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Back to Archives | Back to October 2003 Contents 

Chief's Counsel

Supreme Court Preview: Law Enforcement

By Carl Milazzo, Chair, IACP Legal Officers Section, and Senior Instructor, Legal Division, Federal Law Enforcement Training Center, Glynco, Georgia

Supreme Court Preview: Law Enforcement Cases to Be Decided in the October 2003 Term

By Carl Milazzo, Chair, IACP Legal Officers Section, and Senior Instructor, Legal Division, Federal Law Enforcement Training Center, Glynco, Georgia

Fourth Amendment

In Groh v. Ramirez the U.S. Supreme Court will consider qualified immunity for executing a facially invalid warrant. An agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives obtained a search warrant for a residence based on information that there were grenades, a grenade launcher, a rocket launcher, and an automatic rifle on a ranch. The application identified both the place to be searched and the items to be seized. However, the agent mistakenly left off the warrant the items to be seized and instead retyped the description of the premises. He executed the warrant with a team of other agents and the local sheriff. He provided the warrant to the homeowner after the search was completed, instead of at the beginning. He did not provide a copy of the application or affidavit. No items were discovered and nothing was seized. The homeowners sued under Bivens, and the agent claimed qualified immunity.

The issue pending before the Supreme Court is whether a law enforcement officer should be entitled to qualified immunity when executing a warrant that is facially invalid, but the application and affidavit were particular about the items to be seized.

In U.S. v. Banks the Court will consider the length of time before forcibly entering to execute a drug search warrant. North Las Vegas police officers and FBI agents executed a drug search warrant at an apartment. They knocked once, announcing their identity and purpose. After 15-20 seconds they heard no noise and forcibly entered. They saw the defendant emerging from the shower, naked and soapy. They detained him, gave him some underwear, and searched the apartment. The defendant argued that all evidence should be suppressed, including his statements made during questioning, as the result of an unlawful search by not waiting a reasonable amount of time before forcibly entering.

In Maryland v. Pringle the Court will consider probable cause to arrest all occupants of a vehicle when drugs are discovered. The defendant was the front seat passenger in a car stopped for speeding. There was also a backseat passenger, and the driver. The driver (who was also the registered owner) reached into the glove box to retrieve the vehicle registration and the officer could see a rolled up wad of cash. The officer checked the license and registration and both came back clear.

The officer asked the driver to step out of the vehicle, issued a verbal warning for speeding, and asked for consent to search the car for drugs. The driver gave consent and the officer asked the two passengers to step out of the car. The officer seized the roll of cash and discovered five small plastic bags with suspected cocaine behind the upright backseat armrest. When none of the three men admitted possession of the narcotics, all three were arrested. Later at the police station, the defendant admitted the drugs belonged to him. The driver and backseat passenger were then released. The defendant argued that since there was no probable cause to arrest him, his subsequent confession is tainted and must be excluded.

The issue before the Supreme Court is whether there was probable cause to arrest the front seat passenger based on the observation of cash in the glove box and the discovery of five small plastic bags concealed behind the upright back seat armrest. There were no statements by any of the occupants, no odor of drugs, and no other evidence.

In Arizona v. Gant the Court will consider the legality of searching a vehicle incident to the arrest of a recent occupant. Police officers were dispatched to a home to investigate a report of narcotics activity. They knocked on the door and the defendant answered. They determined his identity, ran a computer check, and learned that he had outstanding warrants for driving on a suspended license and failure to appear. For reasons not clearly stated in the record, the officers left and returned to the home later. When they returned, they observed a female with a crack pipe. The defendant then drove up in a car; recognizing him as the man they met earlier at the door with the outstanding warrants, the officers arrested him. The officers searched the vehicle incident to arrest and discovered a weapon and drugs inside a jacket. The defendant argued that since he was no longer in the vicinity of the vehicle and secured in the police car in handcuffs, his vehicle should not have been searched incident to arrest because it was no longer within his immediate control as a "recent occupant."

Illinois v. Lidster the Court will consider the legality of using a checkpoint to investigate a recent crime. Police set up an informational roadblock passing out flyers and seeking information about a fatal hit and run that occurred the same time and day a week earlier at the same location. The defendant nearly missed hitting one of the officers and he was asked for his license. The officer smelled alcohol and noticed slurred speech, so he directed the driver to a side street. The driver failed field sobriety tests and was arrested for impaired driving.

The issue on appeal is whether Indianapolis v. Edmond prohibits police from conducting checkpoints to investigate a prior criminal offense.

Fifth Amendment

In U.S. v. Patane the court will consider the admissibility of physical evidence obtained after a Miranda violation. The defendant was arrested at his home. When an officer began reading him Miranda warnings, he only got through with the first warning, advising of the right to silence. The defendant then interrupted and stated he understood his rights. The officer then asked about a handgun, which the defendant was not allowed possess as a convicted felon. The defendant told the officer where it was and gave consent to retrieve it. Instead of arguing that the defendant's statement constituted a knowing, voluntary, and intelligent waiver, the government has conceded on appeal that the officer committed a Miranda violation by not completing the Miranda warning.

The issue on appeal is whether physical evidence obtained as a result of an unwarned but voluntary statement is tainted and inadmissible.

Sixth Amendment

In Fellers v. U.S. the court will consider the practice of curing a Sixth Amendment violation with a subsequent Miranda warning and waiver. Two detectives went to the defendant's home with an arrest warrant based on an indictment. They told him why they were there and asked him questions without Mirandizing him. He admitted using methamphetamines and associating with certain coconspirators. He was then arrested, taken to jail, and read his Miranda warnings. He signed a waiver, repeated his earlier admissions, and admitted to associating with additional coconspirators.

The issue now before the Supreme Court is whether the detectives violated his Sixth Amendment right to counsel under Massiah by "deliberately eliciting" incriminating statements from the defendant after he was formally charged by indictment. If so, should the second statement also be suppressed as tainted evidence resulting from the postindictment interview, even though it was preceded by Miranda warnings and a waiver?

Freedom of Information Act

In Favish v. Office of Independent Counsel the Court will consider the disclosure of crime scene photographs. The federal Freedom of Information Act (FOIA) governs disclosure of information by federal agencies and contains various law enforcement exceptions. Some states may have similar statutory language. White House counsel Vince Foster was the subject of a widely publicized suicide, and an attorney for a public interest group is seeking photographs of the crime scene. The government has invoked one of the law enforcement exemptions, refusing to disclose certain photographs.

Does exemption 7(c) of the FOIA allow the government to refuse production of crime scene photographs of Vince Foster because they "could reasonably be expected to constitute an unwarranted invasion of personal privacy" of surviving family members?


From The Police Chief, vol. 70, no. 10, October 2003. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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