Indecent Exposure

Attorney Peter Calo Explains Landmark

Supreme Court Decisions

This page is dedicated to providing information and links to both United States Supreme Court decisions and Rhode Island Supreme Court decisions that may affect you.  First, it is necessary to understand what is the role of each Supreme Court. Along with the Federal Constitution, each state has its own constitution, which are virtually identical to the Federal Constitution. Each state may interpret its own constitution differently as long as that interpretation does not conflict with the Federal Constitution. The United States Supreme Court has the ultimate say in Federal Constitutional issues.  The United States Supreme Court is the highest court in the country.  The Rhode Island Supreme Court is the highest court in the State of Rhode Island. The United States Supreme Court decides cases based on the Federal Constitution and the Rhode Island Supreme decides cases based on both the Rhode Island Constitution and the Federal Constitution. However, the U.S. Supreme Court can overrule the R.I. Supreme Court on Federal Constitution issues, but not on R.I. Constitution issues, unless the R.I. Constitutional issue decided limits freedom and liberties that the U.S. Supreme Court has provided. States are allowed to provide more freedom and liberties to its citizens than what the U.S. Supreme Court may rule on a certain issue.  A state, however, cannot take away any freedom or liberties that the U.S. Supreme Court has provided.  For example, the U.S. Supreme Court has ruled that it does not violate the Federal Constitution for police to conduct DUI roadblocks.  Conversely, the R.I. Supreme Court has ruled that such roadblocks violate the R.I. Constitution.  Because this gives Rhode Island residents more freedom and liberties, the R.I. Supreme Court’s ruling is perfectly valid.  The opposite would not be true.  If the U.S. Supreme Court had ruled that DUI roadblocks violate the Federal Constitution then the R.I. Supreme Court would not be able to hold that such roadblocks do not violate the R.I. Constitution.  That is because that ruling would be taking away freedom and liberties that the U.S. Supreme Court has provided in a ruling.  For the most part, however, the R.I. Supreme Court follows the U.S. Supreme Court’s rulings.

The Fourth Amendment

The Fourth Amendment of the Federal Constitution deals specifically with seizures and searches. It is what prohibits the police from stopping, arresting and or searching someone without cause. The Fourth Amendment is the “playbook” that guides police officers.  The text of the Fourth Amendment is rather short and to the point: “The right of the people to be secure in their persons, houses, papers, and effects, 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 describing the place to be searched, and the persons or things to be seized” The U.S. Supreme Court has interpreted this to mean that all searches and seizures by the police must be reasonable.  And in order for a search or seizure to be reasonable, the police must have a warrant based on probable cause.  Keep in mind, however, that there are many exceptions to the rule that police need a warrant based on probable cause for every search and seizure.  Such exceptions include exigent circumstances, motor vehicle searches, search incident to an arrest, plain view, stop and detain, and pat-downs to name just a few.  These exceptions to the warrant and/or probable cause requirement were delineated by the Court because they are reasonable.  Therefore, even if the police search or seize someone or something without a warrant based on probable cause, the search or seizure may still be valid if it is based on one of the well established exceptions.  That is why you need to an attorney like Peter Calo to defend you.  His law enforcement experience gives him an advantage like no other attorney.  His strong background and knowledge on search and seizure laws enables him to give you the best possible representation.  Contact him today.

 Stop and Frisk: Terry v. Ohio

The Fourth Amendment, as interpreted by the U.S. Supreme Court, mandates that the level of suspicion that the police need in order to seize or search a person is probable cause.  Terry v. Ohio was a landmark U.S. Supreme Court decision that for the first time allowed the police to seize a person and search the person on less than probable cause. In Terry, the Court ruled that police may detain (seize) a person if the police have reasonable suspicion to believe that the person is involved in criminal activity.  Further, the Court rule that once police have someone detained, the police may pat-down the person for weapons if the police have reasonable suspicion to believe the person is armed and or dangerous.  Reasonable suspicion is a much lower standard of proof than probable cause, thus making it easier for police to stop and frisk citizens. In order for a police officer to conduct a stop and frisk, the two-prong test must be met.  First, the officer must reasonably suspect the person of criminal activity.  Second, in order to conduct the frisk, the officer must have separate reasonable suspicion that the person is armed and or dangerous.  Therefore, police may not frisk or pat-down every person they detain.  Only when the officer can articulate that the person was armed and dangerous may the officer then conduct a frisk of the person.

Motor Vehicle Searches: The Carroll Doctrine

Motor vehicle searches are one of the more common searches that police conduct. The U.S. Supreme Court, in Caroll v. U.S., departed from the warrant requirement for searching a motor vehicle.  The Court ruled that police may search a motor vehicle without a search warrant, provided that the police have probable cause to believe that there is evidence of a crime or contraband in the vehicle.  This is known as the Carroll Doctrine. Readily Mobile This does not mean that police can search every motor vehicle.  The Carroll Doctrine only applies if the vehicle is “readily mobile.”  The Court allowed this exception to the warrant requirement because vehicles can be easily  moved if police had to stop and get a warrant before searching.  Therefore, if a vehicle is not readily mobile, then the police would need a search warrant to conduct a search.  Scope of the Search: Elephant in a Breadbox Further, the police may search anywhere in that vehicle where the item may be contained.  This includes the trunk, glove box, and any containers in the vehicle, including those of passengers.  The only requirement for the scope of the search is the so-called “elephant in a breadbox” rule.  In other words, the police cannot search where it is physically impossible for the item to be. Rhode Island Adopts the Carroll Doctrine Prior to 1992, the State of Rhode Island did not follow the Carroll Doctrine.  It was one of those rare instances where the R.I. Supreme Court went against the U.S. Supreme Court and afforded R.I. Citizens more constitutional protection.  The R.I. Supreme Court ruled that police searching a vehicle without a warrant violates the R.I. Constitution.  However, in 1992, the R.I. Supreme Court reversed itself in State v. Werner, and adopted the Carroll Doctrine. Marijuana and the Carroll Doctrine Many states are now considering either decriminalizing or legalizing recreational use of marijuana (usually an ounce or less).  Click here for a link on Rhode Island’s Marijuana Laws.  Because of this trend, there is a debate on how these new laws would affect the Carroll Doctrine. Prior to this trend, however, the odor of burnt marijuana was enough probable cause for police to search a vehicle.  Jurisdictions are now split as to whether or not the Carroll Doctrine applies when an officer smells burnt marijuana in a vehicle.   For example, in Massachusetts, that State Supreme Court ruled in Commonwealth v. Cruz that the odor of burnt marijuana is not enough probable cause for the police to search a vehicle.  Conversely, in the State of Oregon, it has been ruled that the odor of burnt marijuana is enough probable cause for the police to search a vehicle (See State v. Smalley).  The issue has not been decided yet by the U.S. Supreme Court nor the R.I. Supreme Court.  Because the decriminalization of marijuana is relatively new, the Carroll Doctrine is expected to be challenged on this matter sooner or later.  Attorney Peter Calo, with his background and experience, can provide you with the best possible defense if you are cited with possession of marijuana.  Contact him for a free consultation.

The Right to Remain Silent:  Miranda

In 1966, the United States Supreme Court decided Miranda v. Arizona and forever changed the way police may interrogate a suspect.  The Court decided that police interrogations are inherently coercive and if a confession is coerced, it cannot be reliable.  In order to protect citizens from making a coerced confession the police must advise someone they want to interrogate in custody of certain rights. These rights are known as the Miranda Warnings. In general, if someone is a suspect in a crime, it is better not to talk to the police without an attorney present.  If the police want to speak to you about a crime, contact Attorney Peter Calo to protect you and your rights. The Miranda Warnings Here is what the Supreme Court stated in the Miranda decision: “The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her Here is typically how the Police will read the Warnings:
  • You have the right to remain silent
  • Anything you say can and will be used against you in a court of law
  • You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future
  • If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish
When do the Police Have to Read the Warnings? The police do not have to Mirandize every suspect they encounter.  There is a two-prong test that must be met in order for Miranda to qualify.  First, the person must be in custody.  Second, the police must interrogate that person.  Therefore, if the person is not in custody, the police can interrogate the person without giving Miranda Warnings.  Similarly, if the person is in custody, but the police do not interrogate the person, the police do not need to give Miranda Warnings.  Determining when a person is in custody and what is an interrogation can be challenging.  That is why you need the experience of Attorney Peter Calo to represent you should the police want to speak with you.  Contact him today. What does Custody mean for Miranda Purposes? There are two ways a person can be considered in police custody in order for Miranda to apply.  First, if a person is formally arrested (handcuffed and brought to the police station) that is definitely custody.  The second way for determining if someone is in police custody is not as clear cut as a formal arrest.  Rather, if the police restrain the person’s freedom to a degree that a reasonable person would associate with an arrest, then that person is in custody for Miranda purposes. A court will look at objective factors to determine if it was a custodial situation.  Such factors include the place of detention, the number of officers, the use of force, restraints used, and language used by the officers.  As one can see, this can be very difficult and technical.  Attorney Peter Calo’s experience as a police officer gives him an advantage as he knows better than most attorneys the methods that police use when detaining a suspect.  What does Interrogation mean? Interrogation does not mean questioning.  Police are allowed to ask questions to someone who is custody without reading Miranda, as long as the questions are not designed to elicit an incriminating response (See R.I. v. Innis).  Miranda is derived from the Fifth Amendment of the Constitution, which, in part, protects us from being forced to incriminate ourselves.  Therefore, if someone is in custody and the police begin to ask or even act in a way that the person would provide incriminating statements, that would be considered an interrogation and Miranda would apply. Waiver of Rights If a person decides to waive his or her rights and agrees to speak with the police without an attorney present the burden is on the police to show that the person did so without coercion.  The police must show that the person knowingly, willingly and voluntarily waived his or her rights.  If the police are unable to demonstrate this, then any statements and or evidence from that statement will not be allowed in court.  This underscores the importance of needing an attorney when you speak to the police. This is a subjective test, therefore an individuals personal traits, history, education and sometimes age will determine if they had the capability to understand and subsequently waive his or her rights.  Exercising Miranda Rights If someone asserts their rights and tells the police that they want an attorney or do not want to speak with them, the police cannot ask any questions at that point, even if the person originally agreed to speak with them.  Once someone asserts his or her Miranda rights, the police cannot approach that person later and ask them questions, unless the person initiates it first.  If a person remains silent and does not even tell the police that he or she does not want to speak with them, the person has not asserted his or her Miranda rights.  The person must affirmatively assert the rights.  In other words, one must speak to remain silent (See Berghuis v. Thompkins).

Search Incident to Arrest:  Cell Phones, Motor Vehicles and Other Property

Another exception to the warrant requirement is called the Search Incident to Arrest.  In general, when someone is arrested, the police may search that person and the person’s belongings without a warrant.  Throughout the years, this exception to the search warrant requirement, known as Search Incident to Arrest, has been both expanded and limited.  There are two rationales for allowing police to search an arrestee’s person and  his or her belongings without a warrant.  The first is officer safety.  Arresting and bringing a person to the police station can be very dangerous.  The Search Incident to Arrest exception allows an officer to search the arrestee to ensure the arrestee does not have any weapons that could harm the officer.  Secondly, officers are allowed to conduct a search of the arrestee and his or her belongings to preserve and prevent destruction of any possible evidence.  Limits of the Search Incident to Arrest Exception The Search Incident to Arrest Exception has its limitations; it is not a license for police to conduct a limitless search every time someone is arrested.  First, the police cannot conduct a strip search of someone based on this exception.  Another exception to the warrant requirement would have to apply for a strip search to happen.  The item or area that the police want to search must be within the arrestee’s immediate control, known as the Chimel Circle (see below). This Chimel Circle refers to an area with in where the arrestee may gain possession of a weapon or destructible evidence.  Therefore, if someone is arrested and their wallet is not within his reach, the police cannot search that wallet if they locate after the arrest.  Similarly, the police cannot search desks or drawers that are not within the arrestee’s reach.  However, if the desk is within reach, then the officers may search the desk and the drawers.  Finally, a Search Incident to Arrest only applies to custodial arrests.  In situations where someone is only issued a citation and not transported to the station then a Search Incident to Arrest is not allowed. The Chimel Circle: Chimel v. California laid the groundwork for most of the existing search incident to arrest doctrine. Police officers in that case arrested Chimel inside his home and proceeded to search his entire three-bedroom house, including the attic and garage. In particular rooms, they also looked through the contents of drawers.  The Court ruled that the majority of the search of the house was not allowed because it was not within Chimel’s immediate control.  However, any area that was within Chimel’s immediate control was subject to being searched on the basis of Chimel’s arrest.  No Suspicion Needed to Conduct a Search Incident o Arrest Four years after Chimel, the United States Supreme Court decided U.S. v. RobinsonRobinson was arrested for driving on a revoked license.  The police opened and searched a pack of cigarettes in Robinson’s pocket and found drugs.  Robinson argued that the police needed additional justification, or suspicion, that there was a weapon or drugs in the cigarette pack in order to search it under the Search Incident to Arrest Exception.  The Court rejected Robinson’s argument and instead ruled that police do not need any other justification to conduct a search incident to arrest other than a valid arrest.  In other words, as a matter of course the police may conduct a search incident to arrest on every person they arrest and bring into custody.  Search Incident to Arrest and Motor Vehicles In recent years, the U.S. Supreme Court has narrowed the Search Incident to Arrest exception.  In Arizona v. Gant, the Court limited when the police can conduct a search incident to arrest when the arrestee is in a motor vehicle.  Prior to Gant, the Court address what could be searched in a motor vehicle based on a search incident to arrest in New York v. Belton.  In Belton, the court ruled that the police can search the entire passenger compartment of a vehicle if the arrestee was in the vehicle at the time of arrest.  This includes any containers within the passenger’s compartment.  However, in Gant, the court limited when such a search incident to arrest can take place in the arrestee’s vehicle.  The Court ruled in Gant that there are only two circumstances when the police may conduct a search incident to arrestee’s vehicle.  First, a search incident to arrest of the arrestee’s vehicle may be done only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.  Second, a search incident to arrest of the arrestee’s vehicle may be conducted when the officer has a reasonable belief that evidence of the crime for which the person is arrested for is in the vehicle.  The important factor is that the evidence sought must be related to the crime for which the person is arrested.  Search Incident to Arrest and Cell Phones With the technology age ever growing, people are now able to store volumes of personal information in very small devices, such as cell phones or smart phones.  Even the average cell phone (not smart phone) can store photos, videos, and conversations.  Police have been using the Search Incident to Arrest Exception to search through cell phones, exposing them to countless personal information of the arrestee.  The U.S. Supreme Court has addressed this issued and ruled that cell phones are not subject to a search under the Search Incident to Arrest Exception.  In Riley v. California, the Court ruled that the massive amount of private information stored in a cell phone outweighs the intrusion by the police in searching the cell phone based on this exception.  However, searching the cell phone based on some other exception, such as an exigent circumstance, is still valid.  The Riley decision also does not disturb Rhode Island’s Supreme Court decision based on searching the cell phone of a third party.  In State v. Patino, the RI Supreme Court ruled that a person does not have an expectation of privacy in another person’s cell phone.  Therefore, once someone sends a text message or some other data to another person’s cell phone, the person sending the data has no privacy rights in the other person’s cell phone and any subsequent search by the police of the third person’s cell phone is not subject to a challenge by the original sender.