Transcript The 4th & 5th Amendments and law enforcement

Traffic
Stops

“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 PERSON OR THINGS
TO BE SEIZED.”

NO PERSON SHALL BE HELD TO ANSWER FOR A
CAPITAL, OR OTHERWISE INFAMOUS CRIME,
UNLESS ON A PRESENTMENT OR INDICTMENT
OF A GRAND JURY, EXCEPT IN CASES ARISING IN
THE LAND OR NAVAL FORCES, OR IN THE
MILITIA, WHEN IN ACTUAL SERVICE IN TIME OF
WAR OR PUBLIC DANGER; NOR SHALL ANY
PERSON BE SUBJECT FOR THE SAME OFFENSE TO
BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB;
NOR SHALL BE COMPELLED IN ANY CRIMINAL
CASE TO BE A WITNESS AGAINST HIMSELF;
NOR BE DEPRIVED OF LIFE, LIBERTY, OR
PROPERTY, WITHOUT DUE PROCESS OF LAW;
NOR SHALL PRIVATE PROPERTY BE TAKEN FOR
PUBLIC USE, WITHOUT JUST COMPENSATION.
A MAJORITY
OPINION OF
THE COURT!
EACH OPINION WAS BASED ON A
PARTICULAR SET OF FACTS
WHICH CAN’T BE DUPLICATED.
•DIFFERENT TIME
•DIFFERENT PLACE
•DIFFERENT OFFICER
•DIFFERENT CIRCUMSTANCE


OBTAIN A WARRANT
AFTERALL, THE FOURTH AMENDMENT
WAS DESIGNED TO REQUIRE WARRANTS
OBTAIN A WARRANT
OR
SUPPORT ALL ACTIONS BY PROVIDING
SUFFICIENT INFORMATION TO SATISFY
EVERY JUDGE SO THE EVIDENCE WILL NOT
BE LOST.

A SEARCH PURSUANT TO A WARRANT IS
PRESUMED TO BE REASONABLE. THIS
PRESUMPTION PLACES THE BURDEN ON
THE DEFENDANT TO PROVE THE SEARCH
WAS ILLEGAL.


A SEARCH PURSUANT TO A WARRANT IS
PRESUMED TO BE REASONABLE. THIS
PRESUMPTION PLACES THE BURDEN ON
THE DEFENDANT TO PROVE THE SEARCH
WAS ILLEGAL.
A SEARCH WITHOUT A WARRANT IS
PRESUMED TO BE UNREASONABLE.
THIS PRESUMPTION PLACES THE
BURDEN ON THE PEOPLE TO PROVE THE
SEARCH WAS LEGAL.

LEVEL 1: CONSENSUAL ENCOUNTER

NO FOURTH AMENDMENT SEIZURE

LEVEL 1: CONSENSUAL ENCOUNTER


NO FOURTH AMENDMENT SEIZURE
LEVEL 2: INVESTIGATIVE DETENTION
FOURTH AMENDMENT SEIZURE
 LIMITED SCOPE AND DURATION
 MUST BE SUPPORTED BY REASONABLE
SUSPICION OF CRIMINAL ACTIVITY


LEVEL 1: CONSENSUAL ENCOUNTER


NO FOURTH AMENDMENT SEIZURE
LEVEL 2: INVESTIGATIVE DETENTION
FOURTH AMENDMENT SEIZURE
 LIMITED SCOPE AND DURATION
 MUST BE SUPPORTED BY REASONABLE
SUSPICION OF CRIMINAL ACTIVITY


LEVEL 3: ARRESTS

MUST BE SUPPORTED BY PROBABLE CAUSE


Fourth Amendment challenges can be avoided
if a “stop & frisk” is maintained in a consensual
atmosphere throughout an encounter.
Recorded documentation of the consensual
encounter through audio/video recorders may
be done to capture the words and conduct
used to assist with constitutional scrutiny.

“Unprovoked Flight” by an individual upon
seeing a police officer approaching in a “High
Crime Area” will support reasonable
suspicion to stop a person, but not necessarily
a frisk of the person.
Illinois v. Wardlow, 528 U.S. 119 (2000)

EXCEEDING THE SCOPE OF THE STOP

ONCE THE PURPOSE OF THE STOP IS
COMPLETED, THE OFFICER MUST END THE
ENCOUNTER AND PERMIT THE DRIVER TO
LEAVE


WARRANTS ARE REQUIRED…
HOWEVER, EXCEPTIONS DO EXIST
ADMINISTRATIVE
 WAIVER (CONSENT GIVEN)
 FORFEITURE
 EXIGENCY


The search must be for an administrative
purpose, rather than part of a criminal
investigation to secure evidence to a crime.
Airplane Boarding Searches
 Jail Booking
 Vehicle Inventories
 Vehicle Safety Checkpoints


Knowing, Understanding, and Voluntary
giving up of a right.
Consent
 Encounters – Frisks – Entry – Search
 Third Party Consents

 Spouse – Parent – Child – Friend – Hotels – Business
Records

The loss of an expectation of privacy through
conduct
Plain Sight – Plain Feel – Plain Odor
 Open Fields – Fly Over
 Jails
 Trash Out For Collection


Imminent danger to life and property
Detentions
 Frisks
 Arrests
 Cars
 Hot Pursuit
 Crimes in Progress
 Community Caretaking

 Medical Emergencies

Why do officers search an arrestee?



1) Officer safety (to remove any weapons)
2) To seize any evidence on the Arrestee’s person to
prevent its concealment and destruction.
Chimel v. California, 395 U.S. 752 (1969)

Where can you search?


1) The arrestee’s person
2) The area from which the arrestee might gain
possession of a weapon or destructible evidence.
Chimel v. California

What about bags?

Searches of backpacks and bags worn by arrestees at
the time of arrest have been upheld in other
jurisdictions.
People v. Boff, 766 P. 2d 646, 648-649 (1988)
REFERENCE HANDOUT PROVIDED




1) Was the seizure of the handgun lawful?
2) Was this a consensual stop, an investigative
detention, or an arrest?
3) If this was an investigative detention, was it
limited in scope and duration and was it
supported by reasonable suspicion of criminal
activity?
4) Can the handgun evidence be suppressed?

1) Was the seizure of the handgun lawful?

YES, AS IT WAS A CONSENT SEARCH.
2) Was this a consensual stop or an
investigative detention?


INVESTIGATIVE DETENTION.
 Motioning someone to come over and saying, “Hey
come over.”

3) If this was an investigative detention, was it
limited in scope and duration and was it
supported by reasonable suspicion of criminal
activity?


NOT SUPPORTED BY REASONABLE
SUSPICION. U.S. v. Dell
4) Can the handgun evidence be suppressed?

YES, AS THE STOP WAS NOT VALID, ALL
SUBSEQUENT EVIDENCE SEIZED WAS
SUPRESSED. U.S. v. Dell




THREE OBSERVATIONS:
1) Defendant was in what the Officer thought
to be a high-crime area, particularly with
regard to vehicle break-ins.
2) Defendant was peering into the windows of
a legally parked vehicle.
3) Defendant walked away from the parked car
upon seeing the patrolling Officer approaching.



1) No statistics or testimony to support the area as
a high-crime area, other than the Officer
commenting he had a 6 ½ year work history in the
area.
2) Conduct observed was so innocuous and so
very much in the realm of ordinary behavior that it
would not lead a reasonable officer to suspect that
a car break-in occurred or was about to occur.
3) Walking away on the sidewalk in the same
direction that a police officer is travelling does not
speak to anything criminal at all.



“The government’s argument that Mr. Dell’s
behavior was ‘inherently suspicious’ is conclusory,
and skips the crucial part of reasonable suspicion
analysis by failing to ask – answer – why the
officer’s observations indicated suspicious criminal
behavior.”
“The Officer never articulated why his
observations led him to suspect criminal activity.”
“The Officer demonstrates no connection between
his training and experience and the suspicion of
illegality.”

REMEMBER: SUPPORT ALL ACTIONS BY
PROVIDING SUFFICIENT INFORMATION
TO SATISFY EVERY JUDGE SO THE
EVIDENCE WILL NOT BE LOST.





Consensual contact option?
Better articulation of reasonable suspicion
Supporting information for high-crime area
Relate training and experience to observations
How was behavior not ordinary

REFERENCE HANDOUT PROVIDED

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


Type of stop and was the stop valid?
Did it remain within the scope of the stop?
Was the use of the dog permissible?
Was there sufficient probable cause to search?
Was there a sufficient nexus between the drugs
and suspect?


“It’s not what you know, it’s what you can prove.”
Was the Miranda Warning properly given and
the subsequent confession admissible?

A SHOW OF AUTHORITY CONSITUTES A
SEIZURE OF A VEHICLE:

“FEW, IF ANY, REASONABLE CITIZENS, WHILE
PARKED, WOULD SIMPLY DRIVE AWAY AND
ASSUME THAT THE POLICE, IN TURNING ON
THE EMERGENCY EQUIPMENT FLASHERS,
WOULD BE COMMUNICATING SOMETHING
OTHER THAN FOR THEM TO REMAIN.”
Lawson v. State


An officer must have reasonable suspicion of a traffic
violation. If that reasonable suspicion is based upon a
mistake of fact, the stop may still be valid.
As a matter of courtesy, the officer could explain to the
driver in the defendant’s circumstance the reason for
the initial detention and then allow them to continue
on their way without asking them to produce their
driver’s license and registration. U.S. v. McSwain
An officer must have reasonable suspicion of a traffic
violation. If that reasonable suspicion is based upon a
mistake of fact, the stop may still be valid.
 As a matter of courtesy, the officer could explain to the
driver in the defendant’s circumstance the reason for
the initial detention and then allow them to continue
on their way without asking them to produce their
driver’s license and registration. U.S. v. McSwain
 A mistake in law invalidates the stop:
Failure to understand the law by the very person
charged with enforcing it is not objectively reasonable.
U.S. v. Tibbetts


PRETEXTUAL CAR STOPS
An officer may follow a vehicle, wait for a traffic violation,
then hope to see contraband in plain sight, smell
contraband, or get consent to search.
The United States Supreme Court held that it was
permissible for undercover officers to stop a car for a traffic
violation in a high drug area even though the stop would
not have been made but for the officer’s suspicions about
dope. Wren v. U.S.
An officer who observes a traffic violation has probable
cause to stop the vehicle regardless of the officer’s
motivations or suspicions that are unrelated to the traffic
offense. State v. Lopez

OFFICER MAY ORDER DRIVER AND
PASSENGERS OUT OF VEHICLE:

Once a vehicle has been lawfully stopped for a traffic
violation, an officer may order the driver to get out
of the car as well as any passengers to get out of the
car without violating the Forth Amendment.
Pennsylvania v. Mimms
Maryland v. Wilson

Once the stop is justified at its inception, the
courts must then examine whether the stop
was “reasonably related in scope to the traffic
violation which justified it in the first place.”
State v. Lopez


Once the stop is justified at its inception, the
courts must then examine whether the stop
was “reasonably related in scope to the traffic
violation which justified it in the first place.”
State v. Lopez
If an officer is conducting a routine traffic
stop, it is within the scope of the stop to
request a driver’s license, vehicle registration,
conduct a computer check, and issue a
citation. State v. Lopez



Once the stop is justified at its inception, the courts
must then examine whether the stop was
“reasonably related in scope to the traffic violation
which justified it in the first place.” State v. Lopez
If an officer is conducting a routine traffic stop, it is
within the scope of the stop to request a driver’s
license, vehicle registration, conduct a computer
check, and issue a citation. State v. Lopez
Law enforcement officers may routinely run
warrant checks on traffic infraction detainees,
provided the check does not unreasonably
prolong the detention. United States v. Pena

PROBABLE CAUSE SEARCHES:

“If a car is readily mobile and probable cause exists
to believe it contains contraband, the Fourth
Amendment, permits police to search the vehicle
without more.”

Maryland v. Dyson


Police officers who have legitimately stopped
an automobile and who have probable cause to
believe that contraband is concealed
somewhere within it may conduct a
warrantless search of the vehicle that is as
thorough as a magistrate could authorize by
warrant. This includes the trunk and any
containers that may conceal the object of the
search.
U.S. v. Ross

Scope of Probable Cause Search:
 “The search is defined by the object of the search and
the places in which there is probable cause to believe
that it may be found. For example, probable cause that
undocumented aliens are being transported in a van
will not justify a warrantless search of a suitcase.”
 U.S. v. Ross

Search of passenger’s property in the car:
Officers with probable cause to search a car may inspect
passengers’ belongings found in the car that are capable
of concealing the object of the search.
 “If probable cause justifies the search of a lawfully
stopped vehicle, it justifies the search of every part of the
vehicle and its contents that may conceal the object of the
search.”
 A passenger’s personal belongings, just like the driver’s
belongings or containers attached to the car like a glove
compartment, are “in” the car, and the officer has
probable cause to search for contraband in the car.
Wyoming v. Houghton

DOG
SNIFFS

DOG SNIFFS:



Reasonable suspicion is not necessary to use a drug
dog as long as the dog was used during a valid
seizure.
Running a drug dog around a vehicle while waiting
for the results of a driver’s license check was not
improper. United States v. King.
Reasonable suspicion of drug related activity is not
required when the dog sniff is employed during a
lawful seizure of the vehicle. United States v.
Morales-Zamora.

DOG SNIFFS:

Plain Odor – The dog’s positive reaction can give the
officer probable cause to search. The officer has to
establish the dog’s reliability and the officer’s (or
trainer’s) expertise.
United States v. Place

When arresting an occupant of a vehicle,
officers no longer have automatic authority to
search a vehicle incident to the arrest.

As previously allowed under New York v. Belton,
(1981)

The following search rules now apply when
an occupant of a vehicle is arrested:


Police may search a vehicle incident to a recent
occupant’s arrest ONLY IF the arrestee is within
reaching distance of the passenger compartment at
the time of the search.
OR
There is reason to believe, based on specific
articulable facts, that evidence relevant to the crime
of arrest might be found in the vehicle.

The decision in Arizona v. Gant does not alter
other search authority:
Officers may search the person of the arrestee
incident to arrest, for both evidence and weapons.
 Officers may search the vehicle for weapons if they
have reasonable suspicion that the arrestee or other
occupants are dangerous and might access the
vehicle to gain immediate control of weapons.
 Officers may search the vehicle if there is probable
cause to believe the vehicle contains evidence of
criminal activity.


Inventory searches:

“It is well established that an inventory search
constitutes an exception to the warrant requirement.
A warrantless search of an impounded vehicle….is
permitted by the Fourth Amendment and Article I,
Section 14 of the Utah State Constitution.”
State v. Hygh

Inventory searches have three recognized
purposes unrelated to discovery of evidence:
1) To protect an owner’s property while it is in the
custody of the police;
 2) To insure against claims of lost, stolen, or
vandalized property; and
 3) To protect police officers and the community from
danger.

State v. Johnson

Utah’s two-step test to determine the
admissibility of evidence seized pursuant to
an inventory search:


First, there must be a “reasonable and proper
justification for the impoundment of the vehicle.”
State v. Hygh
Second, the inventory search itself must have been
“conducted for inventory purposes, in a legal
manner, and not merely as a fishing expedition for
evidence.” State v. Sterger

Utah courts have held that a reasonable and
proper justification is statutory authorization.
State v. Strickling.


Under Utah law, “any peace officer, without a
warrant, may seize and take possession of any
vehicle…that’s is being operated on a highway”…
with registration that is suspended or revoked.”
If there is not a specific statutory authorization, the
officer can still show a “reasonable and proper
justification” for impounding the vehicle.
 Arrested driver, abandon vehicle on a roadway, etc.
 Department Policy


The Fourth Amendment does not require an
officer give a defendant an opportunity to
make alternative arrangements.
State v. Johnson
Specifically, when an officer has statutory
justification for impounding the vehicle,
whether the owner was consulted is irrelevant
because the State has shown the impound was
proper. State v. Strickling

SCOPE: When an officer suspects a vehicle may
contain narcotics and the driver consents to a
search, the officer may search anyplace where
narcotics could be stored, including closed
containers. Florida v. Jimeno


Defendant can expressly limit the scope of the search
either prior to or during the search.
A consent search contemplates a thorough search
(especially if looking for contraband) so that the
removal of an ashtray and an air vent cover have
been held permissible. United States v. Pena.


“Unless adequate protective devices are
employed to dispel the compulsion inherent in
custodial surroundings, no statement obtained
from the defendant can truly be the product of
his free choice.”
The United States Supreme Court provided a
protective device to overcome the “police
dominated atmosphere.”

A four part warning:
Referred to as the Miranda Warning





1) You have the right to remain silent. Do you
understand?
2) Anything you say may be used against you in
court. Do you understand?
3) You have the right to the presence of an attorney
before and during any questioning. Do you
understand?
4) If you cannot afford an attorney, one will be
appointed for you, free of charge, before any
questioning, if you want. Do you understand?
* If an express waiver is to sought, simply ask, Do
you want to talk about what happened?
Two-Prong
Test
Custody
Interrogation
Miranda
Warning

Public Safety Exception:

Questioning to obtain information regarding an
active threat to public safety may be done. Such as a
gun hidden in a public place.
New York v. Quarles, 467 U.S. 649 (1984)

Routine Motor Vehicle Stops:


Stops are brief and take place in public. Are not a
police dominated atmosphere. Berkermer v.
McCarty, 468 U.S. 420 (1984)
Field Sobriety Tests:

No warning necessary before questioning for onscene field sobriety. Pennsylvania v. Bruder, 488
U.S. 9 (1988)

Investigatory Stops:

No warning needed for reasonable suspicion based
stop since they typically occur in a public place and
are presumptively brief. Berkermer v. McCarthy,
468 U.S. 420 (1984)



Suspect invokes right to remain silent but not
to counsel:
Different than an invocation of the right to
counsel. Officers may re-initiate conversation
with a suspect who only invokes the right to
remain silent.
Michigan v. Mosley, 423 U.S. 96 (1975)

Evidence gained from re-initiated interrogations
where:
Suspect’s right to remain silent was honored at the first
interrogation.
 A significant amount of time has passed between the
first and second interrogation.
 The suspect was given the Miranda Warning again prior
to the second interrogation.
 Illegal tactics or pressure were not used to get the suspect
to speak.
Michigan v. Mosley, 423 U.S. 96 (1975)
*Opinion based on the fact the second interrogation was
restricted to a crime not related to initial interrogation.
