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Basic Applied 4 th & 5 th Amendment law in context to . FOURTH AMENDMENT.

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fourth amendment
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 PERSON OR THINGS TO BE SEIZED.”
fifth amendment
FIFTH AMENDMENT
  • NO PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS CRIME, UNLESS ON A PRESENTMENT OR INDICTMENT OF A GRAND JURY, EXCEPT IN CASES ARISING IN THE LAND OR NAVAL FORCES, OR IN THE MILITIA, WHEN IN ACTUAL SERVICE IN TIME OF WAR OR PUBLIC DANGER; NOR SHALL ANY PERSON BE SUBJECT FOR THE SAME OFFENSE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB; NOR SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF; NOR BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION.
how to successfully seize evidence1
HOW TO SUCCESSFULLY SEIZE EVIDENCE?
  • OBTAIN A WARRANT
  • AFTERALL, THE FOURTH AMENDMENT WAS DESIGNED TO REQUIRE WARRANTS
how to successfully seize evidence2
HOW TO SUCCESSFULLY SEIZE EVIDENCE?

OBTAIN A WARRANT

OR

SUPPORT ALL ACTIONS BY PROVIDING SUFFICIENT INFORMATION TO SATISFY EVERY JUDGE SO THE EVIDENCE WILL NOT BE LOST.

slide12
WHY?
  • A SEARCH PURSUANT TO A WARRANT IS PRESUMED TO BE REASONABLE. THIS PRESUMPTION PLACES THE BURDEN ON THE DEFENDANT TO PROVE THE SEARCH WAS ILLEGAL.
slide13
WHY?
  • A SEARCH PURSUANT TO A WARRANT IS PRESUMED TO BE REASONABLE. THIS PRESUMPTION PLACES THE BURDEN ON THE DEFENDANT TO PROVE THE SEARCH WAS ILLEGAL.
  • A SEARCH WITHOUT A WARRANT IS PRESUMED TO BE UNREASONABLE. THIS PRESUMPTION PLACES THE BURDEN ON THE PEOPLE TO PROVE THE SEARCH WAS LEGAL.
3 levels of police contact1
3 LEVELS OF POLICE CONTACT
  • LEVEL 1: CONSENSUAL ENCOUNTER
    • NO FOURTH AMENDMENT SEIZURE
3 levels of police contact2
3 LEVELS OF POLICE CONTACT
  • LEVEL 1: CONSENSUAL ENCOUNTER
    • NO FOURTH AMENDMENT SEIZURE
  • LEVEL 2: INVESTIGATIVE DETENTION
    • FOURTH AMENDMENT SEIZURE
    • LIMITED SCOPE AND DURATION
    • MUST BE SUPPORTED BY REASONABLE SUSPICION OF CRIMINAL ACTIVITY
3 levels of police contact3
3 LEVELS OF POLICE CONTACT
  • LEVEL 1: CONSENSUAL ENCOUNTER
    • NO FOURTH AMENDMENT SEIZURE
  • LEVEL 2: INVESTIGATIVE DETENTION
    • FOURTH AMENDMENT SEIZURE
    • LIMITED SCOPE AND DURATION
    • MUST BE SUPPORTED BY REASONABLE SUSPICION OF CRIMINAL ACTIVITY
  • LEVEL 3: ARRESTS
    • MUST BE SUPPORTED BY PROBABLE CAUSE
investigative detensions
INVESTIGATIVE DETENSIONS
  • Fourth Amendment challenges can be avoided if a “stop & frisk” is maintained in a consensual atmosphere throughout an encounter.
  • Recorded documentation of the consensual encounter through audio/video recorders may be done to capture the words and conduct usedto assist with constitutional scrutiny.
investigative detensions1
INVESTIGATIVE DETENSIONS
  • “Unprovoked Flight” by an individual upon seeing a police officer approaching in a “High Crime Area” will support reasonable suspicion to stop a person, but not necessarily a frisk of the person.

Illinois v. Wardlow, 528 U.S. 119 (2000)

state v weaver 2007 ut app 292 169 p 3d 760
State v. Weaver, 2007 UT App 292, 169 P.3d 760
  • EXCEEDING THE SCOPE OF THE STOP
    • ONCE THE PURPOSE OF THE STOP IS COMPLETED, THE OFFICER MUST END THE ENCOUNTER AND PERMIT THE DRIVER TO LEAVE
searches seizures
SEARCHES & SEIZURES
  • WARRANTS ARE REQUIRED…
  • HOWEVER, EXCEPTIONS DO EXIST
    • ADMINISTRATIVE
    • WAIVER (CONSENT GIVEN)
    • FORFEITURE
    • EXIGENCY
administrative search
ADMINISTRATIVE SEARCH
  • The search must be for an administrative purpose, rather than part of a criminal investigation to secure evidence to a crime.
    • Airplane Boarding Searches
    • Jail Booking
    • Vehicle Inventories
    • Vehicle Safety Checkpoints
waiver
WAIVER
  • Knowing, Understanding, and Voluntary giving up of a right.
    • Consent
    • Encounters – Frisks – Entry – Search
    • Third Party Consents
      • Spouse – Parent – Child – Friend – Hotels – Business Records
forfeiture
FORFEITURE
  • The loss of an expectation of privacy through conduct
    • Plain Sight – Plain Feel – Plain Odor
    • Open Fields – Fly Over
    • Jails
    • Trash Out For Collection
exigency
EXIGENCY
  • Imminent danger to life and property
    • Detentions
    • Frisks
    • Arrests
    • Cars
    • Hot Pursuit
    • Crimes in Progress
    • Community Caretaking
      • Medical Emergencies
searching the person search incident to arrest
SEARCHING THE PERSON:SEARCH INCIDENT TO ARREST
  • Why do officers search an arrestee?
    • 1) Officer safety (to remove any weapons)
    • 2) To seize any evidence on the Arrestee’s person to prevent its concealment and destruction.
  • Chimel v. California, 395 U.S. 752 (1969)
search incident to arrest cont d
SEARCH INCIDENT TO ARREST – CONT’D
  • Where can you search?
    • 1) The arrestee’s person
    • 2) The area from which the arrestee might gain possession of a weapon or destructible evidence.

Chimel v. California

search incident to arrest cont d1
SEARCH INCIDENT TO ARREST – CONT’D
  • What about bags?
    • Searches of backpacks and bags worn by arrestees at the time of arrest have been upheld in other jurisdictions.

People v. Boff, 766 P. 2d 646, 648-649 (1988)

senario 1
SENARIO #1

REFERENCE HANDOUT PROVIDED

senario 1 key issues
SENARIO #1Key Issues
  • 1) Was the seizure of the handgun lawful?
  • 2) Was this a consensual stop, an investigative detention, or an arrest?
  • 3) If this was an investigative detention, was it limited in scope and duration and was it supported by reasonable suspicion of criminal activity?
  • 4) Can the handgun evidence be suppressed?
senario 1 key issues1
SENARIO #1Key Issues
  • 1) Was the seizure of the handgun lawful?
    • YES, AS IT WAS A CONSENT SEARCH.
  • 2) Was this a consensual stop or an

investigative detention?

    • INVESTIGATIVE DETENTION.
      • Motioning someone to come over and saying, “Hey come over.”
senario 1 key issues2
SENARIO #1Key Issues
  • 3) If this was an investigative detention, was it limited in scope and duration and was it supported by reasonable suspicion of criminal activity?
    • NOT SUPPORTED BY REASONABLE SUSPICION. U.S. v. Dell
  • 4) Can the handgun evidence be suppressed?
    • YES, AS THE STOP WAS NOT VALID, ALL SUBSEQUENT EVIDENCE SEIZED WAS SUPRESSED. U.S. v. Dell
united states v dell reasonable suspicion review
United States v. Dell Reasonable Suspicion Review
  • THREE OBSERVATIONS:
  • 1) Defendant was in what the Officer thought to be a high-crime area, particularly with regard to vehicle break-ins.
  • 2) Defendant was peering into the windows of a legally parked vehicle.
  • 3) Defendant walked away from the parked car upon seeing the patrolling Officer approaching.
united states v dell reasonable suspicion review1
United States v. Dell Reasonable Suspicion Review
  • 1) No statistics or testimony to support the area as a high-crime area, other than the Officer commenting he had a 6 ½ year work history in the area.
  • 2) Conduct observed was so innocuous and so very much in the realm of ordinary behavior that it would not lead a reasonable officer to suspect that a car break-in occurred or was about to occur.
  • 3) Walking away on the sidewalk in the same direction that a police officer is travelling does not speak to anything criminal at all.
united states v dell comments in the court opinion
United States v. DellComments in the Court Opinion
  • “The government’s argument that Mr. Dell’s behavior was ‘inherently suspicious’ is conclusory, and skips the crucial part of reasonable suspicion analysis by failing to ask – answer – why the officer’s observations indicated suspicious criminal behavior.”
  • “The Officer never articulated why his observations led him to suspect criminal activity.”
  • “The Officer demonstrates no connection between his training and experience and the suspicion of illegality.”
united states v dell different opinion possible
United States v. DellDifferent Opinion Possible?
  • REMEMBER: SUPPORT ALL ACTIONS BY PROVIDING SUFFICIENT INFORMATION TO SATISFY EVERY JUDGE SO THE EVIDENCE WILL NOT BE LOST.
    • Consensual contact option?
    • Better articulation of reasonable suspicion
    • Supporting information for high-crime area
    • Relate training and experience to observations
    • How was behavior not ordinary
senario 2
SENARIO #2
  • REFERENCE HANDOUT PROVIDED
senario 2 things to think about
SENARIO #2Things to think about:
  • Type of stop and was the stop valid?
  • Did it remain within the scope of the stop?
  • Was the use of the dog permissible?
  • Was there sufficient probable cause to search?
  • Was there a sufficient nexus between the drugs and suspect?
    • “It’s not what you know, it’s what you can prove.”
  • Was the Miranda Warning properly given and the subsequent confession admissible?
vehicle seizure
VEHICLE SEIZURE
  • A SHOW OF AUTHORITY CONSITUTES A SEIZURE OF A VEHICLE:
    • “FEW, IF ANY, REASONABLE CITIZENS, WHILE PARKED, WOULD SIMPLY DRIVE AWAY AND ASSUME THAT THE POLICE, IN TURNING ON THE EMERGENCY EQUIPMENT FLASHERS, WOULD BE COMMUNICATING SOMETHING OTHER THAN FOR THEM TO REMAIN.” Lawson v. State
vehicle seizure cont d mistake of fact and or law
VEHICLE SEIZURE – CONT’DMISTAKE OF FACT AND/OR LAW
  • An officer must have reasonable suspicion of a traffic violation. If that reasonable suspicion is based upon a mistake of fact, the stop may still be valid.
  • As a matter of courtesy, the officer could explain to the driver in the defendant’s circumstance the reason for the initial detention and then allow them to continue on their way without asking them to produce their driver’s license and registration. U.S. v. McSwain
vehicle seizure cont d mistake of fact and or law1
VEHICLE SEIZURE – CONT’DMISTAKE OF FACT AND/OR LAW
  • An officer must have reasonable suspicion of a traffic violation. If that reasonable suspicion is based upon a mistake of fact, the stop may still be valid.
  • As a matter of courtesy, the officer could explain to the driver in the defendant’s circumstance the reason for the initial detention and then allow them to continue on their way without asking them to produce their driver’s license and registration. U.S. v. McSwain
  • A mistake in law invalidates the stop:

Failure to understand the law by the very person charged with enforcing it is not objectively reasonable. U.S. v. Tibbetts

vehicle seizures cont d
VEHICLE SEIZURES – CONT’D
  • PRETEXTUAL CAR STOPS

An officer may follow a vehicle, wait for a traffic violation, then hope to see contraband in plain sight, smell contraband, or get consent to search.

The United States Supreme Court held that it was permissible for undercover officers to stop a car for a traffic violation in a high drug area even though the stop would not have been made but for the officer’s suspicions about dope. Wren v. U.S.

An officer who observes a traffic violation has probable cause to stop the vehicle regardless of the officer’s motivations or suspicions that are unrelated to the traffic offense. State v. Lopez

vehicle seizure cont d
VEHICLE SEIZURE – CONT’D
  • OFFICER MAY ORDER DRIVER AND PASSENGERS OUT OF VEHICLE:
    • Once a vehicle has been lawfully stopped for a traffic violation, an officer may order the driver to get out of the car as well as any passengers to get out of the car without violating the Forth Amendment.

Pennsylvania v. Mimms

Maryland v. Wilson

vehicle seizure scope of investigation1
VEHICLE SEIZURESCOPE OF INVESTIGATION
  • Once the stop is justified at its inception, the courts must then examine whether the stop was “reasonably related in scope to the traffic violation which justified it in the first place.” State v. Lopez
vehicle seizure scope of investigation2
VEHICLE SEIZURESCOPE OF INVESTIGATION
  • Once the stop is justified at its inception, the courts must then examine whether the stop was “reasonably related in scope to the traffic violation which justified it in the first place.” State v. Lopez
  • If an officer is conducting a routine traffic stop, it is within the scope of the stop to request a driver’s license, vehicle registration, conduct a computer check, and issue a citation. State v. Lopez
vehicle seizure scope of investigation3
VEHICLE SEIZURESCOPE OF INVESTIGATION
  • Once the stop is justified at its inception, the courts must then examine whether the stop was “reasonably related in scope to the traffic violation which justified it in the first place.” State v. Lopez
  • If an officer is conducting a routine traffic stop, it is within the scope of the stop to request a driver’s license, vehicle registration, conduct a computer check, and issue a citation. State v. Lopez
  • Law enforcement officers may routinely run warrant checks on traffic infraction detainees, provided the check does not unreasonably prolong the detention. United States v. Pena
vehicle search automobile exception
VEHICLE SEARCHAUTOMOBILE EXCEPTION
  • PROBABLE CAUSE SEARCHES:
    • “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment, permits police to search the vehicle without more.”
    • Maryland v. Dyson
vehicle search automobile exception cont d
VEHICLE SEARCHAUTOMOBILE EXCEPTION – CONT’D
  • Police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant. This includes the trunk and any containers that may conceal the object of the search.
  • U.S. v. Ross
vehicle search automobile exception cont d1
VEHICLE SEARCHAUTOMOBILE EXCEPTION – CONT’D
  • Scope of Probable Cause Search:
      • “The search is defined by the object of the search and the places in which there is probable cause to believe that it may be found. For example, probable cause that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase.”
      • U.S. v. Ross
vehicle search automobile exception cont d2
VEHICLE SEARCHAUTOMOBILE EXCEPTION – CONT’D
  • Search of passenger’s property in the car:
    • Officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.
    • “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”
    • A passenger’s personal belongings, just like the driver’s belongings or containers attached to the car like a glove compartment, are “in” the car, and the officer has probable cause to search for contraband in the car.

Wyoming v. Houghton

vehilce search automobile exception cont d1
VEHILCE SEARCHAUTOMOBILE EXCEPTION – CONT’D
  • DOG SNIFFS:
    • Reasonable suspicion is not necessary to use a drug dog as long as the dog was used during a valid seizure.
    • Running a drug dog around a vehicle while waiting for the results of a driver’s license check was not improper. United States v. King.
    • Reasonable suspicion of drug related activity is not required when the dog sniff is employed during a lawful seizure of the vehicle. United States v. Morales-Zamora.
vehicle search vehicle exception cont d
VEHICLE SEARCHVEHICLE EXCEPTION – CONT’D
  • DOG SNIFFS:
    • Plain Odor – The dog’s positive reaction can give the officer probable cause to search. The officer has to establish the dog’s reliability and the officer’s (or trainer’s) expertise.

United States v. Place

vehicle searches arizona v gant 2009
VEHICLE SEARCHESARIZONA V. GANT, (2009)
  • When arresting an occupant of a vehicle, officers no longer have automatic authority to search a vehicle incident to the arrest.
    • As previously allowed under New York v. Belton, (1981)
arizona v gant
ARIZONA V. GANT
  • The following search rules now apply when an occupant of a vehicle is arrested:
    • Police may search a vehicle incident to a recent occupant’s arrest ONLY IF the arrestee is within reaching distance of the passenger compartment at the time of the search.

OR

    • There is reason to believe, based on specific articulable facts, that evidence relevant to the crime of arrest might be found in the vehicle.
arizona v gant1
ARIZONA v. GANT
  • The decision in Arizona v. Gant does not alter other search authority:
    • Officers may search the person of the arrestee incident to arrest, for both evidence and weapons.
    • Officers may search the vehicle for weapons if they have reasonable suspicion that the arrestee or other occupants are dangerous and might access the vehicle to gain immediate control of weapons.
    • Officers may search the vehicle if there is probable cause to believe the vehicle contains evidence of criminal activity.
vehilce seizure search cont d inventory searches
VEHILCE SEIZURE & SEARCH – CONT’DINVENTORY SEARCHES
  • Inventory searches:
    • “It is well established that an inventory search constitutes an exception to the warrant requirement. A warrantless search of an impounded vehicle….is permitted by the Fourth Amendment and Article I, Section 14 of the Utah State Constitution.”

State v. Hygh

vehilce seizure search cont d inventory searches1
VEHILCE SEIZURE & SEARCH – CONT’DINVENTORY SEARCHES
  • Inventory searches have three recognized purposes unrelated to discovery of evidence:
    • 1) To protect an owner’s property while it is in the custody of the police;
    • 2) To insure against claims of lost, stolen, or vandalized property; and
    • 3) To protect police officers and the community from danger.

State v. Johnson

vehilce seizure search cont d inventory searches2
VEHILCE SEIZURE & SEARCH – CONT’DINVENTORY SEARCHES
  • Utah’s two-step test to determine the admissibility of evidence seized pursuant to an inventory search:
    • First, there must be a “reasonable and proper justification for the impoundment of the vehicle.” State v. Hygh
    • Second, the inventory search itself must have been “conducted for inventory purposes, in a legal manner, and not merely as a fishing expedition for evidence.” State v. Sterger
vehilce seizure search cont d inventory searches3
VEHILCE SEIZURE & SEARCH – CONT’DINVENTORY SEARCHES
  • Utah courts have held that a reasonable and proper justification is statutory authorization. State v. Strickling.
    • Under Utah law, “any peace officer, without a warrant, may seize and take possession of any vehicle…that’s is being operated on a highway”… with registration that is suspended or revoked.”
    • If there is not a specific statutory authorization, the officer can still show a “reasonable and proper justification” for impounding the vehicle.
      • Arrested driver, abandon vehicle on a roadway, etc.
      • Department Policy
vehilce seizure search cont d inventory searches4
VEHILCE SEIZURE & SEARCH – CONT’DINVENTORY SEARCHES
  • The Fourth Amendment does not require an officer give a defendant an opportunity to make alternative arrangements. State v. Johnson
  • Specifically, when an officer has statutory justification for impounding the vehicle, whether the owner was consulted is irrelevant because the State has shown the impound was proper.State v. Strickling
vehilce seizure search cont d consent searches
VEHILCE SEIZURE & SEARCH – CONT’DCONSENT SEARCHES
  • SCOPE: When an officer suspects a vehicle may contain narcotics and the driver consents to a search, the officer may search anyplace where narcotics could be stored, including closed containers. Florida v. Jimeno
    • Defendant can expressly limit the scope of the search either prior to or during the search.
    • A consent search contemplates a thorough search (especially if looking for contraband) so that the removal of an ashtray and an air vent cover have been held permissible. United States v. Pena.
miranda v arizona
MIRANDA v. ARIZONA
  • “Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.”
  • The United States Supreme Court provided a protective device to overcome the “police dominated atmosphere.”
    • Afour part warning:

Referred to as the Miranda Warning

miranda warning
MIRANDA WARNING
  • 1) You have the right to remain silent. Do you understand?
  • 2) Anything you say may be used against you in court. Do you understand?
  • 3) You have the right to the presence of an attorney before and during any questioning. Do you understand?
  • 4) If you cannot afford an attorney, one will be appointed for you, free of charge, before any questioning, if you want. Do you understand?
  • * If an express waiver is to sought, simply ask, Do you want to talk about what happened?
miranda warning1
MIRANDA WARNING

Two-Prong

Test

Custody

Interrogation

Miranda Warning

miranda warning exception
MIRANDA WARNINGEXCEPTION
  • Public Safety Exception:
    • Questioning to obtain information regarding an active threat to public safety may be done. Such as a gun hidden in a public place.

New York v. Quarles, 467 U.S. 649 (1984)

miranda warning not required
MIRANDA WARNINGNOT REQUIRED
  • Routine Motor Vehicle Stops:
    • Stops are brief and take place in public. Are not a police dominated atmosphere. Berkermer v. McCarty, 468 U.S. 420 (1984)
  • Field Sobriety Tests:
    • No warning necessary before questioning for on-scene field sobriety. Pennsylvania v. Bruder, 488 U.S. 9 (1988)
miranda warning not required1
MIRANDA WARNINGNOT REQUIRED
  • Investigatory Stops:
    • No warning needed for reasonable suspicion based stop since they typically occur in a public place and are presumptively brief. Berkermer v. McCarthy, 468 U.S. 420 (1984)
miranda warning chosing to remain silent
MIRANDA WARNINGCHOSING TO REMAIN SILENT
  • Suspect invokes right to remain silent but not to counsel:
  • Different than an invocation of the right to counsel. Officers may re-initiate conversation with a suspect who only invokes the right to remain silent.
  • Michigan v. Mosley, 423 U.S. 96 (1975)
miranda warning chosing to remain silent1
MIRANDA WARNINGCHOSING TO REMAIN SILENT
  • Evidence gained from re-initiated interrogations where:
    • Suspect’s right to remain silent was honored at the first interrogation.
    • A significant amount of time has passed between the first and second interrogation.
    • The suspect was given the Miranda Warning again prior to the second interrogation.
    • Illegal tactics or pressure were not used to get the suspect to speak.

Michigan v. Mosley, 423 U.S. 96 (1975)

*Opinion based on the fact the second interrogation was restricted to a crime not related to initial interrogation.