Search & Seizure Law Update

Search & Seizure Law Update

CONSTITUTIONAL FOUNDATION TO ARREST & SEARCH The 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 persons or things to be seized.

Probable Cause Search & Seizure

PROBABLE CAUSE Absolute Certainty Proof Beyond a Reasonable Doubt 100 (Articulable) Reasonable Suspicion 50 Probable Cause 0 Possibility / Hunch

PROBABLE CAUSE In layman’s terms, how will you define Probable Cause for a jury. A reasonably prudent person would believe: • that a crime has been committed • that the person to be arrested has committed that crime

PROBABLE CAUSE • Test for Probable Cause • The focus in determining probable cause is not on the certainty that a crime was committed, but on the likelihood of it. • Don’t have to be RIGHT; but, you do have to be REASONABLE

Indications of Criminal Activity That May Contribute to a Finding of PROBABLE CAUSE • Suspect Demeanor or Reaction to Officer • Flight is one factor to be considered. • Sibron v. New York (1968) ~ “Deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mensrea (a guilty mind), and when coupled with specificknowledge on the part of the officer relating the suspect to the evidence of the crime, they are proper factors to be considered in the decision to make an arrest.”

Indications of Criminal Activity That May Contribute to a Finding of PROBABLE CAUSE • Suspect Demeanor or Reaction to Officer • Flight in itself willnot independently support a probable cause finding. • Wong Son v US (1963) ~ officers responded to a suspect's home who was believed to be selling heroin. When the suspect answered the door he turned and ran with officers in pursuit. The court found that his subsequent seizure was invalid because officers did not have probable cause to arrest him simply because he ran away.

Seizures & Detentions Terry Stops & Frisks

POLICE AUTHORITY TO DETAIN Looking at the right of police officers to stop a suspect under circumstances in which there was insufficient grounds for an actual arrest Requires REASONABLE ARTICULABLE SUSPICION This does NOT authorize police to detain anyone on mere SUSPICION or a HUNCH!

LEVELS OF CRIMINAL EVIDENCE 100% Beyond Reasonable Doubt Clear and Convincing Trial Preponderance 50% _____ Probable Cause Reasonable Suspicion ~ articulable (explain the facts) Investigation Hunches or Whims ~ can’t articulate 0%

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 In Terry, the US Supreme Court upheld the authority of the police to stop or detain (or seize) a person where the officer observes unusual conduct which leads the officer reasonably to conclude, in light of his/her experience (including training), that criminal activity may be afoot. “Terry Stop” vs. “Terry Frisk”

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 A Terry Stop - an investigative detention of a suspect. Not a search! Officers can conduct a Terry Stop with reasonable (articulable/explainable) suspicion that criminal activity is afoot. Officers can stop a suspect and investigate that person for a reasonable period of time. Even though its not a formal arrest, it is a seizure under the 4th Amendment.

Reasonable Suspicion + Armed & Dangerous = FRISK • Terry requires an officer to articulate a reasonable belief that a suspect is armed and poses a threat before the officer is permitted to conduct a limited “Pat Down” of the suspect’s outer clothing. • Just because I can “Terry Stop” someone doesn’t automatically give me the right to frisk them for a weapon.

CONSTITUTIONAL FOUNDATION TO ARREST & SEARCH The 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 persons or things to be seized.

Frisking Containers • An officer who finds a closed container within lunging distance of a suspect who is being lawfully stopped and frisked, may open the container to see if it contains a weapon if: • in light of the officer’s experience and training the item could contain a weapon, and • the container is NOT locked

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 • Search or “Frisk” is going to be limited to searching for hard objects… • That the suspect could use to hurt the officer like guns, pocket knives, mace, clubs, … • Not limited to just those things we ordinarily think are weapons… • It could also be things like car keys or pens because those could hurt an officer as well…

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 • While an officer may want to conduct a frisk for “officer safety” purposes, the law requires more than that. • Reasonable suspicion that someone’s presently armed and dangerous is just what it sounds like, but most importantly, the officer has to have facts to support that conclusion.

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 • Look, Feel, Crush and Twist – FLETC • You can manipulate hard objects as much as necessary to ensure they are not weapons! You may NOT manipulate soft objects that could not be a weapon. • If your actions are reasonable and executed only to determine whether the suspect possesses a weapon, then the “Terry Frisk” is constitutionally proper

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 • Example: Can you conduct a Terry Stop of someone if there is reasonable (articulable/explainable) suspicion he is in possession of a stolen credit card? • The officer will want to conduct a brief detention to investigate further. • Is there anything about being in possession of stolen credit cards that would automatically lead you to believe the person is armed and dangerous? • Without additional facts: a Terry Stop is authorized, but not a Terry Frisk

POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968 • Offenses like drug distribution or burglary just go with weapons. • Courts have held that people who sell drugs most often carry weapons to protect their money and product. • Burglars need burglary tools - things to break windows, screw drivers, and crow bars to pry doors open. • In Terry the detective had reasonable suspicion to believe an armed robbery was afoot.

Person’s Appearance Person’s Actions Prior Knowledge of the Person Location Time of Day Law Enforcement Purposes Companion Reasons For The Frisk: Articulating Your Reasonable Suspicion POLICE AUTHORITY TO DETAIN Terry v. Ohio, 1968

Scenario #1 A male comes into your agency to retrieve property from his impounded vehicle. You run a warrant check and learn that there is an outstanding felony arrest warrant for the male in an adjacent jurisdiction. You arrest the male; and, incident to the arrest, confiscate meth and a firearm from his person.

Scenario #1 Later on, you discover that the warrant had been recalled nearly three (3) months ago; however, the other Agency, unbeknownst to you, forgot to pull the warrant. Since a police agency made the mistake and another police agency will be benefitting from the mistake by the admission of the evidence, should this evidence be excluded?

Scenario #1 “When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.” Herring v. U.S.,(Jan 14, 2009)

U.S. v. Quinney, October 01, 2009 • Under the inevitable-discovery doctrine, if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, then the deterrence rationale of the exclusionary rule has so little basis that the evidence should be received.

U.S. v. Quinney, October 01, 2009 • However, the inevitable-discovery doctrine does not permit police, who have probable cause to believe a home contains contraband, to enter a home illegally, conduct a warrantless search and escape the exclusionary rule on the ground that the police could have obtained a warrant yet chose not to do so.

The Exclusionary Rule • “The fact that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies.” Illinois v. Gates, (1983). • “The [exclusionary] rule is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free.” U.S. v. Leon, (1984)

Miranda & 5th Amendment Recent Case Law

Florida v. Powell, U.S. 1898, Feb 23, 2010 • Miranda warnings that failed to expressly state that the suspect had a right to have a lawyer present during the questioning, but advised that he had “the right to talk to a lawyer before answering any of our questions” and the right to exercise that right at “anytime you want during this interview,” adequately conveyed his rights under Miranda.

Maryland v. Shatzer, 1899, (Feb 24, 2010) • A break in Miranda custody of fourteen (14) days provides ample time for the suspect to get re-acclimated to his normal life, to consult with friends and family and counsel, and shake off any residual coercive effects of prior custody.

Maryland v. Shatzer, 1899, (Feb 24, 2010) • If a suspect invokes counsel under Miranda while in custody and is then released, nothing prohibits law enforcement from approaching, asking questions, and obtaining a statement without the Miranda lawyer present from the suspect who remains out of custody.

U.S. v. Panak, 6th Circuit (Jan 09, 2009) • Should the officers subjective knowledge determine when to advise Miranda? • An officer’s knowledge of an individual’s guilt may bear upon the custody issue - NOT because the officer possesses incriminating evidence but because he HAS conveyed it… and thus has used the information to create a hostile, coercive, freedom-inhibiting atmosphere.

U.S. v. Panak, 6th Circuit (Jan 09, 2009) • That is why such knowledge is relevant only if… • …it was somehow manifested to the individual under interrogation and • …it would have affected how a reasonable person in that position would perceive his or her freedom to leave.

Exigent Circumstance Recent Case Law

AUTHORITY TO ENTER: WARRANTLESS SEARCH & ARREST Exigent Circumstances • Fresh Pursuit (“Hot Pursuit”) • Immediate Destruction of Evidence • Public Safety and/or Welfare • Prevent Escape of a Suspect

MICHIGAN v. FISHER, 2009 • Police officers responded to a complaint of a disturbance • A couple directed them to a residence where a man was "going crazy" • Officers found a household in considerable chaos: a pickup truck in the driveway with its front smashed, damaged fence posts along the side of the property, and three broken house windows, the glass still on the ground outside

Search & Seizure Law Update