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Criminal Procedure - Outline Part 25

By Collin B. Hardee

Download the PDF version of this outline

<< Part 24 | Part 26 >>

c. (3) Automobile

  1. SILA of Cars (Gant) → May search passenger compartment if:
    1. Arrestee is recent occupant of car who is unsecured and within reaching distance of passenger compartment at time of search (has access at moment of search); OR
    2. Reasonable to believe evidence related to crime of arrest will be found inside the vehicle (less than PC standard – based on articulatable facts (training/experience))
      1. This is automatic and can be done without PC
  2. SILA & Drunk Driving (Birchfield)
    1. Warrantless Breath Tests → per se constitutional
    2. Warrantless Blood Tests → not justifiable under SILA
      1. May be allowed under different warrant exception (exigent circumstances?)
  3. SILA to Lawful Citation
  4. Officer cannot search car for citational offense – warrantless searches of car incident to citation is unconstitutional (Knowles)
    1. Routine traffic stop is relatively brief encounter and does not pose danger to the officer
  5. Custodial Arrest & Minor Crimes
    1. Custodial Arrest Defined: when police take individual into custody for a petty/minor offense (e.g., minor traffic violation that carries small fine)
    2. B/c officer won’t know whether a situation could constitute a major or minor crime, officer can arrest for a “minor” citation/offense, however, depends on state law (Atwater), i.e., for “minor” offense, police may be able to arrest but depends on state law
      1. “Penalties for ostensibly identical conduct can vary on account of facts difficult (if not impossible) to know at the scene of the arrest”
  6. Pretextual Stops and Arrests in Automobiles (when officer uses a minor traffic violation to stop for a different suspected reason)
    1. If the police have PC to believe that a traffic (or other) law has been broken, police may stop the perpetrator, even if their motive in doing so is to seek evidence of some other crime for which they do NOT have PC or even reasonable suspicion (Whren)
    2. Commercial vehicles can be stopped/searched at any time?
  7. Car Search at Station After Arrest
    1. Police may search the car at station either:
      1. immediately at station w/o warrant; or
      2. seize car at station and wait for warrant (Chambers)
    2. NOT SILA b/c not contemporaneous to arrest
  8. Car Search at Place Where Stopped/Found
    1. Police generally have a right to conduct a warrantless search of vehicle immediately at place where stopped with PC to make stop
    2. Mobile Homes (RVs) – Will be treated as a car, rather than house, based on Carney Factors:
      1. Location;
      2. Readily Mobile;
      3. Licensed vehicle;
      4. Connected to Utilities;
      5. Convenient Access to Public Roads
  9. Automobile In Driveway/Curtilage Search
    1. If within the curtilage of the home, gets the protection that the home would require
    2. Look to exactly where the automobile is parked b/c sometimes part of the driveway is OUTSIDE of the curtilage
  10. Automobile Exception
    1. CAN search trunk, hidden compartments, and every inch of car with PC to believe car contains articles that officer entitled to seize (Carroll)
    2. With SILA, only can search passenger compartment; not trunk
    3. Does NOT have to be contemporaneous to arrest b/c NOT SILA
    4. Rationales:
      1. Increased mobility of car;
      2. Reduced expectation of privacy on public roads
  11. Automobile Inventories
    1. If car is impounded b/c it was towed for illegal parking, it may be subjected to a warrantless “inventory search,” even if police have never had PC to believe it contains contraband/evidence of crime (Opperman)
      1. Warrant requirement does NOT apply b/c this is a non-investigative police inventory
      2. Apply reasonableness balancing test
    2. MUST have police department written policy of doing this – Look to the policy of the police department
    3. Police CANNOT open a locked suitcase in an inventory search b/c police had no policy in respect to opening closed containers in an inventory search (Wells)
  12. Containers in Cars
    1. If have PC, can open all containers within the car where the evidence to be seized could be found – if PC is ONLY for trunk, can only search trunk (Acevedo)
    2. If have PC, police may search/inspect ANY passengers’ belongings founding in the car that are capable of concealing the object of the search (even if you don’t have PC to suspect that passenger of crime) (Houghton)
      1. Search limited by size of items sought and size of container
  13. Car Searches Synthesis – Warrantless Search of Car Valid:
    1. Automobile Exception – if police have PC, can search entire car, besides trunk (Carroll)
    2. When occupant or recent occupant arrested, SILA contemporaneous search of passenger compartment (even without PC to search) (Gant)
    3. Automobile Inventory when car is towed or impounded (without PC + police department written policy)
    4. SW required if in driveway/curtilage of home, or not on road recently
    5. Terry Sweep/Search of Car (Michigan v. Long)

d. (4) Consent

  1. General
    1. Dispenses w/ PC & SW requirement
    2. Consent can be revocable and defined by the scope of the consenter
    3. Consent does NOT have to be in writing (most of the time)
    4. Must be voluntary
      1. Involuntary – look for threats or manipulation
    5. Prosecution bears burden to show that consent was valid and voluntarily given, i.e., not the result of duress or coercion, express or implied
  2. Totality of the Circumstances Test
    1. Consent is voluntary as long as not the product of duress, coercion, express or implied
    2. Warning of Right to Refuse? → Voluntariness does not require proof of knowledge of a right to refuse (this is just a factor) → Police DO NOT have to tell the consenter that he has a right to refuse (Bustamonte)
    3. Voluntary Test:
      1. Totality of the Circumstances;
      2. Consenter’s will was overborne by the police
    4. Traffic Stop → Consent is still voluntary regardless if the police do not inform the consenter that he is free to go after returning his driver’s license upon being stopped for traffic violation (Robinette)
      1. After warning, don’t have to tell individual he can go before asking to search
      2. Police can’t prolong search
    5. False Claim of Present Authority – Where an officer falsely asserts that he has a valid search warrant to get consent, the consent is invalid, i.e., coercion (Bumper)
  3. Consent by Third Person
  4. Default/General Rule (Matlock) → if you live with someone, they can give consent b/c they have “common authority” over the premises (assume the risk by living with someone); but if have own separate living space, clearly police need your consent to search unless “common authority”
    1. Considerations:
      1. Mutual Use of Property?
      2. Joint access/control of property?
      3. Right to let people come & go from property
  5. When tenants all present, but one is objecting → when D is PHYSICALLY present and objecting when a 3rd party consents to a search of the premises over which joint authority is shared, the third party’s consent will not be binding on D (Randolph)
    1. HOWEVER, look for RECOGNIZED HIERARCHY → If there’s an ownership structure (e.g., parents house, military barracks), the individual with the most authority has say over consent
    2. RULE: When any co-tenant declines consent to search, the no trumps the yes; must be (1) physically present (in front of police); and (2) objecting
      1. Police could wait for objecting party to leave
  6. When one resident denies entry into a dwelling, but is arrested on independent grounds, then police come back and get consent from other co-resident, that consent is valid (Fernandez)
  7. Reasonable Mistake / Apparent Authority
    1. A third-party consent will be valid on the absent defendant even if the police were mistaken about whether the consenter in fact had joint authority over the premises, as long as mistake was reasonable
      1. An individual may lie and say they live at the premises and give consent, if police reasonably believe the liar then the lie will not invalidate the consent
      2. Even if consenter is an infrequent visitor or usual resident with no true authority; so long as police were reasonably mistaken in their belief that the consenter had authority to consent, consent is valid
    2. Apparent Authority Test → Objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? (Rodriguez)
      1. Reasonable mistake of fact is okay
      2. Did consenter have a key, say “our” apartment
  8. Scope of Consent
    1. A consent search is invalid, even if the consent was voluntary, if the police exceed the scope of the consent granted
      1. It is reasonable for an officer to consider a suspect’s general consent (with no stipulations or limitations) of his car to include the consent to examine a paper bag or other containers within his car (Jimeno)
      2. This wouldn’t include prying open a briefcase

e. (5) Exigent Circumstances – a warrantless intrusion may be justified by:

  1. Hot Pursuit of Fleeing Felon
  2. Imminent Destruction of Evidence
    1. Warrantless entry to ascertain blood-alcohol content before “destroyed” by passage of time is unlawful (Welsh)
  3. Need to Prevent Suspect from Escape
  4. Risk of Imminent Harm to Police or Others Inside
    1. “Police Created Exigency” → no such thing; only if police:
      1. threaten or
      2. actually engage in a 4th Amendment violation will entry be unlawful (King)
    2. As long as the police behavior is “reasonable” in 4th A terms, the behavior will not deprive the police of the ability to enter without a warrant

f. (6) Special Needs & Non-Criminal Context

  1. “Special Needs Exception to the Warrant Requirement” → a search or seizure comes within the “special needs” category when a perceived need, beyond the normal need for criminal law enforcement, makes the warrant and/or PC requirements of the 4th A impracticable or irrelevant
    1. In such circumstances, the Court evaluates the governmental activity by applying the reasonableness balancing standard
  2. Emergency Community Caretaking Doctrine → law enforcement may enter a home/car w/o a warrant to render emergency assistance or protect an occupant from imminent harm (Stuart)
  3. Automobile Inventories → when an automobile must be towed as result of illegal parking, the police may routinely inspect the contents of the car, not as part of a criminal investigation, but simply to make sure that belongings are properly inventoried for safekeeping purposes (must have written policy) (Opperman)
  4. Administrative Searches:
    1. Housing Code Inspections → Court approved warrantless administrative searches of “closely governmentally regulated industries” even in the absence of emergency or consent (NY v. Burger)
      1. Did not matter that police performed the search – all that mattered was that the administrative regulations had a non-penal purpose
    2. School Searches → public school teachers and administrators may search students without a warrant if:
      1. there are reasonable grounds – NOT necessarily “probable cause” in criminal context – for suspecting that the search will turn up evidence that student has violated or is violating either the law or the rules of the school; and
      2. once initiated, the search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction
    3. Airport Searches → a particular airport security search is constitutionally reasonable provided that it:
      1. is no more extensive than necessary, in the light of current technology, to detect the presence of weapons or explosives; and
      2. it is confined in good faith to that purpose
    4. Probation & Parole Searches
      1. Probation → No SW needed, no PC needed, RS required
      2. Parole → No SW, no PC needed, no RS
        1. Limitation on BOTH: search MUST be made by probation or parole officer
        2. Drug/blood test at any time
        3. Applies to houses, cars, etc.
    5. Border Searches
      1. General:
        1. At the border and its functional equivalent (airport), a person may be stopped and her belongings searched w/o a warrant and in the absence of individualized suspicion of wrongdoing, “pursuant to the longstanding right of the sovereign to protect itself” from the entry of persons and things dangerous to the nation” (Ramsey)
        2. A suspicion-less international border search is constitutionally reasonable even when border agents, without RS, seize a person’s car at the international border, remove the gas tank, and search it (Flores-Montano)
      2. Seizures by Roving Border Patrol → the roving border patrol agents need RS of criminal activity to detain the car occupants briefly (Brignoni-Ponce)
      3. Seizures at Fixed Interior Checkpoints → vehicle occupants may be stopped for questioning at fixed interior checkpoints without individualized suspicion of wrongdoing (Martinez-Fuerte)
    6. Sobriety Checkpoints on Highways
      1. General:
        1. Checkpoints must be either (1) fixed and stop all cars or (2) system of randomized (e.g., every 3rd car)
        2. No discretion - Officer cannot have any discretion; if police stop less than all, presumably they must have some particularized suspicion before they may stop a specific person
        3. Individualized suspicion requires PC to stop
        4. What is the primary purpose of the checkpoint? (Highway safety = okay); (General crime control = not okay)
      2. Sobriety Checkpoints → State’s interest in preventing drunk driving and the degree of intrusion on motorists weighs in favor of the state program (Sitz)
        1. No PC, no RS, just “reasonable” seizure
        2. 25 sec stop → need RS or PC to pull to side and stop for longer
      3. License/Registration Checkpoints → checkpoints for verifying licenses and registrations may be permissible; but cannot have any discretion (Prouse)
      4. Drug Checkpoint → b/c the primary purpose of the checkpoint is indistinguishable from the general interest in crime control, unconstitutional (Edmond)
        1. NEVER would a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing be constitutional without individualized suspicion, UNLESS possibly for emergency situation (terrorist attack, dangerous criminal on particular route)
      5. REMEMBER: State constitutions may afford more protections
        1. State can set rules and give MORE protection to citizens IF State Court makes clear that it is relying on state law/constitution
    7. Drug Testing → suspicion-less drug testing (urine, blood, breath) has been upheld by SC in some circumstances so long as the reason is not indistinguishable from general interest in crime control according to the following factors:
      1. Primary purpose of program;
      2. Threat of arrest for failure to pass;
      3. Involvement of law enforcement officials;
      4. Nature and immediacy of the government’s concerns regarding drug testing
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