LD 16 - Search and Seizure (learning objectives)

Protections guaranteed by the Fourth Amendment

Protection again unreasonable search and seizures. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

the concept of reasonable expectation of privacy

A reasonable expectation of privacy can exist almost anytime and anywhere as long as individuals have indicated that they personally (subjectively) expect privacy in the object or area and their expectation is one which society is prepared to recognize as legitimate

Standing: how it applied to an expectation of privacy.

Standing exists only if a subject has a reasonable expectation of privacy in the place or thing that is searched or seized. Only a person with standing can challenge the search or seizure of property, based on Fourth Amendment protections. Standing generally is established by:

• ownership

• lawful possession

• authority

• control of the area searched or the property seized

probable cause to search related to 4th Amendment

Probable cause to search an area or object means having enough facts or information to provide a fair probability, or a substantial chance, that the item sought is located in the place to be searched.

Thus, probable cause requires something less than an absolute or even a near certainty, but something more than a mere hunch or suspicion.

To establish probable cause to search, peace officers must be able to articulate

how and why they have a fair probability to believe:

• a crime has occurred or is about to occur

• evidence pertaining to the crime exists

• the evidence is at the location they wish to search

How does the exclusionary rule apply to a peace officer’s collection of evidence?

“The fruit of the poisonous tree”
If a court finds a search or seizure is not reasonable and a person’s Fourth Amendment rights have been violated by the government, all items seized during the search could be ruled inadmissible or excluded as evidence at trial.

How does probable cause serves as a basis for obtaining a search warrant

In the search warrant context, probable cause to search means enough credible information to provide a fair probability that the object or person the peace officers seek will be found at the place they want to search.

Securing an area pending issuance of a search warrant

Under very limited circumstances peace officers may secure a residence while in the process of obtaining a search warrant. NEED EXIGENCY that the evidence will likely be destroyed or removed before a warrant can be obtained.

• An area may be secured pending issuance of a search warrant if the suspect has been arrested inside the location.

• An area may be secured pending issuance of a search warrant if companions of the suspect may destroy items sought upon learning of the arrest.
  

Time limitations for serving a search warrant

• Penal Code Section 1534 states that the search warrant shall be executed and returned within 10 days from issuance.

• Normally, a search warrant may be served only between the hours of 7:00 a.m.and 10:00 p.m.

• Nighttime service - show good cause:

  • nighttime service will decrease danger to the peace officers

  • a drug sale occurred at the search location at night

  • prompt execution might preclude murders

  • the property sought will likely be gone, sold, or removed by dawn

  • the stolen items are primarily perishable or easily disposable goods

elements for compliance with the knock and notice requirements when serving a search warrant

Knock and notice simply means that before entering a dwelling to serve a search warrant, officers must give notice to persons inside through certain actions.

To complete the prescribed procedures for knock and notice, peace officers must:

• knock or otherwise announce their presence

• identify themselves as peace officers

• state their purpose

• demand entry

• wait a reasonable amount of time

• if necessary, forcibly enter the premises

application of the Nexus Rule while conducting an authorized search

Under the nexus rule, officers may seize items not listed in the warrant when:

• the items are discovered while the officers are conducting a lawful search for the listed evidence, and

• they have probable cause to believe the item is contraband, evidence of criminal behavior, or would otherwise aid in the apprehension or conviction of the criminal

• Nexus means a reasonable connection or link between two or more items.

plain view seizure does not constitute a search

when an officer sees an item in plain view, from a place the officer has a lawful right to be, no search has taken place. The owner or possessor obviously has no reasonable expectation of privacy for items which are in plain view. Without an expectation of privacy, the owner or possessor has no Fourth Amendment protection.

legal requirements for seizure of items in plain view

Peace officers must have:

• probable cause

  • The incriminating character of the item must also be immediately apparent to the officer.

• a lawful right to be in the location

  • vantage point that does not violate an individual’s reasonable expectation of privacy.

• lawful access to the item

when warrantless searches and seizures are considered reasonable and legal

In addition to plain view seizures, these exceptions to the usual warrant

requirement include:

• cursory/frisk/pat down

• consent searches

• searches pursuant to exigent circumstances

• searches incident to custodial arrest

• probation/parole searches

cursory/frisk/pat search

Strictly limited search for weapons of the outer clothing of a person who has been lawfully detained. A cursory/frisk/pat search is a search for possible weapons only, not a search for contraband or other evidence.

For a cursory/frisk/pat search to be lawful:

• the person must be lawfully detained for an investigative purpose

• the searching officers must be able to articulate specific facts which caused them to reasonably believe the person is dangerous or may be carrying a weapon

*If an item is discovered that is immediately recognized as contraband, the officer may seize it.

consent searches

 consent to be valid, the consent must be:

• voluntary, and

• obtained from a person with apparent authority or to give that consent

If the consenting person expressly or implicitly restricts the search to certain places or things, officers must honor those restrictions. If the officers tell the consenting person what type of evidence they are searching for, the scope of the search must be limited to those places and things in which such evidence may reasonably be found.

searches pursuant to exigent circumstances

Exigent circumstances means an emergency situation requiring swift action to prevent:

• imminent danger to a person’s life or safety

• serious damage to property

• imminent escape of a suspect

• imminent destruction or removal of evidence

When exigent circumstances exist, peace officers are normally not required to comply with knock and notice procedures before entering.

Imminent danger to life

• Sick or injured person

• Child abuse

• Violent assault

• Domestic violence

Imminent danger to property

• Burglary

• Fire, chemicals, or explosives posing danger to people or property

Imminent Escape

• hot pursuit: attempting to detain or arrest, and the suspect flees into a private area.

• fresh pursuit: no chase, but rather information of whereabouts.

Destruction of evidence

• immediate danger of destruction or removal of crime-related evidence.

*Following the exigent circumstance, officers must vacate and may not reenter unless they have a warrant

searches incident to arrest

When a suspect is lawfully arrested

A search incident to a custodial arrest may include:

• a full search of the arrestee’s person

• containers on the arrestee’s person

• the nearby physical area that was under the immediate control of the arrestee (sometimes referred to as “within arm’s reach”)

To conduct a lawful search incident to arrest, the person must be taken into custody. A custodial arrest is one in which the person will be transported to another location or facility, such as a station, jail, detox center, juvenile hall, or school.

The search must be contemporaneous 

probation/parole searches

• Parole search conditions permit a search of the parolee’s person, residence, and any other property under their control (e.g., vehicle, backpack, etc.).

• Probation search conditions depend on the specific terms of the probationer, which may be as broad as parole conditions.

A search is limited to item(s) specified in actual search conditions. Such as, the probationer’s person, their residence, and any other property under their control. No reasonable suspicion of criminal activity or of a probation/parole violation is required.

Motor vehicle: Probably cause searches

If officers honestly believe they have enough information to obtain a search warrant for a vehicle from a magistrate, it is legal for them to go ahead and search the vehicle without a warrant.

Warrantless searches of vehicles based on the probable cause vehicle exception

• The vehicle must have been lawfully stopped, or otherwise be lawfully accessible

• Probable cause

may search any part of a motor vehicle as long as what they are searching for might reasonable be located there:

• the passenger compartment

• the glove compartment

• the hood

• the trunk

• any closed personal containers (including locked containers)

Motor vehicle: seizures of items in plain view

Peace officers must:

• have probable cause to believe the item is crime-related

• lawfully be in a location to observe the item

• have lawful access to the item

motor vehicle: protective searches

A protective search of a vehicle is a limited warrantless search of the passenger compartment of a vehicle for weapons.

• the driver or other occupant is being lawfully detained

• the officer reasonably believes, based on specific facts, that there may be a weapon (lawful or unlawful) or item that could be used as a weapon, inside the vehicle

Officers may search:

• only for weapons or potential weapons

• in the passenger compartment of the vehicle

• where the occupant(s) of the vehicle would have reasonable access to a weapon or item that could be used as a weapon.

Motor vehicle: consent seaches

Consent must be:

• voluntary, and

• obtained from a person with the authority (or apparent authority) to give that consent

Consent to search a particular area may or may not include searching any closed container within the area. If the container is locked the officer would need specific consent to open that container. 

Motor vehicle: searches incident to custodial arrest

Officers may search the passenger compartment of a vehicle if they have made a valid custodial arrest of any occupant of the vehicle and:

• the arrestee is unsecured (e.g. not locked in the police car, not handcuffed) and

• has reachable access to the vehicle and/or

• the officer has reasonable suspicion to believe evidence, pertaining to the crime for which the suspect was arrested, is to be found in the vehicle and/or

• the office has reasonable suspicion there is a weapon in the vehicle

NOTE: The search may be conducted before the occupant is actually placed under arrest as long as probable cause to arrest existed at the time of the search.

peace officers may search:

“the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest”

*NEXUS rule applies

Motor vehicle: instrumentality searches

A vehicle may generally be deemed an instrumentality of a crime if:

• the crime was committed inside the vehicle

• the vehicle was the means by which the crime was committed (e.g., hit and run)

NOTE: A vehicle is not an instrumentality merely because it is used during the commission of a crime.

Officers may search any part of the vehicle where the object(s) they are looking for might reasonably be located.

Scope and necessary conditions for conducting a vehicle inventory

A vehicle inventory is not a search for evidence or contraband. It is a procedure peace officers use to account for personal property in a vehicle that is being impounded or stored.

The purpose of a vehicle inventory is to protect:

• the property of a person whose vehicle has been impounded or stored

• the government agency from false claims of loss

Officer’s authority to seize physical evidence from a subject’s body:

- with a warrant

- without a warrant

• valid consent

• probably cause to arrest

• probably cause to search

• exigent circumstances

• a need that outweighs the intrusiveness

Using reasonable force to prevent a subject from swallowing or attempting to swallow evidence

Officers are permitted to exert minimal pressure on the neck area to prevent swallowing. However, such pressure may not prevent breathing or substantially impair the flow of blood to the person's head. In other words, no "choke holds" may be used, because they are too dangerous.

conditions necessary for legally obtaining blood samples

the affidavit must demonstrate only:

• probable cause that the test results will show evidence of a crime

• the removal will be conducted by trained medical personnel in accordance with accepted medical practices

• If blood is going to be taken without a warrant or consent, officers must

  have, in addition to probable cause to arrest and probable cause to search,

  exigent circumstances, which typically exist because of the evanescent nature

  of the evidence.

conditions for legally obtaining the following nonintrusive bodily evidence:

- fingerprints

- handwriting samples

Peace officers may obtain fingerprint samples from a person if they have that person’s consent or probable cause to believe the person was involved in criminal activity.

If the person has been placed under arrest, the person has no legal right to refuse a fingerprint examination.

Handwriting samples obtained by peace officers are admissible as evidence. The refusal to give a handwriting sample may be commented upon later at a person’s trial as consciousness of guilt.

The importance of a peace officer’s neutral role during an identification procedure

peace officers must be very careful to avoid any conduct before, during, and after the identification process which might be ruled suggestive.

Should always obtain as detailed and complete a description of the suspect as possible from the victim or witness before any identification process.

tell the victims or witnesses that they should keep an open mind, and that the person who committed the crime may or may not be among those present.

maintain an appearance of neutrality before, during, and after the actual viewing.

separate multiple victims or witnesses both before, during, and after the identification process.

*peace officers should never ask a victim or witness to state on a scale of 1-10 or as a percentage how sure they are that they are certain. Any identification presented as a scale may give a juror reasonable doubt about a defendant’s guilt.

Officer actions during field showup

A field showup is the viewing of a possible suspect by the victim or witness that commonly occurs in the field shortly after a crime has been committed.

A showup is appropriate only if it can be done a short time after the crime has taken place

An Officer should not move the subject to another location but rather should transport the victim or witness to the subject.

There are three exceptions to this general rule.

• The subject clearly and voluntarily consents to being moved

• Independent probable cause exists to arrest the subject and take the subject into custody

• It is very impractical to transport a witness to a possible suspect

Officer actions during photographic spread

A photographic spread (also known as a photographic lineup) is an identification procedure in which the victim or witness to a crime is asked to look at a number of photographs in an attempt to identify the suspect.

Does not have to take place within a short time of the crime. Can take place at any location

• Use the most recent photograph of the available suspect.

• Use all color or all black and white photographs.

• Try to use photographs that are all the same approximate overall size and depict the same approximate shots of the suspect (e.g., all close-ups).

• Use photographs of suspects of the same sex, race, and similar facial characteristics.

• If possible, use at least six photographs in the spread. Fewer than five photographs may make the selection impermissibly suggestive by limiting the options.

• Record the names, dates of birth, and other identifying information assigned to each photograph separately.

• Cover all identifying information on all photographs

Officer actions during custodial lineup

A custodial lineup (also known as a physical lineup) is an identification procedure in which the victim or witness to a crime is asked to look at a number of individuals within a custodial environment in an attempt to identify the suspect.

• Include at least six participants in the lineup, if possible.

• Choose participants of the same race, sex, and with similar characteristics.

• If the suspect wore any distinctive clothing, have all participants in the lineup wear similar clothing.

• If, prior to the lineup, the witness or victim describes the suspect as having a particular or distinguishing characteristic (e.g., facial hair, hair color, tattoos, scars, etc.), make sure that the others in the lineup also have this characteristic, if at all possible.

• Alert the victim or witness beforehand that the defense attorney may be present and noting all comments, intended or offhand, they may make during the identification process.

• If a defense attorney is present, request that a prosecutor be present also.