Natty Shafer Law

Utah lawyer for criminal and immigration cases

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Warrant Exceptions: Stop and Frisk

An officer is allowed to conduct a stop and frisk (sometimes called a “Terry Stop” after the Supreme Court case that established their legality, Terry v. Ohio) when it is reasonable to believe that criminal activity may be taking place or is about to take place. The Court authorized the practice with the intention of improving police officer safety. Many crimes involve the use of dangerous weapons, and so, the rationale goes, it is reasonable to search for weapons when a person may be committing a crime.

Because a stop and frisk is supposed to be a search for dangerous weapons, an officer is not supposed to investigate further into objects which are obviously not weapons. A soft, powdery substance encased in a plastic bag, for example, could not be investigated further because the officer does not have reason to believe that the object could be a threat to officer safety.

The problem comes with how nebulous an officer’s suspicions can be. The Supreme Court has specifically said the standard for whether an officer can conduct a stop and frisk is lower than probable cause (which is low to begin with). The even lower standard is a “reasonable articulable suspicion” that a crime is taking place or is about to take place.

In plain language, officers must be able to explain to judges why they believe a specific person was about to commit a crime or was in the process of committing a crime. However, the Supreme Court has not required a particularly high threshold for what amounts to reasonable suspicion. In Illinois v. Wardlow , the Court held that running away from an officer in a “high crime area” was enough to arouse reasonable suspicion. With such a low threshold, judges often find in the officer’s favor.

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Warrant Exceptions: Plain View

The police are allowed to look at anything else that a regular citizen can look at. Officers legally in a place do not need a warrant to observe everything around them. While this is generally called the “plain view doctrine,” nothing prevents officers from using all of their senses to listen, feel, or otherwise observe, and if the incriminating nature of the object is obvious, seize it. (For the rest of this post, I will use the sense of “sight,” as a shorthand for any of the senses.)

Once officers see contraband, assuming they are legally present, they can seize it. The incriminating nature of the evidence has to be immediately apparent. Any further sleuthing by the officer is not allowed, such as moving a stereo to check its serial numbers. But something like illegal drugs, which are always illegal, can generally be seized.

An officer can even seize contraband in situations where they are on private property. For example, an officer does not need a warrant to seize a marijuana plant growing on someone’s property, even if there is a wooded fence keeping intruders out. Because anyone could see the plant, the police can also seize it or use the information for an arrest warrant.

The phrase “plain view,” can be a little misleading. Often, the incriminating item is not in “plain” view, but it is visible. For example, officers can press their noses to a car window and contort their heads to look for evidence. If an officer saw a loaded firearm, that would qualify for the plain view exception, even though most people would believe that the officer’s necessary contortions show that the firearm may have been in view, it was not in plain view. The bottom line is that an officer is not forbidden from seeing what anyone else can see, and anyone else could do the same thing, obnoxious manners though it would be.

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Warrant Exceptions: Automobiles

Another category of exception to the warrant requirement is the automobile exception. Generally, a police officer can search any part of the car that they have probable cause will uncover evidence of a crime.

It dates back to the 1925 case Carroll v. United States. Despite its rather long history, it is is one of the more frustrating exceptions. The Court originally created the exception because of the mobility of cars and how easy it would be to make evidence disappear if officers waited for search warrants. The exception has expanded so now officers do not have to show there was a risk of evidence being destroyed, and an officer can search areas a weapon could conceivable be reached.

Back in 1925 when the Court crafted the exception, automobiles where a luxury that only a few people owned. Now, they are so ubiquitous that most adults own one. Many people treat their cars similarly to how they treat their homes. They keep clothes, food, toiletries, and countess other personal belongings inside. The Court, however, still treats the automobile as a unique technology that requires a special area of the law. Indeed, even mobile homes someone currently lives in are subject to the automobile exception.

Because a judge may second guess whether the officer had probable cause at the time the search, it is standard practice for officers to ask for consent to search a car; a warrant is never needed if a person voluntarily consents to a search. Even without consent, an officer with probable cause can use the automobile exception.

One may ask themselves at this point, “What difference does it make if I refuse consent, if the police officer can just search my car anyway? First, assuming the person is innocent of any wrongdoing, then the encounter ends sooner. For people who are completely innocent, it is more likely that the police lack probable cause to search the car and will have to let them go. If someone tells the police to go ahead and search, the search can last for upwards of an hour. Second, for people who do have something to hide, by refusing consent they have given their lawyer something left to argue: namely the officer lacked probable cause to search the car.

Consider the most common form of police encounter: the speeding ticket. When an officer stops someone for a speeding ticket, the chances of there being probable cause to search the car are very low. An officer can search a person to secure their safety, but they will need some evidence to show that they had reason to fear for their safety. Furthermore, the officer is not going to be able to search the trunk, a locked glove box, or other areas where neither the driver nor passengers can reach because there will be no evidence to uncover. All the evidence of speeding has already happened. If the officer searches anyway, there is a good chance a judge would suppress the evidence.

There have been some hopeful steps recently. A 2009 case, Arizona v. Gant, was the first case in a long time that narrowed the exception. The defendant in that case had already left his car when the police approached him and arrested him. The Court ruled it was illegal to search his car under those circumstances. It was a small step, but generally the Court had a history of making the automobile exception larger and larger.

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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.