Gregory M. Caskey
Judge of the Superior Court, State
of California (Ret.)
Davis v. United States
131 S.Ct. 2419 (6/16/11)
• Issue: Should exclusionary rule be
modified to permit use of evidence seized
by police in reliance on existing Supreme
Court precedent?
– New York v. Belton, 453 U.S. 454 (1981)
– Arizona v. Gant, 556 U.S. 332 (2009)
Ashcroft v. al-Kidd
131 S.Ct. 2074 (5/31/11)
• Issue: Is “motive” relevant when suspected
terrorist is seized pursuant to material
witness warrant?
– When, if ever, is “motive” or “purpose” a
relevant factor in deciding whether a search
or seizure violated the fourth amendment?
Kentucky v. King
131 S.Ct. 1819 (5/16/11)
• Issue: What test should be used to
determine whether police “manufactured”
the exigency?
– Was the conduct of the police preceding the
exigency reasonable?
– Did the police threaten to force entry if
occupants did not open the door?
– Court rejects other tests including any focus
upon the good or bad faith of the officer.
City of Ontario v. Quon
130 S.Ct. 2619 (6/17/10)
• Issue: Was search of government
employee’s cell phone by employer a
violation of the employee’s reasonable
expectation of privacy?
– Questionable whether the employer
conducted a “search” of the cell phone
– Would/should the analysis differ if the cell
phone was owned by the employee?
United States v. Jones
(cert. granted 6/27/11)
• Issue: Did warrantless installation of GPS
tracking device and 24 hour monitoring for
28 days violate Jones’ reasonable
expectation of privacy?
Search Incident to Arrest
• Overview and Perspective
• Leading Supreme Court decisions
– Chimel v. California, 395 U.S. 752
– U.S. v. Robinson, 414 U.S. 218 (1973)
– Arizona v. Gant, 556 U.S. 332 (2009)
• Bright and Not so Bright Lines
Key Factors
• Custodial arrest?
• Where was object (weapon, evidence)
– On the person (or closely associated)?
– Within reach?
• When was the object found (in relation to
the arrest)?
Chimel v. California
395 U.S. 752 (1969)
• When police make an arrest, they may
– The person being arrested;
– Containers in his or her possession (either on
or “closely associated with” the person);
– Weapons or destructible evidence in the “area
within arrestee’s immediate control.”
• “Twin rationales”: Officer safety and
preservation of evidence
Chimel critical distinction
• Any object or container found on the
arrestee’s person or closely associated
with the person at the time of arrest, may
be searched without a warrant.
• A search for weapons or destructible
evidence “in the immediate area” of the
arrestee at the time of arrest is permissible
if the officer had a reasonable belief such
items would be found in the location
Reason for Arrest
• Is the reason the person was placed into
custody a factor in determining whether a
“search incident to arrest” is lawful?
– Search of person or items “closely associated
with the person” vs.
– Search of “area within immediate control” for
weapons or destructible evidence.
Delaying the Search?
• For officer safety, an officer may delay the
search incident to arrest until the arrestee
has been secured. True or False?
– U.S. v. Edwards, 415 U.S. 800 (1974) and
U.S. v. Chadwick, 433 U.S. 1 (1977)
Must be custodial arrest
• A search incident to arrest is limited to a
custodial arrest.
• Fourth Amendment is not violated if an
officer places a person into custody for a
fine-only infraction committed in the
officer’s presence.
– Atwater v. City of Lago Vista, 532 U.S. 318
Use of Force
• An officer may use reasonable force to conduct
a search incident to arrest;
• Preventing an arrestee from ingesting illegal
substances is permissible so long as the force
used is not excessive.
• Obtaining samples of blood, saliva or hair are
reasonable provided the seizure does not
expose the arrestee to an unjustifiable element
of personal risk of infection or pain.
Cell Phones
• Contain vast amount of private
• Should such electronic devices be
accorded greater protection than any other
“file” or “container”?
• Is there a temporal limit to a search of a
cell phone seized at the time of arrest?
– On or closely associated
– “Area of immediate control”
Search of Vehicle
• A search of a vehicle, or containers inside a
vehicle, incident to the arrest of an occupant or
recent occupant is no longer automatically
• Search for weapon only while arrestee is
unsecured and able to access the vehicle (which
should never occur!);
• Search for evidence only if the officer has
“reason to believe” such relevant evidence will
be located therein.
Narrowing the Exclusionary
• Judicially created modification of the
exclusionary rule
• United States v. Calendra, 414 U.S. 338
• United States v. Leon, 468 U.S. 897
Further Narrowing
Arizona v. Evans, 514 U.S. 1 (1995)
Hudson v. Michigan, 547 U.S. 586 (2006)
Herring v. U.S., 555 U.S. 135 (2009)
Davis v. U.S.,___U.S.__, 131 S.Ct. 2419
Herring examined
• Sole purpose of exclusion is deterrence
• Exclusion is a separate issue
• Deterrence tied to culpability of the
officer’s conduct
• Was the officer’s conduct a deliberate,
reckless or grossly negligent disregard of
4th Amendment?
– Simple “isolated” negligence?
– Objectively “reasonable good faith belief”?
When officer is wrong
• Should analysis of good faith depend upon
whether the mistake is one of fact, law or
combination of both?
• Is the officer’s state of mind relevant on
whether his or her conduct was objectively
• Culpability for failing to know the law?
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