POST LD 16 Search and Seizure
Terms in this set (93)
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 persons or things to be seized.
California Constitution Article 1 Section 13
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches, shall not be violated, and a warrant may not be issued except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.
4th amendment limit in scope to government agencies
Privacy violations conducted by private citizens are not covered by the 4th amendment, but may be subject to civil liability.
When an expectation of privacy that society is prepared to consider reasonable is infringed upon by the government.
Seizure of property
Occurs when there is some meaningful interference with an individual's possessory interest in that property by the government
Seizure of a person
- A peace officer physically applies force
- A person voluntarily submits to a peace officer's authority
Expectation of privacy
Individuals have indicated that they personally (subjectively) expect privacy in the object or area
Their expectation is one which society is prepared to recognize as legitimate
Subjective expectation of privacy
A person's state of mind demonstrated by affirmative action designed to protect their privacy (e.g., building a fence, closing window shades, locking a compartment, etc.).
Whether society is prepared to recognize the individual's expectation as reasonable.
The relatively small and usually well-defined area immediately around a residence to which the occupant has a reasonable expectation of privacy.
Outdoor real property, outside the curtilage of the residence
Are so open to public view that the owner or possessor is deemed to have implicitly invited the general public to view the area. Because of the lack of a reasonable expectation of privacy in open fields, the protections of the Fourth Amendment do not apply.
(Open fields do not have to be either open or real fields to qualify)
The flight of a plane or helicopter over a given area
Because of the lack of a reasonable expectation of privacy in an area that can be viewed from an overflight, the protections of the Fourth Amendment do not apply, as long as the aircraft is:
At an altitude permitted by FAA regulations
Being operated in a "physically nonintrusive manner"
To challenge a particular search or seizure, a person must have a reasonable expectation of privacy in the place or thing that was searched or seized. Only a person with standing can challenge the search or seizure of property, based on Fourth Amendment protections.
Standing generally is established by:
control of the area searched or the property seized
Probable cause to search an area or object
Having enough facts or information to provide a fair probability, or a substantial chance, that the item sought is located in the place to be searched.
To establish probable cause to search, peace officers must be able to articulate how and why they have a fair probability to believe:
a crime has occurred or is about to occur
evidence pertaining to the crime exists
the evidence is at the location they wish to search
The exclusionary rule
If a court finds a search or seizure is not reasonable and a person's Fourth Amendment rights have been violated by the government, all items seized during the search could be ruled inadmissible or excluded as evidence at trial.
NOTE: This inadmissible or excluded evidence is often referred to as "The fruit of the poisonous tree."
(Created as a rule by the US Supreme Court to encourage proper law enforcement conduct)
an order in writing, in the name of the people
signed by a magistrate
directed to a peace officer
commanding the officer to search for an individual or individuals, a thing or things, or personal property
in the case of a thing or things or personal property, to bring the same before the magistrate (Penal Code Section 1523)
Content of a search warrant
The names of all those who have sworn that the facts presented as probable cause are true
The statutory grounds for issuing the warrant
Descriptions of the places and/or persons to be searched
Descriptions of the things or property to be seized
The magistrate's signature
The date issued
An indication by magistrate if nighttime service is authorized
Probable cause to search
Peace officers must articulate probable cause that:
a crime has been committed, and
evidence concerning the crime or the identity of the perpetrator is located at the place to be searched.
The act of drawing a conclusion from a fact; it is similar to making a presumption (e.g., seeing smoke and inferring there is a fire).
Evidence that proves a fact directly, without an inference or presumption (e.g., the sale of a controlled substance to an undercover officer).
Evidence that proves a fact indirectly, that is, personal knowledge or observations from which deductions must be drawn by the jury or court (e.g., partial six-pack of beer found on the car seat supports inference that someone in the car has been drinking).
Securing an area pending issuance of a search warrant
Under very limited circumstances peace officers may secure a residence while in the process of obtaining a search warrant. In addition to probable cause to search, they also need exigencies, that is, a belief, based on the surrounding circumstances or information at hand, that the evidence will likely be destroyed or removed before a search warrant can be obtained.
An area may be secured pending issuance of a search warrant if the suspect has been arrested inside the location.
An area may be secured pending issuance of a search warrant if companions of the suspect may destroy items sought upon learning of the arrest.
NOTE: Refusal of consent to enter, by itself, does not provide justification to secure the premises pending issuance of a search warrant.
Time limit for warrants
Must be executed within 10 days
(Beginning with the day after the warrant is issued and running until midnight of the 10th day, with no exceptions for weekends or holidays)
Time of service for a warrant
Normally, a search warrant may be served only between the hours of 7:00 a.m. and 10:00 p.m
Return of the warrant
The return of the warrant means returning the warrant and a written inventory of the property taken to the magistrate (PC 1537)
If the 10th day falls on a weekend or holiday, then peace officers are entitled to postpone returning the warrant until the next business day.
Justification of a nighttime service of a warrant
Must be specifically approved by the magistrate:
nighttime service will decrease danger to the peace officers
a drug sale occurred at the search location at night
prompt execution might preclude murders
the property sought will likely be gone, sold, or removed by dawn
the stolen items are primarily perishable or easily disposable goods
(As long as a search begins before 10pm, nighttime authorization is not required)
Knock and Notice (PC 1531)
Before entering a dwelling to serve a search warrant, officers must give notice to persons inside through certain actions:
knock or otherwise announce their presence
identify themselves as peace officers
state their purpose
wait a reasonable amount of time
if necessary, forcibly enter the premises
(does not apply to inner doors)
Warrant wait/refusal requirements
When executing a search warrant, there is a specific requirement that before forcing entry, peace officers must be refused admittance.
Refusal may be based on:
a verbal statement
the passage of a reasonable amount of time
(The amount of time that is considered reasonable will depend on all the circumstances. Approximately one minute would be a safe period in most cases, but it can be less, especially if peace officers know that someone is inside and awake)
Exceptions to knock and notice
The law allows peace officers to enter private property unannounced if they can demonstrate that compliance with the knock and notice requirements would be futile, or that compliance could result in:
harm to the officers or other individuals (e.g., hostages
the destruction of evidence
Peace officers may use a false identity, a ruse or trick to obtain consent to enter as long as they already have a judicially-authorized right to enter, i.e.,
a search warrant.
Presenting the search warrant
If the occupant is present, peace officers should show the occupant the original warrant and give the occupant a copy.
If no one is home, a copy of the warrant may be left in a conspicuous place. Likewise, officers must leave behind a detailed list of the property taken, whether anyone is home or not. (Penal Code Section 1535)
(In CA there is no statutory requirement to leave a copy of the warrant)
Detaining persons during a search
Peace officers may detain and frisk/pat search persons who are present and have demonstrated a connection with the premises. Examples of such a connection include a person who:
is already inside the premises
has a key to enter the premises freely
enters the premises without knocking
(Someone's mere arrival, by itself, at premises where a search is being conducted does not provide enough connection to justify a detention, let alone a cursory/frisk/pat search)
(In commercial establishes, only those who appear connected with criminal activity can be detained)
When a warrant authorizes the search of a residence, vehicle, or person, it automatically authorizes the search of any thing, place, or container inside that residence or vehicle, or on that person, where the object of the search might be located.
If, however, the warrant was not for a general area, but instead was for a particular container, that container would also have to be described as completely as possible in the warrant.
Officers may seize items not listed in the warrant when:
the items are discovered while the officers are conducting a lawful search for the listed evidence, and
they have probable cause to believe the item is contraband, evidence of criminal behavior, or would otherwise aid in the apprehension or conviction of the criminal
Plain view exception to the 4th Amendment
When an officer sees an item in plain view, from a place the officer has a lawful right to be, no search has taken place. The owner or possessor obviously has no reasonable expectation of privacy for items which are in plain view. Without an expectation of privacy, the owner or possessor has no Fourth Amendment protection.
Requirements for seizure of plain view items
Peace officers must have:
a lawful right to be in the location
lawful access to the item
(Officers may use all of their senses, not just sight, to obtain probable cause. The plain view doctrine, therefore, can also include items they can smell, hear, or touch from a lawful position)
If officers are in a place where they have a lawful right to be, and if they use a device that is nonintrusive to aid or enhance their observations, their observations of items or areas in plain view are lawful, despite the enhancement.
Including trash placed outside of curtilage has no protection under the 4th amendment
Simply because an officer can see an object in plain view from a lawful location does not automatically mean the officer may legally enter private property without a warrant to seize it, even if the object is obviously contraband or evidence of a crime. The officer also needs lawful access.
the officer's entry is based on consent
the officer's entry is based on exigent circumstances, for example, a reasonable belief that the evidence will be destroyed if entry is delayed in order to obtain a warrant
the officer has lawfully entered the area for some other purpose (e.g., to conduct a parole or probation search, or an administrative or regulatory search, etc.)
plain view seizures
searches pursuant to exigent circumstances
searches incident to custodial arrest
If an officer has a factual basis to suspect the person being detained poses a danger to the officer, or is carrying a concealed weapon or an object that could be used as a weapon, the officer is justified in conducting a limited search for the weapon without a warrant
A cursory/frisk/pat search is a strictly limited search for weapons of the outer clothing of a person who has been lawfully detained. A cursory/frisk/pat search is a search for possible weapons only, not a search for contraband or other evidence.
Once the officer conducting the search realizes an object is not a weapon, the officer cannot further manipulate the object; the officer must move on.
Justification for a cursory searches
Bulge in clothing that is the size of a potential weapon
Wearing a heavy coat when the weather is warm
Trying to hide something
Appearing overly nervous
Acting in a threatening manner
History of carrying weapons or violent behavior
Reason for detention
Stopped in order to investigate a serious, violent, or armed offense
Lawful search of companions revealed a weapon or potential weapon
Stopped in an area known for violence, or where the officer is unlikely to receive immediate aid if attacked
Time of day/amount of light
Stopped during nighttime
Stopped in an area with little or no lighting
Detainees outnumber officers
Contraband detected during a cursory search
Can only be seized if readily identified during the search for weapons
Containers detected during a cursory search
Can be opened if there is potential that they could contain a weapon
(Common containers such as cigarette packs and film containers are not searchable)
Reaching inside during a cursory search
During a cursory/frisk/pat search, an officer may reach inside a subject's clothing or pockets to inspect an object further only if:
the object reasonably felt like a weapon or something that could be used as a weapon
the subject's clothing is so rigid or heavy that the officer could not rule out the possibility of a weapon or potential weapon
Transporting a passenger
Peace officers may conduct a cursory/frisk/pat search of any person the officers have a duty or are obligated to transport before permitting the person to ride in a law enforcement vehicle.
If officers are not obligated to transport the person, a cursory/frisk/pat search is permitted only if the officer informs passengers that:
they have the right to refuse the ride
if they accept the ride, they must first consent to a cursory/frisk/pat search
Necessary conditions for a consent search
For consent to be valid, the consent must be:
obtained from a person with apparent authority to give that consent
(If the consent is valid, the consenter has temporarily relinquished any expectation of privacy for the area or item to be searched)
(An unlawful detention invalidates a consent search)
Consent to search
Can be expressed or complied
(should always try to get express consent)
Husband/wife, parent/child, roommates/co-occupants:
Consenter has authority if...
there is joint access or control over an area or thing (e.g., kitchen, family room).
Consenter has no authority if...
the item is clearly a personal effect of, or the area is under the sole authority of, the nonconsenter (e.g., personal suitcase, tool box, locked closet). Co-occupant is present and objects to the search.
Landlord/tenant, motel owner/boarder
Consenter has authority if...
consenter is landlord or owner who has regained exclusive possession of a rental property.
Consenter has no authority if...
consenter is landlord or owner, but the premises are still occupied by the tenant (e.g., apartment, motel room).
Consenter has authority if...
there is common authority or control over the area or thing (e.g., unlocked file cabinets, open office spaces).
Consenter has no authority if...
the item is clearly a personal effect of, or the area is under the sole authority of, the nonconsenter (e.g., briefcase, purse, locked drawer)
Exigent circumstances for a warrantless search
imminent danger to a person's life or safety
serious damage to property
imminent escape of a suspect
- hot pursuit or fresh pursuit
imminent destruction or removal of evidence
Once inside, peace officers may do whatever is necessary to resolve the emergency -- nothing more. Once the emergency has dissipated (no longer any imminent danger to life, property, etc.), a warrant may be needed for further searching.
Officers may seize items in plain view
Search incident to arrest
A search incident to arrest may be conducted when:
probable cause for a lawful arrest exists
the suspect is taken into custody
the search is contemporaneous with the arrest
NOTE: The search is justified by the custodial nature of the arrest, not by the nature or circumstances of the crime that lead to the arrest.
Scope of a search incident to arrest
A search incident to a custodial arrest may include:
a full search of the arrestee's person
containers on the arrestee's person
the nearby physical area that was under the immediate control of the arrestee (sometimes referred to as "within arm's reach")
One in which the person will be transported to another location or facility, such as a station, jail, detox center, juvenile hall, or school.
A brief search to look for individuals only.
If peace officers are already lawfully inside or outside a house and have a specific factual basis for believing there may be other people inside who pose a danger to them, the officers can conduct a protective sweep.
Limited to spaces immediately adjoining the area of an arrest:
where another person could be hiding
from which an attack could be immediately launched
Contraband in open view may be seized
Scope of parole and probation searches
Parole search conditions permit a search of the parolee's person, residence, and any other property under their control (e.g., vehicle, backpack, etc.).
Probation search conditions depend on the specific terms of the probationer, which may be as broad as parole conditions.
Therefore, officers should determine the probation search conditions before they conduct a search.
Search of a probationer/parolee residence
Although absolute certainty is not required, the officer must possess some specific information that reasonably indicates the residence is, in fact, the probationer's/parolee's.
Knock and Notice
Officers must comply with all knock and notice requirements unless compliance is excused for good cause.
Officers who are conducting a lawful probation/parole search need not obtain the consent of a joint occupant of the premises, nor will the objections of a joint occupant invalidate the search.
Officers may search any rooms under a probationer/parolee's control, including any areas controlled jointly with other occupants of the residence.
Personal property may be searched when officers reasonably believe it is owned or controlled, or jointly owned or controlled by the probationer/parolee.
If the probationer/parolee denies that they live in the residence or that personal property belongs to them (or if a joint occupant denies such), officers are not required to accept such denials. (A false denial might be expected when contraband is on the premises.)
Probable cause exception
If officers honestly believe they have enough information to obtain a search warrant for a vehicle from a magistrate, it is legal for them to go ahead and search the vehicle without a warrant.
NOTE: The probable cause exception applies not only to any vehicle which is mobile, but also to any vehicle which reasonably appears to be mobile even if, in fact, it is not.
NOTE: If the vehicle is in a place which has a reasonable expectation of privacy, such as a garage, a warrant may be necessary to search (enter) the property (garage).
Scope of warrantless vehicle searches
Officers may search any part of a motor vehicle, or anything inside the vehicle, as long as what they are searching for might reasonably be located there. This includes, but is not limited to:
the passenger compartment
the glove compartment
any closed personal containers (including locked containers)
motor homes being used on the highway or parked on a public street
NOTE: Self-propelled wheelchairs, invalid tricycles, or motorized quadri-cycles when operated by a person because of disability are not considered motor vehicles.
NOTE: Boats are searchable under the same rules as motor vehicles.
Time of search for vehicles
Does not have to happen contemporaneously with the vehicle stop. Could occur later is the vehicle is being towed or impounded.
Protective search of a vehicle
A limited warrantless search of the passenger compartment of a vehicle for weapons.
A protective vehicle search is permitted if:
the driver or other occupant is being lawfully detained
the officer reasonably believes, based on specific facts, that there may be a weapon (lawful or unlawful) or item that could be used as a weapon, inside the vehicle
Officers need only a reasonable suspicion that a weapon or potential weapon is in the vehicle. However, this suspicion must be based on specific facts or information.
Scope of protective search of a vehicle
Officers may search:
only for weapons or potential weapons
in the passenger compartment of the vehicle
where the occupant(s) of the vehicle would have reasonable access to a weapon or item that could be used as a weapon
Once the searching officer determines there are no weapons or potential weapons within the passenger compartment, the search must end.
Searching a vehicle incident to custodial arrest
Officers may search the passenger compartment of a vehicle if they have made a valid custodial arrest of any occupant of the vehicle and:
the arrestee is unsecured (e.g. not locked in the police car, not handcuffed) and
has reachable access to the vehicle and/or
the officer has reasonable suspicion to believe evidence, pertaining to the crime for which the suspect was arrested, is to be found in the vehicle and/or
the officer has reasonable suspicion there is a weapon in the vehicle
NOTE: The search may be conducted before the occupant is actually placed under arrest as long as probable cause to arrest existed at the time of the search.
(The trunk of a vehicle may not be searched incident to the arrest of an occupant of the vehicle)
Nexus to the vehicle
If officers did not see the arrestee inside the vehicle, they may nevertheless consider the person to be an occupant of the vehicle if:
the officers reasonably believe the arrestee was an occupant shortly before the arrest
there was something else indicating a close association between the vehicle and the arrestee at the time of the arrest (e.g., the arrestee placed an object inside the vehicle just before the arrest)
Contempor-aneous nature of the search
A search is deemed incident to an arrest only if it occurred:
at or near the time of the arrest
at or near the place of the arrest
while the arrestee is still at the scene
On rare occasions, the contemporaneous requirement can be waived if it was reasonably necessary:
- to delay the search
- to conduct the search in another location
- to conduct the search after the arrestee was removed from the scene
- the search was conducted as soon as it was practical to do so
Vehicles as instrumentality
A vehicle may generally be deemed an instrumentality of a crime if:
the crime was committed inside the vehicle
the vehicle was the means by which the crime was committed (e.g., hit and run)
NOTE: A vehicle is not an instrumentality merely because it is used during the commission of a crime.
Searches of vehicles as instrumentality
When peace officers have probable cause to believe the vehicle itself constitutes evidence of a criminal act, they may seize the vehicle without a warrant and wait until later for an examination performed in accordance with sound scientific procedures.
It is a procedure peace officers use to account for personal property in a vehicle that is being impounded or stored.
(Not a search for contraband)
If, during the course of an inventory, officers discover evidence of a crime or contraband, they may lawfully seize it.
Necessary conditions for a vehicle inventory
To inventory a vehicle:
the vehicle must be in the lawful custody of law enforcement
the officer conducts the inventory pursuant to a standardized agency policy
Purpose of a vehicle inventory
the property of a person whose vehicle has been impounded or stored
the government agency from false claims of loss
Lawful reasons to impound a vehicle
the driver (sole occupant) is taken into custody
the vehicle, involved in a traffic accident, cannot be driven
the vehicle must be moved to protect it or its contents from theft or damage
circumstances listed in the Vehicle Code (e.g., vehicle as a traffic hazard, stolen vehicle, etc.)
Express wording for bodily intrusion searches
Wording authorizing the search of a person's "home, car, and person" does not authorize them to enter the person's body. A warrant to conduct a bodily intrusion search must contain exact wording that expressly permits any type of bodily intrusion, such as collecting a blood sample.
Probable cause plus
In addition to probable cause, the courts also require that the more intense, unusual, prolonged, uncomfortable, unsafe, or undignified the procedure contemplated, the greater the showing for the procedure's necessity must be. This additional show of need is often referred to as probable cause plus.
Considerations for granting a bodily intrusion warrans
What is the likelihood this type of search will result in the discovery of the evidence sought?
Seriousness of the offense
Does the nature of the offense justify the infringement on the person's privacy and dignity?
Importance of the evidence to the investigation
Is this particular evidence absolutely necessary to the investigation, or is it sought
Existence of alternate means
Are there any other less intrusive methods or means of obtaining the same evidence?
Safety and intrusiveness
Will the method or extent of the proposed intrusion:
- threaten the individual's safety or health?
- be conducted in accordance with accepted medical practices?
- involve unusual or untested procedures?
- result in psychological harm to the individual?
Warrantless bodily intrusion searches and seizures
Peace officers may seize evidence from a suspect's person if they have obtained valid consent from that person to do so, and if the search is not considered unreasonably intrusive.
Implied consent for bodily intrusion searches for California drivers
A person who drives a motor vehicle in California has given implied consent for chemical testing (blood, breath, or urine) without a warrant.
Vehicle Code Section 23612 states that persons have given implied consent if they drive a motor vehicle and are lawfully arrested for being under the influence of drugs and/or alcohol.
Refusal to comply with the implied consent law may result in a fine, mandatory imprisonment if convicted, and suspension or revocation of driving privileges.
Warrantless bodily intrusion searches/seizures under exigent circumstances
Probable cause to arrest
The officer must be aware of facts that constitute probable cause to arrest.
Probable cause to search
The officer must reasonably believe that the search will result in the discovery of evidence of a crime.
It must be reasonable to believe that evidence will be lost or destroyed if the officer waits to obtain a warrant.
A need that outweighs the intrusiveness
The need for the evidence must outweigh the intrusive nature of the search and any foreseeable danger.
Evidence that will not change over time.
- Blood samples for routine tests, such as typing or DNA
Evidence that will change or be lost over time.
- Blood samples to test for drugs or alcohol levels
- Scrapings from under a suspect's fingernails
Use of force for bodily intrusion searches/seizures
If a person forcibly resists the lawful seizure of evidence from his/her body, officers may use reasonable force to carry out the search and seizure.
Officers may use only that degree of force that is necessary to overcome the person's resistance and recover the evidence. Officers may not use unreasonable force to recover evidence.
As a general rule, no bodily intrusion is permissible if the force necessary to do it would shock the conscience.
Preventing swallowing of evidence
If officers have probable cause to believe there is evidence in a person's mouth, they may use reasonable force to remove it, or to prevent the person from swallowing it.
Officers are permitted to exert minimal pressure on the neck area to prevent swallowing. However, such pressure may not prevent breathing or substantially impair the flow of blood to the person's head. In other words, no "choke holds" may be used, because they are too dangerous.
Options for obtaining swallowed evidence or contraband
Detain the suspect under controlled conditions and wait until the evidence naturally passes through the suspect's system, or
If a doctor declares the suspect's life is in danger or the suspect is at risk for serious bodily injury then the suspect's stomach can be pumped or an emetic can be administered to induce vomiting, or
The suspect may give consent to a stomach pump or emetic but it should occur under the supervision of a doctor, or
In all other circumstances it should be assumed that a search warrant would be required to pump a suspect's stomach or administer an emetic to induce vomiting for the recovery of evidence.
Blood samples, obtained in a medically approved manner, are considered minimally intrusive. If a warrant is sought, it does not require a detailed explanation of need. Instead, because taking blood involves such a minimal intrusion and is so routine in society today, the affidavit must demonstrate only:
probable cause that the test results will show evidence of a crime
the removal will be conducted by trained medical personnel in accordance with accepted medical practices
If blood is going to be taken without a warrant or consent, officers must
have, in addition to probable cause to arrest and probable cause to search, exigent circumstances, which typically exist because of the evanescent nature
of the evidence.
(Subjects' failure to participate in tests they have no legal right to refuse may be used as evidence of consciousness of guilt.)
Peace officers may obtain fingerprint samples from a person if they have that person's consent or probable cause to believe the person was involved in criminal activity.
If the person has been placed under arrest, the person has no legal right to refuse a fingerprint examination.
Handwriting samples obtained by peace officers are admissible as evidence. The refusal to give a handwriting sample may be commented upon later at a person's trial as consciousness of guilt.
It is impractical to physically force a person to provide handwriting samples. If a person refuses to willingly provide handwriting samples, a court may order them to provide one or be held in contempt-of-court.
A person has no legal right to refuse to give voice evidence. Although a person can not be forced to provide a vocal sample, refusal to do so can later be commented on at trial for the purpose of showing consciousness of guilt.
Actions to take during an identification procedure
Obtain as detailed and complete a description of the suspect as possible from the victim or witness before any identification process.
Tell the victims or witnesses that:
- they should keep an open mind,
- the person who committed the crime may or may not be among those present.
Maintain an appearance of neutrality before, during, and after the actual viewing.
Separate multiple victims or witnesses both before, during, and after the identification process.
Actions to avoid during an identification procedure
Make suggestions, lead, or prompt victims or witnesses to give a description they do not mean to give.
Tell the witness or victim that:
- the person who committed the crime has been caught,
- the victim's property or other evidence was found in the suspect's possession, or
- the suspect has made incriminating statements.
Say anything about a suspect to the victim or witness before, during, or after the actual viewing.
Allow multiple victims or witnesses to:
- talk together about the identification, or
- view an identification process at the same time.
Ask witnesses to give a percentage of certainty in identifying the suspect (could lead a jury to reasonable doubt)
The viewing of a possible suspect by the victim or witness that commonly occurs in the field shortly after a crime has been committed.
Location of a field showup
The victim/witness should be transported to the suspect, except in certain situations:
The subject clearly and voluntarily consents to being moved
Independent probable cause exists to arrest the subject and take the subject into custody
It is very impractical to transport a witness to a possible suspect because:
- the victim or witness is too injured to be moved
- the availability of transporting officers is limited, and the wait would create a greater intrusion on the subject's freedom than transporting the subject
Implications of custody in a field show up
If at all possible, officers should avoid any indication that the subject has been arrested and, therefore, perceived as guilty by law enforcement authorities.
Unless there is a reasonable threat to officer safety, reduce the inherent suggestiveness of implied custody by displaying the suspect outside the law enforcement vehicle and without handcuffs or other forms of restraint.
(also known as a photographic lineup)
Is an identification procedure in which the victim or witness to a crime is asked to look at a number of photographs in an attempt to identify the suspect
Does not have to take place within a short time of the crime, as a field showup does, but should nevertheless take place while the victim's or witness' memory is still fresh.
(also known as a physical lineup)
An identification procedure in which the victim or witness to a crime is asked to look at a number of individuals within a custodial environment in an attempt to identify the suspect.
Takes place within a controlled environment of a law enforcement facility.
If the custodial lineup takes place after criminal judicial proceedings have commenced against the suspect (indictment or first court appearance), the suspect has the right to the presence of an attorney at the lineup.
However, the attorney is present only as a silent observer and is not allowed to ask questions or make objections.