Unit 8: Law, Courts, and Procedure

Search and Seizure

Searches and seizures are governed by the Fourth Amendment to the U.S. Constitution and by the individual states’ constitutions.

Under the Fourteenth Amendment to the U. S. Constitution, known as the “Due Process Clause,” the guarantees in the federal constitution apply to citizens in state courts, and no state can interpret its own constitution in such a way as to reduce or abridge any rights a citizen would enjoy under the federal constitution. On the other hand, a state court can interpret its state constitution in such a way as to give a citizen additional rights that they would not enjoy under the federal document.

The most common way law enforcement officers are punished for violating a citizen’s constitutional rights in the evidence gathering process is through application of the exclusionary rule, which requires that any evidence illegally obtained, and any other evidence obtained as a result ofthat first illegal act (the “fruit of the poisoned tree”) is inadmissible at a criminal trial. Thus, the officers are punished by losing their case, and the criminal goes free.

A search is defined by the U. S. Supreme Court as any conduct by a government agent which intrudes on a person’s reasonable expectation of privacy.

A seizure can be either the gathering and collection of evidence, or the restriction of a person’s freedom of movement in a significant way.

When officers are allowed to conduct a search, they can only search for the following classes of items:

1. The fruits of a crime, such as stolen, embezzled or fraudulently obtained property

2. Instrumentalities of a crime, such as burglar’s tools.

3. Contraband (items such as drugs, which are illegal to possess).

4. Evidence of a crime, such as bloodstains or fingerprints.

5. Suspects of a crime.

6. Dangerous weapons.

A reasonable expectation must be one that the person has exhibited, and one that is objectively reasonable. Thus, if a person stands nude in front of a window, although they may have an expectation of privacy in their home, it is not objectively reasonable to assume someone will not look at them, if they fail to draw the drapes.

A person has the highest expectation to privacy in his or her own body, followed by their home. As to the body, the U.S. Supreme Court has ruled that it is not unconstitutional to take a blood alcohol test from a person without their permission in a driving while intoxicated case. However, pumping the stomach of a defendant to recover an illegally swallowed substance was held to be unconstitutional behavior. However, a sniff of the outside of a vehicle by a drug-detecting dog on suspicion that the vehicle contained contraband has been upheld.

What a person knowingly exposes to the public is not protected by the Fourth Amendment.

It is therefore legal to take photos of the outside of a suspected hit/run vehicle parked on a public street.

The high expectation of privacy in a home is based on common law rather than the Constitution. The rule says that the police, when serving a warrant at a residence, should first knock, announce their identity and purpose, and demand entrance. If entrance is denied, they can then break the door down to serve the warrant.

They are not required to knock and announce if they have reason to believe they will be in danger or a suspect will escape or destroy evidence if they knock.

A person has no expectation of privacy in open fields outside the curtilage, (that is the area surrounding a residence and associated with normal living activities of the residence) ofa home, and an officer may search open fields without a warrant or probable cause. Although no warrant is required for the search, the seizure should be done with a warrant if it is practicable to obtain one, because the property does not belong to the officer who is seizing it. A person also has no right to an expectation of privacy from airplanes flying at legal altitudes.

Abandoned property, such as garbage or trash put out for collection, can be searched and seized without a warrant or probable cause, because the person has abandoned their privacy expectation. You can search a hotel room which an occupant has checked out of, and seize any property left in the room.

In suspected arson cases the owner of the property has a reasonable expectation of privacy even in a burned-out building, and you must obtain a warrant to remain on the premises once the firefighters have left.

The Fourth Amendment prohibits only governmental intrusions, not those by private persons.

However, a private person acting at the request of a police officer becomes a “government agent.” If a private person, while committing a trespass, discovered evidence of a crime and turned it over to a police officer without being requested to do so, the evidence would be admissible in court.

For a government agent to make an arrest or to conduct a search, with or without a warrant, he or she must have probable cause. Probable cause to make an arrest has been defined as facts and circumstances within the officer’s personal knowledge, or of which he/she has reasonably trustworthy information, which is sufficient to warrant a person of reasonable caution to believe that a crime has been committed and that a particular person committed it. Probable cause for a search requires that the officer believe that a crime has been committed, that evidence exists, and that it will be found in the location to be searched at the time of the search. In reviewing an officer’s probable cause, courts use practical, common sense standards as opposed to excessively technical rules.

Probable cause can become stale unless acted upon within a reasonable time. To determine whether evidence is too stale to establish probable cause, look at: a) whether the information concerns a single transaction or a continuing course of conduct, b) whether the evidence sought is easily moved, c) the nature of the evidence sought, and d) how much time has passed since the crime.

If you obtain a search warrant and are unable to serve it before it expires, you must obtain fresh probable cause before obtaining a new warrant.

You can determine probable cause from reliable outside information, and from your own observations made with your five senses - sight, hearing, smell, taste, and touch. Be careful with the smell of marijuana in a vehicle, because the odor might be lingering from a previous occasion. An officer with sufficient experience to recognize the odor of burning marijuana has probable cause to suspect its presence when he or she detects the odor within the confines of an automobile, however.

Drug paraphernalia by itself does not constitute probable cause because it is not illegal to possess drug paraphernalia unless you intend to use it for an illegal purpose. A hand rolled cigarette observed by an unskilled person cannot be seized as suspected marijuana when the contents are not known, but may be seized when there are sufficient corroborating facts to transform mere suspicion into probable cause.

Probable cause can be passed along from one police officer to another through the doctrine of imputed knowledge, such as making an arrest upon a warrant issued to another officer, or upon a radio dispatch. If your probable cause relies on information told to you by a citizen or informant, you must establish that the person who gave you the information is both: a) reliable, and b) the informer had a basis of knowledge. To prove the reliability of an informant, you will usually attempt to prove that the person has given you reliable information in the past which has led to arrests, or to corroborate the information you were given by additional personal observation, such as through a surveillance or stakeout.

If you do not wish to reveal the name of an informant, you can leave it out of a search warrant affidavit, as long as you give the issuing magistrate enough other information to independently determine that the informant is reliable. In a later suppression hearing at court, the defense may attempt to force you to reveal the informant’s name. You can object to this motion, but if it is granted by the court, you will have to reveal the informant’s name or have the case dismissed.

The general rule for all searches is GET A WARRANT! Any search performed without a warrant is presumed to be unreasonable, unless it falls within a few clearly delineated exceptions to the warrant rule.

When relying in good faith on a warrant which appears to be valid on its face but where the judge made a mistake in the warrant, there is a federal “good faith” exception to the Exclusionary Rule which may allow the evidence to be used.

Every exception to the warrant requirement is based on a situation where an officer could not obtain a warrant in advance of the search. Examples would be as follows:

INCIDENT TO A LAWFUL ARREST. If an officer makes a physical custody arrest of a person for a crime, the officer may search the person and the area under the arrestee’s immediate control. The officer can seize evidence of a crime, implements of escape, or weapons, from the arrested person. A strip search or body cavity search, however, should only be attempted by an officer of the same sex of the person to be searched, with a witness present, in the manner least likely to adversely affect the suspect’s human dignity, and not for a minor offense. Juveniles should only be strip searched under the most extreme circumstances. A search incident to an arrest is only legal if the arrest itself was legal, and if conducted contemporaneously with the arrest. The purpose of such a search is to discover implements of escape or attack, and to prevent the destruction of evidence.

A person has a greater expectation of privacy in their luggage. If you arrest a person carrying a briefcase, for example, it is best to seize the container and seek a search warrant to look inside it, unless there is some emergency.

BOOKING SEARCH. A search can be conducted at the police station or jail of any arrested person, even if they were already searched at the time of arrest. No probable cause is required for a booking search, because the purpose of the search is to protect the defendant’s property, and to protect the police from potential danger and from unwarranted claims that they have lost or stolen something from the defendant. This search of a prisoner’s property does not have to be done at once, but can occur at any time while the prisoner is in custody, and evidence discovered on the prisoner’s person, such as shoes with a particular tread pattern, can be held and submitted to the crime lab for analysis without independent probable cause.

SEARCH ON IMPOUNDMENT. If your agency has a written policy that you are to inventory the contents of any vehicle that you lawfully impound, you may also conduct a search on impoundment of the vehicle and its contents, including any containers found in the vehicle, and seize any contraband found during the search. An impoundment search does not have to be done at once, but can be done at any time while the vehicle is still in police custody.

Your agency should have a written policy requiring inventory searches, and if it is their intention that you also search any closed containers in the vehicle, the written policy should so state. One Justice of the U. S. Supreme Court has expressed some skepticism on the constitutionality of the practice of running the serial numbers of all items through the National Crime Information Center (NCIC) to see if they are stolen, without particular suspicion relative to those items.

UNINTERRUPTED HOT PURSUIT. A law enforcement officer in pursuit of a person he or she has observed committing an offense can pursue the defendant even into a private home and arrest them without a warrant. You may search any place the defendant may hide or secrete a weapon, but your authority to search terminates once the suspect has been located and arrested.

Unless you have consent or exigent circumstances exist, you must always have a warrant to arrest a person in their home and an arrest warrant plus a search warrant to arrest a person in the home of a third party.

There is an automobile exception to the search warrant requirement in the federal constitution. Because of their rapid mobility, courts in other jurisdictions have recognized motor vehicles as “fleeting targets” which can rapidly leave the jurisdiction, therefore they can be searched without a warrant if you: a) have probable cause to believe they contain a wanted person or contraband, and b) the vehicle’s mobility precludes obtaining a warrant before the search. Such a search can include the vehicle and any closed containers in the passenger compartment of the vehicle. However, if the probable cause related only to a specific container in the vehicle, you would not be justified in searching the entire vehicle, just the container.

If you arrest a person in a motor vehicle, incident to the arrest you can search the entire passenger compartment, glovebox, and any open or closed containers. Under federal law the search is still valid if conducted back at the police station instead of immediately on the road, because you had the right to do it initially.

Although probable cause is required to make an arrest, an officer may temporarily detain a person or a vehicle on something less than probable cause, called articuable suspicion to believe the person is committing, has committed, or is about to commit a crime. If the officer fears that the person is armed and dangerous, the officer may pat down the suspect’s outer garments looking for weapons, and seize any weapons found in this manner. Only weapons can be seized, however. If the person is riding in a vehicle, the officer may require the person to get out of the vehicle and may search any place in the passenger compartment of the vehicle where a weapon could be found.

A non-threatening object detected by touch during a valid weapons frisk of a suspect may be seized without a warrant if your sense of touch makes it immediately apparent that the object is contraband. This is the “plain feel” exception to the warrant requirement, and only applies within the bounds of a weapon frisk. You are not entitled to “manipulate” an object you have already determined is not a weapon in order to further explore its nature.

Whenever an officer reasonably believes the delay in obtaining a warrant would cause a substantial threat of imminent danger to life or public safety, a search can be made without a warrant under the exigent circumstances exception, but there must be probable cause for the search. Although the emergency will justify entry into a building, the scope of the search is limited to the emergency, and once the emergency is over, such as when the suspect is in custody, the officer’s right to be on the premises ends.

If something is to be seized or a further search is necessary, officers should be posted to maintain the status quo and a search warrant sought. At a crime scene, once the officer has rendered aid or arrested the suspect, in order to continue to search and seize evidence a search warrant must be issued.

An officer can always seize evidence which is in plain view without a warrant provided: a) the object is in plain view, b) the officer had a right to be where he/she was when the observation was made, c) the discovery was inadvertent, and d) the incriminating nature of the evidence was immediately apparent. The use of a flashlight or binoculars to enhance your vision does not invalidate a plain view search.

A consent search requires neither a warrant nor probable cause, if the person freely and voluntarily waives their Fourth Amendment rights. Consent is determined by the totality of the circumstances and it is best to ask the person to sign a consent form so you can prove they gave their consent. However, it is not necessary to tell the suspect that they have a right to refuse the search but if you make a statement such as, “If you don’t give me your consent, I’ll go get a warrant,” this could be considered as overbearing the person’s free will and would invalidate the consent.

For consent searches you must show that under the circumstances surrounding the search, it was “objectively reasonable” for you to believe the defendant consented to the search. It is your perception that is vital, not the person’s actual intent at the time. For example, if you obtain consent to search an automobile’s trunk and advise the owner that he can stop the search at anytime, it would be objectively reasonable to believe you also had his/her permission to search a closed knapsack in the trunk. General consent to search a person’s vehicle extends to any closed container in the vehicle. Where police officers board a bus and engage passengers in conversation, then seek permission to search their luggage for drugs, the consent is valid as long as a reasonable person would have felt free to refuse.

Once a person consents to a search, they can revoke that consent at any time, or limit the scope of the search. Any person who has joint access and control over a place can consent to the search of any areas not under the exclusive control of the other person. If a child’s room is locked and for the child’s exclusive use, a parent may not consent to a search of the room. If the police search premises upon the consent of a party whom they reasonably, but mistakenly, believe has the authority to do so, the search is still valid. The owner of a truck can consent to its search when the truck is used by an employee.

The U.S. Supreme Court has also upheld certain administrative searches on less than probable cause. For instance, school officials, not in collusion with the police, may search a student whom they suspect of violating school rules or committing a crime, as long as the search is conducted in a reasonable manner.

Government employers may search employees’ desks and filing cabinets if access to them is required for some work-related purpose. And probation and parole officers may search the persons or residences of probationers and parolees whom they reasonably suspect of committing a crime or of violating the terms of their probation or parole agreement, and may ask a police officer to accompany them during the search for their personal protection.