By Elia V. Pirozzi
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The objective of this article and self-study test is to review the principles and recent case authority concerning the Fourth Amendment's exclusionary rule. In this installment, readers will learn about the requirements for exclusion under the Fourth Amendment and the concepts applicable to searches and seizures with and without a warrant. Subsequent installments will examine the exceptions to the warrant requirement and remedies for Fourth Amendment violations.
The Fourth Amendment to the U.S. Constitution provides 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." This prohibition against unreasonable searches and seizures is enforced by an "exclusionary rule," which prohibits the introduction of evidence in criminal trials when obtained in violation of the Fourth Amendment. Herring v. U.S., 555 U.S. 135 (2009). The Fourth Amendment's protections are applied to the states through the due process clause of the 14th Amendment. Mapp v. Ohio, 367 U.S. 643 (1961).
Overview of the Exclusionary Rule
A Fourth Amendment violation occurs if (1) evidence was discovered or obtained by a "search" or "seizure," and (2) the search or seizure was "unreasonable."
A search occurs under the Fourth Amendment when an individual's constitutionally protected area or reasonable expectation of privacy is intruded upon by the government. Florida v. Jardines, 133 S.Ct. 1409 (2013).
(1) Constitutionally protected area or reasonable expectation of privacy. The house (including the curtilage), papers, and effects of a person are considered constitutionally protected areas. Jardines, 133 S.Ct. at 1414-15; U.S. v. Jones, 132 S.Ct. 945 (2012). When a physical intrusion upon these areas occurs, consideration of the person's reasonable expectation of privacy is unnecessary (the "reasonable-expectations test 'has been added to, not substituted for,' the traditional property-based understanding of the Fourth Amendment"). Jardines, 133 S.Ct. at 1417 (front porch entry with drug detection dog); Jones, 132 S.Ct. at 950 n.3 (GPS tracker placed on automobile in public parking lot). Alternatively, a person must have a reasonable (or "legitimate") expectation of privacy in the place, object or activity subject to intrusion before a Fourth Amendment "search" arises. Katz v. U.S., 389 U.S. 347 (1967) (recording of person's words in phone booth). A person has a reasonable expectation of privacy when she (a) exhibits a subjective expectation of privacy, and (b) that expectation of privacy is one society recognizes as reasonable. Id. at 361 (Harlan, J., concurring); Kyllo v. U.S., 533 U.S. 27 (2001).
The reasonableness of a person's expectation of privacy is evaluated under a "totality of the circumstances" test. See, e.g., Samson v. California, 547 U.S. 843 (2006). Among the salient factors are whether the person (a) has a possessory interest in the thing seized or place searched, (b) has the right to exclude others from that place, (c) has exhibited a subjective expectation that it would remain free from governmental invasion, (d) took normal precautions to maintain his privacy, and (e) was legitimately on the premises. In re Rudy F., 117 Cal. App. 4th 1124 (2004).
(2) Intrusion. There must be a physical intrusion upon a person's constitutionally protected area or an intrusion into a person's reasonable expectation of privacy. See Jardines, 133 S.Ct. at 1417-18; Jones, 132 S.Ct. at 950. A physical intrusion onto a protected area alone is not a "search" under the Fourth Amendment unless coupled with an attempt to gather or obtain information. Jardines, 133 S.Ct. at 1414 (information collected on a marijuana grow); Jones, 132 S.Ct. at 950 n.3 (information from GPS tracker). An intrusion on a person's reasonable expectation of privacy may be physical or nonphysical. Katz, 389 U.S. at 353 (Fourth Amendment's reach "cannot turn upon the presence or absence of a physical intrusion"); see also Kyllo, 533 U.S. at 35 (thermal imaging of home from public street).
(3) Government action. A search occurs only when the intrusion is the consequence of "state action." U.S. v. Jacobsen, 466 U.S. 109 (1984); People v. Otto, 2 Cal. 4th 1088 (1992). A search by a private citizen, however, may constitute a search under the Fourth Amendment if he acts as an instrument or agent of the government. Coolidge v. New Hampshire, 403 U.S. 443 (1971). Generally, the exclusive intent of the private citizen in assisting the government in its investigatory or administrative functions is critical to the analysis. U.S. v. Attson, 900 F.2d 1427 (9th Cir.1990). Mere knowledge or "passive acquiescence" of government agents to the actions of private individuals is insufficient. People v. Wilkinson, 163 Cal. App. 4th 1554 (2008). The government must also participate, affirmatively encourage, or initiate the private action. Id. at 1566.
A "seizure" of property occurs under the Fourth Amendment when there is some "meaningful interference" with an individual's possessory interests in the seized property. Jones, 132 S.Ct. at 951 n.5; Jacobsen, 466 U.S. at 113. A "seizure" of a person can only occur when the police either arrest or detain an individual. Terry v. Ohio, 392 U.S. 1 (1968). Generally, there are three forms of police interaction with private citizens: (1) formal arrests or comparable restraints on liberty, (2) a temporary detention, and (3) a consensual encounter. Although a detention of a person is a seizure, police officers are constitutionally permitted to approach an individual in a public setting and ask a few questions. Florida v. Bostick, 501 U.S. 429 (1991). Often referred to as a "consensual encounter," law enforcement officers may converse with an individual and request information, assistance or identification provided a reasonable person would believe he was free to leave or terminate the conversation. Florida v. Royer, 460 U.S. 491 (1983) (White, J., plurality opinion). The test involves whether, given the totality of circumstances, police conduct would have communicated to a reasonable person that he was not at liberty to walk away or terminate the encounter. Bostick, 501 U.S. at 439; Wilson v. Superior Ct., 34 Cal.3d 777 (1983). Situations where the police maintain a threatening presence with several officers, brandish a weapon, physically touch the suspect, or exhibit a demeanor or tone suggesting that his compliance with the officer's request is compulsory are indicative of a "seizure." U.S. v. Mendenhall, 446 U.S. 544 (1980); In re Manuel G., 16 Cal. 4th 805 (1997).
Search of Seizure Must Be "Unreasonable"
A search or seizure violates the Fourth Amendment only if it is unreasonable. Michigan v. Fisher, 130 S.Ct. 546 (2009). The question of reasonableness is generally predicated on whether the search or seizure was facilitated with or without a warrant.
Searches and Seizures Under Warrant
Generally, a search or seizure of property is reasonable if based on a valid and properly executed warrant. People v. Cook, 22 Cal. 3d 67 (1978). A search warrant must (1) be issued by a neutral and detached magistrate, (2) be based upon probable cause supported by a sworn affidavit, and (3) describe with sufficient particularly either the place to be searched or the person or things to be seized. See Groh v. Ramirez, 540 U.S. 551 (2004); Coolidge, 403 U.S. at 449. Probable cause, as shown by the affidavit, involves a totality of circumstances analysis as to whether there is "a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213 (1983). A search will be deemed unreasonable when a warrant is executed improperly or the search exceeds the precise scope of its authorized intrusion. Cook, 22 Cal. 3d at 98. Other items in plain view may be seized under a valid warrant provided "the incriminating character of the items as contraband or evidence of a crime is immediately apparent" and the officers are lawfully located where the items are observed. People v. Kraft, 23 Cal. 4th 978 (2000).
Warrantless searches are per se unreasonable, subject only to "a few specifically established and well-delineated exceptions." Arizona v. Gant, 556 U.S. 332 (2009). In conjunction with these exceptions, the U.S. Supreme Court has periodically employed "a test of reasonableness" in determining the constitutionality of a warrantless search. See Coolidge, 403 U.S. at 474-75. This standard of reasonableness balances the necessity for the search or seizure in the promotion of legitimate governmental interests against the intrusion upon an individual's privacy. See U.S. v. Knights, 534 U.S. 112 (2001).
A seizure of a person is generally categorized as either an "arrest" or a "detention," depending on the level of intrusiveness. In re James D., 43 Cal. 3d 903 (1987).
(1) Arrest. An arrest, being the most serious form of a seizure, is reasonable if based on an arrest warrant or founded on probable cause. Payton v. New York, 445 U.S. 573 (1980). Probable cause to arrest exists when the facts known to the arresting officer would persuade someone of reasonable caution that the person to be arrested has committed a crime. Dunaway v. New York, 442 U.S. 200 (1979). An arrest made in a public place without a warrant, when based on probable cause, is ordinarily considered "reasonable." Atwater v. City of Lago Vista, 532 U.S. 318 (2001). By contrast, searches and seizures inside a home without a warrant are "presumptively unreasonable." Welsh v. Wisconsin, 466 U.S. 740 (1984); Payton, 445 U.S. at 586. However, a search at an individual's premises without a warrant may be constitutionally justified if the police demonstrate the existence of exigent circumstances. Welsh, 466 U.S. at 749-50.
(2) Detention. A person detained by police has been "seized" even though the person is not taken into custody, the purpose of the stop is limited, and the detention is brief in duration. Delaware v. Prouse, 440 U.S. 648 (1979). A temporary detention occurs when "in view of all the circumstances ... a reasonable person would have believed that he was not free to leave." Mendenhall, 446 U.S. at 554; see also California v. Hodari D., 499 U.S. 621 (1991) (discussing the objective nature of the Mendenhall test). Of considerable importance to the analysis is the exhibition of official authority. See Royer, 460 U.S. at 501-02. The police may make a brief investigatory stop of a person without probable cause if there is a particularized and objective basis for suspecting that criminal activity is in progress and the person is involved in the activity (commonly called a "Terry stop"). U.S. v. Cortez, 449 U.S. 411 (1981); Terry, 392 U.S. at 21-22. A "consensual encounter," by comparison, does not require reasonable suspicion. Bostick, 501 U.S. at 434 (encounter does not "trigger" Fourth Amendment scrutiny). Moreover, a validly executed search warrant "implicitly carries with it the limited authority to detain the occupants of the premises" during the search. Michigan v. Summers, 452 U.S. 692 (1981). This authority is "categorical" and not dependent on the measure of proof justifying a detention or the extent of the intrusion. Muehler v. Mena, 544 U.S. 93 (2005). Nonetheless, an individual may only be detained in the immediate vicinity of the premises. Bailey v. U.S., 133 S.Ct. 1031 (2013).
(3) De facto arrest. Whereas a temporary detention is constitutionally permitted on reasonable suspicion, a de facto arrest is considered reasonable under the Fourth Amendment only if based upon probable cause. See Kaupp v. Texas, 538 U.S. 626 (2003). In addition to the length of the encounter, courts will evaluate whether the police investigated diligently to alleviate or confirm their suspicions expeditiously using the least intrusive means reasonable available. People v. Celis, 33 Cal. 4th 667 (2004). Of importance in making this determination are the "duration, scope and purpose" of the stop. Wilson, 34 Cal. 3d at 784. In this context, "the facts known to the officers in determining whether their actions went beyond those necessary to effectuate the purpose of the stop" are of critical significance. Celis, 33 Cal. 4th at 675-76.
Elia V. Pirozzi is a judge on the San Bernardino County Superior Court.