Criminal Procedure Outline - Professor Fields 2021 - Campbell Law - Part 4

v. Consent

1. Schneckloth v. Bustamonte (passenger gave permission to search brother’s car, found stolen checks)
   1. Issue: whether a “consent” to search is voluntarily given if the person consenting is not aware of his/her right to refuse to consent
      1. Court doesn’t care that Alcala didn’t have authority to consent
      2. Generally, owner of car presumed authority to give consent→then driver
   2. Consent to search is valid if it is voluntarily given; meaning that the consent was not the result of duress or coercion, express or implied
      1. You do have the right to withdraw consent
   3. Voluntariness is a finding of fact determined by the totality of the circumstances
   4. Subject’s knowledge of the right to refuse is a factor, but not dispositive
      1. Even though they say they’ll take subjective into account—objective always wins
2. Georgia v. Randolph (husband refused search of house, wife allowed it): Warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him/her on the basis of consent given to the police by another resident
3. Third party consent generally:
   1. Allows for warrantless entry of a person’s house w/o a warrant based on the voluntary consent of an individual possessing authority
   2. That person might be the householder against whom evidence is sought, or a fellow occupant who shares common authority over property, when the suspect is absent (US v. Matlock)
   3. Not based on property law, rests on “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched
      1. Doesn’t matter if police are wrong, so long as they reasonably believed the person who consented is a resident
      2. Child can consent to common areas

vi. Exigent Circumstances

1. Kentucky v. King (went into breezeway, officers couldn’t tell which apartment suspect went into): Police may conduct a warrantless search of a home when there is an exigent circumstance
   1. Even if the police create the exigent circumstance, they can still conduct a warrantless search based on the exigency exception so long as they did not gain entry to premises by means of an actual or threatened 4th am violation

vii. Searches Based on Traditional Standards of Reasonableness

1. Maryland v. King (charged w/assault, took DNA while booking): Police may collect a DNA sample from an arrested individual w/o first acquiring a warrant
   1. “Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photography, a legitimate police booking procedure that is reasonable under the 4th am
   2. Suspicion-less searches “when faced w/special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual circumstances may render a warrantless search or seizure reasonable: This case falls under this umbrella as there is a diminished expectation of privacy and minimal intrusion
      1. Above justifies the warrantless search, but it still must be reasonable
         1. To decide whether it’s reasonable, weigh the promotion of legitimate governmental interests against the degree to which the search intrudes upon an individual’s privacy
            1. Purported government interest here: arrestee’s true identity; ensures custody doesn’t create risks for staff and other detainees; ensure persons accused of crimes are available for trial; determine whether bail is appropriate; free innocent people—and it is just like fingerprinting
            2. Defines the intrusion by the physical act, not by all of the info gotten from DNA
            3. We don’t know what founders would think—but recognize that this is part of the analysis
            4. Limited to cheek swab
         2. Dissent: this is done to solve crimes; this will allow DNA for traffic offenses
2. Birchfield v. North Dakota (search-incident-to-arrest case) (refused to undergo blood test) (2016)
   1. For a breath test, the 4th am does permit warrantless breath tests incident to an arrest for drunk driving; thus, state can criminalize refusing to do so
   2. For a blood test, the 4th am does not permit warrantless blood tests incident to an arrest for drunk driving; thus, state cannot criminalize refusing to do so
      1. Exigent circumstance: evidence is dissipating
      2. As for implied consent: must be a limit to what motorists consent to while driving
3. Mitchell v. Wisconsin (passed out, got blood test w/o warrant) (2019) (plurality—we’re still trying to figure out what this means going forward): When the police have probable cause to believe that a person has committed a drunk driving offense and the driver is unconscious, a warrant is not generally required to order a blood test
   1. Plurality:
      1. “real” exigent circumstances justify warrantless blood draws
      2. Don’t care about implied consent
      3. Exigency exists when:
         1. BAC evidence is dissipating
         2. Some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application
   2. McNeely: can take blood w/o a warrant if exigent circumstance – need something beyond dissipation