Chapter 3 Legal PDF

3 Unit 1: Introduction to Law Lesson 1: Law Systems Lesson Goal At the end of this lesson, you will understand types of laws and the importance of staying current with case law and your agency’s policies and procedures when enforcing the law. Your duties as a l...

3 Unit 1: Introduction to Law Lesson 1: Law Systems Lesson Goal At the end of this lesson, you will understand types of laws and the importance of staying current with case law and your agency’s policies and procedures when enforcing the law. Your duties as a law enforcement officer include responding to calls, patrolling, determining violations of law, making arrests, knowing how and when you should use force, and investigating crimes. You must have a basic knowledge of the law and be able to apply the law to specific situations. To act properly and effec- tively as law enforcement officers without infringing on individual rights, you must have an understanding of federal, state, and local laws. This chapter will provide a solid legal foundation to help you perform your duties. Sources of Laws Laws protect our rights, freedoms, and lives. They also serve to maintain order, protect ownership of prop- erty, regulate certain businesses, and raise money for state and federal governments. There are several types of laws that govern the way we live in the United States. The U.S. Constitution outlines the form of government Americans have estab- lished and defines the representational government and its three-branch struc- ture. The legislative branch is respon- sible for creating laws, the executive branch (which you are part of as a law enforcement officer) is responsible for enforcing laws, and the judicial branch is responsible for interpreting the laws. Constitutional law identifies the pow- ers and limitations of each branch of government: legislative, executive, and judicial. It also upholds standards set forth in the Constitution and the court decisions or interpretations of the Con- stitution handed down by the Federal District Courts and Supreme Court. Florida has its own state constitu- tion, which generally parallels the U.S. Figure 3-1: The branches of U.S. government Chapter 3 Legal / 57 Constitution. This means that the Florida Constitution affords Florida’s residents the same level of rights or greater than they derive from the federal Constitution. The supremacy clause of the federal Constitution states that when laws conflict, federal law generally overrules state and local law. State law can be more restrictive than federal law, but it cannot undermine the federal standard. ; LE311.1. Explain the role of constitutional law Statutory law is written and enacted by Congress, state legislatures, or local governing authorities in re- sponse to a perceived need. Statutory law includes criminal, civil, administrative, and regulatory laws. Criminal law identifies behaviors deemed unacceptable by society. Criminal law also sets punishments for those behaviors. Ordinances are laws enacted by a municipal (city) or county government. Local governments create ordi- nances that regulate matters of narrow application, such as curfews for minors, restrictions on the hours when alcohol may be sold, or parking regulations. Ordinances apply only within the jurisdiction of the gov- ernmental entity that enacted them. Some ordinance violations are criminal, while others are civil infrac- tions. Ordinances cannot conflict with state, federal, or case law. ; LE311.2. Examine criminal law and its relation to ordinances and statutory law Civil law is the legal action that a person takes to resolve a non-criminal private dispute with another per- son. The courts provide a forum for people to settle these disputes. Examples include child custody issues, landlord-tenant disputes, and property boundary issues. Your involvement with civil law situations gener- ally does not permit law enforcement action beyond keeping the peace and referring to the appropriate jurisdiction. In civil lawsuits, the person filing the lawsuit must have a court-recognized cause of action. In law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against someone. In many situations, crime victims also have causes of action that allow them to sue the perpetrators of the crimes. ; LE311.3. Describe the role of civil law Administrative law is the body of law that establishes the operations and procedures of governmental agencies. It governs the internal operations of these agencies and ensures that they do not abuse their power. For example, Chapter 11B, Florida Administrative Code (F.A.C.), governs the training and certifica- tion of law enforcement officers. ; LE311.4. Describe the role of administrative law Keeping Current in the Law Case law is the body of law formed by the decisions of the court system (the judicial branch). These court- imposed decisions are based on the court’s interpretation of constitutional provisions, and they clarify the meaning of a Florida statute or a Florida rule (F.A.C.) as applied to a specific set of facts. Court decisions influence how you perform your duties. Once an appellate court creates a rule, known as a precedent, you are required to follow that rule, unless a higher court changes the rule. An appellate court is responsible for hearing and reviewing appeals from cases that have already been heard in a lower court. 58 / Florida Basic Recruit Training Program (LE): Volume 1 Additionally, each circuit court ruling is binding for that jurisdiction. Because of this, there could be differ- ent case law in neighboring circuits. Know and follow the case law in your jurisdiction. The rules under which you operate will constantly change based upon revisions in statutes and the case law interpreting those statutes. You are responsible for keeping current with these changes. There are a variety of sources that can help you stay current in statutory and case law, including agency bulletins, legislative updates, and official websites, such as the Florida Department of Law Enforcement, the Florida Office of the Attorney General, and the Florida Supreme Court. Avoid obtaining legal knowledge from unofficial sources, such as newspapers, television, radio, unreliable websites, and word of mouth. If you fail to stay up to date with changes to laws, you may risk exclusion of evidence at trial, case dismissal, administrative discipline, civil liability, or even criminal prosecution. ; LE311.5. Recognize the importance of staying current with case law Agency Policies and Procedures While the Constitution and the Florida Statutes direct you in your actions, law enforcement agencies es- tablish policies and procedures to guide officers’ daily activities and meet the specific needs of the agency. These policies and procedures will differ between agencies and can be more restrictive than state and federal laws. Your agency will provide you with their specific policies and procedures during your agency training pro- gram, and it is important that you become familiar with them. This textbook does not cover agency-specific policies and procedures; however, there will be areas within this book that direct you to review your agen- cy’s policies and procedures for further clarification. Examples include policies on wearing body cameras, using conducted electrical weapons (CEWs), engaging in vehicle pursuits, maintaining uniform standards, and following arrest procedures. ; LE311.6. Explain the importance of staying current with your agency’s policies and procedures Chapter 3 Legal / 59 3 Unit 1: Introduction to Law Lesson 2: Constitutional Law Lesson Goal At the end of this lesson, you will understand the role of specific U.S. constitutional amendments while protecting the rights of the community you serve. Think About This While on patrol you give a woman a ticket for littering. After getting the ticket the woman curses at you and walks away. What amendment protects the woman’s right to do this? Basic Concepts of the U.S. Constitution As a law enforcement officer, your main objective is to protect the constitutional rights of everyone within the United States. The U.S. Constitution sets parameters within which the government operates and estab- lishes laws. It defines your authority to act. In any situation, you must be able to determine how to follow the law and abide by the limitations that the Constitution sets. ; LE312.1. Explain how the U.S. Constitution impacts your criminal justice role The Articles of the Constitution The Articles of the Constitution form the Constitution’s main body. Their purpose is to form a contract between the people of the United States and the legislative, executive, and judicial branches of the U.S. government. The Articles spell out the responsibilities and authority of the three branches of government. Constitutional Amendments of Special Note According to the U.S. Constitution, all people stand equal before the law and therefore share certain rights. Knowing a majority of these rights—such as the freedom of speech, protection against unreasonable searches and seizures, and prohibition of cruel and unusual punishment—will be important to you each day of your career as a law enforcement officer. Many of the amendments in the Bill of Rights (the first 10 amendments to the U.S. Constitution) focus on the courts and the legislature, but the First, Second, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amend- ments are of particular importance to law enforcement. 60 / Florida Basic Recruit Training Program (LE): Volume 1 The First Amendment protects the freedom of speech, press, peaceful assembly, and religion. Situations you may encounter that may be protected by the First Amendment include protests, video recording of public activities, and the use of offensive language toward law enforcement. The Second Amendment guarantees the right to bear arms. The Florida Statutes set forth the guidelines regarding firearms in the state of Florida. You will learn more about firearms later in this chapter. The Fourth Amendment prohibits unreasonable search and seizure and may require a warrant signed by an independent magistrate (judge). Law enforcement activities affected by the Fourth Amendment include the entry into homes, vehicles, luggage, purses, or other places where a person has a reasonable expecta- tion of privacy, including their person. Stops and arrests, including the use of force, are considered seizures and must meet the reasonableness requirement of this amendment, which provides certain exceptions to law enforcement. The Fifth Amendment is best known for prohibiting compelled self-incrimination. It also requires grand jury indictment for capital crimes and prohibits double jeopardy and deprivation of life, liberty, or property without due process of law. Due process means that laws must be applied fairly and equally to all people, including a person accused of a crime. Furthermore, due process declares that the government shall not deprive anyone of their life, liberty, or property without cause. There are two main types of due process: Substantive due process is the fair and consistent enforcement of the law. This means that peo- ple are treated fairly. Procedural due process refers to the procedures that must be followed to protect a person’s rights during a criminal justice process. This means that everyone is entitled to every step in the criminal justice process. The Sixth Amendment guarantees the right to a speedy and public trial, the right to a fair jury, the right to an attorney, the right to be informed of the nature of the charges, and the right to confront witnesses. Law enforcement activities affected by the Sixth Amendment relate to making contact with a suspect who is represented by counsel, and making sure reports and evidence are submitted in a timely manner. The Eighth Amendment prohibits excessive bails and fines and cruel and unusual punishment. An example of this is failing to provide necessary medical care to a person held in custody. The Fourteenth Amendment expands the application of the Bill of Rights to state and local governments as well. This is done in the due process clause of the Fourteenth Amendment: No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny any person within its jurisdiction of the equal protection of the laws. Chapter 3 Legal / 61  Amendments of Special Note First Amendment Protects the right to free speech, press, assembly, and religion Second Amendment Protects right to bear arms Fourth Amendment Protects from unreasonable search and seizure Fifth Amendment Protects against self-incrimination and guarantees due process Sixth Amendment Establishes a right to a speedy trial, impartial jury, and assistance of counsel Eighth Amendment Protects against cruel and unusual punishment and prohibits the use of excessive bail or fines Fourteenth Amendment Establishes due process and equal protection of the laws The Constitution requires you to get the right result the right way. Failure to abide by these rules may result in the suppression of evidence and confessions, and civil or criminal liability toward you or your agency. Your community will count on you to uphold the Constitution and protect their rights. ; LE312.2. Describe specific amendments that direct your actions as an officer 62 / Florida Basic Recruit Training Program (LE): Volume 1 3 Unit 1: Introduction to Law Lesson 3: Classification of Offenses Lesson Goal At the end of this lesson, you will understand the different classes of offenses and their penalties before making a lawful arrest. Think About This You have just arrested a man for taking a child at gunpoint while at the park. Based on his actions, what type of offense is this? The term offense means a breach of law and broadly describes criminal or non-criminal acts that are pun- ishable under Florida law. Criminal offenses may be punishable by incarceration and classified as either mis- demeanors or felonies. An offense for which the only penalty may be a fine, forfeiture, or other civil penalty is a non-criminal violation, also known as a civil infraction. A non-criminal violation does not constitute a crime and is not punishable by incarceration. An example of a non-criminal offense is a traffic violation, such as failure to yield the right-of-way. ; LE313.1. Explain the different types of offenses Ordinance Violations Municipal and county ordinances can be criminal or non-criminal. A local criminal ordinance violation may carry up to 60 days in a county jail or a $500 fine, or by a fine and jail time. A non-criminal ordinance fine is not limited in amount; there are numerous municipal and county civil code violations that carry fines greater than $500. Misdemeanors A misdemeanor is any criminal offense with a maximum incarceration penalty in a county jail of up to one year. Misdemeanors are classified by degrees based on the maximum penalty and fine associated with the offense. A second-degree misdemeanor carries a maximum penalty of 60 days in a county jail, a fine of up to $500, or both. An example of a second-degree misdemeanor is criminal mischief involving property damage totaling less than $200. A first-degree misdemeanor carries a maximum penalty of one year in a county jail, a fine of up to $1,000, or both. An example of a first-degree misdemeanor is criminal mischief involving prop- erty damage greater than $200 but less than $1,000. Chapter 3 Legal / 63 Felonies A felony is any criminal offense committed where the maximum penalty is death or incarceration in a state correctional facility for more than one year. Felonies are classified based on the severity of the offense’s maximum or minimum penalty. Each of the five felony classes are defined by the penalty and fine associated with it. Penalties and fines are set forth in the Florida Statutes. A third-degree felony carries a maximum penalty of 5 years in a state correctional facility, a fine of up to $5,000, or both. Aggravated assault is an example of a third-degree felony. A second-degree felony is punishable by a maximum of 15 years in a state correctional facility, a fine of up to $10,000, or both. Aggravated battery is an example of a second-degree felony. A first-degree felony carries a maximum penalty of 30 years in a state correctional facility, a fine of up to $10,000, or both. However, certain first-degree felonies specifically carry a maximum penalty of life incarceration in a state correctional facility. For example, kidnapping is a first- degree felony punishable by life incarceration. A life felony has varying penalties depending on the date and type of crime committed. The maxi- mum penalty is life incarceration in a state correctional facility without the possibility of parole or probation, a fine of up to $15,000, or both. A capital felony is the highest class of felony. The penalty for offenses in this class is death or life incarceration in a state correctional facility without the possibility of parole. For example, first- degree murder is a capital felony and the only capital felony for which the state may impose the death penalty. All other capital felonies require the state to impose a life sentence without the possibility of parole. An example of a capital felony is sexual battery on a child younger than 12 by a person 18 or older. ; LE313.2. Differentiate between felony and misdemeanor offenses 64 / Florida Basic Recruit Training Program (LE): Volume 1  Degree or Offense Classification Maximum Penalties and/or Fines Application 5 years of incarceration, a $5,000 fine, or felony – 3rd degree both 15 years of incarceration, a $10,000 fine, felony – 2nd degree or both 30 years to life incarceration, a $10,000 fine, or both. Some 1st degree felonies may criminal offense felony felony – 1st degree receive a lifetime penalty depending on the crime lifetime incarceration without possibility life felony of parole, a $15,000 fine, or both death or life incarceration without capital felony possibility of parole misdemeanor – 2nd incarceration for up to 60 days, a $500 degree fine, or both criminal offense misdemeanor misdemeanor – 1st incarceration for up to a year, a $1,000 degree fine, or both local ordinance misdemeanor – 2nd incarceration for up to 60 days, penalty of criminal violation degree up to $500, or both includes non-criminal traffic violations/ non-criminal infraction or infractions as fines vary depending on the nature and violation violation well as local code type of violation enforcement violations ; LE313.3. Relate offenses to their associated penalties Chapter 3 Legal / 65 3 Unit 1: Introduction to Law Lesson 4: Reading and Understanding Statutes Lesson Goal At the end of this lesson, you will know how to find, understand, and reference the Florida Statutes when documenting a lawful arrest and identifying parties to a crime. Think About This While conducting a bank robbery, one robber wears a ski mask and wields a knife while his accomplice uses a gun stolen from a police officer to threaten the people in the bank. Which of these individuals will face enhanced penalties and why? Navigating the Florida Statutes Reading and understanding the Florida Statutes is a critical function for a law enforcement officer. The Florida Statutes can be found in many formats. Agencies may provide you with the necessary source mate- rials. Always make sure that the source that you use is reliable and current. Navigating through the Florida Statutes may be difficult without an understanding of how to read them. The more you read the statutes, the easier it will become. Digital versions offer a keyword search feature. However, if you are searching a printed statute book, you can use the index in the book. Reading the Florida Statutes The Florida Statutes are divided into chapters, sections, and subsections. Chapters are broad topics, and are broken down into sections, which are broken down into subsections. In the following example, the chapter is 812, Theft, Robbery, and Related Crimes, and the section is 812.014, Theft. The subsection is (1). Generally, everything contained within subsection (1) outlines the actual crime itself. Subsections may be broken down into paragraphs, for example, (1)(a), (1)(b), which specify the elements or components of the crime. For some crimes, all elements of the offense must be met to establish that the crime occurred. How- ever, in others, not all of the elements are required to establish the criminal act; in these instances, the end of the element is generally followed by the word “OR.” The later subsections commonly outline the penalties for the offense. For some offenses, the penalty is outlined in a separate section within the chapter. 66 / Florida Basic Recruit Training Program (LE): Volume 1 In some offenses, there are particular words that may have unclear meanings. Often, those words are de- fined at the beginning of the chapter; sometimes, they are defined at the beginning of a section. The last portion of a section provides a history of legislative changes relating to the statute. ; LE314.1. Explain how to find and read the Florida Statutes Figure 3-2: Statute organization Enhanced Penalties An enhanced penalty is a sentence that is increased from one classification of offense to a more serious classification due to a prior conviction or the serious nature of the circumstances involved. Enhanced pen- alties are governed by federal and state laws, which vary from state to state. Examples of serious circum- stances that may lead to an enhanced penalty include: committing violent offenses against law enforcement officers, correctional officers, state attor- neys, assistant state attorneys, and judges wearing something (a mask or hood) to conceal identity while committing a felony or misde- meanor (See Figure 3-3) showing prejudice or discrimination while committing a crime (a hate crime) using a weapon while committing a crime unlawful taking, possessing, or using of a law enforcement officer’s firearm during the commis- sion of a crime committing a misdemeanor or felony that facilitated or furthered an act of terrorism ; LE314.2. Identify the conditions and criteria that result in enhanced penalties Chapter 3 Legal / 67  Figure 3-3: Section 775.0845, F.S. Parties to a Crime Often more than one criminal defendant plays a role in committing a crime. When the participation and criminal conduct varies among the defendants, it is important to determine who is responsible for which crime, or aspect of a crime, and to what degree. The Florida Statutes divide the parties to a crime into two categories: principal in the first degree and ac- cessory after the fact. A principal in the first degree is a person who commits any criminal offense, whether felony or misdemeanor, aids, abets, counsels, hires, or persuades an offense to be committed or at- tempted. It includes a person that helps another person or other people to commit or attempt to commit a crime. A principal may be charged, convicted, and punished whether they were present when the crime is actually committed or attempted. For example, if a babysitter provides security codes to a friend for the purpose of that friend to commit a burglary and the burglary takes place without the babysitter being there, the babysitter is a principal in the first degree. 68 / Florida Basic Recruit Training Program (LE): Volume 1  An accessory after the fact is a person who gives the principal any aid with the intent that the principal avoids or escapes detention, arrest, trial, or punishment. For example, if Janet shelters James in her garage for a night to help him avoid being caught by police after he had robbed a local convenience store, Janet is an accessory after the fact. ; LE314.3. Describe the two categories of parties to a crime Chapter 3 Legal / 69 3 Unit 2: Legal Concepts Lesson 1: Categories of Criminal Intent Lesson Goal At the end of this lesson, you will understand the significance of intent and negligence when deter- mining whether an act is criminal. Think About This During an altercation, Stephanie points a gun at her sister, Eliza, intending to shoot her. Eliza is able to move out of the way in enough time and Stephanie accidentally shoots their friend, Carol. What category of crimi- nal intent does this crime fall under? Determining a Criminal Offense As a law enforcement officer, you will often have to determine whether a criminal offense was committed. Before a person can be charged with a criminal offense, you must answer two fundamental questions. Was a criminal act committed? Was there criminal intent? Generally, to prove that a crime has been committed, it must be shown that a criminal statute or ordinance specifically prohibits the alleged act or omission and that the person committing the act or omission did so knowingly or intentionally. A criminal act must also have criminal intent. Criminal intent is the conscious decision someone makes to deliberately engage in an unlawful or negligent act, or to harm someone else. You may need to determine whether the elements of a criminal act are present and must have probable cause to believe that the person committed the crime. Probable cause is a fair probability or reason- able grounds to believe that someone committed a crime, based on the totality of circumstances. Proving criminal intent is fundamental to the criminal justice system because it is what separates an accident from a crime. In most cases, a criminal offense requires a person to take some physical action or act toward committing the criminal offense. Mere thoughts do not constitute criminal liability. However, a person may also com- mit a criminal act by failing to act, that is, by omission. To base criminal liability on failure to act, you must first find that the person had a legal duty to act and not simply a moral duty. To determine whether a statute specifically prohibits an alleged act or an omission to act, or to determine the necessary intent to commit the crime, determine what specific acts or facts must be present before a suspect can be charged with a crime. ; LE321.1. Describe the concept of criminal intent 70 / Florida Basic Recruit Training Program (LE): Volume 1 Categories of Criminal Intent For a person to be guilty of a criminal offense, the offense must be defined so that the suspect engages in specific conduct or intentionally produces a specified result. Under criminal law principles, there are four basic classifications of intent: general intent, specific intent, transferred intent, and recklessness. General intent is when a suspect intentionally commits an illegal act prohibited by law without considering the results of the illegal act. Examples of general intent are battery, assault, rape, kidnapping, false imprisonment, and invol- untary manslaughter. Specific intent is the intent to commit a crime and the intent to deprive an owner of something permanently. Specific intent crimes refer to an individual’s state of mind at the time the crime is committed accompanied by the physical act. These crimes usually are done intentionally, know- ingly, purposely, or willfully. Examples of specific intent crimes are burglary, embezzlement, forgery, murder, robbery, and theft. Transferred intent is when a crime is intended to harm one person and inadvertently causes a second person to be hurt instead. The crime charged must bear some relationship to the actions of the defendant. Situations involving transferred intent are complex, and you should seek legal or supervisory advice before determining what crime, if any, to charge based upon a theory of transferred intent. Examples of transferred intent may be, while attempting to commit a battery, a suspect strikes a bystander unintentionally, or when a person intending to shoot one victim misses and uninten- tionally strikes a second victim. Recklessness imposes criminal liability on defendants when they did not intend for a behavior to cause the resulting harm. Recklessness may result in civil or criminal charges. An example of recklessness may be vehicular homicide. ; LE321.2. Explain the legally recognized categories of criminal intent Negligence Negligence is the failure to behave with the level of care that a reasonably prudent person would have exercised under the same circumstances. Negligence cases do not involve deliberate actions, but instead occur when an individual or entity is careless and fails to provide a duty owed to another person. Some examples of negligence can include: A person is looking at their phone instead of the road while driving a car and causes an accident. Someone unintentionally hurts someone else. For example, if John intentionally hits Bob during a fight, and then accidentally hits and injures Tom, John could be considered negligent. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act. ; LE321.3. Describe the concept of negligence Chapter 3 Legal / 71 Elements of Negligence To convict a defendant of a crime, the state must prove in criminal court that the individual committed all elements of a particular offense. In a civil (non-criminal) negligence action, the plaintiff must prove a different set of elements to find the defendant negligent. The elements of negligence are—a duty to act with care, breach of the duty to act, causation or proximate cause, and damages. All four elements must be proved in a negligence action to recover damages. If any of the four elements is missing, the defendant cannot be found negligent. A Duty to Act With Care A duty is usually created by statute or contract. Duties may be general or specific. For instance, everyone who drives a vehicle in the state of Florida has a general duty to do so using reasonable care. An officer who is hired to direct traffic at an intersection has a specific duty to the people relying on that officer as they pass through the intersection. Breach of the Duty to Act The second element of negligence is a breach of duty. A breach is a failure of some kind. The term breach of duty means that the person unreasonably failed in the duty they were obligated to perform. A breach of duty is generally proved by evidence that the person violated a law or accepted practices, such as a depart- mental policy or rule. A duty may be breached by not taking action when a reasonable officer should have taken action. For example, if an officer decides to wait for EMS instead of performing CPR on an injured person who is not breathing, and the person dies or suffers brain damage from lack of oxygen, the officer is liable for those consequences because the officer breached the duty of care. Causation or Proximate Cause The third element of negligence is proximate cause, which means that the breach caused the harm. Proxi- mate cause is the legal phrase for the link between the breach of duty and the harm caused (damages). In deciding proximate cause, the judge and jury will have to determine if the harmful event was a foreseeable outcome of the defendant’s act or failure to act. Damages The final element of negligence is damages. There are two main categories of damages: compensatory and punitive. ; LE321.4. Describe the elements of negligence 72 / Florida Basic Recruit Training Program (LE): Volume 1 Compensatory damages are designed to compensate for the actual property damage, harm, or injury that the plaintiff suffers. Compensatory damages may include general and special damages. General damages are those presumed to result from the defendant’s actions. They include awards for pain and suffering, discomfort, humiliation, and emotional distress. Special damages are those actually caused by the injury. They are available to the plaintiff for lost earnings, medical expenses, destruction of personal property, and attorney’s fees. Nominal damages are damages in name only; they are awarded when the jury believes the plain- tiff’s rights were violated, but there is insufficient proof of measurable financial harm. Punitive damages are intended to punish the defendant for their act and to warn others from doing the same act. They are awarded in addition to compensatory damages when the defendant acted with reck- lessness, malice, or deceit. ; LE321.5. Explain two types of damages for negligence Chapter 3 Legal / 73 3 Unit 2: Legal Concepts Lesson 2: Standards of Legal Justification Lesson Goal At the end of this lesson, you will understand the three standards of legal justification, their evolving levels, and the corresponding justifiable legal action. Think About This While on patrol at 2 a.m., you see someone sprinting across the street from an abandoned gas station. Do you have legal justification to stop, frisk, or arrest this person? Officer’s Justification to Act The U.S. Constitution guarantees a right of privacy to all individuals who do not break the law. This right, guaranteed by the Fourth Amendment, separates the United States from totalitarian dictatorships in which people can be stopped at random, forced to produce identification cards, and searched, often simply be- cause they disagree with the government. Everyone within the U.S. borders is entitled to move about in public places, free from police interference as long as they obey the law. As the amount of evidence increases that someone has committed a crime, the Fourth Amendment per- mits an officer to infringe more on a person’s right of privacy; the officer may detain the person, frisk them during an investigative stop, or arrest the person and search and seize property. You must be able to articulate and explain your actions in a legal context throughout every step. The ability to articulate (put into words) and explain your actions is essential to the legal process. You can use procedural justice to help you do this. If you stop someone, explain why you are stopping them. At the time of the stop, it is not necessary for you to explain every step of your actions; however, you might want to explain later why certain things were done. For example, at the time of a high-risk traffic stop, you will not take the time to explain all of your actions. Give the person a chance to ask you questions. This will help them understand what is happening and you will be able to put the reasoning behind your actions into words. Law enforcement officers must develop a keen awareness of the legal justification at each point during an incident. You must document and be prepared to explain, in court, your actions and the legal justifications for each of them. ; LE322.1. Explain your legal justification to act 74 / Florida Basic Recruit Training Program (LE): Volume 1 Types of Encounters You will have many different encounters with members of the public. There are three main types of law enforcement encounters: consensual encounters investigative stops arrests Every encounter is case and fact specific. What an officer does in one particular circumstance (given the specific facts) may be reasonable in that circumstance but not reasonable for a different situation. ; LE322.2. Identify the three types of encounters Consensual Encounters Many times, you will have encounters with the public that are nothing more than simple conversations. These encounters are not based on a violation of the law and are no different than when any members of the public talk to each other. A consensual encounter occurs when you have voluntary contact with a person and they are free to go at any time. In addition, the person is free to refuse to answer any ques- tions, decline to identify themselves, and ask that you leave them alone. A consensual encounter involves no coercion, no detention, and therefore is not a seizure under the Fourth Amendment. Examples of con- sensual encounters are asking a local baker how their business is doing or making polite conversation with a community member. In determining whether an encounter was consensual, the court will look at all of the circumstances sur- rounding the encounter. To maintain the consensual nature of the interaction and not raise the level of encounter to an investigative stop, it is important to: allow the person to end the conversation at any time allow the person to leave at any time allow the person to have freedom of movement (for example, if you or your vehicle is blocking their path, the person is not or may not feel free to leave) not force the person to identify themselves not physically stop or restrain the person not frisk the person not give orders not make commands not use sirens or red/blue lights A consensual encounter may be based on mere suspicion or no suspicion at all. Mere suspicion is sometimes described as a hunch or gut feeling based on law enforcement training and knowledge. The Constitution Chapter 3 Legal / 75 does not prohibit you from approaching pedestrians or motorists and engaging them in conversation. If you have mere suspicion, you can ask them if they are willing to answer questions, question them if they are willing to listen, or listen to what they have to say if they voluntarily approach to speak with you. You do not have the authority to act on mere suspicion alone. Mere suspicion does not grant any enforcement or legal authority, including detaining a person or conduct- ing a search. Detaining a person or searching requires more than mere suspicion. Sometimes an officer may engage with an individual during a consensual encounter during which the officer develops reasonable suspicion or probable cause of a crime giving the officer the legal justification to temporarily detain, or to arrest the individual. The distinction between a consensual encounter and the next two types of encoun- ters is that a consensual encounter is completely voluntary on the part of the individual, and a reasonable person in the same circumstance would feel that they could leave at any time. Consensual encounters do not have to be based on mere suspicion or a need to investigate. You can use consensual encounters to get to know your community members. Making conversation with members of your community helps you strengthen the bonds between law enforcement and the public. ; LE322.3. Describe consensual encounters Investigative Stop An officer can make an investigative stop only if the officer has reasonable suspicion that the person stopped was committing, is committing, or is about to commit a law violation. An investigative stop, which is based on reasonable suspicion, is conducted for the limited purpose of investigating that reasonable suspicion. If further reasonable suspicion develops during the stop, then the encounter continues. However, once the purpose of the stop is concluded with either of the following: no further development of a crime that created the reasonable suspicion no other reasonable suspicion no cause to arrest Then the stop is over and the suspect is free to leave. Reasonable Suspicion Reasonable suspicion is the standard of justification needed to support an investigative stop. This means that you can articulate, or put into words, facts that support a suspicion that the person stopped may be involved in a law violation. The facts and circumstances must support the suspicion that a person commit- ted a crime, is committing a crime, or is about to commit a crime. Reasonable suspicion may be established through a number of sources such as personal observation, infor- mation from fellow officers, information from third parties such as informants, and BOLOs (Be on the Look 76 / Florida Basic Recruit Training Program (LE): Volume 1 Out). A BOLO is a description of a vehicle or suspect, and any other information that would help identify the suspect. Your personal observations combined with your knowledge, skills, and experience may include: a person running or trying to evade the officer the time and location of the encounter/stop a person’s unusual dress or actions perceived smells or sounds a person is in a known high crime area None of the above alone justifies enough reasonable suspicion to make an investigative stop. Regarding high crimes areas, in Illinois v. Wardlow the U.S. Supreme Court ruled: An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. However, officers are not required to ignore the relevant characteristics of a loca- tion in determining whether the circumstances are sufficiently suspicious to warrant fur- ther investigation. ; LE322.4. Describe the concept of reasonable suspicion Terry Stop and Frisk The Terry stop takes its name from an important 1968 U.S. Supreme Court case, Terry v. Ohio. In the original case, a law enforcement officer observed Terry and two associates repeatedly walking by and looking into a store window. The officer suspected that the men were examining the store to plan a crime. The officer confronted them, and when they did not respond appropriately, grabbed two of them and patted down their outside clothing. The officer discovered that the men had guns in their jackets. The two individuals were arrested and charged with illegally carrying concealed weapons. Terry argued that the search and seizure had violated his Fourth Amendment rights. The Court disagreed and ruled that a law enforcement officer may frisk the exterior clothing of someone lawfully detained if the officer has reasonable suspicion to believe that the person is about to commit a crime, has committed a crime, or is committing a crime, and may be armed. A frisk (also known as a pat down) is not a full search. The scope of the frisk is limited to an external pat down of outer clothing and property being carried by the person. To reduce the possibility of a pat down violating the Fourth Amendment, you must be able to articulate rea- sons for believing the person has a weapon. You may not automatically pat down every person detained. The two elements required for a lawful pat down or frisk are that: The person is lawfully detained based on reasonable suspicion. The officer has reasonable suspicion to believe that the person possesses a dangerous weapon. Chapter 3 Legal / 77 A frisk is not restricted to a person’s body. Even the passenger compartment of a vehicle may be frisked, based on a reasonable belief that an occupant of the vehicle is armed and dangerous. The passenger com- partment includes the area of a motor vehicle designed for the seating of the driver and other passen- gers of the vehicle. It does not include a locked glove compartment or the trunk. This might happen, for example, during a high-risk traffic stop of a vehicle that matches the description of an armed robbery suspect’s vehicle. Further search will be justified only if the officer detects something readily apparent to be a weapon or immediately apparent to be contraband. Mackey v. State determined that simply seeing a partially concealed firearm does not, standing alone, constitute reasonable suspicion or justify a frisk, since many people may lawfully possess a concealed firearm. If an illegal weapon or evidence of a crime is discovered during the detention, you may make an arrest if warranted. An officer who conducts a valid stop and frisk as described above, and in the process feels an item readily recognized as contraband, may seize that contraband. Known as the plain touch/feel doctrine, this rule allows the officer to seize the contraband even if it does not feel like a weapon. Contraband is anything that is illegal to produce, possess, or transport. Plain touch/feel does not permit any manipulation or grop- ing of the object in an effort to identify it as contraband. The officer must be able to articulate that, based upon their training and experience, they immediately recognized the item as contraband. See Minnesota v. Dickerson. The duration of a Terry stop is limited to the time reasonably necessary to accomplish the purpose of the detention. An investigative detention may become an arrest even if the officer does not initially intend to make an arrest. Questioning that prolongs the detention but is not justified by the purpose of the investiga- tive stop is unreasonable under the Fourth Amendment. During the stop, the officer may not require the person to move from the location of the stop or its immediate vicinity. Doing so would turn the stop into an arrest. You may lawfully use force during an investigative stop if you reasonably believe it protects your safety or the public’s safety. You may use handcuffs if reasonably necessary, but you must be able to explain the reasons why force or restraints were necessary. The Florida Legislature incorporated the Terry stop guidelines into the Florida Stop and Frisk Law, which requires probable cause before a weapons pat down is permitted. Case law, however, has held that in this context the term “probable cause” means reasonable suspicion. ; LE322.5. Explain the legal justification for a Terry stop and frisk Pretext Stops If an officer has probable cause that a driver has committed a traffic infraction, or if the vehicle shows evi- dence of an equipment violation, such as a broken headlamp, the officer may stop the vehicle on that basis. Such stops are sometimes called pretext stops, because the officer stops the vehicle due to an equipment violation but really wants to investigate other, more serious criminal activity. Whren v. U.S. The case of Whren v. U.S. addressed pretext stops. Whren and a passenger were driving in an area known for high crime. Two officers patrolling the area noticed Whren’s vehicle sitting at a stop sign for an unusually long time. Suddenly, and without using a turn signal, the vehicle sped off. The officers pulled over the ve- hicle based on the traffic infraction (failing to signal a turn) they witnessed. When the officers approached 78 / Florida Basic Recruit Training Program (LE): Volume 1 the vehicle, they saw that Whren was holding bags of cocaine, and they arrested both men. Whren later argued that the search and seizure was illegal because when the officers pulled over his vehicle, they had no reasonable suspicion or probable cause to believe that he had illegal drugs in his possession. However, the Court ruled that the search and seizure was constitutional because the officers had probable cause to stop the vehicle for a traffic violation. The subjective reasoning of an officer for a stop is irrelevant so long as there is an objectively reasonable justification for the stop. ; LE322.6. Describe how an officer can legally conduct a pretext stop Arrests Arrests are typically the most serious level of encounter and can involve lengthy searches or detentions. To make an arrest you may physically restrain an individual or use your authority to clearly indicate that the person is not free to leave. You must always have probable cause that a person has committed or is com- mitting a crime in order to initiate an arrest. Probable Cause The standard of justification required to make an arrest or conduct a search is probable cause. Because probable cause justifies greater invasions into a person’s privacy, it is a stricter standard than reasonable suspicion. As stated previously, probable cause is based on the totality of circumstances and is the fair probability or reasonable grounds to believe that a crime has been or is being committed. The U.S. Supreme Court stated: Probable cause exists where facts and circumstances within the arresting officer’s knowl- edge and of which they had reasonably trustworthy information, are sufficient in them- selves to warrant a man of reasonable caution in the belief that an offense has been or is being committed... we deal with probabilities. They are the factual and practical con- siderations of everyday life on which reasonable and prudent men, not legal technicians, act. Draper v. U.S. Probable cause is a fluid concept—based on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules. Illinois v. Gates For example, seeing drug paraphernalia in open view in a car is probable cause to search the vehicle. Developing Probable Cause To establish probable cause, officers must be able to point to certain circumstances leading them to believe that a suspect committed a crime. The difference between reasonable suspicion and probable cause is the amount and quality of information the officer has concerning the commission of a crime by a particular suspect, or that evidence of a crime is present in a place to be searched. Illinois v. Gates also established the totality of circumstances standard of probable cause. This is the stan- dard for all arrests and warrants. You must focus on all the circumstances of a particular case rather than one factor when determining probable cause for an arrest. Your knowledge, training, and experience will assist you with evaluating the totality of the circumstances. Chapter 3 Legal / 79 Examples of Probable Cause 1. Officer Michaels arrives at Midtown Jewelry store moments after it was robbed and sees broken glass inside the store. A man claiming to be Sean, the owner, is on the scene. He holds what looks like keys to the store and is distressed. He tells Officer Michaels that a man, about 6’5” tall and weighing over 300 pounds, held up the store at gunpoint and escaped with rings and watches in a small brown paper bag. A few minutes later, less than a mile away from the jewelry store, Officer Michaels pulls over a car for speeding. The driver matches the description of the robber, and on the seat next to him is a small brown paper bag and a couple of watches with the price tags attached. Though Officer Michaels did not see the robbery itself, the driver matches the unusual physical description of the robber and has property that looks like what Sean said was missing. Officer Michaels has probable cause to arrest the driver. 2. Officer Cole pulls over a car and its three occupants for speeding. The officer searches the car (with the driver’s consent) and finds baggies of cocaine stashed behind an armrest in the back- seat. All three occupants say they didn’t know the cocaine was in the car. Officer Cole has prob- able cause to arrest the car’s occupants. In the absence of evidence demonstrating that the cocaine belonged to a specific occupant, Officer Cole could reasonably conclude that all of them knew about and possessed the cocaine. Sources used to establish reasonable suspicion or probable cause must be those that the court recognizes as reliable. ; LE322.7. Describe the legal standard of probable cause Commonly recognized sources you will rely on include an informant, corroborated (verified) anonymous tips, reliable and credible confidential information, lineups, and show-ups. Any information an officer le- gally obtains may be used to establish probable cause. Chapter 9 discusses commonly recognized sources further. It is important to remember that each law enforcement encounter must have a type of suspicion to cor- relate with it: consensual encounters: a voluntary conversation without suspicion or with mere suspicion investigative stops: must have reasonable suspicion arrests: must have probable cause ; LE322.8. Describe legally recognized sources for developing reasonable suspicion or probable cause 80 / Florida Basic Recruit Training Program (LE): Volume 1 Proof Beyond a Reasonable Doubt Before a person may be found guilty of a crime and sentenced, the prosecution must present evidence suf- ficient to prove guilt of each element of the crime beyond a reasonable doubt. Proof beyond a reasonable doubt is the standard used to determine if a criminal defendant is guilty. Based on the facts of the case, there is no other reasonable explanation than the defendant committed the crime. Although probable cause supporting a person’s arrest may exist, without further evidence, the state may not be able to prove the case beyond a reasonable doubt. Therefore, the case may not be filed by the prosecutor. ; LE322.9. Describe the legal standard of proof beyond a reasonable doubt Chapter 3 Legal / 81 3 Unit 2: Legal Concepts Lesson 3: Search and Seizure Lesson Goal At the end of this lesson, you will understand the legal requirements for conducting a valid search or seizure, the role of probable cause, and contraband forfeiture. Think About This You pull over someone on a routine traffic stop and you see a bag of pills on the seat next to them. Do you have the right to seize the bag of pills? Fourth Amendment Guarantees The Fourth Amendment of the Constitution guarantees the protection of people from governmental in- trusion into areas where they have a reasonable expectation of privacy. Some examples of reasonable expectation of privacy include a personal residence, a car, and a public restroom. The Fourth Amendment prohibits searches and seizures unless they are conducted with probable cause and under reasonable cir- cumstances. It states: 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. A search occurs when an officer intrudes into a place where a person has a reasonable expectation of pri- vacy. A seizure occurs when an officer affects a person’s right to have or control their property, usually by physically taking it. A seizure is also a physical arrest or detention. ; LE323.1. Describe the protections of search and seizure in the Fourth Amendment Search Warrants The Fourth Amendment generally requires officers to obtain a search warrant before intruding into a place where an individual has a reasonable expectation of privacy. While there are numerous exceptions to the search warrant requirement, officers should always first obtain a search warrant when it is possible and practical. A search warrant is a court order that authorizes law enforcement to conduct a search and seizure. The search warrant process is set up to protect people’s rights by issuing a search warrant correctly. 82 / Florida Basic Recruit Training Program (LE): Volume 1 The search warrant must be issued to a person or agency with specific jurisdiction over the location of the search. To be valid, a search warrant must meet all of these legal requirements: It must be authorized and signed by a neutral magistrate or judge. It must be based on an affidavit that states sufficient facts to establish probable cause that evi- dence of a crime will be found in the place to be searched. The basis of the information in the affidavit must come from reliable sources. The affiant (the person who swears to the affidavit and signs it) may be anyone, but the person serving the warrant must have jurisdiction over the place chosen for the search. Probable cause will be determined based on the totality of the circumstances. Courts also will consider how recent the information supporting the probable cause is and how likely it is that the evidence is still at the location to be searched. The detailed description in the search warrant is a crucial element, designed to prevent an intrusion into the wrong location. The description must include directions to the place to be searched beginning from a known landmark, such as an intersection. The search warrant is valid only for the specific location it de- scribes; it must also describe in detail the person or items to be seized. Officers must connect the seized items to criminal activity. For example, courts do not normally accept the general description “drugs” or “il- legal controlled substances.” They require law enforcement to name the specific drugs they expect to find. ; LE323.2. Describe the legal requirements to obtain a search warrant Exceptions to Search Warrant Requirements Under the Fourth Amendment, a search or seizure may be defined as the government intruding where a person has a reasonable expectation of privacy (REP). The three elements that compose a Fourth Amend- ment “search” are Government, Intrusion, and REP. If any element is missing, it is not a search, and the Fourth Amendment is not involved. For example, if a person walks into his neighbor’s garage, finds evi- dence of a crime, and calls the police, the evidence can be used, because the government was not involved in the search. If a suspect drops a bag containing controlled substances when an officer approaches him, the officer can seize the bag and use it as evidence, because the suspect abandoned his REP for the bag when he dropped it. In both of the above examples, one of the elements of a Fourth Amendment search is missing. If all three elements were present, however, the Fourth Amendment does apply. If the action by the officer is a search, and the officer does not have a search warrant, they must determine if one of the exceptions to the search warrant requirement applies. Some exceptions require probable cause, and some do not. ; LE323.3. Explain the exceptions to the search warrant requirement Chapter 3 Legal / 83 Probable Cause Required The law presumes that a search without a warrant is invalid; however, there are a number of exceptions that require probable cause: 1. plain view 2. mobile conveyance 3. exigent circumstances  destruction of evidence  fresh pursuit  emergency scene 1. Plain View Any contraband an officer can see can be seized without a warrant as long as three conditions are met: The officer is lawfully present in the place where they see the item. The item is in plain sight. The officer has probable cause to believe that the item is contraband or crime evidence. First, the officer must lawfully be positioned where they can see the contraband. An officer responding to a domestic dispute who sees bags of cocaine sitting on the dining room table inside the residence can seize the cocaine, because the officer has answered a call for assistance. However, if the officer walks up to a house and looks in the window to see, they are not lawfully present in the place where the cocaine is seen, and the seized drugs would be excluded from evidence. Second, the seized item must be in plain sight or plain view. The officer may not move a blanket, for ex- ample, to see what is underneath. The use of a flashlight to light the area around the blanket is permitted, but any movement of the item will likely invalidate the search. Third, the criminal nature of the seized item must be immediately apparent. An officer must know instantly that the item is contraband. In Sawyer v. State, a police officer saw a white pill on the console of a car and, thinking it was ecstasy, seized it. Testing proved the officer was correct. However, the court said that the pill’s nature as an illegal drug was not immediately apparent upon first sight, so the evidence was not permitted. ; LE323.4. Describe the three conditions that must be met to seize contraband in plain view without a warrant 2. Mobile Conveyance Vehicles and other mobile conveyances must be licensed, registered, insured and are easily moved. Con- sequently, they have a reduced expectation of privacy and may be searched without a warrant. A mobile conveyance search may be conducted without a warrant even if there may be time to obtain a warrant. Additionally, a mobile conveyance search does not have to occur at the same time as the stop. Probable 84 / Florida Basic Recruit Training Program (LE): Volume 1 cause is required for a mobile conveyance search. This is sometimes called the Carroll doctrine, named for the case of Carroll v. U.S. The scope of a search under the Carroll doctrine extends to the entire vehicle and to all containers where the evidence could reasonably be found. U.S. v. Ross justifies probable cause in the search of a lawfully stopped vehicle, to include the search of ev- ery part of the vehicle and its contents. For example, a canine’s positive alert on the exterior of a lawfully seized vehicle provides the probable cause justifying a complete search of the vehicle’s interior, as well as any containers in it. In contrast, if an officer has probable cause to believe that a vehicle contains a full-size shotgun, they may not lawfully look inside the glove box or center console during the search. Courts have held that it is not a search to use a certified police canine to detect odors of controlled sub- stances by walking the canine around the exterior of the car, provided the sniff is completed before the end of the traffic stop. The length of the stop cannot be extended to wait for the arrival of the canine or for the sniff to be completed. ; LE323.5. Explain when searching a mobile conveyance is legal without a warrant 3. Exigent Circumstances Exigent circumstances are certain emergencies, such as the case of evidence destruction, an emergency scene, or a fresh pursuit that justifies a warrantless entry. Destruction of Evidence Destruction of evidence is one of the exigent circumstances that permit search and seizure with- out a warrant. If you have probable cause to believe that contraband or evidence is in immediate danger of being destroyed, you do not need to obtain a search warrant before seizing the con- traband or evidence. The law is clear, however, that the officer cannot create the exigent circum- stance to justify a warrantless entry. Hornblower v. State justifies probable cause and search and seizure without a warrant, including entering a home when there is a detection of noise of scur- rying activity and possible destruction of evidence. An officer may not knock loudly at a house when they have a hunch that drugs are being held there and announce, “Police officer,” and then enter the house because he or she thinks the residents may be trying to destroy drugs inside. The officer must have probable cause to believe that the drugs are inside and are in immediate danger of destruction. ; LE323.6. Explain when the destruction of evidence permits a search without a warrant Fresh Pursuit Fresh pursuit is the immediate and continuous pursuit by officers of a suspect who is fleeing to avoid arrest. A fresh pursuit is not restricted to a vehicle and applies to every mode of transport, including foot and bicycle. It permits a law enforcement officer to make an arrest of a fleeing suspect who crosses jurisdictional lines. This is an exception to the general rule that a Florida of- ficer’s arrest powers are limited to the jurisdiction of the agency that employs the officer. Fresh pursuit may be very brief and undramatic and not necessarily a high-speed pursuit. The offense must have occurred within the pursuing officer’s jurisdictional boundaries. If a crimi- nal offense was committed for which a probable cause arrest may be made, the officer may leave their jurisdiction to arrest the suspect. The pursuit must be continuous and uninterrupted; however, the pursuing officer does not need to be in constant visual contact with the subject Chapter 3 Legal / 85  before making the arrest. The commission of the offense and the pursuit of the suspect must be closely related in time. When the arrest occurs in another jurisdiction, the arresting officer must notify the officer in charge of that jurisdiction and must take the suspect before a trial judge in the county where the arrest occurred. Fresh pursuit also allows an officer to enter a residence or other private place while chasing a suspect. It generally requires these three conditions:  probable cause that the suspect committed a serious crime, and  immediate or continuous pursuit of the suspect, and  probable cause that the suspect is in the premises that is being entered without a warrant. Any contraband or evidence in plain view found in the place entered in fresh pursuit will not be subject to suppression in court because of failure to obtain a search warrant. Officers must follow their agency policies regarding fresh pursuit, which may be more restrictive than state law. ; LE323.7. Explain the fresh pursuit exception to the search warrant requirement Emergency Scene The emergency scene exception involves a situation in which officers may make a warrantless en- try to ensure their own safety or that of the public. For this exception to apply you must have an objectively reasonable basis to believe that someone is in immediate danger. For example, in the case of Seibert v. State officers were justified in entering a house, because they had an objectively reasonable basis to believe that a person was about to commit suicide. Once within the house, they discovered a murder victim while securing the person to prevent his suicide. ; LE323.8. Explain how an emergency scene relates to warrantless entry There is no general crime scene or murder scene exception to the Fourth Amendment warrant require- ment. Although officers responding to a homicide scene may conduct a protective sweep to make sure there are no more victims and that the assailant is gone, to search a crime scene further will require a war- rant or a valid exception. Probable Cause Not Required Four additional search warrant exceptions require less than probable cause: 1. consent 2. inventory 3. administrative searches 4. incident to arrest 86 / Florida Basic Recruit Training Program (LE): Volume 1 1. Consent Consent searches do not require probable cause, reasonable suspicion, or even mere suspicion. An of- ficer may ask anyone for consent to search. If the consent is knowing and voluntary and the person giving consent has authority to do so, then the search is valid and any evidence obtained from it can be used in court. Officers do not need to advise people that they have a right to refuse. Many times, people who hide contraband will consent to an officer’s request to search thinking that because they consented, the officer will assume they are not hiding anything and will not complete the search. The burden is on the prosecu- tion to prove that consent was valid. Consent may be obtained verbally or in writing. It is the responsibility of the officer to document how the person gave consent. Your agency may have specific policies on how to document consent. Voluntary means a reasonable person under the circumstances would feel that they could refuse the re- quest for consent to search. So, for example, if an officer has possession of a driver’s or passenger’s iden- tification while conducting a traffic stop, the court may not consider voluntary consent valid because the individual may not feel free to leave. Under limited circumstances, consent to search may be implied. Examples of implied consent include, searches of airline passengers, searches of patrons attending sporting events, and searches of visitors to courthouses or other government buildings. Except for such limited situations, courts will not generally approve of warrantless searches based on implied consent. Third-party consent to search may be valid if the third party has mutual access and control over the area to be searched. However, a search may not be done by consent of one co-tenant if another co-tenant is pres- ent and objects to the search. See Georgia v. Randolph. Unless they are the owner, a vehicle’s passenger may not consent to the search of the driver’s vehicle. In cases involving juveniles, the consent of a parent or guardian will generally overrule objection by the child. A child may provide consent for a warrantless entry to a parent’s home if the child shares the home with the parent and the parent is not physically present to grant or deny consent. Consent may be withdrawn at any time during the search. While conducting the search, the person grant- ing consent must be positioned in an area where they are able to communicate a withdrawal or revocation. Once withdrawn, officers must stop searching immediately. The scope of consent can be limited as well. For example, a driver may consent to the search of the vehicle’s passenger compartment but not the trunk. Of course, if an officer develops probable cause to search at any time, the withdrawal of consent will be meaningless. ; LE323.9. Explain the importance of consent when conducting a warrantless search 2. Inventory When the driver of a vehicle is arrested, you must make sure the vehicle is properly secured. Next, it is important to conduct an inventory, which is a documentation of all valuable property in a vehicle and the description of the vehicle. An inventory is not designed to search for evidence, but to protect the arrested person’s property and to protect you and the agency from accusations of theft, loss, or damage to the vehicle. An inventory is permitted only if the vehicle is impounded. To impound means towing a vehicle at the direction of law en- forcement. Follow your agency policy to determine when and how the inventory must be conducted, for Chapter 3 Legal / 87 example your agency policy may recommend that the inventory must occur at about the same time as the impoundment of the vehicle. Any evidence or contraband found during an inventory may be used against a defendant in court. ; LE323.10. Explain why a vehicle inventory does not require a search warrant 3. Administrative Searches Administrative searches generally do not require a warrant due to the setting or special conditions. Sub- jects of this type of search include students, public schools, people in government offices, government property (such as desks, lockers, and vehicles), people engaged in certain businesses or licensed activities, and people on probation or parole. These types of searches generally do not require warrants because they are for regulatory purposes and usually are not conducted by a law enforcement officer. Because certain industries are heavily regulated, their expectations for privacy are reduced. Examples include searches of pawn shops, alcohol and tobacco establishments, and probationers. Agency policy will dictate the extent to which officers may be involved in assisting with such searches. ; LE323.11. Explain why an administrative search does not require a search warrant 4. Incident to Arrest When a person is lawfully arrested and taken into custody, they may be searched without a warrant. This is called a search incident to arrest and is reasonable under the Fourth Amendment. Incident here means an event that occurs in the process of conducting an arrest. U.S. v. Robinson noted two historical rationales for the search incident to arrest exception: (1) the need to disarm the suspect to take them into custody and (2) the need to preserve evidence for later use at trial. A search incident to arrest may be conducted only when two requirements have been met. First, there must have been a lawful custodial arrest. A search incident to arrest may not be con- ducted unless there is a confinement by an officer. An officer may not conduct a search incident to arrest when the officer issues a traffic citation or a notice to appear. There must be a physical, custodial arrest. Second, the search must be “substantially contemporaneous” or at the same time with the ar- rest. For example, a search done 10 minutes after an arrest will generally be valid, but one con- ducted an hour after the arrest will likely be invalid. Chimel v. California defined the scope of a search incident to arrest as the arrestee’s person and the areas “within the arrestee’s reach” at the time of the arrest. However, Thornton v. U.S. clarifies that a search incident to arrest may also include the vehicle in which the arrested person was a passenger just before the arrest. Under New York v. Belton, the scope of a vehicle search incident to arrest includes the entire passenger compartment and all containers located therein, locked or unlocked. The trunk of a sedan is not consid- ered part of the passenger compartment, but the rear area of a van or SUV is included in the search area. Arizona v. Gant, has further refined the scope of search incident to arrest situations involving vehicles. Officers may search the passenger compartment of a vehicle only when the arrestee is unsecured and the passenger compartment is within reaching distance of the arrestee or if it is “reasonable” to believe the vehicle contains evidence of the crime for which the subject was arrested. Officers should document the 88 / Florida Basic Recruit Training Program (LE): Volume 1 facts and circumstances on which they relied when making decisions regarding a search and be prepared to articulate those reasons at a deposition or hearing. ; LE323.12. Explain why searching someone under arrest does not require a search warrant Abandoned Property and Open Fields Searches of abandoned property and open fields are two search types that are often considered exceptions to the search warrant requirement. They are not technically searches, because the person does not have a reasonable expectation of privacy in the place to be searched. An example of abandoned property is the contents of a trash can that has been put out by the curb for pickup. The owner of the trash has abandoned any expectation of privacy in the trash, so officers may seize it and search through it without a warrant. Open fields are those areas that are visible to people outside of the property and where the occupant has made no attempt at privacy. The U.S. Supreme Court has made a distinction between the curtilage (the space of ground and outbuildings immediately surrounding a structure) of someone’s home and an open field. Whether particular property is an open field or curtilage depends upon the steps the occupant has taken to create an expectation of privacy and its common use. Fenced and posted fields are given a higher degree of constitutional protection than areas that do not have them. ; LE323.13. Explain how abandoned property and the open fields doctrine relate to a warrantless search The Scope of Searches The scope of constitutional searches is limited to the items being searched. An officer who conducts a probable cause search of a vehicle for a stolen gun and finds the gun in the glove box must stop searching unless there is probable cause to search for other specific items. The nature of the search should be based on the item the officer expects to find. For example, if an officer has probable cause to search a home for stolen refrigerators, searching drawers, clothing, and under the bed is unreasonable, because a refrigera- tor cannot fit in those places. Whether conducting a search using a warrant or acting under a legally recognized exception, case law and statutes allow officers to search for these items: contraband dangerous weapons evidence suspects items used by the suspect to commit the crime objects obtained by the suspect as a result of committing the crime items defined by statute (chapter 933, F.S.—Search and Inspection Warrants) ; LE323.14. Describe the scope of searches legally permitted for a law enforcement officer Chapter 3 Legal / 89 Florida Contraband Forfeiture Act The Florida Statutes give law enforcement agencies the authority to seize and forfeit certain property known as contraband articles. Contraband articles include items that are illegal to possess, items used in the commission of a felony, and items purchased with the profits of felonious activity. Forfeiture is a civil proceeding in which the law enforcement agency asks the court to transfer ownership of the property from the defendant to the law enforcement agency. The agency may then sell the property at auction, use the property for law enforcement purposes, or give the property to a public or non-profit organization. For example, the law enforcement agency seizes the car of a drug dealer. After the forfeiture proceeding, the car could then be used for agency purposes. Forfeiture deprives a person of interest of their property, so officers must have probable cause to seize the property. The Fourth Amendment guards against not only unreasonable searches but also unreasonable seizures. Officers must use great care in applying principles of constitutional search and seizure law before seizing property under the Florida Contraband Forfeiture Act. Illegal pretext stops, reliance upon drug- courier profiles, or racial or ethnic profiling must never be any part of the basis for a contraband seizure. The purpose of the seizure and forfeiture of contraband is to further law enforcement’s purposes of public safety, the safety of law enforcement officers, or the investigation and prosecution of criminal activity. Florida has established mandatory guidelines for seizure and forfeiture of contraband. Be familiar with these guidelines and your agency’s forfeiture policies. ; LE323.15. Describe legal seizures under the Florida Contraband Forfeiture Act 90 / Florida Basic Recruit Training Program (LE): Volume 1 3 Unit 2: Legal Concepts Lesson 4: Weapons and Firearms Possession Lesson Goal At the end of this lesson, you will understand how individuals in Florida can lawfully own, possess, and use concealed weapons or firearms. You will also know your responsibilities when interacting with these individuals while ensuring public and officer safety. Think About This You conduct a traffic stop and upon making contact with the driver, she informs you that she has a handgun in her purse. What should you do next? Lawful Ownership and Possession of Weapons and Firearms Chapter 790 of the Florida Statutes addresses lawful ownership, possession, and use of firearms and weap- ons. In the state of Florida, a person younger than 21 may not purchase or transfer ownership of a firearm from a licensed importer, manufacturer, or dealer (s. 790.065(13), F.S.). As a result, a licensed importer, manufacturer, or dealer may not make or facilitate the sale or transfer of a firearm to a person younger than 21. These prohibitions do not apply to the purchase of a rifle or shotgun by a law enforcement officer, correctional officer, or a military service member. However, a person younger than 21 can still own or pos- sess a firearm in accordance with chapter 790. For example, a person younger than 21 may own or possess a firearm that has been given to them as a gift, or obtained by other lawful means. A person younger than 21 can also buy a firearm from a private party; however, it would be a criminal offense for a person to sell or otherwise provide a firearm to someone younger than 18 if it is sold or provided without consent from the minor’s parent or guardian. In addition to sales of firearms, the Florida Statutes address seizing firearms in situations where a person poses a danger to themselves or others. Section 394.463, F.S., authorizes a law enforcement officer taking someone into custody for an involuntary examination under the Baker Act to seize and hold any firearm or ammunition the person possesses if the person poses a danger to themselves or others and has made a credible threat of violence against another person. You will learn more about the Baker Act in Chapter 6. Chapter 3 Legal / 91 Lawful Uses of Weapons and Firearms The state of Florida recognizes 17 lawful categories of people who may own, possess, and use firearms and other weapons for lawful purposes. The categories are listed in the following table: Lawful Ownership, Possession, and Use of Firearms and Other Weapons (s. 790.25, F.S.) 1 Members of the U.S. armed forces and Florida National Guard when on duty, training or preparing themselves for military duty, or subject to recall or mobilization 2 Citizens of this state subject to duty in the armed forces under s. 2, Art. X of the State Constitution, under chapters 250 and 251, and under federal laws, when on duty or when training or preparing themselves for military duty 3 Persons carrying out or training for emergency management duties under chapter 252 4 Sheriffs, marshals, prison or jail wardens, police officers, Florida highway patrol officers, game wardens, revenue officers, forest officials, special officers appointed under the provisions of chapter 354, and other peace and law enforcement officers and their deputies and assistants and full-time paid peace officers of other states and of the federal government who are carrying out official duties while in this state 5 Officers or employees of the state or United States duly authorized to carry a concealed weapon 6 Guards or messengers of common carriers, express companies, armored car carriers, mail carriers, banks, and other financial institutions, while actually employed in and about the shipment, transportation, or delivery of any money, treasure, bullion, bonds, or other thing of value within this state 7 Regularly enrolled members of any organization duly authorized to purchase or receive weapons from the United States or from this state, or regularly enrolled members of clubs organized for target, skeet, or trap shooting, while at or going to or from shooting practice; or regularly enrolled members of clubs organized for modern or antique firearms collecting, while such members are at or going to or from their collectors’ gun shows, conventions, or exhibits 8 A person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition 9 A person engaged in the business of manufacturing, repairing, or dealing in firearms, or the agent or representative of any such person while engaged in the lawful course of such business 10 A person firing weapons for testing or target practice under safe conditions and in a safe place not prohibited by law or going to or from such place 11 A person firing weapons in a safe and secure indoor range for testing and target practice 12 A person traveling by private conveyance when the weapon is securely encased or in a public conveyance when the weapon is securely encased and not in the person’s manual possession 13 A person while carrying a pistol unloaded and in a secure wrapper, concealed or otherwise, from the place of purchase to his or her home or place of business or to a place of repair or back to their home or place of business 14 A person possessing arms at their home or place of business 15 Investigators employed by the several public defenders of the state, while actually carrying out official duties 92 / Florida Basic Recruit Training Program (LE): Volume 1  16 Investigators employed by the Capital Collateral Regional Counsel, while actually carrying out official duties 17 A tactical medical professional who is actively operating in direct support of a tactical operation by a law enforcement agency ; LE324.1. Describe the lawful ownership and use of a weapon or firearm Concealed Weapons and Firearms Except for the lawful uses listed above in s. 790.25 F.S., Florida is not an open carry state. Throughout the United States, open carry refers to the practice of “openly carrying a firearm in public.” However, concealed carry is where firearms cannot be seen by the casual observer. Florida law requires a person to obtain a concealed weapon or firearm license (CWFL) to carry a concealed weapon or firearm. The firearm or weapon must be concealed from the ordinary sight of another person, such as in a hidden holster on the body or in a bag, purse, or backpack. ; LE324.2. Describe the basic legal requirements to carry a concealed weapon or firearm in Florida Figure 3-4: Sample concealed weapon or firearm license Although a licensed individual may carry a concealed weapon or firearm, there are certain places where an individual is not authorized to carry a concealed weapon or firearm, even with a license. The table below specifies the places where possession is not allowed: Possession Restrictions for Concealed Weapons or Firearms (s. 790.06 (12)(a), F.S.) 1 Any place of nuisance as defined in s. 823.05, F.S. 2 Any police, sheriff, or highway patrol station 3 Any detention facility, prison, or jail 4 Any courthouse Any courtroom, except that nothing in this section would preclude a judge from carrying a 5 concealed weapon or determining who will carry a concealed weapon in his or her courtroom 6 Any polling place Any meeting of the governing body of a county, public school district, municipality, or special 7 district Chapter 3 Legal / 93  8 Any meeting of the Legislature or a committee thereof 9 Any school, college, or professional athletic event not related to firearms 10 Any elementary or secondary school facility or administration building 11 Any career center Any portion of an establishment licensed to dispense alcoholic beverages for consumption on 12 the premises, which portion of the establishment is primarily devoted to such purpose Any college or university facility unless the licensee is a registered student, employee, or faculty member of such college or university and the weapon is a stun gun or nonlethal electric 13 weapon or device designed solely for defensive purposes and the weapon does not fire a dart or projectile The inside of the passenger terminal and sterile area of any airport, provided that no person shall be prohibited from carrying any legal firearm into the terminal, which firearm is encased 14 for shipment for purposes of checking such firearm as baggage to be lawfully transported on any aircraft 15 Any place where the carrying of firearms is prohibited by federal law Stops and Concealed Weapons There may be times when you stop someone who is legally carrying a weapon or firearm. The Florida Statutes allow anyone to carry a weapon or firearm on their person or in their vehicle without a concealed weapon license, as long as the weapon is securely encased, not readily accessible for immediate use, and possessed for a lawful purpose as defined in chapter 790. The Florida Statutes define “readily accessible for immediate use” as carried on the person or within such close proximity and in such a manner that it can be retrieved and used as easily and quickly as if carried on the person. “Securely encased” means in a glove compartment, whether or not locked; snapped in a hol- ster, not attached to the person; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access. When you stop them, many people who carry a CWFL will tell you that they have a weapon on their person or in their vehicle and that they have a license to carry it. They are not required to tell you that they have either a license or a weapon. However, they must carry the license, together with valid identification, at all times when they are in actual possession of a concealed weapon or firearm, and they must display both the license and proper identification upon demand by a law enforcement officer. Agency computer devices may give you access to the Florida Crime Information Center database (FCIC) to verify the license, or you might have to verify the information with dispatch. You will learn more about FCIC in Chapter 5. ; LE324.3. Determine the legality of a concealed weapon during a traffic stop Law Enforcement Officers Safety Act The Law Enforcement Officers Safety Act is a federal law that allows qualified and retired law enforcement officers to carry a concealed firearm in any jurisdiction in the United States, regardless of state or local laws. 94 / Florida Basic Recruit Training Program (LE): Volume 1 To comply with the Act officers must carry two forms of documentation: photo identification issued by the agency for which they are currently employed or were separated from documentation which certifies that the officer has met, within the past 12 months, the active duty law enforcement standards for qualification for a firearm of the same type as the one they are carrying Reciprocity A law enforcement officer may come in contact with individuals from other states who are in possession of a concealed weapon or firearm. The Florida Statutes allow officers in Florida to recognize concealed weapons licenses issued by another state if the other state agrees to recognize Florida concealed weapons licenses. This principle is known as reciprocity. Florida has reciprocity recognition agreements with many states, but not all. A CWFL issued to residents of these states is valid in Florida. However, some states issue concealed carry licenses to individuals who are not residents of the issuing state. These non-resident licenses are not honored under Florida’s reciprocity provision. To determine Florida’s reciprocal agreements, review the list of states on the Florida Depart- ment of Agriculture and Consumer Services website. This list is regularly updated and provides the most accurate information on reciprocity. ; LE324.4. Explain reciprocity in the state of Florida Risk Protection Orders You may encounter situations that do not rise to the level of a criminal violation but have the potential for violence. In these situations, your agency may petition the court for a risk protection order. A risk protec- tion order (RPO) is a court order that temporarily restricts a person’s access to firearms for up to one year in situations where they pose a significant danger to themselves or others by having a firearm or ammuni- tion in their custody or control, or by purchasing, possessing, or receiving a firearm or any ammunition. The petition must: have an affidavit made under oath stating the specific statements, actions, or facts that give rise to a reasonable fear of significant dangerous acts by the person identify the quantities, types, and locations of all firearms and ammunition that the person owns, possesses, and has in custody, or controls identify whether there is a known existing RPO governing the person Situational awareness and maintaining officer safety will be important when given the responsibility of serving an RPO. When serving an RPO you will request the person to immediately surrender all firearms and ammunition they own and any license to carry a concealed weapon or firearm. Follow agency policies and procedures when initiating the petition for an RPO and when serving the order. ; LE324.5. Explain the temporary restrictions permitted under risk protection orders Chapter 3 Legal / 95 3 Unit 2: Legal Concepts Lesson 5: Laws of Arrest Lesson Goal At the end of this lesson, you will understand the process of making an arrest with or without a war- rant, issuing a notice to appear, and the role of a probable cause affidavit. Think About This An owner of a local clothing store has called you and reported that one of their customers is currently shop- lifting in their store. When you arrive, you talk to the owner and he points out the shoplifter who is now walking away from the store. Do you have the authority to arrest this person without a warrant and without having witnessed the crime yourself? Authority to Arrest The Florida Statutes give law enforcement officers the authority to make arrests. An arrest is depriving a person of their liberty by legal authority. There are two types of arrests under Florida law: arrest with a warrant and arrest without a warrant. An arrest warrant is a court order authorizing and requiring law enforcement to take the individual named on the warrant into custody to answer for charges specified in the warrant. Obtaining an arrest warrant requires an affidavit containing probable cause. The Florida Statutes authorize law enforcement officers to enter the residence of a wanted person to make an arrest, provided there is a reasonable belief the person named on the warrant is there. To enter a third party’s residence to arrest a subject named in an arrest warrant, officers must obtain a search warrant or articulate the basis for an applicable search warrant exception. See Steagald v. U.S. ; LE325.1. Describe the role of an arrest warrant after deciding to make an arrest Warrantless Arrests You may make a probable cause arrest without a warrant under the following circumstances: 1. The person has committed a felony or misdemeanor or violated a county or municipal ordinance in the presence of the officer. 2. The person committed a felony outside of the officer’s presence, but the officer has probable cause to believe that the person committed it. 3. A warrant for arrest has been issued and is being held by another law enforcement officer or agency. ; LE325.2. List situations where officers can legally conduct a warrantless arrest 96 / Florida Basic Recruit Training Program (LE): Volume 1  4. The person has committed a misdemeanor that does not have to occur in your presence. These misdemeanor exceptions include:  carrying a firearm in violation of an injunction  battery  retail theft  traffic offenses related to crash investigation  unlicensed carrying of a concealed weapon  disorderly conduct on