Arrest, Search, and Seizure

Consent is not ________________ if the person who gives it does not understand the consequences of his consent and his right to refuse

"Knowing"

A __________________ is a written order, issued by a magistrate and directed to a peace officer, commanding him to search for any property or thing and to seize the same and bring it before such magistrate or commanding him to search for and photograph a child and to deliver to the magistrate any of the film exposed pursuant to the order.

"Search Warrant"

Types of Searches: Protective Searches

(Frisks) -Reasonable Suspicion

Types of Seziures: Consensual Encounters

(Interview) -No seizure has occurred and therefore no justification is required

Duncan v. Texas

*"Fleeing is not alone enough but an ingredient to the totality"* -Flight from show of authority is a factor in support of a finding that there is reasonable suspicion that a person is involved in criminal activity. -Also appellant's presence in high crime area supported investigative stop was justified. -*Totality of the circumstances*

US v. Leon

*"Good Faith" exception to Exclusionary rule* -Says that the exclusionary rule should be modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a *search warrant* that was subsequently held to be defective.

Herring v. US

*"Good Faith" exception to Exclusionary rule* -Where an officer relies upon the *validity of a warrant from another law enforcement agency and made an arrest*, evidence seized incident to that arrest is admissible even if it turns out that due to a negligent omission by the agency holding the warrant that the warrant was not valid.

Stansbury v. California

*-If a suspect is merely being detained, Miranda Rights need not be applied* -However, subsequent events may cause a noncustodial custody encounter to escalate into custodial interrogation. -Consider *Intent, Authority, Seize and Detain*, understanding of the individual being arrested. -"The mere denial of intent to arrest by the officer will usually be insufficient to negate the existence of an arrest in court if the facts support the conclusion that a reasonable person would believe that he or she was under arrest."

US v. Ramirez

*-No knock may create damage, but it may also be necessary to prevent destruction of evidence*

Hester v. US

*-Open field doctrine; authorizes open field searches without warrant*

Ohio v. Robinette

*-Reinforces Terry v. Ohio for vehicles* -An investigative detention must be temporary and last no longer that is necessary to effectuate the purpose of the stop unless additional suspicious activity is found to justify the prolonged detention. -This limitation means that once the reason for the stop has been satisfied, the stop may not be used as a fishing expedition for unrelated criminal activity -*Can't drag out the writing of a ticket*

Payton v. New York

*-Without exigent circumstances you can not enter a house unless you have a warrant*

Community Caretaking - The service and protection we render to the public takes two forms:

*1) Is the investigation of criminal activity* -this can involve stopping people for investigation based on reasonable suspicion, making arrests based on probable cause, conducting searches based on probable cause, with the requirement of having a warrant if constitutionally mandated. -all of this activity is controlled by the various rules that flow from the 4th Amendment *2) Is NOT directly related to criminal investigation* -It is in the nature of a service function and is commonly referred to as the community caretaking function. -It is based on the court decision in Cady vs. Dombrowski and is founded on the concept that the police also serve to ensure the safety and welfare of members of the community.

Miranda v. Arizona

*5th Amendment Privilege Against Self-Incrimination* -The Supreme Court ruling that the guarantee of due process requires that suspects in the police custody be informed that they have the right to remain silent, that anything they say be be used against them, and that they have the right to counsel before any questioning can permissibly take place. -If a subject is in custody and interrogation is going to take place, this type of Warning is required to be recited.

Arizona v. Johnson

*A police officer seizes everyone (Passengers) in a vehicle* -Gang member -The officer is reasonable to frisk if they have reasonable suspicion the passenger has a weapon.

Crain v. Texas

*A reasonable person in the defendants situation would not have felt free to leave or decline the officers order to "come over here and talk to me"* -The defendant was detained at that point, and the officer's lack of reasonable suspicion for that detention means that the weapon found during the subsequent search is inadmissible. -The nature and tone of the way the officers talks to the person matters in whether the interaction is a consensual encounter.

Brower v. Inyo County

*A seizure occurs when government termination of a person's movement is affected through means intentionally applied* -Court held that a violation of the 4th Amendment requires an intentional acquisition of physical control.

Brendlin v. California

*A vehicle is given standing because they feel and are seized - Passengers feel & are seized during traffic stops* -Landmark case that established that all passengers were seized in traffic stops and therefore had standing in court -Whereas the *search* of an automobile does not implicate a passengers rights under fourth amendment, a *stop* results in the future of the passenger and driver alike. Thus a passenger of a stopped automobile does have standing to challenge the *seizure* as unconstitutional

US v. Howard

*Can't create exigency in bad faith* Factors which determine if the government (police) manufactured the exigency. -Is there evidence of bad faith? -Did officers specifically intended to create the exigency? -Were law enforcement's tactics reasonable under the circumstances?

Michigan v. Long

*Case authorizes protective searches (frisk) of vehicles* -Frisk of passenger compartment for weapons (NOT A SEARCH)

Katz v. US

*Case that outlines "reasonable expectation of privacy"* -A persons right to privacy exists when: *Two Prong Test* 1. A person exhibits actual expectation of privacy (subjective) and 2. The expectation must be one that society is willing to accept as reasonable. (objective)

Florida v. Royer

*Consensual Encounters Permitted* -Says LEOs don't violate the 4th Amendment by merely approaching an individual on the street or in another public place by asking them if they are willing to answer some questions. -Must be voluntary; Citizens are not required to answer questions if the LEO and citizen are engaged in a consensual encounter

Arizona v. Gant

*Current case law for Search of vehicle incident to arrest* -Limited the search incident to lawful arrest of police -Police may search the passenger compartment of a vehicle incident to a recent occupants arrest only if: 1) It is reasonable to believe that the arrestee might access the vehicle at the time of the search (relates to officer safety); or 2) That the vehicle contains evidence of the offense of arrest (must be related to the arrest) -Searches of a vehicle are no longer automatic under search incidental authority -Officers will be required to articulate the basis for actions -Doesn't include a trunk

Berguis v. Thompkins

*Defendant's invocation of his right to silence must be unambiguous (without question)* -Defendant should have remained mute or affirmatively invoked his right to silence to secure its protection.

Brown v. Texas

*Established that failure to ID cannot be an offense during a detention* -Held that the statute requiring the defendant to identify himself violated the 4th amendment because it required no basis for suspecting defendant of any misconduct -Suspect can refuse ID request while detained; -A person cannot be required to ID himself, even if stop is *lawful*. -You may orally command the person to remain for a *reasonable length of time* that can be satisfactorily accounted for, while actively involved in the investigation at hand. -You may take the person with you to check out a possible crime scene.

Mapp v. Ohio:

*Exclusionary Rule* -Supreme court decision set the judicially established rule that prohibits the use of evidence obtained in violation of the 4th amendment in court. -All evidence obtained by searches and seizures in violation of the fourth amendment is, by that same authority, and inadmissible in a state court.

Terry v. Ohio

*Gave officers stop & frisk based on reasonable suspicion* -Landmark ruling that a police officer can detain without arrest, and frisk for officer safety when there is reasonable suspicion that a crime is about to be committed. -Court rules that detention is a seizure, and frisk is a search, but is allowable since they are temporary and limited in scope, respectively. -Must articulate reasonable fear for safety for a frisk

Alvarez v. Texas

*Not current case law* -"Searches incident to arrest are not limited as matter of law to those made at the instant the suspect is taken into police custody but rather, legal basis for concluding that these searches are reasonable within meaning of State and Federal Constitutions is ordinarily applicable during entire interval following arrest and leading ultimately either to detention of suspect or to his release on bail pending formal accusation and trial" -Applicable during entire interval following arrest and leading ultimately either to detention or release on bail

New York v. Belton

*Not current case law* -Search of a vehicle incident to arrest is limited to the passenger compartment and includes any containers inside

US v. Moorehead

*Not current case law* -Stated that in Searching Vehicles Incident to Arrest the defendant need not be in the automobile and may be effectively restrained.

Thornton v. US

*Not current case law* -Vehicle pulled over and driver exited before LEO had chance to initiate stop. -Officer stopped and arrested the driver, and searched vehicle incident to arrest. -Defendant challenged the arrest but it was upheld because driver had recently exited vehicle. *-You can establish a link that they were just in the car*

Carroll v. US

*Officers could search vehicles without warrant* -US Supreme court case that allows officers to search readily moveable vehicles, in which they have PC to search -Do not need a warrant to search a vehicle b/c it being "readily mobile" constitutes exigent circumstances. *1. Vehicle must be in a public place.* *2. Must be "Readily Mobile"* *3. Must be PC to believe the vehicle contains contraband or evidence of a crime.*

Minnesota v. Dickerson

*Plain Feel:* Must be there legally, must immediately recognize contraband, & must not manipulate -When a police officer who is conducting a lawful patdown search for weapons feels something that plainly is contraband, the object may be seized even though it is not a weapon.

Pennsylvania v. Mimms

*Police may order driver out of vehicle during lawful traffic stop*

California v. Hodari

*Seizure = When someone yields to authority* -In order for a seizure to have occurred there must either be some application of *physical force*, even if extremely slight, or a *show of authority* to which the *subject yields*. -A show of force without any application of physical force, to which the subject does not yield is NOT a "seizure."

Ramirez v. Texas

*Situations that May Constitute Custody:* 1- "Physically deprived of freedom of action in any significant way" OR 2- "When a law-enforcement officer tells the subject he cannot leave" 3- "When law-enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted" 4- "When there is probable cause to arrest and law-enforcement officers do not tell the suspect he is free to leave"

Illinois v. Wardlow

*Sudden + unprovoked flight from clearly distinguishable police officer is reasonable suspicion to search* -Flight is not necessarily indicative of ongoing criminal activity however, a defendant's unprovoked flight from officers in areas of heavy narcotics trafficking supports reasonable suspicion that may be involved in criminal activity and justifies a stop

Wong Sun v. US

*The Fruit of the Poisonous Tree Doctrine* -Established that evidence obtained after illegal government action will be excluded from evidence. -This includes physical/tangible as well as intangibles such as subsequent confessions, admissions, identifications, and testimony obtained as a result of the initial unlawful act.

US v. Bonner

-"During a traffic stop, police may exercise reasonable superintendence over the vehicle, its driver, and passengers. *-Passenger in a traffic stop can be stopped for running*

Esquivel v. Texas

-*Affirmed Chimel v. California* -Dynamic entry into motel room. -Discovered shotgun under bed. -*Upheld because it was area in immediate control (wingspan).*

Stegald v. US

-*Entry may be forced for arrest warrant* only if being executed at the residence where the person named in the arrest warrant lives.

Pyles v. State

-*Factors to consider when determining whether suspect may be committing an offense include flight when officers approach*

California v. Greenwood

-*Garbage left out outside the curtlage does not exhibit an expectation of privacy and may be searched*

Rhodes v. Texas

-*Handcuffing of suspect during detention for safety reasons was reasonable and justified, and did not convert the detention to arrest.* -"...Stop was made late at night in a high crime area, officers had observed defendant and driver of vehicle in which defendant was riding engaged in unusual activity, including attempting to a Veda officers and dropping bag from vehicle during officers pursuit an officer testified that he handcuffed offended for safety concerns arising from partners pursuit of driver, who had fled on foot, and not to arrest defendant."

Georgia v. Randolph

-*If consent is given by one individual and refused by another who is present, you do not have consent to search*

Warden v. Hayden

-*May enter a place for the purpose of search and seizure if you are in fresh pursuit of a fleeing felon* -Exignecy; Hot pursuit

US v. Mitchell

-*Not current case law* -Upheld Belton and Moorehead that: -"The fact that defendant had been handcuffed and placed in police vehicle prior to the commencement of the search that yielded the firearm does not affect the lawfulness of the search."

Muehler v. Mena

-*Officers may handcuff individuals present when they execute a dangerous search warrant at a residence* -Subjects may remain handcuffed during the remainder of the search

California v. Acevedo

-*Police could search containers found in an automobile without a warrant if their search was supported by probable cause*

Michigan v. Fisher

-*Search and seizure reasonable if police have PC to believe someone needs medical attention* -Able to kick in the door

US v. Henke

-*Smell of marijuana is PC to search vehicle* -Smell dope = You get the whole car

Richards v. Wisconsin

-*The court ruled that a state blanket exception*, allowing no-knock entries for felony drug crimes was *unconstitutional* -Officers need to articulate individual reasons for knock & announce waiver (no-knock warrant) -*No-knock warrants should be given on a case-by-case basis*

US v. Reed

-*The officer's detection of Marijuana in itself justified the subsequent search of the defendant's vehicle. * -The detection of the odor of marijuana justifies a search of the entire vehicle... -Be able to articulate searching person after removing from vehicle (ie. blood shot eyes, smell of mj on person)

Bumper v. North Carolina

-*The police may not tell falsehoods (i.e. saying they have a warrant) in order to gain consent for search* since a warrant is not consent, but rather a submission to the law.

US v. Garcia

-*The search of hidden compartments during a consent search is reasonable* -Officer had the right to look for hidden compartments

Florida v. Powell

-*YES: A partial reading of the Miranda Warning is sufficient as long as it is communicated*; The Court has not dictated the words required -Are the warnings that a suspect has "the right to talk to a lawyer before answering any of the law-enforcement officers questions" and that he can invoke this right "at any time... during the interview" sufficient to Miranda?

Frisk

-A Pat down of the outer clothing of a person whom you have stopped. -To protect the safety of the officer. -Not a fishing expedition. -Permitted anytime an officer is in contact with another person and can articulate reasons that he feared for his safety; whenever an officer has reasonable suspicion another has a weapon on or about his person that can be used to cause injury or death.

The best way to search?

-A Warrant

Inventory

-A detailed list of articles of property: a list or schedule of property, containing a designation or description of each specific article. -IS NOT A SEARCH but may result in the discovery of evidence -Must be conducted in good faith

Baity v. Texas

-A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. -The officer may make reasonable inferences which he is in titled to draw from the facts in light of his experience *-Affirmed Terry v. Ohio Detention and Frisk provisions* (at CCA state level).

Oregon v. Haas

-A state is free as a matter of it own laws to *impose greater restrictions on police activity* than those of federal constitutional standards.

Florida v. J.L.

-An anonymous tip that fails to predict future conduct of the suspect being informed on, is insufficient to establish the requisite reasonable suspicion to support a valid frisk *-Anonymous tip does not justify detention (unless corroborated)* -*Totality of circumstances*

Definition: Search

-An examination of a man's house or other building or premises, or of his person, with a view to the discovery of contraband or illicit or stolen property, or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offense with which he was charged. -A prying into hidden places for that which is concealed and it is not a search to observe that which is open to view.

Koertge v. Texas

-Anonymous tip of excessive traffic from house known to be drug house. -After call officer observed car leave house, arrested driver and found Marijuana. -Another tip came in driver had exited with briefcase and placed in trunk. -Officer found and forced entry finding cocaine and amphetamines inside. -*Totality of Circumstances established probable cause*

Definition: Curtilage

-Area of open space surrounding a dwelling which is so immediately adjacent to the dwelling that it is considered part of the house. -Open fields begins where this ends

Search Incidental to Arrest

-Arrest must be lawful -Search area within immediate control (wingspan) -Contemporaneous with arrest (AKA: happening now or with the arrest)

Why are vehicles not an area where we have an expectation of privacy?

-Because they are readily movable

The Highest Expectation of privacy is in our _______________ and _________________.

-Bodies -Residences (Recently added: Cell Phones)

US v. Arvizu

-Border Patrol agent and suspicious vehicle -10 perfectly legal actions lead to suspicion -In making reasonable-suspicion determinations, reviewing courts must look at the *"totality of the circumstances"* of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. This process allows officers to draw on their own experiences and specialized training to make inferences from and deductions about the cumulative information available.

Atwater v. Lago Vista

-Case law that supported in Texas you can arrest for any offense.

During a traffic stop, the officer has a right to:

-Check for outstanding warrants and request 1) a drivers license 2) Insurance papers, and 3) identification Additionally, the officer MAY ask about the drivers destination and purpose of travel during a valid detention, although neither the driver nor the passenger is compelled to answer these questions

Lemons v. State

-Child predator and a cell phone case *-Applied consent was given when the defendant gave handed his phone to a Detective investigating him* -Material was discovered on his phone leading to an arrest, it was challenged because he never gave consent, but was overruled because there was applied consent given when he handed over the phone.

Under Miranda v. Arizona a statement may not be _______ and it must be ___________.

-Coerced -Voluntary

Appropriate Responses to Suspicious Activity

-Continued Observation -Computer Checks -Approach suspect and ask questions -When enough facts are developed to establish a reasonable suspicion, a temporary detention may be in order -Avoid commands, but officer safety first

Persuasive Authority/Precedent

-Court case law that *MAY* be taken into account by a judge in deciding a case -From same level court, or a court not in the same circuit/region/district

Binding Authority/Precedent

-Court case law that *MUST* be taken into account by a judge in deciding a case -Set by a court in the appellate chain for the court it binds

US v. Robinson

-Crack found in cigarette pack during search after arrest. -*May search all of a person during arrest.* -Scope of the search of a person incident to arrest is for evidence of a crime, means of escape, & weapons

APD Policy 318.1.1 Detentions, Field Interviews and Field Photographs - A person is in ______________ only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.

-Custody

APD Policy 318.1.1 Detentions, Field Interviews and Field Photographs - ____________ can be constructed as actual or constructive; therefore it is incumbent upon the officer to be conscious of the subject's belief about whether or not he is free to leave.

-Custody

Carrasco v. Texas

-Defendant argued that because the police had exclusive Control over their bag at the time they searched it, the search could not be justified as an incident of arrest. -The Court of Criminal Appeals held that the police did not have exclusive control over the bag because the search was made at the scene of the arrest in the appellant was only a few feet away at the time and could have obtained access to a weapon, have one and then in the bag. -*Courts were good with this since the cocaine found in the purse was found incident to arrest since she had access to it*

Kuciemba v. State

-Defendant challenged the sufficiency of the evidence to establish that he was driving on a public highway while intoxicated, because his extrajudicial confession on the videotape was not corroborated by other evidence. -The Court found that the defendant's admission in the videotape that he was driving the vehicle was sufficiently corroborated by his presence at the scene, the vehicle insurance documents listing him as owner of the vehicle, and the officer's opinion based on his investigation that defendant was the driver. -*Totality of the circumstances*

US v. Edwards

-Defendant tried to break into a post office and got paint on his clothes -Searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused *arrives at the place of the detention* -Allows the search of arrested individuals away from the scene of arrest at police station. -Anything you have in your possession is subject to seizure at a place of detention

Consent is not voluntarily if it is obtained by means of?

-Expressed or implied threat, or is it nearly amounts to a peaceful submission to authority

A legally valid consent to search is a waiver of a person's 4th amendment rights to be searched and have property seized only on the authority of a lawful search AND requires that consent be?

-Given voluntarily and knowingly a person with the authority and capacity to grant consent

Illinois v. Gates

-Held that even though an anonymous tip might not be a credible source, that when detailed facts of innocent activities are *corroborated* by observation, then PC for a warrant may exist. -Verified anonymous tip with detailed information gives a greater credibility -*Totality of Circumstances*

Allen v. Texas

-Houston PD -Suspect had Expired License plate, and Expired Dealer tags. -Defendant reached into his pockets and attempted to toss a baggie that tested positive for cocaine -Arrest was challenged but the stop was upheld as lawful because officer *lawfully detained vehicle for a valid traffic violation*.

Adams v. Williams

-If a tip comes from *reliable informant*, then you can stop and ask questions because it gives *reasonable suspicion* -Reasonable suspicion of a stop and frisk need not be based only upon an officer's personal observations but MAY also be based on information supplied by another person. -Under these circumstances, a police officer's action in reaching the spot where the gun was thought to be hidden constituted a limited and reasonable intrusion designed to insure the officer's safety.

Right to Be... Right to See

-If you have the right to be there, you have the right to see, hear, or smell what is exposed to public view

Application of Probable Cause - Arrest for that offense which the probable cause lead you to believe:

-Is occurring -Is about to occur, OR -Has occurred

Illinois v. MacArthur

-It is reasonable for a police officer to *secure a person's home and not allow the occupant entrance while a search warrant is sought* in order to prevent the destruction of evidence.

Expectation of Privacy - Conversations

-Keep voice down

Wilson v. Arkansas

-Knock and announce requirement could be waved for threat of violence or possible destruction of evidence -*No-Knock Warrant creation*

Types of Searches: Inventory

-Liability driven and policy approved *NOT A QUEST FOR EVIDENCE*

Knowles v. Iowa

-May not search incident to citation, a custody arrest must be made in order to justify a search incidental

Scope of Search

-Means the area authorized by a particular search or the limitations of a particular type of search or object. -For instance, a search incident to arrest allows a search of the wingspan of an individual -Or when searching for a person, we may not open a drawer or a briefcase -Likewise, when searching for a stolen television and an automobile, we may not open the glove box

Montejo v. Louisiana

-Murder suspect automatically appointed an attorney -No reason to distinguish, for the purposes of a suspect waiving their rights, a represented individual from an unrepresented one (no attorney). *-Defendant did not expressively invoke his right to an attorney counting as a waiver of that right.* -For each a Miranda Warning adequately inform the individual of their right to counsel.

An exigency created by the officer's own conduct as an excuse for warrantless entry is?

-NOT Permitted

Aguilar v. Texas

-NOT USED ANYMORE -Magistrate must be informed of underlying circumstances to support warrant. -Hearsay information and unidentified informant not sufficient. -Created a 2 prong test (*Aguilar/Spinelli Test*) 1. A credible source 2. A reliable base of knowledge -*Totality of the circumstances*

Exceptions to the Exclusionary Rule

-No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained. -It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a *law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause*.

CCP 38.22 Provides the following:

-No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that: (a) the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that: (1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial; (2) any statement he makes may be used as evidence against him in court; (3) he has the right to have a lawyer present to advise him prior to and during any questioning; (4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and (5) he has the right to terminate the interview at any time; and (b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.

US v. Robinson

-Officer pulled over defendant and had probable cause to arrest him for DWLI; Found heroin -A search incident to a lawful arrest was clearly authorized. -When an officer has probable cause for an arrest, a more extensive exploration of the suspects person is authorized. This is to protect the officer, but also to preserve evidence -*When a person is lawfully arrested you can search their person*

Guzman v. Texas

-Officer stopping a suspect from swallowing heroin, which he knew about from his prior knowledge and experience (common for dealers to do this when approached by police) -PC for arrest deals with probabilities; It requires more than mere suspicion, but far less evidence than that needed to support conviction or even that needed to support finding by preponderance of evidence. -Avoiding officers is a factor to consider when determining PC; Also appellant was found in an area known for drug trafficking -*Totality of the circumstances* was cited in court's decision. -APD Assistant Chief Gay's case

APD Policy 318.4 - Consensual Encounters

-Officers are encouraged to initiate interviews with people of the community in order to gain a thorough knowledge and become an integral part of the community. A) Officers may talk to persons at any time, for any reason, in performance of their duties B) An interview should be *conversational* and NOT *confrontational* C) A consensual encounter is not a stop or arrest and there is no intent to inhibit any rights or freedoms of a person. The person has the right to: 1) Fail to respond to the officer 2) Refuse to identify himself 3) Walk away from the officer D) Negative inferences will not be made based on a person's refusal to cooperate in the interview. E) Photographs of persons interviewed during a consensual encounter shall not be take without the person's permission.

Colorado v. Bertine

-Officers may open closed containers during inventory *only pursuant to standardized police procedures* -Inventory in its totality needs to be within standardized police procedures

Maryland v. Wilson

-Officers may order both drivers and passengers out of vehicles they have stopped without any further justification or PC. *-Gives us both driver and passengers*

Hurtado v. Texas

-Originally stopped because tag came back with *possible warrant for several persons who had operated a vehicle with that dealer's tag*, which was a valid stop. -It wasn't the driver, but they *discovered cocaine in the car (plain view)* -The fact that the defendant was not named on one of the outstanding warrants for several persons the operated motor vehicle using a dealers tag which was on the vehicle the defendant was driving did not retroactively diminish the police officers ability to stop the defendants vehicle and determine his identity and whether he was subject of one of the warrants

Armstrong v. Texas

-Overturned -Illegal stop and arrest. -*Consent to search given after arrest* and the court concluded that under these circumstances the evidence was seized through *exploitation of the illegal stop rather than by means sufficient to remove the primary taint*.

Can an officer rely SOLELY on a BOLO to justify a stop?

-PC is to be evaluated by the courts on the basis of the collective information of the police rather than that of only the officer who performs the act of arresting and the arresting officer's information maybe used to corroborate otherwise insufficient PC -When there has been some cooperation between law enforcement agencies or between members of the same agency, the sum of the information known to the cooperating agencies or officers at the time of an arrest or search by any of the officers involved is to be considered in determining whether there was sufficient PC therefore

Maryland v. Pringle

-Police officer had probable cause to believe that defendant, who is in the front passenger seat of the vehicle, committed the crime of possession of cocaine, either solely or jointly with other occupants a vehicle, and therefore defendants arrest did not contravene the 4th and 14th Amendments -Established PC on 3 occupants of a vehicle containing cash in the glove box and cocaine in the rear armrest, was able to articulate joint enterprise. *-MAY arrest all persons involved if contraband is accessible to all persons*

Types of Searches: Search Incident to Arrest

-Probable Cause

Types of Seizures: Arrests

-Probable Cause

Types of Searches: Probable Cause Searches

-Probable Cause (Duh...)

Types of Seizures: Detention

-Reasonable Suspicion

In the Matter of P.M.

-San Antonio PD 2003 case -Stopped a juvenile who appeared nervous -Reasonable suspicion and fear for his safety lead to a protective search (frisk) for weapons, which they found he was armed with a handgun -Officer had a reasonable suspicion supported by articulable factors making the search constitutional -*Pat down search for weapons required only reasonable suspicion that the appellant was armed*

A ____________ is the prying into hidden places for that which is concealed and it is not a ____________ to observe that which is open to view.

-Search

A _____________ is an examination of a man's house or other building or premises, or of his person, with a view to the discovery of contraband or illicit or stolen property, or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offense with which he was charged.

-Search

US v. Chadwick

-Search of locked luggage -The rule is that warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the search is remote in time or place from the arrest or no exigency exists -*Had they searched contemporaneously with arrest it would have been justified, since it wasn't they needed a warrant*

US v. Armendariz-Mata

-Search of partially open briefcase on backseat of defendants vehicle, which was 5 feet from defendant at time of arrest, was authorized because briefcase was *within the defendants "grab area"*

Lippert v. Texas

-Search warrant for a drug house commenced and people walked in as it was being conducted; They were arrested which was not lawful -The fact that a person is close to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. -*Can't arrest someone that shows up after the fact (search warrant)*

Definition: Exigent Circumstances

-Situations that demand unusual or immediate action in the course of a criminal investigation. -Refers generally to situations in which law enforcement agents will be unable or unlikely to effect an arrest, search or seizure for which PC exists unless they act swiftly and without seeking prior judicial authorization.

Exceptions to the Warrant Requirement

-Stop and Frisk -Searches Incident/Arrest -Hot Pursuit -Plain View -Automobile Exception -Community Caretaking -Exigency/Emergency

APD Policy for Detention and Custody Arrest states: A ______________ approval is required for all custody arrests and releases when a claim of immunity is involved.

-Supervisor

Chimel v. California

-Suspect in burglary of a coin shop -An arresting officer may search the arrestees person to discover and remove weapons and to seize evidence to prevent it's concealment or destruction and may search the area within the immediate control of the person (wingspan) arrested meaning the area from which he might gain possession of a weapon or destructible device -Incident to arrest an officer may search the person and the *"area within the immediate control"* -Arrest warrant NOT a search warrant

Texas and the U.S. 5th Circuit

-The Court of Criminal Appeals has repeatedly held that it is not bound by decisions of the federal courts of appeals of the 5th Circuit in particular. -This is true even if the matter at issue is one of federal law. In -Pruett v. State, the court explained that state courts and lower federal courts are of "parallel importance" even regarding federal law matters.

US v. Banks

-The Court unanimously held that *15 to 20 seconds* was a reasonable period for police to wait before entering by force when they were investigating drug charges because waiting any longer was likely to result in the destruction of evidence. -No-knock entry will do damage, but it is justified.

Riley v. California & US v. Wurie

-The US Supreme Court ruled that both of the warrantless searches of the cell phones in these cases violated the 4th amendment of the Constitution -Officers should not search a cellphone as a search incident to arrest *-May search cell phone with* *1. Search warrant* *2. Consent of owner* *3. Exigent circumstances.*

Suspicion

-The apprehension of something without proof or upon slight evidence. This implies able leave or opinion based upon facts or circumstances which do not amount to proof. -To imagine one guilty, or culpable on slight evidence without proof -Less than proof; Less than PC but sufficient to lead an officer to "stop" and "frisk"

Heitman v. Texas

-The court of criminal appeals will not be bound by the US Supreme Court when addressing 4th Amendment issues. -The *Federal Constitution sets the FLOOR for Individual Rights*; *State Constitutions establish the CEILING*

Federal vs. State Jurisdiction

-The general rule that determines whether a criminal case should be filed and tried and federal or state court is: -If an act is a violation of federal law, the trial will be held in a federal court; if the act is a violation of state law, the trial will be held in state court. A crime that violates both federal and state laws (such as kidnapping, transportation of narcotics, counterfeiting, or robbery of federally insured bank) maybe tried and both federal and state court. -No double jeopardy attaches due to "dual sovereignty" -Civil rights violations may be tried in either

Restraint

-The kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right. (CCP 11.22)

The skill of the search is limited by

-The scope of the authorized consent

US v. Matlock

-The search of property, without warrant and without probable cause, but with proper consent voluntarily given, is valid under the 4th Amendment. -The consent of one who possesses common authority over premises or affects is valid as against the absent, nonconsenting person with whom that authority is shared. *-Whoever is there is the one that can give or negate consent*

US v. McSween

-The smell of marijuana gives *PC to search ENTIRE vehicle including trunk and under the hood*. -Smell dope = You get the whole car

Florida v. Jimeno

-The standard for measuring the scope of a suspect's consent is that of *"objective reasonableness"* based on the conversation between the officer and the suspect. -Not required to ask for consent for each individual item or area to be searched.

The Appellate Process

-The state may appeal pretrial suppression issues prior to Jeopardy attaching (seated jury). -If a defendant wins a reversal on appeal, the case maybe tried again without violating the constitutional prohibition against double jeopardy because that right is considered to have been waived by the defendant when he or she appeals

Elements That Determine When a Detention Becomes and Arrest:

-The use of handcuffs -The need to gain control over the suspect -The use of force, including the display of weapons -The length of the detention -The comments made an language used by the detaining officer -The reasonable perception of the suspect as to his status -The overall intrusiveness of the detention -The opinion of the detaining officer

Constructive Custody

-The words "confined", "imprisoned", "in custody", "confinement", "imprisonment", refer not only to the actual, corporeal and forcible detention of a person, but likewise to any coercive measures by threats, menaces or the fear of injury, whereby one person exercises a control over the person of another, and detains him within certain limits. (CCP 11.21) -Understanding on behalf of the subject being arrested that he is arrested without any physical control being demonstrated by the officer. The individual submits.

US v. Mendenhall

-To determine whether an arrest has taken place, a court will apply an objective standard, focusing on the reasonable impression conveyed to the person subjected to the apprehension and detention. -In this respect, the inquiry is whether, in the view of all the circumstances surrounding the encounter, *"a reasonable person would have believed that he was not free to leave."*

Custody

-Under arrest by a peace officer or under restraint by a public servant pursuant to an order of a court of this state or another state of the United States; or -Under restraint by an agent or employee of a facility that is operated by or under contract with the United States and that confines persons arrested for, charged with, or convicted of criminal offenses.

Maryland v. Dyson

-Upheld 4th amendment automobile exception when police have PC, even with ample opportunity to obtain a warrant. -LEO waited 13 hrs for defendant to drive by, stopped, and searched his car, found crack. -*You don't need exigency for to search a car just PC*

Douglas v. Texas

-Upheld the Terry frisk of vehicles in Texas courts -"Thus we hold a limited search of the vehicle was warranted to alleviate the officer's legitimate concerns for his safety" -*Reiterates Michigan v. Long*

Diplomatic Immunity

-Verify the status of the suspect. -If the situation be one that would normally warrant arrest or detention, the officer should inform the individual that they will be detained until his or her identity has been confirmed. -copy of the incident report should be faxed or mailed to US department of state in Washington DC or to the US mission to the UN in New York in cases involving UN community ASAP

Florida v. Wells

-Very similar to Colorado v. Bertine -*Inventory must not be a ruse for a general rummaging in order to discover incriminating evidence.* -Expressedly addressing closed containers -Inventory of closed containers must follow standardized criteria

Types of Searches: Consent Searches

-Voluntary Consent (Voluntarily and Knowingly; By a person with authority incapacity to grant consent)

Johnson v. Texas

-Was a decision by the Supreme Court of the United States that invalidated prohibitions on *desecrating the American flag enforced in 48 of the 50 states.* -Under both the Texas constitution and the 4th Amendment, and either investigative detention or arrest, "seizure" of person has not occurred until reasonable person would believe that they were not free to leave, and that person has *yielded* to the officers show of authority or been physically forced to *yield*

APD Policy: 306.5: Search Incidental to Arrest (Person)

-When a lawful arrest is made, officers are permitted to conduct a contemporaneous search of the arrestee -Such a search safeguards the arresting officer and others nearby from harm while ensuring that the arrestee will not discard or destroy evidence • Entirely reasonable for arresting officers to search area person might grab or reach

Stare Decisis

-When a point of law has been settled by decision of the highest court of the state the decision becomes the law of the state, and shall not be departed from. -Provides certainty and structure to the criminal justice system, and once a rule is deliberately adopted and followed, it should not be abandoned. -Applicable to trial and appellate courts, and the court of appeals must follow the law as previously declared an applied in the courts in the state.

Wyoming v. Houghton

-When a police officer has probable cause to believe a vehicle contains contraband, the "automobile exception" and compasses any containers in the vehicle that might contain the object of the search, regardless of whether a container belongs to the driver or a passenger. *-If searching a vehicle w/ PC you may search all containers in the vehicle, regardless of who the owner is. * -Must establish RS or PC to search passengers.

The warrant requirement in regards to residences is much more zealously enforced by the courts (both criminal and civil) than in any other type of searches - The exceptions are:

1) Consent 2) Probable Cause and Exigency 3) Community Caretaking/Emergency Aid

Two elements are necessary to require Miranda rights being read to the suspect:

1) Custody 2) Interrogation

APD Policy states that officers arrest any person found to have an outstanding warrant, including:

1) Felony, Class A or Class B warrant will arrest the person 2) Class C warrant will not arrest the person unless authorized by supervisor

Identify the conditions for arrest:

1) Intent 2) Authority 3) Seize and Detain 4) Understanding of the Individual Being Arrested

The scope of the search incident to arrest should include:

1) a complete search of the person 2) a search of the objects and the actual possession of the arrested person 3) a search of areas within the person's immediate control 4) the passenger compartment of the vehicle if the person is arrested out of the vehicle

Plain Feel - 3 Concepts

1) must be there legally conducting the frisk 2) must immediately be able to recognize as contraband 3) must not manipulate

When a Felony has been Committed: Four requirements are necessary:

1) person who gives the officer information must be credible; 2) it must be a felony offense; 3) the offender must be about to escape, real and imminent, AND; 4) there is no time to get a warrant

You Need These 3 Things to Stop Someone for a Detention:

1) reasonable suspicion by a peace officer that some activity out of the ordinary is or has taken place 2) some indication to connect the person, to be detained, with the suspicious activity 3) some indication the suspicious activity is related to a specific offense

Impound Legal Checklist - There are several factors that courts consider in determining the reasonableness of an impoundment:

1) the availability of someone at the scene of the arrest to whom the officers could have given possession of the vehicle 2) whether the vehicle was impeding the flow of traffic or was a danger to Public Safety 3) whether the vehicle was locked 4) whether the detention of the arrestee would likely be of such duration to require the police to take protective measures 5) whether there was a reasonable connection between the arrest and the vehicle 6) whether the vehicle was used in the commission of a crime

APD Policy 306.9 Plain View - An Item in Plain View May Generally be Seized When ALL of the Following Conditions Exist:

1) the object must be in plain view; AND 2) officers conducting the seizure must lawfully arrive at a position from which the object is plainly seen; AND 3) officers must have a lawful right of access to the object itself, apart from lawfully viewing the object; AND 4) the objects incriminating character must be so immediately and sufficiently a parent that officers have probable cause to believe the object is contraband or evidence of a crime

The _____________________ is triggered (police) intrusions into a place where one has a reasonable expectation of privacy (REP)

4th Amendment

No Standing to Complain

A person has no standing to assert violations of another's rights, or to complain about the search or seizure of property not under his lawful control or possession

Definition: Probable Cause

A reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime.

APD Policy 318.3.1 - Handcuffing Detainees

A) Situations may arise where it may be reasonable to handcuff an individual who is lawfully detained B) Officer should weigh the safety interest of all persons involved against the intrusion upon the detainee when deciding to place handcuffs on, or remove handcuffs from, a detainee C) Unless arrested, the use of handcuffs on detainees at the scene of a search warrant should continue for only as long as is reasonably necessary to assure the safety of officers and others

What part of the vehicle can you search with probable cause?

All of it

What may not be used for PC?

An officers personal biases or prejudices; hunches (inaccurate suspicions); uncorroborated anonymous tips containing only general information

Contraband

Any property which is unlawful to produce or possess. Things in objects outlawed and subject to forfeiture.

Open Fields

Authorizes law enforcement officers to enter and search this without a warrant. In Hester, Justice Holmes explained that the special and unique safeguards provided by the 4th amendment to the people in their persons, houses, papers, and effects, is not extended to this

A person has standing to contest the search of a vehicle if they have this over it?

Care, custody, and control of the vehicle.

According to case law a vehicle inventory must be in accordance with this?

Departmental policy

Police officer may briefly stop a suspicious individual in order to?

Determine his identity or to maintain the status quo momentarily while obtaining more information

The following types of ID are issued to someone with diplomatic immunity or consular immunity:

Diplomatic = Blue bordered Consular = Red bordered Official = Green bordered -The Dept. of State ID cards are 3-3/4 inches and 1-1/2 inches and contain a photograph of the bearer

Elements used to build PC

High crime rate area, time of day or night, location, furtive act, abnormal demeanor, officer's own knowledge of facts and circumstances.

Even in the absence of bad faith, a detention based on a mere hunch is?

Illegal (Can't stop someone without reasonable suspicion)

Tools of the Crime

Implements used to assist in committing crimes (i.e. screwdrivers, masks, guns, etc.)

Types of Searches: Administrative Searches

Is conducted as part of general regulatory scheme in furtherance of it in ministry to purpose, rather than as part of a criminal investigation to secure evidence of a crime. -TABC (bars) -Schools -Airports -Commercial Vehicles (trucks) -Government Housing

Mere Evidence

Items having only evidentiary value to a case (not illegal to have but is evidence)

Fruits of the Crime

Material objects acquired by means and in consequence of the commission of a crime, and sometimes constituting the subject matter of the crime

Hoag v. State

Mere suspicion that criminal activity is afoot is insufficient to justify a Terry stop; facts must support reasonable suspicion that: *3 Prong Test* *1. Reasonable suspicion that some activity out of the ordinary is or has taken place.* *2. Some connection of the detained with the suspicious activity.* *3. Some indication the suspicious activity is related to a specific offense.*

Although the duration of the investigative detention is a factor to be considered, the passage of time alone is _________________.

Not determinative

Protective frisk is limited to this portion of the vehicle?

Passenger compartment

An object falling in ____________ of officer who has the right to be in position to have that view are subject to seizure without a warrant and may be introduced in evidence. A person who exposes an item to __________ does not have a reasonable expectation of privacy.

Plain View

Expectation of Privacy - Items

Put in opaque containers -Suitcases -Backpacks -Vehicle glove box, trunk, etc.

Protective frisk of a vehicle is based on this level of suspicion?

Reasonable Suspicion

Although police officers may approach and question an individual, the individual may

Refuse to answer any questions put to him and may go on his way

Reasonable Suspicion

Specific articulable facts which, in light of an officer's experience and general knowledge, taken together with rational inferences from those facts, would reasonably warrant an intrusion on a citizen.

_________ stands for the proposition the entry may only be *forced* to execute an arrest warrant when the warrant is being executed at the resident were the person named in the arrest warrant lives.

Steagald (from Steagald v. US)

Temporary Detention

That which is to last for a limited time only, as distinguished from that which is indefinite in its duration

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The 4th Amendment

Detention

The act of keeping back or withholding by design, a person

Judicial Review

The questioning of police investigation and apprehension that are subject to procedural rules dictated by law and constitutional rights.

Standing

The right of a person to complain in court about the lawfulness of a police action (arrest, detention, search, frisk)

Protective Sweep Doctrine

The rule that when police officers execute an arrest on or outside private premises, they may conduct an examination of the entire premises, without warrant, for other persons whose presence may pose a danger to their safety or to evidence capable of being removed or destroyed.

Crime Scene Exception

There is NO exception to the warrant requirement for crime scenes.

The Exclusionary Rule

This rule commands that were evidence has been obtained in violation of the 4th Amendment, the evidence may not be used at the trial of the defendant.

A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.

WHEN A PERSON IS ARRESTED. (CCP 15.22)

Prior to forcing entry to execute any ________ officer must have a reasonable belief that the person lives at the place to be entered, and that the suspect is present at the time before entering the residence to execute a _______.

Warrant

Examples of Suspicion

What you see, hear, or smell that indicates there may be criminal activity

APD Policy 306.3 Exigent Circumstances Permitting Entry into a Premises w/o a Warrant or Valid Consent - Includes the following:

a) the reasonable believe that a person within is in need of immediate aid b) the need to protect or preserve life or avoid injury c) imminent escape of a suspect d) the reasonable believe that contraband is about to be removed or destroyed e) public safety

APD Policy: 306.4 Consent Searches

• Must get supervisor approval • Must have articulable reason for search • Consent must be given through free will • Withdrawal can be given at any time • Have to fill out department consent form • Form given to supervisor after shift

APD Policy - 306.5: Search Incidental to Arrest (Vehicle):

• Search of passenger compartment can be made if arrestee is unsecured and within reaching distance of passenger compartment • Search can be made if there is reason to believe the vehicle contains evidence • You can examine the contents of any open or closed container within the passenger compartment provided it is within reaching distance of the arrestee. • Locked containers may be seized and a search warrant may be obtained

APD Policy 306.8: Frisk (Pat-Down) for Weapons:

•Limited patting of the outer surfaces of a person's clothing in a attempt to find weapons •Can open bulky jackets or clothing •Packages, purses, and other containers may be frisked as well •Scope limited to persons and places within arm's reach of concealed weapon •May contain passenger area of a car