CONT - Unit 3 - lecture

Intent to Abandon Property - Courts use a totality of circumstances approach when evaluating whether an individual intended to abandon property.

(1) Disclaiming or denying interest or ownership in the property; (2) departing the scene; (3) making no attempt to retrieve or protect the property; (4) leaving the property in the care of no one; (5) leaving the property unattended for a long period of time; and (6) discarding or otherwise relinquishing the property.

Premises - not on test - In the particular case of premises, the following are examples of factors that courts may examine in their totality in order to determine whether a suspect intended to abandon premises:

(1)removing personal belongings; (2)failing to lock doors; (3) being observed vacating the premises and/ or telling others about vacating the premises (4)failing to pay rent for a long time (5)long absence from the premises (6)failure to communicate with anyone regarding the premises; (7)failure to attend to or care for the premises; and (8)holding a moving sale, turning in keys and/ or paying final rent and other bills.

Threats... 1- Jail time 2- Monetary fines 3- Foreclosure 4- Property damage 5- Suspension of driver's license 6 - What about "If you don't we'll get a warrant and come back..." THREAT?

- 1-5 = No, - cannot threaten individuals with means that are not legally possible 6 - this is OK because the officer does have a legal right to do this - if based on totality of circumstances that what the police are saying is in all likelihood true

Reasonable expectation of privacy

- A person who establishes a reasonable expectation of privacy and property has not abandoned that property, and the property may not be searched or sees without a warrant or other legal justification

Clearness and Explicitness of Consent - Voluntary consent to search may be given in writing, orally, or by a person's conduct so long as the expression of consent is clear and unequivocal.

- Consent need not be expressed in words but may be implied from a person's gestures or conduct. - Vanna White gesture? Sure!

Schneckloth

- Cool - Chill - Not violent - No guns drawn - One-Two officers present - No one handcuffed = do not have to say "you have the right to refuse consent" can just ask them if they consent to a warrantless search.

Consent Search Exception to the Warrant Requirement - A consent search occurs when a person voluntarily waives his or her Fourth Amendment rights and allows a law enforcement officer to search his or her body, premises, or belongings. - waving their fourth amendment rights to required that officers have to prove probable cause - opening door to law enforcement

- Does not require a warrant - not an exception to the warrant requirement - The purpose for the officer asking consent is because the officer does not have enough facts or circumstance to support that a crime has happened or is happening to obtain a warrant - officers ask consent because they suspect that something suspicious might be occurring however the officer does not have probable cause to support it - Does not require probable cause

Coolidge Holding (1971) - Coolidge arrested - family spending night in another town, Unoccupied vehicle in driveway - Towed it to station and searched it without a warrant. Valid search?

- Even if car is readily mobile AND officer has PC, if vehicle is on private property and have time to get a warrant - get one! - The Caroll or automobile exception does not apply on private property

Free to Leave Test

- Free to leave test is OBJECTIVE - what would the majority of individuals think - It is not determined by the specific person, but by the average, reasonable person would believe in like circumstances

U.S. v. Wald (10th Cir. 2000) - Officer testified he smelled burnt meth - Searched the passenger compartment (glove box) AND the trunk - are both ok? - Focus on TYPE of PC officer had, what did officer have PC to believe was or had occurred in a very short amount of time?

- Glove box? - Yes - Trunk? - No - unreasonable to think someone was smoking meth in a trunk

Wilson

- Guns drawn - Yelling - Lots of officers/agents present - Handcuffing, physical manipulation - Chaos = tell them they have right to refuse before getting consent

Garages - A garage, and the area immediately surrounding it, is ordinarily considered part of the curtilage, especially if the garage is near or - attached to the dwelling house and - used in connection with it.

- In State v. Ross, 959 P.2d 1188, 1192 (Wash. App. 1998), where the garage was located within twenty-five to forty yards from a street abutting defendant's home, the court prohibited the warrantless entry by police into the area immediately surrounding the garage. - next to but not attached to home - court said you can not search the garage because you have a reasonable expectation of privacy - even if the garage is near your house and not next to it

- Second, what qualifies as readily mobile?

- Inherently CAPABLE of movement, not whether it is readily mobile at a specific point in time In other words.... - It is unnecessary to show the existence of a present risk that the vehicle will be moved at the time of the search.

Searching Open Fields - The Fourth Amendment - does not say anything about open fields therefore law officers do not have to have a search warrant or probable cause to search open fields - This does not include open fields.

- Law enforcement officers may search for items of evidence in the open fields without a warrant or probable cause, and - may seize items if they have probable cause to believe that they are items of an incriminating character - protects people from unreasonable searches and seizures of their "persons, houses, papers and effects."

Area of Search 1- The scope of a consent search depends on what the typical reasonable person would have understood by the exchange between the officer and the suspect.

- May I search you? - Followed by searching the vehicle's trunk - If the search goes beyond that area, evidence seized is inadmissible in court. - Also, logically, where may item or items reasonably be found? Common sense plays a role

Voluntary Production of Evidence 1- Coolidge v. New Hampshire (1971) - 2 officers go to D's home to investigate for murder - no PC - Asked wife whether there were guns in home - Asked what he was wearing the night before - She brought everything to them! - Should they have obtained a warrant to search before asking her these questions?

- NO, If a person voluntarily produces incriminating evidence, without any attempt by police to obtain consent and without coercion, deception, or other illegal police conduct, there is no search and seizure, and the evidence is admissible in court. - officers did not lie or deceived her

Coolidge Cont'd

- No threat of being moved - The family was not in town - No threat evidence would be destroyed/concealed -Had time to get a warrant since they had time to tow vehicle to station to search. -Curtilage - includes the area immediately surrounding a dwelling, and it counts as part of the home for many legal purposes.

Garbage -Absent state law to the contrary, when a person leaves garbage outside the curtilage of a home (i.e., on the curb), the person no longer has a reasonable expectation of privacy in the garbage and the Fourth Amendment does not prohibit the warrantless search and seizure of the garbage

- Note the two pictures in the following slide that exhibit an expectation of privacy versus intent to throw away - proximity matters - A garbage can by the house versus on the street - if garbage is next to the house it has not been abandoned

Probable Cause

- Objective - More than a mere suspicion/hunch - Sight, smells, touch - information for Known informants (reliable) - Experience with same suspect (i.e. Carroll)

Schneckloth Case (1972) - open door to consent - https://www.oyez.org/cases/1972/71-732 (start at 2:40)

- Officer Rand notices headlights/license plate light out on vehicle - officer stops the car to inform the driver - 5 people in car (D in front seat) - Only one passenger had i.d. - driver said it was his brother's car - Asked to search vehicle - driver says "sure go ahead" - found 3 stolen checks under front seat - defendants argued that they did not know they had the right to decline the officer - only time you can not decline in officer is when they have a search warrant

Scope of a Vehicle Search under the Automobile Exception

- Police may search entire vehicle and any containers therein if they have PC that containers are capable of holding item(s) at issue. - The polices scope is limited based on the item or items that they have probable cause about - ex- A body v. drugs - If an officer has probable cause to search only a particular container placed in a vehicle, the officer may search that container but not the entire vehicle. - what is your probable cause based on and what is it for?

U.S. v. Alfonso (1985) - May still obtain consent even if initial confrontation was coercive in nature

- Police with guns drawn, arrested D in motel room - Did brief search around him to ensure he did not have a gun - police holstered their guns - Informed D why they were there and asked for consent to search his luggage, he replied, "Nothing to hide, go ahead." Consent freely given even though not told he had right to refuse? - Consent was freely given, guns holstered

Seizing Abandoned Property - A law enforcement officer, without a warrant or probable cause, may retrieve items of evidence that have been abandoned by their owners.

- Property has been abandoned when its owner has voluntarily discarded, left behind, or otherwise relinquished his or her interest in the property so as to no longer retain a reasonable expectation of privacy with regard to it.

Texas Blocks roadblocks!

- The Texas Court of Criminal Appeals ruled in a case from 1991 that DWI sobriety checkpoints violated a Texan's Fourth Amendment rights and were thus unconstitutional. The ruling allowed for DWI roadblocks to occur only if the Texas Legislature established guidelines - no- violating fourth amendment right because officers are seizing a person/ taking away an individuals freedom without probable cause

Defining "Open Fields" - Open fields is all the space that is NOT contained within the curtilage and need be neither "open" nor "fields."

- The curtilage is the area around the home that harbors intimate activities associated with domestic life and the privacies of the home. - A reasonable expectation of privacy within an area - Society also agrees - this is why you don't see people hanging out on your porch or backyard - expectation of privacy extends to garage, backyard, front porch

Determining extent of cartilage

- The definitive Trend among lower courts after the Supreme Court's decision in Dunn, is to use a totality of circumstances approach in determining the extent of the cartilage - no set factors, case by case - A Front porch is the classic example of cartilage of a home, Florida v Jardines (2013)

Revocation of Consent

- The person giving consent to search may revoke or withdraw that consent at any time after the search has begun, although such revocations of consent should be clear and unambiguous - can be revoked at any time - officers do not have a legal right to search because they lack probable cause

Driveway - In general, if an officer gathers information while situated in a public place or a place where an ordinary citizen with legitimate business might be expected to be, the officer does not invade anyone's reasonable expectation of privacy.

- Therefore, an observation by a police officer from an ordinary means of access to a dwelling, such as a driveway, walkway, front porch or side door, may not violate a person's reasonable expectation of privacy if a member of the public could have also made a similar observation.

Chadwick Case (1977) - The automobile exception is for a car and not any other item

- Train passenger - talcum powder leaking out of luggage - Used to cover up the scent of different drugs - Left train and placed luggage in car trunk, officers stopped him, searched vehicle opened trunk - marijuana - Fit Carroll doctrine? 1- Luggage is not inspected regularly - The Caroll doctrine only applies to a car not a piece of luggage - personal expectation is heightened 2- Luggage is not meant for one to travel in but rather, to travel WITH 3- Personal expectation of privacy heightened - moral of story - cannot follow a container as readily mobile, applies to transportation - Katz test bb

Coercive Start to Confrontation Outcome

- United States v. Wilson, 605 F.3d 985, 1026-28 (D.C. Cir. 2010) - (despite "startling" entry into a home by FBI agents apparently consisting of bursting into the upstairs bedroom of a female homeowner at night, ordering the homeowner onto the floor and handcuffing her, the homeowner's consent to search her home was - voluntary because, among other factors, she was informed of her right to refuse consent to search.

Remember: - In determining whether an outbuilding is part of the curtilage, courts consider factors such as:

- distance from the dwelling house; - presence and location of fences or other enclosures; - any type of fence - use of the building; and - attempts to protect the area from observation.

Collins v. Virginia - Does the Fourth Amendment's automobile exception permit a police officer without a warrant to enter private property in order to search a vehicle parked a few feet from the house?

- next slide

The Plain-View Doctrine—Harris v. United States (1968) - The plain view doctrine permits law enforcement officers to observe, search and/ or seize evidence without a warrant or other justification 1-Plain view observation is not the same as a search. Why? 2- What tests do we use to determine if a 4th Amendment "search" has occurred?

- no warrant 1- Plainview is immediately apparent whereas an officer needs a warrant to search or reasonable suspicion supported by articular facts 2- chimel test - Katz test

Individual Factors/Personal Characteristics 1- Voluntariness of consent may be affected by the

- physical - intoxicated, drugged, = not valid - mental - autistic, or - emotional condition and the - intelligence or educational level of the person giving consent. - These personal characteristics alone, however, are generally not enough to render consent involuntary.

Knowledge of the right to refuse consent

- the Schneckloth Rule - knowledge of the right to refuse consent is only one factor among others to be considered in determining the voluntariness of a consent search - Wilson and Alfredo

Residential Yards and Porches: - WWSD? - What would a salesman do?

- you have an expectation of privacy - consider to be cartilage

Required to give Consent - Officer must:

-Be Lawfully present - have to have justification or lawful reasons to be at a particular place in a certain time - Consent freely given - officer can't threaten or use force - violating constitutional rights

First, what qualifies as PC? Mack v. City of Abilene (5th Cir. 2006) - An informant said Mack "sometimes" had marijuana on him in a specific car - the officers search Mack's vehicle, no marijuana found - Turned to Mack's other car and found marijuana inside the trunk - NO automobile exception, why?

-Nothing was in plain view - Did not have consent - Suspect had not been arrested yet - And MOST importantly - Lacked PC!!!! - only had probable cause for the first car not the second car - Sometimes had marijuana in suburban NOT cadillac

Specific Types of Third Party Consent Cont'd 1- Landlord and tenants? 1.2- Abandoned? 1.3- Common areas of apartment building? 2- Hotel management and guests? 2.1- Occupancy expires?

1 - NO IMPLIED OR APPARENT AUTHORITY TO CONSENT TO A SEARCH OF TENANT'S PROPERTY! - NO - The officer needs a warrant even if it is rented 1.2- this is an exception 1.3- landlords and tenants can allow officers to search common areas 2- - Guests constitutional rights are at issue NOT hotel manager/staff, so they cannot give consent 2.1- Consent away! - whenever the individuals checks out the rented room

Roadblocks 1- stopping a driver of a car to determine if they are wearing a seat belt and/or under the influence, seizure? Or mere stop... - look at free to leave factors 2- courts said PC not necessary at checkpoint: Balancing test!

1 -12 states do NOT permit sobriety checkpoints...Texas is one of them 2- Public safety/needs of the state weighed against minimal intrusion on driver

KAHOOT QUESTIONS pt 1 1 If a person gives consent, they have given up their _____ Amendment rights/protections 2 Which of the following IS a requirement for valid consent 3 Consent must be_____________. 4 What standard is consent evaluated under? 5 A situation that is high pressure requires the officer to tell a person they have right to refuse consent T/F 6 If a situation is NOT chaotic and is calm, an officer must tell the person they have right to refuse consent t/f 7 Consent may be verbal, physical or written t/f 8 If a person gives an officer consent, and thereafter revokes it, what must the officer do? 9 Which of the following is true about an officers ability to threaten? 10 Which of the following is TRUE regarding third person consent 11 Which of the following is NOT true regarding searches conducted without a search warrant? 12 Person gives officer consent to search for escaped convict officer searches drawers finds meth, consent makes it admiss? t/f 13 Person gives consent to search for drugs, consent revoked, leaving officer sees drugs on table, officer can't seize t/f 14 Plain view requires an officer be legally present and see something immediately apparent in criminal nature t/f 15 An officer must be legally present in order to claim something is in plain view t/f 16 Officer may seize what might be marijuana in a small container in the spice rack of a kitchen based on plain view t/f

1 4th 2 Officer must be legally present 3 voluntary 4 preponderance of the evidence 5 True 6 False 7 True 8 immediately stop searching 9 may threaten a search warrant IF that is true to get person's consent 10 A live in partner can give consent to search your room 11 officers may lie about their identity in order to access a home interior 12 False 13 false 14 true 15 true 16 false

KAHOOT QUESTIONS pt 2 1 U.S. v. McLevain held which of the following? 2 Officers must have a search warrant to enter and search an open field t/f 3 An officer must have a search warrant to search the curtilage of a home. t/f 4 A person has an open front porch facing the street, this is not considered curtilage - thus no warrant is required t/f 5 Generally, the shared areas of multiple-occupancy buildings are not entitled to Fourth Amendment t/f 6 An officer may search a person's trash can situated right next to their back door because it's abandoned t/f 7 A garbage can placed street-side for pickup may be searched without a warrant t/f 8 The automobile exception relies on the fact that a car is mobile and not stationary like a house t/f 9 A driver has a higher expectation of privacy for their vehicles than for their homes t/f 10 Which of the following is NOT true regarding the automobile exception? 11 Which of the following IS true pertaining to the concept of a car being "readily mobile"? 12 If a driver is waiting for a tow truck, the vehicle is NOT considered readily mobile and does not fall under exception t/f 13 a vehicle is still readily mobile even if suspect is handcuffed and even if in cop car as long as have prob. cause t/f 14 vehicle exception applies even if car is in person's driveway t/f 15 If vehicle is in person's driveway MUST get a search warrant! t/f

1 If item has an alternative explanation it's NOT in plain view 2 false 3 true 4 false 5 true 6 false 7 true 8 true 9 false 10 officer must have reasonable suspicion that car contains contraband 11 vehicle must be inherently capable of movement 12 false 13 true 14 false 15 true

Mechanical or Electrical Aids and Plain View Searches and Seizures - Law enforcement officers may use mechanical or electrical devices to assist in observing items of evidence:

1- Binoculars (depends on strength), 50 feet away versus 8 floor apartment - depends on strength 2- Flashlights 3- Night vision goggles - amplify light and available every where 4- Helicopter at 400 feet...??? 5- Drones...maybe - all of these accessories are deemed as OK to use without a warrant because it is accessible to the public as well

Third-Party Consent under Actual or Apparent Authority 1- Third-party consents may be valid. - anybody that shares a common space

1- If a person establishes a reasonable expectation of privacy in property, another person may not consent to a search of the property. - Consent to search may be obtained from a third party whom the police, at the time of entry, reasonably believe to possess —common authority— over or other sufficient relationship to the premises or effects sought to be inspected. - a roommate can give consent however, cannot give consent to search a separate space that is not owned by them - A roommate can give consent for an officer to search any space that is shared

Who May Give Consent? 1- General Guidelines

1- In general, the only person able to give a valid consent to a search is the person whose constitutional protection against unreasonable searches and seizures would be invaded by the search if it were conducted without consent.

Not a "Free-to-Look-Anywhere" Card

1.Must have legal purpose/justification for being in area - does an officer have an arrest warrant? - did an Officer stop you for speeding? 2.Probable cause that item is immediately apparent in criminal nature - no manipulation/further inquiry needed

Determining Curtilage: The Dunn Factors - The area within the curtilage is determined by considering four factors.

1.The proximity of the area claimed to be curtilage to the home 2.Whether the area is included within an enclosure surrounding the home 3.The nature of the uses to which the area is put 4.The steps taken by the resident to protect the area from observation by people passing by - Note the following photos, they are all examples of curtilage - meaning, an officer MUST have a warrant to enter the area to search.

Not Free to Leave Factors:

1.Threatening presence of several officers - 1 v. 5 officers 2.Display of a weapon by an officer - displaying weapon/s or not 3.Physical touching/restraint OR - had cuff v. Touched 4.Use of language/tone indicating compliance is required - speaking calmly v. Yelling - If none of the above it is NOT a seizure and is instead a mere stop. So no 4th Amendment implications.

WAYS TO INVALIDATE CONSENT

1.Threats 2.Misrepresentation/deception 3.Invalid arrest 4.Right to refuse/free to go...

Multiple Occupant Dwellings - Generally, the shared areas of multiple-occupancy buildings are not entitled to Fourth Amendment protection because the public has access to them. - pool area vs private porches - However, in Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974), two law enforcement officers who had been informed that narcotics were being sold on the defendant's premises observed the defendant's residence in a four-unit apartment building. - Over a 45-minute period, several people entered the defendant's apartment. Each time, the defendant went into his backyard and removed a shaving kit from beneath some rubbish under a tree. One officer went into the backyard and seized the shaving kit, while the other officer arrested the defendant.

Chemical analysis revealed that the shaving kit contained heroin. The court held that the backyard was a protected area and that the seizure and search of the shaving kit were illegal.

The Carroll Doctrine

The automobile exception to the warrant requirement that allows a warrantless search of a readily mobile car based on probable cause that it contains contraband. - warrant is not needed

U.S. v. Dunn (1987) - Using aerial photography, police tracked certain drug making supplies to Dunn's ranch. -however the officers couldn't get a probable cause or a search warrant - The ranch had a fence surrounding the perimeter as well as several interior fences. - officers went to the ranch and enter the area with the main fence however they were confronted with additional fences and cross over 3 fences without a search warrant - Law enforcement officers entered the property without a warrant to get near Dunn's barn. The barn was about 60 yards away from Dunn's house and a fence separated the two buildings. - Police smelled chemicals and heard a motor running in the barn. Police approached the barn but did not enter. The officers did shine a flashlight through netting above the door and observed what looked like a drug laboratory. - police concluded through smell that there were drugs -police use a flashlight to look within a wIndow and see what looks like a drug laboratory - Got a search warrant based on information - discovered drug making materials/drugs within home and barn. Admissible? Barn Not within protected curtilage? - it was 60 yards away- not within proximity - fences were separating the main house from the barn therefore it was not within an enclosure surrounding the home - however, the owner took precaution to protect that area from observation - was cartilage and the officer should have obtain a warrant

The officers made several similar visits, not entering, but looking into the barn, before obtaining a warrant to search the barn and Dunn's house. During this search, police seized chemicals and equipment use for making drugs. The Supreme Court held that the barn and the area around it lay outside the protected area of curtilage around Dunn's house. The barn was separated from the house by a fence and was a substantial distance away from the house, the officers had other data that lead them to suspect Dunn, and Dunn did little to protect the barn from observation. Even if Dunn did have a reasonable expectation of privacy, the search still did not violate the Fourth Amendment because the officers never entered the barn. Justice Antonin Scalia concurred, writing that the officers perception of the way Dunn used the barn was not as important as the way the barn actually was used.

Difference? - What is difference between consent given in Wilson and Alfonso?

Wilson - The situation was consistently heightened however officers informed Willson that he had a right to refuse the search Alfonso - The situation Deescalated and then the officer asked consent. Therefore, it is argued that The defendant did not feel as pressured as they would had if the officer asked them for consent in the beginning of the intense situation

1 Which of the following is NOT a reason that occupants of vehicles have a diminished expectation of privacy under the automobile exception? 2 The Carroll Doctrine, also known as the automobile exception, permits a warrantless search of a readily mobile car based on probable cause that it contains contraband. 3 In order to qualify as "readily mobile" under the automobile exception, a vehicle must be able to drive away without any mechanical issues. 4 If an officer has probable cause to search only a particular container placed in a vehicle, the officer may search that container but not the entire vehicle. 5 The Chadwick (1977) case reflects the fact that officers may search all containers within a vehicle, open or closed, locked or unlocked. 6 Man is sitting on the side of the road next to his vehicle that has just broken down, it appears his radiator busted. Officers have probable cause the man was transporting a large amount of illegal guns and cocaine. They do not have a warrant, however, claim the automobile exception applies. They search the vehicle without a warrant and discover several bags of cocaine and weapons. Which of the following statements is TRUE? 7 Which of the following statements is TRUE regarding the concept of "readily mobile"? 8 An officer MAY conduct a warrantless search of a vehicle even if the suspect is handcuffed in the back of their patrol vehicle. 9 A vehicle is sitting on concrete blocks in the yard of a property, it has not been driven for years - however, officers believe the owners are hiding contraband inside of it. They have conducted surveillance on the property for months - confirming the vehicle is in fact used to stash contraband. Does the automobile exception apply? True = yes the exception applies False = no the exception does not apply 10 The Carroll Doctrine is also known as the automobile exception.

1 vehicles smaller than a residence 2 True 3 False 4 True 5 False 6 This was a legal search, the officers had probable cause and the vehicle was readily mobile (inherently capable of movement) 7 only requires the vehicle to be "inherently capable of movement" 8 True 9 False 10 True

Consent recap 1- In order to even approach getting a person's consent, the officer must be..... 2- To determine if consent is lawfully given, you can explore the "free to leave factors." 3- To tell they can refuse or not:

1- - Lawfully present! - And the consent voluntarily given 2- 1.Threatening presence of several officers 2.Display of a weapon by an officer 3.Physical touching/restraint OR 4.Use of language/tone indicating compliance is required 3- Ask whether the consent would be given in a Schneckloth or Wilson environment.

Immediately apparent in Criminal Nature? 1- U.S. v. Wilson (1994): arrest warrant for fraud; officers see several checks laying out, immediately apparent of criminality?

1- - NO - Had to call in to determine if illegal - Had to verify they were stolen - Ask the 2 questions! - Holding: Checkbook NOT admissible under plain view doctrine!

Remember: 1- A search without a warrant is presumed to be unreasonable, unless it falls under an exception:

1- - Search incident to arrest - Consent search - Plain view doctrine - Stop and frisks (limited though) - Executing Search warrant - police may seize items not specifically named in the warrant that are in plain view - Inventory of vehicle

"Plain Touch" or "Plain Smell," or "Plain Hearing" 1- If a law enforcement officer is lawfully in a position from which he or she:

1- - feels an object, - Smells an object, or - Hears a specific object - if the object's incriminating character is immediately apparent, and - if the officer has a lawful right of access to the object, the officer may seize it without a warrant - all The officer senses can qualify for having Plainview of an incriminating tool as long as it is immediately apparent and the officer has justification for being there

Specific Types Cont'd 1- Schools 2- College students 3- Spouses/live in partner 4- Parent 5- drivers and passengers

1- -Elementary/High School - principals/staff may give consent to search lockers; neither has exclusive control over space; joint custody - depends on if it's public or private 2-like hotels, only student can give consent to search dorm, not dean/faculty - there is an expectation of privacy 3- equal occupancy, equal right to use and give consent to search! 4- can give consent, they rule the roost! 5- ???

Recap 1 -To have consent two things need to exist: 2- To determine if voluntary one can explore

1- 1.Officer needs to be legally present and 2.Consent given must be voluntary 2- - Free to leave factors - Schneckloth vs. Wilson - Consent does NOT have to be verbal

Readily Mobile (Second element to Caroll doctrine) - the first element is probable cause - Being used on the highways OR - If it is readily capable of such use AND - Is found stationary in a place not regularly used for residential purposes - temporary or otherwise. 1- Residence or mobile? - is it easily detachable and ready to move? - Vehicle's location -"on blocks"? Readily mobile? - Licensed? - Connected to utilities? - Convenient access to a road?

1- Courts look to whether the vehicle is inherently capable of movement NOT whether vehicle is mobile at a particular moment in time

Collins v. Virginia (2018) 1- Virginia Supreme Court: Automobile exception applied and allowed "search" for VIN number to confirm it was stolen. 2- Supreme Court said....

1- - Inherently mobile even though under blue tarp - Private property issue: on private property BUT exposed to public view - thus, lessened expectation of privacy - Virginia said yes but.... 2- NO!!!!! It is within the curtilage of your home, expectation of privacy and no exceptions exist - supreme court said it was not in Plainview because it was under a blue tarp and officers would have to lift it to readily identify it

1- Front of the house but it Does not have a Porch? - a duplex? 2- a house with a fence surrounding the yard?

1- A little trickier, a duplex permits access to both sides/both tenants, thus, an officer may enter an area in which the public has access to without a warrant to search. - WWSD? 2- Even a low fence exhibits an expectation of privacy - officers must get a warrant to enter the yard

Consent - what are they giving consent to? 1- Merely to Enter 2- Initial Consent vs. Subséquent Consent

1- A person's consent to an officer's request to enter his or her home does not automatically give the officer a right to search. - does not give the officer consent to search beyond the scope such as in dressers, shelves, upstairs, etc 2- Even if police are granted consent to conduct a search after being granted consent to enter a residence, such consent is limited to search on that particular occasion.

Specific Types of Third-Party Consent - Equal rights/interests in property 1- Co-owner/roommate 1.1 - Do they pay rent? 1.2- How long have they stayed? 1.3- Have belongings (toothbrush?!) at location? 1.4- Possess a key? 1.5- On the lease? 1.6- Common areas - 1.7 - What if roommates disagree? Consent versus refusal?

1- All indicated to valid consent 1.6- give consent ok! 1.7- Get a warrant! - The officer hast to leave

Requiring a Warrant for Searching Vehicles - A search warrant is needed if:

1. The vehicle is clearly not being used for movement (i.e., it is elevated "on blocks"); or - example, if a car is it a driveway and on blocks 2. The vehicle is located on private property and there is time to obtain a warrant. Warrants must be based on probable cause.

Question: - Should the evidence be excluded since driver did not know he could say no to the search? Holding:

1- It is unnecessary to prove that the person who gave consent knew that he had the right to refuse. - defendants do not need to know specifically that they had the right to refuse - officers do not have to explicitly state that the defendants could refuse when the officer has preponderance of the evidence - as long as the defendants were not coerced or felt threatened 2- Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into consideration, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent - have to look at whole picture by a case by case basis 3 - Evidence of duress? Coercion? (Express or implied) 4- Preponderance of evidence

Informing suspects that they are free to go 1- in the event the person is not under arrest but merely stopped

1- The fourth amendment does not require that a lawfully seized person be advised that he or she is free to go before the person consent to search will be ruled voluntarily - officers do not have to say you have the right to refuse or that they are free to go

Submission to a Fraudulent or Mistaken Claim of Authority - A person's submission to a false assertion of authority (such as saying there is a warrant when there is not one) does not constitute a voluntary consent. - Re: Mapp v Ohio? 1- Had she consented to their faux search warrant it would have been....

1- WRONG! Consent based on false authority is not permissible. - can't lie

Misrepresentation or Deception 1- Consent to search obtained by misrepresentation or deception is not voluntary, except

1- a person's misplaced trust in an undercover police agent will not alone invalidate an otherwise voluntary consent - The risk for undercover searches is placed on the defendant - individuals take a risk whenever they invite someone over

Consequences of Consent 1- voluntary consent prohibits the consenting person from later protesting the search on constitutional grounds and - do you have a stop, a mire stop, or a seizure 2- consent searches can benefit a consenting party who is innocent...how?

1- evidence seized is admissible in court, even though there was no warrant or probable cause to search. - officers have to have legal justifications for being in the presence of an individual in the first place - ex. An individual stopped for speeding an looks nervous. When the officer asked if they can search the individual's vehicle, if the individual says yes then they are willingly and voluntarily letting the officer search the car without probable cause - waving 4th amend 2- inconvenience and embarrassment of an arrest or more extensive search - valid?

Garbage continued - U.S. V. Williams (2012)

1- garbage left inside a home or on the homes cartilage would ordinarily receive full fourth amendment protection

Food for Thought.... 1- What type of activities do you think of when you think of home? 2- House à Curtilage à open field(s)

1- garden, pool, work on car, 2- all of these things indicate cartilage - cartilage extends the expectation of privacy - Open field is outside of reach of cartilage

Search of Container not found in vehicle The talcum powder case- remove it from his trunk and open it inside train station without a warrant Supreme court said auto exception did not apply because

1- luggage contents not open to public view 2- luggage not subject to inspections 3- do you not have do you have a license or registration to carry luggage 4- exception of privacy in luggage is greater than ones car 5- Luggage was located outside vehicle initially - automobile exception does not extend to movable container found in a public place

Immediately Apparent? 1- U.S. v. McLevain (2002): 2- - Twist tie and cut cigarette filter UNDER bed in master bedroom, a spoon with black residue on a tackle box in a sink in garage, and a prescription bottle with no label filled with clear liquid that looked like water (on mantle) - Immediately apparent in its criminal nature? 3- Moral of the story,

1- search warrant of residence for two escapees - humans 2- NOPE! Not immediately apparent, some other explanation may exist for items - not intrinsically criminal - - it could be argued that the items could be used for situation that are not criminal = not plain view - While the cut cigarette filter and the prescription bottle with fluid in it might be out of the ordinary, the police are not authorized to seize odd items. We do not care what the explanation is for the items, but we care that there may be some other explanation for the items. 3- should get a warrant if some other explanation for item(s) at issue

Assessing Voluntariness 1- Voluntariness is based on the ---. 2- the prosecutor must show by a preponderance of the evidence that the consent was voluntary.

1- totality of circumstances 2- Preponderance - just enough evidence to make it more likely than not that the fact the prosecutor seeks to prove, is true. - more likely then not - very arbitrary

Scope of a Vehicle Search under the Automobile Exception 1- Carroll searches allow for the search of anything, including containers and passengers' belongings, within the vehicle that the officer has probable cause to search for a particular object. 2- If an officer has probable cause to search only a particular container placed in a vehicle, the officer may search that container but not the entire vehicle.

1- your scope is dependent on the item or items you're looking for - such as a body cannot fit in a container but drugs would allow you to 2- probable cause to search is based off information - The scope of the search for a vehicle depends on what are your probable cause is telling you - items within a container versus items within a car

Differentiating Stops as Seizures from Non-Seizures - Not all stops are seizures. - temporary - The goal is to gain minor bits of information 1 - The free to leave test

1- —a "totality-of-circumstances" approach that assesses whether or not a reasonable person owould have believed that he was not free to leave. - Would a reasonable person have believed theykr were not free to leave (not the perception of person specifically at issue) - this is important because the fourth amendment requires PC to search and/or seize a person

Requirements of the Automobile Exception - For the automobile exception to the warrant requirement to apply, two criteria must be met.

1. An officer must have probable cause to believe the motor vehicle contains illegal contraband. - in a specific car 2. The vehicle must be readily mobile such that it is capable of being moved outside the jurisdiction. No additional "exigent circumstances" are required. Exigent = sudden or unexpected requiring action, PC is all you need now, do not need to rely on exigency of situation

11 Which of the following is NOT TRUE regarding the Mack v. City of Abilene case? 12 The automobile exception only applies to vehicles that are inherently mobile and that officers have probable cause to believe contain contraband 13 United States v. Wald (2000) held that an officer's probable cause will determine how much of a vehicle he/she can search (or not search). The type of probable cause matters when determining how much of a vehicle an officer may search. 14 In order to qualify as "readily mobile," under the automobile exception, it is necessary to show the existence of a present risk that the vehicle will be moved at the time of the search. 15 Officers have probable cause to believe that a vehicle contains contraband, the owners have the vehicle parked daily in their personal driveway. Does the automobile exception apply, allowing them to search the vehicles without a warrant? True = yes it does apply, they do not need to obtain a warrant False = no it does not apply, they need a warrant 16 Officers have probable cause to believe that a vehicle contains contraband, the owners have the vehicle parked daily on the public street, in front of their house. Does the automobile exception apply, allowing them to search the vehicles without a warrant? True = yes it does apply, they do not need to obtain a warrant False = no it does not apply, they need a warrant 17 The Coolidge Holding held that even if a car is readily mobile AND the officer has probable cause, if the vehicle is on PRIVATE property and they have time to obtain a warrant, officers must get one. 18 If officers have reasonable suspicion that Bob is running drugs in his vehicle, and the vehicle is readily mobile, they may stop Bob while he is driving to work, require him to sit on the curb, and search all spaces they have reasonable suspicion to believe contain contraband without obtaining a search warrant. 19 If officers have probable cause to believe that Bob is running drugs in his vehicle, and the vehicle is readily mobile, they may stop Bob while he is driving to work, require him to sit on the curb, and search all spaces they have probable cause to believe contain contraband without obtaining a search warrant. 20 Tina lives in an RV, she sleeps in the RV daily, cooks in it, and invites friends and family over to visit. However, she also travels in her RV weekly, going to various state parks, fairs and festivals. The police, however, have probable cause to believe that she is manufacturing, and selling meth from her RV. While Tina is parked by a local fair, the officers knock and enter her RV to search for proof of manufacturing/selling meth without a warrant. Is this permissible without a warrant under the automobile exception? Which of the following is TRUE?

11 Officers had probable cause to search both vehicles but forgot to get the suspects signature on a warrant 12 True 13 True 14 False 15 False 16 True 17 True 18 False 19 True 20 The RV is readily mobile and as such, this is a permissible search under the automobile exception

1 Temperance movement still alive and well: Salvation Army 2 What was going on in the mid 1920's? 3 Prohibition! 4 Bootleggers encountered twice 5 Alcohol behind backseat (fold forward) 6 Why was this permitted? - Probable cause

2 -Miss carry nation - inspired prohibition 3- inspired Caroll v. US 1925 - alcohol is the root of all evil - Caroll boys (2 men) were involved in bootleging - officers encountered boys many times but could never catch them 4- banning something creates a black mark - allowed people to make money 5 - cops found compartment bf found moonshine - no search warrant nor no PC 6- if somebody was using the highway known for moon shining, The Supreme Court says yes

Rationale for the Automobile Exception - House versus car.... - Car is not like a house 1. Vehicles are inherently mobile. 2. Occupants of vehicles have a diminished expectation of privacy. - not like a house - because cars are mobile

2- - Vehicles travel on public roadways. - Vehicles are not permanent residences. - Vehicles must be registered. - Drivers must be licensed. - Vehicles must be inspected. - Vehicles and how they are driven are heavily regulated. - Inherently different rationale for allowing officers to search a vehicle without a warrant compared to a house - house is not mobile

Force, Threats of Force, and Other Threats 1- Consent to search given in submission to force, threat of force, or other show of authority is not voluntary. 2- Despite the coercive nature of an initial confrontation, an officer may still obtain a valid consent to search if the consent itself is obtained without coercion.

2- - even if the situation or environment is coercive, officers are allowed to search when giving consent A time where pressure is lifted - although the situation felt pressured, the defendant gave consent during de-escalation

Unoccupied Tracts - T]he term "open fields" may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither "open" nor a "field" as those terms are used in common speech. - an open field is an occupied and undeveloped - For example . . . a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment. Oliver v. United States, 466 U.S. 170, 180 n.11 (1984).

States v. Dunn, 480 U.S. 294 (1987) (barn 50 yards outside fence surrounding home, used for processing chemicals, and separated from public access only by a series of livestock fences, by a chained and locked driveway, and by one-half mile's distance, is not within curtilage). "[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home."288 Nor may an individual demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside.289 Even within the curtilage and notwithstanding that the owner has gone to the extreme of erecting a 10-foot high fence in order to screen the area from ground-level view, there is no reasonable expectation of privacy from naked-eye inspection from fixed-wing aircraft flying in navigable airspace.290 Similarly, naked-eye inspection from helicopters flying even lower contravenes no reasonable expectation of privacy.291 And aerial photography of commercial facilities secured from ground-level public view is permissible, the Court finding such spaces more analogous to open fields than to the curtilage of a dwelling.292