Criminal Procedure
Class Five
Today’s Topics
•
•
•
•
•
•
Special Needs: Drug Searches
Special Needs: Road Blocks
Inventory
Border Searches
Consent
Introduction to Exclusionary Rule
Special Needs: Drug Testing
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
Revisit New Jersey v. T.L.O.
• Held warrantless search of student’s purse
was reasonable
• School administrator had reasonable
suspicion to believe student had cigarettes
• Special need: Maintaining school discipline
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
Skinner v. Railway Labor
Executives Association
• Regulatory Scheme: Mandatory testing for
all railroad personnel involved in certain
train accidents
• Suspicionless
• Supreme Court upheld
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?
“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
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?
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
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
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
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
Application
•
•
•
•
Special needs in school
Student’s privacy interest
Character of intrusion
Nature and immediacy of government need
balanced against specific means to address
• Contrast with suspicion-based program
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
Georgia Claims Two Special
Needs
• Sovereign power under 10th Amendment
• Incompatibility of unlawful drug use and
holding high state office
Contrast with Von Raab
• Unique context “symbolic” v. “special”
need
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?
Board of Education v. Earls
(2002)
• Expands Acton to suspicionless testing of
high school students for any extracurricular
activity
Ferguson v. City of Charleston
(2001)
• Invalidated drug testing of pregnant mothers
as violating prohibition against non
consensual, warrantless, suspicionless
searches
Concepts
• Nature of special need asserted for
justification
• Role of law enforcement
• Significance of “benign” motive
Special Needs? - - Road Blocks
Road Blocks are Seizures (Stops)
• Purposes tied to public transportation:
License checks, sobriety checkpoints
• Purposes tied to crime detection: Drug
searches
Individual Stops
• Reasonable suspicion necessary to stop car
and detain driver in order to check license
and registration
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?
Applying Balancing Test
• Government Interest
– Eradicating drunk
driving
• Individual Intrusion
– Extremely limited
– Driver can see all
being stopped
– Locations determined
by guidelines
City of Indianapolis v. Edmond
• Invalidates checkpoint with primary
purpose to discover and interdict illegal
drugs
Questions
• Why isn’t this permissible using the
rationale of border searches?
• Why isn’t this permissible using the
rationale applied to sobriety checkpoints?
• When, if ever, might such road blocks be
permissible?
Special Needs: Inventory Searches
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
Car Inventories
• South Dakota v. Opperman
• Held: Warrantless inventory search of car
impounded for parking violation
permissible
State’s Interests
• Protect owner property while in police
custody
• Protect police from claims of lost or stolen
property
• Protect police and public from potential
danger
Individual Interest
• Diminish expectation of privacy in cars
Arrestee Property
• Illinois v. Lafayette
• Upheld warrantless inventory search of
shoulder bag of man arrested for disturbing
peace
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
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”
Police Discretion
• Colorado v. Bertine
• Rejects less intrusive means analysis for
opening containers during inventory search
• Officer discretion is not controlling factor
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
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
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
Special Needs: Border Searches
General Principles
• Special need beyond traditional criminal
law enforcement
• Evaluated under reasonableness clause
• Heavy state interest
• Diminished expectation of privacy
Location
•
•
•
•
Border
Functional equivalent
Check points (temporary or fixed)
Roving patrols
Officer Conduct
•
•
•
•
•
Routine search
More than routine search
Questions concerning citizenship
Search of automobile at checkpoint
Search of automobile by roving patrol
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
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?
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
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
Roving Patrols
• Almeida Sanchez v. United States (vehicle
search)
• United States v. Brignoni-Ponce (stopped
car to question occupants)
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
Consent Searches
Significant Exception to Warrant
Requirement
• Validly obtained consent justifies
warrantless search, with or without probable
cause
• Not “waiver” of constitutional right
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
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)
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?
Third Party Consent
• Actual Authority
• Apparent Authority
• “Mistake of Law”
Scope of Search
• Objective reasonableness
• Usually defined by its expressed object
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)
Fourth Amendment Remedies
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
Procedures for Challenging
• Motion to Suppress
• Pre Trial
• Different remedies may apply if criminal
defendant prevails, if government prevails
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
Overcoming Presumption
• Allegation of deliberate falsehood or
reckless disregard for truth
• Accompanied by offer of proof
• Applies only to affiant (not to nongovernmental informant)
Challenging Warrantless Search
•
•
•
•
Motion to Suppress
Alleging search violated Constitution
Burden shifts to government to justify
Preponderance burden