4 Search & Seizure and the Law

Reasonable Suspicion

To establish "reasonable suspicion," both the quality and quantity of the information you need is considerably less than the "probable cause" you need to arrest or search.

Officer Safety during a Consensual Encounter

You may always do whatever is reasonable to protect yourself, even during a consensual encounter. Even ordering a person, as opposed to requesting him, to keep his hands in sight or to remove them from his pockets will not necessarily convert a consensual encounter into a detention, although it may.

Searches and Seizures During Consensual Encounters

You may ask for permission to conduct a search during a consensual encounter. However, you have no authority to conduct a search during a consensual encounter unless, of course, the person gives you voluntary consent or is subject to a search clause.

Departure From Precedent

courts do not always follow precedent. Sometimes one appellate court will simply disagree with another; sometimes a given court will change its mind and disregard its own earlier opinion. But most commonly, "new law" is made not by departing from precedent, but because new facts are involved.

The 4th Amendment - Also states

that persons, places and things to be searched and seized should be described with particularity.

Standing

"Standing"--which is more accurately viewed as a question of "privacy"--means that a defendant must show that an illegal search or seizure invaded his or her own personal, reasonable, and legitimate expectation of privacy.

Contacts requesting identification - Merely approaching someone is not a "detention."

- "No Fourth Amendment privacy interests are invaded when an officer seeks a consensual interview with a suspect.".

The law comes from three primary sources. Those sources are

- 1. The United States and California Constitutions - 2. Statutes, such as the Penal Code, Vehicle Code, and the Health and Safety Code. - 3 . Case Law

"Good Faith" and Non-Culpable Conduct.

- Historically, if a search or seizure was illegal, the evidence was excluded and it made no difference that the officer may have been acting in "good faith," The Court has since broadened the Leon "good faith" exception to include non-culpable police conduct.

The three types of police contact with the public are -

1. Consensual Encounter - 2. Detention - 3. Arrest

Detention and Stops

A "detention" occurs whenever a reasonable--and innocent--person would believe he is not free to leave or otherwise disregard the police and go about his business. Such a belief may result from physical restraint, unequivocal verbal commands, or words or conduct by you that clearly relate to the investigation of specific criminal acts.

Knock and Talk

A "knock and talk" is a consensual encounter that takes place at the doorway of a home. Unlike a detention, a "knock and talk" does not implicate the Fourth Amendment. A "knock and talk" can also occur when an officer enters the curtilage to initiate a consensual conversation.

Search

A "search" occurs when a government officer infringes upon an expectation of privacy that society considers reasonable.

Arrest or Seizure of a person

A "seizure" of a person occurs: (1) when a peace officer physically applies force or (2) when a person voluntarily submits to a peace officer's authority.

Seizure

A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interest in that property.

Consensual Encounters

A consensual encounter is the least intrusive of the three contacts an officer can have with the public. - You do not need any objective reason or justification for initiating this type of contact.

Standing

A defendant must establish "standing" to move for suppression of evidence.

Detentions and stops

A detention may be justified based on officer safety.

Searches and Seizures During Consensual Encounters

A nonconsensual search requires "probable cause." And even a limited search for weapons, a patdown or frisk, which will turn the consensual encounter into a detention is not legal unless you have specific facts or information making it reasonable for you to suspect that the person may be armed or dangerous.

Detentions and Stops

A temporary "detention" or "stop" is an exertion of authority that is something less than a full-blown arrest but more substantial than a simple "contact" or "consensual encounter."

Detentions, Stops, and Flight

As the U.S. Supreme Court has made clear, there is no "seizure" until you have actually physically stopped the person or he stops on his own and submits to your authority.

Detentions and Stops

Before a "detention" exists in the law, it is necessary that the person actually submits to your assertion of authority. If the person runs away, for example, there has been no detention, and none occurs until and unless you actually effect a stop.

Statutory Law

Besides the US and California Constitutions, "the law" also comes from statutes which appear in the various "codes," such as the Penal Code, Vehicle Code, and Health and Safety Codes. California has over two dozen different "codes."

The law related to search and seizure

Both the United States and California constitutions prohibit unreasonable searches and seizures of people, houses and personal property.

Contacts requesting identification - Merely approaching someone is not a "detention."

Consensual encounters, therefore, do not require articulable suspicion of criminal activity.

A detention may also be justified based on officer safety

Courts evaluating the lawfulness of a detention based on officer safety are required to balance the extent of the intrusion upon the individual against the interests of the government, which includes as a significant factor "the interest in minimizing the risk of harm to the officers."

Detentions and stops

Detention law "accepts the risk that officers may stop innocent people." If during a detention "the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way."

Proposition 8 - Rights which Californians are accorded under this state's Constitution exist.

Exclusion of evidence, as a remedy for violation of these rights, was eliminated as long as the evidence was obtained in compliance with federal rules, and no violations of 4th, 6th, or 14th Amendments, the evidence is still admissible.

Detentions, Stops, and Flight

Flight, when combined with other factors, such as a high-crime area and/or time of night, will often give you a valid basis to detain.

Reasonable Suspicion

For an investigative stop or detention to be valid, you must have "reasonable suspicion" that: (1) criminal activity may be afoot and (2) the person you are about to detain is connected with that possible criminal activity.

Detentions, Stops, and Flight

If you approach someone or a group and one or more of them walks or runs away, and you give chase, your act of chasing after the person does not constitute a detention.

Searches and Seizures During Consensual Encounters

If you see contraband in plain view, you have the right to seize it and, if it provides probable cause to arrest the person, it justifies a full search of the person incident to the arrest.

Officer Safety during a Consensual Encounter

If your actions turn a consensual encounter into a detention, the detention will be lawful if the individual's conduct "created an appearance of potential danger" and you can sufficiently articulate the basis for believing that a temporary detention/pat-search was needed to protect your safety.

Proposition 115

In 1990 Prop. 115 amended the California Penal Code and provided a new exception to the hearsay rule: At a preliminary hearing "the finding of probable cause may be based upon the sworn testimony of a law enforcement officer relating the statements of declarants.

Detentions and stops

In Terry, the U.S. Supreme Court held that the lawfulness of the detention based on something less than probable cause came down to "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."

"Good Faith Rule"

In evaluating a Leon "good faith" claim, the courts will look to whether a "reasonably well trained officer would have known that the search was illegal" in light of all the circumstances. - This does not mean that the officer's subjective belief is a consideration. The inquiry looks to the objective facts only, which can include a particular officer's knowledge and experience but not the officer's subjective intent or belief.

The California Constitution

In the late 1970's and early 1980's, the California Supreme Court based many of its decisions on this state's Constitution. Citizens, including suspects, were given more rights under the California Constitution than they are entitled to under federal law.

The California Constitution

In the late 70's and early 80's, many cases were dropped or lost although they could have been tried in federal court. In order to stop this, California enacted Prop. 8, in 1982, and Prop. 115, in 1990., which amended the California Constitution. Both, however, were only partially successful.

Precedent

It is important for you to understand that a court makes its decision based on other, previous court decisions, called "precedent." Courts try to rule consistently with past decisions in order to maintain an orderly system where people can know what conduct is permissible.

Reasonable Suspicion

It is important to remember that a detention can never be based solely on a hunch, rumor, intuition, instinct, or curiosity. You must have specific facts justifying your suspicion, and you must be able to articulate these to a court.

Specific Factors for a detention - In deciding whether your suspicion was reasonable, the court will look at all the factors--the "totality of the circumstances."

Nightime and High Crime Area, Race, Flight, Your Experience, Officer Safety, Suspect Weapons Violation, Drug Courier Profile, Information from Others, Anonymous Tip, 9 1 1 Call

Detentions and Stops

Patting-down someone constitutes a detention as does the statement "I am going to pat-search you". However, "official scrutiny" directed at an individual--such as the use of high beams and spotlights--does not, in itself, amount to a detention.

Knock and Talk Continued

Persistent loud knocking, a demand to open the door, or any other coercive circumstance can turn a "knock and talk" consensual encounter into a detention or even into a search, requiring a warrant or probable cause.

Racial Profiling

Racial profiling is "the practice of detaining a suspect based on a broad set of criteria which casts suspicion upon an entire class of people without individualized suspicion of the particular person being stopped." Racial profiling is prohibited in California.

Racial Profiling

Reasonable suspicion for a detention may not be based, in whole or in part, on racial profiling. However, race or ethnicity is a proper factor to consider if it is part of a description of a specific suspect you are looking for.

Reasonable Suspicion

Reasonable suspicion' is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence. . . ." "Reasonable suspicion" is evaluated based on objective facts.

The California Constitution

The California Constitution begins with a Declaration of Rights, which reflects the same concerns as the Bill of Rights.

Detentions, Stops, and Flight The detention will be legal only if it is supported by reasonable suspicion.

The Supreme Court has declined to create a "bright line" rule regarding "flight." It has refused to rule either (1) that "flight" alone will always justify a detention or (2) that flight alone can never justify a detention.

The Supreme Law of the land

The United States Constitution is the supreme law of the land. - No statute or case ruling by a court can stand which is in conflict with the Constitution.

Exclusionary Rule Standing

The burden of proof falls on the prosecution to prove justification for the search and seizure, and evidence must be presented via live testimony subject to cross examination.

The Exclusionary Rule - The Exclusionary Rule is a sanction for a violation of the fourth amendment. - a challenge to a Search and/or Seizure.

The challenge is decided prior to trial at - Preliminary Hearing or - A Motion to Suppress Evidence Hearing, Penal Code 1538.5, which is a separate pretrial.

Reasonable Suspicion

The court will then decide if your facts--based on the "totality of circumstances" including your training and experience--were enough to make your suspicion objectively reasonable.

The Exclusionary Rule

The defendant must prove that he had "standing" to bring the motion by providing a sufficient privacy interest in the place searched or item seized.

The Bill of Rights

The first 10 amendments to the US Constitution are known as the Bill of Rights. Many of them are important to criminal law but by far the greatest impact comes from the Fourth amendment. searches, seizures, warrants, and Fifth amendment, which is self-incrimination.

4th Amendment Violations

The infringement must be made by the government or its agents - private citizens cannot violate the 4th Amendment. - Also the search must be intentional, rather than merely an accident.

Consensual Encounters

The key element is that the person remains totally free to leave and not cooperate with police. You must not restrain the person or exert any authority over him.

Consensual Contact

The officer's state of mind, and the individual citizen's subjective belief, are irrelevant in determining whether a "detention" has occurred. "As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual.

Detentions and Stops

The purpose of a detention is to resolve whether suspicious behavior is "innocent" or relates to crime. Therefore, "the possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal activity."

The 4th Amendment - States

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizure, shall not be violated, and no warrants shall be issued, but upon probable cause, supported by oath and affirmation

Case Law

The vast majority of "the law" is case law. Decisions or "opinions" of courts which interpret the meaning of statutes and of the United States and California Constitutions.

Contacts requesting identification Merely approaching someone is not a "detention."

This means that a peace officer may approach an individual in a public place, identify himself as a law enforcement officer, and, in a non-coercive manner, ask the individual a few questions without reasonable suspicion.