1. THE DETENTION (TERRY) FRISK =PLAIN VIEW = WEAPONS WEAPONS/CONTRABAND 2. CONSENT (KNOWING + VOLUNTARY) 3. PROBABLE CAUSE NOPLUS 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 standard b)privacy expectation that society recognizes 3. Scope

RULES FOR PLAIN FEEL 1.Legitimate Basis for Handling Person or Object 2.Inadvertent Discovery 3.Reasonableness of Handling for Context 4.To Search Container Felt Need: a)probable cause and b)search warrant or c)exigent circumstances or d)consent

4 th AS APPLIED TO PERSONS 1.4 TH Applies to Person Seizure 2.Standard is Reasonableness a)use of excessive force may be unreasonable b)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

4 th AS APPLIED TO PROPERTY 1.4 th Applies to Seizure of Property 2.Seizure occurs when: a)meaningful interference with a property right 3.Due Process Applies - 14 th

STANDING RULE 1.A Privacy Interest in Place Searched or 2.A Possessory Interest in Items Seized 3.State May Maintain Inconsistent Theories 4.Statements of Defendant to Assert Right not a Waiver (5 th ) 5.No Standing if Seizure From Third Party

PLAIN VIEW STANDARDS 1.NB: Real Plain View is not a search 2.No 4 th Violation in Arriving at Place of View 3.Character as Evidence Requires Probable Cause a)contraband, or b)evidence of crime

FLYOVERS 1.Reasonableness Standard a)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 ANNOUNCE 1.Part of 4 th Inquiry via 14 th Due Process 2. Test - Reasonableness: a)peril to officers b)risk of loss of evidence 3.Best Practice: a)set out in affidavit b)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 ArrestStop and Frisk 1.Legal Basis: probable cause to arrest 2.Scope: all on person; within reach a)if in vehicle, same rule; excludes passengers 3.Expanded Scope: full custody inventory 4.Purpose: protect officer, prevent escape, prevent loss of evidence 5.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 stop 2.Scope: patdown of outer clothing with reasonable suspicion a)if in vehicle may remove passengers – patdown; look at property to be returned 3.Expanded Scope: probable cause to expand 4.Purpose: officer protection only 5.Questioning: generally Miranda not required a)exception: lengthy and accusatory questioning; turns detention into arrest without probable cause coercive environment b)limitation: reasonably related to what aroused officers 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 District 542 US 177, 124 S Ct 2451 (2004) (a law which requires detainee to identify self is not vague and does not violate 4 th or 5 th Amendments) Compare HiibelKolender 1.identify only 2.lawful detention required (reasonable suspicion; reasonably related 3.5 th Amendment protections apply (per statute) 1.produce credible/reliable ID (vague) 2.no lawful basis for detention required 3.5 th Amendment protections apply

SMUGGLERS PROFILE 1.Travels to, from, or through source city 2.Last to leave plane 3.Claims no baggage 4.Scans gate area 5.Pays cash for tickets 6.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, or b)with probable cause plus search warrant or exigent circumstances 3.Scope: a)scope of consent, or b)scope of affidavit and warrant

INTRUSIVE PERSON SEIZURES – TEST COMMUNITY INTEREST IN FAIRLY AND ACCURATELY ASSESSING GUILT V. INDIVIDUALS 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 inspections b)scope of inspections c)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 drivers conduct b)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, OR b)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)