Highly Anticipated Fifth Amendment Decision by Supreme Court in Salinas v. Texas Leaves Many Disappointed

By Brian Pasquale

Background

On December 18th, 1992, two men were shot and killed inside their home in Houston.  There were no witnesses but a neighbor informed the police that she had observed someone run out of the house and speed away in a dark-colored car.  The investigation led police to Mr. Salinas (“Petitioner”), who was at the victim’s house the previous night attending a party.  When police arrived at Petitioner’s house he agreed to give them his shotgun for ballistics testing and voluntarily go to the police station for questioning.

The interview at the police station was noncustodial and the Petitioner was not read his Miranda rights.  Throughout the interview the Petitioner answered all of the officer’s questions.  However, when the officer asked whether the Petitioner’s shotgun “would match the shells recovered at the scene of the murder,” Petitioner declined to answer and looked down at the floor and “began to tighten up.”  The prosecutor initially declined to prosecute due to a lack of evidence; however, several days later, police obtained a statement from a man who stated that he had heard Petitioner confess to the killings.  The Petitioner did not testify at trial, and key evidence from the State included the use of Petitioner’s reaction to the officer’s question during the interview.  After being found guilty, Petitioner argued that the use of his silence violated his Fifth Amendment right.  The Court of Appeals rejected Petitioner’s argument as did the Texas Court of Criminal Appeals.

Issue

Whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief?

Analysis

One of the few exceptions to the principle that the Government has the right to everyone’s testimony is the privilege against self-incrimination.  However, one who wishes to use the protection must claim it at the time that he relies on it.  This restriction provides the government with an opportunity to either offer the suspect a grant of immunity or argue that the testimony could not be self-incriminating.  The Supreme Court has established two exceptions to this requirement that the suspect assert his right.  The first is that a defendant does not need to take the stand and assert the privilege at his own trial, and the second is when law enforcement coerces the statement and thus renders the privilege involuntary.

In the current case, the Court stated that is clear that neither of the exceptions apply to the Petitioner, as he voluntarily went with the police from his home and he was free to leave the interview at any time.  Thus, he was outside the scope of Miranda and the use of his silence by the prosecution did not violate the Fifth Amendment.

Reaction

While many in the legal community were anticipating the Court’s decision in Salinas v. Texas, after the ruling was handed down many of those people were left disappointed.  The Issue that many were hoping to see be resolved was whether the Government could use a suspect’s reliance on the Fifth Amendment when the suspect had not already been arrested.  However the Court announced early in its opinion that it was not necessary to resolve that question because the Petitioner did not assert the privilege.

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US Supreme Court: K-9 Dog Sniff Sufficient to Establish Probable Cause

On February 19, 2013, the Supreme Court decided the case of Florida v. Harris, and held that use of a drug dog to establish probable cause to search a vehicle does not violate the Fourth Amendment of the United States Constitution.

Facts: Respondent was pulled over by a law enforcement officer for a routine traffic stop.  While speaking to the respondent, the officer noticed that the respondent was becoming increasingly nervous and also observed an open beer can.  Respondent refused the officer’s request to search the vehicle; the officer subsequently executed a sniff test with his trained narcotics dog, Aldo.  The dog alerted at the driver’s side door, leading the officer to determine that he had probable cause to search the vehicle.  The search did not provide anything that the dog was trained to detect, but did reveal ingredients that are used to manufacture methamphetamine.  When the respondent was released on bail he was pulled over by the same officer who again had Aldo do a sniff of the vehicle, this time producing nothing.  The respondent moved to have the evidence from the stop suppressed, arguing that the officer did not have probable cause to search his vehicle based on the dog’s alert.  The trial court held that the officer had probable cause and denied the motion to suppress.  The respondent then entered a no-contest plea, reserving the right to appeal the trial court’s ruling.  After an intermediate state court affirmed, The Florida Supreme Court reversed.

Florida Supreme Court: The Florida Supreme Court held that the officer lacked probable cause to search the defendant’s vehicle under the Fourth Amendment.  The court went on to say that “When a dog alerts, the fact that the dog has been trained, and is certified, is simply not enough to establish probable cause.”  The court held that the State needed to produce a wider array of evidence to demonstrate a dog’s reliability.  The Florida Supreme Court gave several examples: the dog’s training and certification records; an explanation of the meaning of the particular training and certification; field performance records; and evidence concerning the experience and training of the officer handling the dog.

Supreme Court’s Ruling: The Court began by tracing the history of probable cause and establishing the foundation for the Courts decision.  The Court stressed that, in determining whether the State has met the probable cause standard, the Court has consistently looked to the “totality of the circumstances” test.  Foreshadowing its ultimate decision, the Court noted that in Gates, the Court abandoned the old test for assessing the reliability of informant’s tips “because it had devolved into a “complex superstructure of evidentiary and analytical rules.” (1)  The Court continued, describing probable cause as a “fluid concept-turning on the assessment of probabilities in any particular factual context-not readily, or even usefully, reduced to a neat set of legal rules.”  The Supreme Court determined that this is exactly what the Florida Supreme Court did in its decision, created a strict evidentiary checklist, which requires the state to mark off each item.

Rather than having the “strict evidentiary checklist” that the Florida Supreme Court determined was the best approach, the Supreme Court held that evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.  “If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume that the dog’s alert provides probable cause to search.”

Regarding a probable-cause hearing on a dog’s alert, the Court gave guidance to the lower courts on how these should be administered.  The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure.  After evaluating the proffered evidence to decide what all the circumstances demonstrate; if the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.  However, if the defendant has challenged the State’s case, then the court should weigh the competing evidence.  Overruling the Florida Supreme Court test, the Court once again stated that the question is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonable prudent person think that a search would reveal contraband or evidence of a crime.

(1)    Illinois v. Gates, 462 U.S. 213, 235 (1983)

Supreme Court Continues Trend of Protecting Individual Fourth Amendment Rights

imagesOn February 19, 2013, in Bailey v. United States, the Supreme Court issued an opinion limiting police officer’s authority to detain an individual incident to the execution of a search warrant.  The decision is another example in recent history of the Supreme Court’s refusal to limit the Fourth Amendment.

Facts

While police were preparing to execute a warrant to search a basement apartment, detectives conducting surveillance in an undercover police vehicle located outside the apartment observed two individuals leave the gated area above the apartment, get in a car and drive away.  The detectives waited for the men to leave and then followed the car approximately a mile before stopping it.  Keys to the apartment were found on the petitioner who initially informed police that he resided in the apartment before denying it when informed of the search.  The District Court denied the defendant’s motion to the apartment key and statements he made to the detectives under Michigan v. Summers (1).  The Second Circuit affirmed the decision and the Supreme Court granted certiorari.

History

The Fourth Amendment provides the right of every citizen to be secure in their persons against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.  A general rule on the Fourth Amendment is that Fourth Amendment seizures are “reasonable” only if based upon probable cause “to believe that the individual has committed a crime.  In Michigan v. Summers, the Supreme Court established an exception to this general principle and defined an important category of cases in which detention is allowed without probable cause to arrest for a crime.  The rule established in Summers, is that the law permits officers executing a search warrant “to detain the occupants of the premises while a proper search is conducted.”  This rule is unique as it extends farther than other exceptions to the Fourth Amendment in that it does not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers.

In Summers and the cases that followed, the occupants detained were found within or immediately outside a residence at the moment the police officers executed the search warrant.  However, in the present case petitioner left the apartment before the search began and the police officers waited to detain him until he was almost a mile away.  Thus, the Court must decide whether the reasoning the Court used in Summers can justify detentions beyond the immediate vicinity of the premises being searched.

When Summers was decided, the Court reasoned that there were three important law enforcement interests that justify detaining an occupant who is on the premises during the search warrant’s execution.  (1) The safety of the officers and the need to detain the current occupants so they can search without fear that the occupants will become dangerous or frustrate the search.  (2) The facilitation of the completion of the search, if an occupant is free to move around during the search they may potentially obstruct the search or destroy evidence.  (3) The interest in preventing the flight of the occupants.

Analysis

The Court addressed all three interests established in Summers and applied the facts of the present case to those interests.  The first interest, officer safety, was not at risk because petitioner was away from location of the search and further, he was not even aware that a search was being conducted.  Additionally, if he had returned to the scene and did pose a threat, he would have been able to be lawfully detained because he was on the premises.  Addressing the second interest regarding the facilitation of the search, an individual who is not on the premises when the search is being conducted cannot obstruct a search or destroy evidence.  Finally, in addressing the concern of potential flight, the court said that if law enforcement is able to use flight as an excuse to apprehend occupants without any limitations, a suspect may be able to be seized 10 miles or further away from their house.  The Court then quoted a former Supreme Court case saying “the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” (2)

The Court also emphasized the fact that the intrusion on personal liberty of a detention away from the premises of one’s home is significantly greater than the intrusion on an individual’s liberty while they are on their premises or inside their home.  When someone is apprehended in their yard or even inside their home, it does not raise the level of the public stigma or indignity associated with the search of the home itself.  However, when one is detained away from their home there is an additional level of intrusiveness.  Even if it is not an arrest it will appear to the public as a full-fledged arrest.  This is another important reason why the decision the Court established in Summers, must be limited and not used by law enforcement as a vehicle to apprehend occupants of a home even if they are not at their home during the search.

(1)    Michigan v. Summers, 452 U.S. 692 (1981)

(2)    Mincey v. Arizona, 437 U.S. 385, 393 (1978)

Mass. SJC Upholds Limited Warrantless Cell Phone Searches

Wassem M. Amin

On December 5, 2012, the Supreme Judicial Court, in two cases with almost identical fact patterns, upheld the warrantless search of a defendant’s cell phone as a search incident to an arrest.  Although the cases certainly were a disappointing setback for privacy rights advocates, it is critical to note what the SJC did not rule on.  An in-depth reading of both opinions reveals that the Justices carefully limited their holding to the specific facts at issue.  The result is that police may in fact still need a warrant for many cell phone searches that fall outside the scope of these holdings.

The twin cases are Commonwealth v. Phifer, Slip-Op SJC-11242 (December 5, 2012), and Commonwealth v. Berry, Slip-Op SJC-11056 (December 5, 2012).

Facts

The Defendants in Phifer and Berry were lawfully arrested after Boston Police Detectives observed them engaging in a drug sale.  After the arrest, officers seized the cell phones that were in the defendants’ possession.  Subsequent to the seizure, the officers scrolled through the list of the incoming and outgoing calls on the cell phones.  In both instances, the police reasonably believed that the recent call list would reveal evidence related to the drug distributions, justifying the “search”.

Holding

The SJC upheld both searches as a “search incident to an arrest (SITA).”  A SITA is an exception to the warrant requirement for searches which is justified by the need to search for weapons, evidence of a crime, or instruments of escape–only when a person is taken into official custody and lawfully detained.

The SJC, however, expressly articulated a very limited scope for its holdings.  The act of searching the recent call lists was upheld because “…police conducted a very limited search of the cellular telephone, pressing one button to view the recent call list…[and] the police had reasonable grounds to believe that the recent call list would reveal evidence related to the drug distribution crime for which the defendant was arrested….”

Aware that modern-day “smartphones” are capable of storing vast amounts of personal data that extend far beyond incoming and outgoing calls, the SJC noted, repeatedly throughout both cases, that this same outcome may not “necessarily be true with respect to the privacy of the myriad types of information stored in a cellular telephone that [a defendant] is carrying at the time of arrest.”  Although the Justices declined to address the constitutionality of, for example, a search of a defendant’s emails and text messages, they made it clear that their holding did not apply to the “type of intrusion into a more complex telephone or other information storage device.”

Conclusion

Despite what was initially reported by most news outlets, the SJC’s rule is very limited in scope.  It is not a carte blanche for law enforcement.  It applies only to a brief search of the call list on a  lawfully seized cell phone stemming from an arrest.  Justice Gants, in a separate concurrence succinctly stated:

“[The SJC] has not yet ruled whether a more intrusive search of a smartphone, or any other device capable of storing highly personal information, may be conducted as a search incident to arrest, even where the police may have probable cause to believe that evidence of the crime of arrest may be found in text messages, e-mails, or other data storage area of the telephone….”

Therefore, the rule would certainly not apply to an extensive search of a smart phone or another more complex data storage device, such as a tablet.  As the law continues to play catch up with technology, we are likely to see the SJC address these other issues in the near future.

Is a Dog-Sniff Alert Sufficient to Establish Probable Cause?

On October 31st, 2012, while the rest of the country will be busy celebrating Halloween, the Supreme Court of the United States (SCOTUS) will face the haunting and controversial question of whether a dog-sniff alert is sufficient for establishing probable cause.  The two cases, both out of Florida, touch on one of a myriad of issues that must be resolved as SCOTUS defines the contours of our Fourth Amendment rights.  The impact of the court’s ruling will have reverberations and consequences on the law enforcement community and criminal trials for years to come.

Florida v. Harris[1]

In the first case, Clayton Harris was driving with an expired tag, according to Deputy Wheetley.  Following a valid stop, Deputy Wheetley noticed Harris acting visible nervous.  Moreover, there was an open container of alcohol in the cup holder.  Harris denied the Deputy’s request to search the vehicle.  The Deputy retrieved a K-9 narcotics detection dog.  The K-9 sniffed the car and alerted Deputy Wheetley of narcotics.

Harris was asked to exit the vehicle while a search of the vehicle was conducted.  The search yielded narcotics and other contraband.

The trial court denied the Defendant’s motion to suppress and found there was probable cause to search.  The First District Court of Appeal affirmed.  The Supreme Court of Florida reversed the opinion of the First District.  The United States Supreme Court granted certiorari to the State of Florida to review the judgment of the Supreme Court of Florida.

Florida v. Jardines

In Jardines, Florida law enforcement officials received a tip that the defendant was growing marijuana inside his home.  They then brought a drug dog to the defendant’s home, and after the dog indicated that there was marijuana inside, the police entered and found the plants.  The Florida Supreme Court held that the use of the dog without a warrant violated the defendant’s Fourth Amendment rights and even if a drug dog alerts the police that there are narcotics inside, a warrant is still required.  The rationale behind the Florida Supreme Court’s ruling was that if law enforcement officials are able to conduct a test such as this without any prior showing of wrongdoing, there is nothing to prevent the officials from doing this at any civilian’s home based on little to no evidence.

Implications

Under the 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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

SCOTUS has previously ruled that a dog sniff in and of itself is not a search, based largely on its non-intrusive nature[2]. In Florida v. Harris, the dog sniff was not the search; it was, however, the basis for probable cause justifying the vehicle search.  The Supreme Court of Florida held that evidence of a K-9’s training, qualifications, and certifications are insufficient to establish the dog’s reliability to determine probable cause.

Other federal courts weighing in on this issue has determined that an alert by a well-trained narcotics detection dog does, in fact, provide probable cause.[3]

Should Florida v. Harris be upheld, will that invite more challenges to K-9s used to track felons and detect explosives?  Will this limit the usefulness of dogs in a law enforcement capacity?

Massachusetts treatment of the issue

Massachusetts has held that a dog sniff will usually suffice as the basis of probable cause[4]. However, when the dog is the sole basis of the search under the “totality of the circumstances” test, the government must show why the particular dog was reliable.  This determination focuses heavily upon the dog’s qualifications: certifications, training, experience, and success rate.

Infallible dog theory

In a dissenting opinion regarding a dog-sniffing case, Justice Souter once quipped: “The infallible dog, however, is a creature of legal fiction.”[5] He went on to describe the error rates of dogs and their limited reliability.  Indeed, despite their usefulness, there are numerous issues when law enforcement officials rely too heavily upon a dog sniff.  The first is the dog’s qualifications, their training, success rates, etc.  A second consideration is the role of the handler.  How qualified is that handler?  How well do they understand the dog they are handling?  Finally, what was the alert the dog gave – passive or aggressive?  Was it interpreted properly?

The role of dog sniffs in the context of Fourth Amendment rights continues to evolve.  Florida v. Harris will be a seminal case in Fourth Amendment jurisprudence and will undoubtedly affect judges, attorneys, and law enforcement officials moving forward.

Editor’s Note – Updated on October 31, 2012.

[1] http://sblog.s3.amazonaws.com/wp-content/uploads/2012/01/HarrisUSSC-CertPetFinal.pdf

[2]United States v. Place, 462 U.S. 696, 706-07 ( 1983).

[3] U.S. v. Sentovich, 677 F.2d 834 (11th Cir. 1982); U.S. v. Robinson, 390 F.3d 853 (6th Cir. 2004); U.S. v. Parada, 577 F.3d 1275, 1282 (10th Cir. 2009).

[4] Commonwealth v. Matias, 440 Mass 787, 793 (2003).

[5]Illinois v. Caballes, 543 US 405, 412 (2005).