Greetings, Tennessee! Today is the first part of a multi-part series that seeks to answer the question, “under what circumstances can police search someone (or their property) without an arrest warrant?” Law school wunderkinds will recall that there are FOUR circumstances in which a warrant is not needed:
People are arrested under lots of different circumstances – sometimes police already have an arrest warrant, other times they may be patrolling with the specific intent to arrest someone (think Crime Suppression Unit), and other times they may simply happen upon a crime in progress. When an arrest is lawful, police automatically have the right to search the individual. That does not mean they have the right to search a person’s cell phone.
In order to challenge a police search incident to arrest (layman’s terms: the search the police get to do because you are under arrest), the Defendant must establish three things:
(a) a legitimate expectation of privacy in the area searched, (b) the identity of the property to be suppressed, and (c) the items seized were obtained without a search warrant. When the accused establishes these three prerequisites, the burden shifts to the prosecution to establish the validity of the search incident to arrest. Burton, 751 S.W.2d at 445. State v. Transou, 928 S.W.2d 949, 958-59 (Tenn. Crim. App. 1996). Someone would expect privacy in the pocket of her pants walking down the Street, but wouldn’t be guaranteed that same expectation if she were walking into a prison to visit her boyfriend, T-Bone.
The next question is ‘what constitutes a lawful arrest?’ The easy answer is probable cause. The harder question is, ‘what constitutes probable cause?’
Searches conducted without judicial and magistrate approval, or without authorization of a search warrant are presumed to be per se unreasonable. Any time a person is detained, no matter how brief the detention, the Fourth Amendment kicks in.
In one of my pending cases, the main question I’m attempting to resolve is, “was my client’s arrest lawful?” Because, if it wasn't, the search and statements that followed would also be suppressed under the Fruit of the Poisonous Tree doctrine. (Special shout out to Wong Sun, which is one of my favorite poisonous tree cases, and a damn easy citation to remember.) In order to determine if the Defendant’s arrest was lawful, you’ve then got to peel back even more layers and assess whether the officer had probable cause to make the stop. In Tennessee, we employ a totality of the circumstances analysis, which assesses the officer’s testimony and factual knowledge in the context of his or her prior law enforcement background. However, mere suspicion is not probable cause. See Lawrence, 154 S.W.3d at 76 (citing State v. Melson, 638 S.W.2d 342, 350 (Tenn.1982).
"Probable cause to arrest exists if the officer has “facts and circumstances within [his] knowledge and of which [he] had reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the [individual in question] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964); see also State v. Bridges, 963 S.W.2d 487, 491 (Tenn.1997)."
State v. Pearson, No. M200702257CCAR3CD, 2009 WL 928288, at *4-5 (Tenn. Crim. App. Apr. 6, 2009). That “prudent man” language from Beck is the key language for challenging the officer’s arrest.
State v. Crutcher, a 1999 Tennessee Supreme Court case, is an interesting holding by the Court. Though it has been distinguished by the Court of Criminal Appeals, it remains good law. Crutcher was a motorcyclist, and he and two buddies are stopped at an intersection. They take off from the intersection at an excessive rate of speed. The officer pulls them over – two of the riders stop, but Crutcher is a rebel, and he doesn’t. The chase exceeds over 100 miles per hour, and just as the officer lays off of him, Crutcher climbs an embankment and hits a drainage ditch. Bummer. The officer starts to arrest Crutcher, but when he complains of pain, they leave him uncuffed and call an ambulance. Meanwhile, his buddy shows up and agrees to take possession of the wrecked motorcycle and the belongings attached to it. The police agree, but only after the search the jacket and saddlebag, which contain a loaded .38 and some packets of cocaine is searched and documented. Crutcher was charged with evading arrest, drug possession, firearm possession, and reckless endangerment.
The issue is whether police had a right to search Crutcher’s things as a search incident to his arrest. The trial court and the CCA had both determined that the search should be suppressed. The Court made the following decision:
Relying on that definition, we acknowledge that the facts in this case are close as to whether the appellee was under arrest at the accident scene. The trial court found that Officer Moniz apprehended the appellee and intended to place him under arrest following the wreck. The officer testified, however, that he did not arrest the appellee due to the appellee’s injuries. Although Officer Moniz had probable cause to make an arrest at the scene, neither he nor Officer Evans discussed criminal charges or arrest procedures with the appellee. The appellee questioned the officers and was told only that he would be taken to a nearby hospital for medical treatment. The officers did not take the appellee into custody until several hours later when he was first released from the medical center.
State v. Crutcher, 989 S.W.2d 295 (Tenn. 1999). Occasionally, emphasis on occasionally, Tennessee courts make a decision that I find astonishing. This is one of those decisions. And here’s the takeaway: “If law enforcement officers intend to justify a search as incident to an arrest, it is incumbent upon them to take some action that would indicate to a reasonable person that he or she is under arrest.11 Although formal words of arrest are not required, see 5 Am.Jur.2d Arrest § 2 (1995), some words or actions should be used that make it clear to the arrestee that he or she is under the control and legal authority of the arresting officer, and not free to leave.”
So, we know that a person must be lawfully arrested, meaning the officer has probable cause to reasonably believe they are committing a crime. Mere suspicion is not enough to make the arrest and search. After being lawfully arrested, their person and surroundings may be searched, but that search does not extend to the content of their cell phones. Alright, that concludes our little session on search incident to arrest. Stay turned for my next piece on exigent circumstances and hot pursuit!
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