Riley Wright: Criminal Lawyer Sandy Utah

If you have been charged with a crime based on a search conducted on your or your property, contact an experienced Sandy Utah criminal defense lawyer.

Warrantless searches are valid where the government had a substantial and a legitimate interest in (1) regulating railroad safety; (2) controlling which employees could be promoted to safety-sensitive or high-risk positions; or (3) preventing drug addiction among public school athletes, or students who participate in other extracurricular activities.

In order to determine the reasonableness of such a warrantless search a court must conduct a two-step analysis. First, what is reasonable depends on all the circumstances surrounding the search or seizure and the nature of the search or seizure itself. For example, although a urine test is not invasive of the body, it does require individuals to perform an excretory function traditionally shielded by great privacy. As a result, that a urine test raises additional privacy concerns. One such concern is whether someone should monitor the individual during the collection process in order to insure the integrity of the test. How closely and carefully to monitor the student are issues of reasonableness. A collection process is minimally intrusive and therefore reasonable if there is no monitor present.

It is unreasonable under the Fourth Amendment to (1) make a warrantless stop of an automobile, and (2) detain its driver in order to check his driver’s license and the registration of his automobile. There are two exceptions to the ban on warrantlesscheckpoints to uncover evidence of ordinary criminal wrongdoing: (1) an appropriately tailored roadblock set up to thwart an imminent terrorist attack, or (2) a roadblock set up to catch a dangerous criminal who is likely to flee by way of a particular route.

A warrantless (and suspicionless) search of an impounded car in actual police custody is not unreasonable when the search was conducted pursuant to police regulations designed to insure the safety of the car and the owner’s property. Similarly, where state health regulations required the police to retain a car in their custody until a forfeiture proceeding, it would be unreasonable to hold that the police, who had to retain the car in their custody, for such a length of time, had no right, even for their own protection, to search it without a warrant.

Even if the police did not have actual physical custody, but the car was stored at a site pursuant to police instructions, it was constitutionally reasonable to search the car without a warrant. The warrantless search of the impounded car is valid, because of the police concern for the safety of the general public who might be endangered if an intruder removed a revolver (that was suspected to be in the trunk) from the trunk of the vehicle. Moreover, the warrantless search is not unreasonable even if the search could have been accomplished by less intrusive means. The need to conduct these warrantless impoundments and searches of vehicles for want of a better term may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. In the interest of public safety and as a part of what it has called community caretaking functions, vehicles are taken into police custody for a myriad of reasons. Generally these caretaking procedures follow a routine practice of securing and inventorying the contents of an automobile. As a result, these caretaking procedures have developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, the protection of the police against claims or disputes over lost or stolen property, and the protection of the police against potential danger.
When the police were indisputably engaged in a caretaking search of a lawfully impounded car because it was illegally parked for an extended period, and the owner was not present to make other arrangements for the safekeeping of his belongings, the warrantless search of that car was considered reasonable. However, if the alleged inventory search was a pretext for concealing an investigatory police motive such a search is unreasonable under the Fourth Amendment. The reasonableness of a warrantless search may be denied if the motive for the search was pretextual.

Inventory Searches

In order to determine the reasonableness of an inventory search the courts must balance the intrusion on an individual’s Fourth Amendment interests against its promotion of legitimate governmental interests. In significant part, the governmental interests supporting inventory searches are justified by the same distinct needs identified in the community caretaking—car impoundment cases—the protection of the (1) owner’s property while it remains in police custody, and (2) police against false claims of lost property or against dangerous instrumentalities. The police are not required as a condition of the search to balance an individual’s privacy interests in a container against the government’s interest that the container was a repository for dangerous items, before conducting a warrantless inventory search of that container.

It is a violation of the Fifth Amendment privilege against compelling testimony from a citizen for (1) a state attorney to use at the subsequent criminal prosecution incriminating answers made by police officers pursuant to a state statute that threatened to remove them from office if they refused to testify, (2) a city to discharge city employees pursuant to a city charter that authorized dismissal of city employees for refusing to waive their constitutional privilege against self-incrimination, (3) a state attorney to notify various contracting authorities that licensed contractor were disqualified from contracting with the state because these contractors refused to waive their Fifth Amendment right against self-incrimination, and (4) a state to prosecute and convict a citizen with his own testimony that was elicited under a threat of contempt by a United States Senate Committee investigating criminal activity.

Immunity statutes were written to provide a rational accommodation between the imperatives of the Fifth Amendment privilege and the legitimate demands of government to compel citizens to testify. Providing immunity against prosecution was important because sometimes the only persons capable of giving useful testimony were those implicated in the crime. An immunity statute is not a full substitute for the Fifth Amendment privilege if it cannot protect a testifying citizen against the use of the immunized testimony (1) to convict the citizen, and (2) as a source of information that leads to other incriminating evidence. Accordingly, use immunity alone was not considered coextensive with the Fifth Amendment privilege.
Pursuant to use-derivative use immunity a prosecutor is prohibited from using the immunized testimony either directly or indirectly against the testifying citizen. However, a prosecutor may prosecute the testifying witness with any evidence that is not connected to the immunized testimony, by establishing that he had an independent source for the disputed (unconnected) evidence. Transactional immunity has been deemed more than coextensive with the Fifth Amendment privilege, because it affords absolute immunity against future prosecution for the offense that was the subject of the interrogation. Indeed, the transactional immunity is broader than the Fifth Amendment privilege, because such an immunized citizen cannot subsequently be prosecuted with evidence from an independent source. As a result, the defendant will prefer transactional immunity, but the prosecutor will usually limit the offer to use-derivative use immunity. If the defendant declines to accept an offer of immunity, he may be subject to incarceration pending his compliance or the expiration of the grand jury’s term.

Any Criminal Case

The Fifth Amendment provides that no one shall be compelled in any criminal case to be a witness against himself. The phrase “a criminal case”, must have a broad construction in favor of the right it was intended to secure. Whenever the testifying citizen’s answers create a real and appreciable danger that the statements could be used in a criminal prosecution or could lead to other evidence that might be used against the testifying citizen, the privilege applies.

The Fifth Amendment does not apply to a resident alien’s fear that his compelled testimony would be used to prosecute him in a foreign country, primarily because the Court read the compelled self-incrimination clause contextually as apparently providing a witness with the right against compelled self-incrimination when reasonably fearing prosecution by the government (the United States) whose power the clause limits, but not otherwise.

There are apparent exceptions to the Fifth Amendment privilege based upon the idea that if the testimony sought cannot possibly be used as a basis for or in aid of a criminal prosecution against the witness, the rule ceases to apply. For example, a testifying citizen may not assert the privilege where (1) he has elected to waive it, (2) the question posed relates to a crime barred by the statute of limitations, (3) an answer to the question posed may only disgrace him, or (4) the testifying citizen has received a pardon for the charged offense.

When determining whether the Fifth Amendment privilege applies, the distinction between a civil penalty and a criminal penalty is of some constitutional import. Moreover, whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction. In order to engage in this statutory construction, there is a two-step analysis. First, a court must determine whether Congress intended to specifically designate a penalty as civil or criminal. Second, even where Congress has specifically intended to establish a civil penalty, a further inquiry must be conducted. That is, a court must discover whether the statutory scheme was so punitive either in purpose or effect as to negate that intention. The privilege protects an accused only from being compelled to testify about his own acts, or where it would otherwise provide the state with evidence of a testimonial or communicative nature.

A defendant does not offer testimonial evidence when he (1) supplies a handwriting sample used at trial, (2) provides a voice exemplar to a grand jury, (3) appears at a pretrial lineup and speaks words made by the alleged robber, or (4) signs, pursuant to a court order, forms consenting to disclosure of his bank records. Indeed, in order to be testimonial an accused’s communication must itself, explicitly or implicitly, relate to a factual assertion or disclose information.

Immunized testimony can be used to prosecute a citizen for making false statements under a federal immunity statute, 18 U.S.C. § 6002. Similarly, if a testifying witness makes a false statement in violation of 18 U.S.C. § 1001, that the court will not recognize the so-called exculpatory no doctrine as an exception to a violation of the statute. The exculpatory no doctrine, excused a simple denial of guilt, even if false, from coming within the statute. Essentially, falsely denying guilt in a government investigation violates an objective of the statute: criminalizing the perversion of a governmental function.

The right of a person under the Fifth Amendment to refuse to incriminate himself is purely a personal privilege of the witness. As a consequence, the Fifth Amendment is limited to a person who shall be compelled in any criminal case to be a witness against himself, and if he cannot set up the privilege of a third person, he certainly cannot set up the privilege of a corporation. However, even a person’s right to invoke the privilege is limited where the government compels a citizen to produce information pursuant to a required records law, and the records are to be used under a noncriminal regulatory scheme.

A citizen should be aware that the act of producing the document or thing may have Fifth Amendment implications. A citizen may not invoke the privilege even if the act of producing evidence in response to a subpoena under the facts and circumstances of particular cases may be both testimonial and incriminating. In other words, the act of producing the documents tacitly admits their existence and their location in the hands of their possessor.

If you have been arrested, do not talk to the police. Just ask that you be allowed to speak to your Sandy Utah criminal defense lawyer.

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