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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.