Chapter 22 - Search and Seizure

*Technical Trespass*

A technical trespass would not automatically make a search unreasonable. The route which any visitor to a residence would use is not private in the 4th Amendment sense, and thus if police take the route for the purpose of making a general inquiry or for some other legitimate reason, they are free to keep their eyes open (People v. Houze). This allowance even extends to enclosed porches. The court has ruled that police conducting an investigation may go to places visitors may be expected to go, such as walkways, driveways, and porches.

*Fleeing from the Police*

Courts have held that police can detain an individual for running from them if they can establish a reasonable basis. For instance, if the individuals are in a high crime area and run at the first sight of the police, it is reasonable to give chase.

*Taking Private Citizens on Search Warrant Executions*

It is a violation of the 4th Amendment for police to take third parties into a home during a search warrant, unless the presence of the third party is necessary to aid in the warrant's execution. In other words, police may bring a witness who knows where drugs are hidden but not the media.

*"Common Sense" Reading of the Affidavit*

It is not necessary to determine that the items sought are more likely than not in the place to be searched. It is only necessary that the affidavit enable the judge to conclude that it would be reasonable to seek the evidence in the place indicated (People v. Russo). It is also acceptable for warrants to be issued based on reasonable inferences and the fair probability that evidence of a crime would be found, such as at the home of an individual arrested for drug trafficking after a traffic stop (People v. Nunez).

*48 Hour Rule*

Police must secure a judicial determination of probable cause within 48 hours of an arrest without a warrant in all but the most extraordinary situations. Inculpatory statements taken during a longer detainment may be found inadmissible after evaluating the totality of the circumstances surrounding the confinement (suspect's age, experience, severity of questioning, etcetera).

*Tabulation*

The list of items seized during the execution of the search warrant, including evidence seized in plain view or not listed on the warrant. This must be completed in the presence of the owner or occupant, or in the presence of another person. After executing the warrant, officers must file the this with the court (often called the return) even if no property is seized.

*Rest Areas*

The stall of the rest room is protected, but not the common areas (People v. Lillis)

*Objects of the Search*

A warrant that leaves the objects to be seized blank or open ended is invalid. The affidavit must describe as specifically as possible the items to be seized.

*Phrases that Comply with the Knock and Announce Statute*

"Police officers, open up!" "Police Officer. I have a search warrant. Open the door."

*Requirements for a Reasonable Expectation of Privacy*

1. A person must have exhibited an actual (subjective) expectation of privacy 2. The expectation of privacy must be one that society is prepared to be recognized as "reasonable" (Katz v. United States)

*Four Point Test for Determining Curtilage*

1. Proximity to the area of the home 2. Whether the area is in an enclosure surrounding the home 3. The nature of the area's use 4. Steps taken to protect the area from observation

*Factors Used to Determine if a Private Citizen was acting as a Government Agent*

1. The government's knowledge of or acquiescence to the search 2. The intent of the private party performing the search If the intent of the private party conducting the search is *entirely independent* of the government's intent to collect evidence for use in a criminal prosecution, then the private party is not an agent of the government.

*Documents Associated with a Search Warrant*

1. The search warrant itself 2. The affidavit for a search warrant 3. The return and tabulation

*Requirements to Apply the Fourth Amendment to a Search or Seizure*

1. There must be government conduct 2. A private person search does not violate the Fourth Amendment 3. There must be a reasonable expectation of privacy in the place being searched 4. Physical manipulation invokes the Fourth Ammendment

*Protective Sweeps*

A limited search in conjunction with an in-home arrest is permitted when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be searched harbors an individual posing a danger to those on the arrest scene. This is not a full search of every nook and cranny, but a cursory inspection of those spaces where a person may be found. The search lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart from the premises (Maryland v. Buie).

*Fruit of the Poisonous Tree*

A metaphor for the exclusionary rule, which states that if the tree (the source of evidence or justification for a search) is poison, then the fruit from that tree (the evidence gathered) is also poison.

*Hospital Room*

A patient has a reasonable expectation of privacy in the drawers and closets of a hospital room, but not in the room itself (People v. Courts)

*Garbage*

A person has no reasonable expectation of privacy in garbage left for collection outside the curtilage of the residence (California v. Greenwood)

*Actual Knock is Not Required*

A physical knock is not required, nor is the announcement required to be made at the door. The court simply requires that police provide sufficient notice to the occupants of the officer's authority and purpose, such as announcing their presence over the PA system and activating their emergency lights 30-45 seconds before making entry (People v. Fetterly).

*Good Faith Exception for Search Warrant Cases*

A police officer's good faith reliance on a search warrant is reasonable, even if the warrant itself is later held to be invalid (People v. Goldston).

*Search of Persons at Scene*

A search warrant authorizing the search of a particular premises does not give the officers the right to search all persons who may be found at that location. A Terry Pat can be conducted if reasonable, even if the person is not listed on the search warrant.

*Anticipatory Search Warrants*

A search warrant that is issued on the basis of an affidavit showing probable cause that evidence of a certain crime will be located at a specific place in the future. The warrant specifically identifies what conditions will have to occur before it will become valid, also known as a triggering event.

*What can be Searched For*

A warrant may be issued to search for and seize any property that is one or more of the following - 1. Stolen or embezzled 2. Designed or intended for use as the means of committing a crime 3. Possessed, controlled, or used in violation of the law 4. Evidence of crime or criminal conduct 5. Contraband 6. The body of a person or animal that may be the victim of a crime

*Detention During Execution of a Search Warrant*

A warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. This protects both the officers and the occupants as well as facilitates a speedy search that avoids property damage (Michigan v. Summers).

*Knock and Announce*

Absent exigent circumstances, failure to knock and announce identity before executing a search warrant may make the subsequent search invalid. Courts cannot issue blanket exceptions to the knock and announce requirement, such as all felony drug investigations. They must look at warrants on a case-by-case basis.

*Aerial Observation*

Aerial searches are permissible, even if the helicopter is as low as 400 feet, as long as the police are not violating any FAA rules. Navigable airspace above a defendant's property is still considered a public vantage point (Florida v. Riley)

*How Long Police Must Wait after a Knock and Announce*

After a knock and announce, police must wait long enough for the inhabitants to reach the door from the room furthest away before forcing entry. Police do not have to wait if they have a reasonable basis to conclude any of the following - 1. Evidence will be destroyed 2. Lives will be endangered 3. Events indicate that knocking and announcing would be useless (People v. Harvey)

*What to Leave with a Suspect after Serving a Search Warrant*

After serving a search warrant, police must leave a copy of the tabulation and a copy of the warrant. Police are not required to leave a copy of the affidavit, and the judge may order that the affidavit be suppressed and not given to the suspect in order to protect an ongoing investigation or the privacy or safety of a victim or witness. The affidavit becomes public information 56 days after the issuance of the warrant unless suppressed.

*Factors Which are Determinative of an Individual's Reasonable Expectation of Privacy*

Among the factors mentioned by the various courts are: 1. Whether the area is within the curtilage of the residence 2. Whether it is open to view from a public area 3. Whether the property was owned by the defendant or in some way controlled by him 4. Whether the defendant had a subjective expectation of privacy 5. Whether the area was enclosed 6. Whether the area was posted against trespass 7. Whether there were obstructions to vision 8. Whether the area was in fact frequented by neighbors or strangers

*Search Warrant Rule*

As a general rule, police are required to obtain a search warrant in order to perform a search. This protects citizen's rights from overzealous police officers who are personally involved in the investigation, and ensures that a neutral and detached magistrate makes the determination of probable cause.

*Pretext Stops*

As long as officers have probable cause that a traffic violation has occurred, the stop will be reasonable under the 4th Amendment (Whren v. United States). Even if the stop is a pretext for another reason - such as stopping for failure to use a turn signal when the police are actually looking for drugs - the stop is legal as long as it is reasonable to believe a traffic violation has occurred (People v. Haney). However, the stop may be unlawful if the expectation is unreasonable - such as a motor home briefly crossing the white line on a highway (United States v. Freeman).

*Intrusion by Friends or Neighbors into Areas of Reasonable Privacy*

Courts have recognized that a person may permit or even invite intrusion by friends or neighbors into areas as to which he has a reasonable expectation of privacy regarding intrusion by the authorities (People v. Hopko).

*Use of a Dog*

Dogs may sniff the outside of luggage or vehicles without violating a person's expectation of privacy (US v. Place). A dog sniff conducted during a lawful traffic stop that reveals no information other than the presence of a substance that no individual has any right to possess does not violate the 4th Amendment, so long as the use of the dog does not prolong the stop longer than necessary for the first officer to complete the citation (Illinois v. Caballes) A canine sniff is not a search so long as the dog is legally present at the vantage point where its sense of smell was aroused. (People v. Jones) Using a police dog to sniff the base of a front door, however, requires entry into the curtilage of the home and thus is a search according to the 4th Amendment. Therefore, this would require a search warrant (Florida v. Jardines).

*Inevitable Discovery Rule*

Evidence obtained in violation of the defendant's constitutional rights is admissible in court if it can be established, by a preponderance of the evidence, that the normal police investigation would have inevitably led to the discovery of the evidence anyway despite the violation. The rationale for the rule is that police misconduct is sufficiently deterred and the interests of society are better served by putting police in the same position that they would have been in without the rights violation, not a worse position (Nix v. Williams).

*Warrants and Electronic Tracking Devices*

If the attachment of the electronic tracking device requires entering a 4th Amendment protected area (inside a garage, house, vehicle), it constitutes a search. Monitoring a tracking device may sometimes be considered a search when it discloses information from inside a private residence, a location not open to visual surveillance. A person traveling in an automobile on public thoroughfares, however, has no reasonable expectation of privacy in his movements from one place to another.

*Throwing Items while Fleeing from Police*

If a fleeing suspect throws an object that is later recovered by police, the object is admissible in court because the suspect abandoned it and therefore had no expectation of privacy.

*Standing : Residence / Vehicle*

In order to challenge a search, a person must assert that he personally had a reasonable expectation of privacy in the area searched. In other words, suspects have no 4th Amendment rights when they are guests in someone else's home (United States v. Salvucci, Minnesota v. Olson). Furthermore, a person must have been personally aggrieved by the search or seizure. In other words, they cannot allege a violation on behalf of someone else (Rakas v. Illinois). Passengers in a vehicle have no standing if police have consent or reasonable suspicion to search the vehicle. The passengers themselves cannot be searched, but the area in their immediate control can be.

*Justification for a "No Knock" Warrant*

In order to justify a "no knock" entry, the police must have a reasonable suspicion that knocking and announcing under the particular circumstances would either - 1. Be dangerous or futile 2. Inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence

*When the Authority of the Warrant Terminates*

Officers may take as long as reasonably necessary to execute the warrant and generally may continue to search the premises described in the warrant until they are satisfied that all available evidence has been located. Once the execution of the warrant is complete, the authority conferred by the warrant terminates. Once the search is complete, officers will need a second search warrant to re-enter unless the second entry is a "reasonable continuation" of the original search.

*Descriptions of a Building to be Searched*

On an affidavit for a search warrant, the description of a building should include - 1. The type of structure (dwelling, apartment, shed, etc) 2. The number of floors or stories 3. The areas within to be searched 4. The type of construction (brick, stick built, etc) 5. The color of the exterior 6. Any other building within the curtilage to be searched 7. The street name and address 8. The side of the street the property is located on 9. The intersecting roadways between with the property is located 10. Any unique characteristics of the premises to be searched (satellite dishes, decks, etc) 11. The political subdivisions within which the premises is located (city, village, county, state, etc)

*Descriptions of a Vehicle to be Searched*

On an affidavit for a search warrant, the description of a vehicle should include - 1. Year, Make, Model 2. Body Style 3. Color 4. License Plate number, year, and state where it was issued 5. VIN 6. Any know owner, occupant, or operator 7. The usual or probable location of the vehicle

*Abandonment*

Once a defendant abandons something in a public area, they have relinquished any reasonable expectation of privacy to it (People v. Mamon). Entry into an abandoned structure is reasonable because the owner no longer has an expectation of privacy. Determination of whether a structure is abandoned is based on the totality of the circumstances (People v. Taylor). A condemned building is considered abandoned for 4th Amendment purposes (People v. Antwine).

*Knock and Announce Violations and the Suppression of Evidence*

One of the purposes of the knock and talk rule is to allow a defendant a brief opportunity to put his personal affairs in order before the police enter his home. It is not meant to allow the defendant time to destroy evidence. As long as police do not exceed the scope of the search warrant, even if they do not properly knock and announce their evidence, the discovery is considered inevitable and it will not be suppressed. In other words, the exclusionary rule does not apply because a knock and announce violation does not lead to the discovery of evidence - the warrant does. Officers should be mindful that a knock and announce violation may still result in civil litigation for violating the suspect's 4th Amendment rights.

*Open Fields*

Open fields beyond the curtilage of the home are not protected by the 4th Amendment. Thus, observation of those areas does not constitute a search. This is true even if police have to climb or walk around fences to access the open field (United States v. Dunn). A "No Trespassing" sign is not an adequate bar to access of an open field / wooded area as to convey a reasonable expectation of privacy sufficient to trigger 4th Amendment protections (Oliver v. United States).

*Aiding Vision*

Police Officers can use any technology that is readily available to the general public to aid their vision while making observations in open view. This does not constitute an intrusion and thus the Fourth Amendment applies. However, the Fourth Amendment does apply when the device used is not available to the general public. In other words, police can use cameras with zoom lenses (People v. Ward) or binoculars (People v. Clark), but not advanced thermal imaging equipment capable of detecting heat signatures through walls (Kyllo v. United States).

*Physical Manipulation with Prior Reasonable Suspicion Exemption*

Police can manipulate items without a warrant if they have a prior reasonable suspicion which justifies the search before they actually perform it (ie opening a toolbox to look for drugs if a witness reported that is where the dealer hides his drugs). It is important that the basis for the search is independent of any physical prodding or manipulation (United States v. Flowal).

*Detention Pending the Issuance of a Search Warrant*

Police may detain a suspect in order to prevent them from entering a home they are seeking a search warrant on. The reasonableness of this detention requires - 1. Police have probable cause to believe that the suspect's home contains evidence of a crime 2. Police have good reason to fear that, unless restrained, the suspect would destroy evidence inside the home before they could return with a warrant 3. They make reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy by avoiding a warrant entry or arrest and only preventing the suspect from entering the home 4. They imposed the restraint for a limited period, which is no longer than reasonably necessary for them to act with diligence and obtain a search warrant

*Immediate Need and Homicide Scenes*

Police may make warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Likewise, they may enter a homicide scene to see if there are other victims or if the killer is still on the premises. Any evidence found in plain view during these searches is admissible. However, once the scene is secured and no other victims or suspects could reasonably be present, they must obtain a warrant before searching further. Any search without a warrant outside the above parameters is unconstitutional (Mincey v. Arizona, Thompson v. Louisiana).

*License Plates*

Police may run a license plate number even if the vehicle has not violated any traffic laws and there is no other information to suggest a crime has been committed. Also, in the absence of any evidence to the contrary, police may reasonably suspect that a vehicle is being driven by its registered owner. When information from a computer check provides basis for further investigation of the registered owner, police may initiate an investigatory stop to determined if the driver is the registered owner. In the course of the stop, the officer may request identification and may act to reasonably secure his own safety (People v. Jones)

*Staleness*

Probable cause must exist when the search warrant is sought and executed. The court has held that probable cause supporting a search warrant existed even when the facts relied on in the affidavit were nearly 10 years old, based on the reasonable expectation that the evidence was still present (People v. Russo). However, probable cause may become stale if the warrant is not executed within a reasonable time after it has been issued.

*Other Buildings within the Curtilage*

Property that is within the curtilage of any dwelling, such as a shed or an outbuilding, must be described with specificity in a search warrant to justify a search of that property (People v. Mackey).

*Work Related Searches must be reasonable under the 4th Amendment*

Searches in a workplace by an employer must be motivated by a legitimate work-related purpose, and not excessive in scope (City of Ontario v. Quon)

*School Officials as Government Agents*

Teachers and Principals are governmental agents, but Courts have recognized the need to maintain order and safety in the school. As such, teachers only need reasonable suspicion rather than probable cause to conduct a search. Lockers are school property that offer no expectation of privacy and may be searched at any time.

*Pretext Arrests*

The Court has held that the validity of arrests is based on the objective reasonableness of the probable cause for the arrest, and not the subjective motivations of the individual officers. Thus, if a completely valid arrest is actually a pretext to search for something else in a vehicle or on the suspect, the search is still valid (Arkansas v. Sullivan).

*Pinging Cell Phones*

The Court has held that there is no 4th Amendment violation if police repeatedly ping a cell phone, since there is no reasonable expectation of privacy for the data given off by a voluntarily procured cell phone. The law does not allow for a criminal to be entitled to rely on the expected untrackability of his tools. Cell phones companies, however, often will not allow law enforcement to ping cell phones without a warrant or clear need to protect life (lost older adult, suicidal subject, etc).

*Physical Manipulation Invokes the Fourth Amendment*

The Court has ruled that if police physically manipulate items without a warrant and without any prior reasonable suspicion, it is a direct violation of the Fourth Amendment (Bond v. United States)

*Difference Between the Michigan Constitution and the United States Constitution*

The Michigan Constitution has no exclusionary rule for drugs, firearms, bombs, or other dangerous weapons seized outside the curtilage of a dwelling. However, federal courts have held that the protections of the Fourth Amendment and due process requirements of the Fourteenth Amendment provide that any evidence gained in violation of the United States Constitution will be barred by the exclusionary rule, even if it it is firearms or bombs or drugs. States can more protections but not fewer than those that are granted by the Bill of Rights. Thus, a gun that would be admissible under the Michigan Constitution would be suppressed by the superseding authority of the U.S. Constitution.

*Crime Scenes*

The United States Supreme Court has consistently held that there is no crime scene exception to the search warrant rule. A person still maintains an expectation of privacy in his residence even if he has committed a crime.

*The Workplace*

The amount of control a person has over his work space and the number of individuals who have access to it will dictate whether he has a reasonable expectation of privacy in it; the more control the person has, the more likely a court will find he has an expectation of privacy there (People v. Powell).

*Good Faith Exception to the Exclusionary Rule*

The exclusionary rule was put in place to deter illegal police conduct. As long as the police acted in good faith and did not intentionally do anything illegal, any evidence uncovered should still be admissible in court (United States v. Leon / Massachusetts v. Sheppard)

*"Four Corners of the Affidavit"*

The facts establishing probable cause must be found within the affidavit itself. Additional facts not contained in the affidavit cannot be used unless they are included in the official record (People v. Sloan).

*Neutral and Detached Magistrate*

The impartial individual who issues a search warrant after they have determined that probable cause exists. They must have no stake in the outcome of, no bias related to, or any role in the investigation of the case.

*Most Important Part of the Search Warrant*

The judge's signature.

*Open Fields Doctrine*

The legal doctrine that a "warrantless search of the area outside a property owner's curtilage" does not violate the 4th Amendment. However, unless there is some other legal basis for the search, such a search must exclude the home and any adjoining land (such as a yard) that is within an enclosure or otherwise protected from public scrutiny. Open fields are not a "constitutionally protected area" because they cannot be construed as persons, houses, papers, or effects (Hester v. United States).

*Police Responsibilities for Property Seized during a Search Warrant Execution*

The property seized shall be safely kept by the officer so long as necessary for the purpose of being produced or used as evidence in trial. Property must be properly disposed of once the proceedings are complete. As soon as practicable, stolen or embezzled property shall be restored to the owner of the property.

*Observation Over Fences*

There is no reasonable expectation of privacy behind a fence such as a wooden privacy fence, since it does not shield the activity behind the fence from a tall passerby, from occupants of aircraft traveling overhead, or even from a police officer standing on the bumper of his cruiser (People v. Smola).

*Vehicle Identification Numbers*

There is no reasonable expectation of privacy in the VIN plate under a windshield or serial number on a motorcycle's forks (New York v. Class, People v. Dinsmore) However, officers must obtain a search warrant to find hidden VINs within the vehicle (People v. Wilson)

*Government Conduct*

This generally involves actions by a law enforcement officer or his agent. Actions by private citizens generally do not raise Fourth Amendment issues because the Bill of Rights was created to protect the people from the government, not from each other.

*Scope of the Search under a Search Warrant*

This is defined by the object of the search and the places in which there is probable cause to believe that it may be found. A warrant authorizing the search of a premises authorizes the search of containers within the premises that might contain the items listed in the warrant.

*Seizure*

This occurs either - 1. Whenever a reasonable person would believe he or she is not free to leave because of a police show of authority or force and submits 2. Whenever custody of the individual is achieved through the application of physical force

*Open View*

This occurs when the person has no expectation of privacy. What a person knowingly exposes to the public, even in his own home, is not protected under the Fourth Amendment and thus the search warrant rule does not apply (Katz v. United States).

*Plain View*

This occurs when: 1. Police are lawfully in an area protected by the Fourth Amendment 2. While in the protected area, they locate items that they have probable cause to believe are evidence or contraband 3. The fact that the items may be evidence or contraband must be readily apparent to the officer. This allows an officer to seize, without a warrant, evidence and contraband that are visually exposed during a lawful observation (Horton v. California).

*Sufficiency of the Description of the Place to be Searched*

To determine if the description of the place to be searched is sufficient for a search warrant, the affidavit must - 1. Describe the place with sufficient particularity to enable the executing officer to lace and identify the premises with reasonable effort 2. There must be reasonable probability that another premises will not be mistakenly searched (People v. McGhee).

*Thermal Imaging*

Using sense-enhanced technology to obtain information regarding a home's interior that could not otherwise be obtained without physical intrusion is a search where the technology is not in general use (Kyllo v. United States)

*Private Conversations*

Warrantless electronic monitoring of conversations is permissible as long as one party consents to the monitoring (People v. Collins). MCL 750.539d prohibits eavesdropping without consent of one party, but it does not prohibit security monitoring at a residence or business if conducted by or at the direction of the owner or principal occupant.

*General Warrants*

Warrants must have a particular description of the things to be seized. The language must be specific enough to limit the seizure only to those records connected to the criminal activity being investigated (People v. Harajli).

*Named or Unnamed Persons*

When determining if probable cause is established by an affidavit, courts prefer allegations from named individuals but will accept them from unnamed persons. If the individual is unnamed, the affidavit must offer proof of credibility of the informant or that the information is reliable.

*Exclusionary Rule*

When evidence has been obtained in violation of the accused's constitutional rights, the evidence will be suppressed from court proceedings (Mapp v. Ohio).

*Using Force to Obtain Blood*

When executing a search warrant for a blood draw, officers may use reasonable force to subdue the suspect to ensure his safety and the safety of others. The force used should not be severe, unnecessary, or unduly intrusive (People v. Hanna).

*Search Warrant*

Written court order requiring the search of a particular place for a particular thing, issued by a judge or magistrate after they have determined that probable cause exists and will be found in the place to be searched.

*Affidavit for a Search Warrant*

Written document prepared by a law enforcement officer that contains the facts by which a judge or magistrate may determine if probable cause to search exists. The affiant must sign this document before the judge and affirm under oath that its contents are true. This documents should list facts only, not conclusions.