SEARCH AND SEIZURE

1. SEARCH AND SEIZURE Gregory M. Caskey Judge of the Superior Court, State of California (Ret.)

2. Davis v. United States131 S.Ct. 2419 (6/16/11) Issue: Should exclusionary rule be modified to permit use of evidence seized by police in reliance on existing Supreme Court precedent? New York v. Belton, 453 U.S. 454 (1981) Arizona v. Gant, 556 U.S. 332 (2009)

3. Ashcroft v. al-Kidd131 S.Ct. 2074 (5/31/11) Issue: Is “motive” relevant when suspected terrorist is seized pursuant to material witness warrant? When, if ever, is “motive” or “purpose” a relevant factor in deciding whether a search or seizure violated the fourth amendment?

4. Kentucky v. King131 S.Ct. 1819 (5/16/11) Issue: What test should be used to determine whether police “manufactured” the exigency? Was the conduct of the police preceding the exigency reasonable? Did the police threaten to force entry if occupants did not open the door? Court rejects other tests including any focus upon the good or bad faith of the officer.

5. City of Ontario v. Quon130 S.Ct. 2619 (6/17/10) Issue: Was search of government employee’s cell phone by employer a violation of the employee’s reasonable expectation of privacy? Questionable whether the employer conducted a “search” of the cell phone Would/should the analysis differ if the cell phone was owned by the employee?

6. United States v. Jones(cert. granted 6/27/11) Issue: Did warrantless installation of GPS tracking device and 24 hour monitoring for 28 days violate Jones’ reasonable expectation of privacy?

7. Search Incident to Arrest Overview and Perspective Leading Supreme Court decisions Chimel v. California, 395 U.S. 752 U.S. v. Robinson, 414 U.S. 218 (1973) Arizona v. Gant, 556 U.S. 332 (2009) Bright and Not so Bright Lines

8. Key Factors • Custodial arrest? • Where was object (weapon, evidence) found? • On the person (or closely associated)? • Within reach? • When was the object found (in relation to the arrest)?

9. Chimel v. California395 U.S. 752 (1969) • When police make an arrest, they may search • The person being arrested; • Containers in his or her possession (either on or “closely associated with” the person); • Weapons or destructible evidence in the “area within arrestee’s immediate control.” • “Twin rationales”: Officer safety and preservation of evidence

10. Chimel critical distinction Any object or container found on the arrestee’s person or closely associated with the personat the time of arrest, may be searched without a warrant. A search for weapons or destructible evidence “in the immediate area” of the arrestee at the time of arrest is permissible if the officer had a reasonable belief such items would be found in the location searched.

11. Reason for Arrest Is the reason the person was placed into custody a factor in determining whether a “search incident to arrest” is lawful? Search of person or items “closely associated with the person” vs. Search of “area within immediate control” for weapons or destructible evidence.

12. Delaying the Search? For officer safety, an officer may delay the search incident to arrest until the arrestee has been secured. True or False? U.S. v. Edwards, 415 U.S. 800 (1974) and U.S. v. Chadwick, 433 U.S. 1 (1977)

13. Must be custodial arrest A search incident to arrest is limited to a custodial arrest. Fourth Amendment is not violated if an officer places a person into custody for a fine-only infraction committed in the officer’s presence. Atwater v. City of Lago Vista, 532 U.S. 318 (2001)

14. Use of Force An officer may use reasonable force to conduct a search incident to arrest; Preventing an arrestee from ingesting illegal substances is permissible so long as the force used is not excessive. Obtaining samples of blood, saliva or hair are reasonable provided the seizure does not expose the arrestee to an unjustifiable element of personal risk of infection or pain.

15. Cell Phones Contain vast amount of private information. Should such electronic devices be accorded greater protection than any other “file” or “container”? Is there a temporal limit to a search of a cell phone seized at the time of arrest? On or closely associated “Area of immediate control”

16. Search of Vehicle A search of a vehicle, or containers inside a vehicle, incident to the arrest of an occupant or recent occupant is no longer automatically permitted. Search for weapon only while arrestee is unsecured and able to access the vehicle (which should never occur!); Search for evidence only if the officer has “reason to believe” such relevant evidence will be located therein.

17. Narrowing the Exclusionary Rule Judicially created modification of the exclusionary rule United States v. Calendra, 414 U.S. 338 (1974) United States v. Leon, 468 U.S. 897 (1984)

18. Further Narrowing • Arizona v. Evans, 514 U.S. 1 (1995) • Hudson v. Michigan, 547 U.S. 586 (2006) • Herring v. U.S., 555 U.S. 135 (2009) • Davis v. U.S.,___U.S.__, 131 S.Ct. 2419 (2011)

19. Herring examined Sole purpose of exclusion is deterrence Exclusion is a separate issue Deterrence tied to culpability of the officer’s conduct Was the officer’s conduct a deliberate, reckless or grossly negligent disregard of 4th Amendment? Simple “isolated” negligence? Objectively “reasonable good faith belief”?

20. When officer is wrong • Should analysis of good faith depend upon whether the mistake is one of fact, law or combination of both? • Is the officer’s state of mind relevant on whether his or her conduct was objectively reasonable? • Culpability for failing to know the law?

21. Questions? gm.caskey@att.net