Search and seizure

1. Search and seizure

2. Purposes of a search • Fruits of the crime (e.g.,stolen property) • Instrumentalities of the crime (e.g., a gun, burglary tools) • Circumstantial evidence of a crime (e.g., falsified records) • Leads to other sources of evidence (e.g., identify conspirators)

3. Warrantless searches • Consent • Administrative search authority(e.g., DMV, ABC) • Incident to arrest • Person • Entire passenger compartment of vehicle • Immediate vicinity, for weapons • Inventory search (must be non-pretextual) • Impounded vehicle • Personal belongings taken

4. Compelled evidence-gathering techniques:Subpoenas and search warrants • Subpoena – usually for persons and/or documents • Issued by courts for trial • Some agencies can issue administrative subpoenas (e.g., telephone toll records) • Grand Juries (investigative phase only) • When need a search warrant? • Looking for physical evidence of a crime • Fear of tampering or destruction • Preservation and handling issues (e.g., latent fingerprints) • Need evidence of a precise location where found

5. Search warrants • For persons, places or vehicles • Compelled technique • Intrusive and dangerous • Requires planning and great care • Tests: • Must we gather this evidence? • Is it available elsewhere? • Can it be preserved without being forcefully seized? • Are less intrusive options available?

6. Search warrant – basisfor issuance • Probable cause – what would leada reasonable person, exercisingnormal caution, to believe that: • A crime has occurred, is taking place or is being planned • Evidence or fruits of the crime are present at a certain location • California rules for issuance same as Federal • Federal laws and court decisions must be followed • Exception: under California State law cannot issue for misdemeanors

7. Search warrant –sources of information • Records, including criminalhistories • Observations • Witnesses • Law enforcement officers • Informers • Private citizens • Non-police witnesses not “proven reliable” cannot be the sole basis without corroboration • Hearsay permissible

8. Motor vehicles • No warrant necessary (Carroll v.U.S.) • May search anywhere, including closedpackages (USA v. Pinela-Hernandez,9th. Circuit) • Usually probable cause is required • Need a “fair probability” that contraband or evidence will be found • Not required for inventory search of an impounded vehicles • Sole basis for a vehicle search cannot be an uncorroborated “tip” from someone whose reliability has not been established (U.S. v. Morales, 9th. Circuit)

9. Premises • Expectation of privacy • None in a public area • Some in a vehicle • More in another person’s dwelling • Greatest in one’s own dwelling (home or apartment) • Cannot enter dwelling without search/arrest warrant • Exception - “exigent circumstances” • Save a life or prevent imminent destruction of evidence • Probationers and parolees have a lesser expectation if terms include warrantless search • If search based on reasonable suspicion, fruits can be used in criminal prosecution (U.S. v. Knights, Supreme Court)

10. Persons • No warrant required: • Search incident to arrest • “Terry” - reasonable suspicion that someone has a weapon • Probable cause that someone possesses evidence, and failing to secure it will result in its loss or destruction • Unreasonable for a hospital to perform non-consensual tests to identify drug users, then to use this evidence against them in court (Ferguson v. Charleston, Supreme Court) • Even if a wanted person is clearly visible inside their dwelling, cannot enter without arrest or search warrant (U.S. v. Oaxaca, 9th. Circuit)

11. Privacy expectations –some extreme examples • Warrantless search of a closedtent on Federal land ruled illegal (U.S. v. Sandoval, 9th. Circuit) • Squeezing an opaque bag during immigration checks ruled illegal (Bond v. U.S., Supreme Court) • Warrantless thermal imaging of garage ruled illegal as unusual device is not in general use (Kyollo v. U.S., Supreme Court) • No “murder scene” exception to search warrant (Flippo v. West Virginia, Supreme Court)