Constitutional Criminal Procedure - Charles E. Cox, Jr.

• Publication year: 2002

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 Amendment, the Fifth Amendment,
and the Sixth Amendment. This Article surveys decisions issued in 2001
that are likely to be of interest to criminal law practitioners.

II. The Fourth Amendment

A. Traffic Stops and Consent

The Eleventh Circuit began the year with a decision addressing the
limitations the Fourth Amendment places on a law enforcement officer
conducting a traffic stop. In United States v. Purcell,¹ the defendants
were indicted for conspiracy to possess with intent to distribute and
possession with intent to distribute cocaine base. The defendants pled
guilty after the district court denied their motion to suppress, but they
reserved their right to appeal the denial.²

The sheriff's deputy in Purcell stopped the defendants for following too
closely, and the deputy and the defendant-driver both stepped out of
their vehicles. The defendant-driver handed the deputy his driver's license and a rental agreement for the car he was driving.³ The rental
agreement had the defendant-driver listed as an additional driver, but
his name had been crossed out. After obtaining identification from the
two passengers in the stopped car, the deputy radioed for a computer
check on the car's occupants. While the deputy was waiting for a
response to his request, he began writing a warning citation to the
defendant-driver for following too closely.⁴ The Eleventh Circuit set
forth the remaining facts of the traffic stop as follows:

Prior to asking [the defendant-driver] to sign the citation, [the deputy]
asked him if he had ever been arrested. [The defendant-driver] replied
that he had and that the arrests were drug related. The deputy then
asked the [defendant-driver] if he had "any narcotics, weapons,
firearms, contraband, anything like that in the car." [The defendant-
driver] replied that he did not. At this point, approximately fourteen
minutes into the traffic stop, [the defendant-driver] consented to a
search of the car, saying "I've got nothing to hide."⁵

Another deputy arrived as backup about the same time that the
defendant-driver consented to a search of the car. The occupants of the
car were patted down to check for weapons, and the backup deputy
began to search the car. The backup deputy quickly found what
appeared to be crack cocaine, and the occupants were placed under
arrest.⁶

The court in Purcell stated that a law enforcement officer's actions
"during a traffic stop must be 'reasonably related in scope to the
circumstances which justified the interference in the first place,'"⁷ and
the duration of the traffic stop "may not last 'any longer than necessary
to process the traffic violation' unless there is articulable suspicion of
other illegal activity."⁸ The Eleventh Circuit rejected the defendants'
argument that the duration of the traffic stop was impermissibly
extended when the deputy prolonged the detention to wait for criminal
histories.⁹ The court reasoned that it was both reasonable and
minimally intrusive for an officer to request criminal histories to ensure officer safety.¹⁰ The court noted that the deputy was still waiting for
the results of the criminal record check and had not yet given the
citation to the defendant-driver when he asked for and received consent
to search.¹¹ "The traffic stop, therefore, had not concluded prior to the
consent to search, and the detention continued to be supported by the
facts that justified its initiation."¹² The Eleventh Circuit refused to
adopt a bright line rule that requesting a criminal history check is
reasonable in all traffic stops.¹³ Rather, the court stated: "Under some
circumstances a criminal record request might lengthen a traffic stop
beyond what is reasonable in a particular case. After a certain point,
this might constitute an unreasonable detention."¹⁴

The court also rejected the defendants' argument that the scope of the
traffic stop was "impermissibly enlarged when the officer asked [the
defendant-driver] whether he had any 'firearms, guns, or narcotics' in
the car."¹⁵ First, the court rejected the defendants' argument that the
deputy's question was unrelated to the traffic stop.¹⁶ The court
concluded that the question was legitimately prompted by officer safety
in light of the defendant-driver's admission of prior drug arrests and the
irregular rental agreement.¹⁷ Second, even if the deputy's question was
assumed to be unrelated to the purpose of the traffic stop, "the question
regarding weapons was asked while the officer was still writing out the
citation and awaiting the results of the computer check. Thus, the
unrelated question did nothing to extend the duration of the initial, valid
seizure."¹⁸ The court in Purcell emphasized that the critical inquiry is
not whether the question itself is unrelated to the traffic stop, but
whether the question impermissibly extends the duration of the stop.¹⁹
The court also concluded that the defendant-driver voluntarily
consented to a search of the car.²⁰ To determine whether consent was
voluntary, "the court should look at several indicators, including the
presence of coercive police procedures, the extent of the defendant's
cooperation with the officer, the defendant's awareness of his right to
refuse consent, the defendant's education and intelligence, and the defendant's belief that no incriminating evidence will be found."²¹ The
Eleventh Circuit rejected the defendants' argument that the search was
involuntary because the deputy did not inform the defendant-driver that
he had a right to refuse consent.²² The court also rejected the defen-
dants' argument that the consent was involuntary because the deputy
had not returned the driver's license to the defendant-driver at the time
he asked for consent.²³ The court in Purcell concluded that "whether
[an] officer ha[s] returned the driver's license of the defendant at the
time the defendant consented to the search is a factor we shall consider
in evaluating the totality of the circumstances, but it is not a litmus test
for voluntary consent."²⁴

B. Abandoned Property

The Eleventh Circuit addressed the law of abandoned property in
United States v. Cofield.²⁵ In Cofield two officers approached the
defendant at a train station and asked if he would consent to a search
of his luggage. After some discussion about a "dog sniff," the defendant
placed his luggage on the ground, denied the luggage was his, and
attempted to walk away.²⁶ After the defendant denied to the officers
that the luggage was his, the officers made a loud announcement asking
whether the bags belonged to anyone. Not surprisingly, neither the
defendant nor anyone else claimed the bags. The officers searched the
bags and found 1411 grams of cocaine base hidden in one of the bags.²⁷

Although an individual enjoys a reasonable expectation of privacy in
personal luggage, an individual who abandons or denies ownership of personal property
may not contest the constitutionality of its subsequent acquisition by
the police. . . . [T]he critical inquiry is whether the person . . .
voluntarily discarded, left behind, or otherwise relinquished his
interest in the property in question so that he could no longer retain
a reasonable expectation of privacy with regard to it at the time of the
search.²⁸

The burden of proving abandonment is on the government.²⁹ The
Eleventh Circuit concluded that the government proved abandonment in
Co field.³⁰ In so holding, the court noted that the defendant was not in
custody at the time he placed his luggage on the ground, and there were
no other indications that would have led the defendant to believe he was
not free to refuse consent.³¹

C. Strip Searches

In Wilson v. Jones,³² plaintiff Wilson filed a suit pursuant to 42
U.S.C. Sec. 1983 asserting that she was subjected to a strip search in
violation of the Fourth Amendment.³³ Although this is a civil case, the
court's Fourth Amendment analysis is equally applicable to the criminal
context. The facts of the case are relatively straightforward. Wilson was
arrested at a license checkpoint in Shelby County, Alabama for driving
under the influence of alcohol. The arresting officer took Wilson to the
Shelby County Jail, where she was strip searched pursuant to a jail
policy that "require[d] each arrestee to undergo a 'complete search' prior
to admission into the general population of the jail."³⁴

The Eleventh Circuit began its analysis with the Supreme Court's
decision in Bell v. Wolfish,³⁵ in which the Court held that strip searches
and body cavity searches may be conducted on inmates with less than
probable cause under certain circumstances.³⁶ The test for reasonable-
ness set forth by the Supreme Court in Bell "requires a balancing of the
need for the particular search against the invasion of personal rights
that the search entails. Courts must consider the scope of the particular
intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted."³⁷ After balancing
the security interests of the prison versus the privacy interests of the
inmates, the Supreme Court in Bell upheld a policy requiring all inmates
to submit to a routine body cavity and strip search after each contact
visit with a person from outside the institution.³⁸

The Eleventh Circuit in Wilson stated that "reasonable suspicion" was
sufficient to justify the strip search of a pretrial detainee.³⁹ The court
concluded, however, that the strip search of Wilson was in violation of
the Fourth Amendment because the officers at the Shelby County Jail
did not have "reasonable suspicion that [Wilson] was concealing weapons
or any other type of contraband."⁴⁰ Moreover, the policy authorizing
strip searches at the Shelby County Jail, in particular, violated the
Fourth Amendment because it did not require strip searches to be
justified by reasonable suspicion.⁴¹

The Eleventh Circuit again...