1.    Lesson 03: Searches

(Chapter 4 of Bennett/Hess text)

 

2.      Searches

n      The Fourth Amendment governs searches and seizures

n      Fourth Amendment searches include everything from outer-clothing pat-downs to body-cavity searches

 

3.      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."

 

4.      Legal Searches for Evidence

n Fourth Amendment requirements for a legal search:

n  Reasonableness (scope, justification, etc., are reasonable).

n  Warrants must…

n  Be based on probable cause (in an affidavit)

n  Be supported by oath or affirmation

n  Have particularity (be specific)

n  Specify places to be searched

n  Specify persons/things to be seized

 

5.      Knock and Announce

n  The “knock and announce” rule requires that:

n  Officers have to knock and announce they are officers with a search warrant before they enter the place they’re about to search.

n  Officers have to wait a “reasonable amount of time” before breaking and entering.

n  In executing search warrants for drugs at residences, 15-20 seconds is not an unreasonable time for police to wait from the time they knock and announce until they force entry into a residence (U.S. V. Banks, 2003)

 

6.      No-Knock Warrant

n A judge may issue a no-knock warrant in order to…

n  Prevent violence

n  Prevent the destruction of evidence

n  Prevent the escape of suspects

nThere is no blanket “drug house” exception to the knock and announce rule

 

7.      Reasonable Searches

The Fourth Amendment protects against unreasonable searches and seizures. The courts have held these searches to be reasonable (legal):

n  A search pursuant to a search warrant

n  Searches without a warrant when…

n  Voluntary consent is given

n  An officer stops a suspicious person and has a reasonable suspicion that the person may be armed (Terry stop and frisk)

n  Search is incidental to a lawful arrest

n  An emergency exists (exigent circumstances)

n  Officer sees something in plain view from where he/she has the legal authority to be

n  Automobile searches with probable cause

 

8.      Consent

n  Consent must be voluntary and the voluntariness test of consent is based on the totality of the circumstances

n  Some circumstances that may have an impact on whether consent is voluntary:

n  Suspect’s knowledge of constitutional rights

n  Suspect’s knowledge of right to refuse

n  Suspect’s age/maturity/intelligence/education/experience

n  Suspect’s cooperation/attitude

n  Length of detention of suspect, if any

n  Coerciveness of police actions toward suspect

 

9.      Stops and Frisks

n      Fourth Amendment stops are brief detentions, allowing officers to briefly freeze situations to investigate them

n      Fourth Amendment frisks are once-over-lightly pat-downs of outer clothing to protect officers from concealed weapons

n      Stops and frisks most often take place on the street and other public places

n      Stops and frisks are the least-invasive invasions of liberty and privacy but they affect a lot more people

n      The legal authority for police to conduct stops and frisks comes from the U.S. Supreme Court in the case of Terry v. Ohio (1968)

 

10.  Terry v. Ohio (1968)

U.S. Supreme Court held that under the Forth Amendment it is reasonable for police to:

 

n      Stop a subject (“freeze” the situation) to conduct a brief on-the-spot investigation if they reasonably suspect that criminal activity may be afoot

 

n      Frisk a subject (conduct a superficial search for weapons to protect themselves), if they reasonably suspect the person stopped may be armed

 

11.  Chimel v. California (1969)

n   Chimel was arrested on a warrant in his residence for the burglary of a coin shop.

n   Police searched the entire three-bedroom house, including the attic, the garage, and small workshop. They searched drawers in a bedroom. The entire search took about 45 minutes. Several items of evidence were seized.

n   U.S. Supreme Court held the Chimel search was not reasonable, but that searches incidental to arrests were reasonable when they are limited to…

n  The arrestee’s person, and

n  The “area into which the arrestee might reach in order to grab a weapon or destroy evidence

 

12.  Searches Incidental to Arrest

n  They don’t require warrants or probable cause (except the original probable cause for the original arrest).

n  They serve three main functions:

n  Protect officers

n  Prevent escape

n  Preserve evidence

n  The time frame of “incident to arrest” includes the time before, during, and after arrest.

 

13.  Emergency Searches

n Emergency searches are based on the idea that it’s sometimes impractical to require officers to obtain warrants before they search.

n If police officers have probable cause to search, and they reasonably believe evidence is about to be destroyed, they can search without a warrant.

n If officers are chasing a suspect whom they have probable cause to arrest, they can follow the suspect into a house without getting a warrant.

n If officers have probable cause to believe either that a suspect has committed a violent crime or that they or others in the community are in immediate danger, they can search without obtaining a warrant.

 

14.  Plain View

n   Police may seize evidence in plain view if they have a legal right to be there.

n  Search of open fields by air, vehicles are legal.

n  Unconcealed evidence seen by an officer engaged in a lawful activity is admissible in court.

n  An officer cannot obtain a warrant and fail to mention a particular object and then use “plain view” to justify its seizure.

n  Evidence may also be seized if an officer relies on a sense other than sight.

n  Officers may seize any contraband they discover during a legal search.

n  Anywhere a law enforcement officer has a right to be, he/she has a right to see. 

n  However, there are legal limitations on the use of instruments not available to the general public (e.g., thermal imaging)

 

15.  Plain Feel

n   A frisk consists of a pat down, only, for weapons (not contraband or evidence)

n   If police lawfully pat down a suspect for a weapon (frisk) and immediately identify an object as contraband, it may be seized

n   However, manipulating a small object believed not to be a weapon in order to determine whether it is an illegal drug, is an illegal search

 

16.  Vehicle Searches Pursuant to Probable Cause

n  Police may search vehicles without a warrant because:

n  Vehicles can be moved out of the locality or jurisdiction (Carroll v. U.S., 1925)

n  Reduced expectation of privacy than in a house

 

17.  Vehicle Searches With probable cause…

n  Police may search all internal parts of a vehicle, including passenger compartment, glove box, and trunk

n  Police may search containers in a vehicle (California v. Acevedo, 1991)

n  Police may search belongings of passengers in a vehicle that are capable of concealing the object of a search (Wyoming v. Houghton, 1999)

 

18.  Vehicle Search Incidental to an Arrest

nWhen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest,

n  Search the passenger compartment of that automobile, and

n  Search any containers found within the automobile

n  Authority: New York v. Belton, 1981

 

19.  New York v. Belton (1981)

n   A trooper smelled burnt marijuana and saw “Supergold” envelope in a vehicle he had stopped for speeding

n   After ordering all occupants out of the vehicle, the trooper searched the passenger compartment and a jacket on the back seat

n   Court held the search was reasonable because it was “within the arrestee’s immediate control”

 

20.  Roadblocks/Checkpoints

Roadblocks/checkpoints may be legal if they…

n      Are systematic stops based a plan that is not discriminatory

n      Are sobriety checkpoints to combat drunk driving but are not checkpoints for drugs

n      Are informational checkpoints

n      Satisfy a balancing test…

n      The gravity of public concerns served by establishing the roadblock

n      The degree to which the roadblock is likely to succeed in serving the public interest

n      The severity with which the roadblock interferes with individual liberty

 

21.  Inventory Searches

n Inventory searches consist of examining and making a list of people’s personal property and containers held in government custody.

 

22.  Reasonableness of Inventory Searches

n   The reasonableness of an inventory search depends on satisfying two elements:

n An inventory search is reasonable if the government’s special need outweighs the individual’s privacy rights and if it meets at least one of three criteria:

n  To protect owners’ property while it’s in police custody

n  To protect law enforcement agencies against lawsuits for the loss, destruction, or theft of owners’ stuff

n  To protect law enforcement officers, detained suspects, and offenders from the danger of bombs, weapons, and illegal drugs that might be hidden in owners’ property

n Inventory searches are conducted pursuant to established routine police procedures (not probable cause or reasonable suspicion)

 

23.  Exclusionary Rule

n   Exclusionary rule: Illegally seized evidence is inadmissible in court.

n   The United States has the only criminal justice system in the world in which courts throw out “good evidence” because the government used “bad methods” to get it.

n  “Good evidence” means evidence that can help prove the defendant’s guilt.

n  “Bad methods” means conduct that violates the:

n  Fourth Amendment ban on unreasonable searches and seizures

n  Fifth Amendment right against self-incrimination

n  Sixth Amendment right to counsel

n  Fifth and Fourteenth Amendment rights to due process of law

 

24.  History of the Exclusionary Rule

n   There is no mention of the exclusionary rule in the Constitution; but James Madison believed it was implied in judicial power.

n   1914 – Weeks v. U.S. – The U.S. Supreme Court created the exclusionary rule.

n   It applied only to federal courts.

n   It covered only private papers and belongings.

n   1920 – Silverthorne Lumber Co. v. U.S. – The Court expanded the rule to cover evidence that was indirectly based on illegal government action (“fruit of the poisonous tree”).

n   1925 – Agnello v. U.S. – The Court expanded the rule to cover contraband.

n   1949 – Wolf v. Colorado – The Court applied the Fourth Amendment, but not the exclusionary rule, to state proceedings; states could decide the remedy for themselves.

n   1961 – Mapp v. Ohio – The Court applied the exclusionary rule to state criminal proceedings.

n   1984 – U.S. v. Leon – Good faith exception

 

25.  Fruit of the Poisonous Tree Doctrine

n The doctrine set forth in the Silverthorne Lumber Co. v. United States (1920) case that evidence obtained as a result of an earlier illegality may be excluded from trial.

n Example- a weapon may be excluded from trial if it was located as the result of an illegally obtained confession.

 

26.  Inevitable Discovery Doctrine

n The doctrine set forth in the Nix v. Williams (1984) case that if illegally obtained evidence would in all likelihood eventually have been discovered legally, it may be used.

n Example- a weapon may be admitted as evidence in a trial gained as a result of an illegal confession if it can be shown that it would have been found by other legal means

 

27.  Good Faith Doctrine

n   Evidence obtained during execution of an illegal search warrant is admissible only if the government can prove:

n  Officers honestly relied on the legality of the warrant.

n  It was reasonable for officers to believe the warrant was legal.

n   Authority- United States v. Leon (1984)

 

28.  The Crime Scene Search

n The goal of the crime scene search is to collect evidence that:

n   Establishes whether a crime was committed and, if so, what specific crime was committed

n   Establishes when the crime was committed

n   Identifies who committed the crime

n   Explains how and why the crime was committed

 

29.  Search Patterns

n   Spiral/Circle

n   Strip/Line/Lane

n   Grid

n   Zone/Quadrant/Sector

n   Pie/Wheel

 

30.  Search Process

n   Photograph all items before collection and notate the photographic log.

n   Mark evidence locations on the sketch.

n   Complete the evidence log with notations for each item of evidence. If feasible, have one person serve as evidence custodian.

 

31.  Search Must Be Systematic And Thorough

 

32.  Important Considerations In Determining Length Of Time To Process Crime Scene

 

n   The search should only be terminated after all avenues for developing physical evidence have been explored.

n   A thorough debriefing involving all members of the crime scene search should take place before the release of the crime scene.

 

33.  Trash Can Searches

n   Trash left in containers on public property (alley) may be searched without a warrant.

n   Containers left in curtilage may not be searched. Curtilage is that private area around a house not normally open to the public.

 

34.  K-9 Searches

n   Dogs can be trained to locate suspects, narcotics, explosives, cadavers, and more.

n   K-9s are subject to the same legal limitations on searches as those applying to officers

n   The use of a K-9 to sniff around the outside of a vehicle is not a “search” that is restricted by the Fourth Amendment, as long as the vehicle is legally stopped or detained

n   However, a dog sniff of a person is a search and is limited by the Fourth Amendment