Recently in 4th Amendment Category

February 19, 2010

Computer Searches, the 4th Amendment and Jurisprudence

Police officers search a suspect's computer pursuant to a search warrant authorizing them to look for evidence relating to threats that the suspect allegedly made against a school.  While searching computer files, the officers come across files containing illegal child pornography.  Can the officers "seize" these files and legitimately charge the suspect for possessing child pornography?  Yes, ruled a federal court in United States v. Williams (2010).

Judges frequently have to grapple with how to adapt rules to scenarios that didn't exist when the rules were created.  Search warrants are supposed to describe carefully where police officers can search for the evidence described in a warrant.  But if a computer is the site for a search, police officers may uncover a vast amount of private and personal information about suspects and other people and groups that have nothing to do with the evidence described in a warrant. 

In the Williams case, the court ruled in favor of the police by applying an existing rule (the "plain view" exception to the warrant requirement) to a technology that didn't exist when the rule was created.  The court stated that the police officers seized the child pornography legally because it came into "plain view" as they opened electronic files that might have contained evidence of threats.

The Williams case is a reminder that legal rules have to be somewhat abstract and elastic if we expect judges to apply them in contexts that develop after the rules are created.   

February 17, 2010

Is the Exclusionary Rule an Endangered Species?

The Exclusionary Rule has been controversial ever since the US Supreme Court enshrined it in the law of search and seizure in the case of Mapp v Ohio in 1961.  The Mapp doctrine is that any evidence that police officers seize in violation of the 4th Amendment is inadmissible at

trial.  For example, assume that police officers conduct a warrantless search of a house in circumstances where they should first have obtained a search warrant from a judge.  Whatever the search turns up- illegal drugs, evidence of a past crime, etc. - would have to be excluded.  If the prosecution does not have enough independent evidence of a defendant's guilt, excluding the illegally seized evidence would result in dismissal of criminal charges.

          According to Mapp, the exclusionary rule deters police officers from conducting illegal searches.  If police officers know that illegally-seized evidence can't be used in court, they won't conduct illegal searches.   But attackers of the exclusionary rule argue that it makes no sense to "let guilty people go free because the constable has erred."

          In recent years, the Supreme Court has reduced the reach of the exclusionary rule.  For example, evidence that a police officer seizes in good faith reliance on a defective search warrant is admissible in evidence.  Nevertheless, proposals to eliminate the exclusionary rule continue to be put forward.

          A 2010 essay by law professors Samuel Estreicher and Daniel Weick published in the Missouri Law Review suggests that law enforcement agencies that establish rules and policies to deter improper searches should be exempt from the exclusionary rule.  They argue that illegal searches can be deterred without freeing guilty criminals if police agencies establish rigorous polices and training programs and discipline police officers who carry out illegal searches.

          Whether or not states and courts accept Estreicher and Weick's proposal, the debate over the wisdom of the Exclusionary Rule is likely to continue in the years to come.

October 21, 2009

Anonymous tips alone may not allow cops to stop vehicles

An anonymous tipster calls a drunk driving hotline and reports that "An idiot in a red car is driving down Elm Street.  He's swerving back and forth.  The car has a Virginia plate, the last numbers are 123."  The tip is relayed to a motorcycle officer. Can the officer pull over the possibly drunk driver of the red car based on the tip?   

The answer may be "No."  In the case of Virginia v. Harris, a narrow 4 to 3 majority in the VIrginia Supreme Court ruled that the anonymous tip alone did not justify the police officer's stopping of the vehicle driven by Harris.  The stop constituted an "unreasonable search and seizure" because the police officer acted only based on the tip and did not personally see Harris' bad driving. 

The U.S. Supreme Court voted not to review the Virginia Supreme Court's decision.  So although the VIrginia ruling is not binding on other states, the U.S. Supreme Court's action suggests that a majority of the justices agree with its outcome.

The Virginia court's decision is probably legally correct.  For example, police officers have to verify the information that anonymous tipsters provide before judges issue search or arrest warrants.  And the decision may not affect many cases, because most of the time police officers are likely to be able to verify tipsters' information. 

But the Virginia court's ruling may have lethal consequences.  If a police officer has to delay stopping a car until the officer personally verifies a tipster's information, the result may be more deaths and injuries caused by drunk drivers.

August 20, 2009

Warrantless Car Searches Under "Arizona v. Gant"

In its 2009 decision in Arizona v. Gant, the US Supreme Court decided that under the 4th Amendment, police officers cannot use an arrest as a reason to make a warrantless search of a suspect's car unless the police reasonably believe that the car contains crime-related evidence. How often Gant forces arresting officers to obtain search warrants before searching cars depends on how liberally judges interpret the word "reasonably."  

The 2009 California case of People v. Osborne suggests that judges will cut police officers a lot of slack In that case, police officers pulled Osborne's car over. They searched Osborne, found a loaded gun in his pocket and arrested him for the crime of being a felon in possession of a gun.  The officers then searched Osborne's car, found a cache of illegal drugs inside, and added drug distribution charges to the list of Osborne's problems.  Osborne asked the court to dismiss the drug charges, arguing that the officers had no right to search his car without first obtaining a search warrant.

Osborne lost.  The court ruled that the weapons charge justified the car search.  The officers could reasonably believe that the car might contain additional evidence of the crime of being a felon in possession of a gun, such as bullets or a holster.    

If other courts interpret Gant as the Osborne court did, Gant won't prevent many warrantless car searches.  Police officers probably won't be able to justify warrantless searches based on traffic offenses such as speeding.  After all, what additional evidence of speeding could a car possibly contain?   An accelerator pedal?  But when arrests are based on something other than a traffic offense, police officers should have little trouble identifying crime-related evidence that they thought they might find in the car. 

April 21, 2009

Brakes Put to Car Searches


Arizona v. Gant has put a sudden stop to a decades-long practice of police officers routinely searching cars after arresting the drivers. In this April 2009 decision, the U.S. Supreme Court ruled that merely arresting a driver does not allow police officers to search the car. However, a search of an arrested driver's car can be valid if the arresting officer reasonably believes the car might contain evidence relating to the offense for which the driver was arrested.

In the Gant case, Gant was arrested in his driveway for driving with a suspended license.  He was arrested, cuffed and placed in the back of the police car.  The arresting officers then searched Gant's car and found cocaine. The Court ruled that the seizure of the cocaine was illegal because the officers had no right to search Gant's car.  Gant had no access to the car, and the officers could not reasonably believe that a search would yield evidence relating to the offense of driving with a suspended license.

Beyond the rule that it establishes, the Gant case is noteworthy for a couple of reasons. First, it overrules decades of lower court rulings that had led police to believe that they had carte blanche to search cars after arresting their drivers.  A second noteworthy aspect of Gant consists of the unusual grouping of justices who formed the 5-to-4 majority.  Justices Scalia and Thomas, who are often aligned with conservative views, formed part of the majority.  Meanwhile Justice Breyer, often aligned with liberal views, was one of the dissenters.  If nothing else, it's always refreshing when justices don't slavishly adhere to predicted, partisan viewpoints.         

February 12, 2009

Juvenile Court, Adult Corruption

Greed and corruption seem to be the only recent growth industries in the U.S. economy. The latest example involves two Pennsylvania juvenile court judges named Ciavarella and Conahan who allegedly demanded and received kickbacks in exchange for imprisoning youths in facilities run by private corporations.

The judges allegedly raked in $2.6 million without even having to go to all the hassle of operating a Ponzi scheme.  The more youths that Ciavarella and Conahan sent to the private prisons -- and the longer the terms of their imprisonment -- the more government money the prison operators made and the more they'd return to the judges as kickbacks.  Not surprisingly, even kids with clean records who committed the most minor of infractions often found themselves locked up.

Since juveniles charged with crimes have a right to counsel (see In re Gault, U.S. Sup. Court, 1967), you'd think that Ciavarella and Conahan would have been quickly found out. On the other hand, juvenile court proceedings are closed to the public, and perhaps the judges figured out how to dispose of cases as quickly as cattle auctioneers sell off livestock. Whatever means they used, they apparently managed to keep the kickbacks coming for 3 years.

Ciavarella and Conahan have been removed from the bench and have been charged with crimes.  If they are convicted, too bad they won't be sentenced by a judge with a financial incentive to give them the longest possible prison terms.

January 14, 2009

Herring v. U.S. : Police Mistakes Don't Always Require the Exclusion of Evidence

As dedicated readers of my blog are aware, the case of Herring v. U.S. involved Herring's argument that illegal drug charges should be dismissed because the police seized the drugs improperly. The officers who arrested Herring and found the illegal drugs had been told that there was a warrant out for Herring's arrest -- this information was wrong; the warrant was no longer valid. Because of this mistake, argued Herring, the officers had no right to arrest or search him, and the 4th Amendment's prohibition of illegal searches and seizures requires that the drugs be excluded from evidence..   

As I correctly predicted in the earlier blog, the U.S. Supreme Court ruled that the drugs were admissible in evidence. The mistake was an isolated instance of careless record-keeping rather than a reckless exercise of police powers. This type of error should not result in the exclusion of evidence, the majority ruled.

The case signals the continuing debate about the scope of the 4th Amendment. The justices in the majority stress the danger of allowing guilty and sometimes dangerous criminals to go free based on minor police mistakes. The justices in the minority stress that the exclusionary rule protects civil liberties, and that strict application of the 4th Amendment can deter police mistakes. Since this was a 5-4 decision, you can bet that the debate will continue.

November 19, 2008

Herring v. U.S.: The 4th Amendment Is Back in the Supreme Court

The 4th Amendment prohibits unreasonable searches and seizures by government officials. What should happen when police officers violate the 4th Amendment has been one of the most enduring legal sagas of the past 50 years. In Mapp v. Ohio (1961), the U.S. Supreme Court adopted the "exclusionary rule" that improperly seized evidence is not admissible at trial. Because the exclusion of improperly seized evidence may mean that charges have to be dismissed, critics of the exclusionary rule have argued that "the culprit should not go free just because the constable blundered." However, the Court in Mapp thought it more important to deter improper police behavior, and thought that an exclusionary rule would remove the incentive to seize evidence improperly.

Though the court has never overturned the exclusionary rule, it has from time to time limited its scope. One limitation is known as the "good-faith exception" to the exclusionary rule. What this exception boils down to is that evidence seized in violation of the 4th Amendment is admissible at trial if the police acted in good faith on information they reasonably believed was accurate. 

In November 2008, the Court heard arguments about the scope of the good-faith exception in the case of Herring v. United States. Here's what happened: A police officer arrested Herring after being informed that the sheriff's office of a nearby county had a warrant out for Herring's arrest. The officer searched Herring and found illegal drugs and a weapon. A few moments later, the sheriff's office called back to say "Oops -- our bad. A while back we did have an arrest warrant out for Herring, but not anymore." Had the arresting officer known that no warrant existed, he would have had no right to arrest Herring or search him. Nevertheless, based on the officer's good-faith belief that he did have a right to make the arrest, the drugs and weapon were deemed admissible in evidence and Herring was convicted.

Herring argues that the good-faith exception should not apply to his case because the wrong information was given out by a sheriff's office. Thus, the police were responsible for the "chain of error." Moreover, failure to apply the exclusionary rule will only encourage sloppy police record-keeping. The government responds that an "isolated and negligent" clerical error is not a valid basis for excluding evidence. Moreover, upholding Herring's conviction will not encourage sloppy record-keeping because police agencies have lots of reasons to maintain proper records. For example, improper arrests can subject officers to civil rights lawsuits.

Will the Court apply the good-faith exception to the officer's conduct and affirm Herring's conviction? The trend of decisions suggests that the answer will be, "Yes." Recent 4th Amendment opinions have stressed the increased professionalism of police agencies -- with citizen review boards -- and hence less need for a broad exclusinary rule.  We should have an answer from the Court by early 2009.