Search and Seizure

Terminal Learning Objective

• Action: Discuss search and seizure law.

• Condition: Given a guided classroom discussion.

• Standard: Discussed search and seizure law.

Advanced Law Enforcement:TERMS

SeizureDetentionArrestApprehensionCustodyTerry StopTraffic Stop

Seizure Standards

Consensual

Traffic Stop

Terry Stop

Apprehension (Custody)

No Seizure

Reasonable Suspicion

Reasonable Suspicion

Probable Cause

Apprehension

• Civilian term = Arrest• Military term = Apprehension

(Apprehension always = custody)

• ONLY SOLDIERS CAN BE APPREHENDED!!

• Civilians are “Detained”

Custody• Definition:

1.A formal arrest; or 2.A restraint on the freedom of movement of

the degree associated with a formal arrest.• Objective Test:

– Would a reasonable person believe, given all facts, that he/she is not free to leave?

• Subjective belief of officer or suspect is irrelevant

Apprehension(Putting Them In Custody)

What you NEED = Probable Cause to believe that you have:

1. A UCMJ violation2. A person subject to UCMJ

who committed the violation

(RCM 302 controls) (PC = “fair probability, based

on ALL the circumstances”)

Probable CauseYou are the expert.

If you saw this, could you apprehend the owner?

Can knowing a VIN number give you PC?

Who Can Apprehend

1. MPs, while executing law enforcement duties– No off duty authority!

2. ALL officers, warrant, petty & non-commissioned– On or off-duty, (See Art. 7, UCMJ)

3. Investigators, guards, sentinels appointed by proper authority and executing assigned duties

4. Federal law enforcement officers5. For Deserters:

– Civilian police may arrest them

ApprehensionSpecial Notes

• If you apprehended an officer:– Notify the Staff Duty ASAP

• R.C.M. 302(d)– Give notice

– Use of Force

• Follow Your SOP!!

Use of Force

MP Authority Over Civilians

• Derived from inherent authority of the installation commander.– 18 U.S.C. section 1382, No

trespassing

• Civilians are “DETAINED”– Turn over to civilian authorities

Where Can You Apprehend

• Persons subject to the UCMJ:– ANYWHERE!!– 24 / 7 = subject to UCMJ

• Persons NOT subject to UCMJ:– ONLY on-post– ONLY “detain”

Remember

• MP authority to apprehend is based on “executing military duties”

• No authority to apprehend when off-duty (Unless NCO, WO or Officer)

• Apprehend those subject to UCMJ – otherwise “detain”

Review

• Your Questions?• My questions:

– What rule governs apprehensions?– Who gives you the authority to detain

civilians?– What is required to apprehend?– What can ruin a good apprehension?

Searches

US CONSTITUTION4th Amendment

4th 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….”

The 4th Amendment Trigger

GOVERNMENT INTRUSION

EXPECTATION OF PRIVACY

G I + R E O P = 4th Amendment Trigger

4th Amendment

• General rules:1. Nothing “unreasonable”2. Warrant required!!!

• based probable cause• oath / affirmation• describing place / person to be searched /

seized

Probable Cause• Reasonable belief • that specific items or persons connected

with criminal activity• are located in a specific place or on

a person to be searched.

Your experience is everything!

Terry Stop

• REASONABLE SUSPICION that Criminal Activity is “afoot.”

• Articulate the facts and circumstances that lead you to believe that a crime was, is or will be committed.

Frisk

• Stop and MAYBE Frisk (not automatic!)

• Must have reasonable suspicion that person stopped is presently armed and dangerous.– More than just general “officer safety.”– Nature of the crime?– Prior contacts?– Suspicious bulges?– Furtive movements?– Express threat: “I’ll kill you!”

Frisk

• Pat Down the outer clothing in areas where weapons may be concealed and reached by the suspect.

• Do not reach into pockets unless you are retrieving a suspected weapon.

– BUT… Define weapons broadly!• Screwdriver? Pencil? Personal Mace? Pocket knife? • If it is not illegal to carry the “dangerous” item (i.e.. The

pencil or pen) hold onto the item during the investigation and then return it when you are done.

Search Authorization

• Civilian World – Judge– Magistrate

• Military World– Judge – Magistrate– Commander

Search Authorization

• Experience + Common Sense – Need fresh facts– From a reliable source– No guess work / no rumor– Indicating evidence of a crime – Is located in the area to be searched

(expectation of privacy)

Search AuthorizationKey Questions:

• How do you know?– Saw– Smelled– Heard– Tasted

• Why are you reliable?• Why are you the expert?• Talk to the ACTUAL witness

Search Authorizations

• COMMANDER Neutral and Detached

– If he is involved in setting up the investigation – NO – If he already has a position regarding the guilt or

innocence of a suspect – NO – If he remains uninvolved in the details of the

investigation, remains calm, and appears “neutral and detached” – OK

Search AuthorizationDetails on the paperwork:• NO KNOCK Rule

– If justified - request it • Day/Night Service - no distinction

– If you want night, request it (courtesy)• Drug Dog = OK

– Tell directing official you will use one (courtesy)• Computers

– Contact JAG ‘BEFORE’

Exceptions to the Warrant Requirement

Search Incident To Apprehension

• PC required (PC to apprehend)– Expectation of Privacy is diminished

• Apprehension of person– Scope

• Apprehension in a car– Scope

Vehicle Exception

• From Incident to Apprehension to PC…• PC required• Scope = whole car• Vehicle must be

operable

Exigent Circumstances

• PC required• Delay will cause loss / escape / harm

– Hot pursuit– Destruction of evidence– Life in danger

• Immediate action required

Consent

• Authority to consent

• Scope of search

• Withdrawal of consent

• Consent must be voluntary– No coercion

Plain View Seizure• I am in an area where I am authorized to be;

– No matter how crazy you got there

• I see something illegal– Must be immediately

recognizable as contraband or evidence of crime

• Seize it!– If you can get to the

evidence legally

Inspections

• Incident of command• Exam of all or part of unit• Primary Purpose:

– properly equipped– maintain readiness– sanitation/cleanliness– personnel fit/ready for duty

Inspections

• SUBTERFUGE is the pitfall

• If the Inspection is conducted with the primary purpose of finding evidence for use at trial, the evidence will be suppressed.

• Must be conducted for health and welfare purpose; not for criminal investigation.

Inventory

• Purpose is NOT for criminal investigations. • Purpose = administrative• Requirements:

– Lawful impound– Standard inventory SOP– Inventory conducted IAW SOP

• Inventories should be tied to SOPs– Routine is the key

Other Searches

• Abandoned property– NO REOP; No 4th Amendment

• Foreign Searches– 4th Amendment does not apply– BUT, no gross or brutal maltreatment

• Private Search– No GI; No 4th Amendment

Summary

• Government intrusion & Expectation of privacy

• Search Authorization• Search Incident to Apprehension • Vehicle Exception• Exigent Circumstances Exception• Consent• Plain View Exception• Inspections and Inventories

• Your Questions?• What is generally required before you search?• Define probable cause.• Who can authorize a search on post?• When a commander authorizes a search, what

must he be? Can authorization be issued orally?• Can commander delegate authority to search?

– What if CDR is gone long-term?

Review

Review

• What are the two principles which implicate the 4th Amendment?

• What is the difference between a Terry Stop and “mere citizen contact?”

• What is the purpose of a health and welfare inspection?

– Can the results be used as evidence?

• What is the purpose of an inventory?– Can the results be used as evidence?

Review

• Where is there REOP?– Computer?– Prison?– Garbage?– “Curtilage?”– Barracks?– On a military post?

You are called to the Commissary because the manager suspects one of the employees, Jones, of stealing food from the meat department. While you interview other employees, the manager says that the Jones was just caught on video tape carrying a box of meat to his car behind the commissary. You check out the area behind the commissary, and there is no box of meat or any other evidence. You call the Military Magistrate to get a Search Authorization to search Jones’ car, but the magistrate is unavailable. You learn the thief is about to leave post. You give chase and catch Jones.

– Can you search the thief’s trunk? Why?

Review

Johnson comes in your office and says that Jones raped her 2 months prior. She did not report because she was afraid of him, and the system. She said that she saved the clothes she wore that night without washing. She said Jones wore a pair of dockers and purple t-shirt with pictures of Prince on the front and Apollonia on the back. You send her to get a rape kit done and send her clothes to the lab. Then you go to magistrate to get an SA to: (1) take Jones’ DNA sample; (2) take Jones’ hair sample; (3) search for Jones’ t-shirt; (4) search for Jones’ dockers.

– What will magistrate approve? Why?

Review

You get an SA to search on-post quarters of SSG Jones and his family. You are looking for a laptop computer (no discs or peripheral hardware – just the laptop). You are executing the SA and you enter a closet. There are 2 shelves mounted to the wall, one at 6 feet and one at 7 feet. The higher shelf is too high to see, so you run your hand along the shelf to feel if there is anything on the shelf. You feel a small box and as you move your hand, the box falls to the floor. The box pops open and a white powder fills the air. You taste the powder and believe it to be cocaine.

– Will the cocaine be admissible? Why?

Review

Drunk driver is apprehended. MP wants to search a locked briefcase in the back seat of the car.

– Can he? Why?

MP now wants to search the trunk.– Can he? Why?

Later MP wants to search the dumpster behind the DUI soldier’s barracks.

– Can he? Why?

Review

You see a red mustang parked at the post theater. You know from your experiences back home that red mustangs are commonly driven by drug dealers. You observe two people standing around the red mustang, but nothing has changed hands. It is about 1700, and the theater is open for business. You believe their activity is suspicious and decide to apprehend.

– Is the apprehension good? Why?

Review

You are driving on duty and see a car whose driver appears to be impaired – frequent lane changes, speed changes, inability to drive within the lane. You pull over and when the driver opens the window, you see red eyes and the driver is lethargic. You are not a professional at knowing what drunk/stoned people look like, but you ask the driver if you can search his car. He says he doesn’t care because the car is not his – he just borrowed it. You search and find a joint in the ashtray.

– Was the search lawful? Why?

Review

Soldier in barracks goes into neighboring room, without permission, because he thinks neighbor stole his Play Station 2. He finds the PS2 in his neighbor’s wall locker after prying the door open.

– Will the PS2 be admissible against neighbor? Why?

Review

Review

You walk up to a soldier in your unit while he is at the bowling alley in civilian clothes. As you approach, you see the soldier sneakily pull his hand out of his pocket and drop a small bag to the ground and then step in front of the bag so as to hide it from your view.

– Can you pick up the bag to be used as evidence?– Will it be admissible in court?

Review

You are the commander of a unit that has a drug problem. One of your soldiers, PFC Jones, is in ASAP because he had come up hot for marijuana. Since then he has been working hard to overcome his mistakes and has regularly ratted out his former buddies. Jones’ information has been completely accurate so far. Today Jones comes in your office and tells you that he can buy MJ from one of your soldiers. You decide to let him do it so that you can break this drug problem once and for all. You and Jones count out $50