"Can They Do That?" V

So far we’ve discussed two questions courts will ask when trying to determine the legality of a search. They are:

1. Was the Government involved in the search?

2. If yes, was a reasonable expectation of privacy violated by the Government’s actions?

If the answer to the above questions is yes, courts will begin the task of determining what, if any, role a search warrant should play in the analysis. A thorough analysis of the part search warrants play in search and seizure questions requires us to ask a few sub-questions, each of which will require a separate post. Those sub-questions are:

1. Was the search performed under a valid warrant?

2. If the warrant is not valid, is there a defense upon which the Government can rely to save the defective warrant?

3. If there is no defense to save the warrant, or if there was never a warrant to begin with, is there an exception to the warrant requirement?

This week we’ll discuss the first sub-question. Generally, there are two core requirements for a warrant to be valid: Probable Cause and Particularity.

You’ll remember that the Constitution requires that warrants be issued only after probable cause is established and supported by oath or affirmation. For our purposes, probable cause exists when police believe there is a fair possibility that contraband or evidence of a crime will be found in the area searched. Practically speaking, a police officer may get an anonymous tip or something or that sort, with which he will go in front of a judge and provide an affidavit to the judge wherein he tells the judge what information he’s received that establishes the probable cause. If the judge thinks there’s enough information, he’ll issue a warrant.

To satisfy the particularity requirement, a warrant must describe the place to be searched and the items to be seized. If the standard doesn’t sound that difficult to meet, that’s because it is.

A warrant supported by probable cause which particularly describes the area to be search and the items to be seized is facially valid. Next week we’ll discuss what happens if the warrant is invalid.

Until then…

"Can They Do That?" IV

At the close of last week’s post we established that the first question courts will ask when deciding whether or not a search was legal is: “Was the Government involved in the search?” We also discussed how the “Government involvement question” is only the first of many the court will ask as it makes its determination.

Assuming we have answered affirmatively to the court’s first question, we move on to the next step in the analysis:

“Did you have a reasonable expectation of privacy?”

For the purposes of the 4th amendment, a reasonable expectation of privacy can be defined as a personal privacy interest in the thing seized or area searched sufficient to give you what attorneys call “standing” or the right to challenge a search or seizure.

Stevie hides something illegal in his girlfriend’s purse. As he and his girlfriend are walking home from the movie theatre, police officers approach them and demand to see inside her purse. Even though she refuses, they remove the purse from her shoulder and begin to rifle through its contents. They find the boyfriend’s contraband, he admits it’s his, and the police press the appropriate charges against him.

Boyfriend believes the search of his girlfriend’s purse was unconstitutional. He asks the judge to throw out the evidence found in the search.

How will the judge rule? Well, let’s begin by asking the first question – Was there Government involvement? Police officers acting in their official capacity as law enforcement personnel are always considered to be acting as Government agents. The fact situation above gives us no reason to believe the officers were acting in any capacity other than one of official law enforcement. The answer here appears to be “yes”.

Assuming the Government was involved we proceed to out next question: Did Stevie have a reasonable expectation of privacy here? In other words, does Stevie have a personal privacy interest in his girlfriend’s purse sufficient to give him the right to challenge a search of it?

In this case, there is any number of factors which could affect Stevie’s expectation of privacy. What if he bought the purse for his girlfriend? What if he had never touched her purse before sticking contraband in it? What if he had a habit of putting things in his girlfriend’s purse for safe keeping? What if his girlfriend were able to truthfully say that Stevie owned more things in that purse than she did?

Judges will do their best to determine whether, under the circumstances of each case, the challenger had a reasonable expectation of privacy. The questions in the preceding paragraph are meant to demonstrate that there really isn’t a one-size-fits-all determination available in these cases. They can be everything but straightforward. That’s why it’s important to seek the advice of counsel if you think your 4th amendment rights have been violated. We simply don’t have the time in these posts to analyze each case sufficiently to get to definitive answers.

Next week we’ll continue our journey with another factor the courts take into consideration when deciding whether a search was unconstitutional.

Until then…

"Can They Do That?" Part Three

Last week we ended our conversation with an understanding of how American search and seizure law is formed. This week I’d like to start talking about the criteria the Supreme Court has said should be used when any of our nation’s courts are analyzing search and seizure situations.

When the Supreme Court hears a case with a fact situation and issues upon which it has not before ruled (a “case of first impression”), it establishes a framework by which to analyze future similar cases. That framework is called “precedent”. The next time the Court hears a case like one it has already ruled upon, it relies on precedent to decide it. Courts throughout the nation use Supreme Court precedent to decide cases that come before them. Precedent is the vehicle by which courts strive to achieve consistency in the application of law to a wide variety of situations. If the Supreme Court has made precedent on a particular issue, that precedent applies to the courts of all 50 States. If the Supreme Court has not yet made a decision about a particular issue, state courts rely on precedent from the highest court of that particular state to decide an issue.

Johnny’s story from last week’s post lends itself perfectly for an example here. Johnny’s attorney believes the search of Johnny’s van was illegal. As Johnny’s attorney begins to research the issue, he’ll soon find that many, many people have had this happen to them, and that a good number of those people have tried to make the same claim Johnny is trying to make – that is, that many of those people have gone through the appeal process we discussed that week, claiming that the search which found evidence that eventually led to their conviction was unconstitutional. Johnny’s attorney can look to Supreme Court precedent or precedent from the highest court of his state to have a good idea whether or not the court in Johnny’s case is going to find that the search was unconstitutional.

As it turns out, search and seizure is a hotly litigated area of the law – a lot of appeals have been based on search and seizure issues. As such, the Supreme Court has made plenty of precedent from which perspective litigants can draw to have a good idea how their cases will be decided.

Today let’s discuss the first question a court will ask when deciding if a search was illegal:

Was the Government involved in the search?

The Supreme Court has held that, unless a government official (i.e. police officer, sheriff’s deputy, teacher/principal in a school setting, etc.) conducted the search, the search cannot be unconstitutional. If your mom goes into your bedroom while you’re at school, finds something illegal, subsequently takes it to the police station and gets charges pressed against you, you simply cannot claim your mom’s search of your room violated your 4th Amendment right against unreasonable search and seizure – your mom is not a government official. To be fair, it is not always so easy to determine whether the Government was involved in the search. Is an off-duty cop providing security at your local grocery store acting as a government official? How about the private security hired by your subdivision? What about the loss prevention officer at the department store?

The above questions illustrate that the answer to whether or not the Government was involved in the search is not always an easy one. You should seek the advice of counsel if you have a question about Government involvement in your specific case. If you are ever in a situation where you believe your 4th Amendment rights have been violated, ask yourself, “Was the Government involved in the search?" If the answer is "no", you’re out of luck. If, however, the answer is "yes" (or at least you think you can make the argument for “yes”), you don’t automatically win. Not by a long shot. All a "yes” to this question gets you is a chance to proceed to the next question the court will ask – which question we’ll get to next week.

Until then…

"Can They Do That?" Part Two

I ended my post last week with a promise to talk about the foundation of our rights to be free from unreasonable search and seizure. I also said I would talk about how rules are made relating to what’s right and wrong in search and seizure situations. Let’s get started.

Our right to be free from unreasonable searches and seizures is based in the 4th Amendment to the Constitution of the United States of America. It reads:

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.

Notice that the founding fathers did not include a definition of what would be classified as an “unreasonable” search and seizure. The lack of a contextual definition begs the question: Who can say what is and is not an unreasonable search and seizure?

The answer is simple enough: The Supreme Court of the United States. How are those decisions made? The answer to that question is a little more complex. Perhaps a story will help:

Johnny is on his way home from school in his parents’ mini-van. As he approaches the street on which he lives, Johnny looks in his rear-view mirror to see that a police officer has turned on his lights indicating that he wants Johnny to pull over.

After Johnny pulls over, the police officer approaches the driver-side window, asks for license and registration, and then asks,

“Do you know why I pulled you over, son?”

Johnny, who at this point is on the verge of tears, timidly responds,

“N-n-n-no.”

The officer tells Johnny that the tags on the license plate of the van are expired. “I’m going to have to write you a ticket,” the officer says.

The officer turns to walk back to the squad car, but stops short, and coming back to the window he asks,

“Have you got anything in the van I should be concerned about, son?”

Johnny, who’s never done anything illegal in his life, says, “No, sir.”

The officer smiles and says, “In that case, I guess you wouldn’t mind if I take a look inside, would you?”

“I – I guess not, sir,” Johnny squeaks.

With that, the officer asks Johnny to exit the vehicle. He escorts Johnny back near the hood of his squad car and asks him to wait. The officer returns to the vehicle and begins to search the interior of the van. As he opens the glove compartment, a small baggie falls onto the floor. In it is a green substance he quickly identifies as marijuana. He exits the vehicle, walks back to Johnny and places him under arrest for Possession of a Controlled Substance.

Johnny hires an attorney. Johnny’s attorney claims the officer’s search of Johnny vehicle was unreasonable, and that the evidence seized from the vehicle as a consequence of the search must therefore be excluded from the trial. If the evidence is excluded, the prosecutor won’t be able to tell a jury that marijuana was found in Johnny’s van. If the prosecutor can’t tell the jury that marijuana was found in Johnny’s van, the jury will be unable to convict Johnny of Possession of a Controlled Substance.

The judge in Johnny’s case holds a hearing to determine if the search of the van was unreasonable. The judge decides that the search was valid. Johnny goes to trial and is convicted. Johnny appeals his conviction to his state's Supreme Court, claiming that the judge at the trial level was wrong in deciding the search was okay. State Supreme Court decides that the judge was right, and affirms his conviction. Johnny appeals to the United States Supreme Court. . .

Whether or not the search was legal is not really the issue at this point, although we will get there eventually. The point of the above story is to illustrate the process of how the word “unreasonable” develops meaning as it relates to the 4th Amendment. A defendant who is convicted of a crime based on the use of evidence he believes is the fruit of an unreasonable search appeals his conviction. An appeal works its way up through the court system until it lands on steps of the United States Supreme Court. The Court uses a variety of analyses (which we will discuss in later installments) to determine whether or not a search was reasonable. Once the Supreme Court has made a decision in a particular search and seizure situation, that decision is used by all the other courts in the nation to analyze all future similar situations arising in their respective states.

Note that the Supreme Court’s definition of unreasonable represents only the minimum protections necessary under the Constitution. No state can provide less protection, but states are free to provide more. Thus, what may be considered an unreasonable search in one state may be okay in another state, but nothing the Supreme Court has declared as an unreasonable search will be okay in any state.

Next week we’ll revisit Johnny’s story as we begin talking about ground rules the Supreme Court has said must be used when any court analyzes the reasonableness of a search.

Until next week.

"Can They Do That?" Part One - Introduction

Almost immediately after I started law school, my friends and family started asking me legal questions. I suppose they felt that because I had started my legal education, I would likely have insights into their individual legal situations.

While the stories and situations they told me were as varied as could be, each one seemed to follow the same basic format. They would tell me what started the issue, proceed with an account of what they did in response, and then complain about the actions taken by the “other side.” Without fail, each of the stories ended with the same final inquiry:

“Can they do that?”

I hear that question with increased frequency now that I am a practicing attorney. In fact, in one form or another, that seems to be the question on the mind of everyone who comes into my office. Most often the question is asked in relation to the actions of law enforcement personnel. My clients are wondering whether or not law enforcement personnel can do what they did at the time of arrest. Most frequently, my clients are concerned that an officer’s conduct violated their constitutional right to be free from unreasonable searches and seizures.

So frequent are the questions that I’ve decided it might be helpful to author a weekly installment for the blog of Kemp Eason Sease & Dyer to outline some basic “search and seizure principles” as well as to highlight decisions made in courts around the country which affect this issue. The content of the installment will not be meant as, and should not be taken as, legal advice. Each legal situation is unique, and that is never more true than in the search and seizure context. If your situation has led you to wonder – Can they do that? – you should seek the advice of legal counsel as soon as possible.

Next week I’ll begin with a light treatment of the constitutional underpinnings concerning our rights against searches and seizures. I will also talk about how American search and seizure policy is formed.

Until next week...

KESD Blog

Welcome to the blog of Kemp Eason Sease & Dyer, attorneys and counselors at law in Des Moines, Iowa.  The Law Office of Kemp Eason Sease & Dyer is a full service law firm located in Downtown Des Moines, Iowa.  Our attorneys practice in many areas of law, including but not limited to: federal and state criminal defense; federal and state appeals; family law including divorce decrees, child custody, child support, modifications; federal and state civil litigation; wills; and business and commercial law.

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