The Criminal Docket

A  PUBLICATION  OF  THE  CRIMINAL  JUSTICE  SECTION  OF  THE  LOS  ANGELES  COUNTY  BAR  ASSOCIATION

November 2007

Volume II, Number 4


KLEIN’S KORNER
JUDGE ROSS KLEIN
LOS ANGELES SUPERIOR COURT
TELEPHONE: (562) 803-7015


“Courthouse Searches” or “You Mean I Can Be Searched Just To Go Inside?”

 

Introduction:  Individuals who want to enter a courthouse may find that they have to go through a screening process before going past the building’s threshold.  While it may add to the delay in entering the building, it is legally permissible for security personnel to require a person to pass through a metal-screening device and, if necessary, a cursory pat-down search.

The Courthouse is a Public Building:  Penal Code section 171b prohibits the bringing of enumerated items into a state or local public building.  The items include firearms, deadly weapons, and knives meeting certain descriptive criteria.  Section 171b(c)(1) defines a “state or local public building” as one that is entirely or partially owned or leased by the state or local government where state or local employees are regularly present to perform their required duties.  The statute specifically states that “A state or local public building includes, but is not limited to, a building that contains a courtroom.”  The California Department of the Attorney General concluded that except where permission has been granted in writing by the sheriff or a chief of police, Section 171b prohibits non-peace officers from carrying a firearm into a courthouse, even if it is done in the performance of their duties. (72 Opinion of the Attorney General of California 103, (1989) )


Passing Through a Magnetometer is a Search: Both the Fourth Amendment of the United States Constitution and Article 1, Section 13 of the California Constitution provide that “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.”  No California published case has determined that the use of a metal-detecting device (often referred to as a “magnetometer”) at a courthouse is a “search under the United States and California Constitutions.  In Morad v. Superior Court of San Mateo County (1975) 44 Cal App 3rd 436 and People v. Hyde (1974) 12 Cal 3rd 158, the courts held that the use of a magnetometer at an airport is a search within the meaning of the Fourth Amendment.  The Federal Court has determined that its use at a courthouse is a search.   (McMorris v. Alito (9th Circuit, 1978) 567 F. 2nd 897)  It is designed to locate and disclose metal objects where individuals have a reasonable expectation of privacy.  (People v. Hyde (1974) 12 Cal 3rd 158, involving the use of a magnetometer at an airport) Such searches are permitted as part of a general regulatory scheme even though they are “not supported by a showing of probable cause directed to a particular place or person to be searched.”  (United States v. Biswell (1972) 406 U.S. 311, involving the search of a firearm dealer’s storeroom as permitted by 1968's Gun Control Act; People v. Hyde (1974) 12 Cal 3rd 158, at 165)

Administrative Search: Inasmuch as individuals are searched without a particularized suspicion of their being involved in criminal activity, the courthouse search is deemed to be an “administrative search.”  In analyzing whether the search qualified as a lawful administrative search, Estes v. Rowland (1993) 14 Cal App 4th 50, at 516-517 reviewed the requirements set forth in McMorris v. Alito (9th Circuit, 1978) 567 F. 2nd 897, at 899: “Under McMorris, a legitimate administrative search (1) must be clearly necessary to a vital governmental interest; (2) must be limited, and no more intrusive than necessary to accomplish the governmental interest;  (3) must be reasonably effective in accomplishing its purpose; and (4) must be conducted for a purpose other than the gathering of evidence for criminal purposes.”  Administrative searches may be conducted without probable cause since there is “less of an intrusion on personal privacy and dignity than that which generally occurs in the course of (a) criminal investigation.” (Estes v. Rowland (1993) 14 Cal App 4th 508, at 522; 3 LaFave, Search and Seizure, (2nd Ed., 1987), section 10.1(b), page 607)  If the initial search is part of a regulatory effort to disclose the presence of weapons, then the discovery of contraband does not violate the Fourth Amendment.  (People v. Dooley (1976) 64 Cal App 3rd 502) 

Consent: In Mathis v. Appellate Department (1972) 28 Cal App 3rd 1038, a sign was posted at the entry to the prison’s parking lot that a vehicle which continued into the lot would be subject to search.  The court concluded that if the public continued past this sign, they are deemed to have impliedly consented to the search. In the courthouse, an individual may completely avoid the search simply by electing not to enter the courthouse or to pass through the magnetometer in the first place.  (People v. Hyde (1974) 12 Cal 3rd 158, at 169)  If an individual submits to the initial magnetometer screening process, the person has waived any objection to a further reasonable search of his person or belongings.  Morad v. Superior Court (1975) 44 Cal App 3rd 436; People v. Dooley (1976) 64 Cal App 3rd 502)


Balancing and Scope of Search:   In an administrative search, the court is required to ensure that constitutional safeguards are met.  In other words, according to McMorris v. Alito (9th Circuit, 1978) 567 F2nd 897, at 901, even if courthouse visitors impliedly consent to a search the search itself must be limited in scope and reasonable in application; it does not justify a warrantless and thorough search of evidence of a crime.  In a courthouse search, the court must balance the time delay and inconvenience imposed on those entering the courthouse against ensuring the safety of courthouse employees, attorneys and witnesses.  If an individual activates the magnetometer after passing though it, he cannot simply decide to leave to avoid a patdown search.  Morad v. Superior Court of San Mateo County (1975) 44 Cal App 3rd 436 stated that a patdown search was permitted after activating the magnetometer since this will ensure that dangerous weapons will not be carried onto an airplane and even to deter potential hijackers from attempting to board.  Similarly, the patdown search at the courthouse’s entry will deter individuals from attempting to enter the courthouse or remain on courthouse property while in possession of a dangerous weapon.

No Warrant Required: LaFave (see LaFave, Search and Seizure, (2nd Ed., 1987), section 10.1(c), page 609) notes that an administrative search does not require a search warrant since the burden of obtaining the warrant would interfere with the purpose and summary nature of the cursory search.  To require a search warrant “would totally frustrate the legitimate governmental purpose of airport screening procedures.” (People v. Hyde (1974) 12 Cal 3rd 158, at 178;  People v. Dooley (1976) 64 Cal App 3rd 502, at 512)


 

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