criminal law update & review: developments in 4 th amendment law jessica smith, school of...

Criminal Law Update & Review:

Developments in 4th Amendment Law

Jessica Smith, School of Government, UNC-Chapel Hill

N.C. Superior Court Judges’ Conference, October 2002

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• Bus seizures & searches

• Stops based on anonymous tips

• Entry into & search of homes

• Special needs cases

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Question 1: What standard for searches & seizures is stated in the 4th Amendment?

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Fourth Amendment

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 . . . .

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Reasonableness

• Criminal context: generally requires probable cause Sometimes less is OK; sometimes more is needed

• Other contexts probable cause not required

Balancing of intrusion into privacy v. promotion of legitimate gov’t interests

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Searches & Seizures on Buses

Question 2: 3 plain-clothed officers, carrying concealed weapons & wearing visible badges board bus at terminal. One kneels at driver’s seat, not blocking aisle/exit. 2 others go to rear; 1 remains there & 1 works towards front, talking to passengers & saying it’s a drug & weapon interdiction. As officer moves forward, he steps aside so as not to block the aisle. Officer doesn’t inform passengers of right to refuse/not cooperate. When he approaches Ds, he notices their heavy & baggy clothes despite warm weather. Officer asks if they mind if he checks their persons. They agree & contraband is found. 2a) Was there an unconstitutional seizure? 2b) What standard do you apply to the seizure determination? 2c) Was there an unconstitutional search? 2d) Why or why not? •



United States v. Drayton, 122 S.Ct. 2105 (6/17/2002)

No 4th Amend. violation:• Defendants weren’t seized• Search valid b/c consent was voluntary

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Seminal Bus Seizure Case:

Florida v. Bostick, 501 U.S. 429 (1991)

Bostick Rule: Officers can approach bus passengers at random, ask questions & request consent to search, provided a reasonable person would feel free to refuse

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Bostick analysis:

• “Free to leave” standard for whether there’s been a seizure doesn’t fit for buses

• Bus passengers may not want to get off & risk missing bus; movements are confined but not by police coercion but by fact that they’re on a bus •



Bostick Rule: Officers can approach bus passengers at random, ask questions & request consent to search, provided a reasonable person would feel free to refuse

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Bostick remanded on whether seizure occurred, noting 2 factors:

(1) officer didn’t remove gun/use it in a threatening way

(2) officer advised passenger he could refuse consent to search •



New wrinkle in Drayton:

Must the officers tell bus passengers of their right not to cooperate?

11th Cir. held they did

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Applying Bostick, Drayton reversed: no seizure occurred & warning not required

no weapons used; no intimidating movements

no blocking exits, threats, or commands

spoke to passengers individually in quiet, polite voice

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Based largely on the same facts, Drayton also held that the consent to search was voluntary

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Wrap Up• Seizure standard: whether a

reasonable person would feel free to decline officers’ requests or terminate the encounter; not “free to leave”

• No per se rules re: notification of rights •



• Consider: whether weapons were used, tone of voice, show of authority, blocked exits, threats

• Factors that have little weight: that officers are uniformed or have holstered weapons •



2a) Unconstitutional seizure? No.

2b) What standard? Would a reasonable person feel free to refuse.

2c) Was there an unconstitutional search? No.

2d) Why or why not? Consent was voluntary. •


Stops Based on Anonymous TipsQuestion 3: Anonymous caller tells police a young black male standing at XYZ bus stop & wearing a plaid shirt has a gun. Officers go there & see 3 black males; 1 is wearing a plaid shirt. Officers approach him, frisk him & seize a gun. Was the stop constitutional? Why or why not?

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Stops Based on Anonymous Tips

Florida v. J.L., 529 U.S. 266 (2000)

Held: Stop was unconstitutional; no reasonable suspicion

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J.L. Analysis:

Officers need reasonable suspicion for a stop & frisk (Terry v. Ohio, 392 U.S. 1 (1968))

When known informant gives tip, tipster’s reputation can be assessed & tipster can be held accountable; such a tip can satisfy reasonable suspicion . . .

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J.L. continued:

Anonymous tips alone seldom show tipster’s basis of knowledge or veracity

Such tips need “sufficient indicia of reliability” to create reasonable suspicion; typically obtained through corroboration . . .

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Here, no indicia of reliability; no predictive info. testing knowledge or credibility; no explanation for knowledge; no basis for believing had inside info.

Accurate description location & appearance doesn’t show knowledge of concealed criminal activity; tip must be “reliable in its assertion of illegality” •



Rejects “firearm exception”

Reserves issue of whether same rule applies to anonymous tips alleging great danger, e.g., carrying a bomb

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Also reserves on whether rule applies to stops & searches in places where expectation of privacy is diminished e.g., airports, schools

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Again, J.L. said:

Accurate description location & appearance doesn’t show knowledge of concealed criminal activity; tip must be “reliable in its assertion of illegality” •



Question 4: Cops get anonymous tip that woman had cocaine & predicting she’d leave a specific building at a certain time, get in a car matching a particular description & drive to a named motel. Cops follow the woman, verify tipster’s info. & stop her. Is the stop constitutional? •



Stop upheld; once it was clear that tipster accurately predicted movements, it was reasonable to think he had inside info. about the woman & credit his assertion re: drugs

Alabama v. White, 496 U.S. 325 (1990)

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White was a “close,” “borderline” case

J.L. said: “Knowledge about a person’s future movements indicates some familiarity with that person’s affairs, but having such knowledge does not necessarily imply that the informant knows, in particular, whether the person is carrying hidden contraband”

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Tip Fails Under J.L.

State v. Hughes, 353 N.C. 200 (2000)

State v. Brown, 142 N.C. App. 332 (2001)

Tip OK Under J.L.

State v. Allison, 148 N.C. App. 702 (2/19/2002)

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Stops Based on Anonymous TipsState v. Hughes, 353 N.C. 200 (2000)

Officer A tells Officer B a confidential reliable informant told him a dark-skinned man named “Markie”, 300 lbs.+, about 6’, 20-30 yrs. old, short hair, clean cut, baggie pants arriving w/drugs in Jacksonville on bus from NYC, possibly at 5:30. Says Markie “sometimes” comes to Jacksonville on weekends before dark, takes taxi from station & carries overnight bag; headed to N. Topsail. B tell C who goes to station; 1 bus from NYC already in; 1 from Rocky Mount (NYC transfer point) expected at 3:30. Bus arrives; officer didn’t see if D exited; D matched physical description & had overnight bag (officer didn’t recall knowing name, clothing description, or time of arrival). D gets in taxi headed to Topsail & other locations; officers stop before road split off to Topsail; drugs found. •



Held: Ct. App. decision reversed; stop wasn’t legal

No info. supporting assertion tipster was reliable; tip must be treated as anonymous . . .

Was tip sufficient to support stop?

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Tip itself not enough for reasonable suspicion (vague; description of D could describe many persons; didn’t contain details to predict future action)

Corroboration insufficient (didn’t see him get off bus, time wrong, stopped him too early to tell if he was going to Topsail) •




State v. Hughes, 353 N.C. 200 (2000)


Tip OK Under J.L.


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Police get tip: 2 black males rolling marijuana cigarettes & selling cocaine on porch of house at XYZ address; 1 in black t-shirt & jeans, other in gray t-shirt & jeans. Officers arrive; no one is there. 3 black males & black female on porch of house next door; 2 have clothes matching description; D in black pullover & camouflage pants. D is frisked & drugs found

Was tip sufficient to support stop & frisk?

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Stops Based on Anonymous TipsCOA held: trial judge reversed; tip wasn’t OK

State conceded indistinguishable from J.L.

Not even minimal corroboration: D didn’t meet description given; males not found on specified porch •




State v. Hughes, 353 N.C. 200 (2000)


Tip OK Under J.L.


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Woman approached officers on duty; said overheard 4 black males in nearby restaurant bar discuss robbing the place & saw them pass black handgun around; gave 1 officer her phone number. Officer went, saw 4 black males in bar, identified D as involved in prior gun-related activity. Officer approached men & asked them to step outside; D was holding pants up as if something was “dragging [them] down;” frisked & found gun

Was there reasonable suspicion for the stop?

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Held: Yes, distinguishing J.L. & Hughes:

Face-to-face tip, not anonymous call (officer could observe demeanor to assess credibility; accountability)

Tipster explained how she got info.

Tip was corroborated & officer had independent supporting info.

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Wrap Up• Anonymous tip not likely to be enough

• Need indicia of reliability; usually obtained by corroboration

• Not enough just to corroborate description & location •



• Looking for corroboration that criminal activity is afoot; remember White was a “close case”

• Best tips: detailed, accurate, predictive, indicate basis for information & reliable re: assertion of illegality •


Entry Into & Search of Homes

Question 5: After a tip about drug sales at D’s apartment, officers observe apartment, see what appear to be drug sales. Officers then enter D’s home, arrest & search him & find drugs & other contraband. Officers had probable cause to arrest D but no arrest/search warrant. Was the entry into the home legal? Why or why not? •



Kirk v. Louisiana, 122 S.Ct. 2458 (June 24, 2002) (per curiam)

U.S. S.Ct.: reversed & remanded; entry not legal unless exigent circ. existed; La. decision violated Payton

La. court held that entry was proper b/c had p.c. to arrest

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Payton v. New York, 445 US 573 (1980)

Payton Rule: To search a house, officers need either (1) a warrant or (2) probable cause & exigent circumstances •

Entry Into & Search of HomesProbable cause & exigent

circumstances allow officers to:

• Enter & secure so that exigency no longer exists

• Seize items in plain view; can’t open dresser drawers or look in closed containers

• What about going back in? •


Question 6: Dispatchers get 911 call saying V stabbed. Officers arrive 11:54 pm; V lying at door with throat cut. Do protective sweep, see evidence but seize nothing. Officers secure scene with yellow tape & cover door. At 12:20 am, crime lab technician arrives. They walk her around, pointing out evidence seen in plain view during sweep. Detective arrives 1:01 a.m. He, officers & the crime lab tech. go in again & tech. takes photos, video & blood samples of evidence seen in plain view during initial sweep. No warrant. D says entry into house by tech. & detective violated his rights. Suppress? •


State v. Phillips, -- NC App. – (7/2/2002)

Entry was proper

Applies constructive seizure theory from State v. Jolley, 312 NC 296 (1984): plain view evidence was seized when officer secured the scene

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• Enter & secure so that exigency no longer exists (protective sweep)

• Seize items in plain view; can’t open dresser drawers or look in closed containers

• What about going back in?

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• If premises were secured, can reenter & take items seen in plain view during initial entry on theory of constructive seizure

Best practices •

Special Needs Cases

Question 7: The local school board has a policy requiring all students who participate in competitive extracurricular activities to submit to drug testing. Students go into a bathroom stall, produce a urine sample & turn it over to a monitor who listens from outside the door for tampering. Constitutional? What standard applies?

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Special Needs Cases

Held: Policy is constitutional; special needs case; no requirement of a warrant & probable cause; balance interests

Bd. of Educ. of Indep. School v. Earls, 122 S.Ct. 2559 (6/27/2002)

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Special Needs Cases

Why discuss Earls?

• Special needs raised to justify suspicionless searches (e.g., Ferguson, 532 U.S. 67)

• Full circle . . . •

Special Needs Cases

Reasonableness: balancing privacy interests v. legit. gov’t interests; generally—but not always--requires probable cause

“Special needs” exceptions: in certain contexts, special needs beyond normal need for law enforcement make warrant & probable cause impracticable

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Special Needs Cases

• Special needs in public schools: need for swift & informal discipline; need for freedom to maintain order in school

• Other special needs contexts include probation system (special need = supervision)

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Special Needs Cases

Special needs doesn’t mean free for all

Still requires balancing of intrusion on individual privacy v. legitimate gov’t interest

In Earls: student’s limited expectation of privacy & minimally intrusive nature of test v. gov’t concern in preventing

drug use & effectiveness of policy

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criminal law update & review: developments in 4 th amendment law jessica smith, school of...

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