Important New Court Decisions for Spring 2013

Supreme Court disapproves detention of suspect leaving site of impending search warrant execution

by CHIEF KEN WALLENTINE Officers were watching a house prior to the execution of a search warrant. The object of the warrant was a handgun. The officers had a description of the occupant of the house.

As they watched, two men came out of the house, got into a car and drove away.

BOTH MEN MATCHED THE DESCRIPTION OF the occupant. The officers did not want to stop the car near the house and potentially alert others to their presence, so they followed the two men and stopped them approximately a mile away. The driver, Bailey, gave his address as the target house, even though his driver license showed a different address. The other man confirmed that Bailey lived at the target house.

The officers handcuffed the two men, explained that they were not under arrest, but merely being detained during the search warrant execution.

When told about the search warrant, Bailey denied living at the target address. Searching officers found the gun and drugs in plain view in the house. Bailey was arrested and his keys were seized incident to the arrest. One of the keys opened the door at the target house.

Bailey claimed that the detention was improper because it happened away from the scene of the search warrant execution. In Michigan v. Summers, 452 U.S. 692 (1981), the Supreme Court authorized officers to detain the occupants on the premises of a search warrant target in order to maximize safety, facilitate orderly execution of the warrant and to prevent flight from the premises. “A warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Following the Summers decision, courts have ruled inconsistently on the geographic and temporal proximity of the search of occupants. Some courts interpret Summers to allow a search of persons entering the zone around the target location. Others have allowed searches of persons who drive away from the target location, as happened in this case.

The United States Supreme Court clarified the rule and held that officers may not stop and detain persons who have just left the search warrant target premises and are some distance away. The Court held that the Summers rule is spatially limited to the immediate vicinity of the premises to be searched. “Once an individual has left the immediate vicinity of a premises to be searched, however, detentions must be justified by some other rationale.” “Limiting the rule in Summers to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant ensures that the scope of the detention incident to a search is confined to its underlying justification.” The Court reaffirmed support for the practice of temporarily seizing persons on the premises to prevent them from interfering with the search and possibly to obtain keys so that doors need not be broken open.

The Court did not clearly define what it meant by “immediate vicinity” of the search warrant target. Lower courts will be left to wrestle with whether that means line-of-sight, a particular distance and whether barriers impacting ease of return/ re-entry should be considered in the analysis. The Court also did not decide whether the stop could be justified under Terry v. Ohio. The case will now go back to the Court of Appeals for an answer to that question. Bailey v. United States, 2013 WL 598438 (U.S. 2013).

Utah Supreme Court finds no error in stopping car with out of state plate (and reeking of marijuana!)

In the fall, one can often smell leaves burning on crisp October days. One might also smell the reeking odor of freshly- harvested northern California marijuana. Chettero was driving on the freeway when a trooper stopped him for crossing the fog line several times. As the trooper walked up to the car, he noted that the back compartment of Chettero’s vehicle was full and covered by a blanket. When Chettoro rolled down the window, the stench of freshly cut marijuana formed a cloud around the car. A search yielded 105 pounds of fresh pot.

Chettero introduced evidence that the UHP had been informed of the recent northern California harvest and he claimed that troopers were stopping vehicles with out-of-state license plates. He asserted that there was an unconstitutional disproportionate impact on non-residents, arguing selective enforcement and a breach of his right to interstate travel. The troopers denied that they had been instructed to stop cars with out-of-state registration.

The Utah Supreme Court held that there was no evidence of an unconstitutional practice. “To the extent there was discrimination, it was based on intelligence that suggested marijuana would be transported from California (where it was grown) across Utah on its way east. So any differential treatment was not based on the ‘mere fact’ that Chettero was a citizen of another state, and the right to travel was not implicated even assuming some form of discrimination.” State v. Chettero, 2013 WL 563351 (Utah 2013).

No expectation of privacy in black box crash data, warrantless search allowed

Diaz and her boyfriend were drinking at a bar. When it came time to leave, the boyfriend tried to convince Diaz that she was too drunk to drive. They argued. The boyfriend walked home as Diaz drove away. A short time later, Diaz crashed into another car, killing the other driver. Diaz said that she had consumed one beer. A blood alcohol test showed that her BAC was .23 at the time of the crash.

Officers impounded both cars, which were totaled. A crash

investigator obtained data from the Sensing Diagnostic Module (SDM, also known as the “black box”) that showed that Diaz was traveling at 76 mph in a 50 mph zone at the time of the crash. The primary purpose of the SDM is deploy airbags. However, the SDM also records and stores the vehicle speed, engine RPM, brake data, and throttle position, for a 5 second period before a crash.

Diaz asserted that the warrantless seizure of the SCM and the warrantless analysis of the SDM data violated the Fourth Amendment. She claimed that the SCM is not in plain view and could be read only by attaching a computer. She also argued that there was no exigency that prevented obtaining a search warrant to read the data. Many courts have previously upheld warrantless searches of vehicles where the vehicle itself was an instrumentality of the crime.

The court held that the Fourth Amendment is not implicated in the investigation of auto homicide when the officers seize and search the SDM. The SDM was part of the instrumentality and not a container within the car (such as a container that might conceal drugs or other contraband). The court noted that the recent Supreme Court decision in United States v. Jones, addressing installation of a GPS device on a car is inapplicable. In Jones, the Court relied on the trespass doctrine to invalidate the monitoring of the GPS data. Moreover, the purpose of the SDM is vehicle safety, and recording crash data was merely a secondary purpose. The court also held that there is no reasonable expectation of privacy in vehicle speed or braking on a public road. People v. Diaz, 2013 WL 441824 (Cal. App. 2013).

Supreme Court holds that detector dog certification or training support probable cause presumption

Clayton Harris was driving a truck with expired license plates in Blountsville, Florida, when he was stopped by a Liberty County deputy sheriff. Harris was breathing rapidly, shaking and was exceedingly nervous as the deputy spoke to him. Harris had an open beer can in the cab of the truck. The deputy believed that Harris might be under the influence of drugs, so he asked Harris to consent to a search of the pickup truck. Harris refused.

The deputy deployed his detector dog, Aldo, to sniff the exterior of the truck. Aldo gave a positive response at the driver’s side door handle. The deputy searched Harris’s truck and found precursor chemicals (200 pseudoephedrine tablets, 8,000 matches, muriatic acid and iodine crystals) for cooking meth-amphetamine. Harris admitted that he was a meth cook and that he had recently cooked a batch at his Blountsville home. Harris was charged with unlawful possession of pseudoephedrine.

While Harris was out on bail, the same deputy/detector dog team stopped Harris for another traffic violation. Aldo again gave a positive final response and the deputy searched the truck. No evidence was found in that search.

Harris challenged the reliability of the detector dog. The Florida Supreme Court agreed that the prosecution had not gone far enough to show that Aldo was reliable. The court noted: “We conclude that when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person.” Many state and federal courts across the nation have ruled that proper training and certification are sufficient predicates for supporting probable cause to search following a dog sniff with a positive response.

The United States Supreme Court unanimously held that the Florida Supreme Court “flouted” well-established principles of probable cause. The Supreme Court chided the Florida justices for applying the “antithesis” of decades of Fourth Amendment jurisprudence. The Court noted that the Florida court “made matters worse” when it created an “inflexible checklist” for the prosecution to satisfy in order to establish that a detector dog’s positive final response provided probable cause to search a vehicle.

The Court held that “if a bona fide organization has certified a dog after testing his reliability in a controlled setting” or “if the dog has recently and successfully completed a training program,” a trial court should presume that the dog’s positive final response provides probable cause to search.

Justice Kagan wrote: “The question— similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” “A sniff is up to snuff when it meets that test.”

The result in Harris was not unexpected. One can argue that the Supreme Court merely applied clearly-established law that probable cause is a “common-sensical standard.” Though the case may be viewed as a victory for detector dog teams—and it certainly is such—there is much to be learned from a careful reading of the Harris opinion. The defendant still may vigorously cross-examine the dog handler and may call witnesses, including expert witnesses, to challenge the dog’s reliability.

Detector dog certification and training remain critical in establishing the dog’s reliability. Handlers must consider whether their detector dog team certification is from a “bona fide” certifying organization and whether the certification is consistent with generally-accepted standards. Single blind testing, where the handler and dog are tested without knowing whether target substances and odors are present or not, is certain to become a threshold question in assessing the validity of the certification trial.

Regular maintenance training, documented in adequate records, is also vital to a presumption of probable cause. Though Aldo and his handler had not completed a recent certification trial, there was abundant evidence of regular weekly training. In the Harris case, the Supreme Court pointed to a recent training program that evaluated Aldo’s proficiency in locating the odors of controlled substances as substituting for formal certification following a trial.

The defense still may challenge a dog’s field reliability. The Court noted that the dog’s history in the field “may sometimes be relevant.” One occasional challenge to field reliability is expressed as handler cuing or whether a dog is “prompt dependent.” Single blind testing in a rigorous certification trial, conducted at prescribed intervals, by a reputable certification organization will go far to defeating such claims.

The Supreme Court decision in Florida v. Harris reaffirms the value of detector dog teams as drug interdiction tools and gently reminds courts across the nation of the time-honored principles of probable cause to search. At the same time, detector dog handlers, trainers and the entire police service dog world should accept the case as an invitation for continuous improvement in training, record-keeping and certification. Florida v. Harris, 2013 WL 598440 (U.S. 2013).

Three hour detention while awaiting search warrant invalidated search and statements

Watson was a clerk in a convenience store. He lived in a room above the store. Officers saw drug activity near the store.

They arrested two persons, discovering that one of them lived in another room above the store. The officers decided to obtain a search warrant for the residential rooms above the store.

The officers entered the store and commanded Watson and the store owner to sit on the floor. They were held for approximately three hours while the officers drafted an affidavit and obtained a search warrant. The officers found a gun in Watson’s room. They asked Watson about the gun and he told them that it was not functional. Watson was convicted of illegal possession of the gun. Watson claimed that his lengthy detention rendered the search unreasonable and that his statement and the gun should have been suppressed.

In Michigan v. Summers, 452 U.S. 692 (1981), and Illinois v. McArthur, 531 U.S. 326 (2001), the Supreme Court set out a general rule that persons may be temporarily detained without probable cause when officers arrive at a location to execute a search warrant. The Court based the rule on a balancing of the personal liberty interest with the state interests in preventing flight if incriminating evidence is located, officer safety and the orderly execution of the search.

Applying this balancing test, the appellate court opined that the three hour detention was too long. The case was distinguishable because the officers detained Watson while they were seeking a warrant, not while they were executing a warrant based on a judicial finding of probable cause. The court also considered the Supreme Court rule from Illinois v. McArthur, where the police kept McArthur from entering his home for two hours while they obtained a search warrant.

Unlike the McArthur case, the police had no reason to connect Watson with the drug dealing observed outside of the store. In McArthur, the police had probable cause to believe that McArthur had drugs inside his home. The Supreme Court analysis in that case focused on the connection between the McArthur and the contraband that was the subject of the search warrant application.

The court held that, “although the seizure of the building may have been supported by probable cause, the seizure of Watson himself was not so supported, in contrast to the seizure that occurred in McArthur. Likewise, the police had no basis to conclude that Watson might attempt to destroy or hide the evidence sought in the search warrant application.” The court also noted that the prosecution had not shown any evidence that officer safety would have been compromised by allowing Watson and the store owner to leave the building.

Although there was a strong dissent that argued that the police might have had reasonable suspicion to detain Watson because he worked and lived in a building where drug trafficking occurred, the ultimate critical fact seems to be the three-hour detention. A case recently argued before the Supreme Court, Bailey v. United States (see Xiphos Archives online at, considers whether officers may detain a person incident to the execution of a search warrant when he has left the immediate vicinity of the premises before the warrant is executed. United States v. Watson, 2013 WL 14548 (4th Cir. 2013).

Generalized description of furtive movement in a car was not enough to justify search

An officer saw a van driven by a female. The van window tint appeared to be unlawful. He stopped the van. As he approached, he noted that the van was rocking and he saw hand movement near the dash area. He walked up to the front and saw a man in the driver seat. The driver admitted that he had switched places because the woman did not have a valid driver license.

The officer ordered the driver and passenger out of the car.

He asked the driver about the movement at the dash and the driver said that it was nothing. The officer handcuffed them and searched the car for weapons. He found a hatchet, an open bottle of gin and bags of cocaine.

Though many courts have upheld frisks and vehicle searches for weapons under similar circumstances, the court held that there was no reasonable suspicion for the quick check for weapons. “Notwithstanding the officer’s testimony, the movement he described—hands moving in the dash area—did not give him particularized objective grounds for reasonably believing the defendant was moving his hands on the dashboard to retrieve a gun.” The court opinion suggested that a vehicle check will be allowed only where the officer testifies to movements that specifically appear to be reasonably likely to indicate reaching for a weapon. Though this decision is at odds with other courts, it points to the specificity required in reporting the facts observed and upon which an officer bases a decision to conduct a frisk or vehicle search for weapons. Jackson v. United States, 56 A.3d 1206 (D.C. 2012).

General consent to search vehicle included gift- wrapped package

An officer stopped Howell for speeding and had Howell sit in the patrol car while the officer wrote a warning ticket. During the conversation, Howell consented to a search of his car. The officer searched the car as Howell sat in the patrol car.

The officer found a gift-wrapped package. Howell said that the package was a gift that he was carrying from his aunt to his brother. Standing where Howell admittedly could not see him, the officer cut away the wrapping and tore open the package. It contained 2 pounds of marijuana.

Howell sought suppression of the marijuana, arguing that cutting open the package exceeded the general consent to search his car. Courts have not articulated a bright line answer to whether a closed container may be damaged during a search allowed by a general consent to search. In Florida v. Jimeno, 500 U.S. 248 (1991), the Supreme Court held that the scope of consent must be assessed by the reasonable person standard. The Jimeno Court upheld opening a paper bag during a consent search, but noted, “it is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk.”

Two contrasting decisions of the Tenth Circuit Court of Appeals illustrate that officers should consider whether damaging a package destroys the utility of the package and contents. The court suppressed methamphetamine found in a sealed can labeled as containing tamales that an officer opened with a can opener in United States v. Osage, 235 F.3d 518 (10th Cir. 2000). The court based its decision on the fact that the can could no longer be used once the lid was peeled away (the officer opened the can because it appeared that the lid had been opened and glued shut). On the other hand, the same court upheld a search where an officer drilled holes in vehicle floorboards. United States v. Gregoire, 425 F.3d 872 (10th Cir. 2005).

The court held that the officer did not exceed the scope of Howell’s consent, “because (1) the object of the search was clearly disclosed, (2) the container was not equivalent to a locked container and was not destroyed, and (3) the consent was not withdrawn after the officer’s interest in the container was communicated to Howell.” The court also noted that drugs could be concealed in the gift-wrapped package. This case reminds officers that the general rule allows an officer to search the entire vehicle when given voluntary consent by a party with authority to consent and the consent is not limited or withdrawn. State v. Howell, 2012 WL 5278531 (Neb. 2012).

Vehicle search rules apply to a motor home on a public roadway

Coleman swayed across the fog line twice as he drove his motor home under the speed limit on the interstate. An officer stopped him and had him sit in the patrol car while the officer wrote a warning citation. The officer asked Coleman about travel plans, drug use and whether he had ever been arrested. A computer check showed that Coleman had an extensive criminal history. Coleman admitted to having some California medical marijuana in motor home.

The officer placed Coleman in the back of the patrol car and went to the motor home. He conducted a protective sweep, lifting open a large bed to inspect a storage space beneath. He saw a rifle case, opened it and discovered a rifle and ammunition. The officer then located the marijuana in the front of the motor home. Coleman was charged with being a felon in possession of a gun.

Coleman challenged the questioning, claiming that it impermissibly extended the duration of the stop. He asserted that the drug use questions were improper. The court disagreed, holding that the weaving across the line justified asking about drug use as a possible explanation for the driving pattern. Coleman’s lie about his criminal history justified further probing.

Coleman also complained that he was questioned without a Miranda warning. The court noted that Coleman was seated in the front seat, was not handcuffed and had not been told that the detention would be anything other than temporary. Moreover, the court cited the officer’s conversational tone and language (talk nice, think mean!). Thus, Coleman was not subject to the usual incidents of a formal arrest. Miranda warnings are not required at a traffic stop where the motorist is not subject to the functional equivalent of an arrest. Coleman was not entitled to a Miranda warning.

The rifle was found in the protective sweep. Coleman asserted that his motor home was more like a residence and the protective sweep could only extend to the area under his immediate dominion and control. The court held that motor homes in transit on a public highway are subject to a reduced expectation of privacy that allows broader protective sweeps than might be conducted in a home. The scope of the sweep was proper. Once the officer saw the gun case in plain view, knowing that Coleman had a felony criminal history, the officer had probable cause to open and search the case. United States v. Coleman, 2012 WL 5439287 (8th Cir. 2012).

Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General and is a long-time member of the UHPA.