Search & Seizure

Define “search” as used in the Fourth Amendment

Intrusion or prying by a law-enforcement person into an area where a person has a reasonable expectation of privacy.

What does “reasonable expectation of privacy” mean?

Did the person exhibit an Actual expectation of privacy?

If so, is the individual’s expectation one that society is prepared to recognize as reasonable?

Katz v United States

The government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justified relied while using the telephone booth, and thus constituted a “search and seizure” within the meaning of the fourth amendment.

United States v Jones

The government’s attachment of the GPS device to the vehicle and it’s used to monitor the vehicles movements constitutes a search under the fourth amendment.

Mapp v Ohio “exclusionary rule”

Any evidence found by police as a result of an illegal search and seizure cannot be used as evidence in a criminal trial.

Wong Sun v US “Fruit of the Poisonous Tree”

Any additional evidence that is found as a direct result of an illegal search and seizure will also be excluded.

If police actions and procedures do not comply with the fourth amendment…

The evidence obtained will be suppressed and barred from use in trial

Identify the items for which an officer may legally search 19.2-53

Instruments of crime

Fruits of crime

Contraband

Evidence of crime

19.2-52 Search warrants are issued by

Any judge, magistrate, or other issuing authority for the jurisdiction in which the place to be searched is located.

19.2-54 Search warrants must be based on

A sworn affidavit establishing probable cause that certain items are related to criminal activity, and that those items can be found in the place, which is to be searched

Information in an affidavit

1. Do not identify any confidential informants

2. Must Not be conclusory; Must be factual

3. State what officer knows and how he knows it

4. Informant needs corroboration

5. Must be current information

6. Under oath

Execution of a search warrant must be no later than

15 days of issuance

Service return and execution of search warrants, directed to an electronic communication service:

Any search warrant for records or other information pertaining to a subscriber to, or customer of, an electric communication service or remote computing service, whether a domestic corporation or foreign corporation, that is transacting or has transacted any business in the Commonwealth, to be executed upon such service, provider may be executed upon the service provider within or without the Commonwealth by…

• Hand

• United States mail

• Commercial delivery service

• Facsimile, or

• Other electronic means (email attachment)

Scope of Search under Search Warrant

A warrant which authorizes a search for specific items means that the Officer may legally search ONLY areas and containers, which could physically contain the items sought.

Seizure of Other Items

PLAIN VIEW: If feasible item is observed in an area or location where Officer has a right to search, he may seize this item, even though it was not listed in the search warrant.

Once all items listed in the search warrant are seized…

The search must end.

Detention of person during search warrant. Bailey v United States

To be detained, the person must be in the immediate vicinity and detention must serve some justified purpose, such as safety.

After a Search Warrant has been executed…

1. Date of execution and Time served

2. All seized property must be described on the Inventory Form

3. The Officer must prepare the inventory under oath

4. The warrant, affidavit, and inventory form must be filed in the Circuit Court within the jurisdiction where the search occurred, within 3 business days of execution.

5. The officer who seized the property or executed the search warrant, must sign the warrant, and he/she or his designee or agent, may file the warrant, inventory, and accompanying affidavit by delivering them in person or by mailing them (certified mail), return receipt requested, or delivering them by fax.

Searches without a Warrant

• Consent

• Search incident to arrest

• Protective sweeps for persons in a home

• Probable cause auto search

• Inventories to impound vehicles

• Plain View seizure

• Emergency and community caretaking function/Exigent Circumstances

• Crime scene cases

• Abandoned property

• Searches by private parties

• Open fields and cartilage

Consent Search Scope

Person can LIMIT consent

Consent can be REVOKED

Essential elements of a consent search

Must be voluntary - No threats, promises, or coercion

Can refuse

Bumper v North Carolina

Telling a person to go ahead and consent because if they don’t consent, the officer will simply get a search warrant is coercion

Consent must be valid, which means given by a person who has legal authority to consent.

Specific Situations for Consent

Joint ownership or occupancy of premises or property - either person can give consent.

Exclusive possession by one person over part of jointly owned or occupied property - Only the person with exclusive possession can consent

Landlord/Tenant Situation - Landlord or owner of premises or resident manager has no legal Wright to consent unless the tenant has been evicted or abandoned.

Burden of proof to show consent is valid and voluntary

On the Commonwealth to prove by a preponderance of the evidence

Search incident to custodial arrest

To protect Officer

To prevent defendant escape

To prevent destruction of evidence

Scope of search incident to arrest

Entirety of defendant

Area within defendant’s immediate control or reach of a weapon

Items in possession

Passenger compartment only if:

• The arrestee is within reaching distance of the passenger compartment at the time of the search or

• It is reasonable to believe that the vehicle contains evidence of the offense of arrest

Chimel v California

The scope of the search was unreasonable because the search went far beyond the petitioner’s person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him.

Riley v California and United States v Wurie

Barring any exigent circumstances, officers must obtain a search want to search a phone seized in a search incident lawful arrest

Protective Sweeps for persons in a home

1. Sweeps of closets and spaces IMMEDIATELY ADJOINING the place of arrest.

   1. AUTOMATIC; does not require reasonable suspicion or probable cause

   2. Precautionary measure to protect arresting officers from attack

2. Sweeps of other areas of the home to locate dangerous persons incident to an in-home arrest

   1. NOT automatic; requires RAS that there is an individual in the area to be swept that poses a danger to the officers on scene

   2. Quick and limited search to find PEOPLE

Probable Cause Auto Search

Carroll v United States: officer has probable cause to believe that auto contains items subject to seizure AND inherent mobility of a motor vehicle, in which evidence will be lost if officer is required to obtain a search warrant

Scope of a Probable Cause Auto Search

• The entire vehicle and contents

• All closed container containers

• As extensive research as could be made with a search warrant

• Search limited only to areas and containers where items could be physically located

• “Auto” includes motor motorhome (RV) - anything that is capable of being driven

• Search does not have to occur at the time of the seizure of the vehicle

Jones v Commonwealth

Florida v Harris

Florida v Jardines

A positive alert from a narcotics detection dog establishes probable cause to conduct a warrantless search of the vehicle and evidence seized during the search is admissible after a proper foundation has been laid to show the dog was sufficiently trained to be reliable in detecting narcotics

Harvel v Commonwealth

It is not illegal to sleep in one’s car and there was no evidence of the person to be intoxicated, the officer’s search was unreasonable

Inventories of Impounded Vehicles

To protect owner’s property

To protect police against claims of loss

To protect police from potential danger

Requirements to inventory Impounded Vehicles

1. Must be proceeded by a lawful impoundment. The inventory will be illegal if the impound was illegal

2. Each agency must have a procedure in place that guides impoundments and inventories

When we can legally impound a vehicle

Public Safety

Efficient Traffic Flow

Illegally parked vehicles

Trespass on Private Property

19.2-80.1 Upon arresting the driver of a vehicle, law enforcement officers must consider the following before impounding the vehicle

If another license driver is on the scene, allow the arrestee to designate a new driver. (No impound, no inventory).

Scope of a inventory impoundment search

Entirety of vehicle, including the

• Containers within that make a valuables

• Location of search may be at scene of the initial impound or a police station or in lot

• Written record of inventory

  • Vehicle’s contents

  • Failure to do so makes it look like pretext search

  • Absence does not accomplish rationale for research

Plain View Seizure

To allow police to seize an unanticipated item that is located in an area where they are lawfully present

Scope of Plain View Seizure

Item is in plain view

Item is observed from location area where officers lawfully present

Officer must have probable cause and item must be INCRIMINATING IN NATURE. It is immediately apparent to believe the item is contraband, that the item is fruits of crime, evidence, or instrumentality of crime.

Harris v Commonwealth

Pat down of passenger in vehicle for weapons, film canister discovered, removed, and opened.

Search of film canister not permissible because Officer did not search it for a weapon

Emergency and community caretaking function, or Exigeny circumstances

An imminent threat of loss of evidence may justify a warrantless search of the human body, premises, and movable vehicles.

Emergency Circumstances

Person in need of assistance

Imminent destruction of evidence

Risk of escape of dangerous suspect

Hot pursuit of felon

Emergency Doctrine

Contraband observed in plain view may be seized during and emergency search

Community Caretaking Function

If an individual is threatened with imminent harm, requiring officers to act which arose out of the automobile context or individuals in public and may, under appropriate circumstances, also justify warrantless entry and search of a private dwelling to render aid or emergency services

Verez v Commonwealth: the Virginia Supreme Court set forth 10 factors which may be considered when evaluating a warrantless entry

1. The degree of URGENCY involved in the time required to get the warrant

2. The officer’s reasonable belief that contraband is about to be removed or destroyed

3. The possibility of danger to others, including police officer left to guard site

4. Information that the possessors of the contraband are aware that the police may be on their trail

5. Whether the offense is serious or violent

6. Whether officers reasonably believe that suspects are armed

7. Whether there is a clear showing of probable cause at the time of entry

8. Whether the officers had strong reason to believe the suspects are actually present in the premises

9. The likelihood of escape, if the suspects are not swiftly apprehended

10. The suspect’s recent entry into the premises after hot pursuit

Welsh v Wisconsin

Consider the gravity of the underlying offense.

Probable cause does not create exigency

Mincey v Arizona

Police may make a PROMPT warrantless search of an area to see if there are any other victims or if the killer is still on the premises.

There’s no “murder scene exception” to the fourth amendment, and the warrantless four-day search of the petitioner’s apartment was unconstitutional

Abandoned Property

No reasonable expectation of privacy if item is voluntarily abandoned or discarded.

Searches by private parties (security guards, airline baggage handlers, or landlords)

If such searches uncover evidence, which is then turned over to law-enforcement, that evidence can be used or can form the basis to establish probable cause to get a search or arrest warrant.

What is Curtilage?

An area around the dwelling which is necessary, convenient, and habitually used by the family for domestic purposes.

Curtilage Factors

• Proximity to home

• Whether an area is enclosed

• Types of activities for which area is used

• Measures taken by the owner to guard the area from observation by people passing by

• Often associated with the yard immediately surrounding the home

What is an open field?

Areas outside the curtilage.

No reasonable expectation of privacy.

Knock and Talk

Police may enter the curtilage if there is an implicit invitation, just as a private citizen may approach absent a no trespassing sign, until they are asked to leave.

Searches of the curtilage

Curtilage may be searched if search warrant authorizes it; request to search the curtilage and any vehicles and outbuildings within the curtilage in search warrant affidavits for homes

Legal Consequences of an illegal search

Suppression of evidence case may be lost

Administrative liability

Sued for civil liability, federal and VA 19.2–59

Criminal liability and federal or state court