CHAPTER 4 NOTES

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    Chapter IV: Searches in Recurring Contexts (Pages 235-314)

èSearch Incident to a Lawful Arrest (SILA)

àOfficers may search the person incident to a lawful arrest without probable cause (for the search, probable cause is always required for an arrest) or reasonable suspicion to believe that the search will produce any weapon or anything else connected to the crime

àThe search may extend to the areas within the immediate control of the arrestee

àThe idea here is to protect officers from weapons and the possible destruction of evidence by the arrestee

            àThis rule is found in case law as well as statutes (see pg. 236)

State v Marc Hufnagel (1987) 745 P.2d 242

àDefendant was indicted on charges of selling cocaine and an arrest warrant was issued

àThree officers drove to Defendant’s condominium to arrest him

            àThey did not have a search warrant

àThe door to the condo was open, so one of the officers yelled out Defendant’s name, to which he responded, “Yo or Hello”.

àThe officers descended the stairs at the entrance of the condo and saw a “billy club” and a hatchet by the fireplace

àThe officers told Defendant to stand up and that he was under arrest

àHe was patted down for weapons and his hands were handcuffed behind his back

àOne officer was searching the sofa for a weapon

àOnce handcuffed, Defendant glanced at an end table, which aroused the suspicion of one of the officers

            àThe officer opened a door in the end table and saw a white box without a lid

àThe officer saw that the box contained several baggies, each of which contained a white substance (Remember he was being arrested for selling cocaine)

àThe officer picked up the box to examine its contents but put it back and took nothing from it

àTwo of the officers took Defendant to the police station, with the 3^rd remaining at the condo to guard the premises

àLater, a search warrant (based in part on the contents of the white box) was executed and additional evidence was found and seized

èDefendant moved to suppress the evidence, arguing that the end table and the evidence found in it were in no way within his immediate control considering that he was handcuffed

àThe trial court granted the motion to suppress agreeing that because the officer opened the end table after the Defendant was handcuffed, it cannot be argued that the opening of the end table would fall under SILA

àThe Appellate Court disagreed with the trial court’s ruling, reversing for three principal reasons:

1)                  The search was limited to two items, the sofa and the end table, which were searched because the Defendant was sleeping on the sofa and glanced at the end table

2)                  The events occurred within five minutes of entering the condominium and the court does not want to determine the case on the basis of whether or not the handcuffs clicked closed before or after the officer opened the end table

a.       The court held that the Defendant was not secured when he looked at the end table but was once the officer opened it

3)                  Court holds that the end table was within the Defendant’s immediate control

a.       The court reasons that handcuffs could fail and so the sofa and the end table could be in Defendant’s immediate control

b.      The court goes further and holds that “[A SILA] is constitutional even if the arrestee is handcuffed prior to the search”

èThe court’s holding/rule is: “a search of the area immediately around the arrestee, made contemporaneously with or immediately following the arrest, is constitutional even if the arrestee is physically unable to reach the area searched at the time of the search”

The court looked to a very important Supreme Court case to make its ruling:

àChimel v California (1969)

àThree officers arrived at Defendant’s house with an arrest warrant from a burglary of a coin shop

àThe three officers were welcomed in by the wife and waited 10-15 minutes until Defendant arrived home from work

àOfficers arrested him and asked if they could search the house

àDefendant objected but was told that they could/would do it without his consent

àOfficers, accompanied by the wife, directed her to open drawers and conducted the search

àThe officers seized numerous items including coins

èKey question being whether “the warrantless search of the petitioner's entire house can be constitutionally justified as incident to that arrest.”

àNo constitutional justification for extending the search beyond the person and grabbing area

àThe Police may search the following areas without a warrant, incident to a lawful arrest:

1)                  Arrestee’s body (Search of the person)

a.       “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.”

2)                  Area in arrestee’s immediate control (Grabbing Area)

àThe arrest creates an emergency, which provides the exception to a search warrant only so far as the two above areas:

1)      Prevent the arrestee from getting and using weapon against the officer(s)

2)      Prevent arrestee from getting and destroying the evidence.

The authors also list a few other factors that are considered in determining the validity of a SILA (Page 242)

èAnother case which expanded SILAs was Maryland v Buie

Maryland v Buie (1990)

àThis case added to the Chimel Doctrine two other areas:

1)                  Cops may perform protective sweep of the house provided there is reasonable suspicion of there being someone who poses a danger

2)                  “As a precautionary matter and without probable cause or reasonable suspicion, [Officers may] look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched”

3)                  The searches are limited to areas where a person may be found

Intrusive Body Searches

àBecause the searches involve searches of one’s body, they are among the most intrusive of any searches

àBecause of the severity of the searches, some states have statutes governing when such searches are permissible

            àSee Page 246

àOther states rely on police department policies to govern when such searches are permissible

àSome states bar strip searches of people accused of minor offenses

            àEdwards v State of Indiana

àOthers bar it for minor offenses that do not involve weapons, drugs, or violence

            àCalifornia Penal Code § 4030(f)

The authors break the statutes governing these searches down into two groups:

1)                  Those that contain Substantive Standards

a.       Describes a subclass of cases ineligible for such searches

2)                  Those that focus on the Process of Authorizing such searches

a.       Requiring a warrant or written consent by the accused

People v Eric More (2002) 764 N.E.2d 967

àDefendant was convicted of criminal possession (3^rd and 5^th Degree) of crack cocaine, resisting arrest, and false personation

àSeveral Officers were given consent to enter an apartment by a tenant, who told them that individuals in the apartment were cutting up cocaine and one of them was wanted on an arrest warrant for assaulting a police officer

àWhen the officers entered they saw a woman sitting on Defendant’s lap, along with a crack pipe and a white, rocklike substance sitting on a nearby table

àThe police arrested Defendant and the woman, handcuffed them, and performed a pat-down for weapons

àThe officers next separated the pair to strip search them

àDefendant initially complied with the strip search by undressing but soon began scuffling with the officers

àThe officers removed a plastic bag that was protruding from the Defendant’s rectum

            àIt contained individually wrapped rocks of cocaine

àDefendant moved to suppress the evidence gained from the strip search for two reasons:

1)                  The officers lacked probable cause to make the arrest

2)                  The strip search was illegal because there was no probable cause, no search warrant, and no exigency to justify it

àThe trial court denied the motion to suppress and convicted Defendant

àHe appealed

àThe appeals court began its analysis by exploring Supreme Court jurisprudence on the subject of strip search

àIn Schmerber v California, the court stated three very important limitations on bodily intrusive searches:

1)                  Intrusions beyond the body’s surface cannot be justified simply as a Search Incident to a Lawful Arrest;

2)                  There must exist, “a clear indication that desired evidence will be found before the intrusion; and

3)                  Search warrants are required for such an intrusion unless there exists an emergency

a.       In Schmerber, the emergency was that the body would break down the alcohol in the Defendant’s system if the police went to get a search warrant before giving the blood test, so the urgency was the possible destruction of evidence

àBased on Schmerber, this court held that the cavity search was unreasonable and invalid

èBecause the officers did not have a search warrant, they needed to show some sort of an exigent circumstance to justify the warrantless cavity search; which they did not

àThe authors point out three reasons why the court in Schmerber upheld the warrantless blood test:

1)                  There was a clear indication that the blood sample would produce evidence of the crime

2)                  The test was commonplace and involved no risk of trauma

3)                  The test was conducted in a reasonable manner (by a physician in a hospital)

Searches of Houses

What is meant by the term “curtilage”?

àThe area immediately surrounding the home which is given the same 4^th Amendment protection that the home itself receives

àIn contrast, an area regarded as “open field” receives no 4^th Amendment protection

àThe Supreme Court in U.S. v Dunn gave four factors in determining curtilage:

1)                  Proximity of the area to the home

2)                  Whether or not the area is included within an enclosure surrounding the home

3)                  Nature of the uses to which the area is put

4)                  Steps taken by the owner to protect the area from observation by passersby

àThe court decided for a case by case determination with the central consideration being:

àWhether the area in question is so intimately tied to the home itself that it should be placed under the home’s umbrella of 4^th Amendment protection

State v Theresa Dixson (1988) 766 P.2d 1015

àPolice received a tip from an informant that marijuana was being grown on land owned by the Rogge Lumber Company

àThe company gave the officers permission to search the property for marijuana

àThe officers drove through the property until they came to the dirt, logging road that the informant claimed lead to the marijuana

àUnknown to the officers, the road extended onto the property of Lorin and Theresa Dixson

àThe road became impassable due to a fallen tree laying across the road, so the officers walked farther up the road

àThe officers walked along another dirt road and passed three different “No Hunting” signs along the way

àThe area was covered in thick brush and it was only until the officers pulled back the brush, were they able to see the marijuana plants

àThe officers returned the next day and arrested the Defendants near the plants

àThe Defendants filed a motion to suppress, arguing that the search violated both the Oregon (specifically Article I, § 9 which tracks the 4^th Amendment) and U.S. constitutions

àCourt’s Analysis is as follows:

1)                  Analysis of Oliver v U.S.

a.       The state urges the court to apply the Supreme Court’s reasoning in Oliver to Article I, § 9, therefore making it parallel the 4^th Amendment

b.      Oliver (1984)

                                                                           i.      Police officers trespassed on a farm, past “No Trespassing” signs to discover marijuana

                                                                         ii.      Court ruled that “open fields” fall outside the scope of the 4^th Amendment for two reasons:

1.      It is not a “person, house, paper, or effect”

a.       Applied to personal as opposed to “real” property

2.      A person does not have a reasonable expectation of privacy regarding activities occurring in open fields

a.       ”An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.”

c.       The court states that it is not bound by Oliver nor the Supreme Court’s reasoning in the case

d.      Instead, this court frames the issue as to whether, “[Article I, § 9] prohibits unreasonable searches and seizures conducted on land that falls outside the curtilage”

2)                  Textual Interpretation of Article I, § 9

a.       The state argues that because Article I, § 9 and the 4^th Amendment both protect “persons, houses, papers, and effects” the provision should be interpreted the same way that the 4^th Amendment has been interpreted (i.e. excluding open fields from protection)

b.      The court denies this interpretation for two reasons

                                                                           i.      This provision has been held to protect privacy interests, which when read literally, it does not

                                                                         ii.      A literal reading would exclude all real property except houses

3)                  Announcement of Rule

a.       The court holds: “An individual’s privacy interest in land he or she has left unimproved and unbounded is not sufficient to trigger the protections of Article I, § 9…[To trigger this protection a person must] manifest an intention to exclude the public by erecting barriers to entry”

èThe court holds that the officers could not have known that the owners did not want anyone on their property by posting “No Hunting” signs

àRather unless the officers intended to hunt, they could have known that they would be excluded

Workplace Searches

People v Carlos Christopher Galvadon (2005) 103 P.3d 923

àGalvadon worked as the night manager of a liquor store owned by his mother-in-law, he and his mother-in-law were the only two employees

àThe liquor store contains a back room where only Galvadon or the owner are allowed with the rare exception of delivery people but only if accompanied or given access by Galvadon or the owner

àThe store contained four surveillance cameras, with one being in the back room

àOne night when Galvadon was working, Jeffrey Hogan and David Flores were standing outside the store

àFlores was sprayed in the face with pepper spray “by someone around the corner” and an officer on patrol, Officer Juhl, noticed Flores suddenly fall to the ground

àJuhl called for backup and headed toward Flores

àBy the time Juhl arrived, Hogan was getting Flores to his feet and going to take him into the liquor store to wash his face off; Juhl followed them in the store

àHogan asked Galvadon if Flores could use the bathroom (which was located in the back room)

            èGalvadon said no, that no one was allowed in the back

àHogan pled with Galvadon to let Flores use the bathroom; but Galvadon insisted that no one was allowed in the back

àHogan ignored Galvadon and led Flores to the back room, followed by Officer Juhl, followed by Galvadon

àWhile Flores was washing his face, the backup officers arrived and went straight to the back room

àOnce again, Galvadon told everyone that no one was allowed in the back and he returned to the front of the store

àThe backup officers remained in the back room after Flores, Hogan, and Juhl went to the front of the store to speak with Galvadon

àThe officers found two bricks of marijuana and when the owner arrived and consented to a search, they found a third brick

àMeanwhile, Galvadon went to the back room and was caught by Juhl trying to stuff a surveillance video in his pants

àHe claimed it was because he was drinking at work and did not want his boss to see

àIn reality, the tape showed him placing bricks of marijuana in the back room

àGalvadon sought to suppress the evidence as fruits of an illegal search

àThe prosecution countered that the 4^th Amendment did not attach because Galvadon did not have a reasonable expectation of privacy at work for three reasons:

1)                  He was only an employee, not the owner

2)                  There was a surveillance camera in the back which recorded what he was doing and could have been watched by others

3)                  Others had access to the back room

èThe trial court granted the motion to suppress, holding that the police needed a warrant to perform such a search and no exigent circumstances were present

àOn Appeal, the court determined whether or not Galvadon had a reasonable expectation of privacy at work (specifically in the back room).

1)                  Reasonable expectation of privacy at work

a.       The court looked at the Supreme Court’s analysis in Mancusi v DeForte (1968)

                                                                           i.      The court in Mancusi applied the expectation of privacy analysis from Katz and held that the Defendant did maintain a reasonable expectation of privacy from governmental intrusion in the office that he shared

b.      Liquor Stores are heavily regulated, doesn’t this lead to a diminished expectation of privacy?

                                                                           i.      The court says ‘yes’, in some heavily regulated industries (liquor included) businesses are subject to searches and oversight by the government, which would diminish their 4^th Amendment protection

                                                                         ii.      However, the court points out that such searches diminish this protection when, “[the] searches are specifically authorized pursuant to constitutional administrative inspection regulations and conducted pursuant to the purpose of the regulatory scheme.”

1.      In this case, the search was investigatory, not administrative, so the Defendant’s protection is not diminished

2)                  The Court looks at whether Galvadon would have a reasonable expectation of privacy minus the surveillance cameras

a.       The court concludes that he would after considering a few factors

                                                                           i.      The back room was an exclusive area separated from the rest of the store and restricted to use only by Galvadon and the owner

                                                                         ii.      Galvadon possessed the power to exclude access to the back room and tried repeatedly to do so the night in question

1.      The court saw this as a clear manifestation of his belief that he could control access to the back room and maintain an expectation of privacy

                                                                        iii.      Simply because delivery people were sometimes given access to the back room does not diminish Galvadon’s expectation of privacy in the back room

1.      Permission to enter the back room required authorization from either Galvadon or the owner

3)                  After establishing that Galvadon did maintain an expectation of privacy without the surveillance cameras, the court turns to whether or not the cameras diminished that expectation

a.       The government argues that because Defendant knew the back room was under surveillance, he knowingly exposed his activities to the owner and the public; therefore, his actions could not be protected by the 4^th Amendment

b.      The court disagrees for a few reasons

                                                                           i.      They hold that the government is incorrect in its determination of 4^th Amendment standing

1.      The question is whether the Defendant has a reasonable expectation of privacy from governmental intrusion

                                                                         ii.      The tapes were not exposed to the public

1.      Only Galvadon and the owner had access to the back room, where the tapes were stored

2.      The monitors showing what was being recorded were not viewable by the public; the monitors were all in the back room

                                                                        iii.      Galvadon had a diminished expectation of privacy from his boss (the owner) but not from the government

èHolding of the court: “We conclude under the totality of circumstances that the sole person in control of the store, the night manager, maintained a reasonable expectation of privacy from government intrusion in the back room of the store, an area without public access, such that he may assert protection of the Fourth Amendment”

èDISSENT Chief Justice Mullarkey

àMullarkey focuses on the fact that because liquor stores are so heavily regulated and therefore subject to inspection at any time, Defendant had no reasonable expectation of privacy in the back room

àHe points out that under Colorado law liquor stores are required to be open to warrantless searches by administrative authorities as well as peace officers

àHe goes on further to cite a number of Supreme Court cases, summarizing them as holding, “owners of businesses in highly regulated industries have no reasonable expectation of privacy in the premises”

àCoupling the above summary with the Supreme Court in O’Connor v Ortega holding that “An employee’s expectation of privacy in the workplace is subordinate to the employer’s interests”, Mullarkey argues that Galvadon cannot have a greater expectation of privacy than the owner, so the warrantless search should be valid

àFinally, Mullarkey points out that Defendant’s expectation of privacy should be diminished by the surveillance cameras because the owner could turn the tapes over to law enforcement

àPut simply, because Galvadon is knowingly exposing his illegal conduct to the owner, he knowingly risks the owner turning the tapes over to the police; so the expectation of privacy from governmental intrusion would be diminished

èThe authors note that a private employer can conduct any sort of search she chooses without engaging in an unreasonable search or seizure within the meaning of the federal constitution

            àHowever:

1)                  Statutes and common law rules may limit such searches; and

2)                  If the employer is performing the search at the behest of the government, it could be construed as state action

Searches of Schools and Prisons

In The Matter of Gregory M. (1993) 627 N.E.2d 500

àAppellant, 15, arrived at his Bronx high school without a proper student identification card

àThe security officer sent him to the Dean’s Office to obtain a new card

àIn accordance with school policy, appellant was required to leave his cloth book bag with the security officer until he got a new id

àAppellant tossed the bag on a metal shelf, which resulted in a metallic “Thud” that aroused the suspicion of the security officer because it sounded “unusual”

àThe officer ran his fingers over the outside of the bag and felt the outline of a gun

àAfter the dean was summoned and also felt the outline of a gun, the head of security opened the bag to reveal a .38 Titan Tiger Special Revolver

àAppellant appeared before Family Court on juvenile delinquency charges and his motion to suppress the gun was denied

àAppellant argues that the “Thud” heard by the security officer was insufficient to establish reasonable suspicion that the bag contained a weapon

àThe Appellate court agreed but held that a lesser standard allowed for the touching of the bag, which revealed the outline of a gun, which then created the requisite reasonable suspicion to open the bag and search it.

àThe court looks to the Supreme Court’s holding in New Jersey v T.LO.

èNew Jersey v T.L.O. (1985)

à14 year old girl was smoking in the bathroom of her school

àDiscovered by the principle, she denied smoking

àPrinciple took her to his office and demanded to see her purse

àHe found cigarettes but kept looking and found rolling papers

àLooked further, found weed, numbers of people who owed her money, and other evidence that showed that she was a dealer

à4^th Amendment applies to school officials because they are state agents

àStudent has expectation of privacy

1)                  Subjective Expectation of Privacy

2)                  Objectively reasonable expectation of privacy

àNormally you would need a warrant but court says it is not required

            àNormally without a warrant you would need probable cause

                        àNot here

                                    àCourt says only reasonableness is required

àWhat would classify a reasonable search?

1)                  Justified at its inception

a.       Reasonable grounds for suspecting violation of the rules

2)                  Reasonably related in scope to the circumstances which justified the interference in the first place

àNot excessively intrusive in light of the age and sex of the student and in light of the nature of the infraction

àRelying on TLO and another case, the court holds that “appellant had only a minimal expectation of privacy regarding the outer touching of his school bag by school security personnel, even for purposes of learning something regarding its contents, when he left the bag with the security officer pursuant to the school policy requiring this until he obtained a valid identification card”

àWeighing this diminished expectation of privacy against the very important governmental interest of stopping the introduction of guns into schools, the court holds that the touching of the bag was justified, which then produced the requisite reasonable suspicion

èDISSENT Justice Titone

àTitone argues that the majority is stretching the holding of TLO to fit its own feelings

àTitone states that the holding in TLO was “search warrants are not constitutionally required for school searches and that such searches may be justified by a lesser showing of reasonable suspicion”

àIn fact, he argues, TLO specifically rejected the contention that students’ expectations of privacy in personal items are diminished inside of schools

àThe governmental interest of eliminating guns in schools is compelling, according to Titone, however, it is not grounds for undermining the constitutional rights of students

èWhat standard applies for searches made by school officials at the request of police?

            àProbable Cause

èWhat standard applies for searches initiated by a police officer assigned full time part time as a liaison to the school?

            àReasonable Suspicion

Board of Education of Ind. School Dist. No. 92 of Pottawatomie County v Lindsey Earls (2002) 536 U.S. 822

àCounty instituted mandatory drug testing for all extracurricular activities in an effort to curb drug use

àSuspicionless, but generalized searches

àCourt determined it was a reasonably effective means of addressing the district’s legitimate concern in preventing, deterring, and detecting drug use

èCompare with Vernonia School District 47J v Acton (1995)

            àSimilar to Earls but only limited to student-athletes

                        àBecause these athletes were role-models

àVernonia court held that “suspicionless drug testing of athletes was constitutional”

àThe athletes were used to undressing in front of one another, so they had a reduced expectation of privacy

èWhat did the court in Earls consider in its analysis?

1)                  Nature of the privacy interest allegedly compromised by the testing

a.       The court points out that public school students’ privacy interests are limited because of requirements set out by the school simply to attend

                                                                           i.      Vaccinations

                                                                         ii.      Physicals

b.      The state is responsible for maintaining the discipline, health, and safety of its students

c.       Parents of the students argue that because many of the members of the extracurricular teams are not subject to regular physicals and communal undress like the athletes in Vernonia, they have a higher expectation of privacy than the athletes

d.      The court counters by pointing out that many of these extracurricular activities involve off-campus travel and communal undress

e.       Additionally, points out the court, the members must abide by the rules of the club but also of the Oklahoma Secondary Schools Activities Association

                                                                           i.      The students voluntarily subject themselves to these sorts of intrusions into their privacy

2)                  Character of the Intrusion

a.       The drug tests are carried out by having a student enter a closed restroom stall while a faculty waits outside the stall and urinate into a cup, which is then tested for drugs

b.      The tests and their results are kept separate from the student’s other educational records

                                                                           i.      The results are “released to school personnel only on a “need to know” basis”

c.       The results are not given to the police or any other law enforcement authority

d.      The only consequence being the limiting of a student’s privilege in participating in the activity

e.       Because of the minimally intrusive nature of the sample collection and the limited use of the results, the invasion to the student’s privacy it minimal

3)                  Nature and immediacy of the government’s concerns

a.       Because of the continued nationwide use of drugs by schoolchildren since the court ruled in Vernonia, and testimony by teachers that they have witnessed students under the influence, the court holds that the District’s interest in preventing and deterring drug use among its schoolchildren is an important

èThe court upholds the drug testing policy as a reasonable means of furthering the district’s interest in preventing and deterring drug use among its students

èDISSENT Justice Ginsburg

àGinsburg argues that because the drug problem is “not major”, that extracurriculars are basically required for college admission, and the policy is targeting the wrong kids; She dissents

àThree Problems with the majority opinion

1)                  The superintendent repeatedly described the drug problem at the high school as “not major”, which does not reflect the immediacy and danger found in Vernonia

a.       Compare this with the drug problem found in Vernonia which described the athletes subjected to the drug testing as, “leaders of an aggressive local “drug culture” that had reached “epidemic proportions””

2)                  Students do not voluntarily subject themselves to the restrictions of extracurricular activities

a.       Ginsburg argues that because extracurricular are part of the educational program that make up a high school, they are not voluntary

b.      Participation is important for:

                                                                           i.      College Admission

                                                                         ii.      Overall breadth and quality of the educational experience and school life

3)                  In fact, by taking away a student’s ability to join an extracurricular group, the district is placing that student at an even greater risk of drug abuse

a.       Ginsburg claims that students who participate in extracurricular activities are significantly less likely to develop substance abuse problems than their less-involved peers

b.      She states, “[The program] invades the privacy of students who need deterrence least, and risks steering students at greatest risk for substance abuse away from extracurricular involvement that potentially may palliate [alleviate] drug problems”

èSearches of Prison cells

àThe Supreme Court in Hudson v Palmer (1984) held, “the 4^th Amendment does not place any limits on a prison guard’s search of the prison cell of a convicted offender”

àIt is not difficult to see the need for safety that justifies such a search

èWhat about pretrial detainees?

àBell v Wolfish, “The 4^th Amendment protects neither sentenced nor pretrial detainees from a prison policy requiring inmates to undergo strip and body cavity searches after all contact visits with non-inmates”

èWhat about parolees?

àIn Samson v California, the Supreme Court upheld a state law that required parolees to submit to warrantless, suspicionless searches at any time

àHeld that the public’s interest in supervising parolees outweighs the parolees’ diminished expectation of privacy

Papers

Edward Boyd v U.S. (1886) 116 U.S. 616

àThe government prosecuted Boyd and others for importing glasses from England without paying the proper customs duties

àThe trial court ordered Boyd to produce the invoices for the cases of glasses; which he objected to as being unconstitutional but was made to do so anyway

            àHe was convicted

àOn appeal, the Supreme Court considered whether such an order (and the Act which authorized it) was violative of the 4^th and 5^th Amendments

èThe government argued that the practice was supported by long historical usage and the authority of judicial decision

1)                  Sanction by long usage

a.       The court disputes this

b.      The court points out that this act of 1863 was the first in this country or England for that matter, that authorized such a practice

                                                                           i.      Court goes on to say that even the writs of assistance did not go this far

1.      the writ of assistance authorized the agent [of the law] to search private premises, without specifying the place to search or the things to seize

2.      Expired only upon the death of the king

                                                                         ii.      These writs were the very thing that the framers had in mind when they drafted the 4^th Amendment and its protections

c.       The difference between seizure of stolen goods and seizure of papers is quite drastic

                                                                           i.      The government is entitled by the common law to possession of stolen goods until the withheld duties are paid

                                                                         ii.      Furthermore, the owner of the stolen goods is entitled to the return of such goods

d.      The court reasons that the 4^th and 5^th Amendments “throw light on each other”

                                                                           i.      “For the unreasonable searches and seizures condemned in the fourth Amendment are almost always made for the purpose of compelling a man in a criminal case to give witness against himself which is condemned in the fifth Amendment; and compelling a man in a criminal case to be a witness against himself…throws light on the question as to what is an unreasonable search and seizure”

èThe court held that the statute which authorized the order to produce and the use of such invoice as evidence violated the U.S. constitution.

Inventory Searches

àWhy have inventory searches?

àAccording to the Supreme Court in South Dakota v Opperman, there are three objectives that are served by inventory searches:

1)                  Protection of the owner’s property;

2)                  Protection of the police against claims of lost or stolen property;

3)                  Protection of the police from potential danger

èAlso under Opperman, the government must satisfy three requirements for a valid warrantless inventory search of a vehicle:

1)                  The original impoundment of the vehicle must be lawful;

2)                  The purpose of the inventory search must be to protect the owner’s property or to protect the police from claims of lost, stolen, or vandalized property and guard the police from danger; and

3)                  The inventory search must be conducted in good faith pursuant to reasonable standardized police procedures and not as a pretext for an investigatory search

èAccording to the court in Colorado v Bertine, in conducting such a search, the police must be acting pursuant to standard police procedures

People v Curtis Gipson (2003) 786 N.E.2d 540

èDefendant’s version of the events

àDefendant moved to quash his arrest and suppress the evidence found during a search of his automobile

àDefendant was driving home from work at 12:25 A.M. when a police car began to follow him

            àThe officer testified that it was because Defendant’s windshield was cracked

àAfter following him for several minutes, the officer turned on the police lights and pulled Defendant over

àThe officer told Defendant that he was driving on a revoked license

àThe officer placed Defendant in the backseat of the police car and locked him in, but never told him that he was under arrest

àDefendant claims that the officer told him that as long as he [Defendant] did not have any outstanding warrants, he was free to go

            àThe officer disputes this claim

àNext, the officer looked under the hood of Defendant’s car and then searched the inside of the passenger compartment

àThe officer returned to the police car, only to return to Defendant’s car, open the trunk, and look inside

àInside the trunk was a yellow, tied, plastic bag which was closed

            àInside the yellow bag was a black plastic bag

                        àInside the black plastic bag were rocks of cocaine

èPolice Officer’s version

àOfficer Byrd testified that after Defendant was placed in the back of the police car, he called a tow truck because it is State Police Policy to tow cars when the driver is arrested for driving with a revoked license

àBecause the car was being towed, the officer again followed police policy and conducted a “tow inventory search”

àByrd testified, “We are required to check the passenger compartment and trunk area for any valuables, or just for our own—we don’t want anything to leave us that might be of value without checking it first and putting down on the tow sheet”

àIt was during this tow inventory search that the officer discovered the yellow bag containing the cocaine

àNote that the printed version of this policy was never introduced into court, rather Officer Byrd testified to it being in the police procedure manual

èThe trial court granted the motion to suppress the evidence, holding that the police had no authority to tow the car and that police policy could not supersede the law

àThe Appeals Court determines two issues:

1)                  Whether a police officer’s unrebutted testimony about police policy on inventory searches can be sufficient evidence of such a policy if the state does not introduce a written policy?

a.       The Supreme Court held that there is no constitutional requirement that the state produce the written policy, only that the officer acted in accordance with standardized department procedures

b.      The appeals court in this case holds that Officer Byrd’s unrebutted testimony is sufficient to show the standardized procedures of the police department

                                                                           i.      The court points out that defense counsel made no effort to rebut Byrd’s testimony

2)                  Whether a policy requiring the police to inventory items of value is sufficient to allow the opening of closed containers if the policy does not specifically mention closed containers?

a.       Defendant argued that because the State failed to produce any evidence showing that the inventory policy allowed the opening of closed containers, Byrd was not entitled to open the yellow bag; therefore the search was unreasonable without a warrant

b.      The court relies on People v Hundley (1993) to hold that because Officer Byrd was required to search the automobile and inventory valuables, it necessarily involves the officer opening containers in search of such valuables

c.       In Hundley, the police policy did not include the words “closed containers” but that court held that because the policy required the police to look “wherever the owner or operator would ordinarily place or stow property”, the officer was justified in opening a cigarette case

Cars and Containers

State v William Eckel (2006) 888 A.2d 1266

àIssue: May the police conduct a warrantless search of an automobile as incident to an arrest after the occupants have been removed from the vehicle and are secured in police custody?

èAppeals court says “No” because such a search is neither to protect the police nor the preservation of evidence

àOfficer Whitten was on patrol when he received a report of a stolen vehicle

àThe owners of the car, Mr. and Mrs. Sanfillipo, reported that the car had been stolen by their daughter Dana and that her boyfriend, William Eckel, might be in the car

àWhitten knew that there was a warrant for Eckel’s arrest

àWhitten waited across the street from Eckel’s home and saw the stolen vehicle leave the driveway, with Dana driving

àWhitten, assisted by Officer Beers, stopped the vehicle and each proceeded toward the car, with Whitten walking to the driver’s side and Beers approaching the passenger side

àWhile Whitten was asking for Dana’s license, registration and insurance; Beers had Defendant exit the car, told him that he was under arrest, handcuffed him, and placed him in the rear seat of the police car

àWhitten then asked Dana to exit the car and while outside the car, Dana asked Whitten if she could kiss Defendant goodbye and give him the clothing that he left in her car

àWhitten told her to stay where she was and the he would retrieve the clothing believing that allowing her to retrieve the clothing presented a safety risk to the officers

àWhitten went to the car and began picking up the clothing off the passenger side floor

àUnderneath the clothing was a phone book that had “green vegetation and stems” consistent with marijuana, on top of the phone book

àAdditionally, Whitten observed an open box of Philly Blunts behind the passenger seat, which fueled his suspicion that the vegetation was marijuana further

àBoth Dana and Eckel were charged with possession of a controlled dangerous substance

àEckel moved to suppress the evidence but the trial court denied the motion, holding that the search was reasonable

àOn appeal, the court explored prior Supreme Court opinions concerning searches incident to lawful arrests:

1)                  Weeks v U.S. (1914)

a.       Established SILA as dictum by saying that law enforcement officials could “search the person of the accused when legally arrested, to discover and seize fruits or evidences of a crime”

2)                  Harris-Rabinowitz Rule (1947)

a.       Extended Weeks by holding that the officers may search not only the person of the accused but also “the entire area over which Defendant has a possessory interest”

3)                  Chimel v California (1969)

a.       Overruled Harris-Rabinowitz, holding that officer safety and preservation of evidence justified a search of “the arrestee’s person and the area within his immediate control”

b.      Case dealt with at length in Hufnagel (above)

4)                  New York v Belton (1981)

a.       Trooper pulled the car over for speeding

b.      4 men were in the car but none of them owned it nor were they related to the owner

c.       The officer smelled marijuana in the car and saw “Supergold” (Marijuana Brand) wrapper on the floor of the car.

d.      Arrested the 4 men and searched the car

e.       Belton’s jacket contained cocaine

f.        “Accordingly, we hold that when a Policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”

g.       Opinion made the entire passenger compartment (not the trunk) within the grabbing area

5)                  Thornton v U.S. (2004)

a.       Officer discovered that Defendant’s license plates belonged to another car

b.      Before the officer could pull him over, Defendant parked in a lot and got out of the car

c.       Officer approached and patted down Defendant, who admitted to having drugs and handed them to the officer

d.      Defendant was handcuffed and placed in the police car

e.       Officer proceeded to search Defendant’s car and discovered a handgun

f.        Supreme Court upheld the car search, holding:

                                                                           i.      “Once an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment”

èBack to Eckel

àThe court looked back to those Supreme Court cases but decided to follow its own state court ruling in State v Welsh (1980) and State v Pierce (1994)

àIn Welsh, decided less than a year before Belton, this court ruled that once an occupant has been removed from the automobile, arrested, and seated in the police car, there is no danger to the officer’s safety or destruction of evidence

because that person cannot gain access to the car

àTherefore, the exigent circumstance which served as an exception to the warrant requirement, goes away, so a warrant is required

àNote the similarity with the issue in Hufnagel, where the court held that regardless of whether the Defendant is physically unable to reach a weapon or destroy evidence, the SILA was justified

àIn Pierce, the court considered the applicability of Belton to the New Jersey constitution

àThe case again involved the search of an automobile after the occupants had been arrested, handcuffed, and secured

àThe court rejected Belton’s automatic application of Chimel to authorize vehicle searches for all motor-vehicle offenses

àCourt held that a rule authorizing vehicular searches for all motor-vehicle violations (Belton), poses too great of a risk to the rights guaranteed in the NJ constitution

èThe court holds that NJ constitution provides greater protection against unreasonable searches and seizures than its federal counterpart

àTherefore, this court rejects the Belton articulation of when SILAs are justified and articulates its own standard

è”Once the occupant of a vehicle has been arrested, removed, and secured elsewhere, the considerations informing the search incident to an arrest exception [protection of officer’s safety and preservation of evidence] are absent and the exception is inapplicable”

àDespite the NJ court’s decision in Eckel, a majority of states follow Belton

California v Acevedo (1991) 500 U.S. 565

àDEA agent called to inform Santa Ana Police Officer Coleman that the DEA had seized a package containing marijuana that was to be sent to Santa Ana

àThe package was addressed to J.R. Daza and he was to pick it up at the FedEx office

àDEA instead sent it to Coleman so that he could take it to FedEx and arrest whoever came to pick it up

àInstead of arresting Daza when he came to pick up the package, Coleman followed Daza back to his residence

àPolice kept the Daza residence under surveillance for drug trafficking

àWhile police were pursuing a warrant, Acevedo arrived at the house and then walked out with a package in his hands

àPolice pulled him over and searched the trunk

àFound/Searched the bag and found the pot

àThe police had probable cause to search container but the package was put in the car and driven away

èThe Supreme Court goes through an exhaustive analysis of their prior cases concerning car searches and containers found in cars:

1)      Carroll v U.S.  (1925)

a.       Mobility of the car creates an emergency and prevents the ability to go and get a warrant; allows for a warrantless search based upon probable causes

2)      U.S. v Chadwick (1977)

a.       Footlocker of marijuana was double padlocked and weighed over 200lbs

b.      Police followed the three men carrying the footlocker to a car and while the trunk was open, with the footlocker inside it, they arrested the three men, seized the locker, and searched it

c.       Government claimed that because the locker was in the car it should receive the same treatment as cars

                                                                           i.      Cars & luggage are similar, so the car exemptions should apply

1.      Both are mobile and both are “effects”

d.      Court rules that automobile has diminished standard of privacy, whereas the luggage does not

                                                                           i.      Intended to be private

1.      People cannot see inside of it

e.       Additionally, the court pointed out that it is much easier to place the luggage in a secure room and get a search warrant than doing the same with an automobile

3)      Arkansas v Sanders (1979)

a.       Similar facts to Chadwick, except that the police picked up the people in car once it drove away rather than before it did

b.      Suitcase was in the moving car

c.       The court ruled that the warrantless search was improper

                                                                           i.      Police had probable cause to search the suitcase not the car

                                                                         ii.      Therefore, the police needed to seize the suitcase, secure it, and then get warrant to search it

                                                                        iii.      The presence of luggage in an automobile did not diminish the owner’s expectation of privacy in his personal items

4)      U.S. v Ross (1982)

a.       Police had probable cause to believe Ross was selling drugs out of his trunk

                                                                           i.      An informant gave them this tip

b.      Police stopped the car on the road and searched the car trunk

                                                                           i.      Found a brown paper bag containing heroin

c.       Court held that if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search

d.      The court distinguished between Carroll which governed the Ross automobile search and Chadwick which governed the Sanders automobile search

                                                                           i.      Carroll governs searches of automobiles when the police had probable cause to search the entire vehicle

1.      In Ross, the police could conduct a reasonable search under the 4^th Amendment without a warrant

                                                                         ii.      Chadwick governs when the police have probable cause to search a container within the vehicle

1.      Because the police had probable cause that a container in the trunk contained marijuana, not simply that the trunk contained marijuana they needed a warrant to search the container in Sanders

e.       The facts in Ross are very similar to those in Acevedo, with the one difference being that the officers in Ross were searching the trunk and found the bag of drugs, whereas the officers in Acevedo knew what the bag looked like and were specifically searching for it

f.        The Supreme Court in Ross deferred the question of: Whether the 4^th Amendment requires the police to obtain a warrant to open the sack in a movable vehicle simply because they lack probable cause to search the entire car?

èThis court in Acevedo answered that question by holding that the 4^th Amendment does not require them to do so.

àThe court sees no difference in a container found after a generalized search of the entire car (Ross) vs. the container found after a very limited search for that specific container (Acevedo)

èHOLDING: “The police may search without a warrant if their search is supported by probable cause…[However, probable] cause to believe that a container placed in the trunk of a [vehicle] contains contraband or evidence does not justify a search of the entire [vehicle]”

èCONCURRENCE by Justice Scalia

àScalia agrees with the court but calls for a change in the entire 4^th Amendment jurisprudence:

à”In my view, the path out of this confusion should be sought by returning to the first principle that the "reasonableness" requirement of the Fourth Amendment affords the protection that the common law afforded.  I have no difficulty with the proposition that that includes the requirement of a warrant, where the common law required a warrant; and it may even be that changes in the surrounding legal rules for example, elimination of the common-law rule that reasonable, good-faith belief was no defense to absolute liability for trespass, may make a warrant indispensable to reasonableness where it once was not.  But the supposed "general rule" that a warrant is always required does not appear to have any basis in the common law and confuses rather than facilitates any attempt to develop rules of reasonableness in light of changed legal circumstances, as the anomaly eliminated and the anomaly created by today's holding both demonstrate.”

èThe authors state the holding of Acevedo as such: “It allowed warrantless searches of containers within automobiles so long as the police have probable cause to believe that either the car as a whole or the container itself holds contraband or evidence”