4th Amendment - Standard 1: Reasonable
Expectation of Privacy a. Person expects privacy
b. Society sees expectation as reasonable
Kyllo v. U.S., 533 U.S. 27 (2001) Thermal Imaging
2: Trespass Property U.S. v. Jones, 132 S. Ct.
945 (2012)
GPS on Car Land Florida v. Jardines, 133 S.
Ct. 1409 (2013)
Area Around House
Search Warrant
Va. Code § 19.2-59 Search Without a Warrant
Malfeasance in Office
Liable to Compensatory & Punitive Damages
2d Time: Immediately Forfeit Office
Caselaw limits to searches without probable cause
Good Faith Exception
United States v. Leon, 468 U.S. 897 (1984)
Once a search warrant is issued officers can rely on it without concern over its validity
Exceptions:
– False Affidavit
• Knew or Should Have
– Affidavit “So Lacking Indicia”
– Warrant “So Facially Deficient”
– Magistrate Not a Neutral Arbiter
Search Warrant Exceptions
CONSENTAbandon
US v. Jackson, (2013) - Trash
Lie
US v. Saafir, (2014) - Not Allowed
Coercion
US v. Robinson, (2013)
Harris v. Commonwealth, (2003)
Amin v. Henrico, (2012)
PLAIN VIEW(1) Not violated 4th to get there
(2) Contraband's character immediately apparent
(a) Arizona v. Hicks, 480 US 321 (1987)
– Move the item
(b) Cauls v. Commonwealth, (2009)
– Dual Purpose
(3) Lawful right to access
Search Warrant Exceptions
EXIGENT CIRCUMSTANCES
Probable Cause
– Danger
– Destroy
– Escape
Ross v. Commonwealth, (2013)
Emergency Exception
Washington v. Commonwealth, (2012)
Burglary / Open Door / Protective Sweep
Smith v. Commonwealth, (2010)
Running from front room with something white in hands
United States v. Taylor, (2010)
Searching for parent / parent angry-aggressive
West v. Commonwealth, (2009)
Match ID of Rapist
Search Warrant Exceptions
Riley v. California, 134 S.Ct. 2473 (2014) - PHONES
Must get a search warrant
Not a danger
No potential for evidence to be destroyed
INCIDENT TO ARREST
- Person Arrested
- Within Immediate Control
CAR (Now Limited)
Search Warrant Exceptions COMMUNITY CARETAKER
No Probable Cause
– Aid those in distress
– Combat Hazards
– Prevent Potential Hazards
– Preserve & Protect Public Safety
VEHICLE IMPOUNDED
Knight v. Commonwealth, (2012)
Search of Container in Police Custody
- Divorced from criminal investigation
- To protect property while in police hands
- Protect police against lost / stolen claims
- Protect the public
Michigan v. Fisher, (2009)
Someone hurt or violence in progress
4th Amendment - Cars
Carroll v. U.S., 267 U.S. 132 (1924).
If an officer has probable cause to believe contraband is in a car he can search the car without a warrant
Because a car is mobile
Arizona v. Gant, 556 U.S. 332 (2009)
Cannot search a car solely because a person arrested in it
Can Search if:
Suspect Unsecured
Reasonable to believe evidence of the crime the offender was arrested for will be found in the car
4th Amendment - Cars
IMPOUNDING
Fauntleroy v. Commonwealth, (2013)
- Lawfully Impounded
- Pursuant to standard police procedures
- Not a pretext to investigate
Required by Law§ 46.2-301.1
Revoked for Intoxicated Driving
Habitual Offender
Revoked for Refusing Blood / Breath Test
Second Time Driving Without a License (§ 46.2-300)
MISSING - § 46.2-301
EXCEPTIONS – Expired < 1 year
- Under 18 years of age
4th Amendment - Cars
STOPSWhren v. U.S., 517 US 806 (1996).
- Any Traffic Violation
Mason v. Commonwealth, (FEB15)
- Reasonable Suspicion
- Hanging from Rear View Mirror (46.2-1054)
Navarette v. California, (2014)
- Anonymous call to 911
4th Amendment - Cars
During StopThomas v. Commonwealth, (2010)
Obtain Registration
Get ID's of all in car
Get confirmation from dispatch
Detain everyone in car
Ask questions
Order everyone to exit the car
Seize any weapon the moment seen
Walk dog around car
DO NOT EXTENDRodriguez v. U.S., (APR15)
De minimus
Officer Safety = OK
Criminal Investigation = Unconstitutional
“Officer has to be reasonably diligent”
“Critical question [is] whether the investigation adds time to the stop.”
DOG SNIFF
U.S. v. Mason, (2010)
Can extend with reasonable articulable suspicion
4th Amendment - Cars
PassengersUS v. George, (2013)
To pat down must have reasonable suspicion
Commonwealth v. Smith, (2011)
Prior Record (for Terry pat down)
Atkins v. Commonwealth, (2010)
Can detain all if one has pending warrants
Whitehead v. Commonwealth, (2009)
Dog alert not enough to search passenger
Passenger RightsAtkins v. Commonwealth, (2010)
Can challenge stop because seized
Right to object to search depends on totality of circumstances
- Show a possessory interest
- Show a right to exclude others from vehicle
- Show expectation that vehicle would be free from search
- Show he exercised control
- Show he took precautions to protect privacy
4th Amendment - Person Subsequent to Arrest United States v. Robinson,
414 U. S. 218 (1973)
Search of an arrested person requires no additional investigation
Packages immediately associated with the arrestee can be searched
Bellamy v. Commonwealth, (2012)
Bad info from dispatch
Perry v. Commonwealth, (2009)
If probable cause can search prior to arrest
Riley v. California, 134 S. Ct. 2473 (2014)
Cell Phones Not Searchable
4th Amendment - Person Safety Frisk (Terry Pat
Down) Standard: Reasonable Suspicion of a
Weapon
Officer can remove:
An item he believes to be a weapon
Immediately Apparent Evidence of a Crime
No Dual Purpose Grandison v. Commonwealth,
274 Va. 316 (2007)
4th Amendment - Person
Thompson v. Commonwealth, APR09
Known drug sale area, refusal to answer whether armed, nervous = not enough
Whitaker v. Commonwealth, (2010)
Flight, abandoning property, running evasively, holding onto a pocket, admitting armed when caught = ENOUGH
US v. Powell, (2011)
Prior Record not enough
Suspended license not enough
US v. Massenberg, (2011)
Request to search refused
Jones v. Commonwealth, (2010)
Can't seize wallet
Baker v. Commonwealth, OCT10
Potentially Dangerous location, nervousness, time of day = not enough
4th Amendment - Person
CONSENSUAL
ENCOUNTERBranham v. Commonwealth, (2012)
No level of suspicion required
Jones v. Commonwealth, (2010)
Intent to put in custody if does not voluntarily comply is not relevant
Montague v. Commonwealth, (2009)
Can ask for ID
Don't have to tell him he can leave
Reasonable person would believe he could leave
FACTORS CHANGING TO SEIZURE
Several threatening officers
Display of weapons
Physical touching
Language indicating required compliance
4th Amendment – Open Fields
BUT NOT CURTILAGE United States v. Dunn, 480 U.S.
294 (1987)
– Proximity to the home
– Within enclosure around home
– Nature of the area's use
– Steps taken to protect from observation
Hester v. United States, 265 U.S. 57 (1924)
– Not protected by 4th Amendment
Oliver v. United States, 466 U.S. 170 (1984)
– Past “NO TRESPASSING” sign and locked gate
California v. Greenwood, 486 U.S. 35 (1988)
– Visible from above (plane)
Florida v. Riley, 488 U.S. 445 (1989)
– Visible from above (helicopter)
4th Amendment – House (Arrest)
Enter Arrestee's House with Warrant Misdemeanor or Felony
U.S. v. Spencer, 684 F.2d 220 (1982)
Reasonable Belief:
Suspect's Dwelling Suspect in the Residence U.S. v. Magluta, 44 F.3d 1530
(1995)
Cannot Enter 3d Party House Steagald v. U.S., 451 U.S. 204 (1981)
Follow into House Hot Pursuit U.S. v. Santana, 427 U.S. 38 (1976)
Protective Sweep for People During Arrest Cursory check
Length of time of arrest
Maryland v. Buie, 494 U.S. 325 (1990)
US v. Jones, 4Cir (2012)
4th Amendment – House (Search)
Permission United States v. Matlock, 415 U.S. 164 (1974)
- One person present
- Common Authority
Georgia v. Randolph, 547 US 103 (2006)
- Two residents present
- One agrees / One refuses
Fernandez v. California, 134 S.Ct. 1126 (2014)
- Two residents
- One refuses
- Refuser arrested
Testa v. Commonwealth, (2009)
- Live in guest
4th Amendment – House (People)
Michigan v. Summers, 452 U. S. 692 (1981)
– Detain occupants without suspicion
– Officer safety
– Prevent flight
– Facilitate search
Muehler v. Mena, 544 U.S. 93 (2005
– Can use handcuffs
Bailey v. U.S., 133 S. Ct. 1031 (2013)
- Cannot detain someone who has left the residence
4th Amendment – Anonymous Tips
General Rule Must be corroborated
Innocent Details Predict Future Behavior
Navarette v. California, 134 S. Ct. 50 (2014) Innocent Details
Report of Immediate Criminal Activity
Dispatch Ability to Track Calls
Questioning - 5th & 6th Amendments
Don't Have to Worry if Suspect has a Lawyer Must Assert the Right
Montejo v. Louisiana, 556 U.S. 778 (2009)
Questioning: Coercion Official Compulsion Denying Free
Choice
Governmental Coercion makes refusal impossible
Threats to governmental benefit (government job)
Assertion would incriminate
– Salinas v. Texas, 133 S. Ct. 928 (2013)
STANDARD
(1) Will has been overborne and (2) Capacity for self determination has been critically impaired
– Avent v. Commonwealth, (2010)
MINORS (No Parent)
Robinson v. Commonwealth, (2014)
- Circumstance weighing against introduction of confession
- Does not mandate suppression of the confession
Angel v. Commonwealth, (2011)
- A minor (17 year old) who is read Miranda rights by officers and understands those rights, does not need a guardian present.
Questioning – No Miranda Required
Tizon v. Commonwealth, (2012)
- Temporary Investigative Detention
- When trying to sort out the scene
- Voluntary statements without questioning
Howes v. Fields, (2012)
- In prison, unrestrained, told can return to cell
Brooks v. Commonwealth, (2011)
- Consensual search for something else – ask if drugs belong to resident
Anderson v. Commonwealth, (2010)
- Public Safety
Testa v. Commonwealth, (2009)
- Non-responsive, unforeseen statement
Miranda Required If in custody or deprived of
freedom in a significant way
– Objective Test
– Not Officer's Belief
– Not Suspect's Belief
– U.S. v. Hashime, 734 F.3d 278 (2013)
Factors Time, Place, & Purpose of
encounter
Officer: Words used, Tone of voice, & Demeanor
Number of officers
Potential display of weapons
Physical contact
Suspect: Isolation, Separation from family, & Physical restrictions
2 STEP INTERROGATION
– Missouri v. Seibert, 542 U.S. 600 (2004)
– Kuhne v. Commonwealth, (2012)
Miranda STOP QuestioningMust Unambiguously Demand Counsel
- Davis v. U.S., 512 US 452 (1994)
Not an Unambiguous Demand
- Asking to clarify rights
- Unclear whom suspect wants present
- States might want an attorney
- Expressing reservations about not having an attorney
Zektaw v. Commonwealth, (2009)
Unambiguous Demand
“I’d really like to talk to a lawyer”
- Zektaw v. Commonwealth, (2009)
“Nah, I want a lawyer, you know what I’m saying?”
- Commonwealth v. Ferguson Jr, JUN09
“I already have a lawyer. I mean, I can talk to you, don't get me wrong. But I just want to make sure I don't, like I said before, just jam myself up."
- Commonwealth v. Hilliard, 270 Va. 42 (2005)
"Uh, yeah. I'd like to do that."
- Smith v. Illinois, 469 U.S. 91 (1984)
Questioning: Post-Assertion
SUSPECT RE-INITIATES
– a willingness and a desire for a generalized discussion about the investigation
– "Well, what is going to happen to me now?"
– Oregon v. Bradshaw, 462 U.S. 1039 (1983)
OFFERS TO ASSIST
– Offers to trade info for a better outcome
– Incriminates self
US v. Johnson, (2013)
SUBTLE COMPULSION
- “That’s fine. I’m not the person who robbed the white lady and hit her in the head with a brick”
- “If that’s the story he wants to tell the judge, then, that’s fine”
Commonwealth v. Quarles, (2011)
EVEN IF SUPPRESSED If Statement Excluded
Physical Evidence developed from the statement can still be used
U.S. v. Patane, 542 U.S. 630 (2004)
Can be used to impeach Oregon v. Hass, 420 U.S.
714 (1975)
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