BASIC SEARCH AND SEIZURE RULES

BASIC SEARCH AND SEIZURE RULES:

SUMMARY:

It is important to understand warrant versus warrantless search guidelines under the Fourth Amendment. This guideline will focus on you as a canine handler.

All warrantless searches and seizures are unreasonable unless that search or seizure comes within these exceptions:

1) CONSENT:

A) The person must be free to leave. If previously detained, all items (paperwork, etc.) must be returned to him.

Florida v Royer (460 U.S. 491 (1983) U.S. Supreme Court

A suspect’s consent to the search of his suitcases is tainted by an illegal detention and is ineffective to justify the search, where the suspect was approached by detectives who asked for the suspect’s airline ticket and driver’s license, where the detectives, without returning the ticket and license, asked the suspect to accompany them to a room.

Florida v Bostick (501 U.S. 429 (1991) U.S. Supreme Court

Police officer’s request that bus passenger consent to search of luggage, was not a seizure under the Fourth Amendment.

The appropriate inquiry in such situation is whether a reasonable person would feel free to decline officer’s request or otherwise terminate the encounter.

B) Consent must be voluntary.

C) Consent must be obtained from a person with authority to give that consent.

D) United States v Drayton (153 L Ed 2d 242 (2002) U.S. Supreme Court

Officers do not violate the Fourth Amendment merely by approaching individuals in public places and putting questions to individuals, if they are willing to listen.

Even when officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request to consent to search their person or property, provided they do not induce cooperation by coercive means.

If a reasonable person would feel free to terminate the encounter, then he has not been seized for purposes of the Fourth Amendment.

Officers do not need to advise people of their right to refuse to cooperate.

E) United States v Manjarrez (348 F. 3d 881 (2003) U.S. Court of Appeals Ninth Circuit

Defendant’s consent to answer additional questions from law enforcement officer following conclusion of valid traffic stop was not rendered involuntary because of any coercive or intimidating circumstances, and therefore was not unlawfully obtained.

Officer’s drug detection dog began to howl loudly during the questioning, dog was in the back seat of the patrol car and never had direct contact with defendant, officer did not coerce or intimidate defendant, and defendant was free to end the conversation at any time.

A) Terry v State of Ohio (392 U.S. 1 (1968) U.S. Supreme Court

In justifying particular intrusion, police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.

Facts must be judged against objective standard of whether facts available to officer at moment of seizure or search would warrant man of reasonable caution in belief that action taken was appropriate.

Officer who had reasonable cause to believe that defendants were contemplating crime and were armed, and thus cause to search them for weapons, did not exceed reasonable scope of search in patting down their outer clothing. The officer did not place his hands in pockets or under outer surface of garments until he had felt weapons, and then merely reaching for and removing guns.

Fact that bus passenger, on board when officers conducted a canine sniff of bus’s interior after giving passengers choice of remaining or disembarking during sniff, had to disembark to avoid encounter with dog, did not render encounter a seizure.

Reasonable suspicion justified a Terry pat-down of bus passenger who was inside terminal. Officers had conducted a canine sniff of bus’s interior and had obtained an alert to an empty seat, making it likely that the passenger was body-carrying drugs.

C) United States v Yamba (506 F. 3d 251 (2007) U.S. Court of Appeals Third Circuit

The proper question under the plain feel doctrine is not the immediacy and certainty with which an officer knows an object to be contraband or the amount of manipulation required to acquire that knowledge, but rather what the officer believes the object is by the time he concludes that it is not a weapon.

A Terry search cannot purposely be used to discover contraband, but it is permissible that contraband be confiscated if spontaneously discovered during a properly executed Terry search.

3) SEARCH INCIDENT TO ARREST:

A) Chimel v California (395 U.S. 752 (1969) U. S. Supreme Court

You may search the arrestee’s person and also the areas within his immediate control.

B) Rawlings v Kentucky (448 U.S. 98 (1980) U. S. Supreme Court

A search of an arrestee is legal as a search incident to arrest, despite the fact that the challenged search slightly preceded the arrest. The officers had probable cause to arrest the suspect. During the search incident to arrest, the officers found contraband. It is not important that the search preceded the arrest rather than vice versa.

C) United States v Banshee (91 F. 3d 99 (1996) Eleventh Circuit

Warrantless search of a vehicle passenger following traffic stop could be justified as search incident to arrest, even though passenger was not actually under arrest at the time of the search. Bulge in passenger’s midsection coupled with inconsistent statements given to officer, provided officer with sufficient grounds to conclude that passenger was committing a crime. The fact that passenger was not under arrest at the time of search did not render search incident to arrest doctrine inapplicable.

If there is probable cause for arrest before the search, and contraband is located during the search, and the arrest immediately follows the search, the fact that the suspect was not under arrest at the time of the search does not make the search incident to arrest inapplicable.

A warrantless pat-down search of an individual, after drug-sniffing canine had alerted to the presence of drugs in his vehicle, was a valid search incident to the arrest, even though the arrest did not occur until after the pat-down search was performed.

The canine positive alert to the vehicle provided probable cause for the arrest, and since no contraband was located in the vehicle, this increased the chances that the contraband was on the driver’s body.

If an officer has arrested an individual, the officer may search the individual’s person incident to that arrest and may reach into his pockets.

Seizure of defendant was predicated upon probable cause, and thus constituted an “arrest” for purposes of a search incident to arrest.

Once a police officer makes a lawful custodial arrest of an automobile’s occupant, the Fourth Amendment allows the officer to search the vehicle’s passenger compartment as a contemporaneous incident of arrest, even when an officer does not make contact until the person arrested has already left the vehicle.

INVENTORY SEARCH:

H) United States v Bowhay (992 F. 2d 229 (1993) Ninth Circuit

After defendant’s arrest, police department had standard procedure where any piece of defendant’s property brought to the police station was inventoried.

The officer had no discretion in conducting an inventory search and did not violate defendant’s rights, even though the officer admitted a second motive of hoping to find narcotics or weapons.

I) United States v Mendez (315 F. 3d 132 (2002) Second Circuit

Inventory searches are constitutional under the Fourth Amendment because they serve to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen or vandalized property, and to guard the police from danger.

Even if police officer’s initial search of defendant’s automobile at the time of his arrest was not a valid inventory search, handgun they found in the glove compartment would have been inevitably discovered during valid inventory search. The city police department had a consistent, if unwritten, inventory search policy, and proper inventory search was made of the automobile before it was impounded.

Detention of vehicle’s occupants for 45 minutes following a traffic stop did not constitute a de facto arrest; length of the detention was reasonable, inasmuch as officers spent most of the encounter completing the stop, including trying to confirm identity of passenger, who had provided suspect identification, and officers acted diligently to minimize the detention period employed the least intrusive means of detention and investigation.

Officer’s warrantless search of vehicle in which defendant was a passenger was justified by probable cause, where drug dog had alerted to the trunk of the vehicle.

The “automobile exception” to the search warrant requirement likewise applies to an inventory search conducted after the vehicle was towed.

4) PLAIN VIEW (SMELL):

A) Horton v California (496 U.S. 128 (1990) U. S. Supreme Court

The item must be in plain view and its incriminating character must be immediately apparent.

You or your dog must have a legal right to be in the place from which you are viewing or smelling the object.

You have a lawful right of access to the location of the object.

B) Payton v New York (445 U.S. 573 (1980) U. S. Supreme Court
The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable.

C) United States v Esquilin (208 F. 3d 315 (2000) First Circuit
Important factor in determining whether dog’s sniffing behavior constitutes a search is not whether the sniff occurs in a public place, but whether the observing officer or the sniffing canine are legally present at their vantage when their respective senses are aroused by obviously incriminating evidence

D) United States v Carter (315 F. 3d 651 (2003) Sixth Circuit
The plain view exception to the warrant requirement applies when:
1) The law enforcement officer did not violate the Fourth Amendment in arriving at the place where the evidence could be plainly viewed;
2) The item is in plain view;
3) The incriminating character of the evidence is immediately apparent.

A warrantless entry into a home or motel room will be upheld when circumstances would lead a person of reasonable caution to conclude that the evidence of criminal activity would probably be destroyed within the time necessary to obtain a search warrant.

If, during an initial lawful intrusion into a person’s home, law enforcement officers plainly view incriminating evidence, it may be admitted into evidence pursuant to the plain view doctrine.

5) EXIGENCIES / EMERGENCIES:

A) There are essentially six scenarios that justify warrantless entry into a residence:

• Rescue:
Rescue of someone in imminent threat of death or serious injury.
• Property damage:
There must be an imminent threat of substantial property damage.
• Public danger:
Includes dangerous hazards or instrumentalities.
• Destruction of evidence:
Prior to entry, officers must have probable cause to believe that evidence of a crime is on the premises and the officers are aware of specific facts which reasonably indicate the someone on the premises would destroy or remove the evidence prior to warrant issuance.

United States v Miravalles (280 F. 3d 1328 (2002) Eleventh Circuit

Exigent circumstances justifying a warrantless entry into a place of residence under the Fourth Amendment exist where facts would lead a reasonable officer to believe that evidence of a crime is in danger of imminent destruction.

• Hot Pursuit:
Continuing pursuit of a dangerous suspect in a serious offence.
• Prevent escape:
An individual fleeing from lawful police custody may be apprehended.

B) A warrantless entry to secure the premises is permitted if there is
probable cause to believe that evidence of a crime is on the premises and the officers are aware of specific facts which reasonably indicate that someone on the premises would destroy or remove the evidence it they waited for a warrant to be issued.

6) ABANDONMENT:

A) A person who voluntarily abandons his property no longer retains any reasonable expectation of privacy in that property.

B) United States v Jackson (544 F. 2d 407 (1976) Ninth Circuit
Clarify abandonment. Ask the person if the item is theirs. If they deny ownership, and you saw them in possession, they have voluntarily abandoned the item.

7) AUTOMOBILE EXCEPTION:

A) United States v Ross (456 U.S. 798 (1982) U. S. Supreme Court
You may conduct a warrantless search of any part of a vehicle as long as you have probable cause to believe the object you are looking for is located there. This includes compartments and containers within the vehicle, including the trunk and glove compartment.

B) Carroll v United States (267 U.S. 132 (1925) U. S. Supreme Court
If a search and seizure without warrant are made upon probable cause, the search and seizure are valid.

When officers have probable cause to believe that an automobile contains contraband, the Fourth Amendment does not require them to obtain a warrant prior to searching the car for and seizing the contraband.

C) Chimel v California (395 U.S. 752 (1969) U. S. Supreme Court
If probable cause for a search exists, automobiles and other vehicles may be searched without warrant.

8) PROBATION AND PAROLE SEARCH:

A) United States v Knights (534 U. S. 112 (2001) U. S. Supreme Court
You may conduct a warrantless search of a person, his property, residence, vehicle and personal effects, supported by reasonable suspicion and authorized by a probation condition.

B) Samson v California (126 S. Ct. 2193 (2006) U. S. Supreme Court
Parole is an established variation on imprisonment of convicted criminals. The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abides by certain rules during the balance of the sentence.

Suspicionless search of California parolee, conducted pursuant to California law requiring all parolees to agree to be subjected to search or seizure at any time, did not violate the Fourth Amendment.

The Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.

9) BORDER SEARCH:

A) United States v Montoya de Hernandez (473 U. S. 531 (1985)
U. S. Supreme Court

Consistent with Congress’ power to protect the nation by stopping and examining persons entering this country, the Fourth Amendment’s balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause or warrant.

Automotive travelers may be stopped at fixed checkpoints near the border without individualized suspicion, even if the stop is based largely on ethnicity, and boats on inland waters with ready access to the sea may be hailed and boarded with no suspicion whatsoever.

Expectation of privacy at an international border is less than in the interior.

Note: Post September 11, 2001, border search checkpoints are now being conducted nationwide.

(See Border Search section for case law on border searches.)

10) Protective Sweep:

A) Maryland v Buie (494 U. S. 325 (1990) U. S. Supreme Court

As an incident to an in-home arrest, police may, as a precautionary measure and without a search warrant, probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could immediately be launched.

This protective sweep extends to a cursory inspection of those spaces where a person may be found, lasting 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 the premises.

The officers must possess a reasonable belief based upon specific and articulable facts which, taken together with rational inferences from those facts, would warrant a reasonable officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

B) United States v Cavely (318 F. 3d 987 (2003) Tenth Circuit

The mere fact that officers who entered defendant’s residential property while serving an arrest warrant, went to the front and the back of defendant’s house, did not establish an invasion of the cartilage.

Officers, who arrested defendant outside the back door of his house, were justified in making a brief protective sweep of defendant’s house, and thus, cursory visual inspection of areas of the house where a person could be found was reasonable. Officers knocked at the front door several times and received no answer, defendant told officers there was another person in the house and officers had found firearms in the house on a prior search.

Officer’s protective sweep of residence was reasonable, even though it took place before formal arrest of resident just outside the home, and even though the sweep revealed that no one was in the house, where the officer was responding to the report of a gunshot and altercation between two men at the house and officer was aware of intelligence connecting house’s occupants to illegal, drug-related activities.

Upon arrival at the home officer found resident apparently ready to strike a man with a two-by-four, officer subdued the two men and handcuffed them, found they were visibly inebriated, found two spent shotgun shells outside the house with no gun in sight, and resident shrugged his shoulders when asked where the gun was.

A protective sweep of a residence may be conducted following an arrest that takes place just outside the home, if sufficient facts exist that would warrant a reasonable officer to fear that the area in question could harbor an individual posing a threat to those at the scene.

NOTE: STATE LAW MAY BE MORE RESTRICTIVE THAN FEDERAL LAW.
If more restrictive, this normally occurs in the area of vehicle searches