Top 10 USSC 4th Amendment Cases of All Times

Some of you who have been in my class know that I give out a list of the top 10 USSC cases of all times (and a list of top Illinois or AZ cases depending on where I am teaching).

Even though I believe that Gant is the most important crim pro case since Miranda, I think Graham v Connor is more important. But I consider Graham to be a civil liability (section 1983) case.

Anyway, if you have been in my class and have your top 10 list, you can add Gant and remove Belton (presently #4)

2. Arizona v. Gant

Why this case is important
For 28 years – since 1981 – The “Belton Rule”[1] was that officers could always search the passenger compartment and closed containers therein incident to a lawful custodial arrest. This was the case even though the arrestee was handcuffed and the back of the seat. Illinois courts had even ruled that officers could search locked containers under this doctrine. Gant is important because it takes the teeth out of the Belton Rule by holding basically that the search incident to arrest of a vehicle is unconstitutional once the arrestee is handcuffed. Gant is also important because the Court held an officer may search for evidence in the vehicle that “might be” related to the reason for the arrest.

Facts
Officers saw Gant park his vehicle, and they shined a flashlight on him. As Gant emerged from his vehicle officers arrested him because there was an arrest warrant for driving on a suspended license. The officers searched Gant’s vehicle and discovered drugs and gun.

Ruling
The search was held to be unconstitutional as beyond the scope of a lawful search incident to arrest.

Rationale
The Court reasoned that the purpose of a search incident to arrest was to ensure that the arrestee could not lunge to a weapon or destroy crime-related evidence. However, if the arrestee is already handcuffed, how can he / she lunge to grab a weapon or evidence?

Application of the ruling
Officers will begin leaving arrestees un-cuffed while they search vehicles. Some will search the vehicle before the arrest as the courts have held that a search may precede an arrest if the arrest follows substantially contemporaneous with the search. I. am told by many supervisors that this approach is very dangerous – and should not be attempted.

In the ruling the Court announced a new rule – that rule is that officers may search the vehicle incident to arrest for any evidence of the crime arrested for. An example would be if an officers arrests for a warrant for a drug offense, he may search the car for drugs. The Court stated that the standard of this suspicion was “might” – so I think you can search the vehicle if there “might” be evidence related to the arrest in the vehicle.

The Court did not say this, but I think there is one more important application of the Gant doctrine – the scope of the search (contrary to Belton) probably includes the trunk as if there is evidence of the crime in the vehicle, why would the trunk be off-limits? I do not believe that it is – but you should also always ask for consent and fill out an inventory form. That may give the prosecutor three theories for the search – rather than just one.

Finally, I believe officers may still search the car under Belton if there are occupants who are not cuffed.

[1] New York v Belton, 453 US 454 (1981)

Illinois and Arizona Books

I have been inundated with requests for 2009 editions of the legal source books for Illinois and Arizona.

Usually I print a final edition of the books before the new year.

I wanted to wait for the decision in Gant this year to print the final editions of Illinois and Arizona books.

So since I will be in seminar for awhile I expect that it will take a couple of weeks to update the book -- and at least 2-4 weeks to do everything necessary to print it.

From now on I am going to publish a new edition of the book only after the Supreme Court term ends, so I can get all the important cases from the Supreme Court in the book for that year.

If you are interested in an Arizona or Illinois Legal Source Book, please e-mail at DAA2000@aol.com or order one at this website with a credit card.

If you have already ordered a book, I can send it to right away, but it will not have the Gant case and a few others that I am inserting -- so it will not be totally up to date and will have information -- e.g. Belton that is just plain wrong. But if you want a book right away, just let me know -- and I will get a book right off to you the day of your request.

Thanks.

Best --

DA

Gant -- How to explain Gant to prosecutors

I have been concerned about some of the e-mails I have seen from states attorneys to officers explaining Gant -- especially as the legal instructions relate to the "Scalia doctrine" which says that officers can search the vehicle (including the trunk IMO) if there "might" be evidence relating to the arrest in the vehicle.

I am not sure that prosecutors understand the importance of arguing that all you need to search a vehicle incident to arrest is the fact that there "might" be evidence in the vehicle related to the arrest -- not that there must be a "likelihood" that there is evidence in the vehicle related to the arrest.

AS I discuss in my blogs below, Stevens, in his majority opinion, says that an officer may search a vehicle if there "might" be evidence related to the arrest in the vehicle. The next paragraph he discusses the "likelihood" that there is evidence in the vehicle. As you can easily infer there is an enormous difference between those levels of proof. Prosecutors will want to argue "might" -- and defense attorneyes will want to argue "likelihood."

Scalia sets the bar very low in Thornton -- the case from which Gant sprung -- by insisting that if a suspect is arrested on an arrest warrant involving drugs, the officer may search vehicle for drugs -- that certainly looks more like "might" than "likelihood." Scalia also lays out a number of cases where the "might" standard applies. I would think that if Stevens is borrowing the doctrine / theory from Scalia, that Scalia's level of proof should prevail as the standard -- but it must be argued by the prosecutors to win out.

I think that it is important that the first case that comes up to the Illinois Supreme Court, prosecutors insist that the standard for the search is "might" -- and not "likelihood." I think they will do this if they are prepared to argue this level of suspicion.

I think the Illinois Supreme Court would accept this level of evidence to search.

I have read many of the e-mails that have been sent out by states attorneys to officers -- and they really don't explain this issue to officers making me wonder whether they understand the issue.

In case they don't understand it, you must explain it to them, so that we get a proper standard set in this state.

If you know a prosecutor, please bounce my opinion off of him / her -- and then let me know what the prosecutor says about it. I would be very interested if you would get back to me on this.

Best --

DA

10. GANT -- Putting a positve twist on the case

10 Gant – How to turn a lemon into lemonade?

I am an optimist -- so I always try to look at the positive side of a case -- and then try to explain to officers (and prosecuotrs when they will listen) how a case can be used to benefit officers if they understand how do a little creative policing.

Most importantly, every officer must understand that -- with the decision in Gant -- the search incident rule has changed.

Whereas before Gant, a search incident to arrest was automatic (with the lawful custodial arrest of the arrestee) and could be executed even when the suspect was handcuffed -- that is no longer the rule.

Once a suspect is handcuffed, an officer must rely on the Scalia doctrine to search. That doctrine says that if there might be crime-related evidence related to the arrest, officers may search for that evidence even though the arrestee is handcuffed.

I believe this doctrine broadens the scope of the search to the trunk and the house.

Although with the search of the trunk, officers should seek consent and fill out an inventory form.

With the search of the house, officers should at least seek consent. (If it is a major case – like a homicide -- officers should get a warrant until the issue has been settled by case law.)

Best --

DA

9. Gant -- a 5-4 decision that will spawn a zillion new cases

9. GANT – is a 5-4 decision.

But so was Miranda – no one remembers that fact today. All we remember is that Miranda is the law of the land – and that there are a zillion cases that have been spawned by it -- and that every officer has to follow not only Miranda -=- but all the cases it has spawned.

In five years, no one will remember that Gant was a 5-4 decision. But every officer will have to know every case that Gant spawns -- and they will all create a new twist on the Gant holding. I think the USSC will soon realize that they've created more problems than they solved in the way they decided Gant.

But officers and prosecutors may well figure out that Gant has more rose pedals than pricks associated with this doctrine if they are creative especially with respect to the Scalia doctrine.

Best -

DA

8. The facts and holding in BELTON

The Belton doctrine became this – an officer could always search the passenger compartment and closed containers therein incident to a valid custodial arrest.

But I had forgotten the facts -- and the specific holding in the Belton case based on those facts.

So, the facts -- apparently an officer stopped the driver of a vehicle for a traffic offense. The officer smelled marijuana and saw indications of marijuana in the vehicle. The officer arrested the four occupants and placed them on all four corners of vehicle – un-cuffed.

He then – without a back-up -- searched the passenger compartment and found a jacket in the back seat belonging to Belton. He checked the zippered pocket and discovered drugs.

(If you believe that a New York officer left four arrestees un-cuffed while searching the passenger compartment, I have a bridge in Brooklyn I’d like to sell you. Anyway….that is what started all this controversy.)

The point that Gant made when appealing the case to the USSC was that the specific issue of handcuffing the arrestee was not the question in the Belton case as in that case, the arrestees were NOT cuffed.

Best -

DA

7. GANT What about other occupants in the vehicle?

Observation #7 What if there are other occupants in the vehicle?

Prior to Gant, the basic rule related to other occupants of the vehicle – after the arrest of one occupant -- was that officers could not search them / frisk them and their presence around the vehicle was more or less irrelevant. Obviously, officers could “detain” them – which means freeze them – without handcuffing – while searching the passenger compartment incident to arrest. (I know that officers virtually always frisked other occupants in the vehicle after an arrest. I am just saying that was unconstitutional prior to Gant. Period. As far as I know, it may still be unconstitutional after Gant.)

The dissenting opinion in Gant suggested that if there are other occupants, that fact might / could create concern that they -- the other occupants -- might destroy evidence or grab a gun in the vehicle – which may re-create the necessity to rely on the Belton doctrine all over again, i.e. – search the passenger compartment in this situation – not the trunk.

Also, under the Scalia doctrine, will officers now be permitted to search occupants as they might possess crime-related evidence related to the original arrest?

It makes a lot of sense to me that if officers cannot search or handcuff non-arrested occupants, that they may well be very dangerous to officers.

Best -

DA

6. Back to the good old days!

GANT -- Observation 6 – Back to the good old days.

For better or worse, I think we’re going back to the 60’s and 70’s – maybe even the 50’s -- in the way we view and analyze the search incident to arrest doctrine.

We’re going back to the 70’s in the way we think about search incident to arrest if there is no reason to believe there is anything in the vehicle related to the arrest. This would probably be “crimes” like driving on a suspended license. In such circumstances officers will do what they did in the 70’s. They will leave the arrestee un-cuffed talking to a fellow officer near an open door of the vehicle until they finish searching the vehicle. In fact, many officers will not even tell the arrestee he is under arrest, as in most states officers can search incident to arrest prior to the arrest as long as the search incident is substantially contemporaneous with the arrest. (As I mentioned in an earlier blog, I have been informed that this is a very poor tactic street-wise as officers may / will get killed doing it.)

Under the Scalia doctrine, officers will once again begin to search houses incident to arrest if the crime-related object which the officers are searching for is also related to the arrest. Prior to Gant, the officer had to get a warrant for those objects that were not within lunging distance of the arrestee.

And officers will search the trunk if the object of the arrest might be in the trunk (again if you do this always ask for consent and fill out an inventory form).

Best -

DA

5 -- Is the scope of the new theory broader

5 A SILVER LINING -- the new theory may permit a broader search!

The old Belton doctrine limited the scope of search incident to arrest to the passenger compartment (as that was where the Court assumed an arrestee could lunge to and grab a weapon or destroy evidence).

There is no reason why the scope of the new theory should be so limited.

For example, if an officer is arresting someone for a drug charge, there is no reason why it wouldn't be just as likely that the drugs would be in the trunk as in the passenger compartment. Right?

I didn't see anything about this (broadening of the scope) in the cases (Gant or Thornton) -- but it makes sense to me.

Also, let's consider non-vehicle search cases -- let's say you arrest a murderer / armed robber in his motel room. You would obviously be allowed to search anywhere in the motel room for the gun! Under the old Chimel rule, you could only search within lunging distance -- that meant to many courts, that you could not search the bathroom of the motel room if the door was closed.

Ironically, in Chimel, the officers searched the entire house and found evidence of the crime (stolen rare coins taken in the burglary of the coin shop). Maybe now, officers can go back to pre-Chimel days when they could search THE WHOLE HOUSE incident to arrest if they are looking for evidence related to the arrest. (WOW!)

Be sure to ask for consent from the arrestee (and fill out an inventory form for searches of vehicles) -- as you should always want to give a prosecutor as many theories as possible for your search.

Best -

DA

4 Gant -- the new theory -- examples

Another comment about observation #3

I re-read Thornton -- actually skimmed it.

Scalia in that case actually seems to cite a lot of cases illustrating his position that certain types of arrests will automatically permit a search of the vehicle -- these are cases where there is not pc -- but where there might be evidence related to the arrest.

The example in the Thornton case was an arrest warrant for drugs. Scalia said that was enough to believe there were drugs in the vehicle. That sounds very good for officers.

Best --

DA

3. GANT -- a new theory for searches incident to arrest

3. My third observation and opinion is this --

The United States Supreme Court created a new theory for searches of vehicles in GANT –
that theory is that an officer may search a vehicle if it "reasonable" to believe that there is crime-related evidence that is also related to the reason for the arrest.

Presently, no one knows what that -- "reasonable" -- means, but there are rumors floating around that maybe it means e.g. if a driver is arrested for drunk driving, the car can be searched for beer or liquor bottles as those would be evidence directly related to the reason for the arrest. But....who knows?

First Let me give a little background on this new rule that may shed some light on this new theory generally.

Justice Scalia, a long time ago, opined that an officer should not be able to search the vehicle incident to arrest unless “the object of the search is evidence of the crime for which the arrest was made….”

In fact, that is exactly what Scalia said in his concurring opinion in the GANT case.

Why is this so important?

The GANT case was argued on October 7. But it was not decided until almost eight (8) months later! I personally have never seen a case where there was that long a hiatus between the arguments and the opinion. During these eight months I wondered why the delay.? I honestly thought that Scalia might be holding out to join the (liberal) minority on this opinion until he got his “way” on this issue.

Everybody following this issue knows that Scalia has complained about the search incident rule almost ever since Belton was decided – But he was particularly critical in the more recent Thornton case.

Anyway, the reason why this new rule was introduced by the liberals (Stevens presiding) in GANT was that IMO Scalia held out as the 4th and 5th vote (with Thomas following Scalia) until he got his way. (Otherwise the vote would have been 6-3 in favor of law enforcement with Scalia and Thomas voting the other way.)

Now let’s analyze what the new “Scalia rule” is. Steven makes it almost impossible to understand what the level of suspicion is to search the vehicle under this theory. At first he says, “Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle” (citing Scalia’s opinion in Thornton).

To me, “might be” is a very low standard of proof required to believe there might be something related to the arrest in the vehicle -- maybe a evidentiary standard akin to "reasonable suspicion"???

Stevens then sabotages the theory in the next paragraph by stating, “Neither the possibility of access nor the likelihood of discovering offense-related evidence authorized the search in this case.

To me, “likelihood” means at least a presumption or a preponderance of the evidence or suspicion or maybe even as high as clear and convincing? – this is a much higher test than “might be” present -- and in my opinion, higher than probable cause. (Heck, if there is pc, the officers can enter the vehicle on that alone -- so why would they ever resort to this theory if the standard of proof is this high?)

Did Stevens slip this past Scalia – or did Scalia just fold to the pressure brought by the liberals on the Court? We will never know. But if I were to guess, I would bet that Scalia saw the inconsistency -- and just let it go. After eight months he was probably tired of arguing about it.

Now every law enforcement officer in the country is stuck with it. What do you all think? -- Can you search the car if there "might" be evidence of the crime related to the arrest -- or must there be a "likelihood" that there is evidence related to the arrest?

Only time will tell how the court(s) will resolve this.

Best -

DA

2. GANT -- What happens to other search theories? -- observations 2 and 3

Observation / Opinion #2

Does GANT affect any other search doctrine?
The answer is probably not – at least in theory.

The news releases said that from now on officers must have a warrant to search vehicles.
This is just another good reason to never read the newspaper.

All other search theories / doctrines related to vehicles (and other areas) are still available to officers. These searches are:
· Probable cause (usually the automobile exception)
· Probable cause – warrant
· Terry
· Consent
· Exigency / Emergency
· Inventory
· Miscellaneous theories like checking the VIN

Observation / Opinion #3

Will the bases for other theories, especially inventory, be scrutinized more carefully now?
Yes.

For example, I am constantly asked by officers, “Well, we still have the inventory theory, don’t we?”

The answer is yes – but most officers don’t even know what their inventory policy is. E.g. I had a case once where the officer looked under the spare tire while conducting an inventory and discovered crime-related evidence. The evidence was suppressed because the officer could not prove that he always looked under the tire as a function of his inventory searches -- and he could not prove that every officer in his department always looked under the tire. Inventory searches require that every officer follow their department's inventory rules, and all officer do it the same -- every time. Officers have no discretion in what they search.

Inventory searches also require that the officer have lawful custody of the vehicle. Recently, an officer impounded and inventoried a vehicle off a driveway because the driver had no license. There were relatively extreme mitigating circumstances in this case – but not withstanding local ordinance and statute that permitted the seizure of the vehicle, the officer was successfully sued under Section 1983 as the court ruled that the officer did not have lawful custody of the vehicle.

Finally, most inventory policies that I have seen are tooted in the 1950's law -- there are some that even say that an inventory search is NOT a search! That is absurd. Update your department's inventory policies to be a part of the 21st century.

Anyway, my observation here is -- now that the search incident rule has been emasculated, defense attorneys can begin to attack other theories that have become un-anchored from their rationales, that applies especially to inventory searches.

Watch out for this one; it will probably be next.

Best –

DA

1. Why GANT is the most important case since MIRANDA

Observation / Opinion #1

Ever since the United States Supreme Court took on the Gant case for resolution I have been saying that it would be the biggest case in criminal procedural history since Miranda – IF the Court ruled against the police. Since it did rule against police, I need to explain my rationale.

I predicted the Court would rule in favor of Gant -- and I said it would be a 5-4 decision (although I did hedge my bet by adding that no one can “read” the Court – and that mine was just an educated guess.)

Since I like Top 10 lists, I decided to write up my top 10 observations about the Gant case – off of the top of my head – in order of importance.

Also, one caveat, I have only read over the case a few times, so something I say below might be wrong or misstated. If so, I would appreciate any critique I might get.

I will draft my observations over many blogs, so stay tuned if you are interested in my many (10) observations -- Here is my number 1 observation that I haven't seen anybody else address yet on any blog or essay --

1. The Gant holding is not limited to vehicles.
I’m not sure if the High Court thought of this, but officers always handcuff arrestees before they search incident to arrest. Let me give you an example – when officers arrest a suspect in a motel room, they arrest, the y handcuff and they search. In fact in the biggest case in Arizona prior to Gant, officers searched a nightstand drawer near the arrestee and discovered a weapon used in the arrestee’s criminal activities. The gun was ruled to be admissible under the search incident doctrine. After Gant, IMO, it would be suppressed because the arrestee was handcuffed prior to the search.

I think some (maybe many) defense attorneys will argue that officers may not search parts of an arrestee, like his socks, after the arrestee has been handcuffed -- why? because the arrestee can't get to that evidence to destroy it. Of course, most courts will admit it under the booking theory -- but at least you can easily see how silly this precedent may be xonstrued by lower courts.

Gant is going to create lots of new law related to the search incident to arrest doctrine – most of it bad for law enforcement -- and much of it unintended by the USSC, I think.

Best -

DA

GANT

Numerous law enforcement supervisors have written me saying that they do not want their officers risking their lives leaving arrestees uncuffed while they search a vehicle -- so going back to the 70's is not a good idea in the way to get around the search incident rule.

I tend to agree, but I know that officers will do this.

Best -

DA

More on GANT

Ok -- I finished -- sort of skimming the case -- including the dissent.

1. I think this decision also applies to searches incident to arrest that do not occur with respect to occupants of a vehicle.

Here is what I mean. BEfore GANT if you arrested someone in a motel room, basically you could search the motel room -- even if the arrestee was handcuffed. Now, after GANT, I believe the only way you are going to be able to search the room is if:

• the arrestee is not yet cuffed
• there are other people in the room who might graba weapon or destroy evidence.

2. This brings me to my second point --

The dissent in a footnote in the GANT case states that the "Court's decision in this case does not address the question whether in such a situation a search of the passenger compartment may be justified on the ground that the occupants who are not arrested could gain access to the car and retrieve a weapon or destroy evidence."

This reasoning is even stronger in light of the fact that just because an officer arrests someone out of a vehicle, the officer may NOT search any other occupant in the vehicle without a theory other than search incident. That makes the situation even more precarious for the officers and further justifies a search of the passenger compartment.

Best -

DA

GANT Decided by the USSC!

I am in the training room talking about GANT this morning -- and telling the class that GANT will be decided any day -- maybe today. And suddenly I get a text message that GANT has been decided 5-4 -- against the police.

If you have been in my class, you must admit that I got this one right. I said that it would be 5-4 and that the Court would likely rule in favor of GANT. ( I think it's the only time I have ever guessed right about a USSC case.)

The reason I feared that the decision would go against law enforcement was that Scalia (the most conservative member of the Court probably) had already stated (in THORNTON) that there is no reason that an officer should be allowed to search a vehicle under the search incident doctrine after the arrestee has been handcuffed.

The search incident doctrine was created to protect officers against an arrestee's lunging for a weapon or lunging to destroy evidence. Thomas usually decides the the same way as Scalia -- so there goes two conservatives.

Who needs more than a few liberals when the conservatives go against you?

Anyway, BELTON is now all but dead. Officers can no longer search a passenger compartment incident to a valid custodial arrest after the arrestee has been handcuffed.

I have not had time to read the entire case as I just got home from the seminar -- and there are two days to go.

But I do have a few observations off the top of my head which I hope I will not have to change after the reading the entire case.

1. This case has no impact on the inventory doctrine. However, training officers should be sure that your department's inventory polices are up to date and that all officers inventory vehicles exactly the same -- and every time. This will be the next area that defense attorneys will challenge. It is simply not an inventory if officers have any discretion at all in what they inventory. (Also, always ask for consent in addition to whatever other theories you have)

2. Officers will begin to go back to the 70's in their approach by not handcuffing arrestees -- and having them stand around near the vehicle while it is being searched. Also, officers with PC (to arrest) will search the vehicle prior to arrest.

3. I have been told that there is some language in GANT about what to do if there are other occupants in the vehicle. When I read the whole case, I will post about that.

If anyone has any questions about GANT please send me an e-mail.

And thanks to the gozillion officers who e-mailed me with the heads-up about this case.

When I am finished with my seminar -- parobably Friday, I will write more comprehensively about this case.

Thanks for your patience.

Best -

DA

Giving Orders During A Consenual Encounter

A Tier 1 encounter is one where the citizen is free to leave at any time. A Tier 2 encounter is one where the suspect is detained (like a TERRY or a traffic stop). And a Tier 3 encounter is one where the suspect is restrained in a significant way (like handcuffing).

Normally, during a Tier 1 -- or consensual -- encounter an officer may not order, or tell, the suspect / citizen to do anything.

Apparently in Illinois an officer cannot even order a suspect to show his hands during a consensual encounter. People v Jackson (March 30, 2009).

In Jackson, an officer was patrolling his "beat" and saw Jackson walking up and down the block for 40 minutes, looking into store windows and "checking out people."

The officer approached Jackson because of Jackson's suspicious behavior and because of the "numerous robberies in the area in the past."

Below is the officer's testimony about his encounter with Jackson:

"Q. As you approached the defendant on foot, did you tell the defendant to do anything?

A. Yes, I did.

Q. What did you tell the defendant to do?

A. I told him to remove his hands from his pockets.

Q. Why did you tell the defendant to do that?

A. For my safety.

Q. How many times did you tell him the defendant to remove his hands from his jacket pocket.

A. At least three to four times."

When Jackson took his hands out of pockets a gun fell out onto the ground -- and Jackson ran. Jackson was subsequently apprehended and made a motion to suppress the gun.

The Illinois Court of Appeals ruled that under the MENDENHALL case, the fourth factor was dispositive -- "compliance with the officer's request was compelled. When the defendant complied, a seizure took place. There was no legal basis for it" as the officer could not testify that Jackson was doing anything more than window shopping and did not match the description of any robber.

The court stated that "after the third or fourth command by the officer a 'reasonable man would have believed that he was not free to leave.'"

Therefore the gun was suppressed.

I think that officers should contact their FOP lawyer to write an amicus / friend of the court brief to the Illinois Supreme Court on this case --

1. Officers should always be permitted to see a suspect's hands during a consensual encounter.

2. This decision creates a dangerous dilemma for officers dealing with dangerous suspects during consensual encounters. If you cannot see a suspect's hands, you can die.

3. There was a strong dissent that said that since Jackson never really complied with the officer's orders (in that he ran away), he was never seized.

Best -

DA

People v Vasquez - Terry Stop of Driver, Consent

Vaquez is an interesting case.

A motel clerk gets paid by HIDTA officers for tips.

The clerk calls HIDTA because a guest, Vasquez, paid cash, was staying for one night, and was from Texas. The clerk's suspicions were also aroused because Vasquez paced the lobby, walked outside, looked around as if looking for someone, looked into his own vehicle and came back into the lobby. He did this several times. Finally Vasquez asked for a pay phone even though he had a cell phone.

The clerk made a copy of Vasquez' license and gave it to officers.

Officers ran the license and determined that Vasquez had two arrests for narcotics.

Vasquez went to an auto store and bought a wrench. Then he went to a garage and drove in. The garage door then closed.

When Vasquez drove away, the officers stopped him on a TERRY stop.

The officers then obtained a consent to search in writing.

The officers saw bolts loose around the bumper and other indications of tampering.

The officers called a dog out. The dog arrived within minutes and alerted on bumper.

The officers removed the bumper and found $300,000.

The Illinois Court of Appeals ruled that the officers did not have reasonable suspicion for the stop -- and the officers went beyond the scope of their consent by removing the bumper.

So -- what should the officers have done????

The Stop
1. Vasquez was on parole -- officers can stop a suspect who is on parole without reasonable suspicion. Be sure the prosecutor has the paperwork on this to offer it at the suppression hearing. (In this case, it was never offered -- so no proof that Vasquez was on parole.)

2. Try to find a traffic stop rationale -- that gives TWO theories for the stop rather than just one. If you can't get a traffic violation, wait til the suspect stops and then execute a consensual encounter (In that case, of course, you don't need reasonable suspicion.)

The Consent
Officers are bound by the consent they ask for. Asking for consent and then taking the car a part usually will not be constitutional as that goes way beyond the "scope" of the consent obtained.

PC
Once the dog alerted, there was pc to search. Always have a dog with you at the time of the stop -- have the dog sniff right away. (In this case the stop was bad so everything gathered after that was the fruit of the poisonous tree.)

Best -

DA

Conducting a GSR test Without a Warrant

Question

Dale, I am a Detective. I am requestingifyou have any information or recent case law regarding GSR testing on a subject while investigating a shooting. The question has come up. Do we need a warrant if the "suspect" refuses to submit to a test by SPD.

Answer
If you have lawful custody of the suspect you can conduct the GSR test without a warrant. Lawful custody means that you have probable cause on some arrestable offense. People v Allen, 875 NE2d 1221 (2007)

Illinois Officers Legal Source Book - 2009 Edition

I have gotten a ton of questions about, and requests for, the 2009 Illinois Officers Legal Source Book.

Frankly, it is "completed" -- at least 99%. I hate to go print it before GANT is decided as then I will have to revise a relative substantial portion of the book if the case is decided against officers -- and then re-print it. If the case is decided in favor of officers there will be no change in the law.

In my opinion, if this case is decided against law enforcement, it will be one of the worst decisions in criminal procedural history for officers as it will basically take away a search theory that officers have possessed since 1981. In that case it will IMO be the biggest criminal procedure case for officers since MIRANDA.

The search theory / doctrine I am writing about in the above paragraph is this -- once officers have arrested an occupant out of a vehicle the officers may search the entire passenger compartment incident to the arrest. This search has been constitutional even if the arrestee was handcuffed and in the back seat of the patrol car.

The problem with these searches is that they basically violated the reasoning or rationale for the search incident to arrest doctrine -- that is, officers can search under this doctrine only areas where an arrestee may be able to lunge and grab a weapon or destroy evidence.

In GANT, the Arizona Supreme court basically ruled that an arrestee is not going to be able to lunge to his car and grab a weapon or destroy evidence if the arrestee is handcuffed and in the back seat of the patrol car.

The United States Supreme Court will soon determine if the Arizona Supreme Court is right or wrong.

This case was one of the first cases to be argued to the Supreme Court during this term (I think back in November). Many cases argued after GANT have long since been decided by the High Court, so I am very curious why the Court has not delivered an opinion on this case.

But I DO suspect they will decide soon.

So to make a short story LONG, I am going to wait a little longer in order to include the GANT case in my next Illinois Officers LEGAL Source Book.

If you would like the 2008 book, I will be more than happy to send it to you.

And I will be giving out a 2009 book (draft) -- without the GANT case -- in my seminars in Illinois.

If you have any questions about this, please don't hesitate to write me at DAA2000@aol.com.

BTW -- I asked for feedback at an earlier blog. I have gotten lots of kind responses. Thanks so much. It helps me to know that this is worth doing by knowing that you are reading this.

Best-

DA

Controlling Suspects While Investigating Possible Crime

Question
Dale;
A good friend reminded me that this is the sort of thing you teach. I recall taking your class and it was very good. Could you provide your opinion the circumstances listed below? If there is case law to support my actions I would appreciate knowing where to find it.

1. I was dispatched to an alarm. The house in alarm is under construction and we have had thefts from homes under construction.
2. When I reached the location I noted a male, mid 20s walking towards the street from a house two lots from the alarm.
3. The male was carrying and wearing shoes that were covered with mud.
4. The house under construction which had nothing but mud all around.
5. I asked the male what he was doing and he told me he was house sitting for the owners of the house behind him.
6. I asked for Identification and he informed that he had none on him. He is a teacher, house sitting and returning to his residence approximately 3 or 4 houses down the street.
7. I now noted the presence of another male at the house under construction and from where we had received the alarm.
8. I asked the teacher to have a seat in the back of my squad, not handcuffed (once in the back one cannot exit without someone opening the door from the outside) while I checked the man now approaching from the house under construction.
9. I obtained the ID from the 2nd man and was told that he had located a key and opened a door setting off the alarm
10. I released the second male and returned to my car.
11. I then drove the teacher to his house (I did not ask him nor did he request a ride) where I released him from my squad and then escorted him to his residence and so that he could show me an ID.
12. The teacher called to say he was concerned that I may have violated his rights.
13. My Chief and the Commander are of the same mind.
14. Other officers from other departments tell me they would have done exactly the same thing.

Dale, did I violate his rights? If not is there case law I can use to educate my command staff?

Answer
This is the same type of situation officers often find themselves in.

1. If I were you, I would always tell these people that they are not under arrest, ask them to explain themselves -- if they can, let them go. If you cannot let them go, as here, where you have not resolved the problem, put them into the back seat again, explaining that they are being detained briefly til you can figure out what is going on.
2. I think here, when you figure out that the burglar alarm was a false alarm --as they usually are -- you let the guy out of the car, apologize for the inconvenience -- and ask him if he would like you to take him home -- in the front seat. (I am assuming that you took him home in the back seat of a caged unit. Not good.)
3. There is no reason I can conceive of that you need to see an ID when you know he hasn't done anything wrong. Just let him go.

Best -

DA

ARIZONA V JOHNSON - Frisking Passengers

Arizona v Johnson could have been an interesting case.

Unfortunately, since it was a 9-0 decision written by Ruth Bader Ginsburg IN FAVOR OF LAW ENFORCEMENT, you know the decision had to be milquetoast.

The case went to the the USSC asking the question -- can an officer search a passenger when the officer has no reasonable suspicion to believe the passenger has committed a crime -- but arguably has reasonable suspicion to fear for her safety?

A little background -- the officer basically testified that when she got a gang memeber out of the car during a lawful traffic stop, it was a consensual encounter as she wanted to try to get information about the gang from the gang member. As he got out the officer felt the waistband area of the gang member's pants and felt a weapon.

At the suppression hearing, the state and the defense agreed that the encounter was consensual.

Unfortunately for the state, most every court has ruled that officers cannot frisk a suspect during a consensual encounter (unless, of course, the suspect consents to the search).

So the Supreme Court of Arizona ruled that the gun must be suppressed.

The USSC reversed ruling that a passenger is seized in the same way as a traffic offender or a Terry suspect. Therefore because the officer searched the gang member the moment he got out of the car, the encounter could not have been consensual -- therefore the weapon was admissible.

Anyway, if anyone tells that this is a significant decision -- I think you need to ask them why....

Best -

DA

Looking into Cell Phones - Search Incident to Arrest

I am asked a lot whether officers can look into cell phones without a warrant.

The answer is generally -- No. The cell phone is sort of like a computer or a closed container.

However, the general rule across the country is emerging that officers can look into cell phones if they search them contemporaneous with a lawful arrest.

I have seen a number of cases permitting the search of the cell phone at the time of an arrest -- and not one case condemning it.

Best -

DA

Miranda Question (again)

Question

Dale excuse me for asking this ? before reading the report in question. An Ofc told me his Sgt is basically dismissing one of his cases for the following reasons:

-Ofc went on a call for marijuana and found four kids.

-He separated the four and questioned them regarding the marijuana, a baggy. I dont know who was in possession of it when Ofc arrived.

-Three of the four told Ofc the mj belonged to the fourth.

-Ofc then questioned the fourth who finally admitted to the mj being his.

-The fourth was subsequently arrested for pom.

The officer's sgt told him the case was illegal or would not be prosecuted due to the fact the Ofc did not mirandize the fourth juvenile. She wrote a supp to his report explaining the case would be dropped and Ofc got his _____ slapped for this.

I remember you saying in our class and I even checked my notes that Miranda does not apply unless a person is in custody eg handcuffs. To me and the way the case was explained to me, the case would hold and the kid would get a slap on the hand but the courts would not be able to argue Miranda. I believe Ofc knew he was going to arrest the fourth kid however he needed to continue his investigation to get more pc before placing him under arrest where Miranda would apply.

Can you explain if I am wrong in my thinking and memory of what you said. Our leagal advisor agreed with the Sgt by the way, but I just dont think I am wrong on this unless I have not been presented all the facts.

Thank you Sir.

Answer
As I have said over and over and over and over -- it is custody that triggers Miranda warnings. Custody means something tantamount to arrest -- like putting a suspect in handcuffs or in the back seat of the patrol car.

If somebody says that the situation above is custodial, ask for the case that says so. I have lots of cases in my book that say just because a person is not free to leave -- and the officer has pc to arrest -- does not mean the suspect is in custody (a classic is the USSC case of BERKEMER V McCARTY)--

Don't confuse these two -- detention and custody -- detention is a TERRY stop or a traffic stop. A person is no more free to leave during a detention than he is during custody / arrest. But the suspect does not get his Miranda warnings during detentions -- only during custodial interrogations.

Best -

DA

Q -- Handcuffing People During Frisks

Question

Hi Dale,

If you have a minute or two, a question was brought up about handcuffing passengers in a vehicle. Here's the scenario:

An officer stops a vehicle with multiple occupants and develops reasonable suspicion to search for weapons (let’s assume he does have reasonable suspicion). Can an officer handcuff the occupants of a vehicle on reasonable suspicion alone only to search for weapons?

I guess the case doesn't necessarily have to deal with passengers of automobiles. But if an officer fears someone is armed, can he/she handcuff the person to simply search for weapons or have the courts ruled that once a person is handcuffed they are in custody. I remember you lectured about this very topic but I don’t recall your opinion.

Thanks for your time.

Answer

I get this question a lot -- so let me make a short answer long.

First off -- your safety is most important. If you feel that you must handcuff people present to go home at night, then do it.

BUT -- you must remember that handcuffing looks like "custody" or "arrest" to a court / judge and that requires probable cause -- so let me give you some legal advice.

1. Prior to handcuffing, tell the people they are not under arrest or in custody.

2. As soon as you have frisked, unhandcuff the people, if possible.

3. If you discover important evidence as a result of this procedure YOU must convince the court of the unusual circumstances that made it necessary to handcuff. This is not easy in lots of courts, so be prepared to tell the story to make the judge feel as if he / she were there.

And be prepared to explain that whenever you have found it necessary to do this, you ALWAYS and immediately unhandcuff the people when you determine that nobody has a weapon that can hurt you.

Best -

DA

Identifications -- Admissibility

Answer -- see the question below

I seldom discuss ID's because it's rare to have a situation where an (in-court) ID is prohibited based on suggestivity.

First, let me suggest that you look at the Identification chapter -- right after the statements chapter in the book. You will quickly see your question answered.

Second, let me say that when I do discuss this issue, it is with the same fact situation -- except that the guy I'm playing pool with is my brother( for exaggeraged purposes).

The officers show me one picture -- of my brother -- I ID him. Should I be able to ID him in court? Yes.

Now how the law works -- basically if the the ID is unduly suggestive, the ID will not be permitted to be testified to in court. However, if there is an "independent basis" i.e. if the in-court ID is "reliable" -- the victim will be permitted to ID the defendant in court. Reliability factors relate to questions like how well did the witness / victim see the suspect and how sure the witness / victim is of the identification.

Most people who have seen the studies in this area believe that eyewitness identifications are not as good as once thought.
Best -

DA

Question I was asked by another Lt on the department about this incident. Officers responded to an aggravated battery call. The suspect had left the area. The victim claimed to know the suspect from playing pool together and other things. The victim knew the suspects first name and knew the last name started with a “B.” The victim gave officers an address where he thought the suspect lived. The officers did some investigating and found a subject who had been arrested at this address in the past with the same first name, last name starting with a “B”, and similar physical characteristics. Instead of creating a photo lineup, the officers then pulled up a mug shot of this subject on the in-car computer and showed it to the victim who subsequently identified the suspect as the one who battered him. The question is, will there be any problems with this ID or issues since the victim didn’t know the last name, etc. Anything or any thoughts you have would be greatly appreciated. Thanks in advance for your time.
I seldom discuss ID's because it's rare to have a situation where an (in-court) ID is prohibited based on suggestivity.