rural courts seminar - louisiana judicial college · pdf filerural courts seminar . thursday...

RURAL COURTS SEMINAR THURSDAY OCTOBER 27, 2016

LOUISIANA SPORTS HALL OF FAME, NATCHITOCHES

SEARCH AND SEIZURE

JUDGE HARMON DREW 2nd Circuit Court of Appeal

JEAN T. DREW

Search & Seizure * Jean & Harmon Drew * Rural Courts * 27 Oct 16 * [email protected]

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SEARCH & SEIZURE Jean and Harmon Drew

Rural Courts Seminar * 27 October 2016 * Meat Pie Town

1. What percentage of possibility/probability do you believe is

required by these burdens?

a. Reasonable Suspicion [“RS”] _____ % possibility.

b. Probable Cause ["PC"] _____% possibility/probability.

c. Beyond Reasonable Doubt (“BRD”] _____ % probability.

d. Another viewpoint: How do these burdens compare?

RS x ____ = PC? PC x ____ = BRD?

e. What about clear and convincing? ______% probability.

2. Sliding Scale Satisfaction of these Burdens by LEOs

a. LEO's Knowledge, Training, and Experience, combined with

b. Whatever the LEO saw, heard, touched, smelled, and tasted?

3. Default Presumption:

Warrantless Searches/Seizures are Unreasonable.


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4. Fourth Amendment Analysis of a Search or a Seizure:

a. Is NOT a Subjective Inquiry, such as:

Under what legal theory did this LEO take this action?

b. Is NOW an Objective Inquiry, such as:

What happened?

Was it objectively reasonable?

What was the chronology?

OLD: St v Vaughn, 448 So2d 915 (La. 3 Ct. App. 1984).

One traffic infraction was held not to be enough reasonable suspicion

for a DWI, so the stop was invalid. Bogus reasoning.

NEW: Whren v U.S., 517 U.S. 806 (1996). Pretextual Stop is OK.

St v Waters, 780 So2d 1053 (La 2001). Minor nature of MV stop.

St v Kelly, 934 So.2d 51 (La. 2006). S & S = an Objective Test.

5. Exceptions to the Search Warrant Requirement, primarily re: MVs

a. SITA

• Trigger Valid Arrest of an occupant plus Reasonable belief

(Reasonable suspicion) that evidence of the crime of

arrest is in MV

• Target Weapons and Evidence

• Scope Passenger Compartment, including closed containers

• Cases AZ v Gant, 556 U.S. 332 (2009). Pass. compartment

Riley v CA, 573 U.S. ____ (2014). Cell Phone

Rawlings v KY, 448 U.S. 98 (1980). Timing

St v Sherman, 931 So.2d 286 (La. 2006). Timing


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b. COLLECTIVE KNOWLEDGE

• What does every officer, working tonight as a team, know at the

moment of the stop/arrest or other action by one of the officers.

St v Surtain,31 So.3d 1037 (La. 2010).

St v Elliott, 35 So.3d 247 (La. 2010).

Navarette v California, 572 U.S. ____ (2014).

c. FRISK

• Trigger Previously-frisked person is about to reenter MV, + LEO

still has RS of danger.

• Target Weapons.

• Scope Areas of the passenger compartment immediately

accessible to the motorist.

• Cases Terry v OH, 392 U.S. 1 (1968). Stop, Frisk.

St v Boyer, 967 So. 2d 468 (La. 2007) Basis for seizure

Note La. C. Cr. P. Art 215.1 (A-C).

Michigan v Long, 463 U.S. 1032 (1983). Frisk of MV.

St v Duhe, 130 So.3d 880 (La. 2013). Frisk of MV.

d. INVENTORY

• Trigger Valid Impound + Agency Policy.

• Target (i) Make a list of valuables; and (ii) Look for bombs.

• Scope Entire MV

• A written agency policy is required in order to allow a LEO to

inventory of the contents of closed containers in a MV that is being

inventoried, as per FL v Wells, 495 U.S. 1 (1990).


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e. CONSENT

• Trigger Voluntary Permission from one in apparent authority.

• Target Contraband.

• Scope Entire MV unless restricted.

Restrictions must be honored.

Permission may be withdrawn.

• Suggestion At the moment of consent, a LEO should not be holding

the motorist’s lawful property, e.g., DL, proof/insurance,

registration, keys, etc.

• FL v Jimeno, 500 U.S. 248 (1991). Consent for containers in MV?

f. PLAIN VIEW or PLAIN SMELL

• Trigger Viewing or smelling an item that provides PC to

immediately identify the Item as contraband.

Inadvertency is no longer required, as per Horton v

California, 496 U.S. 128 (1990)

• Target Contraband/Evidence that is seen or smelled.

• Note #1 The perceived contraband/evidence may be seized.

• Note #2 Confirming the criminality of an item in Plain View,

allows search of the entire MV.

• Suggest LEO must articulate his/her expertise in recognizing the

Contraband.

• Cases

Plain Feel: MN v Dickerson, 508 U.S. 366 (1993).

St. v Lee, __ So.3d ___, (La. 2015).

Plain Smell: St. v Allen, 55 So.3d 756 (La. 2010).

St. v Jackson, 42 So.3d 368 (La. 2010).


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6. Birchfield v North Dakota

(2014 – 1468) ____S. Ct. ____ (6.23.16)

HELD: Fourth Amendment allows warrantless DWI BREATH tests, pursuant to Implied

Consent, but NOT warrantless BLOOD tests.

To fight impaired driving, all states have statutes forbidding operating MVs on public

highways when the driver’s BAC (Blood Alcohol Concentration) level exceeds a certain limit,

usually 0.08%. To secure the cooperation of drivers on the public roads, the states have

enacted Implied Consent Statutes, in exchange for using the public highways.

The original penalty for refusal was suspended driving privileges. Some states (e.g.,

North Dakota, MN, LA) later criminalized the refusal to comply with Implied Consent laws.

D & D Notes: See La. R.S. 14:98.7 for Third Refusal; &

La. R.S. 32:666 (A)(1)(a)(i) for Third Refusal.

Actually there are three cases here:

Birchfield was arrested for DWI in North Dakota. The trooper advised him of his

obligation to undergo BAC testing, and that a refusal could result in criminal

punishment. Birchfield refused a blood draw and conditionally entered a plea of guilty

(D & D note: Like our Crosby plea), arguing that The Fourth Amendment prohibited the

criminalization of his refusal to submit to a blood draw. N.D. courts rejected his

argument. SCOTUS HELD: Birchfield was unlawfully convicted for refusing a warrantless

blood draw. NOT GUILTY.

Bernard was arrested for DWI in Minnesota. He was taken to the police station where

the officer advised him about Minnesota’s Implied Consent laws, and that it was a crime

to refuse a breath test. He refused anyway and was convicted for the refusal to blow.

The District Court dismissed the charges; the Appellate Supreme Court reversed.

SCOTUS HELD: Bernard had no right to refuse a warrantless breath test. GUILTY.

Beylund was arrested for DWI in N.D. The LEO took him to a hospital and read him an

Implied Consent advisory that refusing a blood draw was a crime. He agreed to the

draw and ran a BAC three times the legal limit. His DL was suspended for two years. He

argued that his consent was coerced by the warning. USSC HELD: Beylund’s case was

remanded for reevaluation of the consent, in light of the inaccurate advisory.

REMANDED.


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Blood draws & Breath tests are governed by the Fourth Amendment. The

default presumption is that all warrantless searches and seizures are unlawful. Some

searches are exempt from the SW requirement if held to be lawful exceptions to the

rule, which is decided on a case-by-case basis. One exception is the right to Search

Incident To Arrest (“SITA”), which actually predates the founding. The mere fact of a

lawful arrest justifies a full search of the person.

SITA & Implied Consent are first cousins.

SITA may or may not extend to situations not contemplated by the Fourth

Amendment, e.g., cellphone in Riley v California, 573 U.S. ___ (2014). The test is the

degree to which the search intrudes on privacy rights VERSUS the degree to which the

search is needed to promote legitimate government interests.

BREATH TESTS implicate no significant privacy concerns; no piercing of the skin,

and only minimum inconvenience. It is no more intrusive than a DNA swab, or scraping

under fingernails, but importantly, a BREATH TEST leaves no biological sample with the

government. Because a breath test has only the slightest impact on privacy, and

because BAC testing is a tremendous governmental need, The Fourth Amendment

permits warrantless BREATH TESTS incident to arrests for impaired driving.

In contrast, BLOOD DRAWS involve piercing the skin, extraction of part of the

body, preserving it for possibly analysis. A BLOOD DRAW is more intrusive and more

embarrassing than a Breath Test.

The government’s paramount interest here is public safety on the highways.

Making BAC DWI refusals a crime will certainly incentivize the cooperation of motorists,

which will make our highways safer. Requiring search warrants for all BAC tests would

swamp the courts. Sometimes, however, blood tests may be needed when: The

impairment is suspected to be non-alcoholic in origin; and when a subject is

unconscious. D & D note: See La. R.S. 32: 661(B) & R.S. 32:681(A). In these cases, law

enforcement may seek a search warrant or rely on exigent circumstances, as per

Missouri v McNeely, ___U.S. ___ . (2013)

Since breath tests are less intrusive and usually amply serve governmental interests,

a WARRANTLESS BREATH TEST (not a blood draw) may be administered as a SITA for

impaired operation of a MV. As in Bernard, supra, a criminal conviction for refusing a

warrantless BREATH TEST is lawful. Motorists, however, may not be criminally punished

for refusing a WARRANTLESS BLOOD DRAW, even if statutorily required. These three

cases do not discuss warrantless urine tests and does not tell us where that procedure

would fit in this analysis. These cases do not cover a situation when a motorist voluntary

agrees to take a warrantless blood test, but not a breath test. There are also two areas

that need attention ASAP: The implied consent statutes and the DWI rights form must

be amended ASAP, or risk nine months of bedlam in this area.


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7. Chart for the Birchfield

Trilogy of Cases,

rendered 23 June 2016

Birchfield v N.D.

Arrested for DWI

Bernard v MN

Arrested for DWI

Beylund v N.D.

Arrested for DWI

LEO advised Birchfield

that he had to allow the

extraction of BLOOD

for BAC testing.

LEO advised Bernard

that he had to undergo a

BREATH test to determine

his BAC.

LEO arrested Beylund for

DWI and took him to a

hospital for a

BLOOD draw.

LEO told B that refusal to

submit to a BLOOD

test was a crime.

LEO told B that refusal to

submit to a BREATH

test was a crime.

LEO read B ND’s Regs

which criminalized refusal

to take a BLOOD test.

B refused a BLOOD draw,

but entered a conditional

plea of GUILTY.

B refused to take a

BREATH test.

B agreed to a

warrantless

BLOOD draw.

B appealed, arguing that

the 4th Amendment does

not allow punishment for

the refusal to take a

warrantless BLOOD test.

B was found guilty of

BREATH test refusal

in the first degree.

License suspended for two

years. B appealed, arguing

this his consent for the

BLOOD draw was coerced.

N.D. Supreme Court

allowed his conviction

(for refusing a BLOOD

draw) to stand.

Minn. Supreme Court

allowed his conviction

(for refusing a BREATH

test) to stand.

N.D. Supreme Court

rejected his

COERCION

argument.

SCOTUS:

NOT GUILTY

SCOTUS:

GUILTY

SCOTUS:

REMANDED


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8. Extensions of Traffic Stops

La. C. Cr. P. Art 215.1 (A)–(C) [enacted in 1968 – same year as Terry]

Art. 215.1. Temporary questioning of persons in public places; frisk

and search for weapons

A. A law enforcement officer may stop a person in a public

place whom he reasonably suspects is committing, has committed, or

is about to commit an offense and may demand of him his name,

address, and an explanation of his actions.

B. When a law enforcement officer has stopped a person for

questioning pursuant to this Article and reasonably suspects that he

is in danger, he may frisk the outer clothing of such person for a

dangerous weapon. If the law enforcement officer reasonably

suspects the person possesses a dangerous weapon, he may search

the person.

C. If the law enforcement officer finds a dangerous weapon, he

may take and keep it until the completion of the questioning, at

which time he shall either return it, if lawfully possessed, or arrest

such person.

We call the above the “Louisiana version of Terry v Ohio, 392

U.S. 1 (1968).” Almost three decades later, the below Subsection

“D” was added to La. C. Cr. P. Art. 215.1:

D. During detention of an alleged violator of any provision of

the motor vehicle laws of this state, an officer may not detain a

motorist for a period of time longer than reasonably necessary to

complete the investigation of the violation and issuance of a citation

for the violation, absent reasonable suspicion of additional criminal

activity. ***

The above Subs. “D” was ignored for 19 years. No more. It

dovetails precisely with Rodriguez v U.S., 575 U.S. ___ (2015).

Both our code article and Rodriguez require, after the traffic

matter has ended, that any extension be justified by additional

reasonable suspicion of criminal activity arising during the MV stop.


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9. Recent Search & Seizure Cases

A. U.S. v. Turner: 5th Cir. Texas 10-13-16

Swiping a magnetic stripe on the back of a gift card is not a search.

B. State v. Crochet, 2016 WL 5390339 (La. 9/23/16)

Three SWs; One was shaky.

Another rescue by U.S. v Leon, 468 U.S. 897 (1984).

C. U.S. v. Toussaint, 2016 WL 5314862 (5th Cir. La. 9/22/16)

LEOs, trying to save the guy’s life, wind up arresting him.

D. State v. Lucas, 195 So.3d 1208 (La. 8/03/16)

Cash stash.

E. State v. Lewis, 195 So.3d 1206 (La. 7/19/16)

Inculpatory rap video was relevant/admissible per La. C.E. 404(B).

Thank you very much.

INTRO/BIO JEAN and HARMON DREW

Jean Drew has been an appellate

research attorney for 32 years, working as an

elbow clerk for three Chief Judges.

Harmon is a former city and district judge who has been an appellate judge for 17 years.

Over the last three decades, these two have

traveled to 52 parishes, teaching Search &

Seizure to thousands of local Louisiana law officers.

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