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1. THE DETENTION ( TERRY ) FRISK = PLAIN VIEW = WEAPONS WEAPONS/CONTRABAND 2. CONSENT (KNOWING + VOLUNTARY) 3. PROBABLE CAUSE NO PLUS EXIGENT CIRCUMSTANCES EXIGENT CIRCUMSTANCES SEARCH WARRANT WARRANTLESS

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1. THE DETENTION (TERRY)

FRISK = PLAIN VIEW =

WEAPONS WEAPONS/CONTRABAND

2. CONSENT (KNOWING + VOLUNTARY)

3. PROBABLE CAUSE

NO PLUS

EXIGENT CIRCUMSTANCES EXIGENT CIRCUMSTANCES

SEARCH WARRANT WARRANTLESS

COURT FAVORS PRESUMED UNREASONABLE =

BURDEN ON GOVERNMENT

 SCOPE


Order of assessment
ORDER OF ASSESSMENT

  • State Statute 

  • State Constitution

  • Federal Constitution


Standard for searches
STANDARD FOR SEARCHES

  • Reasonable Expectation of Privacy

  • “Reasonable” Defined:

    • objective standard

    • privacy expectation that society recognizes

  • Scope


  • Rules for plain feel
    RULES FOR PLAIN FEEL

    • Legitimate Basis for Handling Person or Object

    • Inadvertent Discovery

    • Reasonableness of Handling for Context

    • To Search Container Felt Need:

      • probable cause and

      • search warrant or

      • exigent circumstances or

      • consent


    4 th as applied to persons
    4th AS APPLIED TO PERSONS

    • 4TH Applies to Person Seizure

    • Standard is Reasonableness

      • use of excessive force may be unreasonable

      • standard is objective: reasonably objective belief of officer at time and place of seizure


    When a person is seized
    WHEN A PERSON IS “SEIZED

    • Show of Authority

      or

    • Use of Force

    • Must Actually Produce

      the “Stop”

    • Reasonableness


    4 th as applied to property
    4th AS APPLIED TO PROPERTY

    • 4th Applies to Seizure of Property

    • “Seizure” occurs when:

      • meaningful interference with a property right

    • Due Process Applies - 14th


    Standing rule
    STANDING RULE

    • A Privacy Interest in Place Searched

      or

    • A Possessory Interest in Items Seized

    • State May Maintain Inconsistent Theories

    • Statements of Defendant to Assert Right not a Waiver (5th)

    • No Standing if Seizure From Third Party


    Plain view standards
    PLAIN VIEW STANDARDS

    • NB: Real “Plain View” is not a search

    • No 4th Violation in Arriving at Place of View

    • Character as “Evidence” Requires Probable Cause

      • contraband, or

      • evidence of crime


    Flyovers
    FLYOVERS

    • Reasonableness Standard

      • does flyover interfere with normal use of property?

      • does flyover allow viewing of intimate details of use of property?

      • does flyover cause undue: noise, wind, dust or threat of injury?


    Knock and announce
    KNOCK AND ANNOUNCE

    • Part of 4th Inquiry via 14th Due Process

    • Test - Reasonableness:

      • peril to officers

      • risk of loss of evidence

  • Best Practice:

    • set out in affidavit

    • endorsed in warrant

  • May be Reassessed:

    • circumstances at time of service

  • Excessive Property Damage may be Unreasonable

  • Suppress Only if K&A Violations Produces Discovery of Evidence


  • Hiibel v sixth judicial district
    Hiibel v. Sixth Judicial District

    542 US 177, 124 S Ct 2451 (2004)

    (a law which requires detainee to identify self is not vague and does not violate

    4th or 5th Amendments)

    Compare


    Smugglers profile
    SMUGGLERS PROFILE

    • Travels to, from, or through “source city”

    • Last to leave plane

    • Claims no baggage

    • Scans gate area

    • Pays cash for tickets

    • Stay at destination unusually short as compared with flight length


    Limitations on profile conduct
    LIMITATIONS ON PROFILE CONDUCT

    • Length of detention must be brief

      *exception: U.S. v. Montoya de Hernandez

    •  Search is either:

      • with consent - knowing; voluntary, or

      • with probable cause plus search warrant or exigent circumstances

    • Scope:

      • scope of consent, or

      • scope of affidavit and warrant


    Intrusive person seizures test
    INTRUSIVE PERSON SEIZURES – TEST

    COMMUNITY INTEREST IN FAIRLY AND

    ACCURATELY ASSESSING GUILT

    V.

    INDIVIDUAL’S HEALTH, SAFETY, PRIVACY,

    AND BODILY INTEGRITY


    Standards for special needs searches
    STANDARDS FOR “SPECIAL NEEDS” SEARCHES

    • High state interest 

    • Statute serves that interest

    • Warrantless inspection is necessary to regulatory scheme

    • Statute is adequate substitute for search warrant:

      • informs of inspections

      • scope of inspections

      • how to comply 

      • who will conduct

    • Inspections are reasonable in time, scope and intensity


    Vehicle searches absent consent
    VEHICLE SEARCHES (ABSENT CONSENT)

    • There must be probable cause

    • Potential Mobility = exigent circumstances - no warrant required

    • Scope:

      • if probable cause for vehicle = vehicle plus all containers

        • passenger property may be searched if logical receptacle; need not connect passenger to driver, or driver’s conduct

      • if probable cause for container = may search container only

        • exception: if probable cause takes searcher beyond container


    Motorhomes minivans et al
    MOTORHOMES, MINIVANS, ET. AL.

    • MAY BE SEARCHED WARRANTLESS IF:

      • IS BEING DRIVEN, OR

      • CAPABLE OF BEING DRIVEN ON ROADWAY,

        AND

      • IS STATIONARY AT A PLACE NOT REGULARLY USED FOR OVERNIGHT ACCOMMODATION


    Standards for valid roadblocks
    STANDARDS FOR VALID ROADBLOCKS

    • HIGH STATE INTEREST

    •  PROGRAM IS EFFECTIVE IN ADVANCING INTEREST

    • DEGREE OF INTRUSION MINIMAL


    Standards for valid vehicle inventory
    STANDARDS FOR VALID VEHICLE INVENTORY

    • Legal basis for vehicle seizure

    • Clear departmental inventory policy

    • Officer must comply with policy

    • Search must be to protect property

    • Scope of policy:

      • may be “all or nothing”

      • may be some officer discretion

        (container which could contain valuables)


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