Natty Shafer Law

Utah lawyer for criminal and immigration cases

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How Long Can a Traffic Stop Last? It Has to Be Reasonable

Today, the Supreme Court clarified how long police officers may keep someone they have pulled over for a traffic stop. Thankfully, the answer is only for a short time. “Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed,” the Court said. This means that an officer may not require people to stay and chit-chat or wait for a drug-sniffing dog to arrive once the officer has issued a ticket or a warning.

Some courts had been allowing police officers to keep people a few minutes extra as long as the intrusion was minimal (“de minimis“). This is good news for anyone who will ever be pulled over for speeding or any other traffic infraction. Police officers will not be allowed to waste more of your time as they go on fishing expeditions for illegal conduct.

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Cell Phones Are Private, Supreme Court Says

The United States Supreme Court issued a ruling today which requires law enforcement officers to obtain a search warrant for most searches of a cell phone. While the Court left open the possibility of officers conducting a cell phone search during “exigent circumstances,” the ruling in Riley v. California means officers cannot casually peruse cell phones.

The ruling was unanimous, which is a bit of a surprise for me, but this is a pretty big victory for champions of privacy rights. Often the Court refuses to protect the rights of those accused of crimes, but cell phones have becomes so ubiquitous that the Court could not ignore that cell phones are now among our most personal possessions. “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” the Court said.

Many phones now contain more personal information than anyone has in any one location, including our homes. As the Court said, cell phones are not just phones. “The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.”

This ruling does necessarily guarantee that police officers will never look through your phone, but it does make such evidence generally inadmissible during criminal court proceedings. Anyone who has been subjected to a cell phone search should contact a lawyer about various options.

You can read my previous posts on the subject of cell phone searches here and here.

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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.


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.


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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You Can and Should Refuse Consent to the Police

Anytime the police ask you if they can look around your car/house/body, they aren’t being polite. They need your consent and you don’t have to give it. Every police officer has a personal style to the question, but their goal is to make it seem like they are just politely asking permission to do something they could do anyway. However, you have the right to refuse, but once you consent to a search, you have given up your constitutional right to be free of unreasonable searches.

This is a common theme of my blog, but even my close friends have a difficult time remembering this. This past weekend, the subject of police searches came up, and I had to remind my friends that they can tell an officer that they don’t want them to snooping around their car.

Some people are afraid of being rude, but it’s easy to politely but firmly tell an officer, “no.” To get you in the right mindset, think of the request to search your car/house/body as a rude request. For example, if a new friend came over to your house and said to you, “Do you mind if I look around your medicine cabinet? I just want to know what kind of person you are.” No matter how politely the friend said it, most of us would be flabbergasted. That’s really how you should think of any request to search you. They are asking to snoop around our private effects, and it’s within our rights to refuse. Regardless of whether the police will find anything illegal, I don’t like strangers rummaging through my personal belongings.