The Supreme Court's first Fourth Amendment case of the 97-98 term is one only tangentially related to the interests normally protected by the Fourth Amendment. Here, the Court reviewed the question of whether a prosecutor is entitled under §1983 to absolute vs. qualified immunity when engaged in certain acts related to the obtaining of an arrest warrant.

In Washington, cases are initiated by filing an information and a motion for an arrest warrant. Because there is no grand jury, the law also requires that an arrest warrant be based upon an affidavit or sworn testimony which establishes probable cause.

In this case, the prosecutor filed all three documents. Fletcher was arrested on a burglary charge based upon the documents, spent a day in jail, and one month later, had charges dismissed against him. He filed suit under 42 U.S.C. §1983 alleging a violation of his Fourth Amendment rights.

The prosecutor defended the action by saying that her pleadings were all protected by absolute immunity. However, the Court disagreed, in a unanimous opinion written by Justice Stevens. The Court held that while the acts which were clearly prosecutorial, the filing of the information and the motion for the arrest warrant, were protected by absolute immunity, the third act, that of preparing a sworn affidavit supportive of probable cause, was protected only by qualified immunity.

The distinction relied upon by the Court was that of the prosecutor as advocate versus the prosecutor as complaining witness. "Testifying about facts is the function of the witness, not of the lawyer. No matter how brief or succinct it may be, the evidentiary component of an application for an arrest warrant is a distinct and essential predicate for a finding of probable cause. Even when the person who makes the constitutionally required 'Oath or affirmation' is a lawyer, the only function that she performs in giving sworn testimony is that of a witness." As a result, the Court affirmed the lower courts in holding that §1983 may provide a remedy for the person aggrieved by the alleged illegal search against the prosecutor for her act of filling out a sworn affidavit in support of an arrest warrant.
 

1. U.S. v. Ward, 131 F.3d 335 (3rd Cir. 11/13/97). Mandating the testing of persons accused or convicted of sexual assault crimes does not violate the Fourth Amendment, according to the Third Circuit. The Court reviewed a judge's order pursuant to the Violence Against Women Act, which, according to the Court, provides pro-tections beyond that mandated by the Fourth Amendment. The Court also found that the seiz-ure of blood, while a search, was justified under the special needs doctrine. "The special needs in this case are insuring that the victims of sexual assaults are notified promptly, whether or not their attackers carry HIV, and preventing a sexual assault victim from unwittingly transmitting the virus to others."

2. United States v. Castro, 129 F.3d 752 (5th Cir. 11/19/97). The seizure of a vehicle in order to conduct an inventory search of it following the arrest of the occupants is violative of the Fourth Amendment when the object of the search is investigative. Here, the police followed the defendants for 115 miles without discovering a reason for a stopping; they then asked a local sheriff to make an arrest and come up with his own probable cause. An arrest was made for speeding, followed by the seizure of the vehicle in order to search it. The Court acknowledged the holding in Whren v. U.S., 116 S.Ct. 1769 (1996), which held that a search is justifiable if there is probable cause to make an arrest, even where subjectively the search was pretextual. Here, the 5th Circuit emphasized that an inventory search has as its object to protect the property that has been lawfully seized, to protect the police against claims of lost or stolen property, and to protect the police from potential danger." Such a search is only legal "if conducted according to standardized procedures...and lawful only if conducted for purposes of an inventory and not as an investigatory tool to produce or discover incriminating evidence...An inventory search may not be used by police as a 'ruse for a general rummaging.'" Because these rules were violated in this case, suppression was mandated.

3. State v. Stevens, 570 N.W.2d 593, (Wis. Ct. App. 9/16/97). Relying solely on officers’ belief that drug dealers are likely to destroy evidence and carry weapons is not sufficient to overcome the requirements of knock and announce. This holding reiterated that holding of the Court in Richards v. Wisconsin, 117 S. Ct. 1416 (1997). "If the police do not have a reasonable suspicion that announcing their presence may impede the investigation or endanger the officers, they may not enter a home without announcing their presence...We therefore conclude that Richards represents a categorical rejection of the view that generalized knowledge alone is sufficient to create the necessary reasonable suspicion required to justify an unannounced entry."

4. In a law review article reprinted in the Search and Seizure Law Report of November 1997, Professor James Fleissner of Mercer Law School argues against the "growing support" for expanding the good faith exception to warrantless searches and seizure. Professor Fleissner notes that expanding the exception is good politics, as well as being supported by one federal case, U.S. v. Williams, 622 F. 2d 830 (5th Cir. 1980) (en banc), cert. den., 449 U.S. 1127 (1981), a pre-Leon case. However, he observes that the exclusionary rule is the most effective means for enforcing the Fourth Amendment, that it is particularly vital for enforcing the Fourth Amendment in the context of a warrantless seizure, and that if applied to warrantless seizures, the good faith exception would be very difficult to administer. He concludes: "The good faith exception should not be extended to cases involving warrantless searches and seizures...The price of police error in such cases should be exclusion. That will promote police training and remove any reward for a violation. This is especially critical in warrantless searches and seizures, where the training of the police is the only way to prevent violations. Adopting the good faith exception in such cases will dramatically reduce the beneficial effects of the Exclusionary Rule and will prove difficult to administer. We should chart a path that protects not only the integrity of the Fourth Amendment, but ensures that expansion of the good faith exception will not undermine the integrity of the guarantees of the Fifth and Sixth Amendments as well.

State v. Robinette, 685 N.E.2d 762 (OH.Sup.Ct. 11/12/97). The Ohio Supreme Court seemed to have the final say. Here, the Court had initially stated that a Fourth Amendment violation occurred when, during a routine traffic stop, the police asked for consent to search without telling the driver that he or she is free to go. The United States Supreme Court disagreed in Ohio v. Robinette, 117 S.Ct. (1996), which held that the Fourth Amendment required no such bright line rule for determining the voluntariness of a confession. The Ohio Supreme Court first determined that after the traffic stop for speeding was over, the officer could further detain the driver briefly to ask him whether he had contraband in his car, without reasonable suspicion. This was justifiable under Florida v. Royer, 460 U.S. 491 (1983), and Whren v. U.S., 116 S.Ct. 1769 (1996). However, the Court held that further detaining the driver and asking him for consent to search without reasonable suspicion violates the Fourth Amendment. The Court focused on the suspicionless detention, which followed the dissipation of the reason for the stopping. Finally, the Court looked at the fact that no free-to-go warning was given, that there was no reasonable suspicion, and held that the State had not demonstrated voluntariness of the consent to search.

State v. Branham, 952 P.2d 332, (Ariz. Ct. App. 12/23/97). The failure to show proof of registration does not establish probable cause to believe that the car is stolen, according to the Arizona Court of Appeals. Thus, evidence of drugs found during the search had to be suppressed. "The failure to produce registration is not a criminal offense…As a result, the failure to produce registration is equally consistent with innocent behavior. Therefore, such failure, by itself, does not provide probable cause to believe that a car is stolen and does not permit the limited search conducted here."

ERNIE LEWIS, Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
Tel: (502) 564-8006; Fax: (502) 564-7890

The Advocate, Vol. 20, No. 2  (March 1998)
 

Return to the Table of Contents