BASIC APPLIED 4TH & 5TH AMENDMENT LAW IN CONTEXT TO

Searches

Traffic Stops Interviews

FOURTH AMENDMENT “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 PERSON OR THINGS TO BE SEIZED.”

FIFTH AMENDMENT NO PERSON SHALL BE HELD TO ANSWER FOR A

CAPITAL, OR OTHERWISE INFAMOUS CRIME, UNLESS ON A PRESENTMENT OR INDICTMENT OF A GRAND JURY, EXCEPT IN CASES ARISING IN THE LAND OR NAVAL FORCES, OR IN THE MILITIA, WHEN IN ACTUAL SERVICE IN TIME OF WAR OR PUBLIC DANGER; NOR SHALL ANY PERSON BE SUBJECT FOR THE SAME OFFENSE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB; NOR SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF; NOR BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION.

WHAT IS SEARCH, SEIZURE, &

INTERROGATION LAW?

WHAT IS SEIZURE, SEARCH, & INTERROGATION LAW?

A MAJORITY OPINION OF THE COURT!

PROBLEMS WITH OPINIONS

PROBLEMS WITH OPINIONS

EACH OPINION WAS BASED ON A PARTICULAR SET OF FACTS

WHICH CAN’T BE DUPLICATED.• DIFFERENT TIME• DIFFERENT PLACE• DIFFERENT OFFICER• DIFFERENT CIRCUMSTANCE

HOW TO SUCCESSFULLY SEIZE EVIDENCE?

HOW TO SUCCESSFULLY SEIZE EVIDENCE?

OBTAIN A WARRANT

AFTERALL, THE FOURTH AMENDMENT WAS DESIGNED TO REQUIRE WARRANTS

HOW TO SUCCESSFULLY SEIZE EVIDENCE?

OBTAIN A WARRANT

OR

SUPPORT ALL ACTIONS BY PROVIDING SUFFICIENT INFORMATION TO SATISFY EVERY JUDGE SO THE EVIDENCE WILL

NOT BE LOST.

WHY?

WHY? A SEARCH PURSUANT TO A WARRANT IS

PRESUMED TO BE REASONABLE. THIS PRESUMPTION PLACES THE BURDEN ON THE DEFENDANT TO PROVE THE SEARCH WAS ILLEGAL.

WHY? A SEARCH PURSUANT TO A WARRANT IS

PRESUMED TO BE REASONABLE. THIS PRESUMPTION PLACES THE BURDEN ON THE DEFENDANT TO PROVE THE SEARCH WAS ILLEGAL.

A SEARCH WITHOUT A WARRANT IS PRESUMED TO BE UNREASONABLE. THIS PRESUMPTION PLACES THE BURDEN ON THE PEOPLE TO PROVE THE SEARCH WAS LEGAL.

3 LEVELS OF POLICE CONTACT

3 LEVELS OF POLICE CONTACT LEVEL 1: CONSENSUAL ENCOUNTER

NO FOURTH AMENDMENT SEIZURE

3 LEVELS OF POLICE CONTACT LEVEL 1: CONSENSUAL ENCOUNTER

NO FOURTH AMENDMENT SEIZURE LEVEL 2: INVESTIGATIVE DETENTION

FOURTH AMENDMENT SEIZURE LIMITED SCOPE AND DURATION MUST BE SUPPORTED BY REASONABLE

SUSPICION OF CRIMINAL ACTIVITY

3 LEVELS OF POLICE CONTACT LEVEL 1: CONSENSUAL ENCOUNTER

NO FOURTH AMENDMENT SEIZURE LEVEL 2: INVESTIGATIVE DETENTION

FOURTH AMENDMENT SEIZURE LIMITED SCOPE AND DURATION MUST BE SUPPORTED BY REASONABLE

SUSPICION OF CRIMINAL ACTIVITY LEVEL 3: ARRESTS

MUST BE SUPPORTED BY PROBABLE CAUSE

INVESTIGATIVE DETENSIONS

Fourth Amendment challenges can be avoided if a “stop & frisk” is maintained in a consensual atmosphere throughout an encounter.

Recorded documentation of the consensual encounter through audio/video recorders may be done to capture the words and conduct used to assist with constitutional scrutiny.

INVESTIGATIVE DETENSIONS

“Unprovoked Flight” by an individual upon seeing a police officer approaching in a “High Crime Area” will support reasonable suspicion to stop a person, but not necessarily a frisk of the person.

Illinois v. Wardlow, 528 U.S. 119 (2000)

State v. Weaver, 2007 UT App 292, 169 P.3d 760

EXCEEDING THE SCOPE OF THE STOP ONCE THE PURPOSE OF THE STOP IS

COMPLETED, THE OFFICER MUST END THE ENCOUNTER AND PERMIT THE DRIVER TO LEAVE

SEARCHES & SEIZURES WARRANTS ARE REQUIRED… HOWEVER, EXCEPTIONS DO EXIST

ADMINISTRATIVE WAIVER (CONSENT GIVEN) FORFEITURE EXIGENCY

ADMINISTRATIVE SEARCH The search must be for an

administrative purpose, rather than part of a criminal investigation to secure evidence to a crime. Airplane Boarding Searches Jail Booking Vehicle Inventories Vehicle Safety Checkpoints

WAIVER Knowing, Understanding, and

Voluntary giving up of a right. Consent Encounters – Frisks – Entry – Search Third Party Consents

Spouse – Parent – Child – Friend – Hotels – Business Records

FORFEITURE The loss of an expectation of privacy

through conduct Plain Sight – Plain Feel – Plain Odor Open Fields – Fly Over Jails Trash Out For Collection

EXIGENCY Imminent danger to life and property

Detentions Frisks Arrests Cars Hot Pursuit Crimes in Progress Community Caretaking

Medical Emergencies

SEARCHING THE PERSON:SEARCH INCIDENT TO ARREST

Why do officers search an arrestee? 1) Officer safety (to remove any weapons) 2) To seize any evidence on the Arrestee’s

person to prevent its concealment and destruction.

Chimel v. California, 395 U.S. 752 (1969)

SEARCH INCIDENT TO ARREST – CONT’D

Where can you search? 1) The arrestee’s person 2) The area from which the arrestee might

gain possession of a weapon or destructible evidence.

Chimel v. California

SEARCH INCIDENT TO ARREST – CONT’D

What about bags? Searches of backpacks and bags worn by

arrestees at the time of arrest have been upheld in other jurisdictions.

People v. Boff, 766 P. 2d 646, 648-649 (1988)

SENARIO #1

REFERENCE HANDOUT PROVIDED

SENARIO #1Key Issues

1) Was the seizure of the handgun lawful? 2) Was this a consensual stop, an

investigative detention, or an arrest? 3) If this was an investigative detention,

was it limited in scope and duration and was it supported by reasonable suspicion of criminal activity?

4) Can the handgun evidence be suppressed?

SENARIO #1Key Issues

1) Was the seizure of the handgun lawful? YES, AS IT WAS A CONSENT SEARCH.

2) Was this a consensual stop or an investigative detention?

INVESTIGATIVE DETENTION. Motioning someone to come over and

saying, “Hey come over.”

SENARIO #1Key Issues

3) If this was an investigative detention, was it limited in scope and duration and was it supported by reasonable suspicion of criminal activity? NOT SUPPORTED BY REASONABLE

SUSPICION. U.S. v. Dell 4) Can the handgun evidence be

suppressed? YES, AS THE STOP WAS NOT VALID, ALL

SUBSEQUENT EVIDENCE SEIZED WAS SUPRESSED. U.S. v. Dell

United States v. Dell Reasonable Suspicion Review

THREE OBSERVATIONS: 1) Defendant was in what the Officer

thought to be a high-crime area, particularly with regard to vehicle break-ins.

2) Defendant was peering into the windows of a legally parked vehicle.

3) Defendant walked away from the parked car upon seeing the patrolling Officer approaching.

United States v. Dell Reasonable Suspicion Review

1) No statistics or testimony to support the area as a high-crime area, other than the Officer commenting he had a 6 ½ year work history in the area.

2) Conduct observed was so innocuous and so very much in the realm of ordinary behavior that it would not lead a reasonable officer to suspect that a car break-in occurred or was about to occur.

3) Walking away on the sidewalk in the same direction that a police officer is travelling does not speak to anything criminal at all.

United States v. DellComments in the Court Opinion “The government’s argument that Mr. Dell’s

behavior was ‘inherently suspicious’ is conclusory, and skips the crucial part of reasonable suspicion analysis by failing to ask – answer – why the officer’s observations indicated suspicious criminal behavior.”

“The Officer never articulated why his observations led him to suspect criminal activity.”

“The Officer demonstrates no connection between his training and experience and the suspicion of illegality.”

United States v. DellDifferent Opinion Possible?

REMEMBER: SUPPORT ALL ACTIONS BY PROVIDING SUFFICIENT INFORMATION TO SATISFY EVERY JUDGE SO THE EVIDENCE WILL NOT BE LOST. Consensual contact option? Better articulation of reasonable suspicion Supporting information for high-crime area Relate training and experience to observations How was behavior not ordinary

SENARIO #2

REFERENCE HANDOUT PROVIDED

SENARIO #2Things to think about:

Type of stop and was the stop valid? Did it remain within the scope of the

stop? Was the use of the dog permissible? Was there sufficient probable cause to

search? Was there a sufficient nexus between the

drugs and suspect? “It’s not what you know, it’s what you can

prove.” Was the Miranda Warning properly given

and the subsequent confession admissible?

VEHICLE STOPS AND SEARCHES

VEHICLE SEIZURE A SHOW OF AUTHORITY CONSITUTES

A SEIZURE OF A VEHICLE: “FEW, IF ANY, REASONABLE CITIZENS, WHILE

PARKED, WOULD SIMPLY DRIVE AWAY AND ASSUME THAT THE POLICE, IN TURNING ON THE EMERGENCY EQUIPMENT FLASHERS, WOULD BE COMMUNICATING SOMETHING OTHER THAN FOR THEM TO REMAIN.” Lawson v. State

VEHICLE SEIZURE – CONT’DMISTAKE OF FACT AND/OR LAW

An officer must have reasonable suspicion of a traffic violation. If that reasonable suspicion is based upon a mistake of fact, the stop may still be valid.

As a matter of courtesy, the officer could explain to the driver in the defendant’s circumstance the reason for the initial detention and then allow them to continue on their way without asking them to produce their driver’s license and registration. U.S. v. McSwain

VEHICLE SEIZURE – CONT’DMISTAKE OF FACT AND/OR LAW

An officer must have reasonable suspicion of a traffic violation. If that reasonable suspicion is based upon a mistake of fact, the stop may still be valid.

As a matter of courtesy, the officer could explain to the driver in the defendant’s circumstance the reason for the initial detention and then allow them to continue on their way without asking them to produce their driver’s license and registration. U.S. v. McSwain

A mistake in law invalidates the stop:Failure to understand the law by the very person charged with enforcing it is not objectively reasonable. U.S. v. Tibbetts

VEHICLE SEIZURES – CONT’D

PRETEXTUAL CAR STOPSAn officer may follow a vehicle, wait for a traffic violation, then hope to see contraband in plain sight, smell contraband, or get consent to search.

The United States Supreme Court held that it was permissible for undercover officers to stop a car for a traffic violation in a high drug area even though the stop would not have been made but for the officer’s suspicions about dope. Wren v. U.S.

An officer who observes a traffic violation has probable cause to stop the vehicle regardless of the officer’s motivations or suspicions that are unrelated to the traffic offense. State v. Lopez

VEHICLE SEIZURE – CONT’D OFFICER MAY ORDER DRIVER AND

PASSENGERS OUT OF VEHICLE: Once a vehicle has been lawfully stopped for a

traffic violation, an officer may order the driver to get out of the car as well as any passengers to get out of the car without violating the Forth Amendment.

Pennsylvania v. MimmsMaryland v. Wilson

VEHICLE SEIZURESCOPE OF INVESTIGATION

VEHICLE SEIZURESCOPE OF INVESTIGATION

Once the stop is justified at its inception, the courts must then examine whether the stop was “reasonably related in scope to the traffic violation which justified it in the first place.” State v. Lopez

VEHICLE SEIZURESCOPE OF INVESTIGATION

Once the stop is justified at its inception, the courts must then examine whether the stop was “reasonably related in scope to the traffic violation which justified it in the first place.” State v. Lopez

If an officer is conducting a routine traffic stop, it is within the scope of the stop to request a driver’s license, vehicle registration, conduct a computer check, and issue a citation. State v. Lopez

VEHICLE SEIZURESCOPE OF INVESTIGATION

Once the stop is justified at its inception, the courts must then examine whether the stop was “reasonably related in scope to the traffic violation which justified it in the first place.” State v. Lopez

If an officer is conducting a routine traffic stop, it is within the scope of the stop to request a driver’s license, vehicle registration, conduct a computer check, and issue a citation. State v. Lopez

Law enforcement officers may routinely run warrant checks on traffic infraction detainees, provided the check does not unreasonably prolong the detention. United States v. Pena

VEHICLE SEARCHAUTOMOBILE EXCEPTION

PROBABLE CAUSE SEARCHES: “If a car is readily mobile and probable cause

exists to believe it contains contraband, the Fourth Amendment, permits police to search the vehicle without more.”

Maryland v. Dyson

VEHICLE SEARCHAUTOMOBILE EXCEPTION – CONT’D Police officers who have legitimately

stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant. This includes the trunk and any containers that may conceal the object of the search.

U.S. v. Ross

VEHICLE SEARCHAUTOMOBILE EXCEPTION – CONT’D Scope of Probable Cause Search:

“The search is defined by the object of the search and the places in which there is probable cause to believe that it may be found. For example, probable cause that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase.”

U.S. v. Ross

VEHICLE SEARCHAUTOMOBILE EXCEPTION – CONT’D

Search of passenger’s property in the car: Officers with probable cause to search a car may

inspect passengers’ belongings found in the car that are capable of concealing the object of the search.

“If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”

A passenger’s personal belongings, just like the driver’s belongings or containers attached to the car like a glove compartment, are “in” the car, and the officer has probable cause to search for contraband in the car.

Wyoming v. Houghton

VEHILCE SEARCHAUTOMOBILE EXCEPTION – CONT’D

DOG SNIFFS

VEHILCE SEARCHAUTOMOBILE EXCEPTION – CONT’D

DOG SNIFFS: Reasonable suspicion is not necessary to use

a drug dog as long as the dog was used during a valid seizure.

Running a drug dog around a vehicle while waiting for the results of a driver’s license check was not improper. United States v. King.

Reasonable suspicion of drug related activity is not required when the dog sniff is employed during a lawful seizure of the vehicle. United States v. Morales-Zamora.

VEHICLE SEARCHVEHICLE EXCEPTION – CONT’D

DOG SNIFFS: Plain Odor – The dog’s positive reaction can

give the officer probable cause to search. The officer has to establish the dog’s reliability and the officer’s (or trainer’s) expertise.

United States v. Place

VEHICLE SEARCHESARIZONA V. GANT, (2009)

When arresting an occupant of a vehicle, officers no longer have automatic authority to search a vehicle incident to the arrest. As previously allowed under New York v.

Belton, (1981)

ARIZONA V. GANT The following search rules now apply

when an occupant of a vehicle is arrested: Police may search a vehicle incident to a

recent occupant’s arrest ONLY IF the arrestee is within reaching distance of the passenger compartment at the time of the search.

OR There is reason to believe, based on specific

articulable facts, that evidence relevant to the crime of arrest might be found in the vehicle.

ARIZONA v. GANT The decision in Arizona v. Gant does

not alter other search authority: Officers may search the person of the arrestee

incident to arrest, for both evidence and weapons.

Officers may search the vehicle for weapons if they have reasonable suspicion that the arrestee or other occupants are dangerous and might access the vehicle to gain immediate control of weapons.

Officers may search the vehicle if there is probable cause to believe the vehicle contains evidence of criminal activity.

VEHILCE SEIZURE & SEARCH – CONT’DINVENTORY SEARCHES

Inventory searches: “It is well established that an inventory search

constitutes an exception to the warrant requirement. A warrantless search of an impounded vehicle….is permitted by the Fourth Amendment and Article I, Section 14 of the Utah State Constitution.”

State v. Hygh

VEHILCE SEIZURE & SEARCH – CONT’DINVENTORY SEARCHES

Inventory searches have three recognized purposes unrelated to discovery of evidence: 1) To protect an owner’s property while it is in

the custody of the police; 2) To insure against claims of lost, stolen, or

vandalized property; and 3) To protect police officers and the

community from danger.

State v. Johnson

VEHILCE SEIZURE & SEARCH – CONT’DINVENTORY SEARCHES

Utah’s two-step test to determine the admissibility of evidence seized pursuant to an inventory search: First, there must be a “reasonable and proper

justification for the impoundment of the vehicle.” State v. Hygh

Second, the inventory search itself must have been “conducted for inventory purposes, in a legal manner, and not merely as a fishing expedition for evidence.” State v. Sterger

VEHILCE SEIZURE & SEARCH – CONT’DINVENTORY SEARCHES

Utah courts have held that a reasonable and proper justification is statutory authorization. State v. Strickling. Under Utah law, “any peace officer, without a

warrant, may seize and take possession of any vehicle…that’s is being operated on a highway”… with registration that is suspended or revoked.”

If there is not a specific statutory authorization, the officer can still show a “reasonable and proper justification” for impounding the vehicle. Arrested driver, abandon vehicle on a roadway, etc. Department Policy

VEHILCE SEIZURE & SEARCH – CONT’DINVENTORY SEARCHES

The Fourth Amendment does not require an officer give a defendant an opportunity to make alternative arrangements. State v. Johnson

Specifically, when an officer has statutory justification for impounding the vehicle, whether the owner was consulted is irrelevant because the State has shown the impound was proper. State v. Strickling

VEHILCE SEIZURE & SEARCH – CONT’DCONSENT SEARCHES

SCOPE: When an officer suspects a vehicle may contain narcotics and the driver consents to a search, the officer may search anyplace where narcotics could be stored, including closed containers. Florida v. Jimeno Defendant can expressly limit the scope of the

search either prior to or during the search. A consent search contemplates a thorough

search (especially if looking for contraband) so that the removal of an ashtray and an air vent cover have been held permissible. United States v. Pena.

MIRANDA v. ARIZONA “Unless adequate protective devices are

employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.”

The United States Supreme Court provided a protective device to overcome the “police dominated atmosphere.” A four part warning:

Referred to as the Miranda Warning

MIRANDA WARNING 1) You have the right to remain silent. Do you

understand? 2) Anything you say may be used against you in

court. Do you understand? 3) You have the right to the presence of an

attorney before and during any questioning. Do you understand?

4) If you cannot afford an attorney, one will be appointed for you, free of charge, before any questioning, if you want. Do you understand?

* If an express waiver is to sought, simply ask, Do you want to talk about what happened?

MIRANDA WARNING

Miranda Warning

Two-ProngTest

Custody Interrogation

MIRANDA WARNINGEXCEPTION

Public Safety Exception: Questioning to obtain information regarding

an active threat to public safety may be done. Such as a gun hidden in a public place.

New York v. Quarles, 467 U.S. 649 (1984)

MIRANDA WARNINGNOT REQUIRED

Routine Motor Vehicle Stops: Stops are brief and take place in public. Are

not a police dominated atmosphere. Berkermer v. McCarty, 468 U.S. 420 (1984)

Field Sobriety Tests: No warning necessary before questioning for

on-scene field sobriety. Pennsylvania v. Bruder, 488 U.S. 9 (1988)

MIRANDA WARNINGNOT REQUIRED

Investigatory Stops: No warning needed for reasonable suspicion

based stop since they typically occur in a public place and are presumptively brief. Berkermer v. McCarthy, 468 U.S. 420 (1984)

MIRANDA WARNINGCHOSING TO REMAIN SILENT

Suspect invokes right to remain silent but not to counsel:

Different than an invocation of the right to counsel. Officers may re-initiate conversation with a suspect who only invokes the right to remain silent.

Michigan v. Mosley, 423 U.S. 96 (1975)

MIRANDA WARNINGCHOSING TO REMAIN SILENT

Evidence gained from re-initiated interrogations where: Suspect’s right to remain silent was honored at the

first interrogation. A significant amount of time has passed between

the first and second interrogation. The suspect was given the Miranda Warning again

prior to the second interrogation. Illegal tactics or pressure were not used to get the

suspect to speak.Michigan v. Mosley, 423 U.S. 96 (1975)*Opinion based on the fact the second interrogation was restricted to a crime not related to initial interrogation.

SENARIO #2Discussion

Thank You