A Defenders Guide to the Fourth Amendment

By Lee Goebes, Staff Attorney, Appellate Division Alice Wang, Staff Attorney, Appellate Division

Public Defender Service for the District of Columbia

Criminal Defender Training Program Summer Series 2006 The Fourth Amendment
The rights 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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Search and Seizure Defined:

A person has been seized for purposes of the Fourth Amendment if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that she was not free to leave. United States v. Mendenhall, 446 U.S. 544 (1980).

Thus, a full station-house arrest is not required to violate the Fourth Amendment; brief detentions on the street implicate the prohibition against unreasonable seizures. Terry v. Ohio, 392 U.S. 1 (1968). On the other hand, consensual encounters between suspects and law enforcement officials do not implicate the Fourth Amendment. Florida v. Royer, 460 U.S. 491 (1983). A search occurs for purposes of the Fourth Amendment whenever governmental officials invade an individuals reasonable expectation of privacy. Katz v. United States, 389 U.S. 347 (1967). You must ask whether the person had a subjective expectation of privacy over the searched area and, furthermore, whether society is prepared to recognize this expectation as reasonable. Mills v. United States, 708 A.2d 1003 (D.C. 1997). For instance, the Supreme Court has held that we have no reasonable expectation of privacy over odors emanating from ourselves or our possessionsthus, suspicionless dog-sniff searches are constitutional. United States v. Place, 462 U.S. 696 (1983). The key principle to remember is that the protection against searches offered by the Fourth Amendment fluctuates widely depending on circumstances. Our expectation of privacy over our homes is far greater than our expectation of privacy over our cars; thus, the Fourth Amendment offers great protection over the home and virtually no protection over our vehicles.

Warrantless Searches and Seizures:

The Fourth Amendment generally is not offended by warrantless seizures. Rather than imposing a warrant requirement in this area, the Supreme Court has generally depended on the probable cause and reasonable articulable suspicion standards to provide protection against unreasonable seizures. Therefore, as a general rule, police may effectuate a full custodial arrest if they have probable cause to believe that the person is committing or has a committed a felony. United States v. Watson, 423 U.S. 411 (1976). Probable cause exists where the facts and circumstances within the officers knowledge are sufficient in themselves to warrant a reasonable belief that an offense has been or is being committed. Rucker v. United States, 455 A.2d 889 (D.C. 1983). o The major caveat to this rule is that police generally need a warrant if, in order to effectuate the arrest, they need to enter a private residence. Payton v. United States, 445 U.S. 573 (1980). o Furthermore, warrantless arrests for misdemeanors are generally permitted only if the officer observed the suspect actually committing (or probably committing) the offense. Schram v. Dist. of Columbia, 485 A.2d 623 (D.C. 1984); see also D.C. Code 23581. A police officer may conduct a less-intrusive investigatory detention (known as a Terry stop) when she has a reasonable, articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1 (1968). This detention 2

may last only so long as is reasonably necessary to confirm or disprove the officers suspicions. A reasonable, articulable suspicion is a particularized and objective basis for suspecting the particular person stopped of criminal activity. It cannot be based upon mere speculation or guess work. Likewise, the grounds for a Terry stop cannot have been formulated post hoc in response to a motion to suppress. Whether a Terry stop is justified requires consideration of the totality of the circumstances. Mayes v. United States, 653 A.2d 856 (D.C. 1995). o Factors that may go towards providing the police with reasonable suspicion include the time of day, unusual conduct, flight or furtive movements, high crime location, informant tip, putting hands in weird places, exchange of items, proximity to crime scene, the officers experience, etc. In contrast to seizures, searches conducted without a warrant are presumptively unconstitutional and the government bears the burden of showing that a warrantless search or seizure falls within a recognized exception to the warrant requirement. United States v. Jeffers, 342 U.S. 48 (1951). Unfortunately, the exceptions have more-or-less swallowed this rule. These exceptions include: Consent o If the suspect consents to the search, the Fourth Amendment is not violated. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Notably, the police do not need to warn suspects that they can refuse to provide such consent. United States v. Drayton, 536 U.S. 194 (2002). And, police can rely on a third partys consent to search so long as that person has the actual or apparent authority to provide consent. United States v. Matlock, 415 U.S. 164 (1974). Frisks and pat-downs under Terry o If an individual has been detained pursuant to a Terry stop, the officers can conduct a cursory pat-down for weapons if they have a reasonable fear for their own or others safety. Note that grounds for a Terry stop do not necessarily give rise to grounds sufficient to support a Terry friskthe officers must also have a reasonable fear that the suspect is armed and dangerous. Mayes v. United States, 653 A.2d 856, 861 (D.C. 1995). If, however, during this pat-down, the officers feel something that is readily identifiable as contraband (e.g., narcotics), they may seize it even if it is not a weapon. This is the so-called plain feel doctrine. Minnesota v. Dickerson, 508 U.S. 366 (1993). Plain view o If the police see and thereafter seize obvious contraband or fruits of a crime in plain view, no Fourth Amendment violation has occurred. This exception does not apply if the police trespass or if they use high-tech devices not in general public use. Kyllo v. United States, 533 U.S. 27 (2001). It likewise does not apply if the

police need to manipulate the object in order to determine its statusthe items illegal nature must be immediately recognizable. Arizona v. Hicks, 480 U.S. 321 (1987). Automobile exception o Due to the movable nature of vehicles and the fear that suspects will abscond with evidence, police can search an automobile absent a warrant so long as they have probable cause for the search. Carroll v. United States, 267 U.S. 132 (1925); Shreeves v. United States, 395 A.2d 774 (D.C. 1978). Searches incident to arrest o After effectuating a full arrest, the police may search that person and anything within the persons immediate grab area. Chimel v. California, 395 U.S. 752 (1969). If the arrest occurs in a vehicle, the grab-area includes the complete interior of the carbut not the trunk. This exception will not save a search if the initial arrest was illegal. Exigent circumstances o Police may conduct a search that would otherwise be prohibited absent a warrant (such as of a home) if they reasonably believe that the suspect will destroy evidence if they delay or if they reasonably believe that safety is at issue. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967); In re B.K.C., 413 A.2d 894 (D.C. 1980). Similarly, under the hot pursuit exception, police in chase may follow a felony suspect into a private home without a warrant. Hilliard v. United States, 638 A.2d 698 (D.C. 1994). Abandonment and dropsy exception o You have no reasonable expectation of privacy over discarded items, be it the trash in your trashcan or the little baggie of a plantlike substance that you dropped when you saw the police approaching. California v. Hodari D., 499 U.S. 621 (1991). Other exceptions that exist but do not often arise in litigation include inventory searches, see Illinois v. Lafayette, 462 U.S. 640 (1983), border searches, see United States v. Martinez-Fuerte, 428 U.S. 543 (1976), administrative searches, see Camara v. Municipal Court, 387 U.S. 523 (1967), fixed and tightly circumscribed check-point searches, see Michigan Dept of State Police v. Sitz, 496 U.S. 444 (1990), and so-called special needs searches, see Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995).

Arrests and Searches Conducted Pursuant to Warrant:

Searches or arrests conducted pursuant to a warrant are presumptively constitutional. Searches or arrests conducted pursuant to a warrant are not, however, unassailable. Grounds for challenging a warrant include: Facial invalidity o A warrant can be invalid on its face for many reasons. The most common challenge is that the warrant failed to articulate probable cause.

However, evidence obtained pursuant to an improperly issued warrant generally will be suppressed only if the executing officers reliance on the warrant was not objectively reasonable. United States v. Leon, 468 U.S. 897 (1984); United States v. Edelen, 529 A.2d 774 (D.C. 1987). Particularity requirement o One of the main evils the First Congress meant to preclude with the Fourth Amendment was the Kings use of the general warrant. Therefore, a warrant must particularly describe the place to be searched and the item or items that the officers expect to find. The particularity requirement prohibits sweeping, exploratory warrants, and evidence seized in violation of the particularity requirement is subject to suppression. Buckner v. United States, 615 A.2d 1154 (D.C. 1992). Scope o Similarly, even if a warrant is sufficiently narrow, officers must not exceed the scope of the warrant in executing it. For example, if a search warrant is targeted at illegal weapons, the executing officers may not search small containers wherein such weapons could not possibly be stored. On the other hand, if officers see obvious contraband during the execution of the warrant, such evidence can properly be searched and seized under the plain view doctrine. Bynum v. United States, 386 A.2d 684 (D.C. 1978). Franks challenge o If the officers affidavit in support of a warrant contains false or misleading information, the resulting warrant may be invalid. Franks v. Delaware, 438 U.S. 154 (1978). If a defendant can show that the affiant made deliberate falsehoods or acted with a reckless disregard for the truth, she can have evidence obtained as a result of the warrant suppressedunless the government can show that, even without the false or misleading portions, the affidavit still would have supported a finding of probable cause. Dailey v. United States, 611 A.2d 963 (D.C. 1992). Staleness o If the information contained in an affidavit is stale, it may no longer support a finding of probable cause. There is no strict calendar-based approach to staleness; rather, the issue must be resolved by reference to the particular facts and alleged crime at issue. Dockery v. United States, 853 A.2d 687 (D.C. 2004). Also keep in mind that even if a warrant is valid, the police may still act illegally in executing itfor example, by violating the so-called knock and announce rule. See generally D.C. Code 23-524. Furthermore, the mere fact that someone just happens to be present on the scene when a search warrant is executed does not justify a search of that

person. Ybarra v. Illinois, 444 U.S. 85 (1979). Such illegal behavior in the execution of a warrant may also support a motion to suppress.

Fruits, Suppressions, and Exceptions:

The general rule is that evidenceboth physical evidence and non-physical evidence (e.g., statements and confessions)obtained through or derived from an illegal search or seizure cannot be used as evidence in a criminal trial. Mapp v. Ohio, 367 U.S. 643 (1961); Weeks v. United States, 232 U.S. 383 (1914). This general rule, of course, has limitations and exceptions: Standing o The exclusionary rule does not apply to people whose rights have not been violated. Rakas v. Illinois, 439 U.S. 128 (1978). Thus, if an illegal search of a co-defendant uncovers evidence damaging to our client, our client lacks standing to have the evidence suppressed as her rights were not violated. Rawlings v. Kentucky, 448 U.S. 98 (1980); Alderman v. United States, 394 U.S. 165 (1969). The decisional law concerning searches of homes illustrates how the standing doctrine works. An overnight guest has standing to object to a warrantless or otherwise illegal search of her hosts home, see Minnesota v. Olsen, 495 U.S. 91 (1990), while a temporary visitor to a home enjoys no such standing to complain, see Minnesota v. Carter, 525 U.S. 83 (1998). Inevitable discovery o If the government can show by a preponderance of the evidence that the unconstitutionally obtained evidence would have been inevitably obtained through other, lawful means, the exclusionary rule does not apply. Nix v. Williams, 467 U.S. 431 (1984). Likewise, the exclusionary rule does not apply if the police also obtained the evidence through an independent source, that is, a source independent and separate from the illegal one. Murry v. United States, 487 U.S. 533 (1988). Attenuation doctrine (dissipation of the taint) o The exclusionary rule does not require suppression of evidence if the connection between the governmental illegality and the obtaining of the evidence is sufficiently attenuated. Wong Sun v. United States, 371 U.S. 471 (1963). This exception often occurs in cases involving confessions following an illegal arrestis the confession the result of the illegal arrest, or did sufficient events intervene between the illegal arrest and the confession such that the confession cannot be said to have been the fruit of the illegal arrest? Brown v. Illinois, 422 U.S. 590 (1975). Good faith exception o If an officer acts in objective good faith in obtaining and executing a warrant, the fruits of such warrant are admissible even if the 6

defendant can show a defect or illegality in the warrant. This exception does not apply if, in issuing the warrant, the magistrate abandoned his detached and neutral role. United States v. Leon, 468 U.S. 897 (1984); Dailey v. United States, 611 A.2d 963 (D.C. 1992). Also note that the exclusionary rule does not apply in grand jury proceedings. United States v. Calandra, 414 U.S. 338 (1974).