"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…