Constitutional Criminal Procedure - Charles E. Cox, Jr.

• Publication year: 2003

Constitutional Criminal Procedureby Charles E. Cox, Jr.*

I. Introduction

Each year the United States Court of Appeals for the Eleventh Circuit issues numerous decisions concerning the protections provided to criminal defendants by the Fourth, Fifth, and Sixth Amendments to the United States Constitution. This Article surveys decisions issued in 2002 that are likely to be of interest to criminal law practitioners.

II. The Fourth Amendment

A. Investigatory Stops and Frisk

In United States v. Hunter,¹ three law enforcement officers were in a marked patrol car. The officers, who were part of a unit responsible for patrolling high crime areas, observed several men engaged in illegal gambling in the parking lot of a convenience store.² Defendant was standing next to the gamblers. When the three officers got out of their marked patrol car, defendant turned away from the gamblers and began to walk away "'very quickly.'" As defendant turned to walk away, one of the officers observed a bulge in defendant's waistband. The officer walked up behind defendant, frisked him, and found a pistol with an obliterated serial number in defendant's waistband. The district court granted defendant's motion to suppress, and the government appealed.³

The Eleventh Circuit identified four factors that can be "considered in determining whether the totality of the circumstances demonstrates a reasonable suspicion that criminal activity was afoot."⁴ The court noted that "reasonable suspicion may exist even if each fact alone is susceptible to an innocent explanation."⁵ First, an officer may consider the "reputation of an area for criminal activity . . . when determining whether circumstances are 'sufficiently suspicious' to warrant further investigation."⁶ In this case, the area in which the officers found defendant was considered a high-crime area.⁷ Second, an individual's proximity to illegal activity is a relevant consideration.⁸ In this case, defendant "was standing next to and observing illegal gambling moments before [the officer] stopped him."⁹ Third, flight from the scene of illegal activity is a relevant consideration.¹⁰ The court in Hunter construed as flight the fact that defendant "walked quickly away" when the police arrived.¹¹ Last, "the presence of a visible, suspicious bulge on an individual may be considered in the totality of the circum-stances."¹² The officer in this case saw a bulge in defendant's waistband when defendant turned to walk away.¹³ The court in Hunter therefore concluded that the officer had "reasonable, articulable suspicion that criminal activity was afoot when he stopped and frisked [defendant]."¹⁴

In United States v. Baker,¹⁵ a case of first impression, the Eleventh Circuit addressed whether "the interaction between the police and the individuals in [a] car that was neither parked nor moving was a consensual encounter under the Fourth Amendment."¹⁶ The police officers in Baker were working drug interaction at a bus station. Prompted by information received from a bus company employee, the police officer approached a car that was stuck in traffic. The officer displayed his badge and asked the driver to lower his window. The officer then asked permission to speak with the man in the backseat.¹⁷ on his own initiative, the man in the backseat got out and walked to the back of the car, "leaving a jacket and bag on the backseat."¹⁸ The officer asked the three men if any of them owned the jacket and bag in the backseat. All three men denied ownership and agreed for the officer to examine the jacket and bag. All three men were arrested after the officer found drugs in the jacket. After the district court denied defendant's motion to suppress the drugs, the case went to trial, and the jury returned a verdict of guilty.¹⁹

In reviewing the district court's denial of the motion to suppress, the Eleventh Circuit noted that "not all personal intercourse between policemen and citizens involves 'seizures' for Fourth Amendment purposes."²⁰ A seizure does not occur simply because an officer approaches an individual and identifies himself; there must be something more, such as a show of force or show of authority that communicates to a reasonable person that he is "'not at liberty to ignore the police presence and go about his business.'"²¹ The requisite show of force can be in the form of "'the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.'"²²

The court in Baker concluded that there were no facts that would have transformed this encounter into a seizure for Fourth Amendment purposes.²³ "Just because [defendant] was in a car that was momentarily stopped waiting for traffic to clear does not elevate this interaction to that of a seizure .... [T]his was a consensual encounter not protected by the Fourth Amendment."²⁴

B. Reasonable Expectation of Privacy

The Eleventh Circuit addressed another issue of first impression in United States v. Miravalles²⁵ and concluded that "tenants in a large, high-rise apartment building, the front door of which ha[d] an undepend-able lock that was inoperable on the day in question, [do not] have a reasonable expectation of privacy in the common areas of their build-ing."²⁶ Defendant in Miravalles was convicted of trafficking cigars bearing counterfeit marks, and he appealed the denial of his motion to suppress evidence of counterfeit cigar labels obtained when officers were present in the common area of his apartment building. The officers in Miravalles received a tip that cigars with counterfeit labels were located in defendant's apartment, but they did not have sufficient probable cause to obtain a search warrant. Defendant lived on the fourteenth floor of a large apartment building. The officers were able to enter defendant's apartment building through the glass front door because the electronic locking mechanism that was designed to secure the front door was not working.²⁷

When the officers arrived at defendant's apartment, defendant's father answered the door and refused the officers' request that he consent to a search of the apartment. While the officers were talking with the father, defendant's wife walked up to the apartment, and she too refused to consent to the officers' request to search. At one point during the conversation among the officers, defendant's father, and defendant's wife, one of the officers looked into the open door of the apartment and told defendant's wife that he could see what appeared to be boxes of Cuban cigars and that they could be counterfeit. In response to an officer's request, defendant's wife gave an officer one of the cigars, which had no label on it.²⁸

After obtaining the cigar, most of the officers went downstairs. At least one officer stayed behind and hid in the hallway near the apartment. The officer soon observed defendant's wife leave the apartment with a garbage bag and dispose of it down a chute that sends trash to the ground floor. The officer observed the wife come out of the apartment and dispose of a second bag, through which the officer claimed he could see what appeared to be counterfeit cigar labels.²⁹

The officers retrieved the garbage bags containing the counterfeit labels and returned to defendant's apartment. The officers knocked on the door and yelled for the occupants, but no one responded. After a few minutes, the property manager responded to the commotion and opened the door for the officers. The officers observed boxes of cigars and counterfeit labels throughout the apartment and seized them. The district court held that defendant did not have a reasonable expectation of privacy in the common area of the apartment building and denied his motion to suppress.³⁰

The Eleventh Circuit noted that five of the six circuits that have addressed this issue have concluded that tenants do not have a reasonable expectation of privacy in their apartment buildings.³¹ Whether the front door was locked did not appear to be a relevant consideration in four of the five decisions because in each of those decisions, the door was locked.³² Rejecting a reasonable expectation of privacy in common areas, the five circuits reasoned that "tenants have little control over those areas, which are available for the use of other tenants, friends and visitors of other tenants, the landlord, delivery people, repair workers, sales people, postal carriers and the like."³³ The Sixth Circuit, which has recognized a reasonable expectation of privacy in the common areas of a locked apartment building, reasoned that "while tenants living in a locked building may expect that other tenants or their guests will be in the common areas, it is also reasonable for them to expect that the general public or trespassers (including law enforcement officers) will be excluded."³⁴

The Eleventh Circuit reasoned that "[t]he reasonableness of a tenant's privacy expectation in the common areas of a multi-unit apartment building stands in contrast to that of a homeowner regarding the home and its surrounding area, over which the homeowner exercises greater control."³⁵ The court then identified the number of units in an apartment building, the number of tenants and other people who will have regular access to the common areas of an apartment building, and whether the door to the apartment building is locked as relevant considerations in determining whether a tenant of the apartment building would have a reasonable expectation of privacy in the common areas of the building.³⁶ The Eleventh Circuit recognized that in the case before it, "[t]here was nothing to prevent anyone and everyone who wanted to do so from walking in the unlocked door and wandering freely about the premises."³⁷ Based on those facts, the Eleventh Circuit in Miravalles concluded that "any expectation of privacy...