It's no secret, and it's been said about 1,000 times, but the reason we call it the "practice of law" is because we are always practicing. It's impossible to master, and every day attorneys are actively learning something new. In the first couple years of practice , I was learning a LOT of new things at a terrifyingly-fast rate, and I lost a lot of sleep. Today, I still lose sleep, but I'm able to enjoy the learning process a lot more.
I didn't feel satisfied after last week's post on Search Incident to Arrest. I knew there had to be better case law out there; and there is. You should add State v. Otey and State v. Harris to your reading list. Today, I'm giving you a summary of State v. Richards, a case out of Williamson County that went in front of the Tennessee Supreme Court back in 2009. This is a case that I haven't been using much in my practice (I'm not sure I was even fully aware of the holdings), but I think it's hugely helpful to the defense bar - and it's helpful to anyone that likes Constitutional rights against unlawful search and seizure.
So consider this part 2 of part 1 of my series on warrantless searches. I hope y'all find it as useful as I did.
In State v. Richards, the Tennessee Supreme Court addressed whether the defendant’s search subject incident to lawful arrest was justified. State v. Richards, 286 S.W. 3d 873 (2009). A previously-reliable citizen informant provided a tip that three people were sitting around a picnic table in the backyard of a known-drug house engaging in drug activity. The police went to the house where they found the three around a picnic table, as well as the Defendant, who was the fourth person. The officers saw a white powdery residue on the surface of the table, which field tested positive for cocaine. As the police approached, another person at the table swept the table with his, dropping a corner baggie onto the ground. The police officers did not observe any suspicious or illegal activity, even though he was sitting at the table.
After an initial “pat down” search for weapons, police did not feel any evidence of weapons or drugs. One of the other people at the table consented to a search, which revealed white powder in the seat of his wheelchair. Police then re-searched the Defendant and found marijuana and cocaine in his pocket. A suppression motion was filed – the trial court denied it after making a finding that exigent circumstances existed, but the CCA reversed because police did not have probable cause to make an arrest and therefore, lacked a basis for the search.
In Richards, the informant stated that he had observed a “drug deal going down between Trent and the guy in the purple truck.” The informant provided a decent amount of detail: the names of the three people, what the people were drinking, and vehicles they drove. The officers walked into the backyard without announcing themselves and when the defendants saw the officers, they had “that look.” (By “that look,” I can only assume that the police were referencing THIS look: https://www.youtube.com/watch?v=B8ISzf2pryI.) Police told one of the suspects to turn over what was in his hand, which was a rolled-up dollar with white residue on it. He had no other drugs on him and was released on a citation. The man in the wheelchair was also cited, but not arrested. Notably, the white powder on the table was so insignificant, it couldn’t even be collected and sent to a lab – police field tested it right there on the table. Because of his proximity to the drugs, the Defendant was searched a second time, and the second search was more intensive than the initial pat down.
Citing Ybarra v. Illinois, the CCA determined that a “person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” State v. Richards, 2008 WL 343150 *5 (Tenn. Crim. App. 2008) citing Ybarra v. Illinois, 444 U.S. 85, 91 (1979). The Tennessee Supreme Court found two reasons supporting suppression. First, the CCA was correct that the arrest was not supported by probable cause “because the facts, circumstances, and reliable information known to the arresting officers were not sufficient to warrant a prudent person in believing that the Defendant had committed an offense.” The search of a person requires “individualized suspicion” – probable cause does not attach to groups, but to individuals. The Tennessee Supreme Court then cited a U.S. Supreme Court case (one of which I had never heard) U.S. v. DiRe, as standing for the proposition that “[a]ny inference that everyone on the scene of a crime is a party to it must disappear if the Government informer singles out the guilty person.” United States v. DiRe, 332 U.S. 581, 594 (1948). The Court also cited prior Tennessee case law holding that, “[o]ne’s mere presence in an area where drugs are discovered, or one’s mere association with a person who is in possession of drugs, is not alone sufficient to support a finding of constructive possession.”
The second reason for the invalid search arose from the record, which “fully supports the conclusion that the Defendant was placed under arrest only because the second search of his person yielded narcotics.” The people that could have been placed under arrest were merely cited.
If you're interested, Justice Koch wrote a dissent, which I didn't take the time to summarize, but may interest you.
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