Criminal Procedure, Class V

Criminal Procedure
Class Five
Today’s Topics
Special Needs: Drug Searches
Special Needs: Road Blocks
Border Searches
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
• Effective means of deterring drug use
• Assist in safeguarding public
• Too difficult to require after serious
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?
• 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
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
• 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
• Sovereign power under 10th Amendment
• Incompatibility of unlawful drug use and
holding high state office
Contrast with Von Raab
• Unique context “symbolic” v. “special”
• 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
• Expands Acton to suspicionless testing of
high school students for any extracurricular
Ferguson v. City of Charleston
• Invalidated drug testing of pregnant mothers
as violating prohibition against non
consensual, warrantless, suspicionless
• Nature of special need asserted for
• 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
Individual Stops
• Reasonable suspicion necessary to stop car
and detain driver in order to check license
and registration
Permanent and Temporary
• Program design: All motorists passing
through checkpoints stopped and briefly
examined for signs of intoxication. If seem
drunk, diverted to another area for further
• Each detention lasted 25 seconds
• “Special needs” or Terry?
Applying Balancing Test
• Government Interest
– Eradicating drunk
• 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
• 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
Special Needs: Inventory Searches
• 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
• 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
State’s Interests
• Protect owner property while in police
• Protect police from claims of lost or stolen
• Protect police and public from potential
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
• Government interest greater than for search
interest to arrest
• Police conduct that might be embarrassingly
intrusive on street could be handled
• Same three interests that apply to car
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
• 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
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
• To do so, agents must have reasonable suspicion
of criminal activity
• What facts gave them that suspicion here? More
like custodial arrest? Terry?
• Immigration and Nationality Act
• Legislative extension of border search
• Rule: Vehicle occupants may be stopped at
fixed checkpoints and briefly detained for
questioning without individualized
• United States v. Martinez-Fuerte
Vehicle Searches at Checkpoints
• United States v. Ortiz
• Held: Warrantless vehicle searches at
checkpoints require probable cause or
• Contrast with briefly detaining cars asks
occupants about citizenship
Roving Patrols
• Almeida Sanchez v. United States (vehicle
• United States v. Brignoni-Ponce (stopped
car to question occupants)
• 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
Consent Searches
Significant Exception to Warrant
• Validly obtained consent justifies
warrantless search, with or without probable
• Not “waiver” of constitutional right
• Valid consent may not be the product of
duress or coercion
• Evaluated using totality of circumstances
• Knowledge of right to refuse is not
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
• “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