Criminal Law Update

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Criminal Law Update Review Developments in 4th
Amendment Law Jessica Smith, School of
Government, UNC-Chapel Hill N.C. Superior Court
Judges Conference, October 2002
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• Bus seizures searches
• Stops based on anonymous tips
• Entry into search of homes
• Special needs cases

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Question 1 What standard for searches seizures
is stated in the 4th Amendment?

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Fourth Amendment 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 . . . .

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Reasonableness
Balancing of intrusion into privacy v. promotion
of legitimate govt interests

• Criminal context generally requires probable
  cause Sometimes less is OK sometimes more is
  needed
• Other contexts probable cause not required

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Searches Seizures on Buses Question 2 3
plain-clothed officers, carrying concealed
weapons wearing visible badges board bus at
terminal. One kneels at drivers seat, not
blocking aisle/exit. 2 others go to rear 1
remains there 1 works towards front, talking to
passengers saying its a drug weapon
interdiction. As officer moves forward, he steps
aside so as not to block the aisle. Officer
doesnt inform passengers of right to refuse/not
cooperate. When he approaches Ds, he notices
their heavy baggy clothes despite warm weather.
Officer asks if they mind if he checks their
persons. They agree contraband is found. 2a)
Was there an unconstitutional seizure? 2b) What
standard do you apply to the seizure
determination? 2c) Was there an unconstitutional
search? 2d) Why or why not?

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Searches Seizures on Buses
United States v. Drayton, 122 S.Ct. 2105
(6/17/2002)

• No 4th Amend. violation
• Defendants werent
• seized
• Search valid b/c consent
• was voluntary

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Searches Seizures on Buses
Seminal Bus Seizure Case Florida v. Bostick, 501
U.S. 429 (1991)
Bostick Rule Officers can approach bus
passengers at random, ask questions request
consent to search, provided a reasonable person
would feel free to refuse

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Searches Seizures on Buses

• Bostick analysis
• Free to leave standard for whether theres
  been a seizure doesnt fit for buses
• Bus passengers may not want to get off risk
  missing bus movements are confined but not by
  police coercion but by fact that theyre on a bus

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Searches Seizures on Buses
Bostick Rule Officers can approach bus
passengers at random, ask questions request
consent to search, provided a reasonable person
would feel free to refuse

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Searches Seizures on Buses
Bostick remanded on whether seizure occurred,
noting 2 factors (1) officer didnt remove
gun/use it in a threatening way (2) officer
advised passenger he could refuse consent to
search

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Searches Seizures on Buses
New wrinkle in Drayton Must the officers tell
bus passengers of their right not to
cooperate? 11th Cir. held they did

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Searches Seizures on Buses

• Applying Bostick, Drayton reversed no seizure
  occurred warning not required
• no weapons used no intimidating movements
• no blocking exits, threats, or commands
• spoke to passengers individually in quiet,
  polite voice

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Searches Seizures on Buses
Based largely on the same facts, Drayton also
held that the consent to search was voluntary

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Searches Seizures on Buses
Wrap Up

• Seizure standard whether a reasonable person
  would feel free to decline officers requests or
  terminate the encounter not free to leave
• No per se rules re notification of rights

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Searches Seizures on Buses

• Consider whether weapons were used, tone of
  voice, show of authority, blocked exits, threats
• Factors that have little weight that officers
  are uniformed or have holstered weapons

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Searches Seizures on Buses
2a) Unconstitutional seizure? No. 2b) What
standard? Would a reasonable person feel free to
refuse. 2c) Was there an unconstitutional
search? No. 2d) Why or why not? Consent was
voluntary.

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Stops Based on Anonymous Tips
Question 3 Anonymous caller tells police a young
black male standing at XYZ bus stop wearing a
plaid shirt has a gun. Officers go there see 3
black males 1 is wearing a plaid shirt. Officers
approach him, frisk him seize a gun. Was the
stop constitutional? Why or why not?

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Stops Based on Anonymous Tips
Florida v. J.L., 529 U.S. 266 (2000)
Held Stop was unconstitutional no reasonable
suspicion

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Stops Based on Anonymous Tips

• J.L. Analysis
• Officers need reasonable suspicion for a stop
  frisk (Terry v. Ohio, 392 U.S. 1 (1968))
• When known informant gives tip, tipsters
  reputation can be assessed tipster can be held
  accountable such a tip can satisfy reasonable
  suspicion . . .

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Stops Based on Anonymous Tips

• J.L. continued
• Anonymous tips alone seldom show tipsters basis
  of knowledge or veracity
• Such tips need sufficient indicia of
  reliability to create reasonable suspicion
  typically obtained through corroboration . . .

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Stops Based on Anonymous Tips

• Here, no indicia of reliability no predictive
  info. testing knowledge or credibility no
  explanation for knowledge no basis for believing
  had inside info.
• Accurate description location appearance
  doesnt show knowledge of concealed criminal
  activity tip must be reliable in its assertion
  of illegality

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Stops Based on Anonymous Tips

• Rejects firearm exception
• Reserves issue of whether same rule applies to
  anonymous tips alleging great danger, e.g.,
  carrying a bomb

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Stops Based on Anonymous Tips

• Also reserves on whether rule applies to stops
  searches in places where expectation of privacy
  is diminished e.g., airports, schools

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Stops Based on Anonymous Tips
Again, J.L. said Accurate description location
appearance doesnt show knowledge of concealed
criminal activity tip must be reliable in its
assertion of illegality

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Stops Based on Anonymous Tips
Question 4 Cops get anonymous tip that woman had
cocaine predicting shed leave a specific
building at a certain time, get in a car matching
a particular description drive to a named
motel. Cops follow the woman, verify tipsters
info. stop her. Is the stop constitutional?

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Stops Based on Anonymous Tips
Alabama v. White, 496 U.S. 325 (1990)
Stop upheld once it was clear that tipster
accurately predicted movements, it was reasonable
to think he had inside info. about the woman
credit his assertion re drugs

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Stops Based on Anonymous Tips
White was a close, borderline case J.L. said
Knowledge about a persons future movements
indicates some familiarity with that persons
affairs, but having such knowledge does not
necessarily imply that the informant knows, in
particular, whether the person is carrying hidden
contraband

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Stops Based on Anonymous Tips
Tip Fails Under J.L. State v. Hughes, 353 N.C.
200 (2000) State v. Brown, 142 N.C. App. 332
(2001)
Tip OK Under J.L. State v. Allison, 148 N.C. App.
702 (2/19/2002)

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Stops Based on Anonymous Tips State v. Hughes,
353 N.C. 200 (2000) Officer A tells Officer B a
confidential reliable informant told him a
dark-skinned man named Markie, 300 lbs., about
6, 20-30 yrs. old, short hair, clean cut, baggie
pants arriving w/drugs in Jacksonville on bus
from NYC, possibly at 530. Says Markie
sometimes comes to Jacksonville on weekends
before dark, takes taxi from station carries
overnight bag headed to N. Topsail. B tell C who
goes to station 1 bus from NYC already in 1
from Rocky Mount (NYC transfer point) expected at
330. Bus arrives officer didnt see if D
exited D matched physical description had
overnight bag (officer didnt recall knowing
name, clothing description, or time of arrival).
D gets in taxi headed to Topsail other
locations officers stop before road split off to
Topsail drugs found.

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Stops Based on Anonymous Tips
Was tip sufficient to support stop?

• Held Ct. App. decision reversed stop wasnt
  legal
• No info. supporting assertion tipster was
  reliable tip must be treated as anonymous . . .

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Stops Based on Anonymous Tips

• Tip itself not enough for reasonable suspicion
  (vague description of D could describe many
  persons didnt contain details to predict future
  action)
• Corroboration insufficient (didnt see him get
  off bus, time wrong, stopped him too early to
  tell if he was going to Topsail)

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Stops Based on Anonymous Tips
Tip Fails Under J.L. State v. Hughes, 353 N.C.
200 (2000) State v. Brown, 142 N.C. App. 332
(2001)
Tip OK Under J.L. State v. Allison, 148 N.C. App.
702 (2/19/2002)

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Stops Based on Anonymous Tips
Police get tip 2 black males rolling marijuana
cigarettes selling cocaine on porch of house at
XYZ address 1 in black t-shirt jeans, other in
gray t-shirt jeans. Officers arrive no one is
there. 3 black males black female on porch of
house next door 2 have clothes matching
description D in black pullover camouflage
pants. D is frisked drugs found
Was tip sufficient to support stop frisk?

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Stops Based on Anonymous Tips
COA held trial judge reversed tip wasnt
OK State conceded indistinguishable from J.L. Not
even minimal corroboration D didnt meet
description given males not found on specified
porch

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Stops Based on Anonymous Tips
Tip OK Under J.L. State v. Allison, 148 N.C. App.
702 (2/19/2002)
Tip Fails Under J.L. State v. Hughes, 353 N.C.
200 (2000) State v. Brown, 142 N.C. App. 332
(2001)

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Stops Based on Anonymous Tips Woman approached
officers on duty said overheard 4 black males in
nearby restaurant bar discuss robbing the place
saw them pass black handgun around gave 1
officer her phone number. Officer went, saw 4
black males in bar, identified D as involved in
prior gun-related activity. Officer approached
men asked them to step outside D was holding
pants up as if something was dragging them
down frisked found gun
Was there reasonable suspicion for the stop?

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Stops Based on Anonymous Tips

• Held Yes, distinguishing J.L. Hughes
• Face-to-face tip, not anonymous call (officer
  could observe demeanor to assess credibility
  accountability)
• Tipster explained how she got info.
• Tip was corroborated officer had independent
  supporting info.

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Stops Based on Anonymous Tips
Wrap Up

• Anonymous tip not likely to be enough
• Need indicia of reliability usually obtained by
  corroboration
• Not enough just to corroborate description
  location

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Stops Based on Anonymous Tips

• Looking for corroboration that criminal activity
  is afoot remember White was a close case
• Best tips detailed, accurate, predictive,
  indicate basis for information reliable re
  assertion of illegality

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Entry Into Search of Homes
Question 5 After a tip about drug sales at Ds
apartment, officers observe apartment, see what
appear to be drug sales. Officers then enter Ds
home, arrest search him find drugs other
contraband. Officers had probable cause to arrest
D but no arrest/search warrant. Was the entry
into the home legal? Why or why not?

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Entry Into Search of Homes
Kirk v. Louisiana, 122 S.Ct. 2458 (June 24, 2002)
(per curiam)
La. court held that entry was proper b/c had p.c.
to arrest
U.S. S.Ct. reversed remanded entry not legal
unless exigent circ. existed La. decision
violated Payton

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Entry Into Search of Homes
Payton v. New York, 445 US 573 (1980)
Payton Rule To search a house, officers need
either (1) a warrant or (2) probable cause
exigent circumstances

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Entry Into Search of Homes

• Probable cause exigent circumstances allow
  officers to
• Enter secure so that exigency no longer exists
• Seize items in plain view cant open dresser
  drawers or look in closed containers
• What about going back in?

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Entry Into Search of Homes
Question 6 Dispatchers get 911 call saying V
stabbed. Officers arrive 1154 pm V lying at
door with throat cut. Do protective sweep, see
evidence but seize nothing. Officers secure scene
with yellow tape cover door. At 1220 am, crime
lab technician arrives. They walk her around,
pointing out evidence seen in plain view during
sweep. Detective arrives 101 a.m. He, officers
the crime lab tech. go in again tech. takes
photos, video blood samples of evidence seen in
plain view during initial sweep. No warrant. D
says entry into house by tech. detective
violated his rights. Suppress?

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Entry Into Search of Homes
State v. Phillips, -- NC App. (7/2/2002)
Entry was proper Applies constructive seizure
theory from State v. Jolley, 312 NC 296 (1984)
plain view evidence was seized when officer
secured the scene

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Entry Into Search of Homes

• Probable cause exigent circumstances allow
  officers to
• Enter secure so that exigency no longer exists
  (protective sweep)
• Seize items in plain view cant open dresser
  drawers or look in closed containers
• What about going back in?

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Entry Into Search of Homes

• Probable cause exigent circumstances allow
  officers to
• If premises were secured, can reenter take
  items seen in plain view during initial entry on
  theory of constructive seizure
• Best practices

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Special Needs Cases
Question 7 The local school board has a policy
requiring all students who participate in
competitive extracurricular activities to submit
to drug testing. Students go into a bathroom
stall, produce a urine sample turn it over to a
monitor who listens from outside the door for
tampering. Constitutional? What standard applies?

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Special Needs Cases
Bd. of Educ. of Indep. School v. Earls, 122 S.Ct.
2559 (6/27/2002)
Held Policy is constitutional special needs
case no requirement of a warrant probable
cause balance interests

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Special Needs Cases

• Why discuss Earls?
• Special needs raised to justify suspicionless
  searches (e.g., Ferguson, 532 U.S. 67)
• Full circle . . .

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Special Needs Cases
Reasonableness balancing privacy interests v.
legit. govt interests generallybut not
always--requires probable cause Special needs
exceptions in certain contexts, special needs
beyond normal need for law enforcement make
warrant probable cause impracticable

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Special Needs Cases

• Special needs in public schools need for swift
  informal discipline need for freedom to
  maintain order in school
• Other special needs contexts include probation
  system (special need supervision)

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Special Needs Cases
Special needs doesnt mean free for all Still
requires balancing of intrusion on individual
privacy v. legitimate govt interest In Earls
students limited expectation of privacy
minimally intrusive nature of test v. govt
concern in preventing drug use effectiveness of
policy