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Hello, everyone, it's Anthony Bandiero. Here, attorney and senior legal instructor for blue to gold law enforcement training, bringing the roadside chat. All right. This one is a good one. I like this one. This one is Ken cops break a car's window to retrieve a firearm, that the firearm is evidence. Alright, this comes from an officer from California from Southern California. Alright, so let me give you the background here. Okay. I'm reading from a computer call for service. The victim says that she was assaulted with a gun. The suspect pointed the gun at her, didn't shoot her. But pointed at her. We obviously have assault with a deadly weapon. The victim knows the suspect knows where they were likely the person lives and gives it an accurate description of the vehicle, including plate and so forth. The deputies arrive at that address. And what did they see parked on the street? The vehicle? A neighbor is standing outside the cop say, Hey, neighbor, do you know who drives this car? And they're like, yeah, the guy and they described the suspect. And they're like, did you just go into this house? And he's like, yeah, he was he just came home, you know, maybe no more than five minutes ago. Now, the deputies look in the car. And what do they see in plain view? The gun, this guy did not even hide the gun from being observed from plain view. Right? Now the question is, what can we do? Can we go into that car and retrieve that gun? And hear the deputies specific want to know, if they try to open up the door in the door and the car is locked? Right? No doors are open? Can they make a four century into the vehicle? Can they smash the windows? Well, I have your answer my friends. I have your answer. And maybe you're gonna be surprised at this. But the answer is yes, they could. Now before I get in to the legal reasoning, I want you to know that not all states follow the federal motor vehicle exception, right? Mobile conveyance exception. They don't, they don't, not all states are going to have these rules. Some states like Washington, New Mexico, New Jersey, Pennsylvania, are going to have more restrictive rules. But the vast majority of states apply the standard motor vehicle exception that was based off of Carroll in cases after that. Okay. So in order to retrieve that gun, we gotta have four things. If these four things are in place at the exact same time, cops can smash the window. Number one probable cause? Clearly, I think we are slam dunk probable cause that That gun is evidence. Right? That gun is and also we're talking about California here too. It's going to be the guns not gonna be legal anyway, under these conditions. I mean, I don't you know, from my knowledge of California law, you cannot transport that gun like that in California. Now, this was, you know, another state, that's pro gun, you know, maybe different story, but the gun itself is also evidence of a different crime, which is, you know, some kind of illegal transportation firearm, but certainly it's also evidence of the assault with a deadly weapon. So check probable cause, next factor is is the vehicle and curtilage the vehicle cannot be on curtilage under the motor vehicle exception. And let if it is on curtilage, you cannot retrieve the evidence unless you have either consent by some even give it or you have exigency or a warrant here, the cop made it clear to me that the car is on the street in front of the house. That is not curtilage. So we don't have that issue. By the way...

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Hey guys, it's Anthony Bandiero Here attorney, Senior Legal instructor,

for Blue to Gold Law enforcement training, bringing a roadside chat now this one is gonna be a little long. But I think worth it enhances this is great real life stuff here. So the officer from it's an officer from Missouri, basically, the question revolves around Hot Pursuit. So what are the Hot Pursuit requirements, but let me read to you what's going on with this case. So you have some context. Again, I think it's gonna be worth your time here. Okay, this is great for like roll call training, and so forth. So this is, this is excellent. So an officer observes a male about to exit a house, but upon seeing the officer, he steps back in pretty common, you know, suspicious behavior, not necessary reasonable suspicion, but suspicious. Now the officer knows that this location has a history of drugs, right? It's it's an it's a known drug house. So he goes down the street, he parks, he then sees that same male, exit the house, cross the street at an angle against city ordinance, right, you gotta be 90 degrees, thus committing an infraction in the officers present presence, okay? The mailman enters a property of another person who the cop knows has complained about people crossing their lawn. Now, we have probably costs for the the cross country violation. And now we have reasonable suspicion that they're violating the trespassing, even though we don't have a victim at this point. But we at least have reasonable suspicion that the person the owner of the house would not want this and they would want to file a complaint. Okay. The officer drives down the road, he's gonna try to make contact with this guy. And the male upon seeing the mark patrol vehicle, that we're not, we're not chasing him, there's no lights on. He takes off running, unprovoked flight into an address where a woman was standing at the open door. So he runs into the house, okay, slams the door. The officer gets out quickly approaches the door knocks and announces, Hey, police, and the lady answered the door. And he says the cop says where'd he go? And he replies who can you picture this, the officer pushes the door open past her. No resistance buyer, she doesn't resist but opens the door pushes past and goes into the house and observes the male exiting out the back window. The cop does not follow because he's too big for that window. So he goes around to you know, out to the front and then into the back to pursue him. Now he doesn't see the male. But when it gets back around to the house, he hears the woman talking to a male inside. He believes that that male is the one that he was chasing. So he re enters the house...

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Hey guys, it's Anthony Bandiero here with Blue Gold law enforcement training. And our question comes today from an officer in Tennessee. And actually a very common question is, what is the difference when in inventory? And they search? Alright, let's dive into this. As also Tatum would say, let's get into this. So they're both searches. Okay, I hear time and time again, officers say, hey, inventories are not searches. Well, yes, they are. I know what they mean. But I'm just trying to be specific here. If it wasn't a search, then it wouldn't be controlled by the Fourth Amendment, because the fourth man only controls two things, it controls searches, or seizures. So it has to be a search. Otherwise, it would not fall under the gambit of under the Fourth Amendment. But what the COP is trying to say is in when the cops say this, and you're absolutely correct, that what they mean or not, what they mean is, they're not searches for evidence. Inventory searches are force for safekeeping, right? For looking for dangerous items, for listing out items of value. That's what their searches for their searches for the for the Toshiba and so forth. A search when we say hey, we are searching for something, we normally imply that we are searching for evidence. Okay, so that's the difference. Inventory searches are for to fill out the toe sheet and to protect the person's property and against false claims, dangerous items, and then searches for evidence or for things for criminal investigations. Now, the officer says, what are the common pitfalls that officers tend to fall into with these inventories and so forth, I'm gonna tell you that the common pitfalls is when we use inventory searches for criminal investigations. And what I mean by that is, sometimes cops will be on a traffic stop, they will have a hunch that there's something or reasonable suspicion that there's something in the car, they cannot get consent, because the person will not give it. They have no drug dog available. They also have no probable cause. But the person's registration is expired by two weeks. And per their law, their state law or their policy, they have discretion to tow that car. And so they say to themselves, they say, You know what, let me just tow the car and see what's inside of it. Because the law says I can that is a pitfall that is unconstitutional, in my view, right. And I have support by the US Supreme Court in this. But you should never use these inventory exceptions. As a short circuit, the Fourth Amendment probable cause requirement. So don't do it. Now. At the same time, if cops have this hunch that there's something in the car, but they have to tow it, because the law requires it. It's a DUI, their car smashed up, it's in the intersection, the car is blocking somebody's driveway, and they still have a hunch that something is in it. I say, don't worry about it. Because the end result will be the same as long as your inventory search looks like an inventory search and doesn't look like a rummaging of just a general rummaging for evidence. It looks it complies with your policy, that it should not matter what you're thinking...

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Alright guys, we got to talk about Caniglia V. Strong, US Supreme Court. May 17 2021. I've been talking about this case for months. You know, my students have asked me my opinion on it. I've given my opinion. And let me just share a little bit of background about it. But it's a very massive, hugely important case on two fronts. Number one, firearm confiscation and the red flag laws. And number two, a little more guidance on the so called Community caretaking doctrine as it applies to homes. Let me give you just some quick facts. Okay, I know you're busy. I'm busy. I'm in justly No, I'm in the great state of Tennessee. Teaching just out of outside of Nashville, love teaching here. And if you want me to come to your agency, or you want a fellow instructors come to your agency like the great and Kelleher and so forth to come your agency and teaching folks search and seizure, give us a call. Okay. So the background what happened was cops were called to a house because a husband the night before threatened to, you know, he kind of threatened suicide in an indirect way he told his wife that he was tired of fighting tarda arguing, why don't you shoot him, you know, shoot, shoot me right and get it all over with that was kind of like his, his tone. The wife then went to a hotel for the night. She called the husband the next morning, no answer. She feared that he actually did commit suicide, he called the police to do a welfare check on him. They ended up contacting him and he basically assured the cops that it was not a danger to himself. However, he did agree this is in Rhode Island, by the way, he did agree to go to the hospital voluntarily to do a mental, you know, Psych psychiatric evaluation. So why he was gone. The cops then spoke to the wife, right, the wife returned to the home. And I believe this is several hours later, up to four hours later. And the officer then they knew that he had a gun, right or guns, they then entered the home without a warrant without consent, and no exigency to go seize the husband's firearms, why community caretaking? If we can, if we don't seize these guns, maybe he comes back after the hospital and kills his wife kills himself and so forth. So this is, you know, something like best practice, right? Well, the husband then sues to get his guns back, he has a lot of problems getting his guns back, and so forth. Finally, he gets him back. But he Sue's over this whole entry to begin with. He's saying, hey, look, you should have never even gone into my house under those conditions. And then he filed a federal district in a federal lawsuit, and he loses. And then he appeals to the First Circuit and loses...

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Hello, everyone, it's Anthony Bandiero Here, Attorney senior instructor for blue to gold law enforcement training. Bring the roadside chat This question comes from an officer in Idaho. And so basically, the officer asks, basically, about are homeless people allowed to sleep in parks after hours. And the reason that this is coming up is because of a case called Martin versus Boise, which is a case of the Ninth Circuit, right, which the US Supreme Court refused to hear. So basically, it's good law in the ninth circuit. So here's a scenario. The officers aware that enforcing laws against homeless people is very problematic, after this case, the Martin case, because basically what the Supreme Court or the Ninth Circuit said is that if you're going to enforce anti camping ordinances against homeless people, the question before you enforce it, and you arrest them? Or you cite them is, where can they go? Do they have a place an alternative place to go? Is there a shelter? There's a bit available? Is there another place? A park in town where or a place where you want campers to go? Is that place close enough? Or are you trying to say that the next available camping ground that you can go to for free, is 100 miles down the highway, right? So these are all great questions. And I'm telling you right now that you need to be very, very careful. Before you start running around enforcing all various laws against homeless people. I am not saying that you're not going to enforce the being in the street, or you can enforce it being in the street blocking traffic, blocking sidewalks. But when it comes to these, these anti camping enforcement actions, just be careful. I have a whole webinar on dealing with homeless people and RVs tents and so forth. But just be careful. I personally would not want to see these decisions made at the sergeant or line level, I just wouldn't I would like them to be made at the command level. I want lieutenants and above and especially my chiefs, talking to their legal counsel, I want them talking to their attorney, so the prosecutors to their state's attorney, because you are potentially getting yourself wrapped up into a very expensive lawsuit. Homeless people have a lot of advocates, they may not have a lot of money, but they have a lot of attorneys willing to give their time to fight their cases. Okay, so they pull on the heartstrings. And I understand I mean..

Hey guys, it's Anthony Bandiero. Here, attorney and legal instructor for Blue to gold law enforcement training, bring it to the roadside chat from the studio. All right. Let's start here. So the question comes from an officer in Illinois. And she's she asks, Can you transport a DUI suspect somewhere else? For field sobriety tests? And I have your answer. The answer is, if you do not have consent, and you just do it, and you order the person to go somewhere else, and you drive them somewhere else, that is going to likely be considered an arrest. Now, if it's an arrest, okay, the first question is, is do you have probable cause? If you move this person, you have probable cause, then it's not an invalid arrest. It's called a de facto arrest and arrest in fact, but then the next issue is going to come up for you is Miranda issues? Because if you did arrest them, because most courts will believe that involuntary transportation equals in arrest, because most people think that they're have been formally arrested. Now, if you bring them let's say, to the station house, because it's snowing outside, and you start asking questions, again, about, okay, confirm how much you had to drink? Well, I know I told you to, but really, it was four. And all these other things in any other testimonial type answers will likely be suppressed unless you have Miranda, but most cops are not reading Miranda, while they're doing field interviews, and so forth. And so that's the answer. Now, the way around this is to seek the person's consent. If you have a good reason, let's say that it's snowing out, and you don't want to or you're on an incline decline. It's not. There's no flat surface and area to do field sobriety tests. So you want to ask them, Hey, do you want to go to the station? Or do you want to go to the firehouse and on a flat surface and have a better opportunity to perform these tests satisfactory? Do you want to do that? And if they say, yes, then argue that, you know, articulate that the person gave you free and voluntary consent to move the traffic stop, essentially, to the fire station or the police department. But if they say, No, they do not want to move, then, basically, I would treat that as a refusal to do the tests and go from there. And the question would be okay, if you can't do the test on the location where you're at, then I would try to figure out what matter had probable cause? If you have probable cause, then if it was me, I'll just make the arrest and go from there. If I don't have probable cause, then I'm at to look, look at some other options. Right. But that's the deal here.

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Hello, everyone, it's Anthony Bandiero Here, attorney and senior legal instructor for Blue to gold law enforcement training. Bring it on the roadside chat from the studio. Alright, this question comes from an officer in Idaho. My future home state, by the way, bought some property in Idaho can't wait to build. Alright. So the question look at my computer here, the question is, can you make entry into a third party residence for a warrant? If you visually see the suspect? I definitely have your answer. Let's give you some context. So the COP is doing a knock and talk at a third party residence, let's say the cousin's house due to a tip or see that the subject sub-subject is at the location, and also has a warrant for his arrest. When you arrive at the location, and you see the subject through window, you see the subject through window, and he looked through you and he, and he sees you. Right. So can you enter the home and arrest the suspect? Right. Also, the homeowner answers the door and tells you the suspect is inside know, he says yeah, he's uh, he's here. And do you have to get a search warrant? Consent? Or can you just go in with the arrest warrant? Guys, I definitely, definitely have your answer with 100% certainty because there is a US Supreme Court case directly on this issue is called us versus steagle. And the answer is no, and cops can not go in. So the reason why is because cops aren't not or are not necessarily violating the suspects rights, the ones they have an arrest warrant for. But they are certainly violating the homeowners rights. See, the homeowner has a right to keep police out of his or her home, unless they have judicial authority. Right. So just because they have a friend who's hanging out, that happens to have a warrant for their arrest, that does not mean that police can barge into that person's home, invade their privacy interest in order to effectuate that search warrant, I'm sorry, arrest warrant. So you're violating that person's rights. So you would need either consent, the homeowner can certainly give you consent to come in. Even if the the wanted the fugitive says how man You can't come in here. That's going to be a rare circumstance, indeed, where that guests can override the homeowners consent because they have greater authority of their home. So consent will work exigency will work if you have agency, you know, for example, if you do not get this person in custody right now, do you believe that he will be long gone before you come back? You better have specific facts, not just a. It could be possible? No, you're gonna need the guy's been running from police. And I don't have any people I can put on the house, I can't surround it. I can't stay here until I come, you know, come back with a warrant. You're going to legitimate agency. Okay. Do you have probable cause, that the suspect has evidence on their person, like DNA evidence, let's say that they're also suspected in a violent crime. And they also happen to have a warrant for the rest, but they're suspected about a crime that just occurred, you know, recently, like within that within a couple hours or so forth, and they may have gunshot residue on their hands, DNA evidence on their genital area, you know, evidence on their fingernails, that's something that will get you into the home and take them into custody? Or do you have a search warrant for him for that residence? That's what you'll need. If you don't have that you can't go in. And this question comes up a lot, because cops are like, But Anthony, I can see this dude. He's like, he's in the window or the the the homeowner opens the door, and I can see him sitting on the couch. ..

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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor with blue to gold along for some training, bringing the roadside chat from the studio. Alright, we got it. We got a doozy here. So my, the question is going to be, can officers conduct a surround and call out on a third party? third party's home. Okay. So when I say third parties home, what I'm talking about here is your surrounding a third party, right, someone who's not directly connected with the case when you are trying to get in custody another person, right, you have a warrant for the person, and they're at a third party's home, you have probable cause for the person, and they're at a third party's home. So that's how I like the idea here, I'll go into more detail about what I mean and so forth. But let me give you this scenario. This is from an officer in in from Indiana. All right. So they conduct surveillance of for wanted suspects, they have an arrest warrant for that person. They will often see them at a third party's home, a friend's house cousin's girlfriends, etc. They'll sometimes see them come out and go back into the home, right? They're grabbing the paper in their slippers. Well, maybe not quite that right. And so they know for sure that the guys there. So the next move is to surround the home and call the person out. If the person refuses to come out, they'll go get the warrant, and enter the home for that. Okay, so the COP is wondering, hey, does this practice? Is this practice flawed? Or is it constitutionally firm? Okay. I think it's flawed. I think we got I think we got a problem on our hands, my friends. And I have some concerns. Now I tried to look up, you know, when I answered these questions, just so you know, I'm a practicing attorney, I got clients that, you know, that need me that pay me that, you know, call me and, you know, I got to focus the vast majority of my of my energy and my time for my clients in my training and so forth. But I do try to find some cases, you know, when I when I do these, these roadside chats, and I found one that supports my position, but I've not found one that really is like on onpoint. So we're kind of making some case law here, but let's walk through it. Okay. So first of all, we know that if police have an arrest warrants, they can serve that arrest warrant at the person's domicile. That rule came from Payton, New York, Payton versus New York, okay. So if police have a warrant, they can serve it at that person's domicile. If the police have a warrant, and the person is at a third person's house, cousin, friend, etc, then they need either consent by the homeowner to come in exigency, or they need a search warrant to go into the third party song. And the reason why this is a supreme court here, right? The Supreme Court said, You know what..

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Hello, everyone, it's Anthony Bandiero Here, attorney, Senior Legal instructor for Blue to gold law enforcement training, bringing in a roadside chat. Alright, this question comes from an officer in Utah love teaching in Utah. So the officer is basically saying, what are the requirements to ping a cell phone for a suicidal suspect? Right, or I should say subject. So, here are some of the contexts. Can officers request a cell phone ping based off of a third party's suicidal report? Right, that's something suicidal. Sometimes these reports are hours, if not days old. Is there a reasonable timeframe to get the pain? Does the urgency fade as time passes? I'm seeing this use more and more. And basically, our law enforcement officers overstepping and or infringing on an individual's rights of privacy? So excellent question. And we don't have a lot of clear answers. So number one, I do not give any answer or any my opinion that's based off a state law. The reason why is that I'm a constitutionally, I'm a constitutional expert, not a statutory expert. So my viewers out there that are in Illinois, New York, you know, and so forth. You're going to have statutes on this issue, that you have to research everybody that the research, but I bring up those states because those states are notoriously a little bit more restrictive. Okay. So back to the question, constitutionally, well, the most appropriate case that we have on this issue is Carpenter, right from the US Supreme Court, I think 2018 Don't quote me on that part. But it's a it's a recent case. And carfinder involved getting cell site location information on a suspect, believed to be involved in cell phone robbery stories, actually. So they had about 127 days of data that they got. And based off of that data, they put carpenter at all the right places at the right time for these cell phone robberies. And the Supreme Court found that that was a search under the Fourth Amendment, and therefore required some exception to the Fourth Amendment or a warrant exigency may get you there, but not 427 days, right? exigency for like here, and now type pinging but usually a search warrant. Now one thing that they did say, in the case in a footnote, I think footnote two or three in the carpenter case, was that they gave a bright line rule that certainly seven days or more of location history requires a search warrant. But carpenter didn't really address the here and now, agency arguments for suicidal people, armed and dangerous people, kidnapping suspects and so forth. That's not what carpenter is all about carpenter really focused on historical data. Still, though, it did involve location information. So I'm just saying, you know, as far as the Supreme Court goes, that's our most relevant case where we kind of look for guidance. Now, going back to the question, so constitutionally, if somebody is about to commit suicide or hurt somebody else, but commit suicide..

Alright, let's talk about a question that I got from a YouTube viewer. And he puts us in a calm, he says, Anthony, can you do a video on how to turn a traffic stop into a consensual encounter? And why? Yes, I can. This is known my friends as the trooper to step or the clean break rule. So let me give you the context here. So you, you have a hunch that something's going on. You know, you don't necessarily have reasonable suspicion, or even if you do have reasonable suspicion, but you don't have a canine available, you know, but you want to see if you can get consent to search, right? What I recommend is if look, if you have a hunch, or reasonable suspicion, but no cane unavailable or no other resources, if they say no to because it's one that just try to transition the traffic stop to a consensual encounter, then talk to the guy, see if you can, you know, seeking, you know, seek consent to search if he says, yes, go from there. If he says no, then probably have a good day. Right. So what courts want to see, and this is the general in all states, right? What courts want to see is that there's a clean break between the traffic stop, and the transition to the consensual encounter a clean break, meaning is it, you know, clear, obvious to the driver, that he is free to go, and that this new conversation is based upon consent? Is it clear, right? What have you done to establish this clean break now? This is where the trooper to step comes in, and your addiction officers are going to be very well trained in this this thing, but any officer can do it. This is what I recommend. What I recommend is once you've decided what enforce Next, you're going to take a warning ticket verbal warning, whatever you're going to do, right?

Maybe get the guy out of the car, right if it's safe to do so get the guy out of the car. Talk to him about the enforcement action, Sir, here's your warning, your written warning, and so forth, given back all their paperwork and say something like this, sir. That's all I have for you. Do you have any questions, comments or concerns for me? Before you go? And the guy says, No, I appreciate it. I'm good to go, sir. Have a good day. I like officers to then turn around, start walking back there to their car, and then pause, turn back around and say Hey, sir, you know, before you get going, can I ask you a few more questions.

And the guy will usually say Yeah, what's up? That is a consensual encounter. Now this is a little over the top, do you have to do the trooper to step? Absolutely not. There are cases out there where the officer simply said, Sir, you're free to go. But before you go, can I ask you some questions, the courts have upheld it. However, in this day, day and age of high scrutiny by courts against, you know, proactive law enforcement officers. I like officers to just be very clear, and you know about what they're doing and making sure there's no misunderstandings about what's going on. So the two step is a very clean, clear way of letting that guy know, he is free to go. Right. And so that's why I like to see. So that's what I want to see. And you know, in articularly report that you know, based off these Reno's circumstances a reason person will feel free to go therefore I engaged in a consensual encounter...