Tony GallagherFederal Defender

Search & Seizure:Past, Present and Future

A quick “tour” of the basics

Practical realities today

Where are we going?

My other life --

The “hint” will be a football team fight song from the

state named in the cite of the case

Name that Case

Constitutional Foundation

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Basics The Fourth Amendment applies

when 1) the intrusion is the product of

government action Private citizens are exempt Security contractors are not covered

either

The Basics The Fourth Amendment applies

when 2) the intrusion breaches

society’s reasonable expectation of privacy

The Basics The Fourth Amendment applies

when and 3) the intrusion breaches the

legitimate expectations of privacy of the individual in question.

Searches not protected by the Fourth Amendment

Abandoned propertyForeign Searches

BUT, no gross or brutal maltreatment

Private SearchNo Government action

California vs. GreenwoodFacts: Billy Greenwood was a suspected drug dealer, but police did not have enough evidence to obtain a search warrant. Instead, police searched his trash.

Question: Did a warrantless search of Greenwoods garbage violate the 4th Amendment?

Ruling: No, once trash is placed on a public curb there is no longer a reasonable expectation of privacy!

• search for specific items listed

• search the place described

• search particular location• issued by a neutral judge

• all supported by probable cause

What is Probable Cause? A reasonable belief that a specific person has committed a crime, and

that a search in a specific location will produce evidence of a specific crime.

Probable Cause Continuum

No Information

Hunch

Reasonable Suspicion

Reasonable Grounds

Probable Cause

Preponderance of the Evidence

Beyond a Reasonable Doubt

United States v. Leon

A facially invalid warrant can be “saved” and the evidence derived from it admissible if the officers executing the warrant reasonably or in good faith relied on the warrant

Good Faith

Good faith reliance does NOT apply if police were reckless or if the warrant is so lacking in probable cause that no officer could reasonably rely on it

Exceptions to the Warrant

Requirement

Warrantless Search & Seizure

1.  Search incident to a lawful arrest 2.  Stop and frisk 3.  Consent 4.  Plain view 5.  Hot pursuit 6.  Vehicles 7. Emergencies 8. Border and Airport

Search Incident To Arrest

Probable Cause (PC) is required Expectation of Privacy is

diminished Arrest of person Arrest in a car

Facts: Terry and two other men were observed by a plain clothes policeman in what the officer described as “casing a job.” The officer stopped and frisked the men and found weapons on two of the Subjects.

Question: Was the search and seizure of Terry a violation of the 4th Amendment?

Stop and Frisk Police who

reasonably think that a person is behaving suspiciously and is likely to be armed may stop and frisk the suspect for weapons. Search may only be for weapons.

Plain View Horton v. California, 496 U.S. 128

(1990)

The Horton test requires the officer to be:

lawfully present at the place where the evidence can be plainly viewed,

Plain View

the officer must have a lawful right of access to the object, and

the incriminating character of the object must be “immediately apparent”

Plain View “Plain hearing” and “plain smell”,

too.

Open Fields and Open Air

California v. Ciraolo (1986): In 1982 police in California were given an anonymous tip of a person growing pot in his backyard, unable to view the drug on foot they took a plane.

The Supreme Court ruled that the immediate area around a home is protected against some intrusions, but this search was conducted from a public vantage point where activities are visible – the air.

Vehicle Exception

From Incident to Arrest to PC…

PC required Scope = whole car Vehicle must be

operable

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Vehicle CheckpointIndividualized suspicion not required

Must not be discriminatory

Lawful for regulatory situationsExamples: Inspection, Registration, License

Unlawful for detecting criminal activityExample: Drug checkpoints

Lawful for information gatheringExample: Homicide, Burglaries, Hit-and-Run

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Pretextual StopOfficer’s motivation for stop irrelevant

Objectively lawful justification is the test for legality of stop.

Not “would” you stop it, but “could” you? Example: Officer’s hunch of drug involvement

does not invalidate traffic stop that is otherwise lawful, e.g., inoperative tail light.

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Duration of Stop

Duration must be reasonable for the original purpose of the stop.

Questions about matters unrelated to original purpose of stop OK if the stop is not unnecessarily prolonged.

Dog sniff OK even if unrelated to original purpose of stop so long as stop is not prolonged.

Original Purpose of Stop

Unlawful to prolong the stop beyond the purpose of the stop, unless: (1) There is reasonable suspicion (or

PC) of another violation of law, or (2) The seizure is terminated and

transitions to a consensual encounter.

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Consent

Authority to consent

Scope of search

Withdrawal of consent

• Consent must be voluntary = No coercion

A Note on ‘Consent’ Searches

In the context of vehicle stops, where the individual is at the side of the road and confronted by a uniformed officer seeking to search his or her vehicle, it is not a stretch of the imagination to assume the individual feels compelled to consent.Where there is little or no justification for a search, requesting consent is especially likely to cause concern because it has all the appearances of a fishing expedition or grasping at straws.

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Consent

When a person voluntarily agrees, the police may conduct a search without a warrant or probable cause.

Consent can transform an otherwise illegal search into a legal one.

Florida v. Bostick

Facts: Florida officers regularly boarded buses during stops and asked passengers for permission to search their belongings.

Terrance Bostick agreed to a search and was arrested for having cocaine.

Is the acquisition of evidence during random bus searches with passenger consent illegal?

No -- the question isn’t if someone was free to leave, but whether or not they felt they can decline the search

Florida v. Bostick

Border/Airport Searches Warrantless

searches of persons and property when entering the country are legal, even without any individualized or reasonable suspicion.

Hot Pursuit Police in hot pursuit of a suspect

are not required to get a search warrant before entering a building that they have seen the suspect enter,

Evidence found during hot pursuit of a suspected felon is admissible, even against people totally unrelated to the pursuit.

Exigent Circumstances PC required Delay will cause loss / escape /

harm Hot pursuit Life in danger Destruction of evidence

Immediate action required

Hudson v. Michigan

Facts: Booker Hudson’s house was searched, but the police did not follow the Knock and Announce rule which requires police to announce and wait 20-30 seconds before entering.

Does the general rule excluding evidence obtained in violation of the 4th Amendment apply to knock and announce rule?

Supreme Court Decision -- No: Having police announce their presence and wait poses a danger to the officer nor did it have anything to do with the seizure of the evidence: “Knock and announce” was implemented to prevent violence, property damage and impositions on privacy not to prevent police from searching a residence

Emergency Situations

In certain life threatening emergencies, the police don’t have time to get a warrant.

The evidence they find in the course of dealing with the emergency is admissible.

Inventory Purpose is NOT for criminal investigations.

Purpose = administrative Requirements:

Lawful impound Standard inventory Inventory conducted in accord with

Standard Operating Procedure (SOP) Inventories should be tied to SOPs

Routine is the key

Other Exceptions to 4th Amendment Protections

Independent source ruleInevitable discoveryParolees, probationers and supervisees

Are there any Fourth Amendment protections left?

Exclusionary RuleFruit of the Poisonous tree

But beware – suppressed evidence may still hurt your client

Search and Seizurein the 21st Century

Reasonable expectations, government intrusions,

andpersonal security

in the information age

Just a few years ago all we used to worry about were these . . .

From fraud to sexual exploitation, gun sales to porn, drug trafficking to terrorism

the Government wants what’s in here . . .

What are the options?

The future presents new issues and problems for the

Criminal Defense Lawyer

The Cloud Social

Media

The Fourth Amendment “ . . . [T]he guaranties contained

in [the Fourth Amendment are not] limited to houses and papers. Their chief aim and purpose was not the protection of property, but the protection of the individual in his liberty and in the privacies of life.”

Rudkin, CJ, dissenting in Olmstead v. United States, 19 F.2d 842 (9th Cir. 1927).

Griswold vs. ConnecticutThe Supreme Court

ruled that the Constitution does not explicitly protect the right to privacy.

The Bill of rights creates

“penumbras” or

zones that establish the right to privacy

Founding Fathers had a unique awareness and understanding of the threat of liberty and privacy rights of U.S. Citizens

That expectation of privacy was officially recognized in the criminal law context in 1967

Katz vs. United States -

“[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in is own home or office, is not a subject of Fourth Amendment protections. . . .

But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967).

Application to email traffic The Fourth Amendment should be

interpreted as extending to a citizen's email the protections that extend to other private expressions “the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.”

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 199 (1890).

Application to email traffic Society reasonably expects that e-

mail will be afforded such protection. Absent unique circumstances, law

enforcement should not be permitted to use sophisticated technological means to interfere with the people's expectation of privacy in their e-mail or e-mail accounts without obtaining a warrant, supported by a neutral magistrate's finding of probable cause.

Data Mining Any use of computing technology to

examine large amounts of data to reveal relationships, classifications, or patterns.

Data Mining In most discussions of the legal and

ethical implications of data mining, privacy is the central concern.

Related to privacy is the right of “confidentiality,” which concerns how personal information is disseminated, and “anonymity,” a form of privacy that “occurs when the individual is in public places or performing public acts but still seeks, and finds, freedom from identification and surveillance.

Data Mining McIntyre v. Ohio Elections

Commission, 514 U.S. 334, 343 (1995), validated the right to anonymity in certain circumstances by recognizing that people should be able to remain anonymous while exercising certain constitutionally protected rights.

The Government Focus Today

A large portion of government searches and seizures today involve the seizure and search of electronic media and information.

The manner in which such searches and seizures of electronic media and information are conducted can become critically important afterwards if criminal proceedings are instituted.

The Government Focus Today

The U.S. Department of Justice's Office of Justice Programs recently published Electronic Crime Scene Investigation: An On-the-Scene Reference for First Responders by the National Institute of Justice, and may be viewed in its entirety on OJP's website.

The Government Focus Today

The publication is a guide for first responders responding to electronic crime scenes, and is a companion to an earlier publication, Electronic Crime Scene Investigation: A Guide for First Responders, Second Edition.

What you should know!

The guide instructs investigators, among other things, to: Document, photograph and secure

digital evidence. Not to alter any electronic device. Exclude unauthorized persons from

the area where the evidence is being collected.

What you should know!

To interview witnesses regarding the use and users of any computers or devices.

To document various facts relating to the electronic devices, as well as to video, photograph or sketch the scene.

Not to alter devices or attempt to explore them on the scene, or even to press a key or click a mouse.

The OJP publication may prove of great assistance to defense practitioners in attempting to suppress the fruits of searches and seizures of electronic information and media.

Counsel should carefully review the facts of any search and seizure of such evidence and interview all witnesses to any search and seizure to ascertain whether these procedures have been followed.

Where’s the Supreme Court

When the Court faces the question of whether any form of personal Internet data is protected by the Fourth Amendment, the answer it gives may determine the course of informational privacy for decades, just as Olmstead v. United States and Katz v. United States did in the previous century.

Where’s the Supreme Court

Yet it is uncertain, at best, that the Court will answer correctly--it has certainly failed to adapt the Fourth Amendment to new technologies before.

See e.g., Hudson v. Palmer, 468 U.S. 517, 525 n.7 (1984).

Kyllo v. United States

Investigatory devices used by police, such as a telescope or GPS unit used to track whereabouts of a container on commercial property or a vehicle.

BUT trackers and thermal imaging used to track activity in one's home violates the expectation of privacy.

City of Ontario v. Quon Seizure of text

messages may be a search

But public employees may have a diminished privacy expectation in mobile devices issued by their employers.

Think Outside the Box

United States v. Demarrias

You must advance the cause

The Supreme Court's interpretation of the Fourth Amendment has left Internet surveillance law to develop in the lower courts

In addition to traditional Fourth Amendment violations, challenge the search based on the Wiretap Act, mirroring the current law of telephone surveillance or other electronic bases

Questions?