Legal Aspects of Search & Seizure
I. Relevant Constitutional Provisions
II. The Fourth Amendment Flow Chart
III. Fourth Amendment Analysis
A. Is it Governmental Conduct?
B. Does the Defendant Have a Legitimate (Subjective) Expectation of Privacy?
C. Will Society Protect the Defendant's Expectation as Objectively Reasonable?
D. Was a Warrant Issued?
E. Does an Exception Apply?
IV. Exceptions to the Warrant Requirement
A. Search Incident to Arrest
B. Automobile Search
C. Emergency Search
D. Inventory Search
F. Plain View
G. Stop and Frisk
H. Valid Administrative Search
I. Other Exceptions
V. Execution of Searches/Warrants
SEARCH AND SEIZURE
Definition of Search: A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon by governmental action. United States v. Jacobsen, 466 U.S. 109, 112 (1984). A search implies an invasion into private or hidden areas, including the body. Coolidge v. New Hampshire, 403 U.S. 443 (1971).
Definition of Seizure: A person has been "seized" within the meaning of the Fourth Amendment if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 554 (1980); Michigan v. Chesternut, 486 U.S. 567 (1988)(no seizure where police in marked patrol car drive along-side and follow pedestrian).
The Fourth Amendment also protects property interests, even in situations where neither privacy nor liberty is at stake. Thus in Soldal v. Cook Co., 113 S. Ct. 538 (1992), the Court held that the police action of physically tearing a mobile home from its lot and towing it to another location constituted a "seizure" of the property within the meaning of the Fourth Amendment.
Definition of Probable Cause: Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. It does not require evidence of each element of the crime or evidence to the degree necessary to prove guilt beyond a reasonable doubt. Probable cause to issue a search warrant may be described as bits and pieces of information cobbled together until a picture is formed that leads a reasonable prudent person to believe a crime has been committed and to believe evidence of the crime may be found on a particular person or in a place or means of conveyance. State v. Grissom, 251 Kan. 851, 910, 840 P.2d 1142 (1992).
I. Relevant Constitutional Provisions
The right of the people to be secure in their persons, house, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury. . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
....nor shall any state deprive any person of life, liberty, or property, without due process of law;...
KANSAS CONSTITUTION BILL OF RIGHTS SECTION 15
“The right of the people to be secure in their person and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized."
II. The Fourth Amendment Flow Chart
I. IS IT GOVERNMENTAL CONDUCT?
II. DOES THE DEFENDANT HAVE A LEGITIMATE (SUBJECTIVE) EXPECTATION OF PRIVACY?
III. WILL SOCIETY PROTECT THE DEFENDANT'S EXPECTATION AS OBJECTIVELY REASONABLE?
IV. WAS A WARRANT ISSUED?
Then, is warrant valid? Then, must find valid exception
A. PROBABLE CAUSE A. SEARCH INCIDENT TO ARREST
B. OATH OR AFFIRMATION B. AUTOMOBILE SEARCH
C. NEUTRAL MAGISTRATE C. EMERGENCY SEARCH
D. PARTICULARITY D. INVENTORY SEARCH
E. EXECUTION E. CONSENT
(Even if some of the above are not satisfied, F. PLAIN VIEW
must consider "good faith” exception, inevitable)
discovery or independent source.) G. STOP AND FRISK
H. VALID ADMINISTRATIVE SEARCH
H. OTHER EXCEPTIONS
III. Fourth Amendment Analysis
A. Is it Governmental Conduct?
1. Fourth Amendment only limits activities of Government Employees
“The Fourth Amendment proscribes only governmental action; it is wholly inapplicable to a search or seizure by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official.” Burdeau v. McDowell, 256 U.S. 465 (1921); State v. Miesbauer, 232 Kan. 291, 293, 654 P.2d 934 (1982).
2. Silver platter test
The extent of the involvement is the crucial element. If the private person's involvement is too great, their role may be reduced to that of an agent of the government. State v. Bohannon, 3 Kan. App.2d 448, 452, 596 P.2d 190, 194 (1979). Factors: (1) whether the government knew and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends. United States v. Lovell, 876 F.2d 787, (10th Cir. 1989); State v. Smith, 243 Kan. 715, 724, 763 P.2d 632 (1988).
a. These inquiries are viewed in light of all the facts and circumstances of the case. Coolidge v. New Hampshire, 403 U.S. 443, 489, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).
b. A Federal Express employee who opens a package and discovers drugs is not subject to Fourth Amendment. United States v. Jacobsen, 466 U.S.109, 113, 80 L. Ed. 2d 1003, 103 5. Ct. 3319 (1984).
Police can go no farther than the private citizen did. Legality of government intrusion must be tested by the degree to which police exceeded the scope of the private search. United States v. Miller, 152 F.3d 813, 815 (8th Cir. 1998).
B. Does the Defendant Have a Legitimate (Subjective) Expectation of Privacy?
In order for a Fourth Amendment search or seizure to occur, the defendant must have taken some action to shield his activities from prying eyes or he must have some expectation that he will be able to move about unmolested by any government interference. For example, the defendant may have conducted his criminal activities inside his own house with the shades drawn and thus outside the view of the public (and law enforcement). By doing so, he has exhibited a "subjective" expectation of privacy -- his actions show that he does not want his activities to be discovered. See State v. Morris, 27 Kan. App. 2d 155, 999 P.2d 283 (2000)(police violated reasonable expectation of privacy by peering through 4"X5" opening in Venetian blind). See also Ferguson v. City of Charleston, 523 U.S. ___, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2000)(nonconsensual urine testing by state hospital personnel to determine, for law enforcement, whether expectant mothers were using cocaine violated mother's rights under the Fourth Amendment).
Conversely, "[w]hat a person knowingly exposes to the public, even in his own home or office, is not subject to Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 361, (1967).
In America, everyone generally has a right to move freely about and to possess property. Whenever law enforcement interferes with this right (by stopping a car, stopping a pedestrian, etc., or by confiscating property), it has "seized" the individual and interfered with his or her liberty. The legal question in Fourth Amendment cases is whether the government can prove sufficient legal justification for doing so.
United States v. Rumph, ___ F.3d ___ (6th Cir. No. 97-3135 (1998). Officers conducting zero tolerance activity in a high crime area saw a large group of people in front of Rumph's house. Rumph was a known aggravated murderer. When police drove by they saw Rumph walk quickly away and bend down and put something behind a wheel of car in a driveway. Police stopped Rumph and were concerned about his clenched left fist. They searched him and found drugs in his hand. They also found drugs under the car in the driveway. The search was reasonable. Police were properly concerned for their safety to open his hand, and drugs under the car were located a short distance from a public sidewalk and visible from the sidewalk. There was no legitimate expectation of privacy to the items in the driveway.
1. Attempted seizure
No "seizure" occurs when the police attempt to apprehend a person through the show of authority, but apply no physical force and the person does not submit to the show of authority. When the defendant threw his drugs during the chase by police the Court held not a seizure prior to the throwing of the drugs; therefore, drugs not suppressed even if police lacked probable cause to begin chase. California v. Hodari D, 111 S. Ct. 1547 (1991).
No seizure when the police boarded a bus, engaged the defendant in questioning, and asked for a consent to search. The Court held that a seizure would not occur if "a reasonable person would feel free to decline the officers' request or otherwise terminate the encounter." Florida v. Bostick, 111 S.Ct. 2382 (1991).
2. Officer's subjective considerations
Search and seizure activity that is objectively reasonable is not made unreasonable merely because of the searching officer's mistaken, subjective beliefs. Maryland v. Macon, 472 U.S. 463, 470-71 (1985).
Key point: Seizure is determined by objective standard not subjective thoughts of officer.
3. Examples of Observations or Seizures that are not Fourth Amendment Searches or Seizures
a. Open Fields
Governmental intrusion on an undeveloped area outside of the curtilage of a dwelling does not violate the reasonable expectation of privacy of the landowner. Oliver v. United States, 466 U.S. 170 (1984). The question of whether an area is an open field or curtilage turns on: (1) the proximity of the area to the house; (2) whether the area is within an enclosure surrounding the house; (3) the nature and use to which the area is put; and (4) any steps taken to protect the view.
b. Aerial Surveillance
The Supreme Court held that warrantless aerial observation from an airplane lawfully in navigable airspace of a fenced-in backyard does not constitute a search within the meaning of the Fourth Amendment. California v. Ciraolo, 476 U.S. 463 (1986). Accord, Florida v. Riley, 488 U.S. 445 (1988) (helicopter surveillance at 500 feet); Dow Chemical Co. v. United States, 476 U.S. 227 (1986)(approving aerial surveillance of Dow Chemical plant.)
Police obtaining trash from bag deposited near the curb for collection is not a “search.” California v. Greenwood, 486 U.S. 35 (1988).
United States v. Long, 176 F.3d 1304 (10th Cir. 1999). Affirms denial of motion to suppress where TPD officers retrieved garbage bags from atop a trailer parked near a garage. Trailer was outside curtilage and closer to public alley than to Long's garage, so they were abandoned and officers did not violate any expectation of privacy.
State v. Fortune, ___ Kan. App. 2d ___, 20 P.3d 74 (2001). Warrantless search and seizure of trash in a trash bin adjacent to defendant's trailer and about 8 feet from the street where it was normally placed for collection did not violate the defendant's Fourth Amendment rights. There was no reasonable expectation of privacy even if the trash was within the curtilage of his home. There was no fence, and the trash was easily accessible to the public and clearly visible from a public thoroughfare.
1. Government agent's installation, with the owners consent, of an electronic tracking device inside a container of chemicals did not become a Fourth Amendment search or seizure when the container was delivered to a purchaser having no knowledge of the beeper's presence. United States v. Karo, 468 U.S. 705 (1984).
Similarly, a beeper on an auto which allows agents to track the car's movement does not constitute a search of the car. United States v. Knotts, 462 U.S. 276 (1983).
e. Canine Sniff
By a trained dog of a suitcase to check for narcotics is not a "search" within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696 (1983).
f. Pen Registers
Devices which monitor the telephone numbers called by an individual do not constitute searches under the Fourth Amendment. Smith v. Maryland, 442 U.S. 735 (1979).
g. Bank Records
Are not protected against governmental seizure because there is no legitimate expectation of privacy concerning the information kept in bank records. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976).
h. Personal Characteristics
The sound of a person's voice, the characteristics of her handwriting, and her appearance are all exposed to the public. Government observations or recording of this information does not constitute a search.
i. Work place privacy
In O'Connor v. Ortega, 480 U.S. 709 (1987), the Supreme Court reaffirmed that an individual may possess a reasonable expectation of privacy in her place of work. The Court noted that the question must be resolved on a case-by-case basis. Relevant factors include the existence of office practices and customs, as well as whether the intrusion is made by a superior or by the police.
No expectation of privacy infringed when officer moved papers on dash to view the VIN. New York v. Class, 475 U.S. 106 (1986).
C. Will Society Protect the Defendant's Expectation as Objectively Reasonable?
Public Recognizes Expectation/Standing, Katz v. United States, 389 U.S. 347, 361, (1967).
1. Fourth Amendment rights are personal. Thus, unless the individual possesses a personal interest in the item or place searched or items seized, he cannot claim Fourth Amendment protection.
a. A passenger in an auto that he neither owned nor leased was held unable to challenge the government's seizure of a shotgun and shells from the interior of the car. The court held that passenger had no legitimate expectation of privacy in the places searched (glove compartment and under the seat); nor did he claim ownership of the goods. Rakas v. Illinois, 439 U.S.. 128 (1979). But see United States v. Walker, ___ F.3d ___ (7th Cir. No. 99-4022, filed 1/17/2001). A person listed on a car rental agreement as an authorized driver has a protected Fourth Amendment interest in the vehicle and may challenge a search of the rental vehicle.
b. However; if initial stop of vehicle that the Defendant, even if only a passenger with no entitlement to the vehicle, is in is stopped and searched illegally, i.e. no probable cause, the Defendant has standing to move to suppress the search. This is because the Defendant was a person who was unlawfully stopped and seized. State v. Epperson, 237 Kan. 707, 703 P.2d 761 (1985).
c. Search of an airplane abandoned on an airport runway by the defendant did not invade any expectation of privacy when the defendant claimed no ownership interest in the airplane. State v. Gardner, 10 Kan.App.2d 409 (1985). But see Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, ___ L.Ed.3d ___ (2000). Manipulation of soft-sided luggage in an overhead rack during a bus station stop amounts to a Fourth Amendment search. The brick of methamphetamine discovered by customs agents must be suppressed because agents violated defendant's reasonable expectation of privacy.
d. A "friend" of one Ms. Cox deposited money in her purse; the friend was held not to possess a reasonable expectation of privacy in the purse sufficient to contest the government's search of the handbag. The defendant had known the woman for only a few days, and had never before received permission to place any item in the purse. Even though the defendant owned the drugs, he could not contest the intrusion into the purse that led to their discovery. Rawlings v. Kentucky, 448 U.S. 98 (1980).
e. An overnight guest in another person's residence has a reasonable expectation of privacy sufficient to allow that person to challenge a police entry of the premises. It does not matter whether the guest does or does not have a key, or whether the owner/possessor has left the guests in charge. Minnesota v. Olson, 495 U.S. 91 (1990).
State v. Long, ___ Kan. App.2d ___, 993 P.2d 1237 (1999). While overnight guests in someone else's apartment can object to illegal police entry, Minnesota v. Olson, 495 U.S. 91, 109 L. Ed. 2d 85, 110 S. Ct. 1684 (1990); State v. Jones, 24 Kan. App. 2d 405, 409, 947 P.2d 1030 (1997), there must be some indicia of lawful presence and a subjective expectation of privacy. Here, there was an invitation to stay the night that was not initially accepted, then a break-in. Defendant did not have any personal items in the apartment Therefore, defendant could not complain of illegal entry by officers who responded to a rape call and that were given a citizen's tip that the rapist ran towards a certain apartment, and entered upon seeing a damaged apartment door.
Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). Commercial guests in someone else's apartment cannot claim a legitimate expectation of privacy in the premises because of the purely commercial nature of the transaction, the relatively short period of time they were on the premises and the lack of any previous connection between the guests and the tenant. Because the guests could not claim a legitimate subjective expectation of privacy, the officer's act of peering into a ground floor apartment window, even if a "search," did not violate the guests' Fourth Amendment rights.
D. Was a Warrant Issued?
The Warrant requirements are contained in the Fourth Amendment itself. Generally, there must be probable cause to believe a crime was committed and either the defendant committed it (for an arrest warrant) or that fruits or evidence of the crime can be found in a certain place (for a search warrant).
The warrant must be issued by a neutral and detached magistrate (a district judge in Shawnee County), based on facts submitted to the judge in an affidavit made under penalty of perjury. The warrant must particularly describe the person to be arrested or the place to be searched, and must specifically list the items that can be seized. Because most searches by law enforcement officers are carried out without a warrant, a detailed analysis of the warrant requirement is beyond the scope of this outline. Be advised, however, that a warrant is a strong preference, and is "good insurance" against a civil lawsuit against the officer.
The warrant requirement has at least two distinct purposes:
First, the magistrate’s scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity. The second, distinct objective is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the 'general warrant' abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings. The warrant accomplishes this second objective by requiring a ‘particular description’ of the things to be seized.
Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (citations omitted).
State v. Jones, 27 Kan. App. 2d 476, 5 P.3d 1012 (2000), affirmed ___ Kan. ___, 17 P.3d 359 (2001). Officer did not violate passenger's constitutional rights by asking for ID and running passenger for warrants during a stop for speeding. Records check was conducted during normal scope and duration of traffic stop. Distinguishes State v. Damm, 246 Kan. 220, 787 P.2d 1185 (1990), and relies upon Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Supreme court held that once officers acting in good faith discovered a warrant, they had a right to take him into custody even though he may have been unlawfully detained.
Keep in mind the Fourth Amendment analysis: the first question after was it governmental conduct is whether a warrant issued. If not, the search or seizure is deemed unreasonable unless an exception applies. ‟[S]earches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.” Katz v. U.S., 389 U.S. 347, 357 (1967).
ENTRY INTO HOMES
The law recognizes a person’s home as their castle and gives it special Fourth Amendment protection. Except in a very, very limited range of circumstances, a warrant will always be required to enter a person's home.
Generally, there are only three ways you can legally enter someone's home: (1) If you have a warrant; (2) with probable cause to believe a serious crime has been committed and exigent circumstances apply; or (3) some other exception (such as consent) applies. Warrantless searches of homes are presumptively unreasonable and violate the Fourth Amendment. Payton v. New York, 445 U.S. 573, 576, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1979).
The protection granted to persons inside their homes is illustrated by the requirement that officers obtain a search warrant to arrest someone in another person's house. Even if there is an arrest warrant, if a suspect named in the arrest warrant is believed to be within a third party's premises, absent consent a separate search warrant must also be obtained to search there for the intended arrestee. Steagald v United States, 451 U.S. 204 (1981); Minnesota v. Olson, 495 U.S. 91; 109 L.Ed. 2d 85 (1990). Conversely, a felony arrest warrant based upon probable cause carries with it the limited right to enter the home of the subject named in the warrant to effect the arrest if the officer has a reasonable basis to believe the proposed arrestee is in the residence when the officers make entry. Payton v. New York, 445 U.S. 573, 602-03 (1980).
A fenced back yard in a suburban setting falls within the curtilage of the home and is treated as the home itself for Fourth Amendment purposes. See United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987); U.S. v. Swepston, 987 F.2d 1510, 1513 (10th Cir. 1993); State v. Basurto, 15 Kan.App.2d 264, 807 P.2d 162, affirmed 249 Kan. 584 (1991). The curtilage is protected just as a home because it is an area "to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life.' " Id. (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886)). In determining whether an area outside the home should be treated as the curtilage, the Supreme Court has identified four factors to consider. These factors include (1) the proximity of the area claimed to be curtilage to the home, (2) whether the claimed area is within an enclosure surrounding the home, (3) the uses to which the area is put, and (4) the steps taken to protect the area from observation by people passing by. Dicesare v. Stout, 992 F.2d 1222 (10th Cir. 1993).
State v. Waldschmidt, 12 Kan.App.2d 284, 740 P.2d 617, rev. denied 242 Kan. 905 (1987), the Kansas Court of Appeals held that a fenced back yard was within the curtilage. In that case, the court noted the yard was behind and immediately adjacent to the residence and was surrounded by a six-foot high wooden privacy fence which obstructed the view of the yard. The court found the fence was of the type used for intimate family activities and by erecting it, the defendant exhibited a subjective expectation of privacy that society will protect as reasonable. Thus, when a law enforcement officer scaled the fence, placed his arm and flashlight over the fence, and observed marijuana plants, the court suppressed the plants as the product of an unconstitutional warrantless search. 12 Kan.App.2d at 286, 290.
State v. Mitchell, 8 Kan.App.2d 265, 655 P.2d 140 (1982), in which the defendant's residence was located one-eighth of a mile from a public road, along a private driveway. The house and yard were enclosed in part by a decorative stone wall 3 to 3 ½ feet high with a wire gate permitting access. The day after a murder on the property, an officer entered the yard through the wire gate and found a spent shell casing near the house. The defendant, the wife of the murder victim, moved to suppress the shell casing as the product of an unconstitutional search. The court granted the motion, and the court of appeals affirmed, finding the warrantless search of the curtilage was unreasonable under the Fourth Amendment. The court noted that the seriousness of a homicide investigation alone does not create exigent circumstances sufficient to justify a warrantless search of a constitutionally protected area.
The existence or non-existence of a lock on a gate does not appear to be determinative. In Mitchell, for example, the court quoted a passage from 68 Am.Jur.2d, Searches and Seizures § 20, which stated that a person who surrounds his backyard with a fence "‛and limits entry with a gate, locked or unlocked, has shown a reasonable expectation of privacy for the area, and it is protected from unreasonable search and seizure by the Fourth Amendment.'" (Emphasis added). Mitchell, 8 Kan.App.2d at 268.
E. Does an Exception Apply?
Although the Fourth Amendment generally requires a warrant in order to search and seize property, the rule is riddled with exceptions. The exceptions recognize various circumstances that make obtaining a warrant impractical or unrealistic in a specific situation. A general caveat about relying on an exception to the warrant requirement: The exceptions are narrowly construed, and the state has the burden of proof to show than an exception applies. If the state does not carry its burden, the evidence will be excluded or the person will be released, and the officer collecting the evidence or making the arrest may be liable for civil damages to the person whose rights were infringed.
IV. Exceptions to the Warrant Requirement
A. Search Incident to Arrest
Because of the need to search for weapons and contraband, courts have long permitted police who have made a valid custodial arrest to search incident to arrest. The principal requirements for a search incident to arrest are a valid custodial arrest based upon either an arrest warrant or valid probable cause, and a reasonably contemporaneous search.
2. Rationale: Officer (and jail) safety and to prevent destruction of evidence.
The search incident to an arrest may be made any time an officer makes a valid "custodial arrest." If the officer is permitted to take the suspect into custody, a search incident to arrest may be carried out despite the fact that the offense is a “minor” or “traffic offense."
United States v. Robinson, 414 U.S. 218 (1973).
a. The Defendant was arrested for driving on a revoked driver's license and the search of his coat pocket was held valid. United States v. Robinson, 414 U.S. 218, 235 (1973).
1. Atwater v. City of Lago Vista, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. No. 99-1408, filed April 24, 2001). Motorists 4th Amendment right to be free from unreasonable search & seizure was not violated after she was arrested, handcuffed and taken to jail for failing to wear her seatbelt, failing to put her kids in seatbelts, driving without a license and failing to provide proof of insurance. The Fourth Amendment does not limit use of custodial arrests for a fine-only offenses committed in an officer's presence. Common law did not clearly prohibit an arrest in such a situation, nor did it limit arrests to only misdemeanors involving a breach of the peace. Affirms Fifth Circuit opinion 195 F.3d 242 (1999 CA-5 Tex.)(en banc)(three judges dissenting).
b. The search is valid as soon as probable cause is developed, even though the actual arrest is not until after the search is completed. Rawlings v. Kentucky, 448 U.S. 98, 111 (1980).
c. Search and seizure activity that is objectively reasonable is not made unreasonable merely because of the searching officer's mistaken, subjective beliefs. Maryland v. Macon, 472 U.S. 463, 470-71 (1985).
2. Reasonably Contemporaneous
a. Search of defendant's clothes 10 hours after a valid warrantless custodial arrest was valid because clothes could not be removed and searched because another set of clothing was not available until then. United States v. Edwards, 415 U.S. 800, 805 (1974)
b.. Search of an automobile at the police station after the suspects were arrested and the car was impounded could not be supported as search incident to arrest. "The reasons which have been thought sufficient to justify the warrantless searches carried out in connection with an arrest no longer obtain when the accused is safely in custody at the station house." Chambers v. Maroney, 399 U.S. 42 (1970).
Allows search of the person and area within his immediate control to disarm and prevent destruction of evidence. Chimel v. California, 395 U.S. 752, 763, (1969).
a. immediate control
The area from within which he might gain possession of a weapon or destructible evidence. Chimel v. California, 395 U.S. 752, 763, (1969); State v. Press, 9 Kan. App.2d 589 (1984).
b. Scope of Search in a House
If a suspect is arrested outside of his house, a search inside the dwelling cannot be supported as a search incident to arrest. Vale v. Louisiana, 399 U.S. 30 (1970).
However, if the defendant needs to go into his home, or to another room, to find identification and change clothes, the police may follow "at his elbow." Washington v. Chrisman, 455 U.S. 1 (1982).
The police may also engage in a "protective sweep" of the "immediately adjoining spaces" of the area of the house were the defendant is arrested if the police have a reasonable belief, based upon specific and articulable facts, that the area to be swept harbors persons posing a danger to those on the arrest scene. The sweep should be no more than a "cursory inspection" and into adjoining area. Maryland v. Buie, 494 U.S. 325 (1990).
c. Scope of Search of vehicle
1. Federal Courts
A police officer, who has made a lawful custodial arrest of the occupant of an automobile, may make a contemporaneous search of the passenger compartment of that automobile. The police may also search any containers, ranging from glove compartments to luggage, found within the passenger compartment. They may not, under this exception, search the trunk. However, if contraband is found in passenger compartment, the automobile exception to the warrant requirement arises. New York v. Belton, 453 U.S. 454 (1980).
United States v. Olguin-Rivera, 168 F.3d 1203 (10th Cir. 1999). There was no violation of the Fourth Amendment when officers searched the cargo area of an Isuzu Rodeo covered by a retractable cover where the search is incident to the arrest of the driver. The presence of built in cover does not make the area equivalent to an automobile trunk.
2. Kansas Courts
State v Anderson, 259 Kan. 16 (1996).
FACTS: Officer searches the vehicle of the defendant after he arrests her for a traffic warrant for violation of the child restraint law and suspended license. The search of the glove compartment revealed methamphetamine residue that lead to the discovery of methamphetamine manufacturing equipment in the trunk and motel room.
HOLDING: The court held unlawful search incident to arrest due to K.S.A.22-2501 that says "evidence of the crime" thereby narrowing the "bright line" test of the Belton case. In other words, the officer was not looking for the fruits of the child restraint or suspended license infraction.
On July 1, 2006, the legislature changed K.S.A. 22-2501 to allow officer to search incident to arrest to protect officers from attack; prevent the defendant from escaping; or discovering the fruits, instrumentalities, or evidence of "a" crime. The legislative change was thought to bring Kansas in line with every other state that followed Belton. But the Supreme Court dealt Belton a massive blow in Arizona v. Gant, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 07-542, filed 04/21/09). The Supreme Court ruled police violated the defendant's rights by searching his car incident to arrest. Rodney Joseph Gant was handcuffed, seated in the back of a patrol car and under police supervision when Tucson, Ariz., police officers searched his car. They had just seen him drive up to a house suspected of drug activity, and knew he had a warrant for driving while suspended. A sharply divided Arizona Supreme Court ruled that the search violated the Fourth Amendment. The Supreme Court agreed. It held that police can only search a car incident to arrest when it is reasonable to believe that the arrestee might gain access to the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. "Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies."
B. Automobile Search
Law enforcement can perform a warrantless search of an automobile, boat or other vehicle if the officer has probable cause to believe that contraband is in the automobile. Carroll v. United States, 267 U.S. 132 (1925).
a. Automobile exception partially based on impracticality of obtaining a warrant given the "inherent mobility" of vehicles. United States v. Chadwick, 433 U.S. 1, 12 (1977).
b. Warrantless search justified by lessened expectation of privacy in automobile because of physical characteristics and pervasive regulation of moving vehicles. New York v. Class, 475 U.S. 106, 112-3 (1986).
a. Probable cause
As a general matter, probable cause to search will be found when the facts and circumstances in a given situation are sufficient to warrant a person of reasonable caution to believe that items connected to criminal activity are located in the place to be searched. Carroll v. United States, 267 U.S. 132, 69 L.Ed.2d 543, 45 S.Ct. 280 (1925).
State v. Bickerstaff, 26 Kan.App.2d 423, 988 P.2d 285 (1999). Driver stopped for speeding. Officer smelled odor of alcoholic beverage. Driver denied drinking. FST and PBT indicated presence of alcohol, but not impairment. Consent to search was refused. Officer searched vehicle and found an open container, marijuana, methamphetamine and paraphernalia. Trial court suppressed evidence saying odor of alcoholic beverage does not provide probable cause to search. The Court of Appeals reversed, holding that it does.
Maryland v. Dyson, ___ U.S. ___, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999). Officers received tip from reliable CI that defendant would be driving a rented red Toyota, license No. DDY 787 containing a quantity of cocaine. Officers corroborated by observing defendant, a known drug dealer, in a red Toyota Corolla with the same license number. Stopped, searched and arrested. Maryland held warrantless search of car must be supported by probable cause and exigent circumstances. United States Supreme Court summarily reversed in a per curiam opinion. Automobile exception allows warrantless searches based on probable cause due to the unique exigency of the automobile itself.
1. When police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officer may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody... It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized. Michigan v. Thomas, 458 U.S. 259, 261, (1982).
Florida v. White, 526 U.S. 559, 119 S.Ct. 1555, 143 L.Ed2d 748 (1999). When officers have probable cause to believe that a vehicle is forfeitable contraband, they do not have to obtain a warrant to seize and search the car. Analogizing to the inherent mobility doctrine first announced in Carroll v. United States, 267 U.S. 132, 149 (1925), the Court said the need to seize readily movable contraband before it is spirited away is "equally weighty when the automobile, as opposed to its contents, is the contraband the police seek to secure."
2. Apparent mobility --
A stationary mobile home was in a public parking lot. The police received information that a mobile home was being used to sell marijuana. A warrantless search was conducted. The Court held it valid because an objective observer could believe that the home was being used as a vehicle rather than a residence. Factors considered were if mobile home was on blocks, licensed, connected to public utilities or located near a public road. California v. Carney, 471 U.S. 386 (1985).
Law enforcement seized a vehicle and didn't do a warrantless search of it until three days later at U.S. Customs headquarters. The search was held valid because they could have had searched it immediately at the scene under the automobile exception. United States v. Johns, 469 U.S. 478, 483-7 (1985).
4. Scope of Automobile Search
Police may search any where in the vehicle and any containers that may contain the items sought if they have a generalized belief that the vehicle contains contraband somewhere inside the vehicle. United States v. Ross, 456 U.S. 798, 825 (1982).
a. containers and automobile search exception
Probable cause as to container - Police may perform a warrantless search of a container inside a vehicle based upon probable cause that the container, not the vehicle, has contraband located inside of it. California v. Acevedo, 500 U.S. 565, 573 (1991). The question is whether the container searched is capable of concealing the object of the search. United States v. Ross, 456 U.S. 798, 825 (1982).
2. Probable cause to entire car - When there is probable cause to believe that the automobile as a whole contains contraband, the entire vehicle, including containers, can be searched. California v. Acevedo, 500 U.S. 565, 573 (1991). Again, officers are limited to containers that are capable of concealing the object of the search. United States v. Ross, 456 U.S. 798, 825 (1982).
Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). If there is probable cause to search a vehicle for drugs, officers can look anywhere in that vehicle where drugs might be concealed, including a passenger's purse.
Probable cause that vehicle contained contraband justified search of closed brown paper bag in trunk. California v. Acevedo, 500 U.S. 565, 573 (1991).
Contrast the search incident to arrest, where the scope is limited to searching the passenger compartment.
5. Automobile Search v. Search Incident to Arrest
a. It is irrelevant, for purposes of an automobile search whether the occupant of the car is arrested;
b. The auto search doctrine requires probable cause to search for evidence
c. The search incident to arrest doctrine requires probable cause to arrest
d. The search incident to arrest requires a search contemporaneous with the arrest
e. An auto search may take place later.
C. Emergency Search
Although his heading is titled "Emergency Search," two similar, but related concepts will be discussed herein - the Emergency Doctrine and Exigent Circumstances.
The emergency doctrine is based on the realization that police do more than merely find and arrest criminal law violators. Officers must establish a concern for someone's safety and emergency circumstances. In other words, officers must articulate such an emergency that an immediate warrantless entry and search is imperative. Monroe v. Darr, 221 Kan. 281, 287, 559 P.2d 322 (1977). Do not confuse this exception with the exigent circumstances exception -- they have different purposes and applications.
In State v. Jones, 24 Kan.App.2d 405, 947 P.2d 1030 (1997), the Kansas Court of Appeals gave the following explanation of the emergency doctrine:
The emergency doctrine reflects a recognition that the police perform a community caretaking function which goes beyond fighting crime. See 3 La Fave, Search and Seizure § 6.6, pp. 389-90 (3d ed. 1996). Under this function, the community looks to the police to render aid and assistance to protect lives and property on an emergency basis regardless of whether a crime is involved. Warrantless entries into and searches of private property pursuant to this exception are not prohibited by the Fourth Amendment to the United States Constitution or by Section 15 of the Kansas Constitution Bill of Rights.
The emergency exception to the warrant requirement has been recognized by the United States Supreme Court and by numerous state and federal courts. [Citations omitted]. In Mincey, the Supreme Court stated:
"We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. . . . 'The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. [Citation omitted]. And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. [Citations omitted.]" 437 U.S. at 392-93.
State v. Jones, 24 Kan.App.2d 405, 947 P.2d 1030 (1997). Emergency doctrine justified officers' warrantless entry and search of a residence to look for a missing subject whose parents were concerned about him. Instead, the officers found the defendant and his drugs and drug paraphernalia therein.
Requirements to Satisfy the Emergency Doctrine
(1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest and seize evidence.
(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. Jones, 24 Kan. App. 2d at 314.
EXIGENT CIRCUMSTANCES OR HOT PURSUIT
1. Definition: In some kinds of cases, the urgency of a situation and the need to take immediate, warrantless action will render official conduct "reasonable" under the Fourth Amendment. Such exigencies may justify searches or seizures of persons, vehicles and other property, though they may be used most often to justify a warrantless entry into a home. Steagald v. United States, 451 U.S. 204 (1981).
State v. Gilbert, 24 Kan.App.2d 159 (1997). Domestic violence call and reason to believe the victim and aggressor are still in the residence. The court held that based on the officer’s experience with domestic violence cases and the circumstances present (911 call, sounds of struggle, no answer at the door) the officer could forcibly enter and search.
The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Warden v. Hayden, 387 U.S. 294, 298-9 (1967) (cab driver who had been robbed five minutes before followed suspect to house and radioed location to company dispatcher, who told police). More appropriately considered “exigency” case rather than hot pursuit. See United States v.. Santana, 427 U.S. 38 (1976).
We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. . . . The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigent or emergency. Mincey v. Arizona, 437 U.S. 385, 392 (1978).
The permissible scope of search must.. at the least, be as broad as may reasonably be necessary to prevent the dangers [which excuse the warrant]. Warden v. Hayden, 387 U.S. 294, 299 (1967).
Exigent circumstances usually requires some type of chase, however brief. A drug supplier cannot complain of unconstitutional entry when she exposed a transaction to public view but then retreated into her house when police identified themselves. United States v. Santana, 427 U.S. 38 (1976). However, seriousness of crime for which chase is made is a major factor in determining existence of this exception. Welsh v. Wisconsin, 466 U.S. 740 750-3 (1984)(DUI is minor, civil offense and should rarely sanction warrantless entry of home).
Howard v. Dickerson, 34 F.3d 978, 982 (10th Cir. 1994) (Officer not entitled to non-consensual, in-home arrest for careless driving and leaving the scene of an accident in violation of city ordinances). In Howard, the 10th Circuit pointed out that both offenses were misdemeanors, and stated, “[t]hese minor offenses do not merit the extraordinary recourse of warrantless home arrest.” 34 F.3d at 982.
State v. Huff, 220 Kan. 162, 551 P.2d 880 (1976). The Kansas Supreme Court held that exigent circumstances existed when a police officer (Baker) went to and entered an apartment where he thought the suspects were. Baker was investigating a fresh armed robbery committed by four males. About 40 or 45 minutes after Baker responded to an armed robbery at a store, he was driving around looking for the four suspects. Baker went to and entered an apartment after seeing a red ski mask or stocking cap on the floor in the apartment. An unknown citizen approached the officer and advised he had seen four ‟guys” run up the steps to the apartment, and the citizen described what the subjects were wearing, including one wearing a red ski mask or stocking cap. Baker knocked on the door and when a woman answered, Baker saw a red ski mask or stocking cap on the floor in plain view. After entering the apartment (without obtaining consent), officers saw various items and weapons from the robbery in plain view. The Kansas Supreme Court stated:
[T]he situation encountered by Baker, coupled with the facts known by him at the time he observed the ski mask, were ample to constitute exigent circumstances. Baker had good reasons to believe the apartment complex harbored four armed felons. Should Baker have left his partner to surround the entire apartment while he sought a magistrate? The exigent circumstances encountered by Baker fully justified the warrantless arrest in the inherently dangerous felony case in which he was involved. The circumstances here are clearly distinguishable from those related in [State v. Schur, 217 Kan. 741, 538 P.2d 689], wherein observation through a window of what was thought to be a burning marijuana cigarette, in the absence of any other circumstances, was held insufficient to justify a warrantless search. Where exigent circumstances exist the business of policemen is to act, not to speculate or meditate on whether the information received by them is correct. [Citations omitted]. 220 Kan. at 166.
a. Threats of death or serious bodily harm, or rescuing/aiding those in distress.
The police followed a robbery suspect into his house and found evidence in a location a floor away from the suspect. The Court found the search justified because exigencies made the court imperative." Warden v. Hayden, 387 U.S. 294, 299 (1967).
b. Threats of substantial property damage (fires, explosions, etc.). Michigan v. Tyler, 436 U.S. 499 (1978).
c. Immediate destruction of evidence.
Warrantless taking of blood alcohol sample to test for intoxication. Schmerber v. California, 384 U.S. 757 (1966).
d. Hot pursuit of fleeing suspect in serious offense. Johnson v. United States, 333 U.S. 10 (1948); Welsh v. Wisconsin, 466 U.S. 740 750-3 (1984).
State v. Weas, ___ Kan. App. 2d ___, 992 P.2d 221 (1999). Probable cause to believe kidnapping, battery and rape occurred, and evidence of those crimes and/or the assailant(s) were in a house justified warrantless entry based on exigent circumstances. Officers did not find assailants, but saw drugs in plain view. They obtained a warrant, then seized the drugs. Initial entry lawful based upon probable cause and exigent circumstances. Alternative ground is independent source, because warrant could have issued for person crimes.
e. Protection of the public from dangerous instrumentalities or hazards (firearms, explosives, toxic material, wild animals, etc.) Cady v. Dombrowski, 413 U.S. 433, 447 (1973); United States v. Chadwick, 433 U.S. 1 (1977).
D. Inventory Search
When items of property come into the possession of the police they may have the right to search the items in order to inventory the contents. Neither specific probable cause nor a warrant is necessary.
The warrantless search of the contents of the glove compartment of an abandoned automobile lawfully impounded by the police held to be reasonable because it served legitimate governmental interests -- to protect the contents of the car to guard against false claims of theft and to protect the police. South Dakota v. Opperman, 428 U.S.. 364 (1976).
a. The car or other item is lawfully impounded
b. the search in scope and purpose is conducted to inventory the property and not to discover evidence of a crime
c. the search is pursuant to regular procedures
State v. Canaan, 265 Kan. 835, 843-44, 964 P.2d 681 (1998). An officer impounding a vehicle may make a "warrantless inventory search of the personal property within the vehicle, including the glove box and trunk, when the same may be accomplished without damage to the vehicle or its contents." Quoting State v. Fortune, 236 Kan. 248, Syl. ¶ 5, 689 P.2d 1196 (1984).
The inventory may also extend to closed containers found in an impounded vehicle, as long as the inventory is carried out pursuant to standard procedures. Colorado v. Bertine, 479 U.S. 367 (1987); See also Illinois v. Lafeyette, 462 U.S. 640 91983) (approving police inventory of jail inmate's property).
4. When can police lawfully impound a vehicle?
Police may impound vehicles under the following circumstances: (1) an unattended-to car illegally parked or otherwise illegally obstructing traffic; (2) an unattended-to car from the scene of an accident when the driver is physically or mentally incapable of deciding upon steps to be taken to deal with his property, as in the case of the intoxicated, mentally incapacitated or seriously injured driver; (3) a car that has been stolen or used in the commission of a crime when its retention as evidence is necessary; (4) an abandoned car; (5) a car so mechanically defective as to be a menace to others using the public highway; (6) a car impoundable pursuant to ordinance or statute which provides therefor as in the case of forfeiture....State v. Teeter, 249 Kan. 548, 552, 819 P.2d 651 (1991)(quoting State v. Boster, 217 Kan. 618, 624, 539 P.2d 294 (1975), overruled on other grounds, State v. Fortune, 236 Kan. 248, 689 P.2d 1196 (1984)).
State v. Canaan, 265 Kan. 835, 844, 964 P.2d 681 (1998). "When the owner, operator, or person in charge of a vehicle is capable and willing to instruct police officers as to the vehicle's disposition, then absent some other lawful reason for impounding the vehicle, the person should be consulted, and his or her wishes followed concerning the vehicle's disposition. If the impoundment of the vehicle is unreasonable and, therefore, unlawful, the inventory search following impoundment is unlawful. All evidence obtained through an unlawful search is inadmissible and must be suppressed." Quoting State v. Teeter, 249 Kan. 548, 552, 819 P.2d 651 (1991). But see State v. Shelton, 278 Kan. 287, 93 P.3d 1200 (2004)(Police consultation with a driver regarding the disposition of the vehicle is but one factor, although an important factor, to be considered among the totality of the circumstances in the determination of whether impoundment is reasonable).
"In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding. When this exchange takes place, it dispels inferences of coercion." United States v. Drayton, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 01-631, 6/17/2002).
Without probable cause or a warrant, the police can search when they have voluntary consent from the individual. The consent must in fact be voluntary and not the result of duress or coercion express or implied. State v. Pearson, 234 Kan. 906, 631 P.2d 605 (1984); Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
2. Standard: “Totality of the Circumstances”
a. Voluntariness is a question to be determined from all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The state has burden to prove consent to search is voluntarily, intelligently and knowingly given. The trier of fact must decide issue in light of the totality of the circumstances, and its decision will not be reversed unless clearly erroneous. State v. Rexroat, 266 Kan. 50, 966 P.2d 666 (1999).
No single factor dispositive. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.CT. 2041, 36 L.Ed.2d 854 (1973).
a. Knowledge of the right to refuse
The failure of law enforcement to inform the defendant of their right to refuse the consent to search is a consideration but not dispositive, on the issue of voluntariness. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.CT. 2041, 36 L.Ed.2d 854 (1973). After stopping a car for a traffic violation, the officer is not automatically required to inform the driver that he was free to go before asking consent to search the vehicle. Ohio v. Robinette, 519 U.S. 33, 35, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). Nor do officers have to tell bus passengers they have a right to refuse if the officers do not use coercive tactics to obtain the consent. Drayton, ___ U.S. at ___.
State v. Reason, 263 Kan. 405 (1997). Officer approached BMW with New Mexico temporary tags and both doors open that was in a park in Wichita. Defendant and a passenger were asleep in car. Defendant consented to search of car, but later said it was without consent when cops found crack pipe, large bag of marijuana under back seat, two more in trunk, and cigarette box filled with cocaine. Court said initial contact was voluntary, Reason was advised he was free to go, but chose to stay and talk to officers. Consent that came 20 minutes later during investigatory detention was valid.
b. Coerciveness or lack thereof by officers
Consent to search is voluntary when the defendant provide officer keys to vehicle. United States v. Zapata, 18 F.3d 971 (1st Cir. 1994).
State v. Rice, 264 Kan. 232, 955 P.2d 1258 (1998). Duty to investigate anonymous call complaining of loud noise and possible marijuana use does not justify detention of all visitors upon entry into an apartment. Visitor's consent to search person was coerced by finding of marijuana inside apartment on window sill.
United States v. Drayton, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 01-631, 6/17/2002). Three officers boarded a stopped bus with the driver's consent. One stayed at the front kneeling on the driver's seat, not blocking the aisle. The other two went to the back and worked their way forward. One questioned passengers, while the other stood behind him. The one questioning passengers used a normal speaking voice, stayed beside or behind the passenger, and would have allowed them to leave if they wanted to. All officers in plain clothes, carried concealed weapons, and displayed badges. The one questioning passengers identified himself as a Tallahassee Police Officer and showed his badge. He asked about their travel plans, told passengers they were conducting bus interdiction in an attempt to deter drugs and illegal weapons transportation, and asked if the passengers had any bags. If they identified bags, he asked "Do you mind if I check it.?" Upon affirmative response, he would check the bag. The two defendants were both wearing baggy clothes and heavy jackets. Both pointed to one green bag as theirs, where no drugs were found. The officer asked if they had any drugs or weapons in their possession, and asked one defendant "do you mind if I check your person?" That defendant said, "sure," and cooperated by leaning forward and opening his jacket. The officer patted down his jacket and pockets, including his waist area, sides and upper thighs. He felt hard objects similar to drug packages, and arrested that defendant. He then asked the other defendant, "Mind if I check you?" The second defendant lifted his hands about eight inches from his legs. A pat down detected drug packages in the same area. He was arrested as well. The first defendant had 483 grams of cocaine, and the second 295 grams. The court of appeals erred in suppressing this evidence because the defendants consented, and that consent was not invalidated by a coercive atmosphere created by the officers.
c. Accused's age, intellect and background, including prior experience with law enforcement. Schneckloth v. Bustamonte, 412 U.S. at 225-26.
d. Defendant's attitude about the likelihood of the discovery of contraband
Defense attorneys are fond of the argument that the defendant must have been "seized" within the meaning of the Fourth Amendment at the time they consented to a search because, as the argument goes, "no reasonable person would consent to a search of their person or baggage where drugs are found." The argument should not fly. The reasonable person test is objective and "presupposes an innocent person. Florida v. Bostick, 501 U.S. at 437-38; Drayton, ___ U.S. at ___. See also United States v. Crespo, 834 E.2d 267, 272 (2d Cir. 1987)(It does not matter that defendant agreed to a search because he likely believed the police would not find contraband hidden in a bag on the closet shelf.).
e. Length of detention and nature of questioning. Schneckloth v. Bustamonte, 412 U.S. at 225-26.
f. Silence is not presumed to be consent
United States v. Gray, ___ F.Supp. ___ (No. 98-40103-01-RDR, filed 4/14/99). Officers executed arrest warrant for another at defendant's home. Asked woman who answered door for ID. She left door open when she went to get it. Officers walked in without consent (they asked, she did not respond) and discovered baggie of marijuana and paraphernalia. Leaving door open was not consent to enter, and failure to object to entry is but one factor. Officers failed to prove consent or exigent circumstances, so evidence is suppressed.
4. Other considerations
a. If the consent is limited, the search must be similarly limited.
A police officer who has obtained a suspect's general consent to search his vehicle for certain items does not violate the Fourth Amendment by opening closed containers found within the vehicle that might reasonably hold the object of the search. Florida v. Jimeno, 111 S.Ct. 1801 (1991)
b. Defendant under the influence
Mere fact of intoxication, influence of drugs or mentally agitated does not necessarily make consent involuntary.
Consent to search empty glove box voluntary even though defendant intoxicated because defendant mentally aware, answered questions addressed to him, produced driver's license, and denied consent to search trunk containing cocaine. United States v. Gay, 774 F2d. 368, 377 (10th Cir. 1985).
Consent can be valid if custodial arrest even after invoking Miranda. United States v. Watson, 423 U.S. 411, 424 (1976). A prior illegal seizure doesn't invalidate consent if the illegal seizure is not used to obtain the consent. State v. Ninci, 262 Kan. 21, 33, 936 P.2d 1364 (1997).
d. Threat of obtaining search warrant
Misleading a defendant by stating that a search warrant is assured or that one has already been obtained renders consent invalid. Bumper v. North Carolina, 391 U.S. 543, 550 (1968).
e. Third Party Consent
In addition to the defendant, consent can be given by a person with common authority, or other sufficient relationship to, the place or effects being searched. U.S. v. Matlock, 415 U.S. 164 (1974)(absent roomate), Coolidge v. New Hampshire, 403 U.S. 443, 488-89 (1971)(no "search" where wife voluntarily led police to potential evidence of wrongdoing, and wife was not acting as the government's agent). The Court defined common authority as not resting upon the law of property but rather on mutual use of the property by persons generally having joint access or control. The theory is based upon the defendant assuming the risk of a third party consenting.
But see Georgia v. Randolph, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 04-1067, filed 3/22/06). Consent to search common areas given by one occupant is not valid when another occupant is present and objects to the search. Scott and Janet Randolph were married, but suffered some difficulties. Janet took her son and went to stay with her parents in Canada for a couple months. She and the son then returned to the marital residence, and two days later Janet called police for a domestic dispute. Janet told police that Scott used cocaine. Scott returned and said it was Janet who abused drugs and alcohol. Janet later told police there was drug stuff in the house. Officers sought permission to search from Scott, but he unequivocally denied consent. Janet gave consent, and officers saw, in Scott's bedroom, a drinking straw and a white powdery substance. The officers collected the plain view evidence and called the DA's office, who advised them to get a warrant. Janet then withdrew her consent. Officers took the Randolphs and the straw to the police station, and returned to the residence with a search warrant, seizing other drugs and paraphernalia. Scott was indicted for possession of cocaine, and moved to suppress the evidence claiming the initial consent search was illegal. The United States Supreme Court, in a 5-3 decision, agreed. Although an occupant with apparent authority over common areas can give valid consent and the evidence can be used against an absent co-occupant, United States v. Matlock, 415 U.S. 164, 170 (1974), the court held "a situation in which two persons have equal use and control of the premises to be searched, we conclude the consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene to permit a warrantless search." The court reasoned that the apparent authority doctrine is premised on an assumption of risk theory, and that theory does not when the co-occupant is actually present and objects to the search. The dissent criticizes this "arbitrary" rule, and states, "[t]he end result [of the majority opinion] is a complete lack of practical guidance for the police in the field, let alone for the lower courts." Randolph, ___ U. S. at ___ (Roberts, C.J., dissenting).
Chapman v. United States, 365 U.S. 610 (1961)(Landlord cannot give valid consent to search a tenant's home).
State v. Davis, ___ Kan. App. 2d ___, ___ P.3d ___ (No. 82850, filed __/__/2000)(unpublished). Landlords cannot give consent to search a tenant's residence. Search & seizure of drugs was unconstitutional.
Stoner v. California, 376 U.S. 483 (1964)(hotel manager cannot consent to search of a guest's room); United States v. Jeffers, 342 U.S. 48, 51 (1951)(hotel staff had access to room for purposes of cleaning and maintenance, but no authority to admit police).
State v. Savage, ___ Kan. App. 2d ___, 10 P.3d 765 (2000). Phone tip staying the caller lived in a house at a certain address and had access to the entire house, that one of his roommates was growing marijuana in the house on the kitchen window sill, and that he would admit an officer if one would come out, when corroborated by another officer, certainly supplies probable cause to issue a warrant for the residence. The district court's granting of motion to suppress was reversed.
3. Reasonable Belief of Apparent Authority
A reasonable belief that the party has common authority will validate the search, even if mistakenly relied upon. Illinois v. Rodriguez, 497 U.S. 177 (1990); State v. Ratley, 16 Kan. App. 2d 589 (1992). Reliance on the authority must be reasonable based upon facts known to police at the time
United States v. Gay, ___ F.3d ___ (10th Cir. No. 00-6099 filed 2/12/2001). Officers' reasonable reliance on confidential informant and reasonable belief that defendant-arrestee (1) lived in residence at time of entry to search it is sufficient to justify entry, so long as defendant had common authority over, or other significant relationship to premises, and (2) defendant was in residence at the time of entry.
State v. Kimberlin, 26 Kan.App.2d 28, 977 P.2d 276 (1999). When officers responded to a domestic violence call, consent by victim to entry of one officer also applies to backup officer. The added intrusion is only minimal when compared against officer safety interest. Officers responded to 911 call. Drunk, angry and belligerent male ordered them to leave. Officers left, then came back when they heard defendant yelling at female. Belligerent male ordered them to leave again, but they eventually arrested him for disorderly conduct. Female came outside and said male tore up a roommate's bedroom. She gave one officer consent to inspect damage. The other officer followed, and found defendant near some roaches in an ashtray. Officers asked for general consent which was refused. Based on view of roaches, officers got a search warrant and searched the house, yielding drugs.
State v. Strange, (Kan.App. No.77,949, unpublished opinion filed 3/5/99). Conviction of aggravated burglary reversed where state failed to prove entry without authority. Both defendant and his girlfriend were on lease. Neither had been evicted, although defendant voluntarily moved out 3 weeks prior to the alleged burglary. See also State v. Harper, 246 Kan. 14, 785 P.2d 1341 (1990)(state failed to prove entry without authority when employee entered business at 2:00 a.m. to steal files. Employer had asked for keys back, but knew defendant retained keys intending to use them to retrieve tools. Employer did not insist on return of keys or otherwise place specific limitations on defendant's access to building).
United States v. Rith, 164 F.3d 1323 (10th Cir.), cert. denied ___ U.S. ___ (1999 WL279818). Circuit set forth the rules on authority for consent to search a home. The defendant's parents believed defendant was involved in gang activity and saw him carrying guns into their home. The parents requested officers to search the house to determine whether the guns were stolen. They gave the officers a house key, but did not accompany them to the home. Defendant, an 18 year old who did not pay rent, initially denied entry and asked for a search warrant, but stated "okay, come in," when officers showed him the house key. Court held that a valid consent given by someone with authority cannot be revoked by a co-occupant's denial of consent, even if the denial is clear and contemporaneous with the search. Court held the state proves authority by showing either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it. The court also noted that a presumption of control exists where the co-occupants are parents and children.
F. Plain View
If an officer is in a place where he has the right to be and sees an item in plain view, he may search or seize the item so long as he has probable cause that the item is connected to criminal activity. Harris v. United States, 390 U.S. 234, 771-2 (1983).
Although "plain view" is often cited as an exception to the search warrant requirement, it really is better described as a "nonsearch" because no legitimate expectation of privacy is implicated if police, lawfully where they have a right to be, view what anyone else has the ability to view. "What a person knowingly exposes to the public, even in his own home or office, is not subject to Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 361, (1967).
During the course of a lawful traffic stop, the police officer saw a tied-off opaque balloon lying on the seat of the stopped vehicle. The officer was lawfully positioned, and his experience indicated the incriminating nature of the balloons. Texas v. Brown, 460 U.S. 730 (1983); see also State v. Jones, 233 Kan. 112 (1983).
a. Inadvertence not required. Horton v. California, 495 U.S. 128 (1990).
b. Optical aids
Aids such as flashlights, searchlights, or binoculars which only enhance what could have been seen in daylight or up close do not impact legality. Texas v. Brown, 460 U.S. 730 (1983)
United States v. Kyllo, ___ F.3d __ (No. 96-30333, 9th Cir. 1999). A divided court (2-1) holds use of a thermal imaging device does not constitute a Fourth Amendment search. Police received tips of a grow/sell operation at a residence. After examining defendant's utility bills and discovering abnormally high electrical usage, an Oregon police officer pointed an Agema Thermovision 210 thermal imaging device at a triplex and found one of the residences substantially hotter than the other two. He obtained a warrant based on the thermal imaging and the utility bills. A search yielded a grow operation. Defendant moved to suppress the evidence claiming the thermal scan violated his Fourth Amendment rights. The 9th Circuit rejected the argument, holding that thermal imaging is not a search. The Court held there is no subjective expectation of privacy in the heat generated from within a residence, and if there were, society would not protect the expectation as reasonable. Other courts have come to the same conclusion. See United States v. Robinson, 62 F.3d 1325 (11th Cir. 1995); United States v. Myers, 46 F.3d 668 (7th Cir. 1995); United States v. Ishmael, 48 F.3d 850 (5th Cir. 1995); United States v. Pinson, 24 F.3d 1056 (8th Cir. 1994). The only Court of Appeals to consider this question and determine that the use of thermal imaging is unconstitutional was the Tenth Circuit in United States v. Cusumaro, 67 F.3d 1497 (10th Cir. 1995). The opinion was vacated on rehearing en banc on the ground that the court did not need to reach the thermal imaging question. See United States v. Cusumaro, 83 F.3d 1247 (10th Cir. 1996).
c. Must be immediately apparent as contraband or evidence
Turning stereo equipment to read serial numbers constituted "search" because the immediately apparent element was not met. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).
d. Plain Feel
The plain view doctrine applies by analogy to "plain feel" if the touching was lawful and the incriminating nature of what was being felt was “immediately apparent” to the officer conducting the search. Minnesota v. Dickerson, 113 5. Ct. 2130 (1993). Although the Court in Dickerson recognized the "plain feel" corollary to the plain view rule, it refused to apply it finding it was not "immediately apparent" when officer took a number of seconds to identify the rock cocaine by rolling it in his fingers. The rock cocaine was in the pocket of a person being patted down under a Terry stop & frisk. Minnesota v. Dickerson, 113 5. Ct. 2130 (1993).
State v. Wonders, 263 Kan. 582, 952 P.2d 1351 (1998). Officers can do a "Terry" search of a suspect's pockets if there is reasonable or probable cause to believe the nature of the items located therein (usually drugs) is incriminating and this incriminating nature is immediately apparent to the searching officer. Court will consider the totality of the circumstances, including the officer's credibility, training, education and experience. Adopts Fourth Amendment interpretation set forth in Minnesota v. Dickerson, 508 U.S. 366, 124 L. Ed. 2d 334, 113 S. Ct. 2130 (1993), and refuses to construe Section 15 of the Kansas Bill of Rights differently.
e. Plain Shape
The police must have reasonable grounds to believe that the particular package carried by the citizen is contraband. Its shape and design might at times be adequate. The weight of it and the manner in which it is carried might at times be enough. Henry v. United States, 361 U.S. 98, 104 (1954).
Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Arkansas v. Sanders, 442 U.S. 753 (1979).
G. Stop and Frisk
a. Case law definition:
Police may make a limited exception to the probable cause and warrant requirements of the Fourth Amendment in that an officer may stop an individual if the officer has a reasonable and articulable suspicion, based on an objective view of facts previously known to him, or made known to him through observation, that the person stopped is committing, has committed, or is about to commit a crime. Terry v Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968); State v. Baker, 239 Kan. 403, 720 P.2d 1112 (1986).
Furthermore, when an officer has made a valid Terry stop, he may search a person for firearms or other dangerous weapons if he reasonably suspects that his personal safety or that of others nearby requires it. Terry v Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968); State v. Epperson, 237 Kan. 707, 711-712, 703 P.2d 761 (1985).
Police-Citizen Encounter Matrix
Fourth Amendment Seizure?
Voluntary Police-Citizen Encounter
b. Statutory definition:
(1) Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect's actions.
(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that such officer's personal safety requires it, such officer may frisk such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, such officer may take and keep it until the completion of the questioning, at which time such officer shall either return it, if lawfully possessed, or arrest such person.
Reasonable articulable suspicion. “Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like ‘articulable reasons’ and 'founded suspicion’ are not self defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances - the whole picture - must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-418, 66 L.Ed.2d 621, 101 S.Ct. 690 (1981). Reasonable suspicion is "considerably less" than proof of wrongdoing by a preponderance of the evidence. Florida v. Royer, 460 U.S. 491, 498 (1983). Reasonable articulable suspicion is viewed in terms as understood by those versed in the field of law enforcement. United States v. Cortez, 449 U.S. 411, 66 L.Ed. 2d 621, 101 S.Ct. 690 (1981); State v. Keene, 8 Kan. App. 88,90, 650 P.2d 716 (1982).
Florida v. J. L., 529 U.S. ___, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)(affirming 727 So. 2d 204 (1999)). Anonymous tip that a black male wearing a plaid shirt standing in front of a certain pawnshop is carrying a concealed firearm, is not sufficiently reliable, absent some corroboration by police officers, to justify investigatory detention and frisk. Weapon seized should have been suppressed.
State v. Toothman, 267 Kan. 412, 985 P.2d 701 (1999). An extremely nervous individual who appeared to be on drugs and appeared to be in a stolen car provided reasonable suspicion for a Terry stop and incident to the defendant's arrest for expired tag and no driver's license.
State v. Slater, 267 Kan. 694, 986 P.2d 1038 (1999). DUI stop based on anonymous tip of suspected 10-46. District court suppressed all evidence. Supreme court reversed, holding RS determined by both content and reliability in addition to threat to public safety as balanced against intrusion into citizen's freedom and privacy. Although an anonymous tip is lowest in reliability, quality of information given, subsequently verified by officer prior to stop, justified stop under totality of circumstances.
State v. Hardyway, 264 Kan. 451, 958 P.2d 618 (1998). Voluntariness of consent to search car after a traffic stop will not be reversed on appeal unless clearly erroneous. SCAT officers stopped car after the passenger visited a known drug house and driver committed traffic violations. Driver and passenger were informed of the violations, then the passenger was asked for consent to search his person, which yielded drugs. The Supreme Court held consent valid based on the totality of the circumstances. The officer's conduct must be viewed with "common sense" considering "ordinary human experience." Policy is to prevent unrealistic second guessing of police officer's decisions and defer to trained officer's ability to distinguish between innocent and suspicious activity.
3. Rationale for lessened standard
Terry stops are limited to seeking an explanation of a person's actions and perhaps a frisk of the outer clothing for weapons only. Based on officer safety reasons and the relatively slight level of intrusiveness, Terry stops can be carried out on less than probable cause and without a warrant. Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 5. Ct. 1868 (1968); State v. Baker, 239 Kan. 403, 720 P.2d 1112 (1986) K.S.A.22-2402.
4. Differing burdens of proof (descending order of burden)
a. Proof beyond a reasonable doubt - criminal trial burden
b. Clear and convincing - severance of parental rights
c. Preponderance of the evidence - civil trial burden
d. Reasonable suspicion - Terry stop
5. Application of Standard
a. Inchoate and unparticularized suspicion or hunches will not suffice. State v. Finley, 17 Kan. App. 246, 838 P.2d 904 (1992). Officer must provide specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the officer's intrusion. Terry v Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968).
The basis of the stop of a vehicle was that it was traveling in tandem with another vehicle on a high drug trafficking highway, the camper was heavily loaded, the windows were covered and the vehicle's driver sped up when a marked patrol car (without emergency lights activated) followed the vehicle. Perhaps none of these facts standing alone, would give rise to a reasonable suspicion; but taken together as appraised by an experienced law enforcement officer, they provided clear justification to stop the vehicle and pursue a limited investigation. United States v. Sharpe, 470 U.S. 675 84 L.Ed.2d 605, 105 S.Ct. 1568 (1985).
United States v. Ryan, ___ F.Supp. ___ (No. 98-40094-01-RDR, filed 2/12/99, reh. denied 4/19/99). Stop for speeding and officers claimed following factors supported reasonable suspicion: (1) defendant's hesitation when asked for consent to search; (2) defendant's nervousness; and (3) officer's knowledge of defendant's alleged drug activity. Court held factor one is inappropriate to consider in deciding whether reasonable suspicion exists; two of "little significance" and three insufficient by itself to support reasonable suspicion to detain defendant while awaiting a canine.
b. Timing of observations
The reasonable articulable suspicion must be based upon facts known to him or observed by him prior to the stop. State v. Jackson, 213 Kan. 219, 515 P.2d 1108 (1973).
Florida v. J. L., 529 U.S. ___, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)(affirming 727 So. 2d 204 (1999)). Anonymous tip that a black male wearing a plaid shirt standing in front of a certain pawnshop is carrying a concealed firearm, is not sufficiently reliable, absent some corroboration by police officers, to justify investigatory detention and frisk. Weapon seized should have been suppressed.
c. Imputed or Collective Knowledge
Knowledge in the possession of one officer can generally be imputed to other officers to established reasonable suspicion. This means the officer making the stop may not have enough knowledge to establish reasonable suspicion cause by themselves, but the collective knowledge or law enforcement, taken together, can establish reasonable suspicion. Note, however, the information usually needs to be relayed to the officer actually making the stop.
1. Sheriff officer in one county observed facts that when taken together with facts observed by sheriff officer in another county amounted to reasonable suspicion although facts were not specifically relayed. State v. Niblock, 230 Kan. 156, 161, 631 P.2d 661 (1981).
2. United States v. Colon, ___ F.3d ___ (2d Cir. No. 00-1628, filed 05/14/2001). Caller information given to a civilian 911 operator working for the New York Police Department but not conveyed to the dispatching or arresting officer cannot be imputed to the arresting officer under the collective knowledge doctrine as a basis for reasonable suspicion to justify a search of defendant.
d. Duration of Detention
There is no set time limit on the detention's length as long as it is done in a reasonable and diligent manner to quickly confirm or dispel the officer's suspicion. The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it. United States v. Sharpe, 470 U.S. 675 84 L.Ed.2d 605, 105 S.Ct. 1568 (1985).
Example. The basis of the stop of a vehicle was that it was traveling in tandem with another vehicle on a high drug trafficking highway, the camper was heavily loaded, the windows were covered and the vehicle's driver sped up when a marked patrol car (without emergency lights activated) followed the vehicle. The DEA agent stopped the car and didn't make contact with driver of truck with camper until 15 minutes later. After confirming his suspicion, the DEA Agent came back and arrested the driver of the car after almost 40 minutes of detention. The Court ruled that the length of the detention under a Terry stop was justified by the circumstances. United States v. Sharpe, 470 U.S. 675 84 L.Ed.2d 605, 105 S.Ct. 1568 (1985).
e. Scope of Questioning During Detention
An officer may demand of the name, address of such suspect and an explanation of such suspect's actions. They may ask their questions in a way calculated to obtain an answer. But they may not compel an answer, and they must allow the person to leave after a reasonably brief period of time unless the information they have acquired during the encounter has given them probable cause sufficient to justify an arrest. Kolender v. Lawson, 461 U.S. 352, 366, 75 L.Ed.2d 903. 103 S.Ct. 1855 (1983); State v. Latimer, 9 Kan. App.2d 687 P.2d 648 (1984).
Example. Officer's superiors instructed all officers to ascertain the identity of individuals loitering in a public place near business buildings late at night because of burglaries. The time was 4:00 a.m. and the person, who later turned out to own the business, would not give his name. Instead of giving his name he pushed his way by the officer. The court said permissible Terry stop and arrest for obstruction. City of Garden City v. Mesa, 215 Kan. 674 527 P.2d 1036 (1974). NOTE: If no push by defendant, then no obstruction, then no continued detention. Remember, after dispel Terry suspicions, then suspect free to go
f. Use of Force
Use of weapons and restraints on a Terry Stop won't always transform it into an arrest. State v. Nuccient, 15 Kan. App. 2nd 554 (1991). The degree of force allowed is commensurate with the degree of dangerousness inherent in the information possessed by the police. This allows a sliding scale of force in conducting a stop and frisk. United States v. Tilmon, 55 CrL 1008, (7th Cir. 1994).
An officer held a man suspected of being the "stash holder" in a two man drug sale operation at gun point on his knees behind the car he had been driving while the car was searched for weapons - on Terry reasonable suspicion rather than probable cause. The court stated:
"Courts today will find a permissible use of force by the police under circumstances that might have raised judicial eyebrows at the time the Terry decision was issued. While it was once considered necessary, in order to justify a Terry frisk, for a law enforcement officer to be ‘justified in believing that the individual whose suspicious behavior he is investigating is armed and presently dangerous to the officer," it now suffices, in appropriate circumstances, for the officer to be justified in believing that the individual might be armed and dangerous. . .. This development is a product of the times. Twenty-five years ago it might have been unreasonable to assume that a suspected drug dealer in a car would be armed; today, it could well be foolhardy for an officer to assume otherwise.” United States v. Clark, 24 F.3d 299, 55 CrL 1256, (D.C. 1994).
A connection with drug transactions can support a reasonable suspicion that a subject is armed and dangerous. See, e.g., United States v. Garcia, 459 F.3d 1059, 1064 (10th Cir. 2006); United States v. Johnson, 364 F.3d 1185, 1194-95 (10th Cir. 2004); United States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005).
Police had reasonable suspicion that defendant robbed a bank, was armed, and had threatened to blow up the bank with a bomb. Police ordered him to pull over his vehicle, boxed it in with five police cars, pointed weapons at him, ordered him out of the car with his hands up and held a shotgun to his head as he lay face down on the shoulder of the road. The court said not an arrest but Terry Stop. United States v. Tilmon, 55 CrL 1008, (7th Cir., 1994).
Aggravated robbery suspect not considered under arrest when officer stopped the vehicle based upon reasonable suspicion and removed the suspect from vehicle and handcuffed him at shotgun point. State v. Nuggent, 15 Kan. App. 2nd 554 (1991).
g. Flight From Identified Police Officer
If there is a seizure after flight from a police officer, it has been held that the flight itself provides reasonable suspicion for an investigatory stop. State v. Pressley, 51 CrL 1010 (Wash App, 1992)
Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Flight from a clearly identified police officer in an area known for narcotics trafficking establishes reasonable suspicion to support a Terry stop. After stopping Wardlow, officers conducted a Terry pat down of an opaque bag he was carrying and discovered a .38 revolve and five live rounds. Wardlow, a convicted felon, was properly convicted of unlawful use of a weapon by a felon.
1. Frisk of Person
When an officer has made a valid Terry stop, he may search a person for firearms or other dangerous weapons if he reasonably suspects that his personal safety or that of others nearby requires it. Terry v. Ohio, 392 U.S. 1, 20 L Ed.2d 889, 88 5. Ct. 1868, (1968); State v. Epperson, 237 Kan. 707, 711-712, 703 P.2d 761 (1985) K.S.A.22-2401(2).
Search is justified if a law enforcement officer has prior knowledge of facts, observes conduct, or receives responses to the limited interrogation under Terry that, in light of his experience, leads him to reasonably suspect his personal safety or others nearby are in danger.
State v. Jackson, 213 Kan. 219, 225, 515 P.2d 1108 (1973).
The only justification for Terry frisk is the protection of police officers and others nearby. The preservation of evidence is not one of the purposes of such a search. State v. Epperson, 237 Kan. 707, 711-712, 703 P.2d 761 (1985). Therefore, officers may conduct a pat down of suspect's outer clothing, but cannot search inside the pockets unless they feel a weapon. Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 5. Ct. 1868, (1968); State v. Waddell, 14 Kan. App. 129, 784 P.2d 381 (1989).
State v. Schmitter, 23 Kan.App.2d 547, 549, 933 P.2d 762 (1997). Searching passenger's pockets for identification not a valid Terry search. State's argument that Terry allows such a search is "patently specious."
4. Frisk of Car
Whenever the police have the requisite reasonable suspicion that an occupant of a vehicle is armed, they may not only frisk his person, but look in the vehicle in places where a weapon might reasonably be expected to be found. Michigan v. Long, 463 U.S. 1032, 77 L.Ed.2d 1201, 103 S.Ct. 3469 (1983). Officers can order any occupant out of a vehicle if he reasonably believes the person is armed and dangerous. State v. Webb, 13 Kan. App.2nd 300, 769 P.2d 34(1989). Factors to be considered include: (a) furtive movements consistent with hiding or retrieving a weapon; (b) high crime/drug/gang/gunshot area; (c) time of night. NOTE: Detail these factors in your report. Simply writing "for officer safety reasons" is not sufficient.
H. Valid Administrative Search
1. Fourth Amendment Generally Protects Commercial Establishments
"The warrant clause of the Fourth Amendment protects commercial buildings as well as private homes. To hold otherwise would belie the origin of that amendment and the American colonial experience." Marshall v. Barlow's, Inc., 436 U.S. 307, 311 (1978).
2. Exception - Intensely Regulated Industries
"Certain industries have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise. Liquor . . . and firearms . . . are industries of this type; when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of government regulation." Marshall, 436 U.S. at 313.
For a warrantless administrative regulatory scheme to be valid, (1) a substantial government interest must inform of the regulatory scheme; (2) the warrantless inspections must be necessary to further the scheme; and (3) the inspection program must provide a constitutionally adequate substitute for a warrant. New York v. Burger, 482 U.S. 691, 702-703 (1987); Contreras v. City of Chicago, 119 F.3d 1286, 1290 (7th Cir. 1997).
3. Consent - Alternative Grounds for Warrantless Search
By subjecting themselves to a licensing scheme, proprietors may be deemed to have consented to inspections by police at reasonable times and during reasonable hours. See § 10-53 of the Code of the City of Topeka (1994), as amended (licensed liquor premises to be open to police during business hours).
I. Other Exceptions
If the police violate the defendant's rights, the evidence resulting from that violation is generally inadmissbile in a criminal trial, and the violation subjects the officer to civil liability. However, sometimes the evidence collected as a result of a violation by the officer still gets admitted into evidence - generally when the officer acted in good faith, and no useful purpose would be served by application of the exclusionary rule.
1. Inevitable Discovery
State v. Calhoun, ___ Kan. App. 2d ___, 19 P.3d 179 (2001). Motion to suppress cocaine was properly denied where the defendant was stopped for speeding, gave officer several false names (to avoid arrest on a warrant), and kept reaching towards the center of the vehicle. Officer was reasonably concerned for his safety, and suspect would have been arrested on warrant if he hadn't lied about his identity, so evidence would have been inevitably discovered.
2. Reliance on an invalid warrant that appears to be valid on its face
United States v. Leon, 468 U.S. 897, 918-922, 104 S.Ct. 3405, 82 L.Ed.2d 677, reh. denied 468 U.S. 1250 (1984). If officers actually obtain a warrant, and the warrant is not the product of a false or fraudulent affidavit, the officer can reasonably rely upon the issuance of the warrant even though the warrant is ultimately found to be invalid.
V. Execution of Searches/Warrants
1. Kansas Statues provide:
a. Warrant can be executed any time night or day. K.S.A. 22-2510.
b. Must be executed within 96 hours of its issuance. K.S.A. 22-2506.
c. Any law enforcement officer may execute a warrant. K.S.A. 22-2506.
d. All necessary and reasonable force may be used to effect an entry upon any building or property or part thereof to make the arrest. K.S.A. 22-2508.
Above all, warrants must be served in a reasonable manner to comply with the Fourth Amendment. Price v. Kramer, 200 F.3d 1237 (9th Cir. 2000). Jury did not err in awarding a $245,000 verdict against three Torrance, CA police officers for racially biased actions and excessive force. Three 17 year-old boys were stopped in their car for a traffic violation. They were removed at gun point; when frisked, one officer grabbed each boy's testicles and then forcefully squeezed them. The three-judge panel upheld the verdict, noting that police mistreatment of young people and minorities is not an isolated incident in the L.A. area or elsewhere.
Illinois v. McArthur, ___ U.S. ___, 121 S.Ct. 946, ___ L.Ed2d ___ (2001). Police officers went on a domestic standby while wife removed items from her husband’s trailer. After she finished, she told officers he had "dope in there," and told officers it was under the couch. Officers asked for, but did not receive consent to search. They refused to let husband reenter unescorted for about two hours while they sought warrant. Officer briefly stood in doorway when husband reentered to obtain cigarettes & make phone calls. Illinois appellate courts held this was illegal detention. Supreme Court reversed, finding probable cause to believe that defendant had hidden marijuana in his home, exigent circumstances (possible destruction of evidence) warranted brief & limited entries, and officers sought a warrant with reasonable diligence. Distinguished Welsh v. Wisconsin on basis of "jailable" v. "nonjailable" crimes as opposed to misdemeanor v. felony crimes.
2. Knock and Announce Rule
The knock and announce rule emanates from the federal statute governing warrant service, 18 U.S.C. § 3109. This statute provides, in relevant part, that officers can break into a house or building "if, after notice of his authority and purpose, he is refused admittance." Although the rule does not technically apply to the states, State v. Tyler, 251 Kan. at 634, it has now been incorporated into the Fourth Amendment reasonableness inquiry.
In Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the Supreme Court refused to allow states to carve out a blanket exception to knock and announce requirement for felony drug warrant service. Although such searches frequently involve potential threat to officer safety, whether police knock and announce will be one factor considered in determining reasonableness of the search.
State v. Shively, 268 Kan. 589, 999 P.2d 952 (2000). Officer must hold an objectively reasonable belief that an emergency situation exists in order to justify a no-knock entry. Serving practically all warrants in a no-knock fashion violates the Richards v. Wisconsin rule (520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997)). Here CI had advised police that no weapons were present and the target of the warrant was expected to be found asleep. See also Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995); State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (1999); United States v. Moore, 91 F.3d 96 (10th Cir. 1996); Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 1010 L.Ed.2d 472 (1988)(illegal warrantless search does not require suppression of evidence observed if evidence relied upon in obtaining later warrant is wholly independent of the prior search).
United States v. Ramirez, 523 U.S. 65, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998), reversing 91 F.3d 1297. The Fourth Amendment does not hold officers to a higher standard when a "no-knock" entry results in the destruction of property. Where officers had probable cause to believe an armed, dangerous escaped prisoner was present and obtained a no knock warrant to search, breaking a single window in respondent's garage and pointing a gun through the opening did not violate the Fourth Amendment and 18 U.S.C. § 3109.
State v. Miskell, ___ La. ___ (La. No. 98-kk-2146, 10/19/99, 66 Crim. L. Rptr. 91). Louisiana Supreme Court held that having burglar bars over the door was a valid factor justifying a no-knock entry when executing a search warrant.
3. Search of Everyone Present at Residence
K.S.A. 22-2509 states: In the execution of a search warrant the person executing the same may reasonably detain and search any person in the place at the time:
(a) To protect himself from attack, or
(b) To prevent the disposal or concealment of any things particularly described in the warrant.
However, this statute doesn't exactly mean what it says. State v. Lambert, 238 Kan. 444, 450, 710 P.2d 693 (1985). "Under proper circumstances the police may search a nonresident visitor or his belongings in the course of executing a warrant for a premises search. These circumstances include: where the individual consents to being searched, where the item is in plain view on the person or in his possession, where there has been a valid arrest and where there is probable cause to search plus exigent circumstances. A search may also be conducted under the Terry exception, which allows a stop and frisk where there is a reasonable belief that the person is armed and dangerous."
While police can detain persons on the premises, require them to identify themselves, and compel them to stay until the officers' search is complete, Michigan v. Summers, 452 U.S. 692 (1981), officers may only search the persons and their belongings under the circumstances described above.
State v. Horn, 15 Kan. App. 2d 365 (rev. denied 248 Kan. 998 ). Police obtained a search warrant authorizing search of premises and "all persons present." Officers announced their presence, heard "scurrying" inside, broke down a door and saw people running to the rear of the house. Money and drugs were in plain view. Horn was caught, a search of his person produced cash, and he was convicted of attempted possession of cocaine. Insofar as the warrant authorized searching all persons present, it was unconstitutionally general because the affidavit did not reflect that drug trafficking was the sole activity of the house; thus, police could not rely on the warrant to search Horn. But the search was lawful under the exigent circumstances exception to the warrant requirement. K.S.A. 22-2509 authorizes the search of persons present during execution of search warrants to prevent the disposal/concealment of anything described in the warrant; this warrant described drugs; police had probable cause the occupants had drugs; and exigent circumstances justified the search. First, officers were executing a valid warrant; the occupants of the premises fled when police announced their presence; and money and paraphernalia were in plain view. These facts and facts supporting the search warrant affidavit indicated that the premises housed past and present trafficking activity, and that the persons present were traffickers. Thus, the Court said, the circumstances justified officers in believing that the fleeing persons could have drugs: "Given that drugs are easily concealed and easily disposed of, the police had reasonable cause after entering the residence to search everyone running toward the back of the house."
State v. Vandiver, 19 Kan. App. 2d 786 (1994). An officer entered premises pursuant to a narcotics search warrant. After making an immediate arrest, he found six persons playing video games near a bag of marijuana; he also smelled burnt marijuana. The officer patted down the persons and found a 35mm film canister in defendant's pants pocket. Despite admitting that it did not resemble a weapon, the officer removed and opened the canister to see what it was; he found marijuana inside and arrested defendant. The Court ruled that the canister search was illegal; it was not justified by a warrant; defendant's mere presence near the marijuana did not establish probable cause to support an arrest for possession, so the search could not be justified as incident to arrest. Moreover, without probable cause, K.S.A. 22-2509(b), the statutory authorization to search persons present at the scene of a search warrant execution when probable cause and exigent circumstances, such as the need to prevent evidence from destruction, exists; could not justify the canister search. Even had probable cause existed, no exigent circumstances were present. There was no evidence supporting the notion that evidence might be destroyed; no one fled, or attempted to flee, the premises, and no one tried to conceal or destroy anything. To justify a search under K.S.A. 22-2509(b), there must be probable cause and some observable circumstances, such as someone fleeing from police, or an individual acting in a suspicious or furtive manner, in addition to reasonable police determinations that evidence will be destroyed or concealed before a warrant can be obtained.
Vandiver would probably turn out different today, as long as the officer could believably testify that it was immediately apparent to him, based on his training, education and experience, that the pocket contained contraband. In State v. Wonders, 263 Kan. 582, 952 P.2d 1351 (1998), the Court held that officers can do a Terry search of a suspect's pockets if there is reasonable or probable cause to believe the nature of the items located therein (usually drugs) is incriminating and this incriminating nature is immediately apparent to the searching officer. Court will consider the totality of the circumstances, including the officer's credibility, training, education and experience. Adopts Fourth Amendment interpretation set forth in Minnesota v. Dickerson, 508 U.S. 366, 124 L. Ed. 2d 334, 113 S. Ct. 2130 (1993), and refuses to construe Section 15 of the Kansas Bill of Rights differently.
4. Excessive Force in Execution of Warrant
State v. Tyler, 251 Kan. 616 (1992). In a case involving the killing of an undercover narcotics officer during a raid, the defense claimed that officers used excessive force when they executed their search warrant because they failed to "knock and announce" their identity and purpose. The Court noted that federal statutory provisions subject federal officers to knock and announce requirements, but those provisions don't apply to state officers. It ruled that Kansas has not adopted a knock and announce rule, and that, in this case, the officers' failure to knock and announce before entering the raided premises was reasonable. Only one officer was in uniform, but the others were dressed in raid regalia and other clothing clearly identifying them as officers as they entered. They also announced, again as they entered, who they were and their purpose for being there. The officers also knew a bodyguard, who carried a hammer, would be at the front door and that one person who had been previously seen at the raided premises was known to carry a gun. The Court stated, in conclusion, "Law enforcement officers, especially in narcotics cases, must weigh several factors when deciding how to execute a search warrant. For example, delay could possibly lead to the destruction of evidence and increase the danger to the officers. In this case, based upon the information available to the police prior to the execution of the search warrant, we find the search was reasonable..."
State v. Beal, 26 Kan. App.2d 837, 994 P.2d 669 (2000). An arrest warrant not only allows officers to search the house of the person named in the warrant, but also a detached garage if officers have a reasonable basis for believing the person named in the warrant will be found therein.
A final note on warrant entry. Jenkins v. Wood, 81 F.3d 988 (10th Cir. 1996), probably defines the outer limits of constitutional warrant service under state law.
KBI Agents and Topeka Police Department officers were looking for James Jenkins, Jr., for involvement in narcotics. An informant told officers that he had contacted Jenkins, Jr., at what appeared to be an upstairs apartment at 1261 S.W. Clay. A KBI Agent witnessed Jenkins, Jr. descend an external staircase from the second story at the address and conduct a crack cocaine transaction with the informant. In January 1991 Jenkins, Jr. gave Topeka Police Department officers 1261 S.W. Clay as his residential address. About a month later, the informant notified officers that Jenkins Jr. and others took him to 1201 Lincoln where they robbed, beat and interrogated him about "snitching." KBI, Agents obtained search warrants for 1201 Lincoln and what they believed to be an upstairs apartment at 1261 S.W. Clay. KBI Agents and Topeka Police Department officers executed the warrant at about 11:40 p.m. An unidentified member of the Topeka Police Department threw a "flash bang" through the second story entrance while another Topeka Police officer rammed open the second story door. Officers yelled, "Police search warrant," upon entering. Jenkins Jr. was not there. Jenkins, Sr., his wife and their daughters were. According to Mr. Jenkins' later testimony, Jenkins, Jr., had not lived in the house for over a year.
There was no upstairs apartment at 1261 S.W. Clay, though the home did have outside stairs that connected to one of three upstairs bedrooms. Officers secured the residence, including its occupants, while they secured another search warrant covering the whole house.
While officers were entering, Jenkins Sr. was allegedly making his way up the home's internal staircase and was knocked down the stairs by the flash bang. Jenkins Sr. said officers were screaming and shooting, but no bullet holes were found. Jenkins Sr. ran to grab a shotgun and was met at his downstairs bedroom entrance by an unidentified KBI agent and an unidentified Topeka Police Department officer, who told him to drop the gun, get on the floor, and put his hands behind his back. The officers handcuffed him face-down on the floor at gunpoint. The officers allegedly held Jenkins Sr. at gunpoint, and inquired about his son, Jenkins, Jr, asking where they could find him. After Jenkins Sr. had been on the floor for over twenty minutes, KBI Agent Sabel came down the home's internal staircase and saw Jenkins Sr. on the floor. Sabel examined a driver's license other officers had placed on Mr. Jenkins' back and directed the officers to uncuff Jenkins Sr. and allow him to sit down. Ms. Jenkins told a similar story and said officers ordered her on the floor, but she did not immediately obey the officer because of a back injury. Finally, Mrs. Jenkins got face-down on the floor in a spread-eagle position as the officer advised. She was not handcuffed, but was held at gun point prostrate on the floor for about twenty minutes. At one point, an unidentified officer walked up to Mrs. Jenkins, pointed his gun at her head and said, "You tell me where your son is or I will shoot." Other than to say he was a "real big guy ... kind of casually dressed," Mrs. Jenkins could not identify this officer. While this was occurring, Mrs. Jenkins was growing more concerned about her youngest daughter, who suffered from asthma and was having great difficulty breathing. Mrs. Jenkins pleaded with the officers to let her get up and help her daughter with her inhaler, but one of the officers told Mrs. Jenkins if she didn't shut her "goddamn mouth ... he was going to slap the shit out of her." Some officers searched the downstairs of the residence before arrival of the second search warrant. Damage caused to Mr. and Mrs. Jenkins' home during the search and seizure included kicked-in doors, broken windows, broken furniture, damaged ceilings and walls, burned carpeting, a broken glass piggy bank, a turned over aquarium, a broken stereo, and a destroyed shoe. Jenkins both claimed mental pain and suffering.
Although the officers and their employers were granted summary judgment for various reasons, the Tenth Circuit Court of Appeals was clearly concerned with the entry team's actions.
Concurring in the affirmance, Judge Henry stated:
I concur in the majority's legally precise disposition. I write separately only to emphasize the apparent inappropriateness of the governmental action in this case, which seems to push the envelope of "reasonableness" under the Fourth Amendment dangerously far.
The defense of the Kansas Bureau of Investigation and the City of Topeka rests upon the fact that neither Mr. nor Mrs. Jenkins could identify the officer or officers responsible for the egregious conduct that occurred in their home in the middle of the night. The defendants do a good job of pointing the finger at each other, and although this defense is legally successful in this case, it leaves quite a lot to be desired from the standpoint of the Fourth Amendment. Indeed, the district court also expressed its view that the Jenkins "have testified to facts which might support a claim of excessive force against one or more officers executing the search warrant." [Citation omitted]. I agree with the district court's conclusion. The warrant, requested at 10:48 p.m. and executed at 12:30 a.m. [Citation omitted], was served in a fashion that would have almost certainly been illegal under federal statutory law. See 18 U.S.C. 3109 (requiring federal law enforcement officers to announce their authority and purpose prior to breaking doors or windows in the execution of a search warrant); United States v. Stewart, 867 F.2d 581 (10th Cir. 1989) (applying 18 U.S.C. § 3109 to similar facts).
. . .
The governmental interests served by this commando approach are not apparent.
. . .
These governmental interests do not outweigh Mr. and Mrs. Jenkins' Fourth Amendment right to be free from flash bang, no-knock, 12:30 a.m., governmental searches of their home. Noting that the standard of review requires this court to examine the factual record in the light most favorable to Mr. and Mrs. Jenkins and extend to them all reasonable factual inferences, the threatening language allegedly used by the police -- "You tell me where your son is or I will shoot." -- gives me further pause. [Citation omitted].
. . .
Nevertheless, the majority opinion clearly states the law's requirements. I agree with the district court that Mr. and Mrs. Jenkins have "not identified sufficient evidence or pointed to any authority demonstrating that either Wood or Sabel may be liable for the such [sic] acts." [Citation omitted]. Nor have they provided support for their claim that the City of Topeka had a custom or policy of using excessive force in the execution of search warrants. Courts cannot apportion § 1983 liability on a market share basis.
I believe the defendants would do well to reevaluate their policies (or lack thereof) --whoever makes them and whatever they are -- regarding the use of such tactics in the execution of search warrants. [Citations omitted].
Jenkins, 81 F.3d at 996-998 (Henry, Circuit Judge, Concurring).
5. Defects in the Warrant Itself
State v. Cardenas, 26 Kan.App.2d 177, 980 P.2d 594 (1999). Search warrant which fails to list any items of evidence or contraband to be seized, the warrant is a general search warrant and is fatally defective.
6. Police Bringing Unnecessary Parties
Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 143 L.Ed2d 818 (1999); and Hanlon v. Berger, ___ U.S. ___, 119 S.Ct. 1706, 143 L.Ed2d 978, (1999). Allowing a newspaper reporter and photographer or other third parties not involved in warrant execution to accompany federal marshals and county police officers into a home to serve a felony fugitive warrant, or to accompany fish and wildlife officers while searching a 75,000 acre ranch for evidence of poaching, violates the Fourth Amendment to the United States Constitution. Rights were not clearly established in 1992 or 1993, so defendants were entitled to qualified immunity.
Outline originally compiled by Anthony W. Rues & James Brown, Assistant District Attorneys. Substantially revised & rearranged by John J. Knoll, January 3-6, 2000.
October 9, 2000
May 21, 2001
April 6, 2006
May 29, 2009