The Search & Seizure Show

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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...

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All right, this question comes from an officer in Indiana. And the question is is, so if we have if I stop a car with fraudulent plates, can I search it for the documents, to prove ownership, insurance and so forth. And so here's, you know, here's kind of the context here. So I'm a police officer in Indiana. And we, the officer stopped a car that was being driven around with some paper plates. Now he ran the plates. And he said that it should have returned as just expired, but it didn't, I don't think it returned at all. So some kind of fictitious release result switching that the plates are fictitious, stop the driver stop the vehicle contacted the driver, and she says, I just bought this car off Facebook marketplace, paid cash, no title, no bill of sale, the play came with the car. So the whole thing is a mess. Right. And dispatch also notified that the that plate was expired in in 2020. And it actually because I guess an additional search on it, and it was registered for a different vehicle. So the whole thing is fraudulent. The car is likely, you know, unregistered, uninsured, probably uninsured and so forth. So we have some probable cause for some violations here. Now, the compensation, can I search the vehicle for documents, you know, for ownership, you know, any kind of proof that she's in on it, maybe some other paper tags and so forth? Right? Insurance? You know, stuff that proves that it's her vehicle disproves it, all this kind of stuff? And the answer is absolutely, absolutely. There are two reasons why number one, Yasser kind of mentions one of them, probably cause? So do you have probable cause? Is there a fair probability that more evidence is inside the car that could help you prove or disprove your case? And I think the answer is yes. Right? She's saying that she doesn't have anything else in the car, or, you know, the play came with it, let's see what else is in the car, right? She says she has no bill of sale; maybe if there's a bill of sale, that's, that's to somebody else. Maybe it proves that she sold the car and so forth, right? She has, or she knows that she's not supposed to have the car. But also, there's this other rationale that's also out there by courts, that simply states that when the owner driver of the vehicle is unable or unwilling, right, to provide any documentation for the vehicle, it is reasonable to search those places where those documents are often held. For the paperwork, glove box, center console, above the visor, you know, little areas where the cupholders are, and so forth, you know, in the trunk, if you can justify it, maybe maybe not, you know, but it's much cleaner, if they're in those, especially in those areas where they're under control the driver. But the point is, that's another reason because that's part of, you know, the regulation of vehicles that you're you're supposed to be providing this, this documentation to prove ownership, and legality and so forth. So probably cars plus those other case, the other case law, on the books help justify that I it'd be very, I'd be very surprised that there's a court out there that said that the officer here did not have the right to do a limited search for that paperwork. And in order to move the ball forward now, I also you're probably wondering the same thing. Well, Anthony, what about inventory searches, right? That could work too, but maybe for some reason, the officer does not want to tow the car. Maybe she pulled into her driveway. And there's not really a community caretaking rationale, you know, to tow the car, maybe we'll leave it there. Maybe it's in a private parking lot...

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Alright, guys, today's questions is so important. It's important to every single officer watching my videos and those that watch my videos. It is what happens if we lose qualified immunity? Right? It's on your mind. I know it is. And if you've already lost qualified immunity in some of the states like Colorado and so forth in New York, New Mexico, right, then what does that mean? Okay, well, first of all, let's get down to it. What is qualified immunity qualified immunity is a judicially created doctrine that protects officers from lawsuits when the issue is not clearly established under the law. In other words, officers oftentime make decisions in the field, constitutional decisions that are not quite black and white, you know that the US Supreme Court has not addressed it, their Circuit Court has not addressed it, their state Supreme Court has not addressed this issue. So what is what are they supposed to do? Say, timeout? Suspect? Look, I'm going to timeout for a second. I'm going to go seek judicial approval. But what I'm going to do, and I'll be back, no, they can't do a timeout. So qualified immunity is there to protect officers except the blainley. Incompetent from lawsuits against for situations that are not clearly established under the law? In summary, to qualify for qualified immunity, right, to get to be immune from a lawsuit. The qualifications are this, number one, did you even violate the constitution? That's one question that the courts can ask and answer, right. Um, maybe they say, Look, I know, it's unclear that this officer, you know, but we actually find that the officer did the right thing. So, boom, we don't need qualified immunity, the officer actually was constitutional. But even if the court found that the officer was conducting or doing something that was unconstitutional, right, the next question is, alright, was the law clearly established at the time because, again, if the laws not clearly established, then it's not fair to hold the officer liable for money damages, when it's not even clear that they would have violated at the time of the act. So clearly established law comes from again, the US Supreme Court, and your circuit court, and your state Supreme Court. So for example, if you're in Texas, and you do something, right, and the Illinois State Supreme Court has found that what you did violates the Constitution, does that apply to you know, that is persuasive, not binding on my Texas officers, so that is not going to eliminate qualified immunity for Texas cops, right?..

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Hello everyone, Anthony Bandiero. Here, Attorney Senior Legal and started for Blue to gold law enforcement training, bringing to the roadside chat. Today's question is, what are the rules regarding a temporary seizure of a firearm during a traffic stop?

Great question by officer comes from North Carolina. So, base a little bit of context here, let me read what he or she wrote at a quick question regarding temporary seizing a firearm during a traffic stop. And so, this officer said, Look, I've watched your video about running the firearm, you know, serial numbers and things like that things to kind of think about, I do have another video about that. Um, you know, so he says, in my experience, besides blatantly obvious officer safety issues, right, there's something about the tropics, aka drive by shooting or a brandishing case. You know, we can seize them. Also, drivers will generally allow you to temporary seize a firearm if you ask for it, right. If you say, Hey, do you have any firearms in a vehicle and say yes, especially in a state like North Carolina, where a lot of people likely have firearms, especially if you explain to them why. But the officer also explains that that's not the only option that they do that he does. And maybe he also separates the firearm from the person maybe brings the guy out of the car. Hey, where's the firearm? Under the seat? Okay, fine. Much has come out and we'll do business outside the car. But push comes to shove. Right. The question is, if there are no other reasons, to be concerned for your safety, can we still separate the firearm and seize the firearm? I guess, right, seize the firearm during the traffic stop, even if we have no other reason to believe that they could use that firearm against us? And the answer is yes. Absolutely. Absolutely. Why? Because the firearm equals armed and dangerous. Right? That's Terry versus Ohio, right. So if you don't know about the firearm, they may or may not be armed and dangerous. You gotta articulate that. But the if you know that they have a firearm or have a reasonably the firearm, then they are automatically considered armed and dangerous to Terry Stop level, which is reasonable suspicion enough to seize that firearm during the traffic stop. That just makes sense. Because, you know, look, if a judge is going to second guess, a cop, and say, Hey, you have to have the firearm plus something else? Well, they're gonna have blood in our hands, right? There's gonna be that one cop out there that just can't have those as a gun inside the car, maybe even on the guy's hip. But can't figure out another reason why that gun could be a danger to the officer, then the person flips out on the cop shoots the cop. And now we have this case where the judge says you can't do it, the cop, the judge, is gonna have blood on his hands. Right or her hands. That's just not the way it works. So I've never seen a court case require something more than just a firearm if I mean, if you know the firearms there that is armed dangerous. So at the same time, look, I was a cop in a pro gun, state, Nevada. Everybody had guns. Right. So while well West, and the way I did business was, you know, oftentimes if they said they had a gun, and they were concealed carry permit, and there's nothing shady about them. They're on the up and up...

Alright, so today's questions is a little complex. So you got to bear with me on this one, I might need to take a little bit of your time to get through it. But the question is, is our orders to detain and transport the suspect back to the station for a formal interview? lawful. All right. So, alright, so not all states may have this, but there's still an interesting situation. So an officer from Missouri says that it is a common practice in Kansas City, Missouri, where the process the state prosecutor's issue in order A, it's called a stop order, or a PLI a person of interest order that's entered into the computer system. And when the person is found, they are then handcuffed, transported back to the station for a formal interview. Okay, so common practice. Now, it's this is not a fresh arrest, right? This is not, you know, where somebody got arrested and transported and, you know, we're gonna interview them. These are based off of these orders issued by the State prosecutors. Some of the officers feel that this is an unlawful practice. Right, that this is basically an unlawful arrest. And that you would have to have either an arrest warrant, probable cause or consent. Okay, so let's go through this. So first of all, let me say that if you have probable cause, to arrest the person, and, you know, the stop order is based on probable cause. We don't have an issue, I don't see the issue, because we can just call that an arrest, and just arrest the person. You see my point here. The only issue is going to be if the stop orders or P allies are based on reasonable suspicion or anything less than probable cause. So let me assume that that's what's going on. Again, now, it also talks about fresh PC, we don't have fresh PVC. I don't think it's gonna matter. I don't see the issue there. As long as you have probable cause, whether it's stale or fresh, if it's still probably caused, and there is a right to arrest the person. We can just call this stop order or poi an arrest warrant. Right. It may be it may be called it's not called an arrest warrant. But I think we just call it that, constitutionally, because it looks the same. That's what kind of looks like right. So if it's if these if these stoppers appeal wise or not based on probable cause, Houston, we have a problem. So let me just go through some I'm getting my source here from the great Wayne Lafave if you know, you've been in my classes, you know that Wayne Lafave is a God in in search and seizure, you know, history, and he's most cited and Prudential search and seizure expert, according to the US Supreme Court and so forth. And he has a treatise called the search and seizure treatise, right. So, here is a case where you see what this is a case in US versus Brignone. Ponce, for to to us. 873 1975. So, here's what the Supreme Court said about something like bringing bring the guy back to the police station, right. The detention of the petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly, where he was found. Instead, he was taken from a neighbor's home to a police car, transported to a police station and placed in an interrogation room sound familiar?...

Alright. Today's question is, can we search a deceased victim's cell phone? Right? Okay, so comes from an officer in Alabama, let me ask, let me give you the context here recently, and, you know, at overdoses, our narcotics Units unit has been wanting to seize the cell phones for the purpose of searching them. The goal is to charge a drug dealer with the death of the individual, right? As well as general information gathering, maybe they can point to the right finger in the direction of local dealers in the in the city and so forth. Now, the cop says My understanding is that since the person is deceased, they no longer have a fourth human rights in the deceased has no more issue, privacy interest in the phone, and they can perform the search without a warrant. Now, the only hiccup the officer is seeing here is that what if the family member says no, you cannot take our son's cell phone? You cannot take our daughter cell phone? We want it that's going to be ours, because we're going to inherit his property? Do they now have to get a warrant? If they do not get consent? All right? Well, look, I kind of talked about cell phones before. But let me just re address it because it's a very important issue. Generally speaking, there is no privacy interest that the drug dealer has in the phone. So even if the cops search the phone with nobodies without the famous consent, even though they may get the property in probate or whatever, right. They don't, there's the family doesn't have a most likely a privacy interest in the phone. It's the son's phone, it's his phone. Now, even if they got the phone after the death, it's not, they still have no privacy interest in the information. So we're not going to really have an issue there. Even if they had a privacy interest, even if they're the only time the Fourth Amendment is going to be implicated as if they're being charged. So if the mom, for example, says you cannot have my, my, my phone, my son's cell phone, and we find out later that she paid the bill, she has common authority over the phone, she often uses it because the sun allows you to use it, and blah, blah, blah, that's not going to come up. And that's not going to be an issue of the criminal case against the drug dealer. Unless the drug dealer is mom, right. So even if mom has a privacy interest, it's not going to come into court because the drug dealer, if it's not mom at some third party, who's dealing drugs in the in the city is not going to be able to use go through mom to try to claim that he has some privacy insure. So again, it's at the end of the day, the result is probably the same. So just a wrap up. If somebody dies, and they have a cell phone, and police, you know, then the guy has the disease no longer has a privacy interest. He's not going to complain, right, obviously. And even if they somebody else, like the family member that has some tied to the phone complains, their denial, even for warrantless search is not going to be effective, as long as they're not a defendant. Right, because but if somehow, that family member who happens to have a privacy interest in a phone, which can be rare, but they happen to have a privacy interest phone, if they start becoming a person of interest, Houston, we have a problem. They can complain if they do have a legitimate privacy, interest and phone, they can complain about a warrantless search..

Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training, bringing to the roadside chat from Knoxville, Tennessee. I got a question from an officer in Las Vegas, Nevada, Las Vegas Metro. So here's the question. Can you search a person for evidence if you have probable cause? Okay, so, you know, in other words, do you have to make the arrest? Right. Okay. Let's go through some a couple scenarios at the officer. I got my little laptop here that I'm reading from the car. Alright, so one is basically the officer had a consensual encounter with a suspect that he knows from the past prior arrests, you know, he's your neighborhood felon, get type deal, right? You know who he is. And the cop asked them hey, Johnny, you got meth on you. And this guy mitts? Yeah, I got meth on me. And so that can be a site and release type of situation. You don't have to arrest them, right? Otherwise, we don't have the problem. We can do a search incident to arrest the COP is asking, Can I retrieve that evidence? Without the arrest? And he's getting conflicting answers. But I have your answer. The answer is yes. The answer is yes. Under two, and under two rationales. Number one is exigency. You don't have time to go chase down a warrant, while this guy is standing on the street, even if he's in handcuffs, he can manipulate the evidence, he can, you know, if he has a, let's say, some kind of paraphernalia, he can, he can break it, he can land on it, you know, he can try to escape. The point is, you know, there's this exigency there, there's this, there's this urgency just to get the evidence off of his person to cure it, and then go from there. So there is usually exigency. And you know, the vast majority of courts have held the same. The other one is that the intrusion is less than what you could have done, which is arrest the guy. I mean, think about it. If it's an arrestable offense, it's it's a, it's a, it's a crime committed in your presence, you know, even if it's a misdemeanor, it's a crime being committed your presence, he is telling you that he has meth on his person. That is probable cause, right? I mean, why would he lie about that? So is there a fair probability he's telling the truth and add that also with his prior histories? And so, you know, how is he going to complain? When he goes to court and say, Your Honor, they should have retrieved that evidence. But isn't it true defendant that they could have also arrested you and did a full search incident to arrest including potentially a visual cavity search at jail if you're going to be put into general population? So the cop you're saying that the cops can do that, but they can't do a lesser intrusion? Which is just to retrieve the evidence cite you and have you go on your way? Is that what you're saying? Defendant? It doesn't. It's not reasonable, right? It's more reasonable just to do the lesser intrusion, and kick the guy loose. Okay, so and so now, the other scenario that the cop says, Okay, so there's the drug scenario, here's the nurse scenario. A person is detained by loss prevention. The loss prevention does not retrieve the evidence from the person, but they have him in custody, right. They're just basically doing a citizen's arrest. But they're not searching. So the cops show up, and they watch the, you know, security cam, and what did they see on a security cam, this guy stuffing stuff down his pants, you know, in his backpack, whatever. And now, can we retrieve that evidence without arresting him? Well, we know that this is not a misdemeanor coming your presence, by the way, you know, just because you watch a film of a past event is not come in your presence..