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<pre>
 
<pre>
 
March 1991
 
March 1991
  −
  −
  −
                                                                 
      
                 EMERGENCY SEARCHES OF EFFECTS                         
 
                 EMERGENCY SEARCHES OF EFFECTS                         
  −
      
                               By
 
                               By
  −
      
                       John Gales Sauls                                 
 
                       John Gales Sauls                                 
   
               Special Agent and Legal Instructor
 
               Special Agent and Legal Instructor
   
                         FBI Academy
 
                         FBI Academy
   
                     Quantico, Virginia
 
                     Quantico, Virginia
 +
</pre>                                         
   −
                   
+
A police department receives an anonymous tip that a bomb
 
  −
                                                                 
  −
 
  −
    A police department receives an anonymous tip that a bomb
  −
 
   
is concealed in a package addressed to a foreign embassy located
 
is concealed in a package addressed to a foreign embassy located
   
in its jurisdiction.  The package has been sent via a package
 
in its jurisdiction.  The package has been sent via a package
   
delivery service.  The police contact the delivery service,
 
delivery service.  The police contact the delivery service,
   
which has five packages addressed to the embassy.  The police
 
which has five packages addressed to the embassy.  The police
   
converge on the delivery service, immediately subject each
 
converge on the delivery service, immediately subject each
   
package to X-ray examination, and seize one package that appears
 
package to X-ray examination, and seize one package that appears
   
to contain explosives.  This package is then taken to a safe
 
to contain explosives.  This package is then taken to a safe
   
disposal area, where it is opened, and the explosive device is
 
disposal area, where it is opened, and the explosive device is
   
disarmed.  No warrant is obtained for the X-ray examination, the
 
disarmed.  No warrant is obtained for the X-ray examination, the
   
seizure, or the search performed when the package is opened.
 
seizure, or the search performed when the package is opened.
   −
 
+
Other officers of the department receive a tip that a
 
  −
    Other officers of the department receive a tip that a
  −
 
   
package arriving by bus contains a large quantity of cocaine.
 
package arriving by bus contains a large quantity of cocaine.
   
The tipster provides a description of the package, including the
 
The tipster provides a description of the package, including the
   
name of the addressee.  Officers locate the package at the bus
 
name of the addressee.  Officers locate the package at the bus
   
station and detain it for several minutes until a trained drug
 
station and detain it for several minutes until a trained drug
   
detection dog is able to sniff it. (1)  The dog alerts, and the
 
detection dog is able to sniff it. (1)  The dog alerts, and the
   
police maintain a surveillance until a man comes to claim the
 
police maintain a surveillance until a man comes to claim the
   
package.  The man is held while the police open the package,
 
package.  The man is held while the police open the package,
   
discovering the cocaine.  The man is then arrested.  No warrant
 
discovering the cocaine.  The man is then arrested.  No warrant
   
was obtained for the search of the package or the man's arrest.
 
was obtained for the search of the package or the man's arrest.
   −
 
+
In each of these situations, officers have made on-the-spot
 
  −
    In each of these situations, officers have made on-the-spot
  −
 
   
decisions to conduct searches and seizures without warrants.  In
 
decisions to conduct searches and seizures without warrants.  In
   
the prosecutions that follow, the defendants will likely
 
the prosecutions that follow, the defendants will likely
   
challenge the admissibility of the seized evidence, claiming it
 
challenge the admissibility of the seized evidence, claiming it
   
was obtained in violation of their constitutional rights.
 
was obtained in violation of their constitutional rights.
   
Because the searches and seizures were performed without
 
Because the searches and seizures were performed without
   
warrants, the burden of establishing their legality will rest
 
warrants, the burden of establishing their legality will rest
   
upon the government. (2)
 
upon the government. (2)
   −
 
+
What emergency circumstances justify an officer searching
 
  −
    What emergency circumstances justify an officer searching
  −
 
   
or seizing, without a warrant, items of personal property
 
or seizing, without a warrant, items of personal property
   
effects? (3)  This article seeks to answer that crucial question
 
effects? (3)  This article seeks to answer that crucial question
   
through an exploration of the "emergency" or "exigent
 
through an exploration of the "emergency" or "exigent
   
circumstances" exception to the fourth amendment warrant
 
circumstances" exception to the fourth amendment warrant
   
requirement. (4)
 
requirement. (4)
   −
 
+
Courts commonly recognize three threats as providing
 
  −
    Courts commonly recognize three threats as providing
  −
 
   
justification for emergency warrantless action--danger to life,
 
justification for emergency warrantless action--danger to life,
   
danger of escape, and danger of destruction or removal of
 
danger of escape, and danger of destruction or removal of
   
evidence.  The presence of any one of these threats may provide
 
evidence.  The presence of any one of these threats may provide
   
justification for a warrantless search or seizure of personal
 
justification for a warrantless search or seizure of personal
   
property.  There are different legal standards for emergency
 
property.  There are different legal standards for emergency
   
action based upon danger to life and that involving the danger
 
action based upon danger to life and that involving the danger
   
of escape or destruction of evidence.  Awareness of the type of
 
of escape or destruction of evidence.  Awareness of the type of
   
emergency present in a particular situation is the key to
 
emergency present in a particular situation is the key to
   
correct on-the-spot decisions.
 
correct on-the-spot decisions.
   −
 
+
This article will first examine U.S. Supreme Court and
 
  −
    This article will first examine U.S. Supreme Court and
  −
 
   
lower court decisions considering the legality of warrantless
 
lower court decisions considering the legality of warrantless
   
searches of effects based upon suspected threats to life.  It
 
searches of effects based upon suspected threats to life.  It
   
will focus on the legal standard for such emergency searches and
 
will focus on the legal standard for such emergency searches and
   
the circumstances courts commonly deem sufficient for
 
the circumstances courts commonly deem sufficient for
   
establishing a threat to life and the allowable scope of action
 
establishing a threat to life and the allowable scope of action
   
for dealing with that threat.  The article will then examine
 
for dealing with that threat.  The article will then examine
   
cases involving warrantless searches of effects based upon
 
cases involving warrantless searches of effects based upon
   
emergency threats of destruction or removal of evidence.
 
emergency threats of destruction or removal of evidence.
         
THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DEFINED
 
THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DEFINED
   −
 
+
The fourth amendment protects persons in the United States
 
  −
    The fourth amendment protects persons in the United States
  −
 
   
from "unreasonable" searches or seizures of their effects. (5)
 
from "unreasonable" searches or seizures of their effects. (5)
   
The U.S. Supreme Court, in determining what government
 
The U.S. Supreme Court, in determining what government
   
intrusions are reasonable under the fourth amendment, has
 
intrusions are reasonable under the fourth amendment, has
   
expressed an emphatic preference for searches and seizures made
 
expressed an emphatic preference for searches and seizures made
   
pursuant to judicially issued warrants. (6)  As the Court has
 
pursuant to judicially issued warrants. (6)  As the Court has
   
stated, the "Constitution requires that the deliberate,
 
stated, the "Constitution requires that the deliberate,
   
impartial judgment of a judicial officer be interposed between
 
impartial judgment of a judicial officer be interposed between
   
the citizen and the police... [and] searches conducted outside
 
the citizen and the police... [and] searches conducted outside
   
the judicial process, without prior approval by a judge or
 
the judicial process, without prior approval by a judge or
   
magistrate, are per se unreasonable under the Fourth Amendment
 
magistrate, are per se unreasonable under the Fourth Amendment
   
subject to a few specifically established and well-delineated
 
subject to a few specifically established and well-delineated
   
exceptions." (7)
 
exceptions." (7)
   −
 
+
In most situations then, a "reasonable" search or seizure
 
  −
    In most situations then, a "reasonable" search or seizure
  −
 
   
is one performed with a valid warrant.  Consequently, for fourth
 
is one performed with a valid warrant.  Consequently, for fourth
   
amendment purposes, "reasonable" is a legal term with a
 
amendment purposes, "reasonable" is a legal term with a
   
meaning different from that attached to the word as it is
 
meaning different from that attached to the word as it is
   
commonly used.  There are exceptions to the warrant
 
commonly used.  There are exceptions to the warrant
   
requirement--"reasonable" warrantless searches and seizures--
 
requirement--"reasonable" warrantless searches and seizures--
   
but these exceptions are created not by what a police officer
 
but these exceptions are created not by what a police officer
   
might believe to be reasonable but by a court's assessment of
 
might believe to be reasonable but by a court's assessment of
   
necessity.  The "exceptions are `jealously and carefully
 
necessity.  The "exceptions are `jealously and carefully
   
drawn,' and there must be `a showing by those who seek exemption
 
drawn,' and there must be `a showing by those who seek exemption
   
[from the warrant requirement]...that the exigencies of the
 
[from the warrant requirement]...that the exigencies of the
   
situation made that course imperative' "(citations omitted).
 
situation made that course imperative' "(citations omitted).
   
(8) The Court has recognized the need to provide for emergency
 
(8) The Court has recognized the need to provide for emergency
   
situations "...where the societal costs of obtaining a warrant,
 
situations "...where the societal costs of obtaining a warrant,
   
such as danger to law officers or the risk of loss or
 
such as danger to law officers or the risk of loss or
   
destruction of evidence, outweigh the reasons for prior recourse
 
destruction of evidence, outweigh the reasons for prior recourse
   
to a neutral magistrate," (9) but the government bears the
 
to a neutral magistrate," (9) but the government bears the
   
burden of showing the warrantless action was necessary. (10)
 
burden of showing the warrantless action was necessary. (10)
         
DANGER TO LIFE EMERGENCY
 
DANGER TO LIFE EMERGENCY
   −
 
+
Because of the high value our society places on life, a
 
  −
    Because of the high value our society places on life, a
  −
 
   
circumstance that has a profound impact on the reasonableness of
 
circumstance that has a profound impact on the reasonableness of
   
a warrantless search or seizure is whether such action is taken
 
a warrantless search or seizure is whether such action is taken
   
to neutralize a suspected threat to human life.  The U.S.
 
to neutralize a suspected threat to human life.  The U.S.
   
Supreme Court has stated that "[t]he Fourth Amendment does not
 
Supreme Court has stated that "[t]he Fourth Amendment does not
   
require police officers to delay in the course of an
 
require police officers to delay in the course of an
   
investigation if to do so would gravely endanger their lives or
 
investigation if to do so would gravely endanger their lives or
   
the lives of others." (11)  In fact, the Court has approved a
 
the lives of others." (11)  In fact, the Court has approved a
   
lower standard of proof--reasonable suspicion--for justifying
 
lower standard of proof--reasonable suspicion--for justifying
   
warrantless searches based upon a perceived danger to life, so
 
warrantless searches based upon a perceived danger to life, so
   
long as the action taken is no greater than necessary to
 
long as the action taken is no greater than necessary to
   
eliminate the danger. (12) Therefore, where a warrantless search
 
eliminate the danger. (12) Therefore, where a warrantless search
   
or seizure is made in response to a perceived threat to life,
 
or seizure is made in response to a perceived threat to life,
   
the government must be prepared to show that at the time of the
 
the government must be prepared to show that at the time of the
   
action:  1) Facts were known that would cause a reasonable
 
action:  1) Facts were known that would cause a reasonable
   
person to suspect that prompt action was necessary to protect
 
person to suspect that prompt action was necessary to protect
   
human life; and 2) that the action taken was no more intrusive
 
human life; and 2) that the action taken was no more intrusive
   
than necessary to eliminate the suspected threat.
 
than necessary to eliminate the suspected threat.
         
Suspected Presence of Dangerous Instrumentalities
 
Suspected Presence of Dangerous Instrumentalities
   −
 
+
In Michigan v. Long, (13) two officers patrolling a country
 
  −
    In Michigan v. Long, (13) two officers patrolling a country
  −
 
   
road late at night saw a car being driven erratically and at
 
road late at night saw a car being driven erratically and at
   
excessive speed.  Before they could stop the car, it turned onto
 
excessive speed.  Before they could stop the car, it turned onto
   
a side road and swerved into a ditch. (14)  Mr. Long, the sole
 
a side road and swerved into a ditch. (14)  Mr. Long, the sole
   
occupant of the car, met the officers at its rear.  The driver's
 
occupant of the car, met the officers at its rear.  The driver's
   
door was left open.  After two requests, Long produced his
 
door was left open.  After two requests, Long produced his
   
driver's license, and after a second request for the vehicle's
 
driver's license, and after a second request for the vehicle's
   
registration, he started walking toward the open driver's door.
 
registration, he started walking toward the open driver's door.
   
The officers followed, and before Long could enter the car, they
 
The officers followed, and before Long could enter the car, they
   
saw a large hunting knife on the car's floorboard.  Now
 
saw a large hunting knife on the car's floorboard.  Now
   
suspecting that Long might have weapons on his person, the
 
suspecting that Long might have weapons on his person, the
   
officers stopped him and performed a patdown search. (15)  This
 
officers stopped him and performed a patdown search. (15)  This
   
search revealed no weapons.  Suspecting that there might be
 
search revealed no weapons.  Suspecting that there might be
   
other weapons in the car, one officer shined his flashlight into
 
other weapons in the car, one officer shined his flashlight into
   
the interior, saw a pouch protruding from beneath the center
 
the interior, saw a pouch protruding from beneath the center
   
armrest, and entered the car and raised the armrest to examine
 
armrest, and entered the car and raised the armrest to examine
   
it.  The pouch was open and contained marijuana.  This discovery
 
it.  The pouch was open and contained marijuana.  This discovery
   
prompted Long's arrest.
 
prompted Long's arrest.
   −
 
+
In assessing the reasonableness of this warrantless entry
 
  −
    In assessing the reasonableness of this warrantless entry
  −
 
   
and limited search of Long's car, the Supreme Court approved the
 
and limited search of Long's car, the Supreme Court approved the
   
officers' actions, noting both the factual justification for
 
officers' actions, noting both the factual justification for
   
suspecting the presence of weapons and the circumscribed nature
 
suspecting the presence of weapons and the circumscribed nature
   
of their search. (16)  The Court held that where officers
 
of their search. (16)  The Court held that where officers
   
reasonably suspect the presence of readily accessible deadly
 
reasonably suspect the presence of readily accessible deadly
   
weapons in a lawfully stopped vehicle, they may make a limited
 
weapons in a lawfully stopped vehicle, they may make a limited
   
search of the vehicle's interior for the purpose of locating and
 
search of the vehicle's interior for the purpose of locating and
   
controlling the weapons. (17)  In performing such a search,
 
controlling the weapons. (17)  In performing such a search,
   
officers must restrict their examination to those places where
 
officers must restrict their examination to those places where
   
readily accessible weapons might be concealed. (18)
 
readily accessible weapons might be concealed. (18)
   −
 
+
The officers in Long were able to protect themselves and
 
  −
    The officers in Long were able to protect themselves and
  −
 
   
the public with a cursory search of the car's interior.
 
the public with a cursory search of the car's interior.
   
Different facts will support a search with a broader scope.  For
 
Different facts will support a search with a broader scope.  For
   
example, in Cady v. Dombrowski, (19) the Supreme Court assessed
 
example, in Cady v. Dombrowski, (19) the Supreme Court assessed
   
the legality of a search of the trunk of an arrestee's car that
 
the legality of a search of the trunk of an arrestee's car that
   
had been impounded and stored at an unsecured private lot.  The
 
had been impounded and stored at an unsecured private lot.  The
   
car's owner was arrested for murder, and after the car had been
 
car's owner was arrested for murder, and after the car had been
   
towed from the arrest scene, the police learned facts causing
 
towed from the arrest scene, the police learned facts causing
   
them to suspect that a handgun might be in the car.  Officers
 
them to suspect that a handgun might be in the car.  Officers
   
went to the private lot where the car was located and found a
 
went to the private lot where the car was located and found a
   
revolver (which was later determined to be the murder weapon) in
 
revolver (which was later determined to be the murder weapon) in
   
the car's trunk.  In approving the reasonableness of this
 
the car's trunk.  In approving the reasonableness of this
   
warrantless search, the Court cited its "...concern for the
 
warrantless search, the Court cited its "...concern for the
   
safety of the general public who might be endangered if an
 
safety of the general public who might be endangered if an
   
intruder removed a revolver from the trunk of the [unsecured,
 
intruder removed a revolver from the trunk of the [unsecured,
   
unattended] vehicle." (20)
 
unattended] vehicle." (20)
   −
 
+
The interior of a suitcase, (21) briefcase, (22) handbag,
 
  −
    The interior of a suitcase, (21) briefcase, (22) handbag,
  −
 
   
(23) or package suspected to contain a dangerous instrumentality
 
(23) or package suspected to contain a dangerous instrumentality
   
may also be searched without a warrant where necessary to
 
may also be searched without a warrant where necessary to
   
protect persons.  For example, in United States v. Sarkissian,
 
protect persons.  For example, in United States v. Sarkissian,
   
(24) officers had reason to believe that explosives were
 
(24) officers had reason to believe that explosives were
   
concealed in luggage arriving on a commercial airline flight.
 
concealed in luggage arriving on a commercial airline flight.
   
Suitcases unloaded from the plane were sniffed by a dog trained
 
Suitcases unloaded from the plane were sniffed by a dog trained
   
in detecting explosives and examined by X-ray.  A suitcase,
 
in detecting explosives and examined by X-ray.  A suitcase,
   
appearing on X-ray to contain explosives, was opened and
 
appearing on X-ray to contain explosives, was opened and
   
searched.  These warrantless actions were held reasonable based
 
searched.  These warrantless actions were held reasonable based
   
upon the peril posed by unsecured explosives.
 
upon the peril posed by unsecured explosives.
   −
 
+
In United States v. Miller, (25) a limited search of the  
 
  −
    In United States v. Miller, (25) a limited search of the  
  −
 
   
interior of a purse was approved as a reasonable protective
 
interior of a purse was approved as a reasonable protective
   
measure.  On a day Miller's husband was to be arraigned for a
 
measure.  On a day Miller's husband was to be arraigned for a
   
felony, she entered the courtroom with a coat draped over her
 
felony, she entered the courtroom with a coat draped over her
   
arm concealing a large handbag.  She sat near the rear of the
 
arm concealing a large handbag.  She sat near the rear of the
   
courtroom along the center aisle, where her husband, who was in
 
courtroom along the center aisle, where her husband, who was in
   
custody, would soon be walking.  She rested her hand upon her
 
custody, would soon be walking.  She rested her hand upon her
   
partly opened bag.  A marshall, aware of these facts and having
 
partly opened bag.  A marshall, aware of these facts and having
   
been informed that a report had been received that Miller's
 
been informed that a report had been received that Miller's
   
husband might attempt an escape, opened Miller's bag further,
 
husband might attempt an escape, opened Miller's bag further,
   
locating a firearm.  In holding the marshall's actions
 
locating a firearm.  In holding the marshall's actions
   
reasonable under the fourth amendment, the court noted that,
 
reasonable under the fourth amendment, the court noted that,
   
coupled with the report that an escape might occur,
 
coupled with the report that an escape might occur,
   
"...Miller's concealment of her handbag upon entry, the
 
"...Miller's concealment of her handbag upon entry, the
   
strategic seat she selected, and the convenient placement of her
 
strategic seat she selected, and the convenient placement of her
   
open bag made reasonable the belief that she might be armed." (26)
 
open bag made reasonable the belief that she might be armed." (26)
         
Suspected Presence of Information Crucial to Preserving Life       
 
Suspected Presence of Information Crucial to Preserving Life       
   −
 
+
Officers occasionally are confronted with facts that cause
 
  −
    Officers occasionally are confronted with facts that cause
  −
 
   
them to reasonably suspect that information necessary to
 
them to reasonably suspect that information necessary to
   
preserve the life of a person is contained in an effect.  For
 
preserve the life of a person is contained in an effect.  For
   
example, in United States v. Dunavan, (27) officers responded to
 
example, in United States v. Dunavan, (27) officers responded to
   
a report of a disabled car that had set the grass beneath it on
 
a report of a disabled car that had set the grass beneath it on
   
fire.  In the driver's seat, they found Dunavan, who was
 
fire.  In the driver's seat, they found Dunavan, who was
   
"foaming at the mouth and unable to talk." (28)  Dunavan was
 
"foaming at the mouth and unable to talk." (28)  Dunavan was
   
rushed to the hospital, and the officers then sought to
 
rushed to the hospital, and the officers then sought to
   
determine the cause of his malady in the hope of providing
 
determine the cause of his malady in the hope of providing
   
information that would aid in his treatment.  In the course of
 
information that would aid in his treatment.  In the course of
   
this effort, they opened two briefcases belonging to Dunavan,
 
this effort, they opened two briefcases belonging to Dunavan,
   
revealing evidence of crime.  This action was held to be a
 
revealing evidence of crime.  This action was held to be a
   
reasonably limited search responsive to the emergency at hand.
 
reasonably limited search responsive to the emergency at hand.
         
DANGER OF DESTRUCTION OR REMOVAL OF EVIDENCE EMERGENCY
 
DANGER OF DESTRUCTION OR REMOVAL OF EVIDENCE EMERGENCY
   −
 
+
In addition to danger to life, the U.S. Supreme Court has
 
  −
    In addition to danger to life, the U.S. Supreme Court has
  −
 
   
also recognized the danger of destruction or removal of evidence
 
also recognized the danger of destruction or removal of evidence
   
as embodying exigent circumstances sufficient to justify
 
as embodying exigent circumstances sufficient to justify
   
warrantless action. (29)  In regard to effects, the action
 
warrantless action. (29)  In regard to effects, the action
   
permissible to prevent the destruction or removal of evidence is
 
permissible to prevent the destruction or removal of evidence is
   
substantially less than that allowed to protect life.
 
substantially less than that allowed to protect life.
   
Generally, only a warrantless seizure of an effect will be
 
Generally, only a warrantless seizure of an effect will be
   
allowed to preserve evidence, not a warrantless search of the
 
allowed to preserve evidence, not a warrantless search of the
   
effect's contents.
 
effect's contents.
   −
 
+
The factual justification required to support a warrantless
 
  −
    The factual justification required to support a warrantless
  −
 
   
seizure of an effect to prevent the destruction or removal of
 
seizure of an effect to prevent the destruction or removal of
   
evidence depends on the extent of control exercised by the
 
evidence depends on the extent of control exercised by the
   
government over the item.  The Supreme Court has recognized two
 
government over the item.  The Supreme Court has recognized two
   
distinct types of seizures of effects:  1) Temporary detention,
 
distinct types of seizures of effects:  1) Temporary detention,
   
which requires a showing of reasonable suspicion to believe the
 
which requires a showing of reasonable suspicion to believe the
   
item contains evidence or contraband; and 2) a more absolute
 
item contains evidence or contraband; and 2) a more absolute
   
seizure, which must be justified through a showing of probable
 
seizure, which must be justified through a showing of probable
   
cause to search the interior of the item for evidence or
 
cause to search the interior of the item for evidence or
   
contraband.
 
contraband.
         
Temporary Detention of Effects
 
Temporary Detention of Effects
   −
 
+
In United States v. Place, (30) the Supreme Court approved
 
  −
    In United States v. Place, (30) the Supreme Court approved
  −
 
   
temporary detention by the police of luggage reasonably
 
temporary detention by the police of luggage reasonably
   
suspected (31) to contain illegal drugs.  Place was an airline
 
suspected (31) to contain illegal drugs.  Place was an airline
   
traveler who aroused the suspicion of police based upon his
 
traveler who aroused the suspicion of police based upon his
   
appearance, travel itinerary, and conduct.  Officers took
 
appearance, travel itinerary, and conduct.  Officers took
   
Place's two suitcases from him, stating that they would seek a
 
Place's two suitcases from him, stating that they would seek a
   
search warrant for the bags.  They then transported the
 
search warrant for the bags.  They then transported the
   
suitcases from New York's La Guardia Airport to Kennedy Airport,
 
suitcases from New York's La Guardia Airport to Kennedy Airport,
   
where they were sniffed by a trained drug detection dog 90
 
where they were sniffed by a trained drug detection dog 90
   
minutes after the seizure.  Although the Court approved the
 
minutes after the seizure.  Although the Court approved the
   
initial seizure of Place's suitcases, it held the seizure
 
initial seizure of Place's suitcases, it held the seizure
   
ultimately involved too great an interference in Place's
 
ultimately involved too great an interference in Place's
   
possessory interest in his property to be reasonable.  Citing
 
possessory interest in his property to be reasonable.  Citing
   
the length of time of the seizure as unnecessarily long, the
 
the length of time of the seizure as unnecessarily long, the
   
Court also noted "...the failure of the agents to accurately
 
Court also noted "...the failure of the agents to accurately
   
inform [Place] of the place to which they were transporting his
 
inform [Place] of the place to which they were transporting his
   
luggage, of the length of time he might be dispossessed, and of
 
luggage, of the length of time he might be dispossessed, and of
   
what arrangements would be made for the return of the luggage if
 
what arrangements would be made for the return of the luggage if
   
the investigation dispelled the suspicion." (32)  This holding
 
the investigation dispelled the suspicion." (32)  This holding
   
is premised, in part, on the fact that luggage frequently
 
is premised, in part, on the fact that luggage frequently
   
contains necessities to which travelers need ready access.  Less
 
contains necessities to which travelers need ready access.  Less
   
lengthy temporary seizures of luggage have been upheld as
 
lengthy temporary seizures of luggage have been upheld as
   
reasonable. (33)
 
reasonable. (33)
   −
 
+
Other types of effects may be detained for greater periods
 
  −
    Other types of effects may be detained for greater periods
  −
 
   
of time without the seizure becoming unreasonable.  For example,
 
of time without the seizure becoming unreasonable.  For example,
   
in United States v. Van Leeuwen, (34) the Supreme Court upheld as
 
in United States v. Van Leeuwen, (34) the Supreme Court upheld as
   
reasonable a detention of a mailed package that lasted several
 
reasonable a detention of a mailed package that lasted several
   
hours.  In United States v. LaFrance, (35) a 4-hour detention of a
 
hours.  In United States v. LaFrance, (35) a 4-hour detention of a
   
package shipped via Federal Express was approved.  These
 
package shipped via Federal Express was approved.  These
   
decisions are founded on the premise that the sender or
 
decisions are founded on the premise that the sender or
   
addressee of a package shipped or mailed has a substantially
 
addressee of a package shipped or mailed has a substantially
   
reduced expectation of ready access to that item. (36)
 
reduced expectation of ready access to that item. (36)
         
Probable Cause Seizures
 
Probable Cause Seizures
   −
 
+
The goal of a temporary detention of an effect is the  
 
  −
    The goal of a temporary detention of an effect is the  
  −
 
   
development of facts amounting to probable cause to search that  
 
development of facts amounting to probable cause to search that  
   
item.  This is accomplished through investigation performed  
 
item.  This is accomplished through investigation performed  
   
during the period of temporary detention, and in drug cases,
 
during the period of temporary detention, and in drug cases,
   
frequently includes the use of drug detection dogs.  Once
 
frequently includes the use of drug detection dogs.  Once
   
probable cause to search has been established, a more absolute
 
probable cause to search has been established, a more absolute
   
seizure becomes reasonable. (37)  Officers may take control of
 
seizure becomes reasonable. (37)  Officers may take control of
   
the effect to prevent the destruction or removal of evidence for
 
the effect to prevent the destruction or removal of evidence for
   
a reasonable period while application is made for a search
 
a reasonable period while application is made for a search
   
warrant. (38)  This allows them to protect the evidence until
 
warrant. (38)  This allows them to protect the evidence until
   
judicial authorization may be obtained to open the item and
 
judicial authorization may be obtained to open the item and
   
examine its contents.
 
examine its contents.
         
SUMMARY
 
SUMMARY
   −
 
+
Returning to the hypothetical situations presented at the
 
  −
    Returning to the hypothetical situations presented at the
  −
 
   
beginning of this article, in each case, the officers were
 
beginning of this article, in each case, the officers were
   
confronted with circumstances they believed required an
 
confronted with circumstances they believed required an
   
immediate search.  The officers who reasonably suspected that a
 
immediate search.  The officers who reasonably suspected that a
   
bomb was present in a package bound for an embassy needed to
 
bomb was present in a package bound for an embassy needed to
   
verify or dispel the suspicion as quickly as possible to prevent
 
verify or dispel the suspicion as quickly as possible to prevent
   
unnecessary danger to life.  The warrantless actions they
 
unnecessary danger to life.  The warrantless actions they
   
performed--the X-ray examinations followed by the opening of the
 
performed--the X-ray examinations followed by the opening of the
   
package that appeared to contain explosives--were appropriate
 
package that appeared to contain explosives--were appropriate
   
based upon reasonable suspicion and were reasonably limited to
 
based upon reasonable suspicion and were reasonably limited to
   
accomplish their purpose, that is, eliminating the threat posed
 
accomplish their purpose, that is, eliminating the threat posed
   
by the explosives.
 
by the explosives.
   −
 
+
The officers investigating the suspected drug activity were
 
  −
    The officers investigating the suspected drug activity were
  −
 
   
also justified in performing certain prompt warrantless actions.
 
also justified in performing certain prompt warrantless actions.
   
Their initial seizure was lawful, based upon their reasonable
 
Their initial seizure was lawful, based upon their reasonable
   
suspicion that the package contained illegal drugs.  The canine
 
suspicion that the package contained illegal drugs.  The canine
   
sniff was also lawful, since it was promptly accomplished.
 
sniff was also lawful, since it was promptly accomplished.
   
However, once probable cause to search was established, the
 
However, once probable cause to search was established, the
   
emergency threat of removal or destruction of evidence could
 
emergency threat of removal or destruction of evidence could
   
have been eliminated merely by taking control of the package
 
have been eliminated merely by taking control of the package
   
pending issuance of a search warrant.  Consequently, the
 
pending issuance of a search warrant.  Consequently, the
   
examination of the contents of the package without a warrant was
 
examination of the contents of the package without a warrant was
   
not a valid emergency search. (39)
 
not a valid emergency search. (39)
         
CONCLUSION
 
CONCLUSION
   −
 
+
This article has set out requirements for emergency
 
  −
    This article has set out requirements for emergency
  −
 
   
searches and seizures of effects based upon:  (1) Threats to
 
searches and seizures of effects based upon:  (1) Threats to
   
life; and (2) threats of destruction of evidence.  Because the
 
life; and (2) threats of destruction of evidence.  Because the
   
scope of warrantless action allowed under the fourth amendment
 
scope of warrantless action allowed under the fourth amendment
   
differs depending upon the category of emergency threat
 
differs depending upon the category of emergency threat
   
involved, it is essential that officers considering the
 
involved, it is essential that officers considering the
   
lawfulness of a proposed emergency search evaluate the type of
 
lawfulness of a proposed emergency search evaluate the type of
   
threat presented.  Once that determination is made, the
 
threat presented.  Once that determination is made, the
   
appropriate legal standard may be applied to the facts known.
 
appropriate legal standard may be applied to the facts known.
   
Where warrantless searches and seizures are necessary, clear
 
Where warrantless searches and seizures are necessary, clear
   
awareness of the type and nature of the threat involved will
 
awareness of the type and nature of the threat involved will
   
also facilitate limitation of the scope of the warrantless
 
also facilitate limitation of the scope of the warrantless
   
action to only that which is necessary to eliminate the threat.
 
action to only that which is necessary to eliminate the threat.
  −
        Line 686: Line 353:  
FOOTNOTES                                                         
 
FOOTNOTES                                                         
   −
 
+
(1)  For an excellent discussion of the legal issues
 
  −
    (1)  For an excellent discussion of the legal issues
  −
 
   
associated with the use of drug detection dogs, see Kingston,
 
associated with the use of drug detection dogs, see Kingston,
   
"Hounding Drug Traffickers:  The Use of Drug Detection Dogs,"
 
"Hounding Drug Traffickers:  The Use of Drug Detection Dogs,"
   
FBI Law Enforcement Bulletin, August 1989, pp. 26-32.
 
FBI Law Enforcement Bulletin, August 1989, pp. 26-32.
   −
 
+
(2)  McDonald v. United States, 335 U.S. 451 (1948); Katz v.  
 
  −
    (2)  McDonald v. United States, 335 U.S. 451 (1948); Katz v.  
  −
 
   
United States, 389 U.S. 347 (1967).                               
 
United States, 389 U.S. 347 (1967).                               
   −
 
+
(3)  The fourth amendment to the U.S. Constitution provides:   
 
  −
    (3)  The fourth amendment to the U.S. Constitution provides:   
  −
 
   
"The right of the people to be secure in their persons, houses,  
 
"The right of the people to be secure in their persons, houses,  
   
papers and effects against unreasonable searches and seizures  
 
papers and effects against unreasonable searches and seizures  
   
shall not be violated...."  Effects include such personal  
 
shall not be violated...."  Effects include such personal  
   
property as packages, suitcases, handbags, etc., as well as  
 
property as packages, suitcases, handbags, etc., as well as  
   
vehicles.                                                         
 
vehicles.                                                         
   −
 
+
(4)  For a discussion of emergency searches of premises, see  
 
  −
    (4)  For a discussion of emergency searches of premises, see  
  −
 
   
Sauls, "Emergency Searches of Premises," FBI Law Enforcement  
 
Sauls, "Emergency Searches of Premises," FBI Law Enforcement  
   
Bulletin, Part I, March 1987, pp. 23-30, Conclusion, April 1987,  
 
Bulletin, Part I, March 1987, pp. 23-30, Conclusion, April 1987,  
   
pp. 24-30.  For a discussion of emergency searches of persons,  
 
pp. 24-30.  For a discussion of emergency searches of persons,  
   
see Sauls, "Emergency Searches of Persons," FBI Law Enforcement  
 
see Sauls, "Emergency Searches of Persons," FBI Law Enforcement  
   
Bulletin, January 1988, pp. 24-30.                                 
 
Bulletin, January 1988, pp. 24-30.                                 
    +
(5)  See, e.g., Arkansas v. Sanders, 442 U.S. 753 (1979).       
    +
(6)  See Katz v. United States, supra note 2.                   
   −
    (5)  See, e.g., Arkansas v. Sanders, 442 U.S. 753 (1979).       
+
(7)  Id. at 357.                                                 
 
  −
 
  −
 
  −
    (6)  See Katz v. United States, supra note 2.                   
  −
 
  −
 
  −
 
  −
    (7)  Id. at 357.                                                 
      +
(8)  Coolidge v. New Hampshire, 403 U.S. 443, 445 (1971).       
    +
(9)  Supra note 5, at 759.                                     
   −
    (8) Coolidge v. New Hampshire, 403 U.S. 443, 445 (1971).       
+
(10) Supra note 2.                                            
    +
(11) Warden v. Hayden 387 U.S. 294, 298-99 (1967).             
   −
 
+
(12) Maryland v. Buie, 110 S.Ct. 1093 (1990); Michigan v.  
    (9)  Supra note 5, at 759.                                     
  −
 
  −
 
  −
 
  −
    (10) Supra note 2.                                             
  −
 
  −
 
  −
 
  −
    (11) Warden v. Hayden 387 U.S. 294, 298-99 (1967).             
  −
 
  −
 
  −
 
  −
    (12) Maryland v. Buie, 110 S.Ct. 1093 (1990); Michigan v.  
  −
 
   
Long, 463 U.S. 1032 (1983); Terry v. Ohio, 392 U.S. 1 (1968).   
 
Long, 463 U.S. 1032 (1983); Terry v. Ohio, 392 U.S. 1 (1968).   
   
The U.S. Supreme Court has yet to decide whether reasonable  
 
The U.S. Supreme Court has yet to decide whether reasonable  
   
suspicion is the standard by which the reasonableness of all  
 
suspicion is the standard by which the reasonableness of all  
   
danger to life emergency searches should be measured.  The Court  
 
danger to life emergency searches should be measured.  The Court  
   
has stated, however, that probable cause is not always the  
 
has stated, however, that probable cause is not always the  
   
standard by which the legality of a search should be measured,  
 
standard by which the legality of a search should be measured,  
   
even where the search constitutes a substantial intrusion into a  
 
even where the search constitutes a substantial intrusion into a  
   
person's privacy.  See New Jersey v. T. L.O., 469 U.S. 325,  
 
person's privacy.  See New Jersey v. T. L.O., 469 U.S. 325,  
   
340-41 (1984).                                                     
 
340-41 (1984).                                                     
    +
(13) 463 U.S. 1032 (1983).                                     
   −
 
+
(14) For a discussion of the legal issues associated with  
    (13) 463 U.S. 1032 (1983).                                     
  −
 
  −
 
  −
 
  −
    (14) For a discussion of the legal issues associated with  
  −
 
   
vehicle stops, see Sauls, "Traffic Stops:  Police Powers Under  
 
vehicle stops, see Sauls, "Traffic Stops:  Police Powers Under  
   
the Fourth Amendment," FBI Law Enforcement Bulletin, Part I,  
 
the Fourth Amendment," FBI Law Enforcement Bulletin, Part I,  
   
September 1989, pp. 26-31; Conclusion, October 1989, pp. 27-32.   
 
September 1989, pp. 26-31; Conclusion, October 1989, pp. 27-32.   
   −
 
+
(15) For an excellent discussion of investigative detention  
 
  −
    (15) For an excellent discussion of investigative detention  
  −
 
   
and frisk searches, see Hall, "Investigative Detention:  An  
 
and frisk searches, see Hall, "Investigative Detention:  An  
   
Intermediate Response," FBI Law Enforcement Bulletin, Part I,  
 
Intermediate Response," FBI Law Enforcement Bulletin, Part I,  
   
November 1985, pp. 25-31; Part II, December 1985, pp. 18-23;  
 
November 1985, pp. 25-31; Part II, December 1985, pp. 18-23;  
   
Conclusion, January 1986, pp. 23-29.                               
 
Conclusion, January 1986, pp. 23-29.                               
    +
(16) Supra note 13, at 1051.                                   
    +
(17) Id.                                                       
   −
    (16) Supra note 13, at 1051.                                   
+
(18) Id.  The scope of such a search includes the interior of  
 
  −
 
  −
 
  −
    (17) Id.                                                       
  −
 
  −
 
  −
 
  −
    (18) Id.  The scope of such a search includes the interior of  
  −
 
   
unlocked containers that might conceal deadly weapons.  See  
 
unlocked containers that might conceal deadly weapons.  See  
   
United States v. Williams, 626 F.2d 697 (9th Cir. 1980), cert.  
 
United States v. Williams, 626 F.2d 697 (9th Cir. 1980), cert.  
   
denied, 449 U.S. 1020 (1980) (purse in suspected bank robber's  
 
denied, 449 U.S. 1020 (1980) (purse in suspected bank robber's  
   
car that was suspected to contain a bomb); United States v.  
 
car that was suspected to contain a bomb); United States v.  
   
Glenna, 878 F.2d 967 (7th Cir. 1989) (suitcase in van suspected  
 
Glenna, 878 F.2d 967 (7th Cir. 1989) (suitcase in van suspected  
   
to contain a bomb); United States v. Longmire, 761 F.2d 411 (7th  
 
to contain a bomb); United States v. Longmire, 761 F.2d 411 (7th  
   
Cir. 1985) (purse in car suspected to contain deadly weapons);  
 
Cir. 1985) (purse in car suspected to contain deadly weapons);  
   
United States v. Williams, 822 F.2d 1174 (D.C. Cir. 1987)  
 
United States v. Williams, 822 F.2d 1174 (D.C. Cir. 1987)  
   
(tactile examination of exterior of paper bag in car suspected to  
 
(tactile examination of exterior of paper bag in car suspected to  
   
contain deadly weapons).                                           
 
contain deadly weapons).                                           
    +
(19) 413 U.S. 433 (1972).                                     
    +
(20) Id. at 447.                                               
   −
    (19) 413 U.S. 433 (1972).                                     
+
(21) United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988).   
 
  −
 
  −
 
  −
    (20) Id. at 447.                                               
  −
 
  −
 
  −
 
  −
    (21) United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988).   
  −
 
   
See also, United States v. Pulido-Baguerizo, 800 F.2d 899 (9th  
 
See also, United States v. Pulido-Baguerizo, 800 F.2d 899 (9th  
   
Cir. 1986).                                                   
 
Cir. 1986).                                                   
   −
 
+
(22) United States v. McClinnhan, 660 F.2d 500 (D.C. Cir. 1981).   
 
  −
    (22) United States v. McClinnhan, 660 F.2d 500 (D.C. Cir. 1981).   
  −
 
   
McClinnhan is noteworthy for its discussion of the dilemma faced  
 
McClinnhan is noteworthy for its discussion of the dilemma faced  
   
by an officer who has reasonable suspicion that a dangerous  
 
by an officer who has reasonable suspicion that a dangerous  
   
instrumentality is contained in an effect, but who has no way of  
 
instrumentality is contained in an effect, but who has no way of  
   
verifying or dispelling his suspicions other than an examination  
 
verifying or dispelling his suspicions other than an examination  
   
of the interior of the effect.  Seizing the effect will not  
 
of the interior of the effect.  Seizing the effect will not  
   
neutralize the dangerous instrumentality, and no warrant can be  
 
neutralize the dangerous instrumentality, and no warrant can be  
   
obtained since the suspicions do not rise to the level of  
 
obtained since the suspicions do not rise to the level of  
   
probable cause to search.  Consequently, a prompt examination of  
 
probable cause to search.  Consequently, a prompt examination of  
   
the effect's interior is the least intrusive measure to  
 
the effect's interior is the least intrusive measure to  
   
neutralize the threat.                                             
 
neutralize the threat.                                             
   −
 
+
(23) United States v. Miller, 468 F.2d 1041 (4th Cir. 1972),  
 
  −
    (23) United States v. Miller, 468 F.2d 1041 (4th Cir. 1972),  
  −
 
   
cert. denied, 410 U.S. 935 (1972).                                 
 
cert. denied, 410 U.S. 935 (1972).                                 
    +
(24) Supra note 21.                                           
    +
(25) Supra note 23.                                           
   −
    (24) Supra note 21.                                            
+
(26) Id. at 1045.                                             
    +
(27) 485 F.2d 201 (6th Cir. 1973).                             
    +
(28) Id. at 202.                                               
   −
    (25) Supra note 23.                                           
+
(29) See Schmerber v. California, 384 U.S. 757 (1966); Vale v.  
 
  −
 
  −
 
  −
    (26) Id. at 1045.                                             
  −
 
  −
 
  −
 
  −
    (27) 485 F.2d 201 (6th Cir. 1973).                             
  −
 
  −
 
  −
 
  −
    (28) Id. at 202.                                               
  −
 
  −
 
  −
 
  −
    (29) See Schmerber v. California, 384 U.S. 757 (1966); Vale v.  
  −
 
   
Louisiana, 399 U.S. 30 (1970).                                     
 
Louisiana, 399 U.S. 30 (1970).                                     
    +
(30) 462 U.S. 696 (1983).                                     
   −
 
+
(31) For examples of facts held to constitute reasonable  
    (30) 462 U.S. 696 (1983).                                     
  −
 
  −
 
  −
 
  −
    (31) For examples of facts held to constitute reasonable  
  −
 
   
suspicion that contraband is present, see United States v.  
 
suspicion that contraband is present, see United States v.  
   
Sokolow, 109 S.Ct. 1581 (1989); United States v. Sharpe, 105  
 
Sokolow, 109 S.Ct. 1581 (1989); United States v. Sharpe, 105  
   
S.Ct. 1568 (1985).                                                 
 
S.Ct. 1568 (1985).                                                 
    +
(32) Supra note 30, at 710.                                   
   −
 
+
(33) See, e.g., United States v. Pantazis, 816 F.2d 361 (8th  
    (32) Supra note 30, at 710.                                   
  −
 
  −
 
  −
 
  −
    (33) See, e.g., United States v. Pantazis, 816 F.2d 361 (8th  
  −
 
   
Cir. 1987); United States v. Alpert, 816 F.2d 958 (4th Cir.  
 
Cir. 1987); United States v. Alpert, 816 F.2d 958 (4th Cir.  
   
1987).                                                             
 
1987).                                                             
    +
(34) 397 U.S. 249 (1970).                                     
    +
(35) 879 F.2d 1 (1st Cir. 1989).                               
   −
    (34) 397 U.S. 249 (1970).                                     
+
(36) See also, United States v. Hillison, 733 F.2d 692 (9th  
 
  −
 
  −
 
  −
    (35) 879 F.2d 1 (1st Cir. 1989).                               
  −
 
  −
 
  −
 
  −
    (36) See also, United States v. Hillison, 733 F.2d 692 (9th  
  −
 
   
Cir. 1984), approving a 9-hour warrantless seizure of a mailed  
 
Cir. 1984), approving a 9-hour warrantless seizure of a mailed  
   
package.                                                           
 
package.                                                           
    +
(37) United States v. Place, supra note 30.                   
   −
 
+
(38) Although considerable latitude is generally allowed, at  
    (37) United States v. Place, supra note 30.                   
  −
 
  −
 
  −
 
  −
    (38) Although considerable latitude is generally allowed, at  
  −
 
   
least some diligence in promptly applying for a search warrant is  
 
least some diligence in promptly applying for a search warrant is  
   
required.  See United States v. Dass, 849 F.2d. 414 (9th Cir.  
 
required.  See United States v. Dass, 849 F.2d. 414 (9th Cir.  
   
1988).                                                             
 
1988).                                                             
   −
 
+
(39) Since the officers have acted without a warrant, as a  
 
  −
    (39) Since the officers have acted without a warrant, as a  
  −
 
   
practical matter, the officers and their prosecutor should  
 
practical matter, the officers and their prosecutor should  
   
consider the potential application of other exceptions to the  
 
consider the potential application of other exceptions to the  
   
warrant requirement, such as Search Incident to Arrest.  These  
 
warrant requirement, such as Search Incident to Arrest.  These  
   
considerations, however, are beyond the scope of this article.     
 
considerations, however, are beyond the scope of this article.     
   −
                                                                 
+
                                                               
 
  −
 
  −
 
   
_______________
 
_______________
      −
 
+
Law enforcement officers of other than Federal jurisdiction  
    Law enforcement officers of other than Federal jurisdiction  
  −
 
   
who are interested in this article should consult their legal  
 
who are interested in this article should consult their legal  
   
adviser.  Some police procedures ruled permissible under Federal  
 
adviser.  Some police procedures ruled permissible under Federal  
   
constitutional law are of questionable legality under State law  
 
constitutional law are of questionable legality under State law  
   
or are not permitted at all.                                       
 
or are not permitted at all.                                       
       +
                                                               
    +
LEGAL BRIEF                                 
    +
MINNICK V. MISSISSIPPI                               
   −
                                                               
+
U.S. SUPREME COURT DECISION                                       
 
  −
                        LEGAL BRIEF                                 
  −
 
  −
                  MINNICK V. MISSISSIPPI                               
  −
 
  −
                U.S. SUPREME COURT DECISION                                       
      
                                                                    
 
                                                                    
   −
    On December 3, 1990, in Minnick v. Mississippi, the Supreme  
+
On December 3, 1990, in Minnick v. Mississippi, the Supreme  
 
   
Court established a new rule concerning the interview of  
 
Court established a new rule concerning the interview of  
   
in-custody suspects who have asserted the right to consult with  
 
in-custody suspects who have asserted the right to consult with  
   
counsel.  In a 6-2 ruling (Justice Souter not participating), the  
 
counsel.  In a 6-2 ruling (Justice Souter not participating), the  
   
Court held that "when counsel is requested, interrogation must  
 
Court held that "when counsel is requested, interrogation must  
   
cease, and officials may not reinitiate interrogation without  
 
cease, and officials may not reinitiate interrogation without  
   
counsel present, whether or not the accused has consulted with  
 
counsel present, whether or not the accused has consulted with  
   
his attorney."                                                   
 
his attorney."                                                   
   −
 
+
Minnick and a companion escaped from a county jail in  
 
  −
    Minnick and a companion escaped from a county jail in  
  −
 
   
Mississippi and committed a house burglary looking for weapons.   
 
Mississippi and committed a house burglary looking for weapons.   
   
They were surprised by the arrival of the occupants of the house  
 
They were surprised by the arrival of the occupants of the house  
   
and murdered two of them.  Minnick fled and was ultimately  
 
and murdered two of them.  Minnick fled and was ultimately  
   
apprehended in California 4 months after the murders.  FBI Agents  
 
apprehended in California 4 months after the murders.  FBI Agents  
   
sought to interview Minnick in jail in California.  Minnick was  
 
sought to interview Minnick in jail in California.  Minnick was  
   
advised of his Miranda rights, and though he refused to sign a  
 
advised of his Miranda rights, and though he refused to sign a  
   
written waiver, agreed to answer some questions.  During the  
 
written waiver, agreed to answer some questions.  During the  
   
interview, Minnick told the Agents he would make a full  
 
interview, Minnick told the Agents he would make a full  
   
statement in a few days when his lawyer was present.  The Agents  
 
statement in a few days when his lawyer was present.  The Agents  
   
then terminated the interview.  Three days later, an investigator  
 
then terminated the interview.  Three days later, an investigator  
   
for the State of Mississippi sought to interview Minnick in  
 
for the State of Mississippi sought to interview Minnick in  
   
California.  Again, Minnick declined to sign a written waiver of  
 
California.  Again, Minnick declined to sign a written waiver of  
   
his Miranda rights, but agreed to talk with the investigator.   
 
his Miranda rights, but agreed to talk with the investigator.   
   
Statements given to the investigator led to Minnick's prosecution  
 
Statements given to the investigator led to Minnick's prosecution  
   
and conviction for murder.                                         
 
and conviction for murder.                                         
   −
 
+
Minnick challenged the admissibility of his statements,  
 
  −
    Minnick challenged the admissibility of his statements,  
  −
 
   
claiming that his invocation of his right to counsel to the FBI
 
claiming that his invocation of his right to counsel to the FBI
   
Agents precluded his subsequent waiver of rights given to the
 
Agents precluded his subsequent waiver of rights given to the
   
Mississippi investigator, even though he had consulted with his
 
Mississippi investigator, even though he had consulted with his
   
court-appointed counsel on two or three occasions in the
 
court-appointed counsel on two or three occasions in the
   
interim.  The Mississippi Supreme Court in Minnick ruled that
 
interim.  The Mississippi Supreme Court in Minnick ruled that
   
once a suspect has consulted with his attorney, the suspect may
 
once a suspect has consulted with his attorney, the suspect may
   
thereafter be contacted, waive his rights, and be interviewed by
 
thereafter be contacted, waive his rights, and be interviewed by
   
the police.
 
the police.
   −
 
+
In reversing the Mississippi Supreme Court, the U.S.
 
  −
    In reversing the Mississippi Supreme Court, the U.S.
  −
 
   
Supreme Court established a bright-line rule barring
 
Supreme Court established a bright-line rule barring
   
police-initiated interviews following an invocation of the right
 
police-initiated interviews following an invocation of the right
   
to counsel by an in-custody suspect.  The Court ruled the actual
 
to counsel by an in-custody suspect.  The Court ruled the actual
   
presence of counsel is necessary before police-initiated
 
presence of counsel is necessary before police-initiated
   
interrogation may resume and that a bright-line rule prohibiting
 
interrogation may resume and that a bright-line rule prohibiting
   
reinterrogation of a suspect who has requested counsel without
 
reinterrogation of a suspect who has requested counsel without
   
the presence of his attorney would best protect the fifth
 
the presence of his attorney would best protect the fifth
   
amendment privilege against self-incrimination.  In addition, a
 
amendment privilege against self-incrimination.  In addition, a
   
bright-line rule approach saves judicial resources otherwise
 
bright-line rule approach saves judicial resources otherwise
   
expended in making determinations of voluntariness and provides
 
expended in making determinations of voluntariness and provides
   
specificity for police, prosecutors, and suspects as to
 
specificity for police, prosecutors, and suspects as to
   
acceptable police practice.
 
acceptable police practice.
   −
 
+
The Court's rule announced in Minnick does not disturb the
 
  −
    The Court's rule announced in Minnick does not disturb the
  −
 
   
previous holding that if a suspect initiates the dialogue with
 
previous holding that if a suspect initiates the dialogue with
   
the police, a valid waiver and confession may follow.  Minnick
 
the police, a valid waiver and confession may follow.  Minnick
   
specifically recognizes that courts may still find a "a waiver
 
specifically recognizes that courts may still find a "a waiver
   
of Fifth Amendment protections after counsel has been requested,
 
of Fifth Amendment protections after counsel has been requested,
   
provided the accused has initiated the conversation or
 
provided the accused has initiated the conversation or
   
discussions with the authorities."
 
discussions with the authorities."
   −
 
+
Minnick is a significant change in the law of confessions
 
  −
    Minnick is a significant change in the law of confessions
  −
 
   
and interrogations.  Police officers should be aware of this
 
and interrogations.  Police officers should be aware of this
   
expansion of the right to counsel in custodial interrogations
 
expansion of the right to counsel in custodial interrogations
   
and the need to ensure the presence of an attorney if
 
and the need to ensure the presence of an attorney if
   
police-initiated reinterrogation is desired after an initial
 
police-initiated reinterrogation is desired after an initial
   
invocation of the right.
 
invocation of the right.
  −
      
_______________
 
_______________
      −
 
+
This legal brief was written by Special Agent Jeffrey  
    This legal brief was written by Special Agent Jeffrey  
  −
 
   
Higginbotham, a legal instructor at the FBI Academy in Quantico,  
 
Higginbotham, a legal instructor at the FBI Academy in Quantico,  
   
Virginia.  
 
Virginia.  
</pre>
      
[[Category:Essays]]
 
[[Category:Essays]]

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