HELP- Search and seizure question

[sker]

This is for an undergrad class on the criminal justice system

Assume you are a judge in MN or WI and face this case: Police arrested two young men for smoking marijuana in a fishing shake on a local lake. They had set up their shack, which had a small heater and gelectirc light powered by a generator. The shak was enclosed to keep out weather and cold. This is a public lake and popular to many ice fisherman. There were many other shaks occupied at the same time. The police had received an anonymous call simply stating that someone was "smoking dope" on the lake. The police drove to the lake and went to each shack and opened the door, until they found the defendants in this case. the defendants were no longer smoking, but there was a joint lying by the feet. The officer saw it and seized it. The boys were arrested. The the trial, the young men claimed that the police violated their 4th amendment rights.

ID the issues and make a tentative decision.

HELP, Please!

[zemog]

Let me say that I have not taken a class on this yet, but I believe the courts have ruled that probable cause, like smelling marijuana, permits a warrantless search and seizure. But I think what I heard was related to cars though.  Not sure if this extends to a house.  For a house, you may need to get a search warrant from the probable cause (again the smell of marijuana), but I don't think so. 

[lipper]

i agree with zemog that smelling marijuana would constitute probable cause, however, the cops didn't smell anything. the fact pattern doesn't say this. further, the cops opened the door to each shack. so they were not basing their decision to open the doors on the smell of marijuana, they based it on that anonymous tip, which does not give probable cause. One issue is that it is on public property, i.e. the lake. however, u can make the argument that it was reasonable for the guys to assume privacy within their shack. why else build it? of course the flip side to this argument is that the shack was not for privacy at all, it was for warmth, and therefore, u can argue that they did not reasonably assume it was private.

hmmmm, there are only 9 exceptions to the 4th amendment right against unreasonable search and seizure. however, i believe the 4th amendment only applies to private property. i dont remember all of the exceptions, but here is most of them -

Border
Automobile
Consent
Hot pursuit
S
P
Inventory (after arrest)
Exigent circumstances
S

the whole fact pattern comes down to the issue of them being on public property. I think because the shacks are intended for warmth and not privacy, put together with the fact that they were on public property, with no reasonable expectation of privacy, that the officers did not need probable cause, and only reasonable suspicion, which is a lesser standard. the anonymous tip satisfied the reasonable suspicion element, therefore their arrest is kosher.

sorry, if i rambled.

[zemog]

And that's what makes me a C and B student instead of an A student

however, the cops didn't smell anything. the fact pattern doesn't say this.

[lipper]

im right there with you bro

[allagog]

Effective Search and Seizure

by Patrick Fagan

Often at the crux of a search and seizure is probable cause - apparent and reliable facts that create a reasonable belief that a crime has been or is being committed. Officers may now be held liable for technicalities stemming from lack of probable cause. In Malley v. Briggs, the Supreme Court decided that the police are not entitled to absolute immunity from civil damages. A Rhode Island state trooper acted on a court-approved wiretap that entailed the following conversation: Caller says, "I can?t believe I was token [sic] in front of Jimmy Briggs" ? caller states he passed it to Louisa. Paul says, "Nancy was sitting in his lap rolling her thing."(p.1099) Information gleaned from the wiretap culminated with the arrest of at least twenty people but with no indictment from the grand jury. The Chief Justices ruled that the trooper had failed to establish proper probable cause to justify the affidavit. Although a judge had authorized the warrant, a reasonable police officer should have known that in this instance probable cause was insufficient. The police may no longer rely blindly on the authority of a magistrate.

In any occurrence, articulable facts must be distinguished before enacting a stop, and these facts must be expanded before a search and seizure is conducted. A person may not be immediately searched once he is detained. However, Terry v. Ohio allows for a protective patdown of a person's clothing when suspicious activity alerts the officer to some danger. Any search under Terry v. Ohio must be used to discover weapons, though, not evidence of a crime. In Minnesota v. Dickerson, the defendant was seen evasively leaving a building known for cocaine traffic. The officers ordered the man to stop and submitted him to a patdown. A lump was detected in a coat pocket and manipulated by an officer during the probe. The object was removed and identified as cocaine. This stop and patdown was ruled constitutional, but the seizure of the drug was suppressed. The officer never thought the lump to be a weapon; therefore, the continued exploration of the pocket was unconstitutional. Only after its illegal removal was the lump recognized as cocaine.

In Sibron v. New York, a patrol officer observed Sibron in a restaurant with three known addicts. Sibron was taken to the street by the officer to be questioned.. This officer had not overheard any of Sibron's conversation nor had he witnessed any exchanges between Sibron and the addicts. Nevertheless, Sibron was searched and heroin was retrieved from his pocket. The Supreme Court ruled that no probable cause existed before the search thereby derogating the officer's justification to search for weapons. Chief Justice Warren established in Sibron v. New York, "The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous."(p.1903)

To further examine the thin line as to what constitutes legal or illegal probable cause, the Supreme Court adjudicated Brown v. Texas and Michigan v. DeFillippo. In Brown v. Texas, two police officers arrested a man who refused to identify himself and explain what he was doing in an alley. The premise for the arrest was a Texas statute that makes refusal of identity and address a criminal act. However, the person must be lawfully stopped. The officers claimed that the man had been approaching another bystander but upon observing the police, he walked away in the opposite direction. Chief Burger stated, "Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant's right to personal security and privacy tilts in favor of freedom from police interference."(p.2639) The conviction was overturned.

Michigan v. DeFillippo was similar. Detroit police happened upon a man and a woman in an alley. The woman was in the process of lowering her pants. Officers requested identity from the man, which was adamantly refused. The police then conducted a patdown search, which produced the discovery of narcotics. Chief Burger claimed, "Here, the arresting officer had abundant probable cause to believe that respondent's conduct violated the ordinance. Respondent's presence with a woman in the circumstances described clearly was behavior warranting further investigation under the ordinance, and respondent's responses to the request for identification constituted a refusal to identify himself as the ordinance required."(p.2629) In this instance the conviction was upheld.

[allagog]

Automobile searches have proven controversial. Warrantless searches may be conducted when they follow a lawful arrest or when probable cause has been gathered. However, this type of investigation often incurs confusion with its applicability. New York v. Belton negated many search centered on an examination of the passengers' compartment that commenced after the occupants had been legally arrested and placed, in handcuffs, on the sidewalk. A jacket containing cocaine was then discovered inside the car. The Supreme Court found this search to be constitutional and incident to a lawful arrest. Justice Stewart declared, "Not only may the police search the passenger compartment of the car in such circumstances, they may also examine the contents of any containers found in the passenger compartment. And such a container may be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have."(p.2860) The Justice went on to define a container as "any object capable of holding another object. It includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like."(p.2864)

United States v. Ross dictated a much more extensive search. An informant gave District of Columbia police officers a drug dealer's description. The police also received information that the dealer stored narcotics in his vehicle. This vehicle was later located which precipitated the driver's arrest. An officer opened the trunk; then he seized and opened a sealed paper bag that contained heroin. The car was then driven to the local precinct where another search - detailed and warrantless - instituted more inculpatory evidence. Chief Justice Stevens edified this opinion: "Where police officers have probable cause to search an entire vehicle, they may conduct a warrantless search of every part of the vehicle and its contents, including all containers and packages, that may conceal the object of the search. The scope of the search is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. For example, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase."

The consent to search has become a very effective and important part of legal search and seizures. This investigative tool is a boon to the criminal justice system from the higher courts in that it returns limited power for conducting warrantless searches to patrol officers. It is more of a gift when one realizes that suspects often grant permission to conduct a search regardless that they are actually concealing culpable evidence. Unlike other aspects of search and seizure, the consent to search is not littered with technicalities that protect criminals; nevertheless, an improper consent must be and can be avoided with the study of several cases. The consent to search must be wholly voluntary; it may not be coerced or implied in any manner. A trooper in South Carolina received some skepticism from the Fourth Circuit Court of Appeals regarding his investigative ploy in United States v Lattimore. The trooper stopped Lattimore for excessive speed and requested consent to search Lattimore's vehicle. Permission was verbally granted by Lattimore to conduct the search, but the trooper asked him to sign a consent form, which Lattimore inevitably signed. The trooper conducted a search and discovered 95 grams of cocaine base and other drug paraphernalia.

While Lattimore and the trooper sat in the patrol car to prepare the written consent, the trooper's video camera recorded the following conversation:

Trooper: Okay, you gave me a verbal consent, ... this is written consent, okay. Let me explain this paragraph right here. Says I have [in] no way forced you, threatened you, ... or compelled you 'til [sic] I may search your vehicle. You understand that?

Lattimore: Mm- hmm.

Trooper: I need your signature or an X on the bottom. Again, it's just giving me consent.

Lattimore: On that, what's the difference on that?

Trooper: What [do] you mean?

Lattimore: If I say yes or I say no, it's still ....

Trooper: Well, let me explain something to you. I'm on a special team. I travel around the state. This is all I do. I search -

Lattimore: Uh-huh. I was watching that on . . .

Trooper: - - 97 percent of the cars I stop. It don't matter if you're 18 to 80 years old, you're black, white, red, Indian, Hispanic. I don't care what you are. That's all I do. You say you saw it on the news?

[The two discuss a television program showing highway patrol officers.]

Lattimore: Yeah, and I seen where [sic] they pulled a guy over, and they, you know, asked him the same thing you're asking me - whether they could search his car or not. And, um, what's the difference? If you do or you don't, it's gonna happen anyway, right?

Trooper: Not really. If you don't, I feel you're hiding something. Therefore, I'll call a drug dog right up the road to come down here and let him search your car.

Lattimore: That's what I'm saying. It don't really make no difference.

Trooper: Well,-

Lattimore: That's what I'm saying.

Trooper: - there's certain reasons why we do that.

Although Lattimore's conviction was upheld and his consent deemed valid, the court remained wary with part of the trooper's audio. Even if the trooper had exceeded the proper limits for requesting the written consent (the court ruled that the trooper did not exceed the proper limits), the court claimed that the oral consent had been legally established. And United States v. Thompson declared that refusal of written consent does not revoke oral consent. It was the trooper's remark concerning the "drug dog" that premised the court's skepticism. The court stated:

"In view of the Government's concession that Trooper Frock did not possess the reasonable suspicion necessary to detain Lattimore to permit the drug dog to sniff his automobile, if Lattimore had not already given a voluntary oral consent to the search, Trooper Frock's assertion that he would 'call a drug dog' to search the automobile if Lattimore refused written consent would raise serious questions concerning the voluntariness of his consent."

Lattimore had also claimed that his detention was illegal because he was stopped for a traffic violation and that the trooper had no adequate probable cause to investigate for additional criminal activity. The court disagreed because the trooper requested consent after the citation was issued and the ensuing conversation was consensual. Thus, the court believed that Lattimore was not being detained and that a reasonable person would have felt free to decline the trooper's request.

In Bumper v North Carolina, the police were not as fortunate -- the consent given was gained by coercion. The petitioner's grandmother, Mrs. Leath, was approached by four law enforcement officers and informed that they had a warrant to search her residence. The warrant was not read to her and she never saw this warrant; however, she allowed the police to conduct a search that eventually produced incriminating evidence. At trial, the prosecution asserted that although the police had a search warrant, the search was conducted based on Mrs. Leath's affirmative consent. The Supreme Court did not concur:

"When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by [391 U.S. 543, 549] showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, [391 U.S. 543, 550] or fails to show that there was, in fact, any warrant at all. When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion - albeit colorably lawful coercion. Where there is coercion there cannot be consent."

[allagog]

Mistake of law is discussed in United States v Whitfield. Whitfield's mother refused to sign a written consent form but allowed FBI agents to conduct a search of her son's room. The agents had confirmed that Mrs. Whitfield owned the home, her son was not paying rent, and his bedroom door was not locked. Accordingly, the agents believed that they had received a legal consent. The Circuit Court of D.C. disagreed, however. This appellate court proclaimed that although the agents truly believed Mrs. Whitfield could give an affirmative consent, the agents had misinterpreted the law in this situation because the mother had no authority to allow a search of her son's room.

Mistake of fact is discussed if Illinois v. Rodriguez. Rodriguez had apparently beaten his girlfriend, Ms. Fischer, who had called the police from her mother's house. Ms. Fischer told the police that Rodriguez was at their apartment and took the police to it. She took a key from her purse, unlocked the door, and let them in. In the process of arresting Rodriguez, the police observed -- in plain view -- cocaine and other drug paraphernalia. It was learned at trial that Ms. Fischer had not lived at Rodriguez's apartment for at least a month, she had never contributed to the rent, and she never told Rodriguez that she had a key to his apartment. The Supreme Court held that these instances were mistakes of fact and that the police reasonably believed Fischer could give a legitimate consent.

A similar situation developed in People v Kramer. Because Kramer was past-due three months with his rent, his landlord entered Kramer's apartment and noticed marijuana plants within. Upon arrival, the police were immediately taken to the apartment; subsequently, Kramer was arrested. The appellate court ruled that the police only assumed the landlord had legal access to the apartment. Since landlords cannot usually assent to a search of a tenant's property, the police officers' assumption was a mistake -- a mistake of not gathering enough facts. The court warned that "police officers may not always accept an invitation to enter premises. Even if the consenter claims to live on the premises, the officers must make further inquiry if the surrounding circumstances would raise a doubt of that claim."

Search and seizure is a powerful tool for law enforcement but one that any person would take as a personal affront. Law enforcement personnel must be educated with the legal and illegal procedures of this investigatory process for the legislature views this intrusive method seriously. In 1995, a measure was introduced to the House of Representatives that would provide the Fourth Amendment with an addition regarding search and seizure. This bill would have allowed unlawfully seized evidence to be considered in court if police had a reasonable belief that they were acting legally. The bill was rejected with a vote of 303 to 121.

Search and seizure of the individual and of the automobile is a complex issue in which the rules seem to change often. The United States Supreme Court decisions involving the Fourth Amendment purport to guide police conduct. Notwithstanding, the police should accept the Court's determinations as a learning tool and continually educate themselves.

[lincolnsgrandson]

The purpose of the question, if it were on a crim pro exam, is to ask whether their "shack" was a home for purposes of the Fourth Amendment (it's probably not, but you'd have to look more carefully at the case law). If so, the search must be pursuant to a warrant supported by probable cause. 
If it's a home, and they don't have a warrant, they only way to justify a warrantless search is by exigent circumstances.  That justification fails.  They can't get rid of the dope in their shack, right?