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 for Blue to Gold Law Enforcement Training bring you another roadside chat from the studio got an excellent question. I'm looking at my computer here from an officer in California. Okay, so the officer basically is asking, Can police go into a neighbor's backyard during a SWAT operation? Excellent question. So let me just kind of give you a little feedback about the scenario here. So during a SWAT operation, let's say a search warrant, SWAT operators are attempting to establish containment next to the house, right to the residence, the target. Now they ask permission to go into somebody's backyard, but they are denied. Can the officers still enter the neighbor's backyard for containment purposes only? or would this be a violation of the Fourth Amendment? Excellent question. And here's your answer. Do you have agency? Right? Do you have actions the agency just to get you into people's backyards? Now? I need to know more facts. Right? I didn't know more facts, why do you believe that? That there's no time to go get additional pre-approval to be in these neighbor's backyard. By the time you get that approval? Whatever, something bad could happen. I need to know what I know. Now, first of all, we're pretty close there logically because this cop is telling me that they got SWAT deployed, you know, on this house, right? In 2021, we're not dusting off Swat, unless it's pretty serious is my impression out there because of the liability that comes with SWAT operations. So we're getting our operators out. And we're gearing up. It's, it's for a serious situation, right? People have guns, and so forth. That could be, you know, a menace and so forth. So I want to know that though. So I guess that goes along with what the operation is about? If this is a, I mean, Wahby does not SWAT for a child porn investigation? I don't know. You're gonna have to sell me on it. But you get my point. So the answer is Look, do you have exigency? Do you have some kind of public safety issue that if you are not in that backyard, this guy could escape and hurt other people? Right? Is this is his this neighbor's house, the only yard that you could have put is the only yard that you could actually potentially have a container like contain this person, there's no alley, there's, there's a huge retaining wall. On the other side. In other words, this neighbor, like it or not, has the best place for us to to be in case this guy comes out. So stuff like that will help. But as a matter if we go into that backyard, and we go to court, and we get sued, now, these, these neighbors are already denying entry. So you know what's going to happen. If the cops go back there anyway, they're likely to get sued, right?..

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. Alright, so we got a great question here today from an officer in Texas, the great state of Texas. Alright, so the question is, is can you search a vehicle on curtilage with exigency. And let's go to the scenario, okay, I'm looking at my computer here. Alright. The officer is called to a noise complaint. Upon arrival at a house, right, Upon arrival, he sees a car in the driveway with probably music blaring. He smells the odor of marijuana emanating from the vehicle. And this one is actually unique in the sense that the car had two tires, you know, to the rear tires on the sidewalk, which violates a city ordinance. But it's, it's safe to say that the other half of the car is on curtilage. Okay, we go to the car, we make contact, right? And can we search the car? The answer is yes. Here's why. Number one is the case Collins v. Virginia, which is the US Supreme Court case that held that police cannot search a car that's on curtilage under the motor vehicle exception alone, alone. And that is for good reason. Because when you're on someone's curtilage, it's like being in their home. I mean, the curtilage is treated like the home itself, according to the US Supreme Court in a case called Florida versus guardians. So if you're going to be on some of these curtilage, you've got to have a damn good reason to why you're there. I mean, knockin talks work. But if you're doing criminal enforcement, on people's curtilage, you better have some exigency, emergency urgency, or you better have their consent. But if you don't have that, you've got to go get a warrant. And the motor vehicle exception, remember, there is no underlying exigency in the car when it's unoccupied, and nobody's near it, and so forth. Right. Some states court cases, we'll talk about that, that the motor vehicle exception is based off of the exigency of the inherently mobile vehicle. But come on. I mean, that's, that is, that may be one way to describe it. And that may be another reason why we allow these searches as far as is making it just this it's kind of bogus, there is no exigency. When you stop a car for speeding, you have probable cause that there's evidence in there, the guy is under arrest in the backseat, you have the car keys. Nobody else is around you, and you're in the boonies, and there is no exigency there. Right? We know that. Okay. So that's why Cosby, Virginia said, look, the motor vehicle exception will not work. However, exigency will now this case is kind of unique, because half the car is on open fields, the sidewalk, and the other half is on curtilage. Remember, you know, called Virginia the car was 100% within the curtilage it was in a carport. So, this one is a little weird. But even if it was actually fully on the driveway, I still think we win because law noise complaint brings us lawfully into view and next to the car we can we can absolutely go to the to the car and address the issue...

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Hey guys, it's Anthony Bandiero. Here, attorney and senior legal instructor at Blue to Gold law enforcement training, bring you the roadside chat. All right, this question comes from an officer in Alabama. So I'm looking at my email here. And basically, the question is, Can cops use binoculars to view suspects in a public area?

These they want to see, for example, you know, salesman, narcotics,

you know, and so forth. Now, does the officer need probable cause? To do that? Does the cop need probable cause to make contact and so forth? And I have your answer. The answer is very easy. Cops can absolutely use binoculars to see anything that would be open to view, they do not have to, let's say the, the people are in a park.

And cops want to be 500 yards away. With ultra powerful binoculars. They don't want to burn their position, right? They can absolutely be five yards away, not visible to these people to the naked eye use binoculars to see what they're doing. There is no expectation of privacy when the people are in a public place from being surveilled. So that's by binoculars to say the least right? You start bringing in drones and you start bringing in pole cameras, you know, maybe sometimes the answers get a little murky, but absolutely when it comes to binoculars, so basically, binoculars are free game, except when you point them towards windows of a house, right? Or backyards, can golf get a little tricky. But especially into Windows, if you are looking into Windows, and you are seeing something that is not visible with the naked eye from a lawful vantage point, then that is a search under the Fourth Amendment. Let me give you an example.

Cops could stand on the sidewalk in front of a home and with the naked eye, see cocaine on the kitchen table. But they don't want to be on the sidewalk looking, you know this guy's house because they're going to get burned. So instead they go 200 yards back

and use binoculars and see the same thing would that be lawful? If the court believes and you're going to convince the court of this, that you could have seen the same thing with the naked eye from the sidewalk, you will win.

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Hello, everyone, it's Anthony Bandiero. Here, attorney and legal instructor for blue to gold law enforcement training. And here's today's question. Can cops automatically tow a car or rental car? If the driver is not on the rental agreement? Well, the answer, we don't really have a lot of case on this very issue. Because really, it's not gonna be necessarily a search or seizure issue. It may come up if drugs are found and so forth. But fundamentally, it's a it's a tort claim. So here's my advice. I would not tell it not automatically because it's a civil issue. You are a criminal investigator, you investigate crimes. Is there a crime being committed in your presence? By a non authorized driver driving the hertz or Enterprise rental car? I don't see it. Do you have a law that says they can't do it? If you do, that's a different story. But if they have a valid license, and the car is not reported, stolen, embezzled, and so forth, it's not your fight. Right? That's between them and Hertz. If hertz has a problem with what they're doing, and they find out about it, then you know, they can call a lawyer. Now, does this prevent you from calling the rental company and letting them know what's going on with their car? No, I don't see a problem with that. That's that would fund the fall under committee caretaking? Do you reasonably believe that hertz may want to recover their car if they find out that a non authorized driver is driving it because that person may not have insurance may not have a license, and therefore their vehicle may be damaged? And they have little to no recourse? Absolutely. Go? Go ahead and call the rental company and ask them what they want to do. But don't forget that. A couple things. Number one, it's the rental car cars choice, the rental companies choice, it's not your choice. It's not your car. If they don't want to, if you say hey, I really think you should tow it Don't say stuff like that. Just say hey, look, this is what I got a monitor traffic stop. What do you want to do? The other thing that cops ask while we're talking about rental cars is Anthony, can hertz give me consent? Search that car? Absolutely not. Not until the point that they recover it. Now, if they recover it because of a vile, you know, they're violating the contract, then hertz can give you consent to search the car, you may search it anyway under inventory. But that doesn't answer the one burning question is okay...

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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.