CJL3410 EXAM TWO FSU

Search warrant requirements

Particularity & Probable cause affidavit

Particularity

-Search warrants must "particularly describe the place to be searched"

-Search warrants must also "particularly describe the things to be seized"

Probable cause affidavit

Sworn statement (usually by officer) to the facts and circumstances that amount to probable cause for the search

Occupant failure to respond

-Officers have to wait a "reasonable amount of time" after announcing presence to break and enter

-No bright line rule

-10 to 20 seconds is best bet

U.S. v. Banks (2003)

-Police used battering ram after yelling "police search warrant" and waiting 15-20 seconds

-SCOTUS held unanimously that this was reasonable under circumstances where occupant was suspected of selling cocaine and delay could lead to "imminent loss" of evidence

Exceptions to knock-and-announce

-Prevent imminent harm (i.e., violence)

-Prevent destruction of evidence

-Prevent escape of suspect

Knock-and-talk

-Technique where police officers go to people's residences without search warrant and knock on door

-Can ask resident to consent to search

-Can obtain plain view of interior or house and possible make search incident to arrest under "plain view" exception to warrant requirement

Johnson v. U.S. (1948)

-Last time SCOTUS interrogated knock and talk

-Narcotics officer knocked on hotel room door (based on informant tip) and asked occupant about "opium smell" before performing search of room pursuant to arrest

-SCOTUS held that the warrantless search violated 4th Amendment

Warrantless searches

Majority of searches are made without a warrant

Four major exceptions:

-Searches incident to arrest

-Consent searches

-Violent searches

-Emergency searches

Search incident to arrest

Reasons for exception:

-Protect officers from suspects who might harm them

-Prevent arrested suspects from escaping

-Preserve evidence suspects might destroy or damage

Scope of search:

-SCOTUS says "grabbable area"

Grabbable area

Officers can search the arrested person and the area under immediate physical control

New York v. Belton (1981)

-SCOTUS held (6-3) that a police officer can always lawfully search a car and any compartments after arresting its occupants

Searches incident to misdemeanor arrest

Robinson rule: Officers may always search a person incident to lawful custodial arrest, for any crime

Why create this bright line rule?

-Taking suspects into custody is dangerous

-SCOTUS cannot review every police decision, so rule is needed

U.S. v. Robinson (1973)

-Police arrested Willie Robinson for driving without a license

-Officer then searched Robinson, felt a lump in coat pocket, and found a crumpled up cigarette package with heroin inside

-Majority opinion (6-3) held that "a custodial arrest of a suspect based on probable cause is a reasonable intrusion under the 4th Amendment"

Six state supreme courts have rejected the Robinson rule

AK, CA, HI, NY, OR, WV

Does Robinson rule apply to minor traffic citations?

SCOTUS unanimously held that automatic searches incident to traffic citations were not reasonable

Searches incident to pretext arrest

-Pretext arrest: Arrests for one offense where there is probable cause, but motivation is to search for evidence of unrelated offense where there is no probable cause

-SCOTUS has held pretext searches are reasonable

Consent searches

Individuals give officers permission to perform search without warrant or probable cause

Waiver test of consent to search

-Did the suspect know she had the right to refuse consent?

-Did the suspect intend to waive that right?

-Did the suspect waive right voluntarily?

Voluntariness test of consent to search

-Did totality of circumstances indicate that officer "reasonably believed that the suspect consented voluntarily to the search"?

-Relevant circumstances: Knowledge of right to refuse or constitutional rights in general, Age and maturity to make decision

Intelligence to understand significance of decision, Cooperation with officers, Coercive behavior of officers surrounding consent, Length of detention and nature of questioning regarding consent

Scope of consent

Consent is as broad as officers reasonably believe

Florida v. Jimeno (1991)

-Officers asked permission to search Jimeno's car and he consented

-Officers found drugs in a bag in the trunk

-SCOTUS held (7-2) that consent extended to bag in trunk

Invasive searches

What does the officer have to ask for crotch search to be reasonable?

-Can I search you?

-Can I search your genital area?

Withdrawing consent

-SCOTUS has not ruled on question

-Lower courts say must withdraw consent by "unambiguous acts or unequivocal statements"

U.S. v. Miner (1973)

-Airline employees asked Miner to walk through metal detector and Miner complied

-Machine did not work and Miner was asked to open his suitcase

-Miner responded, "No it's personal"

-Court held that Miner withdrew consent to search

U.S. v. Gray (2004)

-During routine traffic stop, state trooper secured permission to search vehicle

-Obtained consent at 11:09am

-At 11:30am, driver said "this is ridiculous," asked how much longer, and said that they were "ready to go now"

-Officer continued to search and found narcotics with assistance of drug detection dog

-Court held that the driver did not express unequivocal statement withdrawing consent

-Withdrawing consent does not require "magic words," but requires more than expression of frustration with search

Third party consent: Actual authority

Someone has actual legal authority to consent for someone else to search their home and property

Third party consent: Apparent authority

-Officers reasonably believe that someone has legal authority to consent for someone else to search their home or property

-But there is no actual authority

Actual authority consent

-Stoner v. California (1964)

-SCOTUS adopted actual authority test of third party consent

-Police officers asked hotel night clerk to search Stoner’s hotel room and clerk complied, leading to the discovery of evidence of robbery

-Held that the clerk did not have the legal authority to allow search

Vehicle searches: Why lower standard than home?

-Since founding, searches of vehicles subject to less protection than searches of homes

-1789 statute allowed warrantless search of “ship or vessel” suspected of illegal goods

-Vehicle exception first challenged in 1925

-Carrol v. U.S. (1925)

Vehicle container searches

-What is the scope of vehicle exception?

-If probable cause to search, warrantless search of passenger compartment, glove compartment, and trunk is permissible

-What about containers within vehicles?

-Until 1991, officers needed separate probable cause to search container and vehicle

-California v. Acevedo (1991)

-Police had probable cause to believe Acevedo was carrying marijuana in a paper bag and observed him place bag in trunk

-Police pulled him over and searched the trunk

-SCOTUS held that if offices had probable cause to search container placed in vehicle, they had probable cause to search vehicle as well

Emergency searches

-Warrantless searches can be based on "exigent circumstances"

-Impractical or dangerous to require officers to obtain warrant

Officer safety

E.g., frisks for weapons

Destruction of evidence

E.g., warrantless search of home suspected of drugs, warrantless blood alcohol test, warrantless scrapings of blood under arrested suspect fingernails

Suspect escape

-Hot pursuit of suspect with probable cause to arrest justifies entry to home without warrant

-But officer cannot search house they entered in hot pursuit once hot pursuit is over (or if suspect flees from home)

Danger to community

-Probable cause to believe suspect is danger to community allows warrantless entry to home

-E.g., police may enter is probable cause that domestic violence may occur inside house

Special needs searches

Some searches are not based on probable cause (or reasonable suspicion) that a crime took place, but based on some "special need"

Inventory searches

-When a person is in police custody, police take an inventory of their personal property and containers

-Containers include wallets, purses, clothing, vehicles, or anything where a person in custody might put their belongings

An inventory search is reasonable if:

Government "special needs" outweighs individual's privacy

-Special needs include:

-Protect property while owner in custody

-Protect government against lawsuits for loss, destruction, or theft of owner's property

-Protect government and detain suspects from danger of bombs, weapons, or illegal drugs that might be hidden in owner's property

There is an objective basis to the inventory search

-Routine searches are required to show "objective basis"

I.e., not selective

International border searches

Warrantless searches at borders do not violate the Fourth Amendment

U.S. v. Ramsey (1977)

-A customs inspector opened a letter-sized envelope that was bulkier and heavier than normal airmail letters

-Even though he had time to obtain a search warrant, he did not

-He found heroin inside, which was used to convict the recipient of the letter

-SCOTUS held that the search was not a violation of the Fourth Amendment because it constituted a "border search"

Airport searches

-Airport searches are also permissible with warrant, reasonable suspicion, or probable cause

-E.g., metal detectors for persons and X-ray machines for luggage

-Airport searches involve minimal invasion of privacy

-But serve two important special needs:

(1) Security of airport

(2) Safety of air travelers

Invasion of privacy is also voluntary:

-Air travelers are notified in advance and can decide not to use airport if they do not want to be searched

Dorm room searches

-Fourth Amendment only prohibits unreasonable searches and seizures by government agents

-Thus, only public school officials must follow Fourth Amendment

-Searches performed by private school officials are outside scope of Fourth Amendment

-Who might perform a dorm room search?

Law enforcement

-This would probably be subject to some warrant requirement as search of a house

-College officials

Lower courts allow more discretion for college officials

Officials have "an obligation to promulgate and to enforce reasonable regulations designed to protect campus order and discipline and to promote an environment consistent with the education process"

Reduced expectation of privacy in a dorm room may involve:

Emergency situations that require immediate action by college officials

Special relationship between student and college

College duty to provide "clean, safe, and well-disciplined environment"

-SCOTUS has not yet ruled on searches and seizures in context of college dorm rooms

But some lower courts have...

Drug testing

Drug testing is considered a search, but with a special balancing of interests that leads to relaxation of warrant requirement in some circumstances

Employee drug testing

-Searches to uncover employee drug use through drug testing are directed at a "special need"

-To "prevent and deter hazardous conduct" by employees "engaged in safety-sensitive tasks"

E.g., pilots, bus drivers, railway engineers

-Testing the blood, breath, and urine of some public employees is reasonable without individual suspicion or warrant

-Searches must be conducted according to administrative regulations

I.e., not selective or discriminatory

Prenatal drug testing

-Many jurisdictions perform prenatal drug testing in hospitals

-Women who test positive for drugs may be referred to drug counseling and treatment

OR they may be arrested

-Prenatal drug testing requires a warrant if the purpose is law enforcement

-The purpose of prenatal drug testing is not a “special need”

Student drug testing

-Schools act as substitute parents under the doctrine of in loco parentis

-School officials do not need to get warrant or have probable cause

-But most searches do require reasonable suspicion

-What about drug testing?

Constitutes a search, but SCOTUS has found that random testing is reasonable without individualized suspicion

-Does not require evidence that drug use is taking place among student body

-It is sufficient that the school has a legitimate interest in preventing drug use among students

Veronia School District v. Acton (1995)

-SCOTUS held that it is reasonable for a school to randomly drug test students who voluntarily participate in its athletic programs

-10 percent of students were randomly selected for urine tests once per week

Board of Education v. Earls (2002)

-SCOTUS held that random drug testing for students involved in all school activities was also reasonable

-All students had to consent to urinalysis and positive drug tests led to suspensions

-But law enforcement were not involved

Custody-related searches

Any person who enters a correctional facility may be searched without warrant or probable cause

Hudson v. Palmer (1984)

-SCOTUS held that prisoners did have limited expectation of privacy

-"We have repeatedly held that prisoners are not beyond the reach of the Constitution. No 'iron curtain' separates one from the other"

Jail strip searches

-Strip searches are reasonable if they help maintain safety and order in the jail

-Can be performed without warrant or probable cause

-But definition of strip search can vary

-Invasiness of search needs to be weighed against government interests

Probationers

-Police can search probationers' home without warrant or probable cause

-Only reasonable suspicion required

Parolees

-Police can search parolees' home without warrant, probable cause, or reasonable suspicion

-No suspicion required

-Parolees have lower expectation of privacy than probationers

Pretrial detainees

-Do pretrial detainees who have been arrested but not yet charged have a lower reasonable expectation of privacy?

-SCOTUS has yet to rule on this issue, but some lower courts have addressed it

Confessions

-Criminal suspects may acknowledge their criminal guilt

-Can be oral or in writing

Incriminating statements

-Any statement by suspect that tends to indicate guilt

-Including full confession!

When does Miranda apply

Prior to a custodial interrogation

What are Miranda warnings?

-"You have the right to remind silent"

-"Anything you say can and will be used against you in court"

-"You have the right to a lawyer"

-"If you cannot afford a lawyer, one will be appointed for you"

What are Miranda bight line rules?

(1) Suspect can claim right to remain silent at any time

Once they do, interrogation has to stop immediately

(2) If suspect asks for a lawyer, interrogation cannot begin

If suspect requests lawyer during interrogation, it must stop immediately

(3) Statements made without a lawyer present put heavy burden on prosecution to prove that rights were waived

Silence and later confessions do not count as a waiver

(4) Statements made in violation of rules cannot be admitted into evidence

(5) Remaining silent cannot be used against defendant

At trial, prosecutor cannot even hint that silence indicates guilty

Interrogations: Prior to formal charges

"Functional equivalent of a question" test (5th Amendment)

Interrogations: After formal charges

"Deliberately eliciting a response" test (6th Amendment)

Custody

-Depriving person of freedom or action

-More specifically: "whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest"

"Coercive atmosphere" factors

-Intent to detain (and probable cause to arrest)

-Physical surroundings

-Length of detention

-Suspect characteristics (e.g., age)

-Kinds of pressure used to detain suspects

What detentions are not custodial?

-Traffic stops

-Probation or parole meetings

-Detaining person during execution of valid search warrant

Public safety exception

Police do not have to provide Miranda warnings if the custodial interrogation is intended to protect public safety

Scenario example: Most typical scenario involves guns

When arrested, suspect is asked:

Where is the gun?

Is it loaded?

Are you carrying any other weapons?

Miranda waiver: How common?

~75 percent of suspects waive rights

Express waiver test

-Suspect must make clear statement that indicates they know their rights, they know they are waiving them, and they know the consequences of doing so

-Miranda language seemed to require express waiver

Implied waiver test

-Whether suspect knowingly waived rights is judged from totality of circumstances

-They do not have to make express statement of waiver

-SCOTUS adopted this test in Berghuis v. Thompkins, 560 U.S. 370 (2010)

Two conditions for "involuntary" incriminating statements

-Officers engaged in coercive conduct during interrogation

-The coercive conduct caused the suspect to make the incriminating statement

"Coercive conduct" factors

-Whether Miranda warnings were given

-Whether suspect initiated contact with law enforcement

-Location of interrogation

-Number of interrogators

-Length of interrogation

-Whether food, water, or toilet were denied

-Whether police used threats, tricks, lies, or promises

-Whether the suspect was denied access to lawyer

Suspect characteristics (e.g., age, mental condition, education)

Justifications for exclusionary rule: Constitutional right

Rule is implied by 4th Amendment

Justifications for exclusionary rule: Judicial integrity

Rule is necessary to preserve integrity of government

Justifications for exclusionary rule: Deterrence

Rule is required constitutional remedy

Exceptions to fruit of poisonous tree: Attenuation

-If relationship between illegally obtained evidence and later derived evidence is weak, it can still be admissible

-No "bright-line" rule

Lower courts must decide when relationship between illegally obtained evidence and "fruit of poisonous tree" is sufficiently attenuated that suppression of the evidence is not necessary

Wong Sun v. U.S. (1963)

-Based on unreliable informant tip, narcotics agents searched James Wah Toy's home and arrested him for possession of heroin

-Police then went to Yee's house where they arrested Yee for possession of heroin

-Both searches and seizures (arrests) were ruled unreasonable in violation of 4th amendment (fruit of poisonous tree was not attenuated)

-The same agent had also illegally arrested Wong Sun

-Sun was released on bail and returned voluntarily to narcotics division several days later

-Sun told agents that he had delivered heroin to Yee and they had smoked it together

-Court found that this testimony was sufficiently attenuated from the illegal arrests and searches that the testimony did not have to be suppressed

Exceptions to fruit of poisonous tree: Independent source

Even if officers violate the Constitution in searching for evidence, if evidence can be obtained independently of the violation, it can still be admissible

Murray v. U.S. (1985)

-Federal law enforcement agents entered a warehouse in South Boston illegally, searching for maijuana

-The agents forced entry without a search warrant and found numerous wrapped bales of what was later confirmed to be marijuana

-The agents did not disturb the bales and kept the warehouse under surveillance until they obtained a search warrant that did not mention the unwarranted entry or the information they had obtained

-SCOTUS held that the marijuana was admissible because the 4th amendment violation did not cause the discovery

Exceptions to fruit of poisonous tree: Inevitable discovery

If the discovery of the evidence would have occurred even without the illegal search, it can be admissible

Nix v. Williams (1984)

-Williams was arrested for the murder of a 10 year old girl

-He disposed of her body along a gravel road

-State law enforcement officials engaged in a massive search for the child's body

-Without an attorney present, Williams made statements to the police which lead the searchers to the child's body

-Williams argued that the child's body should be suppressed as evidence due to Miranda violation

-Court held that the child's body could be admitted into evidence because its discovery was "inevitable"

-There was a massive search that would have eventually discovered the body

-The search party was only a couple miles from the body when Williams led officers to it

Direct exceptions to exclusionary rule: Collateral use

-Illegally obtained evidence can be used in collateral proceedings (i.e., not prosecution)

-E.g., bail hearings, grand jury proceedings, preliminary hearings, sentencing, parole revocation hearings, etc.

Direct exceptions to exclusionary rule: Cross-examination

-Illegally obtained evidence cannot be used to prove guilt, but can be used to impeach testimony on cross-examination

-If defendant lies during testimony at trial, prosecution can "impeach" by submitting illegally obtained evidence that shows they are lying

Direct exceptions to exclusionary rule: Knock-and-announce

-When evidence was obtained by illegal "knock-and-announce," it can still be admitted so long as officers had a valid search warrant

-Failure to knock-and-announce does not make search warrant invalid

Lawsuits against U.S. officers

-Until 1971, individuals could not sue federal officers for violations of constitutional rights

-There is no explicit constitutional remedy for such violations

-Bivens v. Six Unknown Federal Narcotics Agents (1971)

Lawsuits against U.S. government

-Sovereign immunity

Doctrine that holds that the sovereign (i.e., king) does not have to appear in court

-Government can only be sued with its consent

-I.e., immune to civil actions

-Federal Tort Claims Act (FTCA)

Waive sovereign immunity for constitutional torts of federal law enforcement officers

Federal government has “deep pockets” compared to individual federal officers

So many plaintiffs find FTCA actions more appealing than Bivens actions

But FTCA action will not “punish” the individual officer as much as Bivens lawsuit

Lawsuits against state officers

-Civil rights actions are called “§1983 actions”

42 U.S. Code §1983. Civil action for deprivation of rights”

“Every person who, under color of any statute, ordinance, regulation, custom, or usage… subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law”

-To prove violation of §1983, plaintiffs must prove:

(1) officer acted “under color of state law”

(2) officer’s action caused a deprivation of plaintiff’s constitutional rights

-But… qualified immunity again!

-Officers protected if their action was “objectively reasonable”

-Also, plaintiffs can only recover for intentional actions

Not negligence or accidents

Lawsuits against local governments

-Respondent superior

-Common law tort doctrine that applies to private legal entities

-State and local governments are liable for the torts of their employees

-As long as tort occurs within scope of employment

-States do not have to adopt respondent superior

-Vicarious official immunity

-In these states, local governments (and police departments) can claim the official immunity of their employer (i.e., the state)

-Courts use two-part test to determine immunity:

(1) need for effective law enforcement

(2) need to avoid putting public at risk

-§1983 actions

-Individuals can sue local governments or departments if they can prove:

(1) officer action caused violation of constitutional right

(2) officer action was according to department policy

-“Written policies, statements, ordinances, regulations, or decisions approved by authorized official bodies or to unwritten custom”

-Custom can be established without being “formally approved”

Lawsuits against judges and prosecutors

-Judges have absolute immunity

-They can never be sued for their behavior or decisions

-Even if it can be proved that they acted maliciously

-Only remedy against judicial misconduct is impeachment

-Or voting them out of office (if elected)

-Prosecutors have functional immunity

-In their role as advocates, they have absolute immunity

-Even if it can be proved that they acted maliciously

-In their role as administrators or investigators, they have qualified immunity

-If misconduct violated clearly established law that a reasonable prosecutor would have known, they can be sued

-But behavior related to actual prosecution of case (e.g., use of evidence at trial) is entitled to absolute immunity

Sovereign immunity

-Doctrine that holds that the sovereign (i.e., king) does not have to appear in court

-Government can only be sued with its consent

-I.e., immune to civil actions

Qualified immunity

-Law enforcement officers cannot be held personally liable for official action if that action was “objectively reasonable”

-If plaintiffs sue officer under Bivens, they must prove:

(1) Officer acted under authority of law

(2) Officer violated constitutional right

(3) Officer’s act was not objectively reasonable

-What is “objectively reasonable?”

-Courts ask whether the violated rule was “clearly established”

-I.e., reasonable officer would know they were violating constitutional rights

-Rationale for this rule is to protest officers’ broad discretion to do their job under difficult conditions

-Also to prevent high volumes of frivolous lawsuits

Constitutional duty to protect

-No affirmative duty to protect

-Police officers do not have a legal duty to protect private individuals from other private individuals

-This may sound odd, since their job is "to protect and serve"

-The point is that it is not a constitutional duty

-As a practical matter, it means police officers cannot be sued for failing to protect someone from harm

DeShaney v. Winnebago County (1989)

-Five year old Joshua DeShaney suffered brain damage as a result of beatings from father for more than 2 years

-DeShaney sued county social services department, arguing that they failed to protect DeShaney and this resulted in substantial harm

-SCOTUS ruled that the constitution does not create affirmative duties

Special relationship

-When the government takes a person into custody, they have a special relationship with that person

-Government owns a duty of care to a person within their custody

-When the government "so restrains an individual's liberty that it renders him unable to care for himself," there is a duty to care for him

State created danger

-Government created a danger or making victim more vulnerable to danger

-Typically this requires a special relationship (custody)

-But some courts have found "state-created danger" without custody

Beltran v. City of El Paso (Tex, 2004)

-Beltran called 911 to report her father was drunk and potentially violent and that she feared for her life (she hid in the bathroom)

-Police dispatcher told Beltran to stay where she was and that "help is on the way" but no police responded to the call and Beltran was killed along with her mother

-Court of Appeals (5th Cir.) held police did not create a special relationship or state-created danger

-Would have required evidence that dispatcher knew that Beltran's life was in immediate danger and that she was "deliberately indifferent"