Natty Shafer Law

Utah lawyer for criminal and immigration cases

Monthly Archives: May 2013


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Warrant Exceptions: Exigent Circumstances

Another exception the search warrant requirement is “exigent circumstances.” Exigent circumstances are situations where immediate action is necessary because a delay would result in irrevocable harm. It would take too much time for an officer to get a search or arrest warrant. Such situations include: imminent danger to life, serious damage to property, possibility of a suspect escaping, or destruction of evidence. Of these four broad categories where exigent circumstances could be said to exist, it is the last one that is problematic. Most people, I believe, would not object on principle to officers going into homes where they hear gunshots being fired. The “destruction of evidence” category is so broad that far too many situations can become exigent circumstances.

When officers use the exigent circumstances exception to enter property, they are only supposed to take steps to end the emergency. The officer can retrieve and secure any evidence found in plain view, but cannot conduct a full search. Once the situation is stabilized, the officer is required to obtain a search warrant to continue searching for evidence. However, if the exigent circumstance is the destruction of evidence, the situation is not stabilized until the officer has secured the evidence. The officer is going to search the area around all the suspects and examine what they were hiding or how they were planning to destroy evidence.

Since illegal drugs are easily destroyed, exigent circumstances can occur in too many situations. In Kentucky v. King, the Supreme Court held that the exigent circumstances doctrine applies when the police do not “violate the Fourth Amendment or threaten to do so.” In other words, if the police have not conducted an illegal search before they knock on your door, anything that happens afterward could potentially fall within the exigent circumstances exception.

In King, the police broke down the door—without a warrant—of the defendant’s apartment. The police said they smelled burnt marijuana and knocked on the door, at which point they heard things being moved inside the apartment. If that is all it takes to create exigent circumstances then the police really have license to break into many people’s homes. All they have to do is testify that they smelled a narcotic and heard something moving inside. One can imagine a completely innocent person using a toilet for its intended purpose and hearing a knock on the door. If the officers suspect the occupant of committing any crime that would leave behind concealable evidence, flushing the toilet, presumably, would give police license to break down the door.

I’m not sure how to keep the police from breaking down your door once they have knocked on it. All I can tell you is that I would not make any quick movements.


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Warrant Exceptions: Consent

Perhaps the largest category of exceptions to the warrant requirement is consent. If you voluntarily tell police officers that they can search you or your belongings, that is all the permission they need. They can search anything and everything if you allow them. On an intuitive level, there is nothing really wrong with this. If we tell someone they can search us, we cannot really complain about what they find. To the degree that the consent it truly voluntary, I agree with the consent exception. However, I am skeptical about how voluntary it is and am skeptical that people consent as often as police officers claim.

An officer is under no obligation to tell someone that they can say, “no” to a request to search. At the outset, this makes it questionable about whether a person has truly consented to be searched, and most police officers endeavor to make it sound as though they are just being polite when they ask for permission. Before officers ask for permission, they will frequently ask a somewhat incriminating question, such as, “you don’t have any weapons or drugs on you?” After the person denies possession, the officer will say, “so you won’t mind if I look around your car for a bit?” Most people would answer a bit differently if they knew what was really being said: “Before I can search you for illegal items, I need your permission so please give it to me.”

Suffice it to say, you do not want to give an officer permission to search you or your belongings. I do not let strangers rifle through my belongings or search my pockets, no matter how well meaning they are. Neither should you. Politely tell the officer that you will not consent to a search and you would like to leave. The officer might not let you go, but it is important to make your lack of consent clear. You give yourself a chance to end the encounter sooner and the majority of officers feel constrained by your refusal. There are times that officers can think of other warrant exceptions, but by refusing consent, your lawyer can argue the legality of the exception. There are also times officers believe probable cause exists for a judge to issue a search warrant, but then you have a third party deciding the legality. There is not much left to argue once a citizen gives consent.

Unfortunately, some officers will ignore a person’s refusal entirely and plow ahead as though the person had given consent. Equally problematic, judges give officers the benefit of the doubt during a suppression hearing. When a police officer says that a person consented, judges tend to believe the officer, regardless of how illogical or implausible the story is. This is despite the burden of proof ostensibly residing on the government to show that there was consent for the warrantless search.

To some degree, smart phones are able to combat this problem. The ACLU chapters in some states offer apps that record police interactions. The app hides the record icon and makes it difficult to find the recorded file so an officer cannot just delete it. A user can send a copy of the file to the ACLU for backup. I hope that this app or a similar app will spread to Utah, and that the possibility of recording will deter officers from lying about consent.


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Warrant Exceptions: Search Incident to Arrest

Most laypeople are vaguely aware that warrants allow police officers to search private belongings or property, and lack of a warrant can make a search illegal and render any evidence obtained inadmissible in court. However, there are so many exceptions to the warrant requirement that an officer can often find an exception. It sometimes seems as though the warrant requirement is no requirement at all. Today, I’m writing about one of those exceptions: the search incident to arrest.

When an officer arrests a person, the officer can search a person’s body to check for weapons or contraband. The rationale has been that officers need to protect themselves and they need to preserve evidence. The exception has a fairly long history. As Professor Orin Kerr showed, it goes back to at least 1914 and probably earlier. It is pretty well settled that officers can search everyone they arrest and the area within arm’s reach of the arrestee.

The problem comes with changes in technology and how intrusive such searches can be. We are in limbo as to whether or not police officers can search a person’s cell phone after an arrest. A police officer is allowed to remove the cell phone from someone they arrest, but are they allowed to open the cell phone and search for possibly incriminating evidence? A cell phone makes a poor weapon. Once an officer has removed it from a person’s possession, there is no threat of it harming the officer or of the arrestee deleting evidence. Unfortunately, the Supreme Court has not ruled on the issue of search incident to arrest recently, and lower courts are left analogizing new technologies to dissimilar objects from past rulings. Different courts are split on the issue. Neither the Utah Supreme Court nor the Tenth Circuit Court of Appeals have yet weighed in on the issue.

In United States v. Robinson, a 1973 case, the Court said that an officer could search a man’s pocket, which contained a crumpled up cigarette packet with heroin inside. As a result, some courts such as the California Supreme Court, have held that a cell phone on a person’s body is subject to search. A police officer, after a lawful arrest, can examine all of a phone’s contents without a search warrant.

It is not just the guilty who should be worried about this type of intrusion, either. Innocent people do get arrested, and there is a lot of personal information on a cell phone. I don’t know about you, but if an officer were so inclined, he could find a lot of embarrassing but not illegal information on my phone. I would not want a stranger poking around my text messages, call logs, appointment calendar, and pictures. Some people have even more sensitive information on their phone such as sensitive emails or trade secrets on their business phone.

Fortunately, there are other courts that have ruled differently, such as the Florida Supreme Court, and recognized that the rationale for this warrant exception does not apply to cell phones. Once an officer has taken a phone, the need to protect evidence or the officer’s safety is gone.

Until there is a ruling in Utah, it wouldn’t hurt to password protect your cell phone.


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A Low Threshold for Probable Cause

Two weeks ago the FBI arrested Paul Kevin Curtis for sending letters laced with ricin to President Obama and Senator Wicker of Mississippi, and it has been another week since the charges were dropped. Now the FBI has a second suspect in custody who may be responsible for sending the letters.

One lesson to be learned from the episode is the importance of letting the judicial process take its course and realizing that it is not just a cliche that a person is innocent until proven guilty. It is a central concept of our judicial system that until a person is convicted, they are still innocent under the law, and travesties will happen if we let mob mentality undermine that.

However, the episode also shows the depressingly low standard that it takes to arrest someone or for a judge to issue a search warrant. The Supreme Court has said that the standard for both an arrest and a search warrant is “probable cause.” The definition of probable cause has evolved a bit, but we are now using the definition outlined in a 1983 case, Illinois v. Gates, in which the Court said, “probable cause does not demand the certainty we associate with formal trials.” Instead, judges issuing search warrants should determine whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place…. This flexible, easily applied standard will better achieve the accommodation of public and private interests.”

The Court is correct that this is an easily applied standard. It is easily applied because it sets the bar so low. The Court has never set a numerical value on what “fair probability” means, but if I were to say there is a fair probability of rain tonight, and the weatherman says there is a 15% of rain tonight, I don’t think anyone would find those statements contradictory. As has become apparent in the 30 years since the Gates decision, judges have interpreted “fair probability” to mean “within the realm of possibility.”

It is doubtful the FBI will voluntarily release the information that backed their search warrant and arrest of Paul Kevin Curtis, but from news reports, it appears there was little evidence against him. Both letters were signed “I am KC and I approve this message.” That is a sign off phrase Curtis has used in internet postings. The FBI acknowledged that the letters and stamps had no fingerprints and were sealed with self adhesives, leaving no DNA evidence. It would seem that the “probable cause” leading to the arrest and search of Mr. Curtis’ house consisted entirely of the repetition of phrases that he likes to use in social media, and the fact that he lives in Mississippi and his initials are KC.

If that is all it takes to establish probable cause, there is not much stopping the police from searching anyone’s home and not much stopping them from arresting just about anyone.