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