Search and Seizure(for Peace Officers)

Fourth Amendment

• The Fourth Amendment to the U.S. Constitution provides that persons, houses, rights and effects (belongings) shall be secure from unreasonable searches and seizures, and requires probable cause for the issuance of warrants.

• Therefore the first part of the Fourth Amendment deals with the right of people to be free and protected from unreasonable searches and seizures. The second part sets out the warrant requirement and related procedures which officers must follow when obtaining a warrant.

Community Expectations

• Law Enforcement are expected to work within the limits of the Constitution

• What is protected– 1. privacy– 2. liberty– 3. possession of property

Article 1, section 13

• The first part of the Fourth Amendment deals with the right of people to be free and protected from unreasonable searches and seizures. The second part sets out the warrant requirement and related procedures which officers must follow when obtaining a warrant.

Unreasonable Searches

• These are the only type of searches that are restricted by this Amendment.

• The reasonableness of a search will be determined by a Court sitting long after the event. Therefore it is incumbent on the Officer to diligently work within the guidelines of current law and their Department regulations

Reasonable Expectations

• A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon by the government.

Terms

• Subjective expectation of privacy– Some action to protect the privacy of the property

• Objective reasonableness– Is the society ready to recognize the individual’s

expectation as reasonable

• Curtilage– A relatively small and well defined area around a

home to which private activities extend in which the homeowner has an expectation of privacy

Application

• Backyard- fenced: high expectation• Front yard- high shrubs: higher expectation• Driveway- gated, view obstructed: higher• Windows- covered, view obstructed: high,

open to the world: low• Walls-tall: high, walls-low: low• Fences-blocking view: high, chain link: low• Garbage- let’s discuss• Open fields: low (If officer is legally allowed to be there)• Over flights-if a FAA altitude: low

More

Motel room- you may listen in to conversations in the next room as long as you do not use electronic aids…

• Jail conversations over Jail phones • Recording conversations in Patrol cars• Thermal heat imagers, however, require a

warrant People v. Deutsch (1996) 44 Cal App. 4th 1224

“Standing” as to possessory rights

• Ownership

• Lawful possession

• Authority and/or

• Control of the area to be searched or the property to be seized

Probable Cause to Search

• Definition: Having enough facts or information to provide a fair probability or substantial chance, that the item sought is located in the place to be searched.

Application

• Must be able to articulate how and why the Officer has a fair probability to believe– A crime has occurred or is about to occur– Evidence pertaining to the crime exists and– The evidence is in the location they wish to

search

Warrantless Searches

• Are illegal

• However, Case law has created some exceptions– Cursory frisks (weapons only)– Consent searches– Searches pursuant to exigent circumstances– Searches incidental to custodial arrests– Probation and Parole searches (consent)

Cursory frisks

• Limited to outer clothing

• Articulate specific facts causing a belief that the person may be armed

• Groping not allowed

• If what is clearly recognized as contraband is found it may be seized

• Containers, only if they could reasonably contain a weapon

Consent Searches• Implied Consent

– Manifested by signs, actions or inactions, facts, or silence which raise presumption that consent has been given.

• Who May Give Consent?• Suspect• Authorized third person

– Spouse – Roommate, live in partner– Co-tenant– Babysitter– House guest

Problem

• Consent may be withdrawn at any time and you must stop the search!!!!!!!!!!

Exigent Circumstances

• An emergency situation requiring swift action to prevent:– Loss of life or in danger of loosing life– Serious damage to property – Imminent escape of suspect– Destruction of evidence

OFFICER CANNOT CREATE THE EXIGENCY!

Incidental to Custodial Arrests

• When taken into custody officer may search the suspect and the property within their immediate control.

• This must be contemporaneous with the arrest• The arm’s reach rule applies• You may do a protective sweep if you have

cause to believe there are other people hiding and that they could launch an attack

Probation and Parole Searches

• These are Fourth Amendment waiver searches

• As a condition of Probation or Parole the Court may require that the subject submit to search for particular items or things.

• These searches are limited in scope by the conditions of the subject’s Probation or Parole conditions

Motor Vehicle Searches

• This was formerly referred to as the ”Carrol Doctrine”

• The Officer must reasonably believe that there is probable cause to search the vehicle.

• Then a warrantless search can be made.

• This applies to any vehicle which is mobile or could reasonably be made mobile.

Plain View SeizuresVehicles

• Probable cause to believe the item is crime related.

• Be in a lawfully location to observe the item

• Have lawful access to the item

Protective Searches

• Limited to the passenger compartment for weapons.

• This is like the frisk search except it is of the vehicle and is to prevent the passengers from accessing a weapon.

• Containers maybe searched it the Officer reasonably believes it could contain a weapon

Consent Searches

The same as any other consent search.

Obtained from the person who has the authority to grant the search.

Incidental to Arrest

• Passenger compartment only

• All areas of the passenger compartment

• All containers in the compartment regardless of ownership

Vehicles as Instrumentalities

• When the crime is committed inside the vehicle

• When the vehicle is the means by which the crime is committed.

• The scope without a warrant is limited to areas where the officer believes evidence of the crime may be found.

• Many agencies prefer to impound the vehicle and secure a warrant.

Vehicle Inventories

• These are not searches as defined by the Courts.

• The purpose of the inventory is to account for all the personal property in a vehicle that is stored under Police control.

• The entire vehicle may be inventoried.

• If evidence of a crime or contraband is discovered it may be seized.

Bodily Intrusions

• As a person expectation of privacy is very high with regard to what is in their body a warrant is required to enter the body….usually.

• No person has the right to withhold evidence.

• The Fifth Amendment only protects what is said, not physical evidence in your possession.

Warrantless

• Under certain conditions items may be removed from the body of a person without a warrant– Consent– Implied consent for chemical testing

• Valid California Driver’s license• Lawfully arrested for a Vehicle Code violation• Reasonable suspected by the arresting officer for

being under the influence of drugs or alcohol

Use of Force/Bodily Intrusion

• If a person resists officers may use a reasonable level of force to carry out the search or seizure.

• Generally speaking no level of force is permitted that would shock the conscience.

• To prevent swallowing of evidence officers may exert a minimal amount of pressure on the neck. However, the pressure may not substantially interfere with blood flow or breathing.

Swallowed Evidence

• Options– 1. Detain the suspect and wait for it to

pass naturally- all thing come to pass

– 2. have a physician pump the suspect’s stomach or administer an emetic

to induce vomiting

Specific Circumstances

• Blood samples– Probable cause that the test results will show

evidence of a crime– The test will be conducted by medical

personnel in accordance with accepted medical practices

– ** Subject’s failure to participate in the tests they have no legal right to refuse may be used as evidence of consciousness of guilt

Specific Circumstances

• Fingerprints– A reasonable amount of force can be used to

secure the prints.– If placed under arrest the person has no legal

right to refuse fingerprint examination.• Such refusal could result in a Court finding• Prints taken under force are usually smeared and

of little use.

Specific Circumstances

• Handwriting- It impossible to secure a valid sample against the wishes of the suspect– Force is not an option

• Voice evidence- no legal right to refuse– Force is not an option