Chapter Four Other Search & Seizure Issues All Images © Microsoft Corporation Written by Karmel...

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


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


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:


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


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


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


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


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


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


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


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


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


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



Detention to obtain sample (con’t.) Only reasonable force may be used to

obtain the samples Surgical procedures require court order

or search warrant


Detention to obtain sample (con’t.) Only reasonable force may be used to

obtain the samples Surgical procedures require court order

or search warrant


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 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 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


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


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


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

Chapter Four Other Search & Seizure Issues All Images © Microsoft Corporation Written by Karmel...

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