Criminal Law Update & Review: Developments in 4 th Amendment Law Jessica Smith, School of Government, UNC-Chapel Hi

1. Criminal Law Update & Review: Developments in 4th Amendment Law Jessica Smith, School of Government, UNC-Chapel Hill N.C. Superior Court Judges’ Conference, October 2002 Click Here For Sound

2. Bus seizures & searches • Stops based on anonymous tips • Entry into & search of homes • Special needs cases •

3. Question 1: What standard for searches & seizures is stated in the 4th Amendment? •

4. Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . . •

5. Reasonableness Balancing of intrusion into privacy v. promotion of legitimate gov’t interests • Criminal context: generally requires probable cause Sometimes less is OK; sometimes more is needed • Other contexts probable cause not required •

6. Searches & Seizures on Buses Question 2: 3 plain-clothed officers, carrying concealed weapons & wearing visible badges board bus at terminal. One kneels at driver’s seat, not blocking aisle/exit. 2 others go to rear; 1 remains there & 1 works towards front, talking to passengers & saying it’s a drug & weapon interdiction. As officer moves forward, he steps aside so as not to block the aisle. Officer doesn’t inform passengers of right to refuse/not cooperate. When he approaches Ds, he notices their heavy & baggy clothes despite warm weather. Officer asks if they mind if he checks their persons. They agree & contraband is found. 2a) Was there an unconstitutional seizure? 2b) What standard do you apply to the seizure determination? 2c) Was there an unconstitutional search? 2d) Why or why not? •

7. Searches & Seizures on Buses United States v. Drayton, 122 S.Ct. 2105 (6/17/2002) • No 4th Amend. violation: • Defendants weren’t • seized • Search valid b/c consent • was voluntary •

8. Searches & Seizures on Buses Seminal Bus Seizure Case: Florida v. Bostick, 501 U.S. 429 (1991) Bostick Rule: Officers can approach bus passengers at random, ask questions & request consent to search, provided a reasonable person would feel free to refuse •

9. Searches & Seizures on Buses • Bostick analysis: • “Free to leave” standard for whether there’s been a seizure doesn’t fit for buses • Bus passengers may not want to get off & risk missing bus; movements are confined but not by police coercion but by fact that they’re on a bus •

10. Searches & Seizures on Buses Bostick Rule: Officers can approach bus passengers at random, ask questions & request consent to search, provided a reasonable person would feel free to refuse •

11. Searches & Seizures on Buses Bostick remanded on whether seizure occurred, noting 2 factors: (1) officer didn’t remove gun/use it in a threatening way (2) officer advised passenger he could refuse consent to search •

12. Searches & Seizures on Buses New wrinkle in Drayton: Must the officers tell bus passengers of their right not to cooperate? 11th Cir. held they did •

13. Searches & Seizures on Buses • Applying Bostick, Drayton reversed: no seizure occurred & warning not required • no weapons used; no intimidating movements • no blocking exits, threats, or commands • spoke to passengers individually in quiet, polite voice •

14. Searches & Seizures on Buses Based largely on the same facts, Drayton also held that the consent to search was voluntary •

15. Searches & Seizures on Buses Wrap Up • Seizure standard: whether a reasonable person would feel free to decline officers’ requests or terminate the encounter; not “free to leave” • No per se rules re: notification of rights •

16. Searches & Seizures on Buses • Consider: whether weapons were used, tone of voice, show of authority, blocked exits, threats • Factors that have little weight: that officers are uniformed or have holstered weapons •

17. Searches & Seizures on Buses 2a) Unconstitutional seizure? No. 2b) What standard? Would a reasonable person feel free to refuse. 2c) Was there an unconstitutional search? No. 2d) Why or why not? Consent was voluntary. •

18. Stops Based on Anonymous Tips Question 3: Anonymous caller tells police a young black male standing at XYZ bus stop & wearing a plaid shirt has a gun. Officers go there & see 3 black males; 1 is wearing a plaid shirt. Officers approach him, frisk him & seize a gun. Was the stop constitutional? Why or why not? •

19. Stops Based on Anonymous Tips Florida v. J.L., 529 U.S. 266 (2000) Held: Stop was unconstitutional; no reasonable suspicion •

20. Stops Based on Anonymous Tips J.L. Analysis: • Officers need reasonable suspicion for a stop & frisk (Terry v. Ohio, 392 U.S. 1 (1968)) • When known informant gives tip, tipster’s reputation can be assessed & tipster can be held accountable; such a tip can satisfy reasonable suspicion . . . •

21. Stops Based on Anonymous Tips J.L. continued: • Anonymous tips alone seldom show tipster’s basis of knowledge or veracity • Such tips need “sufficient indicia of reliability” to create reasonable suspicion; typically obtained through corroboration . . . •

22. Stops Based on Anonymous Tips • Here, no indicia of reliability; no predictive info. testing knowledge or credibility; no explanation for knowledge; no basis for believing had inside info. • Accurate description location & appearance doesn’t show knowledge of concealed criminal activity; tip must be “reliable in its assertion of illegality” •

23. Stops Based on Anonymous Tips • Rejects “firearm exception” • Reserves issue of whether same rule applies to anonymous tips alleging great danger, e.g., carrying a bomb •

24. Stops Based on Anonymous Tips • Also reserves on whether rule applies to stops & searches in places where expectation of privacy is diminished e.g., airports, schools •

25. Stops Based on Anonymous Tips Again, J.L. said: Accurate description location & appearance doesn’t show knowledge of concealed criminal activity; tip must be “reliable in its assertion of illegality” •

26. Stops Based on Anonymous Tips Question 4: Cops get anonymous tip that woman had cocaine & predicting she’d leave a specific building at a certain time, get in a car matching a particular description & drive to a named motel. Cops follow the woman, verify tipster’s info. & stop her. Is the stop constitutional? •

27. Stops Based on Anonymous Tips Alabama v. White, 496 U.S. 325 (1990) Stop upheld; once it was clear that tipster accurately predicted movements, it was reasonable to think he had inside info. about the woman & credit his assertion re: drugs •

28. Stops Based on Anonymous Tips White was a “close,” “borderline” case J.L. said: “Knowledge about a person’s future movements indicates some familiarity with that person’s affairs, but having such knowledge does not necessarily imply that the informant knows, in particular, whether the person is carrying hidden contraband” •

29. Stops Based on Anonymous Tips Tip Fails Under J.L. State v. Hughes, 353 N.C. 200 (2000) State v. Brown, 142 N.C. App. 332 (2001) Tip OK Under J.L. State v. Allison, 148 N.C. App. 702 (2/19/2002) •

30. Stops Based on Anonymous Tips State v. Hughes, 353 N.C. 200 (2000) Officer A tells Officer B a confidential reliable informant told him a dark-skinned man named “Markie”, 300 lbs.+, about 6’, 20-30 yrs. old, short hair, clean cut, baggie pants arriving w/drugs in Jacksonville on bus from NYC, possibly at 5:30. Says Markie “sometimes” comes to Jacksonville on weekends before dark, takes taxi from station & carries overnight bag; headed to N. Topsail. B tell C who goes to station; 1 bus from NYC already in; 1 from Rocky Mount (NYC transfer point) expected at 3:30. Bus arrives; officer didn’t see if D exited; D matched physical description & had overnight bag (officer didn’t recall knowing name, clothing description, or time of arrival). D gets in taxi headed to Topsail & other locations; officers stop before road split off to Topsail; drugs found. •

31. Stops Based on Anonymous Tips Was tip sufficient to support stop? • Held: Ct. App. decision reversed; stop wasn’t legal • No info. supporting assertion tipster was reliable; tip must be treated as anonymous . . . •

32. Stops Based on Anonymous Tips • Tip itself not enough for reasonable suspicion (vague; description of D could describe many persons; didn’t contain details to predict future action) • Corroboration insufficient (didn’t see him get off bus, time wrong, stopped him too early to tell if he was going to Topsail) •

33. Stops Based on Anonymous Tips Tip Fails Under J.L. State v. Hughes, 353 N.C. 200 (2000) State v. Brown, 142 N.C. App. 332 (2001) Tip OK Under J.L. State v. Allison, 148 N.C. App. 702 (2/19/2002) •

34. Stops Based on Anonymous Tips Police get tip: 2 black males rolling marijuana cigarettes & selling cocaine on porch of house at XYZ address; 1 in black t-shirt & jeans, other in gray t-shirt & jeans. Officers arrive; no one is there. 3 black males & black female on porch of house next door; 2 have clothes matching description; D in black pullover & camouflage pants. D is frisked & drugs found Was tip sufficient to support stop & frisk? •

35. Stops Based on Anonymous Tips COA held: trial judge reversed; tip wasn’t OK State conceded indistinguishable from J.L. Not even minimal corroboration: D didn’t meet description given; males not found on specified porch •

36. Stops Based on Anonymous Tips Tip OK Under J.L. State v. Allison, 148 N.C. App. 702 (2/19/2002) Tip Fails Under J.L. State v. Hughes, 353 N.C. 200 (2000) State v. Brown, 142 N.C. App. 332 (2001) •

37. Stops Based on Anonymous Tips Woman approached officers on duty; said overheard 4 black males in nearby restaurant bar discuss robbing the place & saw them pass black handgun around; gave 1 officer her phone number. Officer went, saw 4 black males in bar, identified D as involved in prior gun-related activity. Officer approached men & asked them to step outside; D was holding pants up as if something was “dragging [them] down;” frisked & found gun Was there reasonable suspicion for the stop? •

38. Stops Based on Anonymous Tips • Held: Yes, distinguishing J.L. & Hughes: • Face-to-face tip, not anonymous call (officer could observe demeanor to assess credibility; accountability) • Tipster explained how she got info. • Tip was corroborated & officer had independent supporting info. •

39. Stops Based on Anonymous Tips Wrap Up • Anonymous tip not likely to be enough • Need indicia of reliability; usually obtained by corroboration • Not enough just to corroborate description & location •

40. Stops Based on Anonymous Tips • Looking for corroboration that criminal activity is afoot; remember White was a “close case” • Best tips: detailed, accurate, predictive, indicate basis for information & reliable re: assertion of illegality •

41. Entry Into & Search of Homes Question 5: After a tip about drug sales at D’s apartment, officers observe apartment, see what appear to be drug sales. Officers then enter D’s home, arrest & search him & find drugs & other contraband. Officers had probable cause to arrest D but no arrest/search warrant. Was the entry into the home legal? Why or why not? •

42. Entry Into & Search of Homes Kirk v. Louisiana, 122 S.Ct. 2458 (June 24, 2002) (per curiam) La. court held that entry was proper b/c had p.c. to arrest U.S. S.Ct.: reversed & remanded; entry not legal unless exigent circ. existed; La. decision violated Payton •

43. Entry Into & Search of Homes Payton v. New York, 445 US 573 (1980) Payton Rule: To search a house, officers need either (1) a warrant or (2) probable cause & exigent circumstances •

44. Entry Into & Search of Homes • Probable cause & exigent circumstances allow officers to: • Enter & secure so that exigency no longer exists • Seize items in plain view; can’t open dresser drawers or look in closed containers • What about going back in? •

45. Entry Into & Search of Homes Question 6: Dispatchers get 911 call saying V stabbed. Officers arrive 11:54 pm; V lying at door with throat cut. Do protective sweep, see evidence but seize nothing. Officers secure scene with yellow tape & cover door. At 12:20 am, crime lab technician arrives. They walk her around, pointing out evidence seen in plain view during sweep. Detective arrives 1:01 a.m. He, officers & the crime lab tech. go in again & tech. takes photos, video & blood samples of evidence seen in plain view during initial sweep. No warrant. D says entry into house by tech. & detective violated his rights. Suppress? •

46. Entry Into & Search of Homes State v. Phillips, -- NC App. – (7/2/2002) Entry was proper Applies constructive seizure theory from State v. Jolley, 312 NC 296 (1984): plain view evidence was seized when officer secured the scene •

47. Entry Into & Search of Homes • Probable cause & exigent circumstances allow officers to: • Enter & secure so that exigency no longer exists (protective sweep) • Seize items in plain view; can’t open dresser drawers or look in closed containers • What about going back in? •

48. Entry Into & Search of Homes • Probable cause & exigent circumstances allow officers to: • If premises were secured, can reenter & take items seen in plain view during initial entry on theory of constructive seizure • Best practices •

49. Special Needs Cases Question 7: The local school board has a policy requiring all students who participate in competitive extracurricular activities to submit to drug testing. Students go into a bathroom stall, produce a urine sample & turn it over to a monitor who listens from outside the door for tampering. Constitutional? What standard applies? •

50. Special Needs Cases Bd. of Educ. of Indep. School v. Earls, 122 S.Ct. 2559 (6/27/2002) Held: Policy is constitutional; special needs case; no requirement of a warrant & probable cause; balance interests •