Policing and Public Transportation (2022)

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18 TCRP LRD 58 was a violation of constitutional rights and not on the link be- tween the violation of a right and the subsequent discovery of evidence.”205 There are exceptions to the exclusionary rule that may re- sult in the admissibility of the challenged evidence.206 As the following examples illustrate, if an exception applies, then the exclusionary rule does not apply, and the evidence is admissible. First, there is the independent source doctrine, an excep- tion that permits trial courts to admit evidence obtained in an unlawful search if officers independently acquired the evidence from a separate, independent source.207 Second, there is the inevitable discovery doctrine, an excep- tion that permits evidence to be admitted, because the evidence “would have been discovered even without the unconstitutional source.”208 Third, if the attenuation doctrine applies, discussed below, then “[e]vidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that ‘the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evi- dence obtained.’”209 A fourth exception is the special needs doctrine, also dis- cussed hereafter. Because the attenuation and special needs doctrines may be invoked less frequently and/or may be less familiar than other exceptions to the exclusionary rule, the next two subsections analyze cases in which the doctrines were at issue. C. The Attenuation Doctrine In Strieff, supra, the Supreme Court considered the appli- cability of the attenuation doctrine. The issue was whether the attenuation doctrine applies “when an officer makes an un- constitutional investigatory stop; learns during that stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a search incident to that arrest.”210 The Court held that the attenuation exception to the exclu- sionary rule did not apply in that case. In an opinion by Jus- tice Thomas, the Court held that “even when there is a Fourth Amendment violation, [the] exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits. In some cases, for example, the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression.”211 In Strieff, Officer Fackrell, as part of a stop, based on an anonymous tip, had detained Strieff for suspected narcotics 205 Padilla, 143 F. Supp.2d at 471 (citations omitted). 206 Strieff, 136 S. Ct. at 2061, 195 L. Ed.2d at 407 (citations omitted). 207 Id. (citations omitted) (quotation marks omitted). 208 Id. (citations omitted) (quotation marks omitted). 209 Id. (citations omitted) (quotation marks omitted). 210 Id., 136 S. Ct. at 2059 195 L. Ed.2d at 405. 211 Id., 136 S. Ct. at 2059, 195 L. Ed.2d at 409. In McGann v. Northeast Ill. Regional Commuter R.R. Corp.,195 a class action pursuant to § 1983, the plaintiffs alleged that the Metropolitan Rail (Metra) police had conducted a search of every vehicle that left Metra’s 47th Street parking lot. The district court granted a summary judgment to the commuter railroad and its officials. The Seventh Circuit reversed and remanded the case, holding that six Metra police officers’ statements and ac- tions could suggest to a reasonable person that the officers were not engaging in an effort to obtain consent but rather were stop- ping the plaintiffs to conduct a search that the plaintiffs were not free to refuse. In State v. Carter,196 a case involving a fare sweep that is dis- cussed in Section VI. E, infra, the Maryland Court of Appeals held that Carter had not “impliedly consented to the seizure by traveling on the barrier-free Light Rail system,”197 because, in part, there was no “express prior notice that a person may be subject to a search or seizure.”198 B. The Exclusionary Rule and Exceptions to the Rule In the 20th century, as the Supreme Court explained in Utah v. Strieff,199 the exclusionary rule “became the principal judicial remedy to deter Fourth Amendment violations.”200 The Fourth Amendment of the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” . . . War- rantless searches and seizures are presumptively unreasonable under the Fourth Amendment. . . . When police have obtained evidence through a warrantless search or seizure, the State bears the burden to demonstrate that the search or seizure was reasonable, by establishing the applicability of one of the “few specifically established and well- delineated exceptions” to the warrant requirement.201 The Supreme Court has held that under its precedents “the exclusionary rule encompasses both the ‘primary evidence ob- tained as a direct result of an illegal search or seizure’ and . . . ‘evidence later discovered and found to be derivative of an ille- gality,’ the so-called ‘fruit of the poisonous tree.’”202 Thus, under the exclusionary rule, because of the fruit of the poisonous tree doctrine, evidence obtained illegally may be inadmissible.203 However, the exclusionary rule applies only when the rule’s “‘de- terrence benefits outweigh its substantial social costs.’”204 As one federal district court has stated, in § 1983 civil rights actions, “the focus of the inquiry” is “on the question of whether there 195 8 F.3d 1174, 1186 (7th Cir. 1993), rehearing denied, 1994 U.S. App. LEXIS 10070, at *1 (7th Cir. 1994). 196 472 Md. 36, 244 A.3d 1041 (Md. Ct. App. 2021). 197 Id., 472 Md. at 58, 244 A.3d at 1053. 198 Id., 472 Md. at 59, 244 A.3d at 1054. 199 136 S. Ct. 2056, 2061, 195 L. Ed.2d 405, 407 (2016) (citation omitted). 200 Id. (citation omitted). 201 Carter, 472 Md. at 55, 244 A.3d at 1052 (citations omitted). 202 Strieff, 136 S. Ct. at 2061, 195 L. Ed.2d at 407 (citation omitted) (some internal quotation marks omitted). 203 Padilla, 143 F. Supp.2d at 471. See also, Strieff, 136 S. Ct. at 2065, 195 L. Ed.2d at 417. 204 Strieff, 136 S. Ct. at 2061, 195 L. Ed.2d at 407 (citation omitted).

TCRP LRD 58 17 shop manager’s description of the individual, Officer Rocket be- lieved that Kirk was the suspect. When Officer Rocket arrived at the office of the mechanical department, the officer did not believe that he had a “sufficient foundation” to arrest Kirk.188 A scuffle ensued when Officer Rocket attempted to pat down Kirk for any weapons. Although the shop manager confirmed that Kirk was not the suspect, Officer Rocket informed Kirk that he was “still under arrest” and placed him in a cell at the police base in Grand Central.189 Kirk was charged with resisting arrest and third-degree assault, but, on the day of the trial, the prosecution dismissed the charges.190 Kirk brought a § 1983 action against the MTA and Officers Anderson and Rocket for the use of excessive force, false imprison ment, and false arrest. The individual defendants moved for a summary judgment based on qualified immunity. In considering the defendants’ motion, the court stated that, based on the evidence presented, “a jury could find that there was no probable cause to arrest Kirk for the incident at Zaro’s at the time he was handcuffed because the only link between him and the incident was his description, which matched that of many others in the area….”191 However, because the mate- rial facts of Kirk’s and Rocket’s interaction in the Mechanical Department’s office were in dispute, it was “premature to decide whether probable cause existed to arrest Kirk or whether the ac- tions of the officers were objectively reasonable.”192 VI. LIABILITY UNDER THE FOURTH AMENDMENT IN § 1983 ACTIONS FOR UNLAWFUL SEARCHES AND SEIZURES OF PROPERTY A. Whether a Search of a Person or a Person’s Property Is Consensual The Fourth Amendment declares that “[t]he right of the people to be secure in their persons, houses, papers, and ef- fects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describ- ing the place to be searched, and the persons or things to be seized.”193 In officer-citizen encounters, a person may consent to a search of his or her person or property. However, even if a per- son consents to a search, [t]he permissible scope of a consensual search is limited by the terms of the consent. . . . “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objec- tive reasonableness’ – what would the typical reasonable person have understood by the exchange between the officer and the suspect?”194 188 Kirk, 2001 U.S. Dist. LEXIS 2786, at *7. 189 Id. at *10. 190 Id. at *13. 191 Id. at *20-21. 192 Id. at *21 (citations omitted). 193 U.S. Const., amend. IV. 194 Padilla, 143 F. Supp.2d at 470 (citations omitted). of a § 1983 action. Figueroa had used a railpass, known as the Patriot Passport, that purportedly had expired. On the day of his arrest, although transit authorities had instructed Figueroa to use the handicapped gate while displaying his railpass, no one was stationed at the handicapped gate. After Officer Huerta observed Figueroa entering without paying the fare, a scuffle ensued when Huerta attempted to arrest Figueroa. At trial, Figueroa was found not guilty of resisting arrest without vio- lence, and a charge of petit theft was dismissed.182 Figueroa, in addition to a state law claim for false arrest against Miami-Dade County, brought § 1983 claims against Officer Huerta for false arrest, use of excessive force, and malicious prosecution, as well as for the initiation and pursuit of the prosecution of Figueroa without probable cause.183 Officer Huerta’s motion for a summary judgment argued “that he had probable cause to arrest Plaintiff, which would entitle him to qualified immunity on the § 1983 claims for false arrest and malicious prosecution.”184 Additionally, the officer argued that, because he did not use excessive force, he was entitled to a sum- mary judgment on Figueroa’s claim under § 1983 for the alleged use of excessive force. The court held that, under the circumstances, Officer Huerta did not have probable cause to arrest Figueroa. For example, another officer (Brown) had told Huerta that she believed that Figueroa’s pass was valid.185 Rather than determine whether Figueroa’s pass was valid, Officer Huerta, “ignoring potentially exculpatory information,” arrested Figueroa.186 Because Officer Huerta was not entitled to qualified immunity, the court de- nied the officer’s motion for a summary judgment on Figueroa’s § 1983 claim for false arrest. In another case, Kirk v. Metropolitan Transp. Auth.,187 supra, two police officers (Anderson and Rocket) were working at Grand Central Station in New York City when Officer Anderson received a report of a confrontation at Zaro’s Bread Shop ( Zaro’s) in the vicinity of Track 19. After the individual threatened to return to the shop with a gun, the manager of the bread shop reported the incident and, thereafter, described the suspect to Officer Anderson. Kirk was a supervisor in the mechanical department of Metro-North Railroad at Grand Central Station. Based on the 182 A later investigation revealed that “that Miami-Dade Transit had signs posted in the Metrorail stations which read ‘Attention: Patriot Passport Patrons, Patriot Passports bearing the expiration date of June 30, 2007, have been extended to November 30, 2007.’” Id. at *7. 183 Id. at *1. 184 Id. at *9. 185 Id. at *12. 186 Id. 187 2001 U.S. Dist. LEXIS 2786, at *1, 20, 21 (S.D. N.Y. 2001). Com- pare with Burg v. Gosselin, 591 F.3d 95, 98 (2d Cir. 2009) (holding “that the issuance of a pre-arraignment, non-felony summons requiring a later court appearance, without further restrictions, does not constitute a Fourth Amendment seizure”). However, at least two courts have ques- tioned the validity of the holding in Burg. See Cross v. City of Albany, 2016 U.S. Dist. LEXIS 144681, at *1, 16 (N.D. N.Y. 2016) and Oxman v. Downs, 999 F. Supp.2d 404, 413 (E.D. N.Y. 2014).