Post on 20-Jan-2016
Chapter Four
Other Search & Seizure Issues
All Images © Microsoft Corporation
Written by Karmel Tanner
May 2010
Entering to Conduct an Investigation Entering to Conduct an Investigation
No special right to enter premises in order to investigate a crime Entry to rescue people is permitted
No special right to enter premises in order to investigate a crime Entry to rescue people is permitted
Entering to Conduct an InvestigationEntering to Conduct an Investigation
“Knock-Notice” applies to entry of residences absent consent or emergency
1. Knock, ring doorbell or otherwise make presence known
2. State who is there and purpose (“Police! We have a warrant.”)
3. Wait long enough for a cooperative person to open the door
4. Enter - force may be used if necessary to gain entry
“Knock-Notice” applies to entry of residences absent consent or emergency
1. Knock, ring doorbell or otherwise make presence known
2. State who is there and purpose (“Police! We have a warrant.”)
3. Wait long enough for a cooperative person to open the door
4. Enter - force may be used if necessary to gain entry
Entering to Conduct an InvestigationEntering to Conduct an Investigation
Exceptions to “knock-notice” apply for Danger to officer Destruction of evidence Escape of suspect Rescue people in danger
Exceptions to “knock-notice” apply for Danger to officer Destruction of evidence Escape of suspect Rescue people in danger
Entering to Conduct an InvestigationEntering to Conduct an Investigation
Warrant is required to enter dwelling Arrest warrant is needed to enter suspect’s
home to arrest him/her Search warrant is required to enter anyone
else’s home to arrest the suspect Search warrant is required to enter for other
purposes UNLESS there is a recognized exception to the warrant requirement that applies
Warrant is required to enter dwelling Arrest warrant is needed to enter suspect’s
home to arrest him/her Search warrant is required to enter anyone
else’s home to arrest the suspect Search warrant is required to enter for other
purposes UNLESS there is a recognized exception to the warrant requirement that applies
1
You go to a house to execute a search warrant. As you come up you hear through and open window, "It's the cops go flush everything!"
Question
A) You need a warrant to enter the house
B) You do not need a warrant to enter the house
Plain View DoctrinePlain View Doctrine
Plain view doctrine has three key elements:
Plain view doctrine has three key elements:
Plain View DoctrinePlain View Doctrine
1. Objects must be where officers can observe them.
Officer can walk around, bend or use flashlight to make a better observation
Cannot pick items up to look for serial numbers, etc.
Finding items does not have to come as a surprise to the officers
1. Objects must be where officers can observe them.
Officer can walk around, bend or use flashlight to make a better observation
Cannot pick items up to look for serial numbers, etc.
Finding items does not have to come as a surprise to the officers
Plain View DoctrinePlain View Doctrine
2. Officers must be legally at the location where the observation was made.
Must have complied with “knock-notice”
May be at location to execute search warrant or for any other legal reason
2. Officers must be legally at the location where the observation was made.
Must have complied with “knock-notice”
May be at location to execute search warrant or for any other legal reason
Plain View DoctrinePlain View Doctrine
3. Probable cause is required to seize what was observed.
All facts known about item — both before discovery and as a result of finding it — can be used to establish probable cause
If probable cause not established, facts may be retained and used later
3. Probable cause is required to seize what was observed.
All facts known about item — both before discovery and as a result of finding it — can be used to establish probable cause
If probable cause not established, facts may be retained and used later
2
You approach a house on a noise complaint. During the discussion with the occupant, you notice a young girl. Later in the day you see a BOLO for a kidnapped girl who you think was the girl you saw. You can:
Question
A) Establish probable cause for going back to the house to look for the girl
B) You can establish reasonable suspicion for going back to the house to look for the girl
C) Not draw any conclusions based upon an earlier plain view
Abandoned Property Abandoned Property
No Fourth Amendment Issues Relate to Seizure of Abandoned Property No one has a privacy interest —
because no one possesses it
No Fourth Amendment Issues Relate to Seizure of Abandoned Property No one has a privacy interest —
because no one possesses it
Consent Consent
Three key points must be considered to determine if valid consent has been obtained for a search:
Three key points must be considered to determine if valid consent has been obtained for a search:
Consent Consent
1. Consent must be given voluntarily based on the totality of the circumstances Do NOT have to advise person of the right to
refuse to consent to a search Simulating a search warrant invalidates
consent — person seen as merely acquiescing to authority
Use of force or intimidation will invalidate consent — considered on a case-by-case analysis
1. Consent must be given voluntarily based on the totality of the circumstances Do NOT have to advise person of the right to
refuse to consent to a search Simulating a search warrant invalidates
consent — person seen as merely acquiescing to authority
Use of force or intimidation will invalidate consent — considered on a case-by-case analysis
Consent Consent
2. Consent to search is based on a person with apparent authority If person appears to have authority over the
area, officers are not responsible for reasonable mistakes related to whether actual authority exists
Privacy interest — not ownership — is required
2. Consent to search is based on a person with apparent authority If person appears to have authority over the
area, officers are not responsible for reasonable mistakes related to whether actual authority exists
Privacy interest — not ownership — is required
Consent
3. What can be searched based on the consent Person giving consent controls what can be
searched and how long the search may continue
Consent can be withdrawn at any time without justification
3. What can be searched based on the consent Person giving consent controls what can be
searched and how long the search may continue
Consent can be withdrawn at any time without justification
3
On a pullover a teenage girl asks what will happen if she does not give consent. The officer replies "You don't want to know!" This is:
Question
A) Legal, nothing was wrong
B) Illegal, the girl does not own the car and cannot give consent to search it
C) Illegal, the girl is being intimidated into giving consent
D) Illegal, the cop should have told her she did not have to give consent
Vehicle SearchesVehicle Searches
Vehicle Stopped Based on Reasonable Suspicion If there is reasonable suspicion that there
are weapons in the car, officers may search the passenger compartment for weapons
Vehicle Stopped Based on Reasonable Suspicion If there is reasonable suspicion that there
are weapons in the car, officers may search the passenger compartment for weapons
Vehicle SearchesVehicle Searches
Person in Vehicle Is Arrested May conduct thorough search of
passenger compartment Must be done contemporaneously with
arrest
Person in Vehicle Is Arrested May conduct thorough search of
passenger compartment Must be done contemporaneously with
arrest
Vehicle SearchesVehicle Searches
Probable Cause Search of Vehicle May search car as thoroughly as if judge had
issued a search warrant Restricted to portion of car that probable cause
indicates contains evidence Does not need to be done at the time the
vehicle is stopped — may tow car to impound lot and search it later
Do not need to show an emergency prevented officers from obtaining a search warrant
Probable Cause Search of Vehicle May search car as thoroughly as if judge had
issued a search warrant Restricted to portion of car that probable cause
indicates contains evidence Does not need to be done at the time the
vehicle is stopped — may tow car to impound lot and search it later
Do not need to show an emergency prevented officers from obtaining a search warrant
Vehicle SearchesVehicle Searches
Inventory of Impounded Vehicle Anytime a vehicle is impounded,
someone may inventory the vehicle and look for items subject to theft
Inventory of Impounded Vehicle Anytime a vehicle is impounded,
someone may inventory the vehicle and look for items subject to theft
Vehicle SearchesVehicle Searches
Search of Outside of VehiclePlain View Doctrine applies
must be legally at the location
Search of Outside of VehiclePlain View Doctrine applies
must be legally at the location
Vehicle SearchesVehicle Searches
Closed Containers Found in Vehicles May be opened if found during:
1. Search incident to arrest
2. Inventory
3. Probable cause search
Closed Containers Found in Vehicles May be opened if found during:
1. Search incident to arrest
2. Inventory
3. Probable cause search
4
On a pullover for speeding an officer sees a baggie of possible marijuana in a purse in the backseat of the car. He can:
Question
A) Legally seize the bag due to inventory rules
B) Legally seize the bag due to closed container rules
C) Legally seize the bag under plain view
D) NOT seize the bag without more PC
Blood, Breath and Urine TestsBlood, Breath and Urine Tests
No Fifth Amendment privilege to refuse to give samples of body fluids
No Fifth Amendment privilege to refuse to give samples of body fluids
Blood, Breath and Urine TestsBlood, Breath and Urine Tests
Fourth Amendment issues:
Detention to obtain sample Suspect can be detained in the field based
on reasonable suspicion Probable cause is required to transport the
suspect to police station or hospital to obtain sample No warrant is required if normal body functions
would destroy evidence during the time required to obtain a search warrant
Fourth Amendment issues:
Detention to obtain sample Suspect can be detained in the field based
on reasonable suspicion Probable cause is required to transport the
suspect to police station or hospital to obtain sample No warrant is required if normal body functions
would destroy evidence during the time required to obtain a search warrant
Blood, Breath and Urine TestsBlood, Breath and Urine Tests
Fourth Amendment issues:
Detention to obtain sample (con’t.) Only reasonable force may be used to
obtain the samples Surgical procedures require court order
or search warrant
Fourth Amendment issues:
Detention to obtain sample (con’t.) Only reasonable force may be used to
obtain the samples Surgical procedures require court order
or search warrant
Blood, Breath and Urine TestsBlood, Breath and Urine Tests
Due Process Issues : Cannot use methods that “shock
the conscience” in order to obtain
the sample
Due Process Issues : Cannot use methods that “shock
the conscience” in order to obtain
the sample
Misplaced Reliance DoctrineMisplaced Reliance Doctrine
Misplaced Reliance Doctrine allows : Use of conversation when person
who was a party to it tells police about what was said
Misplaced Reliance Doctrine allows : Use of conversation when person
who was a party to it tells police about what was said
Misplaced Reliance DoctrineMisplaced Reliance Doctrine
Misplaced Reliance Doctrine allows : Placing informant or undercover
officer in situation to hear what is said and report back to the police
Misplaced Reliance Doctrine allows : Placing informant or undercover
officer in situation to hear what is said and report back to the police
Misplaced Reliance DoctrineMisplaced Reliance Doctrine
Misplaced Reliance Doctrine allows : May carry tape recorder or
transmitting device to save conversations for use during investigation and trial Key: Person knew someone heard the
conversation and could report it to authorities
Misplaced Reliance Doctrine allows : May carry tape recorder or
transmitting device to save conversations for use during investigation and trial Key: Person knew someone heard the
conversation and could report it to authorities
Electronic Surveillance Warrant Electronic Surveillance Warrant
Required to use wiretaps or listening devices if no one who is a party to the conversation consented to the interception
Detailed procedures apply to obtaining this type of search warrant
Required to use wiretaps or listening devices if no one who is a party to the conversation consented to the interception
Detailed procedures apply to obtaining this type of search warrant
Closed Containers Closed Containers
Closed Container Rule: Officers may seize closed
containers based on probable cause
A search warrant is required to open the closed container
Closed Container Rule: Officers may seize closed
containers based on probable cause
A search warrant is required to open the closed container
Closed Containers Closed Containers
Exceptions to Closed Container Rule :
Searching of vehicles Incident to arrest Probable cause search Inventory of impounded vehicle
Booking searches
Exceptions to Closed Container Rule :
Searching of vehicles Incident to arrest Probable cause search Inventory of impounded vehicle
Booking searches
Closed Containers Closed Containers
Re-opening Closed Containers When private party who has
legal possession of a closed container opens it, the owner loses any privacy interest in the contents
Police may re-open package if it was closed or re-sealed prior to delivering it to the police
Re-opening Closed Containers When private party who has
legal possession of a closed container opens it, the owner loses any privacy interest in the contents
Police may re-open package if it was closed or re-sealed prior to delivering it to the police
Closed Containers Closed Containers
Re-opening Closed Containers Police may re-seal container
and conduct a “controlled delivery” Owner may regain privacy
interest if package is out of sight of officers for a considerable length of time
Re-opening Closed Containers Police may re-seal container
and conduct a “controlled delivery” Owner may regain privacy
interest if package is out of sight of officers for a considerable length of time
5
On booking a subject a tin box of mints is found and opened resulting in the discovery of crack cocaine. This action was:
Question
A) Illegal, the box did not need to be opened
B) Legal, it is a booking search
C) Legal, a PC search
D) Legal, and inventory
E) Illegal under closed container rules
Chapter Four
Other Search & Seizure Issues