DOCSLIB.ORG

Developments in Federal Search and Seizure Law

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Developments in Federal Search and Seizure Law FEDERAL PUBLIC DEFENDER DISTRICT OF OREGON LISA C. HAY Federal Public Defender Oliver W. Loewy STEPHEN R. SADY 101 SW Main Street, Suite 1700 Elizabeth G. Daily Chief Deputy Defender Portland, OR 97204 Conor Huseby Gerald M. Needham Robert Hamilton Thomas J. Hester 503-326-2123 / Fax: 503-326-5524 Bryan Francesconi Ruben L. Iñiguez Ryan Costello Anthony D. Bornstein Branch Offices: Irina Hughes▲ Susan Russell Kurt D. Hermansen▲ Francesca Freccero 859 Willamette Street 15 Newtown Street Devin Huseby + C. Renée Manes Suite 200 Medford, OR 97501 Kimberly-Claire E. Seymour▲ Nell Brown Eugene, OR 97401 541-776-3630 Jessica Snyder Kristina Hellman 541-465-6937 Fax: 541-776-3624 Cassidy R. Rice Fidel Cassino-DuCloux Fax: 541-465-6975 Alison M. Clark In Memoriam Brian Butler + Nancy Bergeson Thomas E. Price 1951 – 2009 Michelle Sweet Mark Ahlemeyer ▲ Eugene Office Susan Wilk + Medford Office Research /Writing Attorney DEVELOPMENTS IN FEDERAL SEARCH AND SEIZURE LAW Stephen R. Sady Chief Deputy Federal Public Defender October 2020 Update Madeleine Rogers Law Clerk TABLE OF CONTENTS Page A. Introduction ..................................................................................................................... 3 B. What Constitutes A Search? ............................................................................................ 3 C. What Constitutes A Seizure? ......................................................................................... 14 D. Reasonable Expectation of Privacy ............................................................................... 19 E. Probable Cause .............................................................................................................. 21 1. Probable Cause To Search ................................................................................. 21 2. Probable Cause To Arrest. ................................................................................. 23 F. Searches And Seizures Pursuant To A Warrant ............................................................ 24 1. Controverted Warrant Affidavit ........................................................................ 26 2. Controverted Statements.................................................................................... 26 3. Overbreadth ....................................................................................................... 27 4. Particularity ....................................................................................................... 28 5. Obvious Lack Of Probable Cause ..................................................................... 30 6. Product Of Prior Illegality ................................................................................. 31 7. Manner Of Execution ........................................................................................ 31 8. Role Of Judicial Officer .................................................................................... 32 9. Arrest Warrants .................................................................................................. 33 G. Warrantless Searches And Seizures .............................................................................. 34 1. Consent .............................................................................................................. 34 2. Plain View ......................................................................................................... 39 3. Investigative Stops Less Intrusive Than Arrest ................................................. 40 4. Incident To Arrest .............................................................................................. 49 i 5. Exigent Circumstances ...................................................................................... 54 6. Automobiles And Other Vehicles ...................................................................... 59 7. Inventory ............................................................................................................ 60 8. Special Needs And Administrative Searches .................................................... 60 9. Border Searches ................................................................................................. 63 H. Fruit Of The Poisonous Tree ......................................................................................... 65 1. Independent Source Rule ................................................................................... 65 2. Inevitable Discovery .......................................................................................... 66 3. Attenuation ........................................................................................................ 67 4. Witness Testimony ............................................................................................ 68 5. Impeachment ..................................................................................................... 69 6. Nature Of Illegal Intrusion ................................................................................ 69 7. Type Of Proceeding. .......................................................................................... 69 I. Discovery ....................................................................................................................... 70 Conclusion ................................................................................................................................. 70 ii DEVELOPMENTS IN FEDERAL SEARCH AND SEIZURE LAW Stephen R. Sady Chief Deputy Federal Public Defender District of Oregon October 2020 A. Introduction The federal courts are the scene of an ongoing struggle between the government’s need to secure evidence to convict law-breakers and the individual’s interest in being free from government intrusions. The Fourth Amendment sets out the language central to this conflict: The right of the people to be secure in their persons, houses, 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. For attorneys representing criminal defendants, court decisions on search and seizure often seem to overwhelmingly favor the interests of law enforcement. For over thirty years, we have been compiling cases in which defendants and civil rights plaintiffs have prevailed. By focusing on successful Fourth Amendment arguments, we hope to provide raw material for criminal defense lawyers to fashion suppression motions, based on chronology and causation, that can enforce our clients’ rights against government overreach while supporting an expansive view of the Fourth Amendment’s protections. In federal court, in most cases, federal law provides the relevant authority in assessing the legality of a search. In federal prosecutions, even searches solely by state officers are judged only against federal standards. United States v. Chavez-Vernaza, 844 F.2d 1368, 1372-74 (9th Cir. 1987). There are exceptions, such as the standard for arrest and detention where, in the absence of an applicable federal statute, the law of the state where the warrantless arrest takes place determines its validity. United States v. Shephard, 21 F.3d 933, 936 (9th Cir. 1994); United States v. Mota, 982 F.2d 1384, 1387 (9th Cir. 1993). Favorable state court precedents construing the Fourth Amendment provide persuasive authority equal to federal interpretations. See Stone v. Powell, 428 U.S. 465, 493 n.35 (1976). B. What Constitutes A Search? The first requirement for a search is government action, because private intrusions, no matter how invasive, do not implicate the Fourth Amendment. Walter v. United States, 447 U.S. 649, 657 (1980); Burdeau v. McDowell, 256 U.S. 465, 475 (1921). Foreign law enforcement officials are treated as private actors for Fourth Amendment purposes. United States v. Odoni, 782 F.3d 1226, 1238-39 (11th Cir. 2015). 3 COUNTERPOINT – Where a private party acts as an “instrument or agent” of the state in effecting a search, Fourth Amendment interests are implicated. Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971). In determining whether the actions of a private person are attributable to the government, the Ninth Circuit set out a two-part test: (1) whether the government knew of and acquiesced in the conduct; and (2) whether the party performing the search intended to assist law enforcement. United States v. Walther, 652 F.2d 788, 791-93 (9th Cir. 1981) (an airport employee’s actions were attributable to the government, even though the government had no knowledge of the particular search, because government officials previously paid the employee to search bags); see also United States v. Reed, 15 F.3d 928, 930-33 (9th Cir. 1994) (a hotel manager acted as government agent when the manager reported a guest’s suspicious activity to police and police were present while the manager searched the guest’s room). The Fourth Amendment is also triggered when government actors exceed the scope of the initial private search. United States v. Jacobsen, 466 U.S. 109, 104 (1984). Police exceed the scope of private searches when they examine a closed container not previously opened by the private party unless they are “substantially certain” of what is inside. United States v. Runyan, 275 F.3d 449, 463-64 (5th Cir. 2001) (analogizing digital media storage devices to containers and ruling police exceeded
Load more

Recommended publications
  • STRUCTURING the PUBLIC DEFENDER Irene Oriseweyinmi Joe*
    STRUCTURING THE PUBLIC DEFENDER Irene Oriseweyinmi Joe* ABSTRACT. The public defender may be critical to protecting individual rights in the U.S. criminal process, but state governments take remarkably different approaches to distributing the services. Some organize indigent defense as a function of the executive branch of state governance. Others administer the services through the judicial branch. The remaining state governments do not place it within any branch of state government, they delegate its management to local counties. This administrative choice has important implications for the public defender’s efficiency and effectiveness. It influences how the public defender will be funded and also the extent to which the public defender, as an institution, will respond to the particular interests of local communities. So, which branch of government should oversee the public defender? Should the public defender exist under the same branch of government that oversees the prosecutor and the police – two entities that the public defender seeks to hold accountable in the criminal process? Should the provision of services be housed under the judicial branch which is ordinarily tasked with being a neutral arbiter in criminal proceedings? Perhaps a public defender who is independent of statewide governance is ideal even if that might render it a lesser player among the many government agencies battling at the state level for limited financial resources. This article answers this question about state assignment by engaging in an original examination of each state’s architectural choices for the public defender. Its primary contribution is to enrich our current understanding of how each state manages the public defender function and how that decision influences the institution’s funding and ability to adhere to ethical and professional mandates.
    [Show full text]
  • Probable Cause for Arrest in Indiana: a Prosecutor Hoist with His Own Kinnaird
    Indiana Law Journal Volume 45 Issue 1 Article 3 Fall 1969 Probable Cause for Arrest in Indiana: A Prosecutor Hoist With His Own Kinnaird F. Thomas Schornhorst Indiana University Maurer School of Law Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Criminal Law Commons, and the Evidence Commons Recommended Citation Schornhorst, F. Thomas (1969) "Probable Cause for Arrest in Indiana: A Prosecutor Hoist With His Own Kinnaird," Indiana Law Journal: Vol. 45 : Iss. 1 , Article 3. Available at: https://www.repository.law.indiana.edu/ilj/vol45/iss1/3 This Comment is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. COMMENTS PROBABLE CAUSE FOR ARREST IN INDIANA: A PROSECUTOR HOIST WITH HIS OWN KINNAIRD F. THOMAS SCHORNHORSTt For'tis the sport to have the enginer Hoist with his own petar.... HAmtLET, ACT III, SCENE IV A judicial decision that an arrest warrant must be supported by an affidavit alleging facts and circumstances sufficient to justify a magist- rate's finding of probable cause in order to make lawful an arrest and incidental search based on that warrant would not seem worthy of law journal commentary in 1969. One would think that this issue had been settled in the stormy period following Mapp v. Ohio" in Ker v. Cali- fornia,' Beck v. Ohio,' Wong Sun v. United States4 and Aguilar v.
    [Show full text]
  • The Rugged Individual's Guide to the Fourth Amendment: How The
    University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2018 The Rugged Individual's Guide to the Fourth Amendment: How the Court's Idealized Citizen Shapes, Influences, and Excludes the Exercise of Constitutional Rights Scott E. Sundby University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Civil Rights and Discrimination Commons, and the Constitutional Law Commons Recommended Citation Scott E. Sundby, The Rugged Individual's Guide to the Fourth Amendment: How the Court's Idealized Citizen Shapes, Influences, and Excludes the Exercise of Constitutional Rights, 65 UCLA L. Rev. 690 (2018). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. The Rugged Individual's Guide to the Fourth Amendment: How the Court's Idealized Citizen Shapes, Influences, and Excludes the Exercise of Constitutional Rights Scott E. Sundby ABSTRACT Few figures inspire us like individuals who stand up for their rights and beliefs despite the peril that may follow. One cannot help but feel awe looking at the famous photograph of the lone Tiananmen Square protestor facing down a line of Red Army tanks, his willowy frame clothed in a simple white shirt and black pants as he holds a shopping bag.
    [Show full text]
  • Defense Counsel in Criminal Cases by Caroline Wolf Harlow, Ph.D
    U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics Special Report November 2000, NCJ 179023 Defense Counsel in Criminal Cases By Caroline Wolf Harlow, Ph.D. Highlights BJS Statistician At felony case termination, court-appointed counsel represented 82% Almost all persons charged with a of State defendants in the 75 largest counties in 1996 felony in Federal and large State courts and 66% of Federal defendants in 1998 were represented by counsel, either Percent of defendants ù Over 80% of felony defendants hired or appointed. But over a third of Felons Misdemeanants charged with a violent crime in persons charged with a misdemeanor 75 largest counties the country’s largest counties and in cases terminated in Federal court Public defender 68.3% -- 66% in U.S. district courts had represented themselves (pro se) in Assigned counsel 13.7 -- Private attorney 17.6 -- publicly financed attorneys. court proceedings prior to conviction, Self (pro se)/other 0.4 -- as did almost a third of those in local ù About half of large county jails. U.S. district courts Federal Defender felony defendants with a public Organization 30.1% 25.5% defender or assigned counsel Indigent defense involves the use of Panel attorney 36.3 17.4 and three-quarters with a private publicly financed counsel to represent Private attorney 33.4 18.7 Self representation 0.3 38.4 lawyer were released from jail criminal defendants who are unable to pending trial. afford private counsel. At the end of Note: These data reflect use of defense counsel at termination of the case.
    [Show full text]
  • Warrantless Entries Into Private Homes by Mpd Officers
    WARRANTLESS ENTRIES INTO PRIVATE HOMES BY MPD OFFICERS REPORT AND RECOMMENDATIONS OF THE POLICE COMPLAINTS BOARD TO MAYOR VINCENT C. GRAY, THE COUNCIL OF THE DISTRICT OF COLUMBIA, AND CHIEF OF POLICE CATHY L. LANIER June 12, 2013 POLICE COMPLAINTS BOARD Kurt Vorndran, Chair Assistant Chief Patrick A. Burke Iris Chavez Karl M. Fraser Margaret A. Moore 1400 I Street, NW, Suite 700 Washington, DC 20005 (202) 727-3838 Website: www.policecomplaints.dc.gov Table of Contents I. Introduction and Overview ............................................................................................1 II. Complaints Received by OPC .......................................................................................2 III. Current Policies and Practices .......................................................................................5 IV. Legal and Policy Concerns ............................................................................................7 V. Best Practices .................................................................................................................8 VI. Recommendations ........................................................................................................11 VII. Conclusion ...................................................................................................................13 I. INTRODUCTION AND OVERVIEW Pursuant to the Fourth Amendment of the United States Constitution, every citizen is guaranteed the right to be free from unreasonable searches and seizures. When the police
    [Show full text]
  • Fourth Amendment--Requiring Probable Cause for Searches and Seizures Under the Plain View Doctrine Elsie Romero
    Journal of Criminal Law and Criminology Volume 78 Article 3 Issue 4 Winter Winter 1988 Fourth Amendment--Requiring Probable Cause for Searches and Seizures under the Plain View Doctrine Elsie Romero Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Elsie Romero, Fourth Amendment--Requiring Probable Cause for Searches and Seizures under the Plain View Doctrine, 78 J. Crim. L. & Criminology 763 (1987-1988) This Supreme Court Review is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/88/7804-763 THE JOURNAL OF CRIMINAL LAw & CRIMINOLOGY Vol. 78, No. 4 Copyright @ 1988 by Northwestern University, School of Law Printed in U.S.A. FOURTH AMENDMENT-REQUIRING PROBABLE CAUSE FOR SEARCHES AND SEIZURES UNDER THE PLAIN VIEW DOCTRINE Arizona v. Hicks, 107 S. Ct. 1149 (1987). I. INTRODUCTION The fourth amendment to the United States Constitution pro- tects individuals against arbitrary and unreasonable searches and seizures. 1 Fourth amendment protection has repeatedly been found to include a general requirement of a warrant based on probable cause for any search or seizure by a law enforcement agent.2 How- ever, there exist a limited number of "specifically established and
    [Show full text]
  • Roommate Tenancy Contract This Agreeement Is Provided for the Mutual Benefit of Roommates
    Roommate Tenancy Contract This agreeement is provided for the mutual benefit of roommates. The University assumes no responsibility. This agreement made on ______________ is a contract between ______________________________________, ________________________________, and ___________________________________________________, co-tenants at ____________________ (address). We hope to make certain that all responsibilities of renting will be shared equally by all roommates. It is for this reason that we are signing this agreement. We understand that we are entering into a legally binding agreement with one another. We also understand that we as a group and I as an individual are responsible to our landlord, the utility companies, and each other. Term or Period of Agreement This agreement shall remain in effect from ____________________ to __________________________________. Under a month-to-month tenancy, each roommate must give the other roommates thirty (30) days ___ written or ___ oral notice in advance, if for any reason the roommate will be moving out before the date shown above. The roommate may leave and be free of any further financial obligations for the thirty-day notice period, if a substitute roommate is found and is acceptable by the remaining roommate and the owner. Under a lease agreement, the departing roommate will be responsible until a replacement is found. The roommate who is leaving may still be obligated to the landlord by the terms of the signed lease. The landlord should be notified of any pending roommate switch, so that proper arrangements can be made for legal vacating of property. Deposit The roommates have paid a security deposit of ________. (List amount each roommate has paid.) ______________________________________________________________ Each roommate will receive his/her portion from the landlord at the end of the tenancy or when the new roommate moves in and pays a deposit to replace the departing roommate's portion of the security deposit.
    [Show full text]
  • Home Life: the Meaning of Home for People Who Have Experienced Homelessness
    Home life: the meaning of home for people who have experienced homelessness By: Sarah Elizabeth Coward A thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy The University of Sheffield Faculty of Social Sciences Department of Sociological Studies September 2018 Abstract ‘Home’ is widely used to describe a positive experience of a dwelling place (shelter). It is about a positive emotional connection to a dwelling place, feeling at ‘home’ in a dwelling place, where both physiological and psychological needs can be fulfilled. This portrayal of ‘home’, however, is not always how a dwelling place is experienced. A dwelling place can be a negative environment, i.e. ‘not-home’, or there may be no emotional attachment or investment in a dwelling place at all. Both circumstances receive little attention in the literature. This research explores the realities of ‘home’ by delving into the ‘home’ lives of seventeen individuals who had experienced a range of different housing situations, including recent homelessness, moving to a (resettlement) sole tenancy and then moving on from that tenancy. Participants were asked to recall their housing histories, from their first housing memory as a child up to the time of interviewing. For each housing episode, they were asked to describe the circumstances of their life at the time, for example relationships, employment and education. They were also asked to reflect on their housing experiences. Similarities and differences of experience are explored according to gender and type of housing situation. This research tells the story of lives characterised by housing and social instability, often triggered by a significant change in social context in childhood.
    [Show full text]
  • Fourth Amendment Litigation
    Still the American Frontier: Fourth Amendment Litigation Deja Vishny September 2012 United States Constitution: The Fourth Amendment 1 Wisconsin State Constitution Article 1 Sec. 11 The Exclusionary Rule The Fruit of the Poisonous Tree Doctrine Attenuation Inevitable Discovery Independent Source Other exceptions to the Fruit of the Poisonous Tree Doctrine Applicability of the Fourth Amendment: The Expectation of Privacy Cars Sample list of areas the court has found to private and non-private. Deemed Non-Private: Standing & Overnight Guests Searches by Private Parties Requirement of Search Warrant Determination of probable cause Definition of the Home: Curtilage Permissible scope of search warrants Plain View Good Faith Knock and Announce Challenging Search Warrants Permissible warrantless entries and searches in homes and businesses Exception: Search Incident to Arrest Exception: Protective Sweep Exception: Plain View Exception: Exigent Circumstances : The Emergency Doctrine Exception: Exigent Circumstances: Hot Pursuit Exception: Imminent Destruction of Evidence Warrantless searches without entry Consent Searches Who may consent to entry and searches of the home Scope of consent Seizures of Persons: The Terry Doctrine Defining a Seizure Permissible Length of Temporary Seizures Permissible reasons for a Seizure: 2 Seizures bases on anonymous tips Seizures on Public Transportation Requests for Identification Roadblocks: Reasonable Suspicion: Frisk of Suspects Scope of Terry Frisk Seizures of Property Arrest Probable Cause for Arrest Warrantless
    [Show full text]
  • Drawing a Line Between Terry and Miranda: the Degree and Duration of Restraint Katherine M
    Drawing a Line between Terry and Miranda: The Degree and Duration of Restraint Katherine M. Swifit INTRODUCTION A felon answered the door in his underwear. Three police officers and three parole officers were there to search his apartment for a gun on the basis of a tip from his mother.! The police handcuffed him in the hallway outside his apartment, but told him he was not under ar- rest; the handcuffs were for his safety and the safety of the officers. Then they took him inside and asked about the gun, which he told them was in a shoebox on the table. The police never read the suspect his Miranda warnings. Was he "in custody"? Or was this merely a tem- porary detention? Mirandav Arizona' held that police may not interrogate a suspect who has been taken into custody without first issuing the familiar warnings Investigative stops, valid under Terry v Ohio,' are not sub- ject to Miranda's notice requirements.! Courts have not settled on a workable rule for determining custody in Terry stop cases. Part of the problem is that custody cases involve so many factors.! But more im- portant, coercive police behavior that would have required Miranda warnings in 1966 often is deemed reasonable under Terry today. This has led to a circuit split over whether coercive Terry stops constitute Miranda custody. The First, Fourth, and Eighth circuits hold t B.A., BJ. 1998, University of Missouri-Columbia; J.D. 2006, The University of Chicago. I The facts used in this example are drawn from United States v Newton, 369 F3d 659, 663 (2d Cir 2004).
    [Show full text]
  • IN the COURT of APPEALS of IOWA No. 17-1369 Filed December
    IN THE COURT OF APPEALS OF IOWA No. 17-1369 Filed December 19, 2018 STATE OF IOWA, Plaintiff-Appellee, vs. TODD JUNIOR LANDIS, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, David N. May, (suppression) and Donna L. Paulsen (trial), Judges. A defendant appeals his judgment and sentence for operating while intoxicated and possession of a controlled substance, third offense. CONVICTIONS AFFIRMED; SENTENCING ORDER VACATED IN PART AND REMANDED. Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee. Considered by Danilson, C.J., and Vogel and Tabor, JJ. 2 TABOR, Judge. Todd Landis challenges his convictions for operating while intoxicated (OWI) and possession of a controlled substance, third offense, enhanced by his habitual-offender status. Landis contends the district court should have excluded the marijuana police took from his pocket thirty minutes before arresting him for OWI. The court found the marijuana admissible under the search-incident-to- arrest exception to the warrant requirement and the inevitable-discovery doctrine. We agree with the court’s reliance on inevitable discovery. The State proved jail personnel would have found the contraband during the OWI booking process. Landis also challenges his sentence. He alleges the district court gave only “boilerplate” reasons for incarceration. To the contrary, the court explained its rationale, emphasizing Landis’s prior convictions and “experience on probation.” As a result, we can review its exercise of discretion and affirm the concurrent prison terms. On Landis’s final issue, we remand for entry of a corrected sentencing order assessing the costs of his dismissed simple-misdemeanor charge to the State.
    [Show full text]
  • Search and Seizure of Electronic Devices at The
    SEARCH AND SEIZURE * OF ELECTRONIC DEVICES AT THE BORDER Laura K. Donohue** I. INTRODUCTION .............................................................................................................................. 1 II. BORDER SEARCH AUTHORITIES RELATED TO CUSTOMS ............................................................... 4 A. Commercial Regulation versus Revenue Generation ............................................................. 5 B. Contraband in the Early American Republic .......................................................................... 6 C. Contemporary Search Authorities at Border Crossings .......................................................... 8 D. Mail Search ........................................................................................................................... 10 E. Special Protections Afforded the Home ............................................................................... 11 F. Extended Border Search and the Functional Equivalent ...................................................... 13 G. Restrictions on Customs Searches: Who and Why ............................................................... 14 III. BORDER SEARCH AUTHORITIES RELATED TO IMMIGRATION .................................................... 15 IV. BORDER SEARCH OF ELECTRONIC DEVICES .............................................................................. 17 A. Not Subject to Reasonable Suspicion ................................................................................... 18 B. Supported by Reasonable
    [Show full text]