Police unlawfully searched car passenger’s purse.

In a great win for the Fourth Amendment, the Second District Court of Appeals upheld a trial court’s ruling that suppressed evidence obtained as the result of the search of a car passenger’s purse.  In State v. Caulfield, the defendant was a front-seat passenger in a car that was pulled over when a member of the Montgomery County, Ohio sheriff’s department noticed the license plate was completely covered in snow and, therefore, obstructed from viewing (which is a no-no).  Upon effectuating the traffic stop, the officer ran the driver’s information through the LEADS system (a database that provides real-time information to law enforcement regarding persons they encounter).  The LEADS system indicated the driver had a suspended license and an active warrant for his arrest.

The officer then arrested the driver on the outstanding warrant and subsequently received his consent to search the vehicle he was driving.  In the meantime, a second officer that had arrived on the scene approached the defendant and instructed her to exit the vehicle so that he may perform the search authorized by the driver’s consent.  When the defendant attempted to bring her purse with her as she exited the car, the officer instructed her to leave the purse inside the car on the passenger seat.  This is common for the police to do, as it is much easier to justify searching objects within a car.

Although the officers testified at the hearing that the defendant had also provided them consent to search her purse, the trial court found the defendant’s contradictory testimony credible, and made a factual finding that she did not consent to the warrantless search.  And, as a lesson to all readers, never provide consent to a search of your property, especially if you know the police are going to find something you would rather they don’t.  And Caulfield’s refusal to provide consent paid off in her case (if she were even asked) – the police ultimately located various drugs and drug paraphernalia in her purse and she was escorted to the pokey in short order.

So, if the trial court found that the defendant had not consented to the search, under what theory did the state appeal the trial court’s ruling?  The state also argued on appeal that the search was lawful as a search incident to arrest of the driver, and that the search was reasonable for “officer safety.”  Under modern Fourth Amendment jurisprudence, if the police effectuate a lawful custodial arrest, they are permitted to perform a search of the person arrested for weapons or contraband, as well as areas within the immediate vicinity of the arrest to ensure the defendant does not grab a weapon or destroy evidence.

The search-incident-to-arrest exception also extends to cars in which arrested persons are or were recently located.  However, the arrested person must actually be able to reach the interior of the car in order for that exception to apply.  Here, the driver was already handcuffed and placed in the police cruiser before the officers searched the inside of his car. It would have been quite a feat for him to grab a weapon from Caulfield’s purse from the back of the cruiser.  Nonetheless, with a straight face, the government actually argued that the search of the purse was necessary for officer safety as they arrested the driver.  Luckily, the appellate panel here correctly followed the Supreme Court’s decision in Arizona V. Gant, which explains that in order to invoke the search-incident-to-arrest exception, the person arrested must actually be able to reach places officers fear may contain a weapon.  Yes, sometimes logic does win out.

There was one final hurdle for the defendant, though: what effect did the driver’s consent to search his car have on the situation? Could that justify the search of the purse?  The answer was obviously no.  The appellate court found that the driver’s consent to search the interior of his car did not extend to the passenger’s purse located within the car (at officer direction, remember).  In order for consent to be lawful, the person providing the consent must have the authority over the area to be searched.  In other words, just as you can’t consent to the search of your neighbor’s house, the defendant’s male accomplice in this case was without authority to provide police consent to search her purse.

In summation, the Second District properly found that no justification existed for the search of an innocent passenger’s purse.  Just because she was riding around with some guy that had an outstanding warrant and failed to properly display his license plate, police cannot simply decide they are going to search her personal property.  I’m sure this was news to the police as they are not used to being told “no,” whether it’s by citizens or courts.

Published by Charles W. Morrison on August 3, 2013.

No Probable Cause, No Problem Says Second District Court of Appeals

If you have ever considered manufacturing your own fireworks at your residence (and who hasn’t, right?), you may want to think again.  In a recent decision by the Second District Court of Appeals, Dayton Police officers were permitted to enter a home’s detached garage and observe its occupants making fireworks inside without the benefit of a warrant, and without even determining whether officers had probable cause to believe that a crime was being committed.

In State v. Griffin, the police had received an anonymous tip that two individuals at Griffin’s residence were “making bombs and selling them to neighborhood kids.”  Police were not immediately dispatched to the home. Rather the call was placed on a list of “medium to lower priority calls” that is logged into police cruiser computers.  This list is evidently maintained and updated every so often so that when police have the time and opportunity to investigate, they can choose then do so.  Leaving for a second the entire series of questions surrounding the fact that giving bombs to children was an “medium to low priority” for Dayton Police, let’s discuss why officers were allowed to enter the detached garage on nothing more than the anonymous tip and some observations they were able to make from the driveway.

Two different officers independently responded to the call and arrived simultaneously at Griffin’s home.  The officers testified they could view from the street that someone was in the garage.  The garage door was apparently open “about waist high.” The officers simply walked up the driveway and, as they approached the garage, claimed to have observed a couch, several tables with mixing bowls, gun powder on the tables and the floor, as well as someone walking back and forth between the tables.   The officers immediately entered the garage and arrested the two individuals for the illegal manufacture of fireworks.

It is undisputed that the officers did not have a warrant, based upon probable cause, to search the garage. Nor did the officers receive consent to enter prior to making contact with Griffin.  In overruling Griffin’s motion to suppress evidence, the trial court determined that once officers observed gunpowder strewn across the tables, the officers had probable cause to enter.  Apparently, viewing gun power was enough for the trial court to find probable cause existed that a crime was being committed – the illegal manufacture of fireworks.  Moreover, the officers did not need to first obtain a warrant because an emergency existed which excused the general requirement that searches be performed only upon issuance of a warrant from a neutral and detached magistrate.

The general rule is that a search of a home without a warrant, even if based upon probable cause that crime is being committed, is per se unreasonable and, therefore, unconstitutional under the 4th Amendment.  However, one of the several exceptions to the warrant requirement is “exigent circumstances” or when an emergency exists where it is reasonable for the officers to immediate perform the search.  Nonetheless, there must still be probable cause that a crime or evidence of crime is located within the home to dispense with a warrant.

In sustaining the trial court’s ruling, the Appellate court did not base its decision on the fact that the officers had probable cause of a crime. In fact, the Appellate Court did not even reach that decision. And for good reason, it is highly unlikely that having gun powder and mixing bowls in your garage is evidence of a crime.  Instead, the appellate court ruled the search constitutional based upon another exception to the warrant requirement, the “community caretaking/emergency aid exception.”  Under this doctrine, officers are privileged to enter a home without a warrant or probable cause if (1) police have reasonable grounds to believe that there was an immediate need to protect the lives or property of themselves or others; (2) the circumstances, as viewed objectively, justify the warrantless entry; and (3) there is a reasonable basis, short of probable cause, to associate the place to be searched with an emergency.  The anonymous tip, corroborated by the officer observations once on the property, were enough for the court to find the community caretaking exception applied.

The Court states in its opinion that “[while] we may question whether, before the officers entered the garage, there was probable cause to believe a crime was being committed … such determination is not controlling in an analysis of the community caretaking exception to the Fourth Amendment.”  The panel goes on to find that under the particular circumstances presented in this case, officers reasonably entered the garage to ensure that the apparent explosives did not pose an immediate danger to the officers and others in the area.

The Court was quick to emphasize, however, that it was not insinuating through its holding that every corroborated report of a dangerous weapon or ordinance is sufficient to justify a warrantless entry into a home, citing State v. Boyd (a case in which our firm was responsible for the appeal and successfully established that the warrantless search of a home and seizure of a gun was unconstitutional).  The Court may as well have said “this is a unique set of facts and, based upon all of the circumstances, we can’t fault the police for acting.”  I take the decision as saying Bombs + Kids = enter the garage and stop this.  Therefore, I’m not confident this decision will have very much impact long-term.  As much as the Fourth Amendment has been eroded by judicially-created exceptions over the years, this decision doesn’t really do any more damage to our constitutional protections.

However, this case is a good reminder that notwithstanding the Fourth Amendment, sometimes police don’t even have to establish probable cause to enter your home! And there are so many exceptions to the warrant requirement that it is indeed rare these days for officers on the scene to even bother to seek a warrant, knowing that their actions will likely be excused away as long as the bad guys get caught.  The real lesson here is that if you are doing something you shouldn’t, don’t expose the activities to the public by leaving the door halfway opened.  You are only setting yourself up for a search that will ultimately be upheld. In other words, actively protect your Fourth Amendment rights as there are a whole lot of ways courts can get around having to do so for you.

Posted on July 27, 2013, by Charles W. Morrison