1. THE DETENTION (TERRY) FRISK = PLAIN VIEW =WEAPONS WEAPONS/CONTRABAND

2. CONSENT (KNOWING + VOLUNTARY)

3. PROBABLE CAUSE NO PLUS EXIGENT CIRCUMSTANCES EXIGENT CIRCUMSTANCES SEARCH WARRANT WARRANTLESS COURT FAVORS PRESUMED UNREASONABLE =

BURDEN ON GOVERNMENT

SCOPE

ORDER OF ASSESSMENT

1. State Statute

2. State Constitution

3. Federal Constitution

STANDARD FOR SEARCHES

1. Reasonable Expectation of Privacy

2. “Reasonable” Defined:a) objective standardb) privacy expectation that society recognizes

3. Scope

RULES FOR PLAIN FEEL

1. Legitimate Basis for Handling Person or Object

2. Inadvertent Discovery3. Reasonableness of Handling for Context4. To Search Container Felt Need:

a) probable cause andb) search warrant orc) exigent circumstances ord) consent

4th AS APPLIED TO PERSONS

1. 4TH Applies to Person Seizure

2. Standard is Reasonableness

a) use of excessive force may be unreasonableb) standard is objective: reasonably objective belief

of officer at time and place of seizure

WHEN A PERSON IS “SEIZED”

1. Show of Authority or

2. Use of Force

3. Must Actually Produce the “Stop”

4. Reasonableness

4th AS APPLIED TO PROPERTY

1. 4th Applies to Seizure of Property

2. “Seizure” occurs when:a) meaningful interference with a property right

3. Due Process Applies - 14th

STANDING RULE

1. A Privacy Interest in Place Searchedor

2. A Possessory Interest in Items Seized3. State May Maintain Inconsistent Theories4. Statements of Defendant to Assert Right not

a Waiver (5th) 5. No Standing if Seizure From Third Party

PLAIN VIEW STANDARDS

1. NB: Real “Plain View” is not a search

2. No 4th Violation in Arriving at Place of View

3. Character as “Evidence” Requires Probable Cause

a) contraband, orb) evidence of crime

FLYOVERS

1. Reasonableness Standarda) does flyover interfere with normal use of

property?b) does flyover allow viewing of intimate

details of use of property?c) does flyover cause undue: noise, wind,

dust or threat of injury?

KNOCK AND ANNOUNCE1. Part of 4th Inquiry via 14th Due Process

2. Test - Reasonableness:a) peril to officersb) risk of loss of evidence

3. Best Practice:a) set out in affidavitb) endorsed in warrant

4. May be Reassessed:a) circumstances at time of service

5. Excessive Property Damage may be Unreasonable

6. Suppress Only if K&A Violations Produces Discovery of Evidence

Search Incident to Arrest Stop and Frisk

1. Legal Basis: probable cause to arrest2. Scope: all on person; within reach

a) if in vehicle, same rule; excludes passengers

3. Expanded Scope: full custody inventory4. Purpose: protect officer, prevent escape,

prevent loss of evidence5. Questioning: generally requires Miranda

a) exception:• volunteered statements• neutral; booking questions

b) limitation• non if rights; plus knowing and

voluntary waiver

6. Consent to search not required

1. Legal Basis: reasonable suspicion to stop2. Scope: patdown of outer clothing with

reasonable suspiciona) if in vehicle may remove passengers –

patdown; look at property to be returned

3. Expanded Scope: probable cause to expand4. Purpose: officer protection only

5. Questioning: generally Miranda not required

a) exception:• lengthy and accusatory

questioning; turns detention into arrest without probable cause

• coercive environmentb) limitation:

• reasonably related to what aroused officer’s suspicions

6. Consent to search may be requested if:a) detention has ended (express or

implied)b) consent is knowing and voluntary

Hiibel v. Sixth Judicial District542 US 177, 124 S Ct 2451 (2004)

(a law which requires detainee to identify self is not vague and does not violate

4th or 5th Amendments)Compare

Hiibel Kolender

1. identify only

2. lawful detention required (reasonable suspicion; reasonably related

3. 5th Amendment protections apply (per statute)

1. produce “credible/reliable ID” (vague)

2. no lawful basis for detention required

3. 5th Amendment protections apply

SMUGGLERS PROFILE

1. Travels to, from, or through “source city”2. Last to leave plane3. Claims no baggage4. Scans gate area5. Pays cash for tickets6. Stay at destination unusually short as

compared with flight length

LIMITATIONS ON PROFILE CONDUCT

1. Length of detention must be brief*exception: U.S. v. Montoya de Hernandez

2. Search is either:a) with consent - knowing; voluntary, orb) with probable cause plus search warrant or exigent circumstances

3. Scope:a) scope of consent, orb) scope of affidavit and warrant

INTRUSIVE PERSON SEIZURES – TEST

COMMUNITY INTEREST IN FAIRLY AND

ACCURATELY ASSESSING GUILT

V.

INDIVIDUAL’S HEALTH, SAFETY, PRIVACY,

AND BODILY INTEGRITY

STANDARDS FOR “SPECIAL NEEDS” SEARCHES

1. High state interest

2. Statute serves that interest

3. Warrantless inspection is necessary to regulatory scheme

4. Statute is adequate substitute for search warrant:a) informs of inspectionsb) scope of inspectionsc) how to comply d) who will conduct

5. Inspections are reasonable in time, scope and intensity

VEHICLE SEARCHES (ABSENT CONSENT)

1. There must be probable cause

2. Potential Mobility = exigent circumstances - no warrant required

3. Scope:

a) if probable cause for vehicle = vehicle plus all containers• passenger property may be searched if logical receptacle; need

not connect passenger to driver, or driver’s conductb) if probable cause for container = may search container

only• exception: if probable cause takes searcher beyond container

MOTORHOMES, MINIVANS, ET. AL.

1. MAY BE SEARCHED WARRANTLESS IF:a) IS BEING DRIVEN, ORb) CAPABLE OF BEING DRIVEN ON ROADWAY,

AND

c) IS STATIONARY AT A PLACE NOT REGULARLY USED FOR OVERNIGHT ACCOMMODATION

STANDARDS FOR VALID ROADBLOCKS

1. HIGH STATE INTEREST

2. PROGRAM IS EFFECTIVE IN ADVANCING INTEREST

3. DEGREE OF INTRUSION MINIMAL

STANDARDS FOR VALID VEHICLE INVENTORY

1. Legal basis for vehicle seizure

2. Clear departmental inventory policy

3. Officer must comply with policy

4. Search must be to protect property

5. Scope of policy:a) may be “all or nothing”b) may be some officer discretion

(container which could contain valuables)