SEARCH & SEIZURE LD-16 Workbook Vol 2, page 3-1

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SEARCH & SEIZURE

LD-16

Workbook Vol 2, page 3-1

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TERMS AND DEFINITIONS

A ________occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon by the government.

A ______ __ ______occurs when there is some meaningful interference with an individual’s possessory interest in that property by the government.

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TERMS AND DEFINITIONS

A ___________ ______occurs when:1. a peace officer physically applies

force or2. a person __________submits to a

peace officer’s authority

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EXPECTATION OF PRIVACY

_________Amendment is not violated unless a person’s legitimate expectation of privacy is infringed upon by the government

Does _____ apply to actions by private persons

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REASONABLE EXPECTATION OF PRIVACY

Can exist almost anytime, anywhere and anyplace as long as:

Person has indicated he/she personally expects ________of an object or area, and

Their expectation is one which _______is prepared to recognize as legitimate

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SUBJECTIVE EXPECTATION OF PRIVACY

Action designed to protect privacy

1. ________2. Closing a window, curtain or door3. _________a tool box4. Locking a compartment, safe, etc.

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OBJECTIVE REASONABLENESS

Refers to whether ________is prepared to recognize the individual’s expectation of privacy.

CURTILAGE Relatively and usually small ________

________ area immediately around a residence to which the private activities of the home extend, and which the owner has an expectation of privacy.

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OPEN FIELDS/OVER FLIGHTS

Open fields – areas which are so open to the public view that the owner or possessor is deemed to have implicitly invited the general public to view the area.

Over flights –____fourth amendment protections as long as:

Aircraft is at altitude permitted by ______ Being operated in physically nonintrusive

manner

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STANDING

Exists when a person has a legitimate possessory interest or relationship over an object or area.

Only a person with __________can challenge the search or seizure of property

1. Ownership

2. ____________3. Authority4. Control of the area searched or property

seized

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PROBABLE CAUSE TO SEARCH

Enough facts or information to provide a fair probability, or a substantial chance, that the ______ _______ is located at the place to be searched.

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ARTICULATION OF PROBABLE CAUSE

To establish PC, the officer must be able to articulate how and why they have a fair probability to believe:

________ has occurred or is about to occur

evidence pertaining to the crime exists

the evidence is at the location to be searched

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ARTICULATION OF PROBABLE CAUSE

__________ training and experience may go into the equation (not just L/E experience)

___________ ___________ ___________

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TYPES OF SEARCHES

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PLAIN VIEW

_______ ______ seizures are not considered searches.

Can seize contraband/evidence that is in plain view as long as officer has right to be where observation was made and has lawful access.

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WARRANTLESS SEARCHES

Only unreasonable searches are illegal All warrantless searches are judicially

presumed _________responsibility of DA to establish legality

All searches conducted with a search warrant are presumed _______up to defense to prove illegal

Not all searches require a warrant

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PATDOWN/CURSURY SEARCHES/FRISKS

Must be lawfully detained Officer must be able to articulate

specific facts which would cause them to reasonably believe the person is __________ or may be carrying a weapon

Scope – outer clothing for weapons/potential weapons

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PATDOWN/CURSURY SEARCHES/FRISK

Contraband: __________ Reaching inside Discovery Transporting passengers – “duty or

obligation to transport”

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CONSENT

Must be valid (_________, obtained from person with authority to give consent)

________ – determined by person giving consent; __________________

Right to Refuse Express vs Implied consent Authority to Consent Withdrawal of Consent – __________

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EXIGENT CIRCUMSTANCES

Scope: Primary purpose for the entry is to

attend to the emergency Can secure the premises only if

reasonable to believe a search is necessary to secure the emergency

Knock & notice exceptions: Not normally required to do so if

____________________ exist

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EXIGENT CIRCUMSTANCES

________________ Re-entry: Once emergency is abated, ______

_______. Can only re-enter if have a search

warrant, consent or another emergency.

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INCIDENT TO ARREST

Can be conducted when: PC for lawful arrest exists Suspect is taken into custody, and The search is ________________ with the

arrest.

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INCIDENT TO ARREST

Scope: Full search of arrestee’s person __________ on person Chimel v Calif – “Arm’s reach rule” Custodial Arrest – must be taken into

______ ________ (arrest) and taken to jail, does ____ include cite and release

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INCIDENT TO ARREST

_____ ___________ (officer safety): Brief search ________________ Limited to areas immediately

adjoining the area of an arrest Illegal if beyond the above mentioned

areas.

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PROBATION/PAROLE

Probation-search as a condition of probation, def must sign probation document agreeing to search at any time by PO or L/E

Parole-search is always a condition of release of a felon state prison; do not have to notify parole officer

___________ Notification

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VEHICLE SEARCHES

Level of PC is the same as buildings/residences

Called the “Automobile Exception” Carroll v US Vehicles defined If you have PC you do _____ need a

search warrant

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PROBABLE CAUSE SEARCHES

Necessary conditions: _______ _______ or lawfully

accessible Have enough facts, knowledge,

training or experience to provide PC that item sought is in the vehicle

Scope:• ___________ the item could be

reasonably located• Includes closed containers

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PROTECTIVE SEARCHES Necessary conditions:• Officer reasonably believes, based on

specific facts, that there may be a weapon or item that could be used as a weapon, inside the vehicle.

Scope:• Areas where __________ would have

reasonable access to weapon or item that could be used as a weapon.

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PROTECTIVE SEARCHES

Containers: Limited to passenger compartment If it could contain a weapon ________________

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CONSENT SEARCHES of Vehicles

Consent must be given __________ and can be withdrawn at any time.

Can advise have right to refuse Containers Must clearly define container and

specific consent to search-clarity ownership

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SEARCH INCIDENT TO A CUSTODIAL ARREST-

VEHICLES

Passenger compartment _______and everything and anything in it.

Must be a custodial arrest, can not be cite and release.

_________ does not have to be inside vehicle when arrest is made.

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SEARCH INCIDENT TO CUSTODIAL ARREST-

VEHICLES Can be _________of vehicle if:1. Officer reasonably believes arrestee

was an occupant shortly before the arrest (documentation) or

2. Something indicating a close association between the vehicle and the arrestee at the time of the arrest (places object inside vehicle just prior to arrest)

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INSTRUMENTALIY SEARCHES

When PC to believe the vehicle itself constitutes evidence of a criminal act:

1. Crime was committed _______ the vehicle

2. Vehicle was the means by which the crime was committed (ADW, hit & run)

Scope:1. Any part where the item maybe

reasonably located

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INVENTORIES1. Not a search: Accounts for personal property in a vehicle

that is going to be stored/impounded2. Must be: Lawful custody of the police Conducted to a _________ ________ or

regulation of the agency (policy must exist)3. Purpose: Protect property of person whose veh is

impounded Protect agency from false claims of theft or

loss4. Repossessed Vehicles

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SEIZURE OF PHYSICAL SEIZURE OF PHYSICAL EVIDENCE FROM A EVIDENCE FROM A PERSON’S BODYPERSON’S BODY

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SEARCH WITH A WARRANT

Reasonable expectation of privacy very high

No person has a right to ________ __________, even if located in their body

Usually need a search warrant

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SEARCH WITH A SEARCH WITH A WARRANTWARRANT

PC plus: Courts require that the more intense,

unusual, prolonged, uncomfortable, unsafe, or undignified the procedure contemplated, the greater the need for showing the procedure’s necessity.

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SEARCH WITHOUT A WARRANT

Consent Calif drivers license, person has given ______

___________ for chemical testing of blood, breath or urine without a warrant

Incident to arrest-to search for and seize evidence from a suspect’s body without a warrant, must have

1. PC to arrest/search2. Exigent circumstances3. A need that outweighs the intrusiveness

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SEARCH WITHOUT A WARRANT

Exigent circumstances

Stale evidence vs ____________evidence

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SWALLOWING/ATTEMPTING TO

SWALLOW EVIDENCE

If evidence is in a Suspect’s mouth can use reasonable force to remove it or prevent it from being swallowed:

Only minimal force allowed-Nothing that amounts to a choke hold is acceptable

General rule, no bodily intrusion is permissible if force necessary to do so would ________ _____ ________

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SWALLOWING OR ATTEMPTING TO SWALLOW

EVIDENCE

Swallowed evidence:1. Can detain until evidence passes

naturally2. Physician can pump stomach or

administer an emetic:__________ by suspect.________by physician based upon

medical necessity (doctor’s judgment not L/E).

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BLOOD SAMPLESBLOOD SAMPLES

If need a _________, need only demonstrate:

1. PC that the evidence will show evidence of a crime

2. The removal will be conducted by a trained _________ person in a lawful manner

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BLOOD SAMPLES If without a warrant or consent need:1. PC to arrest and search2. Exigent circumstances (evanescent

evidence) ________ ________ must be used and

can be taken even if Suspect is unconscious-(considered taken by force if person is unconscious)

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FINGERPRINTSFINGERPRINTS

Can use reasonable force to obtain (not practical)

Person has ___ legal right to refuse if lawfully arrested

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HANDWRITING EVIDENCE

VOICE EVIDENCE Refusal to give handwriting sample can

be used in court as ___________ of guilt.

_________ force a person to give, must get consent or court order.

No legal right to refuse voice evidence.