UNITED
STATES DISTRICT COURT
EASTERN
DISTRICT OF MICHIGAN
SOUTHERN
DIVISION
UNITED
STATES OF AMERICA ,
Plaintiff, Case No. 14-12345
Hon. Alan Gershel
v.
DEFENDANT,
Defendant.
_______________________________/
DEFENDANT’S
BRIEF IN SUPPORT OF MOTION TO SUPPRESS
Question Presented
Arizona v. Gant allows a warrantless search of a vehicle
incident to an occupant’s arrest when there are concerns for either officer
safety or evidence preservation. Mr. Defendant was arrested for driving with a
suspended license, speeding, and check
forgery; after Mr. Defendant was secured in the police cruiser, the officer –
without a warrant – searched Mr. Defendant’s vehicle finding two handguns and
crack cocaine. Should the evidence be excluded under Gant?
Mr. Defendant
believes the answer to this question is: Yes.
Statement of Facts
On June 15,
2013, Mr. Defendant was stopped by a uniformed Michigan State Police trooper
for speeding in a construction zone. Stipulated Facts, at 1. Mr.
Defendant informed the officer he did not have his driver’s license on him, but
he was heading to the Secretary of State to apply for a new one. Id., at
1. When the officer determined Mr. Defendant had an arrest warrant for check
forgery, he ordered him out of the car. Id., at 1. Mr. Defendant
complied with the request and the officer placed him under arrest. Id.,
at 1. The officer secured Mr. Defendant in the back seat of the police cruiser
which did not have interior handles – so he couldn’t get out unless someone
opened the door for him. Id., at 1. After Mr. Defendant was secured in
the police cruiser, the officer began a warrantless search of Mr. Defendant’s
vehicle. Id., at 1. The officer found a closed brown paper bag in the
back seat which contained a small handgun and a substance that appeared to be
crack cocaine. Id., at 1. The officer also found a handgun in the trunk.
Id., at 1.
Statement of Law
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, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to
be seized.
U.S. Const, Amend. IV.
U.S. Const, Amend. IV.
The Fourth Amendment
is applicable to the states through the Fourteenth Amendment. Mapp v. Ohio,
367 U.S. 643, 660 (1961). In Katz v. U.S.,
the Supreme Court declared: “Over and again this Court has emphasized that the
mandate of the Fourth Amendment requires adherence to judicial processes, and
that searches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se
unreasonable under the Fourth Amendment —subject only to a few specifically
established and well-delineated exceptions.” 389 US 347, 357 (1967) (internal
citations omitted). Further, the government bears the burden to show the
lawfulness of a warrantless search. United States v. Jeffers, 342 U.S.
48, 51 (1951).
The Fourth Amendment
recognize very limited exceptions to the
warrant requirement for vehicle searches incident to an occupant’s lawful
arrest. Arizona v. Gant, 556 U.S. 332, 338 (2009). Prior to Gant, the Court recognized a very broad
search of automobiles incident to a recent occupant’s arrest. NY v. Belton,
453 U.S. 454, 462-463 (1981). But in Gant, the Court significantly narrowed
the scope of the exception when it held that warrantless vehicle searches
subsequent to a recent occupant’s arrest could only be justified when there was
a concern either for officer safety or evidence preservation. Gant, at
338. The exception for officer safety is only implicated when the recent
vehicle occupant is both “unsecured and within reaching distance” of the
vehicle “at the time of the search.” Id., at 343. The exception for
evidence preservation is limited to instances when “it is reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle.” Id.,
at 343 (internal citations omitted).
The classic example
of officer safety is Michigan v. Long.
463 U.S. 1032 (1983). In Long, the
warrantless search was justified because the arrestee was dangerous, unsecured,
and could reach a hunting knife in plain view. Id., at 1049. The classic
example of evidence preservation is California
v. Acevedo. 500 U.S. 565 (1991). In Acevedo,
the warrantless search was justified because the arresting officers had
probable cause to believe evidence of the crime would be found in the vehicle’s
container. Id., at 579-580.
When concerns about
officer safety and evidence preservation are absent, the exceptions are not
implicated. Gant, at 339. Any other rule would create “police
entitlement” to warrantless searches which would be “anathema to the Fourth
Amendment.” Id., at 347.
Warrantless searches are
subject to the exclusionary rule. Weeks v. U.S., 232 U.S. 383 (1914). The exclusionary rule applies unless the
officers can demonstrate objectively reasonable “good faith.” U.S. v. Leon, 468
U.S. 897 (1984).
Argument
For purposes of this
motion, Mr. Defendant does not contest the reasonableness of his arrest for
driving with a suspended license and check forgery. But, Mr. Defendant does
contest the lawfulness of the warrantless search of his vehicle following his
arrest while he was secured in the police cruiser.
Under settled Fourth Amendment case
law, Mr. Defendant is entitled to exclusion of the two handguns and crack
cocaine found in his vehicle following his arrest. The facts in this case are
materially indistinguishable from Arizona
v. Gant. Gant was arrested for driving with a suspended license. Gant,
at 336. After the officers secured Gant in the back seat of the patrol car, the
officers searched Gant’s vehicle finding a gun and a bag of cocaine. Id.,
at 336. The U.S. Supreme Court found this warrantless search violated basic
Fourth Amendment principles. Id., at 335, 351. The Court reasoned the
warrantless search of Gant’s vehicle while he was secured in the patrol car was
supported by neither of the policies for warrantless vehicle searches: officer
safety or the preservation of evidence. Id., at 338, 343.
1.
There was no reasonable concern for
officer safety when Mr. Defendant was secured in the police cruiser.
As in Gant, Mr. Defendant posed no threat to
officer safety. Mr. Defendant was secured in the patrol cruiser’s back seat when
the officers conducted the warrantless search. Stipulated Facts, at 1. Mr.
Defendant’s ability to escape or conduct an offensive attack on the officers
was significantly reduced because he was restrained by handcuffs. Id.,
at 1. Further, the back seat did not have door handles. Id., at 1. The
state even conceded “he could not get out without somebody opening the door.” Id.,
at 1.
This case is easily distinguishable
from Michigan v. Long where the
officer’s warrantless search was justified because the accused was dangerous
and had easy access to a visible hunting knife. 463 U.S. at 1049. In the
present case, nothing about Mr. Defendant’s prior actions would prompt concern
for officer safety. For instance, when confronted about not having his license Mr.
Defendant simply replied that he “was planning on going to the Secretary of
State’s Office to apply for a new one.” Stipulated Facts, at 1. Mr.
Defendant also complied with the officer’s instructions to exit the vehicle. Id.,
at 1. Further, the record is absent of any resistance on the part of Mr.
Defendant. Taken together with the
nature of the alleged crimes that prompted the arrest in the first place – driving
on a suspended license, speeding, and check forgery are hardly violent crimes –
the arresting officer had no objectively reasonable concern for his safety.
2.
There was no probable cause that evidence
of the alleged crime would be lost.
As in Gant, there was no reasonable
probability evidence of the alleged crime would be found in the vehicle. Mr.
Defendant was arrested for driving with a suspended license, speeding, and
check forgery. Because all relevant evidence for the driving with a suspended
license charge could easily be obtained through the Secretary of State and the
officer’s own testimony, there was no reasonable possibility that evidence of
the crime would be found in Mr. Defendant’s vehicle. That was precisely the
holding in Gant. The same reasoning
applies with the speeding and check forgery charges. What was the officer
looking for – the incriminating gas pedal? Or maybe the incriminating pen used
to sign the check?
The fact there was no probable cause
evidence of the crime would be in the vehicle makes this case distinguishable from
the Acevedo line of cases. In Acevedo, the police confirmed packages
sent to a particular apartment contained drugs. Acevedo, at 567. The
officers witnessed Acevedo leave the apartment with a similar package and place
it in his trunk. Id., at 567. The officers then arrested Acevedo and
searched the package in the trunk without first getting a search warrant. Id.,
at 567. The Court found the search of the package was justified because there
was probable cause the package contained evidence of the crime. Id., at
567, 579. This case is easily distinguishable because there was no probable
cause that evidence of a crime would be found in Mr. Defendant’s vehicle. As
mentioned earlier, evidence of the driving with a suspended license would be at
the Secretary of State – not in Mr. Defendant’s vehicle. Evidence of the
speeding could be provided by the officer’s testimony. Evidence of the check
fraud would be either at the bank where the check was tendered or already
turned over to police.
3.
The exclusionary rule is appropriate
because there were no objectively reasonable concerns for officer safety or
destruction of evidence to demonstrate the officer’s good faith.
The mandate in the Fourth Amendment is
clear: “no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const., Amend. IV. It is the state’s burden to show the
warrantless search was justified. United States v. Jeffers, 342 U.S. at
51. For the reasons discussed above, Mr. Defendant is entitled to suppression
of the handguns and crack cocaine because the Gant exceptions (officer safety and evidence preservation) were
absent.
A. The evidence should be excluded because
the lack of probable cause demonstrates the officer’s objectively measured “bad
faith.”
Mr. Defendant requests the Court to
suppress the handguns and the crack cocaine found in his vehicle because the
officers failure to comply with the Gant’s
clear rule objectively demonstrates their bad faith.
The Court first announced the
exclusionary rule Weeks v. U.S. – which
involved officers breaking into a home to gather evidence without a warrant. 232 U.S. 383 (1914). One of the
reasons the Court found the police conduct in Weeks so egregious was the fact the officers did not provide any
particularized information – so they couldn’t even get a search warrant if they
tried. Id., at 393–394.
The Court added “[t]o sanction such proceedings would be to affirm by judicial
decision a manifest neglect, if not an open defiance, of the prohibitions of
the Constitution, intended for the protection of the people against such
unauthorized action.” Id., at 394. The exclusionary rule was made
applicable to the states in Mapp v. Ohio.
367 U.S. 643 (1961).
However, modernly the Court does not
treat the exclusionary rule as an individual right; rather, they apply it only
where it “results in appreciable deterrence.” Herring v. United States,
555 U.S. 135, 141, (2009) (internal citations omitted). There is no deterrent
effect if the officer acts in “good faith.” U.S. v. Leon, 468 U.S. 897
(1984). In Leon, the court used the good
faith exception to uphold a search pursuant to a facially valid warrant which
was later determined to be defective because the supporting affidavits did not
show probable cause. Id., at 900. Because it was objectively reasonable
for the officer to rely on the magistrate’s (albeit defective) determination of
probable cause, the officer’s “good faith” obviated any need to deter police
misconduct through the exclusionary rule. Id., at 922-924.
Leon is distinguishable from the present
case because the police in Leon at
least followed basic Fourth Amendment protocol by getting a warrant. But here,
as in Weeks, the officer’s
warrantless search was based – not on Constitutional standards like probable
cause – but on an unconstitutional sense of “police entitlement” which is
“anathema” to the Fourth Amendment. Also here, just as in Weeks, probable cause was lacking – so the officer couldn’t even
get a warrant even if he tried. Further, under Gant, there was no concern for police safety or loss of evidence.
Although one post-Gant case, Davis v. U.S., upheld the previous broad
vehicle search rule under Belton,
that was because the law changed during appeal so there was no police
misconduct to deter. 131 S.Ct. 2419, 2423-2424 (2011). If the officer’s
reliance on Belton-rule in Davis demonstrates good faith, the
officer’s failure to follow the Gant-rule
here – over four years after the decision
was handed down – demonstrates the
officer’s bad faith.
B. Modern technology and other post-Gant
Fourth Amendment Supreme Court cases support the objective reasonableness of
using the exclusionary rule in this case.
Although exclusion would result in the
most serious charges being dropped against Mr. Defendant, it is the remedy our
Constitution requires. As Justice Scalia noted: “there is nothing new in the
realization that the Constitution sometimes insulates the criminality of a few
in order to protect the privacy of us all. Our disagreement with the dissenters
pertains to where the proper balance should be struck; we choose to adhere to
the textual and traditional standard of probable cause.” Arizona v. Hicks,
480 U.S. 321, 329, (1987).
The officer’s failure
to get a warrant is even more inexcusable because recent technological advances
make it even easier for officers to get a warrant. Chief Justice Roberts
recently described a jurisdiction where officers could email warrants to a
judge who would sign and return it to the officers on their iPad’s – in some
instances within 15 minutes. Missouri v. McNeely, 133 S. Ct. 1552, 1573,
(2013). Just last term, although the Court didn’t extend the Gant-rule beyond the vehicle search context, their holding is clear: “[o]ur answer to the question of what
police must do before searching a cell phone seized incident to an arrest is
accordingly simple – get a warrant.” Riley v. California, 134 S. Ct.
2473, 2495 (2014). This demonstrates that rather than retreating from the
policy in Gant, the Court continues
to extend privacy rights under the Fourth Amendment.
The same principle
holds true for Mr. Defendant as it did for Mr. Riley: the answer to the question
of what should the police should have done is simple – get a warrant. But here, there was no probable cause to
support the warrant. As such, Mr. Defendant’s vehicle should never have been
searched in the first place.
Request for Relief
Mr.
Defendant requests the Court to exclude the crack cocaine and both handguns
found in his vehicle because, under Gant,
there was no concern for police safety or evidence preservation.
Respectfully submitted,
//S//
Joshua P. Bannister
Student ID: 119483
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