Search and Seizure Update

Article excerpt

The most recent decisions of the Supreme Court have addressed the practical problems raised by border stops and searches of a motor vehicle, warrantless searches incident to arrest, and the ability to prevent access to a private dwelling without law enforcement supervision while a formal search warrant was obtained prior to any actual premises search for contraband.

Likewise, the Supreme Court also issued opinions dealing with searches related to minor offenses, drug testing of pregnant females, arrests for non-jailable minor traffic infractions, pretextual arrests and their obvious Fourth Amendment overtones. Although Atwater v. Lago Vista- a case permitting arrest for a non-jailable offense (failure to wear a seatbelt) where arrest discretion is vested by virtue of state statute in the citing officer- may have been the most significant decision by the Supreme Court in that regard.

Of almost identical significance is the discretion provided law enforcement in Illinois v. McArthur, which afforded officers the legal authority to secure a home and prevent unsupervised access to the owner until a search warrant was obtained, issued and could be served. In Illinois v. McArthur, the record indicates that officers had probable cause to believe that the home's occupant was concealing marijuana and other drug related paraphernalia. Based on this information and probable cause, the officers prevented entry to the dwelling by its owner unless he was accompanied by and under the direct supervision of an officer at all times.

The net effect of this law enforcement action was to effectively evict the homeowner from his residence for the more than two hours it required law enforcement officers to obtain a warrant. The execution of the legally sufficient search warrant discovered the marijuana and other drug paraphernalia suspected of being located on that premises. The seized items resulted in a misdemeanor charge of possession under the state penal code of that jurisdiction.

Reversing lower court decisions suppressing and excluding this evidence from use in the criminal trial, the U.S. Supreme Court concluded that the officers' conduct was reasonable under the circumstances, the probable cause relied upon prior to taking any action was sound, and that the nature of the intrusion in this instance was minimal given its brief nature and the law enforcement interests at stake should the home owner be given the opportunity to enter his residence without supervision.

In United States v. Arvizu, using the similar rationale of the reasonableness of the officer activity and the totality of the circumstances involved, the Supreme Court determined the stop and search of a motor vehicle by a federal border patrol agent, and the seizure of drugs discovered in the warrantless search was legitimate and permissible.

While patrolling a remote, unpaved Arizona desert road adjacent to the Mexico/U.S. border, a federal border patrol agent was advised that a magnetic sensor or intrusion device had been activated. The location was an area drug smugglers used to avoid roving patrols of border agents and a location where prior apprehensions of drug smugglers were common. In addition, in this area of the border, minivans appeared to be the preferred vehicle of choice for drug smugglers seeking entry into the United States.

After receiving radio contacts of suspected smuggling activity from other border patrol agents, as well as being advised of other magnetic sensor activity, the agent on patrol sighted a minivan in a remote, isolated area, and began to follow its progress based on the information available to him: that this was the minivan that had activated the sensors seeking to avoid detection as it traveled away from the border.

Upon closer observation, the border patrol agent observed five occupants in the minivan, and a driver who alternately increased or decreased his speed as the border patrol vehicle approached him. …