LD 16 V-4.8.pdf

CALIFORNIA COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING Basic Course Workbook Series Student Materials Learning Domain 16 Search and Seizure Version 4.8 THE MISSION OF THE CALIFORNIA COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING IS TO CONTINUALLY ENHANCE THE PROFESSIONALISM OF C...

CALIFORNIA COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING Basic Course Workbook Series Student Materials Learning Domain 16 Search and Seizure Version 4.8 THE MISSION OF THE CALIFORNIA COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING IS TO CONTINUALLY ENHANCE THE PROFESSIONALISM OF CALIFORNIA LAW ENFORCEMENT IN SERVING ITS COMMUNITIES  Basic Course Workbook Series Student Materials Learning Domain 16 Search and Seizure Version 4.8 © Copyright 2006 California Commission on Peace Officer Standards and Training (POST) All rights reserved. Published 1998 Revised June 2001 Revised January 2006 Revised July 2008 Correction June 2017 This publication may not be reproduced, in whole or in part, in any form or by any means electronic or mechanical or by any information storage and retrieval system now known or hereafter invented, without prior written permission of the California Commission on Peace Officer Standards and Training, with the following exception: California law enforcement or dispatch agencies in the POST program, POST-certified training presenters, and presenters and students of the California basic course instructional system are allowed to copy this publication for non-commercial use. All other individuals, private businesses and corporations, public and private agencies and colleges, professional associations, and non-POST law enforcement agencies in-state or out-of- state may purchase copies of this publication, at cost, from POST as listed below: From POST’s Web Site: www.post.ca.gov Go to Ordering Student Workbooks  POST COMMISSIONERS Joyce Dudley – Chair District Attorney Santa Barbara County Rick Braziel – Vice Chair Educator Humboldt State University Lai Lai Bui Sergeant Sacramento Police Department Thomas Chaplin Chief Walnut Creek Police Department Richard DeLaRosa Mayor City of Colton Barry Donelan Sergeant Oakland Police Department Robert Doyle Sheriff Marin County Laren Leichliter Deputy Sheriff San Bernardino County Geoff Long Public Member John McMahon Sheriff San Bernardino County Jethroe Moore, II Public Member James O’Rourke Officer California Highway Patrol Batine Ramirez Sergeant Placer County Sheriff’s Department Laurie Smith Sheriff Santa Clara County Walter Vasquez Chief La Mesa Police Department Stephen Lindley Interim Representing Kamala Harris Director of Division of Law Enforcement Attorney General Ex-Officio Member  THE ACADEMY TRAINING MISSION The primary mission of basic training is to prepare students mentally, morally, and physically to advance into a field training program, assume the responsibilities, and execute the duties of a peace officer in society.  FOREWORD The California Commission on Peace Officer Standards and Training sincerely appreciates the efforts of the many curriculum consultants, academy instructors, directors and coordinators who contributed to the development of this workbook. We must also thank the California law enforcement agency executives who allowed their personnel to participate in the development of these training materials. This student workbook is part of the POST Basic Course Training System. The workbook component of this system provides a self-study document for every learning domain in the Basic Course. Each workbook is intended to be a supplement to, not a substitute for, classroom instruction. The objective of the system is to improve academy student learning and information retention and ultimately contribute to you becoming a peace officer committed to safety, and to the communities you will serve. The content of each workbook is organized into sequenced learning modules to meet requirements as prescribed both by California law and the POST Training and Testing Specifications for the Basic Course. It is our hope that the collective wisdom and experience of all who contributed to this workbook will help you, the student, to successfully complete the Basic Course and to enjoy a safe and rewarding career as a peace officer. MANUEL ALVAREZ, Jr. Executive Director  LD 16: Search and Seizure Table of Contents Topic See Page Preface v Introduction v How to Use the Workbook vi Chapter 1: Basic Principles of Search and Seizure Law 1-1 Overview 1-1 Fourth Amendment Protections 1-3 Reasonable Expectation of Privacy 1-6 Probable Cause to Search 1-12 Chapter Synopsis 1-14 Workbook Learning Activities 1-16 Chapter 2: Warrant Searches and Seizures 2-1 Overview 2-1 Introduction to Warrant Searches 2-3 Probable Cause to Search 2-6 Execution of a Search Warrant 2-11 Chapter Synopsis 2-23 Workbook Learning Activities 2-25 Continued on next page LD 16: Search and Seizure i Table of Contents, Continued Topic See Page Chapter 3: Warrantless Searches and Seizures 3-1 Overview 3-1 Plain View Searches 3-3 Warrantless Searches in General 3-9 Cursory/Frisk/Pat Searches 3-11 Consent Searches 3-17 Exigent Circumstance Searches 3-25 Searches Incident to Arrest 3-31 Probation/Parole Searches 3-35 Chapter Synopsis 3-40 Workbook Learning Activities 3-42 Chapter 4: Searches and Seizures Involving Motor 4-1 Vehicles Overview 4-1 Probable Cause Searches of Vehicles 4-3 Plain View Seizures from Vehicles 4-8 Protective Searches of Vehicles 4-10 Consent Searches of Vehicles 4-13 Searches of Vehicles Incident to Custodial Arrests 4-15 Searches of Vehicles as Instrumentalities 4-18 Vehicle Inventories 4-20 Chapter Synopsis 4-24 Workbook Learning Activities 4-26 Continued on next page ii LD 16: Search and Seizure Table of Contents, Continued Topic See Page Chapter 5: Searches and Seizures Involving Bodily 5-1 Intrusions Overview 5-1 Warrant Requirement for Bodily Intrusion Searches 5-3 and Seizures Warrantless Bodily Intrusion Searches and Seizures 5-7 Use of Force During Bodily Intrusion Searches 5-11 and Seizures Specific Circumstances 5-14 Chapter Synopsis 5-16 Workbook Learning Activities 5-18 Chapter 6: Identification Procedures 6-1 Overview 6-1 Introduction to Identification Procedures 6-3 Field Showups 6-6 Photographic Spreads 6-9 Custodial Lineups 6-12 Chapter Synopsis 6-15 Workbook Learning Activities 6-16 Glossary G-1 Continued on next page LD 16: Search and Seizure iii Table of Contents, Continued This page was intentionally left blank. iv LD 16: Search and Seizure  Preface Introduction Student The student workbooks are part of the POST Basic Course Instructional workbooks System. This system is designed to provide students with a self-study document to be used in preparation for classroom training. Basic Course Completion of the Regular Basic Course is required, prior to exercising peace training officer powers, as recognized in the California Penal Code and where the requirement POST-required standard is the POST Regular Basic Course. Student The following elements are included in each workbook: workbook elements  chapter contents, including a synopsis of key points,  supplementary material, and  a glossary of terms used in this workbook. LD 16: Search and Seizure v How to Use the Student Workbook Introduction This workbook provides an introduction to the training requirements for this Learning Domain. You may use the workbook in several ways: for initial learning, for test preparation, and for remedial training. Workbook To use the workbook most effectively, follow the steps listed below. format Step Action 1 Begin by reading the: Preface and How to Use the Workbook, which provide an overview of how the workbook fits into the POST training program and how it should be used. 2 Refer to the Chapter Synopsis section at the end of each chapter to review the key points that support the chapter objectives. 3 Begin reading the text. 4 Complete the workbook learning activities at the end of each chapter. These activities reinforce the material taught in the chapter. 5 Refer to the Glossary section for a definition of important terms. The terms appear throughout the text and are bolded and underlined (e.g., term). vi LD 16: Search and Seizure  Chapter 1 Basic Principles of Search and Seizure Law Overview Learning need Peace officers must have a clear understanding of their authority, responsibility, and potential for liability in the areas of search and seizure law, as well as the protections provided by constitutional law, statutory law, and case law against unreasonable search and seizures. Learning The chart below identifies the student learning objectives for this chapter. objectives After completing the study of this chapter, the student Objective will be able to: ID  recognize constitutional protections guaranteed by the 16.01.2 Fourth Amendment  identify the concept of reasonable expectation of privacy 16.01.3  recognize standing and how it applies to an expectation 16.01.4 of privacy  recognize probable cause to search and its link between 16.01.5 Fourth Amendment protections and search and seizure law  recognize how the exclusionary rule applies to a peace 16.01.6 officer’s collection of evidence Continued on next page LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-1 Overview, Continued In this chapter This section focuses on the principles upon which law enforcement search and seizure practices are based. Refer to the chart below for a specific topic. Topic See Page Fourth Amendment Protections 1-3 Reasonable Expectation of Privacy 1-6 Probable Cause to Search 1-12 Chapter Synopsis 1-14 Workbook Learning Activities 1-16 1-2 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law Fourth Amendment Protections Introduction The Fourth Amendment to the Constitution prohibits unreasonable searches and seizures by the state and establishes that any search or seizure by the state must be based on probable cause. Policing The community expects their peace officers to abide by a set of rules and work in the within the limitations and restrictions placed on them to ensure a free and community democratic society. Doing so fosters trust. Trust is the critical link in the community/law enforcement partnership. Constitutional A priority of the authors of the United States Constitution and the California protections Constitution was to avoid unlimited actions and intrusions by the government and to protect a person’s:  privacy  liberty  possession of property Fourth The Fourth Amendment to the United States Constitution (Article 4 of the Bill Amendment of Rights) 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. Continued on next page LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-3 Fourth Amendment Protections, Continued Article 1, Article 1, Section 13, of the California Constitution states: Section 13 The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches, shall not be violated, and a warrant may not be issued except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized. Unreasonable The Fourth Amendment does not give individuals an absolute right to privacy; searches neither does it prohibit all searches. It limits only those searches conducted by the government that are considered unreasonable by the courts. To determine what is reasonable, the courts must look at the totality of circumstances and balance the individual’s right to privacy against the government’s need to gather evidence and apprehend criminals. Limitation on The Fourth Amendment, like the other Amendments in the Bill of Rights, government’s limits the power of the government but does not apply to actions by private power individuals. If a private individual violates someone else’s expectation of privacy, the victim may be able to make a claim in the civil court system. Continued on next page 1-4 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law Fourth Amendment Protections, Continued Related To better understand the Fourth Amendment, peace officers need to terms understand the following terms. A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon by the government. A seizure of property occurs when there is some meaningful interference with an individual’s possessory interest in that property by the government. A seizure of a person occurs when: - a peace officer physically applies force - a person voluntarily submits to a peace officer’s authority LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-5 Reasonable Expectation of Privacy Introduction The Fourth Amendment is not violated unless a person’s legitimate expectation of privacy is infringed upon by the government. Expectation A reasonable expectation of privacy can exist almost anytime and anyplace of privacy as long as:  individuals have indicated that they personally (subjectively) expect privacy in the object or area  their expectation is one which society is prepared to recognize as legitimate Related To better understand the expectation of privacy, peace officers need to terms understand the following terms. Subjective expectation of privacy is a person’s state of mind demonstrated by affirmative action designed to protect their privacy (e.g., building a fence, closing window shades, locking a compartment, etc.). Objective reasonableness refers to whether society is prepared to recognize the individual’s expectation as reasonable. Curtilage means the relatively small and usually well-defined area immediately around a residence to which the occupant has a reasonable expectation of privacy. Continued on next page 1-6 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law Reasonable Expectation of Privacy, Continued Expectation Everyone can reasonably expect privacy in his or her own person and home. of privacy A peace officer must also consider the expectation of privacy in areas beyond, beyond a but close to, the home. The following table illustrates a number of situations home or and how the expectation of privacy can vary depending on the totality of the person circumstances. Area If… Then… Expectation of Privacy a fence with a closed common sense and Higher gate surrounds the custom would suggest backyard of a that the general public residence. is not expected to enter. A backyard the occupants of the the occupants expect Lower residence post signs the general public to directing the general enter the backyard public to come into freely. the backyard for a yard sale. tall shrubbery is it can be assumed that Higher planted in front of the occupants expect the house, limiting this area to be blocked the view and access off from the general by the general public. A front yard public. there are no physical this area is open to the Lower barriers preventing public having business members of the with the occupants. public from freely approaching a residence through the front yard. Continued on next page LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-7 Reasonable Expectation of Privacy, Continued Expectation Area If… Then… Expectation of privacy of Privacy beyond a there are closed gates the occupants wish to Higher home or at the entrance of a block access to the person driveway. driveway by the (continued) general public. A driveway the general public it can be assumed the Lower must use the driveway is part of driveway to gain the open access to the access to the front door. walkway that leads to the front door from the public street. the window shades or the occupants wish to Higher curtains of a room are block any view of the drawn. area from the general public. Windows the window shades or the occupants do not Lower curtains are open or care if the general are constructed of public can see into material which is the area from the easily seen through. outside. Continued on next page 1-8 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law Reasonable Expectation of Privacy, Continued Expectation Area If… Then… Expectation of privacy of Privacy beyond a a solid wall is so tall the occupants wish to Higher home or that the general block access and person public cannot see view to the area (continued) over it. beyond the wall. Walls a wall is only three the occupants are not Lower feet tall. trying to prevent the general public from viewing what is beyond the wall. a fence is constructed the occupants wish to Higher so that it cannot be block the view into seen through without the area beyond the getting very close and fence. Fences peeking. a fence is constructed the occupants wish to Lower of wire. block access but not the view into the area beyond the fence. a garbage can is the owner considers it Higher stored next to a side within the curtilage of door to their house. the residence. Garbage a homeowner’s the trash is outside Lower garbage is bagged the curtilage of the and placed at residence within curbside. access to the general public. Continued on next page LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-9 Reasonable Expectation of Privacy, Continued Open Open fields means outdoor real property, outside the curtilage of the fields residence. Open fields are areas which are so open to public view that the owner or possessor is deemed to have implicitly invited the general public to view the area. Because of the lack of a reasonable expectation of privacy in open fields, the protections of the Fourth Amendment do not apply. NOTE: Open fields do not have to be either open or real fields to qualify. Overflights An overflight is the flight of a plane or helicopter over a given area. Because of the lack of a reasonable expectation of privacy in an area that can be viewed from an overflight, the protections of the Fourth Amendment do not apply, as long as the aircraft is:  at an altitude permitted by FAA regulations  being operated in a “physically nonintrusive manner” Standing Standing exists only if a subject has a reasonable expectation of privacy in the place or thing that is searched or seized. To challenge a particular search or seizure, a person must have a reasonable expectation of privacy in the place or thing that was searched or seized. Only a person with standing can challenge the search or seizure of property, based on Fourth Amendment protections. Standing generally is established by:  ownership  lawful possession  authority  control of the area searched or the property seized Continued on next page 1-10 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law Reasonable Expectation of Privacy, Continued Examples A live-in housekeeper gives consent for peace officers to enter and search for illegal weapons in the residence where she works. The homeowner has given the housekeeper authority over the residence; therefore, the housekeeper has standing to challenge the legality of the consent search later in court. A male defendant contests the search of his tool box that he had locked and placed in a friend’s garage. By locking the tool box, the owner demonstrated an expected level of privacy over its contents. Only the owner of the tool box, not the friend who owned the garage, would have standing to challenge the legality of the search of the tool box. LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-11 Probable Cause to Search Introduction The Fourth Amendment states: The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause… Definition Probable cause to search an area or object means having enough facts or information to provide a fair probability, or a substantial chance, that the item sought is located in the place to be searched. Thus, probable cause requires something less than an absolute or even a near certainty, but something more than a mere hunch or suspicion. Probable Peace officers must demonstrate that probable cause exists to search a specific cause to place for specific property or contraband which will be used as evidence. search Even though the court will consider the totality of the circumstances, to meet the Fourth Amendment requirement, officers must have specific facts which can be articulated in court or in a sworn statement (affidavit). To establish probable cause to search, peace officers must be able to articulate how and why they have a fair probability to believe:  a crime has occurred or is about to occur  evidence pertaining to the crime exists  the evidence is at the location they wish to search Officer A peace officer’s training and experience is relevant in establishing probable training and cause. Facts must be seen and weighed as understood by a reasonable officer experience with that particular officer’s training and experience. Continued on next page 1-12 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law Probable Cause to Search, Continued The If a court finds a search or seizure is not reasonable and a person’s Fourth exclusionary Amendment rights have been violated by the government, all items seized rule during the search could be ruled inadmissible or excluded as evidence at trial. NOTE: This inadmissible or excluded evidence is often referred to as “The fruit of the poisonous tree.” NOTE: The exclusionary rule does not appear anywhere in the Constitution, but rather was created by the United States Supreme Court to encourage proper law enforcement conduct. Usually, the evidence is excluded as a penalty for the illegality of the search or seizure. LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-13 Chapter Synopsis Learning need Peace officers must have a clear understanding of their authority, responsibility, and potential for liability in the area of search and seizure law, as well as the protections provided by constitutional law, statutory law, and case law against unreasonable search and seizures. Fourth The Fourth Amendment provides for: Amendment protections  the people to be secure in their persons, houses, papers, and effects [16.01.2]  against unreasonable searches and seizures  and no warrants shall issue, but upon probable cause  supported by oath or affirmation  particularly describing the place to be searched and the persons or things to be seized Reasonable A reasonable expectation of privacy exists as long as: expectation of privacy  individuals have indicated that they personally (subjectively) expect [16.01.3] privacy in the object or area  their expectation is one which society is prepared to recognize as legitimate Standing Standing exists only if a subject has a reasonable expectation of privacy in the [16.01.4] place or thing that is searched or seized. Standing generally is established by ownership, lawful possession, authority, and/or control of the area searched or the property seized. Continued on next page 1-14 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law Chapter Synopsis, Continued Probable Probable cause to search for an object or area means having enough facts or cause information to provide a fair probability, or a substantial chance, that the to search object sought is located in the place to be searched. [16.01.5] Exclusionary If a court finds that a search is not reasonable and that a person’s Fourth rule Amendment rights have been violated by the government, all items seized [16.01.6] during the search could be ruled inadmissible or excluded as evidence at trial. LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-15 Workbook Learning Activities Introduction To help you review and apply the material covered in this chapter, a selection of learning activities has been included. No answers are provided. However, by referring to the appropriate text, you should be able to prepare a response. Activity 1. Describe two different backyards where the occupants of the first have a questions reasonable expectation of privacy while the owners of the second do not (or at least do not to the same extent). Explain why there is not a reasonable expectation of privacy in the second backyard. If both yards are in the flight path of a small local airport, which, if either, has a reasonable expectation of privacy from overflight observations? Explain. 2. What is the exclusionary rule? How does it work to help peace officers honor the Fourth Amendment rights of potential suspects? Continued on next page 1-16 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law Workbook Learning Activities, Continued Activity 3. Several handguns have been stolen from the home of a gun collector. A questions person, who has been reliable in the past, tells officers that a local gang is (continued) involved in the theft. Peace officers know that one of the gang members lives within five blocks of the house where the theft occurred. Do officers have probable cause to search the house? Why or why not? Continued on next page LD 16: Chapter 1 - Basic Principles of Search and Seizure Law 1-17 Workbook Learning Activities, Continued Student notes 1-18 LD 16: Chapter 1 - Basic Principles of Search and Seizure Law  Chapter 2 Warrant Searches and Seizures Overview Learning need To search for and seize evidence legally, peace officers must know the rules and requirements for obtaining and executing a search warrant. Learning The chart below identifies the student learning objectives for this chapter. objectives After completing the study of this chapter, the student Objective will be able to: ID  recognize how probable cause serves as a basis for 16.02.2 obtaining a search warrant  recognize the necessary conditions for securing an area 16.02.7 pending issuance of a search warrant  identify the time limitations for serving a search warrant 16.02.8  recognize the elements for compliance with the knock 16.02.9 and notice requirements when serving a search warrant  recognize the application of the Nexus Rule while 16.02.10 conducting an authorized search Continued on next page LD 16: Chapter 2 – Warrant Searches and Seizures 2-1 Overview, Continued In this chapter This section focuses on obtaining and executing a search warrant. Refer to the following chart for specific topics. Topic See Page Introduction to Warrant Searches 2-3 Probable Cause to Search 2-6 Execution of a Search Warrant 2-11 Chapter Synopsis 2-23 Workbook Learning Activities 2-25 2-2 LD 16: Chapter 2 – Warrant Searches and Seizures Introduction to Warrant Searches Introduction Unless justified by an exception (consent, incident to arrest, search condition, or emergency), a search of private property may lawfully be conducted only if authorized by a search warrant. Ethics Peace officers must stay within the limits of the law in order to enforce and preserve it. Peace officers are part of the law, never above it. The end never justifies the means. Warrant Search and seizure law originates from the Fourth Amendment of the United clause of States Constitution and Article 1 of the California Constitution. the Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Definition A search warrant is:  an order in writing, in the name of the people  signed by a magistrate  directed to a peace officer  commanding the officer to search for an individual or individuals, a thing or things, or personal property  in the case of a thing or things or personal property, to bring the same before the magistrate (Penal Code Section 1523) Continued on next page LD 16: Chapter 2 – Warrant Searches and Seizures 2-3 Introduction to Warrant Searches, Continued Benefits of As a general rule, the courts have found searches and seizures to be obtaining reasonable and therefore lawful when authorized by a valid warrant. a search warrant The burden is on the defendant to prove the illegality of any search executed with a search warrant. Statutory Penal Code Section 1524 presents the statutory grounds for issuance of a grounds search warrant. for a search warrant When the property or thing... Penal Code Section was stolen or embezzled. 1524(a)(1) was used as the means of committing a felony. 1524(a)(2) is in the possession of any person with the intent to use 1524(a)(3) it as a means of committing a public offense, or in the possession of another to whom the item may have been delivered for the purpose of concealing it or preventing its being discovered. constitutes evidence that tends to show a felony has 1524(a)(4) been committed, or tends to show that a particular person has committed a felony. consists of evidence that tends to show that sexual 1524(a)(5) exploitation of a child (Penal Code 311.1), or the possession of matter depicting sexual conduct of a person under the age of 18 years (Penal Code 311.11), has occurred or is occurring. Continued on next page 2-4 LD 16: Chapter 2 – Warrant Searches and Seizures Introduction to Warrant Searches, Continued Statutory Penal Code Section 1524 presents the statutory grounds for issuance of a grounds search warrant. for a search warrant When the property or thing... Penal Code (continued) Section when there is a warrant to arrest a person. 1524(a)(6) is a sample of blood that constitutes evidence that 1524(a)(13) tends to show a violation of Section 23140, 23152, or 23153 of the Vehicle Code and the person from whom the sample is being sought has refused an officer’s request to submit to, or has failed to complete, a blood test as required by Section 23612 of the Vehicle Code, and the sample will be drawn from the person in a reasonable, medically approved manner. are controlled substances or a device, contrivance, 1524(a)(15) instrument, or paraphernalia used for unlawfully using or administering a controlled substance pursuant to the authority described in Section 11472 of the Health and Safety Code. ` NOTE: Use Penal Code Section 1524(a)(4) to seize evidence such as rent receipts to show possession or control of the premises or computers. NOTE: Penal Code Section 311.2 presents additional authority to obtain a search warrant to seize child pornography. Continued on next page LD 16: Chapter 2 – Warrant Searches and Seizures 2-5 Introduction to Warrant Searches, Continued Content of As stated in Penal Code Sections 1529 and 1533, the following information a search must appear in the search warrant: warrant  The names of all those who have sworn that the facts presented as probable cause are true  The statutory grounds for issuing the warrant  Descriptions of the places and/or persons to be searched  Descriptions of the things or property to be seized  The magistrate’s signature  The date issued  An indication by magistrate if nighttime service is authorized 2-6 LD 16: Chapter 2 – Warrant Searches and Seizures Probable Cause to Search Introduction Before they can obtain a search warrant, peace officers must be able to provide a judge with specific facts that meet the Fourth Amendment’s requirement of probable cause. Constitutional The Fourth Amendment of the U.S. Constitution clearly states: requirement of probable The right of the people to be secure in their persons, houses, papers, and cause effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Probable In the search warrant context, probable cause to search means enough credible cause to information to provide a fair probability that the object or person the peace search officers seek will be found at the place they want to search. Officer It is possible for an activity which might otherwise appear innocent to the training and general public to amount to probable cause to a peace officer. experience A peace officer’s training and experience may enter the equation for determining probable cause. Facts must be seen and weighed as understood by a reasonable officer. Collective Probable cause may be based on the collective knowledge of all the officers knowledge involved in an investigation, and all the inferences which may reasonably be drawn from this information, with that particular officer’s training and experience. Continued on next page LD 16: Chapter 2 – Warrant Searches and Seizures 2-7 Probable Cause to Search, Continued Probable Probable cause to search differs in content, but not in degree of certainty, from cause to probable cause to arrest. search vs. probable Search Warrants Arrest Warrants cause to arrest Peace officers must articulate probable Peace officers must articulate cause that: probable cause that:  a crime has been committed, and  a crime has been committed, and  evidence concerning the crime or  the individual to be arrested the identity of the perpetrator is committed that crime. located at the place to be searched. Elements of To establish probable cause, peace officers must directly or circumstantially probable show that certain required elements exist. The following table identifies the cause to three required elements of probable cause to search. search To establish probable Rationale Examples cause to search, there must be a fair probability that... a crime occurred. There must be at least a  Person sold drugs to fair probability that a an undercover crime has occurred or, in officer. some cases, will occur.  A person purchased a large amount of chemicals that could be used for a clandestine lab. Continued on next page 2-8 LD 16: Chapter 2 – Warrant Searches and Seizures Probable Cause to Search, Continued Elements of To establish Rationale Examples probable probable cause to cause to search, there must search be a fair probability (continued) that... evidence pertaining to Officers must establish  Information from a the crime exists, and that evidence of a crime victim that a gun was exists. This can be displayed during a accomplished by direct robbery. evidence, circumstantial  Stolen property. evidence, or by  Existence of items reasonable inference. commonly used to commit or facilitate a crime (e.g., drug paraphernalia). the evidence is Officers must establish  A reliable source saw located at the place to that the evidence was the evidence at the be searched. taken to, or produced at, location. the place to be searched.  The person goes This can be directly to a location accomplished by direct after a crime has evidence, circumstantial been committed. evidence, or by  The location is one reasonable inference. where a criminal might likely hide incriminating evidence. Continued on next page LD 16: Chapter 2 – Warrant Searches and Seizures 2-9 Probable Cause to Search, Continued Related To better understand probable cause as it relates to searches and seizures, terms peace officers need to understand the following terms. Reasonable inference is the act of drawing a conclusion from a fact; it is similar to making a presumption (e.g., seeing smoke and inferring there is a fire). Direct evidence is evidence that proves a fact directly, without an inference or presumption (e.g., the sale of a controlled substance to an undercover officer). Circumstantial evidence is evidence that proves a fact indirectly, that is, personal knowledge or observations from which deductions must be drawn by the jury or court (e.g., partial six-pack of beer found on the car seat supports inference that someone in the car has been drinking). NOTE: Whether evidence is direct or circumstantial depends on the fact to be proven. Continued on next page 2-10 LD 16: Chapter 2 – Warrant Searches and Seizures Probable Cause to Search, Continued Examples An officer found out that a man bought 400 pounds of iodine chips under an assumed name and took it to a remote location. Even though the man’s behavior was legal, the officer’s training and experience investigating clandestine drug labs led the officer to reason that there was a fair probability that evidence of illegal methamphetamine manufacturing would be discovered at that location. Neighbors complained about a run-down garage with stripped cars in back and lots of activity during normal work hours as well as unusual hours at night. Most of the reported activity did not involve pumping gas or other typical gas station activities. Officers had suspected the existence of a stolen car “chop shop” within that particular neighborhood that was tied to gang activity. Although nothing illegal had taken place at the site, this information contributed toward probable cause to obtain a search warrant. LD 16: Chapter 2 – Warrant Searches and Seizures 2-11 Execution of a Search Warrant Introduction Even if sufficient probable cause has been established and a search warrant has been issued, evidence can still be excluded if the warrant itself is not executed within the law. Securing Under very limited circumstances peace officers may secure a residence while an area in the process of obtaining a search warrant. In addition to probable cause to pending search, they also need exigencies, that is, a belief, based on the surrounding issuance circumstances or information at hand, that the evidence will likely be of a search destroyed or removed before a search warrant can be obtained. warrant  An area may be secured pending issuance of a search warrant if the suspect has been arrested inside the location.  An area may be secured pending issuance of a search warrant if companions of the suspect may destroy items sought upon learning of the arrest. NOTE: Refusal of consent to enter, by itself, does not provide justification to secure the premises pending issuance of a search warrant. Continued on next page 2-12 LD 16: Chapter 2 – Warrant Searches and Seizures Execution of a Search Warrant, Continued Examples Undercover officers arranged to purchase a kilo of cocaine. The seller, after showing a sample and seeing the money, drove to his supplier’s residence a few miles away, obtained the cocaine, returned to the officers, made the sale, and was arrested. Other officers, who followed the seller and kept the supplier’s residence under surveillance, entered and secured the residence pending procurement of a search warrant. A male suspect was working with a female suspect selling drugs from the woman’s residence. A few blocks from the woman’s house, in public and in front of onlookers, police stopped the male suspect and arrested him with drugs he had admittedly obtained from his female partner. The officers had reason to believe that the female partner might learn of the arrest or become suspicious when the male suspect did not return as scheduled. The circumstances were sufficient to justify entering and securing the residence while waiting for a search warrant. Continued on next page LD 16: Chapter 2 – Warrant Searches and Seizures 2-13 Execution of a Search Warrant, Continued Detaining If the place being secured is occupied when peace officers enter, they will suspects need probable cause to arrest if they take the suspect away or keep the suspect pending there for an unreasonable period while the warrant is obtained. issuance of a search Without probable cause to arrest an individual, peace officers are only entitled warrant to detain the suspect temporarily while they determine the person's involvement. Continued on next page 2-14 LD 16: Chapter 2 – Warrant Searches and Seizures Execution of a Search Warrant, Continued Time Penal Code Section 1534 states that the search warrant shall be executed and limit for returned within 10 days from issuance. service The 10-day time limit means that peace officers have 10 days within which to execute the warrant, beginning with the day after the warrant is issued and running until midnight of the 10th day, with no exceptions for weekends or holidays. NOTE: It is a felony for a peace officer to willfully disclose the existence of a search warrant, prior to its execution, for the purpose of preventing the search or seizure. (Penal Code Section 168) Failure to If the 10-day period has expired, peace officers must either: make a timely  obtain a new warrant execution  resubmit the expired warrant so it may be reissued and revalidated Failure to The return of the warrant means returning the warrant and a written inventory make a of the property taken to the magistrate (PC 1537). timely return The rule for return of the warrant is slightly different than for execution. If the 10th day falls on a weekend or holiday, then peace officers are entitled to postpone returning the warrant until the next business day. A late return will not normally invalidate the warrant or result in suppression, particularly if it happens unintentionally, unless the defendant can show prejudice. Time of Normally, a search warrant may be served only between the hours of 7:00 a.m. service and 10:00 p.m. Continued on next page LD 16: Chapter 2 – Warrant Searches and Seizures 2-15 Execution of a Search Warrant, Continued Nighttime If peace officers can show good cause, the magistrate may, at the magistrate’s service discretion, insert a direction in a search warrant that it may be served at any time of day or night. The main point of the good cause requirement is to ensure that the request for nighttime service is specifically brought to the attention of the magistrate so that the magistrate will have to make a conscious decision whether such a particularly abrasive intrusion is appropriate. Examples of good cause include situations where:  nighttime service will decrease danger to the peace officers  a drug sale occurred at the search location at night  prompt execution might preclude murders  the property sought will likely be gone, sold, or removed by dawn  the stolen items are primarily perishable or easily disposable goods As long as the search begins before 10:00 p.m., no nighttime authorization is necessary, even though the search may continue on well beyond that hour. Knock Before entering a private dwelling to execute a search warrant, officers must and notice comply with the requirements of knock and notice as set forth in Penal Code rule Section 1531. Knock and notice simply means that before entering a dwelling to serve a search warrant, officers must give notice to persons inside through certain actions. Continued on next page 2-16 LD 16: Chapter 2 – Warrant Searches and Seizures Execution of a Search Warrant, Continued Knock To complete the prescribed procedures for knock and notice, peace officers and notice must: procedure  knock or otherwise announce their presence  identify themselves as peace officers  state their purpose  demand entry  wait a reasonable amount of time  if necessary, forcibly enter the premises Wait/refusal When executing a search warrant, there is a specific requirement that before requirement forcing entry, peace officers must be refused admittance. Refusal may be based on:  a verbal statement  individual conduct  the passage of a reasonable amount of time NOTE: The amount of time that is considered reasonable will depend on all the circumstances. Approximately one minute would be a safe period in most cases, but it can be less, especially if peace officers know that someone is inside and awake. Forcible If the knock and notice requirements are met, including refusal, peace officers entry to may legally break in or force entry into premises to execute a search warrant. execute (Penal Code Section 1531) a search warrant The purpose of the knock and notice requirements is to protect the privacy of occupants in their home and to minimize the possibility of a violent confrontation between peace officers and private individuals. Continued on next page LD 16: Chapter 2 – Warrant Searches and Seizures 2-17 Execution of a Search Warrant, Continued Inner While officers must comply with knock and notice at outer doors to a doors residence, there is no legal requirement to comply with knock and notice at inner doors. NOTE: While there may be no legal requirement to comply with knock and notice at inner doors, there may be tactical reasons why it is appropriate. Exceptions The law allows peace officers to enter private property unannounced if they to knock can demonstrate that compliance with the knock and notice requirements and notice would be futile, or that compliance could result in:  harm to the officers or other individuals (e.g., hostages  the destruction of evidence Only the officers serving the warrant can determine if the circumstances they face justify non-compliance with the knock and notice requirements of law. The issuing magistrate does not have the authority in the warrant to exempt officers from giving knock and notice and the legality of an officer’s decision to omit knock and notice would likely be reviewed by a court to determine if it met a lawful exception. Examples Officers went to a motel room with a warrant to search the building for illegal drugs. After complying with initial knock and notice requirements and while waiting for a response from the occupants, officers heard muffled voices and the sound of a toilet flushing twice. Because the officers had reason to believe that suspects were attempting to destroy evidence, they could lawfully force entry. Officers were sent to an apartment with a warrant to search for illegal weapons. The resident of the apartment had been arrested in the past by the same officers for armed robbery. The officers had specific reasons to believe the suspect was currently armed and would flee if given the opportunity. For reasons of officer safety and to prevent escape, the officers announced their presence but entered without waiting for a response. Continued on next page 2-18 LD 16: Chapter 2 – Warrant Searches and Seizures Execution of a Search Warrant, Continued Ruse Peace officers may use a false identity, a ruse or trick to obtain consent to entry enter as long as they already have a judicially-authorized right to enter, i.e., a search warrant. Example: Officers with a warrant set off firecrackers to simulate gunfire, then asked the occupants inside the fortress-like house to come outside to check their vehicles for damage. Once the barricades to the home were down, the officers announced their identity and authority to conduct a search. Presenting If the occupant is present, peace officers should show the occupant the original the search warrant and give the occupant a copy. warrant If no one is home, a copy of the warrant may be left in a conspicuous place. Likewise, officers must leave behind a detailed list of the property taken, whether anyone is home or not. (Penal Code Section 1535) NOTE: In California there is no statutory requirement to present a copy of the warrant to the occupant. Therefore, failure to do so will not result in the suppression of any evidence seized. Continued on next page LD 16: Chapter 2 – Warrant Searches and Seizures 2-19 Execution of a Search Warrant, Continued Scope and During a search authorized by a search warrant, officers are limited by the specificity of information specified in the search warrant. (This is known as the scope of the a search search.) warrant Search warrants must include specific:  statutory grounds for issuance  identification of the area(s) or person(s) that may be searched  identification of the item(s) to be seized If an area is searched or an item is seized that is beyond the scope of the warrant, the evidence may be excluded later at trial. Detaining Peace officers may detain and frisk/pat search persons who are present and persons on have demonstrated a connection with the premises. Examples of such a the premises connection include a person who:  is already inside the premises  has a key to enter the premises freely  enters the premises without knocking Someone’s mere arrival, by itself, at premises where a search is being conducted does not provide enough connection to justify a detention, let alone a cursory/frisk/pat search. NOTE: If searching a commercial establishment, peace officers may not detain everyone who is present, but rather only those persons who appear connected to the suspected criminal activity. Continued on next page 2-20 LD 16: Chapter 2 – Warrant Searches and Seizures Execution of a Search Warrant, Continued Searching When a warrant authorizes the search of a residence, vehicle, or person, it containers automatically authorizes the search of any thing, place, or container inside that residence or vehicle, or on that person, where the object of the search might be located. If, however, the warrant was not for a general area, but instead was for a particular container, that container would also have to be described as completely as possible in the warrant. Examples A search warrant authorized the search of a residence for heroin and indications of ownership and identification. Peace officers may search any place that might contain these items, including any closed containers. A search warrant authorized the search for a particular suspect in the home of his ex-wife. Peace officers may search containers within the residence only if the containers are large enough for the suspect to hide in. Continued on next page LD 16: Chapter 2 – Warrant Searches and Seizures 2-21 Execution of a Search Warrant, Continued Nexus Under the nexus rule, officers may seize items not listed in the warrant when: rule  the items are discovered while the officers are conducting a lawful search for the listed evidence, and  they have probable cause to believe the item is contraband, evidence of criminal behavior, or would otherwise aid in the apprehension or conviction of the criminal Nexus means a reasonable connection or link between two or more items. Continued on next page 2-22 LD 16: Chapter 2 – Warrant Searches and Seizures Execution of a Search Warrant, Continued Examples During a warrant search for narcotics, officers found a sawed-off shotgun in the trunk of the suspect’s car. Although the weapon was not named in the search warrant, it was seized by the officers as an illegal weapon. While searching a suspect’s residence on a murder case, officers seized a pair of shoes with a “waffle-like” pattern on the soles even though the shoes were not described in the search warrant. The seizure of the shoes was legal because one of the officers had personal knowledge that waffle-like shoeprints were left at the scene of the crime by the suspect. LD 16: Chapter 2 – Warrant Searches and Seizures 2-23 Chapter Synopsis Learning need To search for and seize evidence legally, peace officers must know the rules and requirements for obtaining and executing a search warrant. Probable Peace officers must establish probable cause that: cause and search  a crime has been committed warrants  evidence of the crime exists [16.02.2]  the evidence sought is located at the place to be searched Securing Under very limited circumstances peace officers may secure a residence while an area in the process of obtaining a search warrant. In addition to probable cause to [16.02.7] search, they also need exigencies, that is, a belief, based on the surrounding circumstances or information at hand, that the evidence will likely be destroyed or removed before a search warrant can be obtained. Time Penal Code Section 1534 states that the search warrant shall be executed and limitations returned within 10 days from issuance, beginning with the day after the [16.02.8] warrant is issued and running until midnight of the 10th day, with no exceptions for weekends or holidays. A search warrant may be served only between the hours of 7:00 a.m. and 10:00 p.m., unless designated for nighttime service by the magistrate issuing the warrant. Continued on next page 2-24 LD 16: Chapter 2 – Warrant Searches and Seizures Chapter Synopsis, Continued Knock and Before entering a private dwelling to execute a search warrant, officers must notice comply with the requirements of knock and notice. Peace officers must: [16.02.9]  knock or otherwise announce their presence  identify themselves as peace officers  state their purpose  demand entry  wait a reasonable amount of time  if necessary, forcibly enter the premises Nexus Nexus means a reasonable connection or link between two or more items. The rule nexus rule states that officers may seize items not listed in the warrant when: [16.02.10]  the items are discovered while the officers are conducting a lawful search for the listed evidence, and  they have probable cause to believe the item is contraband, evidence of criminal behavior, or would otherwise aid in the apprehension or conviction of the criminal LD 16: Chapter 2 – Warrant Searches and Seizures 2-25 Workbook Learning Activities Introduction To help you review and apply the material covered in this chapter, a selection of learning activities has been included. No answers are provided. However, by referring to the appropriate text, you should be able to prepare a response. Activity 1. List at least four different statutory grounds for the issuance of a search questions warrant. 2. Peace officers patrolling a neighborhood notice there is heavy foot traffic in and out of one garden apartment during the day. This continues for several consecutive days, and officers note that visitors stay only a few moments each and seem to glance around as they leave. Neighbors have called police to report that the numerous visitors continue up until about 2:00 a.m. A reliable source has indicated that the residents of the apartment are selling cocaine. Do you think officers have probable cause to seek a search warrant? Why? What is the next step the officers should take? Continued on next page 2-26 LD 16: Chapter 2 – Warrant Searches and Seizures Workbook Learning Activities, Continued Activity 3. Officers are in the process of serving a search warrant to look for questions handguns in a suburban residence. They believe that the residents, a man, (continued) a woman, and a 5-year-old boy, are at home. What, if any, knock and notice actions should the officers take? Explain your answer. If officers give notification of their presence, and there is no response within 45 seconds, what do you think they should do? Would your answer vary if it were the middle of the night? The middle of day? 4. Peace officers enter an apartment with a search warrant for a murder weapon. While conducting the authorized search, they notice a small child cowering in a corner, covered with bruises and new welts. As one officer approaches the child, she is shielded by her mother who says, “There are no weapons here.” What, if anything, should the officers do about the child? Does the nexus rule apply? LD 16: Chapter 2 – Warrant Searches and Seizures 2-27 Workbook Corrections Suggested corrections to this workbook can be made by going to the POST website at: www.post.ca.gov Continued on next page 2-28 LD 16: Chapter 2 – Warrant Searches and Seizures Workbook Corrections, Continued Student notes LD 16: Chapter 2 – Warrant Searches and Seizures 2-29  Chapter 3 Warrantless Searches and Seizures Overview Learning need When certain conditions are met, officers may lawfully search and seize evidence without a search warrant. For evidence to be admissible at trial, officers must have a clear understanding of the legal requirements for warrantless searches. Learning The chart below identifies the student learning objectives for this chapter. objectives After completing the study of this chapter, the student Objective will be able to: ID  recognize why a plain view seizure does not constitute a 16.03.1 search  recognize the legal requirements for seizure of items in 16.03.2 plain view  recognize the conditions and circumstances where 16.03.3 warrantless searches and seizures are considered reasonable and legal  recognize the scope and necessary conditions for conducting the following types of warrantless searches: - cursory/frisk/pat search 16.03.4 - consent searches 16.03.5 - searches pursuant to exigent circumstances 16.03.6 - searches incident to arrest 16.03.7 - probation/parole searches 16.03.8 Continued on next page 3-1 LD 16: Chapter 3 – Warrantless Searches and Seizures Overview, Continued In this chapter This section focuses on warrantless searches and seizures. Refer to the following chart for specific topics. Topic See Page Plain View Seizures 3-3 Warrantless Searches in General 3-9 Cursory/Frisk/Pat Search 3-11 Consent Searches 3-17 Exigent Circumstance Searches 3-25 Searches Incident to Arrest 3-31 Probation/Parole Searches 3-35 Chapter Synopsis 3-40 Workbook Learning Activities 3-42 LD 16: Chapter 3 – Warrantless Searches and Seizures 3-2 Plain View Seizures Introduction Peace officers do not have to blind themselves to what is in plain view if an item they see can be associated with a crime or criminal behavior, simply because they do not have a warrant. Leadership Peace officers are entrusted with unusual powers and are subject to the highest level of public scrutiny. This is an awesome responsibility. As leaders, peace officers have to maintain balance between their obligation to protect themselves and the community while protecting everyones’ individual rights. No Fourth In a constitutional sense, when an officer sees an item in plain view, from a Amendment place the officer has a lawful right to be, no search has taken place. The protection owner or possessor obviously has no reasonable expectation of privacy for items which are in plain view. Without an expectation of privacy, the owner or possessor has no Fourth Amendment protection. Requirements Peace officers must meet certain requirements before an item in plain view for seizure may be seized legally and used as evidence. Peace officers must have:  probable cause  a lawful right to be in the location  lawful access to the item Continued on next page 3-3 LD 16: Chapter 3 – Warrantless Searches and Seizures Plain View Seizures, Continued Probable Even though peace officers need not appear before a magistrate, they still must cause for have enough facts to provide probable cause, that is, a fair probability that the seizure item in plain view is contraband or evidence of a crime. The incriminating character of the item must also be immediately apparent to the officer. NOTE: Officers may use all of their senses, not just sight, to obtain probable cause. The plain view doctrine, therefore, can also include items they can smell, hear, or touch from a lawful position. Observation Peace officers must have a lawful right to be at the location from which they from a lawful initially observe the item. That is, the observation must be made from a location vantage point that does not violate an individual’s reasonable expectation of privacy. Public Any area the general public or some members of the public have been given access either express or implied permission to be in is considered a public access areas area. Peace officers have the legal right to make observations from any public access area at any time. Continued on next page LD 16: Chapter 3 – Warrantless Searches and Seizures 3-4 Plain View Seizures, Continued Examples Stereo speakers, matching the description of a stolen item, were left on the back seat of a vehicle that was parked in a lot open to general pedestrian traffic. The officer’s observations were made from the public access area around the car. Contraband was observed in a business that was open to the public. The officer’s observations from the area were legal since the general public was free to be in the same area. Surveillance It is not a search for peace officers to conduct surveillance of private premises or to follow people who leave the premises, as long as the observations are made from a place where the officer has a right to be. Videotaping a suspect’s activities is a form of surveillance. Continued on next page 3-5 LD 16: Chapter 3 – Warrantless Searches and Seizures Plain View Seizures, Continued Sensory If officers are in a place where they have a lawful right to be, and if they use a aids device that is nonintrusive to aid or enhance their observations, their observations of items or areas in plain view are lawful, despite the enhancement. The chart below presents further information regarding sensory aids. Devices Guidelines Flashlights May be used as long as the officer is using them Night vision devices from a lawful observation point. Binoculars May be used to enhance only what can already be seen by the naked eye from a lawful observation point Dogs Contraband-sniffing dogs are considered nonintrusive when they are in a place they have a lawful right to be. If a specially trained dog reacts positively to an item, this normally provides the officer with probable cause to search or seize the article, although a search warrant may be required in some circumstances. Abandoned If an item has been abandoned by the owner, the owner has relinquished any property expectation of privacy over the item. The Fourth Amendment does not protect articles or an area that has been abandoned by its owner. NOTE: Trash placed in a position for pick-up outside the curtilage of the residence is considered abandoned. Continued on next page LD 16: Chapter 3 – Warrantless Searches and Seizures 3-6 Plain View Seizures, Continued Lawful Simply because an officer can see an object in plain view from a lawful access location does not automatically mean the officer may legally enter private property without a warrant to seize it, even if the object is obviously contraband or evidence of a crime. The officer also needs lawful access. Lawful access to private property is most commonly obtained when:  the officer’s entry is based on consent  the officer’s entry is based on exigent circumstances, for example, a reasonable belief that the evidence will be destroyed if entry is delayed in order to obtain a warrant  the officer has lawfully entered the area for some other purpose (e.g., to conduct a parole or probation search, or an administrative or regulatory search, etc.) Continued on next page 3-7 LD 16: Chapter 3 – Warrantless Searches and Seizures Plain View Seizures, Continued Examples An officer responding to a burglary call talked to a neighbor who said two teenagers had just fled with a TV. While investigating, the officer found an open window on the property with a box on the ground beneath it containing a TV. The officer entered the property to see if any burglars or victims might still be inside. Once inside, the officer found a clandestine drug lab in plain view. Because the entry was lawful based on exigent circumstances, observation and seizure of the lab was also lawful. Two officers conducting a valid, warrantless administrative inspection of an automobile repair shop came across evidence of drugs in plain view and through plain smell. The officers had legal authority to seize the evidence because they were conducting other legal business in that location. LD 16: Chapter 3 – Warrantless Searches and Seizures 3-8 Warrantless Searches in General Introduction Under the Fourth Amendment, warrantless searches of private property are presumptively illegal. However, case law has created some exceptions to the warrant requirement. Warrantless searches will be upheld if the peace officer’s conduct came within one of these exceptions. Fourth The first clause of the Fourth Amendment states people have a right to be Amendment protected from unreasonable searches and seizures by government agents. protection 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. Case law The Fourth Amendment does not give individuals an absolute right to privacy, exceptions and it does not prohibit all searches — only those that are unreasonable. The courts have identified certain specific conditions and circumstances where warrantless searches and seizures are considered reasonable and, therefore, legal. In addition to plain view seizures, these exceptions to the usual warrant requirement include:  cursory/frisk/pat down  consent searches  searches pursuant to exigent circumstances  searches incident to custodial arrest  probation/parole searches Continued on next page 3-9 LD 16: Chapter 3 – Warrantless Searches and Seizures Warrantless Searches in General, Continued Establishing In deciding whether a warrantless search or seizure was legal, courts will the basis always consider the totality of the circumstances. However, peace officers for a must always have specific facts to demonstrate the search or seizure fell within warrantless one of the exceptions to the warrant requirement. search or seizure LD 16: Chapter 3 – Warrantless Searches and Seizures 3-10 Cursory/Frisk/Pat Searches Introduction Normally, non-consensual searches are not permitted during a detention. However, if an officer has a factual basis to suspect the person being detained poses a danger to the officer, or is carrying a concealed weapon or an object that could be used as a weapon, the officer is justified in conducting a limited search for the weapon without a warrant. Definition A cursory/frisk/pat search is a strictly limited search for weapons of the outer clothing of a person who has been lawfully detained. A cursory/frisk/pat search is a search for possible weapons only, not a search for contraband or other evidence. Necessary Cursory/frisk/pat searches of detainees are allowed to prevent unexpected conditions assault on peace officers. But a generalized, non-specific concern for officer safety is not sufficient reason to allow for the intrusion of a cursory/frisk/pat search. For a cursory/frisk/pat search to be lawful:  the person must be lawfully detained for an investigative purpose  the searching officers must be able to articulate specific facts which caused them to reasonably believe the person is dangerous or may be carrying a weapon Scope The scope of a cursory/frisk/pat search is limited to outer clothing for weapons of the or potential weapons only. search Once the officer conducting the search realizes an object is not a weapon, the officer cannot further manipulate the object; the officer must move on. Any additional feeling, grabbing, or manipulating of the item is outside the scope of a cursory/frisk search and will be considered an illegal search. Continued on next page 3-11 LD 16: Chapter 3 – Warrantless Searches and Seizures Cursory/Frisk/Pat Searches, Continued Absolute An officer need not be absolutely certain that the person is armed or certainty potentially dangerous. However, the officer’s suspicion must be reasonable not and based on specific facts. required The following table identifies factors that have been recognized as contributing to the suspicion that the person may be carrying a weapon or pose a danger. Factor Examples Clothing  Bulge in clothing that is the size of a potential weapon  Wearing a heavy coat when the weather is warm Actions  Trying to hide something  Appearing overly nervous  Acting in a threatening manner Prior knowledge  History of carrying weapons or violent behavior Reason for  Stopped in order to investigate a serious, violent, or detention armed offense Companions  Lawful search of companions revealed a weapon or potential weapon Location  Stopped in an area known for violence, or where the officer is unlikely to receive immediate aid if attacked Time of  Stopped during nighttime day/amount of light  Stopped in an area with little or no lighting Ratio  Detainees outnumber officers Continued on next page LD 16: Chapter 3 – Warrantless Searches and Seizures 3-12 Cursory/Frisk/Pat Searches, Continued Contraband If, during a lawful cursory/frisk/pat search for weapons, an item is discovered that is immediately recognized as contraband (based on plain sight, smell, or touch), the officer may seize it. If the person is placed under arrest, the officer may then conduct a full search incident to the custodial arrest. If the item is not immediately recognized as contraband, the officer may not manipulate the suspected area or object further in order to establish its nature, unless the officer is still concerned it may be a weapon or potential weapon. Containers If the officer comes across a container on the person during a cursory/frisk/pat search, the officer is entitled to seize it and open it only if it is reasonable to believe it can be used as a weapon or that it might contain a weapon. Detention alone does not give officers the right to search (open) the container, unless their knowledge and experience provide probable cause to believe that it contains contraband (i.e., they could easily feel that the object was small and resilient like a heroin-filled balloon), since with probable cause