Warrantless Search

U.S. Supreme Court holds:  "In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify a blood test without a warrant." 

, No. 11-1425 (U.S. Apr 17, 2013). The Defendant was charged with DWI.  He filed a motion to suppress the results of a warrantless blood draw that was taken without a valid search warrant.  The trial court granted the motion to suppress.  The Missouri Supreme Court affirmed the grant of the motion.  The U.S. Supreme Court granted certiorari to resolve a split of authority.

The U.S. Supreme Court affirmed the Missouri Supreme Court. Kennedy concurred. Roberts concurred in part and dissented in part. Thomas dissented. The question was whether the natural metabolization of alcohol in the bloodstream presented a per se exigency that justified an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases.  The Court held that it did not.  While the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, it does not do so categorically.

Whether a warrantless blood test of a drunk-driving suspect is reasonable has to be determined on the totality of the circumstances.  Any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.  The general importance of the interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case.  Because the case was argued on the broad proposition that drunk-driving cases present a per se exigency, the Court was not provided with an adequate analytic framework for a detailed discussion of all the relevant factors to determine the reasonableness of acting without a warrant.

New Case from the 5th Circuit (Federal):  United States v. Andres, 2013 U.S. App. LEXIS 143 (5th Cir. Tex. Jan. 3, 2013)

Synopsis:  In December 2009, federal agents conducting an investigation into a large drug trafficking operation installed a GPS device underneath a pick-up truck, with a trailer attached to it, while it was parked on a public street after it had been loaded with twenty kilos of cocaine. Federal agents monitored the truck's movements as it drove toward Chicago.

The agents contacted the Illinois State Police, gave them information about the truck, and told them they would like to have the drugs discovered during a traffic stop so they would not have to disclose the existence of a federal investigation. After being provided GPS information on the truck, a police officer saw it on an interstate highway and began to follow it.

The officer conducted a traffic stop on the truck for improper lane usage and improper lighting after he saw the trailer was swaying back and forth within its lane and its taillights were flickering.  After the officer wrote a warning ticket, he asked Appellant to get out of the truck so he could talk to him about the taillight problem.

After inspecting the electrical connection between the truck and trailer, the officer handed Appellant his clipboard so he could sign the ticket.  While Appellant was signing the ticket, the officer asked him where he was coming from.  Appellant told the officer he was coming from Joliet, but the officer knew this could not be possible based on the surveillance the officers had been conducting.  The officer also noticed that Appellant had begun to fidget and move his feet and arms around very nervously.  When the officer asked Appellant if he had any drugs in the truck, he said, "No" and then consented to a search with a drug dog.  The drug dog alerted and the officers found twenty kilos of cocaine hidden in the truck.

Appellant argued the drug evidence should have been suppressed because the initial traffic stop was a pretext and not based on any actual traffic offense.  Even if the traffic stop was valid, Appellant claimed the officer's continued questioning and dog search were not reasonably related to the original reasons for the stop.

First, the court held the officer was justified in stopping Appellant based on the traffic violations he saw.  Second, the court held the officer's continued seizure of Appellant after the reason for the initial traffic stop ended was supported by reasonable suspicion.  It was reasonable for the officer, who had stopped Appellant for a safety violation concerning his trailer, to ask him to get out of his truck to look at the trailer and discuss the problem.  In addition, the officer's question, asking Appellant where he was coming from, occurred before the officer had finished dealing with the traffic offenses and did not extend the scope or duration of the stop. Appellant's untruthful answer created reasonable suspicion that justified his continued detention, which ultimately led to the officer receiving consent to search the truck.

Appellant also argued the warrantless placement and use of the GPS device to monitor the movements of his truck violated the Fourth Amendment in light of the United States Supreme Court decision in U.S. v. Jones, decided in 2012. The Fifth Circuit Court declined to rule on whether warrantless GPS searches are per se unreasonable.  Even assuming a Fourth Amendment violation had occurred, the court held the evidence should not be suppressed in this case because in December 2009, it was objectively reasonable for agents in the Fifth Circuit to believe that warrantless GPS tracking was allowed under circuit precedent.

Below is a case update from the 5th Circuit (Federal)

U.S. v. Cooke, 5th Circuit, March 13, 2012

While appellant was in jail, federal agents approached him and asked for consent to search his house.  He refused.  A week later, while he was still in jail, federal agents went to his house to conduct a knock-and-talk interview.  Appellant’s house was a windowless structure that had two large sliding exterior barn doors.  Behind the barn doors was a large area with a dirt floor and a paved sidewalk path that led to a stoop and another set of doors.  Behind these interior doors were the living quarters where appellant, his wife and his mother lived.  When the agents approached the house, they noticed that one of the exterior barn doors was damaged, allowing them access to walk directly up to the interior doors.  Believing that knocking on the barn door would be futile, the agents walked through the open barn door and knocked on the interior set of doors.  Appellant’s mother answered the door and granted the agents consent to enter the house.  Once inside the house, the agents saw a shotgun shell and gun safe in plain view.  Based on these observations, the agents obtained a search warrant and found illegal firearms, ammunition and a bulletproof vest in appellant’s house.

Appellant argued that the agents unlawfully entered the curtilage of his house when they crossed the threshold of the barn door without a warrant or consent.  The court held that the area inside the barn doors, but outside the interior doors was not part of the curtilage, so the agents did not violate appellant’s Fourth Amendment rights by entering the area without consent or a warrant in order to knock on the interior doors.  First, the area had a dirt floor and a paved sidewalk that led to the interior doors.  Second, the contents of the area included non-operating washing machines and dryers, ladders, a grill and other items indicating that the space was used for storage.  Finally, the barn door was open wide enough such that the items stored there were exposed to the elements, the public could see into the area from the street, and anyone would reasonably think that they would have to enter and knock on the interior doors when visiting.

Appellant also argued that under Georgia v. Randolph the warrantless search was invalid because his mother’s consent to the agents’ entry into the house was trumped by his previous refusal to consent.  The court disagreed, stating that Randolph only applied to co-tenants who were physically present and immediately objected to the other co-tenant’s consent.  Here, appellant was not a present and objecting co tenant, but rather was miles away from his home and in jail when he objected to the search.

The Seventh and Eighth Circuits agree and allow searches under similar circumstances; however, the Ninth Circuit does not.

I love technology - from tablet computers to smartphones to flat-screen televisions.  If it's shiny and new and guaranteed to make me the envy of my friends and family, I'll buy it (to the dismay of my wife).  One of the recent (in the last 5 years) technological advancements that has made its way into just about every home in America is GPS.  Whether it be a Garmin running watch, a TomTom navigational device, or a GPS location broadcaster on your cell phone, most people use some sort of GPS device every day.  Aside from the fact that we've lost the capability to drive somewhere without turn-by-turn directions, GPS is great.

Jose Juan Hernandez, however, might not agree that GPS is so great.  In a recent 5th Circuit Court of Appeals Case (United States v. Hernandez), Hernandez challenged the GPS search that the DEA had surreptitiously (and without a warrant) performed on his brother's truck to track its movements.  Hernandez was arrested while driving his brother's truck to California on a drug run.  The police seized 20 pounds of meth from the truck.  At trial, Hernandez moved to suppress the drugs, arguing that the discovery was the result of an unlawful search (as a result of the GPS tracking).  The trial court denied the request.

The 5th Circuit held that Hernandez had standing to challenge the use of the GPS search device placed on his brother's vehicle by FBI agents because he drove the vehicle with consent, but he lacked standing to challenge its placement because the vehicle was not registered to him.  The Court also held that the DEA agents' use of the surreptitious GPS search device to track Hernandez was not a search within the meaning of the Fourth Amendment, explaining that it was more akin to the old beepers that police used to place on vehicles in the 80's and 90's.  Accordingly, the Court upheld the trial court's denial of the motion to suppress. The Court did not decide whether a GPS search device that continuously and precisely monitors location would constitute a search.