Constitutional Criminal Procedure - James P. Fleissner

• Publication year: 1997

Constitutional Criminal Procedureby James P. Fleissner^*

I. Introduction

The Fourth, Fifth, and Sixth Amendments of the United States Constitution are the three pillars of the American system of criminal justice. The three amendments make procedural guarantees using enigmatic terms that are given meaning by those with the power of interpretation. The Fourth Amendment protects us from "unreasonable searches and seizures." The Fifth Amendment includes a guarantee of "due process of law." The Sixth Amendment guarantees a "speedy" trial. In the years since 1791, when these provisions were enshrined in the Bill of Rights, the courts have played the leading role in shaping the scope of these broad pronouncements. The evolution of these rights in the courts has been influenced by history, tradition, and precedent as well as changing societal attitudes about the requisites of fair process and the best way to maintain a safe, orderly society.

An important part of this constitutional evolution is played out in the United States Courts of Appeals, which decide a high volume of cases arising from federal criminal prosecutions and appeals in habeas corpus litigation concerning alleged federal constitutional violations in state prosecutions. This Article presents the annual survey of the constitutional criminal procedure decisions of the United States Court of Appeals for the Eleventh Circuit. The author surveyed decisions from calendar year 1996 that addressed Fourth, Fifth, and Sixth Amendment issues. In selecting cases for inclusion in the Article, the author attempted to choose cases based on their significance to practitioners, with an emphasis on important interpretive decisions on recurring questions. The discussion of the various cases includes a summary of the issues and the court's reasoning, as well as some commentary and analysis. Where appropriate, recent related developments in the United States Supreme Court are noted.

II. The Fourth Amendment

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 person or things to be seized.¹

A. Warrantless Searches/Exigent Circumstances

The general rule that warrantless searches are presumptively unreasonable is subject to several well-established exceptions.² One such exception is that an officer may, during an investigatory Terry stop grounded on reasonable suspicion, conduct a pat-down or frisk limited in scope to finding weapons.³ Contraband found during a protective pat-down search is admissible. Another exception is that an officer with probable cause to arrest a suspect may conduct a search before arresting the suspect where "the formal arrest followed quickly on the heels" of the search, as long as the search is "not necessary to support the probable cause to arrest."⁴ Yet another exception is that searches may proceed without warrants if there are "exigent circumstances," such as a serious risk that evidence will be destroyed.⁵ In United States v. Banshee,⁶ the court addressed the issue of whether one of these exceptions justified the challenged warrantless search.

In Banshee, Deputy Sheriff William Todd and another officer pulled over a northbound vehicle in Camden County, Georgia. The stated reason for the stop was that the vehicle was being operated with its high-beam lights despite the presence of on-coming traffic. The car was being driven by Kenneth Parker and contained two female passengers, Mary Lee Banshee and Lee Ann Johnson. Deputy Todd ordered Parker out of the car and asked for his driver's license. Parker could not produce a license, but claimed to have a District of Columbia license. Parker also stated that the three were returning from a vacation in Miami and that Banshee had rented the car. When the officer approached Banshee, who was in the passenger seat, she said that a friend had rented the car, that the three were returning from Orlando, and that they had not traveled farther south. Although a computer check failed to confirm that Parker had a valid license, Deputy Todd issued a warning, told Parker that he could no longer drive, and informed him that he was free to go. Before Parker left, Deputy Todd asked Parker for consent to search the vehicle, and Parker agreed.⁷

Deputy Todd frisked Parker and approached the passengers still seated in the car. When Johnson got out of the car, Deputy Todd did not frisk her, but asked her if she had a weapon, which she denied. Deputy Todd then ordered Banshee out of the car.⁸ When Banshee got out, Deputy Todd saw a bulge in Banshee's waist area. Rather than frisking Banshee, Deputy Todd asked her if she had any weapons or "anything." Banshee replied in the negative. When Deputy Todd asked about the bulge, Banshee said she was pregnant. At this point, Deputy Todd made remarks to his fellow officer expressing his belief that Banshee was carrying contraband. After an unsuccessful attempt to radio for the assistance of a female officer, Deputy Todd did a pat-down search of Banshee's midsection. He then handcuffed Banshee and asked her what she was hiding. After Banshee said it was something her boyfriend had given her, Deputy Todd released one of Banshee's hands from the cuffs and ordered her to remove the object from her clothes. The package contained 728.7 grams of cocaine.⁹

Banshee moved to suppress the cocaine. The district court denied the motion, finding that the consent to search was valid and that the detention and pat-down search of Banshee was permissible under Terry.^w The court of appeals focused on the Terry issues, which it termed "problematic."¹¹ The district court's conclusion that the pat-down was permissible under Terry is difficult to defend. A valid protective pat-down search must "be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer."¹² It is obvious that Deputy Todd was not searching for a weapon when he patted down Banshee. Both his words and his actions establish this. He made remarks indicating that he thought Banshee was carrying contraband: "She, She got it on her ... I can see it, she got it on her."¹³ Deputy Todd then put off a frisk and allowed Banshee to stand nearby without handcuffs while he tried to get assistance from a female officer.¹⁴ Although Deputy Todd was worried about accusations of improper conduct in frisking a female, he clearly was not concerned about being harmed. He believed, quite correctly, that he had found drugs. Thus, it is hard to defend the pat-down under Terry.

The court of appeals upheld the denial of the suppression motion, but chose not to adopt the district court's Terry rationale.¹⁵ Instead, the court upheld the search by making two findings: First, Deputy Todd had probable cause to conduct a search.¹⁶ Second, "[T]here were exigent circumstances excusing the need for a warrant."¹⁷ In reaching these conclusions, the court noted that it was reviewing the issues de novo, as required by a recent Supreme Court decision setting forth the standard of review for warrantless searches and seizures.¹⁸ As for the finding that Deputy Todd had probable cause to believe that the search would uncover evidence of crime, one can consider that Parker and Banshee had made conflicting statements about their trip and that there was a visible bulge in Banshee's midsection. But can the arguably improper pat-down be considered? And what of Banshee's post pat-down statement about receiving the package from a friend? The court simply said it was basing its finding on the inconsistent statements and the bulge in Banshee's midsection.¹⁹

It is the court's finding of exigent circumstances, however, that is open to serious question. There was no reason to believe that evidence would be lost or destroyed. The court explained its finding: "Specifically, Deputy Todd had the option of either letting Banshee go or detaining her for a prolonged period of time while he secured a warrant. Accordingly, under the circumstances, the frisk was much less an intrusion than a prolonged detention."²⁰ First of all, if Deputy Todd had probable cause to believe Banshee was carrying contraband, did he not also have the option of arresting Banshee? Furthermore, the court's analysis seems to allow the exigent circumstances exception to drain the vitality out of the presumption favoring warrants. In a traffic stop, it always will be the case that doing a warrantless search will be less intrusive and time consuming than obtaining a warrant. If those facts alone give rise to a finding of exigent circumstances, then exigent comes to mean "commonplace."

The court of appeals advanced an alternative ground for approving the search, finding that the search was incident to a lawful arrest.²¹ Having raised the possibility that Deputy Todd might have had to let Banshee go, the court found probable cause to arrest.²² The court stated that "because there was probable cause for the arrest before the search and the arrest immediately followed the challenged search, the fact that Banshee was not under arrest at the time of the search does not render the search incident to the arrest doctrine inapplicable."²³ However, the doctrine invoked by the court requires that the fruits of the search are "not necessary to support probable cause to arrest."²⁴ Did Deputy Todd really have probable cause to arrest before he patted down Banshee? It does not appear that Deputy Todd or the district court thought so.²⁵ It is true that the presence of a bulge has contributed to probable cause findings in other cases,²⁶ but the court of appeals conclusion is surprising, especially in a case the district court analyzed as a Terry stop.

The decision in Banshee must be understood in light...