Assignment:
The Fourth Amendment
Antoine Jones, a nightclub owner, was suspected of being associated with an illegal narcotics operation. Police lacked a valid warrant but nonetheless put a GPS tracker on Jones's Jeep and followed his movements for four weeks. Jones was arrested in 2005 and in a 2008 trial a jury found him guilty of intent to distribute cocaine for which he was sentenced to life in prison. On appeal, Jones argued that his conviction should be overturned because the warrantless use of the GPS tracker violated his Fourth Amendment right to be protected from unreasonable search and seizure. His case reached the U.S. Supreme Court, which unanimously ruled that installing a GPS device is, indeed, a search in constitutional law terms. The Court did not resolve the question of whether a search warrant is required in such situations. Future decisions will address that crucial question as the Court tries to achieve a coherent line of reasoning in applying the centuries-old Fourth Amendment to the complex new world of high technology.
The Fourth Amendment provides that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause. The authorities are under great pressure to cope with America's crime and terrorism problems. They must do so, however, within the confines of the Constitution, which is designed to protect us all-including criminals and terrorists-from the power of an unfair, overreaching government. Two crucial inquiries in search and seizure cases are whether a search has, in fact, occurred (as in the Jones and Jardines cases) and whether the search violated the subject's reasonable expectation of privacy (which is much more likely in one's home than on the street, for example.) Certainly, the most controversial dimension of Fourth Amendment interpretation is the exclusionary rule, which provides that, as a matter of due process, evidence secured in violation of the Fourth Amendment may not be used against a defendant at trial.
As ultimately applied to all courts by the 1961 U.S. Supreme Court decision in Mapp v. Ohio, we can see that the exclusionary rule, while a very effective device for discouraging illegal searches, seizures, and arrests, also from time to time has the effect of freeing guilty criminals. The Supreme Court restricted the exclusionary rule in 2006 holding that the government need not forfeit evidence collected in constitutionally improper "no knock" searches. For many years, police conducting a search have been required to knock and announce themselves then wait a reasonable time to enter. Michigan police, in executing a search warrant, announced themselves but did not wait a reasonable time before entering and finding crack cocaine in Booker T. Hudson's pockets. Hudson was convicted of drug violations, and his appeal eventually reached the U.S. Supreme Court where Justice Antonin Scalia, writing the 5-4 opinion upholding Hudson's conviction, expressed concern about guilty defendants who have been allowed to go free because of the exclusionary rule.
He concluded that the social harm accompanying the knock and announce rule was too great as compared with the added privacy offered by the rule. Then in 2009, the Court, in another 5-4 decision, further limited the exclusionary rule by finding that unlawful police conduct does not require the suppression of evidence if the misconduct involved only "isolated negligence."
1. Vehicle Searches. For nearly 30 years, police officers have commonly understood that lawfully arresting an occupant of a vehicle confers the right to search the passenger compartment of that vehicle. In a 2009 decision, Gant v. Arizona, the U.S. Supreme Court significantly diminished that authority by ruling that such searches are permissible in only two circumstances: a. when the individual being arrested is close enough to the vehicle to reach in for a weapon or evidence and b. when the officer can reasonably believe that the vehicle contains evidence relevant to the crime of arrest. Thus, arrests for routine traffic stops ordinarily would not justify vehicle searches while such searches are more likely to be permissible incident to arrests for more serious crimes.
2. Cell Phones. An Ohio woman, Wendy Thomas Northern, was hospitalized because of a drug overdose. During police questioning she agreed to call Antwaun Smith, whom she identified as the source of the drugs. Police arrested Smith, searched him and his cell phone, and discovered call records and numbers confirming that his phone had been used to talk with Northern. That evidence was used at trial against Smith, who argued that the cell phone search violated his Fourth Amendment rights. The Ohio Supreme Court agreed with Smith and ruled that the cell phone evidence should have been suppressed. Court decisions supporting cell phone searches have relied on well-settled Supreme Court decisions allowing police to conduct searches incident to lawful arrest.
The arrestee's person and immediate area of control including any closed containers in possession of the suspect may be examined by the police to ensure their safety and to prevent the destruction of evidence. The Ohio Supreme Court declined to treat Smith's cell phone as a container. The California Supreme Court, however, ruled that an arrestee had no reasonable expectation of privacy in his cell phone as long as it was with him at the time of arrest. In 2014, the U.S. Supreme Court held that, unlike wallets or purses, cell phones could not be searched upon arrest without a warrant. Why?
3. Testing Students. In 1998, the school board in rural Tecumseh, Oklahoma, instituted a mandatory random urinalysis drug-testing program for all students participating in competitive extracurricular activities. The tests checked for illegal drugs but not for alcohol. Test results were not turned over to the police. An honor student, Lindsay Earls, challenged the program as a violation of her Fourth Amendment rights. A U.S. Court of Appeals agreed with her, ruling that school officials needed
4. Voyeurism and the Surveillance Society. In Washington State, Richard Sorrells and Sean Glas were found guilty of violating a state voyeurism statute for taking pictures up the skirts of some women who were working and shopping in a public mall. Both men appealed their convictions and won a 2002 decision because the voyeurism law did not apply, the Washington State Supreme Court unanimously ruled, to actions in public places. The women had no "reasonable expectation of privacy" in the shopping mall, so their privacy could not have been invaded. A federal law, the Video Voyeurism Prevention Act (limited to federal jurisdiction/property), and a number of state laws have expanded protection against photographic voyeurism, but those laws may not meet constitutional requirements.
5. DNA Samples. Alonzo King was arrested in 2009 on an assault charge and, without first obtaining a search warrant, polic e swabbed the inside of his cheek for a DNA sample. Several months later his DNA was matched with a 2003 rape case. He was then convicted of that rape. He appealed his conviction arguing that he was a victim of an unreasonable search in violation of his Fourth Amendment rights. Maryland law allowed the sampling in cases where the suspect had been arrested, but not yet convicted, of serious crimes including burglaries, rape, and murder.
The U.S. Supreme Court, in a 2013 ruling, upheld the conviction by a 5 to 4 vote saying that DNA collection is simply a part of the booking process, much like fingerprinting, and thus was a minimal intrusion on privacy. DNA testing is a valuable tool in prosecuting criminals and in exonerating the innocent, but DNA collection by the government of suspicionless persons who are presumed innocent at the time raises significant privacy issues. In the future, might DNA collection be extended to all arrests, or might the government misuse its vast DNA database, at least some of which will have been collected from people who are innocent? Over half of the states collect DNA upon arrest for serious crimes. [For an overview of privacy issues, see https://epic.org/]
Questions
1. More than 13 million people are admitted to American jails each year. Albert Florence was mistakenly arrested and subjected to two strip searches involving showering with a delousing agent, officers checking for gang tattoos and scars, lifting his genitals, officers looking in his body openings, and more. Does the Constitution allow authorities to strip search those admitted to jail for minor violations? Explain. See Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510 (2012).
2. Police stopped and arrested McFadden for riding a bicycle on a sidewalk in violation of New York City code. A search incident to the stop revealed a firearm. McFadden was later convicted of the crime of being in possession of a firearm as a previously convicted felon. McFadden appealed, claiming the search was unconstitutional. Was he correct? Explain. See United States v. McFadden, 238 F.3d 198 (2001); cert. den. 122 S.Ct. 223 (2001).
3. a. Can the police lawfully search an individual's garbage once it has been placed at the curb for disposal? A Connecticut resident, Paul DeFusco, was convicted of drug trafficking based on evidence found in his home. The police conducted the home search with a warrant secured on the basis of an informant's information as well as evidence (some short cut straws, glassine baggies, and prescription bottles) turned up in sifting through DeFusco's garbage.
b. Explain the central issue in this case. See State of Connecticut v. Paul DeFusco, 620 A.2d 746 (Conn. S.Ct. 1993).
4. Tucson, Arizona, police, cruising in an area associated with the Crips street gang, stopped a car because its insurance coverage had been suspended. Johnson, a backseat passenger, was wearing the blue colors associated with the Crips and Officer Trevizo saw that Johnson had a police scanner in his pocket. Trevizo questioned Johnson learning that he was from a town frequented by the Crips gang, that he had recently been in prison and that he had no identification with him. Trevizo asked Johnson to exit the car. He did so. Trevizo conducted a pat-down search, and she felt a gun. Johnson struggled but he was arrested, and a further search revealed marijuana. Johnson was charged with unlawful possession of a gun, possession of marijuana, and resisting arrest. In court, Johnson challenged the legality of the search saying it had nothing to do with the traffic stop. Did the pat-down violate the Fourth Amendment's prohibition on unreasonable searches and seizures? Explain. See Arizona v. Johnson, 555 U.S. 323 (2009).