SEARCH and SEIZURE ADMINISTRATION OF JUSTICE I.INTRODUCTION A.The Fourth Amendment to the United States Constitution 1.Both the United States and the State Constitution prohibit unreasonable searches and seizures of people, houses, and their personal property. a.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. (Fourth Amendment, U.S. Const.) b.A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. c.A seizure of property occurs when there is some meaningful interference with an individual's possessory interest in that property. d.A seizure of a person occurs: (1) when a peace officer physically applies force; or (2) when a person voluntarily submits to a peace officer's authority. 2.The Fourth Amendment is not violated unless a legitimate expectation of privacy is infringed. a.This infringement must be by the government or its agents; private citizens cannot violate the Fourth Amendment. b.It prohibits only unreasonable searches and seizures by governmental agents. (1)The search or seizure must be intentional, rather than merely an accident. B.The Exclusionary Rule and its application to seized evidence 1.When challenged, the legality of a search or seizure is normally decided prior to trial, either as part of the preliminary hearing, or at a separate pre-trial suppression motion, or both. a.The court must first determine whether the police acted legally, that is, whether the search or seizure was reasonable or unreasonable. b.If the court finds that the search or seizure was unreasonable, it must then decide whether the evidence should be suppressed. (1)Suppressed means ruled inadmissible, or excluded from evidence at the trial. c.In deciding whether or not to suppress the evidence, the court may look at the officer's state of mind (did he act in good faith?): (1) Would the evidence have been legally discovered anyway? (2)In 1984, the United States Supreme Court created a good faith exception to the exclusionary rule. (3)The exception has been limited almost exclusively to situations where the mistake was made by someone other than a police officer, and mostly in situations involving a warrant. (a)Example - the evidence is admissible in situations where a judge has issued a flawed search warrant. (b)Example - a clerk failed to notify police that an arrest warrant had been recalled. C.Warrantless searches and seizures - General considerations 1.Under most State Constitutions and systems of law, warrantless searches and seizures are presumptively illegal. a.They will be upheld only if the prosecutor can prove that the police conduct came within one of the few carefully circumscribed and jealously guarded exceptions to the warrant requirements. (1)Examples of these exceptions would include: (a) consent searches, (b) emergency searches because of exigent circumstances, and (c) searches conducted incident to a lawful arrest. II. Consensual encounters, detentions, arrests, and other problems relating to warrantless searches and seizures of persons. A.Consensual encounters - when police officers deal with a member of the public, the law will classify it as either a consensual encounter, a detention, or an arrest. 1.A consensual encounter is the least intrusive of these contacts with the public. 2.A consensual encounter is a contact between an officer and an individual that is strictly voluntary. a.The key element is that the person remains totally free to leave or not cooperate. b.Police must not restrain the person or exert any authority over the individual. c.The officer does not need any objective reason or justification for initiating this type of contact. B.Contacting potential suspects 1.Merely approaching someone is not a detention. 2.No Fourth Amendment privacy interests are invaded when an officer seeks a consensual interview with a suspect. a.Because of the nature of this type of contact the police officer may: (1)inquire about identity or request identification; (2)shine their spotlight on someone and ask him to remove his hands from his pockets; (3)merely ask if the person will step to the side and talk to him. 3.A police officer may approach an individual in a public place, identify himself as a law enforcement officer, and, in a non-coercive manner, ask the individual a few questions. a.As long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual. Would you mind answering a few questions? b.Officers must avoid sending any message that compliance with their request is mandatory or required. (1)It is always a good idea to ask for the person's cooperation. (2)It is an even better idea to actually tell the person that he is free to leave and/or not cooperate. c.If an officer starts exerting or asserting authority over the person by giving orders, making demands, displaying a weapon, or using a harsh tone the contact will be viewed as a detention. (1)The contact will be illegal unless supported by reasonable suspicion. d.Persistent loud knocking, a demand to open the door, or any other coercive circumstance can easily turn an otherwise consensual encounter into a detention requiring probable cause. C.Searches and seizures during consensual encounters 1.Officers have no authority to conduct any kind of a search during a consensual encounter unless the person gives them voluntary consent. a.It is always permissible to ask for consent to search. b.Even a limited search for weapons (a pat down or frisk) will turn the consensual encounter into a detention. (1)The detention is not legal unless an officer has specific facts making it reasonable to suspect the person may be armed or dangerous. 2.Once an officer has probable cause to make a custodial arrest, it then justifies a full search of the person incident to the arrest. D.Searches involving officer safety 1. An officer may always do whatever is reasonable to protect himself, even during a consensual encounter. a.Ordering a person as opposed to requesting him to keep his hands in sight. b.Ordering a person to remove hands from his pockets. c.These actions by the officer will not necessarily convert a consensual encounter into a detention. III.DETENTIONS AND STOPS A.Definition and purpose of detentions and stops 1.A temporary detention or stop is an exertion of authority that is something less than a full-blown arrest, but more substantial than a simple contact or consensual encounter. 2.A detention occurs whenever a reasonable and innocent person would believe he is not free to leave or otherwise disregard the police and go about his business. a.Such a belief may result from physical restraint, unequivocal verbal commands or conduct by the officer which clearly relate to the investigation of specific criminal acts. (1)Patting someone down constitutes a detention. 3.A person is not seized within the meaning of the Fourth Amendment unless he is somehow physically restrained or voluntarily submits to a peace officers authority. 4. Detention law accepts the risk that officers may stop innocent people. a.If during a detention the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way. B.Reasonable suspicion 1.In order for an investigative stop or detention to be valid, a reasonable suspicion that the person an officer is about to detain is connected with some possible criminal activity. 2.The court will decide if facts coupled with the officers training and experience were enough to make their suspicion objectively reasonable. a.An officer cannot make a valid detention based solely on a hunch, rumor, intuition, instinct or curiosity. b.Reasonable suspicion is a less demanding standard than probable cause. (1)It requires a showing of considerably less than preponderance of the evidence standard used for probable cause. 3. Specific factors the court looks at in deciding whether an officers suspicion was reasonable include: a.nighttime/high crime area. b.the time of night. c.fleeing from officers driving past. 4.Reasonable suspicion may not be based, in whole or in part, on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped. a.Race is not a factor that may be considered in calculating reasonable suspicion. b.Race or ethnicity is a proper factor to consider if it is part of a description of a specific suspect. 5.Flight of a suspect a.If an officer approaches someone or a group and one or more of them walks or runs away, and the officer gives chase, the act of chasing after the person does not constitute a detention. b.If officers yell stop or freeze, displays a weapon, or asserts their authority in some other manner, the courts hold there still cannot be a detention until and unless the suspect stops fleeing in response. (1)When an officer catches the suspect, or when he stops in response to the officers actions or commands a detention has occurred. (2) It will be legal only if it is supported by reasonable suspicion. c.The United States Supreme Court has refused to rule on two issues: (1) that flight alone will always justify a detention (2) that flight alone can never justify a detention. d.Instead, the United States Supreme Court has held that flight is merely one factor in the totality of the circumstances which a court will look at in determining whether reasonable suspicion existed. 6.Officer field experience a.The specialized knowledge an experienced narcotics police officer may render suspicious what would appear innocent to a layman 7.Officer personal safety a.The United States Supreme Court has held that it sometimes makes sense, from the standpoint of officer safety, to detain someone. (1) The detention is lawful, even though the officer did not directly suspect the detainee of criminal activity. b. Officer safety is a basis for permitting a limited search for weapons, also known as a pat down or frisk. 8.Information from other people a.Officers can properly base a detention on information they receive from an eyewitness, victim, fellow police officer, dispatcher, or -- if accurate -- other official channels. b.The law generally considers such persons or sources to be automatically reliable. c.An anonymous tip, by itself, will normally not be sufficient to justify a detention or pat down. (1)It can be justified if there is sufficient corroboration or other indications of reliability. C.Duty to stop and use of force to stop suspect 1.Whether an officer is detaining someone to investigate a reasonable suspicion or to issue a cite and release citation, the suspect has an obligation to stop. a.A suspect has no right to resist a lawful detention. 2.If a suspect does not stop, he is in effect obstructing or delaying the officer in the performance of his duties. a.An officer may use whatever physical force is necessary to make the suspect stop. 3.If a lawful detention or arrest has begun in a public place, a suspect may not avoid it by running inside a building. a. An officer has the right under the exigency or hot pursuit doctrine to follow the suspect into the building. D.Investigative actions Identification 1.Once officers have stopped or detained the suspect, they may take whatever investigative actions are reasonable under the circumstances. a.Common techniques include: (1) Questioning the suspect about his identity and conduct; (2) Contacting other persons to confirm the explanation, verify the identification, or determine whether the person is wanted; (3) Checking premises, examining objects or contacting neighbors or other individuals to determine whether a crime actually occurred; (4) Bringing the victim to the suspect for an in-field show-up. 2.Officers should be careful about conducting a search for identification, such as by reaching into a suspect's clothing, or looking through his wallet. a.Normally, this kind of intrusion (search) is not permitted during a detention, unless: (1) The officer has consent. (2) The officer is concerned about a possible weapon. (3) The officer has probable cause to arrest and/or search. (4) It is a last resort, the officer has already given the detainee the opportunity to cooperate by following lawful requests, and he has refused. E.Force and use of physical restraints 1.Officers should avoid using force and/or physical restraints, such as handcuffs or guns, during a detention situation whenever possible. a.These indications of custody may cause a court to view the detention as an arrest. 2.An officer can use whatever precautionary safety measures are reasonable under the circumstances. a.During a lawful detention, officers are authorized to take such steps as reasonably necessary to protect their personal safety during the stop. b.The use of force, handcuffs, etc. does not necessarily turn a detention into an arrest. F.Moving the suspect 1.An officer needs to be extremely careful about transporting a suspect to another location during a detention. a.Movement should be avoided unless it is truly necessary. b.Officers may move a suspect a short distance for their protection at anytime. 2.If an officer requires the suspect to accompany him to another location or interrogation room without a valid consent or compelling reason, it may turn a detention into an unreasonable arrest. a.If an in-field identification or show-up is desired, the officer should bring the victim or witness to the scene of the detention if at all possible. 3.As a general rule, the courts do not want the officer to transport the suspect to the victim. a.The major exceptions to the general rule are: (1)When there is probable cause to arrest the suspect. (2)The suspect gives voluntary consent. G.Time limitations 1.Time or the duration of a detention is another factor that officers must be aware of. a.A detention is temporary and may last no longer than is necessary to resolve the circumstances that justified its initiation. (1)A detention can be legal at its beginning and then become illegal if it extends beyond what is reasonably necessary under the circumstances. b.There is no set time limit for an investigative detention. c.The key is simply whether officers diligently took reasonable steps to confirm or deny his suspicions. 2.Increased level of suspicion a.On occasion, circumstances will come to light during a detention which will change its focus, justify extending its duration, or provide probable cause for arrest. (1)A persons demeanor who has been detained. (2)A persons conduct during the contact. (3)Observation of suspicious objects on and around the suspect. 3.Decreased level of suspicion a.If the suspect answers all questions about the suspicious circumstances satisfactorily, so that level of suspicion decreases or disappears, an officer must let the person go. H.Miranda warnings 1.The general rule is that officers do not have to give Miranda warnings to someone they have detained for: a.reasonable suspicion, or b. a cite and release offense, or c.inquiries -- especially about identity -- made at the scene of a crime. 2.Miranda warnings are never necessary unless an officer has a situation involving both custody and interrogation. a.A person who is being detained -- even though he is not free to leave -- is not normally considered to be in custody. b.If, at the time of questioning, the level of force used on the suspect is equal to what would be used during an actual arrest, then custody exists for Miranda purposes. I.Searches during detentions (pat-downs / frisks) 1.During a detention, officers have no power to conduct a general, full, exploratory search of the suspect. a.Exception: If the detainee is on parole or searchable probation, officers are entitled to search him without any suspicion of criminal activity. 2.Officers may conduct a pat-down or limited weapons search of someone they have detained: a. for weapons that may harm the officer. b. only of the detainees outer clothing c. only if they have specific facts that make them feel they are in danger. (1)Dealing with a suspected dangerous felon is by definition enough cause for a pat-down. 3. If officers discover a weapon, or a suspected weapon, they may seize it. a.If they are not sure whether the object is or is not a weapon, they are entitled to check it out, by extending the search further. 4.An officer may lawfully conduct a pat-down or a complete search for weapons or drugs if the officer has probable cause to believe such an object is on the person. a.Probable cause provides probable cause to arrest, and the search is then justified as incident to that arrest, even though the search comes first. J.Seizures during suspect detentions 1.The rule for seizures during detentions allows officers to seize any weapon or other hard object usable as a weaponwhich they lawfully discover during a detention or pat-down. a.The seizure of any non-weapon or non-threatening object will be illegal unless the officer has consent or probable cause to believe it is contraband. 2.Searches resulting from plain view, smell or touch. a.If officers see a weapon, contraband, or evidence of a crime in plain view during a detention, they are entitled to seize it without any further justification. (1)Observing something in plain view is not considered a search under the law. b. The same is true if officers become aware of contraband or evidence of a crime through their sense of smell, or (during a lawful pat-down) touch. 3.Containers a.If officers come across a container on the person they are detaining, they are always entitled to seize it and open it, as long as it is reasonable for them to think it is a weapon or contains a weapon. b. It is legal to seize a container and/or to open (search) it as long as: (1) the surrounding circumstances are sufficient to provide probable cause (not just reasonable suspicion) that the container holds contraband; (2)and, the probable cause was obtained lawfully during, and within the lawful scope of, the detention or limited weapons search. 4.Abandonment of property a.Generally, evidence that a suspect discards before or during a lawful detention may be seized, examined, and is admissible in court. b.Evidence that is discarded during an illegal detention is generally tainted and inadmissible. c.If an officer is chasing after a suspect at the time he discards the object; there is no problem in seizing the discarded object. IV.SEARCHES INCIDENT TO ARREST A.The area that may be searched in conjunction with an arrest 1.In conjunction with a lawful, custodial arrest, officers are entitled to search the arrestees person and area around him. a.This includes the area and objects that are under the suspects immediate control. b.Such a search is justified by the fact of the lawful, custodial arrest. 2.The area that may be searched incident to an arrest is limited to what is within the immediate control of the suspect. a.This means the area within arm's reach of the arrestee -- the nearby physical area from which he, in theory, could grab a weapon or destroy or conceal evidence. b.The search includes the arrestee's person, and can be a full search. c.It makes no difference what offense the person is being arrested for, as long as he is taken into custody. (1)Officers may search even if the crime is not one that involves physical evidence, fruits or instrumentalities of the crime. (2)Officers may search even if they have no factual basis for suspecting the person may be armed. d. An officer may search any containers (open or closed) which are on his person or under his immediate control. (1)This includes such things as a purse, fanny pack, or backpack. 3.It is proper to conduct a limited pat-down search for weapons when an officer is going to transport or travel in close proximity to the arrestee. a.It does not matter what the arrest is for. b.It can occur anytime an officer has facts making it reasonable to be concerned for his safety. B.The contemporaneous requirement 1.Under federal and state guidelines, a search will be valid as incident to an arrest only if the search and arrest were carried out contemporaneously. a.This means they must occur at the same location and at approximately the same time. 2.If the search takes place before the arrest, even momentarily, it will not be legal unless the officer already had probable cause to arrest at the time of the search. a.This means officers cannot bootstrap the situation by using what they find during the search to provide probable cause for the arrest. (1)The probable cause had to be there before the arrest was made to be legal. 3.If the arrest occurs first and the search comes second, the search must still occur contemporaneously. a.If an officer waits to search the arrestee or a container on him until some substantial time afterwards the search cannot be justified as incident to the arrest. (1) To be incident to the arrest the search must be conducted within a half hour or more of the arrest. V.EMERGENCY SEARCHES A.A true emergency situation or exigency will allow officers to search a person, just as it will allow them to search a house, vehicle or anything else. 1.This exception to the general warrant requirement is fairly narrow in scope. a.This situation generally arises with reference to people when an officer is giving assistance during a medical emergency. VII.CONSENT SEARCHES A.Consent is a valid way to conduct a warrantless search of a person, place, vehicle, or container. 1.An officer should always try to obtain consent when possible. a.There are problems an officer can encounter such as whether the consent was voluntary. 2.In general the law is well established that it is fully possible for a person to give a voluntary consent, even though the person has been detained or arrested and handcuffed. this concludes Search and Seizure