Arrest, Search & Seizure: Legal Update

1. Arrest, Search & Seizure:Legal Update Matthew P. Dolan Attorney Public Agency Training Council

2. Forced Blood Draw—DUI

3. Schmerber v. California(1966) A compulsory blood test, directed by a state officer, acting without a search warrant, to be performed upon the accused after his arrest for driving while under the influence of intoxicating liquor, does not violate the accused’s rights under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures, and the chemical analysis of the test is not subject to exclusion from evidence in the state prosecution as constituting the product of an unconstitutional search and seizure, where the officer was justified in requiring the test without a warrant, and the means and procedures employed were reasonable in that the test was performed by a physician in a hospital according to accepted medical practices. See Schmerber v. California, 384 U.S. 757 (1966)

4. Missouri v. McNeely(2013) • Regardless of state implied consent laws, there is no automatic exigency in driving while impaired cases under the 4th Amendment which would allow officers in all cases to force a blood draw to prevent the loss of evidence (i.e. dissipation of alcohol levels in blood). • A forced blood draw would have to be supported by articulated exigency beyond the simple dissipation of substances in the blood over time. See Missouri v. McNeely, 133 S.Ct. 1552 (2013)

5. DNA—Swabs

6. Maryland v. King(2013) • Case re: DNA swab following arrest for serious crime. • When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody  taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. Maryland v. King, 133 S.Ct. 1958 (2013)

7. Detention During Search Warrant Execution

8. Michigan v. Summers (1981) • Re: detaining persons at scene of search warrant. • The police may detain individuals who are on the scene, or who come upon the scene, where the police are conducting a search pursuant to warrant at a residence. • Persons present may be detained until the search is concluded. • Note: the manner of detention must be reasonable. See Michigan v. Summers, 452 U.S. 692 (1981)

9. Muehler v. Mena(2005) • Re: handcuffing at the scene of a search warrant. • Officers may handcuff individuals present when they execute a dangerous search warrant at a residence. • Subjects may remain handcuffed during the remainder of the search. • Where the duration of the search is such that a person may be injured by continuous restraint officers should find a way to accommodate the individual so that such injury does not occur. • Where it is readily apparent to officers that the person(s) pose no danger to them, officers should remove restraints. See Muehler v. Mena, 544 U.S. 93 (2005)

10. Bailey v. United States(2013) • Re: detaining persons during execution of search warrant. • The categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched. • Factors to consider when deciding if a person is in the immediate vicinity are: • the lawful limits of the premises, • whether the occupant was within a line of sight of the premises being searched, • the ease of reentry from the occupant’s location, and • other relevant factors(Undefined by Court). See Bailey v. United States, 133 S.Ct. 1031 (2013)

11. Home Searches

12. Florida v. Jardines(2013) • Re: canine sniff at residence. • The use of a canine to sniff for contraband within the curtilage of a residence is a search under the Fourth Amendment. • As such, the search must be supported by a warrant, exigency, or consent. • The implied invitation which exists for anyone to knock on someone’s front door does not authorize law enforcement to bring a drug-sniffing canine to sniff the air while the officer is knocking. See Florida v. Jardines, 133 S.Ct. 1409 (2013)

13. Florida v. Jardines(cont’d) • Re: limits on home curtilage. • The area immediately surrounding and associated with the home--the curtilage--is part of the home itself for Fourth Amendment purposes. • Apolice officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do. • The implied invitation to knock does not carry with it the further authorization to conduct a search while on the property unless the officer has a warrant, exigency or consent.

14. Salinas v. Texas(2013) • Re: questioning of non-custody suspect. • Where a suspect is NOT in-custody and has not asserted any privilege, a prosecutor may comment on the suspect’s reactions to law enforcement’s questions, including a suspect’s silence. • Officers and Investigators who find themselves in this situation should document all responses; lack of responses; and body language which occurs during such questioning as the prosecution may use silence and reaction which tends to show evidence of guilt in the prosecution’s case. See Salinas v. Texas, 133 S.Ct. 2174 (2013)

15. Disclaimer • Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This presentation is not intended to constitute legal advice on a specific case. Rather it is for informational purposes.

16. Thank You! Matthew P. Dolan Attorney Public Agency Training Council 800-365-0119 mdolan@patc.com