A legal question about police search w/out a warrant.

[Zebra]

Ok this comes from watching Roswell so don't be thinking that there is some legal crisis or anything but......


Suppose a police officer wants to search a tent? The tent is on public ground and is not zipped closed.

Can he do it without a warrant?

If it was zipped up would it make a difference?



Thanks

Zebra

[ScoobyTX]

I think there is an expectation of privacy in the zipped up, totally closed tent. I would think that this is about equal to a car on a public road. If a cop can see into the tent, and sees evidence of an illegal act (oh, let's say they have a mirror with several little piles of white powder in plain sight), that would be probable cause for a search. But, since the tent cannot be driven off and don't have toilets through which to flush away the evidence , the proper thing to do would be to detain the suspected cokeheads until a warrant can be obtained (or the suspected cokeheads consent to a search).

[friedo]

In order to search without a warrant, the officer must have Probable Cause. If he stops a car and sees something in plain sight in the car, that can be his probable cause to search. If he's walking down the street and passes your house, and your front door is open, and he can clearly see several dead bodies inside, that's probable cause to search. Same with a zipped-open tent.

IANAL

[Bricker]

A warrantless search is presumptively unreasonable. It would fall to the government to show that the search fell within clearly delineated exceptions to the Fourth Amendment requirement for a search.

A tent on public ground does not carry with it the same expectation of privacy as a home - but, if someone is camped out in it, there is a certain reasonable expectation of privacy.

Assuming there are no exigent circumstances that require an immediate warrantless search, and assuming no inculpatory material is in plain view, a search of the tent would probably be illegal.

Specific facts can change this general determination. If the tent appeared on public ground not normally used for tents -- say, the front lawn of City Hall -- that a different story than a tent on public campgrounds.

- Rick

[Wildest Bill]

::a slight hijack question::

Can cops with a warrant just bust down your door without knocking first?

::thanks::

[Bear_Nenno]

Well... the busting down of your door counts as a really loud knock :D

[Wildest Bill]

Originally posted by Bear_Nenno
Well... the busting down of your door counts as a really loud knock :D

LOL...but you see the problem is if they knock down my door with the first knock. I don't get the chance to say, "who is it?" I know by looking at'em it is the guys in blue with the guns and badges to take me away. Oh no.

And I don't the chance to say, "I don't want any of what ya'll got!" :D

[SuaSponte]

Originally posted by Wildest Bill
Can cops with a warrant just bust down your door without knocking first?
Varies from jurisdiction to jurisdiction. I think that the U.S. Constitution allows knockless searches with a warrant. We did cover this in law school, but it's not practically relevant to me as where I live we have state constitution issue, so it's faded to the back of my mind. I'm sure someone will correct me if I'm wrong.

In NYC, the state court's have determined that the NY state constitution affords greater protection than the U.S. one in this regard. As for a knockless warrant in NY, you must ask the judge for it, and you must show a need, such as fear evidence will be destroyed, risk to the police officers, etc., you must knock first.
Second, and this one is plain silly IMO, if you want to execute or serve a warrant after sundown, you must ask for a "nighttime" warrant from a judge, and again show a need why you can't wait until the next day.

Sua

[evilhanz]

There are two circumstances under which a warrantless search of a tent is justified:

1. Exigent Circumstances. If the police suspect that a crime is in progress or a person is in imminent danger, an emergency exemption is granted. It thereafter falls upon the prosecution to demonstrate that such conditions existed at the time of the search.

2. Illegal Occupancy. If the police have proof that the occupant of the tent is in residence illegally (i.e. trespassing), then no search warrant is necessary. In other words, if you place a tent on property believing that it is proper, appropriate, and legal to do so, you are granted every reasonable expectation of privacy, whether the tent is zippered closed or not. Interestingly, the documents I found mentioned zippered and unzippered tents, as well as those tents with mesh windows. If the officer can see into the tent, and a crime is in progress, again, no search warrant is necessary.

In most situations, if you have a resonable expectation of privacy, an officer needs a search warrant.

Here are some appeals from Indiana and Colorado which cite relevant case law:
http://www.state.in.us/judiciary/opinions/archive/070203.jjr.html
http://www.state.co.us/gov_dir/pdef_dir/Library/Schafer/Case%20No.%2097SA142-Schafer.htm

No knock searches are allowable under US Law. They are generally issued for high risk searches, i.e. a known felon, a cache of weapons, et cetera. They're quite controversial. Since, it's off-topic, I won't bother with cites - Search google for "no-knock search warrant". You'll get plenty of results.

[Bear_Nenno]

Let's not forget "Search incident to an arrest." If you are sitting in a tent and you get arrested for some reason or other, the officer can subsequently search the tent :D .

[Danielinthewolvesden]

A tent is your "home", in most cases, and thus a warrent is req'd.

[Jorge]

Re: the OP, depends on a few other issues: is the tent occupied or not at the time, who is searching/inspecting (a police officer in a state park ? or the park ranger ?), what kind of public lands are we talking about (National Forest or National Park, and where within ?)..., when the search was conducted (say, a hunting area in-season), and of course, just how intense was the search/inspection (the mirror in the tent example above, or opening up a closed briefcase within the tent ?)

[minty green]

Originally posted by Wildest Bill
::a slight hijack question::

Can cops with a warrant just bust down your door without knocking first?

::thanks::


Richards v. Wisconsin (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search=US=/us/000/96%2D5955.html) (U.S. 1997) says that the Fourth Amendment usually, but not always, requires the police to knock and announce themselves before attempting a forcible entry. A "no knock" entry is justified when the police have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime. But a reasonable suspicicion has to be based on specific, articulable facts, so the mere fear that the bad guy might flush a few kilos down the toilet isn't going to cut it.

As for the OP, I am unaware of any Fourth Amendment cases specifically addressing whether the requirement of a warrant applies to tents. As a general rule, only dwellings and business locations require warrants before they may be searched. Anywhere else, most especially including cars in public places, require only probable cause. Tents strike me as a gray area, since they're similar to homes or hotel rooms (which require warrants), but would seem to have a reduced expectation of privacy. As Jorge suggests, any determination is likely to require a lot of factual inquiry.

[evilhanz]

Originally posted by minty green
Tents strike me as a gray area, since they're similar to homes or hotel rooms (which require warrants), but would seem to have a reduced expectation of privacy.

Tents fall under the legal definition of "dwelling", whether permanent or temporary, they're equivalent to an apartment or home.

[minty green]

Originally posted by evilhanz
Tents fall under the legal definition of "dwelling", whether permanent or temporary, they're equivalent to an apartment or home.
You got a cite for that, or are you just expressing a belief?

[The Ryan]

There are no lawyers that have seen the episode of Roswell in question? Anyway, as long as you guys are answering questions about searches: is the government liable for damages incurred in a search? For instance, if they knock down my door, can I demand that they buy me a new one? Or can they say "tough shit, that's life"? Is the issue of whether or not a conviction results relevant?

[minty green]

No idea about damages, Ryan. ISTR a resident who got shot and killed (preacher? Chicago?) 5-10 years ago when the cops busted down the door at the wrong address, and ISTR that damages were paid in that instance. That's an extreme example, obviously.

My best guess is that as long as the warrant is properly issued and executed in good faith, the police are not likely to be responsible for any damages to the home. Laws will vary from state to state, of course. I've certainly never seen any federal constitutional law on the subject.

[evilhanz]

Originally posted by minty green
You got a cite for that, or are you just expressing a belief?

Oh picky, picky :)

The definition can vary slightly from state to state and with the zoning laws of communities. Nonetheless, here is a representative example from http://hsba.org/members/ica/15549.HTM


Once erected, a tent is a building within the definition of HRS 708-800(1) (1985). A tent which is used for lodging is a dwelling within the definition of HRS 708-810 (1985).


Also, from a site on jury instruction http://www.juryinstruction.com/50_toc_vol_7.htm


78.3 Burglary: Defenses And Defense Theories
...
78.3.1.3 Burglary: Requirement Of Jury Finding On Issue Of "Building"
78.3.2 Structure Was Not Inhabited
78.3.2.1 Dwelling Is Not Inhabited If Residents Have Moved Out With No Intent To Return
78.3.2.2 Definition Of Dwelling House: Portion Used As Business
78.3.2.3 Inhabited Dwelling: "For Dwelling Purposes" Requires Use As Sleeping And Living Quarters
78.3.2.4 Inhabited Dwelling Defined: Occupant Must Be Alive
78.3.2.5 Burglary: Tent Is Inhabited Dwelling


Here's the decision from the US 9th Circuit Court of appeals regarding searches of tents in US v. Sandoval: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9830130

The relevant facts are as follows:


[1] To determine whether a warrantless search violates the
Fourth Amendment, courts must ask two questions: First, has
the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable? Only if both the subjective and objective tests are met can it be found that a Fourth Amendment interest has been violated.

[2] Several factors indicated that Sandoval had a subjective
expectation of privacy. First, the tent was located in an area that was covered by vegetation and virtually impenetrable.
Second, the tent was closed on all four sides, and the bottle could not be seen from the outside. Third, Sandoval left a prescription medicine bottle inside the tent; a person who lacked a subjective expectation of privacy would likely not leave such an item lying around. The Ninth Circuit has rejected the argument that a person lacks a subjective expectation of privacy because he is engaged in illegal activity, or could have expected the police to intrude on his privacy.

[3] Sandoval's expectation of privacy was objectively rea-
sonable. A person can have an objectively reasonable expec-
tation of privacy in a tent. The reasonableness of Sandoval's expectation of privacy did not turn on whether he had permission to camp on public land. Such a distinction would mean that a camper who overstayed his permit in a public campground would lose his Fourth Amendment rights, while his
neighbor, whose permit had not expired, would retain them.

[4] Though Sandoval did not obtain permission to camp on
BLM land, he was never instructed to vacate or risk eviction, and the record did not establish any applicable rules, regulations, or practices concerning recreational or other use of BLM land. Whether Sandoval was legally permitted to be on the land was a matter in dispute.


here's a pretty good list of relevant cases pertaining to Search and Seizure from a student's list of resources at http://ourworld.compuserve.com/homepages/wachtel/Crim_Invest/crim_invest.html You can view each case at http://caselaw.lp.findlaw.com/


Searches generally

USA v. Oaxaca, no. 99-30062 (9th. Circuit, 2000). Police cannot intrude into a home (or a garage) unless they have consent or a warrant (finding of probable cause by a judge). Even if a person is clearly visible inside a residence, police must have an arrest warrant to enter the premises and make an arrest.

Bond v. United States, US Sup Ct., no. 98-9349 (2000): While conducting immigration checks on a bus, a Border Patrol agent squeezed an opaque bag ("tactile search") and found a brick of drugs. The Court ruled that this practice violated a person´s reasonable expectation of privacy as to their luggage.

United States v. Sandoval, no. 98-30130 (9th Circuit, 2000): Reasonableness of a search depends on whether defendant had a reasonable expectation of privacy. Warrantless search of a closed tent on Federal land ruled illegal.

Flippo v. West Virginia, US Sup. Ct., no. 98-8770 (1999), based on Mincey v. Arizona, 437 US 385 (1978): There is no "murder scene" exception to the search warrant requirement. N.Y. Times article

Wilson v. Layne, US Sup. Ct., no. 98-83 (1999): Media ride-alongs violate the 4th. amendment. Summary

Vehicle Searches

Indianapolis v. Edmond, US Sup. Ct., no. 99-1030 (2000): Vehicle checkpoints to interdict drugs are unlawful. Unlike DUI "highway safety" or border checkpoints, the purpose of drug checkpoints is to detect ordinary crime, which is subject to the "individualized suspicion" requirements of the Fourth Amendment.

USA v. Twilley, 9th. Circuit, no. 99-50338 (2000): Passenger in vehicle stopped by police can contest stop under Fruit of Poisoned Tree doctrine. "Reasonable suspicion" standard for a stop not satisfied when officer acts under "mistaken understanding of the law", even if using good faith.

Florida v. White, US Sup. Ct., no. 98-223 (1999): If vehicle is forfeitable contraband no search warrant required to search it or seize it.

Wyoming v. Houghton.US Sup. Ct., no. 98-184 (1999): If there is probable cause to believe that a vehicle contains contraband, OK to search passengers´ belongings.

Knowles v. Iowa, US Sup. Ct., no. 97-7597 (1998): Cannot search a vehicle simply because the driver has committed a traffic offense.

Carroll v. United States, US Sup. Ct., 267 U.S. 132: No warrant is necessary to search a vehicle if there is probable cause it contains contraband or evidence of a crime. Lesser standard applied than for a dwelling because in a vehicle there is a lesser expectation of privacy.


Submitted for your perusal.

[evilhanz]

On the subject of excessive force:


Jenkins v. Wood, 81 F.3d 988 (10th Cir. 1996)
City could not be liable for alleged excessive use of force while search warrant for residence was being executed, in the absence of any evidence of a municipal custom or policy of encouraging or tolerating the use of excessive force while executing search warrants or the execution of illegal search warrants.

On the subjective of compensatory damages for illegal searches:


Caruso v. Forslund, 47 F.3d 27 (2nd Cir. 1995)
Warrantless search of home seeking for child was unreasonable, but plaintiff was not entitled to an award of attorneys' fees after only nominal damages were awarded; plaintiff waived issue of punitive damages by failing to raise it after verdict on liability was announced but before jury had been dismissed.

Guy v. ABC Insurance Co., 629 So. 2d 1350 (La. App. 1993)
Occupants of home searched without a warrant, consent, or reason to believe that suspect sought was present there awarded $13,500 in damages.

[B]Barrett v. Miller, 599 So. 2d 559 (Miss. 1992)[/B}
Mississippi deputies who obtained search warrant but did not participate in search were entitled to qualified public official immunity from liability for damages allegedly occurring during search; deputies who executed warrant were not entitled to such immunity.


The conclusion I draw from these sources is that a municpality is not liable for bodily harm that may come to a person during a search. The city is liable if damages should occur to property if the search was warrantless or otherwise illegal. Apparently, officers are also on the hook in both situations. (They're the ones breaking and smashing things).

All this stuff is way off-topic though.

[ENugent]

Damn, evilhanz, when someone asks for a cite, you don't mess around, do you?

[minty green]

Lots of cites, but little meat, Nuge. There's a reason people hire lawyers for this kind of stuff...

I'm far from convinced, evilhanz. Most of your citations are irrelevant to the question of whether the Fourth Amendment requires a warrant before police may search a tent on public property.

Your first two cites have absolutely nothing to do with the Fourth Amendment. The first is a Hawaii case that says a tent can be a dwelling within the meaning of a state burglary statute. The second, which is a table of contents from some collection of jury instructions, apparently makes the same point. Neither is very persuasive on the issue of the meaning of the Fourth Amendment.

The Sandoval case is certainly on point, and would be excellent authority in the Ninth Circuit (California, mostly). However, the Ninth Circuit is notoriously liberal, and has a well-known record of getting reversed by the Supreme Court in recent years. On the other hand, the Supreme Court has taken a very restrictive view of when an expectation of privacy is reasonable. Since the Supreme Court has apparently not spoken on the issue, I consider it to be an open question outside of the Ninth Circuit. Unless, of course, other circuits have spoken--get back to Findlaw and find out for us. :)

And my Crim Pro outline is way better than that guy's!

The other cases you cite, by your own descriptions, are simply off-point.

As for the ones listed under "Vehicle Searches," they mostly make the point I made above: that police can search your car without a warrant if they have probable cause to do so.

[minty green]

And to demonstrate that it's most definitely an open question, I submit to you footnote number 4 from the Sandoval opinion:4 The Tenth Circuit reached a different conclusion in United States v. Ruckman, 806 F.2d 1471, 1472-73 (10th Cir. 1986). However, we find Judge McKay's dissent in that case more persuasive. See id. at 1475-79 (McKay, J., dissenting).
Circuit split = open question. Precisely what I opined in my first post. And a quick search of the U.S. Supreme Court Docket (http://www.supremecourtus.gov/docket/docket.html) reveals that no petition for certiorari has been filed in Sandoval, so we're not likely to see it resolved right away.

[The Ryan]

There are no lawyers that have seen the episode of Roswell in question? Anyway, as long as you guys are answering questions about searches: is the government liable for damages incurred in a search? For instance, if they knock down my door, can I demand that they buy me a new one? Or can they say "tough shit, that's life"? Is the issue of whether or not a conviction results relevant?

[Badtz Maru]

Not only people in tents given special protection, in some states backpacks are an exception in what can be searched on a person, as some people live out of them and it would be equivelant to searching their home. In Texas cops can look in your car (without moving stuff around or opening anything) or search your person without probable cause or a warrant, but they need one or the other to search a backpack.

[minty green]

Badtz brings up a good point here: local laws may vary. I've been talking strictly about the U.S. Constitution. Some state constitutions do provide greater protection against search and seizure.
Originally posted by Badtz Maru
In Texas cops can look in your car (without moving stuff around or opening anything) or search your person without probable cause or a warrant, but they need one or the other to search a backpack.
I don't know the law regarding backpacks or the circumstances under which Texas cops can check out your car. However, I'll give one more constitutional lesson here before I head to work.

Search warrants issue upon probable cause. No probable cause, no search warrant. They are not substitutes for one another. Rather, there are circumstances when a warrant is required regardless of a police officer's probable cause (dwellings, businesses) and circumstances where probable cause is sufficient to conduct a search without bothering with a warrant (cars are the most common example). Thus, if the cop sees guns and dope in plain view on the back seat of your car, you're immediately hosed--no need for a search warrant. But if a cop sees guns and dope on your kitchen table because you were too wasted to close your curtains, he must get a warrant (or your permission) before entering the home.

There are, however, exceptions, such as the ones evilhanz and Bear_Nenno pointed out above.

Finally, police officers may also conduct a brief pat-down of your person upon "reasonable suspicion," which is a lower standard than probable cause. There are no hard and fast definitions of either reasonable suspicion or probable cause, in case you're wondering.

[Telemark]

I believe the case of the minister being killed during a mistaken police raid (they had the wrong address) was in Boston, probably in Roxbury if my memory is correct.

[Badtz Maru]

Also, refusal to give permission to search is not probable cause, though a lot of Texas cops think so. A Colorado lawyer paid to have some bulletin boards put up near the state's borders telling people not to consent to search, and he has been threatened by a number of law enforcement agencies. They used to ask for permission to search, and if you denied they would hold you until someone could go get a warrant to search. It turns out they can't hold you without probable cause, and if they had probable cause they could search your car anyway...they often will make people wait until drug dogs can be brought to the site where you are pulled over, but they technically can't do that either.

Of course, they can manufacture probable cause. This happened to me once. I left a drug dealers house and got in my car, and a cop pulled me over before I could travel a block, claiming that one of my license plate lights was flickering. They then asked me a lot of questions about the house I just left, did I know he dealt drugs, why was I there, etc., and eventually started asking me if I had drugs on me. I said no, and asked them how long it was going to be before I got my citation for the license plate light. They took me out of the car and looked through it with flashlights (a legal search, they didn't open anything or move anything around), and then one of the cops held up what I think was a piece of gravel or dried up ball of mud, and said it was a marijuana seed and that gave them the right to search my entire car. I told them to go ahead, and after about 30 minutes of searching the cop said 'He didn't have any, did he?'. He was right, but I just smiled.

[minty green]

Originally posted by Badtz Maru
Of course, they can manufacture probable cause. ... and then one of the cops held up what I think was a piece of gravel or dried up ball of mud, and said it was a marijuana seed and that gave them the right to search my entire car.If you think it's not what the cop says it is, demand that he put it in an evidence bag and mark it. A judge at an evidentiary hearing would be quite interested in seeing a pebble that was "mistaken" for a marijuana seed. Yeah, you're still probably busted--love that War on Drugs thing--but at least then you've got a shot at suppressing anything found during an illegal search.