Effective Search and Seizure

by Patrick Fagan

Effective Search and Seizure

by Patrick Fagan

The United States Supreme Court and a few U.S. Appeals Courts have adjudicated cases that revolve around the complexity of search and seizure. Proper knowledge of this issue will increase success in court for the law enforcement officer. Several judicial reviews have been coalesced in this article to form a guideline for the police who effect search and seizures upon individuals and vehicles.

Often at the crux of a search and seizure is probable cause - apparent and reliable facts that create a reasonable belief that a crime has been or is being committed. Officers may now be held liable for technicalities stemming from lack of probable cause. In Malley v. Briggs(1), the Supreme Court decided that the police are not entitled to absolute immunity from civil damages. A Rhode Island state trooper acted on a court-approved wiretap that entailed the following conversation: Caller says, "I can?t believe I was token [sic] in front of Jimmy Briggs" ? caller states he passed it to Louisa. Paul says, "Nancy was sitting in his lap rolling her thing."(p.1099) Information gleaned from the wiretap culminated with the arrest of at least twenty people but with no indictment from the grand jury. The Chief Justices ruled that the trooper had failed to establish proper probable cause to justify the affidavit. Although a judge had authorized the warrant, a reasonable police officer should have known that in this instance probable cause was insufficient. The police may no longer rely blindly on the authority of a magistrate.

In any occurrence, articulable facts must be distinguished before enacting a stop, and these facts must be expanded before a search and seizure is conducted. A person may not be immediately searched once he is detained. However, Terry v. Ohio(2) allows for a protective patdown of a person?s clothing when suspicious activity alerts the officer to some danger. Any search under Terry v. Ohio must be used to discover weapons, though, not evidence of a crime. In Minnesota v. Dickerson(3), the defendant was seen evasively leaving a building known for cocaine traffic. The officers ordered the man to stop and submitted him to a patdown. A lump was detected in a coat pocket and manipulated by an officer during the probe. The object was removed and identified as cocaine. This stop and patdown was ruled constitutional, but the seizure of the drug was suppressed. The officer never thought the lump to be a weapon; therefore, the continued exploration of the pocket was unconstitutional. Only after its illegal removal was the lump recognized as cocaine.

In Sibron v. New York(4), a patrol officer observed Sibron in a restaurant with three known addicts. Sibron was taken to the street by the officer to be questioned.. This officer had not overheard any of Sibron?s conversation nor had he witnessed any exchanges between Sibron and the addicts. Nevertheless, Sibron was searched and heroin was retrieved from his pocket. The Supreme Court ruled that no probable cause existed before the search thereby derogating the officer?s justification to search for weapons. Chief Justice Warren established in Sibron v. New York(4), "The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous."(p.1903)

To further examine the thin line as to what constitutes legal or illegal probable cause, the Supreme Court adjudicated Brown v. Texas(5) and Michigan v. DeFillippo(6). In Brown v. Texas, two police officers arrested a man who refused to identify himself and explain what he was doing in an alley. The premise for the arrest was a Texas statute that makes refusal of identity and address a criminal act. However, the person must be lawfully stopped. The officers claimed that the man had been approaching another bystander but upon observing the police, he walked away in the opposite direction. Chief Burger stated, "Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant?s right to personal security and privacy tilts in favor of freedom from police interference."(p.2639) The conviction was overturned.

Michigan v. DeFillippo(6) was similar. Detroit police happened upon a man and a woman in an alley. The woman was in the process of lowering her pants. Officers requested identity from the man, which was adamantly refused. The police then conducted a patdown search, which produced the discovery of narcotics. Chief Burger claimed, "Here, the arresting officer had abundant probable cause to believe that respondent?s conduct violated the ordinance. Respondent?s presence with a woman in the circumstances described clearly was behavior warranting further investigation under the ordinance, and respondent?s responses to the request for identification constituted a refusal to identify himself as the ordinance required."(p.2629) In this instance the conviction was upheld.

Automobile searches have proven controversial. Warrantless searches may be conducted when they follow a lawful arrest or when probable cause has been gathered. However, this type of investigation often incurs confusion with its applicability.

New York v. Belton(7) negated many of the intricacies that derived from automobile searches. Belton?s search centered on an examination of the passengers? compartment that commenced after the occupants had been legally arrested and placed, in handcuffs, on the sidewalk. A jacket containing cocaine was then discovered inside the car. The Supreme Court found this search to be constitutional and incident to a lawful arrest. Justice Stewart declared, "Not only may the police search the passenger compartment of the car in such circumstances, they may also examine the contents of any containers found in the passenger compartment. And such a container may be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have."(p.2860) The Justice went on to define a container as "any object capable of holding another object. It includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like."(p.2864)

United States v. Ross(8) dictated a much more extensive search. An informant gave District of Columbia police officers a drug dealer?s description. The police also received information that the dealer stored narcotics in his vehicle. This vehicle was later located which precipitated the driver?s arrest. An officer opened the trunk; then he seized and opened a sealed paper bag that contained heroin. The car was then driven to the local precinct where another search - detailed and warrantless - instituted more inculpatory evidence.

Chief Justice Stevens edified this opinion: "Where police officers have probable cause to search an entire vehicle, they may conduct a warrantless search of every part of the vehicle and its contents, including all containers and packages, that may conceal the object of the search. The scope of the search is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. For example, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase."

The Court collectively held that, "Police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant,"(p.2159) but, "the probable cause determination must be based on objective facts that could justify the issuance of a warrant by a magistrate, and not merely on the subjective good faith of the police officers. As we have seen, good faith is not enough to constitute probable cause. That faith must be grounded on facts within knowledge of the officer which in the judgment of the court would make his faith reasonable."(p.2164)

California v. Acevedo(9) augmented the New York v. Belton case. A man carrying a small paper bag was seen leaving an apartment known for cocaine activity. He placed the bag in the trunk of his car. After driving away, police stopped the vehicle and opened its trunk. The officers seized the bag and identified the contents as marijuana. Acevedo entitled police to conduct a warrantless search of any container within an automobile if that container was suspected to conceal incriminating evidence. In this instance police had only probable cause to search the bag, not the entire vehicle. Nonetheless, Acevedo granted a search of containers premised on probable cause whereas a Belton search should follow a lawful arrest.

The Chief Justices declined to submit an acceptable time lapse between the actual arrest and the vehicle search. However, in United States v. Sharpe(10) the court announced that for a detention to remain acceptable the police must pursue the investigation diligently. In this case, the complainant was detained for 20 minutes before the inception of the vehicle?s search. Still, the Supreme Court believed that the agent who conducted the matter did so with no intentional delays. Also, in Florida v. Royer(11) the court noted, "an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop."(p.1320) For a retroactive, United States v. Place(12) revealed a detention that lasted for 90 minutes. A man?s luggage was seized until a narcotics K9 was brought to the airport to confirm officers? suspicion of criminality. The police had prior knowledge of the man?s arrival but had not prepared for the essentiality of the drug dog. Place was reversed.

The consent to search has become a very effective and important part of legal search and seizures. This investigative tool is a boon to the criminal justice system from the higher courts in that it returns limited power for conducting warrantless searches to patrol officers. It is more of a gift when one realizes that suspects often grant permission to conduct a search regardless that they are actually concealing culpable evidence. Unlike other aspects of search and seizure, the consent to search is not littered with technicalities that protect criminals; nevertheless, an improper consent must be and can be avoided with the study of several cases.

The consent to search must be wholly voluntary; it may not be coerced or implied in any manner. A trooper in South Carolina received some skepticism from the Fourth Circuit Court of Appeals regarding his investigative ploy in United States v Lattimore(13). The trooper stopped Lattimore for excessive speed and requested consent to search Lattimore's vehicle. Permission was verbally granted by Lattimore to conduct the search, but the trooper asked him to sign a consent form, which Lattimore inevitably signed. The trooper conducted a search and discovered 95 grams of cocaine base and other drug paraphernalia.

While Lattimore and the trooper sat in the patrol car to prepare the written consent, the trooper's video camera recorded the following conversation:

Trooper: Okay, you gave me a verbal consent, . . . this is written consent, okay. Let me explain this paragraph right here. Says I have [in] no way forced you, threatened you, . . . or compelled you 'til [sic] I may search your vehicle. You understand that?

Lattimore: Mm- hmm.

Trooper: I need your signature or an X on the bottom. Again, it's just giving me consent.

Lattimore: On that, what's the difference on that?

Trooper: What [do] you mean?

Lattimore: If I say yes or I say no, it's still ....

Trooper: Well, let me explain something to you. I'm on a special team. I travel around the state. This is all I do. I search-

Lattimore: Uh- huh. I was watching that on . . .

Trooper: - - 97 percent of the cars I stop. It don't matter if you're 18 to 80 years old, you're black, white, red, Indian, Hispanic. I don't care what you are. That's all I do. You say you saw it on the news?

[The two discuss a television program showing highway patrol officers.]

Lattimore: Yeah, and I seen where [sic] they pulled a guy over, and they, you know, asked him the same thing you're asking me- - whether they could search his car or not. And, um, what's the difference? If you do or you don't, it's gonna happen anyway, right?

Trooper: Not really. If you don't, I feel you're hiding something. Therefore, I'll call a drug dog right up the road to come down here and let him search your car.

Lattimore: That's what I'm saying. It don't really make no difference.

Trooper: Well,- -

Lattimore: That's what I'm saying.

Trooper: - - there's certain reasons why we do that.

Although Lattimore's conviction was upheld and his consent deemed valid, the court remained wary with part of the trooper's audio. Even if the trooper had exceeded the proper limits for requesting the written consent (the court ruled that the trooper did not exceed the proper limits), the court claimed that the oral consent had been legally established. And United States v Thompson(14) declared that refusal of written consent does not revoke oral consent. It was the trooper's remark concerning the "drug dog" that premised the court's skepticism. The court stated:

"In view of the Government's concession that Trooper Frock did not possess the reasonable suspicion necessary to detain Lattimore to permit the drug dog to sniff his automobile, if Lattimore had not already given a voluntary oral consent to the search, Trooper Frock's assertion that he would 'call a drug dog' to search the automobile if Lattimore refused written consent would raise serious questions concerning the voluntariness of his consent."

Lattimore had also claimed that his detention was illegal because he was stopped for a traffic violation and that the trooper had no adequate probable cause to investigate for additional criminal activity. The court disagreed because the trooper requested consent after the citation was issued and the ensuing conversation was consensual. Thus, the court believed that Lattimore was not being detained and that a reasonable person would have felt free to decline the trooper's request.

Another situation involving when a detainee may feel free to leave arose in Ohio v Robinette(15). Robinette was asked permission to search his car after a speeding citation was issued. This case engendered much controversy for it appeared that thousands of motorists were being delayed and subjected to a "fishing expedition." Despite some evidence that patrol officers in Ohio were searching vehicles just to practice their "drug interdiction technique," the Supreme Court professed that no officer had to inform a detainee beforehand that he (detainee) was free to leave.

In Bumper v North Carolina(16), the police were not as fortunate--the consent given was gained by coercion. The petitioner's grandmother, Mrs. Leath, was approached by four law enforcement officers and informed that they had a warrant to search her residence. The warrant was not read to her and she never saw this warrant; however, she allowed the police to conduct a search that eventually produced incriminating evidence. At trial, the prosecution asserted that although the police had a search warrant, the search was conducted based on Mrs. Leath's affirmative consent. The Supreme Court did not concur:

"When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by [391 U.S. 543, 549] showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, [391 U.S. 543, 550] or fails to show that there was, in fact, any warrant at all. When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion - albeit colorably lawful coercion. Where there is coercion there cannot be consent."

Thus far, only issues regarding consent to search granted by the individual in question have been discussed. It is advisable that one should also consider the guidelines pertaining to a second party consenter. These guidelines usually contain a dilemma with two court phrases: mistake of law and mistake of fact.

Mistake of law is discussed in United States v Whitfield(17). Whitfield's mother refused to sign a written consent form but allowed FBI agents to conduct a search of her son's room. The agents had confirmed that Mrs. Whitfield owned the home, her son was not paying rent, and his bedroom door was not locked. Accordingly, the agents believed that they had received a legal consent. The Circuit Court of D.C. disagreed, however. This appellate court proclaimed that although the agents truly believed Mrs. Whitfield could give an affirmative consent, the agents had misinterpreted the law in this situation because the mother had no authority to allow a search of her son's room.

Mistake of fact is discussed if Illinois v. Rodriguez(18). Rodriguez had apparently beaten his girlfriend, Ms. Fischer, who had called the police from her mother's house. Ms. Fischer told the police that Rodriguez was at their apartment and took the police to it. She took a key from her purse, unlocked the door, and let them in. In the process of arresting Rodriguez, the police observed--in plain view--cocaine and other drug paraphernalia. It was learned at trial that Ms. Fischer had not lived at Rodriguez's apartment for at least a month, she had never contributed to the rent, and she never told Rodriguez that she had a key to his apartment. The Supreme Court held that these instances were mistakes of fact and that the police reasonably believed Fischer could give a legitimate consent.

A similar situation developed in People v Kramer(19). Because Kramer was past-due three months with his rent, his landlord entered Kramer's apartment and noticed marijuana plants within. Upon arrival, the police were immediately taken to the apartment; subsequently, Kramer was arrested. The appellate court ruled that the police only assumed the landlord had legal access to the apartment. Since landlords cannot usually assent to a search of a tenant's property, the police officers' assumption was a mistake--a mistake of not gathering enough facts. The court warned that "police officers may not always accept an invitation to enter premises. Even if the consenter claims to live on the premises, the officers must make further inquiry if the surrounding circumstances would raise a doubt of that claim."

Search and seizure is a powerful tool for law enforcement but one that any person would take as a personal affront. Law enforcement personnel must be educated with the legal and illegal procedures of this investigatory process for the legislature views this intrusive method seriously. In 1995, a measure was introduced to the House of Representatives that would provide the Fourth Amendment with an addition regarding search and seizure. This bill would have allowed unlawfully seized evidence to be considered in court if police had a reasonable belief that they were acting legally. The bill was rejected with a vote of 303 to 121.

Search and seizure of the individual and of the automobile is a complex issue in which the rules seem to change often. The United States Supreme Court decisions involving the Fourth Amendment purport to guide police conduct. Notwithstanding, the police should accept the Court?s determinations as a learning tool and continually educate themselves.

(1) Malley v. Briggs, 475 U.S. 335 (1986)

(2) Terry v. Ohio, 392 U.S. 1 (1968)

(3) Minnesota v. Dickerson (1993)

(4) Sibron v. New York, 392 U.S. 40 (1968)

(5) Brown v. Texas, 443 U.S. 47 (1979)

(6) Michigan v. DeFillippo, 443 U.S. 31 (1979)

(7) New York v. Belton, 453 U.S. 454 (1981)

(8) United States v Ross 456 U.S. 798(1982)

(9) California v. Acevedo, 49 CrL 2210 (1991)

(10) United States v. Sharpe, 470 U.S. 675 (1985)

(11) Florida v. Royer, 460 U.S. 491 (1983)

(12) United States v. Place, 462 U.S. 696 (1983)

(13) United States v Lattimore, 4th Cir. (June 1996)

(14) United States v Thompson, 876 F.2d 1381, 1384 (8th Cir.) cert. denied, 493 U.S. 868 (1989)

(15) Ohio v. Robinette, ___ U.S. ___ (November1996)

(16) Bumper v. North Carolina, 391 U.S. 543 (1968)

(17) United States v Whitfield, 939 F.2d 1071 (D.C. Cir. 1991)

(18) Illinois v. Rodriguez, 497 U.S. 177 (1990)

(19) People v Kramer, 562 N.E.2d 654 (Ill. App. 4 Dist. 1990)

Other cases of interest regarding consent to search:

United States v. Watson, 423 U.S. 411 (1976)

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)

Florida v. Jimeno, 500 U.S. 248 (1991)

QUESTION AND ANSWER SESSION

A vehicle is pulled over for a traffic stop. The driver is asked to step from his vehicle, and a weapons sweep is performed of the immediate reach area of the passenger compartment before the occupant is allowed to sit back down. This sweep reveals a small quantity of marijuana that was in a CLOSED ashtray. Is this contraband admissible in court, and if so, under what rule. I had always thought that it falls under the plain-view rule.

Plain view evidence is unconcealed evidence inadvertently seen by an officer engaged in a lawful activity. If the incriminating evidence is in a CLOSED container, then it is concealed evidence. It could not possibly be considered plain view evidence if the police officer had to open the ashtray to see it.

I hope you will review the U.S. Supreme Court cases that I have listed below. The syllabi are great learning tools and contain actual scenarios involving search and seizure regarding plain view evidence.

Texas v Brown 460 U.S. 730

Horton v California 496 U.S. 128

Harris v United States 390 U.S. 234

Carroll v United States 267 U.S. 132

If a house has burned down, the fire has been extinguished, and firefighters have left the scene, do the police need a search warrant to investigate for arson?

Arson is a crime and its investigation must be handled as any other crime investigation would. If the police are at the scene during the initial blaze, then they are legally at the scene and any incriminating evidence observed therein would be admissible in court; however, if the fire emergency has ceased then the police must have either a warrant or consent to search. Also, the mere occurrence of a fire is not enough probable cause to justify a warrant.

Please see Michigan v. Tyler, 436 U.S. 499.

The police have stopped a vehicle. This stop is based on proper probable cause gleaned from a reliable informant who claims there will be some evidence to a previous crime within the vehicle. The occupant of the car offers no readily circumstances to justify a search of the vehicle and does not give consent to search. The police do not arrest the occupant but take the car to the station to conduct a thorough search. Is this legal?

If the police had proper probable cause - as you stated - then a warrant to search the car would no doubt be granted anyway. There is no difference with making the person wait on the roadway while a warrant is sought or taking the car to the station to conduct an immediate search. In either instance, the person's freedom will be affected. So the police can take the car to the station to conduct a search when there is adequate probable cause to do so. There was a case adjudicated by the U.S. Supreme Court in 1970 that is very similar to this scenario (399 U.S. 42).

An individual walks into the police department to take care of some business, he had no warrants, but is currently on probation for prior drug charges. While he was in the police station, the police officer thought he smelled marijuana smoke on the individual. The police officers conducted a search of the person. After the search of the individual, and finding nothing on him, they took the individual outside of the police station and searched this individual?s vehicle.

They found methamphetamine during the search. The individual was arrested for possession of meth. Is the police officer believing he smelled marijuana probable cause for a warrantless search? Did the police have the right to search the individual?s vehicle after finding nothing on the individual and with the individual not in or near his vehicle at the time they decided to search it?

I do not know the legal aspects of probationers in Iowa (question came from Iowa), but in Mississippi any person on probation for a drug related incident is subject to have his car searched. Marijuana smoke detected on a probationer is ample probable cause to search the suspect's vehicle if it were driven by the suspect to his current location. I feel that this scenario is a little broad though. I cannot imagine a police officer in this situation not asking for consent to search so that he could negate any doubt about legal search and seizure. If consent were refused, then the suspect's probation officer could be called to inform him of the situation and the uncooperation of the probationer. The probationer will almost always attempt to avoid the calling of his probation officer. Also, if the vehicle is in a public parking lot, the officer can certainly request a K9 unit to sniff the perimeter of the car in order to gain sufficient probable cause to search. These previous statements are alternatives for any police officer. Perhaps they will not benefit you, a student, but I do not intend to change or avoid your subject. In this situation - and premised solely on the fact that the person is on probation - I believe any police officer would have adequate probable cause to search the suspect's vehicle.

An officer asks the owner for permission to search his car. The owner grants permission. The officer searches the inside of the passenger compartment and finds only a small briefcase. The officer then asks the owner if he can search the briefcase. Permission is granted and the police officer begins the search. There is nothing inside the briefcase but some papers. But when the officer decides to search in some mini-pockets on the briefcase lid, the owner grabs for the briefcase and tells the officer to stop searching. The officer felt a bulge in the pocket but was unable to ascertain what it was without removing it from the pocket. Nevertheless, the officer removed the object and handed the briefcase back to the owner. The bulge was cocaine. Was the officer correct in seizing this contraband?

No, the officer was not correct. I know that it must be very difficult for an officer to terminate a search once consent is given to search. This undoubtedly increases the officer's suspicion. Suspicion must be even more aroused when the person says something to the extent of, "Yes, you can search my car but do not open the trunk." Regardless, if the officer had not proved that the bulge was cocaine before the consent was withdrawn then the cocaine is fruit of an illegal search. Please see the below cases for more on consent to search.

412 U.S. 218 (1973) Schneckloth v. Bustamonte

415 U.S. 164 (1974) United States v. Matlock

110 S.Ct. 2793 (1990) Illinois v. Rodriguez

111 S.Ct. 1801 (1991) Florida v. Jimeno.

The police went to John's house to see if a wanted suspect was there. They had no warrant. John answered the door and a distinct odor of marijuana was detected by the officers. The officers entered the house and found three other persons sitting around a coffee table. None of these persons were who the police were looking for. Based on the odor of marijuana, though, the police requested a search warrant for the entire house. John and his three friends were detained at the house while an officer went to get the warrant. The three friends tried to leave but the officers refused to let them until the search warrant was brought back. Once the warrant was presented, the police searched the house, John, and the three friends. My question is this: Can the police detain the three friends in this situation while a search warrant is being sought?

This is a very broad scenario that is missing some other important information, but the U.S. Supreme Court has referenced a situation similar to this in Rawlings v. Kentucky (448 U.S. 98). In this case, marijuana seeds were in plain view of police officers legally on the premises. The occupants were told that they could leave the house only if they consented to a search. Consent was not given. Police then requested a warrant to search the house and planned on using that warrant to search the occupants. Forty-five minutes passed before the warrant was presented. However, the Supreme Court said that even this delay was unacceptable and detaining the persons until the warrant was issued violated the Fourth and Fourteenth Amendments for the occupants. See also: Ybarra v. Illinois (444 U.S. 85)