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.
And to demonstrate that it’s most definitely an open question, I submit to you footnote number 4 from the Sandoval opinion:
Circuit split = open question. Precisely what I opined in my first post. And a quick search of the U.S. Supreme Court Docket reveals that no petition for certiorari has been filed in Sandoval, so we’re not likely to see it resolved right away.
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?
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.
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.
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.
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.
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.
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.
