Search and Seizure LD 16 Flashcards
(132 cards)
1
Q
Search
A
occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon by the government
2
Q
Seizure of Property
A
occurs when there is some meaningful interference with an individual’s possessory interest in that property by the government
3
Q
Seizure of a Person
A
occurs when:
- a peace officer physically applies force
- a person voluntarily submits to a peace officer’s authority
4
Q
4th Amend. to U.S. Const.
A
the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures
and no warrants shall issue, but upon probable cause
supported by oath or affirmation
particularly
5
Q
Who does the 4th Amend. to U.S. Const. Limit?
A
Only the power of the Gov.’t, not private citizens, which could be sued in civil court for violations of privacy.
6
Q
Reasonable Expectation of Privacy
A
can exist almost anytime and anyplace as long as:
- individuals have indicated that they personally (subjectively) expect privacy in the object or area
- their expectation is one which society is prepared to recognize as legitimate
7
Q
Subjective Expectation of Privacy
A
a person’s state of mind demonstrated by affirmative action designed to protect their privacy (e.g., building a fence, closing window shades, locking a compartment, etc.).
8
Q
Objective Reasonableness
A
refers to whether society is prepared to recognize the individual’s expectation as reasonable
9
Q
Curtilage
A
the relatively small and usually well-defined area immediately around a residence to which the occupant has a reasonable expectation of privacy.
10
Q
Open Fields
A
- outdoor real property, outside the curtilage of the residence.
- areas which are so open to public view that the owner or possessor is deemed to have implicitly invited the general public to view the area.
- Because of the lack of a reasonable expectation of privacy in open fields, the protections of the Fourth Amendment do not apply.
- do not have to be either open or real fields to qualify.
11
Q
Overflight
A
- the flight of a plane or helicopter over a given area.
- Because of the lack of a reasonable expectation of privacy in an area that can be viewed from an overflight, the protections of the Fourth Amendment do not apply, as long as the aircraft is:
- at an altitude permitted by FAA regulations
- being operated in a “physically nonintrusive manner”
12
Q
Standing
A
- exists only if a subject has a reasonable expectation of privacy in the place or thing that is searched or seized.
- To challenge a particular search or seizure, a person must have a reasonable expectation of privacy in the place or thing that was searched or seized. - Only a person with standing can challenge the search or seizure of property, based on Fourth Amendment protections.
Standing generally is established by:
ownership
lawful possession
authority
control of the area searched or the property seized
13
Q
Probable Cause to Search
A
- having enough facts or information to provide a fair probability, or a substantial chance, that the item sought is located in the place to be searched.
- requires something less than an absolute or even a near certainty, but something more than a mere hunch or suspicion.
- must be able to articulate how and why they have a fair probability to believe:
a crime has occurred or is about to occur
evidence pertaining to the crime exists
the evidence is at the location they wish to search
14
Q
The Exclusionary Rule
A
- The Fruit of the Poisonous Tree
- inadmissible and excluded evidence at trial
- from all items seized during a search and seizure
- which is ruled unreasonable and a violation of a person’s Fourth Amendment rights by the government
15
Q
Search Warrant
A
an order in writing, in the name of the people
signed by a magistrate
directed to a peace officer
commanding the officer to search for an individual or individuals, a thing or things, or personal property
in the case of a thing or things or personal property, to bring the same before the magistrate
16
Q
Benefits of Obtaining a Search Warrant
A
- the courts have found searches and seizures to be reasonable and therefore lawful when authorized by a valid warrant.
- The burden is on the defendant to prove the illegality of any search executed with a search warrant.
17
Q
PC 1524(a)(1)
A
grounds for search warrant when property or thing was stolen or embezzled
18
Q
PC 1524(a)(2)
A
grounds for search warrant when property or thing was was used as the means of committing a felony
19
Q
PC 1524(a)(3)
A
grounds for search warrant when property or thing is in the possession of any person with the intent to use it as a means of committing a public offense, or in the possession of another to whom the item may have been delivered for the purpose of concealing it or preventing its being discovered.
20
Q
PC 1524(a)(4)
A
grounds for search warrant when property or thing constitutes evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.
- to seize evidence such as rent receipts to show possession or control of the premises or computers
21
Q
PC 1524(a)(5)
A
grounds for search warrant when property or thing consists of evidence that tends to show that sexual exploitation of a child (Penal Code 311.1), or the possession of matter depicting sexual conduct of a person under the age of 18 years (Penal Code 311.11), has occurred or is occurring.
22
Q
PC 1524(a)(6)
A
grounds for search warrant when property or thing when there is a warrant to arrest a person.
23
Q
PC 1524(a)(13)
A
grounds for search warrant when property or thing is a sample of blood that constitutes evidence that tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code
- and the person from whom the sample is being sought has refused an officer’s request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will be drawn from the person in a reasonable, medically approved manner.
24
Q
PC 1524(a)(15)
A
grounds for search warrant when property or thing are controlled substances or a device, contrivance, instrument, or paraphernalia used for unlawfully using or administering a controlled substance pursuant to the authority described in Section 11472 of the Health and Safety Code.
25
PC 311.2
presents additional authority to obtain a search warrant to seize child pornography.
26
Content of Search Warrant
The names of all those who have sworn that the facts presented as probable cause are true
The statutory grounds for issuing the warrant
Descriptions of the places and/or persons to be searched
Descriptions of the things or property to be seized
The magistrate’s signature
The date issued
An indication by magistrate if nighttime service is authorized
- PC 1529 & 1533
27
Reasonable Inference
the act of drawing a conclusion from a fact; it is similar to making a presumption (e.g., seeing smoke and inferring there is a fire).
28
Direct Evidence
evidence that proves a fact directly, without an inference or presumption (e.g., the sale of a controlled substance to an undercover officer).
29
Circumstantial Evidence
evidence that proves a fact indirectly, that is, personal knowledge or observations from which deductions must be drawn by the jury or court (e.g., partial six-pack of beer found on the car seat supports inference that someone in the car has been drinking).
30
Securing Area Pending Search Warrant
probable cause to search and exigencies
- belief, based on the surrounding circumstances or information at hand, that the evidence will likely be destroyed or removed before a search warrant can be obtained.
An area may be if the suspect has been arrested inside the location.
An area may be secured if companions of the suspect may destroy items sought upon learning of the arrest.
- Refusal of consent to enter, by itself, does not provide justification to secure the premises pending issuance of a search warrant.
31
Detaining Suspects Pending Search Warrant
If the place being secured is occupied when peace officers enter,
- need probable cause to arrest if they take the suspect away or keep the suspect there for an unreasonable period while the warrant is obtained.
- Without probable cause to arrest an individual, peace officers are only entitled to detain the suspect temporarily - while they determine the person's involvement.
32
PC 1534
search warrant shall be executed and returned within 10 days from issuance
- beginning with the day after the warrant is issued and running until midnight of the 10th day, - no exceptions for weekends or holidays.
- felony for officer to willfully disclose search warrant before execution to prevent search or seizure
33
Failure to Execute Timely Search Warrant
If the 10-day period has expired, peace officers must either:
obtain a new warrant
resubmit the expired warrant so it may be reissued and revalidated
34
PC 1537
The return of the warrant means returning the warrant and a written inventory of the property taken to the magistrate
- The rule for return of the warrant is slightly different than for execution. If the 10th day falls on a weekend or holiday, then peace officers are entitled to postpone returning the warrant until the next business day.
- A late return will not normally invalidate the warrant or result in suppression, particularly if it happens unintentionally, unless the defendant can show prejudice.
35
Search Warrant Time of Service
Normally, a search warrant may be served only between the hours of 7:00 a.m. and 10:00 p.m.
36
Search Warrant Nighttime Service
If peace officers can show good cause, the magistrate may, at the magistrate’s discretion, insert a direction in a search warrant that it may be served at any time of day or night.
The main point of the good cause requirement is to ensure that the request for nighttime service is specifically brought to the attention of the magistrate so that the magistrate will have to make a conscious decision whether such a particularly abrasive intrusion is appropriate. Examples of good cause include situations where:
nighttime service will decrease danger to the peace officers
a drug sale occurred at the search location at night
prompt execution might preclude murders
the property sought will likely be gone, sold, or removed by dawn
the stolen items are primarily perishable or easily disposable goods
As long as the search begins before 10:00 p.m., no nighttime authorization is necessary, even though the search may continue on well beyond that hour.
37
PC 1531
Knock and Notice
- before entering a dwelling to serve a search warrant, officers must give notice to persons inside through certain actions.
knock or otherwise announce their presence
identify themselves as peace officers
state their purpose
demand entry
wait a reasonable amount of time
if necessary, forcibly enter the premises
- no legal need for knock and notice at inner doors, but may be tactically wise
38
Wait/Refusal Requirement Search Warrant
specific requirement that before forcing entry, peace officers must be refused admittance.
Refusal may be based on:
a verbal statement
individual conduct
the passage of a reasonable amount of time
- amount of time that is considered reasonable will depend on all the circumstances.
- Approx. one minute would be a safe period in most cases, but it can be less, especially if peace officers know that someone is inside and awake.
39
Knock and Notice Exceptions
allows peace officers to enter private property unannounced if they can demonstrate that compliance with the knock and notice requirements would be futile, or that compliance could result in:
harm to the officers or other individuals (e.g., hostages
the destruction of evidence
- judge cannot bar a knock and notice exception beforehand
- after knock and notice exception judge will review legality of exception
40
Ruse Entry
officers may use a false identity, a ruse or trick to obtain consent to enter as long as they already have a judicially-authorized right to enter, i.e.,
a search warrant.
41
PC 1535
- If the occupant is present, peace officers should show the occupant the original warrant and give the occupant a copy.
- If no one is home, a copy of the warrant may be left in a conspicuous place. Likewise, officers must leave behind a detailed list of the property taken, whether anyone is home or not. (Penal Code Section 1535)
- In CA there is no requirement to present a copy of the warrant to the occupant. Therefore, failure to do so will not result in the suppression of any evidence seized.
42
Scope and Specificity of Search Warrant
Search warrants must include specific:
statutory grounds for issuance
identification of the area(s) or person(s) that may be searched
identification of the item(s) to be seized
43
Search Warrant Detentions/Searches
- may detain and frisk/pat search persons who are present and have demonstrated a connection with the premises.
is already inside the premises
has a key to enter the premises freely
enters the premises without knocking
- mere arrival, by itself, at premises where a search is being conducted does not provide enough connection to justify a detention, let alone a cursory/frisk/pat search.
- If searching a commercial establishment, peace officers may not detain everyone who is present, only those persons who appear connected to the suspected criminal activity.
44
Search Warrant Containers
When a warrant authorizes the search of a residence, vehicle, or person, it automatically authorizes the search of any thing, place, or container inside that residence or vehicle, or on that person, where the object of the search might be located.
- If, however, the warrant was not for a general area, but instead was for a particular container, that container would also have to be described as completely as possible in the warrant.
45
Nexus Rule
officers may seize items not listed in the warrant when:
the items are discovered while the officers are conducting a lawful search for the listed evidence, and
they have probable cause to believe the item is contraband, evidence of criminal behavior, or would otherwise aid in the apprehension or conviction of the criminal
- Nexus means a reasonable connection or link between two or more items.
46
Plain View Seizures
Peace officers must have:
probable cause of contraband or evidence of a crime
a lawful right to be in the location
lawful access to the item
- Officers may use all of their senses, not just sight, to obtain probable cause. The plain view doctrine, therefore, can also include items they can smell, hear, or touch from a lawful position.
47
Public Access Area
Any area the general public or some members of the public have been given either express or implied permission to be in is considered a public access area. Peace officers have the legal right to make observations from any public access area at any time.
48
Surveillance
It is not a search for peace officers to conduct surveillance of private premises or to follow people who leave the premises, as long as the observations are made from a place where the officer has a right to be. Videotaping a suspect’s activities is a form of surveillance.
49
Sensory Aids
Flashlights
Night vision
binoculars
dogs
50
Abandoned Property
If an item has been abandoned by the owner, they relinquished any expectation of privacy over the item.
- 4th Amend. does not protect articles or an area that has been abandoned by its owner.
- Trash placed in a position for pick-up outside the curtilage of the residence is considered abandoned.
51
Lawful Access
Lawful access to private property is most commonly obtained when:
the officer’s entry is based on consent
the officer’s entry is based on exigent circumstances, for example, a reasonable belief that the evidence will be destroyed if entry is delayed in order to obtain a warrant
the officer has lawfully entered the area for some other purpose (e.g., to conduct a parole or probation search, or an administrative or regulatory search, etc.)
52
Warrantless Searches and Seizures
In addition to plain view seizures, these exceptions to the usual warrant requirement include:
cursory/frisk/pat down
consent searches
searches pursuant to exigent circumstances
searches incident to custodial arrest
probation/parole searches
- courts will evaluate this on totality of circumstances
53
Cursory/Frisk/Pat Search
a strictly limited search for weapons of the outer clothing of a person who has been lawfully detained. A cursory/frisk/pat search is a search for possible weapons only, not a search for contraband or other evidence.
- For a cursory/frisk/pat search to be lawful:
the person must be lawfully detained for an investigative purpose
the searching officers must be able to articulate specific facts which caused them to reasonably believe the person is dangerous or may be carrying a weapon
- Once the officer conducting the search realizes an object is not a weapon, the officer cannot further manipulate the object; the officer must move on.
54
Factors for Cursory/Frisk/Pat Search
- Clothing
Bulge in clothing that is the size of a potential weapon
Wearing a heavy coat when the weather is warm
- Actions
Trying to hide something
Appearing overly nervous
Acting in a threatening manner
- Prior knowledge
History of carrying weapons or violent behavior
- Reason for Detention
Stopped in order to investigate a serious, violent, or armed offense
- Companions
Lawful search of companions revealed a weapon or potential weapon
- Location
Stopped in an area known for violence, or where the officer is unlikely to receive immediate aid if attacked
- Time of day/amount of light
Stopped during nighttime
Stopped in an area with little or no lighting
- Ratio
Detainees outnumber officers
55
Contraband Cursory/Frisk/Pat Searches
- If, during a lawful cursory/frisk/pat search for weapons, an item is discovered that is immediately recognized as contraband (based on plain sight, smell, or touch), the officer may seize it. If the person is placed under arrest, the officer may then conduct a full search incident to the custodial arrest.
- If the item is not immediately recognized as contraband, the officer may not manipulate the suspected area or object further in order to establish its nature, unless the officer is still concerned it may be a weapon or potential weapon.
56
Containers Cursory/Frisk/Pat Searches
- If the officer comes across a container on the person during a cursory/frisk/pat search, the officer is entitled to seize it and open it only if it is reasonable to believe it can be used as a weapon or that it might contain a weapon.
- Detention alone does not give officers the right to search (open) the container, unless their knowledge and experience provide probable cause to believe that it contains contraband (i.e., they could easily feel that the object was small and resilient like a heroin-filled balloon), since with probable cause they could make an arrest. (In general, common containers like cigarette packs and film containers are not searchable.)
57
Reaching Inside Cursory/Frisk/Pat Searches
During a cursory/frisk/pat search, an officer may reach inside a subject’s clothing or pockets to inspect an object further only if:
the object reasonably felt like a weapon or something that could be used as a weapon
the subject’s clothing is so rigid or heavy that the officer could not rule out the possibility of a weapon or potential weapon
58
Discovery Cursory/Frisk/Pat Searches
If an officer discovers an object during a cursory/frisk/pat search which the officer believes is a weapon or a dangerous instrument which could be used as a weapon, the officer has a right to seize it from the person.
The officer may hold the weapon or potential weapon until the detention is concluded. If there is no probable cause to make an arrest, then the item must be returned to the subject.
59
Transporting Cursory/Frisk/Pat Searches
Peace officers may conduct a cursory/frisk/pat search of any person the officers have a duty or are obligated to transport before permitting the person to ride in a law enforcement vehicle.
- fIf officers are not obligated to transport the person, a cursory/frisk/pat search is permitted only if the officer informs passengers that:
they have the right to refuse the ride
if they accept the ride, they must first consent to a cursory/frisk/pat search
60
Warrant searches vs. consent searches
If officers have probable cause to search but lack an exigent circumstance to justify a warrantless entry, they should always seek a warrant instead of seeking consent.
- Without a warrant:
the occupant of the property has the right to refuse entry and therefore refuse the search
even if they enter with consent, officers may not detain persons who are on the premises unless they have reasonable suspicion of criminal activity
- Seeking consent rather than obtaining a warrant can also serve to warn subjects of pending law enforcement action. The evidence may be destroyed or removed during the time that the warrant is obtained. Peace officers are not allowed to secure or freeze the premises in situations where they have created the exigency by their actions.
61
Consent Search Conditions
- must be:
voluntary, and
obtained from a person with apparent authority or to give that consent
- If the consent is valid, the consenter has temporarily relinquished any expectation of privacy for the area or item to be searched.
- An unlawful detention invalidates a consent search.
62
Consent Search Scope
If the consenting person expressly or implicitly restricts the search to certain places or things, officers must honor those restrictions. If the officers tell the consenting person what type of evidence they are searching for, the scope of the search must be limited to those places and things in which such evidence may reasonably be found.
63
Voluntary Consent Search
an act of free will and not the result of duress or coercion. If consent is merely a submission to an assertion of authority or coercion, the consent is not voluntary. Any search under such conditions would be unlawful, and any item(s) seized would not be admitted as evidence at trial.
64
Officer Invalidated Voluntary Consent Search
- Show of physical force
exhibit force while seeking consent (e.g., rest their hands on, or draw weapons).
- Misrepresentation of authority
state or imply they have a legal right to conduct an immediate search.
falsely state they have a warrant when they do not.
request entry for a purpose other than to conduct a search.
- Illegal seizure
illegally detain or arrest the subject.
- Verbal coercion
verbally demand consent rather than request it.
- Intimidating Demeanor
appear in large numbers.
use a demanding tone of voice.
act in an overly authoritative manner, etc.
- Impairment or limitation of consenter
fail to recognize or acknowledge the consenting person may be:
- too young to understand the implications of the consent.
- severely under the influence of alcohol or drugs.
- mentally incapable of giving permission.
- overly distraught or too emotional to understand.
65
Express vs. Implied Consent
- affirmative act:
- express consent:
- occurs when the consenting person clearly authorizes the search either orally or in writing.
- implied consent:
- occurs when the consenting person authorizes the search by actions or behavior indicating that consent was given.
* Consent cannot be failure to object or mere silence
66
Authority to consent to search
Authority:
- there is joint access or control over an area or thing (e.g., kitchen, family room).
- consenter is landlord or owner who has regained exclusive possession of a rental property.
- there is common authority or control over the area or thing (e.g., unlocked file cabinets, open office spaces).
No Authority:
- the item is clearly a personal effect of, or the area is under the sole authority of, the nonconsenter (e.g., personal suitcase, tool box, locked closet). Co-occupant is present and objects to the search.
- consenter is landlord or owner, but the premises are still occupied by the tenant (e.g., apartment, motel room).
- the item is clearly a personal effect of, or the area is under the sole authority of, the nonconsenter (e.g., briefcase, purse, locked drawer).
67
Withdrawal of Search Consent
Consent can be withdrawn by:
expressly doing so (e.g., “I don’t want you to search anything more”)
making a statement (e.g., “I want you to leave now”)
engaging in conduct that reasonably indicates that the consent is being withdrawn (e.g., blocking a doorway and saying “I don’t want you to go in there,” or not handing over the keys)
68
Exigent Circumstance Searches (People)
- reasonable belief a person (victim or other person)
- inside an area considered private property,
- may be injured or ill
- in immediate need of help
- may enter the property without a warrant
Ex:
- medical emergency (sick or injured)
- current child abuse or immediate need of protection
- violent assault (imminent threat to self or others)
- domestic violence (necessary to protect victim by preventing current or additional violence)
- not required to Knock and Notice
69
Exigent Circumstance Searches (Property)
If an officer reasonably believes there is a need to enter a private area in order to protect the property of the owner or occupant, the officer may enter without a warrant.
- Burglary
- Other emergencies (fire, dangerous chemicals, explosives endangering people or property)
70
Exigent Circumstance Search Escape
It is lawful for peace officers to enter private property without a warrant in order to prevent the escape of a suspect, especially if the suspect is armed and dangerous or has just committed a violent felony.
- Hot Pursuit:
officers attempt to detain or arrest the suspect in a public place, but
the suspect flees inside a private area.
- Fresh Pursuit:
there is no physical chase, but
officers are quickly responding to information concerning the suspect’s whereabouts, and
the officers reasonably believe the suspect’s escape is imminent.
- cannot reenter w/o warrant or consent
71
Exigent Circumstance Search Evidence
Peace officers may enter premises without a warrant or consent when there is immediate danger of destruction or removal of crime-related evidence.
- A mere suspicion that evidence will be destroyed does not amount to exigent circumstances. There must be specific facts that evidence will likely be destroyed or removed without intervention.
- cannot reenter w/o search warrant or consent
72
Can an officer create their own exigency?
No
- Peace officers may not use exigent circumstances as an excuse for a warrantless entry if they have created the emergency unnecessarily by their own conduct.
73
Search Incident to Arrest Conditions
A search incident to arrest may be conducted when:
probable cause for a lawful arrest exists
the suspect is taken into custody
the search is contemporaneous with the arrest
- The search is justified by the custodial nature of the arrest, not by the nature or circumstances of the crime that lead to the arrest.
- Not when cited and released
74
Search Incident to Arrest Scope
A search incident to a custodial arrest may include:
a full search of the arrestee’s person
containers on the arrestee’s person
the nearby physical area that was under the immediate control of the arrestee (sometimes referred to as “within arm’s reach”)
75
Custodial Arrest
one in which the person will be transported to another location or facility, such as a station, jail, detox center, juvenile hall, or school.
76
Contemporaneous Search
at or near the time of arrest, although either can precede the other
at or near the place of the arrest
while the arrestee is still on the scene
- If the search precedes the arrest, the officer must have probable cause to arrest at the time of the search.
- The search can still be upheld as contemporaneous even if delayed somewhat, if the delay is reasonably necessary (e.g., for safety reasons), and the search is conducted as soon after the arrest as practical.
77
"Arm's Reach" Rule
Peace officers may search any area that is or was reasonably within the arrestee’s control. This could include any area from which the arrestee may:
grab a weapon
obtain any item that could be used as a weapon
destroy evidence
- The fact that the arrestee has been handcuffed or otherwise immobilized does not eliminate or change the “arm’s reach” rule.
- It is improper to try to expand or enlarge the area of an arrestee’s immediate control by moving the arrestee (e.g., from one room to another) in order to enhance an officer’s ability to see objects in plain view.
78
Protective Sweep
- brief search to look for individuals only.
- If already lawfully inside or outside a house and have a specific factual basis for believing there may be other people inside who pose a danger to them, the officers can conduct a protective sweep.
- Protective sweeps are limited to spaces immediately adjoining the area of an arrest:
where another person could be hiding
from which an attack could be immediately launched
- It is illegal to sweep into areas beyond those “immediately adjoining” the arrest location, unless the officer has reasonable suspicion, based on articulable facts, that there may be someone there who poses a danger to the officer.
- Any contraband or crime-related evidence in plain view during a protective sweep may be seized.
- Obtaining a warrant to search for evidence is always preferable.
- A warrant would allow not only the seizure of an item in plain view, but also a further and more thorough search for similar or additional evidence that may be on the premises.
79
Probation
a sentencing alternative for a person convicted of a criminal offense and is granted at a judge’s discretion. Rather than incarceration, the individual remains under the authority of the probation department. Probation may be formal (supervised) or informal (unsupervised).
- An individual serving a period of probation must agree to certain conditions. These may include conditions such as:
getting a job
avoiding drugs and other criminal behavior
not traveling outside a limited area
submitting to periodic searches without a warrant, probable cause, or reasonable suspicion
80
Parole
a conditional release from a state prison which allows an individual to serve the remainder of a sentence outside of prison, which a person must serve on the “outside” after having completed the actual prison sentence.
81
Probation Search
Not every probation has a search condition, and not all search conditions are the same. However, assuming the probationer has a search condition permitting searches for “X” by peace officers, the search for “X” may be undertaken without any reasonable suspicion of criminal activity.
82
Parole Search
The officer must know about the parole conditions before the search. An officer may conduct a parole search without reasonable suspicion but cannot conduct a parole search for arbitrary, capricious or harassment reasons.
83
Parole Search Scope
Parole search conditions permit a search of the parolee’s person, residence, and any other property under their control (e.g., vehicle, backpack, etc.).
84
Probation Search Scope
Probation search conditions depend on the specific terms of the probationer, which may be as broad as parole conditions.
- officers should determine the probation search conditions before they conduct a search.
85
Probation/Parole Searches Harassment
- A search is invalid if the reason it was undertaken was to harass the probationer/parolee.
Searches may also be considered harassment if they:
occur too often
take place at an unreasonable hour
are unreasonably prolonged
demonstrate arbitrary or oppressive peace officer conduct
are undertaken with personal animosity toward the probationer/parolee
86
Reasonable Warrantless Searches and Seizures
```
cursory/frisks/pat search
consent searches
searches incident to exigent circumstances
searches incident to custodial arrest
probation/parole searches
```
87
Probable Cause Search of Vehicles
If officers believe they have enough info for search warrant for a vehicle, they can search the vehicle w/o a warrant.
- For a search of a vehicle to be legal under the probable cause exception:
the vehicle must have been lawfully stopped, or otherwise be lawfully accessible
the officers must have enough facts, knowledge, training, or experience to provide probable cause that the item they are seeking will be found inside the vehicle
- If the vehicle is in a place which has a reasonable expectation of privacy, such as a garage, a warrant may be necessary to search (enter) the property (garage).
88
Probable Cause Search of Vehicles Scope
The scope of a vehicle search based on probable cause depends on the item or object peace officers are searching for.
- Officers may search any part of a motor vehicle, or anything inside the vehicle, as long as what they are searching for might reasonably be located there. This includes, but is not limited to:
the passenger compartment
the glove compartment
the hood
the trunk
any closed personal containers (including locked containers)
89
VC 415
defines a motor vehicle as a vehicle that is self-propelled. Examples of motor vehicles include, but are not limited to, the following:
automobiles
airplanes
buses
recreational vehicles
carts, etc.
- Self-propelled wheelchairs, invalid tricycles, or motorized quadri-cycles when operated by a person because of disability are not considered motor vehicles.
- Boats are searchable under the same rules as motor vehicles.
90
Probable Cause Vehicle Search Time
Under the probable cause exception, it is not necessary that the search of the vehicle take place contemporaneously with the vehicle stop (e.g., on the roadside at the time of the stop). Instead, officers may have the car towed away and conduct the search at a later time, even after it has been impounded and is in police custody, as long as they still have probable cause.
91
Probable Cause Vehicle Search Closed Containers
If peace officers have probable cause to believe the item they are looking for is inside a vehicle, they are entitled to open and search any closed, personal container within the vehicle which might reasonably contain the item. (This rule also applies to locked containers.)
Probable cause to search a container may be established through the officer’s sight, smell or touch, or by the container’s shape, design, or the manner in which it is being carried.
92
Plain View Seizures from Vehicles
Peace officers must meet the same requirements for plain view seizures involving vehicles as they would for seizing an item within plain view anywhere else.
- Peace officers must:
have probable cause to believe the item is crime-related
lawfully be in a location to observe the item
have lawful access to the item
- Officers may seize crime-related items in vehicle
- Officer may use flashlight
93
Protective Search of a Vehicle
- a limited warrantless search of the passenger compartment of a vehicle for weapons
- permitted if:
the driver or other occupant is being lawfully detained
the officer reasonably believes, based on specific facts, that there may be a weapon (lawful or unlawful) or item that could be used as a weapon, inside the vehicle
- Officers need only a reasonable suspicion that a weapon or potential weapon is in the vehicle. However, this suspicion must be based on specific facts or information.
94
Protective Search of a Vehicle Scope
Like a cursory/frisk/pat search of a detained person, protective vehicle searches are allowed to prevent an unexpected assault on peace officers.
- Officers may search:
only for weapons or potential weapons
in the passenger compartment of the vehicle
where the occupant(s) of the vehicle would have reasonable access to a weapon or item that could be used as a weapon
- Once the searching officer determines there are no weapons or potential weapons within the passenger compartment, the search must end.
- Officers should never assume there is only one weapon. If a weapon is discovered, the officer may seize it and continue to search for others even if there is no specific reason to believe there are additional weapons in the vehicle.
95
Protective Search of Vehicles Containers
During a protective vehicle search, if the officer comes across a container within the passenger compartment, the officer is entitled to seize it and open it only if it is reasonable to believe that it could be used as a weapon, or that it might contain a weapon.
96
Consent Search of Vehicles
Consent must be:
voluntary, and
obtained from a person with the authority (or apparent authority) to give that consent
97
Consent Search of Vehicles Scope
Peace officers may search only those areas of the vehicle they reasonably believe the consenting person authorized them to search. If the consenting person expressly or implicitly restricts certain areas of the vehicle or items within the vehicle, the officers must honor those restrictions.
- Consent may or may not apply to closed containers
- Ask before opening locked containers
- Always ask if container belongs to person
98
Vehicle Consent-to-Search Form
Easier to prove a vehicle was searched w/ consent and voluntary when signed.
99
Search of Vehicles Incident to Custodial Arrest
Officers may search the passenger compartment of a vehicle if they have made a valid custodial arrest of any occupant of the vehicle and:
the arrestee is unsecured (e.g. not locked in the police car, not handcuffed) and
has reachable access to the vehicle and/or
the officer has reasonable suspicion to believe evidence, pertaining to the crime for which the suspect was arrested, is to be found in the vehicle and/or
the office has reasonable suspicion there is a weapon in the vehicle
- The search may be conducted before the occupant is actually placed under arrest as long as probable cause to arrest existed at the time of the search.
100
Search of Vehicles Incident to Custodial Arrest Scope
No matter what the arrest is for, as long as the driver or occupant of a vehicle is taken into custody, peace officers 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”
Or
- The arrestee is un-secure and still has access (arms reach) to the vehicle.
- The trunk of a vehicle may not be searched incident to the arrest of an occupant of the vehicle.
101
Nexus Arrestee to Vehicle
- It is immaterial whether the occupant was inside or outside the vehicle at the time of the arrest or when the search began.
- If officers did not see the arrestee inside the vehicle, they may nevertheless consider the person to be an occupant of the vehicle if:
the officers reasonably believe the arrestee was an occupant shortly before the arrest
there was something else indicating a close association between the vehicle and the arrestee at the time of the arrest (e.g., the arrestee placed an object inside the vehicle just before the arrest)
102
Contemporaneous Nature of Vehicle Search Incident to Arrest
A search is deemed incident to an arrest only if it occurred:
at or near the time of the arrest
at or near the place of the arrest
while the arrestee is still at the scene
On rare occasions, the contemporaneous requirement can be waived if it was reasonably necessary:
- to delay the search
- to conduct the search in another location
- to conduct the search after the arrestee was removed from the scene
- the search was conducted as soon as it was practical to do so
103
Searches of Vehicles as Instrumentalities
A vehicle may generally be deemed an instrumentality of a crime if:
the crime was committed inside the vehicle
the vehicle was the means by which the crime was committed (e.g., hit and run)
- A vehicle is not an instrumentality merely because it is used during the commission of a crime.
104
Searches of Vehicles as Instrumentalities
If the search is undertaken without a warrant, the scope will be determined by the nature of the evidence being sought. That is, officers may search any part of the vehicle where the object(s) they are looking for might reasonably be located.
If the search is undertaken pursuant to a warrant, the scope will be determined by the terms of the warrant.
105
Vehicle Inventory
To inventory a vehicle:
the vehicle must be in the lawful custody of law enforcement
the officer conducts the inventory pursuant to a standardized agency policy
106
Vehicle Inventory Scope
```
The courts have made it clear that a standardized agency policy may be very broad regarding vehicle inventories, permitting examination of any area where valuable or dangerous items are commonly kept. This may include, but is not limited to:
under the seats
glove compartments
consoles
the trunk
closed containers
```
107
Vehicle Inventory Purpose
- A vehicle inventory should never be undertaken for the purpose of finding evidence or contraband, but rather only for taking note of personal property.
- The purpose of a vehicle inventory is to protect:
the property of a person whose vehicle has been impounded or stored
the government agency from false claims of loss
- If, during the course of an inventory, officers discover evidence of a crime or contraband, they may lawfully seize it.
108
Lawful Custody for Vehicle Inventory
An inventory may be conducted only after the vehicle has come into lawful custody for reasons other than solely for the purpose of conducting the inventory.
- The decision to impound and/or inventory must be made in good faith for lawful reasons such as, but not limited to:
the driver (sole occupant) is taken into custody
the vehicle, involved in a traffic accident, cannot be driven
the vehicle must be moved to protect it or its contents from theft or damage
circumstances listed in the Vehicle Code (e.g., vehicle as a traffic hazard, stolen vehicle, etc.)
- The driver should never be taken into custody on the pretext of searching for evidence or contraband, or to examine personal belongings that may be inside the vehicle.
109
Personal Possessions in Vehicle Incident to Arrest
If a vehicle is to be inventoried, but the driver or other occupant requests possession of some object from inside the vehicle (e.g., purse, clothing, briefcase, etc.), the searching officer may pat the item down for weapons for the officer’s own safety before handing it over.
- Whether or not the item still must be inventoried as an object that was in the vehicle at the time the vehicle was impounded or stored will depend on agency inventory procedures.
110
Repossessed Vehicles
If a licensed repossession agency has already repossessed a vehicle and completed the statutorily required inventory, peace officers may examine and seize inventoried items without a warrant if they have reason to believe the items are connected to a crime being investigated.
111
Probable Cause Plus
in addition to probable cause, the courts also require that the more intense, unusual, prolonged, uncomfortable, unsafe, or undignified the procedure contemplated, the greater the showing for the procedure’s necessity must be. This additional show of need is often referred to as probable cause plus.
- Factors:
method used
seriousness of the offense
importance of the evidence to investigation
existence of alternate means
safety and intrusiveness
112
Blood Sample
obtained in a medically approved manner, are considered minimally intrusive. If a warrant is sought, it does not require a detailed explanation of need. Instead, because taking blood involves such a minimal intrusion and is so routine in society today, the affidavit must demonstrate only:
probable cause that the test results will show evidence of a crime
the removal will be conducted by trained medical personnel in accordance with accepted medical practices
If blood is going to be taken without a warrant or consent, officers must
have, in addition to probable cause to arrest and probable cause to search, exigent circumstances, which typically exist because of the evanescent nature
of the evidence.
The evanescent nature of the evidence is no longer a sufficient circumstance, by itself, to justify a forcible blood draw. Instead additional exigent circumstances must exist that are sufficient to justify the forcible procedure.
Assuming these conditions are met, blood may be taken, even in situations where the suspect is unconscious, or where the officers must apply reasonable force.
113
Implied Consent
A person who drives a motor vehicle in California has given implied consent for chemical testing of their blood, breath, or urine.
Vehicle Code Section 23612 states that persons have given implied consent if they drive a motor vehicle and are lawfully arrested for being under the influence of drugs and/or alcohol.
Implied consent does not permit officers to forcibly extract a sample of blood from a suspect. Therefore, if a suspect refuses to comply with the law, blood may be forcibly extracted only if
1) exigent circumstances exist – other than the natural dissipation of blood alcohol – that are sufficient to justify the forcible procedure;
2) the suspect has search terms that authorize a forcible blood draw; or
3) officers secure a search warrant pursuant to Penal Code Section 1524(a)(13).
114
Refusal of Blood Test (Vehicle)
- Only license suspension/revocation
115
Refusal of Breath Test (vehicle)
- criminal penalties
116
Warrantless Search and Seizure from Suspect's Body
Must have:
- probable cause to arrest
- probable cause to search
- exigent circumstances
- a need that outweighs the intrusiveness
117
Exigent Circumstances Evidence
- The existence of exigent circumstances may depend on the stability of the evidence being sought. Officers may seize evidence from a person’s body if it reasonably appears the evidence will be lost or destroyed if the officers wait to obtain a warrant.
- Evidence is considered to be either stable evidence or evanescent evidence.
118
Use of Force
Search and Seizure
Bodily Intrusion
Officers may use only that degree of force that is necessary to overcome the person’s resistance and recover the evidence. Officers may not use unreasonable force to recover evidence.
- As a general rule, no bodily intrusion is permissible if the force necessary to do it would shock the conscience.
119
Swallowed Evidence
If the person has swallowed the suspected evidence or contraband, peace officers have several options.
Detain the suspect under controlled conditions and wait until the evidence naturally passes through the suspect’s system, or
If a doctor declares the suspect’s life is in danger or the suspect is at risk for serious bodily injury then the suspect’s stomach can be pumped or an emetic an be administered to induce vomiting, or
The suspect may give consent to a stomach pump or emetic but it should occur under the supervision of a doctor, or
- In all other circumstances it should be assumed that a search warrant would be required to pump a suspect’s stomach or administer an emetic to induce vomiting for the recovery of evidence.
120
Finger Print Samples
Peace officers may obtain fingerprint samples from a person if they have that person’s consent or probable cause to believe the person was involved in criminal activity.
If the person has been placed under arrest, the person has no legal right to refuse a fingerprint examination.
Officers may use a reasonable amount of force to obtain the fingerprints of a person who refuses to cooperate. However, fingerprints taken by force are often smeared or incomplete and are seldom useful.
121
Handwriting Samples
Handwriting samples obtained by peace officers are admissible as evidence. The refusal to give a handwriting sample may be commented upon later at a person’s trial as consciousness of guilt.
- It is impractical to physically force a person to provide handwriting samples. If a person refuses to willingly provide handwriting samples, a court may order them to provide one or be held in contempt-of-court.
122
Voice Evidence
A person has no legal right to refuse to give voice evidence. Although a person can not be forced to provide a vocal sample, refusal to do so can later be commented on at trial for the purpose of showing consciousness of guilt.
123
Undue Suggestivity
Because it is a violation of a defendant’s constitutional right to due process to be convicted on the basis of an unduly suggestive identification process, peace officers must not suggest in any way to the victim or witness that a person to be observed during an identification process committed the crime.
Indeed, peace officers must be very careful to avoid any conduct before, during, and after the identification process which might be ruled suggestive.
124
Suspect ID Procedures
Always:
- obtain as detailed and complete a description of the suspect as possible from the victim or witness before any identification process.
tell the victims or witnesses that:
- they should keep an open mind,
- the person who committed the crime may or may not be among those present.
- maintain an appearance of neutrality before, during, and after the actual viewing.
- separate multiple victims or witnesses both before, during, and after the identification process.
Never:
- make suggestions, lead, or prompt victims or witnesses to give a description they do not mean to give.
- tell the witness or victim that:
- the person who committed the crime has been caught,
- the victim’s property or other evidence was found in the suspect’s possession, or
- the suspect has made incriminating statements.
- Say anything about a suspect to the victim or witness before, during, or after the actual viewing.
- allow multiple victims or witnesses to:
- talk together about the identification, or
- view an identification process at the same time.
- ask for percentage of certainty or scale or 1-10 certainty
125
Suspect ID Documentation
Everything that occurs during the identification process should be noted in the peace officer’s report. This includes:
a verbatim account of what the victim or witness said
a description of the victim’s or witness’ response to viewing the suspect
126
Field Showup
viewing of a possible suspect by the victim or witness that commonly occurs in the field shortly after a crime has been committed.
127
Field Showup Timing
A showup is appropriate only if it can be done a short time after the crime has taken place.
The advantages of this short time lapse include:
the victim’s or witness’ fresh memory of the perpetrator and events
the immediate release of an innocent subject
the continuation of a search while the trail is still fresh
128
Field Showup Location
The general rule is that an officer who detains a subject pending a showup should not move the subject to another location, but rather should transport the victim or witness to the subject.
- There are three exceptions to this general rule.
The subject clearly and voluntarily consents to being moved
Independent probable cause exists to arrest the subject and take the subject into custody
It is very impractical to transport a witness to a possible suspect because:
- the victim or witness is too injured to be moved
- the availability of transporting officers is limited, and the wait would create a greater intrusion on the subject’s freedom than transporting the subject
129
Field Showup Legal Representation
Since the detention of a subject for the purpose of identification is not considered full custody, the subject is not entitled to have an attorney present at the time of the in-field showup.
130
Field Showup Implications of Custody
If at all possible, officers should avoid any indication that the subject has been arrested and, therefore, perceived as guilty by law enforcement authorities.
- Unless there is a reasonable threat to officer safety, reduce the inherent suggestiveness of implied custody by displaying the suspect outside the law enforcement vehicle and without handcuffs or other forms of restraint.
131
Photographic Spread/Lineup
an identification procedure in which the victim or witness to a crime is asked to look at a number of photographs in an attempt to identify the suspect.
- does not have to take place within a short time of the crime, as a field showup does, but should nevertheless take place while the victim’s or witness’ memory is still fresh.
- used when the identity of the suspect is not known, or the identity is known but the suspect is not in custody. Since there is no intrusion on a suspect’s time or privacy, the photographic spread identification process can take place at any location.
132
Custodial Lineup
- aka physical lineup
- an identification procedure in which the victim or witness to a crime is asked to look at a number of individuals within a custodial environment in an attempt to identify the suspect.
- may take place any time after a crime has been committed.
- takes place within a controlled environment of a law enforcement facility.
- attorney of suspect may be present in silence if after 1st court appearance
