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SEIZURES FROM THE PERSON

PROBABLE CAUSE MUST BE INDIVIDUALIZED

Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) [“…a person’s mere propinquity to others individually suspected of criminal activity” or his “presence on premises lawfully being search”… “does not, without more, give rise to probable cause to search that person”].

“Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person happens to be. The Fourth and Fourteenth Amendments protect the legitimate expectation of privacy of persons, not places.” Ybarra, 444 U.S. at 91.

See also Kennedy v. Los Angeles Police Department, 901 F.2d 702 (9th Cir. 1989) [no reasonable officer would have performed the body cavity search of the defendant who was holding household items of another to secure a debt therefore the officers’ immunity was forfeited and they were liable under the Civil Rights act for their conduct].

But see U.S. v. Bonds, 829 F.2d 1072 (11th Cir. 1987) [with more than mere presence, like articulated fear of the person who came to the door of the premises being searched, a frisk is justified]; U.S. v. Cole, 628 F.2d 897, 898 (5th Cir. 1980) [Ybarra applied to a “family dwelling”]; U.S. v. Sanchez-Jaramillo, 637 F.2d 1094 (7th Cir. 1980) [where the agents searched the apartment of a co-defendant pursuant to his consent, same would not warrant arrest and search of another found on same premises];U.S. v. Clay, 640 F.2d 157, 160-61 (8th Cir. 1981) [where court held “arrest of defendant on premises officers were authorized to search was without probable cause even though firearms, cocaine and heroin were found in the apartment”]; U.S. v. Bryan, 640 F. Supp. 1245 (D. Me. 1986) [probable cause to arrest held to have existed once defendant identified himself by name of one who had previously called residence then being searched pursuant to warrant]; State v. Lambert, 710 P.2d 693 (Kan. 1985) [police arrived with a search warrant for an apartment and its occupant were not entitled to search a guest’s purse that they found on a table in the apartment]; McVea v. State, 635 S.W.2d 429, 433 n.6 (Tex. App.–San Antonio, 1982) [particularized probable cause “cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be”]; State v. Broadnax, 654 P.2d 96 (Wash. 1982) [searching residence]; Cerna v. State, 693 S.W.2d 570 (Tex.App.-San Antonio, 1985); Lippert v. State, 664 S.W.2d 712 (Tex.Cr.App. 1984) [applying Ybarra to “a residence” noting that “the private versus public distinction is fallacious and ignores the real teaching of Ybarra“].

“Regardless of the setting, Ybarra makes clear that constitutional protections are possessed individually. The Fourth and Fourteenth Amendments protects persons, not places.” Lippert v. State, 664 S.W.2d at 718.

C.f. Maury v. State, 621 S.W.2d 619, 623 (Tex.Cr.App. 1981) [defendant’s suspicious and “furtive” behavior when police entered lobby of doctor’s office];

Evidentiary searches of person present upon such “compact premises” will not be permitted even “where the police ‘reasonably believe’ that such persons ‘are connected with’ drug trafficking and ‘may be concealing or carrying away the contraband.'” Ybarra, 444 U.S. at 94.

The Courts have split as to whether boiler plate warrant language authorizing the search of certain named individuals and “any other person therein or thereat” will pass constitutional muster.

PRO: People v. Betts, 456 N.Y.S.2d 278 (N.Y. 1982 [approving such language on the theory that drug trafficking at the particular location was so prevalent that anyone present could be assumed to be a participant]; People v. Nieves, 330 N.E.2d 26 (N.Y. 1975); State v. DeSimone, 288 A.2d 849 (N.J. 1972).

CON: Lippert v. State, 664 S.W.2d 712 (Tex.Cr.App. 1984).

IMMIGRATION “FACTORY SURVEYS”

In a challenge to the Constitutionality of “factory surveys” by the Immigration and Naturalization Service, the Ninth Circuit has upheld a district court’s finding of an “evident systematic practice of Fourth Amendment violations” by the Service.

International Molders’ and Allied Workers’ Local Union No. 164 v. Nelson, 799 F.2d 547, 555 (9th Cir. 1986).

The typical administrative warrant authorized “seizure of persons ‘suspected of being aliens’.” INS conceded that the warrants could properly authorize only entry into the work place to question suspected aliens.

“Having now taken this position, INS cannot object to a permanent injunction that prohibits warrants to seize suspected aliens unless the warrants meet the particularity requirements applied to arrest warrants. To the extend the warrants authorize INS to seize employees, the Supreme Court’s holding Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), requires probable cause ‘particularized with respect to that person‘. Ybarra, 444 U.S. at 91. (emphasis added). ‘This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be’.” Ybarra, 444 U.S. at 91. International Molders’ and Allied Workers’ Local Union No. 164, 799 F.2d at 552 n.5.

CANNOT EVEN “FRISK” FOR WEAPONS WITHOUT REASONABLE SUSPICION DIRECTED AT A PARTICULAR PERSON

The Supreme Court noted in both Ybarra and Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), that officers cannot conduct even a Terry-type “frisk” or “pat-down” “unless the officers had “individualized suspicion” that said individual “might be armed and dangerous.” [emphasis supplied].

“The ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.” Ybarra, 444 U.S. at 94.

This frisk is limited to a frisk for weapons. Once the officer determines there are no weapons, further manipulation of object felt is impermissible without a showing of probable cause. Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L.Ed.2d 334 (1993).

See also U.S. v. Cole, 628 F.2d 897, 899 (5th Cir. 1980) [the “officer’s pat-down of appellant cannot be justified by [the accused’s] mere presence on the premises during the execution of the warrant”].

“This [Terry] burden was not met by testimony that the officers involved had prior information about appellant, absent proof that the information was of a sort from which an inference of dangerousness could reasonably be drawn.”  Cole, 628 F.2d at 899.

U.S. v. Sporleder, 635 F.2d 809, 814 (10th Cir. 1980); U.S. v. Tookes, 633 F.2d 712, 714 (5th Cir. 1980) [the “seizure” went far beyond the limited on-the-street frisk for weapons upheld in Terry]; U.S. v. Ward, 682 F.2d 876, 881 (10th Cir. 1982) [frisk not upheld by probable cause]; U.S. v. Clay, 640 F.2d 157, 160 (8th Cir. 1981) [appellant’s conduct alone was not suspicious where he merely hesitated and took a step or two backwards (but did not turn around) when confronted at the door by an armed man]; U.S. v. Welker, 689 F.2d 167 (10th Cir. 1982) [no probable cause for a frisk where defendant aroused police officer’s suspicions because he was a Spanish American in a black neighborhood and defendant removed a letter from a mailbox and did not act furtively]; U.S.

  1. Henke, 775 F.2d 641 (5th Cir. 1985) [probable cause to search vehicle supplied by officer’s detection of marijuana odor]; [otherwise proper stop of man based on suspicion same was involved in counterfeit money scheme did not warrant frisk without belief that man was armed and dangerous]; U.S. v. Seelye, 815 F.2d 48 (8th Cir. 1987) [officer had reasonable suspicion that man at a crowded party was carrying a gun, and his actions in grabbing him by the collar and ordering him outside at gunpoint was a stop and not an arrest requiring probable cause]; U.S. v. Lott, 870 F.2d 778, 784 (1st Cir. 1989) [a law enforcement officer who conducts a protective search of a person or vehicle must have an actual subjective suspicion that weapons are present, not merely the fact that objectively one could justify a hypothetically reasonable officer in fearing for his safety].

However, the Supreme Court has distinguished the search of one merely found on the “compact premises”, Ybarra v. Illinois, from the situation where the police have “detained” the owner or resident of a house being searched pursuant to a valid warrant, and subsequently searched his person after acquiring probable cause to place that individual under arrest. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 2590, 69 L.Ed.2d 340 (1981).

“The seizure issue in this case should not be confused with the ‘search’ issue presented in Ybarra. In Ybarra, the police executing a search warrant for a public tavern detained and searched all of the customers who happened to be present…. In this case, only the detention is at issue. The police knew respondent lived in a house, and they did not search him until after they had probable cause to arrest and had done so.”  [emphasis added]. Summers, 452 U.S. at 696.

The Court there noted that detaining one in his own home while a search of that dwelling was completed, was not a significant intrusion into one’s privacy, at least no more so that the search of that person’s domicile.

“Indeed we may safely assume that most citizens …would elect to remain in order to observe the search of their premises Moreover, because the detention of this case was in respondent’s own residence, it could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station…. If evidence that a citizen’s residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen’s privacy is justified, it is constitutionally reasonable to require the citizen to remain while officers of the law execute a valid warrant to search his home.” [emphasis supplied] Summers, 452 U.S. at 701-02, 704-05.

INFORMANTS

An informant’s tip sufficed to establish probable cause for warrantless search of defendant’s car where:

  • tip was based on informant’s personal observations,
  • agent had known informant for over 2 years and considered him reliable,
  • the tip included numerous detailed facts, and
  • much of the tip was corroborated by the

And, while there was no information as to the exact location of the contraband, probable cause to search a vehicle extends to any portion of that vehicle or containers located therein, including a zippered bag found containing another locked nylon bag in which the contraband was found.

But, if the informant is emotionally disturbed, and is under arrest when he gives the information, and has given false information in the past, the information may not be used to support a finding of probable cause. U.S.

  1. Atkinson, 653 F. Supp. 668 (S.D.N.Y. 1987); U.S. v. Reyes, 792 F.2d 536 (5th Cir. 1986) [informant’s tip may also be corroborated by police].

However, when there is no indication that the informant is reliable then a substantial basis for determining probable cause does not exist. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

The minimal requirements for an unnamed citizen informant include: recitation that informant has no criminal record and has a good reputation in the community. Avery v. State, 545 S.W.2d 803, 804 (Tex.Crim.App. 1977).

SEARCH INCIDENT TO ARREST

In Smith v. Ohio, 494 U.S. 541, 108 L.Ed.2d 464, 110 S.Ct. 1288 (1990), the Supreme Court held that a warrantless search which supplies probable cause for an arrest cannot be justified as a search incident of that later arrest.

“The exception for searches incident to arrest permits the police to search a lawfully arrested person and areas within his immediate control           [I]t does not permit the police to search any citizen without a warrant or probable cause so long as an arrest immediately follows.”

The Fifth Circuit has held that, where officers have probable cause, a search incident to an arrest may occur prior to the arrest, even where the arrest is de facto rather than formal. U.S. v. Hernandez, 825 F.2d 846 (5th Cir. 1987).

Maryland v. Buie, 494 U.S. 325, 108 L.Ed.2d 276, 110 S.Ct. 1093 (1990).

Distinguishing Chimel v. California, 395 U.S. 752 (1969), the Court held, in an opinion written by White, that:

“The ingredients to apply the balance struck in Terry and Long are present in this case. Possessing an arrest warrant and probable cause to believe Buie was in his home, the officers were entitled to enter and to search anywhere in the house in which Buie might be found. Once he was found, however, the search for him was over, and there was no longer that particular justification for entering any rooms that had not yet been searched.

“That Buie had an expectation of privacy in those remaining areas of his house, however, does not mean such rooms were immune from entry.    The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter     A protective sweep…occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf’. An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.

“…We are quite sure, however, that the arresting officers are permitted in such circumstances to take reasonable steps to insure their safety after, and while making, the arrest. That interest is sufficient to outweigh the intrusion such procedures may entail.

” We also hold that as an incident to the arrest the officers could, as a precautionary matter and without

probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. This is no more and no less than was required in Terry and Long, and as in those cases, we think this balance is the proper one.

“We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” Maryland v. Buie, 494 U.S. 325, 108 L.Ed.2d 276, 110 S.Ct. 1093 (1990) [footnotes omitted].

A Buie-type search, however, must be based on articulable reasons indicating that there may be a threat to the officers. U.S. v. Mata, 517 F.3d 279 (5th Cir. 2008).

Any violation of this requirement will be deemed to be waived if the suspect subsequently consents to the search.

U.S. v. Delancy, 502 F.3d 1297 (11th Cir. 2007).

But see State v. Davis, 742 P.2d 1356 (Az. 1987) [a search incident to arrest does not permit a later reading of a diary discovered during that search since the purpose of a search incident to arrest is to prevent the defendant from accusing a dangerous weapon or from destroying evidence].

But: Virginia v. Moore, 128 S.Ct. 1598 (2008) held that (1) police officers did not violate the Fourth Amendment by arresting motorist whom they had probable cause to believe had violated Virginia law by driving with suspended license, even though, as matter of Virginia law, this misdemeanor offense of driving with suspended license was one for which, under particular circumstances of motorist’s case, officers should have issued summons rather than made arrest; and (2) Fourth Amendment did not require exclusion of evidence that police officers obtained as result of search that was incident to their constitutionally permissible arrest of motorist.

Routine collection of DNA from arrestees has been found to be reasonable. U.S. v. Mitchell, 652 F.3d 387 (3rd Cir. 2011)[“As arrestees have a diminished expectation of privacy in their identities, and DNA collection from arrestees serves important law enforcement interests, we conclude that such collection is reasonable and does not violate the Fourth Amendment.”].

STRIP SEARCH OF TEMPORARY DETAINEES AND PRISONERS

A federal district court has held that reasonable suspicion, not probable cause, is the appropriate standard for conducting a strip search of an arrestee being held temporarily in a detention center, and reasonable suspicion exists where the arrestee is being charged with a felony or a misdemeanor involving weapons or contraband, or where the arrestee has prior convictions or unresolved arrests for a felony or a misdemeanor involving weapons or contraband.

Smith v. Montgomery County, 643 F. Supp. 435 (D. Md., 1986); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989)[a strip search of a person arrested for traffic violation or other minor offense not normally associated with violence (absent reasonable suspicion that the arrestee is carrying or concealing a weapon or other contraband) is unreasonable].

However, in a recent case decided by the Supreme Court of the United states, Florence v. Board of Chosen Freeholders of the County of Burlington, 132 S.Ct. 1510 (2012), Justice Anthony M. Kennedy, writing for a 5-4 majority, affirmed the lower court, holding that the strip searches for inmates entering the general population of a prison do not violate the Fourth Amendment. The Court concluded that a prisoner’s likelihood of possessing contraband based on the severity of the current offense or an arrestee’s criminal history is too difficult to determine effectively. The Court pointed out instances, such as the arrest of Ted Kaczynski, in which an individual who commits a minor traffic offense is capable of extreme violence. Correctional facilities have a strong interest in keeping their employees and inmates safe. A general strip search policy adequately and effectively protects that

interest. The Court did note that there may be an exception to this rule when the arrestees are not entering the general population and will not have substantial contact with other inmates. Further, the Court is careful to note that a petitioner alleging such searches are illegal must demonstrate with “substantial evidence” that the court should not defer to the institution’s judgment because their response to the issue is exaggerated. Id (citing Block v. Rutherford, 104 S. Ct. 3227 (1984)).

DEMAND THAT VISITORS COMING INTO A JAIL UNDERGO BODY CAVITY SEARCHES HELD UNCONSTITUTIONAL

Blackburn v. Snow, 771 F.2d 556 (1st Cir. 1985) [the Fourth Amendment prohibits a correctional institution from requiring that any person wishing to visit an inmate first submit to a highly intensive strip search].

PROBABLE CAUSE TO ARREST OR SEARCH IS SUM OF SHARED INFORMATION

See Woodward v. State, 668 S.W.2d 337 (Tex.Crim.App. 1984) [where there has been some cooperation between law enforcement agencies or between members of the same agency, the “sum of information known to the cooperating officers at the time of an arrest or search by any of the officers involved is to be considered in determining whether there was sufficient probable cause” therefore, the court upheld search incident to arrest despite fact that BOLO (be on the lookout) officer acted, upon warrant issued by police in another city, lacked probable cause for arrest].

See also Whitely v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

MUST BE COMMUNICATION BETWEEN OFFICERS

Martinez v. State, 635 S.W.2d 629 (Tex.App.-Austin, 1982) [“[i]n determining whether reasonable suspicion exists, the cumulative knowledge of all the officers working on the case, rather than the information possessed by the officer who made the stop, is considered where there has been some degree of communication between them”]; U.S. v. Michel, 588 F.2d 986, 998 (5th Cir.), cert. denied, 444 U.S. 825 (1979) [emphasis supplied].

SEIZURE OF BLOOD

As defendant was involved in unexplained single car accident and smelled of alcohol, officer had probable cause to believe the defendant had been driving while intoxicated and therefore could, in compliance with Fourth Amendment, request blood sample be taken from unconscious defendant. U.S. v. Berry, 866 F.2d 887 (6th Cir. 1989).

DRUG TESTING CONSTITUTES A SEARCH

In two cases decided the same day, the Supreme Court upheld drug testing in the work place after finding same constitutes a search subject to Fourth Amendment protections. Skinner v. Railway Labor Executives Ass’n., 489 U.S. 602, 103 L.Ed.2d 639, 109 S.Ct. 1402 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L.Ed.2d 685, 109 S.Ct. 1384 (1989).

STRIP SEARCHES IN JAILS

 County jail and prison officials can strip search inmates entering their facility, irrespective of the severity of the offense, without probable cause or reasonable suspicion. Florence v. Board of Chosen Freeholders of County of Burlington, 135 S. Ct. 1510 (2012). This ostensibly extends to body cavity searches as well. Id at 1520 (“Something small might be tucked or taped under an armpit, behind an ear, between the buttocks, in the instep of a foot, or inside the mouth or some other body cavity.”).

BODILY INTRUSIONS

Police officers did not violate the Fourth Amendment by assisting medical personnel in the warrantless administration of a laxative to an arrestee who the officers had seen swallow a baggie of suspected heroin, the Wisconsin Supreme Court held. After determining that the administration of the laxative and subsequent search of the defendant’s stool were covered by the “search incident to arrest” exception to the warrant requirement, the court applied a balancing test to determine the reasonableness of the search’s intrusion on the defendant’s bodily integrity. See State v. Payano-Roman, 714 N.W.2d 548 (Wis. 2006).

However, other forms of bodily intrusion, such as a blood draw in a Driving While Intoxicated investigation, are covered by the 4th Amendment’s warrant requirement. Missouri v. McNeely, 133 S. Ct. 141 (2013). Furthermore, while exceptions to the warrant requirement may apply, such as exigent circumstances, the mere fact that drugs and alcohol metabolize and are ultimately eliminated from the body cannot in and of itself form the basis for applying the exigency exception. Id at 1568.

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