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 attorney and senior legal instructor with Politico law enforcement training, bringing you a roadside chat from the studio. We got a doozy today, this is a question that comes up a lot. I also see it a lot. I'm being very proactive about this particular issue, which is, can police tag an abandoned or junk vehicle? When it's on curtilage? Okay, here is the scenario, I'm looking at my computer here. Right? So there's a new ordinance. This is this comes out of Louisiana, the great state of Louisiana. So this is there's an ordinance that's that, that directs police officers to tag abandoned or junk vehicles on private property without consent without a search warrant. Right, and then order to put give them notice that they got to get the thing out of there. And now the next question, which is not answered by the scenario is okay. Even if officers tag it, and you know, it, it goes nowhere. I guess we're gonna need a warrant to seize it. I don't know. I like to know that. I like to know what the ordinance says about that, too. Alright. So can officers do this? And it also applies to code enforcement and applies to, you know, agents of the government. Right, not just law enforcement. But I would recommend that cops be extremely cautious about this. So here's the first question I have for you. Is the vehicle on curtilage? Or is it on open fields, right? open fields are those areas that a person may own, but they're not protected by the Fourth Amendment. I mean, somebody can own 100 acres, but that 100 Acres is not going to be 100 acres of cartilage, it's going to be maybe an acre of curtilage. I mean, I'm just kind of, I want to see pictures, but of what the land looks like and where the home is, and things that they set up barbecues, lawn furniture, corn Hall. But certainly you can own a lot more land and curl it. So if the vehicle is on curtilage, buyer beware, you're probably going to get burned very bad. curtilage are those areas that are intimately associated with the home, right with family life, they're physically and psychologically associated with domestic life. The backyard is your quintessential curtilage, your carports your side, you know, areas rent your home. And if the car is there, my belief is 100%. Cops cannot be there tagging cars. Now, if the car is in the driveway, I've seen cases go back and forth. But if that portion of the driveway is curtilage, I would not be on it. Why Anthony? It's just the driveway because you don't have the homeowners consent.

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 training, bringing you another roadside chat from the studio. Let's get right into this. This question comes from California, and the officer is asking about the stale misdemeanor rule. So I guess the question is, is, what is the stale misdemeanor rule? Okay, I'm gonna give you a scenario to apply to, all right. The stale misdemeanor rule is a common law doctrine, that essentially means that if a crime was committed within the officer's presence, and he or she could arrest that person right then and there, right, but yet waits, and doesn't arrest and then arrest sometime down the road, let's say the next day, next week, whatever that makes that arrest. courts have held that that is a stale arrest, it's a still misdemeanor, and the appropriate response is not to arrest them anymore. But to submit a warrant request, or give them a citation and kick them loose. So the first thing is this stale misdemeanor rule is not really alive. And well, in many states. It is a live in California, but it's a very the case all on this doctrine is very limited. And the idea behind it is that, you know, we don't want this threat of arrest, hanging over people's heads that simply commit a misdemeanor and the officer's presence. And then, you know, because you have a year in a day, usually the file, right, the file the charges, we don't want this hanging over the person's head forever. So like, if you saw a person breaching the peace, right, disorderly conduct, let's just go with that disorderly conduct on Saturday, and you go up to them and say, hey, you know, knock it off, right? Or, or you don't do anything? And then you don't, you know, and then the next week, you see the same guy. And you decide just to arrest them for that disorderly conduct happened last week, the courts don't see that being legitimate for a misdemeanor that you didn't arrest for before. Okay, so there it is. It's, it's, again, a very rarely used doctrine in courts. But let's apply it to some facts. So my officer friend here says, Look, cops investigated domestic, right. And the husband is not home, he took off on foot, but we have probable cause. So the officer on that shift, writes a PC declaration for the husband, they handed off to the next shift and say, Hey, you can find them. Here you go, here's the, you know, here's the PC declaration, it's all ready to go. You can book them in the next shift finds them or the next morning, they find him, they then arrest him. Right. And we go to court. Are was that a still misdemeanor?

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Hey guys, it's Anthony Bandiero Here, attorney and senior legal instructor for blue to gold law enforcement training, bringing you another roadside chat from the studio. Okay. So here's the question from Texas. The officer says, If I get consent to search a vehicle, does the traffic stop have to end first? Before I can search? And the answer is no. So consent includes with it, the agreement to extend the traffic stop. Does that make sense? So we know that when it comes to traffic stops, you know, the scope of the traffic stop is determined by its mission. Which means why do we stop this person? If we stopped the person for speeding, we have the scope is a speeding investigation, we do not get a free drug investigation, right? So. So that's what it is now. Here, the officer says he actually built up reasonable suspicion for drugs, then asked for consent. And now he's wondering, do I have to stop the traffic stop? And then, you know, ended and then go for the search? And the answer is absolutely not. In fact, that'd be kind of silly, actually. Because if you have reasonable suspicion for drugs, asking for consent is now actually related to the traffic stop, because it concerns what's going on. Um, what you should do is actually put the original reason for the stop on ice. Just if you're writing a ticket, you should probably stop writing that ticket and now diligently pursue what the new issue is right? For drugs and so forth. That's actually what courts would want to see. I've had a there's a case out of Kansas, where the officer had reasonable suspicion pretty early into the traffic stop, did all of the traffic stop. And then, you know, include right in the ticket, all that kind of stuff, and then started pursuing the drug investigation, and then of calling a dog later the core throughout the throughout the evidence, because they're like, hey, look, you were not diligently pursuing your reasonable suspicion. And so that's, that's a great point, put the original reason on ice and then go from there. Okay. If you don't have reasonable suspicion, now, some states require reasonable suspicion before even asking for consent, you know, like Oregon, and so forth. So just think about that. But even if you don't have reasonable suspicion, I mean, the person giving you consent, is, again, consenting to extend the traffic stop here, the officer said, oftentimes, they'll talk to the drivers and ask Is anything any contraband in the vehicle and so forth? And they're like, no, do you want to take a look?..

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 you another roadside chat from the studio. This question comes from an officer in Florida. And he asks, have courts relaxed the manipulation rule? Under Terry pat downs? So what the officers talking about here is a case that's called Minnesota versus Dickerson, US Supreme Court. Basically what happened there were officers patted down Dickerson, they felt an item in his pocket while during the pat down. And they described the path and you know, when they're feeling sad, they described it as manipulating it, feeling it, pinching it, squeezing it, to basically determine whether or not it was drugs, right. And then they felt, you know, that that was a rock like substance. And that combined with all the other circumstances, while the stop was made in the first place, because we thought that drug activity is occurring.

The court, the cops knew that it was, you know, potentially rock cocaine, or at least had probable cause? Don't you want to know it? But you had probable cause? They removed it? Sure enough, they're correct. And we're going to the US Supreme Court. So the US Supreme Court held that in that case, right. The cops manipulation of the item failed to satisfy the playing field doctrine, or the plain touch doctrine, wherever you want to call it. But they did say if while patting somebody down, an officer feels an item that is immediately apparent. Remember that immediately apparent as contraband evidence, fruits or instrumentalities, of a crime and so forth, that they could go into the pocket and seize it. Now, back to the original question, the officer is asking, have courts relaxed this rule? And the answer is no. They're very strict on it. If a cop goes to court, and is asked, at the time that you felt this item in the pocket,

did you believe that it was a weapon or something that could hurt you? And then they in the officer says, No, I knew at that point, that it's not something that can hurt me. Okay. But you continue to feel the item? Yes. And how describe how you felt that item and so forth? Well, I felt that I put my hand in it, you know, I pinched it, I squeezed it...

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 on the roadside chat from the studio. Here we got a great question from the great state of Idaho, which is going to be my future residence one day already bought the lands as the build the house. So, here's, here's we got going on there.

So this question is, can police evict tenants or occupants from a long term stay motel? Man, before I get into this, this is this area of the law is really underdeveloped. We certainly have a lot of cases from evicting people from hotels and hotels, and, and so forth. And of course, we have lots of cases from trying to get people out of, you know, apartments and houses. And then in between those two is the long term stay the extended stay America type of situation. And let's go through it. Alright, let's go. This is good stuff here. Okay. So here's a scenario. A local hotel, it was a Motel Six, and now it's called the extended stay. Is it? Yeah, extended stay. What I mean, I would love to, I would love to live there. It just sounds like a beautiful place. And so the cop, you know, gets requests by staff to evict people, right. And they want to know, you know, does and while we're evicting people other questions, the COP is asking, you know, do we have to? Does the manager have to give the notice to evict? Can we do it for the manager? Can we walk right into the door? Can we just use the master key and just walk right in? Alright, so hopefully, this video is not too long. But I'm telling you, this video is going to help you because this issue comes up all the time. Okay, let's first start with the premise of dealing with true hotels that are your stereotypical, you know, one night to night type of scenarios. So the law is pretty clear on this one. Hotels and motels have a common law, right? to evict people for cause these are what the courts refer to as transient lodging, right? The person knows that they're not going to be staying there forever. And that if they break the rules, it's not unreasonable to expect to get the boot. So the law is pretty clear. If the management calls you and says, Hey, we need help the victim this person because of partying, drugs, smoking, you know, whatever breaking stuff, then the laws pretty clear that they got to leave. But what about them if they pay for the next week? Anthony, that's a civil issue...

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 training bringing the roadside chat from the studio. This question, let's see, look on my computer here. This question comes from an officer in the great state of Texas, right? Maybe it's the maybe it's the Great Republic of Texas. I don't know, technically, if it's, you know, what they call it down there. Alright. So this officer has a great scenario. And basically the question is, is Can an intoxicated owner of a vehicle give consent to search? Right despite being intoxicated. So the scenario here, the officer says that they stopped a vehicle with three occupants, the owner of the vehicle is in the rear seat due to be intoxicated, so they have a designated driver, that's always nice. And they see some old containers in the vehicle. So they're gonna get into the vehicle based on that alone. But that's not a very comprehensive search by any means. Because you can only look in places where open containers are likely to be so you don't get the trunk. You don't get the hood. You don't get tiny little places. Usually. I know what you're gonna say. But Anthony, there's little shooters can be in there. Okay, if the court buys it, then that's fine. But while doing there, they while in the car, retrieving the open containers, the officer see some Swisher Sweets, which is, you know, very commonly associated with marijuana cigarettes. So that's where we're at. Okay. So, and those are under the seat. And that's another telltale sign that they're probably marijuana cigarettes, right. But the cop then goes to the owner, again, this owner is intoxicated, would have been arrested that behind the wheel and says, Can we search your car? And he or she says yes. Is that consent valid? Based off of these facts? Absolutely. Absolutely. Voluntary intoxication is not going to get you out of consent to search, right? Voluntary intoxication, doesn't get it person out of there consensus search, basically, the role is this. Under the totality of the circumstances, do you reasonably believe that the person has the capacity to know that it's it's a, you know, they have a choice, right? It's a yes or no, they have the capacity understand that they have a choice. That's it. That's really all it takes. And the burden of proof for the court is usually pretty low. In most states, it's preponderance of the evidence...1

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 you another roadside chat from the road. Right. So a lot of these I make are from the studio because of travel restrictions. Or just as more convenient to be honest with you, sometimes I make them because I get so many of these, but I'm here in Greenville, Tennessee, trying to catch up on these, these questions. And the next one is going to be from an officer in New York, right, just north of New York City. And basically, the officer is give me a scenario here, where under the lights kind of coming into the car, but it is what it is, hopefully that's not too distracting. Alright, so the question is, when officers respond to an OD, right, and the person is is revived, they're going to go to the hospital? Can you take their cell phone as evidence and to see, you know, who the dealer is, you know, because that's that person could potentially be charged for contributing to the, to the overdose? What if the, the person, you know, ends up dying? Can you searches, you know, basically seize any cell phones and the circumstances? Here's, here's my, my feedback. Number one, obviously, without any question, taking a person's cell phone is a fourth amendment issue, right? It's a seizure on the Fourth Amendment, especially if they're alive, right? Because they're alive, and they have a possessory interest in their cell phone. Therefore, you know, the seizure has to be reasonable. Now, if it's a, if the person is being transported to the hospital, and you're going to conduct a criminal investigation to determine, you know, who sold the narcotics to the person and so forth, and seizing the phone in order to get a warrant. It's reasonable, that's, that's, you know, that's, that's gonna be reasonable, they're, you know, likely, you're gonna have probable cause. But the problem is going to be seizing it as a matter of routine, and then keeping it in the evidence locker, whatever,

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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor for Blue to Gold Law enforcement training, bringing you the roadside chat from the studio. Let's get started. So today's question is, what is plain view? Alright, what is plain view? So, plain view is nothing more than right to be right to see. Right. That's how I train it right to be right to see, hear and smell. So basically the idea here is that if you are lawfully present, there is no search under the Fourth Amendment, by using your God given senses, there is no search, if you are lawfully in somebody's home, investigating a domestic violence. And you're looking around the home, even if you had the intent to find something, right. You know, let's say that the husband is a suspected drug dealer, and you are lawfully present because of that. Because of the investigation in your mind like Well, hey, since I'm here, let me see if I can find plain view evidence. And you look over, and you see drugs, stuff behind a book in the bookcase, you're like, well, that's a little, you know, cellophane package, you know, sticking out a little bit, he tried to hide it before you guys came in and didn't do a good job. That's plain view. Right? That's plain view, you have a right to be where you're at. You're using your God given senses. And the evidence is immediately apparent. So that's another thing that courts will throw in there, they'll say not only do you have to be lawfully present, the evidence has to be immediately apparent as evidence, contraband and so forth. All that means it's not that, you know, you look at it in instantly, you know what it is, right? You know, it's evidence. You don't you can look at and be like, Wait, is that what am I seeing what I'm seeing here, you know, so forth. But immediately apparent, basically means that you have probable cause without manipulation. So if you manipulate something that's not playing view, let me give you an example. You're in a home,///

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Hey guys, it's Anthony Bandiero Here Attorney and senior legal instructor with Blue to Gold Law enforcement training, bringing you to the roadside chat from Greenville, Tennessee, where I'm out here for the week teaching. Alright, so this question comes from an officer in South Carolina. And he's asking about, can you compel somebody to provide their fingerprints and or facial recognition to unlock their cell phone? And the answer is yes, the answer is yes. Because fingerprints and facial ID is not testimonial, there is no recognized privacy interests, you know, in your fingerprints in your in your face. So that's generally the case and other, you know, with my legal brain, I'm also thinking of mass facial recognition software, you know, that you're, you're putting downtown, and you're identifying everybody who's downtown, implicates a different constitutional principle, but that's not relevant here. So the point is, is that if you got a court order to basically compel a person to unlock their phone with their fingerprint or facial ID, that would be lawful, that's not a Miranda violation, because it's not testimonial, however, just to get a little more, you know, in depth here, having them provide their password, or even, you know, let's say those like those, the Android type of unlock right, the pattern, that would be a Miranda issue, because the person has to think about their answer. Right. And that's testimonial, and they could incriminate themselves. Now with that, one, you're not going to be able to compel them to provide their password or pattern, unless it's a foregone conclusion. So that's what the doctrine is called. foregone conclusion, a foregone conclusion essentially says this, if you can prove to the court that you know it's on the phone, right, it's not, it's not that you don't know what's on the phone, so that you need the evidence to bolster your case and to prove your elements, then, most likely, they're going to give you a a warrant to basically compel the person to provide their, their password. Now, let me give an example. Let's say a friend of the defendants saw child porn on his phone, he knows his child porn, the guy, the defendant was bragging about it, and so forth...

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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor for blue to gold law enforcement training, bringing you another roadside chat from the studio. Alright, today's question comes from an officer in Utah, and the officer basically asked, do we need a warrant for a death investigation? Okay, well, let's, let's kind of go through this. So the officer says, Look, we get into the house because we have exigency. You know that there's somebody the SES in the home, you know, you know, let's say that the cleaning person comes, and they call and the homeowners dead, and so forth. Alright. So they said that they cannot get a hold of anybody with standing in order to continue the death investigation, right. So I guess, like the cleaning person be a good example, like the cleaning person, generally speaking, cannot let you just search around the home, you know, during the decimal because they don't have a privacy interest in the home enough needed to allow you to have free rein of the house. So. So they want to, you know, they want to look to see if you know, if the depth is suspicious, if the suspect it natural causes, location prescription bottles, or a doctor's information to try to see what the health is, you know, if the person has been to a doctor within the last 30 days, and so forth. So the question is, does this require a warrant? And the general answer is no. Okay. So death investigations, if they're, if there's no foul play, and you're trying to determine the cause of death, and you are in your in the home lawfully, you know, generally speaking, these are not criminal investigations, you're basically playing corner, right, you're, you're basically playing corner, you know, you're trying to find out just like you said, medical issues prescription, you're trying to find the cause you're trying to help find the cause of death. And because that is not a criminal investigation, the US Supreme Court case in Mincy, versus Arizona has and apply. So Mincy is a stands for the proposition that if you are in a murder scene, right inside of a home, the murder itself, obviously a very serious crime, in and of itself is not going to allow you to search the residents for for evidence of the of the murder, without either a consent, or be a warrant, right? There is no murder scene exception to the search warrant requirement. But we don't have that here, you know, officers are in the home, and they're just trying to find the cause of death, there is no murder....