Search & Seizure and the Exclusionary Rule

CONSTITUTIONAL AUTHORITY

As mentioned previously, the Fourth Amendment to the U.S. Constitution holds that: “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.”

Likewise, Article 1 of the NY Constitution in §12 states that “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. “

Generally speaking, although a search can happen with or without a warrant, the law prefers a warrant, and the presumption is that a warrantless search is unreasonable UNLESS it fits into an exception to the requirement of a search warrant. We will review those exceptions later in the chapter.

VIOLATIONS AND THE EXCLUSIONARY RULE

Failure to obtain a warrant OR operate under one of the recognized exceptions are constitutional violations (state and federal), but neither constitution contains language as to how such an unconstitutional search is punished. For that reason, the court-created Exclusionary Rule became the “punishment” for an unconstitutional search in violation of the federal constitution, see Weeks v. United States, 232 U.S. 383 (1914). The Exclusionary Rule was subsequently applied to the states in Mapp v. Ohio, 367 US 643 (1961).

Use of the Exclusionary Rule as punishment for unconstitutional searches means that evidence is excluded, but not necessarily the whole case. Once applied, the prosecution then must decide if it can proceed without the excluded evidence. The rationale behind the Exclusionary Rule is to deter law enforcement from operating in violation of an individual’s constitutional rights.

SEARCH WARRANTS

Requirements for a valid search warrants are found in a combination of case law and statutory law. Those requirements include:

  • neutral, detached magistrate (judge) must issue, and the name of the issuing court must appear on the warrant see Coolidge v. New Hampshire, 403 US 443 (1971)
  • probable cause to believe that the property requested in the warrant is stolen, unlawfully possessed, used or possessed for commission or concealment of a crime, or is evidence that a crime was committed (note: sometimes NY CPL uses the term “reasonable cause” interchangeably with probable cause
  • warrant must specify what property is being sought and the place to be searched, including places, vehicles, people; in NY the warrant may also direct the search of any persons within a place to be searched (provided probable cause exits). CPL §690.15
  • warrant must be supported by oath or affirmation (the application can be either oral or in writing CPL §690.35(1)
  • warrant must be executed by the officer or class of officer named, and within ten days from issuance, and within the time frame set out in CPL §690.30, generally between 6 a.m. and 9 p.m. any day of the week. Note that special application can be made for either a “no-knock” warrant or night warrant upon a showing that circumstances require either of those.
  • warrant is returnable to the issuing court with a list of property seized

SPECIFIC ISSUES RELATED TO SEARCH WARRANTS

TOTALITY OF THE CIRCUMSTANCES As mentioned in Chapter 4, if probable cause is sought to be established through an informant, NY rules require that the informant and the offered information be deemed credible. This is the Aguilar-Spinelli two prong test. The U.S. Supreme Court has expanded the tests of information used from informant sources. In Illinois v. Gates, 426 US 213 (1983), police relied on an anonymous letter in which the writer described a large drug operation run by the defendants. Police acted on the information, obtained a search warrant and gathered information sufficient for an arrest. On challenge by the defendants that the anonymous source obviously could not be tested for credibility, the US Supreme Court eventually held that the “totality of the circumstances” allowed for establishment of adequate probable cause for the search warrant. In this manner, the Court ruled that the Aguilar-Spinelli test was just one method of corroborating an informant’s information, not the only method. New York has specifically rejected this “totality of the circumstances” test. See People v. Grimminger 71 NY2d 635 (1988).

GOOD FAITH EXCEPTION Another area in which New York Court of Appeals has carved out rules stricter than the US Supreme Court is reliance on a warrant that was improperly issued. In US v. Leon, 468 US 897 (1984) the Court was asked to determine whether to suppress evidence seized pursuant to a warrant that was issued on less than probable cause (in other words, the magistrate was wrong), but which was reasonably relied on by police executing the warrant. The US Supreme Court reversed a Circuit Court of Appeals and held that as long as the police were acting in “good faith”, the evidence should be allowed. The Court’s rationale was that the reason for the Exclusionary Rule is to deter law enforcement misconduct; if police were reasonably and honestly relying on a judge’s warrant, excluding evidence did not serve the purpose of the rule. Again, however, the New York Court of Appeals expressly declined to follow the “good faith” exception. See People v. Bigelow, 66 NY2d 417 (1983) in which the Court specifically declined to validate either the “totality of the circumstances” or the “good faith” exceptions when determining validity of property seized pursuant to a warrant.

SEARCHES WITHOUT WARRANTS

Generally, a warrantless search is authorized if it fits into an exception to the requirement that a search warrant be obtained. These exceptions include:

  • Plain View
    • Florida v. Riley, 488 US 445 (1989)– officer in helicopter flying over a greenhouse at 400 feet in the air sees marijuana plants – court holds they are in “plain view”
    • BUT, see Arizona v. Hicks, 480 US 321(1987), in which the Court ruled that if it is necessary to move or manipulate an item to get the information, it is not in plain view.
    • See also Minnesota v. Dickerson, 113 S.Ct. 2130 (1993), which extends the exception to “plain touch”. This is NOT recognized in New York (case shown in Chapter 5).
  • Search Incident to a Lawful Arrest (SILA)
    • See Chimel v. California, 395 US 752 (1969), which established the “lunge rule” for limits of an acceptable search once a suspect has been lawfully arrested.
  • Consent Search
    • Of course, if a person agrees to a search, the police are authorized to do so. See Coolidge v. New Hampshire, 403 US 443 (1971), in which a spouse’s consent in the absence of her husband was valid; however, consent by one spouse will not be valid when the other spouse is present and refuses consent. See Georgia v. Randolph, 547 U.S. 103 (2006).
  • Stop and Frisk Search
    • As noted in the material regarding levels of police authority to detain (see Chapter 4), the Supreme Court in Terry v. Ohio has authorized police to perform limited pat down searches in situations in which the officer believes there is criminal activity afoot, and there may possibly be a weapon. NY also recognizes the “stop and frisk” exception both through case law and statute, but limits the search to weapons only. Once an officer ascertains that no weapon is present, the frisk must end (even if the officer feels something he thinks may be contraband). People v. Diaz, 81 NY 2d 16 (1993). Case shown in Chapter 5.
  • Automobile Searches
    • Rules regarding automobile searches have developed separately from searches of other “places” for the simple reason that autos move; courts have recognized that by them time an officer is able to obtain a warrant, even a modern warrant by phone or electronic means, a car can be miles away. In addition, courts have also rationalized that people do not have the same expectation of privacy in a car as they would in a building. For these reasons, the rules on auto searches have developed independently of other types of searches.
    • See the following cases regarding car searches:

Carroll v. United States, 267 US 132(1925). This early auto case focused on cars used to transport illegal alcohol during Prohibition (said to be the forerunners of NASCAR racing since it was necessary to make the moonshiners’ cars more powerful and faster than police cars). Police cut into the car’s upholstery to discover the bootleg alcohol. When the defendant protested the lack of a warrant, the Court held that the car would have been long gone by the time a warrant could have been obtained and deemed it a legal search.

People v. Belton, 50 NY2d 447(1981), Belton v. New York, 453 US 454 (1981) People v. Belton, 55 NY2d 49 (1982). In an example of how the US Supreme Court and NY Court of Appeals can differ on rationale for a decision, the NY Court of Appeals initially ruled as illegal the search of the passenger area (including a zippered jacket pocket) of a car police had pulled over on the NY Thruway. On appeal, the U.S. Supreme Court allowed the search on the basis of the “incident to a lawful arrest” exception, ad sent the case back to the NY Court of Appeals or reconsideration of the issue. The NY Court of Appeals, on remand, also allowed the search, but ruled that the reason was based on the “car search” exception first announced in the Carroll case (see above).

See also: Robbins v. California, search of locked trunk; US v. Ross, 456 US 798 (1982) search anywhere in the car permissible with probable cause

Florida v. Wells, 495 US 1 (1990) inventory searches; Arizona v. Gant, the US Supreme Court pulled back on its position in the Belton case by limiting situations to times when there was a real danger of a suspect getting to a weapon, OR when there is belief that evidence related to the crime the suspect was arrested for may be in the vehicle.

  • Customs Inspections

a. There is wide latitude for inspections/searches without warrants OR probable

cause at borders.

7. Administrative Searches

    • Governmental agencies often perform inspections, such as in restaurants or in buildings, without warrants or probable cause as part of a public safety function.

ADDITIONAL CONSIDERATIONS

EXPECTATION OF PRIVACY – The Courts place great emphasis on a person’s expectation of privacy in certain situations and often the determination of procedure will turn on what a reasonable person would have expected in terms of privacy. Katz v. US, 389 US 347(1967)

STANDING – Only the person who has the rights being violated can challenge the validity of a search. For example, if the person does not own the home or have a particular reason to expect privacy there, he cannot successfully challenge a warrantless search of the premises. People v. Ponder, 54 NY2d 160 (1980), People v. Wesley, 73 NY2d 351(1989)

TECHNOLOGY CASES – The Fourth Amendment was drafted in 1787; long before the invention of simple telephones, let alone phones that are mini-computers, carried around and tracking people’s conversations, messages and even locations. The Court has struggled to keep up with rapidly evolving technology, and cases testing the limits of privacy regarding digital information will no doubt be on the docket for the foreseeable future. A summary of some of the significant contemporary technology cases follows.

Kyllo v. United States, 530 U.S. 1305 (2001) Use of a thermal-imaging camera to view a private home from a public street is a search requiring a warrant.

United States v. Jones, 565 U.S. 400 (2012) The Government’s attachment of a GPS device to a suspected drug dealer’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Note: in this case the government HAD secured a search warrant, but it had expired a day before the GPS unit was installed on the suspect’s car. Good affirmation that warrant requirements are strictly construed. Another note: In keeping with its traditionally stricter requirements, the NY Court of Appeals had ruled that a GPS unit was a search requiring a warrant three years before this decision came down from the US Supreme Court. See People v. Weaver, 12 NY3d 433 (2009), which held a GPS unit as a search requiring a warrant. The NY Court of Appeals in the Weaver decision, recognizing that it was creating a rule that did not exist at the federal level at the time, stated that its decision was based exclusively on its interpretation of the NY Constitution.

Riley v. California, 573 US (2014) (and companion case US v. Wurie) The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

Carpenter v. United States, 585 U.S. ___ (2018) Police used cell phone tower pings to determine the location of the defendant in relating to a series of break-ins and larcenies. Defendant challenged the use of this information, and in a 5-4 vote, the US Supreme Court ruled that obtaining the location information was a search requiring police to first obtain a warrant. The Court used the grounds of a person’s reasonable expectation of privacy in their personal location information.

The close votes on these decisions, the constantly changing technology, and, in fact, our relationship to that evolving technology, likely means that standards will continue to develop in this area. In the Court’s written opinions, judges express concern that the rules being made today may affect technology that is as yet non-existent, much like Thomas Jefferson could not have envisioned how the Fourth Amendment should be applied to cell phones.