Fourth Amendment Update: 'Community Caretaking' Narrowly Defined; 'Inevitable' Discovery No Excuse For Illegal Discovery
from the searches,-seizures-still-need-to-be-reasonable dept
Here's a brief roundup of Fourth Amendment-related court decisions in which judges have pushed back against law enforcement's insistence that these warrantless searches were completely justifiable.
The "community caretaking" aspect of law enforcement -- the part where the "protect" part of "protect and serve" gets a brief nod -- is often used as an excuse to perform a warrantless search, both before and after the fact. The underlying intent is honorable. If an officer sees a potentially stranded vehicle on the side of the road, he can approach the driver and attempt to render assistance. If an officer notices a broken window, he can approach the house or business and try to determine whether or not a burglary has occurred. Officers can also enter homes to render aid if they believe someone is in danger. All good things, but often abused to perform "plain sight" searches of property without a warrant.
In Kansas, a judge had no sympathy for the state's argument that an officer's stop of a vehicle was permitted under its "community caretaking" guidelines. As the court pointed out, most of the aspects of the "caretaking" more closely resembled regular police business: the investigation of criminal activity.
Based on Officer Vogt’s testimony, the sheriff department’s community caretaking policy requires its officers to check on any vehicle that is either parked along the side of the road or abandoned for public safety. Moreover, if a vehicle is located in a rural area, as Morales’ vehicle was, officers are to make sure that the vehicle is not stolen or a part of some other crime that the officers might uncover by running the vehicle’s license tag.When the driver is present in the vehicle, running the tag through law enforcement databases serves no "caretaking" function. The Sheriff's Department may consider it to be a key element of its public safety efforts, but the court doesn't.
Because Morales’ vehicle was located in a rural area at 2:30 in the morning, it was readily apparent that Officer Vogt was operating under the second prong of the sheriff department’s formal community caretaking policy: to make sure that Morales’ vehicle was not stolen or was not a part of some other criminal activity. This position is supported by the fact that Officer Vogt had the dispatcher run Morales’ license plate tag immediately upon pulling in behind Morales’ vehicle.
As a result, the sheriff department’s community caretaking policy is not “‘totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'” Grabauskas, 33 Kan. App. 2d at 214-15 (quoting Cady, 413 U.S. at 441). In fact, Officer Vogt testified that the detection of crime was the principle reason for running a license plate tag in a rural area. Obviously, this policy violates the legal principles of Grabauskas, Gonzales, and Marx.Calling it one thing ("community caretaking") while doing another (running plates for stolen vehicle hits) doesn't magically turn an investigation into roadside assistance. The court cites none other than Abraham Lincoln in its rebuttal of the state's arguments.
“‘How many legs does a horse have?’As we've noted here before, being in a vehicle does terrible things to your Fourth Amendment rights. A person's home, however, is still considered mostly unassailable in terms of Fourth Amendment protections.
“‘Four,’ said the witness.
“‘Right’, said Abe.
“‘Now, if you call the tail a leg, how many legs does a horse have?’
“‘Five,’ answered the witness.
“‘Nope,’ said Abe, ‘callin’ a tail a leg don’t make it a leg.'” Lamon v. McDonnell Douglas Corp., 19 Wash. App. 515, 534-35, 576 P.2d 426 (1978) (Andersen, J., dissenting).
Thus, officers calling a stop a public safety stop does not make it so, especially when there is an expressed investigatory component to their stated community caretaking policy.
In this Florida case, bondsmen came across a grow operation while looking for a fugitive. They turned this info over to the police department. Rather than use this probable cause to obtain a warrant, the PD decided to search the house without one. Officers obtained a form of consent from the resident (coerced) and search the premises. When the evidence was challenged, the officers claimed they could have gotten a warrant, what with all the probable cause they had. On top of that, the government argued the grow operation would have been "inevitably discovered" had they actually sought a search warrant.
The court is unimpressed.
The question before this Court is whether the inevitable discovery rule requires the prosecution to demonstrate that the police were in the process of obtaining a warrant prior to the misconduct or whether the prosecution need only establish that a warrant could have been obtained with the information available prior to the misconduct. We conclude that permitting warrantless searches without the prosecution demonstrating that the police were in pursuit of a warrant is not a proper application of the inevitable discovery rule.While "inevitable discovery" can sometimes "save" evidence obtained during a warrantless search, applying this reasoning to a situation where officers could have gotten a warrant but chose not to would allow the exception to swallow the rule. The court won't allow this to happen and points out that the Fourth Amendment isn't something law enforcement only needs to respect when it's convenient for it to do so.
The constitutional guarantee to freedom from warrantless searches is not an inconvenience to be dismissed in favor of claims for police and prosecutorial efficiency. While it is true that here the police were already in possession of the information leading to the evidence before the misconduct, they failed to pursue a legal means to attain this evidence… With no valid consent, and no pursuit of a search warrant, there are no legal means present that would have led to the evidence. In this way, the discovery was not inevitable notwithstanding the police misconduct, and the rule cannot be applied.
As we've seen time and time again, law enforcement often seems convinced warrants need only be sought after every warrantless option has been exhausted. That's not the way it's supposed to work, but it appears to be standard operating procedure. Fortunately, there's the occasional pushback from judges to keep this abuse from spiraling (further) out of control.
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Filed Under: 4th amendment, privacy, searches, surveillance, warrants
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Consent
Eh... the only reason the police didn't seek a warrant is because they thought they had consent. This isn't a case of rogue officers searching a house without going through the correct process; they thought they HAD gone through the process of obtaining consent. As the dissent asks, is there any possibility that they would not have sought a warrant if the guy had declined to consent?
Are we going to force officers to get a warrant even in cases where there IS both probable cause and consent, just in case that consent turns out to be invalid later?
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And in case you ask 'what consequences?', I'd like to point you to the article a day or so back, where a standoff with an empty house resulted in the place being trashed as the police ransacked it, legally. There's searches that are restrained and result in minimum disruption, and then there's searches that result in things being torn apart, something both sides know full well.
The police were 'asking' to search a premise that both they and the owners knew contained something illegal, do you really think the owner would have given their 'consent' without coercion given that?
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(A) The guy had already invited several people in, including telling two of them that he had a grow operation in that room. So... yes?
(B) The funny part here is that you're actually arguing that the guy knew that his home would be searched with a warrant if he didn't give consent and that the plants would be found anyway. It was, one might say, inevitable that they would have discovered the plants. If only there was a doctrine that covered such circumstances...
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Page 2:
'About thirty minutes later, a uniformed officer arrived at the home. The officer testified that Mr. Rodriguez invited him to enter. The officer saw the grow room, called the narcotics squad, and placed Mr. Rodriguez in handcuffs in the back of the officer's squad car while they waited for the narcotics detectives to arrive.
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The lead detective testified that Mr. Rodriguez signed a form consenting to a search of the home. Mr. Rodriguez testified that he only signed the consent forms because the narcotics detectives had guns and most were also wearing masks.'
Armed officers, dealing with someone who's already been sitting handcuffed in the back of a car for who knows how long, 'asking' for him to sign a 'consent' form? Even the lower court that didn't agree to the suppression of evidence found the actions coercive and the consent void as a result.
It was, one might say, inevitable that they would have discovered the plants. If only there was a doctrine that covered such circumstances...
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"The police attempted to gain consent from Rodrigueez to enter his home, but his consent was found to be coerced and invalid. With no valid consent, and no pursuit of a search warrant, there are no legal means presented that would have led to the evidence. In this way, the discovery was not inevitable notwithstanding the police misconduct, and the rule cannot be applied."
By not even trying to get a warrant, they shot their ability to use the 'inevitability doctrine' to pieces. For that doctrine to apply, the discovery needs to take place during an active investigation(which wasn't the case), and they need to be at least attempting to get a warrant(which they didn't even try, despite having plenty of time and opportunity to get it).
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Well, maybe it was coercion and maybe it wasn't. That's a matter of judgement rather than law, I think, so I think the appeals court would only step in if the first court abused its discretion in its finding. I would personally require more than the mere presence of armed officers to find coercion. An insinuation that the home would be damaged if a warrant was sought, or a suggestion that he'd be released if they were allowed to search, or something.
But it's disingenuous to say that the guy would NEVER have consented to the search without coercion, when the guy had ALREADY had not only consented to the bondsmen searching his home but had invited one policeman in already, BEFORE he was placed in handcuffs.
Of course they were investigating the call by the bail bondsmen; why else were the police there? But I get what you're saying; since they hadn't already applied for the warrant it wasn't inevitable that they'd apply for the warrant if consent was denied, and there wasn't some second investigation that would have turned it up. I just don't think that's logical in this case. It's not plausible that they wouldn't have sought a warrant, and it wasn't just because they were too lazy to get one, it was because they sought the alternate route of consent.
The weird part is that if they had not sought consent but got a warrant, and the warrant was later declared invalid (say, due to insufficient probable cause), the evidence from the search would be valid due to the good faith exception. But since they sought consent but not a warrant, and the consent was later found invalid, the evidence is excluded. No matter what your opinion, you have to agree that this is rather inconsistent.
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Both lower court and this one agreed that it was.
I would personally require more than the mere presence of armed officers to find coercion. An insinuation that the home would be damaged if a warrant was sought, or a suggestion that he'd be released if they were allowed to search, or something.
Coercion requires neither the application of force, nor the blatant insinuation of it's use. If someone with a gun in their waistband 'asked' for your wallet, without once directly threatening you, and you handed it over, most courts would agree that coercion was involved, despite the lack of any overt threat or use of force.
Likewise in this case the individual was dealing with armed police, and had been sitting in the back of a police car for some time, handcuffed, when he was asked to give his 'consent'. Regarding his original 'consent' in inviting them in, it's entirely possible that he didn't believe he had a choice in the matter. He either lets them in, or they come back with a warrant and enter anyway.
Other than colossal idiocy on his part, I can't think of any other reason he would have let them enter the house other than feeling that he had no choice in the matter.
But since they sought consent but not a warrant, and the consent was later found invalid, the evidence is excluded. No matter what your opinion, you have to agree that this is rather inconsistent.
Yes, though in this case I'd argue that it's inconsistent in a good way, as I've never cared for the 'good faith exception idea', as I find allowing those tasked with upholding the law, and who should know it better than anyone as a result, to break it and not have it negatively affect evidence or a case to be just a titch ridiculous.
'Normally that evidence would be excluded as having resulted from an illegal action, but because you thought you were within the law when you gathered it, it's allowed'.
To see how absurd the idea is, simply apply it to both prosecution and defense.
'Your Honor, while it's true that my client may have broken the law, at the time he thought that he was acting legally. As such, I'd like to request that the evidence against them be stricken from the record.'
If it wouldn't work for the defense, it shouldn't work for the prosecution. Ignorance of the law should not be a bane to one, while a boon to the other.
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For most crimes... not knowing the *law* is not a defense. But often, not knowing the *facts* can be a defense. Consider an "assaulting an officer" charge involving someone assaulting a plainclothes policeman who hasn't identified himself. That charge can't hold up, because the person didn't know he was assaulting a policeman. (I think there's a "reasonable person" standard in there too somewhere; it's probably not a defense that you were super drunk and just happened to enter the house three blocks down because you thought it was yours.)
Or think of all the officers who defended a shooting by saying "I thought he was reaching for a gun" when the guy didn't even HAVE a gun. (For something less controversial, imagine a case where the guy actually did have a gun and suddenly drew and aimed as if he was about to shoot someone, but there were actually no bullets in the gun. Unless the police actually knew the gun was empty, they won't be convicted for shooting him when he draws that gun.)
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Unless you're a law enforcement officer who should know the law. Then it totally *is* a defense.
Consider an "assaulting an officer" charge involving someone assaulting a plainclothes policeman who hasn't identified himself. That charge can't hold up, because the person didn't know he was assaulting a policeman.
Except it has held up. Funny, that.
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Is it *really* a robbery if someone uses a gun at to ask for a "donation"?
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If the warrant says that they are allowed to search the garage of a house for instance, then if they search the house any evidence obtained is likely to be tossed out, as it's outside the bounds of the warrant. If you don't get the warrant in the first place though, then they can search anywhere they feel like.
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No, according to people knowledgeable in the field, it is not.
But it is an affront to the brownshirt Respect My Authoritah goons who think they can ride roughshod over people because reasons.
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Unless they want to risk having the case tossed out, as happened here, yes.
If they're going to be searching something, then they'd better have a warrant. It's hardly a difficult process we're talking about. Go to a judge, present evidence, get warrant, it's not like they're being 'forced' to complete some heroic task or wade through miles of red tape. They're adults, they can handle a little work.
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There ARE exceptions to the warrant requirement, you know, so that doesn't really work as a rule.
Given what happened before the search, I doubt the entire case will be tossed. Maybe reduced charges because they won't be able to prove the exact amount - but the officer had already seen the grow room, and the two bail bondsmen had been in it.
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Exceptions do not the rule make. The rule is 'Get a warrant if you want to search something', exceptions are just that, exceptions to the rule, not the default.
In any case I'm pretty sure 'We just didn't feel like getting a warrant' isn't one of those exceptions, and the courts seem to agree.
Given what happened before the search, I doubt the entire case will be tossed. Maybe reduced charges because they won't be able to prove the exact amount - but the officer had already seen the grow room, and the two bail bondsmen had been in it.
So they testify that they saw the plants, at which point the defense says all of two words: "What plants?"
If the search and what resulted from it is tossed due to the lack of a warrant, as seems to be the case, then they've got nothing to charge them with.
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I seem to recall there being an avenue where they could get their warrant after the fact. Seems that is too difficult also.
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Suppressing evidence is a protection against police misconduct. The police here had no reason to think they were engaging in misconduct, because they had permission from the guy and had not threatened or physically intimidated him.
They have testimony of THREE witnesses that there was a grow operation there, and the guy admitted it to two of them. "What plants?" probably isn't going to cut it with a jury, any more than "What murder?" would cut it in a murder case that had three witnesses and a confession to two people but the body was never recovered.
It's not like the defense can press home a cross-examination of exactly why the plants aren't in evidence (even assuming the judge allowed the question.) Eventually the witness would have to answer, and they wouldn't want THAT, but they couldn't object too hard if they were the ones who insisted that the question be answered knowing what the answer would be.
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Something similar happened near me
As I mentioned, 6 weeks later the police raided the house and pulled out several million in stolen oxycontin. (This explained all the traffic in the middle of the night)
Here's what I later heard. First responders, paramedics, went in and spotted the boxes of oxy on a table. They were busy dealing with the recently departed. By the time a police officer had come into the house, the occupants had thrown a blanket over the evidence.
Obviously, although the medics had told the police what they saw, there was nothing in "plain sight" and they couldn't make a drug bust.
About 6 weeks later they raided the place, recovered the drugs and threw everyone in jail. I'm assuming they sent an undercover in to make a buy and then got a warrant. Since everyone went to jail, I'm guessing they did things "by the book."
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What shall we call them when they are wearing badges?
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What else could explain such widespread corruption and criminality among these officers that swore an oath to protect peoples rights then go out of their way to abuse such an oath
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What Plants?
The moral of the story is - get a warrant! if necessary, have one cop watch the house while the others get a warrant. There's only so much someone can do in an hour to destroy evidence.
As for "how many legs?" - I read that exchange earlier, it was by Mark Twain - "how many legs does a dog have, if you call a tail a leg?" So I guess the moral of the story is:
*"Don't believe everything you read on the internet..." -Abraham Lincoln*
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Yeah, I already threw everything after that moment out in my description of available evidence. One of the policemen was invited in *before* the coercion was found; that's what I included (and I have no idea why "in plain sight" doesn't apply, since he actually saw it.) And, again, the guy TOLD the bondsmen what the plants were, before the police were even called. The bondsmen also recognized the smell. They didn't need to be botanists.
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Perhaps Twain had read the Lincoln quote. Who knows? It certainly doesn't invalidate the Lincoln quote.
So I guess the moral of the story is:
*"Don't believe everything you read on the internet..."
Indeed. Even the naysayers.
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Seems legit
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How about "I was going to come back and pay for it later, but I needed it right now"?
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Nope, that wouldn't cut it. But you know what IS a valid defense? "I thought I had enough money in my checking account to cover the check I wrote for that item, but since it later turned out that I didn't, here's the payment plus overdraft charge, in cash." You won't be guilty unless you're lying about it being unintentional.
"I could have paid for it, but chose not to" is not a valid defense. "I thought I actually did pay for it, because I wrote a check and ordinarily a check is a valid form of payment, even though this time it wasn't" is.
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This sounds like the kind of argument made 150 years ago in Klan country for running over a black man. Well, except that you need to talk about a carriage rather than a car.
But that's more or less the same amount of respect you see by law enforcement regarding the Bill of Rights. You are only a full-weight citizen with all associated rights if you are wearing a badge. Well, at least it's no longer the skin color.
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Given the existence of the signed consent, you'd have to add something like "but he waved me forward, and that's why I didn't yield to him" in there somewhere.
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warrant vs permission. . .
In this case, the prudent approach would have been to first get the warrant and then to also ask permission before presenting the warrant.
It's called due diligence and any law enforcement who doesn't practice it isn't fit for the job. Covering up after the fact is not a suitable alternative and it's the officers failure if he finds himself in such a situation.
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“Former Defense Advanced Research Projects Agency (DARPA) director and now Google Executive, Regina E. Dugan, has unveiled a super small, ingestible microchip that we can all be expected to swallow by 2017. “A means of authentication,” she calls it, also called an electronic tattoo, which takes NSA spying to whole new levels. She talks of the ‘mechanical mismatch problem between machines and humans,’ and specifically targets 10 – 20 year olds in her rant about the wonderful qualities of this new technology that can stretch in the human body and still be functional. Hailed as a ‘critical shift for research and medicine,’ these biochips would not only allow full access to insurance companies and government agencies to our pharmaceutical med-taking compliancy (or lack thereof), but also a host of other aspects of our lives which are truly none of their business, and certainly an extension of the removal of our freedoms and rights.” Google News
The ARRA authorizes payments to the states in an effort to encourage Medicaid Providers to adopt and use “certified EHR technology” aka biochips. ARRA will match Medicaid $5 for every $1 a state provides. Hospitals are paid $2 million to create “crisis stabilization wards” (Gitmo’s) where state police torture people – even unto death. They stopped my heart 90 times in 6 hours. Virginia Beach EMT’s were called to the scene.
Mary E. Schloendorff, v. The Society of New York Hospital 105 N. E. 92, 93 (N. Y. 1914) Justice Cardozo states, “every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages. (Pratt v Davis, 224 Ill. 300; Mohr v Williams, 95 Minn. 261.)
This case precedent requires police to falsely arrest you or kidnap you and call you a mental health patient in order to force the implant on you. You can also be forced to have a biochip if you have an infectious disease – like Eboli or Aids. Coalition of Justice vs the City of Hampton, VA settled a case out of court for $500,000 and removal of the biochip. Torture is punishable by $1,000 per day up to $2 million; Medical battery is worth $2.05 million.
They told my family it was the brain initiative. I checked with the oversight board, and it is not! Mark Warner told me it was research with the Active Denial System by the College of William and Mary, the USAF, and state and local law enforcement. It is called IBEX and it is excruciating.
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