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1. THE DETENTION ( TERRY ) FRISK = PLAIN VIEW = WEAPONS WEAPONS/CONTRABAND 2. CONSENT (KNOWING + VOLUNTARY) 3. PROBABLE CAUSE

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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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slide1

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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