometimes necessary to part ways with the past and decide novel legal issues.

Third, criminal procedure creates something of a collision between two different worlds: the world of the courts versus that of law enforcement. What the courts require and what law enforcement actually deals with do not always harmonize. That is, in the real world, the influence of the courts may not always be as significant or relevant as might be expected. The following subsections will elaborate more fully on the importance of these three themes.

EMPHASIS ON CONSTITUTIONAL RIGHTS

The Preamble to the U.S. Constitution states,

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Of particular relevance to criminal procedure are the terms justice and liberty. The Constitution helps ensure these through both setting forth the various roles of government and protecting the rights of people within the nation’s borders. Throughout the years, the courts have devoted a great amount of energy to interpret- ing the Constitution and to specifying what rights are important and when they apply.

However, the Constitution is not the only source of rights; there are others worthy of consideration. In addition, some rights are more important than others, at least as far as criminal procedure is concerned. Finally, the two-tiered system of government in the United States creates a unique relationship between the federal and state levels. Criminal procedure cannot be understood without attention to the interplay between federal and states’ rights.

Sources of Rights

In addition to the Constitution, important sources of rights include court decisions, statutes, and state constitutions. Most of the court decisions discussed in this section and throughout the text are U.S. Supreme Court decisions.

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Chapter 1 • Introduction to Criminal Procedure 5

Whenever the Supreme Court interprets the Constitution, it effectively makes an announcement concerning people’s rights. For example, the Fourth Amendment states that unreasonable searches and seizures are impermissible. The term unreasonable is not self-explanatory, however, so the Court has taken steps to define it. One definition of unreasonable appears in the recent decision of Wilson v. Layne (526 U.S. 603 [1999]), in which the Court held that it is unreasonable for the police to bring reporters along when serving a warrant, unless the reporters are there to serve a legitimate law enforcement objective.

Although the Constitution and the court decisions stemming from it reign supreme in criminal procedure, statutes also play an important role. Obviously, the Constitution and the courts cannot be expected to protect all of the interests that people represent. Statutes attempt to compensate for that shortcoming by establishing that certain rights exist. An example is Title VII of the 1964 Civil Rights Act. Among other things, it prohibits discrimination in employment. Another statute of relevance in criminal procedure (one that will be considered in some depth in Chapter 2) is 42 U.S.C. Section 1983. It allows private citizens to sue local law enforcement officials for violations of federally protected rights.

In addition, each state has its own constitution, which can be considered an important source of rights. The supremacy clause of Article VI to the U.S. Constitution makes it the supreme law of the land and binds all states and the federal government to it. However, nothing in the U.S. Constitution precludes individual states from adopting stricter interpretations of the federal provisions. In general, if a state constitution gives less protection than the federal Constitution, such a limitation is unconstitutional. But a stricter interpretation of the federal Constitution is perfectly reasonable. For example, the Supreme Court has interpreted the Fifth Amendment in such a way that it requires police to advise a suspect of his or her so-called Miranda rights when the suspect is subjected to custodial interrogation—an action that does not necessarily rise to the level of an arrest. A state, however, could require that Miranda rights be read whenever a person is arrested, regardless of whether he or she is interrogated.

Finally, although it is not a source of rights per se, the Federal Rules of Criminal Procedure are worth considering.1 Excerpts from the Federal Rules are reprinted through- out this book because they sometimes clarify important rulings handed down by the U.S. Supreme Court. Additionally, the Federal Rules set forth the criminal procedure guidelines by which federal criminal justice practitioners are required to abide.

Rights of Relevance in Criminal Procedure

Of the many rights specified in the U.S. Constitution (which, incidentally, is reprinted in the Appendix), the rights stemming from five amendments are of special importance in criminal procedure. Four of these—the Fourth, Fifth, Sixth, and Eighth Amendments— can be found in the Bill of Rights. Beyond the Bill of Rights, the Fourteenth Amendment is of special relevance in criminal procedure. Sometimes the First Amendment, which protects individual rights to assembly and speech, and the Second Amendment, which protects the right to bear arms, are relevant in criminal procedure, but only rarely.

• The Fourth Amendment is perhaps the most well known source of rights in criminal procedure. In fact, it is viewed to be so important that several books on criminal procedure devote the overwhelming majority of their chapters to it. The Fourth Amendment states,

1 Federal Rules of Criminal Procedure, issued by the 107th Congress, First Session, December 1, 2001. Available online: www.house.gov/judiciary/crim2001.pdf.

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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 Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.

Several rights can be distinguished by reading the text of the Fourth Amendment. It refers to the right of people to be free from unreasonable searches and seizures, and it provides that specific requirements are to guide the warrant process. That is, a warrant must be issued by a magistrate or judge, supported by probable cause, and sufficiently specific as to what is to be searched and/or seized. Because of the complexity of the Fourth Amendment, this book devotes an entire section to its interpretation (see Part 2).

• The second constitutional amendment of special relevance to criminal procedure is the Fifth Amendment. It states,

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This book also examines the Fifth Amendment in detail, focusing in particular on the role of the grand jury, the statement that no person shall be “twice put in jeopardy of life or limb” (known as the double-jeopardy clause), the statement that no one can be compelled “to be a witness against himself” (also known as the self-incrimination clause), and perhaps most important of all, the requirement that an individual cannot be deprived of life, liberty, or property without due process of law.

• The Sixth Amendment is also of great importance in criminal procedure. It specifies,

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascer- tained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Of relevance to criminal procedure is the Sixth Amendment’s language concern- ing speedy and public trials, impartial juries, confrontation, and compulsory process. The Sixth Amendment also suggests that in addition to being public, trials should be open, not closed, proceedings. The Supreme Court has interpreted the Sixth Amendment as providing the right of the accused to be present at his or her trial and to be able to put on a defense.

6 Part 1 • Introduction

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Chapter 1 • Introduction to Criminal Procedure 7

• The Eighth Amendment is relevant in criminal procedure but to a limited extent. It states,

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Eighth Amendment’s language on bail and the nature of cruel and unusual punishment are addressed in Chapters 10 and 15, respectively.

• The Fourteenth Amendment has an important home in criminal procedure. It is a fairly long amendment, however, and only a small portion is relevant to the handling and treatment of criminal suspects. That portion states,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The due process language of the Fourteenth Amendment mirrors that of the Fifth. Nonetheless, because the Fifth Amendment is part of the Bill of Rights, it is only binding on the federal government. The Fourteenth Amendment, by contrast, has been used by the Supreme Court to incorporate, or make applicable to the states, several of the rights provided for in the Bill of Rights. (The following subsection introduces the so-called incorporation controversy.)

The Fourteenth Amendment’s due process clause has been interpreted to consist of two types of due process: (1) substantive due process and (2) procedural due process. The essence of substantive due process is protection from arbitrary and unreasonable action on the part of state officials. By contrast, a procedural due process violation is one in which a violation of a significant life, liberty, or property interest occurs (e.g., Geddes v. Northwest Missouri State College, 49 F.3d 426 [8th Cir. 1995]). Procedural due process is akin to procedural fairness.

Summary. Figure 1.1 lists the constitutional amendments that are of particular importance in criminal procedure. As the following section will describe, certain rights that are provided for in each amendment may not be binding on the states. Also, even though a particular amendment may provide a particular right, the Supreme Court may have interpreted that amendment to apply only in certain circumstances. Such circumstances will be discussed throughout the text.

The Incorporation Controversy

The Bill of Rights, consisting of the first 10 amendments to the U.S. Constitution, places limitations on the powers of the federal government. It does not limit the power of the states, however. In other words, the first 10 amendments place no limitations on state and local governments and their agencies. Government power at the state and local levels is clearly limited by state constitutions.

Even though the Bill of Rights does not limit state and local governments, the Supreme Court has found a way to do so through the Fourteenth Amendment. In particular, the Court has used the Fourteenth Amendment’s due process clause,

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8 Part 1 • Introduction

which holds that no state shall “deprive any person of life, liberty, or property, without due process of law,” to make certain protections specified in the Bill of Rights applicable to the states. This is known as incorporation.

The extent to which the Fourteenth Amendment should regulate state and local government power has been the subject of some disagreement—hence, the incorporation controversy. The basic question posed over the years has been, To what degree should the Fourteenth Amendment’s due process clause incorporate the various provisions of the Bill of Rights so as to restrict state and local law enforcement in the same way federal law enforcement is restricted by the Bill of Rights?

SIGNIFICANCE OF THE DEBATE The incorporation debate is significant because of three concerns. First, since most contact between citizens and the police occurs at the state and local levels, it is critical to determine the role of the federal Constitution at the state level. Comparatively few people have contact with federal law enforce- ment, so the Bill of Rights actually regulates a limited number of police/citizen contacts. Second, incorporation, according to some, threatens federalism. Under the doctrine of federalism, states have the authority to develop their own rules and laws of criminal procedure, but if the Fourteenth Amendment incorporates the Bill of Rights, this authority can be compromised. Third, the incorporation debate raises important concerns about the separation of powers. Namely, the Supreme Court has decided which rights should be incorporated—a decision that may better be reserved for Congress.

FIGURE 1.1 Constitutional Amendments Important to Criminal Procedure and Their Relevant Provisions

• Fourth Amendment: Protects from unreasonable searches and seizures. • Fifth Amendment: Provides protection from double jeopardy and self-incrimination

and for grand jury indictment in serious crimes. • Sixth Amendment: Provides for a speedy and public trial, impartial jury, con-

frontation, compulsory process, and assistance of counsel. • Eighth Amendment: Protects from cruel and unusual punishment. • Fourteenth Amendment: Includes the so-called due process clause, which has

been used to incorporate various other rights described in the Bill of Rights.

DECISION-MAKING EXERCISE 1.1

The First Amendment and Criminal Procedure

The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Given what you have read so far, is the First Amendment relevant to criminal procedure?

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Chapter 1 • Introduction to Criminal Procedure 9

VIEWS ON INCORPORATION There are four leading views on the incorporation debate.2

One has won out over the others, but all of the views are important to consider, regardless.

• The total incorporation perspective holds that the Fourteenth Amendment’s due process clause incorporates the entire Bill of Rights. In other words, all protections specified in the Bill of Rights should be binding on the states. The primary proponent of this view was Supreme Court Justice Hugo Black (e.g., Adamson v. California, 332 U.S. 46 [1947]; Rochin v. California, 342 U.S. 165 [1952]).

• The second leading view on incorporation is that of selective incorporation, or the fundamental rights perspective. It favors incorporation of certain protections enumerated in the Bill of Rights, not all of them. Further, this perspective deems certain rights as being more critical, or fundamental, than others. The Supreme Court’s decision in Snyder v. Massachusetts (291 U.S. 97 [1934]) advocates this perspective, arguing that the due process clause prohibits state encroachment on those “principle[s] of justice so rooted in the traditions and consciences of our people as to be ranked as fundamental.”

• The third view on incorporation can be termed total incorporation plus. This view holds that the Fourteenth Amendment’s due process clause incorporates the whole Bill of Rights as well as additional rights not specified in the Constitution, such as the “right to privacy.” This view can be found in such Supreme Court cases as Adamson v. California and Poe v. Ullman (367 U.S. 497 [1961]).

• Finally, some people believe that the topic of incorporation deserves case-by-case consideration. That is, no rights should be incorporated across the board. Rather, the facts and circumstances of each individual case should be weighed in order to determine if any protections listed in the Bill of Rights should apply at the state or local level.

OUTCOME OF THE DEBATE So, Which perspective has won out? Arguably, the selective incorporation, or the fundamental rights, perspective is the winner. The Supreme Court has consistently held that some protections listed in the Bill of Rights are more applicable to the states than others. The Fourth Amendment, in its view, lists several fundamental rights. By contrast, the Fifth Amendment’s grand jury clause has not been deemed fundamental and is not binding on the states (Hurtado v. California, 110 U.S. 516 [1884]).

To an extent, part of the total-incorporation-plus perspective has won out, as well. While not all of the Bill of Rights is binding on the states, the Supreme Court has repeatedly emphasized Americans have a fundamental right to privacy. This is despite the fact that the Constitution makes no mention of privacy. It is commonly said (as will be noted in the section on the Fourth Amendment) that people do not enjoy an expectation of privacy in public places. It would seem, then, that certain rights not listed in the Constitution have been identified as well as incorporated.

Figure 1.2 lists the rights that have been deemed fundamental by the Supreme Court and, as a result, incorporated to the states.3 The Supreme Court cases responsible for these incorporation decisions are listed, as well.

2 J. Dressler, Law Outlines: Criminal Procedure (Santa Monica, CA: Casenotes Publishing, 1997), pp. 2-3–2-4. 3 Some scholars believe that the Ninth Amendment to the U.S. Constitution (also referred to as the penumbra clause) implies that all of the rights not specifically spelled out in the Constitution are automatically protected nonetheless. But to demonstrate this, a court would have to recognize a particular right as fundamental in case law. Privacy could be considered one such right.

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10 Part 1 • Introduction

THE IMPORTANCE OF PRECEDENT

To many students of criminal procedure, legal research is a less than desirable pursuit. Even so, it is essential in everyday practice because of the importance of precedent. A precedent is a rule of case law (i.e., a decision by a court) that is binding on all lower courts and the court that issued it. A past decision may not be available in each case, but when one is, the courts will defer to it. This is the doctrine of stare decisis.

Stare Decisis

Stare decisis is a Latin term that means to abide by or to adhere to decided cases. Most courts adhere to the principle of stare decisis. That is, when a court has handed down a decision on a specific set of facts or legal questions, future court decisions that involve similar facts or questions will defer to the previous decision. In short, stare decisis is simply the practice of adhering to a previous decision or precedent.

Why does stare decisis occupy such an important position in the U.S. court system? The answer is that it promotes consistency. It is well known that accused criminals enjoy the right to counsel (Gideon v. Wainwright, 372 U.S. 335 [1963]), but what if from one year to the next, the Supreme Court vacillated on whether this right were constitu- tionally guaranteed? The criminal process, not to mention the rights of the accused, would be unpredictable and vary from one point to the next.

It is important to note that the practice of deferring to precedent is not always possible or desirable. First, stare decisis is usually only practiced by courts in a single jurisdiction. Suppose, for example, that a federal circuit appeals court handed down a decision. All the district courts within that circuit would then abide by the appeals court decision. Courts outside that circuit would not be bound to adhere to the decision

FIGURE 1.2 Rights Incorporated to the States

Right Deciding Case

First Amendment freedom of religion, speech, and assembly and the right to petition for redress of grievances

Fiske v. Kansas, 274 U.S. 380 (1927)

Fourth Amendment prohibition of unreasonable searches and seizures Wolf v. Colorado, 338 U.S. 25 (1949) Fifth Amendment protection against compelled self-incrimination Malloy v. Hogan, 378 U.S. 1 (1964) Fifth Amendment protection from double jeopardy Benton v. Maryland, 395 U.S. 784

(1969) Sixth Amendment right to counsel Gideon v. Wainwright, 372 U.S.

335 (1963) Sixth Amendment right to a speedy trial Klopfer v. North Carolina, 386 U.S.

213 (1967) Sixth Amendment right to a public trial In re Oliver, 333 U.S. 257 (1948) Sixth Amendment right to confrontation Pointer v. Texas, 380 U.S. 400 (1965) Sixth Amendment right to an impartial jury Duncan v. Louisiana, 391 U.S.

145 (1968) Sixth Amendment right to compulsory process Washington v. Texas, 388 U.S.

14 (1967) Eighth Amendment prohibition of cruel and unusual punishment Robinson v. California, 370 U.S.

660 (1962)

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(although some courts often do as a matter of professional courtesy). Perhaps more important, if a case coming before a court is unique and does not resemble one decided in the past, the court may distinguish it.

Distinguishing Cases

When a previous decision does not apply to the current facts, a court will distinguish the case, saying, in effect, that this case is different and cannot be decided by looking to past rulings. Another way of understanding what it means to distinguish a case is to think of the present set of facts as unique and never before considered by an appellate court.

Since only a handful of cases make it to the appellate level, and even fewer still arrive at the Supreme Court, there is an untold number of cases waiting to be distinguished. This is a critical point. The case law in place currently addresses only a minute quantity of possible constitutional questions. Countless contacts occur between the police and citizens, and several of them may give rise to important constitutional questions. Yet they may never see the inside of a courtroom. So, while this book may appear heavy on case law, a thorough understanding of criminal procedure would require a review of the nearly infinite possible factual circumstances that could arise in the criminal process.

An example of a case that was distinguished is Terry v. Ohio (392 U.S. 1 [1968]). In that case, the Supreme Court held that police officers can stop and frisk suspects with reasonable suspicion, not probable cause (the latter standard appearing in the text of the Fourth Amendment). The Court felt that a stop-and-frisk is different from a search or a seizure and, as such, should be governed by a different set of standards. Had the Supreme Court not decided Terry, or any case like it, stop-and-frisk encounters would probably still be considered seizures and therefore subject to the Fourth Amendment’s requirement for probable cause. Terry will be considered in more detail later, as will many other distinguished cases.

In nearly every class on criminal procedure, students ask, “What if . . . ?” The “what-if” question reflects a concern over possible factual circumstances not already addressed in published court decisions. In order for a “what-if” question to be answered, a court decision must result. Otherwise, the best approach to answering such a question is to look to the past and find a decision that closely resembles the hypothetical scenario. In this vein, every case discussed throughout this text should be thought of as a distinguished case. Every decision was based on a different set of factual circumstances and was deemed by the reviewing court as worthy of being distinguished. Were it not for distinguished cases, criminal procedure case law could be adequately covered in a matter of minutes, even seconds.

THEORY VERSUS REALITY

Criminal procedure consists mostly of rules and guidelines that have been handed down by the courts so as to dictate how the criminal process should play out. As already mentioned, many of these rules and guidelines have come from the U.S. Supreme Court, which has decided on thousands of occasions how the Constitution should be inter- preted. However, in some circumstances, court decisions may not really have a great deal of influence. That is, some court decisions are made in the theory world, which is somewhat disconnected from the day-to-day operations of law enforcement. In contrast, the police occupy a position that is very definitely in the real world. Understandably, there can be differences, even tensions, between the worlds of theory and reality.

The fact that theory and reality may differ is a subject that receives little direct attention in criminal procedure textbooks. Indeed, that certain Supreme Court decisions may not really matter, or might even be flatly ignored, is a controversial notion, to say

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the least. Americans are taught that the courts—and the Supreme Court, in particular— are charged with interpreting the Constitution and the laws of the United States. They are further taught that law enforcement should accept such interpretations uncritically and without much reflection. While this is mostly true, theory and reality can still differ for at least four reasons.

• First, the Supreme Court sometimes makes decisions on excruciatingly detailed mat- ters that have almost no applicability to most law enforcement officers most of the time. A good example is the Supreme Court’s recent decision in Atwater v. City of Lago Vista (533 U.S. 924 [2001]), a case that will be considered more fully later. (See Chapter 5 on warrantless searches and seizures.) The Court decided that the Fourth Amendment does not prohibit the police from arresting people for seat-belt viola- tions. On one level, this decision seems significant, but how many police officers are now going to arrest people for seat-belt violations? Probably very few police will take up this cause because they usually have more important matters to address.

• Second, the Supreme Court frequently hands down restrictive decisions that would seem to have dramatic effects on the nature of law enforcement but that actually involve issues already being addressed by many police agencies. For example, the Supreme Court’s decision in Tennessee v. Garner (471 U.S. 1 [1985]) made it a violation of the Fourth Amendment for the police to use deadly force to apprehend an unarmed and nondangerous fleeing felon. However, prior to Garner, many police agencies had already adopted restrictive deadly force policies—policies that, in many instances, were more restrictive than what was handed down in Garner. Police agency policy, therefore, can differ from, and even be more restrictive than, decisions reached by the Supreme Court. To illustrate this, several excerpts from police agency manuals and guidelines are reprinted throughout subsequent chapters.

• The third reason for the theory/reality dichotomy is that the courts sometimes hand down decisions that can be effectively circumvented or ignored by the police. Clearly, it is not in the best interest of law enforcement to ignore the courts, and it is probably quite rare that the police do so, but it can be done. For example, in Kyllo v. United States (533 U.S. 27 [2001]), the Supreme Court held that a search occurs when the police to scan a private residence with an infrared thermal imager without first obtaining a warrant. The consequence of conducting such a scan without a warrant is that any evidence subsequently obtained will not be admissible in court. However, in reality, what is to prevent the police from scanning someone’s house if there is no intent to secure evidence?

• Finally, what the courts say and the police do can differ simply as a consequence of the U.S. legal system. It is well known, for example, that a police officer cannot stop a motorist without some level of justification. On how many occasions, though, are motorists stopped without justification? That is, how many people are pulled over every day simply because a police officer is suspicious of them? This cannot be

DECISION-MAKING EXERCISE 1.2

Traditional Legal Doctrine Meets High-Tech Crime

In Katz v. United States (389 U.S. 347 [1967]), the Supreme Court decided that searches occur when a government actor infringes on a person’s reasonable expectation of pri- vacy. Assume federal agents have a trained drug dog sniff

passengers’ luggage on a baggage carousel in an airport. Does this constitute a search? Is Katz equipped to deal with a situation such as this, or is the situation such that it calls for a distinguished case?

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established for certain, but it does happen. It can happen because the legal system cannot do much to prevent it. Someone who is wrongfully stopped can file a complaint, but research shows that many such complaints are resolved in favor of the police.4 A lawsuit can be filed, but as will be noted in Chapter 2, such suits rarely are successful. And if nothing worthy of arresting the motorist is discovered, then it is doubtful that the illegal stop will draw attention in court.

In fairness to the law enforcement community, it is not the case that the police (or other criminal justice officials) regularly trample people’s constitutional rights. Most law enforcement officials are responsible, professional, and upstanding enforcers of the law, as are most judges and prosecutors. But the fact cannot be ignored that the reality of everyday law enforcement and the somewhat distant nature of certain court decisions do not always meet. It is for this reason that distinctions between theory and reality are pointed out throughout later chapters. Police department policy manual excerpts also appear throughout the book. They help bridge the gap between theory and reality by illustrating the procedures law enforcement officials must follow in addition to those laid out by the Supreme Court.

COMPETING CONCERNS IN CRIMINAL PROCEDURE

Criminal procedure is an exciting topic because of the inherent tension it creates between two competing sets of priorities. On the one hand, there is a serious interest in the United States in controlling crime, with some Americans advocating doing whatever it takes to keep criminals off the streets. On the other hand, because of their country’s democratic system of government, Americans value people’s rights and become angry when those rights are compromised or threatened. These two competing sets of values have been described by Herbert Packer as the crime control and due process perspectives.5

The values each opposing perspective subscribes to are probably familiar to many readers because the due process/crime control debate invariably pops up all through- out criminal justice. Almost without exception, whenever there is disagreement as to how best to approach the crime problem—be it through court decisions or legislative measures—the due process/crime control distinction rears its head. A delicate balance has to be achieved between the two perspectives.

The due process perspective closely resembles a liberal political orientation. Liberals often favor protection of people’s rights and liberties to a higher degree than

4 For an informative review, see J. L. Worrall, “If You Build It, They Will Come: Consequences of Improved Citizen Complaint Review Procedures,” Crime and Delinquency 48 (2002): 355–379.

DECISION-MAKING EXERCISE 1.3

Theory and Reality Collide

In Miranda v. Arizona (384 U.S. 436 [1966]), the U.S. Supreme Court decided that the police must advise suspects who are custodially interrogated of their Fifth Amendment privilege against self-incrimination. This case will be revisited in great detail later in the book, but for now, it illustrates that (1) custody occurs when a reasonable person would

believe the suspect is not free to leave (an arrest being a prime example of such action) and (2) interrogation refers to actions by the police that are reasonably likely to elicit a response from the suspect. Assume that the police arrest a man but do not interrogate him. Assume further that the man confesses to a crime. Does Miranda apply?

5 H. L. Packer, The Limits of the Criminal Sanction (Palo Alto, CA: Stanford University Press, 1968).

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their conservative counterparts. By contrast, the crime control perspective is the one most frequently subscribed to by conservative law-and-order types.

Of course, in reality, there can be a great deal of overlap between the two orientations. Liberals occasionally favor conservative crime control policies, and conservatives can be concerned with protecting the rights of American citizens. That is to say, although the two groups frequently stand in stark contrast to each other, they do sometimes meet in the middle. Regardless, the values espoused by each group—be it an interest in crime control, an interest in civil rights, or an interest in both—are here to stay. Given that, it is useful to consider each perspective in more detail, focusing special attention on the implications for criminal procedure.

Due Process

Packer’s due process perspective is, first and foremost, concerned with people’s rights and liberties. It also gives significant weight to human freedom. Due process advocates believe that the government’s primary job is not to control crime but rather to maximize human freedom, which includes protecting citizens from undue government influence. Proponents of due process favor minimizing the potential for mistakes, as explained by Packer:

People are notoriously poor observers of disturbing events. . . . [C]onfessions and admissions by persons in police custody may be induced by physical or psychological coercion so that the police end up hearing what the suspect thinks they want to hear rather than the truth; witnesses may be animated by a bias or interest that no one would trouble to discover except one specially charged with protecting the interests of the accused (as the police are not).6

Due process advocates also believe that each suspect is innocent until proven guilty, just as Americans are taught. In addition, they place greater emphasis on legal guilt (whether a person is guilty according to the law) rather than factual guilt (whether a person actually committed the crime with which he or she is charged).

Underlying the due process/crime control perspectives are four ideals: (1) The criminal process looks, or should look, something like an obstacle course; (2) Quality is better than quantity; (3) Formality is preferred over informality; and (4) A great deal of faith is put in the courts.

THE OBSTACLE COURSE The “obstacle course” idea is rooted in a metaphor, of course. A criminal process that resembles an obstacle course is one that is complex and needs to be navigated by skilled legal professionals. Further, it is one that is somewhat difficult to operate in a predictable fashion. It is not a process that prides itself on speed and efficiency—values of great importance in the crime control perspective. In fact, the opposite could be said. The obstacle-course metaphor also stresses that each case must pass through several complicated twists and turns before a verdict can be rendered.

QUALITY OVER QUANTITY Another way to distinguish between due process and crime control is in terms of quantity and quality. The due process view favors quality—that is, reaching a fair and accurate decision at every stage of the criminal process. It stresses that each case should be handled on an individual basis and that special attention should be paid to the facts and circumstances surrounding the event. In addition, the concern with quality is one that minimizes the potential for error. For example, due

6 Ibid., p. 163.

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Chapter 1 • Introduction to Criminal Procedure 15

process advocates are in favor of allowing several death penalty appeals because the possibility of executing the wrong person should be avoided at all costs.

INSISTENCE ON FORMALITY Due process advocates do not favor informal processes. Because of the potential for human error and bias, they favor a full-blown adversarial criminal process. They also believe that early intervention by judges and other presumptively objective parties (besides, say, the police) is in the best interest of people accused of breaking the law.

FAITH IN THE COURTS Another value inherent in the due process perspective is intense faith in the courts as opposed to law enforcement. Due process advocates correctly point out that the job of a judge is to interpret the U.S. Constitution. This, they argue, helps provide protection to people charged with crimes. Faith in the courts also corresponds with the above-mentioned insistence on formality. When guilt or innocence is determined in court, an air of fairness and objectivity must be maintained.

Crime Control

In contrast to the due process perspective, the crime control perspective emphasizes the importance of controlling crime, perhaps to the detriment of civil liberties. From a cost/benefit perspective, crime control advocates believe that the benefit of controlling crime to society at large outweighs the cost of infringing on some individuals’ due process protections. Another way to distinguish between the due process and crime control perspectives is to consider the distinction between means and ends: Crime control is more concerned with the ends, with wiping out crime, or at a minimum, with mitigating its harmful effects. By contrast, due process is concerned with the means, with the methods by which people are treated by criminal justice officials. The result— either crime or the absence of it—is not of great concern to due process advocates.

Additional differences between the due process and crime control perspectives are illustrated in Figure 1.3.

THE ASSEMBLY LINE The metaphor of an “assembly line” suggests that the criminal process should be automatic, predictable, and uniform. In other words, every criminal should be treated the same, with minimal variations in terms of charges and sentences. The assembly- line metaphor further suggests that the criminal process should be quick and efficient.

FIGURE 1.3 The Values of Due Process versus Crime Control

Crime Control Values Due Process Values

• Follows “assembly line” metaphor • Follows “obstacle course” metaphor • Emphasizes quantity over quality • Emphasizes quality over quantity • Favors informality • Prefers formality • Has faith in the police • Has faith in the courts • Makes presumption of guilt • Makes presumption of innocence • Seeks to benefit society • Seeks to benefit suspects • Is concerned with ends, not means • Is concerned with means, not ends • Seeks to maximize police authority • Seeks to maximize human freedom • Seeks to control crime at all costs • Seeks to protect people’s rights at all costs • Puts emphasis on factual guilt • Puts emphasis on legal guilt

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The goal of the crime control perspective is to move criminals through the justice process as swiftly as possible. A full-blown adversarial criminal process, replete with hearings and other pauses in the interest of the accused, is anathema to the crime control view.

QUANTITY OVER QUALITY As just mentioned, the due process model stresses quality over quantity. The crime control model, by contrast, favors quantity over quality, a view that is consistent with the assembly-line metaphor. The goal is to move as many offenders as possible through the criminal justice system with as little delay as possible. If mistakes are made along the way and someone is wrongfully charged or convicted, so be it. That is, the overall goal of ensuring that as many criminals are dealt with as possible is superior to protecting any individual’s constitutional rights.

INSISTENCE ON INFORMALITY Whereas the due process perspective favors the formality of the criminal process, with particular emphasis on the courts, the crime control perspective favors informality. The courts are to be avoided; instead, justice should be meted out beyond the walls of a courtroom. Plea bargaining, for instance, is favored because of its swift, behind-the-scenes nature (not to mention that it eliminates the need to go to trial). An insistence on informality suggests further that the law enforcement establishment should be more involved in making determinations of guilt, not the courts.

FAITH IN THE POLICE Finally, whereas the due process perspective places a great deal of faith in the courts, the crime control perspective puts a high degree of trust in the police. All Americans are taught that each suspect is innocent until proven guilty in a court of law. Clearly, the courts are charged with making this determination. However, crime control advocates favor so-called street justice, giving the police vast discretion in deciding how to deal with people suspected of being involved in criminal activity. A fitting quote describing the crime control perspective is, therefore, “All criminals are guilty until proven innocent.” In other words, all suspects should be considered guilty; if the courts determine otherwise, then so be it.

DECISION-MAKING EXERCISE 1.5

Due Process or Crime Control

In two decisions, United States v. Leon, 468 U.S. 897 (1984) and Massachusetts v. Sheppard, 468 U.S. 981 (1984), the Supreme Court created what is known as the “good faith” exception to the exclusionary rule. This exception, as well as the exclusionary rule, is discussed toward the end of Chapter 2. But for now, realize that both cases are important in that they held that violations of people’s constitutional rights are permissible, under limited circumstances, when the police

make honest mistakes. For example, if a police officer relies on a search warrant that was obtained on the basis of a reasonable mistake, he or she could serve the warrant, search for evidence, and seize it, even if these actions violated the rights of the person searched. The key is that the mistake must be a reasonable one. How, then, would you characterize both the Leon and Sheppard decisions: as prioritizing crime control or due process?

DECISION-MAKING EXERCISE 1.4

Due Process or Crime Control

How should the Miranda decision from Exercise 1.3 be charac- terized: as due process-oriented or crime control-oriented? In other words, does Miranda prioritize the suspect’s due process

rights or the interest of the police in controlling crime? What about the Supreme Court’s decision in Kyllo v. United States, mentioned in the “Theory versus Reality” section?

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FINDING COURT CASES AND TRACING THEIR PROGRESS

Criminal procedure can be complex not only because of the many factual questions that arise in day-to-day police/citizen encounters (as well as throughout the rest of the justice process) but also because of the two-tiered structure of the U.S. court system. This two-tiered structure reflects the idea of dual sovereignty: that the federal and state governments are considered separate, or sovereign, in their own right. Each state, as well as the federal government, has its own court structure.

There is no way to succinctly describe all the variations in state court structures, but, generally, they resemble one another. Typically, the lowest-level courts in a given state are courts of limited jurisdiction, which have jurisdiction over relatively minor offenses and infractions. A traffic court fits in this category. Next are the trial courts, also called courts of general jurisdiction, which try several types of cases. Courts of general jurisdiction are often county-level courts and are frequently called superior courts. At the next highest level are the intermediate appellate courts; verdicts from courts of general jurisdiction are appealed to these courts. Finally, each state has its own state supreme court, the highest court in the state. Figure 1.4 shows a typical state court structure—from the state of Washington. Importantly, state courts try cases involving state laws (and, depending on the level of the court, some county, city, and other local ordinances).

The federal court structure can be described succinctly because, for the purposes of criminal procedure, it consists of three specific types of courts. Federal courts try cases involving federal law. The lowest courts at the federal level are the so-called district courts. There are 94 federal district courts in the United States (as of this writing), including 89 district courts in the 50 states and 1 each in Puerto Rico, the Virgin Islands, the District of Columbia, Guam, and the Northern Mariana Islands. At the next level are the U.S. courts of appeals. There are 13 of these so-called circuit courts of appeals: 12 regional courts and 1 for the federal circuit. Each is charged with hearing appeals from several of the district courts that fall within its circuit. Finally, the U.S. Supreme Court is the highest court in the federal system. As will be discussed, however, the Supreme Court does not only hear federal appeals.7 Figure 1.5 shows the structure of the federal court system; the courts of relevance in criminal procedure are highlighted. Figure 1.6 presents a map of the geographic boundaries of the U.S. courts of appeals and the U.S. district courts.

The federal government and each of the 50 states are considered a sovereign entity. That is why each has a court system of its own. There is another set of sovereigns, however: the Native American tribal courts. These tribal courts will receive no further attention in this book because, in general, they do not have to follow the same constitutional requirements as state and federal courts. Rather, they come under the Indian Civil Rights Act of 1968. The U.S. military also has its own structure, in which the rules of criminal procedure differ markedly from those covered here. Because of the complexity of the Uniform Code of Military Justice, military courts and criminal procedure will not be covered in this book, either.

That said, what decides where a case will be decided? Generally, if the case involves federal law, it will be tried in federal court. If, by contrast, it involves state law, it will be heard in state court. Certain crimes—such as kidnapping, transportation of illegal narcotics across state lines, and robbing a federally insured bank—can be tried in both federal and state courts, if the prosecutors agree. As will be discussed later, such a dual prosecution does not violate the Fifth Amendment’s double-jeopardy clause.

7 Note that references to the federal-level Supreme Court are always capitalized (e.g., the U.S. Supreme Court, the Supreme Court, and even the Court), whereas those to state-level supreme courts are not (i.e., except in cit- ing a particular state court, such as the Florida Supreme Court).

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WASHINGTON COURT STRUCTURE

* “en banc” means all justices/judges hear the case at once. “In panels” means only some of the justices/judges hear the case. ** Court Statistics Project. *** District court provides services to municipalities that do not have a municipal court.

SUPREME COURT

9 justices sit en banc and in panels*

CSP** case types: • Mandatory jurisdiction in civil, capital criminal, criminal, administrative agency, juvenile, certified

questions from federal court cases. • Discretionary jurisdiction in civil, noncapital criminal, administrative agency, juvenile, disciplinary,

original proceeding, interlocutory decision cases.

COURT OF APPEALS (3 courts/divisions)

22 judges sit in panels

CSP case types: • Mandatory jurisdiction in civil, noncapital criminal, administrative agency, juvenile, original proceeding cases.

• Discretionary jurisdiction in administrative agency, interlocutory decision cases.

SUPERIOR COURT (31 districts in 39 counties) A

179 judges

CSP case types: • Tort, contract ($0/no maximum). Exclusive real property rights ($0/no maximum), estate, mental

health, civil appeals, miscellaneous civil jurisdiction. • Exclusive domestic relations jurisdiction. • Exclusive felony, criminal appeals jurisdiction. • Exclusive juvenile jurisdiction.

MUNICIPAL COURT (125 courts)

98 judges

CSP case types: • Misdemeanor, DWI/DUI, domestic violence. • Moving traffic, parking, miscellaneous traffic,

ordinance violation.

Jury trials except in infractions and parking.

DISTRICT COURT*** (44 courts in 56 locations for 39 counties)

109 judges

CSP case types: • Tort, contract ($0/$50,000). Exclusive small

claims jurisdiction ($4,000). • Misdemeanor, DWI/DUI, domestic violence. • Moving traffic, parking, miscellaneous

(nontraffic) violations. • Preliminary hearings.

Jury trials except in traffic and parking.

Court of last resort

Intermediate appellate court

Court of general jurisdiction

Courts of limited jurisdiction

FIGURE 1.4 Structure of a State Court System (Washington)

Source: Bureau of Justice Statistics, State Court Organization, 2004 (Washington, DC: U.S. Department

of Justice, 2006), p. 316. Available online: http://bjs.ojp.usdoj.gov/content/pub/pdf/sco04.pdf (accessed

February 16, 2011)

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Chapter 1 • Introduction to Criminal Procedure 19

THE UNITED STATES FEDERAL COURTS

UNITED STATES SUPREME COURTSUPREME COURT

APPELLATE COURTS

TRIAL COURTS

FEDERAL COURTS AND OTHER ENTITIES OUTSIDE THE JUDICIAL BRANCH

U.S. Courts of Appeals 12 Regional Circuit Courts of Appeals

1 U.S. Court of Appeals for the Federal Circuit

U.S. District Courts 94 judicial districts

U.S. Bankruptcy Courts

U.S. Court of International Trade U.S. Court of Federal Claims

Military Courts (trial and appellate) Court of Veterans Appeals

U.S. Tax Court Federal administrative agencies and boards

FIGURE 1.5 Structure of the Federal Court

As indicated near the outset of this chapter, criminal procedure textbooks—this one included—focus almost exclusively on U.S. Supreme Court decisions. Why focus on federal Supreme Court decisions rather than state supreme court decisions? The answer is that many important cases move from the state supreme courts to the U.S. Supreme Court, which is the court of last resort. Decisions of the U.S. Supreme Court are, there- fore, important because they represent the last word on what conduct is constitutional and what is not.

To understand the relationship between the federal and state courts, it is necessary to understand first where to find criminal cases and then how to trace the progress of criminal cases as they move from the trial to the appellate level. Following discussion of these topics, attention will turn to what types of cases are decided by the U.S. Supreme Court and how state-level court decisions arrive at the nation’s highest court.

Finding Cases

Being able to find court cases requires that readers be familiar with legal citations as well as the publications in which cases can be found. Legal citations are somewhat

Source: Administrative Office of the U.S. Courts, Understanding the U.S. Court (Washington, DC:

Administrative Office of the U.S. Courts, 2011). Available online: http://www.uscourts.gov/FederalCourts/

UnderstandingtheFederalCourts/FederalCourtsStructure.aspx (accessed February 16, 2011)

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FIGURE 1.6 Geographic Boundaries of the U.S. Courts of Appeals and the U.S. District Courts

cryptic but can be deciphered with relative ease. The following is the citation format used throughout this text:

Miranda v. Arizona (384 U.S. 436 [1966])

Miranda and Arizona refer to the parties to the case. Importantly, the party listed first is the one initiating the action. In this case, Miranda appealed his conviction, which is why he is listed first. The legal citation format that follows the parties is interpreted as follows: The first part, 384, is the volume; the second part, U.S., is the publication in which the case can be found; the third part, 436, is the page on which the case starts; and the fourth, 1966, is the year the decision was published. See Figure 1.7 for a listing of publications in which court cases can be found.

After becoming familiar with case citations, it is necessary to learn where the cases can actually be found. First, most university libraries have one or several of the so-called reporters listed in Figure 1.7. They can be found in bound form on the library shelves. Online research is also an option. Cases can be found at such Web sites as www. findlaw.com. U.S. Supreme Court cases can be found at www.supremecourtus.gov. Another Web site, maintained by Cornell University, is helpful for finding Supreme Court cases: http: //www.law.cornell.edu/supct/.

Many university libraries also have access to subscription databases, such as LexisNexis, which contain cases from nearly all courts across the country. Both Lexis

Source: Administrative Office of the U.S. Courts, Court Locator (Washington, DC: Administrative Office

of the U.S. Courts, 2011). Available online: http://www.uscourts.gov/Court_Locator.aspx (accessed

February 16, 2011)

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Chapter 1 • Introduction to Criminal Procedure 21

and West have a feature known as Shepard’s Citations. This allows researchers to enter a case citation and retrieve every other case that has cited it. Doing a Shepard’s search is useful for tracing the history and current status of an important decision.

For those who do not enjoy reading actual court decisions, other sources of legal information may be useful. For example, legal dictionaries and encyclopedias offer clarification of important legal concepts. Legal digests identify and consolidate legal issues, provide commentary on and interpret cases, and otherwise “digest” complex material. Finally, law reviews are useful places to find discussions of various aspects of the law as well as opinions on and interpretations of court cases. Databases such as LexisNexis contain full-text articles from nearly all law reviews. The Web links listed at the end of this chapter include some legal research sites with information on how to find cases, statutes, and other relevant information.

Tracing the Progress of a Criminal Case

One of the more frustrating aspects of criminal procedure, especially for those who have little familiarity with the law or legal jargon, is the sometimes laborious task of tracing the progress of a criminal case. If final decisions were reached in a single court, then criminal procedure would be vastly simplified. In reality, though, a single case can bounce back and forth between trial and appellate courts, sometimes for years. Indeed, many U.S. Supreme Court decisions concern matters that occurred a decade or more ago. Thus, it is of particular importance for students of criminal procedure to learn how to trace a criminal case.

There are several essential steps to tracing the progress of a criminal case. First, it is necessary to have a basic understanding of the nation’s court structure. This requires knowing where the criminal trial in question took place. If it took place in a federal circuit court, then tracing the progress of the case will be fairly easy. There are only three possible courts—district court, circuit appellate court, and the Supreme Court—that may have

FIGURE 1.7 Publications Containing Court Cases

Abbreviation Description

U.S. United States Reports: This is the official publication for U.S. Supreme Court decisions. S.Ct. Supreme Court Reporter: This Westlaw publication reports U.S. Supreme Court decisions. CrL Criminal Law Reporter: This Bureau of National Affairs publication reports U.S. Supreme Court decisions. L.W. United States Law Week: This Bureau of National Affairs publication reports U.S. Supreme Court decisions. F.2d Federal Reports, Second Series: This Westlaw publication reports decisions of the Federal Courts of

Appeals. P.2d Pacific Reporter, Second Series: This Westlaw publication reports decisions from the Pacific states. A.2d Atlantic Reporter, Second Series: This Westlaw publication reports decisions from the Atlantic states. N.E.2d North Eastern Reporter, Second Series: This Westlaw publication reports decisions from the northeastern

states. N.W.2d. North Western Reporter, Second Series: This Westlaw publication reports decisions from the northwestern

states. S.E.2d South Eastern Reporter, Second Series: This Westlaw publication reports decisions from the southeastern

states. S.W.2d South Western Reporter, Second Series: This Westlaw publication reports decisions from the southwestern

states. S.2d Southern Reporter, Second Series: This Westlaw publication reports decisions from the southern states.

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handed down decisions on the matter. If the case originated in state court, however, it can be decidedly more difficult to trace the case over time. Familiarity with the state court structure is needed, as well as an understanding of how cases can jump back and forth between the state and federal courts, which will be discussed later in this section.

Second, to adequately follow the progress of a criminal case, it is also necessary to understand the legal jargon, beginning with the parties to the case. The parties to the case are the people involved. At the trial level, the parties of interest are the defendant, or the person charged with the crime in question, and the prosecutor, or the official representing the government. At the appellate level, these parties are no longer called defendant and prosecutor but rather appellant and appellee. The appellant is the party that appeals; both the prosecutor and defendant can appeal (see Chapter 15), but the defendant appeals more often than the prosecutor. The appellee (sometimes called the respondent) is the party appealed against. The term petitioner is also used at times, namely when a prisoner files a habeas corpus petition (see Chapter 15). A petitioner is one who petitions an appellate court to hear his or her case.

Next, to follow a criminal case, it is essential to have an understanding of how cases are decided and what possible decisions can be reached. At the trial level, two decisions can result: guilty and not guilty. At the appellate level, however, the picture becomes more complex. Assume, for example, that a defendant is found guilty in a federal district court and appeals to one of the circuit courts of appeals. Assuming that the court agrees to hear the case, it can hand down one of several decisions. It could reverse the lower court’s decision, which is akin to nullifying or setting it aside. Sometimes the appellate court vacates the lower court’s decision, which is basically the same as reversing it. A reversal does not always have the effect of setting the defendant free, however. The appellate court could also remand the case back to the lower court. When a case is remanded, it is sent back to the lower court for further action consistent with the appellate court’s decision. Cases can also be reversed and remanded together. The appellate court can also affirm the lower court’s decision, in which case it agrees with the lower court.

If there was only one appellate court, tracing the progress of a case would be fairly simple. Unfortunately, multiple appellate courts exist, which means the decisions from court to court can change. This is a very important point. Assume, for example, that a defendant is found guilty in a state trial court. He or she could appeal to the state’s intermediate appellate court, which could reverse the defendant’s conviction. The case could then go to the state’s supreme court, which could reverse the appellate court’s decision and basically uphold the defendant’s conviction. Finally, the case could go to the U.S. Supreme Court, which could again reverse the defendant’s conviction. Believe it or not, this is a fairly simple progression. Nothing prevents a single case from going from the trial court to the appellate court, back to the trial court, up to the appellate court again, then up to the state supreme court, back to the intermediate appellate court, and so on.

It is essential to understand what has happened with a criminal case before making any claims as to its importance or influence. In other words, doing incomplete legal research can be a recipe for disaster. If, for instance, a researcher finds a state supreme court decision that supports a point he or she wants to make but that decision was later reversed, say, by the U.S. Supreme Court, whatever argument he or she makes in reliance on that state supreme court case will be inaccurate. Thus, in tracing the progress of a criminal case, it is necessary to understand whether the issue in question has been resolved or may currently be on the docket of an appellate court, which could render an altogether different decision.

In tracing a criminal case, especially when interpreting one decided at the appellate level, it is important to understand the components of a published decision.

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An appellate court often consists of a panel of judges who may not always agree with one another, even though the court reaches a single decision. For example, a 5 to 4 decision by the U.S. Supreme Court is one in which the Court reached a single decision because of a majority, but four of the justices disagreed. The opinion is the voice of the five justices (or the voice of the majority of the judges in a lower ap- pellate court decision), although one or more of the five may opt to write a concurring opinion, which supports the majority’s decision but with different legal logic. The four remaining justices will probably write a dissent, in which they argue why they disagree with the majority’s decision. If they wanted to, each of the four minority justices could write his or her own individual dissent. Either way, it is important to distinguish between a given court’s opinion and possible concurring and dissenting opinions.

There is much more to tracing the progress of a criminal case than understanding the terminology encountered along the way. How is it that certain cases are appealed and others are not? Under what circumstances may the defendant appeal but not the prosecution, and vice versa? Why do some defendants file several appeals and others do not? Answers to these questions are presented in the last chapter of this text, where special attention is given to the appellate process and other methods for challenging the verdicts of trial courts throughout the United States.

How Cases Arrive at the Supreme Court

Most criminal cases originate at the state level. This should be obvious because there are 50 state court structures and only 1 federal court system. Also, the number of state laws criminalizing certain types of conduct vastly exceeds the number of federal laws with the same objective. But just because most cases are heard in state courts does not mean they cannot be heard at the federal level. State-level cases can arrive at the U.S. Supreme Court.

Stated simply, a state-level case can arrive at the Supreme Court if it raises a federal question, which is usually a question concerning the U.S. Constitution. First, however, such a case must proceed through several steps. It must move all the way to the state supreme court. That is, a case cannot jump from a state-level intermediate appellate court to the U.S. Supreme Court.

Next, like many appellate courts, the U.S. Supreme Court must decide whether it wants to hear the case. The party seeking a decision must file documents with the Court, asking to be heard. If the Supreme Court agrees the case is worth deciding, it issues what is known as a writ of certiorari. This is an order by the Court, requiring the

DECISION-MAKING EXERCISE 1.6

Interpreting a Supreme Court Holding

Assume that John Smith was subjected to a search that was not supported by probable cause. Assume further that he was convicted in a federal district court based on evidence obtained from the search. He appealed his conviction to the U.S. court of appeals, which remanded his case back to the district court to determine if the search to which Smith was subjected required probable cause. (Some searches, as will be discussed later, do not require probable cause.) The district court concluded that

the search did not require probable cause. The case was then appealed again to the U.S. court of appeals, which reversed the district court’s decision, holding that the search did need to be supported by probable cause. The U.S. Supreme Court then granted certiorari and reversed the U.S. court of appeals decision, holding that the search did not need to be supported by probable cause. In plain English, what happened here? In other words, what is the practical effect of this convoluted case progression?

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lower court to send the case and a record of its proceedings to the U.S. Supreme Court for review. Four of the nine U.S. Supreme Court justices must agree to hear a case before a writ of certiorari will be issued. This is known as the rule of four.

If four justices do not agree to hear the case, that is the end of the road in terms of legal options. When tracing the progress of a case, encountering a statement such as “cert. denied” will indicate this result. The case was denied a hearing by the Supreme Court. Figure 1.8 summarizes how cases arrive at the Supreme Court.

It cannot be overemphasized that only a handful of cases ever reach the U.S. Supreme Court. It is not uncommon for the Supreme Court to review thousands of petitions yet grant less than 100 writs of certiorari. Most cases that are appealed stop short of reaching the Supreme Court, so it is necessary to find out at what level the final decision was reached. Not tracing a case to its final decision can be fatal to a legal argument. In other words, if a researcher wants to argue a specific point with reference to a previously decided case, he or she must be sure that the decision is, if only for the time being, a final one.

U.S. Courts of Appeals State Supreme Courts

Trial Courts of General Jurisdiction

Intermediate Appellate CourtsU.S. District Courts

U.S. Supreme Court

struoCleveL-etatSstruoCleveL-laredeF

FIGURE 1.8 How Cases Arrive at the U.S. Supreme Court

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DECISION-MAKING EXERCISE 1.7

Would the Supreme Court Hear This Case?

Assume that a state supreme court heard an appeal from one of the state’s intermediate appellate courts. In the appeal, the defendant argued that her conviction should be overturned, as the judge failed to declare that certain testimony provided by the government’s lead witness should have been deemed inadmissible according to the state’s rules of evidence. In making its decision, the appellate court

sided with the government, upholding the defendant’s con- viction. Would the U.S. Supreme Court likely hear this case? What if, instead, the defendant argued that the original judge mistakenly permitted the prosecutor to comment to the jury concerning the defendant’s refusal to take the stand and testify? Would that issue likely get a hearing from the Court?

Manson v. Braithwaite (432 U.S. 98 [1977])

IMPORTANT ISSUES AND TRENDS IN CRIMINAL PROCEDURE

Criminal procedure, as presented in this text, is mostly about interpreting U.S. Supreme Court decisions regarding certain constitutional rights. In interpreting those decisions, it is worth understanding some important terms, issues, and trends in the Supreme Court’s decision-making practices over the years. Also, it is important to realize that criminal procedure has recently changed due to some important legislation. This section focuses on six topics: (1) bright-line decisions versus case-by-case adjudication; (2) the distinction between subjectivity and objectivity; (3) an increased faith in the police; (4) the notion of judicial restraint; (5) the issue of personal privacy; and (6) the PATRIOT Act, which was signed into law following the attacks on the Pentagon and the World Trade Center on September 11, 2001.

Bright-Line Decisions versus Case-by-Case Adjudication

There are two types of Supreme Court decisions: (1) bright-line decisions and (2) deci- sions requiring case-by-case adjudication. A bright-line decision is one in which the Court hands down a specific rule, one subject to very little interpretation. It is like the metaphorical “line drawn in the sand”; in other words, the Court emphatically communicates to the criminal justice community what it can and cannot do. An example of a bright-line decision is Wilson v. Layne, a case mentioned near the beginning of this chapter. In that case, the Supreme Court said that the police cannot bring the media along on the service of warrants unless its presence serves a legitimate law enforcement objective. It is easy to see that this is a clear, bright-line rule. Exactly what constitutes a “law enforcement objective” may be somewhat vague, but otherwise, this rule is quite clear. The advantage of a bright-line rule is that it promotes clarity and consistency. Also, it is easily understood by criminal justice officials.

A decision requiring case-by-case adjudication is quite different. In many cases, the Supreme Court refers to the concept of totality of circumstances. For example, in the case of Manson v. Braithwaite (432 U.S. 98 [1977]), the Supreme Court held that the totality of circumstances determines whether an identification procedure is unreliable. This means that all the facts and circumstances surrounding the case must be examined in order to determine whether a constitutional rights violation has taken place. Deciding whether the totality of circumstances supports the action in question requires looking at each case individually. There is no existing recipe specifying what authorities should or should not do. A case-by-case decision is preferable in some instances because it is rarely possible to know in advance all the possible twists and turns in a criminal case. That is, case-by-case decisions promote flexibility, leaving it up to the lower courts (usually, the trial court) to decide if the action in question conforms to constitutional guidelines. However, this approach can also create uncertainty for law enforcement officials.

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Subjectivity versus Objectivity

The terms subjective and objective are sometimes found in Supreme Court decisions. And although what these terms mean in everyday use is well understood, what they mean in the language of criminal procedure is not necessarily so well defined. Part of the confusion stems from the fact that subjective and objective are sometimes used directly before the term reasonable. It is not uncommon to read a Supreme Court opinion referring to objective reasonableness or subjective reasonableness. Usually, phrases such as these are considered in the context of the Fourth Amendment because of its language on reasonableness.

Police conduct that is considered subjectively reasonable, or characterized by subjective reasonableness, is one that would be considered reasonable by the police officer engaged in the conduct. For example, if a police officer arrests a person without probable cause but feels that probable cause was present, his or her actions can be considered subjectively reasonable. Objective reasonableness, by contrast, refers to what a reasonable person (usually, a reasonable police officer) would do or feel under the circumstances. A reasonable person would believe that making an arrest without probable cause is unconstitutional.

Objective and subjective language can be found in the Supreme Court’s references to people’s privacy interests. For example, in deciding whether a person enjoys a reasonable expectation of privacy when engaging in some sort of activity, both terms frequently appear. The Court has been forced to answer a simple question: Should individual people be trusted to identify their privacy interests, or should what a reason- able person would believe determine the expectation of privacy?

In the past few decades, the Supreme Court has moved from subjective analyses to objective analyses in many of its decisions. The reason for this should be fairly clear: A subjective analysis puts a high degree of faith in the individual police officer, citizen, or other person. Assume that a man has a marijuana field on his property, and it is observed by the police in a helicopter flyover. He will probably argue that he should be able to enjoy privacy in his backyard and that the police should not be able to spy on him. Such an argument is quite predictable in a case like this because it behooves the suspect to assert a privacy interest. However, what the suspect believes and what a reasonable person may believe could be two entirely different things. Indeed, the Supreme Court has moved to an objective analysis in many scenarios such as this for the simple reason that individuals are not entirely without bias in making such determinations. The Court now prefers to defer to what a reasonable person would believe.

In some ways, the term objective, as used in court decisions, mirrors its meaning in everyday use. It suggests a more or less unbiased view of a particular matter. By comparison, the term subjective suggests more of an individually based determi- nation. Unfortunately, it is not always easy to identify what a reasonable person would believe. The notion of a reasonable person is, in fact, a hypothetical construct. For this reason, the Court usually decides what can be considered an objectively reasonable belief.

The distinction between objective and subjective reasonableness can be clarified with an important Supreme Court decision. In the landmark case of Graham v. Connor (490 U.S. 386 [1989]), the leading nondeadly force case decided to date, the Supreme Court declared emphatically that all claims involving allegations of excessive (non- deadly) force against police officers must be analyzed under the Fourth Amendment’s reasonableness requirement. Namely, “[A]ll claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard” (p. 386).

26 Part 1 • Introduction

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More importantly, in Garner, the Court adopted a test of objective reasonableness to decide whether excessive force has been used. This requires focusing on what a reasonable police officer would do “without regard to [the officer’s] underlying intent or motivation.” In trying to decide what a reasonable police officer would do, the Court looked to three factors: (1) the severity of the crime; (2) whether the suspect posed a threat; and (3) whether the suspect was resisting and/or attempting to flee the scene. Courts must, in focusing on these three factors, allow “for the fact that police officers are often forced to make split-second judgments—about the amount of force that is necessary in a particular situation” (p. 386). Note that the Court was not concerned with what the individual officer felt with regard to these three factors. Rather, the preferred focus was on what a reasonable officer would believe.

Increased Faith in the Police

Earl Warren was appointed to the position of chief justice of the U.S. Supreme Court in 1953; thus, references to the Warren Court reflect the time from 1953 to 1969, during which Warren was chief justice. The Warren Court handed down a number of decisions, particularly throughout the 1960s, that provided extensive constitutional protections for criminal defendants. To use Packer’s language, the Court was highly concerned with due process during this period. Others describe the Court as being extremely liberal during the Warren era. All in all, the Court did not place a great deal of trust in the police, much less other criminal justice officials. Rather, it was concerned primarily with individual rights.

Warren E. Burger held the position of chief justice from 1969 to 1986. During his tenure, the Court moved closer to the center of judicial and political thought and away from the liberal stance of the Warren Court. This movement toward conservatism gained significant momentum with the appointment of William H. Rehnquist as chief justice in 1987. The decisions handed down by the Court in the area of criminal procedure began to take on a different orientation, one that placed a great deal of faith in the police. In practice, many of the Court’s decisions of late have increased the power of law enforcement as well as granted the police extensive latitude with regard to con- trolling crime. For example, the Court created the well-known “good faith” exception to the exclusionary rule (see Chapter 2). Also, many decisions have carved out exceptions to the Fourth Amendment’s warrant requirement, suggesting that judicially authorized search and arrest warrants are not of particular use or importance much of the time.

The reader is encouraged to take note of the dates of the many Supreme Court decisions discussed throughout this text. With only a handful of exceptions, the decisions of the Warren Court in the 1960s were concerned with the rights of criminal suspects and placed significant restrictions on the authority of criminal justice officials.

DECISION-MAKING EXERCISE 1.8

A Bright-Line Decision or Case-by-Case Adjudication

In Tennessee v. Garner (471 U.S. 1 [1985]), a Memphis police officer shot and killed an unarmed 15-year-old boy who was fleeing the scene of a residential burglary. The officer called to the boy, Garner, to stop, but he did not. When Garner was about to climb a fence, the officer shot him in the back of the head, fatally wounding him. Garner’s surviving family members filed a section 1983 lawsuit, claiming the level of

force used was excessive. The Supreme Court agreed, ruling that deadly force may be used only when two criteria are present: (1) It is necessary to prevent the suspect’s escape, and (2) the officer has probable cause to believe the suspect poses a serious threat of death or serious physical injury to other people or police officers. Can the Court’s decision in Garner be characterized as bright line in nature?

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Many of the decisions handed down since approximately the 1980s reflect something of a change in priorities, one that favors increased law enforcement authority and a concern with effective crime control, as opposed to due process.

Judicial Restraint

The term judicial restraint identifies the philosophy of limiting decisions to the facts of each case, deciding only the issue or issues that need to be resolved in a particular situation. The practice of judicial restraint also entails avoiding unnecessary decisions on constitutional questions that have yet to be posed. In the area of criminal procedure, a judicially restrained judge will look to the Constitution for guidance and, should the Constitution not be entirely clear, he or she will attempt to understand the framers’ intent. Another way to think of judicial restraint is that it is interpretive, seeking only to interpret the Constitution. Yet another way to understand judicial restraint is with regard to precedent; the judicially restrained judge will defer to precedent as much as possible and avoid setting new guidelines and rules.

The philosophy of judicial restraint can be placed at one end of the large spectrum of judicial philosophies. At the other end is judicial activism. A judicially active judge is one who sees his or her role as more than interpreting the Constitution. A judicially active judge avoids precedent, preferring to hand down decisions with sweeping impli- cations for the future. Thus, a judicially active judge looks more to the future than the past. Further, a judicially active judge favors “judge-made” law.

In Silverman v. United States (365 U.S. 505 [1961]), the Supreme Court elaborated on the notion of judicial restraint when it was deciding a Fourth Amendment case: “[T]he facts of the present case . . . do not require us to consider the large questions which have been argued. We need not here contemplate the Fourth Amendment implications of these and other frightening paraphernalia which the vaunted marvels of an electronic age may visit upon human society” (p. 509). The Court basically stated that large questions should not be answered, but only the specific question before the court.

Personal Privacy

The Supreme Court’s landmark decision in Katz v. United States (389 U.S. 347 [1967]), a case that will be revisited later, reflects a high degree of respect for people’s privacy. This and other Supreme Court decisions show that people should enjoy protection beyond physical intrusions into their property. In Katz, the Court stated that “the Fourth Amendment protects people, not places,” emphasizing that the scope of the “Amendment cannot turn upon the presence or absence of physical intrusion.” This has come to be known as the privacy doctrine.

In the past, the Court required a physical intrusion by authorities into a person’s private property. This was known as the trespass doctrine. People did not enjoy

DECISION-MAKING EXERCISE 1.9

Subjective or Objective

Chapter 2 will discuss civil liability against the police, but for now, realize that a police officer who is sued for violating someone’s constitutional rights can assert a defense to such liability. That defense is known as qualified immunity. A police officer who is sued enjoys qualified immunity if he or she did

not violate clearly established rights that a reasonable person would have known about (Harlow v. Fitzgerald, 457 U.S. 800 [1982]). Which type of reasonableness is considered in this context: objective or subjective?

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privacy unless the police or other government officials physically trespassed on their property. Today, fortunately, privacy has been extended to encompass more than personal property. What people say in private telephone conversations (as in Katz), for instance, is subject to intense constitutional protection:

We conclude . . . that the “trespass” doctrine . . . can no longer be regarded as controlling. The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifi- ably relied while using the telephone booth and thus constituted a “search and seizure” within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance. (p. 353)

The importance of personal privacy has been reaffirmed over the years in many court decisions and even by prominent academics. Sam Ervin’s observation on the matter is illustrative:

The oldest and deepest hunger in the human heart is for a place where one may dwell in peace and security and keep inviolate from public scrutiny one’s innermost aspirations and thoughts, one’s most intimate associations and communications, and one’s most private activities. This truth was documented by Micah, the prophet, 2,700 years ago when he described the Mountain of the Lord as a place where “they shall sit every man under his own vine and fig tree and none shall make them afraid.”8

The trend toward increased personal privacy is an interesting one because the Fourth Amendment (and the whole Bill of Rights, for that matter) contains no mention of privacy. In other words, there is no constitutional right to privacy. The Supreme Court has seen fit to identify a right to privacy, nonetheless. As such, privacy is something of a judicially created right. Another judicial creation is the exclusionary rule (discussed in Chapter 2). Because the exclusionary rule is a judicial creation, it has been eroded over the years. It is therefore conceivable that the right to privacy could be eroded in this way, as well. In fact, decisions such as United States v. Dionisio (410 U.S. 1 [1973]), in which the Court held that people cannot expect privacy in what they knowingly expose to the public, support such a possibility. Privacy in the home, however, continues to enjoy the highest level of protection.

DECISION-MAKING EXERCISE 1.10

The Issue of Personal Privacy

In Kyllo v. United States (533 U.S. 27 [2001]), the Supreme Court decided that law enforcement’s use of a thermal imaging (infrared) device constitutes a search. The Court stated, “Where, as here, the Government uses a device that is not in general public use, to explore details of the

home that would previously have been unknowable with- out physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant” (p. 2046). Did the Court exercise judicial restraint in its decision? Why or why not?

8 S. J. Ervin, “The Exclusionary Rule: An Essential Ingredient of the Fourth Amendment,” Supreme Court Review (1983): 283, 288–289, 296–297.

United States v. Dionisio (410 U.S. 1 [1973])

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Criminal Procedure and the War on Terror

Criminal procedure is sometimes altered by important changes in federal and state legislation. One example of such legislation is the Antiterrorism and Effective Death Penalty Act of 1996, passed following the 1995 bombing of the Oklahoma City federal building. It has altered federal habeas corpus practice (see Chapter 15). An arguably more important piece of legislation, one that has affected several aspects of criminal procedure, it was signed into law following the September 11, 2001, attacks on the Pentagon and the World Trade Center towers.

On September 14, 2001, in response to the September 11 attacks, then-President George W. Bush declared a state of emergency, which permitted him to invoke certain presidential powers. Those powers included the ability to summon reserve troops, to marshal military units, and to issue executive orders for the implementation of such things as military tribunals. Congress also took action following September 11. In order to empower the Department of Justice, Congress passed the PATRIOT Act on October 26, 2001.9

The PATRIOT Act made several important changes to past law and practice. First, it centralized federal law enforcement authority in the U.S. Department of Justice. For example, Section 808 of the act reassigned the authority for investigating several federal crimes of violence from law enforcement agencies, such as the Secret Service and the Bureau of Alcohol, Tobacco, and Firearms, to the attorney general. The act also provided

A fiery blast rocked the World Trade Center in

New York City after both towers were hit by

hijacked passenger planes on September 11,

2001. This attack, along with a similar attack

on the Pentagon in Washington, DC, prompted

passage of the Patriot Act.

9 On March 9, 2006, President Bush signed a law that made the Patriot Act permanent. Certain provisions were changed and some civil liberties protections were added, but most of the original act remains intact.

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for Central Intelligence Agency (CIA) oversight of all domestic intelligence gathering. Prior to the PATRIOT Act, the CIA’s role was primarily concerned with foreign intelli- gence gathering. The act also expanded the definition of the terms terrorism and domestic terrorism to include activities that

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any state; (B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by mass destruction, assassination, or kidnapping; or (iii) to effect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily within the territorial jurisdiction of the United States.10

Of particular relevance in the context of this book are the changes in criminal procedure attributable to the PATRIOT Act. First, the Supreme Court has traditionally held that the Fifth and Sixth Amendments’ rights of due process and access to jury trials apply to all persons, not just citizens of the United States (United States v. Verdugo-Urquidez, 494 U.S. 259, 264–266 [1990]). In addition, the Supreme Court has held that all undocumented aliens living inside U.S. borders are entitled to the protec- tions enunciated in the Bill of Rights (Mathews v. Diaz, 426 U.S. 67 [1976]). Specifically, the Court has stated that “the Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to constitutional protection” (p. 77). These rights have also applied to the removal of aliens from within U.S. borders. That is, proceedings for the deportation of aliens have had to conform to constitutional requirements, especially due process (Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 [1953]).

In short, legal, illegal, resident, and temporary aliens have all historically enjoyed the same constitutional protections as ordinary U.S. citizens. But with the passage of the PATRIOT Act, that is no longer the case. In several ways, the PATRIOT Act alters and even abolishes constitutional protections historically available to legal and illegal aliens.

The war on terror has had far-reaching implications for criminal procedure. To illustrate, Figure 1.9 summarizes a number of key Supreme Court cases pertaining to terrorism and the primary holdings from each. Notice how some decisions favor the suspect and others favor the government.

Criminal Procedure and Technology

Technology continues its relentless march. New devices are constantly being invented to help law enforcement officials detect crime and catch criminals. The problem is that many technological innovations raise constitutional questions. What’s more, many Supreme Court decisions were rendered years ago when many of today’s technologies were not even conceived of. Is our Constitution and the resulting court decisions equipped to deal with these advances? Only time will tell. This book contains several references in upcoming chapters to technological innovations and related court cases that have implications for criminal procedure. An example is the Kyllo v. United States Supreme Court decision discussed in Exercise 1.10. Kyllo will be revisited in Chapter 3.

10 USA PATRIOT ACT, Public Law 107–56, Section 802.

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THE CRIMINAL PROCESS: AN OVERVIEW

There is no easy or concise way to describe the criminal process. In an attempt to do so, the 1967 President’s Crime Commission described the criminal process with the flowchart reprinted in Figure 1.10, but this conceptualization is not perfect. There are countless variations, at both the federal and state levels, in how criminal cases are handled. Further, depending on the seriousness of a case, the criminal process may assume different forms.

Almost all criminal procedure texts present an overview of the criminal process, like the one that follows. But because of the variation from one jurisdiction to the next, readers should take steps to familiarize themselves with the criminal processes in the areas in which they reside. That said, think of the rest of this section as an overview of the criminal process. The rest of this book will detail the criminal process in this order.

Pretrial

A typical criminal case begins with a complaint. It may come in the form of a 911 call from a citizen, a report to the police that someone has been victimized, or a report from a law

FIGURE 1.9 Key Supreme Court Cases in the War on Terrorism

Case Question before the Court* Decision

Ex Parte Milligan (1866)

Is it constitutional to try U.S. citizens before military tribunals when civilian courts are available?

No. It is unconstitutional to try U.S. citizens before military tribunals when civilian courts are available.

Hamdi v. Rumsfeld (2004)

Can U.S. citizens arrested abroad and detained on suspected involvement in terrorism challenge in court the government’s justification for detaining them?

Yes. Detained U.S. citizens enjoy the right to challenge their detentions before an impartial judge.

Rumsfeld v. Padilla (2004)

Can U.S. citizens arrested domestically and detained as “enemy combatants” on suspected involvement in terrorism challenge in court the government’s justification for detaining them?

Not answered. The case was remanded. The principal issue in this case remains unresolved.

Rasul v. Bush (2004)

Can noncitizen detainees at Guantanamo Bay challenge the constitutionality of their confinement?

Yes. The federal courts have jurisdiction to decide the constitutionality of detaining foreign nationals.

Hamdan v. Rumsfeld (2006)

Is it within the authority of Congress and the President to try suspected terrorists before military tribunals?

No. Bush-era military tribunals violate the Uniform Code of Military Justice and the Geneva Conventions.

Boumediene v. Bush (2008)

Are parts of the Military Commissions Act of 2006 that strip federal courts of jurisdiction to hear habeas corpus petitions from foreign citizens illegal?

Yes. Parts of the Military Commissions Act of 2006 that strip federal courts of habeas corpus jurisdiction in cases involving Guantanamo Bay detainees are unconstitutional.

Ashcroft v. al-Kidd (2011)

Does the attorney general have qualified immunity for his involvement in the arrest of a person as a material witness? Can a validly obtained warrant be challenged on the motive that the arresting authority had an improper motive?

Yes. The attorney general enjoys qualified immunity in such cases. No. Detaining al-Kidd as a material witness was constitutionally reasonable, even if the government’s motive to hold him was based on a belief that he was a terrorist.

* The case may have dealt with more than one question. The key question with relevance to criminal procedure is presented here.

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Nonpolice referrals

Police juvenile unit

Released or diverted

Intake hearing

Waived to criminal court

Formal juvenile or youthful offender court processing

Informal processing diversion

Information

Refusal to indict

Grand jury

Information

Charges dropped or dismissed

Bail or detention hearing

Charges dropped or dismissed

Preliminary hearing

Initial appearance

Released without prosecution

Charges filedArrest

Unsolved or not arrested

Investi- gation

Reported and observed crime

Felonies

Juvenile offenders

Prosecution and pretrial services

Entry into the system

Arraignment

Charge dismissed

Arraignment Trial

Acquitted

Reduction of charge

Guilty plea

Trial

Charge dismissed Acquitted

Sentencing

Probation

Revocation

Parole

Prison

Pardon and clemency

Capital punishment

Out of system (registration, notification)

Out of system

Probation

Guilty plea

Adjudication

Sentencing and sanctions

Corrections

Diversion by law enforcement, prosecutor, or court

Unsuccessful diversion

Convicted

Misdemeanors

Convicted

Appeal

Intermediate sanctions

Jail

Out of system

Habeas corpus

Released or diverted

Probation or other nonresidential disposition

Revocation

Out of system

Residential placement

Aftercare

Revocation

Disposition

Released

Adjudication

Prosecution as a

juvenile

Crime

FIGURE 1.10 Sequence of Events in the Criminal Justice System

Source: President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Science and Technology (Washington, DC: Government Printing

Office, 1967), pp. 58–59.

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enforcement officer who observes a crime in progress. If a citizen reports the crime, the police will usually follow up on the complaint by performing an investigation. If an officer observes the crime, not as much investigation is necessary. In the former instance, the police must take steps to confirm the observations of the citizen. A police officer’s observations, by contrast, do not require as much investigative scrutiny. In fact, when an officer observes a crime in progress, he or she will probably arrest the suspect on the spot. This arrest will then be subjected to judicial scrutiny in a court hearing, in which a judge will decide if there was probable cause to arrest the suspect.

In a crime reported by a citizen, once the police have identified a suspect, they will approach a judge and seek either an arrest or a search warrant. In either case, the police must be able to show probable cause that the evidence they seek will be found in the place to be searched and/or that the suspect was the one who committed the crime. If this burden is met, an arrest, a search warrant, or both will be issued and the police will go to arrest the suspect or search the premises named in the search warrant. The burden of probable cause that is required for search and arrest warrants is not to be taken lightly and has spawned a great deal of debate in the courts. Probable cause, as well as other such standards of justification, is the focus of Part 2, Chapters 3 through 7.

The role of the police during the pretrial process cannot be overemphasized. In the period from the first contact between an officer and suspect up to the point when the suspect is arrested and detained, the police’s role is complex and multifaceted. The Constitution, particularly the Fourth Amendment, places significant restrictions on what the police can and cannot do when they investigate crimes and handle suspects. This is why many criminal procedure books (this one included) devote extensive attention to the role of the police in the criminal process. Criminal procedure is, in many ways, police procedure. However, because the criminal process continues well beyond an arrest and imposing criminal charges, this book takes the additional step of consider- ing the whole of the criminal process.

If, as indicated, a police officer arrests a suspect for a crime committed in his or her presence, no warrant is necessary. But even when arresting a suspect or searching his or her residence based on a citizen complaint, a warrant is not always required. Many situations arise in which the police are permitted to arrest or to search without a warrant. Suspects who evade authorities, seek to destroy evidence, or are likely to inflict harm on others create circumstances in which the police must act quickly. Indeed, in many other areas of law enforcement, the police may be forced to make split-second decisions, whether to arrest or search, without the protection of a warrant. These areas of law enforcement will be considered, as well.

Once a suspect is arrested—be it pursuant to an arrest warrant, a warrant to search his or her residence, or another method—he or she will be searched. This is done to protect the police and also to discover contraband that may be in the suspect’s possession. Then, the suspect will be transported to the police station and booked. Booking is the process in which the suspect is fingerprinted, processed, photographed, and probably placed in a holding cell. The suspect may also be required to submit to testing (such as a Breathalyzer) and possibly be required to participate in a lineup for identification by a witness to the crime.

After this, the police will present their case to the prosecutor, and, assuming the prosecutor believes the evidence is persuasive enough, he or she will bring charges against the suspect, subject to certain restrictions identified by the U.S. Supreme Court. The suspect will now be considered the defendant. If the charges are minor, the police may release the suspect, in which case he or she will be required to appear in court at some later date.

Suspects who are booked, placed in detention, and charged with a crime face a number of different court hearings, depending on the seriousness of the crime.

34 Part 1 • Introduction

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Chapter 1 • Introduction to Criminal Procedure 35

Misdemeanors, because of their not-so-serious nature, tend to be fast-tracked through the courts. A misdemeanor defendant may appear at only one court hearing, in which the judge will decide guilt or innocence. Felony defendants, by contrast, face a longer legal road. If, as described already, the suspect is arrested without a warrant, he or she will be granted a probable cause hearing, in which the judge will decide whether the arresting officer had appropriate justification to make the arrest. (This hearing may, in fact, be merged with other hearings, but this book will treat it as a separate event.)

The next step in the criminal process is the arraignment. At the arraignment, the suspect comes before a judge and is, at a minimum, informed of the charges against him or her. The defendant will also be notified of the right to counsel, the right to remain silent, and other important rights. He or she will also be allowed to enter a plea. Common pleas are guilty, not guilty, and nolo contendere (which is akin to a plea of “no contest”). A public defender may be assigned at this stage, particularly if the defendant is unable to afford his or her own representation. Probable cause may also be determined at this stage, if a separate hearing is not required. Finally, for a misdemeanor charge, a trial may take place at the arraignment. A bail determination could be made, as well.

If the bail determination is not fused with the arraignment, a separate hearing may be warranted. (The approach taken in this book is that the bail determination is made in a separate hearing.) In deciding whether bail should be granted, the judge will take such factors into account as the seriousness of the crime as well as the defendant’s prior record, likelihood of flight, and level of dangerousness. The defendant’s financial status may also be considered.

It is important to note that the prosecutor’s method of filing charges varies from one state to the next. Some states require that the prosecutor proceed by information, a document that describes the charges the prosecutor is filing. Other states require that the prosecutor proceed by a grand jury indictment. That is, a grand jury decides whether charges should be filed, usually with the advice and assistance of the prosecutor. Some states require or allow both methods of filing charges, depending on the nature of the case. What is important in this discussion, however, is that in jurisdictions in which the prosecutor proceeds by information, he or she is usually required to show that the charging decision is appropriate. This is accomplished in a so-called preliminary hearing, during which the prosecutor makes out what is known as a prima facia case of the defendant’s guilt. A preliminary hearing can also be required in a grand jury jurisdiction, requiring the prosecutor to present his or her case before seeking a grand jury indictment.

Adjudication

Once the pretrial process has concluded and the charges have stood, a trial may or may not take place. If, at arraignment, the defendant pleads guilty, then a trial is not necessary. In such an instance, special steps must be taken to ensure that the defendant’s guilty plea is valid. The defendant may also agree to a plea bargain agreement, in which in exchange for leniency from the prosecutor and/or the court, he or she pleads guilty to the crime with which he or she is charged. Plea bargaining of this nature can occur at any stage of the criminal process, however. That is, a suspect can reach a plea agreement with the prosecutor as early as the pretrial stage, during the trial, and, in fact, well into jury deliberations. In any case, the plea bargain, if there is one, must be accepted by the court. The judge makes this determination.

If the defendant pleads not guilty, the case is set for trial. The trial is usually scheduled for some date well after the arraignment. This allows both sides—the prosecution and the defense—to prepare their respective cases. A balance needs to be achieved between providing enough time for both sides to present effective arguments and protecting the defendant’s Sixth Amendment right to a speedy trial. During this preparation process,

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1. SUMMARIZE THE CONSTITUTIONAL BASIS FOR CRIMINAL PROCEDURE.

Criminal procedure is mostly about constitutional rights. What’s more, it is about constitutional rights as primarily interpreted by the U.S. Supreme Court. State laws, agency policies, time-honored practices, and the like also set forth rules and guidelines, but the focus here is almost exclusively on rights spelled out in the U.S. Constitution—notably, those found in the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.

36 Part 1 • Introduction

discovery takes place. Discovery is the process by which each side to a criminal case learns what evidence the other side will present. Work product and legal strategy are off limits, but the identities of witnesses who will testify, the physical evidence in possession of both parties, and other items must all be made available in the discovery process.

At trial, the prosecutor bears the burden of proving that the defendant is guilty beyond a reasonable doubt. After the prosecution has presented its case, the defense steps in and presents its case. In doing so, it seeks to cast doubt on the prosecution’s evidence. A criminal trial may move back and forth in this fashion until both sides rest. At this point, a verdict must be reached. Depending on the seriousness of the offense, the verdict is decided by either a judge or a jury. A judge decides the defendant’s fate in a so-called bench trial but only for an offense that is likely to result in less than six months’ imprison- ment. A jury decides the verdict when the offense at issue is more serious. Special steps must be taken in either instance to ensure the impartiality of the judge or the jury.

Beyond Conviction

The criminal process does not necessarily end once the verdict has been read. Sentencing usually takes place at a separate hearing. The guilty party may be sentenced to death (for a capital crime), committed to prison, fined, placed on probation, or subjected to a host of other possible sanctions. Probation is the most common sanction; imprisonment and, of course, death are clearly much more serious. When a person is committed to prison or sentenced to death, it may seem that the criminal process has just begun, as the appeals process can drag on years beyond the criminal trial.

Appeals come in two varieties: automatic and discretionary. Most convicted criminals are entitled to at least one automatic appeal (also known as an appeal of right). An automatic appeal must be heard by an appellate court. With a discretionary appeal, however, it is up to the appellate court to decide whether the appeal will be heard. The right of a convicted criminal to file excessive discretionary appeals is deplored by supporters of the death penalty and other serious sanctions.

Making an appeal is not the only method of challenging a guilty verdict. The right of habeas corpus—a method of what is commonly called collateral attack—is guaranteed in the Constitution, providing every convicted criminal the right to petition a court to decide on the constitutionality of his or her confinement. All that is granted, however, is the right to file a petition, or to request to be heard. The decision whether to grant a prisoner’s habeas petition is up to the reviewing court. If a prisoner exhausts all available appellate mechanisms and is denied habeas review, he or she will remain in prison for the full term of his or her sentence.

Summary

2. EXPLAIN THE IMPORTANCE OF PRECEDENT.

Criminal procedure and history cannot be divorced from one another because of the importance of precedent. Before making decisions, courts almost always look to the past for the purpose of determin- ing whether a case with similar facts has already been decided. If one has not, the court will distin- guish the present case and hand down a decision that may be relied on by some other court, at some other date.

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Most criminal cases originate in trial courts of general jurisdiction; the decisions of these courts are appealed to intermediate appellate courts and then to the state supreme court. A state supreme court decision can be appealed to the U.S. Supreme Court but will only be heard if it raises a constitutional question. This is usually true for federal cases, as well.

6. SUMMARIZE IMPORTANT ISSUES AND TRENDS IN CRIMINAL PROCEDURE.

Several important topics, issues, and trends need to be understood before reading too much into court decisions. First, some decisions consist of specific bright-line rules, whereas others favor case-by-case adjudication. Next, the courts—in particular, the U.S. Supreme Court—have moved from a subjective to an objective focus, meaning that they are now more concerned with how a reasonable person would act under the circumstances. Third, Supreme Court decisions of late have reflected an increased faith in the police. Fourth, to understand why court decisions often focus on excruciating legal details, one must understand the notion of judicial restraint: the practice of deciding only the specific legal question before the court. Fifth, throughout criminal procedure there is a concern with people’s privacy, even though the Constitution contains no mention of the term. Finally, it is important to have an apprecia- tion for how the war on terror and technology have altered criminal procedure (these issues come up throughout the book).

7. PROVIDE AN OVERVIEW OF THE CRIMINAL PROCESS.

There is no one best way to describe the criminal process; there are simply too many variations from state to state. Even so, a more or less accurate description can be offered. The description set forth in this chapter and followed throughout the remainder of the book begins with the police/citizen encounters and then moves into arrest, booking, pretrial hearings, trial, and appeals. Along the way, special attention is given to constitutional rights stemming from several amendments to the Constitution and to the four important actors—the police, prosecutors, defense attorneys, and judges— whose decisions affect the whole of the criminal process. The reader is strongly encouraged to become familiar with the details of the criminal process in his or her area of residence.

Chapter 1 • Introduction to Criminal Procedure 37

3. COMPARE THE THEORY OF CRIMINAL PROCEDURE TO THE REALITY.

Even though criminal procedure, as presented in this text, is mostly about court decisions, it would be a crucial mistake to become hopelessly mired in the world of judicial decision making. In the real world, the police and other criminal justice officials must act, and what they do does not always agree with decisions handed down by the courts. That is, the theoretical world of the courts can differ in important ways from the real world of law enforcement. Understanding that these two different worlds exist and that they can be at odds with one another allows looking at court decisions with not only a critical eye but also a dose of reality.

4. DESCRIBE THE PUBLIC ORDER (CRIME CONTROL) AND INDIVIDUAL RIGHTS (DUE PROCESS) PERSPECTIVES OF CRIMINAL JUSTICE AND HOW CRIMINAL PROCEDURE BALANCES THE TWO.

Throughout criminal procedure—indeed, through- out all of criminal justice—two competing concerns can almost always be heard. The crime control perspective favors controlling crime at whatever cost, and the due process perspective is concerned with protecting people’s rights. Every court decision, every crime control policy, and even every reaction by the criminal justice system to the threat of crime must balance both of these concerns. Some decisions and policies lean too far in the direction of crime control and, for that reason, become quite controversial. The same holds true for decisions and policies that cater to due process. For the justice process to flow smoothly, a balance needs to be achieved.

5. OUTLINE THE STRUCTURE OF THE COURT SYSTEM, INCLUDING THE RESPONSIBILITIES AND JURISDICTIONS OF EACH LEVEL.

The United States has a two-tiered court structure consisting of federal and state courts. At the federal level, three types of courts are relevant: district courts, circuit courts of appeals, and the U.S. Supreme Court. The district courts try cases involving violations of federal laws. The decisions of district courts are appealed to circuit courts of appeals and then to the U.S. Supreme Court. State court structures vary from one state to the next but generally consist of courts of limited jurisdiction, trial courts of general jurisdiction, intermediate appellate courts, and supreme courts.

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38 Part 1 • Introduction

Key Cases

• Manson v. Braithwaite, 432 U.S. 98 (1977) • United States v. Dionisio, 410 U.S. 1 (1973)

Review Questions

1. Identify several sources of rights. 2. What is the incorporation controversy? What are the

leading perspectives describing it? 3. What rights have been incorporated? What rights have not? 4. In what ways can theory differ from reality? 5. Compare and contrast the due process and crime

control perspectives. 6. Explain the federal court structure. 7. How does a case arrive at the U.S. Supreme Court? 8. Distinguish between a bright-line decision and case-

by-case adjudication.

9. How are the terms subjective and objective used in criminal procedure?

10. In what ways have recent Supreme Court decisions shown increased faith in the police?

11. What is judicial restraint? How does it compare to judicial activism?

12. Is privacy a right? If not, why is it so important in many Supreme Court opinions?

13. What happens, briefly, during the pretrial phase? 14. What happens, briefly, during the adjudication phase? 15. What happens, briefly, beyond conviction?

Web Links and Exercises

1. Finding the law: Search the U.S. Code for “search and seizure” (put “search and seizure” in quotes in the “Search Word[s]:” box), then find and discuss a statute with implications for criminal procedure.

Suggested URL: http://uscode.house.gov/search/criteria. shtml (accessed February 14, 2011)

2. State court organization: Compare and contrast your state court system’s organization to that of another state.

Suggested URL: http://bjs.ojp.usdoj.gov/content/pub/ pdf/sco04.pdf (accessed February 14, 2011)

Key Terms

affirm 22 appellant 22 appellee 22 bright-line

decisions 25 case-by-case

adjudication 25 concurring

opinion 23 courts of general

jurisdiction 17 courts of limited

jurisdiction 17 crime control

perspective 15 criminal

procedure 3 defendant 22

dissent 23 distinguish 11 district courts 17 due process

perspective 14 Eighth

Amendment 7 Federal Rules of

Criminal Procedure 5

Fifth Amendment 6 Fourteenth

Amendment 7 Fourth

Amendment 5 incorporation 8 intermediate

appellate courts 17

judicial activism 28 judicial restraint 28 objective

reasonableness 26 opinion 23 PATRIOT Act 30 petitioner 22 precedent 10 procedural due

process 7 prosecutor 22 real world 11 remand 22 reverse 22 right to privacy 29 rule of four 24 Sixth Amendment 6 stare decisis 10

state supreme courts 17

subjective reasonableness 26

substantive due process 7

superior courts 17 theory world 11 totality of

circumstances 25 trespass doctrine 28 U.S. courts of

appeals 17 U.S. Supreme

Court 17 vacate 22 Warren Court 27 writ of certiorari 23

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Chapter 1 • Introduction to Criminal Procedure 39

3. Federal court organization: Explain the relationship between the federal courts and the other branches of government.

Suggested URL: http: //www.uscourts.gov/FederalCourts. aspx (accessed February 14, 2011)

4. Legal research: Find a recent U.S. Supreme Court case (one that did not make it into this edition of Criminal Procedure) with implications for criminal procedure.

Suggested URL: http://www.supremecourtus.gov/ (accessed February 14, 2011)

5. PATRIOT Act: Discuss the pros and cons associated with the PATRIOT Act.

Suggested URL (pro): http: //www.proconservative.net/ PCVol5Is293WrayTerrorism.shtml (accessed February 14, 2011)

Suggested URL (con): http: //www.aclu.org/safefree/ resources/17343res20031114.html (accessed February 14, 2011)

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