Help with summer Research "IV Amend Coercive Search" Forum

[adammac17]

So I'm struggling to find the perfect case for a quick research project I was given at work. Simple enough case - office tells suspect he is going to search the car "one way or another." Driver complies and officer finds some pot. Anyone want to show off their Lexis/West skillz real quick?

IL fyi.

[gdane]

Michigan v. Long
Knowles v. Iowa

In your hypo, unless the police officer legally stopped the perp (had reasonable suspicion of criminal activity or the perp committed some kind of infraction), the search is a no go.

[adammac17]

Thanks for the help - Ill check those out. Assume the car was stopped for some valid reason and the officer then felt he had some reason to suspect the driver had pot.

Issue I'm concerned about is the officer saying something along the lines of "I'm gonna find it one way or another - Let me search your car or Im bringing in the dogs" kinda thing.

[mr_toad]

Working off memory here:

Michigan v. Long is good in that it applies Terry-search principles to cars, but probably doesn't help you much because it's limited to cases of officer safety (if I remember correctly).

I think Wardlow/Wardlaw? v. Illinois might be useful b/c it implies an expansion of Terry search-and-frisks to non-weapon situations (although our casebook didn't use it for that, it just used it to show one way of determining elements of the required prongs for reasonable suspicion under Terry).

Arizona v. Gant would be a helpful limiter in determining if the police officer could have done a SIVA of the car IF he could have arrested the guy. If he could have arrested the guy based on a driving infraction (see Atwater v. Lago Vista) and then done a search-incident-to-a-valid arrest of his person, then he would not have been threatening him with a violation of his 4th Amendment rights, which would be considered coercive and thus negate the search's validity. However, based on Gant, he would not be able to search the car's interior without reasonable suspicion that something related to the cause of arrest was located therein (which for driving infractions is almost never the case).

Some of this is probably off, but it may be useful. My 5-minute brainstorm.

[adammac17]

Gant might be useful. I got very limited instructions on this - I think the attorney thought it would be a simple research assignment.

This issue I THINK I'm dealing with is the voluntariness of the guys consent to the search. Probably got pulled over for speeding, the record (I have) is silent on why the officer thought to search for pot, but the officer told him something like "Im going to wind up searching your vehicle one way or another so you might as well just consent" and then he wound up finding the drugs.

Am I wrong in thinking that if the officer coerces the driver to consent to the search than it doesnt matter if he would have been authorized to search the car anyways (under the PVD or something)?

<--------Rising 2L who hasnt had Evidence yet trying to learn on the fly.

[mr_toad]

Other cases that now spring to mind include Acavedo (Acevedo?). There's a whole string of cases dealing with 4th Amendment jurisprudence regarding WHEN police may search a car and based on what level of suspicion. Also, WHERE they may search (e.g., up front vs. in the trunk). On the other hand, your question is more difficult and one that I feel is axiomatic w/o actually knowing a cite for it. I feel like your gut instinct is correct in the sense that yes, if you coerce someone into allowing a search, yadayadayada. However, if you coerce them in certain ways, you're allowed to do that. One of those ways is by giving suspects more information. If that information is valid, e.g., if you don't tell me, I will arrest you - and you could actually arrest them based on the present circumstance - again, I might be wrong, but I think that that is not considered coercive. but I have no cite for this.

[Tanicius]

So I'm struggling to find the perfect case for a quick research project I was given at work. Simple enough case - office tells suspect he is going to search the car "one way or another." Driver complies and officer finds some pot. Anyone want to show off their Lexis/West skillz real quick?

IL fyi.

Are you defense or prosecution?

Am I wrong in thinking that if the officer coerces the driver to consent to the search than it doesnt matter if he would have been authorized to search the car anyways (under the PVD or something)?

<--------Rising 2L who hasnt had Evidence yet trying to learn on the fly.

Evidence has nothing to do with it. If the officer had probable cause, he can search the car with or without the guy's permission. If he didn't have probable cause, then the consent has definitely been coerced here and the drugs need to be tossed out.

[adammac17]

Defense.

I dont have enough in front of me to know if he had probable cause. I think you two have pretty much backed up what I was thinking about the whole coercion aspect.

So if the officer sees, for example, flecks of green pot-like substance on the drivers shirt he probably has probable cause regardless of the consent but if he is just basing his suspicion on a "hunch" or thinking the guy looks like a stoner then its an impremissible search?

Thx again guys

[Tanicius]

Defense.

I dont have enough in front of me to know if he had probable cause. I think you two have pretty much backed up what I was thinking about the whole coercion aspect.

So if the officer sees, for example, flecks of green pot-like substance on the drivers shirt he probably has probable cause regardless of the consent but if he is just basing his suspicion on a "hunch" or thinking the guy looks like a stoner then its an impremissible search?

Thx again guys

Correct. Does your office have a brief bank with motions attacking searches/seizures? That's always a handy place to start. Barring that, your office must at least have a treatise on Illinois crimpro lying around. Secondary sources do a very good job of pointing you in the direction of not just good cases, but they also often organize the case law for simple issues like this one in a very fluid, logical manner. This is a pretty boiler plate issue that you have. Coercion has been found in far less egregious instances than your case, so you should have a very good shot at the prelim.


Basically, your memo/motion should look like this:

Statement of Facts.

Argument:

I. Standard of Proof.
- the prosecution has the burden of proving they either had probable cause or consent to search a vehicle (case citations).
- when the state fails to show probable cause or consent for a search, any and all evidence obtained from the search, as well as any subsequently found evidence or statements given (fruit of the poisonous tree) must be suppressed (case citations).

II. The State did not have probable cause to search Mr. X's vehicle.
- define probable cause with federal and state-specific case law, and argue via the police report/preliminary transcript that there is not enough probable cause here.

III. The State did not have consent to search Mr. X's vehicle.
- cite case law explaining that coercion nullifies consent, using first any cases that are as factually on-point as you can find (anything involving a police officer's declaration to a driver that his car is getting searched no matter what).
- to put the nail in the coffin, add in the flimsiest cases of coercion that you can find (such as police parking their car in front of the defendant's car, which can sometimes constitute coercion).
- apply those cases to your case, where the cop flat-out told the defendant that his car was getting searched no matter what he said or did.

IV. Conclusion.
- one sentence appeal to common sense/emotion/policy that explains police must have a valid *reason* to search a private citizen's car.
- "For the forgoing reasons, the defense requests that this Court suppress any and all evidence or indicia retrieved from Mr. X's vehicle, as well as any statements Mr. X made during or after the search."

[gdane]

This issue I THINK I'm dealing with is the voluntariness of the guys consent to the search. Probably got pulled over for speeding, the record (I have) is silent on why the officer thought to search for pot, but the officer told him something like "Im going to wind up searching your vehicle one way or another so you might as well just consent" and then he wound up finding the drugs.

Am I wrong in thinking that if the officer coerces the driver to consent to the search than it doesnt matter if he would have been authorized to search the car anyways (under the PVD or something)?

Based on these facts, there does not appear to be coercion. Just a slick officer.

Factors to determine if consent was involuntary:
1) Application of force
2) Intimidating movements
3) Overwhelming shows of force
4) Brandishing weapons.


If the perp was stopped for speeding, the search was likely ok. I don't think there's any coercion here. You have to look at Schneckloth v. Bustamante. "To determine whether a search was voluntary does not require that a person knew of his rights, but whether the totality of the circumstances indicated that the person was voluntarily allowing the search."

I'm a prosecutor type so I would argue that there was no coercion and that the search was Punky Brewster. Good luck!