Search & Seizure Law

1. Search & Seizure Law Police Department The University of Texas at Dallas Sgt. Roger Stearns

2. Fourth AmendmentUnited States Constitution • 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 be 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

3. Article 1, Section 9Texas State Constitution • The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures and searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing themas near as may be, nor without probable cause, supported by oath or affirmation.

4. With a Warrant Reasonable Requires Probable Cause Without a Warrant Unreasonable Reasonable if falls within exceptions Searches

5. Subject to Seizure During Search • Weapons or other items used to injure or effect escape • Fruits of a crime • Tools of a crime • Contraband - anything illegal to possess • Mere evidence of a crime

6. Scope of Search • ONLY those places where it would be reasonable for the officer to believe the item(s) listed on the warrant, based on the PC could be concealed • You are ALWAYS limited by the size of the item you are looking for. • Search ends when you find the item(s) or when you’ve searched every reasonable place and have not found the evidence

7. Search without Warrant based on Probable Cause is per se unreasonable • Only a few specifically and well-delineatedexceptions to searches without a warrant exist:

8. Incidental to Arrest Voluntary Consent Probable Cause with emergency (exigent) circumstance Abandoned Property Plain View or Open View Plain Touch or Plain Feel Impounding or Inventory or Property Forfeiture under CSA Border Searches (Federal only) EXCEPTIONSSearches Without a Warrant

9. Incident to Arrest • Warrant Exception • Search must relate to the arrest • Search must closely follow the arrest and time of arrest - Preston Rule • Arrest must be legal for search to be legal • If not, Poisoned Tree Doctrine applies - Exclusionary Rule • May seize weapons & evidence of any crime

10. Voluntary Consent • Warrant Exception • Mere request by Officer and permission from subject • Requirement - consent must be voluntary • Miranda not necessary • May look everywhere for anything if granted

11. Factors of Voluntariness • Custodial Status • Presence of coercive police procedures • Extent & level of subject’s cooperation • Subject’s level of education and IQ

12. Exigent Circumstances • Warrant Exception • May seize any weapons or evidence in possession before it is used or destroyed • Time is of the essence due to the emergency, officer must act or forever lose the evidence • Same PC as officer would include in a Warrant • Usually when dealing with motor vehicles because of their mobility - Carroll Rule • Search is usually before arrest

13. Abandoned Property • Defined: “giving up something so that it may be appropriated by the next comer.” • Facts or circumstances indicating owner relinquished ownership or control • NO act of concealment

14. Plain View • Not a search to merely observe something which is in open view • May lawfully be seized if you have legal right of access • If entry is required, Exigent circumstances, consent or warrant is required • Ask yourself, Do I have the legal right to be where I am? • Must be immediately apparent, may not move before incriminating nature is obvious

15. Plain Touch • Legal stop or detention is required • Officer must articulate reason to fear in order to frisk (pat-down) or have valid consent to frisk • Officer must be able to immediately recognize object • Officer must have PC object is contraband • Must be immediately apparent

16. Impounding Take into custody of the law Recovers stolen property Subject in custody Safe keeping Illegally parked Driver arrested Inventory List of property Occurs at book in Vehicle impounded Record, protect, return Prevent PD liability Protect PD from harm NOT a search Standard Procedure Impounding & Inventory

17. Inventory = NOT a Search • Purpose is NOT to discover evidence • Purpose is to locate & protect property • Authorized without PC, consent or warrant • Evidence may be seized if in good faith • Arrest must be legal • Reasonable to impound property • Not a scheme to avoid warrant requirement • FIXED nonvarying procedure

18. Forfeited Property • Defined: “To lose, in consequence of some offense, some property to the estate. • Usually involves vehicles • Violations Sec. 5.02 Controlled Substance Act • Texas CCP, Art. 18.16 provides for seizure if property is believed to be stolen • Texas CCP Chapter 59

19. Border Searches • Federal Authorities only • Exceptional Search Power • NO PC necessary • Nation has an interest in protecting borders

20. Search of Persons & Places • Arrest - full search of person • Places Searched by: • Warrant • Consent • Emergency - Hot Pursuit - Time of Essence • Protective Sweep - Not a Search - Plain View • Only in areas where a person could hide • All persons present or arriving

21. Vehicles • Incident to Arrest • Closed containers in vehicle if not locked • Locked glove box if key available • All containers with PC • Trunk if consent, inventory, warrant or PC • Probable Cause or Emergency • Plain View

22. Miscellaneous Searches • In Texas, Poisoned Tree Doctrine applies to private Citizens • Dog Sniff is NOT a search - NO PC necessary • Public School Searches - no PC or Warrant • NOT at colleges or universities - loco parentis does not apply, Warrant requirement or Exceptions necessary

23. Review • PC Search = search anywhere based on scope, stop when found or looked all reasonable places, limited by size • Arrest Search = person, area under immediate control, passenger compartment • Inventory = NOT a search, may look everywhere except locked containers (but may get consent for containers)