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Tony Gallagher Federal Defender. Search & Seizure: Past, Present and Future A quick “tour” of the basics A quick “tour” of the basics Practical realities.

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Presentation on theme: "Tony Gallagher Federal Defender. Search & Seizure: Past, Present and Future A quick “tour” of the basics A quick “tour” of the basics Practical realities."— Presentation transcript:

1 Tony Gallagher Federal Defender

2 Search & Seizure: Past, Present and Future A quick “tour” of the basics A quick “tour” of the basics Practical realities today Practical realities today Where are we going? Where are we going?

3 My other life -- My other life --

4 The “hint” will be a football team fight song from the state named in the cite of the case Name that Case

5 Constitutional Foundation 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.

6 The Basics The Fourth Amendment applies when The Fourth Amendment applies when 1) the intrusion is the product of government action 1) the intrusion is the product of government action Private citizens are exempt Private citizens are exempt Security contractors are not covered either Security contractors are not covered either

7 The Basics The Fourth Amendment applies when The Fourth Amendment applies when 2) the intrusion breaches society’s reasonable expectation of privacy 2) the intrusion breaches society’s reasonable expectation of privacy

8 The Basics The Fourth Amendment applies when The Fourth Amendment applies when and 3) the intrusion breaches the legitimate expectations of privacy of the individual in question. and 3) the intrusion breaches the legitimate expectations of privacy of the individual in question.

9 Searches not protected by the Fourth Amendment Abandoned property Abandoned property Foreign Searches Foreign Searches BUT, no gross or brutal maltreatment BUT, no gross or brutal maltreatment Private Search Private Search No Government action No Government action

10 California vs. Greenwood Facts: Facts: Billy Greenwood was a suspected drug dealer, but police did not have enough evidence to obtain a search warrant. Instead, police searched his trash. Question: Question: Did a warrantless search of Greenwoods garbage violate the 4 th Amendment? Ruling Ruling: No, once trash is placed on a public curb there is no longer a reasonable expectation of privacy!

11 listed search for specific items listed search the place described search particular location issued by a neutral judge all supported by probable cause

12 What is Probable Cause? A reasonable belief that a specific person has committed a crime, and that a search in a specific location will produce evidence of a specific crime.

13 Probable Cause Continuum No Information Hunch Reasonable Suspicion Reasonable Grounds Probable Cause Preponderance of the Evidence Beyond a Reasonable Doubt

14 United States v. Leon A facially invalid warrant can be “saved” and the evidence derived from it admissible if the officers executing the warrant reasonably or in good faith relied on the warrant Good Faith Good faith reliance does NOT apply if police were reckless or if the warrant is so lacking in probable cause that no officer could reasonably rely on it

15 Exceptions to the Warrant Requirement

16 Warrantless Search & Seizure 1. Search incident to a lawful arrest 1. Search incident to a lawful arrest 2. Stop and frisk 2. Stop and frisk 3. Consent 3. Consent 4. Plain view 4. Plain view 5. Hot pursuit 5. Hot pursuit 6. Vehicles 6. Vehicles 7. Emergencies 7. Emergencies 8. Border and Airport 8. Border and Airport

17 Search Incident To Arrest Search Incident To Arrest Probable Cause (PC) is required Probable Cause (PC) is required Expectation of Privacy is diminished Expectation of Privacy is diminished Arrest of person Arrest of person Arrest in a car Arrest in a car

18 Facts: Terry and two other men were observed by a plain clothes policeman in what the officer described as “casing a job.” The officer stopped and frisked the men and found weapons on two of the Subjects. Question: Was the search and seizure of Terry a violation of the 4 th Amendment?

19 Stop and Frisk Police who reasonably think that a person is behaving suspiciously and is likely to be armed may stop and frisk the suspect for weapons. Search may only be for weapons.

20 Horton v. California, 496 U.S. 128 (1990) Horton v. California, 496 U.S. 128 (1990) The Horton test requires the officer to be: lawfully present at the place where the evidence can be plainly viewed, lawfully present at the place where the evidence can be plainly viewed,

21 the officer must have a lawful right of access to the object, and the officer must have a lawful right of access to the object, and the incriminating character of the object must be “immediately apparent” the incriminating character of the object must be “immediately apparent”

22 Plain View “Plain hearing” and “plain smell”, too. “Plain hearing” and “plain smell”, too.

23 Open Fields and Open Air California v. Ciraolo (1986): California v. Ciraolo (1986): In 1982 police in California were given an anonymous tip of a person growing pot in his backyard, unable to view the drug on foot they took a plane. In 1982 police in California were given an anonymous tip of a person growing pot in his backyard, unable to view the drug on foot they took a plane. The Supreme Court ruled that the immediate area around a home is protected against some intrusions, but this search was conducted from a public vantage point where activities are visible – the air.

24 Vehicle Exception From Incident to Arrest to PC… From Incident to Arrest to PC… PC required PC required Scope = whole car Scope = whole car Vehicle must be operable Vehicle must be operable

25 25 Vehicle Checkpoint Individualized suspicion not required Must not be discriminatory Lawful for regulatory situations Examples: Inspection, Registration, License Unlawful for detecting criminal activity Example: Drug checkpoints Lawful for information gathering Example: Homicide, Burglaries, Hit-and-Run

26 26 Pretextual Stop Officer’s motivation for stop irrelevant Objectively lawful justification is the test for legality of stop. Not “would” you stop it, but “could” you? Example: Officer’s hunch of drug involvement does not invalidate traffic stop that is otherwise lawful, e.g., inoperative tail light. Example: Officer’s hunch of drug involvement does not invalidate traffic stop that is otherwise lawful, e.g., inoperative tail light.

27 27 Duration of Stop Duration must be reasonable for the original purpose of the stop. Questions about matters unrelated to original purpose of stop OK if the stop is not unnecessarily prolonged. Dog sniff OK even if unrelated to original purpose of stop so long as stop is not prolonged.

28 Original Purpose of Stop Unlawful to prolong the stop beyond the purpose of the stop, unless: Unlawful to prolong the stop beyond the purpose of the stop, unless: (1) There is reasonable suspicion (or PC) of another violation of law, or (1) There is reasonable suspicion (or PC) of another violation of law, or (2) The seizure is terminated and transitions to a consensual encounter. (2) The seizure is terminated and transitions to a consensual encounter. 28

29 Consent Authority to consent Authority to consent Scope of search Scope of search Withdrawal of consent Withdrawal of consent Consent must be voluntary = No coercion

30 A Note on ‘Consent’ Searches In the context of vehicle stops, where the individual is at the side of the road and confronted by a uniformed officer seeking to search his or her vehicle, it is not a stretch of the imagination to assume the individual feels compelled to consent. Where there is little or no justification for a search, requesting consent is especially likely to cause concern because it has all the appearances of a fishing expedition or grasping at straws. 30

31 Consent When a person voluntarily agrees, the police may conduct a search without a warrant or probable cause. When a person voluntarily agrees, the police may conduct a search without a warrant or probable cause. Consent can transform an otherwise illegal search into a legal one. Consent can transform an otherwise illegal search into a legal one.

32 Florida v. Bostick Facts: Florida officers regularly boarded buses during stops and asked passengers for permission to search their belongings.

33 Terrance Bostick agreed to a search and was arrested for having cocaine. I Is the acquisition of evidence during random bus searches with passenger consent illegal? No -- the question isn’t if someone was free to leave, but whether or not they felt they can decline the search Florida v. Bostick

34 Border/Airport Searches Warrantless searches of persons and property when entering the country are legal, even without any individualized or reasonable suspicion.

35 Hot Pursuit Police in hot pursuit of a suspect are not required to get a search warrant before entering a building that they have seen the suspect enter, Police in hot pursuit of a suspect are not required to get a search warrant before entering a building that they have seen the suspect enter, Evidence found during hot pursuit of a suspected felon is admissible, even against people totally unrelated to the pursuit. Evidence found during hot pursuit of a suspected felon is admissible, even against people totally unrelated to the pursuit.

36 Exigent Circumstances PC required PC required Delay will cause loss / escape / harm Delay will cause loss / escape / harm Hot pursuit Hot pursuit Life in danger Life in danger Destruction of evidence Destruction of evidence Immediate action required Immediate action required

37 Hudson v. Michigan Facts: Booker Hudson’s house was searched, but the police did not follow the Knock and Announce rule which requires police to announce and wait seconds before entering. Does the general rule excluding evidence obtained in violation of the 4 th Amendment apply to knock and announce rule? Supreme Court Decision -- No: Supreme Court Decision -- No: Having police announce their presence and wait poses a danger to the officer nor did it have anything to do with the seizure of the evidence: “Knock and announce” was implemented to prevent violence, property damage and impositions on privacy not to prevent police from searching a residence

38 Emergency Situations In certain life threatening emergencies, the police don’t have time to get a warrant. The evidence they find in the course of dealing with the emergency is admissible.

39 Inventory Purpose is NOT for criminal investigations. Purpose is NOT for criminal investigations. Purpose = administrative Purpose = administrative Requirements: Requirements: Lawful impound Lawful impound Standard inventory Standard inventory Inventory conducted in accord with Standard Operating Procedure (SOP) Inventory conducted in accord with Standard Operating Procedure (SOP) Inventories should be tied to SOPs Inventories should be tied to SOPs Routine is the key Routine is the key

40 Other Exceptions to 4 th Amendment Protections Independent source rule Independent source rule Inevitable discovery Inevitable discovery Parolees, probationers and supervisees Parolees, probationers and supervisees

41 Are there any Fourth Amendment protections left? Exclusionary Rule Exclusionary Rule Fruit of the Poisonous tree Fruit of the Poisonous tree But beware – suppressed evidence may still hurt your client

42 Search and Seizure in the 21 st Century Reasonable expectations, government intrusions, and personal security in the information age

43 Just a few years ago all we used to worry about were these...

44 From fraud to sexual exploitation, gun sales to porn, drug trafficking to terrorism From fraud to sexual exploitation, gun sales to porn, drug trafficking to terrorism the Government wants what’s in here... the Government wants what’s in here...

45

46 What are the options?

47 The future presents new issues and problems for the Criminal Defense Lawyer The future presents new issues and problems for the Criminal Defense Lawyer The Cloud Social Media

48 The Fourth Amendment “... [T]he guaranties contained in [the Fourth Amendment are not] limited to houses and papers. Their chief aim and purpose was not the protection of property, but the protection of the individual in his liberty and in the privacies of life.” “... [T]he guaranties contained in [the Fourth Amendment are not] limited to houses and papers. Their chief aim and purpose was not the protection of property, but the protection of the individual in his liberty and in the privacies of life.” Rudkin, CJ, dissenting in Olmstead v. United States, 19 F.2d 842 (9 th Cir. 1927). Rudkin, CJ, dissenting in Olmstead v. United States, 19 F.2d 842 (9 th Cir. 1927).

49 Griswold vs. Connecticut The Supreme Court ruled that the Constitution does not explicitly protect the right to privacy. The Bill of rights creates “penumbras ” or zones that establish the right to privacy

50 Founding Fathers had a unique awareness and understanding of the threat of liberty and privacy rights of U.S. Citizens

51 That expectation of privacy was officially recognized in the criminal law context in 1967 Katz vs. United States Katz vs. United States -

52 “[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in is own home or office, is not a subject of Fourth Amendment protections.... “[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in is own home or office, is not a subject of Fourth Amendment protections.... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967). But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967).

53 Application to traffic The Fourth Amendment should be interpreted as extending to a citizen's the protections that extend to other private expressions “the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.” The Fourth Amendment should be interpreted as extending to a citizen's the protections that extend to other private expressions “the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.” Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 199 (1890). Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 199 (1890).Right to Privacy, 4 Harv. L. Rev. 193, 199 (1890).Right to Privacy, 4 Harv. L. Rev. 193, 199 (1890).

54 Application to traffic Society reasonably expects that will be afforded such protection. Society reasonably expects that will be afforded such protection. Absent unique circumstances, law enforcement should not be permitted to use sophisticated technological means to interfere with the people's expectation of privacy in their or accounts without obtaining a warrant, supported by a neutral magistrate's finding of probable cause. Absent unique circumstances, law enforcement should not be permitted to use sophisticated technological means to interfere with the people's expectation of privacy in their or accounts without obtaining a warrant, supported by a neutral magistrate's finding of probable cause.

55 Data Mining Any use of computing technology to examine large amounts of data to reveal relationships, classifications, or patterns. Any use of computing technology to examine large amounts of data to reveal relationships, classifications, or patterns.

56 Data Mining In most discussions of the legal and ethical implications of data mining, privacy is the central concern. In most discussions of the legal and ethical implications of data mining, privacy is the central concern. Related to privacy is the right of “confidentiality,” which concerns how personal information is disseminated, and “anonymity,” a form of privacy that “occurs when the individual is in public places or performing public acts but still seeks, and finds, freedom from identification and surveillance. Related to privacy is the right of “confidentiality,” which concerns how personal information is disseminated, and “anonymity,” a form of privacy that “occurs when the individual is in public places or performing public acts but still seeks, and finds, freedom from identification and surveillance.

57 Data Mining McIntyre v. Ohio Elections Commission, 514 U.S. 334, 343 (1995), validated the right to anonymity in certain circumstances by recognizing that people should be able to remain anonymous while exercising certain constitutionally protected rights. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 343 (1995), validated the right to anonymity in certain circumstances by recognizing that people should be able to remain anonymous while exercising certain constitutionally protected rights.

58 The Government Focus Today A large portion of government searches and seizures today involve the seizure and search of electronic media and information. A large portion of government searches and seizures today involve the seizure and search of electronic media and information. The manner in which such searches and seizures of electronic media and information are conducted can become critically important afterwards if criminal proceedings are instituted. The manner in which such searches and seizures of electronic media and information are conducted can become critically important afterwards if criminal proceedings are instituted.

59 The Government Focus Today The U.S. Department of Justice's Office of Justice Programs recently published Electronic Crime Scene Investigation: An On-the-Scene Reference for First Responders by the National Institute of Justice, and may be viewed in its entirety on OJP's website. The U.S. Department of Justice's Office of Justice Programs recently published Electronic Crime Scene Investigation: An On-the-Scene Reference for First Responders by the National Institute of Justice, and may be viewed in its entirety on OJP's website.

60 The Government Focus Today The publication is a guide for first responders responding to electronic crime scenes, and is a companion to an earlier publication, Electronic Crime Scene Investigation: A Guide for First Responders, Second Edition. The publication is a guide for first responders responding to electronic crime scenes, and is a companion to an earlier publication, Electronic Crime Scene Investigation: A Guide for First Responders, Second Edition.

61 What you should know! The guide instructs investigators, among other things, to: The guide instructs investigators, among other things, to: Document, photograph and secure digital evidence. Document, photograph and secure digital evidence. Not to alter any electronic device. Not to alter any electronic device. Exclude unauthorized persons from the area where the evidence is being collected. Exclude unauthorized persons from the area where the evidence is being collected.

62 What you should know! To interview witnesses regarding the use and users of any computers or devices. To interview witnesses regarding the use and users of any computers or devices. To document various facts relating to the electronic devices, as well as to video, photograph or sketch the scene. To document various facts relating to the electronic devices, as well as to video, photograph or sketch the scene. Not to alter devices or attempt to explore them on the scene, or even to press a key or click a mouse. Not to alter devices or attempt to explore them on the scene, or even to press a key or click a mouse.

63 The OJP publication may prove of great assistance to defense practitioners in attempting to suppress the fruits of searches and seizures of electronic information and media. The OJP publication may prove of great assistance to defense practitioners in attempting to suppress the fruits of searches and seizures of electronic information and media. Counsel should carefully review the facts of any search and seizure of such evidence and interview all witnesses to any search and seizure to ascertain whether these procedures have been followed. Counsel should carefully review the facts of any search and seizure of such evidence and interview all witnesses to any search and seizure to ascertain whether these procedures have been followed.

64 Where’s the Supreme Court When the Court faces the question of whether any form of personal Internet data is protected by the Fourth Amendment, the answer it gives may determine the course of informational privacy for decades, just as Olmstead v. United States and Katz v. United States did in the previous century. When the Court faces the question of whether any form of personal Internet data is protected by the Fourth Amendment, the answer it gives may determine the course of informational privacy for decades, just as Olmstead v. United States and Katz v. United States did in the previous century.

65 Where’s the Supreme Court Yet it is uncertain, at best, that the Court will answer correctly--it has certainly failed to adapt the Fourth Amendment to new technologies before. Yet it is uncertain, at best, that the Court will answer correctly--it has certainly failed to adapt the Fourth Amendment to new technologies before. See e.g., Hudson v. Palmer, 468 U.S. 517, 525 n.7 (1984). See e.g., Hudson v. Palmer, 468 U.S. 517, 525 n.7 (1984).

66 Kyllo v. United States Investigatory devices used by police, such as a telescope or GPS unit used to track whereabouts of a container on commercial property or a vehicle. Investigatory devices used by police, such as a telescope or GPS unit used to track whereabouts of a container on commercial property or a vehicle. BUT trackers and thermal imaging used to track activity in one's home violates the expectation of privacy. BUT trackers and thermal imaging used to track activity in one's home violates the expectation of privacy.

67 City of Ontario v. Quon Seizure of text messages may be a search Seizure of text messages may be a search But public employees may have a diminished privacy expectation in mobile devices issued by their employers. But public employees may have a diminished privacy expectation in mobile devices issued by their employers.

68 Think Outside the Box United States v. Demarrias United States v. Demarrias

69 You must advance the cause The Supreme Court's interpretation of the Fourth Amendment has left Internet surveillance law to develop in the lower courts The Supreme Court's interpretation of the Fourth Amendment has left Internet surveillance law to develop in the lower courts In addition to traditional Fourth Amendment violations, challenge the search based on the Wiretap Act, mirroring the current law of telephone surveillance or other electronic bases In addition to traditional Fourth Amendment violations, challenge the search based on the Wiretap Act, mirroring the current law of telephone surveillance or other electronic bases

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71 Questions?


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