Criminal Procedure

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Criminal Procedure

• Class Five

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Todays Topics

• Special Needs Drug Searches
• Special Needs Road Blocks
• Inventory
• Border Searches
• Consent
• Introduction to Exclusionary Rule

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Special Needs Drug Testing
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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

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Revisit New Jersey v. T.L.O.

• Held warrantless search of students purse was
  reasonable
• School administrator had reasonable suspicion to
  believe student had cigarettes
• Special need Maintaining school discipline

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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

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Skinner v. Railway Labor Executives Association

• Regulatory Scheme Mandatory testing for all
  railroad personnel involved in certain train
  accidents
• Suspicionless
• Supreme Court upheld

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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?

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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

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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?

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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

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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

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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

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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

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Application

• Special needs in school
• Students privacy interest
• Character of intrusion
• Nature and immediacy of government need balanced
  against specific means to address
• Contrast with suspicion-based program

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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

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Georgia Claims Two Special Needs

• Sovereign power under 10th Amendment
• Incompatibility of unlawful drug use and holding
  high state office

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Contrast with Von Raab

• Unique context symbolic v. special need

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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?

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Board of Education v. Earls (2002)

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

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Ferguson v. City of Charleston (2001)

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

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Concepts

• Nature of special need asserted for justification
• Role of law enforcement
• Significance of benign motive

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Special Needs? - - Road Blocks
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Road Blocks are Seizures (Stops)

• Purposes tied to public transportation License
  checks, sobriety checkpoints
• Purposes tied to crime detection Drug searches

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Individual Stops

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

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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?

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Applying Balancing Test

• Government Interest
• Eradicating drunk driving

• Individual Intrusion
• Extremely limited
• Driver can see all being stopped
• Locations determined by guidelines

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City of Indianapolis v. Edmond

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

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Questions

• Why isnt this permissible using the rationale of
  border searches?
• Why isnt this permissible using the rationale
  applied to sobriety checkpoints?
• When, if ever, might such road blocks be
  permissible?

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Special Needs Inventory Searches
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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

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Car Inventories

• South Dakota v. Opperman
• Held Warrantless inventory search of car
  impounded for parking violation permissible

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States Interests

• Protect owner property while in police custody
• Protect police from claims of lost or stolen
  property
• Protect police and public from potential danger

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Individual Interest

• Diminish expectation of privacy in cars

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Arrestee Property

• Illinois v. Lafayette
• Upheld warrantless inventory search of shoulder
  bag of man arrested for disturbing peace

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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

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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

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Police Discretion

• Colorado v. Bertine
• Rejects less intrusive means analysis for opening
  containers during inventory search
• Officer discretion is not controlling factor

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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

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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

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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

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Special Needs Border Searches
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General Principles

• Special need beyond traditional criminal law
  enforcement
• Evaluated under reasonableness clause
• Heavy state interest
• Diminished expectation of privacy

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Location

• Border
• Functional equivalent
• Check points (temporary or fixed)
• Roving patrols

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Officer Conduct

• Routine search
• More than routine search
• Questions concerning citizenship
• Search of automobile at checkpoint
• Search of automobile by roving patrol

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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

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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?

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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

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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

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Roving Patrols

• Almeida Sanchez v. United States (vehicle search)
• United States v. Brignoni-Ponce (stopped car to
  question occupants)

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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

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Consent Searches
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Significant Exception to Warrant Requirement

• Validly obtained consent justifies warrantless
  search, with or without probable cause
• Not waiver of constitutional right

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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

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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)

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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?

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Third Party Consent

• Actual Authority
• Apparent Authority
• Mistake of Law

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Scope of Search

• Objective reasonableness
• Usually defined by its expressed object

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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)

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Fourth Amendment Remedies
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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

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Procedures for Challenging

• Motion to Suppress
• Pre Trial
• Different remedies may apply if criminal
  defendant prevails, if government prevails

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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

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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)

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Challenging Warrantless Search

• Motion to Suppress
• Alleging search violated Constitution
• Burden shifts to government to justify
• Preponderance burden