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The Law

The Law. 1. Police Employment Issues a. Gender b. Overtime c. Social Media 2. 4 th Amendment a. Searching a Car b. Searching a Person c. Searching a House d. Tips e. Search Warrant 3. 5 th Amendment a. Attorney b. Assertion of Miranda

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The Law

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  1. The Law 1. Police Employment Issues a. Gender b. Overtime c. Social Media 2. 4th Amendment a. Searching a Car b. Searching a Person c. Searching a House d. Tips e. Search Warrant 3. 5th Amendment a. Attorney b. Assertion of Miranda 4. New Laws of Virginia

  2. Employment Issues • Gender (Hiring) • United States of America v. Pennsylvania State Police • Filed 29 July 2014

  3. The Test 300 meter run in 1 minute and 17 seconds 13 push-ups 14-inch vertical leap 1.5 miles in 17 minutes and 48 seconds USA v. Pennsylvania State Police • Physical Fitness Test • “Defendants’ use of the 2003 PFT and 2009 PFT in the screening and selection of applicants for entry-level trooper positions with PSP has resulted in a disparate impact upon female applicants for those positions. Defendants’ use of both the 2003 and the 2009 PFT is not job-related for the entry-level trooper position, is not consistent with business necessity, and does not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k).”

  4. USA v. Pennsylvania State Police 2003 – 2008: 94% Male / 71% Female 2009 - 2012: 98% Male / 72% Female

  5. USA v. Pennsylvania State Police • Pass “PFT at the same rate as male applicants, approximately 119 additional women would have been available for further consideration for the position of entry-level trooper, resulting in approximately 45 additional women being hired as entry-level troopers.”

  6. Employment Issues • Overtime • Rogers v. Richmond, • 851 F. Supp. 2D 983, (E.D. Va. - 2012) • $7,200,000 • Winegear v. Norfolk, • Civil Action No. 2:12cv560 (E.D. Va. - 2014) • $3,200,000 • Hampton Police Department (2014)

  7. Virginia Title 9.1 Chapter 7 Starts at § 9.1-701 Fills gap between Federal Overtime and Regular Hours Only applies if 100+ Officers Statutes • Fair Labor Standards Act • 29 U.S.C. § 207(k) • 29 C.F.R. §§ 553.230(b)-(c) • Requires Overtime at 43 hours per week • Exceptions • Executive • Administrative

  8. Care & Training of Police Dog Truslow v. Spotsylvania County Sheriff & Stafford County Sheriff, 783 F. Supp. 274 (1992) $29,940.62 Basis of Claims • Non-Pay between 40 – 43 hours • Phone Calls While Off Duty • On Call Work • Arriving Early to Court • Arriving Early to Work

  9. Employment Issues • Social Media • Ferguson • St. Louis County • Oath Keeper Speach

  10. Reasons for Discipline • Government Check Complaint • Complain Mayor not sending officer to funeral • Derogatory Comments about Travon Martin • Calling the City Government the “Lexington Fayette Urban Communist Government” • Myspace

  11. Reasons for Discipline

  12. DO Post a Disclaimer “Posts, comments, images and all other content on this site are solely the opinion of the poster and do not reflect the official or unofficial positions of the Bartlette County Sheriff's Department.” Social Media Policy • DO NOT's • Appear to Represent the Department • ID Self as Officer and Engage in Unprofessional Behavior • Show or Describe Work • Post something that adversely effects morale, safety, discipline, or public perception • Disclose Sensitive Information

  13. 2: Trespass Property U.S. v. Jones, 132 S. Ct. 945 (2012) GPS on Car Land Florida v. Jardines, 133 S. Ct. 1409 (2013) Area Around House 4th Amendment - Standard • 1: Reasonable Expectation of Privacy • a. Person expects privacy • b. Society sees expectation as reasonable • Kyllo v. U.S., 533 U.S. 27 (2001) • Thermal Imaging

  14. Arizona v. Gant,556 U.S. 332 (2009) Cannot search a car solely because a person arrested in it Can Search if: Suspect Unsecured Reasonable to believe evidence of the crime the offender was arrested for will be found in the car 4th Amendment - Cars • Carroll v. U.S., 267 U.S. 132 (1924). • If an officer has probable cause to believe contraband is in a car he can search the car without a warrant • Because a car is mobile

  15. Safety Pat Down (Terry Pat Down) Standard: Reasonable Suspicion of a Weapon Officer can remove: An item he believes to be a weapon Immediately Apparent Evidence of a Crime No Dual Purpose Grandison v. Commonwealth, 274 Va. 316 (2007) 4th Amendment - Person • Subsequent to Arrest • United States v. Robinson, 414 U. S. 218 (1973) • Search of an arrested person requires no additional investigation • Packages immediately associated with the arrestee can be searched • Riley v. California, 134 S. Ct. 2473 (2014) • Cell Phones Not Searchable

  16. Cannot Enter 3d Party House Steagald v. U.S., 451 U.S. 204 (1981) Follow into House Hot Pursuit U.S. v. Santana, 427 U.S. 38 (1976) Protective Sweep During Arrest Check places from which a person could launch an immediate attack Maryland v. Buie, 494 U.S. 325 (1990) 4th Amendment – House (Arrest) • Enter Arrestee's House with Warrant • Misdemeanor or Felony • U.S. v. Spencer, 684 F.2d 220 (1982) • Reasonable Belief: • Suspect's Dwelling • Suspect in the Residence • U.S. v. Magluta, 44 F.3d 1530 (1995)

  17. 4th Amendment – House (Search) • Permission • 2 People Present • Georgia v. Randolph, 547 U.S. 103 (2006) • 1 Arrested • Fernandez v. California, 134 S. Ct. 1126 (2014) • Cannot Detain if Leaves Before Search Warrant • Bailey v. U.S., 133 S. Ct. 1031 (2013)

  18. 4th Amendment – Anonymous Tips • General Rule • Must be corroborated • Innocent Details • Predict Future Behavior • Navarette v. California, 134 S. Ct. 50 (2014) • Innocent Details • Report of Immediate Criminal Activity • Dispatch Ability to Track Calls

  19. Good Faith Exception United States v. Leon, 468 U.S. 897 (1984) Once a search warrant is issued officers can rely on it without concern over its validity Search Warrant • Va. Code § 19.2-59 • Search Without a Warrant • Malfeasance in Office • Liable to Compensatory & Punitive Damages • 2d Time: Immediately Forfeit Office • Caselaw limits to searches without probable cause

  20. Questioning - 5th & 6th Amendments • Don't Have to Worry if Suspect has a Lawyer • Must Assert the Right • Montejo v. Louisiana, 556 U.S. 778 (2009) • If Asserts Right to Attorney can come back after 14 days • Maryland v. Shatzer, 559 U.S. 98 (2010)

  21. Can't Question & Requestion Missouri v. Seibert, 542 U.S. 600 (2004) Must Unambiguously Demand Counsel Davis v. U.S., 512 US 452 (1994) Miranda Standards • If in custody or deprived of freedom in a significant way • Objective Test • Not Officer's Belief • Not Suspect's Belief • U.S. v. Hashime, 734 F.3d 278 (2013)

  22. Silence Before Custody Can be used in trial Salinas v. Texas, 133 S. Ct. 928 (2013) Questioning • If Statement Excluded • Physical Evidence developed from the statement can still be used • U.S. v. Patane, 542 U.S. 630 (2004) • Can be used to impeach • Oregon v. Hass, 420 U.S. 714 (1975)

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