Search Seizure Law Update CONSTITUTIONAL FOUNDATION TO ARREST

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Search & Seizure Law Update

Search & Seizure Law Update

CONSTITUTIONAL FOUNDATION TO ARREST & SEARCH The Fourth Amendment: The right of the people

CONSTITUTIONAL FOUNDATION TO ARREST & SEARCH The 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 FOUNDATION TO ARREST & SEARCH The Fourth Amendment: The right of the people

CONSTITUTIONAL FOUNDATION TO ARREST & SEARCH The 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.

Probable Cause Search & Seizure

Probable Cause Search & Seizure

PROBABLE CAUSE Absolute Certainty Proof Beyond a Reasonable Doubt (Articulable) Reasonable Suspicion Probable Cause

PROBABLE CAUSE Absolute Certainty Proof Beyond a Reasonable Doubt (Articulable) Reasonable Suspicion Probable Cause Possibility / Hunch

PROBABLE CAUSE In layman’s terms, how will you define Probable Cause for a jury.

PROBABLE CAUSE In layman’s terms, how will you define Probable Cause for a jury. A reasonably prudent person would believe: – that a crime has been committed – that the person to be arrested has committed that crime

PROBABLE CAUSE Test for Probable Cause The focus in determining probable cause is not

PROBABLE CAUSE Test for Probable Cause The focus in determining probable cause is not on the certainty that a crime was committed, but on the likelihood of it. Don’t have to be RIGHT; but, you do have to be REASONABLE

Indications of Criminal Activity That May Contribute to a Finding of PROBABLE CAUSE Suspect

Indications of Criminal Activity That May Contribute to a Finding of PROBABLE CAUSE Suspect Demeanor or Reaction to Officer Flight is one factor to be considered. Sibron v. New York (1968) ~ “Deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea (a guilty mind), and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of the crime, they are proper factors to be considered in the decision to make an arrest. ”

Indications of Criminal Activity That May Contribute to a Finding of PROBABLE CAUSE Suspect

Indications of Criminal Activity That May Contribute to a Finding of PROBABLE CAUSE Suspect Demeanor or Reaction to Officer Flight in itself will not independently support a probable cause finding. Wong Son v US (1963) ~ officers responded to a suspect's home who was believed to be selling heroin. When the suspect answered the door he turned and ran with officers in pursuit. The court found that his subsequent seizure was invalid because officers did not have probable cause to arrest him simply because he ran away.

Seizures & Detentions Terry Stops & Frisks

Seizures & Detentions Terry Stops & Frisks

POLICE AUTHORITY TO DETAIN Looking at the right of police officers to stop a

POLICE AUTHORITY TO DETAIN Looking at the right of police officers to stop a suspect under circumstances in which there was insufficient grounds for an actual arrest Requires REASONABLE ARTICULABLE SUSPICION This does NOT authorize police to detain anyone on mere SUSPICION or a HUNCH!

LEVELS OF CRIMINAL EVIDENCE Beyond Reasonable Doubt Clear and Convincing Trial Preponderance _____ Investigation

LEVELS OF CRIMINAL EVIDENCE Beyond Reasonable Doubt Clear and Convincing Trial Preponderance _____ Investigation Probable Cause Reasonable Suspicion ~ articulable (explain the facts) Hunches or Whims ~ can’t articulate

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 In Terry, the US Supreme Court

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 In Terry, the US Supreme Court upheld the authority of the police to stop or detain (or seize) a person where the officer observes unusual conduct which leads the officer reasonably to conclude, in light of his/her experience (including training), that criminal activity may be afoot. “Terry Stop” vs. “Terry Frisk”

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 A Terry Stop - an investigative

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 A Terry Stop - an investigative detention of a suspect. Not a search! Officers can conduct a Terry Stop with reasonable (articulable/explainable) suspicion that criminal activity is afoot. Officers can stop a suspect and investigate that person for a reasonable period of time. Even though its not a formal arrest, it is a seizure under the 4 th Amendment.

Reasonable Suspicion + Armed & Dangerous = FRISK Terry requires an officer to articulate

Reasonable Suspicion + Armed & Dangerous = FRISK Terry requires an officer to articulate a reasonable belief that a suspect is armed and poses a threat before the officer is permitted to conduct a limited “Pat Down” of the suspect’s outer clothing. Just because I can “Terry Stop” someone doesn’t automatically give me the right to frisk them for a weapon.

CONSTITUTIONAL FOUNDATION TO ARREST & SEARCH The Fourth Amendment: The right of the people

CONSTITUTIONAL FOUNDATION TO ARREST & SEARCH The 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 FOUNDATION TO ARREST & SEARCH The Fourth Amendment: The right of the people

CONSTITUTIONAL FOUNDATION TO ARREST & SEARCH The 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.

Frisking Containers An officer who finds a closed container within lunging distance of a

Frisking Containers An officer who finds a closed container within lunging distance of a suspect who is being lawfully stopped and frisked, may open the container to see if it contains a weapon if: in light of the officer’s experience and training the item could contain a weapon, and the container is NOT locked

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 Search or “Frisk” is going to

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 Search or “Frisk” is going to be limited to searching for hard objects… That the suspect could use to hurt the officer like guns, pocket knives, mace, clubs, … Not limited to just those things we ordinarily think are weapons… It could also be things like car keys or pens because those could hurt an officer as well…

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 While an officer may want to

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 While an officer may want to conduct a frisk for “officer safety” purposes, the law requires more than that. Reasonable suspicion that someone’s presently armed and dangerous is just what it sounds like, but most importantly, the officer has to have facts to support that conclusion.

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 Look, Feel, Crush and Twist –

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 Look, Feel, Crush and Twist – FLETC You can manipulate hard objects as much as necessary to ensure they are not weapons! You may NOT manipulate soft objects that could not be a weapon. If your actions are reasonable and executed only to determine whether the suspect possesses a weapon, then the “Terry Frisk” is constitutionally proper

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 Example: Can you conduct a Terry

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 Example: Can you conduct a Terry Stop of someone if there is reasonable (articulable/explainable) suspicion he is in possession of a stolen credit card? The officer will want to conduct a brief detention to investigate further. Is there anything about being in possession of stolen credit cards that would automatically lead you to believe the person is armed and dangerous? Without additional facts: a Terry Stop is authorized, but not a Terry Frisk

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 Offenses like drug distribution or burglary

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 Offenses like drug distribution or burglary just go with weapons. Courts have held that people who sell drugs most often carry weapons to protect their money and product. Burglars need burglary tools - things to break windows, screw drivers, and crow bars to pry doors open. In Terry the detective had reasonable suspicion to believe an armed robbery was afoot.

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 Reasons For The Frisk: Articulating Your

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 Reasons For The Frisk: Articulating Your Reasonable Suspicion • Person’s • Appearance • • Person’s Actions • Prior Knowledge of • the Person • Location Time of Day Law Enforcement Purposes Companion

Scenario #1 A male comes into your agency to retrieve property from his impounded

Scenario #1 A male comes into your agency to retrieve property from his impounded vehicle. You run a warrant check and learn that there is an outstanding felony arrest warrant for the male in an adjacent jurisdiction. You arrest the male; and, incident to the arrest, confiscate meth and a firearm from his person.

Scenario #1 Later on, you discover that the warrant had been recalled nearly three

Scenario #1 Later on, you discover that the warrant had been recalled nearly three (3) months ago; however, the other Agency, unbeknownst to you, forgot to pull the warrant. Since a police agency made the mistake and another police agency will be benefitting from the mistake by the admission of the evidence, should this evidence be excluded?

Scenario #1 “When police mistakes leading to an unlawful search are the result of

Scenario #1 “When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply. ” Herring v. U. S. , (Jan 14, 2009)

U. S. v. Quinney, October 01, 2009 Under the inevitable-discovery doctrine, if the prosecution

U. S. v. Quinney, October 01, 2009 Under the inevitable-discovery doctrine, if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, then the deterrence rationale of the exclusionary rule has so little basis that the evidence should be received.

U. S. v. Quinney, October 01, 2009 However, the inevitable-discovery doctrine does not permit

U. S. v. Quinney, October 01, 2009 However, the inevitable-discovery doctrine does not permit police, who have probable cause to believe a home contains contraband, to enter a home illegally, conduct a warrantless search and escape the exclusionary rule on the ground that the police could have obtained a warrant yet chose not to do so.

The Exclusionary Rule “The fact that a search or arrest was unreasonable does not

The Exclusionary Rule “The fact that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies. ” Illinois v. Gates, (1983). “The [exclusionary] rule is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free. ” U. S. v. Leon, (1984)

Miranda & th 5 Amendment Recent Case Law

Miranda & th 5 Amendment Recent Case Law

Florida v. Powell, U. S. 1898, Feb 23, 2010 • Miranda warnings that failed

Florida v. Powell, U. S. 1898, Feb 23, 2010 • Miranda warnings that failed to expressly state that the suspect had a right to have a lawyer present during the questioning, but advised that he had “the right to talk to a lawyer before answering any of our questions” and the right to exercise that right at “anytime you want during this interview, ” adequately conveyed his rights under Miranda.

Maryland v. Shatzer, 1899, (Feb 24, 2010) A break in Miranda custody of fourteen

Maryland v. Shatzer, 1899, (Feb 24, 2010) A break in Miranda custody of fourteen (14) days provides ample time for the suspect to get re-acclimated to his normal life, to consult with friends and family and counsel, and shake off any residual coercive effects of prior custody.

Maryland v. Shatzer, 1899, (Feb 24, 2010) If a suspect invokes counsel under Miranda

Maryland v. Shatzer, 1899, (Feb 24, 2010) If a suspect invokes counsel under Miranda while in custody and is then released, nothing prohibits law enforcement from approaching, asking questions, and obtaining a statement without the Miranda lawyer present from the suspect who remains out of custody

U. S. v. Panak, 6 th Circuit (Jan 09, 2009) Should the officers subjective

U. S. v. Panak, 6 th Circuit (Jan 09, 2009) Should the officers subjective knowledge determine when to advise Miranda? An officer’s knowledge of an individual’s guilt may bear upon the custody issue - NOT because the officer possesses incriminating evidence but because he HAS conveyed it… and thus has used the information to create a hostile, coercive, freedom-inhibiting atmosphere

U. S. v. Panak, 6 th Circuit (Jan 09, 2009) That is why such

U. S. v. Panak, 6 th Circuit (Jan 09, 2009) That is why such knowledge is relevant only if… 1. …it was somehow manifested to the individual under interrogation and 2. …it would have affected how a reasonable person in that position would perceive his or her freedom to leave.

Exigent Circumstance Recent Case Law

Exigent Circumstance Recent Case Law

AUTHORITY TO ENTER: WARRANTLESS SEARCH & ARREST 1. Fresh Pursuit (“Hot Pursuit”) 2. Immediate

AUTHORITY TO ENTER: WARRANTLESS SEARCH & ARREST 1. Fresh Pursuit (“Hot Pursuit”) 2. Immediate Destruction of Evidence 3. Public Safety and/or Welfare 4. Prevent Escape of a Suspect

MICHIGAN v. FISHER, 2009 Police officers responded to a complaint of a disturbance A

MICHIGAN v. FISHER, 2009 Police officers responded to a complaint of a disturbance A couple directed them to a residence where a man was "going crazy" Officers found a household in considerable chaos: a pickup truck in the driveway with its front smashed, damaged fence posts along the side of the property, and three broken house windows, the glass still on the ground outside

MICHIGAN v. FISHER, 2009 Officers also noticed blood on the hood of the pickup

MICHIGAN v. FISHER, 2009 Officers also noticed blood on the hood of the pickup and on clothes inside of it, as well as on one of the doors to the house Through a window, the officers could see respondent, Jeremy Fisher, inside the house, screaming and throwing things. The back door was locked, and a couch had been placed to block the front door.

MICHIGAN v. FISHER, 2009 They saw that Fisher had a cut on his hand,

MICHIGAN v. FISHER, 2009 They saw that Fisher had a cut on his hand, and they asked him whether he needed medical attention. Fisher ignored these questions and demanded, with accompanying profanity, that the officers go to get a search warrant Officer Goolsby then pushed the front door partway open and ventured into the house. Through the window of the open door he saw Fisher pointing a long gun at him. Officer Goolsby withdrew

MICHIGAN v. FISHER, 2009 Fisher was charged under Michigan law with assault with a

MICHIGAN v. FISHER, 2009 Fisher was charged under Michigan law with assault with a dangerous weapon and possession of a firearm during the commission of a felony Michigan Supreme Court: Search did not meet the “Exigent Circumstance” requirement since Fisher was alone and the officers did NOT really believe he needed immediate medical assistance. Is the search a violation under the 4 th Amendment?

MICHIGAN v. FISHER, 2009 It would be objectively reasonable to believe that Fisher's projectiles

MICHIGAN v. FISHER, 2009 It would be objectively reasonable to believe that Fisher's projectiles might have a human target (perhaps a spouse or a child), or that Fisher would hurt himself in the course of his rage.

MICHIGAN v. FISHER, 2009 Officers do not need ironclad proof of "a likely serious,

MICHIGAN v. FISHER, 2009 Officers do not need ironclad proof of "a likely serious, life-threatening" injury to invoke the emergency aid exception. Moreover, even if Goolsby did not subjectively believe, that Fisher or someone else was seriously injured, the test is NOT what Officer Goolsby believed… …but whethere was "an objectively reasonable basis for believing" that medical assistance was needed, or persons were in danger

Vehicle Searches Mobile Conveyance

Vehicle Searches Mobile Conveyance

Mobile Conveyance Exception 2 requirements to search 1. Must be probable cause to believe

Mobile Conveyance Exception 2 requirements to search 1. Must be probable cause to believe that evidence of a crime or contraband is located in the vehicle to be searched. 2. The vehicle be “readily mobile. ”

Carroll v. United States (1925) If an officer stops a car based on probable

Carroll v. United States (1925) If an officer stops a car based on probable cause and conducts a search in order to preserve evidence due to the automobile‘s mobility, the search may be conducted without a warrant.

Chambers v. Maroney (1970) A warrantless search of a vehicle is valid despite the

Chambers v. Maroney (1970) A warrantless search of a vehicle is valid despite the fact that a warrant could have been procured without endangering the preservation of evidence.

United States v. Ross (1982) If probable cause justifies the search of a lawfully

United States v. Ross (1982) If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.

Maryland v. Dyson (1999) Officers are not required to obtain a search warrant for

Maryland v. Dyson (1999) Officers are not required to obtain a search warrant for a mobile conveyance even if they have time to secure one.

California v. Carney (1985) A motor home is treated as a vehicle, rather than

California v. Carney (1985) A motor home is treated as a vehicle, rather than a dwelling, if it is immediately mobile.

California v. Acevedo (1991) In a search extending to a container located in an

California v. Acevedo (1991) In a search extending to a container located in an automobile, police may search the container without a warrant where they have probable cause to believe that it holds contraband or evidence. Wyoming v. Houghton (1999) The mobile conveyance exception to the 4 th Amendment‘s warrant requirement allows the officers to search passengers‘ containers.

OHIO v. MOORE (2000), 90 Ohio St. 3 d 47. The smell of marijuana,

OHIO v. MOORE (2000), 90 Ohio St. 3 d 47. The smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to conduct a search. There need be no additional factors to corroborate the suspicion of the presence of marijuana

OHIO v. HOWARD, (2008) Ohio-2706 In Ohio v. Farris, the Ohio Supreme Court fleshed

OHIO v. HOWARD, (2008) Ohio-2706 In Ohio v. Farris, the Ohio Supreme Court fleshed out the “plain-smell” doctrine by holding that the odor of burned marijuana in the passenger compartment of a vehicle does not, standing alone, establish probable cause for a warrantless search of the trunk of the vehicle

OHIO v. HOWARD, (2008) Ohio-2706 Here, the officers, who were trained and experienced in

OHIO v. HOWARD, (2008) Ohio-2706 Here, the officers, who were trained and experienced in detecting the odor of unburned marijuana, both testified that they had smelled a strong odor of unburned marijuana emanating from the car, not just a light odor. But, more specifically, each officer specifically testified that the odor of the unburned marijuana was coming from the trunk of the car.

U. S. v. Foster, No. 02 -3859 (7/20/2004) “Accordingly, when the officers detected the

U. S. v. Foster, No. 02 -3859 (7/20/2004) “Accordingly, when the officers detected the smell of marijuana coming from Foster’s vehicle, this provided them probable cause to search the vehicle without a search warrant. U. S. v. Elkins, 300 F. 3 d 38 (6 th Cir. 2002) This therefore turned a lawful Terry stop into a lawful search. ”

Vehicle Searches Arizona v. Gant, (2009)

Vehicle Searches Arizona v. Gant, (2009)

Arizona v. Gant (April 21, 2009) Police may search a vehicle incident to the

Arizona v. Gant (April 21, 2009) Police may search a vehicle incident to the arrest of an occupant ONLY in two circumstances: 1. when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search (the safety rationale); or 2. when it is reasonable to believe evidence relevant to the crime might be found in the vehicle (the evidentiary rationale).

U. S. v. Lopez, 6 th Circuit (June 01, 2009) Defendant was not within

U. S. v. Lopez, 6 th Circuit (June 01, 2009) Defendant was not within reaching distance of his vehicle’s passenger compartment at the time of the search, he was handcuffed in the back seat of the patrol car by then. No reason to think the vehicle contained evidence of the offense of arrest, since that offense was reckless driving.

U. S. v. Lopez, 6 th Circuit (June 01, 2009) “The 73 grams of

U. S. v. Lopez, 6 th Circuit (June 01, 2009) “The 73 grams of crack cocaine, a set of digital scales, and a Glock. 40 caliber handgun loaded with ten rounds of ammunition which formed the basis of his conviction for possession with the intent to distribute and for carrying a firearm in relation to a drug trafficking crime are inadmissible. Defendant’s conviction is vacated. ” vacated

U. S. v Vinton, D. C. (Feb. 5, 2010) Maxima speeding with window tint

U. S. v Vinton, D. C. (Feb. 5, 2010) Maxima speeding with window tint violation. Observed a law enforcement “blue line” sticker on the car. The officer asked Vinton if he worked in law enforcement, and he replied “personal security. ” Observed knife with a five and a half inch sheath on the back seat.

U. S. v Vinton, D. C. (Feb. 5, 2010) The officer asked Vinton what

U. S. v Vinton, D. C. (Feb. 5, 2010) The officer asked Vinton what the knife was for; he said he used it when he went fishing with his grandfather. The officer removed the knife from the car and put it out of reach on Vinton’s roof and asked if there were any other weapons in the car. Vinton replied that there was not. The officer returned to his police vehicle to write a citation.

U. S. v Vinton, D. C. (Feb. 5, 2010) The officer (with MPD) then

U. S. v Vinton, D. C. (Feb. 5, 2010) The officer (with MPD) then returned to Vinton and told him that he was going to search his car for weapons. The officer again asked if there were any other weapons in the car and Vinton replied there was not. The officer asked about weapons again and Vinton replied “not that I know of. ” The officer had Vinton exit his car and he handcuffed him, while telling him he was not under arrest.

U. S. v Vinton, D. C. (Feb. 5, 2010) Officer found a “butterfly knife”

U. S. v Vinton, D. C. (Feb. 5, 2010) Officer found a “butterfly knife” under the front passenger-side floor mat, as well as 2 cans of mace and a bag of Styrofoam earplugs; and a locked briefcase that was on the backseat. “The briefcase isn’t mine”. The officer then pried open the locked briefcase and searched it incident to arrest. Briefcase contained three bags of ecstasy, three pistol magazines, a fighting knife, and a loaded. 45 pistol

U. S. v Vinton, D. C. (Feb. 5, 2010) The Fourth Amendment issues :

U. S. v Vinton, D. C. (Feb. 5, 2010) The Fourth Amendment issues : Whether the officer violated the Fourth Amendment in conducting the limited search (frisk) of Vinton’s vehicle for weapons? Whether the officer had probable cause to arrest Vinton for the weapons charge that led to the search incident to arrest? Whether the officer was justified under Arizona v. Gant to search the briefcase incident to arrest?

U. S. v Vinton, D. C. (Feb. 5, 2010) An officer can order the

U. S. v Vinton, D. C. (Feb. 5, 2010) An officer can order the driver out of his car and conduct a limited search of the passenger compartment for weapons if the officer has reasonable suspicion that the driver is dangerous and may gain immediate control of weapons inside the car. Michigan v. Long

U. S. v Vinton, D. C. (Feb. 5, 2010) Based on the totality of

U. S. v Vinton, D. C. (Feb. 5, 2010) Based on the totality of the circumstances, the court held that the officer… …had a reasonable belief, based on specific and articulable facts, that Vinton was armed and dangerous… Thus, he properly searched (frisked) the passenger compartment of Vinton’s car for additional weapons.

U. S. v Vinton, D. C. (Feb. 5, 2010) Since Vinton was handcuffed the

U. S. v Vinton, D. C. (Feb. 5, 2010) Since Vinton was handcuffed the search incident to his arrest cannot be justified under the safety rationale from Gant. Thus, the court had to consider whether the evidentiary rationale from Gant was met during the search of briefcase. Since the officer had already found two knives, two cans of mace, and ear plugs, it was reasonable to believe that additional weapons might be found in the briefcase.

U. S. v Vinton, D. C. (Feb. 5, 2010) “Because it was reasonable to

U. S. v Vinton, D. C. (Feb. 5, 2010) “Because it was reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle, [the officer] had the right to search the passenger compartment of Vinton’s car and any containers therein, including the locked briefcase”

Ohio v. Jones, 121 Ohio St. 3 d (2009) “A law enforcement officer who

Ohio v. Jones, 121 Ohio St. 3 d (2009) “A law enforcement officer who personally observes a traffic violation while outside the officer’s statutory territorial jurisdiction has probable cause to make a traffic stop; the stop is not unreasonable under the Fourth Amendment to the United States Constitution. ”

Consent & Prolonged Stops

Consent & Prolonged Stops

Consent Search 1 st - The consent must be voluntarily given Consent cannot be

Consent Search 1 st - The consent must be voluntarily given Consent cannot be coerced, by explicit or implicit means, by implied threat or covert force 2 nd – Person has authority over the place to be searched An individual may limit the scope of any consent

U. S. v. Everett, April 06, 2010 6 th CIRCUIT There is no categorical

U. S. v. Everett, April 06, 2010 6 th CIRCUIT There is no categorical ban on suspicionless, unrelated questioning that may minimally prolong a traffic stop. The proper inquiry is whether the totality of the circumstances surrounding the stop indicates that the duration of the stop as a whole – including any prolongation due to suspicionless, unrelated questioning – was reasonable.

U. S. v. Everett, April 06, 2010 ~ 6 th CIRCUIT The overarching consideration

U. S. v. Everett, April 06, 2010 ~ 6 th CIRCUIT The overarching consideration is the officer’s diligence in ascertaining whether the suspected traffic violation occurred, and, if necessary, issuing a ticket. Some amount of questioning relevant only to ferreting out unrelated criminal conduct is permissible.

Search & Seizure Recent Case Law

Search & Seizure Recent Case Law

U. S. v. Hardin, 6 th Circuit Aug 25, 2008 Hardin out on parole

U. S. v. Hardin, 6 th Circuit Aug 25, 2008 Hardin out on parole was now wanted on new felony warrant Officer Kingsbury contacted landlord and told him of Hardin’s warrant and a 1990’s shootout with police Landlord agreed to enter apartment using a water leak as a ruse Landlord was given consent to enter the apartment and saw a male that fit Hardin’s description

U. S. v. Hardin, 6 th Circuit Aug 25, 2008 Hardin abruptly arrested and

U. S. v. Hardin, 6 th Circuit Aug 25, 2008 Hardin abruptly arrested and firearm found where he was sitting Officer Turner, conducted a sweep of the apartment’s other rooms and found firearms in a shoebox under a bed

U. S. v. Hardin, 6 th Circuit Aug 25, 2008 To demonstrate that a

U. S. v. Hardin, 6 th Circuit Aug 25, 2008 To demonstrate that a person was acting as an agent of the government: “First, the police must have instigated, encouraged or participated in the search” and “Second, the individual must have engaged in the search with the intent of assisting the police in their investigative efforts. ”

U. S. v. Hardin, 6 th Circuit Aug 25, 2008 In sum, because the

U. S. v. Hardin, 6 th Circuit Aug 25, 2008 In sum, because the officers urged the apartment manager to investigate and enter the apartment, and the manager, …, had no reason or duty to enter the apartment, we hold that the manager was acting as an agent of the government.

U. S. v Taylor, (6 th Cir. 2010) Officers received a tip that Taylor,

U. S. v Taylor, (6 th Cir. 2010) Officers received a tip that Taylor, a wanted fugitive, was staying in Arnett's apartment. However, she allowed the officers to search. The officers found Taylor in a bedroom, wearing only his underwear. Arnett then gave verbal and written consent to a more thorough search. The officers did not seek consent from Taylor.

U. S. v Taylor, (6 th Cir. 2010) In a closet, officers found a

U. S. v Taylor, (6 th Cir. 2010) In a closet, officers found a shoe box labeled for men's Nike shoes, covered by an item of men’s clothing. The officers searched the box and found a weapon, ammunition and Taylor's jail identification bracelet from his last stay in a county hospitality suite. Should the court suppress the evidence found in the shoe box? Why?

U. S. v Taylor, (6 th Cir. 2010) Arnett would not reasonably appear to

U. S. v Taylor, (6 th Cir. 2010) Arnett would not reasonably appear to have authority over the shoe box. The officers should have asked further questions about control of the room, closet and shoebox.

Ohio v. Smith, (Dec 15, 2009) Antwaun Smith was arrested on drug charges after

Ohio v. Smith, (Dec 15, 2009) Antwaun Smith was arrested on drug charges after responding to cell phone call made by a crack user acting as a police informant. During the arrest, police searched Smith and found a cell phone on his person. Later, police recovered bags containing crack cocaine at the scene. Officers subsequently searched the contents of Smith’s phone without a search warrant or his consent.

Ohio v. Smith, (Dec 15, 2009) They discovered call records and stored numbers that

Ohio v. Smith, (Dec 15, 2009) They discovered call records and stored numbers that confirmed prior calls between Smith’s phone and the informant’s phone number. Smith was charged with possession of cocaine, trafficking in cocaine, tampering with evidence and two counts of possession of criminal tools. Should the evidence obtained from the cell phone be suppressed?

Ohio v. Smith, (Dec 15, 2009) …when the search is not necessary to protect

Ohio v. Smith, (Dec 15, 2009) …when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances… police must obtain a search warrant for the phones data…

U. S. v. Washington, 6 th Circuit July 22, 2009 Wilson told Officer Rock

U. S. v. Washington, 6 th Circuit July 22, 2009 Wilson told Officer Rock that there were two people in the unit. She did not request his help or say they were trespassing. Officer Rock claims that his unspoken assumption at the time was that any visitors were trespassing because the landlord had previously told him that. At Officer Rock’s request, Wilson agreed to let the police search the apartment. Rock stated he did not believe she had the authority to consent to the search.

U. S. v. Washington, 6 th Circuit July 22, 2009 Washington was among those

U. S. v. Washington, 6 th Circuit July 22, 2009 Washington was among those who were immediately visible, and he became belligerent and told Rock that he was not allowed in the apartment. Officer Rock testified that drug paraphernalia in the living room was in plain view once he was inside the apartment.

U. S. v. Washington, 6 th Circuit July 22, 2009 Officer Rock asked the

U. S. v. Washington, 6 th Circuit July 22, 2009 Officer Rock asked the defendant if he had anything illegal in his possession. “You can’t search me. ” Officer Rock informed Washington that he was suspected of criminal trespass and would be patted down. (Good Frisk? ) Washington then stated, “I’m dirty. ”. 357 handgun and crack pipe.

U. S. v. Washington, 6 th Circuit July 22, 2009 Young’s landlord continued accepting

U. S. v. Washington, 6 th Circuit July 22, 2009 Young’s landlord continued accepting rent after he discovered Washington lived on the premises and after complaints of possible drug activity in the apartment. Did Washington have R. E. P. in his uncles apartment? Did Young’s failure to pay rent on a timely basis in December 2006, the month of the search, diminish his, and Washington’s R. E. P. ?

U. S. v. Washington, 6 th Circuit July 22, 2009 The landlord’s mere authority

U. S. v. Washington, 6 th Circuit July 22, 2009 The landlord’s mere authority to evict a person cannot of itself deprive that person of an objectively reasonable expectation of privacy A search of a home conducted without a warrant violates the Fourth Amendment with “only. . . a few specifically established and well-delineated exceptions. ”

U. S. v. Washington, 6 th Circuit July 22, 2009 An ongoing criminal trespass,

U. S. v. Washington, 6 th Circuit July 22, 2009 An ongoing criminal trespass, on its own, does not constitute an exigency that overrides the warrant requirement. Is there a “true immediacy” to forget the warrant requirement?

U. S. v. Brooks, 6 th Circuit Feb 05, 2010 2 LEOs executing arrest

U. S. v. Brooks, 6 th Circuit Feb 05, 2010 2 LEOs executing arrest warrants Brooks indicted for trafficking months earlier answered the door and was arrested. Officers smelled a strong odor of marijuana smoke from the residence. Brooks indicated that he needed to put on a pair of shoes and Officer Rhoades accompanied Brooks to a bedroom to get shoes.

U. S. v. Brooks, 6 th Circuit Feb 05, 2010 In the bedroom, Rhoades

U. S. v. Brooks, 6 th Circuit Feb 05, 2010 In the bedroom, Rhoades observed an ashtray that contained marijuana seeds. Officers also conducted a patdown search of Brooks and found $1, 000 in cash in his back pocket Officers took Brooks out of the residence and froze the scene and obtained a search warrant based on marijuana odor and seeds.

U. S. v. Brooks, 6 th Circuit Feb 05, 2010 Officers noticed scales and

U. S. v. Brooks, 6 th Circuit Feb 05, 2010 Officers noticed scales and other drug paraphernalia items in plain view but failed to put that information into the search warrant. The district court found in favor of Brooks; “the odor of marijuana and the presence of marijuana seeds are, at best, evidence of a minor misdemeanor, for which Brooks could not be arrested under Ohio law. ”

U. S. v. Brooks, 6 th Circuit Feb 05, 2010 The magistrate is not

U. S. v. Brooks, 6 th Circuit Feb 05, 2010 The magistrate is not required to assume that the defendant has just smoked his last bit of marijuana immediately before the officers arrived. Instead, it is fairly probable under these facts that where there is smoke, there may be more there to smoke.

Use of Force & Civil Liability

Use of Force & Civil Liability

Graham v. Connor (1989) “Reasonableness” of the use of force applied must be judged

Graham v. Connor (1989) “Reasonableness” of the use of force applied must be judged from the perspective of the REASONABLE OFFICER The test is one of OBJECTIVE REASONABLENESS. Whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation

USE OF DEADLY FORCE The use of deadly force to prevent the escape of

USE OF DEADLY FORCE The use of deadly force to prevent the escape of ALL felony suspects, whatever the circumstances, is constitutionally unreasonable When a suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so A police officer may not seize an unarmed, nondangerous felony suspect by shooting him dead

USE OF DEADLY FORCE Scott v. Harris, 2007

USE OF DEADLY FORCE Scott v. Harris, 2007

LIABILITY FROM VEHICLE OPERATION June 13, 2009

LIABILITY FROM VEHICLE OPERATION June 13, 2009

Moldowan v. City of Warren, 6 th Circuit (July 01, 2009) All witnesses —

Moldowan v. City of Warren, 6 th Circuit (July 01, 2009) All witnesses — police officers as well as lay witness — are absolutely immune from civil liability based on their trial testimony in judicial proceedings. As with any witness, police officers enjoy absolute immunity for any testimony delivered at adversarial judicial proceedings… no matter how egregious or perjurious that testimony was alleged to have been

Law Enforcemnt Ethics “…Police must obey the law while enforcing the law” because “in

Law Enforcemnt Ethics “…Police must obey the law while enforcing the law” because “in the end, life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. ” Spano v. New York, 360 U. S. 315 (1959)

Search & Seizure Law Update

Search & Seizure Law Update