Arrest, Search, and Seizure
Dallas Police Academy
Terms in this set (56)
What is the presumption regarding a warrantless search?
• A warrantless search is presumed to be unreasonable.
• The State has the burden of establishing that the search was lawful.
• Any governmental violation of a person's reasonable and justifiable expectation of privacy.
• A quest for; a looking for.
The taking of property or the restraint of a person's freedom.
Define "probable cause"
Exists where the facts and circumstances known to the officer, based upon reasonable and trustworthy information, would lead a reasonably prudent person to believe that a search would produce evidence of an offense.
Identify nine factors that may be used to establish probable cause.
• High crime area
• Recognize through smell (smell marihuana in vehicle)
• Location of suspect (stuck in chimney of closed business)
• Has possession of fruits of crime (has stolen goods)
• Furtive gestures (sticking object under vehicle seat)
• Time of day or night
• Abnormal demeanor
• Dress, clothing, or physical condition of suspect
• Information provided by a credible informant
What is the general rule regarding a search by police?
Officers need a search warrant to conduct a search, unless a specific exception applies.
What are the 12 exceptions?
• Stop and frisk - Terry
• Incident to arrest
• Vehicle or mobile exception
• Plain view or open view
• Public place or public view - open field
• Emergency search
• Abandoned property
• Administrative regulatory search
• Substance subject to chemical breakdown
• Plain touch
During the examining trial for the offense of intent to distribute cocaine, Officer Green testifies that he did not inform Mr. Jones that he had a right to say no to the officer's request for consent to search his vehicle. The cocaine was seized pursuant to a search of Mr. Jones' vehicle, based on his consent. At what point is this in the criminal proceeding, since it is taking place during the examining trial? Should the case be dismissed because of the officer's failure?
Examining trial - held before indictment; requires the state to prove its probable cause. An officer is not required to tell a person that he has the right to refuse consent for a search. The case should not be dismissed.
Officers ask Mrs. Downy for consent to search her son's room for drugs. She walks officers to the doorway. While standing outside the bedroom, she states, "My husband and I do not go in Robert's room because the family has an understanding that his privacy should be respected. But he is only 15, and I don't want to see him go down the wrong path." Officers search the bedroom and find drugs. Admissible?
No. She does not have access to the room.
Police ask Susie for consent to search her family home. She is 16 years old, appears to be mature, and is in charge of her younger sister. She tells officers she has free access throughout the house and consents to the search. Evidence is seized from the home tying the parents to drug trafficking. How would the court analyze this seizure?
• Although officers may legally base a search in this instance on the minor's consent, the court will closely scrutinize the minor's age, maturity level, emotional state, etc.
• The recommendation is that officers do not base the search of parent's home on the minor's consent.
Susan allows officers to search her home for about two hours. At 7:55 p.m., she tells officers to stop because it's time for Hell's Kitchen. Officers continue to search and they seize contraband. Admissible?
No. A person may terminate consent at any time.
What is the general rule regarding whether a third party can give consent to search another person's property or premises?
• A third party may consent to a search of common property over which he has access and/or authority.
• The officer must ask the right questions to determine a person's access and authority over property.
In sum, when is consent valid?
• When given freely and voluntarily
• Not under duress or coercion
• No misrepresentation or deception (unless undercover for the department)
• Court looks at all the facts - totality of circumstances
What is the basis for a temporary detention under Terry v. Ohio?
• Officers may temporarily detain a suspect based on reasonable suspicion.
• Detention is not an arrest.
Define "reasonable suspicion"
• Reasonable suspicion is a legal standard that a person has been, is, or is about to be, engaged in criminal activity based on specific and articulable facts and inferences.
• More than a hunch or mere suspicion
• The officer must be able to articulate specific facts which, in light of his experience and general knowledge, taken together with rational inferences from facts, reasonably justify detention.
• There must be enough objective factors to show, when looking at the person's behavior, that he is about to or has committed an offense.
What is the scope of the frisk?
• Pat-down for weapons only
• Pat-down is a limited search of the outer clothing of a suspect for weapons
• If an officer feels an object that reasonably could be a weapon, then the officer can reach under the outer clothing.
• Not a general exploratory search for evidence
• May "frisk" immediate area around person
• May frisk the passenger compartment of vehicle for weapons
• Not the trunk
• Not the locked glove box
• Not locked containers inside the vehicle
In sum, what is the analysis the court makes when looking at a search involving a stop & frisk?
• Was there reasonable suspicion to justify the detention?
• Were there safety concerns to justify the frisk?
What is the basis for a search incident to arrest?
A valid arrest
What may officers seize incident to arrest?
• Instruments of the crime
• Fruits of the crime
• Mere evidence that shows a person's guilt
What is the scope of the search incident to arrest?
• His person
• His effects (such as wallet, backpack)
• In unusual circumstances - body cavities
• The immediate area around the person
• Premises: May search the area within the arrested person's immediate control
• Premises: Need a search warrant or another exception to search closed or concealed areas in the room of arrest that are not within wingspan or immediate area of the arrestee
• Vehicles: Search may be conducted for safety or to preserve evidence
• Vehicles: May search the passanger compartment of vehicle, including containers
• Vehicles: Containers means any object capable of holding another object, including bags, boxes, luggage.
• Vehicles: Does not include locked containers
• Vehicles: Not the locked glove box
• Vehicles: Not the trunk
AN OFFICER ______________ RANDOMLY STOP AN INDIVIDUAL CAR FOR A DRIVER'S LICENSE CHECK.
What is the basis for the vehicle or mobile exception?
What is the scope of the vehicle or mobile exception?
• Officers may search every area of the vehicle and closed containers in which an object sought could reasonably be hidden.
• Once probable cause exists to support a search of a vehicle, the vehicle exception allows officers to search the trunk.
What are the three purposes of the inventory search?
• Protect owner's property
• Protect city from claims
What is the basis of the inventory search?
During a traffic stop, Officer Green arrests John because he has a warrant for his failure to appear for a stop sign violation. John's roommate is in the vehicle. The roommate has a valid driver's license, is not impaired, and is willing to take custody of the vehicle at John's request. The officer impounds the vehicle and finds drugs in the trunk. Admissible?
No. The officer did not have a valid reason for impounding the vehicle.
While conducting an inventory, the officer realizes there is no key for the trunk of the vehicle. He finds a screwdriver and pries open the trunk, causing only minor scratches to the vehicle. He seizes contraband from the trunk. Admissible?
No. Officers may not pry open areas or cause damage to gain access while conducting an inventory.
Valid Terry stop, Officer Green shines a flashlight into the vehicle. He observes the butt of a weapon on the floor of the vehicle? Would the weapon be admissible in court?
Yes. Valid plain view seizure.
Officer Green suspects John may be growing marihuana in his backyard. The officer climbs over John's ten-foot wooden fence and searches the backyard. He seizes marihuana. Would it be admissible?
No. The officer does not have a lawful right to be in the backyard.
In sum, what are the two requirements that must be meet for plain view to apply?
• The officer must have a lawful right to be there. No trespassing.
• It must be immediately apparent to the officer that the object is contraband or evidence of a crime. No touching.
"Curtilage" refers to the area immediately surrounding and adjacent to a home. Like the home, it is protected by the 4th Amendment.
Officers respond to a drive-by shooting. As CAPERS is called to the location to begin its homicide investigation, a crowd has gathered. Detective Green thinks that one of the people in the crowd could be the shooter. Under the murder scene exception, he has everyone detained and searched. He seizes contraband from one of the persons who was in the crowd. Admissible?
No. There is no recognized murder scene exception.
While conducting a frisk, the officer realizes the item is not a weapon. The officer then begins to focus on that particular object. He shakes it and physically manipulates it until he is finally able to determine that it is contraband. Admissible?
No. The officer went beyond the normal frisk to make the determination that the object was contraband.
What is the one thing that an officer must have to conduct a full search with or without a search warrant?
List three points about Probable Cause:
• May be based on hearsay
• Cannot be bolstered (increased) by the results or fruits of the search
• Must always exist for a search and seizure, whether a search warrant is used.
Define "suspicion" or "mere suspicion."
• Little or no evidence of an offense
• To imagine one guilty or culpable without proof
What can an officer require a person to do based on suspicion?
• The officer can investigate by approaching a person to speak with him.
• The person is not required to identify himself or answer the officer's questions.
• The officer may not detain the person.
What are three elements of a temporary detention?
• Reasonable or rational suspicion that some activity out of the ordinary is taking or has taken place;
• Something to connect the person to be detained with the suspicious activity;
• Something to connect the suspicious activity to a specific offense.
What can an officer do based on reasonable suspicion?
• The officer can detain a suspect based on reasonable suspicion.
• The person is not required to identify himself or answer the officer's questions.
• The officer may detain the person for a reasonable amount of time while he investigates the possible offense.
• If safety concerns, the officer may frisk the person for weapons.
What is "constructive custody"?
• May use terms "arrested," "confined," "imprisoned," "in custody," "imprisonment."
• Refers to the actual, forcible detention of a person
• Also includes any coercive measures by threats, menaces or the fear of injury, whereby one person exercises control over the person of another and detains him within certain limits.
What is the holding in Mapp v. Ohio?
• Any evidence seized in violation of the 4th Amendment cannot be used in the criminal prosecution of the accused.
• The 4th Amendment applies to the states.
The Supreme Court firmly established the exclusionary rule to suppress illegal law enforcement activities.
What is the fruits of the poisonous tree doctrine?
• "Fruits of the poisonous tree" - if evidence obtained as the result of an illegal search and seizure leads to additional evidence, the additional evidence is "tainted" and will be suppresses.
• Evidence that results of flows from an illegal search is tainted.
What is the exception to the exclusionary rule?
• There is a good faith exception if evidence was obtained by an officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.
• The cases involve warrants that were technically defective.
• The Texas statute has incorporated the good-faith warrant exception as well.
When does standing generally apply to a defendant?
• They have lawfully been on the premises at the time of the search;
• Have a proprietary or possessory interest in the premises; or
• Have possession of the evidence when it is seized, if the evidence is an essential element of the offense.
Discuss the 4th Amendment and how it relates to the actions of a private person.
• The 4th Amendment does not apply to a private person, unless the private person is acting at the encouragement or under the direction of the government.
• But the private person cannot break the law to obtain evidence.
• Remember: an off-duty officer is not a private person for purpose of the exclusionary rule.
Define "search warrant."
A search warrant is a written order issued by the proper magistrate and directed to a peace officer, commanding the peace officer to search for listed property or thing and to seized the same and bring it before the magistrate.
What are five parts of the affidavit?
• Description of the place to be searched
• Description of the property to be seized
• Description of the person in control of premises
• Allegation that a law has been violated
• Facts showing probable cause
Officer Williams notices that the apartment number for the suspect's apartment has been left off of the search warrant. The warrant does list the street address and apartment building number. Officer Williams decides to go ahead and execute the warrant, since he has personal knowledge regarding which apartment the suspect/drugs are in. Are the seized drugs admissible?
No. This is a major mistake. He should go back before the magistrate and correct the warrant.
What are three ways an officer can establish the basis of probable cause for a search warrant?
• Facts entirely within the affiant's personal knowledge;
• Facts known by the officer combined with a tip or information provided by an informant;
• Facts provided entirely by an informant, either named or unnamed
What independent steps should an officer take to ensure reliability if he relies on an informant or other source as the basis for probable cause in a search warrant?
• Officers should take steps to corroborate by independent investigation information provided by an informant.
• This information should also be stated in the affidavit
What is the holding in Gates v. Illinois?
• The judge looks at "the totality of the circumstances" - the whole picture provided by the facts in the affidavit.
• The judge makes a common sense decision on whether there is sufficient probable cause to believe that the contraband or evidence will be found at the location named in the search warrant.
What two prong test does Aguilar use?
1) Basis of the informant's knowledge
• Usually it is based on his personal observations
• Even if it is not based on his personal observation, may be acceptable if there is a good reason to believe the hearsay
2) The reliability or credibility of the informant
• Informant was a victim of the crime
• The informant provided sufficient details in fact to show direct knowledge of the offense.
• The informant has provided accurate information in the past.
• The informant does not have a criminal record; is gainfully employed; has a good reputation in the community.
• The statements are against his penal interest.
What language is generally contained in the actual search warrant?
• Must run in the name of "The State of Texas";
• Identify what is to be seized and the place to be searched;
• Command the peace officer of the county to search;
• Dated and signed by the magistrate
What is the officer's duty regarding leaving a copy of the search warrant following execution?
• The officer shall present a copy of the warrant to the owner or person in control.
• The officer shall prepare a written inventory of property seized.
• The officer shall put a legible signature on the inventory and present a copy to the owner or person in possession of the property.
• If no person is present, leave copies.
• Failure to leave copies will not normally invalidate the search.
What are proper procedures regarding the handling of seized property / arrested persons?
• The officer shall take possession of seized property and carry it before the magistrate.
• Give the magistrate a copy of warrant stating manner executed and attach the inventory of property seized.
• Make return to magistrate even if no property is seized.
• Failure to make return will not invalidate search.
• Immediately take any arrested person before a magistrate.
• Property seized pursuant to a search warrant shall be kept as provided by the order of the magistrate.
• Property should be placed in the property room or in accordance with the SOP.
• Maintain the chain of custody.
• Retain custody of property, subject to court order.
• May send out for laboratory analysis.
What analysis does the court make when looking at a federal civil rights case involving alleged violations of the 4th Amendment?
• 42 U.S.C. Section 1983
• Federal civil rights violation including excessive force or illegal search and seizure.
• The key is that an officer must be reasonable in his actions, such as in the way he treats persons and handles property during execution of the warrant.
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