Criminal Procedure

Class Five

Today’s Topics

• Special Needs: Drug Searches

• Special Needs: Road Blocks

• Inventory

• Border Searches

• Consent

• Introduction to Exclusionary Rule

Special Needs: Drug Testing

Preliminary Considerations

• Generally two types of regulatory schemes

Specific triggering event

Entirely random• Searches of persons in civil-based context • No warrant• No probable cause

Revisit New Jersey v. T.L.O.

• Held warrantless search of student’s purse was reasonable

• School administrator had reasonable suspicion to believe student had cigarettes

• Special need: Maintaining school discipline

Later Developments

• Supreme Court began using same concepts when analyzing drug testing searches

• Unlike New Jersey v. TLO, in drug testing programs, there is no individual suspicion keyed to particular person

Skinner v. Railway Labor Executives Association

• Regulatory Scheme: Mandatory testing for all railroad personnel involved in certain train accidents

• Suspicionless

• Supreme Court upheld

Preliminary Considerations

• How does drug testing implicate Fourth Amendment? Note: Testing was carried out by private employer

• Why is the conduct a search?

• What is the “special need” beyond normal law enforcement?

“Reasonable” Without Individualized Suspicion

• Minimal expectation of privacy• Compelling state interest (which cannot be

accommodated by requiring individual suspicion)

• Effective means of deterring drug use• Assist in safeguarding public• Too difficult to require after serious

accident

Von Raab

• Regulatory scheme: urinalysis as condition of employment in three areas

• What is the triggering event?

• Why is no warrant needed?

• How significant is lack of documented drug problem among covered employees?

ACTON

• School district policy: random urinalysis of students participating in athletic programs

• Acton was seventh grade student; parents refused to sign consent; filed suit seeking declaratory and injunctive relief

Case Specific Facts

• History of drug use in community

• Other methods tried

• Parental and community involvement

• Testing methods

• Consequences of failure

• Interaction with law enforcement

Preliminary Analysis

• If no clear practice when Fourth Amendment adopted, “reasonableness” means balancing individual intrusion against promotion of legitimate government interest

• If undertaken by law enforcement to discover evidence of criminal wrongdoing, usually requires warrant based on probable cause

Preliminary Analysis

• Warrant not needed to show reasonableness of all government searches

• If warrant not required, then probable cause may not be required as well

Application

• Special needs in school

• Student’s privacy interest

• Character of intrusion

• Nature and immediacy of government need balanced against specific means to address

• Contrast with suspicion-based program

Chandler

• Statutory scheme: Drug testing of candidates for public office

• Thirty days before qualifying for nomination or election, candidate had to submit negative results for urinalysis

• Specific named drugs tested• Affected wide range of offices from the governor

through the judiciary, members of the legislature, and various agencies

Georgia Claims Two Special Needs

• Sovereign power under 10th Amendment

• Incompatibility of unlawful drug use and holding high state office

Contrast with Von Raab

• Unique context “symbolic” v. “special” need

Holding

• Where public safety is not generally in jeopardy, Fourth Amendment precludes suspicionless search

• Query: How long does this rule last? Has it been subsequently undercut?

Board of Education v. Earls (2002)

• Expands Acton to suspicionless testing of high school students for any extracurricular activity

Ferguson v. City of Charleston (2001)

• Invalidated drug testing of pregnant mothers as violating prohibition against non consensual, warrantless, suspicionless searches

Concepts

• Nature of special need asserted for justification

• Role of law enforcement

• Significance of “benign” motive

Special Needs? - - Road Blocks

Road Blocks are Seizures (Stops)

• Purposes tied to public transportation: License checks, sobriety checkpoints

• Purposes tied to crime detection: Drug searches

Individual Stops

• Reasonable suspicion necessary to stop car and detain driver in order to check license and registration

Permanent and Temporary Checkpoints

• Program design: All motorists passing through checkpoints stopped and briefly examined for signs of intoxication. If seem drunk, diverted to another area for further checking

• Each detention lasted 25 seconds

• “Special needs” or Terry?

Applying Balancing Test

• Government Interest– Eradicating drunk

driving

• Individual Intrusion– Extremely limited

– Driver can see all being stopped

– Locations determined by guidelines

City of Indianapolis v. Edmond

• Invalidates checkpoint with primary purpose to discover and interdict illegal drugs

Questions

• Why isn’t this permissible using the rationale of border searches?

• Why isn’t this permissible using the rationale applied to sobriety checkpoints?

• When, if ever, might such road blocks be permissible?

Special Needs: Inventory Searches

Overview

• Generally routine inventory searches are reasonable under the Fourth Amendment

• Typically conducted without warrant• Typically conducted without probable cause• In most jurisdictions, standard practice for police

to inventory contents of cars and containers in custody

• If police discovered criminal evidence during inventory . . . plain view

Car Inventories

• South Dakota v. Opperman

• Held: Warrantless inventory search of car impounded for parking violation permissible

State’s Interests

• Protect owner property while in police custody

• Protect police from claims of lost or stolen property

• Protect police and public from potential danger

Individual Interest

• Diminish expectation of privacy in cars

Arrestee Property

• Illinois v. Lafayette

• Upheld warrantless inventory search of shoulder bag of man arrested for disturbing peace

Rationale

• Government interest greater than for search interest to arrest

• Police conduct that might be embarrassingly intrusive on street could be handled privately

• Same three interests that apply to car inventories

Less Intrusive Means

• What constitutional significance of fact that officers could have done something other than inventory the contents - - could have done something “less intrusive” – “park & lock” car– Place personal property in “bin”

Police Discretion

• Colorado v. Bertine

• Rejects less intrusive means analysis for opening containers during inventory search

• Officer discretion is not controlling factor

Absence of Policy

• This is a limitation on officer discretion

• Florida v. Wells

• Held: Opening locked suitcase could not be justified as inventory when agency had no policy regarding opening of locked container

Pretext

• If officers followed guidelines and make activity looked like “inventory” existence of actual investigatory motive is irrelevant

• If there are no guidelines - - or if guidelines are disregarded - - then police cannot justify search on inventory grounds

Some Lower Court Limitations

• Not reasonable to impound car parked in locked garage at home

• Not reasonable to vacuum cars interiors to “inventory” carpet fibers

Special Needs: Border Searches

General Principles

• Special need beyond traditional criminal law enforcement

• Evaluated under reasonableness clause

• Heavy state interest

• Diminished expectation of privacy

Location

• Border

• Functional equivalent

• Check points (temporary or fixed)

• Roving patrols

Officer Conduct

• Routine search

• More than routine search

• Questions concerning citizenship

• Search of automobile at checkpoint

• Search of automobile by roving patrol

Routine Border

• United States v. Ramsey• People can be stopped (seized) at international

border. They and their belongings can be searched, without warrant and without individualized suspicion

• Rationale?• Application to packages mailed into U.S.?• Functional equivalent of border

Beyond Routine Stop or Search

• United States v. Montoya de Hernandez• Balloon swallowing drug smuggling suspect case• A person stopped at the border can be detained

further, beyond the scope of a routine Customs search

• To do so, agents must have reasonable suspicion of criminal activity

• What facts gave them that suspicion here? More like custodial arrest? Terry?

Checkpoints

• Immigration and Nationality Act• Legislative extension of border search

powers• Rule: Vehicle occupants may be stopped at

fixed checkpoints and briefly detained for questioning without individualized suspicion

• United States v. Martinez-Fuerte

Vehicle Searches at Checkpoints

• United States v. Ortiz

• Held: Warrantless vehicle searches at checkpoints require probable cause or consent

• Contrast with briefly detaining cars asks occupants about citizenship

Roving Patrols

• Almeida Sanchez v. United States (vehicle search)

• United States v. Brignoni-Ponce (stopped car to question occupants)

Exercise

• Reasonable suspicion, not probable cause, will justify the stop of a car to question occupants about citizenship.

• Identify a minimum of three factors that might lead officer to form a reasonable suspicion

Consent Searches

Significant Exception to Warrant Requirement

• Validly obtained consent justifies warrantless search, with or without probable cause

• Not “waiver” of constitutional right

Voluntariness

• Valid consent may not be the product of duress or coercion

• Evaluated using totality of circumstances

• Knowledge of right to refuse is not dispositive

Examples from the Cases

• United States v. Watson (arrested and in custody when consent given)

• Bumper v. North Carolina (police told occupant they had warrant)

• United States v. Mendenhall (airport encounter: Suspect told twice she was free to decline consent)

Free To Go

• Ohio v. Robinette: After giving ticket, officer asks permission to search

• Question: What is relationship to knowledge about or expressed statement of right to refuse to consent --- Must officer advise driver she is free to go?

Third Party Consent

• Actual Authority

• Apparent Authority

• “Mistake of Law”

Scope of Search

• Objective reasonableness

• Usually defined by its expressed object

Withdrawal of Consent

• Right to revoke consent after given

• By whomever gives consent (defendant or third party)

• NO retroactive revocation (e.g., after incriminating item is found)

Fourth Amendment Remedies

History and Principles

• Typical remedy : Exclusion of any evidence gathered as result of Fourth Amendment violation

• “Fruits” of seizure suppressed

• Purpose: Deter police misconduct

• Relatively new creation

• Applied to states in 1960

Procedures for Challenging

• Motion to Suppress

• Pre Trial

• Different remedies may apply if criminal defendant prevails, if government prevails

Attacking Warrant

• Franks v. Delaware provides limited right to attack truthfulness of statements made in warrant application

• Recognized presumption of validity about affidavit supporting search warrants

Overcoming Presumption

• Allegation of deliberate falsehood or reckless disregard for truth

• Accompanied by offer of proof

• Applies only to affiant (not to non-governmental informant)

Challenging Warrantless Search

• Motion to Suppress

• Alleging search violated Constitution

• Burden shifts to government to justify

• Preponderance burden