Published in the Spring 2010 VBA News Journal and the June 2010 True Bill (a publication of the North Carolina Bar Association's Criminal Justice Section)


INTRODUCTION

In recent years, there have been shifts, some say seismic ones, in the area of Fourth Amendment law. The 2008-2009 United States Supreme Court term was no exception, with major rulings affecting the exclusionary rule, which requires suppression of evidence that has been uncovered as a result of a Fourth Amendment violation, and searches of automobiles. Most significantly, in Herring v. United States,[1] the U.S. Supreme Court took a strong jab at the exclusionary rule, one of many that have littered the Fourth Amendment landscape ever since the exclusionary rule was first announced by the Court. While Herring was clearly a pro-law enforcement ruling, three months later the Court backtracked and handed down a ruling that diminished police authority in warrantless searches. In Arizona v. Gant,[2] the Court essentially abandoned stare decisis and gutted a 1981 ruling[3] which addressed the search of automobiles when the occupant or recent occupant is arrested. Two decades ago the Court granted the police blanket authority to search the car of an occupant or recent occupant who had been arrested;[4] in the last term, the Court severely limited the authority to search that same car.[5]

In another case from Arizona, the Court expanded on its previous case law and broadened police powers during traffic stops. In Arizona v. Johnson,[6] the Court made it clear that a passenger of an automobile is lawfully seized if the car in which the passenger is riding is legally pulled over and that such legal seizure continues for the duration of the traffic stop. And in a civil rights case, Pearson v. Callahan,[7] the Court addressed qualified immunity for law enforcement officers and the “consent once-removed” doctrine. Finally, in Safford v. Redding, [8] the Court provided more protection for students in connection with searches on school grounds.

This article will first examine the major Fourth Amendment cases from the 2008-2009 term and the background to those cases. It will also briefly discuss other Fourth Amendment cases that came out of the Court the last term. The article will then set out the possible impact of these cases, including analysis on what prosecutors and defense attorneys should look for when handling cases implicating the Fourth Amendment. Finally, the article will conclude with commentary on what the future may hold for the Fourth Amendment.

THE 2008-2009 U. S. SUPREME COURT CASES AND THE FOURTH AMENDMENT

Herring v. United States and the Exclusionary Rule

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures and bars issuing of warrants not supported by probable cause. The exclusionary rule is a remedy that the United States Supreme Court crafted to deal with violations of the Fourth Amendment.[9] The exclusionary rule provides that any evidence derived as a result of a violation of Fourth Amendment protections will be suppressed and will not be used against the accused in a trial.[10] In 1914, in Weeks v. United States,[11] the United States Supreme Court applied the exclusionary rule remedy to prosecutions in federal court. In 1961, the Supreme Court in Mapp v. Ohio[12] held that the exclusionary rule applies to state prosecutions through the Fourteenth Amendment.

Over the years, the Supreme Court has created many exceptions to this rule. Most notably, in United States v. Leon,[13] the Court ruled that the police’s good faith reliance on a search warrant that is ultimately deemed to be unsupported by probable cause will not lead to suppression of evidence. In another case, the Court held that the exclusionary rule does not apply to parole revocation hearings.[14] Other areas that have been held immune to the exclusionary rule are grand jury proceedings,[15] civil tax proceedings,[16] and civil deportation proceedings.[17]

In 1995, the Court in Arizona v. Evans[18] ruled that a Fourth Amendment violation caused by a court clerk’s error does not deserve the protections of the exclusionary rule. And in 2006, in the case of Hudson v. Michigan,[19] the exclusionary rule was held inapplicable to the violation of the “knock and announce” rule. (In executing a search warrant, the police are required to announce their presence and give the occupant a chance to let them enter voluntarily.) Justice Scalia, in a majority opinion, pointed out that the exclusionary rule’s “substantial social costs . . . sometimes include setting the guilty free and the dangerous at large.”[20] This past term, the Court in Herring[21] took yet another swipe at the rule.

Bennie Herring was arrested in Alabama based on what the police thought was an outstanding warrant in an adjoining county. It was later discovered that the arrest warrant had been withdrawn months earlier and that law enforcement in the adjoining county had neglected to update their computers. Unfortunately for Mr. Herring, this illegal arrest led to discovery of a gun and drugs, which in turn led to federal charges.[22]

The issue before the Court was whether the exclusionary rule should apply to suppress evidence that was uncovered as a result of this illegal arrest. The Court characterized the arrest as being based on “isolated negligence attenuated from arrest.”[23] In a 5-4 decision, the Court affirmed Herring’s conviction by holding that isolated incidents of police mistake leading to an illegal arrest do not call for the applicability of the exclusionary rule.[24] Echoing its earlier rulings, the Court held that a balancing test must be done in order to determine if the exclusionary rule should be triggered.[25] Writing for the narrow majority, Chief Justice John Roberts described the standard this way: “[P]olice conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”[26] This opinion has been described as possibly signaling the “eventual demise” of the exclusionary rule.[27]

Arizona v. Gant and the Search of Automobiles Incident to Arrest of the Occupant

The issue before the Court in Arizona v. Gant[28] was the continued viability of the rule in New York v. Belton,[29] which allowed police to conduct a search of the passenger compartment of a car and any containers in the car after lawfully arresting the occupant or recent occupant of the vehicle. The Belton case allowed such a search of the car even if there was no specific reason to believe that the car contained contraband or evidence of crime. The Belton ruling was based on the principle that the police have to ensure that the car does not have any weapons or destructible evidence that the arrested person may access.[30] The Belton rule was routinely interpreted—as the language of the case seems to suggest—to allow a search of a car anytime a person was arrested in the car or had been a recent occupant of the car, even if the person was handcuffed and securely placed in a police car.[31]

In Gant, the defendant was arrested for driving on a suspended license. He was handcuffed and placed in a police car. Following the Belton rule, the police searched his car and found cocaine.[32] Clearly, Gant could not have accessed any weapons in the car. And clearly the police could not expect to find in the car evidence of his driving without a license. The Court, although not explicitly overruling Belton, construed it very narrowly and ruled out automatic searches of cars when the occupant is arrested. It held that the police can search the car if the arrestee might be able to access the car at the time of the search or if it is reasonable to believe that the car has evidence of the crime for which the person has been arrested.[33] The search of the car in Mr. Gant’s case did not meet this test, and his conviction was reversed.[34] The Court acknowledged that it was abandoning stare decisis—that is, a broad ruling of Belton—but stated that experience had shown that the assumptions of “the broad reading” of Belton are “unfounded.”[35]

Arizona v. Johnson and Stop and Frisk of Automobile Passengers During Traffic Stops

Under the landmark case of Terry v. Ohio,[36] in order to “stop” someone for an investigative detention (that is, questioning), the police must have reasonable suspicion that the person has committed or is about to commit a crime.[37] If, in addition to questioning and brief detention, the police want to pat down (“frisk”) the person for weapons, they need to have a reasonable suspicion that the person is armed and dangerous.[38]

When it comes to a passenger in a car, the justification needed for a “stop” is met by virtue of the lawfulness of the traffic stop. As the Court’s previous cases have established, the police may have the passenger of a stopped car (along with the driver)[39] step out of the car,[40] and such passenger is (lawfully) seized from the time the car stops. [41] There is no requirement for the police to point to any evidence that the passenger is involved in unlawful activity.

The issue before the Court in Arizona v. Johnson[42] mainly dealt with the second phase of a Terry encounter—the pat down or frisk of a passenger. The defendant in Johnson was a passenger in a car that was pulled over for a traffic infraction. The police who made the stop were actually gang task force members and suspected the car of having gang members as occupants. During the stop, an officer began to question Johnson while another officer was dealing with the driver for the traffic infraction. As a result of questioning Johnson and other observations, the officer developed reasonable suspicion that Johnson was armed. The officer patted down Johnson and found a weapon on him.[43]

The U. S. Supreme Court, in a unanimous opinion by Justice Ruth Bader Ginsburg, held that the pat down was legal. First, the Court ruled that the defendant was legally detained because he was a passenger in a car subject to a traffic stop.[44] Although at this point there was nothing to indicate that the defendant himself was committing a crime or was armed, his status as a passenger of a lawfully stopped vehicle made his detention legal. This was a reiteration of the Court’s 2007 ruling in Brendlin v. California.[45] Significantly, the Court added that this “stop” continues lawfully for the duration of the traffic stop.[46] The lower court had ruled that, because the officer had conducted questioning of the defendant on an unrelated matter (his gang affiliation), the defendant was no longer detained.[47] The point of the lower court’s ruling was that the pat down was illegal because the first requirement of such a pat down—investigative detention—had not been met. The Supreme Court, in reversing, made it clear that the investigative detention of the passenger continues for the duration of the traffic stop.[48] With this rule, the first requirement of a pat down was established. The second requirement of a pat down—reasonable suspicion that the person is armed and dangerous—was developed from information gathered during this lawful investigative detention.[49] Therefore, the Court ruled that the pat down was legal.[50] The key to the ruling was that this reasonable suspicion was formed during the traffic stop and that the traffic stop was not unduly extended to develop the reasonable suspicion.

Other Fourth Amendment Related Cases from the 2008-2009 Term

In the civil rights case of Pearson v. Callahan,[51] the criminal defendant/civil plaintiff had filed suit against the police after his conviction for drug distribution was vacated because of police violation of his Fourth Amendment rights. The main issue before the Court dealt with what standard the Court should use in determining whether state actors have qualified immunity for constitutional violations. The Fourth Amendment discussion arose when the Court was addressing one of the factors in determining immunity from civil suit: whether the constitutional right in question was clearly established at the time of the violation. The applicable law was the “consent-once-removed” doctrine, which allows warrantless entry by police officers into a home when consent to enter has already been granted to an undercover officer or informant who has observed contraband in plain view.[52] The Supreme Court, which has not addressed the viability of this doctrine and did not do so in this case, held that the officers were entitled to qualified immunity.[53] The Court relied on the fact that, at the time of the warrantless entry which led to the civil rights suit, the “consent-once-removed” doctrine had been accepted by two state supreme courts and three federal courts of appeals.[54]

Another civil case, Safford Unified School District v. Redding,[55] involved the strip search of a 13 year old student at her school by school authorities who had received a tip that she was giving ibuprophin pills to other students. The officials first searched her backpack. Finding nothing, they had the student remove her outer clothing, pull out her undergarments, and shake them. Nothing was recovered.[56]

The Supreme Court held that, although school officials had reasonable suspicion that the student had over-the-counter pain medication, the strip search was not justified under the Fourth Amendment.[57] The Court found that the backpack search was appropriate but that the next stage was not because of the object of the search.[58] The Court made it clear that these types of searches are not always illegal. It is just that the school must have a compelling reason to conduct such a search (for example, looking for an object that may cause immediate harm).[59] The Court made this rule prospective, and that meant that the student was not able to collect damages from the offending officials.[60]

Finally, while the Court denied certiorari in the Fourth Amendment case of Pennsylvania v. Dunlap,[61] the case provides a window into the future because of the strong dissent to the Court’s denial of certiorari. That strong dissent was provided by Chief Justice Roberts. The Pennsylvania Supreme Court had ruled that the police did not have probable cause to arrest Dunlap despite the fact that they observed what appeared to be a hand-to-hand drug transaction. The Chief Justice felt that the Court should have granted certiorari and that it should have upheld the legality of the arrest.[62]

This loud dissent became even more significant when the Chief Justice again dissented during this term (2009-2010) from the Court’ denial of certiorari in a Fourth Amendment case from Virginia. The case, Virginia v. Harris,[63] involved the stop of a drunk driver by the police after they had received an anonymous tip. The Supreme Court of Virginia ruled that the police did not have reasonable suspicion to conduct the stop,[64] and the Commonwealth of Virginia appealed to the U. S. Supreme Court.[65] The Court denied certiorari. In his dissenting opinion, Chief Justice Roberts argued that drunk driving cases are unique and should be subjected to a more relaxed Fourth Amendment inquiry.[66]

THE IMPACT OF THE COURT’S RECENT FOURTH AMENDMENT JURISPRUDENCE AND SOME PRACTICAL LESSONS

1. The move away from bright line rules may lead to longer and more complex suppression hearings.

One major practical impact of Herring and Gant may be longer and more complex suppression hearings. The bright line rules of the exclusionary rule and Belton have been diminished, and now, more than ever, there is a case-by-case approach in Fourth Amendment cases. (In fact, this was one of the arguments of Herring’s counsel, who urged the justices to have a simple rule in place that provides for suppression of evidence when there is a Fourth Amendment violation.)[67] Balancing tests have justifiably been criticized for giving undue discretion to judges to come up with a result that they want in a case. The balancing test in Herring is no exception. But an analysis still needs to be done by counsel in preparation for a suppression hearing.

Whether a prosecutor or a defense attorney, you will need to determine whether there was police misconduct and, if so, whether it was an isolated one. The egregiousness, or lack thereof, of the violation is also another factor to consider. Because the Court stated that this part of inquiry is an objective one rather than a subjective one, officer training and experience will become areas of inquiry in this analysis. Additionally, one must look to see if exclusion will have much of a deterrence on police misconduct. These additional issues are added to the factors counsel will have to consider in preparing for a suppression hearing.

2. Stare decisis in Fourth Amendment law has been weakened and defense counsel should look at other long-standing rules that may be subject to challenge.

The Gant ruling was based upon the principle that the bright line rule of Belton did not make sense in many situations, particularly when the arrestee was handcuffed and in the back of the police car. And the erosion in the exclusionary rule has occurred almost from the day it was announced as the Court has found numerous situations to which application of the exclusionary rule does not make sense (to the particular majority of the Court at the particular point in time.) Criminal defense practitioners, therefore, have now been given additional tools to be creative in defending their clients. Under the right set of facts, certain long-standing rules may be attacked if the application of the rule to the particular case appears to be unjustified. For example, following the case of Chimel v. California,[68] courts have upheld the search of a room in which one is arrested.[69] The reasoning behind this rule is essentially the same as the one underlying the old Belton rule. Therefore, counsel should always be on the lookout to argue suppression of incriminating evidence recovered from a room at the time of the client’s arrest.

3. With the new restrictions on the search of automobiles, prosecutors may want to look at alternative theories to safeguard incriminating evidence.

It may take some time for the police to get used to, or learn about, the change in law with respect to the search of arrestees’ cars. To justify a search of the car, police must now show that it was possible for the arrestee to reach into the car during the arrest or that there was reason to believe that the car contained evidence of the charge for which the defendant was arrested. So, prosecuting attorneys may want to consider alternative theories of admissibility. One theory is the inevitable discovery doctrine. Under this rule, even if the search is illegal, the fruits of the search are not suppressed if the police can show that the items would have been discovered anyway because of subsequent events.[70]

For example, this rule may come into play if no one else is present to take possession of an arrestee’s car. The police will have the car towed to a holding facility, usually a parking lot on police owned grounds. There, the police are authorized to conduct inventory searches to protect themselves against any future civil liability for lost or damaged items in the car.[71] So, if the police conduct a search of the car incident to arrest in violation of the pronouncements of Gant, the prosecution should be able to argue that any illegal search of the car during arrest should not lead to suppression because the incriminating items would have been uncovered during an inventory search.

4. In Virginia, the impact thus far has been minimal.

Practitioners should note that recent Virginia appellate decisions have addressed or mentioned some of the search and seizure cases discussed above. In Logan v. Commonwealth,[72] the Supreme Court of Virginia reiterated its long-standing ruling that the exclusionary rule does not apply in a probation revocation proceeding unless there was bad faith on the part of the police. The case had a complicated procedural history, this being its second time before the Supreme Court of Virginia. The Court’s opinion is noteworthy because, although it affirmed the Court of Appeals’ ruling below, the Supreme Court made a note of expressly overruling a part of the Court of Appeals’ opinion with which it did not agree. In addressing the applicability of the exclusionary rule, the Court of Appeals had taken note of the Herring case and had seemingly “substituted an objective good faith test for the admissibility” of illegally seized evidence in probation violation hearings.[73] The Supreme Court of Virginia stated that it was overruling that part of the Court of Appeals’ opinion to the extent that it anyway altered the “requirement that bad faith must be shown in order to trigger the application of the exclusionary rule in probation revocation proceedings.”[74]

In another case, the Court of Appeals of Virginia rejected the Commonwealth’s reliance on Herring and reversed the conviction of a defendant in whose trial evidence derived from a Fourth Amendment violation was introduced. In Smith v. Commonwealth,[75] the Court of Appeals concluded that

despite the breadth of the [U.S. Supreme] Court’s language in Herring, it did not narrow the exclusionary rule beyond the bounds previously defined and that the good faith exception does not apply to a police officer’s honest but erroneous legal conclusion that a particular set of facts provides him with the necessary reasonable suspicion or probable cause for a seizure or search.[76]

Significantly, this language by the Court of Appeals is rather broad and seems to rule out any application of Herring to the most common Fourth Amendment cases—those in which the defense argues that the police did not have enough information in their possession to provide reasonable suspicion or probable cause to search or seize.

Defendants who attempted to use Gant in challenging the search of their cars did not get very far. In Duncan v. Commonwealth,[77] the Court of Appeals held Gant inapplicable. As in Gant, the search of the car was conducted after the defendant was handcuffed and placed securely in the deputy’s car. Unlike Gant, the deputy had been informed by the defendant that there was a firearm underneath the driver’s seat, giving the deputy probable cause to search to car without relying on a search incident to arrest rationale.[78] In U.S. v. Rumley,[79] the Fourth Circuit similarly batted down a Gant-based challenge to a search of the defendant’s car when it noted that the deputy searched the car based on seeing a weapon in plain view in the car.

CONCLUSION

The Court has given both defense attorneys and prosecutors some tools to be more creative in arguing their respective positions. For prosecutors faced with evidence endangered by potential police violation of the search and seizure law, the assault on the exclusionary rule from the string of cases ending with Herring provides room for creative arguments as to why the application of the exclusionary in their particular case is not worth the societal cost. Similarly, defense counsel can attack evidence recovered from cars of arrested clients based on the narrowing of the Belton rule. Moreover, defense counsel can look for creative ways to attack (pro law enforcement) bright line rules which experience has shown are no longer based on valid assumptions.

Although the U.S. Supreme Court has provided something for both sides of a criminal case, the future may prove different. While the Court provided more protection for defendants arrested in or near their cars, that new protection may not amount to much if some of the Justices have their way. [80] Abandonment of the exclusionary rule would render any new Fourth Amendment protections essentially meaningless in the context of a criminal case. The current Chief Justice’s majority opinion in Herring and his loud dissents make it crystal clear in which direction he wants to go when it comes to the exclusionary rule.

But long before Chief Justice Roberts took the helm, the Court expressed uneasiness about the exclusionary rule and its potential for releasing into society some very dangerous individuals. Therefore, at every opportunity, the Court has provided an exception to the rule. The 2008-2009 term may be viewed in the future as one of the final nails in the coffin of the exclusionary rule.