Basic Applied 4 th & 5 th Amendment law in context to

1. Basic Applied 4th & 5th Amendment law in context to

2. 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 PERSON OR THINGS TO BE SEIZED.”

3. FIFTH AMENDMENT • NO PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS CRIME, UNLESS ON A PRESENTMENT OR INDICTMENT OF A GRAND JURY, EXCEPT IN CASES ARISING IN THE LAND OR NAVAL FORCES, OR IN THE MILITIA, WHEN IN ACTUAL SERVICE IN TIME OF WAR OR PUBLIC DANGER; NOR SHALL ANY PERSON BE SUBJECT FOR THE SAME OFFENSE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB; NOR SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF; NOR BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION.

4. WHAT IS SEARCH, SEIZURE, & INTERROGATION LAW?

5. WHAT IS SEIZURE, SEARCH, & INTERROGATION LAW?

6. PROBLEMS WITH OPINIONS

7. PROBLEMS WITH OPINIONS

8. HOW TO SUCCESSFULLY SEIZE EVIDENCE?

9. HOW TO SUCCESSFULLY SEIZE EVIDENCE? • OBTAIN A WARRANT • AFTERALL, THE FOURTH AMENDMENT WAS DESIGNED TO REQUIRE WARRANTS

10. HOW TO SUCCESSFULLY SEIZE EVIDENCE? OBTAIN A WARRANT OR SUPPORT ALL ACTIONS BY PROVIDING SUFFICIENT INFORMATION TO SATISFY EVERY JUDGE SO THE EVIDENCE WILL NOT BE LOST.

11. WHY?

12. WHY? • A SEARCH PURSUANT TO A WARRANT IS PRESUMED TO BE REASONABLE. THIS PRESUMPTION PLACES THE BURDEN ON THE DEFENDANT TO PROVE THE SEARCH WAS ILLEGAL.

13. WHY? • A SEARCH PURSUANT TO A WARRANT IS PRESUMED TO BE REASONABLE. THIS PRESUMPTION PLACES THE BURDEN ON THE DEFENDANT TO PROVE THE SEARCH WAS ILLEGAL. • A SEARCH WITHOUT A WARRANT IS PRESUMED TO BE UNREASONABLE. THIS PRESUMPTION PLACES THE BURDEN ON THE PEOPLE TO PROVE THE SEARCH WAS LEGAL.

14. 3 LEVELS OF POLICE CONTACT

15. 3 LEVELS OF POLICE CONTACT • LEVEL 1: CONSENSUAL ENCOUNTER • NO FOURTH AMENDMENT SEIZURE

16. 3 LEVELS OF POLICE CONTACT • LEVEL 1: CONSENSUAL ENCOUNTER • NO FOURTH AMENDMENT SEIZURE • LEVEL 2: INVESTIGATIVE DETENTION • FOURTH AMENDMENT SEIZURE • LIMITED SCOPE AND DURATION • MUST BE SUPPORTED BY REASONABLE SUSPICION OF CRIMINAL ACTIVITY

17. 3 LEVELS OF POLICE CONTACT • LEVEL 1: CONSENSUAL ENCOUNTER • NO FOURTH AMENDMENT SEIZURE • LEVEL 2: INVESTIGATIVE DETENTION • FOURTH AMENDMENT SEIZURE • LIMITED SCOPE AND DURATION • MUST BE SUPPORTED BY REASONABLE SUSPICION OF CRIMINAL ACTIVITY • LEVEL 3: ARRESTS • MUST BE SUPPORTED BY PROBABLE CAUSE

18. INVESTIGATIVE DETENSIONS • Fourth Amendment challenges can be avoided if a “stop & frisk” is maintained in a consensual atmosphere throughout an encounter. • Recorded documentation of the consensual encounter through audio/video recorders may be done to capture the words and conduct usedto assist with constitutional scrutiny.

19. INVESTIGATIVE DETENSIONS • “Unprovoked Flight” by an individual upon seeing a police officer approaching in a “High Crime Area” will support reasonable suspicion to stop a person, but not necessarily a frisk of the person. Illinois v. Wardlow, 528 U.S. 119 (2000)

20. State v. Weaver, 2007 UT App 292, 169 P.3d 760 • EXCEEDING THE SCOPE OF THE STOP • ONCE THE PURPOSE OF THE STOP IS COMPLETED, THE OFFICER MUST END THE ENCOUNTER AND PERMIT THE DRIVER TO LEAVE

21. SEARCHES & SEIZURES • WARRANTS ARE REQUIRED… • HOWEVER, EXCEPTIONS DO EXIST • ADMINISTRATIVE • WAIVER (CONSENT GIVEN) • FORFEITURE • EXIGENCY

22. ADMINISTRATIVE SEARCH • The search must be for an administrative purpose, rather than part of a criminal investigation to secure evidence to a crime. • Airplane Boarding Searches • Jail Booking • Vehicle Inventories • Vehicle Safety Checkpoints

23. WAIVER • Knowing, Understanding, and Voluntary giving up of a right. • Consent • Encounters – Frisks – Entry – Search • Third Party Consents • Spouse – Parent – Child – Friend – Hotels – Business Records

24. FORFEITURE • The loss of an expectation of privacy through conduct • Plain Sight – Plain Feel – Plain Odor • Open Fields – Fly Over • Jails • Trash Out For Collection

25. EXIGENCY • Imminent danger to life and property • Detentions • Frisks • Arrests • Cars • Hot Pursuit • Crimes in Progress • Community Caretaking • Medical Emergencies

26. SEARCHING THE PERSON:SEARCH INCIDENT TO ARREST • Why do officers search an arrestee? • 1) Officer safety (to remove any weapons) • 2) To seize any evidence on the Arrestee’s person to prevent its concealment and destruction. • Chimel v. California, 395 U.S. 752 (1969)

27. SEARCH INCIDENT TO ARREST – CONT’D • Where can you search? • 1) The arrestee’s person • 2) The area from which the arrestee might gain possession of a weapon or destructible evidence. Chimel v. California

28. SEARCH INCIDENT TO ARREST – CONT’D • What about bags? • Searches of backpacks and bags worn by arrestees at the time of arrest have been upheld in other jurisdictions. People v. Boff, 766 P. 2d 646, 648-649 (1988)

29. SENARIO #1 REFERENCE HANDOUT PROVIDED

30. SENARIO #1Key Issues • 1) Was the seizure of the handgun lawful? • 2) Was this a consensual stop, an investigative detention, or an arrest? • 3) If this was an investigative detention, was it limited in scope and duration and was it supported by reasonable suspicion of criminal activity? • 4) Can the handgun evidence be suppressed?

31. SENARIO #1Key Issues • 1) Was the seizure of the handgun lawful? • YES, AS IT WAS A CONSENT SEARCH. • 2) Was this a consensual stop or an investigative detention? • INVESTIGATIVE DETENTION. • Motioning someone to come over and saying, “Hey come over.”

32. SENARIO #1Key Issues • 3) If this was an investigative detention, was it limited in scope and duration and was it supported by reasonable suspicion of criminal activity? • NOT SUPPORTED BY REASONABLE SUSPICION. U.S. v. Dell • 4) Can the handgun evidence be suppressed? • YES, AS THE STOP WAS NOT VALID, ALL SUBSEQUENT EVIDENCE SEIZED WAS SUPRESSED. U.S. v. Dell

33. United States v. Dell Reasonable Suspicion Review • THREE OBSERVATIONS: • 1) Defendant was in what the Officer thought to be a high-crime area, particularly with regard to vehicle break-ins. • 2) Defendant was peering into the windows of a legally parked vehicle. • 3) Defendant walked away from the parked car upon seeing the patrolling Officer approaching.

34. United States v. Dell Reasonable Suspicion Review • 1) No statistics or testimony to support the area as a high-crime area, other than the Officer commenting he had a 6 ½ year work history in the area. • 2) Conduct observed was so innocuous and so very much in the realm of ordinary behavior that it would not lead a reasonable officer to suspect that a car break-in occurred or was about to occur. • 3) Walking away on the sidewalk in the same direction that a police officer is travelling does not speak to anything criminal at all.

35. United States v. DellComments in the Court Opinion • “The government’s argument that Mr. Dell’s behavior was ‘inherently suspicious’ is conclusory, and skips the crucial part of reasonable suspicion analysis by failing to ask – answer – why the officer’s observations indicated suspicious criminal behavior.” • “The Officer never articulated why his observations led him to suspect criminal activity.” • “The Officer demonstrates no connection between his training and experience and the suspicion of illegality.”

36. United States v. DellDifferent Opinion Possible? • REMEMBER: SUPPORT ALL ACTIONS BY PROVIDING SUFFICIENT INFORMATION TO SATISFY EVERY JUDGE SO THE EVIDENCE WILL NOT BE LOST. • Consensual contact option? • Better articulation of reasonable suspicion • Supporting information for high-crime area • Relate training and experience to observations • How was behavior not ordinary

37. SENARIO #2 • REFERENCE HANDOUT PROVIDED

38. SENARIO #2Things to think about: • Type of stop and was the stop valid? • Did it remain within the scope of the stop? • Was the use of the dog permissible? • Was there sufficient probable cause to search? • Was there a sufficient nexus between the drugs and suspect? • “It’s not what you know, it’s what you can prove.” • Was the Miranda Warning properly given and the subsequent confession admissible?

39. VEHICLE STOPS AND SEARCHES

40. VEHICLE SEIZURE • A SHOW OF AUTHORITY CONSITUTES A SEIZURE OF A VEHICLE: • “FEW, IF ANY, REASONABLE CITIZENS, WHILE PARKED, WOULD SIMPLY DRIVE AWAY AND ASSUME THAT THE POLICE, IN TURNING ON THE EMERGENCY EQUIPMENT FLASHERS, WOULD BE COMMUNICATING SOMETHING OTHER THAN FOR THEM TO REMAIN.” Lawson v. State

41. VEHICLE SEIZURE – CONT’DMISTAKE OF FACT AND/OR LAW • An officer must have reasonable suspicion of a traffic violation. If that reasonable suspicion is based upon a mistake of fact, the stop may still be valid. • As a matter of courtesy, the officer could explain to the driver in the defendant’s circumstance the reason for the initial detention and then allow them to continue on their way without asking them to produce their driver’s license and registration. U.S. v. McSwain

42. VEHICLE SEIZURE – CONT’DMISTAKE OF FACT AND/OR LAW • An officer must have reasonable suspicion of a traffic violation. If that reasonable suspicion is based upon a mistake of fact, the stop may still be valid. • As a matter of courtesy, the officer could explain to the driver in the defendant’s circumstance the reason for the initial detention and then allow them to continue on their way without asking them to produce their driver’s license and registration. U.S. v. McSwain • A mistake in law invalidates the stop: Failure to understand the law by the very person charged with enforcing it is not objectively reasonable. U.S. v. Tibbetts

43. VEHICLE SEIZURES – CONT’D • PRETEXTUAL CAR STOPS An officer may follow a vehicle, wait for a traffic violation, then hope to see contraband in plain sight, smell contraband, or get consent to search. The United States Supreme Court held that it was permissible for undercover officers to stop a car for a traffic violation in a high drug area even though the stop would not have been made but for the officer’s suspicions about dope. Wren v. U.S. An officer who observes a traffic violation has probable cause to stop the vehicle regardless of the officer’s motivations or suspicions that are unrelated to the traffic offense. State v. Lopez

44. VEHICLE SEIZURE – CONT’D • OFFICER MAY ORDER DRIVER AND PASSENGERS OUT OF VEHICLE: • Once a vehicle has been lawfully stopped for a traffic violation, an officer may order the driver to get out of the car as well as any passengers to get out of the car without violating the Forth Amendment. Pennsylvania v. Mimms Maryland v. Wilson

45. VEHICLE SEIZURESCOPE OF INVESTIGATION

46. VEHICLE SEIZURESCOPE OF INVESTIGATION • Once the stop is justified at its inception, the courts must then examine whether the stop was “reasonably related in scope to the traffic violation which justified it in the first place.” State v. Lopez

47. VEHICLE SEIZURESCOPE OF INVESTIGATION • Once the stop is justified at its inception, the courts must then examine whether the stop was “reasonably related in scope to the traffic violation which justified it in the first place.” State v. Lopez • If an officer is conducting a routine traffic stop, it is within the scope of the stop to request a driver’s license, vehicle registration, conduct a computer check, and issue a citation. State v. Lopez

48. VEHICLE SEIZURESCOPE OF INVESTIGATION • Once the stop is justified at its inception, the courts must then examine whether the stop was “reasonably related in scope to the traffic violation which justified it in the first place.” State v. Lopez • If an officer is conducting a routine traffic stop, it is within the scope of the stop to request a driver’s license, vehicle registration, conduct a computer check, and issue a citation. State v. Lopez • Law enforcement officers may routinely run warrant checks on traffic infraction detainees, provided the check does not unreasonably prolong the detention. United States v. Pena

49. VEHICLE SEARCHAUTOMOBILE EXCEPTION • PROBABLE CAUSE SEARCHES: • “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment, permits police to search the vehicle without more.” • Maryland v. Dyson

50. VEHICLE SEARCHAUTOMOBILE EXCEPTION – CONT’D • Police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant. This includes the trunk and any containers that may conceal the object of the search. • U.S. v. Ross