Constitutional Criminal Procedure: a Two Year Survey - James P. Fleissner and Jeffrey R. Harris

• Publication year: 1999

Constitutional Criminal

Procedure: A Two Year Surveyby James P. Fleissner*and

Jeffrey R. Harris**

I. Introduction

This Article surveys significant constitutional criminal procedure decisions of the United States Court of Appeals for the Eleventh Circuit issued during 1997 and 1998. The "constitutional" branch of criminal procedure focuses on the interpretation of the Fourth, Fifth, and Sixth Amendments to the United States Constitution. In selecting "significant" decisions, we emphasized questions of first impression, other noteworthy cases, and issues likely to interest attorneys practicing in the courts of the Eleventh Circuit. We have endeavored to summarize the selected decisions and provide commentary that, hopefully, will illuminate the issues and assist the reader in understanding the importance and implications of the cases.

Although it is difficult to characterize two years of decisions, one useful methodology stems from a classic article authored by Professor Herbert L. Packer.¹ Professor Packer suggested that the criminal justice system may be viewed from the perspective of two models: the Crime Control Model and the Due Process Model.² The Crime Control Model emphasizes the efficient apprehension and punishment of criminals and the protection of citizens from crime.³ The image of the Crime Control Model is that of an assembly line on which crimes are systematically investigated and prosecuted. The Due Process Model focuses on the process used to determine guilt or innocence. It is more concerned with the integrity of the process and the sanctity of constitutional safeguards. The image of the Due Process Model is an obstacle course that presents impediments to wrongful convictions and law enforcement practices that infringe on the rights of citizens.⁴

Obviously, the American system of criminal justice does not embody either of these two models exclusively, nor could it. Rather, the system reflects the ongoing tension between the two models. The American system is a compromise between the models that is constantly being struck and restruck in individual decisions, including those by the courts. Viewed from the perspective of the two models, the decisions of the Eleventh Circuit tend to favor the Crime Control Model. That generalization has more force if one considers the totality of the decisions of the court, including the entire docket of the court and not just cases involving a published opinion. But as this survey illustrates, the court often vindicates the values of the Due Process Model, and in other cases the voices of dissent advocate those values. Of course, opinions advancing the Due Process Model are over-represented here precisely because the result (or the dissent) favoring Due Process values over Crime Control values makes the cases noteworthy. That said, the general leaning of the Eleventh Circuit towards the Crime Control Model should not obscure the significant strain of Due Process values running through the body of the court's decisions.

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, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.⁵

A. Standing / Reasonable Expectation of Privacy

The Crime Control Model and the Due Process Model differ greatly concerning the interpretation of the Fourth Amendment and the scope of the exclusionary rule. The Crime Control Model favors a more narrow view of the scope of Fourth Amendment protections and abhors the suppression of evidence as a sanction for illegal searches and seizures. The Due Process Model favors an expansive view of Fourth Amendment rights and endorses the exclusion of evidence as the only viable means of deterring over-reaching by law enforcement officials. This tension between the values of the two models is illustrated by several notable decisions of the Eleventh Circuit.

In a case of first impression, the Eleventh Circuit decided whether the driver of an overdue rental car has the legitimate expectation of privacy necessary to provide standing to challenge a search of the car. In United States v. Cooper,⁶ Cooper rented a car from Budget. The car was due back at the rental office on January 20. On January 24, four days after the car became overdue, the Florida Highway Patrol ("FHP") stopped Cooper for making an illegal lane change. When the trooper discovered the rental car was overdue, he contacted Budget and the company asked him to tow the car. Cooper asked to speak to a Budget representative, but the trooper refused to let him speak on the phone. Cooper maintained he had rented cars from Budget several other times and believed he could extend the rental contract if the necessary credit was available on his credit card to cover the additional days. There was some evidence that Budget had an unwritten policy of extending the deadline. However, the extension required the renter to make either a written or oral request to extend the time. There was no evidence that Cooper had done either.⁷

The trooper conducted a sweep search of the passenger compartment of the car and discovered a loaded firearm in the glove compartment. He arrested Cooper on a firearms charge and conducted an inventory search of the vehicle pursuant to FHP policy. The search revealed two safes in the trunk of the car. A drug dog "hit" on the safes. When the trooper pried them open, he discovered cocaine, cocaine base, scales, and other drug-related paraphernalia.⁸ Cooper was charged with and convicted of several federal drug offenses and sentenced to life in prison.⁹

Cooper moved to suppress the evidence discovered in the search, but the district court concluded Cooper lacked standing to challenge the search of the rental car.¹⁰ The Eleventh Circuit reversed and remanded the case to the district court to determine whether the search was constitutionally permissible.¹¹ The court noted that standing to challenge a search requires a two-part analysis.¹² First, a party must have a subjective expectation of privacy. Second, this subjective expectation of privacy must be one that "society is prepared to recognize as reasonable."¹³ There was no dispute that Cooper subjectively maintained an expectation of privacy in the rental car. This was so, the court noted, because Cooper's previous dealings with Budget led him to believe he could extend the rental contract if he had enough credit available on his credit card.¹⁴

The court began its legal analysis by discussing several "indicia of reasonableness" of the expectation of privacy. First, the court explained that dicta from a prior Eleventh Circuit decision indicated a defendant maintains a reasonable expectation of privacy in a rental car three weeks overdue.¹⁵ However, while recognizing this dicta as one indicia of reasonableness, the court refused to endorse the statement made in the prior decision.¹⁶ The court also pointed to a district court opinion finding a reasonable expectation of privacy in a rental car one month overdue, but again explicitly declined to embrace that result.¹⁷

The court then analyzed the Fourth Circuit decision in United States v. Wellons.¹⁸ In Wellons the driver of a rental car challenged a search of the car that revealed drugs. The Fourth Circuit concluded the driver did not have standing to contest the search because he was not listed as an authorized driver on the rental contract.¹⁹ The Eleventh Circuit distinguished Wellons.²⁰ Unlike Wellons, Cooper was listed on the rental contract and was contractually obligated to pay for the rental car's use. Therefore, "Cooper's expectation of privacy was materially different from that of Wellons."²¹

The court also rejected any comparison to rental contracts involving hotel rooms.²² A decision by the Sixth Circuit, finding that a motel patron did not have a reasonable expectation of privacy when the motel clerk repossessed the room after the patron failed to check out at the allotted time, was distinguishable according to the Eleventh Circuit.²³ In Cooper, the court concluded, "Budget . . . had not repossessed the rented property prior to the challenged search."²⁴

Ultimately, the court determined that Cooper's privacy expectation was reasonable based on the aggregation of several factors: (1) the car was only four days overdue,²⁵ (2) Cooper was in actual possession of the vehicle and the rental agency had not taken any affirmative steps to repossess the vehicle,²⁶ (3) Cooper actually paid for the rental use during the four days the car was overdue,²⁷ and (4) even though he did not avail himself of the option, "a simple phone call could have extended the rental contract past the date of the warrantless search."²⁸ Accordingly, the court concluded Cooper retained sufficient control over the vehicle "for it to fall within the zone of constitutional sanctity."²⁹ After holding Cooper had standing, the court remanded the case to the district court to determine whether the search was permissible under the Fourth Amendment.³⁰

Ultimately, it is very difficult to predict, based on the court's holding in Cooper, when a defendant will maintain an expectation of privacy in an overdue rental car. The court was careful to avoid endorsing any specific length of time when a defendant's possession of an overdue car might be deemed unreasonable. Therefore, this case is likely confined largely to its facts and to the aggregation of factors that persuaded the court that Cooper's expectation was a reasonable one. Thus, although Cooper promotes the values of the Due Process Model, it is hardly a major advance for privacy rights.

B. Probable Cause

In an en banc decision, the Eleventh Circuit addressed the issue of whether the confession of one defendant can provide sufficient probable cause to arrest a...