Search and Seizure

2. Search and Seizure

3. Terminal Learning Objective • Action: Discuss search and seizure law. • Condition: Given a guided classroom discussion. • Standard: Discussed search and seizure law.

4. Advanced Law Enforcement:TERMS Seizure Detention Arrest Apprehension Custody Terry Stop Traffic Stop

5. Seizure Standards Consensual Traffic Stop Terry Stop Apprehension (Custody) No Seizure Reasonable Suspicion Reasonable Suspicion Probable Cause

6. Apprehension • Civilian term = Arrest • Military term = Apprehension (Apprehension always = custody) • ONLY SOLDIERS CAN BE APPREHENDED!! • Civilians are “Detained”

7. Custody • Definition: • A formal arrest; or • A restraint on the freedom of movement of the degree associated with a formal arrest. • Objective Test: • Would a reasonable person believe, given all facts, that he/she is not free to leave? • Subjective belief of officer or suspect is irrelevant

8. Apprehension(Putting Them In Custody) What you NEED = Probable Cause to believe that you have: 1. A UCMJ violation 2. A person subject to UCMJ who committed the violation (RCM 302 controls) (PC = “fair probability, based on ALL the circumstances”)

9. Probable Cause You are the expert. If you saw this, could you apprehend the owner?

12. Can knowing a VIN number give you PC?

13. Who Can Apprehend • MPs, while executing law enforcement duties • No off duty authority! • ALL officers, warrant, petty & non-commissioned • On or off-duty, (See Art. 7, UCMJ) • Investigators, guards, sentinels appointed by proper authority and executing assigned duties • Federal law enforcement officers • For Deserters: • Civilian police may arrest them

14. ApprehensionSpecial Notes • If you apprehended an officer: • Notify the Staff Duty ASAP • R.C.M. 302(d) • Give notice • Use of Force • Follow Your SOP!!

15. Use of Force

16. MP Authority Over Civilians • Derived from inherent authority of the installation commander. • 18 U.S.C. section 1382, No trespassing • Civilians are “DETAINED” • Turn over to civilian authorities

17. Where Can You Apprehend • Persons subject to the UCMJ: • ANYWHERE!! • 24 / 7 = subject to UCMJ • Persons NOT subject to UCMJ: • ONLY on-post • ONLY “detain”

18. Remember • MP authority to apprehend is based on “executing military duties” • No authority to apprehend when off-duty (Unless NCO, WO or Officer) • Apprehend those subject to UCMJ – otherwise “detain”

19. Review • Your Questions? • My questions: • What rule governs apprehensions? • Who gives you the authority to detain civilians? • What is required to apprehend? • What can ruin a good apprehension?

20. Searches US CONSTITUTION 4th Amendment

21. 4th 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….”

22. The 4th Amendment Trigger GOVERNMENT INTRUSION EXPECTATION OF PRIVACY G I + R E O P = 4th Amendment Trigger

23. 4th Amendment • General rules: • Nothing “unreasonable” • Warrant required!!! • based probable cause • oath / affirmation • describing place / person to be searched / seized

24. Probable Cause • Reasonable belief • that specific items or persons connected with criminal activity • are located in a specific place or on a person to be searched.

25. Your experience is everything!

29. Terry Stop • REASONABLE SUSPICION that Criminal Activity is “afoot.” • Articulate the facts and circumstances that lead you to believe that a crime was, is or will be committed.

30. Frisk • Stop and MAYBE Frisk (not automatic!) • Must have reasonable suspicion that person stopped is presently armed and dangerous. • More than just general “officer safety.” • Nature of the crime? • Prior contacts? • Suspicious bulges? • Furtive movements? • Express threat: “I’ll kill you!”

31. Frisk • Pat Down the outer clothing in areas where weapons may be concealed and reached by the suspect. • Do not reach into pockets unless you are retrieving a suspected weapon. • BUT… Define weapons broadly! • Screwdriver? Pencil? Personal Mace? Pocket knife? • If it is not illegal to carry the “dangerous” item (i.e.. The pencil or pen) hold onto the item during the investigation and then return it when you are done.

32. Search Authorization • Civilian World • Judge • Magistrate • Military World • Judge • Magistrate • Commander

33. Search Authorization • Experience + Common Sense • Need fresh facts • From a reliable source • No guess work / no rumor • Indicating evidence of a crime • Is located in the area to be searched (expectation of privacy)

34. Search AuthorizationKey Questions: • How do you know? • Saw • Smelled • Heard • Tasted • Why are you reliable? • Why are you the expert? • Talk to the ACTUAL witness

35. Search Authorizations • COMMANDER  Neutral and Detached • If he is involved in setting up the investigation – NO • If he already has a position regarding the guilt or innocence of a suspect – NO • If he remains uninvolved in the details of the investigation, remains calm, and appears “neutral and detached” – OK

36. Search Authorization Details on the paperwork: • NO KNOCK Rule • If justified - request it • Day/Night Service - no distinction • If you want night, request it (courtesy) • Drug Dog = OK • Tell directing official you will use one (courtesy) • Computers • Contact JAG ‘BEFORE’

37. Exceptions to the Warrant Requirement

38. Search Incident To Apprehension • PC required (PC to apprehend) • Expectation of Privacy is diminished • Apprehension of person • Scope • Apprehension in a car • Scope

39. Vehicle Exception • From Incident to Apprehension to PC… • PC required • Scope = whole car • Vehicle must be operable

40. Exigent Circumstances • PC required • Delay will cause loss / escape / harm • Hot pursuit • Destruction of evidence • Life in danger • Immediate action required

41. Consent • Authority to consent • Scope of search • Withdrawal of consent • Consent must be voluntary • No coercion

42. Plain View Seizure • I am in an area where I am authorized to be; • No matter how crazy you got there • I see something illegal • Must be immediately recognizable as contraband or evidence of crime • Seize it! • If you can get to the evidence legally

43. Inspections • Incident of command • Exam of all or part of unit • Primary Purpose: • properly equipped • maintain readiness • sanitation/cleanliness • personnel fit/ready for duty

44. Inspections • SUBTERFUGE is the pitfall • If the Inspection is conducted with the primary purpose of finding evidence for use at trial, the evidence will be suppressed. • Must be conducted for health and welfare purpose; not for criminal investigation.

45. Inventory • Purpose is NOT for criminal investigations. • Purpose = administrative • Requirements: • Lawful impound • Standard inventory SOP • Inventory conducted IAW SOP • Inventories should be tied to SOPs • Routine is the key

46. Other Searches • Abandoned property • NO REOP; No 4th Amendment • Foreign Searches • 4th Amendment does not apply • BUT, no gross or brutal maltreatment • Private Search • No GI; No 4th Amendment

47. Summary • Government intrusion & Expectation of privacy • Search Authorization • Search Incident to Apprehension • Vehicle Exception • Exigent Circumstances Exception • Consent • Plain View Exception • Inspections and Inventories

48. Review • Your Questions? • What is generally required before you search? • Define probable cause. • Who can authorize a search on post? • When a commander authorizes a search, what must he be? Can authorization be issued orally? • Can commander delegate authority to search? • What if CDR is gone long-term?

49. Review • What are the two principles which implicate the 4th Amendment? • What is the difference between a Terry Stop and “mere citizen contact?” • What is the purpose of a health and welfare inspection? • Can the results be used as evidence? • What is the purpose of an inventory? • Can the results be used as evidence?

50. Review • Where is there REOP? • Computer? • Prison? • Garbage? • “Curtilage?” • Barracks? • On a military post?