Tag Archive: Search and seizure


No Knock Entry: It’s Not Just For Breaking and Entering

On Friday, November 19, 2010, Fox aired the episode “Supercops” of the show The Good Guys.  The show follows Detectives Dan Stark and Jack Bailey of the Dallas Police Department, played by Bradley Whitford and Colin Hanks, respectively.  This episode follows Stark and Bailey as they investigate a diamond theft.  The investigation takes Stark and Bailey to many locations in Dallas.  While the detectives are following multiple leads, the owners of the diamonds, who are criminals, are chasing the thieves as well.

After Stark finds new information regarding the theft, he and Bailey go to the suspects’ home to follow up on the lead.  At this point in the investigation, there is not sufficient evidence to give probable cause for a warrant to search any location.  The detectives arrive at the home of two men who had previously been questioned during the investigation.  While approaching the house, they spot bullet holes in the windows.  The two detectives immediately become suspicious and enter the home as if it were an unsafe environment.  Their entrance into the house occurs without a warrant and without knocking.

In criminal procedure, officers must have reasonable suspicion to justify certain actions that may infringe on individual rights. The Fourth Amendment protects a person from unlawful searches and seizures.  A search and/or seizure can be authorized with a warrant.  A warrant is only to be issued if authorities can show probable cause.  The guidelines for warrantless searches are not included in the Constitution.

Exigent circumstances allow officers to conduct a search without a warrant or to conduct a no knock entry when one is not authorized in the warrant.  Exigent circumstances require that people be in imminent danger, that evidence might be destroyed or that a suspect might be escaping. In the episode, the bullet holes in the window imply gun fire,  and that people may be in danger inside the home.  The officers seeing indications of danger and knowing the gravity of the theft they are investigating, likely have sufficient reason to be alarmed.  This would satisfy the requirements of the exigent circumstances for a warrantless entrance.

False Friends

After Sunday’s “Circle Us” episode of the Showtime series Dexter, the show’s namesake seems to have fully let Lumen Pierce into his life.  Ever since Dexter first encounters Lumen being held captive by the rapist/serial killer Boyd Fowler, he is unsure of what to do with her.  Since she witnesses first hand Dexter killing Boyd letting her go did not seem be an option.   On the other hand Dexter must follow The Code, which permits him to only kill those who have killed and will likely kill again.  Faced with the dilemma of neither being able to let Lumen go nor kill her, Dexter initially keeps her locked up in a secluded area.  During Lumen’s captivity Dexter attempts to convince her he is not going to kill her, but given the circumstances he did not have much luck.  Once Lumen was able to escape her captivity, Dexter is forced to make a decision on what to do with her.  Instead of locking Lumen back up he shows her the bodies of Boyd’s victim and explains to her that if he hadn’t killed Boyd she would have been next.  Afterward, Lumen accepts the fact that Dexter is not going to kill her and she finally trusts him.  While their relationship evolves over the following episodes Dexter never fully confides in Lumen.  That situation changes this week as Lumen helps Dexter track down the latest serial killer and even saves Dexter after the serial killer unexpectedly subdues him.

Dexter has killed many serial killers during the series, which gave him more than enough reason to be concerned about what to do with Lumen.  After all, what if she later went to the police?  Dexter has been very careful in covering his tracks after every murder, which is why he has not yet been caught by the police.  Thus, the police would be very interested to hear what Lumen had to say after they investigated the scene of Boyd’s death and linked it with the previous murders.  If the police did not have enough evidence to arrest Dexter for the earlier murders, the information Dexter conveyed to Lumen after her escape would be invaluable.  What would be the legal ramifications for Dexter if the police apprehended Lumen for the later crimes and asked her to return to Dexter wearing a wire in order to gather more evidence against him?

The Fourth Amendment of the U.S. Constitution protects against unreasonable searches and seizures by requiring the issuance of a warrant by a detached magistrate unless certain exceptions apply.  Furthermore, the U.S. Supreme Court determined in Katz v. United States and Berger v. New York that electronic surveillance constitutes a Fourth Amendment search.  Thus Lumen’s use of a wire would have to be held reasonable under the Fourth Amendment in order to be permissible.  Whether the Lumen’s electronic surveillance would be deemed unreasonable, thus unconstitutional, is explained by the U.S. Supreme Court’s holding in Hoffa v. United States.

In Hoffa, a Louisiana Teamster official acting at the behest of federal law enforcement agents visited Jimmy Hoffa, president of the International Brotherhood of Teamsters, in order to obtain evidence against Hoffa of jury tampering.  While the government strongly denied dropping criminal charges against the Louisiana Teamster or issuing his wife any payments in exchange for his informant activity, the Hoffa court proceeded in its analysis assuming they did.  The Hoffa court reasoned that Hoffa was not relying on the security of the hotel room during his conversations with the Louisiana Teamster.  In fact, Hoffa invited the Louisiana Teamster into his hotel room.  Thus by permitting the Louisiana Teamster into his hotel room, Hoffa had consented to the intrusion into his private space.  Instead, it determined that Hoffa was relying on a misplaced confidence the Louisiana Teamster would not reveal the contents of their conversation to law enforcement.  For its holding the Hoffa court quoted the dissenting opinion in Lewis v. United States:

The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak.

Therefore, by allowing Lumen into his home, Dexter would be taking the risk that anything he divulges to Lumen would be relayed to law enforcement officials.  In essence, the only way that Dexter or anyone else for that matter can fully ensure that his secrets remain secret is to just keep them to himself.

Give the Police a Taser®; You May Just Save a Life. Teach the Police There is no Uniform Established Rule For Its Use…

Sony® unleashed the first commercially available camcorder, the BMC100P Betamax, upon the world in 1983.   Shortly thereafter, a child somewhere probably struck his father in the crotch in front of someone with one of those new devices and an industry was born.  Three years after Sony’s Betamax release, Japanese television show Kato-chan Ken-chan Gokigen TV became the first commercial exploitation of the most perfect match since peanut butter and jelly. Kato-chan Ken-chan Gokigen TV was a satirical comedy show, which featured a segment of viewer submitted videos the hosts would comment on.  In 1989, this new phenomenon caught on in the United States and America’s Funniest Home Videos was born.

From this long proud tradition comes a new spin that incorporates Viral Videos, Tosh.0.  On the show comedian Daniel Tosh comments on various Viral Videos found on the web, which inevitably involves some form of groin trauma.  The September 22, 2010 episode included an internet clip of a man being tasered during a demonstration.  Afterwards Daniel Tosh imagined how much joy he could bring to the world if he could taser thousands of people at once, which he termed “Tase Across America.”  While it is admittedly funny when people voluntarily do stupid things to show off, Tasers have become a staple of law enforcement’s tool belt.

University of South Carolina criminal justice professor Geoffrey P. Alpert conducted a four-year study on Taser use by police departments for the Department of Justice.  Geoffrey and his colleagues found significant arrestee and police injury reduction during arrests experienced by the approximately 17,000 police departments using Tasers as a “less lethal technology.” However, even if Tasers reduce arrestee and police injuries during arrests the 4th Amendment of the U.S. Constitution still prohibits unreasonable search and seizures.  Thus, the intrusion on the arrestee’s 4th Amendment rights must be balanced against law enforcement’s interest in reducing injuries incident to arrest.

To date, the U.S. Supreme Court has not specifically answered the question of when law enforcement may constitutionally use Tasers in subduing arrestees.  In Graham v. Connor, it did establish a balancing test to determine if police force during a seizure is excessive.  The Court balances the nature and quality of the intrusion on the suspect’s Fourth Amendment interests against the governmental interests at stake.  It looks to such things as the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, or if the suspect is actively resisting arrest or attempting to evade arrest by flight.  The Court emphasized this determination must be made from the perspective of a reasonable officer on the scene without the benefit of hindsight.

In 2008, the U.S. Eleventh Circuit Court applied the Graham balancing test in the Florida case, Buckley v. Haddock.  In Buckley, a homeless man pulled over for speeding was arrested after refusing to sign the citation.  The homeless man allowed himself to be handcuffed prior to exiting the car, but broke into tears and collapsed prior to reaching the officer’s car.  The homeless man next responded he “would be better off dead,” to the officer’s repeated demands to stand up.   The officer then tasered the homeless man repeatedly for resisting arrest.  The Eleventh Circuit held the officer’s use of force against the passively resisting homeless man was not unconstitutionally excessive.

Unfortunately, the Eleventh Circuit’s holding highlights a conflict among the Appellate Court Circuits as noted in the ACLU amicus curiae brief to the U.S. Supreme Court regarding the Buckley case.   Police Department Policies vary greatly as to when they permit their officers to use Tasers, as the ACLU points out in its study on the subject.  One police department mentioned permits Taser use after verbal commands fail but before pain compliance holds may be used.   Furthermore, many police departments do not have restrictions on how many times the Taser may be used or for how long.

Given this lack of guidance we should not be shocked to hear of cases from across the nation involving police using Tasers in questionable circumstances.  For example:

An officer responding to a public urination complaint in a city park tasered an 82 year old man suffering from dementia when he refused to comply with the officer’s order.  (The officer claimed the old man “squaring off” on him)

Officers responding to a robbery call in Dallas tasered a man to death for resisting arrest as he   lay on the ground.  (There were at least 8 officers present at the time to subdue the single suspect.)

An officer tasered several middle school children who responded to his question, “Who wants Taser?”

As the U.S. Eleventh Circuit Court reasoned in Buckley, “[t]he government has an interest in arrests being completed efficiently and without waste of limited resources: police time and energy that may be needed elsewhere at any moment.”  While this certainly is a valid governmental interest the Supreme Court has pointed out there is also a countervailing interest involved.  Even Justice Clarence Thomas’ nephew was recently tasered during an unfortunate incident with hospital security personnel in New Orleans.  Perhaps the conflict in the circuits on this issue will soon be resolved.

Losing Yourself In Plain View

In the final episode of the seventh season of “Entourage” entitled “Lose Yourself,” which aired Sunday, September 13, 2010, the character Vincent Chase spirals out of control through drug use and alcohol abuse.  After a season of self-destructive behavior, Vince ends up in the hospital being treated for injuries sustained in a fight at a hotel.  As he attempts to leave the hospital, the investigating officer, who is present to take his statement concerning the fight, discovers a bag of cocaine in Vince’s hospital room and confronts Vince about it.

The officer’s discovery raises the question of whether the discovery of the drugs is the result of an illegal search. Since we do not know why the officer is in Vince’s hospital room rather than in the corridor or the waiting room, and we do not know how he discovers the drugs, we don’t know whether the search and seizure is legal.

The Fourth Amendment to the United States Constitution protects against illegal search and seizures.  In Katz v. United States, the Supreme Court held that a search occurs when a person has a reasonable expectation of privacy in a thing and society considers that expectation reasonable.  A hospital room is generally considered to be a place with that expectation of privacy. There is no indication that Vince is in custody based upon his ability to leave the room at the beginning of the scene.  This also hints that the officer was invited into the room.  According to Terry v. Ohio, an officer is permitted to conduct a limited search if he witnesses  unusual conduct or there is indication of criminal activity.  The extent of a search is also limited to the activity which is directly associated with the unusual activity.

Vince’s actions at the party, including starting a fight after he was asked to leave, would not indicate sufficient suspicious behavior.  Although Vince was clearly drunk, his actions would not have spurred the reasonable suspicion requirement of the officer to justify a frisk or search that could have resulted in the discovery of the narcotics.  As stated earlier, there is also no indication Vince was in custody, which also may have justified a search.

In order for the officer to discover the narcotics legally, they must be in plain sight.  Vince wore a jacket at the hotel. However, he emerged from the hospital room without that jacket.  It is likely that he removed the jacket in the hospital room.  When Vince removed the jacket,  the drugs could have fallen out of a pocket.  If the drugs were discovered in a series of events similar to those described, the procurement of the evidence is subject to the plain view doctrine which the Court established in Horton v. California.  If the officer is legally in the room and the narcotics fell out of a jacket pocket through Vince’s normal movement, the officer would also have legal access to the object.  When the officer displayed the drugs to Vince,  it was also clear that they were an illegal substance satisfying the third requirement of the doctrine.

At the time of Vince’s exit from the hospital room, there is no indication that he is in custody.  There is also no indication that the officer had reasonable suspicion to conduct a search within the hospital room.  The officer’s presence in the room seems to be lawful based upon Vince’s body language and nonchalant manner in exiting the room.  It seems that the officer’s seizure of the narcotics are subject to the plain view doctrine.




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