Legal Search and Seizure Daytona State College School of Emergency Services Legal Concepts Search...

Daytona State CollegeSchool of Emergency Services

LegalSearch and Seizure

Legal ConceptsLegal Concepts

Search and Search and SeizureSeizure

Unit Two, Lesson One



ObjectivesObjectives

• Constitutional guarantees related to search Constitutional guarantees related to search and seizureand seizure

• Define SearchDefine Search

• Define SeizureDefine Seizure

• Define Search WarrantDefine Search Warrant

• Search warrant legal Search warrant legal requirementsrequirements




• Exclusionary ruleExclusionary rule• Good faith doctrineGood faith doctrine• Exceptions to the search warrant Exceptions to the search warrant

requirementrequirement• Abandoned propertyAbandoned property• Open FieldsOpen Fields• Plain ViewPlain View• Probable Cause SearchProbable Cause Search




• Exigent circumstances exceptionExigent circumstances exception

• Terry friskTerry frisk

• Plain fell doctrine Plain fell doctrine

• Search incident to arrestSearch incident to arrest

• Consent exceptionConsent exception

• Vehicle inventoryVehicle inventory




• Proper scope of a searchProper scope of a search

• Items that may be seizedItems that may be seized

• Florida Forfeiture and Contraband ActFlorida Forfeiture and Contraband Act



44thth Amendment Guarantees Amendment Guarantees

• Protect people from governmental intrusion Protect people from governmental intrusion in areas where there is a reasonable in areas where there is a reasonable expectation of privacyexpectation of privacy

• Prohibits searches and Prohibits searches and seizures unless they are seizures unless they are conducted with conducted with probable probable causecause and under and under reasonable circumstancesreasonable circumstances..



44thth Amendment Amendment



SearchSearch

• Government intrusion into a place where a Government intrusion into a place where a person has a reasonable expectation of person has a reasonable expectation of privacyprivacy



Search WarrantsSearch Warrants

• 44thth requires officers to obtain a search requires officers to obtain a search warrant where the individual has a warrant where the individual has a reasonable reasonable expectation of expectation of privacyprivacy

• Always consider Always consider getting a searchgetting a searchwarrantwarrant



Search WarrantSearch Warrant

• Court order authorizing a law enforcement Court order authorizing a law enforcement officer to conduct a searchofficer to conduct a search– Legal requirements

• Authorized and signed by a neutral magistrate or judge

• Based on an affidavit (sworn statement) sufficient to establish probable cause that evidence will be found ina particular place

• Information must comefrom reliable sources




• Totality of the circumstancesTotality of the circumstances– Probable cause considers all of the information

available

• ““Staleness” of the informationStaleness” of the information– Courts consider how old the

information is

• Do not wait, do not leave Do not wait, do not leave any information outany information out




• Describes the exact person or place to be Describes the exact person or place to be searchedsearched– Detailed description– Include photos– Include directions from a known landmark

• Warrant is only valid for the place namedWarrant is only valid for the place named• Describe in detail who or what is to be Describe in detail who or what is to be

seizedseized– “Drugs” is not enough



Apartment photoApartment photo1021 Eastlanding Road

Port Orange, FLBuilding 7

Apartment 121



Exclusionary RuleExclusionary Rule

• Evidence obtained by the government in Evidence obtained by the government in violation of the Constitution cannot be used violation of the Constitution cannot be used as evidence in courtas evidence in court– Purpose is to discourage

officers from violating rights during investigations



Good Faith DoctrineGood Faith Doctrine

• Applies to officers actions in conducting a Applies to officers actions in conducting a search with a search warrantsearch with a search warrant– If you execute a warrant that you believe to be

valid,– The court later determines

that there is a legal error,– Evidence may still be admitted



Search Warrant Requirement Search Warrant Requirement ExceptionsExceptions

• Plain ViewPlain View

• Mobile ConveyanceMobile Conveyance

• Destruction of EvidenceDestruction of Evidence

• Fresh PursuitFresh Pursuit

• Emergency SceneEmergency Scene



Search Warrant Requirement Search Warrant Requirement ExceptionsExceptions

• Stop and FriskStop and Frisk

• Incident to ArrestIncident to Arrest

• ConsentConsent

• InventoryInventory

• Administrative SearchesAdministrative Searches



Plain ViewPlain View

• Three conditionsThree conditions– Officer is lawfully present – Item is in plain sight– Probable cause to believe that the item is

contraband or evidence

• Text examples: Text examples: – Sawyer v State, 2003



Plain ViewPlain View

• Open FieldsOpen Fields– Item is in a location that is open to the public and

could be viewed by anyone– Item is readily recognized as contraband or

evidence



Mobile ConveyanceMobile Conveyance

• Probable cause requiredProbable cause required– Vehicles or other conveyances easily moved– Lower expectation of privacy– Probable cause required but can be searched

without a warrant• Carroll Doctrine, Carroll v U.S. (1925)

– Search entire vehicle and all compartments, based on Probable Cause

– Example – K-9 alert on a trunk



Destruction of EvidenceDestruction of Evidence

• Probable Cause RequiredProbable Cause Required

• Exigent circumstances permit searchExigent circumstances permit search– Emergencies

• Destruction of evidence

• Emergency scene

• Fresh pursuit

• Probable cause to believe that contraband or evidence is in imminent danger of destruction

– Officer cannot create the exigent circumstances



Fresh PursuitFresh Pursuit

• To enter a private place while chasing a To enter a private place while chasing a suspect requires:suspect requires:– Probable cause that the suspect committed a

serious crime– Immediate or continuous pursuit– Probable cause that the suspect is in the premises

that is to be entered

• Any contraband or evidence in plain view Any contraband or evidence in plain view can be seizedcan be seized



Emergency SceneEmergency Scene

• Probable cause requiredProbable cause required– Make warrantless entry when emergency is present– Public safety is paramount– Crime scene may still require a warrant



Stop and FriskStop and Frisk

• Terry v Ohio, 392 U.S. 1 (1968)Terry v Ohio, 392 U.S. 1 (1968)– Law enforcement officer may search the exterior

clothing of someone lawfully detained if the officer has reasonable suspicion to believe that the person is armed

• Frisk or pat-down is not a full searchFrisk or pat-down is not a full search

• Florida Stop and Frisk Law – 901.151 F.S.Florida Stop and Frisk Law – 901.151 F.S.– Case law downgrades the requirement from

probable cause to reasonable suspicion




• Terry stopTerry stop– Justified if the officer has reasonable suspicion that

the person is committing, has committed, or is about to commit a criminal offense

– Detention cannot last any longer than is necessary to dispel the suspicion

– Cannot be transported away from the immediate area

– Must be able to articulate the suspicion in specific terms




• Scope Scope – Limited to a pat-down of outer clothing, containers

and property carried• Not restricted to the body

• Passenger compartment of a car may be “frisked”

– If something is discovered, can open the door to a more extensive search




• ContrabandContraband– If the officer finds what he or she knows to be

contraband, it can be seized and the person charged

• Plain touch and feel doctrine

– Does not have to feel like a weapon– Does not permit the manipulation or groping of the

object to help identify it– Based on training and experience



Search Incident to ArrestSearch Incident to Arrest

• Lawful arrest and custodyLawful arrest and custody– May be searched without a warrant– Supreme Court recognizes two historical rationales

• The need to disarm a suspect in order to take him or her into custody

• The need to preserve evidence– United States v Robinson,

414 U.S. 218 (1973)




• Two requirementsTwo requirements– Lawful custodial arrest– Search is “substantially contemporaneous” (same

time) as the arrest• Ten minutes may be okay

• An hour later will not

– Exception• Officer safety

• Evidence preservation




• RequirementRequirement– Custodial arrest– May not search if the stop is for a traffic citation or

notice to appear




• ScopeScope– Within the immediate control of the arrestee

• Chimel v California, U.S. 752, (1969)

– May also include the vehicle in which the person was a passenger just before the arrest

• Thornton v U.S. 541 U.S. (2004)




• Entire passenger compartment ruleEntire passenger compartment rule– New York v Belton, 453 U.S. 454 (1981)– Driver arrested

• May search the entire passenger compartment including locked or unlocked containers therein

• May not search the trunk of a sedan

• May search the rear area of an SUV or van




• Strip searchStrip search– Normally not allowed, only under certain

circumstances• Must meet statutory requirements

• Includes written supervisory permission

• Addressed in 901.211 F.S. and agency policy



ConsentConsent

• Probable cause not requiredProbable cause not required– May ask anyone for permission to search

• Knowledgeable and voluntary

• Evidence seized may be admitted

• Why do people give consent?Why do people give consent?– Officer may assume they are not hiding anything

– May think that the officer will not find contraband

• Burden of proof is on Burden of proof is on the prosecutionthe prosecution



ConsentConsent

• VoluntaryVoluntary– Unequivocal– Specific– Intelligently given– More than mere acquiescence– Gauged against the reasonable person under

similar circumstances– Officers do not have to advise people that they

have the right to refuse



ConsentConsent

• Implied consentImplied consent– Limited circumstances

• Airline passengers

• Patrons attending events

• Visitors to courthouses and government buildings



ConsentConsent

• Third party consentThird party consent– Mutual access – Control over the area to be searched

• One may consent, but if another is present and objects, no search

• Georgia v Randolph, 547 U.S. 103 (2006)

– Passenger may not consent to the search of a driver’s vehicle unless he/she is the owner



ConsentConsent

• JuvenilesJuveniles– Consent of parent or guardian usually overrules

objection of the child– Child may consent for warrantless entry to the

parent’s home• Child shares the home

• Parent is not physically present

“Can you show me where Mommy and Daddy keep the drugs?”



ConsentConsent

• May be withdrawn at any timeMay be withdrawn at any time– Search must stop

• Consent may be limited in scopeConsent may be limited in scope– Example: May be limited to the passenger

compartment but not the trunk

• Other means may be used as applicable: Other means may be used as applicable: Overlapping exceptionsOverlapping exceptions



Inventory SearchInventory Search

• Probable cause not requiredProbable cause not required

• Not designed as a search for evidence, but Not designed as a search for evidence, but to protect property and protect the agency to protect property and protect the agency from claims of theftfrom claims of theft– When arrested, the property must be inventoried

and secured



Inventory SearchInventory Search

• Driver arrestedDriver arrested• Three optionsThree options

– Parked, locked and left at the scene (agency policy)

– Vehicle turned over to a friend or family member– Vehicle is impounded

• Inventory required• Requires written documentation• Done at the time of the impoundment• Done in compliance with agency policy and procedure



Administrative SearchAdministrative Search

• Probable cause not requiredProbable cause not required

• Students in schoolStudents in school

• People in government officesPeople in government offices

• Government propertyGovernment property

• Persons in certain businessesPersons in certain businesses

• InspectionsInspections

• Follow agency policiesFollow agency policies



Scope of SearchesScope of Searches

• Limited to the items being searched forLimited to the items being searched for

• When items are found, search endsWhen items are found, search ends

• Nature of the search depends on what is Nature of the search depends on what is being searched forbeing searched for– No elephants in the closets



Items That May Be Searched for Items That May Be Searched for and Seizedand Seized

• WeaponsWeapons

• Fruits of the crimeFruits of the crime

• Instruments of the crimeInstruments of the crime

• ContrabandContraband

• EvidenceEvidence

• Items defined by statuteItems defined by statute

• SuspectsSuspects



Florida Forfeiture and Florida Forfeiture and Contraband Act 932.701 F.S.Contraband Act 932.701 F.S.

– Authority to seize and forfeit contraband• Illegal to possess

• Used in the commission of a felony

• Purchased with profits from felonious activity

– Forfeiture• Civil action where the agency asked to court to transfer

ownership

• Agency sells the property at auction or uses it for LE purposes



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