Chapter Four Other Search & Seizure Issues All Images © Microsoft Corporation Written by Karmel Tanner May 2010

Entering to Conduct an Investigation No special right to enter premises in order to investigate a crime Entry to rescue people is permitted No special right to enter premises in order to investigate a crime Entry to rescue people is permitted

Entering to Conduct an Investigation “Knock-Notice” applies to entry of residences absent consent or emergency 1. Knock, ring doorbell or otherwise make presence known 2. State who is there and purpose (“Police! We have a warrant.”) 3. Wait long enough for a cooperative person to open the door 4. Enter - force may be used if necessary to gain entry “Knock-Notice” applies to entry of residences absent consent or emergency 1. Knock, ring doorbell or otherwise make presence known 2. State who is there and purpose (“Police! We have a warrant.”) 3. Wait long enough for a cooperative person to open the door 4. Enter - force may be used if necessary to gain entry

Entering to Conduct an Investigation Exceptions to “knock-notice” apply for Danger to officer Destruction of evidence Escape of suspect Rescue people in danger Exceptions to “knock-notice” apply for Danger to officer Destruction of evidence Escape of suspect Rescue people in danger

Entering to Conduct an Investigation Warrant is required to enter dwelling Arrest warrant is needed to enter suspect’s home to arrest him/her Search warrant is required to enter anyone else’s home to arrest the suspect Search warrant is required to enter for other purposes UNLESS there is a recognized exception to the warrant requirement that applies Warrant is required to enter dwelling Arrest warrant is needed to enter suspect’s home to arrest him/her Search warrant is required to enter anyone else’s home to arrest the suspect Search warrant is required to enter for other purposes UNLESS there is a recognized exception to the warrant requirement that applies

1 You go to a house to execute a search warrant. As you come up you hear through and open window, "It's the cops go flush everything!" Question A) You need a warrant to enter the house B) You do not need a warrant to enter the house

Plain View Doctrine Plain view doctrine has three key elements:

Plain View Doctrine 1. Objects must be where officers can observe them. Officer can walk around, bend or use flashlight to make a better observation Cannot pick items up to look for serial numbers, etc. Finding items does not have to come as a surprise to the officers 1. Objects must be where officers can observe them. Officer can walk around, bend or use flashlight to make a better observation Cannot pick items up to look for serial numbers, etc. Finding items does not have to come as a surprise to the officers

Plain View Doctrine 2.Officers must be legally at the location where the observation was made. Must have complied with “knock- notice” May be at location to execute search warrant or for any other legal reason 2.Officers must be legally at the location where the observation was made. Must have complied with “knock- notice” May be at location to execute search warrant or for any other legal reason

Plain View Doctrine 3. Probable cause is required to seize what was observed. All facts known about item — both before discovery and as a result of finding it — can be used to establish probable cause If probable cause not established, facts may be retained and used later 3. Probable cause is required to seize what was observed. All facts known about item — both before discovery and as a result of finding it — can be used to establish probable cause If probable cause not established, facts may be retained and used later

2 You approach a house on a noise complaint. During the discussion with the occupant, you notice a young girl. Later in the day you see a BOLO for a kidnapped girl who you think was the girl you saw. You can: Question A) Establish probable cause for going back to the house to look for the girl B) You can establish reasonable suspicion for going back to the house to look for the girl C) Not draw any conclusions based upon an earlier plain view

Abandoned Property No Fourth Amendment Issues Relate to Seizure of Abandoned Property No one has a privacy interest — because no one possesses it No Fourth Amendment Issues Relate to Seizure of Abandoned Property No one has a privacy interest — because no one possesses it

Consent Three key points must be considered to determine if valid consent has been obtained for a search:

Consent 1. Consent must be given voluntarily based on the totality of the circumstances Do NOT have to advise person of the right to refuse to consent to a search Simulating a search warrant invalidates consent — person seen as merely acquiescing to authority Use of force or intimidation will invalidate consent — considered on a case-by-case analysis 1. Consent must be given voluntarily based on the totality of the circumstances Do NOT have to advise person of the right to refuse to consent to a search Simulating a search warrant invalidates consent — person seen as merely acquiescing to authority Use of force or intimidation will invalidate consent — considered on a case-by-case analysis

Consent 2. Consent to search is based on a person with apparent authority If person appears to have authority over the area, officers are not responsible for reasonable mistakes related to whether actual authority exists Privacy interest — not ownership — is required 2. Consent to search is based on a person with apparent authority If person appears to have authority over the area, officers are not responsible for reasonable mistakes related to whether actual authority exists Privacy interest — not ownership — is required

Consent 3. What can be searched based on the consent Person giving consent controls what can be searched and how long the search may continue Consent can be withdrawn at any time without justification 3. What can be searched based on the consent Person giving consent controls what can be searched and how long the search may continue Consent can be withdrawn at any time without justification

3 On a pullover a teenage girl asks what will happen if she does not give consent. The officer replies "You don't want to know!" This is: Question A) Legal, nothing was wrong B) Illegal, the girl does not own the car and cannot give consent to search it C) Illegal, the girl is being intimidated into giving consent D) Illegal, the cop should have told her she did not have to give consent

Vehicle Searches Vehicle Stopped Based on Reasonable Suspicion  If there is reasonable suspicion that there are weapons in the car, officers may search the passenger compartment for weapons Vehicle Stopped Based on Reasonable Suspicion  If there is reasonable suspicion that there are weapons in the car, officers may search the passenger compartment for weapons

Vehicle Searches Person in Vehicle Is Arrested May conduct thorough search of passenger compartment Must be done contemporaneously with arrest Person in Vehicle Is Arrested May conduct thorough search of passenger compartment Must be done contemporaneously with arrest

Vehicle Searches Probable Cause Search of Vehicle May search car as thoroughly as if judge had issued a search warrant Restricted to portion of car that probable cause indicates contains evidence Does not need to be done at the time the vehicle is stopped — may tow car to impound lot and search it later Do not need to show an emergency prevented officers from obtaining a search warrant Probable Cause Search of Vehicle May search car as thoroughly as if judge had issued a search warrant Restricted to portion of car that probable cause indicates contains evidence Does not need to be done at the time the vehicle is stopped — may tow car to impound lot and search it later Do not need to show an emergency prevented officers from obtaining a search warrant

Vehicle Searches Inventory of Impounded Vehicle Anytime a vehicle is impounded, someone may inventory the vehicle and look for items subject to theft Inventory of Impounded Vehicle Anytime a vehicle is impounded, someone may inventory the vehicle and look for items subject to theft

Vehicle Searches Search of Outside of Vehicle Plain View Doctrine applies must be legally at the location Search of Outside of Vehicle Plain View Doctrine applies must be legally at the location

Vehicle Searches Closed Containers Found in Vehicles May be opened if found during: 1. Search incident to arrest 2. Inventory 3. Probable cause search Closed Containers Found in Vehicles May be opened if found during: 1. Search incident to arrest 2. Inventory 3. Probable cause search

4 On a pullover for speeding an officer sees a baggie of possible marijuana in a purse in the backseat of the car. He can: Question A) Legally seize the bag due to inventory rules B) Legally seize the bag due to closed container rules C) Legally seize the bag under plain view D) NOT seize the bag without more PC

Blood, Breath and Urine Tests No Fifth Amendment privilege to refuse to give samples of body fluids

Blood, Breath and Urine Tests Fourth Amendment issues: Detention to obtain sample Suspect can be detained in the field based on reasonable suspicion Probable cause is required to transport the suspect to police station or hospital to obtain sample No warrant is required if normal body functions would destroy evidence during the time required to obtain a search warrant Fourth Amendment issues: Detention to obtain sample Suspect can be detained in the field based on reasonable suspicion Probable cause is required to transport the suspect to police station or hospital to obtain sample No warrant is required if normal body functions would destroy evidence during the time required to obtain a search warrant

Blood, Breath and Urine Tests Fourth Amendment issues: Detention to obtain sample (con’t.) Only reasonable force may be used to obtain the samples Surgical procedures require court order or search warrant Fourth Amendment issues: Detention to obtain sample (con’t.) Only reasonable force may be used to obtain the samples Surgical procedures require court order or search warrant

Blood, Breath and Urine Tests Due Process Issues : Cannot use methods that “shock the conscience” in order to obtain the sample Due Process Issues : Cannot use methods that “shock the conscience” in order to obtain the sample

Misplaced Reliance Doctrine Misplaced Reliance Doctrine allows : Use of conversation when person who was a party to it tells police about what was said Misplaced Reliance Doctrine allows : Use of conversation when person who was a party to it tells police about what was said

Misplaced Reliance Doctrine Misplaced Reliance Doctrine allows : Placing informant or undercover officer in situation to hear what is said and report back to the police Misplaced Reliance Doctrine allows : Placing informant or undercover officer in situation to hear what is said and report back to the police

Misplaced Reliance Doctrine Misplaced Reliance Doctrine allows : May carry tape recorder or transmitting device to save conversations for use during investigation and trial Key: Person knew someone heard the conversation and could report it to authorities Misplaced Reliance Doctrine allows : May carry tape recorder or transmitting device to save conversations for use during investigation and trial Key: Person knew someone heard the conversation and could report it to authorities

Electronic Surveillance Warrant Required to use wiretaps or listening devices if no one who is a party to the conversation consented to the interception Detailed procedures apply to obtaining this type of search warrant Required to use wiretaps or listening devices if no one who is a party to the conversation consented to the interception Detailed procedures apply to obtaining this type of search warrant

Closed Containers Closed Container Rule: Officers may seize closed containers based on probable cause A search warrant is required to open the closed container Closed Container Rule: Officers may seize closed containers based on probable cause A search warrant is required to open the closed container

Closed Containers Exceptions to Closed Container Rule : Searching of vehicles Incident to arrest Probable cause search Inventory of impounded vehicle Booking searches Exceptions to Closed Container Rule : Searching of vehicles Incident to arrest Probable cause search Inventory of impounded vehicle Booking searches

Closed Containers Re-opening Closed Containers When private party who has legal possession of a closed container opens it, the owner loses any privacy interest in the contents Police may re-open package if it was closed or re-sealed prior to delivering it to the police Re-opening Closed Containers When private party who has legal possession of a closed container opens it, the owner loses any privacy interest in the contents Police may re-open package if it was closed or re-sealed prior to delivering it to the police

Closed Containers Re-opening Closed Containers Police may re-seal container and conduct a “controlled delivery” Owner may regain privacy interest if package is out of sight of officers for a considerable length of time Re-opening Closed Containers Police may re-seal container and conduct a “controlled delivery” Owner may regain privacy interest if package is out of sight of officers for a considerable length of time

5 On booking a subject a tin box of mints is found and opened resulting in the discovery of crack cocaine. This action was: Question A) Illegal, the box did not need to be opened B) Legal, it is a booking search C) Legal, a PC search D) Legal, and inventory E) Illegal under closed container rules

Chapter Four Other Search & Seizure Issues