4th Amendment - Standard 1: Reasonable

Expectation of Privacy a. Person expects privacy

b. Society sees expectation as reasonable

Kyllo v. U.S., 533 U.S. 27 (2001) Thermal Imaging

2: Trespass Property U.S. v. Jones, 132 S. Ct.

945 (2012)

GPS on Car Land Florida v. Jardines, 133 S.

Ct. 1409 (2013)

Area Around House

Search Warrant

Va. Code § 19.2-59 Search Without a Warrant

Malfeasance in Office

Liable to Compensatory & Punitive Damages

2d Time: Immediately Forfeit Office

Caselaw limits to searches without probable cause

Good Faith Exception

United States v. Leon, 468 U.S. 897 (1984)

Once a search warrant is issued officers can rely on it without concern over its validity

Exceptions:

– False Affidavit

• Knew or Should Have

– Affidavit “So Lacking Indicia”

– Warrant “So Facially Deficient”

– Magistrate Not a Neutral Arbiter

Search Warrant Exceptions

CONSENTAbandon

US v. Jackson, (2013) - Trash

Lie

US v. Saafir, (2014) - Not Allowed

Coercion

US v. Robinson, (2013)

Harris v. Commonwealth, (2003)

Amin v. Henrico, (2012)

PLAIN VIEW(1) Not violated 4th to get there

(2) Contraband's character immediately apparent

(a) Arizona v. Hicks, 480 US 321 (1987)

– Move the item

(b) Cauls v. Commonwealth, (2009)

– Dual Purpose

(3) Lawful right to access

Search Warrant Exceptions

EXIGENT CIRCUMSTANCES

Probable Cause

– Danger

– Destroy

– Escape

Ross v. Commonwealth, (2013)

Emergency Exception

Washington v. Commonwealth, (2012)

Burglary / Open Door / Protective Sweep

Smith v. Commonwealth, (2010)

Running from front room with something white in hands

United States v. Taylor, (2010)

Searching for parent / parent angry-aggressive

West v. Commonwealth, (2009)

Match ID of Rapist

Search Warrant Exceptions

Riley v. California, 134 S.Ct. 2473 (2014) - PHONES

Must get a search warrant

Not a danger

No potential for evidence to be destroyed

INCIDENT TO ARREST

- Person Arrested

- Within Immediate Control

CAR (Now Limited)

Search Warrant Exceptions COMMUNITY CARETAKER

No Probable Cause

– Aid those in distress

– Combat Hazards

– Prevent Potential Hazards

– Preserve & Protect Public Safety

VEHICLE IMPOUNDED

Knight v. Commonwealth, (2012)

Search of Container in Police Custody

- Divorced from criminal investigation

- To protect property while in police hands

- Protect police against lost / stolen claims

- Protect the public

Michigan v. Fisher, (2009)

Someone hurt or violence in progress

4th Amendment - Cars

Carroll v. U.S., 267 U.S. 132 (1924).

If an officer has probable cause to believe contraband is in a car he can search the car without a warrant

Because a car is mobile

Arizona v. Gant, 556 U.S. 332 (2009)

Cannot search a car solely because a person arrested in it

Can Search if:

Suspect Unsecured

Reasonable to believe evidence of the crime the offender was arrested for will be found in the car

4th Amendment - Cars

IMPOUNDING

Fauntleroy v. Commonwealth, (2013)

- Lawfully Impounded

- Pursuant to standard police procedures

- Not a pretext to investigate

Required by Law§ 46.2-301.1

Revoked for Intoxicated Driving

Habitual Offender

Revoked for Refusing Blood / Breath Test

Second Time Driving Without a License (§ 46.2-300)

MISSING - § 46.2-301

EXCEPTIONS – Expired < 1 year

- Under 18 years of age

4th Amendment - Cars

STOPSWhren v. U.S., 517 US 806 (1996).

- Any Traffic Violation

Mason v. Commonwealth, (FEB15)

- Reasonable Suspicion

- Hanging from Rear View Mirror (46.2-1054)

Navarette v. California, (2014)

- Anonymous call to 911

4th Amendment - Cars

During StopThomas v. Commonwealth, (2010)

Obtain Registration

Get ID's of all in car

Get confirmation from dispatch

Detain everyone in car

Ask questions

Order everyone to exit the car

Seize any weapon the moment seen

Walk dog around car

DO NOT EXTENDRodriguez v. U.S., (APR15)

De minimus

Officer Safety = OK

Criminal Investigation = Unconstitutional

“Officer has to be reasonably diligent”

“Critical question [is] whether the investigation adds time to the stop.”

DOG SNIFF

U.S. v. Mason, (2010)

Can extend with reasonable articulable suspicion

4th Amendment - Cars

PassengersUS v. George, (2013)

To pat down must have reasonable suspicion

Commonwealth v. Smith, (2011)

Prior Record (for Terry pat down)

Atkins v. Commonwealth, (2010)

Can detain all if one has pending warrants

Whitehead v. Commonwealth, (2009)

Dog alert not enough to search passenger

Passenger RightsAtkins v. Commonwealth, (2010)

Can challenge stop because seized

Right to object to search depends on totality of circumstances

- Show a possessory interest

- Show a right to exclude others from vehicle

- Show expectation that vehicle would be free from search

- Show he exercised control

- Show he took precautions to protect privacy

4th Amendment - Person Subsequent to Arrest United States v. Robinson,

414 U. S. 218 (1973)

Search of an arrested person requires no additional investigation

Packages immediately associated with the arrestee can be searched

Bellamy v. Commonwealth, (2012)

Bad info from dispatch

Perry v. Commonwealth, (2009)

If probable cause can search prior to arrest

Riley v. California, 134 S. Ct. 2473 (2014)

Cell Phones Not Searchable

4th Amendment - Person Safety Frisk (Terry Pat

Down) Standard: Reasonable Suspicion of a

Weapon

Officer can remove:

An item he believes to be a weapon

Immediately Apparent Evidence of a Crime

No Dual Purpose Grandison v. Commonwealth,

274 Va. 316 (2007)

4th Amendment - Person

Thompson v. Commonwealth, APR09

Known drug sale area, refusal to answer whether armed, nervous = not enough

Whitaker v. Commonwealth, (2010)

Flight, abandoning property, running evasively, holding onto a pocket, admitting armed when caught = ENOUGH

US v. Powell, (2011)

Prior Record not enough

Suspended license not enough

US v. Massenberg, (2011)

Request to search refused

Jones v. Commonwealth, (2010)

Can't seize wallet

Baker v. Commonwealth, OCT10

Potentially Dangerous location, nervousness, time of day = not enough

4th Amendment - Person

CONSENSUAL

ENCOUNTERBranham v. Commonwealth, (2012)

No level of suspicion required

Jones v. Commonwealth, (2010)

Intent to put in custody if does not voluntarily comply is not relevant

Montague v. Commonwealth, (2009)

Can ask for ID

Don't have to tell him he can leave

Reasonable person would believe he could leave

FACTORS CHANGING TO SEIZURE

Several threatening officers

Display of weapons

Physical touching

Language indicating required compliance

4th Amendment – Open Fields

BUT NOT CURTILAGE United States v. Dunn, 480 U.S.

294 (1987)

– Proximity to the home

– Within enclosure around home

– Nature of the area's use

– Steps taken to protect from observation

Hester v. United States, 265 U.S. 57 (1924)

– Not protected by 4th Amendment

Oliver v. United States, 466 U.S. 170 (1984)

– Past “NO TRESPASSING” sign and locked gate

California v. Greenwood, 486 U.S. 35 (1988)

– Visible from above (plane)

Florida v. Riley, 488 U.S. 445 (1989)

– Visible from above (helicopter)

4th Amendment – House (Arrest)

Enter Arrestee's House with Warrant Misdemeanor or Felony

U.S. v. Spencer, 684 F.2d 220 (1982)

Reasonable Belief:

Suspect's Dwelling Suspect in the Residence U.S. v. Magluta, 44 F.3d 1530

(1995)

Cannot Enter 3d Party House Steagald v. U.S., 451 U.S. 204 (1981)

Follow into House Hot Pursuit U.S. v. Santana, 427 U.S. 38 (1976)

Protective Sweep for People During Arrest Cursory check

Length of time of arrest

Maryland v. Buie, 494 U.S. 325 (1990)

US v. Jones, 4Cir (2012)

4th Amendment – House (Search)

Permission United States v. Matlock, 415 U.S. 164 (1974)

- One person present

- Common Authority

Georgia v. Randolph, 547 US 103 (2006)

- Two residents present

- One agrees / One refuses

Fernandez v. California, 134 S.Ct. 1126 (2014)

- Two residents

- One refuses

- Refuser arrested

Testa v. Commonwealth, (2009)

- Live in guest

4th Amendment – House (People)

Michigan v. Summers, 452 U. S. 692 (1981)

– Detain occupants without suspicion

– Officer safety

– Prevent flight

– Facilitate search

Muehler v. Mena, 544 U.S. 93 (2005

– Can use handcuffs

Bailey v. U.S., 133 S. Ct. 1031 (2013)

- Cannot detain someone who has left the residence

4th Amendment – Anonymous Tips

General Rule Must be corroborated

Innocent Details Predict Future Behavior

Navarette v. California, 134 S. Ct. 50 (2014) Innocent Details

Report of Immediate Criminal Activity

Dispatch Ability to Track Calls

Questioning - 5th & 6th Amendments

Don't Have to Worry if Suspect has a Lawyer Must Assert the Right

Montejo v. Louisiana, 556 U.S. 778 (2009)

Questioning: Coercion Official Compulsion Denying Free

Choice

Governmental Coercion makes refusal impossible

Threats to governmental benefit (government job)

Assertion would incriminate

– Salinas v. Texas, 133 S. Ct. 928 (2013)

STANDARD

(1) Will has been overborne and (2) Capacity for self determination has been critically impaired

– Avent v. Commonwealth, (2010)

MINORS (No Parent)

Robinson v. Commonwealth, (2014)

- Circumstance weighing against introduction of confession

- Does not mandate suppression of the confession

Angel v. Commonwealth, (2011)

- A minor (17 year old) who is read Miranda rights by officers and understands those rights, does not need a guardian present.

Questioning – No Miranda Required

Tizon v. Commonwealth, (2012)

- Temporary Investigative Detention

- When trying to sort out the scene

- Voluntary statements without questioning

Howes v. Fields, (2012)

- In prison, unrestrained, told can return to cell

Brooks v. Commonwealth, (2011)

- Consensual search for something else – ask if drugs belong to resident

Anderson v. Commonwealth, (2010)

- Public Safety

Testa v. Commonwealth, (2009)

- Non-responsive, unforeseen statement

Miranda Required If in custody or deprived of

freedom in a significant way

– Objective Test

– Not Officer's Belief

– Not Suspect's Belief

– U.S. v. Hashime, 734 F.3d 278 (2013)

Factors Time, Place, & Purpose of

encounter

Officer: Words used, Tone of voice, & Demeanor

Number of officers

Potential display of weapons

Physical contact

Suspect: Isolation, Separation from family, & Physical restrictions

2 STEP INTERROGATION

– Missouri v. Seibert, 542 U.S. 600 (2004)

– Kuhne v. Commonwealth, (2012)

Miranda STOP QuestioningMust Unambiguously Demand Counsel

- Davis v. U.S., 512 US 452 (1994)

Not an Unambiguous Demand

- Asking to clarify rights

- Unclear whom suspect wants present

- States might want an attorney

- Expressing reservations about not having an attorney

Zektaw v. Commonwealth, (2009)

Unambiguous Demand

“I’d really like to talk to a lawyer”

- Zektaw v. Commonwealth, (2009)

“Nah, I want a lawyer, you know what I’m saying?”

- Commonwealth v. Ferguson Jr, JUN09

“I already have a lawyer. I mean, I can talk to you, don't get me wrong. But I just want to make sure I don't, like I said before, just jam myself up."

- Commonwealth v. Hilliard, 270 Va. 42 (2005)

"Uh, yeah. I'd like to do that."

- Smith v. Illinois, 469 U.S. 91 (1984)

Questioning: Post-Assertion

SUSPECT RE-INITIATES

– a willingness and a desire for a generalized discussion about the investigation

– "Well, what is going to happen to me now?"

– Oregon v. Bradshaw, 462 U.S. 1039 (1983)

OFFERS TO ASSIST

– Offers to trade info for a better outcome

– Incriminates self

US v. Johnson, (2013)

SUBTLE COMPULSION

- “That’s fine. I’m not the person who robbed the white lady and hit her in the head with a brick”

- “If that’s the story he wants to tell the judge, then, that’s fine”

Commonwealth v. Quarles, (2011)

EVEN IF SUPPRESSED If Statement Excluded

Physical Evidence developed from the statement can still be used

U.S. v. Patane, 542 U.S. 630 (2004)

Can be used to impeach Oregon v. Hass, 420 U.S.

714 (1975)

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