Last week’s post discussed how the federal government’s investigation into Alex Levin provides a compelling illustration of the Fourth Amendment’s exclusionary rule. This week’s story begins in 2010 when the New England Patriots acquired Rob Gronkowski and Aaron Hernandez in the NFL Draft. Together, Hernandez and Gronkowski became the first pair of tight-ends in NFL history to each catch five or more touchdown passes, while on the same team, in consecutive seasons. By 2011, the duo was setting records for yardage, receptions, and touchdowns by tight-ends, combining for 169 receptions, 2,237 yards, and 24 touchdowns in that season alone. In recognition of their success, the Patriots offered the dynamic duo the largest contract extensions in NFL history—locking Hernandez and Gronkowski into five-year contracts collectively worth more than $90 million.
But Hernandez’s on-the-field success masked a darker persona away from football. In 2013, just two years after signing his exorbitant contract extension, Hernandez was prosecuted for the murder of Odin Lloyd. By 2017, Hernandez was dead. This post peers into a small facet of the state’s initial investigation into the murder of Odin Lloyd; specifically, the search of Hernandez’s home shortly before his arrest. Although law enforcement had a warrant to search the house, officers seized items not listed in the warrant during its execution. Enter the plain view doctrine.
The plain view doctrine
The plain view doctrine initially presents as straightforward. After all, if officers see contraband, they can take it, right? Sort of. Often thought of as an “exception” to the need for a warrant to conduct a search of a person, house, paper, or effect, the plain view doctrine actually provides a justification for officers conducting a warrantless seizure of contraband in plain view. The doctrine applies when police: (1) observe an item from a lawful vantage point; (2) have a lawful right of access to the item itself; and (3) immediately know that the item is contraband.
Because police must have lawful access to the item to be seized, the plain view doctrine cannot legitimize a warrantless seizure on its own; rather, the search of the item itself must be lawful. Officers might lawfully observe contraband in any number of scenarios. For instance, law enforcement might discover an illegal item during either the execution of a search warrant or, alternatively, an in-home arrest warrant. Of course, it’s also possible that officers could view an illegal item while engaged in a lawful warrantless search—i.e., any scenario when a search warrant is not required. Finally, officers might view contraband in circumstances that do not implicate the Fourth Amendment’s protections at all. For example, a police officer walking the beat might see unlawful activity from their vantage point on a public sidewalk. Regardless of how the police lawfully observe contraband, the point is this: The plain view doctrine cannot stand on its own to make a seizure legitimate; the underlying search must also be valid.
Wholly apart from an officer’s lawful presence and access to an illegal item, police must also immediately know that the item to be seized is contraband. Or, as the Supreme Court noted in Arizona v. Hicks, 480 U.S. 321 (1987), law enforcement must have probable cause to believe that the item to be seized is unlawful. Thus, if an officer with lawful presence sees an item from a lawful vantage point and has probable cause to believe that it is contraband, the officer may seize the item.
Aaron Hernandez
Aaron Hernandez was born on November 6, 1989, in Bristol, Connecticut. Growing up, Hernandez’s father, Dennis, always believed that Hernandez would become a great athlete. He was right. In 2005, Hernandez was already rated the nation’s number one tight-end recruit as a junior at Bristol Central High School. But tragedy struck soon after Hernandez’s junior year when his father passed away suddenly from complications following hernia surgery.
On the field, Hernandez seemed unaffected by his father’s death, but off the field his behavior suggested otherwise. In 2007, while attending the University of Florida, Hernandez ruptured the eardrum of a restaurant employee who confronted Hernandez over his refusal to pay his bill. Hernandez was also a person of interest in a shooting in which five gunshots were fired into a car outside a Gainesville nightclub. Hernandez ultimately invoked his right to counsel and refused to talk to the police. Prosecutors elected not to file charges against Hernandez for either incident. Despite his off-field behavior at the University of Florida, the Patriots selected Hernandez as the 113th overall pick in the fourth round of the 2010 NFL Draft, offering him a cautious contract contingent on “keeping his nose clean.”
The crime
On Monday, June 17, 2013, at approximately 5:37 p.m., the North Attleboro Police Department in Massachusetts responded to a 911 call reporting that a dead body had been found in the area of 344 John L. Dietsch Boulevard in North Attleboro. Upon their arrival, the responding officers found a deceased male, later identified as Odin L. Lloyd, lying on the ground with several apparent gunshot wounds. After searching Odin’s pockets, officers located two sets of keys for a black 2013 Chevrolet Suburban bearing Enterprise Rent-A-Car labels. After inquiring with Enterprise, police discovered that the Suburban was being rented by one Aaron Hernandez of 22 Ronald C. Meyer Drive in North Attleboro.
Later that evening, officers traveled to North Attleboro in an effort to make contact with Hernandez at his home. While knocking on the door, the officers observed three large surveillance cameras permanently affixed to the exterior of Hernandez’s home. Although Hernandez answered the officers’ knocks, he immediately slammed the door shut after learning that the officers were conducting a death investigation—without inquiring who had died. Eventually, Hernandez emerged from the house and volunteered to have his girlfriend, Shayanna Jenkins, drive him to the police station so he could give a statement.
Jenkins drove away after dropping Hernandez off at the police department. Officers followed Jenkins out of the parking lot and stopped her vehicle a short distance from the station. As soon as the officers informed Jenkins that they were investigating Lloyd’s death, Jenkins began to cry. Jenkins informed police that Lloyd was dating her sister and that she last saw Lloyd sitting with Hernandez in the black Suburban two days earlier—June 15, 2013. Jenkins also told police that Hernandez had recently installed a video surveillance system in his home, which allowed Hernandez to monitor the front of his residence as well as the street.
The investigation
On Tuesday, June 18, 2013, investigators executed their first search warrant of Hernandez’s residence. Among other pieces of evidence, police seized digital video footage from the home’s surveillance system, which included a total of fourteen cameras both inside and outside of the residence. The surveillance showed that, at approximately 1:00 a.m. on June 17th 2013, Hernandez and two other males exited Hernandez’s residence and left in a silver Nissan Altima (police later discovered that Hernandez had also rented the Altima from Enterprise-Rent-A-Car). The surveillance then revealed that all three males returned to Hernandez’s home at approximately 3:27 a.m.
During that initial investigation, police also searched a dumpster outside of the Enterprise office. There they found a bottle of Vitamin Water, a piece of paper containing a colorful child’s drawing, a piece of chewed blue bubble gum, and a spent .45 caliber bullet casing. The Enterprise manager identified the items as being those she removed from the 2012 Nissan Altima that Hernandez returned on the morning of June 18, 2013.
On June 22, four days after executing the first search warrant, investigators sought a second warrant to search Hernandez’s home. Investigators alleged that probable cause existed to believe that the persons responsible for the murder of Odin were traveling in the Nissan Altima rented by Hernandez and that Hernandez, along with two unidentified males, were present at the location and time of Lloyd’s murder. Particularly relevant to this discussion, the warrant in part sought to search and seize the following:
Trace/Biological evidence, including blood, serums, skin, clothing, gunshot residue, fingerprints, firearms, ammunition, DNA, clothing as identified in Addendum ‘A,’ ‘B,’ and ‘C,’ shoes, footwear impressions, and any other evidence described in the affidavit to assist in the identification of a suspect or suspects, and that if any of the above evidence is found that it be seized as evidence and further analyzed and searched as necessary.
According to the warrant’s handwritten return of search, investigators seized several items during the second search of Hernandez’s home, including a white bath towel, a scale and dish found in a safe, and a bottle of Vitamin Water. Hernandez was later arrested for Lloyd’s murder on June 26, 2013. A grand jury formally indicted Hernandez on August 22, 2013, and he was held without bail.
Hernandez moves to suppress
On September 15, 2014, Hernandez moved to suppress the bath towel, scale and dish found in the safe, and bottle of Vitamin Water,arguing that such items were outside the scope of the June 22 search warrant. Hernandez asserted that because those items were not specifically mentioned in the search warrant, the Commonwealth could not prove the seized items were admissible under the plain view exception.
In response, the Commonwealth argued that the evidence was admissible under the plain view doctrine because there was a legally sufficient basis from which police could infer that all of the items Hernandez moved to suppress were plausibly related to criminal activity of which the police were already aware. In support of its argument, the Commonwealth pointed out that the seized bath towel was similar in appearance to a towel observed in video images of the occupants in Hernandez’s vehicle on the night of the murder. It also highlighted that the seized Vitamin Water bottle was similar to the one found in the Enterprise dumpster. Lastly, the Commonwealth contended that the scale and dish constituted illegal drug paraphernalia. Collectively, the Commonwealth asserted that seizure of the contested items was wholly consistent with application of the plain view doctrine.
How does the Aaron Hernandez investigation benefit students in the classroom?
Like the other defendants in this series, there is a lot going on in the Hernandez prosecution (for more on Hernandez, I recommend this podcast). One of the familiar tasks, then, is to focus students on what is relevant for purposes of this specific discussion. Accordingly, my goal is for students to learn the plain view doctrine through the state’s seizure of the white bath towel, scale and dish, and Vitamin Water bottle taken from Hernandez’s home during the execution of the June 22 search warrant. To that end, I find two facets the Hernandez investigation helpful. First, it makes for an excellent opportunity to address the scope of the plain view doctrine because the June 22 warrant was not written to include the items Hernandez sought to suppress. Second, the Hernandez investigation raises questions about how Supreme Court precedent drives officer incentives at the time police draft search warrants.
The scope of the plain view doctrine
For the plain view doctrine to apply, Supreme Court precedent requires that the “incriminating character” of the observed evidence be “immediately apparent.” The Hernandez facts present an excellent opportunity to explore how the seized items bore incriminating characteristics that were immediately apparent to the investigating officers. In his motion, Hernandez in part asserted that officers’ seizure of those items fell outside “the scope authorized by the warrant.” But, as I ask students, that happens in every plain view seizure, right? That is, officers seize something in plain view that they have probable cause to believe is contraband, but which is outside the scope of the warrant (or applicable warrant exception). What then distinguishes Hernandez’s argument, if anything?
Admittedly, I find Hernandez’s argument unpersuasive because his motion does little to explain why the particular plain view seizure in his case is problematic. Sure, he argues that seizure of the white bath towel, scale and dish, and Vitamin water bottle were not listed in the search warrant and therefore outside of its scope, but it’s not clear why the mere fact that those items were unlisted by the warrant necessarily means their seizure was unlawful. A stronger argument would have been that officers did not have probable cause to immediately believe that the items were seizable; that is, the items’ incriminating characteristics were not “immediately apparent.” On that point, I find it helpful for students to read this portion of the Commonwealth’s response:
The towel was similar in appearance to a towel observed in video images of the occupants of the defendant’s vehicle culled from a service station CCTV camera close in time to the murder and also similar to a towel found at the murder scene. The vitamin water bottle appeared to match a bottle found in a dumpster on the property of the Enterprise car rental agency where the defendant had obtained the vehicle used to transport the victim to the place where he was murdered. Refuse from the defendant’s vehicle had, according to an Enterprise employee, been placed in the dumpster. Finally, the scale and dish were plausibly viewed as drug paraphernalia. Material believed to be illegal drugs had been found at the scene of the murder and so any evidence of drug use by the defendant was highly relevant to the crime under investigation
With both sides’ arguments outlined, we turn to a discussion of the outcome. On October 10, 2014, Judge E. Susan Garsh granted Hernandez’s motion to suppress with respect to the towel, but otherwise denied the motion as to all other items seized from his home. The court elected to suppress the towel because, in the court’s words, there was “no evidence as to where in the residence the towel was located and in what condition. It is not clear, for example, whether the towel was folded with no stains visible and opened by the police or whether it was open when encountered.” Accordingly, the court concluded, “the Commonwealth has not shown that the police recognized the towel when first observed as plausibly related to Lloyd’s killing.”
Now, in terms of the dish and scale, the court concluded that their incriminating character “was plausibly related to criminal activity of which police were already aware.” Specifically, a text message on Lloyd’s phone, sent from Hernandez, indicated that Hernandez “was coming to ‘grab that tonight’ and needed ‘dat.’” The text message on Lloyd’s phone, combined with Jenkins’s allegations that Lloyd was a marijuana dealer and the blunt found at the crime scene, supported a reasonable inference that marijuana was the item to be picked up by Hernandez from Lloyd.
As for the water bottle, as noted above, officers initially found a Vitamin Water bottle in a dumpster on the property of the Enterprise agency where Hernandez rented the vehicle used to transport Lloyd to the murder scene. The fact that officers saw a bottle of “the same flavor and brand” inside Hernandez’s home during execution of the June 22 search warrant provided the bottle with sufficient “incriminating character” to make it seizable.
Although the state’s argument supporting seizure of the Vitamin Water bottle appears tenuous, the point of this discussion is to get students thinking about what makes an item’s incriminating characteristics immediately apparent. After all, application of the plain view doctrine, as in Hernandez’s case, often turns on whether officers have probable cause to immediately believe that a contested piece of evidence is contraband.
Warrant drafting incentives
Apart from generating a lively discussion about the scope of the plain view doctrine, the language of the June 22 search warrant allows for a separate and slightly more nuanced discussion about police incentives when drafting warrants. Before diving back into the Hernandez facts, consider first the Supreme Court’s decision in Horton v. California. In Horton, police were investigating a recent armed robbery. During that investigation, officers executed a search warrant of Horton’s home. The warrant authorized police to search for “the [robbery] proceeds, including three specifically described rings.” During the search, police discovered other incriminating evidence in plain view that was unrelated to the three rings described in the search warrant. In analyzing the warrant, the Horton Court commented, “if the three rings and other items named in the warrant had been found at the outset—or petitioner had them in his possession and had responded to the warrant by producing them immediately—no search for weapons could have taken place.”
I ask students to pause and think for a moment about that language in the context of officer incentives. Specifically, I ask them whether Horton incentivizes law enforcement to draft search warrants narrowly or broadly? Hernandez’s case sheds light on the matter. Unlike the specificity of the Horton warrant, the June 22 Hernandez warrant included “Trace / Biological evidence, including blood, serums, skin, clothing, gunshot residue, fingerprints, firearms, ammunition, DNA.” Considering the June 22 warrant against the backdrop of Horton’s limiting language, I next ask the class to consider whether it’s possible to find “Trace/Biological evidence” immediately or, in the words of the Horton Court, “at the outset”? If not, I then ask, when would a search of Hernandez’s home end for Horton purposes?
To me, Horton does incentivize officers to draft warrants in a manner similar to the Hernandez application—i.e., broadly. After all, the broader the warrant request, the less likely that officers will quickly find evidence listed in the warrant. Or, in other words, a more broadly drafted warrant often allows officers more time to search for incriminating evidence inside the home. As for when a search of Hernandez’s home would end for Horton purposes, I’m not sure it does if the warrant lists “trace evidence.” And that’s the point. Searching for “trace evidence” requires such a thorough investigation that the warrant’s authority could extend indefinitely.
As the Hernandez discussion winds down, I hope students emerge from it with a basic appreciation for how the black-letter law associated with the plain view doctrine applies to a well-known defendant. I separately hope that students pause to reflect on how Supreme Court precedent powerfully drives officers’ incentives when drafting search warrants.
Looking ahead
I’ll be back next week with thoughts on how to teach the basics of search warrants though the lens of the investigation into Steven Avery.
Comments