The Advocate, Vol. 21, No. 2 (March 1999)

Plain View
Ernie Lewis, Public Advocate

Knowles v. Iowa
119 S.Ct. 484 (12/8/98)

Minnesota v. Carter
119 S.Ct. 469 (12/1/98)

Taylor v. Commonwealth
987 S.W.2d. 302
(Ky.S.Ct. 11/19/98)

Knowles v. Iowa
119 S.Ct. 484 (12/8/98)

A significant Fourth Amendment case has been decided by the United States Supreme Court. The Court was at one of those watershed moments. They could decide that when the police have pulled over a motorist for a traffic violation and issue only a citation, a full search was to be allowed. Or, they could decide that their tilt to the right in recent years had its limits, and that such a search indeed violated even their sensibilities. Fortunately, the Court has recognized the outer limits to their quest for "reasonableness" under the Fourth Amendment.

The case arose as a result of an Iowa statute, unusual in the nation, allowing an arrest or a citation as a result of a traffic violation; the statute also allows a full-blown search following the issuance of a citation. Knowles was driving 43 in a 25 and was pulled over. A citation was issued by the traffic officer, who then discovered a bag of marijuana and a pipe during a full search of Knowles’ vehicle. The Iowa Supreme Court affirmed Knowles’ conviction, holding that because the officer decided to issue a citation but could have made a custodial arrest, the full-blown search pursuant to the statute did not violate the Fourth Amendment.

The United States Supreme Court, in a unanimous decision written by the Chief Justice, rejected the position taken by the Iowa Supreme Court. The Court considered the statute in light of United States v. Robinson, 414 U.S. 218 (1973). In Robinson, the Court justified the search-incident-to-arrest exception based upon the "need to disarm the suspect in order to taken him into custody" and upon "the need to preserve evidence." The Court recognized that the need to disarm a suspect diminishes where the officer is going to issue a citation rather than make a custodial arrest. "[W]hile the concern for officer safety in this context may justify the ‘minimal’ additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search." Thus, the first rationale under Robinson was not served in this case.

Nor could a full-blown search be justified under Robinson’s second rationale. "Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained."

The Court’s opinion is interesting in several respects. First, the reader will be disappointed in the brevity of the opinion as well as its reach. Absent is any sweeping language regarding our right to privacy, the limited nature of the Fourth Amendment, or the dangers of the encroachment by government into our homes, vehicles, and persons.

More significant, however, is the actual holding. The Court has rejected the expansion of the exceptions to the Fourth Amendment. Practically speaking, the Court has ended the police practice of being able to stop anyone on our highways and searching them based upon the slightest pretext. While the Court has rejected an analysis into the mind of the police officer, see Whren v. United States, the Court has nevertheless put limits on the officer. Of course under the statute the officer could still make a custodial arrest and conduct a full-blown search in this speeding case. However, officers will not be allowed to pull someone over for the slightest reason with no intention of making a custodial arrest, writing a citation, and proceeding with a full-blown search in the hopes of finding incriminating evidence of a greater crime.

Minnesota v. Carter
119 S.Ct. 469 (12/1/98)

Carter and Johns lived in Chicago. They were in the cocaine business. They went to the apartment of Thompson in Minneapolis , where they had never been before. Thompson permitted them to come to her apartment and put powder cocaine into baggies. In return, she received 1/8 gram of cocaine. This was a business arrangement rather than a social event. A person walked by, saw the three bagging what was believed to be cocaine, and called the police. Officer Thielen answered the call, went to the window and looked in, seeing Carter, Johns, and Thompson bagging cocaine. He contacted headquarters, which began to prepare to obtain a search warrant. When two men left the building and got into a car, the police stopped the car, finding Carter, Johns, a gun, and 47 grams of cocaine in baggies.

Carter and Johns were arrested and charged with violating Minnesota’s controlled substance laws. They moved to suppress, but the trial court denied their motion, ruling that Carter and Johns were temporary visitors and thus could not claim Fourth Amendment protection in the apartment, unlike the overnight guests in Minnesota v. Olson, 495 U.S. 91 (1990). The trial court also ruled that the officer’s observations were not a search, and thus not entitled to protection. After conviction, the Minnesota Court of Appeals affirmed, holding that Carter and Johns had no standing to challenge the search. The Minnesota Supreme Court, however, reversed, holding that Carter and Johns had standing, that the officer’s observations constituted a search, and that the search was unreasonable.

In a 6-3 opinion written by Justice Rehnquist, the United States Supreme Court reversed. The Court first rejected the lower court’s reliance upon the concept of standing. Returning to Rakas v.Illinois, 439 U.S. 128 (1978), the Court reminded all that standing is no longer an issue in Fourth Amendment cases. Rather, the proper analysis is to determine whether a person claiming Fourth Amendment protections can "demonstrate that he personally has an expectation of privacy in the placed searched, and that his expectation is reasonable."

The Court returned to Minnesota v. Olson to draw the distinction between that case and the facts of this case. The question here was whether Carter and Johns were more like an overnight guest, as in Olson, or more like one merely on the premises with the consent of the leaseholder. The Court restated that "an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not."

Significant to the Court was the particular circumstances of Carter and Johns’ presence. The Court noted that they were not overnight guests, they had never stayed there before, they were there for a brief period of time, and they were there merely to transact business. "But the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents’ situation is closer to that of one simply permitted on the premises. We therefore hold that any search which may have occurred did not violate their Fourth Amendment rights." Based upon this holding, the Court declined to decide whether the officer’s observations constituted a search.

The case is interesting in the wide variety of opinions written. Justice Scalia, joined by Justice Thomas, penned a concurring opinion. His opinion is long, interesting, and witty. Justice Scalia returns as he often does to the text of the Fourth Amendment. He views the Rakas "reasonable expectation of privacy" test to be a "fuzzy standard," while at the same time criticizing the Katz decision. According to his reading of the original text, "each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects," but not in anyone else’s. Olson was the outer limit because it was "plausible to regard a person’s overnight lodging as at least his ‘temporary’ residence." On the other hand, "it is entirely impossible to give that characterization to an apartment that he uses to package cocaine."

Justice Kennedy also wrote a concurring opinion. He rejects Justice Scalia’s textual argument and restriction of Fourth Amendment protections to one’s individual home. Rather, he believes that "almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host’s home." However, he concurs in the majority opinion because "respondents have established nothing more than a fleeting and insubstantial connection with Thompson’s home… [r]espondents used Thompson’s house simply as a convenient processing station, their purpose involving nothing more than the mechanical act of chopping and packing a substance for distribution."

Justice Breyer also wrote a concurring opinion. He agreed with the dissenters that Carter and Johns had a reasonable expectation of privacy in Thompson’s apartment. However, he concurred in the judgment because in his opinion Officer Thielen had not violated the Fourth Amendment by peering into a basement apartment through open blinds.

Justice Ginsburg wrote in dissent, joined by Justice Stevens and Justice Souter. In her view, the decision of the majority "undermines not only the security of short-term guests, but also the security of the home resident herself. In my view, when a homeowner or lessor personally invites a guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter against unreasonable searches and seizures." The core value of the Fourth Amendment for Justice Ginsburg is the home, where one may include or exclude others. "My concern centers on an individual’s choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others." She laments where this case leads. "Human frailty suggests that today’s decision will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night."

Taylor v. Commonwealth
987 S.W.2d. 302 (Ky.S.Ct. 1998)

The Kentucky Supreme Court has addressed the issue of confidentiality of informants in the context of conducting a suppression hearing. Here, Taylor was arrested following an unnamed informant’s tip to the police that two black men would be driving a particular car with a particular license plate and that there would be drugs in the car. When the police located the car, they stopped it, saw the defendant take a plastic bag and place it under the seat. A search revealed cocaine in the bag, and Taylor was arrested and convicted. His suppression motion was overruled.

On appeal, Taylor challenged the trial court’s decision not to require the Commonwealth to reveal the identity of the informant. Taylor’s counsel objected to not being able to view the sealed affidavit of the police, or to not being able to question the police regarding the informant.

The Court rejected all efforts by the defense to pry into the informant’s identity or the police reliance upon the information supplied by the police. In an opinion written by Justice Wintersheimer, the Court stated that the trial court was correct in not requiring the Commonwealth to reveal the identity of the informant pursuant to KRE 508. The Court stated that the exceptions to the informant’s privilege were not present in this case. The Court relied upon the fact that in this case, the informant was a "mere tipster" rather than a witness to the crime, relying upon Roviaro v. United States, 353 U.S. 53 (1957), and Schooley v. Commonwealth, Ky., 627 S.W. 2d 576 (1982). "This tip led police to further investigation and to the making of an investigative stop where the officers observed a suspected controlled substance in plain view in the lap of Taylor. The informant was not present in or near the vehicle when the charged crime was committed. Accordingly, the informant could not have provided any testimony about what occurred when the vehicle was stopped by the police."

The Court further found that the issue regarding the effort of counsel to look at the sealed affidavit was not preserved for appellate review.

The Court rejected the appellant’s claim that counsel should have been allowed to question the police regarding the informant. "There is a distinction between the confrontation clause protections in a pretrial hearing from those protections at public trial…The defense cannot circumvent the privilege accorded to the informer by claiming to test reliability…"

After rejecting Taylor’s arguments on the informant, the Court had little problem finding the search in this case to have been reasonable. With little discussion, the Court found that the tip had been verified and that this verification had established a reasonable suspicion to stop the car, citing Commonwealth v. Hagan, Ky., 464 S.W. 2d 261 (1971) and Alabama v. White, 496 U.S. 325 (1990).

Short View

  1. J.L. v. State, 727 So.2d. 204 (Fla.Sup. Ct. 12/17/98). There is no firearm exception to the articulable suspicion standard for a stop and frisk, according to the Florida Supreme Court. Thus, where an anonymous tip told the police that someone at a bus stop had a gun, the police could have approached the group of young men and engaged in a conversation, but could not frisk each of them. The Court noted that possessing a firearm was legal in that state, and as a result, a search was illegal under these circumstances.
  2. State v. Lytle,  587 N.W. 2d 665 (Neb.Sup.Ct. 12/11/98). A tip through a Crimestoppers Program does not necessarily provide probable cause to issue a search warrant. The Court noted that an anonymous tip requires that reliability be demonstrated in order to issue a search warrant; the "citizens informer" status normally accorded witnesses to crimes who aid police, who are presumed to be reliable, is not available for a tip through Crimestoppers. Significant in this finding is that there is a financial motive to submit a tip in most Crimestoppers programs. Thus, such tips require corroboration before a search warrant may be issued based solely upon them.
Ernie Lewis, Public Advocate

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