There is an interesting case out of Columbia, Missouri where an officer, Jessica McNabb, found a body in the trunk of the car of teenager, Daniel Sanders. That unfortunately is not so interesting in today’s world. What is striking is the reason for the search of the trunk: Sanders asked for a lawyer. The body turned out to be his mother.
When McNabb pulled over Sanders for running a red light and failing to use his headlights, she found that he did not have a license. He immediately asked for an attorney, which she found suspicious. She continued to question him and then asked to see the trunk. That is when she found the body of Helen Sanders, 53, who apparently was drowned. He was charged with evidence tampering and second-degree murder. The trial is scheduled for March.
McNabb is no longer with the force and was a rookie at the time of the search. The case could raise a series of questions. Was Sanders in custody at the time? If so, continuing to question a suspect after invocation of his right to remain silent and his right for counsel would raise serious questions.
More importantly, can an officer use a request for an attorney as a basis for a search? This was not an inventory search at the station, but an investigative search that appears prompted by a request for counsel. As such, this could be a very significant case for constitutional criminal procedure.
For the full story, click here and
At the hearing on the motion to suppress, the officers stated that Sanders was driving alone on a learners permit. They took him into custody and put him in the back of their police car. They tried to call his mother to get her to move the car, as there was no room on the side of the road to leave it. When she did not answer, they called a tow truck and did an inventory of the car prior to it being towed. That’s when they uncovered the body. See the article at http://www.columbiatribune.com/news/2010/jan/28/officers-testify-sanders-hearing/
Since then, Sanders has admitted that he murdered his mother and has plead guilty to manslaughter and evidence tampering. http://www.columbiatribune.com/news/2010/feb/16/sanders-pleads-guilty-manslaughter/
It’s been awhile since I took laws of evidence (as an undergrad, I am not a lawyer), but I seem to remember asking for an attorney can never be considered probable cause for a search.
So way to go officer, a victim’s body as fruit of the poison tree. Somehow I don’t think you’re going to turn that into inevitable discovery.
Glad to hear the officer is not working for the department any more. I hope she’s out of law enforcement altogether.
Ironically, if the Cop had just tazed the man, it would have been OK.
Aren’t police supposed to use their intelligence and judgement in such a situation? She didn’t know if there was a body in the trunk, or a kidnapped little girl, did she? It would have been wrong to NOT search the car.
AY: “If an arrestable offense then it will probably be harmless error under the Inevitable Discovery. It still does not answer if he killed her or what his role was.”
Every traffic stop is technically an ‘arrestable’ offense; question here is was the perp under arrest when he asked for a lawyer. The answer to that is no.
The question is, as JT pointed out, whether the defendant was in custody at the time he requested a lawyer. My answer would be no, since a Terry Stop, so far as I recall my criminal procedure, is not an arrest.
The argument would then segue into comparisons of cases of ‘fleeing subjects’
Overall, I think a strong argument could be made in favor of the prosecution. The request for a lawyer, i.e. the time and manner in which the defendant asked could be shown to arouse reasonable suspicion that there may be a felony in progress — which should make the search of the trunk valid.
However, I could be wrong since it’s been years since I brushed up on my Crim Pro; seeing how the topic became irrelevant during the Bush administration.
not having the license was probably the kiss of death though
would this make an arrest inevitable?
would it make an impound inevitable?
would it give probable cause of evidence of some other crime, evidence of which was reasonable believed to be found in the vehicle?
Okay … I’m hooked.
Was the “rookie” right or wrong … if wrong was it a rookie mistake that a more experienced officer would have handled differently?
Did the kid hang himself by asking for a lawyer or did he provide himself with a plausible defense strategy?
What about the victim in the trunk?
Tomorrow night I’ll be attending a party and will put this thorny issue to my lawyer friends who will, in turn, throw up their hands groaning, “Oh no, you’ve been reading Turley’s blog again!” But, they will then start arguing over the merits of the case and keep at it all night.
The problem is that I truly am hooked on this story and I’ll never know how the matter was settled because the case will probably take forever to go to trial and it, more than likely, won’t be followed up on this site sooo … now I’m hooked and frustrated.
DUH: “I am confused about how invoking your rights can be viewed as suspicious, and therefore permit a search. … Would it be viewed as suspicious, if I refused to let the officer look inside my trunk? Wouldn’t it be viewed as “what do you have to hide”?”
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Invoking your Constitutional rights shouldn’t be grounds for suspicion and arrest IMO, not having the license was probably the kiss of death though. I got pulled over for not having my lights on once (coming out of a driveway, I put them on after I got into the street) and I just had my plate run and was sent on my way but I had my license and registration at hand.
1. If a policeman asks you to open a trunk after you have asked for a lawyer, then I don’t think you have a voluntary consent situation.
2. If people are not inevitably arrested for running red lights, the I don’t think you have inevitable discovery.
Bob, Esq.
If an arrestable offense then it will probably be harmless error under the Inevitable Discovery. It still does not answer if he killed her or what his role was.
AY: “Was this an arrestable offense to begin with? If so, would the vehicle eventually been inventoried?”
He was pulled over for “failing to use headlights at night and running a stop light”
So the answer is yes.
Would it be viewed as suspicious, if I refused to let the officer look inside my trunk? Wouldn’t it be viewed as “what do you have to hide”?
I came away with the same understanding (that is was the officer’s mother found in the trunk). I thought to myself ‘How horrific’.
I am confused about how invoking your rights can be viewed as suspicious, and therefore permit a search.
What if a kid, who has heard all kinds of stories about corrupt police officers, had always been told “Don’t let the cop get away with anything. If you’re not sure about what to do, ask for an attorney. If you don’t ask for the attorney right away, the cop will get a chance to screw you”?
I can easily envision a law abiding citizen asking for an attorney if a police officer was pushing something they thought was out of line. Heck, if I was pulled over, and a police officer asked to look inside my trunk, I might say that I don’t want to do anything more without talking to an attorney.
Was this an arrestable offense to begin with? If so, would the vehicle eventually been inventoried?
If I remember correctly, every traffic stop is a potential arrest, not an arrest per se. Meaning, if you’re a savvy cop who caught a known arms dealer passing a stop sign, you can convert the stop into an arrest, finish the paperwork back at the station, and run an inventory search of the car in the pound.
And the reason you’d turn a stop into an arrest is to get access to the trunk and floorboards, etc., places which would not count as areas where weapons could be within reach of the perp.
A Terry stop does not constitute and arrest; thus the request for an attorney could be argued as giving reasonable suspicion of a felony in progress within the car.
Michigan v. Long permitted the search of the car interior for weapons; it didn’t address the search of the trunk– it was remanded.
“I thought that the mother of the officer was in the trunk of the car! (I didn’t register the disconnect between “Jessica” and “his mother”.)”
I read it the same way.
When I read the opening sentence, “There is an interesting case out of Columbia, Missouri where an officer, Jessica McNabb, found his mother’s body in the trunk of the car of teenager, Daniel Sanders,” I thought that the mother of the officer was in the trunk of the car! (I didn’t register the disconnect between “Jessica” and “his mother”.)
This is interesting. But I think Ian is on the right track here…Who did the actual opening of the trunk? Did the officer reach in the car to hit the button or lever to pop the trunk? Or did the kid pop open the trunk upon request? Who ever open the truck – it’s their “bad’… If the cop opened it – unlawful search, if the kid opened it – he gave consent.
There’s a lot going on here.
1. Routine traffic stop. Suspect is “detained” only for purposes of completing traffic ticket.
2. Suspect asks for lawyer before there is any inkling that a felony occurred. Still no grounds for an arrest.
3. Invocation of right raises suspicion that a felony occurred. Since there is still no evidence of a felony, the suspect is not under arrest for a felony and there is no basis yet for impounding the car while suspect is taken into custody. At this point, it seems to me, the officer could continue to question the suspect as he is not under arrest and she has no cause to put him under arrest. Had he been under arrest, however, the questioning would have had to cease. But if he was under arrest a pre-impoundment inventory of the contents of the car would have been appropriate.
4. From the account, it appears that the suspect opened the trunk on the officer’s repeated question, “can you open the trunk?”
5. Too bad the officer didn’t report that she detected a strange odor or sound coming from the trunk. Rookie mistake.
the body was not, presumably, in plain sight which i believe would not require any kind of warrant. while he asked for a lawyer does she have the right to detain him just because of this? and if so, is she required to stop asking questions just because he asks for a lawyer? if he consents to a search, even after asking about a lawyer, isnt she allowed to go ahead with it? He was not arrested at that time and gave her permission to search the car
Asking for a lawyer is hardly an exigent circumstance. On the other hand, how could a court suppress a dead body? I wouldn’t even know how to approach this one.