LD 16 Search and Seizure

Contemporaneous Search

To be legal the search must be contemporaneous with the arrest. That is, the search must be conducted: -at or near the time of arrest, although either can proceed the other -at or near the place of the arrest -while the arrestee is still on the scene The search can still be upheld as contemporaneous even if delayed somewhat if the delay is reasonably necessary (i.e. for safety reasons) and the search is conducted as soon after the arrest as practical. NOTE: If the search proceeds the arrest, the officer must have probable cause to arrest at the time of the search.

Hot Pursuit

Warrantless entry is permitted if: -officers attempt to detain or arrest the suspect in a public place -but the suspect flees inside a private area

Fresh Pursuit

Warrantless entry is permitted if: -there is no physical chase, but officers are quickly responding to information concerning the suspect's whereabouts, and the officers reasonably believe the suspect's escape is imminent

Wait/Refusal Requirement

When executing a search warrant, there is a specific requirement that before forcing entry, peace officers must be refused admittance. Refusal may be based on: -verbal statement -individual conduct -the passage of a reasonable amount of time NOTE: Amount of time that is considered reasonable will depend on all the circumstances. Approximately one minute would be safe in most cases, but it can be less, especially if the peace officers know that someone is inside and awake.

Inner Doors

While officers must comply with knock and notice at outer doors to a residence, there is no legal requirement to comply with knock and notice at inner doors.

Is a Peace Officers training and experience relevant in establishing probable cause?

Yes

Does an officers training and experience matter in establishing probable cause?

Yes, facts must be seen and weighed as understood by a reasonable officer.

Common Sensory Aids

-Flashlights -Night Vision Devices -may be used as long as the officer is using them from a lawful observation point -Binoculars -may be used to enhance only what can already be seen by the naked eye from a lawful observation point -Dogs -Contraband-sniffing dogs are considered nonintrusive when they are in a place they have a lawful right to be. If a specially trained dog reacts positively to an item, this normally provides the officer with probable cause to search or seize the article, although a search warrant may be required in some circumstances

Consent may be considered involuntary if Peace Officers?

-Show any physical force -eg. rest hand on firearm -Misrepresentation of authority -state or imply they have a legal right to conduct an immediate search -falsely state they have a warrant when they do not -request entry for a purpose other then to conduct a search -Illegal seizure -illegally detain or arrest the subject -Verbal coercion -verbally demand consent rather than request it -Intimidating demeanor -appear in large numbers - use a demand tone of voice -act in an overly authoritative manner

Content of a Search Warrant

-The names of all those who have sworn that the facts presented as probable cause are true -The statutory grounds for issuing the warrant -Descriptions of the places and/or persons to be searched -Descriptions of the things or property to be seized -Magistrates signature -The date issued -An indication by magistrate if nighttime service is issued

Scope of Search Incident to Arrest

-a full search of the arrestee's person -containers on the arrestee's person -the nearby physical area that was under the immediate control of the arrestee (within arms reach)

Common Probation Conditions

-getting a job -avoiding drugs and other criminal behavior -not traveling outside a limited area -submitting to periodic searches without a warrant, probable cause or reasonable suspicion.

What are the exceptions to the usual warrant requirement?

-plain view -cursory/frisk/pat down -consent searches -searches pursuant to exigent circumstances -searches indecent to custodial arrest -probation/parole searches

Lawful Access to private property is most commonly obtained when?

-the officers entry is based on consent -the officers entry is based on exigent circumstances for example, a reasonable belief that the evidence will de destroyed if entry is delayed in order to obtain a warrant -the officer has lawfully entered the area for some other purpose (e.g. to conduct a parole or probation search, or an administrative or regulatory search)

What must Peace Officers be able to articulate to say they had Probable Cause to Search?

A fair probability to believe: - a crime has occurred or is about to occur - evidence pertaining to the crime exists - the evidence is at the location they wish to search

Harassment

A search is invalid if the reason it was undertaken was to harass the probationer/parolee. Searches may also be considered harassment if they: -occur too often -take place at an unreasonable hour -are unreasonably prolonged -demonstrate arbitrary or oppressive peace officer conduct -are undertaken with personal animosity toward the probationer/parolee

Probable Cause to Search

An area or object means having enough facts or information to provide a fair probability, or a substantial chance, that the item sought is located in the place to be searched. Thus probable cause requires something less than an absolute or even a near certainty, but something more than a mere hunch or suspicion.

Reaching Inside during a Cursory/Pat/Frisk search

An officer may reach inside a subjects clothing or pockets to inspect an object further only if: -the object reasonably felt like a weapon or something that could be used as a weapon -the subjects clothing is so rigid or heavy that the officer could not rule out the possibility of a weapon or potential weapon

Public Access Areas

Any area the general public or some members of the public have been given either express or implied permission to be in is considered a public access area. Peace officers have the legal right to make observations from any public access area at any time.

Benefits of Obtaining a Search Warrant

As a general rile, the courts have found searches and seizures to be reasonable and therefore lawful when authorized by a valid warrant.

Reasonable Expectation of Privacy

Can exist almost anytime and anyplace as long as: -individuals have indicated that they personally (subjectively) expect privacy in the object or area -their expectation is one which society is prepared to recognize as legitimate

Search of a Parolee/Probationers Residence

Certainty: -although absolute certainty is not required, the officer must possess some specific information that reasonably indicates the residence is, in fact, the probationer's/parolee's Knock and Notice: -officers must comply with all knock and notice requirements unless compliance is excused for a good cause Joint Occupation: -Officers who are conducting a lawful probation/parolee search need not obtain the consent of a joint occupation of the premise, nor will the objections of a joint occupant invalidate the search Rooms: -Officers may search any rooms under a probationer/parolee's control, including any area controlled jointly with other occupants of the residence Personal Property: -Personal property may be searched when officers reasonably believe it is owned or controlled, or jointly owned or controlled by the probationer/parolee Denials: -If the probationer/parolee denies that they live in the residence or that personal property, belongs to them (or if a joint occupant denies) such officers are NOT REQUIRED to accept such denials. (A false denial might be expected when contraband on the premises.)

Parole

Conditional release from a state prison which allows an individual to serve the remainder of a sentence outside of prison, which a person must serve on the "outside" after having completed the actual prison sentence.

Withdrawal of Consent

Consent can be withdrawn by: -expressly doing so ("I don't want you to search anything more.") -making a statement ("I want you to leave now") -engaging in conduct that reasonably indicates that the consent is being withdrawn (blocking a door way)

What are the necessary conditions for a cursory/pat search to be lawful?

Cursory/pat/frisk searches of detainees are allowed to prevent an unexpected assault on peace officers. But a generalized, non-specific concern for officer safety is NOT sufficient reason to allow for the intrusion of a cursory/frisk/pat search. For a cursory/frisk/pat search to be lawful: -the person must be lawfully detained for an investigative purpose -the searching officers must be able to articulate specific facts -which caused them to reasonably believe the person is dangerous or may be carrying a weapon.

Probable Cause to Seizure

Even though peace officers need not appear before a magistrate, they still must have enough facts to provide probable cause, that is, a fair probability that the item in plain view is contraband or evidence of a crime. The incriminating character of the item must also be immediately apparent to the officer. NOTE: Officers may use all of their senses, not just sight, to obtain probable cause. The plain view doctrine, therefore, can also include items they can smell, hear, or touch from a lawful position.

Standing

Exists only if a subject has a reasonable expectation of privacy in the place or thing that is searched or seized. To challenge a particular search or seizure, a person must have reasonable expectation of privacy in the place or thing that was searched or seized. Only a person with standing can challenge the search pr seizure of property, based on Fourth Amendment protections. Standing generally is established by: - ownership - lawful possession - authority - control of the area searched or the property seized

Re-Entry

Following the exigent circumstance, peace officers must vacate the premises within a reasonable amount of time and may not reenter UNLESS they obtain a search warrant or consent.

Consent Searches

For consent to be valid, the consent must be: -voluntary -and obtained from a person with apparent authority or to give that consent NOTE: If the consent is valid, the consent has temporarily relinquished any expectation of privacy for the area or item to be searched NOTE: An unlawful detention invalidates a consent search

The Exclusionary Rule

If a court finds a search or seizure is not reasonable and a person's Fourth Amendment rights have been violated by the government, all items seized during the search could be ruled inadmissible or excluded as evidence at trial. Note: This inadmissible or excluded evidence is often referred to as "The Fruit of the poisonous tree." Note: This exclusionary rule does not appear anywhere in the Constitution, but rather was created by the United States Supreme Court to encourage proper law enforcement conduct. Usually, the evidence is excluded as a penalty for the illegality of the search or seizure.

Abandoned Property

If an item has been abandoned by the owner, the owner has relinquished any expectation of privacy over the item. The Fourth Amendment does not protect articles or an area that has been abandoned by its owner. NOTE: Trash placed in a position for pick-up outside the curtilage of the residence is considered abandoned.

Failure to Comply with Withdrawal

If officers ignore the withdrawal or limitation of consent, any evidence that is subsequently seized may be inadmissible at trial.

Nighttime Service

If peace officers can show good cause, the magistrate may, at the magistrates discretion, insert a direction in a search warrant that it may be served at any time of day or night. The main point of the good cause requirement is to ensure that the request for nighttime service is specifically brought to the attention of the magistrate so that the magistrate will have to make a conscious decision whether particularly abrasive intrusion is appropriate. Examples of Good Cause include situations when: -nighttime service will decrease the danger to the peace officers -a drug sale occurred at the search location at night -prompt execution might preclude murders -the property sought will likely be gone, sold or removed by dawn -the stolen items are primarily perishable or easily disposable goods As long as the search begins BEFORE 1000 pm, no nighttime authorization is necessary, even though the search may continue on well beyond that hour.

Failure to make a Timely Execution

If the 10 day period has expired, peace officers must either: -obtain a new warrant -resubmit the expired warrant so it may be reissued and revalidated

Forcible Entry to Execute a Search Warrant

If the knock and notice requirements are met, including refusal, peace officers may legally break in or force entry into premises to execute a search warrant (PC 1531) The purpose of the knock and notice requirements is to protect the privacy of occupants in their home and to minimize the possibility of a violent confrontation between peace officers and private individuals.

Detaining Suspects Pending Issuance of a Search Warrant

If the place being secured is occupied when peace officers enter, they will need probable cause to arrest if they take the suspect away or keep the suspect there for an unreasonable period while the warrant is obtained. Without probable cause to arrest an individual, peace officers are only entitled to detain the suspect temporarily while they determine the person's involvement.

Containers during a cursory/pat/frisk search

In general, common containers like cigarette packs and film containers are not searchable. If the officer comes across a container on the person during a cursory/pat/frisk search, the officer is entitled to seize and open it ONLY IF it is reasonable to believe it can be used as a weapon or that it might contain a weapon.

Probable Cause to Search

In the search warrant context, means enough credible information to provide a fair probability that the object or person the peace officers seek will be found at the place they want to search. Elements: 1) a crime occurred 2) evidence pertaining to that crime exists 3) and the evidence is located at the place to be searched.

Protective Sweep

Is a brief search to look for individuals only. If peace officers are already lawfully inside or outside a house and have a specific factual basis for believing there may be other people inside who pose a danger to them, the officers can conduct a protective sweep. Limited to spaces immediately adjoining the area of an arrest: -where a person could be hiding -from which an attack could be immediately launched It is illegal to sweep into areas beyond those "immediately adjoining" the arrest location, unless the officer has reasonable suspicion, based on articulable fact, there may be someone there who poses a danger to the officer Any contraband or crime related evidence in plain view during a protective sweep may be seized. NOTE: Obtaining a warrant to search for evidence is always preferable. A warrant would allow not only the seizure of an item in plain view, but also a further and more thorough search for similar or additional evidence that may be on the premises.

Subjective Expectation of Privacy

Is a person's state of mind demonstrated by affirmative action designed to protect their privacy (e.g. building a fence, closing window shades, locking a compartment, etc)

Probation

Is a sentencing alternative for a person convicted of a criminal offense and is granted at a judge's discretion. Rather than incarceration, the individual remains under the authority of the probation department. Probation may be formal (supervised) or informal (unsupervised)

Direct Evidence

Is evidence that proves a fact directly, without inference or presumption (i.e., the sale of a controlled substance to an undercover officer).

Circumstantial Evidence

Is evidence that proves a fact indirectly, that is personal knowledge or observation from which deductions must be drawn by the jury or court (i.e., partial six pack of beer found on the car seat supports inference that someone in the car has been drinking).

Custodial Arrest

Is one in which the person will be transported to another location or facility, such as a station, jail, detox center, juvenile hall, or school.

Overflight

Is the flight of a plane or helicopter over a given area. Fourth Amendment protections do not apply, as long as the aircraft is: -at an altitude permitted by FAA regulations -being operated in a "physically nonintrusive manner"

Search Warrant

Is: -an order in writing, in the name of the people -signed by a magistrate -directed by a peace officer -commanding the officer to search for an individual or individuals, a thing or things, or personal property -in the case of the thing or things or personal property, to bring the same before the magistrate.

Surveillance

It is not a search for peace officers to conduct surveillance of private premises or to follow people who leave the premises, as long as the observations are made from a place where the officer has a right to be. Videotaping a suspect's activities is a form of surveillance.

Necessary Conditions for a Search Incident to Arrest

May be conducted when: -probable cause for a lawful arrest exists -the suspect is taken into custody -the search is contemporaneous with the arrest NOTE: The search is justified by the custodial nature of the arrest, not by the nature or circumstances of the crime that lead to the arrest. NOTE: A search incident to arrest is NOT permitted when the person is merely cited and released.

Voluntary Consent

Means an act of free will and not the result of duress or coercion. If consent is merely submission to an assertion of authority or coercion, the consent is not voluntary. Any search under such conditions would be unlawful, and any item(s) seized would not be admitted as evidence at trial.

Exigent Circumstances

Means an emergency situation requiring swift action to prevent: -imminent danger to a person's life or safety -serious damage to property -imminent escape of a suspect -imminent destruction or removal of evidence NOTE: Once inside, peace officers may do whatever is necessary to resolve the emergency -- nothing more. Once the emergency has dissipated (no longer any imminent danger to life, property,) a warrant may be needed for further searching.

Open Fields

Means outdoor real property, outside the curtilage of the residence. -NOTE: Open fields do not have to be either open or real fields to qualify.

Time of Service

Normally, a search warrant may be served only between the hours of 700 am and 1000pm.`

Necessary Conditions for Probation Search

Not every probationer has a search condition, and not all search conditions are the same. However, assuming the probationer has a search condition permitting searches for "X" by peace officers, the search for "X" may be undertaken without any reasonable suspicion of criminal activity.

Search

Occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon by the government.

Implied Consent

Occurs when the consenting person authorizes the search by actions or behavior indicating that consent was given. Must be reasonably inferred. EX: Nodding approval, stepping aside to allow entry.

Expressed Consent

Occurs when the consenting person clearly authorizes the search either orally or in writing. Requires no inference to supply the full meaning EX: Verbal acknowledgement and approval ("sure go ahead')

Seizure of Property

Occurs when there is some meaningful interference with an individual's possessory interest in that property by the government.

Seizure of a Person

Occurs when: -a peace officer physically applies force -a person voluntarily submits to a peace officer's authority

Scope of a Search Under Exigent Circumstance Entry

Officers who are conducting a lawful search based on exigent circumstances may seize any item in plain view if there is probable cause to believe the item is contraband or evidence of a crime.

Time Limit for Service

PC 1534 states that the search warrant shall be executed and returned within 10 days from issuance. The 10 day time limit means that peace officers have 10 days within which t execute the warrant, beginning with the day after the warrant is issued and running until midnight of the 10th day, with no exceptions for weekend or holidays. NOTE: It is a felony for a peace officer to willfully disclose the existence of a search warrant, prior to its execution, for the purpose of preventing the search and seizure.

Knock and Notice Procedure

Peace Officers must: -knock or otherwise announce their presence -identify themselves as peace officers -state their purpose -demand entry -wait a reasonable amount of time -if necessary, forcibly enter the premise

Creating an Exigency

Peace officers may NOT use exigent circumstances as an excuse for a warrantless entry if they have CREATED the emergency unnecessarily by their own conduct.

Transporting a Passenger

Peace officers may conduct a cursory/frisk/pat search of any person the officers have a duty or are obligated to transport before permitting the person to ride in a law enforcement vehicle. If officers are not obligated to transport the person, a cursory/frisk/pat search is permitted only if the officer informs passengers that: -they have the right to refuse the ride -if they accept the ride, they must first consent to a cursory/frisk/pat search

Arms Reach Rule

Peace officers may search any area that is or was reasonably within the arrestee's control. Includes: -grab a weapon -obtain any item that could be used as a weapon -destroy evidence NOTE: The fact that the arrestee has been handcuffed or otherwise immobilized does NOT eliminate or change the "arms reach" rule. NOTE: It is improper to try to expand or enlarge the area of an arrestee's immediate control by moving the arrestee (i.e from one room to the other) in order to enhance the officer's ability to see objects in plain view.

Observations from a Lawful Location

Peace officers must have a lawful right to be at the location from which they initially observe the item. That is, the observation must be made from a vantage point that does not violate an individual's reasonable expectation of privacy.

Requirement for Seizure

Peace officers must meet certain requirements before an item in plain view may be seized legally and used as evidence. Peace officers must have: -probable cause -a lawful right to be in the location -lawful access to the item

PC 1524

Presents the statutory grounds for issuance of a search warrant. When the property of thing: -1524(a)(1) -was stolen or embezzled. -1542(a)(2) -was used in committing a felony. -1524(a)(3) -is in the possession of any person with the intent to use it as a means of committing a public offense, or in the possession of another to whom the item may have been delivered for the purpose of concealing it or preventing its being discovered. -1524(a)(4) -constitutes evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony -NOTE: Use to seize evidence such as rent receipts to show possession or control of the premise or computers. -1524(a)(5) -consists of evidence that tends to show that sexual exploitation of a child (PC 311.1) or the possession of matter depicting sexual conduct of a person under the age of 18 years (PC 311.11), has occurred or is occurring. -1524(a)(6) -when there is a warrant to arrest a person. -1524(a)(13) - a sample of blood for a DUI test -1524(a)(15) - are controlled substances or a device, contravene, instrument, or paraphernalia used for unlawful using or administering a controlled substance. (I.E Meth Pipe, Meth, etc)

Collective Knowledge

Probable cause may be based on the collective knowledge of all the officers involved in an investigation, and all the inferences which may reasonably be drawn from this information, with that particular officer's training and experience.

Objective Reasonableness

Refers to whether society is prepared to recognize the individual's expectation as reasonable

Curtilage

Relatively small and usually well-defined area immediately around a residence to which the occupant has a reasonable expectation of privacy

Probable Cause to Search v. Probable Cause to Arrest

Search Warrants: -peace officers must articulate probable cause that: -a crime has been committed -evidence concerning the crime or the identity of the perpetrator is located at the place to be searched. Arrest Warrants: -peace officers must articulate probable cause that: -a crime has been committed -and the individual to be arrested committed the crime

Knock and Notice

Set forth in PC 1531 Simply means that before entering a dwelling to serve a search warrant, officers must give notice to persons inside through certain actions.

Lawful Access

Simply because an officer can see an object in plain view from a lawful location does not automatically mean the officer may legally enter private property without a warrant to seize it, even if the object is obviously contraband or evidence of a crime. Lawful Access to private property is most commonly obtained when: -the officer's entry is based on consent -the officer's entry is based on exigent circumstances, for example, a reasonable belief that the evidence will be destroyed if entry is delayed in order to obtain a warrant -the officer has lawfully entered the area for some other purpose (i.e., to conduct a parole or probation search, or an administrative or regulatory search, etc)

Reasonable Inference

The act of drawing a conclusion from a fact; it is similar to making a presumption (i.e., seeing smoke and inferring there is a fire)

Right to Refuse

The courts have ruled that it is not legally necessary for officers to advise potential consenters that they have a constitutional right to refuse consent of a warrantless search. However, giving the consenting person such a warning is a strong positive factor indicating the voluntariness of the consent.

Exceptions to Knock and Notice

The law allows peace officers to enter private property unannounced if they can demonstrate that compliance with the knock and notice requirements would be futile, or that compliance could result in: -harm to the officers or other individuals (i.e. hostages) -the destruction of evidence Only the officers serving the warrant can determine if the circumstances they face justify non-compliance with the knock and notice requirements of law. The issuing magistrate does not have the authority in the warrant to exempt officers from giving knock and notice and the legality of an officer's decision to omit knock and notice would likely be reviewed by a court to determine if it met lawful exception.

Necessary Conditions for Parole Search

The officer must know about the parole conditions before the search. An officer may conduct a parole search without reasonable suspicion but cannot conduct a parole search for arbitrary, capricious, or harassment reasons.

Failure to make a Timely Return

The return of the warrant means the warrant and written inventory of the property taken to the magistrate (PC 1537) The rule for the return of the warrant is slightly different than for execution. If the 10th day falls on a weekend or holiday, then peace officers are entitled to postpone returning the warrant until the next business day. A late return will not usually invalidate the warrant or result in suppression, particularly if it happens unintentionally, unless the defendant can show prejudice.

Article 1, Section 13 of the California Constitution

The right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches, shall not be violated, and a warrant may not be issued except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.

Fourth Amendment

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.

Constitutional Protections

To avoid unlimited actions and intrusions by the government and to protect a person's: -privacy -liberty -possession of property