"Search" under the 4th Amendment
An intrusion on a person's house, papers, or effects where the person has a REP
Physical Intrusion: physical trespass into a constitutionally protected area for the purpose of obtaining information. (Jones Analysis)
REP: violated if the person exhibited an actual expectation of privacy and his/her expectation is one that society is prepared to recognize as reasonable (Katz Analysis)
All occupants of a car are "seized" for purposes of the Fourth Amendment during a traffic stop, not just the driver.
Brendlin v. California (2007)
True or False?
Odd or out-of-place rental car agreements can be a source of RS.
True.
Courts have acknowledged that drug traffickers often avoid commercial passenger flights and stick to driving.
US v Pacheco (2021)
What is needed for a Terry frisk?
Reasonable suspicion that the suspect is presently armed and dangerous
Terry v. Ohio (1968)
The 4th Amendment protects both privacy and property.
What are the two tests the Supreme Court uses to determine whether a "search" within the meaning of the 4th amendment occurred.
The Jones Analysis (US v. Jones (2012)): requires a trespass or physical intrusion by the government upon a constitutionally protected area and an intent to gather information.
The Katz Analysis (US v. Katz (1967)): Does a REP exist? Individual must have exhibited an actual expectation of privacy and that expectation must be one that society is prepared to recognize as reasonable.
Reasonable Suspicion
Articulable facts and circumstances that would lead a reasonable officer to believe a suspect is, or is about to be, involved in criminal activity.
Any traffic offense committed by a driver is a legitimate legal basis for a stop.
Whren v. United States, 517 U.S. 806 (1996)
https://www.youtube.com/watch?v=F-KgLXrENFA
On June 10, 1993, Michael Whren and James L. Brown were driving around Washington D.C. in an SUV. Brown was the driver, and Whren sat in the passenger seat. They were driving in what was considered a "high drug area."
Meanwhile, two officers dressed in plainclothes were patrolling the area in an unmarked car. They were members of the District of Columbia's Vice Squad and were assigned to the area; they noticed the suspicious vehicle pulled over at a stop sign for about 20 seconds. As the officers approached the vehicle, the vehicle turned at an "unreasonable" speed without using their turning signal. For the traffic violation, the officers pulled over Whren and Brown.
Upon approaching the car, the officer noticed two plastic bags of crack cocaine in Whren's hands. Marijuana laced with PCP was also found in plain sight. The two were charged with possession with the intent to distribute.
Officer Kraus stops a vehicle for running a stop sign. (!!!) When she approaches, she smells the odor of marijuana and sees a small glass pipe in the center console. Driver is asked if there are drugs in the car to which he responds "maybe". On a PC search, Officer Kraus comes upon a passenger's purse laying on the rear seat of the vehicle. May she search? Explain.
Yes. If there is reason to believe the contraband and evidence may be contained inside.
Supreme Court's reasons for warrantless PC search of a vehicle: mobility of vehicle means evidence could leave jurisdiction before obtaining a warrant and vehicles have lowered REP
Legal Standard: PC/lawful access/readily mobile/search doesn't exceed scope of PC
Permissible Actions During a Vehicle Stop
License and Registration check
Ordering the driver and passengers to remain in the vehicle
Ordering the driver and passengers out of the vehicle
Using a flashlight to illuminate the interior of the vehicle
Questioning the driver regarding their travel plans
Name that case: Expanding on Terry v. Ohio, officers may frisk the passenger compartment of a vehicle, limited to those areas in which a weapon may be found, if RS exists that the suspect is dangerous and may gain immediate control of weapons.
Michigan v. Long (1983)
Officers can conduct a frisk of the passenger compartment following a lawful investigatory stop of a vehicle if the Terry standard is met. The court recognizes that roadside encounters between police and suspects are hazardous and danger may arise from the possible presence of weapons in the area surrounding the vehicle. The frisk of a passenger compartment of an automobile, restricted to those areas where a weapon may be placed or hidden, is reasonable if officer can articulate a reasonable belief the suspect is armed and dangerous
Consent
The voluntary agreement by a person of age or with requisite mental capacity who is not under duress or coercion and usually who has knowledge or understanding.
Officers may conduct a pat down search of a passenger in an automobile that has been lawfully stopped for a minor traffic violation, provided the police reasonably suspect the passenger is armed and dangerous.
Arizona v. Johnson, 555 U.S. 323 (2009)
https://www.youtube.com/watch?v=7kkIvTE103s
Tucson, Arizona, police officers were patrolling a neighborhood associated with the Crips gang when they stopped a vehicle because its registration had been suspended. Officers noticed that Lemon Montrea Johnson, the vehicle's backseat passenger, looked back and kept his eyes on the officers as they approached, that he was wearing a blue bandana (consistent with Crips membership), and that he had a police scanner in his pocket. While in the car, Johnson stated that he was from a town the officer knew to be associated with the Crips gang, and also admitted that had served a prison sentence for burglary and had been out for about a year. The police asked Johnson to exit and step away from the car because they wanted to question him and gather gang intelligence; after he complied, the police patted him down because they believed that he was armed and dangerous, based on their observations and Johnson's statements. The pat down search revealed a gun, and Johnson was arrested
Officer Kraus conducts a traffic stop on a vehicle traveling 15mph over the speed limit, no other violations observed. She talks to driver who seems nervous and says he was just following what the GPS said. In plain view she sees a pack of rolling papers, but no other signs of drugs or paraphernalia. What can she do?
She can ask for a consent search and/or ask the driver questions as long as it doesn't prolong the stop.
Once the stop is made, you must diligently pursue the original reason for the traffic stop (ex:writing a ticket).
Unrelated questioning must not measurably extend the stop unless additional RS/PC develops
The Carroll Doctrine allows for a warrantless search of a mobile vehicle when:
PC to believe evidence or contraband is inside the vehicle, the vehicle appears to be readily mobile, the search doesn't exceed the scope of the items you are looking for.
In Pennsylvania v. Mimms and Maryland v. Wilson the Supreme Court provided police officers the right to:
Remove the driver and all passengers. All can be detained outside of the vehicle for the duration of the stop.
The Supreme Court says that passengers are seized under the 4th Amendment during traffic stops and that any occupant may be ordered to stay, or exit the vehicle if:
Stop was based on RS/PC and officer can articulate any legitimate reason (officer safety, interview occupants separately, etc...)
Hunch
Slight possibility of illegal activity.
A reason to engage in a consensual encounter or watch someone.
A vehicle search is not authorized incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle.
Arizona v. Gant, 556 U.S. 332 (2009)
https://www.youtube.com/watch?v=dhmuqf3iGHw
Rodney Gant was apprehended by Arizona state police on an outstanding warrant for driving with a suspended license. After the officers handcuffed Gant and placed him in their squad car, they went on to search his vehicle, discovering a handgun and a plastic bag of cocaine. At trial, Gant asked the judge to suppress the evidence found in his vehicle because the search had been conducted without a warrant in violation of the Fourth Amendment's prohibition of unreasonable searches and seizures. The judge declined Gant's request, stating that the search was a direct result of Gant's lawful arrest and therefore an exception to the general Fourth Amendment warrant requirement. The court convicted Gant on two counts of cocaine possession.
True or False?
You may run a K9 around a vehicle stopped lawfully at any time with or without RS as long as the stop is not extended
True
There is no 4th Amendment protection of the air around a vehicle in most states. (WA, PA, NM)
If no RS for drug evidence inside the vehicle, you may conduct a free-air sniff around the vehicle as long as there is no break in the investigation and the free-air sniff does not prolong the stop.
If there is RS, you may continue to detain the vehicle for a reasonable amount of time for a drug K9 to arrive and then you may conduct a free-air sniff around the vehicle, but may not make a physical intrusion in or on w/o PC.
Define "pretextual" stop. Explain when and why they are justified.
A "pretextual" traffic stop occurs when an officer uses a legal justification to stop an individual in order to investigate a difference, more serious, crime for which no RS exists. Case law: Whren v. United States, 517 U.S. 806 (1996) Supreme Court upheld pretextual traffic stops, noting the constitutionality of a stop doesn't depend on the actual motivation of the officer. Discussion for group-- examples
Are Officers allowed to identify passengers during a lawful Terry stop?
It depends...
Case law that addresses the question:
United States v. Fernandez (2010)
Hiibel v. Sixth Judicial Dist. Court (2004)
Johnson v. Nocco (2023)
United States v. Soriano-Jarquin (2007)
Probable Cause
Facts and circumstances known at the time that would lead a reasonable person to believe that the suspect has committed, is committing, or is attempting to commit a crime.
"Reasonable belief"
A seizure for a traffic violation justifies a police investigation of that violation, not more, and the authority for the seizure ends when tasks tied to the traffic infraction are or reasonably should have been completed.
Rodriguez v. United States (2015)
On March 27, 2012, a Nebraska K-9 police officer pulled over a vehicle driven by Dennys Rodriguez after his vehicle veered onto the shoulder of the highway. The officer issued a written warning and then asked if he could walk the K-9 dog around Rodriguez's vehicle. Rodriguez refused, but the officer instructed him to exit the vehicle and then walked the dog around the vehicle. The dog alerted to the presence of drugs, and a large bag of methamphetamine was found.
Name and provide examples of the three types of law enforcement encounters
Consensual Encounter: Voluntary. A reasonable person feels entitled to leave at any time.
Investigative Detention: "Terry" stop. A compelled, brief, investigatory stop. Must have RS that criminal activity is afoot and the person detained is somehow involved.
Arrest: PC that a crime is being, or has been committed.
Searching a Vehicle Incident to Arrest--When can you do it?
When a suspect is arrested secured, the vehicle may be searched if: you have reason to believe evidence of the crime for the arrest may be inside the vehicle and you do not exceed the scope of search necessary to find the evidence. The search must end when you no longer have reason to believe evidence of the crime is inside the vehicle (unless you develop additional PC to search for something else).
When a suspect is arrested and unsecured, the vehicle may be searched if: suspect is w/i lunge distance of vehicle and unsecured. You may search for weapons, evidence, and a means of escape.
(Arizona v. Gant)
True or False
An officer can order all occupants in a vehicle to remain in the car with their hands visible
True
US v. Moorefield (2007)