Articles Tagged with “warrantless searches”

There comes a time in everyone’s life when you must admit that you are defeated. In the context of a police encounter it is important to know when that moment comes, and what to do. In order to illustrate when, and why it becomes necessary to admit possession, a hypothetical example will be given illustrating the consequences of failing to admit defeat. It is rarely advisable to admit knowingly possessing controlled substances, alcohol, or weapons. However, there are times where it is advisable to admit such possession to a police officers.

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The Situation

Donald is driving his car down the highway, when he is pulled over by a police officer for a broken taillight. Donald is nervous as he is in possession of half an ounce of marijuana and he knows his car smells like it. Fearing the worst, Donald stuffs the marijuana in his underwear hoping to hide it if the officer searches the car. The officer approaches the window and ask Donald for his License, and proof of insurance, the officer immediately smells the marijuana and now has probable cause to search the vehicle[1] without a warrant pursuant to “The Auto Exception” doctrine set forth in Carrol[2]. The officer then asks Donald if he has anything illegal in the car. Donald says no. The officer then asks Donald for consent to search the car, Donald says no. The police officer then asks Donald to step out of the car, places him in handcuffs, pats him down. During the pat down the officer misses the marijuana Donald has stashed on his person. The officer then leads Donald to the back of the patrol car and tells him he will begin to search his car for marijuana. Donald protest, but knows in his mind the officer will not find anything as he has hidden it on his person. The officer proceeds to search Donald’s car for marijuana, and ultimately finds a bit of marijuana on the floor of the vehicle that Donald had missed. Evidence secured, the officer returns to Donald and tells him he will be arrested for possession of marijuana[3]. Donald his distraught as he believed he had gotten all of it. The officer then asks Donald if he has any marijuana on him. Donald says no, believing the charge will get worse if he turns over the rest of the marijuana.

Today marks the 41st anniversary of the landmark decision of South Dakota v. Opperman[1][2] in which the Supreme Court laid out the basis for what would be known as the Inventory search exception to the warrant requirement of the fourth amendment. This decision has allowed for a dramatic expansion in the number of warrantless searches the State can conduct.

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The Case

The case that made up the basis of Opperman was surprisingly mundane, and yet indicative of the kind of cases that would be affected by this landmark ruling. In the early morning hours of December 10th, 1973, Mr. Opperman’s car was found illegally parked in downtown Vermillion, South Dakota. Pursuant to police procedures, the officers impounded the vehicle. However, as the officers impounded the car, they noticed a number of valuable items strewn about the interior of the vehicle. The officers, fearing that the items could be stolen opened the vehicle and inventoried the items inside of it. While searching the interior of the vehicle, the officers found a small amount of marijuana located in the glovebox. When Mr. Opperman came to the police station to retrieve his vehicle the following day, he was arrested on the spot for possession of marijuana.

Today marks the 3rd anniversary of the landmark decision in Riley v California in which the Supreme Court unanimously held that a warrantless search and seizure of the digital contents of cell phones during an arrest is unconstitutional.

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The Cases

The cases that eventually became the basis of the decision in Riley v. California[1] are interesting to say the least, and highlight why a Supreme Court decision on the matter was vital in settling the question of the constitutionality of these warrantless searches.

iStock_000005542834XSmall (2).jpgUnmanned Aerial Vehicles (UAVs) revolutionized the War in Afghanistan. These drones allowed the military to perform a variety of operations while reducing the threat of injury to human soldiers. In the battlefield, it may be somewhat easy to rationalize the use of UAVs, especially against a foreign terrorist threat. Your feelings might dramatically change when you think about your local police force using UAVs to fight crime. This idea may seem a little bizarre and unrealistic. However, there are Texas counties currently allowing Law Enforcement to use UAVs and others who are engaging in UAV pilot programs.

UAVs enable the police to conduct unmanned surveillance over public and private areas. The main focus of UAV surveillance is to monitor or observe criminal behavior. While monitoring public areas is seemingly reasonable, the invasion of privacy UAVs present is cause for concern. For example, the Austin police department used a UAV in 2009. The Austin police department was executing a search warrant on a suspect’s house. The suspect was a drug trafficker and was believed to be heavily armed and dangerously. The police were concerned that the suspect was capable of shooting down a helicopter, so they conducted a sweep of the property with a UAV before executing the search warrant. This UAV, called the Wasp, was particularly special because it was the size of a small bird, which would be undetectable to the unwary eye.

Feelings about drones differ amongst Texas counties. Currently, Harris County does not to take part in UAV pilot programs. It initially participated in a UAV program, but it withdrew its participation in 2007. On the other hand, Montgomery County has a $300,000 Shadowhawk helicopter drone (developed from Vanguard Industries). It is a 50 pound helicopter with an extremely powerful camera mounted in the front with infrared capabilities. Assigned to man this drone are Sgt. Melvin Franklin, a licensed pilot, and Lt. Damon Hall, who is head of the department’s crime lab and crime scene unit. Montgomery County paid with this money with a homeland security grant. This drone is intended “to assist the County in a number of critical operations to include emergency management, search & rescue, and S.W.A.T. operations.”

iStock_000000350401XSmall.jpgOn the night of October 3, 2010, Tyler McNeely of Cape Girardeau, Missouri, was pulled over for speeding and swerving out of his lane. According to officer testimony, McNeely appeared unsteady and intoxicated, prompting the officer to attempt a breathalyzer test on him. After McNeely operated his constitutional right of refusal, the officer took him to a nearby hospital to have his blood drawn, which McNeely again refused. Ignoring McNeely’s explicit refusal, the officer directed a hospital lab technician to draw McNeely’s blood without his consent. At trial, McNeely contested the introduction of the blood sample, arguing that he had not consented, there was no warrant for the blood sample and no exception to the warrant requirement applied. The trial court agreed, suppressing the blood alcohol analysis after finding that there were no constraints that would have prevent the officer from obtaining a search warrant prior to drawing blood against McNeely’s will. Prosecutors appealed, and after Missouri’s highest court upheld the decision, the matter was brought before the U.S. Supreme Court.

In April 2013, the Supreme Court found that blood drawn during a DWI or DUI investigation without consent violates a defendant’s Fourth Amendment right against unreasonable search and seizure unless the government actors have obtained a warrant or an exception to the warrant requirement applies. Under the Fourth Amendment, for a search or seizure to be reasonable, the person must consent, the officer must produce a signed warrant or there must be an “exigent circumstance” such that if the officer took the time to obtain a proper warrant, the evidence or person to be searched or seized would be lost. In this case, the “exigent circumstance” was the “natural dissipation of alcohol in the bloodstream” as McNeely’s blood alcohol level would have naturally decreased with time. In effect, the Supreme Court held that a routine DWI stop is not enough to constitute an exigent circumstance or emergency, so blood cannot be taken without a valid warrant or the person’s consent. Examples of exigent circumstances include the need to: “provide emergency assistance to an occupant in a home,” “engage in hot pursuit of a fleeing suspect,” “enter a burning building to put out a fire and investigate its cause” and “to prevent the imminent destruction of evidence.” These are times when law enforcement requires neither consent nor a search warrant before taking action.

In light of the Supreme Court’s recent ruling, many are left wondering how the court will address implied consent as well as warrantless searches in DWI cases involving substances other than alcohol, such as marijuana. At the moment, the presence of true exigent circumstances allowing an officer to perform a warrantless search without the person’s permission during DWI cases must be determined on a case-by-case basis.