The Search & Seizure Show

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training, bring it to the roadside chat from the studio since travel restrictions are in place. Alright. Today's question is, is can officers search a locked container during a vehicle inventory search? And before I give you the answer, I just want to remind my viewers to please hit subscribe, please visit me on YouTube and Twitter and get connected with me because what my goal is, I want to make the largest law enforcement community for getting answers and sharing tactics, getting legal, you know, answers and so forth. That's my goal, because I want to train all law enforcement officers in this vital information. And I want to work to, I want to help us all work together to share best practices. Alright, let's dive right in. If you have a policy that allows you to go into law containers and the answers you can, so that's really the answer. Courts want you to conduct vehicle inventory searches, and they are searches I subconsciously anthony They're not really searches. We're not supposed to call them searches. They are searches. They're just inventory searches. And that searches for evidence. Anyway, as long as your policy says it, you know, that is the kind of that's the kind of thing that courts are looking for, because they courts want to either reduce or eliminate officer discretion when conducting a vehicle inventory search, because they do not want them to be a, you know, wholesale rummaging for evidence, they want them to be legit. They want to be in good faith. You know, why do you get to inventory search a car, to protect somebody's property, to protect your agency from false claims, and to also secure dangerous items. That's why these are not supposed to be, hey, let's get into that car through an inventory search type of mentality. So policies now coming in two flavors, written and Customs and Practice. Ideally, if you want to keep your agency out of suppression hearings, and so forth, your policy should allow you too, to inventory locked containers. If you have access to them with a key or the person gives you a combination and so forth. I do not recommend that you break open closed containers or lock containers during inventory search. Because if you do it, if you do not do it on all cars, but just doing uncertain cars, what the defense attorney is going to likely say is, Why are you breaking my client's property? You know, it just doesn't, it doesn't sound reasonable.

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training. And I'm in Scotch Plains, New Jersey delivering a fantastic advanced search and seizure class to some great officers. And I want to give you take this opportunity, give you some advice. Okay? The advice is this. When it comes to pat downs, it's armed or dangerous, not armed and dangerous. And here's what I mean. In the seminal case of Terry versus Ohio, the US Supreme Court talked about, you know, Officer Martin McFadden with the Cleveland Police Department, you know, patrolling Euclid Avenue for something like 38 years on the job and most of them as a plainclothes officer. And he sees Terry and his friends going back and forth in front of stores and things that they're up to something about to commit an armed robbery. And he Pat's him down and finds two, revolvers Ontarian in a cohort. And the Supreme Court said that if the officer can articulate that the person is armed and dangerous, they can do the pat down will certainly McFadden had reasonable suspicion that Terry and his friends were on dangerous because there but the hold up the store. But I wish they didn't use that phrase. That phrase comes from Old Hollywood, you know, be on the lookout for a suspect who is considered armed and dangerous. But what they should have said, and it would have given a lot more guidance to hard working police officers out there that want to go home at night, is it's not armed and dangerous. It's armed or dangerous. We got to get out of our mind is armed and dangerous. Because here's what happens. Officers are sometimes not patting down people, because they consider them dangerous. But they have no articulation that they're also armed. That is not what courts look for. They routinely look for armed, are they armed? Do they have the bolts consistent with the weapon? Are they favoring one side, you know, on their waist area? You know, are they walking in with a certain gate? That seems like they have a concealed carry and so forth? Are they visibly armed, you can certainly disarm people during a lawful detention or probable cause traffic stop for your safety, even if they're lawfully carrying, if you believe that this would help your safety that is, that is easy for the courts. I mean, a person with a gun can instantly become dangerous.

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey guys, it's Anthony Bandiero here with blue to go Law Enforcement Training. I'm in Martin County, Florida teaching advanced search and seizure having a great time out here. And the question I got was, Can officers lie during a knock and talk? And the answer is, yes, certainly officers are not, you know, required to share all their inner secrets about an investigation with an occupant. So that's not a problem. You know, courts have upheld, you know, deception during investigations for centuries. But I want to transition to another related question. And that is, Can officers lie, to get into a home to, you know, see evidence and so forth. And the general rule for known officers, these are, you know, these are not undercover officers. These are known officers, that the documents know that they're dealing with the police. The general rule is that officers should not lie about their primary purpose about coming into the home. Let me give you some examples. And an infamous case, officers told the occupants that there was a bomb planted somewhere in the building, right? That's, that's they got a bomb threat, and they want to look for it. What the cops were really after was plain view evidence of drugs. Well, they get into the apartment to look for the bomb, they find no drug evidence, and we go from there. The court easily suppress that evidence, no rational person would say no to the police. After hearing that there's a bomb somewhere in the building. Let me give another example. Officers were investigating disability fraud. The occupant was suspected of being highly mobile, and he's lying about his disability and so forth. They wanted to catch them on camera inside his home moving around with no issues. They told him that he was the victim of identity theft. This was a lie, he there was no evidence of him being the victim of an ID theft. Based off this, though, they won't take a report, the occupant invites him in, and they secretly record him moving around and so forth and use that against him in his disability disability fraud case, that was suppressed, because the primary purpose was a lie, that we're not there for fraud. Compare that to these two cases. cops told the suspect that they were following up on a two year old burglary that he reported. Okay, so the he was the victim of the Burgh. But that was a lie. The case was closed, there was no leads, and so forth. What they were really after was child porn evidence. They want to see if there's something in plain view. So they told him this and they wanted to talk to him further inside the home. So the occupant of Vida men, they're acting like they're taking more information about stuff that was stolen, all the while they're looking around the home looking for the, you know, plain view evidence that was suppressed, the primary purpose was a lie, there was no investigation. But compare it to this case, officers were investigating a burglary. And the occupant was the target. They were hoping to get into the home to see if there was plain view evidence of the property stolen. Now, when they went to his house, they said, Look, we're rescuing a Burg. And he asked him I suspect and the cops lied and says, No, you're not. Okay. He says, Come on in. And while they're taking the report, and so forth, and asking him questions, they see plain view evidence that was upheld as constitutional, because the primary purpose was not a lie. They were there for the burglary. But the secondary purpose, of course, was also to see if they saw plain view evidence. So this is just about telling somebody why you're there. Remember, though, is if you do not, if you remain silent about why you're there, and you're like,

Hey guys, it's Anthony Bandiero here with Blue to gold Law Enforcement Training. I'm in Scotch Plains New Jersey teaching advanced search and seizure. And I'm going to answer a question today that I know a lot of you have on your mind. Can you search a vehicles passenger for marijuana? And the answer is, probably, but I have to go into some, you know, legal reasoning here because the answer is really not that clear. In some regards, this video is probably going to be more than average, I try to keep my videos all under five minutes, this one is probably going to go a little longer. But let me dive right into it. Here's what the Supreme Court has told us about passengers. There's two key cases I want you to know about. Before we dive into a little more discussion about the marijuana issue. One, back in the 1940s, the US Supreme Court said that if you have probable cause for the vehicle, right, that there's something in a vehicle, it doesn't give you automatic right? To search passengers, you have to have a Nexus that just makes sense. If you pull over a vehicle, and let's say it's Uber, and you find drugs on the Uber driver, certainly that would not give you probable cause in and of itself to search some passenger who does not know that Uber driver. The other case, happened 1970s. And what happened there is the officer gave the driver a citation for speeding, and then did a search incident to arrest. Well, the logic here and I do hear cops, you know, saying this, and they're kind of taught this way is that a citation is in lieu of arrest you have you heard that before? Right? It's like, I'm not, I'm kind of like a rescue, but you're going to be free to go. That's an old school language from some court cases, quite frankly, I don't teach it because I see no value in it. If you have even if you have an arrestable offense, let's say a suspended license, and your state allows you to arrest somebody for a suspended license, but you're just going to cite and release them, you get none of the benefits of an arrest, you get no search, you have to be diligent in your time, and so forth. So there's no value in saying it's Aluma. Rest, from our perspective, from the law enforcement, or maybe academically, it's, it's, it's in lieu of arrest, let the prosecutors enjoy that doctrine, if it gives them anything, but for you, it gives you nothing new, they're having arrest or you don't, if you don't have an arrest, it's treated like a Terry stop, even though you're citing the person. All right, now let's move into the marijuana discussion. If you have probable cause, that a passenger has drugs on them, like marijuana, and you are not intending to arrest, that's where the problem comes in. When you do a search of somebody person, and it's not for weapons, that is arrest, like, in other words, if if you have a passenger probably cause that they have drugs in their pocket, you go right into the pocket and pull out the drugs. That type of action is arrest like meaning it needs to be supported by probable cause. And you probably technically arrested them, even though they may not go to jail that day. That is actually not a big deal. The fact that they don't go to jail, but still you have, you know, essentially did a search incident to arrest. That's the only exception. We do not have an exception at the Supreme Court level that says if you have probable cause that somebody has evidence on their person that in and of itself allows you to search the person, you know, for example, you have probable cause that somebody has drugs in their backpack and they're walking down the street. Do you have automatic authority to stop the person and search the backpack? Under some recognized exception of search one requirement?

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey guys, it's Anthony Bandiero here with Blue to gold Law Enforcement Training. I'm in Scotch Plains New Jersey teaching advanced search and seizure. And I'm going to answer a question today that I know a lot of you have on your mind. Can you search a vehicles passenger for marijuana? And the answer is, probably, but I have to go into some, you know, legal reasoning here because the answer is really not that clear. In some regards, this video is probably going to be more than average, I try to keep my videos all under five minutes, this one is probably going to go a little longer. But let me dive right into it. Here's what the Supreme Court has told us about passengers. There's two key cases I want you to know about. Before we dive into a little more discussion about the marijuana issue. One, back in the 1940s, the US Supreme Court said that if you have probable cause for the vehicle, right, that there's something in a vehicle, it doesn't give you automatic right? To search passengers, you have to have a Nexus that just makes sense. If you pull over a vehicle, and let's say it's Uber, and you find drugs on the Uber driver, certainly that would not give you probable cause in and of itself to search some passenger who does not know that Uber driver. The other case, happened 1970s. And what happened there is the officer gave the driver a citation for speeding, and then did a search incident to arrest. Well, the logic here and I do hear cops, you know, saying this, and they're kind of taught this way is that a citation is in lieu of arrest you have you heard that before? Right? It's like, I'm not, I'm kind of like a rescue, but you're going to be free to go. That's an old school language from some court cases, quite frankly, I don't teach it because I see no value in it. If you have even if you have an arrestable offense, let's say a suspended license, and your state allows you to arrest somebody for a suspended license, but you're just going to cite and release them, you get none of the benefits of an arrest, you get no search, you have to be diligent in your time, and so forth. So there's no value in saying it's Aluma. Rest, from our perspective, from the law enforcement, or maybe academically, it's, it's, it's in lieu of arrest, let the prosecutors enjoy that doctrine, if it gives them anything, but for you, it gives you nothing new, they're having arrest or you don't, if you don't have an arrest, it's treated like a Terry stop, even though you're citing the person. All right, now let's move into the marijuana discussion. If you have probable cause, that a passenger has drugs on them, like marijuana,...

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey guys, it's Anthony Bandiero, here with blue to gold law enforcement training this week. I'm in Martin County, Florida. And the question I have for you is whether or not officers can go into the backyard when they're serving an arrest warrant and not violate curtilage? And the answer is, yes, officers can do it. And here's why. Now, first of all, the question comes up, because when I talk about curtilage, in my class, I remind the students that from the Supreme Court's perspective, the back yard is typically treated like the home itself. So if you're going to be there, you need a reason you need what I call crew, you need the person's consent, you need a recognized exception or a warrant. There's the crew. Now, here, the recognize exception is the arrest warrant. An arrest warrant gives the officers permission to invade somebody's privacy, in the same manner as if they had a search warrant. Really, an arrest warrant is two things. One, it provides judicial probable cause to arrest somebody, but it also gives the police officer authority to search for that person at their home under three conditions. One, that that do have a valid arrest warrant that this is their house or their domicile, it doesn't necessarily mean that the address you're serving, it has to be on the warrant. But you do have to if there's a any doubts about that, let's say for example, they moved, and you look at DMV records, and you talk to a neighbor, and you talk to their employer, and they're like, yeah, they put this address on their employment application, you're gonna want to explain to the court why you had probable cause that this is now their legal domicile where they live. And then finally, the third ingredient is there, you have reason to believe they are present at the time of execution. One thing I want to kind of guide you on though, is that because going into the backyard is in a sense, like going into the home itself, that third element should be there before you go into the backyard. So for example, you should have a reason to believe that they're presently home before you go into the backyard. The cars in the driveway, the neighbor says they saw them there you see them, and so forth. If you have those elements, you can go into the backyard to serve the arrest warrant for officer safety purposes and so forth in the same manner as if you had a search warrant, which does mean forced entry after following complying with knockin announce. I hope this helps keep the questions coming in. Until next time, stay safe.

When it comes to legal training, we're the gold standard. Visit blue to gold comm or Call 888-579-7796 today to purchase the search and seizure Survival Guide, register for a class or learn how to bring our search and seizure training to your agency.

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey guys, it's Anthony Bandiero, here with blue to gold law enforcement training, and just outside of Cleveland, Ohio. And today's question is, can you run the serial number of a firearm that you are holding during a traffic stop? And the answer is most likely, but there are some caveats I want to go over. So first of all, we do know that if you are lawfully seizing a gun, for example, during a pat-down during a traffic stop, even if some is lawfully concealed carry, and you want to seize that gun during the traffic stop for your safety. Well, that certainly is going to be upheld. That's pretty clear. And then when you have the firearm, normally the firearms serial number is in plain view, you can just look at it. And that's not going to be a search under the Fourth Amendment right to be right to see, that's plain view. But what happens when you are running the gun, and the gun itself has nothing to do with the traffic stop, you know, it's just a safety issue. For example, the traffic stop is for speeding feller to maintain lane and so forth. The next legal question that we have to address is, does the running the gun extend the traffic stop? Because if it does, it could be prohibited under Rodriguez. So let's go through if you're running the firearm, and the serial number is is offered along with the suspects or the driver's license information, so forth, and dispatches gives you all that at one time, that's not usually gonna be an issue because it didn't extend the stop. It's part of the other things that you did it did not measurably extend the stop. So that's that's the first issue benefit. But if it does extend itself, let's say for example, dispatch tells you, hey, look, NCIC has taken a while to get back on this gun. And everything else is, is completed on the traffic stop, and you just waiting, there is an argument that that unrelated investigation is extended stop. And if something is found as a result of that, it's the fruit of the poisonous tree. So keep that in mind, I think courts are going to bend over backwards to give you the tools you need to, to find stolen firearms and so forth. But just keep that in the back your mind at some, at some point it can become extended, it could extend the stop. The next issue is what if the if the serial number is hidden from plain view. So for example, if there's a Hogue grip on the grip, and that certain number is, is underneath those I know, some Rugers have their serial number plates there. And you have to actually remove a grip or you have to remove a firearm part, you know, part of the furniture of the firearm and so forth. That is not playing view, right, that is a search under the Fourth Amendment. And I recommend that if you're going to do that, and be that and be intrusive on the person's firearm, have some reason to give to the court why you believed that run the firearm was reasonable...

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey guys, it's Anthony Bandiero, here with blue to gold law enforcement training. And I'm outside of Cleveland, Ohio. And today's question is, may officers run a drug dog in apartment or motel hallways? And the answer is yes and no.

Officers can run a drug canine in a motel or hotel hallway, but they cannot run the same dog in an apartment hallway. Usually, these are the most these are the this is the best approach here. And let me explain to you why. Now, first of all, when we are talking about areas outside of the front door, you know, are around a home, motel apartment and so forth. Those areas are classified under one of three categories. First, curtilage, curtilage, is protected, like the home itself. And these are areas intimately associated with domestic life, you know, playing with the kids barbecues, you know, hanging out on lawn chairs, and so forth. And then the second area are areas where there's a reasonable expectation of privacy. And finally, is open fields. So curtilage,

reasonable section of privacy, and open fields. Now let's go let's start with motels. motels don't have curtilage. You know, most motels do not have curtilage. Colleges is more associated with non traditional home, like a tent. But there are areas where the person the occupants have an exclusive right of control over it. If you think about most motels, they cannot exclude anybody from the hallways. This is why or that is why it is not curtilage. Let's go on to reasonable expectation of privacy. Hallways in a motel also are not protected under a reasonable expectation of privacy tests. The main reason is that society does not think it's reasonable. For the for a multiwell a motel occupants to have such a high expectation of privacy, that it would be unreasonable for officers public in canines to be in those hallways, it's just not that type of environment. And if you think about it, that makes sense. motels are certainly like a home inside the motel room when the person is lawfully occupying it. But there's real world consequences and limitations. You know, for example, people can be immediately evicted. If they violate a rule, like smoking and fighting and partying and breaking stuff. You know, that's not true with a home. And it's it's a commercial establishment. So really, hallways are the third category, open fields, let's move on to apartments, apartment hallways are not curtilage. Generally speaking, there is no right of exclusive control, you know, an occupancy over that hallway, other people can access it, they can invite the public. So it's not curtilage. You know, there may be an area in an apartment that is exclusive to one resident, but generally speaking hallways are not. But they are often considered areas where a person has a reasonable expectation of privacy. The reason is, is that most courts find that the apartment dweller, this isn't this is a traditional home, right, clearly, and they want to uphold a higher level of privacy in these areas. In some ways, I think courts feel it's unfair for the traditional home with the white picket fence, and the cops can bring the drug sniffing dog onto that property into the front door. Why should the apartment dwelling dweller have a less expectation of privacy? Will they do because again, hallways are not exclusive. They're not like the front door with a white picket fence. But this is a this is a proper balance.

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey guys, it's Anthony Bandiero Here, attorney and senior legal instructor with Blue to Gold law enforcement turning, bringing the roadside chat from the studio got an excellent question from an officer from Florida, right, the great state of Florida. So I'm going to call this chat. How do you handle misdemeanor crimes that are not committed in your presence? That's what I want to call this, right. And so the giveaway some context, if I give you this scenario, many states, not all, but many states have a misdemeanor restriction that you can, you can not make an arrest for a misdemeanor, that was not committed in your presence. Now, all of those states that have this restriction also have some rules that have exceptions. So for example, DUI, not coming in your presence, domestic violence, not coming your presence, you can still arrest on those, even though they're misdemeanors, but they still have this common law rule that if you didn't see with your own senses, then you have to go another route. So I want to give some cops some tools to use to address those situations that come up frequently, right. So before I dive in with those tools, let me give you the scenario. I got my computer up in front of me so we can read a little bit. So officers get a call that the victim had or her purse stolen. They arrived 30 minutes later, now they have a suspect description. They see the suspect, you know, a few blocks from the place where this the purse got stolen. Now this purse wasn't as this is not a strong arm robbery. This was simply the lady was on her phone. She's not she's not paying attention that she's an outside cafe. And the guy just comes up and grabs the purse and leaves right so then she realizes a purse is gone. So not a strong arm robbery or theft. Now in Florida, the have a felony? I think it's is it a felony? Yes, I felony is $750 or more in value. The victim says The purse is worth about 450 Not a lot of contents that are worth anything inside the purse. So she's claiming a loss of approximately $45. So we're in the misdemeanor level. Now they also have video of him. You know, behind some bushes, they add a school they go behind the bushes, they find the contents of the they find the person so forth. And here's where we're at, you know, can we make the arrest or not? If we can't make the arrest? What are we supposed to do? Okay, well, let's, let's address a few things

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor for Blue to Gold law enforcement training, bringing into the roadside chat from the studio. Alright, this question comes from an officer in California, all right. So let me just kind of give you the question basically is will a no trespassing sign and they closed gate prohibits you from doing a knock and talk. Alright. So before I kind of go into my feedback here, let me get, let me give you some context here. So deputies in a role setting, they want to do a knock and talk on a burglary suspect. They don't have probable cause to arrest them. Now the suspect lives on a 100 acre ranch. It's fenced barbed wire, the driveway gate is closed, but also to keep the cows in, right. It's a rancher to working ranch, but the gate is not locked. There are several no trespassing sign No Trespassing signs provided near the front gate. about midday, the deputies open the gate drive through and close the gate behind them don't let the animals out. Right. They drive down a mile long driveway to reach a suspects house. And they talk to him. So the officer has two questions. Number one is are we good here on a knock and talk in number two is if if we are or not, you know, if we develop probable cause to arrest him? Can we arrest him? Okay. So whether or not whether or not a knock and talk is lawful, is falls into the Girl Scout rule. Okay, it's it comes from a case called Florida versus Jordan's US Supreme Court. So the Girl Scout rule basically means this do you believe? You know, take the cop part out of it? Right? I know your mission is to find out. But take the car cop part out. Do you believe that the Girl Scouts could do the same thing without offending? This person's raised quantitation of privacy? Right? Or trespassing on his property? Do you