s earch and s eizure court systems and practices

SEARCH AND SEIZURECourt Systems and Practices

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SEARCH AND SEIZURE

4th Amendment:Protects citizens from unreasonable searches and seizures.

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FRISKFrisk – a pat down of the outer clothing of a person whom an officer has stopped or the search of a container to which a detained person may have immediate access .

Why would someone be frisked?

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FRISK (CONTINUED)

The purpose of a frisk is to protect the safety of the officer. (It is not a fishing expedition.)

What does an officer legally need to perform a frisk?

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FRISK (CONTINUED)Reasonable Suspicion

Officers have to be able to articulate why they feared for their safety and why they believed a person had a weapon on or about his or her person that could be used to cause injury or death.

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FRISK (CONTINUED)

What are some reasons to believe a person has a weapon?

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FRISK (CONTINUED)- The type of crime for which a person has been

stopped- Furtive movements- Appearance of the person (bulge)- Time and place (alone at 2 a.m.)- Proximity to a recent crime scene- High crime area

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FRISK (CONTINUED)

- The reputation of the subject- The officer's experience- The description of a wanted vehicle or person

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FRISK (CONTINUED)The object of a frisk is to locate weapons.

- Only reasonable force may be used- Only the outer clothing is touched unless

something suspicious is found- Evidence observed under the plain feel/plain

touch doctrine may be seized

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FRISK (CONTINUED)

What can be searched?

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FRISK (CONTINUED)

PersonCan be done on the entire body

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FRISK (CONTINUED)

VehiclesAnything within reach of the personThe glove box can be searched if it is unlocked and within reach of that person

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FRISK CASE LAWTerry v. OhioTerry Frisk – the right of an officer to frisk for his or her own safety

Michigan v. Long- It is permissible to search the passenger area of a

vehicle- Discovery of contraband can lead to more

searching14


SEARCH

Search –prying into hidden places for that which is concealed where there is a reasonable expectation of privacy

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SEARCH (CONTINUED)

What is required to conduct a search?

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SEARCH (CONTINUED)Search Warrant- A written order issued by a magistrate directed to

a peace officer to look for property- Contains probable cause

So what about the officer who searches your car on a traffic stop?

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SEARCHES WITHOUT A WARRANT(A COP IS ME)Abandonment

Consent

Open view/plain view

Public place

Inventory

Search incident to arrest

Mobile doctrine

Exigent circumstances

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ABANDONMENT

A person no longer has a right to privacy of something they have abandoned.

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ABANDONMENT (CONTINUED)A police officer must show evidence that the person took some action which indicated he or she no longer claimed ownership of the property.

1) Flight from a vehicle2) Discarded objects

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ABANDONMENT (CONTINUED)California v. Greenwood (1988)The Supreme Court said a person's trash is considered abandoned property and can be searched.

- Trash on the back porch would be in the curtilage of the house and not abandoned property

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CONSENT

1) Must be voluntary2) May be withdrawn at any point

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CONSENT (CONTINUED)For cars1) The driver must be free to go.

- Occurs when the driver's license is returned

2) The search must not be done in a police-dominated area.

3) If the driver revokes consent, the search must stop.

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CONSENT (CONTINUED)For residencesAny adult who has regular unrestricted access to a place may grant consent for that place, but not for the personal storage places of another.

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CONSENT (CONTINUED)

Husband/Wife – either spouse may consent to a search.Parent/Child – a parent can give consent to a child's property but the child cannot give consent to the parent's property.

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CONSENT (CONTINUED)

Landlord/Tenant – a landlord cannot give consent to search a paying tenant's premise.Roommates – a roommate can give consent to a search of the common areas and his room, but not the other roommate's personal storage.

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CONSENT (CONTINUED)

Host/Guest – a host can consent to the search of a nonpaying guest's room but not to their luggage.

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CONSENT (CONTINUED)

Other areasEmployer/Employee – an employer can consent to the search of an employee's work area but not to his or her desk drawers, locker, or personal tool box.

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CONSENT (CONTINUED)

Employee/Employer – an employee can give consent to a search of the premise if he is in charge of it for a substantial length of time.

ex. Manager, supervisor, etc.

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CONSENT (CONTINUED)School Official/Student – a school official who retains combinations to student lockers can give consent to search the lockers.

- No right to privacy- School officials can search student property if they have good cause or reason to.

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OPEN/PLAIN VIEW

A police officer must have a legal right to be where he is and it must be immediately apparent that the object is illegal.

When might this happen?

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OPEN/PLAIN VIEW (CONTINUED)

- Standing on a sidewalk- In a public parking lot- In a motel corridor- In view of a neighbor's property

etc.

Plain feel also applies during a frisk

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SEARCH OF OPEN FIELDS

An officer does not need a search warrant to search open fields.

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SEARCH OF OPEN FIELDS(CONTINUED)

An open field begins where the curtilage ends.

Curtilage – generally considered to be that area of open space surrounding a dwelling which is so immediately adjacent to the dwelling that it is considered part of the house

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SEARCH OF OPEN FIELDS(CONTINUED)Steps taken by the homeowner to protect the area from passerbys could make something curtilage.Ex. a fence

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PUBLIC PLACE

No expectation of privacy in most public places

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INVENTORYAn inventory is a legitimate law enforcement activity that is not a search, and which sometimes incidentally results in the discovery of evidence.

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INVENTORY (CONTINUED)- A detailed list of articles and property must be

kept.- Contraband found during an inventory may be

lawfully seized and used as evidence for charges.- An inventory must be done in every circumstance

to stand up in court.- It is not a fishing expedition.

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SEARCH INCIDENT TO ARREST

OVERRULED

Chimel v. California (1969) – the area within reach of the person is what can be searched after arrestNew York v. Belton (1983) – pertained to cars

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SEARCH INCIDENT TO ARREST(CONTINUED)

Arizona v. Gant (2009)The Supreme Court held that police 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.

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MOBILE DOCTRINE

An officer may conduct a warrantless search of a readily movable vehicle if1) There is probable cause to believe that evidence

of a crime is inside2) The officer cannot safely delay the search to

obtain a warrant

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MOBILE DOCTRINE (CONTINUED)

3) The search must be made immediately4) Any area the officer has probable cause to

believe contains contraband can be searched

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MOBILE DOCTRINE(CONTINUED)

Carrol v. U.S. (1925) – a vehicle can be searched without a warrant when there is probable cause and there is no time to obtain a warrant because it is mobile.

U.S. v. Ross (1982) – containers in the car can also be searched when Carrol v. U.S. applies.

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MOBILE DOCTRINE(CONTINUED)

A mobile home is not considered a vehicle when it is hooked up to utilities.

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EXIGENT CIRCUMSTANCES

Specific situations where the court has ruled that the need of the government to immediately provide for the safety and the welfare of the citizens over-rides the people's right to privacy, and a warrant is not first needed before searching.

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EXIGENT CIRCUMSTANCES(CONTINUED)

What are some examples of exigent circumstances?

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1) Emergency Circumstances- An unconscious person- An incoherent person- A medical aid situation- Shots fired- Fight noises or screams- Fires, explosions, or natural disastersetc.

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- The police do not have to speculate if the report is correct - The searching and seizing are confined to emergency activities, are warranted, and searching must cease once the emergency ends- A warrant is required for more searching after the emergency is over

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EXIGENT CIRCUMSTANCES(CONTINUED)2) Hot Pursuit

- In lawful fresh pursuit of a fleeing felon and a warrantless entry is made into any place

- No more than a 30-minute interruption in the pursuit

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3) Imminent Destruction- Entry into a house without a warrant to prevent the imminent destruction of evidence or contraband

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Other exigent circumstances- Securing a premise on alarm calls- Securing a crime scene for safety

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EXCLUSIONARY RULEFruit of the Poisonous TreeEvidence obtained after an illegal government action will be excluded from evidence. This pertains to1) Physical or tangible evidence2) Confessions3) Admissions4) Identification5) Testimony

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EXCLUSIONARY RULE CASES(CONTINUED)Escobedo v. Illinois – A defendant has

the right to a lawyer during police interrogation when in custody. This was determined to be a 6th amendment issue but Miranda v. Arizona overruled this case, making it a 5th amendment issue instead.

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EXCLUSIONARY RULE CASES(CONTINUED) Miranda v. Arizona – when a suspect

is in custody, he or she has to be advised of the right to a lawyer when talking to the police.

Douglas v. California – the indigent must be provided a lawyer if they cannot afford one on their own.

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EXCLUSIONARY RULE CASES(CONTINUED) Weeks v. United States – police must

have a warrant to seize items from a private residence. Any illegally obtained items are not allowed in federal court as evidence.

Mapp v. Ohio – evidence obtained in violation of the fourth amendment is not allowed in criminal prosecution in federal or state courts. 55

GOOD FAITHIf an officer performs an action based on information given to him that he believes is credible, then what he finds is not considered fruit of the poisonous tree.

A person giving information is considered credible unless proven otherwise.

There are exceptions. 56

RESOURCES

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Champion, Dean John, Hartley, Richard D. & Rabe, Gary A. Pearson Criminal Courts: Structure, Process, & Issues. (2nd edition) Prentice Hall, 2008.

Del Carmen, Rolando V. Criminal Procedure: Law and Practice. (8th edition) Wadsworth, 2010.

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