Highlights of This Issue

United States Supreme Court Action

• Producing Documents Under Immunity was testimonial in nature in a subsequent, unrelated prosecution
• Federal Crime of Arson of private residence invalidated
• Defendant Who Preemptively Introduces Evidence of a Prior Conviction on direct examination can not challenge the admissibility of such evidence on appeal
• Hate Crime Sentence Enhancement was an element of the offense that had to be found by the trier of facts by proof beyond a reasonable doubt

Federal and State Decisions

Search Incident to Arrest: Automobiles; New York v. Belton; Passenger's Purse

State v. Steele, 613 N.W.2d 825 (S.D. 2000).

State. Can an automobile passenger's purse be searched without a warrant or probable cause incident to the arrest of the driver? The South Dakota Supreme Court answered "yes," holding that the rationale of New York v. Belton, 453 U.S. 454 (1982), applies to all containers in a vehicle, regardless of who owns them. Belton held that a search incident to the arrest of a vehicle occupant may include all containers, including "closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like." The defendant's purse was within the driver's immediate reach prior to his exiting from the vehicle, bolstering the South Dakota court's rationale.

Right to Privacy: Use of Thermal Imaging Devices; Marijuana Growing

United States v. Elkins, 95 F.Supp.2d 796 (W.D.Tenn. 2000).

Federal. In a decision that is apparently against the trend that has developed on this issue in the last several years, a federal district court ruled that the police violated the Fourth Amendment expectation of privacy rights of alleged growers of marijuana, when they conducted a warrantless search by using a thermal imaging device outside of a commercial building in which cultivation was taking place, to detect the heat "signature" given off by marijuana.

"It may be argued that the use of the thermal imager only legitimately enhances the natural abilities of the police to observe what normally exists (i.e., heat radiations) and is, therefore, permissible. The court does not dispute that certain enhancements of natural abilities are proper in the scope of law enforcement. . . . However, heat radiations which are detected by a thermal imager are not normally viewable by the unaided naked eye. At least one recognized commentator argues that current law concerning the artificial extension of human senses by technical means indicates that such an extension is a search within the meaning of the Fourth Amendment. See 1 Wayne R. Lafave, Search and Seizure 2.2(d) (West 1996 & Supp.1999). . . . This principle is reinforced by a decision of the United States Supreme Court which held that merely tracking the location of an electronic beeper within the confines of a residence violated the reasonable expectation of privacy guaranteed by the Fourth Amendment. United States v. Karo, 468 U.S. 705, 714, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). The information which can be gathered by a thermal imager is at least as qualitatively intrusive as that relayed by the location of an electronic beeper. . . .

"It may be argued that this holding will prevent law enforcement from ever using a thermal imager when it is needed. This argument must be balanced against traditional constitutional protections of the Fourth Amendment. Where the government seeks to capture a heat signature for law enforcement purposes in the face of a reasonable expectation of privacy (e.g., a home), the police will simply have to obtain a warrant. This is far from an onerous requirement. Such a requirement will inhibit the indiscriminate use of thermal imagers and lend substance to the Fourth Amendment."

Miranda: Waiver; Effectiveness; Uncertainty About the Meaning of the Term "Waiver"

Malloy v. State, 1 P.3d 1266 (Alaska App. 2000).

State. A murder defendant's waiver of her right to counsel prior to her post-arrest interview with police was knowing and voluntary, despite defendant's indication that she did not understand what the interviewing officer meant by the term "waiving." The record indicated the defendant told the interviewing officer that she understood her right to counsel and that she still wished to talk to him. This was an adequate waiver of Miranda rights.

"Baker: [W]hat I am sure is [that] I cannot ask you a single question, I cannot accept a single answer, unless you waive your Miranda rights and agree to talk to me. That's the bottom line. Now, do you want to talk to me?

Malloy: I don't know what all that means, and that's why I want to . . .

Baker: What it means is this: You have the right to remain silent. Do know what that means?

Malloy: Yeah.

Baker: You don't have to talk to me; I've told you that many times.

Malloy: Uh-huh.

Baker: Anything you say can be used against you in a court of law. That's pretty obvious, you know?

Malloy: Uh-huh.

Baker: You have the right to talk to a lawyer and have him present with you.

Malloy: I understand my rights.

Baker: That's what I mean.

Malloy: [But] I don't understand what you mean by 'waiving' my rights.

Baker: All I want to know is, do you understand these [rights]?

Malloy: Yes, I do.

Baker: Okay. And understanding these rights, do you want to talk to me?

Malloy: I told you I'd talk to you.

Based on this record, we agree with Judge Andrews that Malloy knowingly waived her right to counsel and consented to be interviewed on December 27th."