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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]]

Latest revision as of 16:07, 23 December 2020

March 1991

                 EMERGENCY SEARCHES OF EFFECTS                        

                              By

                       John Gales Sauls                                
               Special Agent and Legal Instructor
                         FBI Academy
                     Quantico, Virginia

A police department receives an anonymous tip that a bomb is concealed in a package addressed to a foreign embassy located in its jurisdiction. The package has been sent via a package delivery service. The police contact the delivery service, which has five packages addressed to the embassy. The police converge on the delivery service, immediately subject each package to X-ray examination, and seize one package that appears to contain explosives. This package is then taken to a safe disposal area, where it is opened, and the explosive device is disarmed. No warrant is obtained for the X-ray examination, the seizure, or the search performed when the package is opened.

Other officers of the department receive a tip that a package arriving by bus contains a large quantity of cocaine. The tipster provides a description of the package, including the name of the addressee. Officers locate the package at the bus station and detain it for several minutes until a trained drug detection dog is able to sniff it. (1) The dog alerts, and the police maintain a surveillance until a man comes to claim the package. The man is held while the police open the package, discovering the cocaine. The man is then arrested. No warrant was obtained for the search of the package or the man's arrest.

In each of these situations, officers have made on-the-spot decisions to conduct searches and seizures without warrants. In the prosecutions that follow, the defendants will likely challenge the admissibility of the seized evidence, claiming it was obtained in violation of their constitutional rights. Because the searches and seizures were performed without warrants, the burden of establishing their legality will rest upon the government. (2)

What emergency circumstances justify an officer searching or seizing, without a warrant, items of personal property effects? (3) This article seeks to answer that crucial question through an exploration of the "emergency" or "exigent circumstances" exception to the fourth amendment warrant requirement. (4)

Courts commonly recognize three threats as providing justification for emergency warrantless action--danger to life, danger of escape, and danger of destruction or removal of evidence. The presence of any one of these threats may provide justification for a warrantless search or seizure of personal property. There are different legal standards for emergency action based upon danger to life and that involving the danger of escape or destruction of evidence. Awareness of the type of emergency present in a particular situation is the key to correct on-the-spot decisions.

This article will first examine U.S. Supreme Court and lower court decisions considering the legality of warrantless searches of effects based upon suspected threats to life. It will focus on the legal standard for such emergency searches and the circumstances courts commonly deem sufficient for establishing a threat to life and the allowable scope of action for dealing with that threat. The article will then examine cases involving warrantless searches of effects based upon emergency threats of destruction or removal of evidence.


THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DEFINED

The fourth amendment protects persons in the United States from "unreasonable" searches or seizures of their effects. (5) The U.S. Supreme Court, in determining what government intrusions are reasonable under the fourth amendment, has expressed an emphatic preference for searches and seizures made pursuant to judicially issued warrants. (6) As the Court has stated, the "Constitution requires that the deliberate, impartial judgment of a judicial officer be interposed between the citizen and the police... [and] searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment subject to a few specifically established and well-delineated exceptions." (7)

In most situations then, a "reasonable" search or seizure is one performed with a valid warrant. Consequently, for fourth amendment purposes, "reasonable" is a legal term with a meaning different from that attached to the word as it is commonly used. There are exceptions to the warrant requirement--"reasonable" warrantless searches and seizures-- but these exceptions are created not by what a police officer might believe to be reasonable but by a court's assessment of necessity. The "exceptions are `jealously and carefully drawn,' and there must be `a showing by those who seek exemption [from the warrant requirement]...that the exigencies of the situation made that course imperative' "(citations omitted). (8) The Court has recognized the need to provide for emergency situations "...where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate," (9) but the government bears the burden of showing the warrantless action was necessary. (10)


DANGER TO LIFE EMERGENCY

Because of the high value our society places on life, a circumstance that has a profound impact on the reasonableness of a warrantless search or seizure is whether such action is taken to neutralize a suspected threat to human life. The U.S. Supreme Court has stated that "[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others." (11) In fact, the Court has approved a lower standard of proof--reasonable suspicion--for justifying warrantless searches based upon a perceived danger to life, so long as the action taken is no greater than necessary to eliminate the danger. (12) Therefore, where a warrantless search 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 action: 1) Facts were known that would cause a reasonable person to suspect that prompt action was necessary to protect human life; and 2) that the action taken was no more intrusive than necessary to eliminate the suspected threat.


Suspected Presence of Dangerous Instrumentalities

In Michigan v. Long, (13) two officers patrolling a country road late at night saw a car being driven erratically and at excessive speed. Before they could stop the car, it turned onto 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 door was left open. After two requests, Long produced his driver's license, and after a second request for the vehicle's registration, he started walking toward the open driver's door. The officers followed, and before Long could enter the car, they saw a large hunting knife on the car's floorboard. Now suspecting that Long might have weapons on his person, the officers stopped him and performed a patdown search. (15) This search revealed no weapons. Suspecting that there might be other weapons in the car, one officer shined his flashlight into the interior, saw a pouch protruding from beneath the center armrest, and entered the car and raised the armrest to examine it. The pouch was open and contained marijuana. This discovery prompted Long's arrest.

In assessing the reasonableness of this warrantless entry and limited search of Long's car, the Supreme Court approved the officers' actions, noting both the factual justification for suspecting the presence of weapons and the circumscribed nature of their search. (16) The Court held that where officers reasonably suspect the presence of readily accessible deadly weapons in a lawfully stopped vehicle, they may make a limited search of the vehicle's interior for the purpose of locating and controlling the weapons. (17) In performing such a search, officers must restrict their examination to those places where readily accessible weapons might be concealed. (18)

The officers in Long were able to protect themselves and the public with a cursory search of the car's interior. Different facts will support a search with a broader scope. For example, in Cady v. Dombrowski, (19) the Supreme Court assessed 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 car's owner was arrested for murder, and after the car had been towed from the arrest scene, the police learned facts causing 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 revolver (which was later determined to be the murder weapon) in the car's trunk. In approving the reasonableness of this warrantless search, the Court cited its "...concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the [unsecured, unattended] vehicle." (20)

The interior of a suitcase, (21) briefcase, (22) handbag, (23) or package suspected to contain a dangerous instrumentality may also be searched without a warrant where necessary to protect persons. For example, in United States v. Sarkissian, (24) officers had reason to believe that explosives were concealed in luggage arriving on a commercial airline flight. Suitcases unloaded from the plane were sniffed by a dog trained in detecting explosives and examined by X-ray. A suitcase, appearing on X-ray to contain explosives, was opened and searched. These warrantless actions were held reasonable based upon the peril posed by unsecured explosives.

In United States v. Miller, (25) a limited search of the interior of a purse was approved as a reasonable protective measure. On a day Miller's husband was to be arraigned for a felony, she entered the courtroom with a coat draped over her arm concealing a large handbag. She sat near the rear of the courtroom along the center aisle, where her husband, who was in custody, would soon be walking. She rested her hand upon her partly opened bag. A marshall, aware of these facts and having been informed that a report had been received that Miller's husband might attempt an escape, opened Miller's bag further, locating a firearm. In holding the marshall's actions reasonable under the fourth amendment, the court noted that, coupled with the report that an escape might occur, "...Miller's concealment of her handbag upon entry, the strategic seat she selected, and the convenient placement of her open bag made reasonable the belief that she might be armed." (26)


Suspected Presence of Information Crucial to Preserving Life

Officers occasionally are confronted with facts that cause them to reasonably suspect that information necessary to preserve the life of a person is contained in an effect. For example, in United States v. Dunavan, (27) officers responded to 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 "foaming at the mouth and unable to talk." (28) Dunavan was rushed to the hospital, and the officers then sought to determine the cause of his malady in the hope of providing information that would aid in his treatment. In the course of this effort, they opened two briefcases belonging to Dunavan, revealing evidence of crime. This action was held to be a reasonably limited search responsive to the emergency at hand.


DANGER OF DESTRUCTION OR REMOVAL OF EVIDENCE EMERGENCY

In addition to danger to life, the U.S. Supreme Court has also recognized the danger of destruction or removal of evidence as embodying exigent circumstances sufficient to justify warrantless action. (29) In regard to effects, the action permissible to prevent the destruction or removal of evidence is substantially less than that allowed to protect life. Generally, only a warrantless seizure of an effect will be allowed to preserve evidence, not a warrantless search of the effect's contents.

The factual justification required to support a warrantless seizure of an effect to prevent the destruction or removal of evidence depends on the extent of control exercised by the government over the item. The Supreme Court has recognized two distinct types of seizures of effects: 1) Temporary detention, which requires a showing of reasonable suspicion to believe the item contains evidence or contraband; and 2) a more absolute seizure, which must be justified through a showing of probable cause to search the interior of the item for evidence or contraband.


Temporary Detention of Effects

In United States v. Place, (30) the Supreme Court approved temporary detention by the police of luggage reasonably suspected (31) to contain illegal drugs. Place was an airline traveler who aroused the suspicion of police based upon his appearance, travel itinerary, and conduct. Officers took Place's two suitcases from him, stating that they would seek a search warrant for the bags. They then transported the suitcases from New York's La Guardia Airport to Kennedy Airport, where they were sniffed by a trained drug detection dog 90 minutes after the seizure. Although the Court approved the initial seizure of Place's suitcases, it held the seizure ultimately involved too great an interference in Place's possessory interest in his property to be reasonable. Citing the length of time of the seizure as unnecessarily long, the Court also noted "...the failure of the agents to accurately inform [Place] of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for the return of the luggage if the investigation dispelled the suspicion." (32) This holding is premised, in part, on the fact that luggage frequently contains necessities to which travelers need ready access. Less lengthy temporary seizures of luggage have been upheld as reasonable. (33)

Other types of effects may be detained for greater periods of time without the seizure becoming unreasonable. For example, in United States v. Van Leeuwen, (34) the Supreme Court upheld as reasonable a detention of a mailed package that lasted several hours. In United States v. LaFrance, (35) a 4-hour detention of a package shipped via Federal Express was approved. These decisions are founded on the premise that the sender or addressee of a package shipped or mailed has a substantially reduced expectation of ready access to that item. (36)


Probable Cause Seizures

The goal of a temporary detention of an effect is the development of facts amounting to probable cause to search that item. This is accomplished through investigation performed during the period of temporary detention, and in drug cases, frequently includes the use of drug detection dogs. Once probable cause to search has been established, a more absolute seizure becomes reasonable. (37) Officers may take control of the effect to prevent the destruction or removal of evidence for a reasonable period while application is made for a search warrant. (38) This allows them to protect the evidence until judicial authorization may be obtained to open the item and examine its contents.


SUMMARY

Returning to the hypothetical situations presented at the beginning of this article, in each case, the officers were confronted with circumstances they believed required an immediate search. The officers who reasonably suspected that a bomb was present in a package bound for an embassy needed to verify or dispel the suspicion as quickly as possible to prevent unnecessary danger to life. The warrantless actions they performed--the X-ray examinations followed by the opening of the package that appeared to contain explosives--were appropriate based upon reasonable suspicion and were reasonably limited to accomplish their purpose, that is, eliminating the threat posed by the explosives.

The officers investigating the suspected drug activity were also justified in performing certain prompt warrantless actions. Their initial seizure was lawful, based upon their reasonable suspicion that the package contained illegal drugs. The canine sniff was also lawful, since it was promptly accomplished. However, once probable cause to search was established, the emergency threat of removal or destruction of evidence could have been eliminated merely by taking control of the package pending issuance of a search warrant. Consequently, the examination of the contents of the package without a warrant was not a valid emergency search. (39)


CONCLUSION

This article has set out requirements for emergency searches and seizures of effects based upon: (1) Threats to life; and (2) threats of destruction of evidence. Because the scope of warrantless action allowed under the fourth amendment differs depending upon the category of emergency threat involved, it is essential that officers considering the lawfulness of a proposed emergency search evaluate the type of threat presented. Once that determination is made, the appropriate legal standard may be applied to the facts known. Where warrantless searches and seizures are necessary, clear awareness of the type and nature of the threat involved will also facilitate limitation of the scope of the warrantless action to only that which is necessary to eliminate the threat.


FOOTNOTES

(1) For an excellent discussion of the legal issues associated with the use of drug detection dogs, see Kingston, "Hounding Drug Traffickers: The Use of Drug Detection Dogs," FBI Law Enforcement Bulletin, August 1989, pp. 26-32.

(2) McDonald v. United States, 335 U.S. 451 (1948); Katz v. United States, 389 U.S. 347 (1967).

(3) The fourth amendment to the U.S. Constitution provides: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated...." Effects include such personal property as packages, suitcases, handbags, etc., as well as vehicles.

(4) For a discussion of emergency searches of premises, see Sauls, "Emergency Searches of Premises," FBI Law Enforcement Bulletin, Part I, March 1987, pp. 23-30, Conclusion, April 1987, pp. 24-30. For a discussion of emergency searches of persons, see Sauls, "Emergency Searches of Persons," FBI Law Enforcement 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.

(7) Id. at 357.

(8) Coolidge v. New Hampshire, 403 U.S. 443, 445 (1971).

(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). The U.S. Supreme Court has yet to decide whether reasonable suspicion is the standard by which the reasonableness of all danger to life emergency searches should be measured. The Court has stated, however, that probable cause is not always the standard by which the legality of a search should be measured, even where the search constitutes a substantial intrusion into a person's privacy. See New Jersey v. T. L.O., 469 U.S. 325, 340-41 (1984).

(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 the Fourth Amendment," FBI Law Enforcement Bulletin, Part I, September 1989, pp. 26-31; Conclusion, October 1989, pp. 27-32.

(15) For an excellent discussion of investigative detention and frisk searches, see Hall, "Investigative Detention: An Intermediate Response," FBI Law Enforcement Bulletin, Part I, November 1985, pp. 25-31; Part II, December 1985, pp. 18-23; Conclusion, January 1986, pp. 23-29.

(16) Supra note 13, at 1051.

(17) Id.

(18) Id. The scope of such a search includes the interior of unlocked containers that might conceal deadly weapons. See United States v. Williams, 626 F.2d 697 (9th Cir. 1980), cert. denied, 449 U.S. 1020 (1980) (purse in suspected bank robber's car that was suspected to contain a bomb); United States v. 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 Cir. 1985) (purse in car suspected to contain deadly weapons); United States v. Williams, 822 F.2d 1174 (D.C. Cir. 1987) (tactile examination of exterior of paper bag in car suspected to contain deadly weapons).

(19) 413 U.S. 433 (1972).

(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 Cir. 1986).

(22) United States v. McClinnhan, 660 F.2d 500 (D.C. Cir. 1981). McClinnhan is noteworthy for its discussion of the dilemma faced by an officer who has reasonable suspicion that a dangerous instrumentality is contained in an effect, but who has no way of verifying or dispelling his suspicions other than an examination of the interior of the effect. Seizing the effect will not neutralize the dangerous instrumentality, and no warrant can be obtained since the suspicions do not rise to the level of probable cause to search. Consequently, a prompt examination of the effect's interior is the least intrusive measure to neutralize the threat.

(23) United States v. Miller, 468 F.2d 1041 (4th Cir. 1972), cert. denied, 410 U.S. 935 (1972).

(24) Supra note 21.

(25) Supra note 23.

(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).

(30) 462 U.S. 696 (1983).

(31) For examples of facts held to constitute reasonable suspicion that contraband is present, see United States v. Sokolow, 109 S.Ct. 1581 (1989); United States v. Sharpe, 105 S.Ct. 1568 (1985).

(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. 1987).

(34) 397 U.S. 249 (1970).

(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 package.

(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 required. See United States v. Dass, 849 F.2d. 414 (9th Cir. 1988).

(39) Since the officers have acted without a warrant, as a practical matter, the officers and their prosecutor should consider the potential application of other exceptions to the warrant requirement, such as Search Incident to Arrest. These considerations, however, are beyond the scope of this article.


_______________


Law enforcement officers of other than Federal jurisdiction who are interested in this article should consult their legal adviser. Some police procedures ruled permissible under Federal constitutional law are of questionable legality under State law or are not permitted at all.



LEGAL BRIEF

MINNICK V. MISSISSIPPI

U.S. SUPREME COURT DECISION


On December 3, 1990, in Minnick v. Mississippi, the Supreme Court established a new rule concerning the interview of in-custody suspects who have asserted the right to consult with counsel. In a 6-2 ruling (Justice Souter not participating), the Court held that "when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney."

Minnick and a companion escaped from a county jail in Mississippi and committed a house burglary looking for weapons. They were surprised by the arrival of the occupants of the house and murdered two of them. Minnick fled and was ultimately apprehended in California 4 months after the murders. FBI Agents sought to interview Minnick in jail in California. Minnick was advised of his Miranda rights, and though he refused to sign a written waiver, agreed to answer some questions. During the interview, Minnick told the Agents he would make a full statement in a few days when his lawyer was present. The Agents then terminated the interview. Three days later, an investigator for the State of Mississippi sought to interview Minnick in California. Again, Minnick declined to sign a written waiver of his Miranda rights, but agreed to talk with the investigator. Statements given to the investigator led to Minnick's prosecution and conviction for murder.

Minnick challenged the admissibility of his statements, claiming that his invocation of his right to counsel to the FBI Agents precluded his subsequent waiver of rights given to the Mississippi investigator, even though he had consulted with his court-appointed counsel on two or three occasions in the interim. The Mississippi Supreme Court in Minnick ruled that once a suspect has consulted with his attorney, the suspect may thereafter be contacted, waive his rights, and be interviewed by the police.

In reversing the Mississippi Supreme Court, the U.S. Supreme Court established a bright-line rule barring police-initiated interviews following an invocation of the right to counsel by an in-custody suspect. The Court ruled the actual presence of counsel is necessary before police-initiated interrogation may resume and that a bright-line rule prohibiting reinterrogation of a suspect who has requested counsel without the presence of his attorney would best protect the fifth amendment privilege against self-incrimination. In addition, a bright-line rule approach saves judicial resources otherwise expended in making determinations of voluntariness and provides specificity for police, prosecutors, and suspects as to acceptable police practice.

The Court's rule announced in Minnick does not disturb the previous holding that if a suspect initiates the dialogue with the police, a valid waiver and confession may follow. Minnick specifically recognizes that courts may still find a "a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities."

Minnick is a significant change in the law of confessions and interrogations. Police officers should be aware of this expansion of the right to counsel in custodial interrogations and the need to ensure the presence of an attorney if police-initiated reinterrogation is desired after an initial invocation of the right.

_______________


This legal brief was written by Special Agent Jeffrey Higginbotham, a legal instructor at the FBI Academy in Quantico, Virginia.