RURAL COURTS SEMINAR
THURSDAY OCTOBER 27, 2016
LOUISIANA SPORTS HALL OF FAME, NATCHITOCHES
SEARCH AND SEIZURE
JUDGE HARMON DREW
2nd Circuit Court of Appeal
JEAN T. DREW
Search & Seizure * Jean & Harmon Drew * Rural Courts * 27 Oct 16 * [email protected]
SEARCH & SEIZURE
Jean and Harmon Drew
Rural Courts Seminar * 27 October 2016 * Meat Pie Town
1.
What percentage of possibility/probability do you believe is
required by these burdens?
a. Reasonable Suspicion [“RS”]
_____ % possibility.
b. Probable Cause ["PC"]
_____% possibility/probability.
c. Beyond Reasonable Doubt (“BRD”]
_____ % probability.
d. Another viewpoint: How do these burdens compare?
RS x ____ = PC?
PC x ____ = BRD?
e. What about clear and convincing?
2.
______% probability.
Sliding Scale Satisfaction of these Burdens by LEOs
a. LEO's Knowledge, Training, and Experience, combined with
b. Whatever the LEO saw, heard, touched, smelled, and tasted?
3.
Default Presumption:
Warrantless Searches/Seizures are Unreasonable.
1
Search & Seizure * Jean & Harmon Drew * Rural Courts * 27 Oct 16 * [email protected]
4.
Fourth Amendment Analysis of a Search or a Seizure:
a. Is NOT a Subjective Inquiry, such as:
Under what legal theory did this LEO take this action?
b. Is NOW an Objective Inquiry, such as:
What happened?
Was it objectively reasonable?
What was the chronology?
OLD: St v Vaughn, 448 So2d 915 (La. 3 Ct. App. 1984).
One traffic infraction was held not to be enough reasonable suspicion
for a DWI, so the stop was invalid. Bogus reasoning.
NEW: Whren v U.S., 517 U.S. 806 (1996). Pretextual Stop is OK.
St v Waters, 780 So2d 1053 (La 2001). Minor nature of MV stop.
St v Kelly, 934 So.2d 51 (La. 2006).
S & S = an Objective Test.
5. Exceptions to the Search Warrant Requirement, primarily re: MVs
a.
SITA
• Trigger
Valid Arrest of an occupant plus Reasonable belief
(Reasonable suspicion) that evidence of the crime of
arrest is in MV
• Target
Weapons and Evidence
• Scope
Passenger Compartment, including closed containers
• Cases
AZ v Gant, 556 U.S. 332 (2009).
Pass. compartment
Riley v CA, 573 U.S. ____ (2014).
Cell Phone
Rawlings v KY, 448 U.S. 98 (1980).
Timing
St v Sherman, 931 So.2d 286 (La. 2006).
Timing
2
Search & Seizure * Jean & Harmon Drew * Rural Courts * 27 Oct 16 * [email protected]
b.
COLLECTIVE KNOWLEDGE
• What does every officer, working tonight as a team, know at the
moment of the stop/arrest or other action by one of the officers.
St v Surtain,31 So.3d 1037 (La. 2010).
St v Elliott, 35 So.3d 247 (La. 2010).
Navarette v California, 572 U.S. ____ (2014).
c.
FRISK
• Trigger
Previously-frisked person is about to reenter MV, + LEO
still has RS of danger.
• Target
Weapons.
• Scope
Areas of the passenger compartment immediately
accessible to the motorist.
• Cases
Terry v OH, 392 U.S. 1 (1968).
Stop, Frisk.
St v Boyer, 967 So. 2d 468 (La. 2007) Basis for seizure
Note La. C. Cr. P. Art 215.1 (A-C).
Michigan v Long, 463 U.S. 1032 (1983).
Frisk of MV.
St v Duhe, 130 So.3d 880 (La. 2013).
Frisk of MV.
d.
INVENTORY
• Trigger
Valid Impound + Agency Policy.
• Target
(i) Make a list of valuables; and (ii) Look for bombs.
• Scope
Entire MV
•
A written agency policy is required in order to allow a LEO to
inventory of the contents of closed containers in a MV that is being
inventoried, as per FL v Wells, 495 U.S. 1 (1990).
3
Search & Seizure * Jean & Harmon Drew * Rural Courts * 27 Oct 16 * [email protected]
e.
CONSENT
• Trigger
• Target
• Scope
Voluntary Permission from one in apparent authority.
Contraband.
Entire MV unless restricted.
Restrictions must be honored.
Permission may be withdrawn.
• Suggestion At the moment of consent, a LEO should not be holding
the motorist’s lawful property, e.g., DL, proof/insurance,
registration, keys, etc.
• FL v Jimeno, 500 U.S. 248 (1991). Consent for containers in MV?
•
•
•
•
•
•
f.
PLAIN VIEW or PLAIN SMELL
Trigger
Viewing or smelling an item that provides PC to
immediately identify the Item as contraband.
Inadvertency is no longer required, as per Horton v
California, 496 U.S. 128 (1990)
Target
Contraband/Evidence that is seen or smelled.
Note #1
The perceived contraband/evidence may be seized.
Note #2
Confirming the criminality of an item in Plain View,
allows search of the entire MV.
Suggest
LEO must articulate his/her expertise in recognizing the
Contraband.
Cases
Plain Feel: MN v Dickerson, 508 U.S. 366 (1993).
St. v Lee, __ So.3d ___, (La. 2015).
Plain Smell: St. v Allen, 55 So.3d 756 (La. 2010).
St. v Jackson, 42 So.3d 368 (La. 2010).
4
Search & Seizure * Jean & Harmon Drew * Rural Courts * 27 Oct 16 * [email protected]
6. Birchfield v North Dakota
(2014 – 1468) ____S. Ct. ____ (6.23.16)
HELD: Fourth Amendment allows warrantless DWI BREATH tests, pursuant to Implied
Consent, but NOT warrantless BLOOD tests.
To fight impaired driving, all states have statutes forbidding operating MVs on public
highways when the driver’s BAC (Blood Alcohol Concentration) level exceeds a certain limit,
usually 0.08%. To secure the cooperation of drivers on the public roads, the states have
enacted Implied Consent Statutes, in exchange for using the public highways.
The original penalty for refusal was suspended driving privileges. Some states (e.g.,
North Dakota, MN, LA) later criminalized the refusal to comply with Implied Consent laws.
D & D Notes: See
La. R.S. 14:98.7 for Third Refusal; &
La. R.S. 32:666 (A)(1)(a)(i) for Third Refusal.
Actually there are three cases here:

Birchfield was arrested for DWI in North Dakota. The trooper advised him of his
obligation to undergo BAC testing, and that a refusal could result in criminal
punishment. Birchfield refused a blood draw and conditionally entered a plea of guilty
(D & D note: Like our Crosby plea), arguing that The Fourth Amendment prohibited the
criminalization of his refusal to submit to a blood draw. N.D. courts rejected his
argument. SCOTUS HELD: Birchfield was unlawfully convicted for refusing a warrantless
blood draw.
NOT GUILTY.

Bernard was arrested for DWI in Minnesota. He was taken to the police station where
the officer advised him about Minnesota’s Implied Consent laws, and that it was a crime
to refuse a breath test. He refused anyway and was convicted for the refusal to blow.
The District Court dismissed the charges; the Appellate Supreme Court reversed.
SCOTUS HELD: Bernard had no right to refuse a warrantless breath test. GUILTY.

Beylund was arrested for DWI in N.D. The LEO took him to a hospital and read him an
Implied Consent advisory that refusing a blood draw was a crime. He agreed to the
draw and ran a BAC three times the legal limit. His DL was suspended for two years. He
argued that his consent was coerced by the warning. USSC HELD: Beylund’s case was
remanded for reevaluation of the consent, in light of the inaccurate advisory.
REMANDED.
5
Search & Seizure * Jean & Harmon Drew * Rural Courts * 27 Oct 16 * [email protected]
Blood draws & Breath tests are governed by the Fourth Amendment. The
default presumption is that all warrantless searches and seizures are unlawful. Some
searches are exempt from the SW requirement if held to be lawful exceptions to the
rule, which is decided on a case-by-case basis. One exception is the right to Search
Incident To Arrest (“SITA”), which actually predates the founding. The mere fact of a
lawful arrest justifies a full search of the person.
SITA & Implied Consent are first cousins.
SITA may or may not extend to situations not contemplated by the Fourth
Amendment, e.g., cellphone in Riley v California, 573 U.S. ___ (2014). The test is the
degree to which the search intrudes on privacy rights VERSUS the degree to which the
search is needed to promote legitimate government interests.
BREATH TESTS implicate no significant privacy concerns; no piercing of the skin,
and only minimum inconvenience. It is no more intrusive than a DNA swab, or scraping
under fingernails, but importantly, a BREATH TEST leaves no biological sample with the
government. Because a breath test has only the slightest impact on privacy, and
because BAC testing is a tremendous governmental need, The Fourth Amendment
permits warrantless BREATH TESTS incident to arrests for impaired driving.
In contrast, BLOOD DRAWS involve piercing the skin, extraction of part of the
body, preserving it for possibly analysis. A BLOOD DRAW is more intrusive and more
embarrassing than a Breath Test.
The government’s paramount interest here is public safety on the highways.
Making BAC DWI refusals a crime will certainly incentivize the cooperation of motorists,
which will make our highways safer. Requiring search warrants for all BAC tests would
swamp the courts. Sometimes, however, blood tests may be needed when: The
impairment is suspected to be non-alcoholic in origin; and when a subject is
unconscious. D & D note: See La. R.S. 32: 661(B) & R.S. 32:681(A). In these cases, law
enforcement may seek a search warrant or rely on exigent circumstances, as per
Missouri v McNeely, ___U.S. ___ . (2013)
Since breath tests are less intrusive and usually amply serve governmental interests,
a WARRANTLESS BREATH TEST (not a blood draw) may be administered as a SITA for
impaired operation of a MV. As in Bernard, supra, a criminal conviction for refusing a
warrantless BREATH TEST is lawful. Motorists, however, may not be criminally punished
for refusing a WARRANTLESS BLOOD DRAW, even if statutorily required. These three
cases do not discuss warrantless urine tests and does not tell us where that procedure
would fit in this analysis. These cases do not cover a situation when a motorist voluntary
agrees to take a warrantless blood test, but not a breath test. There are also two areas
that need attention ASAP: The implied consent statutes and the DWI rights form must
be amended ASAP, or risk nine months of bedlam in this area.
6
Search & Seizure * Jean & Harmon Drew * Rural Courts * 27 Oct 16 * [email protected]
7. Chart for the Birchfield
Trilogy of Cases,
rendered 23 June 2016
Birchfield v N.D.
Arrested for DWI
LEO advised Birchfield
that he had to allow the
extraction of BLOOD
for BAC testing.
LEO told B that refusal to
submit to a BLOOD
test was a crime.
B refused a BLOOD draw,
but entered a conditional
plea of GUILTY.
B appealed, arguing that
the 4th Amendment does
not allow punishment for
the refusal to take a
warrantless BLOOD test.
N.D. Supreme Court
allowed his conviction
(for refusing a BLOOD
draw) to stand.
Bernard v MN
Arrested for DWI
LEO advised Bernard
that he had to undergo a
BREATH test to determine
his BAC.
LEO told B that refusal to
submit to a BREATH
test was a crime.
B refused to take a
BREATH test.
Minn. Supreme Court
allowed his conviction
(for refusing a BREATH
test) to stand.
N.D. Supreme Court
rejected his
COERCION
argument.
SCOTUS:
NOT GUILTY
SCOTUS:
GUILTY
SCOTUS:
REMANDED
B was found guilty of
BREATH test refusal
in the first degree.
7
Beylund v N.D.
Arrested for DWI
LEO arrested Beylund for
DWI and took him to a
hospital for a
BLOOD draw.
LEO read B ND’s Regs
which criminalized refusal
to take a BLOOD test.
B agreed to a
warrantless
BLOOD draw.
License suspended for two
years. B appealed, arguing
this his consent for the
BLOOD draw was coerced.
Search & Seizure * Jean & Harmon Drew * Rural Courts * 27 Oct 16 * [email protected]
8. Extensions of Traffic Stops
La. C. Cr. P. Art 215.1 (A)–(C) [enacted in 1968 – same year as Terry]
Art. 215.1. Temporary questioning of persons in public places; frisk
and search for weapons
A. A law enforcement officer may stop a person in a public
place whom he reasonably suspects is committing, has committed, or
is about to commit an offense and may demand of him his name,
address, and an explanation of his actions.
B. When a law enforcement officer has stopped a person for
questioning pursuant to this Article and reasonably suspects that he
is in danger, he may frisk the outer clothing of such person for a
dangerous weapon. If the law enforcement officer reasonably
suspects the person possesses a dangerous weapon, he may search
the person.
C. If the law enforcement officer finds a dangerous weapon, he
may take and keep it until the completion of the questioning, at
which time he shall either return it, if lawfully possessed, or arrest
such person.
We call the above the “Louisiana version of Terry v Ohio, 392
U.S. 1 (1968).” Almost three decades later, the below Subsection
“D” was added to La. C. Cr. P. Art. 215.1:
D. During detention of an alleged violator of any provision of
the motor vehicle laws of this state, an officer may not detain a
motorist for a period of time longer than reasonably necessary to
complete the investigation of the violation and issuance of a citation
for the violation, absent reasonable suspicion of additional criminal
activity.
***
The above Subs. “D” was ignored for 19 years. No more. It
dovetails precisely with Rodriguez v U.S., 575 U.S. ___ (2015).
Both our code article and Rodriguez require, after the traffic
matter has ended, that any extension be justified by additional
reasonable suspicion of criminal activity arising during the MV stop.
8
Search & Seizure * Jean & Harmon Drew * Rural Courts * 27 Oct 16 * [email protected]
9. Recent Search & Seizure Cases
A. U.S. v. Turner: 5th Cir. Texas 10-13-16
Swiping a magnetic stripe on the back of a gift card is not a search.
B. State v. Crochet, 2016 WL 5390339 (La. 9/23/16)
Three SWs; One was shaky.
Another rescue by U.S. v Leon, 468 U.S. 897 (1984).
C. U.S. v. Toussaint, 2016 WL 5314862 (5th Cir. La. 9/22/16)
LEOs, trying to save the guy’s life, wind up arresting him.
D. State v. Lucas, 195 So.3d 1208 (La. 8/03/16)
Cash stash.
E. State v. Lewis, 195 So.3d 1206 (La. 7/19/16)
Inculpatory rap video was relevant/admissible per La. C.E. 404(B).
Thank you very much.
9
INTRO/BIO
JEAN and HARMON DREW
Jean Drew has been an appellate
research attorney for 32 years, working as an
elbow clerk for three Chief Judges.
Harmon is a former city and district judge
who has been an appellate judge for 17 years.
Over the last three decades, these two have
traveled to 52 parishes, teaching Search &
Seizure to thousands of local Louisiana law officers.