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195 Cards in this Set
- Front
- Back
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Fourth Amendment |
The Fourth Amendment to the Constitution prohibits unreasonable searches and seizures by the state and establishes that any search or seizure by the state must be based on probable cause. |
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Fourth Amendment - Constitutional protections |
A priority of the authors of the United States Constitution and the California Constitution was to avoid unlimited actions and intrusions by the government and to protect a person’s: • liberty • possession of property
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Fourth Amendment - Verbiage |
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. |
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Article 1, Section 13, of the California Constitution |
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. |
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Fourth Amendment - Unreasonable searches |
The Fourth Amendment does not give individuals an absolute right to privacy; neither does it prohibit all searches. It limits only those searches conducted by the government that are considered unreasonable by the courts.
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Fourth Amendment - Limitation on government’s power |
The Fourth Amendment, like the other Amendments in the Bill of Rights, limits the power of the government but does not apply to actions by private individuals.
If a private individual violates someone else’s expectation of privacy, the victim may be able to make a claim in the civil court system. |
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search |
A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed upon by the government. |
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seizure of property |
A seizure of property occurs when there is some meaningful interference with an individual’s possessory interest in that property by the government. |
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seizure of a person |
A seizure of a person occurs when: |
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Expectation of privacy |
A reasonable expectation of privacy can exist almost anytime and anyplace as long as: • their expectation is one which society is prepared to recognize as legitimate |
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Subjective expectation of privacy |
Subjective expectation of privacy is 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.). |
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Objective reasonableness |
Objective reasonableness refers to whether society is prepared to recognize the individual’s expectation as reasonable. |
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Curtilage |
Curtilage means the relatively small and usually well-defined area immediately around a residence to which the occupant has a reasonable expectation of privacy. |
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Open fields |
Open fields means outdoor real property, outside the curtilage of the residence.
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overflight |
An overflight is the flight of a plane or helicopter over a given area.
• being operated in a "physically nonintrusive manner" |
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Standing |
Standing exists only if a subject has a reasonable expectation of privacy in the place or thing that is searched or seized.
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: • lawful possession • authority • control of the area searched or the property seized |
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Probable cause to search |
Probable cause to search an area or object means 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.
Peace officers must demonstrate that probable cause exists to search a specific place for specific property or contraband which will be used as evidence. Even though the court will consider the totality of the circumstances, to meet the Fourth Amendment requirement, officers must have specific facts which can be articulated in court or in a sworn statement (affidavit).
• evidence pertaining to the crime exists the • evidence is at the location they wish to search |
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Probable cause to search - Officer training and experience |
A peace officer’s training and experience is relevant in establishing probable cause. Facts must be seen and weighed as understood by a reasonable officer with that particular officer’s training and experience. |
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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.
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Warrant clause of the Fourth Amendment |
Search and seizure law originates from the Fourth Amendment of the United States Constitution and Article 1 of the California Constitution.
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search warrant |
A search warrant is: • 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) |
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Benefits of obtaining a search warrant |
As a general rule, the courts have found searches and seizures to be reasonable and therefore lawful when authorized by a valid warrant. |
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Search warrant - burden of proof |
The burden is on the defendant to prove the illegality of any search executed with a search warrant. |
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Statutory grounds for a search warrant |
Penal Code Section 1524 presents the statutory grounds for issuance of a search warrant.
• was stolen or embezzled.
NOTE: Use Penal Code Section 1524(a)(4) to seize evidence such as rent receipts to show possession or control of the premises or computers.
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Content of a search warrant |
As stated in Penal Code Sections 1529 and 1533, the following information must appear in the search warrant: |
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Constitutional requirement of probable cause for search warrant |
The Fourth Amendment of the U.S. Constitution clearly states: |
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Search warrant - Probable cause to search |
In the search warrant context, probable cause to search means enough credible information to provide a fair probability that the object or person the peace officers seek will be found at the place they want to search. |
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Search warrant - Officer training and experience |
It is possible for an activity which might otherwise appear innocent to the general public to amount to probable cause to a peace officer.
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Search warrant - Collective knowledge |
Probable cause may be based on the collective knowledge of all the officers involved in an investigation, and all the inferences which may reasonably be drawn from this information, with that particular officer’s training and experience. |
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Probable cause to search vs. probable cause to arrest |
Search warrants: Peace officers must articulate probable cause that:
Arrest warrants: |
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Elements of probable cause to search |
To establish probable cause, peace officers must directly or circumstantially show that certain required elements exist.
To establish probable cause to search, there must be a fair probability that... • a crime occurred. (There must be at least a fair probability that a crime has occurred or, in some cases, will occur.) • evidence pertaining to the crime exists, and (Officers must establish that evidence of a crime exists. This can be accomplished by direct evidence, circumstantial evidence, or by reasonable inference.) • the evidence is located at the place to be searched. (Officers must establish that the evidence was taken to, or produced at, the place to be searched. This can be accomplished by direct evidence, circumstantial evidence, or by reasonable inference.) |
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Reasonable inference |
Reasonable inference is 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). |
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Direct evidence |
Direct evidence is evidence that proves a fact directly, without an inference or presumption (e.g., the sale of a controlled substance to an undercover officer). |
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Circumstantial evidence |
Circumstantial evidence is 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).
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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.
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Detaining suspects pending issuance of a search warrant |
If the place being secured is occupied when peace officers enter, they will need probable cause to arrest if they take the suspect away or keep the suspect there for an unreasonable period while the warrant is obtained.
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Execution of a Search Warrant - time limit for service |
Penal Code Section 1534 states that the search warrant shall be executed and returned within 10 days from issuance.
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Execution of a Search Warrant - Failure to make a timely execution |
If the 10-day period has expired, peace officers must either: • resubmit the expired warrant so it may be reissued and revalidated |
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Execution of a Search Warrant - Failure to make a timely return |
The return of the warrant means returning the warrant and a written inventory of the property taken to the magistrate (PC 1537).
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Execution of a Search Warrant - Time of service |
Normally, a search warrant may be served only between the hours of 7:00 a.m. and 10:00 p.m. |
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Execution of a Search Warrant - Nighttime service |
If peace officers can show good cause, the magistrate may, at the magistrate’s discretion, insert a direction in a search warrant that it may be served at any time of day or night.
Examples of good cause include situations where: • 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
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Execution of a Search Warrant - Knock and notice rule |
Before entering a private dwelling to execute a search warrant, officers must comply with the requirements of knock and notice as set forth in Penal Code Section 1531.
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Execution of a Search Warrant - Knock and notice procedure |
To complete the prescribed procedures for knock and notice, peace officers must: • identify themselves as peace officers • state their purpose • demand entry • wait a reasonable amount of time • if necessary, forcibly enter the premises |
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Execution of a Search Warrant - Wait/refusal requirement |
When executing a search warrant, there is a specific requirement that before forcing entry, peace officers must be refused admittance.
• a verbal statement • individual conduct • the passage of a reasonable amount of time
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Forcible entry to execute a search warrant |
If the knock and notice requirements are met, including refusal, peace officers may legally break in or force entry into premises to execute a search warrant. (Penal Code Section 1531)
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Execution of a Search Warrant - knock and notice - Inner doors |
While officers must comply with knock and notice at outer doors to a residence, there is no legal requirement to comply with knock and notice at inner doors.
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Execution of a Search Warrant - 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: • the destruction of evidence
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Execution of a Search Warrant - Ruse entry |
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. |
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Presenting the search warrant |
If the occupant is present, peace officers should show the occupant the original warrant and give the occupant a copy.
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Scope and specificity of a search warrant |
During a search authorized by a search warrant, officers are limited by the information specified in the search warrant. (This is known as the scope of the search.)
• identification of the area(s) or person(s) that may be searched • identification of the item(s) to be seized
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Execution of a Search Warrant - Detaining persons on the premises |
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: • has a key to enter the premises freely • enters the premises without knocking
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Execution of a Search Warrant - Searching containers |
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.
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Execution of a Search Warrant - Nexus rule |
Under the nexus rule, officers may seize items not listed in the warrant when:
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Plain View Seizures - No Fourth Amendment protection |
In a constitutional sense, 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 |
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Plain View Seizures - Requirements for seizure |
Peace officers must meet certain requirements before an item in plain view may be seized legally and used as evidence.
• a lawful right to be in the location • lawful access to the item |
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Plain View Seizures - Probable cause for seizure |
Even though peace officers need not appear before a magistrate, they still must have enough facts to provide probable cause, that is, a fair probability that the item in plain view is contraband or evidence of a crime.
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Plain View Seizures - Observation from a lawful location |
Peace officers must have a lawful right to be at the location from which they initially observe the item. That is, the observation must be made from a vantage point that does not violate an individual’s reasonable expectation of privacy. |
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Plain View Seizures - Public access areas |
Any area the general public or some members of the public have been given either express or implied permission to be in is considered a public access area. Peace officers have the legal right to make observations from any public access area at any time. |
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Plain View Seizures - Surveillance |
It is not a search for peace officers to conduct surveillance of private premises or to follow people who leave the premises, as long as the observations are made from a place where the officer has a right to be. Videotaping a suspect’s activities is a form of surveillance. |
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Plain View Seizures - Sensory aids |
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.
Flashlights
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Plain View Seizures - Abandoned property |
If an item has been abandoned by the owner, the owner has relinquished any expectation of privacy over the item. The Fourth Amendment does not protect articles or an area that has been abandoned by its owner.
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Plain View Seizures - Lawful access |
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 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.) |
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Warrantless Searches - Case law exceptions |
The Fourth Amendment does not give individuals an absolute right to privacy, and it does not prohibit all searches — only those that are unreasonable.
• consent searches • searches pursuant to exigent circumstances • searches incident to custodial arrest • probation/parole searches |
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Establishing the basis for a warrantless search or seizure |
In deciding whether a warrantless search or seizure was legal, courts will always consider the totality of the circumstances. However, peace officers must always have specific facts to demonstrate the search or seizure fell within one of the exceptions to the warrant requirement. |
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Cursory/Frisk/Pat Searches |
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. |
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Cursory/Frisk/Pat Searches - Necessary conditions |
Normally, non-consensual searches are not permitted during a detention. However, 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.
Cursory/frisk/pat searches of detainees are allowed to prevent unexpected assault on peace officers. But a generalized, non-specific concern for officer safety is not sufficient reason to allow for the intrusion of a cursory/frisk/pat search.
• the searching officers must be able to articulate specific facts which caused them to reasonably believe the person is dangerous or may be carrying a weapon
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Cursory/Frisk/Pat Searches - Scope of the search |
The scope of a cursory/frisk/pat search is limited to outer clothing for weapons or potential weapons only.
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Cursory/Frisk/Pat Searches - Absolute certainty not required |
An officer need not be absolutely certain that the person is armed or potentially dangerous. However, the officer’s suspicion must be reasonable and based on specific facts. |
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Cursory/Frisk/Pat Searches - factors that have been recognized as contributing to the suspicion that the person may be carrying a weapon or pose a danger. |
Clothing • 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 • 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 • Stopped during nighttime • Stopped in an area with little or no lighting • Detainees outnumber officers |
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Cursory/Frisk/Pat Searches - Contraband |
If, during a lawful cursory/frisk/pat search for weapons, an item is discovered that is immediately recognized as contraband (based on plain sight, smell, or touch), the officer may seize it. If the person is placed under arrest, the officer may then conduct a full search incident to the custodial arrest.
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Cursory/Frisk/Pat Searches - Containers |
If the officer comes across a container on the person during a cursory/frisk/pat search, the officer is entitled to seize it and open it only if it is reasonable to believe it can be used as a weapon or that it might contain a weapon.
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Cursory/Frisk/Pat Searches - Reaching inside |
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 subject’s clothing is so rigid or heavy that the officer could not rule out the possibility of a weapon or potential weapon
NOTE: In addition to what officers may lawfully do as part of a cursory/frisk/pat search for weapons, they may also always seek voluntary consent to search. Such consent to search can be for any part of a suspect’s clothing or belongings, and for any objects (such as drugs) the officer asks about. |
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Cursory/Frisk/Pat Searches - Discovery |
If an officer discovers an object during a cursory/frisk/pat search which the officer believes is a weapon or a dangerous instrument which could be used as a weapon, the officer has a right to seize it from the person.
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Cursory/Frisk/Pat Searches - 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 they accept the ride, they must first consent to a cursory/frisk/pat search |
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Warrant searches vs. consent searches |
If officers have probable cause to search but lack an exigent circumstance to justify a warrantless entry, they should always seek a warrant instead of seeking consent.
• even if they enter with consent, officers may not detain persons who are on the premises unless they have reasonable suspicion of criminal activity
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Consent Searches - Necessary conditions |
For consent to be valid, the consent must be: • obtained from a person with apparent authority or to give that consent
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Consent Searches - Scope |
Peace officers may search those places and things they reasonably believe the consenting person authorized them to search. As long as the search remains within the scope given, officers may seize any crime-related evidence which they discover.
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Consent Searches - Voluntary consent |
Voluntary consent means an act of free will and not the result of duress or coercion. If consent is merely a submission to an assertion of authority or coercion, the consent is not voluntary. Any search under such conditions would be unlawful, and any item(s) seized would not be admitted as evidence at trial. |
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Consent Searches - Peace officer conduct |
Peace officers may inadvertently undermine the voluntariness of consent by their conduct. Officers who seek consent must make it clear that they are requesting permission to search -- not demanding it.
Examples of peace officer actions and their possible influence on the voluntariness of consent. Show of physical force • exhibit force while seeking consent (e.g., rest their hands on, or draw weapons).
• state or imply they have a legal right to conduct an immediate search. • falsely state they have a warrant when they do not. • request entry for a purpose other than to conduct a search.
• illegally detain or arrest the subject.
• verbally demand consent rather than request it.
• appear in large numbers. • use a demanding tone of voice. • act in an overly authoritative manner, etc.
Impairment or limitation of consenter • fail to recognize or acknowledge the consenting person may be: |
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Consent Searches - Express vs. implied consent |
Consent must be given in the form of some affirmative act, either as express consent or implied consent.
Express consent... • occurs when the consenting person clearly authorizes the search either orally or in writing. • requires no inference to supply the full meaning
Implied consent... • occurs when the consenting person authorizes the search by actions or behavior indicating that consent was given. • must be reasonably inferred.
NOTE: Consent may not be inferred simply from a failure to object or from mere silence.
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Consent Searches - Right to refuse |
The courts have ruled that it is not legally necessary for officers to advise potential consenters that they have a constitutional right to refuse consent of a warrantless search.
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Consent Searches - Authority to consent |
A consenter must have actual or apparent authority to consent to the search.
If the relationship is husband/wife, parent/child, roommates/co-occupants Consenter has authority if... Consenter has no authority if...
If the relationship is landlord/tenant, motel owner/boarder consenter is landlord or owner who has regained exclusive possession of a rental property. Consenter has no authority if...
If the relationship is employer/employee Consenter has authority if... Consenter has no authority if... |
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Consent Searches - Withdrawal of consent |
The person giving consent has the right to withdraw or limit that consent at any time during the search. Officers should not engage in activity that will limit the consenter’s ability to withdraw consent or limit scope of consent (i.e., person moves to another room).
• making a statement (e.g., ―I want you to leave now‖) • engaging in conduct that reasonably indicates that the consent is being withdrawn (e.g., blocking a doorway and saying ―I don’t want you to go in there,‖ or not handing over the keys)
If officers ignore the withdrawal or limitation of consent, any evidence that is subsequently seized may be inadmissible at trial. |
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Exigent Circumstance Searches |
Peace officers may lawfully enter an area in which an individual has a reasonable expectation of privacy, when there is a compelling need for official action and no time to secure a warrant.
When exigent circumstances exist, peace officers are normally not required to comply with knock and notice procedures before entering. |
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Exigent circumstances |
An emergency situation requiring swift action to prevent: • serious damage to property • imminent escape of a suspect • imminent destruction or removal of evidence
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Exigent Circumstance Searches- Scope of search |
Under exigent circumstances, the primary purpose of the officer’s entry is to attend to the emergency situation. After entering the premises, officers may conduct a search only if it is reasonable to believe a search is necessary to secure the emergency.
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Exigent circumstances - Imminent danger to life |
If an officer reasonably believes a person (victim or other person), inside an area that would be considered private property, may be injured or ill and in immediate need of help, the officer may enter the property without a warrant.
A peace officer may enter without a warrant if the officer reasonably believes that... |
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Exigent circumstances - Imminent danger to property |
If an officer reasonably believes there is a need to enter a private area in order to protect the property of the owner or occupant, the officer may enter without a warrant.
A peace officer may enter without a warrant if the officer reasonably believes that... |
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Exigent circumstances - Imminent escape |
It is lawful for peace officers to enter private property without a warrant in order to prevent the escape of a suspect, especially if the suspect is armed and dangerous or has just committed a violent felony.
A warrantless entry is permitted if... |
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Exigent circumstances - Destruction of evidence |
Peace officers may enter premises without a warrant or consent when there is immediate danger of destruction or removal of crime-related evidence.
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Exigent circumstances - Re-entry |
Following the exigent circumstance, peace officers must vacate the premises within a reasonable amount of time and may not reenter unless they obtain a search warrant or consent. |
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Exigent circumstances - Creating an exigency |
Peace officers may not use exigent circumstances as an excuse for a warrantless entry if they have created the emergency unnecessarily by their own conduct. |
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Searches Incident to Arrest |
When a suspect is lawfully arrested and taken into physical custody, a limited authority exists for peace officers to conduct a warrantless search of the suspect’s person, also of the property and area within the suspect’s immediate control. |
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Searches Incident to Arrest - Necessary Conditions |
A search incident to arrest may be conducted when: • the suspect is taken into custody • the search is contemporaneous with the arrest |
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Searches Incident to Arrest - Scope of the search |
A search incident to a custodial arrest may include: • 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‖) |
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Searches Incident to Arrest - Custodial arrest |
To conduct a lawful search incident to arrest, the person must be taken into custody.
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Searches Incident to Arrest - Contemporaneous search |
To be legal, the search must be contemporaneous with the arrest. That is, the search must be conducted: • at or near the place of the arrest • while the arrestee is still on the scene
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Searches Incident to Arrest - “Arm’s reach” rule |
Peace officers may search any area that is or was reasonably within the arrestee’s control. This could include any area from which the arrestee may: • obtain any item that could be used as a weapon • destroy evidence
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Searches Incident to Arrest - Protective sweeps |
A protective sweep is a brief search to look for individuals only.
• from which an attack could be immediately launched
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Probation/Parole Searches |
Under specific circumstances, peace officers may conduct warrantless searches of a person who is on probation or on parole. Searchable probation or parole status must be established prior to a search. |
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Probation |
A sentencing alternative for a person convicted of a criminal offense and is granted at a judge’s discretion. Rather than incarceration, the individual remains under the authority of the probation department. Probation may be formal (supervised) or informal (unsupervised). • avoiding drugs and other criminal behavior • not traveling outside a limited area • submitting to periodic searches without a warrant, probable cause, or reasonable suspicion |
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Parole |
A conditional release from a state prison which allows an individual to serve the remainder of a sentence outside of prison, which a person must serve on the "outside" after having completed the actual prison sentence. |
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Probation/Parole Searches - Necessary conditions |
Warrantless, suspicionless probation and parole searches are both reasonable under the Fourth Amendment, according to the California Supreme Court.
Probation Search Conditions Not every probation has a search condition, and not all search conditions are the same. However, assuming the probationer has a search condition permitting searches for "X" by peace officers, the search for "X" may be undertaken without any reasonable suspicion of criminal activity.
Parole Search Conditions The officer must know about the parole conditions before the search. An officer may conduct a parole search without reasonable suspicion but cannot conduct a parole search for arbitrary, capricious or harassment reasons.
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Probation/Parole Searches - Scope of the search |
Parole search conditions permit a search of the parolee’s person, residence, and any other property under their control (e.g., vehicle, backpack, etc.).
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Probation/Parole Searches - Search of a residence |
Certainty
Knock and Notice
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Probation/Parole Searches - Harassment |
Probation/parole searches must never be conducted for reasons unrelated to the rehabilitative, reformative, or legitimate law enforcement purposes. A search is invalid if the reason it was undertaken was to harass the probationer/parolee.
• take place at an unreasonable hour • are unreasonably prolonged • demonstrate arbitrary or oppressive peace officer conduct • are undertaken with personal animosity toward the probationer/parolee |
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Probation/Parole Searches - Notification of probation searches |
According to the California Supreme Court, notification of the individual’s probation officer is not required prior to a warrantless probation search as long as the search condition authorizes a search by any law enforcement officer or any peace officer.
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Probation/Parole Searches - Notification of parole searches |
Notification to the individual’s parole officer is not legally required prior to a warrantless parole search. However, the California Department of Corrections and Rehabilitation (CDCR) has requested notification prior to warrantless searches of a parolee’s residence or business. |
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Probable Cause Searches of Vehicles |
The courts have created an exception to the warrant requirement when a motor vehicle is involved. They have determined that the risk of the vehicle being moved to a different location, in combination with the reduced expectation of privacy that people have in vehicles, justifies a warrantless search as long as the search is based on probable cause that the vehicle contains contraband or evidence of a crime. |
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Probable Cause Searches of Vehicles - 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.
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Probable Cause Searches of Vehicles - Necessary conditions |
The conditions required to justify a probable cause vehicle search are exactly the same as those necessary to obtain a search warrant.
• the officers must have enough facts, knowledge, training, or experience to provide probable cause that the item they are seeking will be found inside the vehicle |
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Probable Cause Searches of Vehicles - Scope of search |
The scope of a vehicle search based on probable cause depends on the item or object peace officers are searching for.
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 • the hood • the trunk • any closed personal containers (including locked containers) |
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Motor vehicle |
Vehicle Code Section 415 defines a motor vehicle as a vehicle that is self-propelled.
Examples of motor vehicles include, but are not limited to, the following: • airplanes • buses • recreational vehicles • carts, etc.
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Motor homes |
A motor home is considered a motor vehicle when it is being used on a highway, or if it is capable of such use and is located in a place not regularly used for residential purposes. |
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Probable Cause Searches of Vehicles - Probable cause |
Probable cause to search a vehicle means exactly the same thing that it does in a search warrant context.
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Probable Cause Searches of Vehicles - Time of search |
Under the probable cause exception, it is not necessary that the search of the vehicle take place contemporaneously with the vehicle stop (e.g., on the roadside at the time of the stop). Instead, officers may have the car towed away and conduct the search at a later time, even after it has been impounded and is in police custody, as long as they still have probable cause. |
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Probable Cause Searches of Vehicles - Closed containers |
If peace officers have probable cause to believe the item they are looking for is inside a vehicle, they are entitled to open and search any closed, personal container within the vehicle which might reasonably contain the item. (This rule also applies to locked containers.)
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Plain View Seizures from Vehicles |
Seizing crime-related evidence in an officer’s plain view from a place the officer has a lawful right to be does not involve any type of search. |
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Plain View Seizures from Vehicles - Requirements for seizure |
Peace officers must meet the same requirements for plain view seizures involving vehicles as they would for seizing an item within plain view anywhere else.
• lawfully be in a location to observe the item • have lawful access to the item |
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Plain View Seizures from Vehicles - Probable cause |
To seize evidence from a vehicle, peace officers must recognize the item as being crime-related or have probable cause to believe that it is. Such probable cause may be based upon information from reliable sources, the knowledge and training of the officers, plain smell, etc. |
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Plain View Seizures from Vehicles - Lawful observation and access |
Generally it makes little difference if an officer observes the crime-related item from outside a vehicle or while the officer is lawfully inside the vehicle.
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Protective Searches of Vehicles |
A protective search of a vehicle is a limited warrantless search of the passenger compartment of a vehicle for weapons. |
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Protective Searches of Vehicles - Necessary conditions |
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
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Protective Searches of Vehicles - Scope of search |
Like a cursory/frisk/pat search of a detained person, protective vehicle searches are allowed to prevent an unexpected assault on peace officers.
• 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
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Protective Searches of Vehicles - Plain view |
While conducting a protective vehicle search, officers may seize any item in plain view if there is probable cause to believe it is contraband or evidence of a crime. Officers may also develop enough probable cause to continue searching the vehicle based on the probable cause exception to the warrant requirement. |
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Protective Searches of Vehicles - Containers |
During a protective vehicle search, if the officer comes across a container within the passenger compartment, the officer is entitled to seize it and open it only if it is reasonable to believe that it could be used as a weapon, or that it might contain a weapon. |
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Consent Searches of Vehicles |
If peace officers obtain valid consent to search a vehicle and/or any item within the vehicle, the warrantless search will always be upheld as legal. |
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Consent Searches of Vehicles - Necessary conditions |
The conditions for searching a vehicle based on consent are the same as any other consent search.
• obtained from a person with the authority (or apparent authority) to give that consent
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Consent Searches of Vehicles - Scope of search |
Peace officers may search only those areas of the vehicle they reasonably believe the consenting person authorized them to search. If the consenting person expressly or implicitly restricts certain areas of the vehicle or items within the vehicle, the officers must honor those restrictions. |
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Consent Searches of Vehicles - Voluntary consent during vehicle stops |
For any consent obtained during a vehicle stop or detention, there may be a question of its voluntariness. A court will determine whether consent was truly voluntary based on the totality of the circumstances.
• verbally inform the individuals in authority that they have a right to refuse consent |
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Consent Searches of Vehicles - Closed containers |
Consent to search a particular area may or may not include searching any closed container within the area. If the container is locked the officer would need specific consent to open that container. Peace officers must clearly understand the scope of the consent being given.
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Searches of Vehicles Incident to Custodial Arrest |
When an officer makes a custodial arrest of a person in a vehicle, the officer may be able to conduct a warrantless search of the vehicle’s passenger compartment. |
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Searches of Vehicles Incident to Custodial Arrest - Necessary conditions |
Officers may search the passenger compartment of a vehicle if they have made a valid custodial arrest of any occupant of the vehicle 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
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Searches of Vehicles Incident to Custodial Arrest - Scope of search |
No matter what the arrest is for, as long as the driver or occupant of a vehicle is taken into custody, peace officers may search:
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Searches of Vehicles Incident to Custodial Arrest - Custodial arrest |
The arrest must be custodial, meaning the arrestee will be transported by law enforcement personnel to another location, such as a jail, detox facility, or school.
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Searches of Vehicles Incident to Custodial Arrest - Establishing nexus to the vehicle |
It is immaterial whether the occupant was inside or outside the vehicle at the time of the arrest or when the search began.
• 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) |
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Searches of Vehicles Incident to Custodial Arrest - Contemporaneous nature of the search |
A search is deemed incident to an arrest only if it occurred: • at or near the place of the arrest • while the arrestee is still at the scene
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Searches of Vehicles as Instrumentalities |
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. |
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Searches of Vehicles as Instrumentalities - Necessary conditions |
A vehicle may generally be deemed an instrumentality of a crime if: • the vehicle was the means by which the crime was committed (e.g., hit and run)
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Searches of Vehicles as Instrumentalities - Obtaining a warrant |
Even though officers will have probable cause to search any vehicle which was used as an "instrumentality" of a crime, meaning that no search warrant is required, many agencies prefer to obtain a warrant before conducting a scientific examination of a vehicle. |
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Searches of Vehicles as Instrumentalities - Scope of search |
If the search is undertaken without a warrant, the scope will be determined by the nature of the evidence being sought. That is, officers may search any part of the vehicle where the object(s) they are looking for might reasonably be located.
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Vehicle Inventories |
A vehicle inventory is not a search for evidence or contraband. It is a procedure peace officers use to account for personal property in a vehicle that is being impounded or stored. |
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Vehicle Inventories - Necessary conditions |
To inventory a vehicle: • the officer conducts the inventory pursuant to a standardized agency policy |
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Vehicle Inventories - Scope of search |
The courts have made it clear that a standardized agency policy may be very broad regarding vehicle inventories, permitting examination of any area where valuable or dangerous items are commonly kept. This may include, but is not limited to: • glove compartments • consoles • the trunk • closed containers |
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Vehicle Inventories - Purpose of an inventory |
A vehicle inventory should never be undertaken for the purpose of finding evidence or contraband, but rather only for taking note of personal property. • the government agency from false claims of loss
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Vehicle Inventories - Lawful custody |
An inventory may be conducted only after the vehicle has come into lawful custody for reasons other than solely for the purpose of conducting the inventory.
• 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.)
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Vehicle Inventories - Authority to impound |
Assuming the vehicle is lawfully in police custody, the officer always has legal authority to impound or store it and, therefore, to inventory it.
However, depending on agency policy, there may be occasions where the officer may choose to release the vehicle to a validly licensed passenger or other person. |
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Vehicle Inventories - Personal possessions |
If a vehicle is to be inventoried, but the driver or other occupant requests possession of some object from inside the vehicle (e.g., purse, clothing, briefcase, etc.), the searching officer may pat the item down for weapons for the officer’s own safety before handing it over.
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Vehicle Inventories - Standardized procedures |
Agency procedures for conducting a vehicle inventory will be considered sufficiently standardized as long as: • all officers know about the routine • all officers are supposed to follow the routine when conducting vehicle inventories
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Vehicle Inventories - Officer discretion |
The courts have recognized that standardized procedures may leave some discretion in the hands of a field officer whether or not to open a given container.
However, this discretion cannot be unlimited and must be based on concerns related to the purposes of an inventory. |
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Vehicle Inventories - Reposessed vehicles |
If a licensed repossession agency has already repossessed a vehicle and completed the statutorily required inventory, peace officers may examine and seize inventoried items without a warrant if they have reason to believe the items are connected to a crime being investigated. |
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Warrant Requirement for Bodily Intrusion Searches and Seizures |
Understandably, a person’s reasonable expectation of privacy over their own body is very high. Because of this, a warrant will usually be required to enter a person’s body to search for and seize evidence. |
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Bodily Intrusion Searches and Seizures - Fourth Amendment protection |
The Fourth Amendment protection against unreasonable searches and seizures is violated when a legitimate expectation of privacy has been infringed. This expectation applies not only to a suspect’s property or possessions, but also to the suspect’s person.
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Bodily Intrusion Searches and Seizures - Fifth Amendment protection |
No person has the legal right to withhold or destroy physical evidence, even if that evidence is located on or inside one’s person. The Fifth Amendment protection against self-incrimination only protects what a person may say, not any physical evidence that person may possess. |
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Warrant Requirement for Bodily Intrusion Searches and Seizures - Express wording |
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. |
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Warrant Requirement for Bodily Intrusion Searches and Seizures - Probable cause plus |
As in any other warrant procedure, peace officers must show probable cause to search within their affidavit to obtain a warrant. That is, there must be enough credible information to provide a fair probability that the search will result in the discovery of evidence of a crime.
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Warrant Requirement for Bodily Intrusion Searches and Seizures -Warrant additional requirements |
Before issuing a search warrant to enter a person’s body, the court will also address a number of factors regarding the necessity and safety of the search itself.
Method used
Existence of alternate means
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Warrantless Bodily Intrusion Searches and Seizures |
Under certain conditions, evidence may be taken from a suspect’s body without a search warrant |
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Warrantless Bodily Intrusion Searches and Seizures - Consent |
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. |
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Warrantless Bodily Intrusion Searches and Seizures - Implied consent |
A person who drives a motor vehicle in California has given implied consent for chemical testing (blood, breath, or urine) without a warrant.
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Warrantless Bodily Intrusion Searches and Seizures - Incident to arrest |
Under certain circumstances, seizing evidence from a suspect’s person may be done without a warrant as incident to an arrest.
To search for and seize evidence from a suspect’s body without a warrant, peace officers must have... • probable cause to arrest. |
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Warrantless Bodily Intrusion Searches and Seizures - Exigent circumstances |
The existence of exigent circumstances may depend on the stability of the evidence being sought. Officers may seize evidence from a person’s body if it reasonably appears the evidence will be lost or destroyed if the officers wait to obtain a warrant.
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Stable Evidence |
Evidence that will not change over time.
Example:
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Evanescent Evidence |
Evidence that will change or be lost over time
Examples: |
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Use of Force During Bodily Intrusion Searches and 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. |
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Use of Force During Bodily Intrusion Searches and Seizures - Level of force |
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.
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Use of Force During Bodily Intrusion Searches and Seizures - Preventing a suspect from swallowing 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.
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Use of Force During Bodily Intrusion Searches and Siezures - Swallowed evidence |
If the person has swallowed the suspected evidence or contraband, peace officers have several options.
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Blood samples - overview |
Blood samples, obtained in a medically approved manner, are considered minimally intrusive.
Assuming these conditions (warrant or warrantless) are met, blood may be taken, even in situations where the suspect is unconscious, or where the officers must apply reasonable force.
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Blood samples - warrant |
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: • the removal will be conducted by trained medical personnel in accordance with accepted medical practices |
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Blood samples - warrantless |
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. |
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Fingerprints |
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.
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Handwriting samples |
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.
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Voice evidence |
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. |
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Identification Procedures |
The purpose of any identification procedure is to confirm or eliminate a person as the actual perpetrator |
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Identification Procedures - Undue suggestivity |
Because it is a violation of a defendant’s constitutional right to due process to be convicted on the basis of an unduly suggestive identification process, peace officers must not suggest in any way to the victim or witness that a person to be observed during an identification process committed the crime.
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General identification procedures |
Peace officers should ALWAYS... • tell the victims or witnesses that: • separate multiple victims or witnesses both before, during, and after the identification process.
Peace officers should NEVER... • make suggestions, lead, or prompt victims or witnesses to give a description they do not mean to give. • tell the witness or victim that: • Say anything about a suspect to the victim or witness before, during, or after the actual viewing. • allow multiple victims or witnesses to: |
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Identification procedures - Absolute certainty |
A victim or witness will rarely say that they are 100 percent certain about their identification of a suspect.
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Identification procedures - Documentation |
Everything that occurs during the identification process should be noted in the peace officer’s report. This includes: • a description of the victim’s or witness’ response to viewing the suspect |
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Field Showups |
A field showup is the viewing of a possible suspect by the victim or witness that commonly occurs in the field shortly after a crime has been committed. |
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Field Showups - Timing |
A showup is appropriate only if it can be done a short time after the crime has taken place.
• the immediate release of an innocent subject • the continuation of a search while the trail is still fresh |
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Field Showups - Location |
The general rule is that an officer who detains a subject pending a showup should not move the subject to another location, but rather should transport the victim or witness to the subject.
• 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: |
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Field Showups - Legal representation |
Since the detention of a subject for the purpose of identification is not considered full custody, the subject is not entitled to have an attorney present at the time of the in-field showup. |
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Field Showups - Searches |
A full search of the detained subject, or any search of the subject’s vehicle, should be avoided until after there has been a positive identification, or unless the subject has consented to the search.
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Field Showups - Implications of custody |
If at all possible, officers should avoid any indication that the subject has been arrested and, therefore, perceived as guilty by law enforcement authorities.
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Photographic Spreads |
A photographic spread (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. |
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Photographic Spreads - Timing |
Identification by means of a photographic spread 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. |
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Photographic Spreads - Location |
A photographic spread may be used when the identity of the suspect is not known, or the identity is known but the suspect is not in custody.
Since there is no intrusion on a suspect’s time or privacy, the photographic spread identification process can take place at any location. |
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Photographic Spreads - Legal representation |
Since there is no form of custody involved, the suspect is not entitled to have an attorney present at the time of the identification process. |
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Photographic Spreads - Recommended identification procedures |
Preparation • Use the most recent photograph of the suspect that is available. • Use all color or all black and white photographs. • Try to use photographs that are all the same approximate overall size and depict the same approximate shots of the suspect (e.g., all close-ups). • Use photographs of suspects of the same sex, race, and similar facial characteristics. • If possible, use at least six photographs in the spread. Fewer than five photographs may make the selection impermissibly suggestive by limiting the options. • Record the names, dates of birth, and other identifying information assigned to each photograph separately. • Cover all identifying information on all photographs (e.g., booking numbers, names, etc.)
• If there are two or more suspects to be identified, use a different photographic spread to identify each suspect. • Instruct the victim or witness to look at each photograph before making any decision regarding identification. • Regardless of whether the victims or witnesses select the right or wrong photograph, do not discuss their choice with them. • The victim or witness should initial the back of the selected photograph or copy of the selected photograph.
Follow-up • Place all photographs in an evidence envelope, seal, initial, date, and place the evidence in storage. • A copy of the photographic spread should be attached to the report. |
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Custodial Lineups |
A custodial lineup (also known as a physical lineup) is 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 |
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Custodial Lineups - Timing |
A custodial lineup may take place any time after a crime has been committed. |
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Custodial Lineups - Location |
A custodial lineup takes place within a controlled environment of a law enforcement facility. |
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Custodial Lineups - Representation |
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.
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Custodial Lineups - Recommended identification procedures |
Preparation • Include at least six participants in the lineup, if possible. • Choose participants of the same race, sex, and with similar characteristics. • If the suspect wore any distinctive clothing, have all participants in the lineup wear similar clothing. • If, prior to the lineup, the witness or victim describes the suspect as having a particular or distinguishing characteristic (e.g., facial hair, hair color, tattoos, scars, etc.), make sure that the others in the lineup also have this characteristic, if at all possible. • Alert the victim or witness beforehand that the defense attorney may be present and noting all comments, intended or offhand, they may make during the identification process. • If a defense attorney is present, request that a prosecutor be present also.
• If suspects refuse to fully participate or cooperate in a lineup, inform them that their resistance may be commented upon in a court as an admission of guilt. • If voice identification is necessary, have all participants say the same words. • Regardless of whether the victims or witnesses select the right or wrong person from the lineup, do not discuss their choice with them.
Follow-up • Document the names of all participants in the lineup and all other individuals present. • Take individual photographs of each participant in the lineup and preserve the photos for trial. |
