The Evolution of the Consent Search Doctrine

Posted on February 6, 2015 by Chuck Ramsay

Series: The Evolution of the Consent Search Doctrine

As we mentioned in our previous post in this series, the consent search exception to the Fourth Amendment warrant requirement is a relatively recent, judicially-crafted doctrine. Tracing its evolution—or should I say, devolution—reveals a gradual but steady shift away from actual consent (as the right of every individual) toward “consent” as “any cooperation with law enforcement in the absence of extreme and obvious coercion.”The consent search exception has devolved into a law enforcement tool used liberally and intentionally by the authorities to pressure or trick individuals into doing what they are told. 

Our decisions in this case and in [State v.] Dezso represent what I believe will be an ongoing attempt to come to grips with the increasing use by state troopers and police officers of subtle tactics to get motorists and others to “consent” to searches. It appears state troopers and police officers are receiving training on getting “consent” to search, similar to the training sales people receive in getting people to agree to buy things they do not want. One technique is to ask the defendant a question along the following lines: “You wouldn't mind if I looked in the truck, would you?” If the person says “no,” the officer searches. Consumer protection laws provide some protection to consumers who, as a result of sales pitches from sales people, “consent” to purchase products they do not want. We are not dealing with vacuum cleaners in this case but with the liberty and privacy interests of all the people of the State of Minnesota, and we have an obligation to ourselves and to the Constitution of this State to do what we can, in our limited role as a court of last resort, to provide reasonable protection to those interests.

Justice Tomljanovich’s foresight was 20/20. In the year and a half since the Minnesota Supreme Court’s ruling in State v. Brooks, the legitimacy of the consent search exception—at least in the DWI context—has been eviscerated. We have been unable to find a single case where the Court of Appeals affirmed the District Court’s finding of coercion in the DWI context. Not when the driver told the officer he did not consent, and not even when an individual had been attacked by police dogs just prior to allegedly giving consent. Equally distressing is the recent attempt by the Minnesota Court of Appeals, in State v. Bernard, to revive the long dead “hypothetical warrant doctrine,” which essentially nullifies the Fourth Amendment warrant requirement by cutting out the pre-search review of probable cause by a neutral magistrate.How did we get here? Historically, Minnesota courts have construed the consent search exception to the warrant requirement more narrowly than the United States Supreme Court. In cases decided in 1969 (State v. Mitchell), 1970 (State v. High), and 1999 (State v. Harris) , the Minnesota Supreme Court found that just the arrest—and even a pre-arrest seizure—of a suspect pretty much ruled out any “free and voluntary consent.” Their logic was simple and direct: once law enforcement has asserted its authority over you, law enforcement has authority over you. They have guns, tazers, chemical spray, retractable batons, and the training in how to use them; you have the duty to obey, to let them order you around, take your shoes and wallet, and lock your hands behind your back. The imbalance of power is inherently coercive, and it is the court’s duty to protect individuals from abuse of government power. Decades worth of Minnesota judges enforcing the protections of the Fourth Amendment didn’t just happen in a vacuum. The Court’s decisions in Mitchell and High came in the wake of the federal government’s 1967 mandate that all states implement an implied consent law. Imagine the justices’ jaws dropping; what could be more ridiculous than finding that an individual gave free and voluntary consent when that “consent” was created by the legislature and automatically given when the individual got behind the wheel? Again, lest some take offense, the Court said it best in 1976, in Prideaux v. Dept. of Public Safety: 

The obvious and intended effect of the implied-consent law is to coerce the driver suspected of driving under the influence into ‘consenting’ to chemical testing, thereby allowing scientific evidence of his blood-alcohol content to be used against him in a subsequent prosecution for that offense.

Those scare quotes around the word “consenting?” Those were added by the Supreme Court . . . the same Supreme Court that, approximately 37 years later, decided that the “obvious and intended effect of the implied-consent law” is to “make it clear to drivers that they have a choice as to whether to submit to testing.” That’s quite a turnaround.So, we’ve seen the concept of “consent” evolve slowly over the course of decades, before seeing a sudden, radical redefinition of the concept in 2013. Before Brooks, putting a suspect in handcuffs was often enough to render any consent involuntary, and reading a driver the Implied Consent Advisory was “obviously coercive.” After Brooks, neither of those factors appear to matter.So what does matter? We’ll discuss that in the next post, when we analyze Minnesota’s New Standard for the Consent Exception to the Fourth Amendment: State v. Brooks. Trackbacks (0) Links to blogs that reference this article Trackback URL
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HOLD THE PHONE…BUT DON’T SEARCH IT WITHOUT A WARRANT

If a driver is pulled over and charged with a criminal offense, can the police search through the data on the driver’s cell phone? That question was recently addressed by the United States Supreme Court. The case does not directly involve a DUI/OVI, but it’s definitely worth reporting in this blog. This is a significant case in the area of search and seizure law, and there are frequently search and seizure issues in DUI/OVI cases.

The case is Riley v. California. Riley was stopped for a traffic violation, and he was ultimately arrested for a weapons charge. After Riley’s arrest, an officer searched Riley and seized his cell phone from his pants pocket. The officer accessed information on the phone and observed the repeated use of a term associated with a street gang. Later, at the police station, a gang unit detective looked through the digital contents of the phone. The detective found photographs and videos connecting Riley to a gang and implicating Riley in a gang-related shooting.

Riley’s motion to suppress the evidence from his cell phone was denied. The cell phone evidence was used to convict Riley and was also used to enhance Riley’s sentence based on his gang membership. Riley appealed, and the case made its way to the United States Supreme Court. The Court held that police may not search information on cell phones without a search warrant.

The Supreme Court’s reasoning was straight-forward. Individuals have a right to be free from unreasonable searches. A warrantless search is unreasonable unless it falls within a specific exception to the warrant requirement. The only exception that may apply to this situation is the ‘search incident to arrest’ exception: after a person is arrested, police may search the area within the arrestee’s immediate control. The rationales for the exception are officer safety and preventing destruction of evidence, and those rationales do not apply to the data contained in the cell phone.

The Court observed that, compared to other objects which may be seized in a search incident to arrest, cell phones are different both quantitatively and qualitatively. Quantitatively, cell phones’ huge storage capacity and ability to access additional storage make them capable of accessing enormous amounts of text, photos, and videos. Qualitatively, many people “keep on their cell phones a digital record of nearly every aspect of their lives”. As searching the information contained on a cell phone is a significant intrusion on the owner’s privacy, a cell phone may be seized incident to arrest, but accessing the data on the phone requires a search warrant. The opinion, written by Chief Justice Roberts, implies the Court would extend the warrant requirement to data stored in the cloud.

The Court’s unanimous decision in Riley is a refreshing recognition by the Court that search and seizure law must develop with changing technology. The government argued that warrants aren’t necessary because government agencies could develop protocols to address privacy concerns. In response, Chief Justice Roberts underscored the high value Americans place on privacy: “the founders did not fight a revolution to gain the right to government agency protocols”.

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Texas Finds Per Se DWI Search Statute Unconstitutional

Posted on August 15, 2014 by Jud Nichols

If we told you Texans were smarter than Minnesotans, you would laugh all the way to the Alamo.

That is, perhaps, unless you happened to stumble upon the recent Texas Supreme Court Decision of Aviles v. The State of Texas. In the wake of last year’s Missouri v. McNeely decision, the various States have all been given their own opportunity to interpret exactly how to protect the constitutional rights of drivers suspected of being impaired–and Texas decided to respect the rights of those drivers, rather than to water them down.

In Aviles v. The State of Texas, the Texas Supreme Court held the state’s warrantless search of Aviles’s blood to be without an exception, and therefore, unconstitutional. The procedural background of the case parallels Brooks in that Aviles was remanded from the U.S. Supreme Court be decided in light of McNeely.

The facts of Aviles are pretty straightforward: after Aviles was arrested for DWI, the officer brought up his laptop and discovered Aviles had two prior DWI’s. Bingo! The officer no longer needed a warrant because of a Texas statute permitting a police officer “to take a blood specimen from DWI suspect without a warrant if the officer has credible information that the suspect has been previously convicted on at least two prior occasions of DWI.”

Before forcing a blood draw, however, the officer asked Aviles if he would voluntarily submit to a breath or blood test. Interesting question because two aspects of it further distinguishes Texas from Minnesota: (1) there was no urine test offered because they do not withstand scientific scrutiny to be allowed in court; and (2) the officer, attempting to elicit valid consent, used the word “voluntary” because it must be free and voluntary to be legal consent—a question never asked in Minnesota DWI cases.

But, Aviles declined the warrantless search (yet another distinguishing aspect: he wasn't automatically charged with a crime). Herein lies the crucial moment: there is a failed attempt to elicit consent for a warrantless search that does not seem to have an exception. Does the officer have to get a warrant?

The officer took a test against Aviles’s will, relying on the Texas Statute for the “two prior convictions” exception. But does McNeely leave room for such a per se exception? The Texas Supreme Court said “no.” The court instead held that the state must take into account the totality of the circumstances present in each case, specifically noting that “it was incumbent upon the State to prove the warrantless blood draw was reasonable under the totality of the circumstances.”

Texas’s conclusion is the polar opposite of the one reached by our own Court of Appeals in Bernard (a case which is currently being reviewed by our own Minnesota Supreme Court). Let’s hope that Minnesota follows the lead of Texas, and everyone can start chanting “Don’t Mess With the Constitution.”

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North Andover Coach Is Arrested For Child Pornography And May Be Defeated By Search And Seizure Trap – Attorney Sam’s Take

While it is true that the duties of a good coach exist both on the field and off, North Andover 60-year-old high school wrestling coach David Castricone (hereinafter, the “Defendant”) has learned that they do not extend to the locker room.

The locker room of the opposite sex, at least.

That’s how suspicion apparently began in the Defendant’s case. He has been One of the most successful high school wrestling coaches in Massachusetts. The only thing is, there were questions about him. For example, why was he constantly being found in the girl’s locker room?

Police say that information was received last week that prompted a search of the Defendant’s home. According to court documents, the Defendant "got nervous" as police searched his attic. He then told his daughter to leave the kitchen.

The police say that he then waived his rights and told police he had pornography in the attic,.

When asked to describe the pornography, the police say that he stated he had pictures of girls.

A police report filed in court says investigators found pictures of girls who appeared to be unaware that they were being photographed

The Defendant has pleaded not guilty to a charge of possessing child pornography. He was released on $1,500 bail from Lawrence District Court.

He has resigned his position in the school,

Over the past 25 years or so, I have investigated, prosecuted and defended many sex crimes cases.

Lately, there seems to have been an increase in child pornography casesThis should send warning shots over the bow of anyone who regularly works around kids. The message is that any reason for suspicion can be a career and liberty-ender. Let’s face it. Even assuming the Defendant is found to be not guilty at trial, his career at schools, no matter how successful, is over. If the result after trial is different, he is likely to be looking at involuntary Commonwealth housing.

While the school has gone on record to assure parents that none of their kids are in the photographs, the fact is that the rest of us do not really know…yet. The fact that the girls in the pictures look like they are unaware of the camera is not conclusive. The internet is full of pictures that have been posed for in the guise of being unaware of the camera.

Clearly, if girls from the school are in the pictures, the Defendant has a host of problems. Not only will the age-range be easily established, but there will likely be charges other than the fact that they are child pornography. It is illegal to hide a camera in such a location and film unsuspecting people. If not, it might be a different story.

“What do you mean, Sam? I mean, after all, he was nervous when talking to the police about it.”

Wouldn’t you be…even if you had no pornography, illegal or otherwise?

“And he had his daughter leave the room”.

Many men would prefer not to talk pornography with police officers in front of their kids.

By the way, you might notice there is no word of a warrant in this case. It would seem that the Defendant could have refused to talk to the officers or let them into the house.

So why did he?

“Fear of losing his job otherwise?”

Maybe. But then, if the pictures were discovered, that was clearly going to happen anyway.

As we have discussed many times, investigating police officers can be persuasive. Further, some people have greater faith in their abilities to convince police officers than they ought to be…!

You may be one of the cleverest people in the world...but police officers do this for a living. Chances are...they are going to be better at it than you. In other words, you are better off not playing the mind games with investigators. Contact an experienced criminal defense attorney at the first opportunity and let hin or her advise and, if necessary, defend you.

After all, we handle these situations for a living too.

If you would like it discuss a criminal matter with me, please feel free to call me to arrange a free initial consultation at 617-492-3000.

To view the original story upon part of this blog is based, other than radio (1030 am) accounts, please go to : http://www.bostonherald.com/news/regional/view.bg?articleid=1316916&srvc=rss

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Framingham Police Execute Search Warrant In Drug Case And Shoot 68-Year-Old Resident- Attorney Sam’s Take

Yesterday, we discussed that tragedies sometimes result from mistakes made by human beings. Yesterday, it was the Parole Board. Today, authorities are investigating a police-involved shooting in Framingham yesterday morning that has left a 68-year-old man dead, the Middlesex District Attorney’s office has announced. The word “homicide” has not been used…yet..

It all began when Framingham police detectives and members of the Framingham Police SWAT Team gathered together at 26 Fountain Street. at about 12:30 a.m. in order to execute a search warrant that had been issued for narcotic offenses, according to the DA.

What happened next is a little hazy, as it often is when police shoot someone.

Apparently, the search warrant was being executed, as planned, but something somewhere went wrong. Initial reports (aka all we are being told thus far) indicate that a bullet was “discharged” from the Framingham Police Department-issued weapon of a SWAT Team member.

In civilian parlance, one of the officers fired his gun.

The bullet struck one of the residents, according to the statement. The resident was 68-year-old Eurie Stamp. He was taken to Metro West Medical Center, where he was later pronounced dead.

No public outcry about this particular mistake…at least, not yet.

Two other men, Joseph Bushfan and Devon Talbert, both 20, were arrested at the scene on charges of possession with intent to distribute a class B drug and drug violation in a school zone.
.
The investigation into the circumstances of the shooting continues and further
details, including the name of the officer involved, will be released upon
completion of the investigation, the DA’s office said.

Yes, well we know how that goes. In the meantime, some other witnesses, not dressed in blue, are not waiting for the end of the official investigation to voice their concerns.

"Framingham police came into the house and shot my father. I don't know why or what or what the purpose was," said Marlon Stamps, the victim's son. "If you have my mother in handcuffs in the police car, you have my brother in the police car, and you have my cousin in the police car, why are you shooting my father?" he asks.

Another Framingham resident, Dwayne Barrett is also somewhat confused. "Eurie was laying in the bed and they said somehow the gun just discharged. I am not sure how a gun can just discharge, but that is what they are saying," he relates.

Meanwhile, Framingham District Court Judge Robert Greco has ordered Bushfan held on $5,000 bail and has released Talbert on personal recognizance.

From The Trenches:

You don’t really have to be an experienced Boston Criminal Defense Attorney to get the idea that there is something wrong with this picture. But it helps.

You see, those involved on a regular and long-term basis with the criminal justice have seen things happen. Odd things. Things we were brought up believing do not take place. Many of these things involve the sanctity of police officers and their sometimes overly-valued testimony in court.

Of course, I have no personal knowledge about the lethal execution of this search warrant and, without question, moving in on the drug trade is a dangerous business. Things happen out there…things that sometimes never come to light…or come to light only surrounded by a blurry blue haze.

The clarity of the truth of what happened is usually determined by the good folks investigating and determining the truth.

Kind of like most criminal cases.

After that, it is up to attorneys like me to try to sort it out and give whomever turns out to be accused of wrongdoing a chance to stand up against whatever “truth” is determined.

Often, a lot of work goes into the preparation of said “truth”.

That is why you need an advocate with experience, skill and, yes, determination.. Being a former prosecutor or police officer does not hurt either.

If you would like to discuss such a matter with me, I can be reached quite easily. Just call me to arrange a free initial consultation at 617-492-3000.

To view the original story in which parts of this blog were based, please go to : http://www.boston.com/yourtown/news/framingham/2011/01/man_68_is_fatally_shot_in_fram_1.html?p1=News_links and http://www.thebostonchannel.com/news/26375629/detail.html

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