Will Tennessee Adopt The Good Faith Exception ?

Stacey Barchenger  reported in today's Tennessean on the oral arguments held yesterday in State v. Reynolds. The issue raised by the Court of Criminal Appeals was whether Tennessee should adopt the good faith exception. Now the Tennessee Supreme Court has the case. Tennessee has not adopted the good faith exception under the Fourth Amendment.

In Reynolds, the trial court suppressed Ms. Reynolds blood alcohol test. Ms. Reynolds was charged with vehicular homicide. Reynolds' lawyers filed a motion to suppress her blood tests because her warrantless blood draw. At first, the court denied her motion then granted the motion after medical testimony. In the opinion's concluding remarks, the court wrote that this case would be a  case to determine if the officer's actions were covered under the good faith exception rule of Fourth Amendment law. Good faith was not raised by either party on direct appeal.

Here is a short definition of what is good faith;

An exception to the exclusionary rule barring the use at trial of evidence obtained pursuant to an unlawful search and seizure. If officers had reasonable, good faith belief that they were acting according to legal authority, such as by relying on a search warrant that is later found to have been legally defective, the illegally seized evidence is admissible.

The good faith exception was adopted by the U.S. Supreme Court in Leon. Tennessee has not adopted Leon. It appears Tennessee is on the verge of adopting the good faith exception. The Tennessee Constitution has always been interpreted as giving more protections that the U.S. Constitution. It looks like we are going to find out soon if that is still the case.

 

Texas Police Search Vagina for Marijuana in Gas Station Parking Lot

In Harris County Texas, sheriff's deputies searched a woman's vagina recently. Radley Balko reported the story in the Washington Post. The deputies searched Charnesia Corley's  car for almost an hour then brought a female officer to the scene for a body cavity search. Ms. Corley refused. More backup officers were requested. Backup arrived and they grabbed her legs and spread them apart so the female officer could search her vagina.. No search warrant was obtained nor is it required under Texas law. Ms. Corley did not consent to the search. When I read Mr. Balko's post I was horrified. I am just glad that could not happen in Tennessee.

In order to conduct a body cavity search in Tennessee, one of two things must happen under Tennessee Code Annotated 40-7-121. First , police must apply for a search warrant to be able to conduct a body cavity search or a person can give consent to a body cavity search. One interesting aspect of T.C.A. 40-7-121 is that the consent must be in writing and contain certain language advising the person of their rights. Under Tennessee, consent to search usually does not have to be in writing.

Incredibly, a spokesman for the Harris County Sheriff's office stated  the officers conduct was appropriate. according to the statement police could strip search a suspect if they wanted. It seems to be a sad state of affairs in the Lone Star State. Thanks to Deandre Grant for alerting me to the story.

Texas Police Search Vagina for Marijuana in Gas Station Parking Lot

In Harris County Texas, sheriff's deputies searched a woman's vagina recently. Radley Balko reported the story in the Washington Post. The deputies searched Charnesia Corley's  car for almost an hour then brought a female officer to the scene for a body cavity search. Ms. Corley refused. More backup officers were requested. Backup arrived and they grabbed her legs and spread them apart so the female officer could search her vagina.. No search warrant was obtained nor is it required under Texas law. Ms. Corley did not consent to the search. When I read Mr. Balko's post I was horrified. I am just glad that could not happen in Tennessee.

In order to conduct a body cavity search in Tennessee, one of two things must happen under Tennessee Code Annotated 40-7-121. First , police must apply for a search warrant to be able to conduct a body cavity search or a person can give consent to a body cavity search. One interesting aspect of T.C.A. 40-7-121 is that the consent must be in writing and contain certain language advising the person of their rights. Under Tennessee, consent to search usually does not have to be in writing.

Incredibly, a spokesman for the Harris County Sheriff's office stated  the officers conduct was appropriate. according to the statement police could strip search a suspect if they wanted. It seems to be a sad state of affairs in the Lone Star State. Thanks to Deandre Grant for alerting me to the story.

The Erosion of The Fourth Amendment Continues

The erosion of the Fourth Amendment is continuing at a rapid pace. I don't know which will happen first.The disappearance of the Fourth Amendment or the melting of the North Pole. The U.S. Supreme Court dealt another body blow to the Fourth Amendment in Navarette v California . In Navarette , The Supreme Court of the United States ruled that an anonymous tip can be the basis for a traffic stop.

 

Under the court's ruling , a person sitting at Whiskey Dick's in Murfreesboro can call into to the police and report someone was leaving drunk . Better yet , a off-duty police officer makes the call. The court has opened the floodgates for traffic stops. Here is what Justice Scalia said in his dissent;

"After today's opinion," said Scalia, "all of us on the road, and not just drug dealers, are at risk ... "

Justice Scalia was referring to the unfettered discretion of police officers to stop cars. Tennessee has already gone to this standard a few years ago when the Tennessee Supreme Court decided  Hanning .The bottom line is you will see more of these anonymous call traffic stops . Soon folks might be alerting the police on Twitter if they think there is a drunk driver on the road. I think the better rule is that police officers must see something to corroborate the callers information.

My takeaway is that the Fourth Amendment now has more exceptions to the search and seizure requirement than it has real teeth to prevent unlawful seizures. .On the other hand when courts review the Second Amendment there are no exceptions.

 

Can The Police Search Your Trash Without A Warrant ?

On this day in 1988 , The United States Supreme Court allowed a search of a person's trash without  first obtaining a search warrant . Since that ruling a trash pull has become a standard police tactic in drug crime investigations. Once you put your trash can to the curb , the police can sift through your garbage looking for evidence of a drug crime. They will be looking for packaging material , seeds and stems , and paperwork.

The court ruled that the trash searches did not require a search warrant . The court found there was no expectation of privacy because it was common knowledge that people rummaged through trash cans. Justice Brennan wrote the dissent. and reasoned the following ;

[t]he mere possibility that unwelcome meddlers might open and rummage through the containers does not negate the expectation of privacy in their contents any more than the possibility of a burglary negates an expectation of privacy in the home.

Justice Brennan's opinion is more true today than in 1988. Thanks to the NSA and identity theft going through other peoples trash is just a bad idea. For example , I sneak out at midnight on the day before the trash is picked. I sift through the garbage and take something. I just committed a theft. I exercised control over a item without the owner's effect consent. How can we justify allowing the police search my garbage if I set it on my property for roadside pick-up. Maybe it is time to revisit the constitutionality of trash pulls ?

Knock and Talk Does Not Mean Talk and Wait

One police tactic is the ' knock and talk " . Basically , the police may not have enough information for a search warrant but they have a tip or suspect some type of criminal activity. It begins with a police officer knocking on the door then requesting to come in in to the house to talk. The police hope to see some evidence of a crime , drug activity , or the smell of marijuana . One thing to remember , you do not have to answer the door for the police or the Amway salesman.

The Indiana Court of Appeals recently suppressed the evidence from a knock and talk search. The homeowner refused to answer the door. The police waited forty-five minutes after the initial refusal . One officer looked into a window where he saw beer cans. a tow truck was called to tow a  parked truck. The officers threatened that the truck would be towed if no one came to the door. finally , the folks inside answered the door and you can guess what happened next. charges of underage alcohol consumption.

The Indiana Court ruled the search was illegal and the police overstayed their welcome . Relying on Florida v. Jardines 133 S. Ct. at 1414 , the court held ;

[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity . …

The takeaway is don't answer the door if police come knocking. Secondly , a man's home is still his castle for the time being.

Thanks to the Fourth Amendment , you can read their analysis here .

 

 

How Not To Get a Search Warrant in Tennessee ?

A search warrant is one of the main tools that police have in obtaining evidence. Last week , a Robertson County , Tennessee man had his animal cruelty charge dismissed by the assistant district attorney. The reason was that the judge ruled that the search warrant was not legally valid.

The search warrant was signed by an employee of the Humane Society of the United States. Rule 41 of the Tennessee Rules of Criminal Procedure provides that a magistrate must endorse the search warrant.

In the Robertson County , Tn. criminal case , members of the local humane society signed the search warrant. The issuance and the execution of the search warrant was in violation of Tennessee's search and seizure laws. The trial judge had no choice but to suppress all evidence of the illegal search. Ultimately , the assistant district attorney had no choice but to dismiss the animal cruelty charges.

The lesson for criminal defense attorneys and those charged with a crime via a search warrant is always look at the search warrant. One technical defect may lead to a search warrant being illegal. In all cases , the devil is in the details. My criminal law tip of the day is to review Rule 41 of the Tennessee Rules of Criminal Procedure and make sure the search warrant compiles with the rule.

More on Collecting DNA at the Time of Arrest

How the government will implement  collecting DNA at the time of arrest remains a subject of discussion .The Urban Institute Justice Policy Center issued a final technical report on the policies , practices , and implications of collecting DNA at the time of arrest. Here are a few of their findings;

  1. Arrestee laws will increase laboratory workloads.
  2. The burden of expunging the DNA sample will be placed on the arrestee whose charge has been dismissed.
  3. Collecting the samples will require a increase in funding.

The states that have enacted DNA collection have different qualifying offenses. Some states collect DNA from all felonies others like Tennessee just collect DNA from violent offenders and those that have been convicted of a crime. Tennessee's current program seems to make sense. Currently , Tennessee has collected 81,000 DNA samples and has sent 61,000 to the Combined DNA Index System (CODIS).

My prediction is some state legislator will try to jump on the bandwagon and push for DNA collection of everyone arrest of a crime even DUI. Then, the cost will become a issue. Just imagine the cost if the case is dismissed and the TBI  has to erase all the DNA records.It will be interesting if there will be a move to expand DNA sampling at the time of arrest.

 

The First Step Toward A Police State

The first step towards a police state is being able to track , locate or identify all the people. The U.S.Supreme Court approved the first step in that process with the case of  Maryland v. King . Maryland as well as 28 other states and the Federal Government take DNA samples at the time of arrest. Tennessee takes a sample on some violent crimes. The majority of the court make the analogy that DNA is simply used to identify someone like a fingerprint or a photograph.

Hogwash. DNA is an investigative tool.Once a sample is captured , it is sent to a DNA database. It is checked against DNA samples recovered from crime scenes in hope of a match. In King , Mr.King was arrested and a DNA sample was taken .The sample matched from some DNA taken from a crime scene.

Justice Scalia blasted the other Justices in a rare oral dissent. Justice Scalia stated in part:

“The court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the state’s custody, taxes the credulity of the credulous,” he said. “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicion-less law-enforcement searches.”

 “This search had nothing to do with establishing King’s identity,” Justice Scalia wrote, warning that “as an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

 

Justice Scalia is dead right. This case is just another exhibit in the case against the shrinking Fourth Amendment. The Second Amendment grows which each court decision while the protections against an invasion of privacy wanes.

My fear is Tennessee will now take a sample of everyone that is arrested. Where does the court draw the line ? Do we start taking DNA samples of every child when they enter school ? How about we take a DNA sample when a child is born ? The court just ruled in Missouri v. McNeeley that the police should have a search warrant before a blood sample is taken . Is DNA different ?

Justice Alito opined that the King case may be one of the most important case in years regarding criminal procedure. He may will be right.

Will there be new standards on police ?. No DNA sample taken from the crime scene. Therefore , lack  of forensic evidence equals not guilty.

My fear is big brother or a police state may be closer now than ever before. Drone technology , video cameras , and now DNA sampling where are we headed ?

My Tip Of The Day For Criminal Defense Lawyers

       

One fear of criminal defense attorneys is to be caught on a wiretap discussing a case with a client. Recently , I was talking to a police officer and asked do you ever get any attorney-client phone calls. There was no admission but I did get some advice. Answer your phone Attorney McKinney.It lets everyone listening to the wire that an attorney is on the line. Why is this important ?

One principle of wire taps is minimization. The government has to minimize the intrusion of the telephone calls.Here is some language from two Federal rulings:

The government is required under the law to conduct electronic surveillance in such a way as to minimize the interception of communications not otherwise subject to interception. U.S. v. Dimora, case from N.D. Ohio

This is done if the agents have shown a high regard for the right to privacy and have done all they could to avoid unnecessary intrusion. U.S. v. Feldman, 606 F.2d 673 (6th Cir.1979)

So when you call and I answer Attorney McKinney , you now know why.

 

Is It Just Another October ?

I read a blog post today at  Simple Justice. Scott Greenfield wrote about whether we put too much into what the Supreme Court rules. Does their rulings affect the criminal defense lawyers in the trenches ? I do agree with his arguments that some in the legal world will analyze a ruling to the last period. An example of this the the famous footnote 9 in the  Schmerber case.

Yes, the court's rulings in the area of  criminal defense do matter. A lawyer that keeps up to date can set aside a plea bargain deal when a prior lawyer does not advise a client of immigration consequences. I love the Padilla case . I was able to use that case on a conditional plea bargain in Tennessee. I was able to free a young lady from a detention facility in Louisiana and have her case dismissed . I am hopeful that the court will affirm the McNeeley case on the blood alcohol draws. I have several clients whose blood was taken against their will and will now be used against them to prove their guilt . Maybe the U.S.Supreme Court will hold that the police cannot just take a blood sample without a valid search warrant. I may now be able to attack criminal convictions before the Padilla opinion was issued to young a young man from being deported. Some of these issues are on the court's docket this fall.

The answer for me is that the Supreme Court is important in my practice. Do  I care about all their cases ? No. I could care less on whether someone can sue in the United States  on a human rights case that occurred elsewhere. I don't always agree with the court's rulings  but when they rule on a Fourth Amendment case or significant criminal issue . It does impact a lawyer in the trenches or their client facing a jail cell.

 

Collection of DNA Samples in Tennessee

Oops . I made a mistake . Yesterday , I posted about the collection of DNA samples at the time of arrest . Thanks to a Nashville Night Court Commissioner who reads the blog . I was advised that Tennessee does collect DNA samples at the time of arrest in some cases. I was not aware of the law which went into effect or had any complaints from folks that had their DNA seized.

Tennessee passed a law in 2008 that orders for the collection of a DNA sample in certain types of cases at the time of arrest. Tennessee's DNA collection statute can be found at T.C.A. 40-35-321 . Those crimes that require a DNA sample are as follows;

(A) First or second degree murder;


 

(B) Aggravated kidnapping or especially aggravated kidnapping;


 

(C) Aggravated assault;


 

(D) Aggravated child abuse;


 

(E) Robbery, aggravated robbery or especially aggravated robbery;


 

(F) Aggravated burglary or especially aggravated burglary;


 

(G) Carjacking;


 

(H) Sexual battery, sexual battery by an authority figure or aggravated sexual battery;


 

(I) Statutory rape by an authority figure or aggravated statutory rape;


 

(J) Rape, aggravated rape, rape of a child or aggravated rape of a child;


 

(K) Aggravated arson;


 

(L) Attempt, under § 39-12-101, to commit any of the offenses enumerated in this subdivision (e)(3);


 

(M) Solicitation, under § 39-12-102, to commit any of the offenses enumerated in this subdivision (e)(3);


 

(N) Conspiracy, under § 39-12-103, to commit any of the offenses enumerated in this subdivision (e)(3);


 

(O) Criminal responsibility, under § 39-11-402(2), for any of the offenses enumerated in this subdivision (e)(3);


 

(P) Facilitating the commission, under § 39-11-403, of any of the offenses enumerated in this subdivision (e)(3);


 

(Q) Being an accessory after the fact, under § 39-11-411, to any of the offenses enumerated in this subdivision (e)(3);


 

(R) Aggravated vehicular homicide;


 

(S) Criminally negligent homicide;


 

(T) Reckless homicide;


 

(U) Vehicular homicide; or


 

(V) Voluntary manslaughter.

I would like to think my loyal reader on the heads up. Also , this is a perfect example for a lawyer to not assume they know all the law . Law is fluid and ever changing.
 

Now to find someone who wants to have the state statute unconstitutional.


 

Bonnaroo Arrest Prevention Guide

It's that time for my annual post on Bonnaroo. Next week thousands of people across the country will be traveling to Manchester , Tennessee for Bonnaroo. At the same time, police officers will be setting up on all the major interstates hoping to make a traffic stop which will lead to an arrest. So , I  posted on article on my web site giving some basic tips on how to survive the Bonnaroo Festival without going to jail.

Supreme Court Upholds Strip-Search For Any Arrest

This week the U.S. Supreme Court held that a any person arrested for any offense however minor is subject to a strip search.. I expect this ruling will open the floodgates for jail house strip searches in the search for evidence. The country's highest court adopted a new standard that any correctional officer can order a strip search. Prior to this ruling , a correctional officer must have had reasonable suspicion that the person possessed contraband. The strip searches embraced by the Court are forbidden by statute in at least 10 states . Also , the court opinion is in violation of international human rights treaties which ban strip searches.

 Nashville Davidson County, Tennessee Sheriff Daron Hall applauded the new law in that it gives flexibility to correctional; officers. Sheriff Hall's opinion is in direct conflict with the standards of the American Correctional Association of which he is president. The new ruling opens up the possibility of abuses;

  1. How does it apply to foreign nationals  who are protected by international treaties ?
  2. Will a police officer try to encourage a correctional officer to perform a strip search ?
  3. Will a person in Nashville be arrested rather than being issued a criminal citation ?

The last concern is most important to those charged with a crime in Nashville. In some minor criminal offenses , the police can cite and release a defendant. A criminal citation is issued then a person must later appear to face the charges. A criminal citation is used in simple cases like simple possession of drugs , patronizing prostitution and shoplifting. Now , the police might consider arresting someone in order for correctional officers to perform a strip search.

The next coming issue in this area  could be  body cavity searches. Is the Court going to approve this search of person's body cavities next ?

 

 

 

 

 

Is the Smell of Marijuana Enough to Seach Your Car ?

A warrantless search of a car or truck in Tennessee is usually prohibited , however there are exceptions to this rule. If a police officer can demonstrate probable cause that a car might contain marijuana , a police officer can search a car or truck. The big question is whether the smell of marijuana is enough to justify a search of a car in Tennessee.

Tennessee Courts have upheld a warrantless search of a car  based on the smell of marijuana alone.  One question is  it the smell of raw marijuana or burnt marijuana . Does the smell of marijuana limit the search to the interior of the car ?

Using the smell of marijuana should always be contested in a automobile search. One can test the officer in several ways;

  • What was his training in the odor of marijuana ?
  • What was his experience ?
  • Was there any other evidence of marijuana use found ?

Time and time again I see that there is no evidence recovered of burnt marijuana after the traffic stop. How do you combat the officer's testimony ? Get an independent witness to smell the car.. The Fourth Amendment is constantly being eroded and the smell is enough to search a car.

Tennessee DUI Case Dismissed Due to Illegal Traffic Stop

Once you see blue lights on a police car come on , you know someone is in trouble. The Tennessee Court of Criminal appeals reversed a lower court and dismissed a DUI conviction based  on a illegal  traffic stop. The court held that once the blue lights come on the driver is seized for Fourth Amendment purposes.Here is a portion of the court's ruling ;

the defendant’s encounter with the officer was not voluntary, but rather

occurred under a show of authority—the activation of the blue emergency

lights—from which a reasonable person would not have felt free to leave.

“Few, if any, reasonable citizens, while parked, would simply drive away and

assume that the police, in turning on the emergency flashers, would be

communicating something other than for them to remain.”

This case is a reminder that the primary defense in most drunk driving cases in Tennessee is to examine the reason the police pulled you over .Also , blue lights equal a seizure under the Fourth Amendment.

Failure to Excerise Constitutional Rights Sends Man To Prison

After court today  in Hickman County Tennessee , I stopped for lunch at Breece's Cafe  in Centerville , Tn, and picked up a copy of the Hickman County Times . By the way , Breece's is a must and try the blackberry pie . The article that grabbed my attention was a cocaine case .

A California man was sentenced to 15 years in jail last week. According to affidavits filed by the 21st Judicial Task Force , Mr.Jeff Bryant was stopped because he was following a tractor-trailer less than two vehicle lengths. Following too closely is a traffic offense under Tennessee law . After  Mr. Bryant was stopped , He consented to a search of his car .Over 27 ounces of cocaine , some marijuana , and a firearm were found in the car . It appears the main defense to the charge was that the traffic stop was illegal. The court denied the defendant's motion to suppress the evidence due to a bad traffic stop.

Mr. Bryant was sentenced to serve 15 years in prison. Possession , sell , delivery or manufacture of more than 300 grams of cocaine carries a 15 to 25 years in prison as a Range I offender .

It appears that Mr. Bryant was stopped by a drug interdiction unit that operates on Interstate 40.

The important lesson is that Mr. Bryant failed to exercise one of his basic constitutional rights . He could have refused the search. However , he consented to the search of his vehicle . Failing to exercise his constitutional rights cost him 15 years to be served at the Tennessee Department of Corrections .

Is it The End for The Exclusionary Rule In Tennessee ?

It appears the exclusionary rule days may be numbered in Tennessee .The Tennessee House Judiciary Committee recommended a bill that would guarantee that evidence seized after the execution of a search warrant issued pursuant to Tennessee Code Annotated 40-6-101 or  under Rule 41 of The Tennessee Rules of Criminal Procedure would not be subject to suppression on account of a "good faith mistake or technical violation made by a law enforcement officer , court official , or the issuing magistrate . " The attorney general has found the bill constitutional . However , their opinion is not binding on the courts .

 

Under the exclusionary rule rule , evidence obtained in violation of the Fourth , Fifth , and Sixth amendment may not be introduced at trial to prove a defendant's guilt . The purpose of the exclusionary rule is to deter constitutional violations .

If the bill passes , it will be sad day in Tennessee for constitutional freedoms . Some members of the legislature speak about Tennessee 's Constitution and the need to strictly follow it . Yet , they intend to strike down years of Tennessee case law which holds that the Tennessee Constitution gives Tennesseans more rights than the U.S. Constitution .

An Attack On the Excluisonary Rule

                          

The Tennessee State Legislature is on the march to wipe out the exclusionary rule in this year's session . A hearing was held last week . A Nashville  Assistant District Attorney  General  testified during the committee meeting . The discussion centered on a technical error in the search warrant which was later held to be invalid .Criminal defense lawyers  are worried that the Legislature is going to wipe out the exclusionary rule .

 

The exclusionary rule is used to refer to the exclusion of evidence because it was obtained by law enforcement officials in violation of the Due Process Clause of the Fourteenth Amendment or some provision of the Bill of Rights. The exclusionary rule prohibits the state from using evidence obtained in violation of of four constitutional rights :

  1. The right against unreasonable searches and seizures prohibited by the Fourteenth Amendment
  2. The right against self incrimination as guaranteed by the Fifth Amendment
  3. The right to counsel as guaranteed by the Sixth amendment
  4. The right to Due Process of law guaranteed by the Fourteenth Amendment

 

Tennessee first recognized the the validity of excluding evidence in violation of the Tennessee Constitution as early as 1922 . Mapp v. Ohio  is the case where the U.S. Supreme Court applied the exclusionary rule for the first time.

Continue Reading...

Search of a Cell Phone Upheld In California

                                                  

As the use of new technology and gadgets increase daily, so does unlawful searches of those devices.Warrantless searches conducted outside the judicial process , without prior approval by a judge or magistrate are per se unreasonable.There are some well defined exceptions to the Fourth amendment's warrant requirement.One of those exceptions is a search incident to a lawful arrest.

Cell phones did not exist when the exclusionary rule came into criminal law jurisprudence.Now most people use a cell instead of a land line and smart phones have all sorts of data and uses. Cell phones may even have data of criminal activity.Recently, the Supreme Court of California in People v.Diaz have addressed the issue of a warrantless search of the text message folder of a cell phone.

The California Supreme Court applied the basic exception that a search incident to a lawful arrest is valid under the Fourth Amendment of the U.S.Constitution.The Court relied on a old case where the police found some heroin in a cigarette pack.It is entirely different to a cell phone.Phone numbers, emails,texts are now commonly stored in a cell phone.A smart phone has more computing power than the computers that ran the Apollo moon mission.The Court went further and found that the cell phone was immediately associated with the defendant's person.The Court got this one wrong.Right now , a  Michigan man is being prosecuted for hacking into his wife's email to discover her adultery.He is facing 5 years in prison.Please tell me the difference.Cell phones are private property.

In Tennessee, we might have a different result in that the Tennessee Constitution gives a broader protection under the search and seizure law.A few key points:

  1. There may have been a different result if the cell phone had a password.
  2. IPhones have a slide to unlock.Does the lock give greater expectation of privacy.

I predict this case is just the beginning of  aggressive searches of cell phones in Tennessee.

 

Understanding Tennessee Consent to Search a Car Issues

                                                   

A traffic stop on a Tennessee interstate or highway may lead to the following questions being asked of you.

  • You're not carrying any weapons , drugs or dead bodies are you ?
  • You're not from around here are you ?
  • You wouldn't mind if we searched your car , then would you ?

Can you refuse giving consent to search your car in Tennessee ? Yes.

What happens if you consent to a search and the police find drugs , money ,or guns.Then, you have some problems.

First,  mere questioning or a request for consent is neither a search or seizure , so the Fourth Amendment is not implicated. Secondly, the length of detention should last no longer than is necessary to effectuate the purpose of the traffic stop.

There are two ways to fight a consent search.

  1. Was the consent to search given voluntarily ?
  2. Did the search exceed the consent that was given.

The  Constitution is a powerful right given to all citizens.Please don't ignore it.

 

 

Body Cavity Searches In Tennessee

                                  

Felix Booker had a body cavity search that tests the limits of search and seizure law.  Mr Booker was lying naked on a gurney, breathing out of a tube, and medically paralyzed while a medical doctor searched his rectum.  Mr. Booker was stopped in a routine traffic stop and arrested. Oak Ridge Police suspected cocaine was hidden in his body, so they took him to an emergency room for a body cavity search.  Dr. Michael LaPaglia ordered a cocktail of drugs to paralyze Mr. Booker.  He had to be placed on a breathing machine during the procedure.  The search revealed Mr. Booker had 10.2 grams of crack cocaine hidden in his rectum.  Mr.Booker was hauled off to jail once he woke up and is now facing federal drug charges in U.S. District Court.  Mr. Booker's lawyer, Bob Jolley, has asked the court to suppress the evidence from the body cavity search.

Here's the key point.  Tennessee has a specfic statute on body cavity searches.  The Oak Ridge Police might have requested a federal prosecution to avoid Tennessee's safeguards on body cavity searches.

Here is Tennessee's law on body cavity searches:

Chapter 7. Arrest

Right-click here to download pictures. To help protect your privacy, Outlook prevented automatic download of this picture from the Internet. Part 1. General Provisions (Refs & Annos)
Right-click here to download pictures. To help protect your privacy, Outlook prevented automatic download of this picture from the Internet. § 40-7-121. Searches and seizures; body cavities
 


 

 
 
(a) As used in this section, unless the context otherwise requires, “body cavity search” means an inspection, probing or examination of the inside of a person's anus, vagina or genitals for the purpose of determining whether the person is concealing evidence of a criminal offense, a weapon, a controlled substance or other contraband.
 


 

 
 
 
 
(b) No person shall be subjected to a body cavity search by a law enforcement officer or by another person acting under the direction, supervision or authority of a law enforcement officer unless the search is conducted pursuant to a search warrant issued in accordance with Rule 41 of the Tennessee Rules of Criminal Procedure.
 


 

 
 
 
(c) The issue of whether a person subjected to a body cavity search consented to the search is irrelevant and shall not be considered in determining whether the search was a valid one under the provisions of this section, unless the consent is in writing on a preprinted form and contains the following language:
 


 

 
 
 
 
 
Waiver of Warrant Requirement and Consent to Search Body Cavities
 


 

I knowingly and voluntarily consent to have my body cavities searched immediately by law enforcement personnel in the manner provided by the laws of Tennessee. By signing this consent form, I knowingly and voluntarily waive my right to require that a warrant be obtained from an appropriate judge or magistrate before my body cavities are searched.
 


 

 
 
 
I understand that a body cavity search may involve both visual and physical probing into my genitals and anus.
 


 

 
I understand that I would not be prejudiced or penalized by declining to give my consent to be searched in this manner.
 


 

 
(d) Nothing in this section shall be construed as amending or altering the relevant statutory and common law with regard to strip searches that do not meet the definition of a “body cavity search.”
 


 

 
(e) The provisions of this section shall not apply to a body cavity search conducted pursuant to a written jail or prison security procedures policy if the policy requires such a search at the time it was conducted.
 


 

 
(f) A law enforcement officer who conducts or causes to be conducted a body cavity search in violation of this section, and the governmental entity employing that officer, shall be subject to a civil cause of action as now provided by law.
 


 

 
(g) Body cavity searches conducted pursuant to this section must be performed by a licensed physician or a licensed nurse.
 


 

 
(h) No physician, registered nurse, or licensed practical nurse, acting at the written request of a law enforcement officer with a search warrant, written waiver or consent to perform a body cavity search, shall incur any civil or criminal liability as a result of the search or examination, except for any damages or criminal liability that may result from the negligence, gross negligence, willful misconduct or unlawful conduct of the person conducting the examination or search. Neither the hospital nor other employer of health care professionals, acting at the written request of a law enforcement officer with a search warrant, written waiver or consent to perform a body cavity search, shall incur any civil or criminal liability, except for negligence, gross negligence, willful misconduct or unlawful conduct, as a result of the act of examination or search.

I hope the Judge enters an order suppressing the search.  Based upon what has been reported by the news media, it appears this seach of Mr. Booker's body is outside all bounds of the Fourth Amendment of the U.S. Constitution's prohibition against illegal searches.

Consent Searches in Tennessee

                                      

Can you consent to a police search of your car or home under Tennessee law.The answer is yes.

Consent is a well recognized exception to the search warrant requirements of both Article I section 7 of the Tennessee Constitution and the Fourth Amendment of the United States Constitution. The key is a valid consent to search eliminates the police officer's need to obtain a search warrant and the need for probable cause.

The question then becomes was the consent voluntary.For a consent search to be valid , the consent must be unequivocal,specific,intelligently given and uncontaminated by duress or coercion.The burden of proof is on the government to show the consent was voluntarily given.

My gentile reminder is please do not consent to a search at anytime.

Probation's Dirty Little Secret

Your charged with a crime like possession of drugs or aggravated assault. You are put on probation and you think your problems are gone. Wrong. A new trend in Tennessee as it relates to probation cases is to include a condition of probation that waives your Fourth Amendment right of an illegal search and seizure. Paragraph 7 of the probation order of the Board of Probation and Parole provides as following:

I agree to a search, without a warrant, of my person, vehicle, property or place of residence by any probation/parole officer or law enforcement officer at any time.

When I first read this, I was shocked and was sure it was unconstitutional. However, the United States Supreme Court in United States v. Knights upheld a probation order search. Tennessee follows the Knights holding. The key difference in the Knights case is that the officers knew of the order. Does the probation order cure an illegal search if the officers were not aware of the order?

For now, citizens on probation in Tennessee have no Fourth Amendment protection.

 

 

Courts Split Over GPs Surveillance

 The federal courts are split over whether the police must obtain a search warrant before secretly attaching a Global Positiong System device under someone's car.  The issue is whether the Fourth Amendment of the U.S. Constitution's protection against unreasonable searches and seizures covers a device that records a suspect's movements for days, weeks, or months without any need for a police officer or drug task force agent to follow the suspect.  Traditionally, the courts have held that the Fourth amendment does not cover the trailing of a suspect because a citizen has no expectations of privacy for actions exposed to public view.

With the explosion of technology to track someone's movement by GPS or cell phone, how do the court's apply Fourth Amendment privacy rights in the 21st century?

The D.C. Circuit held on August 6 , 2010  that a warrant is needed for prolonged GPS surveillance, recognizing People v. Weaver from New York and limiting Knotts. [This is a highly important decision. Every criminal and constitutional lawyer needs to read it.] United States v. Maynard, 2010 U.S. App. LEXIS 16417 (D.C.Cir. August 6, 2010): Thanks to the Fourth Amendment for this clip. Here is the full commenatary on this case.

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