Fourth Amendment Rights against search and seizure limited by Supreme Court

On May 16, 2011 the United States Supreme Court delivered an opinion that drastically changes the rights afforded to citizenry under the Fourth Amendment. The case, Kentucky v. King, involves officers smelling marijuanna inside a home and entering the home (forcefully) without a warrant. The officers entered the home under the guise that they believed that they heard sounds indicative of evidence being destroyed. While there are several legal issues present in the case the crux of the case is - did the police have exigent circumstances to enter the home without a warrant?
The majority of the Supreme Court Justices said yes. Only one Justice, Justice Ginsberg, dissented saying that the actions of the officers violated our rights to be free from search and seizure under the Fourth Amendment.
One of the most distubing points of the opinion to me was that the Court acknowledged that many states hold that even with exigent circumstances, the officers cannot circumvent the Fourth Amendment if the officers acted in bad faith and actually created the exigent circumstances.
Let me give an example of an exigent circumstance. Say an officer runs upon a burning building and believes that someone is trapped inside. The officer can legally enter the home without a warrant to save the unlucky occupant. In addition, since the officer has legally entered the home to save the occupant, any evidence the officer sees or obtains while inside the burning building can be used against the occupant (or whomever) in Court. I doubt that any legal scholors would say that the officers entry into the buring building under these circumstances could be considered "unreasonable".
Lets take it a step further now. Say an officer has been observing a suspected criminal for some time and cannot seem to get enough evidence to obtain a search warrant for the suspects home. What if the officer sets the suspects house on fire then enters the residence under the 'exigent circumstances" rule, saying that he believed that someone was inside the buring building. This extreme example is clearly a case of "bad faith" on the part of the officer.
The Supreme Court's decision in Kentucky v. Harris does away with the "bad faith" precautions. Under the decision in Harris, the intent of the officers in the creation or explotation of the exigent circumstances are not relevant in determining the validity of the warrantless entry.
In 2009, the Supreme Court said that search incident to arrest were limited to 'searching for furtherance of the crime committed" (see Arizona v. Gant). Having been in law enforcement for over a decade, prior to the decision in Gant, you never heard of officers testifying that they searched 'for evidence in furtherace of the crime committed". Since the Gant decision it seems like I hear officers testify to that rational weekly.
So after todays decision I fully expect to see more cases of warrantless entry into private residences without a warrant under the guise of "belief that evidence was being destroyed". You can mark my words on this one....

Field Sobriety Tests reliable?

Anyone who has ever watched a police based reality type tv show has seen a person accused of driving under the influence be required to perform a battery of tests. But what do these tests mean? i.e. what are they measuring? In my years as a police officer and as a criminal defense attorney I have witnesses officers conduct various types of theses so called sobriety tests. Tests that I have witnessed and have myself administered have included:

• The alphabet test - Requiring the accused to start on a particular letter and continue to another identified letter.

• The finger to nose - Requiring the accused to stand in one spot and touch the tip of the nose.

• Watching the pen - Correct terminology for this test is the 'Horizontal gaze nstagmus' Requires the accused to follow an object with the eyes.

• One leg stand - Requires the accused to stand on one leg for 30 seconds. 

• 9 step test - Requires the accused to walk 9 steps on a straight line.

• Coin pickup - Requires the accused to pick up several coins dropped on the floor.  

The list can go on and on. 

In the 1970's the National Highway Traffic Safety Administration conducted controlled studies to determined what tests were actually true measures of a persons sobriety. The results shocked the law enforcement community. Only three tests were determined to correlate with a persons intoxication.

Those tests are:

1. The Horizontal gaze nystagmus test
2. The one leg stand test
3. The nine step walk and turn test

What this means is that the other tests do not have a bearing on a persons sobriety. In other words, a completely sober person could fail the alphabet test, the finger to nose test, etc. Another shocking revelation of the NHSTA study that even with the three tests that correlate with intoxication, if the officer didn't instruct or administer the tests properly then all reliability of the test is gone. 

Even these three tests are not 100% reliable. The one leg stand test and the nine step test are less than 70% reliable. (Meaning that 30% of the time a completely sober person would fail these two tests). The Horizontal gaze nystagmus test is the most reliable test of intoxication but in Tennessee that test is generally inadmissible against the accused.

In a study conducted by Clemson University in 1994 a group of 21 completely sober individuals were instructed to perform field sobriety tests. Fourteen trained officers watched videos of these field sobriety tests and gave their opinion as to intoxication based on the persons performance on the video. (the officers were not told that the subjects were completely sober).  46% of the officers responded that persons they viewed were under the influence of an intoxicant. 

So, knowing that a completely sober person can ultimately fail these so called sobriety tests we must ask the question - can a citizen refuse to perform these tests when asked by law enforcement? The short answer in Tennessee is  - yes. There is currently no law of failing to do the tests. HOWEVER, this does not mean that the officer cannot arrest you for DUI. In fact, your failure to conduct these tests can be used against you in court as "consciousness of guilt".  I personally feel that the ability of the prosecution to use a refusal to take so called sobriety tests  as "consciousness of guilt" is a terrible tragedy.  I hope that the Tennessee Courts will soon overturn previous rulings allowing this practice.

BUI

This weekend I ran across the TWRA (Tennessee Wildlife Resource Agency) who was patrolling the Lake on boats. It always surprises me that many agents with TWRA do not understand the Boating Under The Influence Laws in Tennessee. While boating under the influence is unsafe and should never be condoned there must be awareness of what actions actually constitute a crime. Especially the serious crime of BUI.

Tennessee 69-9-217 States:

(a) It is unlawful for any person or persons to operate any vessel subject to registration or any commercial vessel as defined in this section on the public waters of the state while under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system.

While this language is very similar to the motor vehicle DUI law there is a very distinct difference which appears in the very last sentence of the statute and is often overlooked by law enforcement.

  The last section of T.C.A. 69-9-217 states:

"(n) The provisions of this section do not apply to any vessel that is moored or anchored."

This means that any boat or "vessel" that is anchored down or is moored at a marina is not subject to BUI enforcement. Despite this being the law I often hear of horror stories of the man fishing off his boat while docked at a marina and being carted off to jail for BUI. I also hear numerous stories of party goers who tie several boats together in a secluded cove and become intoxicated as the day wears on.  However, if these boats are anchored the BUI provisions should not be applied to the occupants.