Home » Police Practices » Search and Seizure

Category Archives: Search and Seizure





Subscribe to receive notifications of new posts by email.

Don’t Touch That Baggie!

Patrol officers bring in an individual arrested for felony drug possession. While processing him for housing, jail deputies run into a problem when the time comes for the visual cavity search. The subject complies with directions to strip, but when instructed to bend, spread and cough, he instead moves his hand toward his right buttock in an apparent attempt to push an item inward. After a struggle, deputies lean the inmate against the wall, bracing his body in such a manner that he ends up being bent over. At that point they see what appears to be a plastic bag partially protruding from subject’s rectum. What do they do now?

Call for a warrant says the Ninth Circuit, because simply removing the bag violates the Fourth Amendment. The opinion can be accessed here.

U.S. Supreme Court turns thumbs down on blanket rule allowing warrantless DWI blood tests

I hated English class when I was in school.  Diagraming sentences and picking apart the meaning of books seemed like an exercise in missing the forest for the trees.  So I became a lawyer, where I pick apart people’s testimony and courts’ opinions. Go figure!

I’m reminded of this by this morning’s U.S. Supreme Court opinion in Missouri v. McNeilly, which rejected the argument that the natural dissipation of alcohol in the blood stream always creates the type of exigent circumstances that justify a warrantless blood test of a suspected drunk driver.  It’s another one of those Supreme Court decisions with multiple concurrences that requires you to diagram which justices agreed with which parts to fully understand the opinion.

To save you the trouble, a majority of the justices agreed in Missouri v. McNeilly that the dissipation of alcohol in the bloodstream could create exigent circumstances; it just didn’t in this case.  They also dropped a broad hint on how to show exigency in future DWI cases:

“[T]he fact that a particular drunk-driving stop is ‘routine’ in the sense that it does not involve ‘special facts,’ such as the need for the police to attend to a car accident, does not mean a warrant is required. Other factors present in an ordinary traffic stop, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search. The relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon the circumstances in the case.”

Interesting Twist on When Oregon Law Enforcement Must Return Seized Medical Marijuana

ORS 475.323 requires a state or local law enforcement agency to return medical marijuana it has seized if the District Attorney determines the individual from whom it was seized was “entitled to the protections” of the Oregon Medical Marijuana Act.  Such a determination need not be express, but may be evidenced by a decision not to prosecute, the dismissal of charges or an acquittal. In State v. Kama the Oregon Court of Appeals rejected law enforcement’s argument that returning medical marijuana would force it to violate the federal Controlled Substances Act.  So today’s decision by the Court of Appeals in State v. Ehrensing, reversing a court order returning marijuana, comes a bit out of left, or is it right, field! This is particularly true since this is the second time Mr. Ehrensing and the Douglas County Sheriff took this same field with the appeals court as umpire.  Last time the court called Mr. Ehrensing safe, he got his marijuana back, but only because of a fielding error.  This time the umpire called him out!

The difference this time was that the charges against Mr. Ehrensing were not dismissed by the DA.  Instead they were dismissed by the court on speedy trial grounds, which is not the same as an acquittal.  This meant ORS 475.323 did not apply.  This left ORS 133.643, the general statute applying to disputes over items seized by law enforcement.  That statute requires the party seeking return to be “lawfully entitled to possess” the property sought.  Today’s decision held that required the person to be lawfully entitled to possess the property sought under state and federal law.  Since federal law prohibited possession of marijuana by Mr. Ehrensing, he was not eligible for return under the statute.

This case leaves two issues in its wake.  First, it did not overrule Kama.  While that means Kama’s holding stands, the courts language in Ehrensing could be read as supporting an alternative basis for the court to find return under ORS 475.323 improper. Only time will tell. Second, the opinion did not address ORS 133.623 which directs law enforcement in the handling of property seized without a warrant.  That statute does not contain the “lawfully entitled to possess” language of ORS 133.643.  However, it does require the person seeking return to establish the “right to possession beyond a reasonable doubt” and “to the satisfaction of the seizing officer”. It also allows law enforcement to obtain a court order to destroy “contraband”.  These provisions make it doubtful any law enforcement agency will voluntarily return seized marijuana under this statute.

One final point. DA’s refuse prosecution of or dismiss cases for many reasons.  Under ORS 475.323  that decision should only result in the return of seized marijuana if the DA concluded the individual from whom it was seized was entitled to the protections” of the Oregon Medical Marijuana Act.  While that statute allows the court to consider the DA’s action as evidence of such a conclusion, it does not prohibit the court from considering other evidence in determining if such a conclusion was reached.  Where the dismissal is motivated by some other reason, witness availability, evidentiary problems, whatever, the DA’s office should document those reasons and oppose the return of the Marijuana.

Reichle v. Howards Revisited

I posted on Reichle when the Supreme Court issued its opinion in June  It was hoped that the court would use that case to answer the question; does probable cause bar a First Amendment retaliatory arrest claim?  Instead it avoided the issue by finding the defendants entitled to qualified immunity stating; “This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest.”  In my post I commented on the confusing Ninth Circuit case law on this issue.  That confusion may now have cleared.

Yesterday the Ninth Circuit issued its opinion in Acosta V. City Of Costa Mesa, which addressed the constitutionality of a city ordinance governing public conduct at council meetings.  It found the ordinance overly broad but upheld the ordinance by striking the offending language.

Acosta also may have cleared up the confusion addressed in my earlier post when it found that the arresting officers entitled to qualified immunity.  In doing so it cited to Reichle for the proposition that there was no clearly established First Amendment right to be free from a retaliatory arrest that is otherwise supported by probable cause.

One caution.  The Acosta court viewed this arrest as being supported by strong probable cause.  Because existing Ninth Circuit case law denied qualified immunity only where the probable cause was weak, it could be argued that the Acosta decision broke no new ground.

My prior post can be accessed here.

Does Probable Cause Trump the First Amendment; the Supreme Court Takes the Fifth

When the Supreme Court accepted review in Reichle v. Howards, it seemed the stars had aligned for a definitive ruling on the question; does probable cause bar First Amendment retaliatory arrest claims? So much for celestial alignment! The opinion issued this morning is not the big bang law enforcement was looking for. Instead, the court avoided the issue, finding that the Tenth Circuit erred in denying defendants qualified immunity due to the lack of clear precedent in that circuit.

So where does that leave law enforcement in the Ninth Circuit? In 2006 the Ninth Circuit held that probable cause does not bar retaliation claims. In light of this, courts in this circuit are unlikely to dismiss claims resulting from arrests made on weak probable cause, so long as plaintiff has some evidence to support the retaliation element of the claim. Where strong probable cause exists, the outcome is less certain. In a 2008 opinion the Ninth Circuit held that cases with strong probable cause but weak evidence of retaliatory motive fell outside circuit precedent and are properly dismissed. This suggests that the law has not developed sufficiently to provide adequate direction to law enforcement officers acting under those circumstances, making qualified immunity appropriate.

Two Big Wins for Law Enforcement

Yesterday the Supreme Court handed down its decisions in two cases I have been closely following.  Florence v. Board of Chosen Freeholders of County of Burlington, et al., addressed correctional policies that require the strip searching of individuals prior to their housing in a jails general population.  The court upheld such a policy, which was under attack on Fourth Amendment grounds. Rehberg v. Paulk addressed immunity for law enforcement officers who testify in grand jury proceedings.  The Supreme Court ruled that the same absolute immunity that trial witnesses enjoy applies to grand jury witnesses.

I will blog more on these cases after I have a chance to read them in detail.  From a quick read of Rehberg, it appears to be a big victory, with the court limiting LEO exposure to malicious prosecution claims to conduct such as providing false information when applying for a arrest warrant or to get a DA to prosecute. Florence appears to be consistent with changes in Ninth Circuit strip search standards over the last few years.  Some commentators have suggested that the opinion is not a complete victory for jail commanders, with the court leaving significant restrictions in place.  I will write further on these later.

Juggling the Fourth Amendment?

That question arises from today’s opinion in United States v. Jones.  In Jones, a divided Supreme Court found that law enforcement violated the Fourth Amendment when it placed a GPS device on a suspect’s car.  While the result was not particularly surprising, how the court got there was.

Ever since Katz v. United States, 389 U. S. 347 (1967), the court has answered Fourth Amendment questions by considering whether the government’s action invaded an expectation of privacy protected under the Constitution.  Prior to Katz, a Fourth Amendment violation arose only when the government trespassed on an individual’s person, property or papers.  In Jones, Justice Scalia reaches back 45 years and resurrects this trespass theory of Fourth Amendment jurisprudence, holding that an unconstitutional search occurred because the officers trespassed by attaching the GPS device to the suspect’s car.

The majority opinion makes clear that it is not doing away with the “privacy” branch of Fourth Amendment jurisprudence, a point Justice Sotomayor drives   home in her concurrence.  While agreeing that the Fourth Amendment protects against governmental trespass, she makes clear that the Fourth Amendment also protects against governmental intrusion on reasonable expectations of privacy, regardless of whether the government trespasses in the process.

So for now there are two balls in the air — trespass and privacy — and law enforcement must keep their eyes on both!

Update 1/25/2012

Tom Goldstein makes an important clarification in this post on the Scotus blog.  In Jones the court only decided that a search took place.  It did not address if that search required a warrant, finding that the government had failed to preserve that argument below. There are a number of exceptions to the warrant requirement and it is entirely possible that a future opinion of the court could find no warrant required for the short term use of GPS Monitoring.  Read Tom’s excellent post for more analysis.

2011 Supreme Court Preview

October 3rd marks the start of the 2011 term for the United States Supreme Court. The Court has already accepted review of cases addressing the constitutionality of strip searches of jail inmates, qualified immunity for private attorneys working for government clients and absolute immunity for law enforcement officer’s testimony in grand jury proceedings. Many more petitions are awaiting the Court’s decision on if they merit review. Click here to read The Government Litigation Blog’s 2011 Supreme Court Preview and be ready for the changes the Court has in store for state and local governments this term.

Ninth Circuit Modifies Devenpeck?

The existence of probable cause is a complete defense to false arrest claims.  Arresting officers usually know facts creating pc for multiple crimes but often arrest on only the more serious crimes.  This decision can come back to haunt the officer later if the individual beats the charges and then sues for false arrest, likely in the form of a claim for violation of civil rights.  Can the officer rely on such uncharged crimes to defend the civil rights claim?

The Ninth Circuit’s answer was a qualified yes, it allowed the officer to prevail based on pc for uncharged crimes, but only if the crime was “closely related” to one of the crimes of arrest.    This changed with the Supreme Court decision in Devenpeck v. Alford, which rejected the Ninth Circuits closely related standard.  After Devenpeck, if the facts known to the officer established pc for any crime, the arrest did not violate the suspect’s civil rights.

A recent decision out of the Ninth Circuit has again muddied this area of law.  In Rosenbaum v. Washoe County, the Ninth Circuit acknowledged that under Devenpeck it could not impose the closely related requirement, but it still placed limits on the crimes for which pc will defeat the plaintiffs claim.  The new requirement is that the uncharged crime relied upon to defend the officers’ actions must be one “reasonably within the arsenal of crimes” officers enforce.  You can read the decision here.

Oregon Recognizes Emergency Aid Doctrine

Federal Courts, and the courts of other states have long recognized an exception to the warrant requirement where law enforcement officers enter property to render immediate aid necessary to protect or preserve life or avoid serious injury.   Several cases hinted that the Oregon Supreme Court would follow suit, but ultimately avoided the question, finding the exception did not apply on the the particular facts.  Now we know the answer.

In State v. Baker, decided yesterday, the Oregon Supreme Court applied the emergency aid doctrine to uphold a trial courts denial of a motion to suppress.  To fall within this exception the officer must have an objectively reasonable belief, based on articulable facts, that a warrantless entry is necessary to either render immediate aid to persons, or to assist persons who have suffered, or who are imminently threatened with suffering, serious physical injury or harm.

Officers should keep in mind the distinction between this exception and the emergency/exigent circumstances exception, which requires probable cause.

You can read the opinion here