4th Amendment

A search typically requires a warrant based on probable cause. SeeUnited States v. Dalton , 918 F.3d 1117, 1127 (10th Cir. 2019). “Searches conducted without a warrant are per se unreasonable under the Fourth Amendment—subject only to a few ‘specifically established and well-delineated exceptions.’ ” Roska ex rel. Roska v. Peterson , 328 F.3d 1230, 1248 (10th Cir. 2003) (quoting Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). Although “the defendant bears the burden of proving whether and when the Fourth Amendment was implicated,” Hernandez , 847 F.3d at 1263 (quotations omitted), “[t]he government then bears the burden of proving that its warrantless actions were justified [by an exception],” United States v. Carhee , 27 F.3d 1493, 1496 (10th Cir. 1994). If the government establishes that an exception to the warrant requirement applies, the search is constitutional. SeeUnited States v. Maestas , 2 F.3d 1485, 1491-92 (10th Cir. 1993). The Government relies on the community-caretaking exception here.

The community-caretaking exception allows the government to introduce evidence obtained through searches that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski , 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). “Noninvestigatory searches of automobiles pursuant to this function … do not offend Fourth Amendment principles so long as such activities are warranted in terms of state law or sound police procedure, and are justified by concern for the safety of the general public ….” United States v. Lugo , 978 F.2d 631, 635 (10th Cir. 1992) (quotations omitted).

The government must also point to “specific and articulable facts which reasonably warrant an intrusion into the individual’s liberty,” and must show that “the government’s interest … outweigh[s] the individual’s interest in being free from arbitrary governmental interference.” United States v. Garner , 416 F.3d 1208, 1213 (10th Cir. 2005) (quotations omitted and alterations incorporated). Although officers are entitled to “some latitude in undertaking their community caretaking role,” their actions must be “reasonably related in scope” to the underlying justification. Lundstrom v. Romero , 616 F.3d 1108, 1123 (10th Cir. 2010) ; see alsoGarner , 416 F.3d at 1213 (explaining that the “scope [of a community-caretaking detention] must be carefully tailored to its underlying justification”).

…

The Government has not shown that “state law or sound police procedure” warranted opening the camper. Lugo , 978 F.2d at 635 (quotations omitted). Nor has it demonstrated how opening the camper was “justified by concern for the safety of the general public.” Id. (quotations omitted). Ms. Parrish could have opened the camper herself, and the Government fails to explain how her doing so might have created any danger. It identifies “no specific and articulable facts” demonstrating Deputy Clinton needed to stand behind the tailgate, lift the camper’s hatch, or look into the bed of the truck. Storey , 696 F.3d at 996 (quotations omitted). Nor was opening the camper “necessary to protect” Ms. Parrish, Mr. Neugin, the officers, or others. Id. (quotations omitted).

The Government points out that Deputy Clinton needed to “separate a feuding couple.” Aplee. Br. at 12. But this does not explain why he needed to open the camper or look inside.

Deputy Clinton unconstitutionally searched the truck when he opened the camper and looked in. He exceeded any community-caretaking role.

Full case here: United States v. Neugin, 958 F.3d 924, 930 (10th Cir. 2020), https://casetext.com/case/united-states-v-neugin

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This is a response video to a comment left by JO BR on “Can FBI record citizens in a hotel room with a secret hidden camera without a warrant? Nerber (2000)” video found at https://youtu.be/txO6CPt7JKk [Published on 12/14/2022]

The Fourth Amendment protects you against government intrusions and does not restrict private citizens. Under the private search doctrine, when a private actor finds evidence of criminal conduct after searching someone without a warrant, the government can use the evidence in criminal proceedings. (United States v. Jacobsen, 466 U.S. 109 (1984)). As long as the private actor is not acting at an officer’s invitation or direction. When a private party informs the police about the incriminating evidence, an officer may conduct a search strictly limited to the scope of the private party’s search.

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Evidence derived from video surveillance of a hotel room was suppressed by the United States District Court for the Western District of Washington, Thomas S. Zilly, J., and the United States appealed. The Court of Appeals, James R. Browning, Circuit Judge, held that: (1) the Fourth Amendment protects citizens from secret video surveillance in another person’s hotel room without a warrant or the consent of a participant in the monitored activity, and (2) thus, though defendants were invited to a hotel room, rented by government agents, by informants who had consented to video surveillance, once the informants left the room, defendants had reasonable expectation to be free from hidden video surveillance.

Full case here: UNITED STATES v. NERBER, 222 F.3d 597 (2000), https://scholar.google.com/scholar_case?case=9997732378699863410&hl=en&as_sdt=6&as_vis=1&oi=scholarr

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Although parents may choose to grant their minor children joint access and mutual use of the home, parents normally retain control of the home as well as the power to rescind the authority they have given. “It does not startle us that a parent’s consent to a search of the living room in the absence of his minor child is given effect; but we should not allow the police to rely on the consent of the child to bind the parent. The common sense of the matter is that the … parent has not surrendered his privacy of place in the living room to the discretion of the … child; rather, the latter [has] privacy of place there in the discretion of the former.” (Weinreb, supra, 42 U.Chi.L.Rev. at p. 60; see People v. Jennings, supra, 142 Cal.App.2d at p. 168.)

Other courts that have considered the authority, or capacity, of a minor child to consent to a police entry of the family home generally have refused to uphold the admissibility of evidence found therein in a criminal action against the parent. The reasoning of these cases is sound: a child cannot waive the privacy rights of her parents.

Full case here: People v. Jacobs (1987) 43 Cal.3d 472, https://scocal.stanford.edu/opinion/people-v-jacobs-23503

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Yuen contends, inter alia, that Officer Kline’s opening the rear cargo door without his permission violated the Fourth Amendment to the United States Constitution, and, therefore, all evidence the government obtained through exploitation of that illegality must be suppressed as “ ‘fruit of the poisonous tree.’ ” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We assume, without deciding, that the officers’ conduct up until the time that Officer Kline opened the rear cargo door without permission did not violate the Fourth Amendment. However, Officer Kline’s opening of the rear cargo door constituted a search for purposes of Fourth Amendment jurisprudence. See United States v. Winsor, 846 F.2d 1569, 1572-73 (9th Cir.1988) (en banc ) (police conducted “search” of hotel room for Fourth Amendment purposes when they gained visual entry into room through door that was opened at their command and while they stood in hotel corridor). Accordingly, in order for the search to be justified under the Fourth Amendment, at least one of the following two circumstances must have existed: (1) probable cause to believe the rear cargo area contained contraband or evidence of a crime, United States v. Bagley, 772 F.2d 482, 491 (9th Cir.1985) (“[P]robable cause alone suffices to justify a warrantless search of a vehicle lawfully parked in a public place, as long as the scope of the search is reasonable.”), or (2) the officers had an objectively reasonable fear of an immediate threat for their safety, see Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (during investigatory stop of automobile pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), police officer may search for weapons in passenger compartment, “limited to those areas in which a weapon may be placed or hidden, … if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons”) (internal quotation marks omitted). Neither of these circumstances existed in the present case. There was absolutely nothing specific about the tip the officers received, nor about the circumstances in which they came upon the truck, that provided any grounds for a reasonable fear that they were in danger. Also, the officers identified the sound they heard coming from the cargo area as “drilling.” Coming, as it did, from an individual in the parking lot of a home improvement store, such activity would not render a “reasonably prudent man in such circumstances [to] be warranted in the belief that his safety or that of others was in danger.” Id. at 1050, 103 S.Ct. 3469. Accordingly, we reverse the district court’s partial denial of Yuen’s motion to suppress, vacate the judgment, and remand to permit Yuen to withdraw his guilty plea. See *745 United States v. Bautista, 362 F.3d 584, 593 (9th Cir.2004) (similar disposition).

Full case here: United States v. Yuen, 113 F. App’x 742 (9th Cir. 2004)

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Defendant Hall was arrested at approximately 2:30 p.m. on May 14, 2008 after he exited a house trailer at 2233 East 8th Street, Lot 340, Pueblo, Colorado. Agents had an active arrest warrant and there is no dispute the arrest itself was legal. Immediately before the arrest, agents had observed Hall and a female companion leave another residence and travel on Hall’s motorcycle to the house trailer. One officer, situated approximately 75 yards away, saw Hall near the saddle bag hanging over the rear tire of the motorcycle. At that distance he could not discern whether Hall opened the saddlebag, put something in or took something out. No officer in closer proximity testified to this saddlebag event. The officers watched the couple enter the house trailer. The couple remained inside for a period of time that has been estimated by various witnesses to range from five minutes to half an hour. The time spent inside is not critical to the issue presented on this Motion to Suppress.

Officers saw the couple leave the house trailer and as Hall was approaching the motorcycle he was placed under arrest. From a conflict in the testimony, I find that Hall was much more than an arm’s length distance from the motorcycle. Following the arrest and placing Hall in custody, the officers conducted a search of the motorcycle. The saddlebag was closed and fastened with a strap. The saddlebag was opened and in it was found approximately 100 grams of methamphetamine in three baggies, a 22 caliber Lorcin handgun and $6,000 cash. The question presented is whether the search of the motorcycle and saddlebag was incident to the arrest and thus did not require a warrant. I find it was not, and therefore the search was unreasonable as a matter of law.

In Chimel v. California, 395 U.S. 752, 763-64, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), for example, the Court established an exception to allow the contemporaneous search of a lawfully arrested person and the immediately surrounding area without a warrant in order to promote safety and prevent the concealment or destruction of evidence.

Supreme Court in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), established a bright-line rule specific to automobile searches incident to arrest. “When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile” and “examine the contents of any containers found within the passenger compartment.” Id. at 460, 101 S.Ct. 2860. See also United States v. Franco, 981 F.2d 470, 472 (10th Cir.1992). The rule from Belton is based on the “generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within the area into which an arrestee might reach in order to grab a weapon or [evidence].” Belton at 460, 101 S.Ct. 2860. Under this same rationale, the Court expressly noted the passenger compartment did not encompass the trunk of the automobile, leaving it beyond the scope of a permissible search incident to arrest. Id. at 460 n. 4, 101 S.Ct. 2860.

Full case here: United States v. Hall, 603 F.Supp.2d 1308 (2009), https://scholar.google.com/scholar_case?case=9666803275967635642&hl=en&as_sdt=6&as_vis=1&oi=scholarr

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Police search backpack. As mentioned at the outset, the dialogue between Ruffin and Howard on the side of the road had a certain unreality to it. A number of times, Ruffin seemed to go out of his way to tell Howard that he was not under arrest—even when Howard was in handcuffs and would not likely have believed he was free to terminate the encounter. Why did Ruffin go to such great lengths to communicate this message to Howard, notwithstanding the reality of the situation?

Although we don’t know for sure what was going through Ruffin’s mind, the answer is likely that he was following his training. California law enforcement agencies apparently train their officers to tell suspects that they are not under arrest, on the theory that these magic words allow officers to keep questioning suspects without advising them of their Miranda rights, even if it is otherwise obvious that the suspects are in custody and therefore entitled to Miranda ‘s protective admonitions. See, e.g. , Smith v. Clark , 612 Fed.Appx. 418, 424 (9th Cir.2015) (unpublished) (Watford, J., concurring).

Why, in turn, do law enforcement agencies train their officers to circumvent Miranda in this way? Apparently it is based on a series of court decisions that give “essentially dispositive weight” to these magic words, immunizing the government from adverse Miranda rulings in cases where the suspect cannot possibly have felt free to leave. Id. at 423 ; see also Smith v. Clark , 804 F.3d 983, 986–87 (9th Cir.2015) (W. Fletcher, J., dissenting from denial of rehearing en banc). In other words, law enforcement agencies train officers to work their way around Miranda because courts have signed off on the workaround.

In some cases, perhaps this practice helps officers obtain evidence when a suspect would otherwise clam up. But if Ruffin was following this practice here, it backfired. Because Ruffin made clear he was not in the process of arresting Howard when he announced he was going to search the backpack, Howard’s statements following that announcement, and the gun found in the backpack, must be suppressed.

Full case here: United States v. Howard, 156 F. Supp. 3d 1045 (N.D. Cal. 2016), https://casetext.com/case/united-states-v-howard-306

(Sorry about the AUDIO issues in this recording)

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In this case, a highway patrol officer announced he was going to search a suspect’s backpack. That search would have violated the Fourth Amendment, because the officer did not have a warrant to search the backpack, and no exception to the warrant requirement applied at the time the officer made his announcement. In response to the officer’s threat, the suspect confessed to being a felon and having a gun in the backpack. The government has now charged him with being a felon in possession of a firearm. But the government may not use in court evidence that an officer obtains through a threat to violate the Fourth Amendment. Kentucky v. King , 563 U.S. 452, 462–63, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ; United States v. Saafir , 754 F.3d 262, 266 (4th Cir.2014). Therefore, the evidence the officer obtained as a result of his threat (specifically, the confession and the gun) must be suppressed.

Full case here: United States v. Howard, 156 F. Supp. 3d 1045 (N.D. Cal. 2016), https://casetext.com/case/united-states-v-howard-306

Anton Vialtsin, Esq.
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