The Search & Seizure Show

Alright, guys got another question for you for roadside chat. This one is long fact pattern, but I think it's worth it right. This one is the question is determining if a bicycle is stolen based on an alleged victims accusation. So this question comes from an officer in California. And he did a very, very good job give me, you know, a lot of background for this case. And the essence of this case is, you know, is there probable cause? Is there forth an issue, and basically taking an alleged victims word at face value, that somebody has their bike and it's stolen? Right, what not much more. And I think that's a great scenario. So let's let me read the fact pattern. And let me address a few issues. Okay. So a little long, but again, that's why we're here to see what you would do. Alright, so this is what he said, a resident of a neighboring city came to our PD to report that a bicycle was stolen from her home about three days ago. The theft had not been reported to her local PD prior to coming to our PD, very common, right. But she did post a theft on a social media app called next door. The bicycle was an older beach cruiser style bicycle, with a child seat attached to the back. The resident did not have any proof of ownership, such as a purchase receipt or a serial number of the stolen bike. Now, at this point, one question I do have the option for the officer? And I don't know the answer is, is does the resident also have pictures of her, you know, with the with the bike with her kid, you know, on the bike, you know, that would kind of help circumstantially that the bike belonged to her. I'm thinking that she did, I'm gonna assume that she did, because it's going to be pretty hard to ask people to look for a stolen bike, with just some words, you're going to probably want a picture. So let's assume that the victim here has a picture that that's all she has those a picture of her riding the bike or, you know, next to the house and so forth. A few days after the victim posted the stuff on the app, another user on the app posted a picture showing that a male a black male was riding the bicycle, and that the bike matches description that the victim said was stolen, right. So again, I'm assuming as a picture here, if no picture, it's less circumstantial evidence that she owns the bike. According to the person who posted the picture, the male was last seen riding the bike in our city in the top city, behind the shopping center with a transient encampment nearby. Now, the encampment is along the 405 freeway, and the victim requests that the officers check on this area and see if they can locate her bicycle. And also check the area and saw a bicycle matching description. Matching description perfectly. Right. So now, almost now I'm thinking that there is no picture. But anyway, it was tied to a tree inside the cabin. Next to one of the tents about one foot or so from this particular tent, the officer contacted a white male who did not see the other suspect riding the bicycle from the camp...

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Hey, it's Anthony Bandiero here with Blue to gold law enforcement training. roadside chat from an officer in Nevada. All right, so here's the basis. The idea here is you know, do officers have agency to enter a home based off of a verbal disturbance that verbal domestic so let's say you know, a new officer response to a disturbance call, okay. The neighbors are calling up hey, these guys are going at him. Upon walk him to the door, he or she hear screaming and yelling. You know, coming from inside the house. The officer announces police in the yelling stops. The young officer then knocks on the door but no one answers and can hear people moving inside. The officer is not sure what to do and wait for an additional unit. Okay, that's pretty common should be waiting for additional unit anyway. Right. The new officer relays the information to the senior officer Hey, I heard these guys screaming when I knocked on the door yell police, they stopped screaming. The senior officer decides to make entry to render aid based on the agency to protect an occupant from imminent harm. Would the agency be okay? Now, one of the things like is the agency stale, right, because we waited for the senior officer. Well, first of all, I gotta tell you, you know, just as my personal opinion, and so take it for what it's worth, but I got a little hesitation to begin with, like about why we're even entering this home. I'm personally not seeing the emergency aid exception applicable here. The emergency aid exception allows cops to force entry into a home without consent without a warrant when they believe that there is imminent harm, or violence or render aid. But it seems to me that what we have fundamentally is verbal, and I understand that verbals can escalate into into physical, but I'm not sure courts are going to buy off on that as something as a matter of routine is automatic. Is there anything else? Is there a history of violence at this house? Is that the the the neighbors hear any kind of crashing plates and breaking plates and stuff? Certainly, no throw on the lawn, which could indicate a propensity for physical violence. But I'm just telling you just you know, my opinion here is that if you have a case, and it's purely verbal, you have no evidence. Besides the fact that they're yelling at each other, that someone needs or needs your help in protection. I personally would not be entering that home with those facts. I'm just telling you, because I've seen this more and more with cases because if I was the judge, be like, Okay, where is the eminent? where's the evidence that this person is about to be assaulted physically? People oftentimes get into verbal arguments. I've been in verbal arguments, you know, with my spouse, and you have to, and if police knew that and knew nothing else, would that allow them to force entry into my home? I don't think so. And that's my point. So be careful there. Do you want something more than just verbal? But even if, and by the way, this is not clear. I mean, in no way am I telling this office senior officer that he or she did the wrong thing? By no means am I meaning any disrespect? I'm just saying let's, you know, I'm sure there was a lot more I mean, this thing is a paragraph. I'm sure in the real case, there's a lot more going on. And really, by the way, the officers not really asking about that issue. The officer is asking what the staleness of it. And I'll ask that next. But so just to let you know that, you know, I respect you guys. And I know that there's way more case more and more facts and so forth. And finally, the officers really kind of talking about is there a stillness issue here? ...

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Hey guys, welcome to another roadside chat. My name is Anthony Bandiero, Senior Legal instructor and Attorney at Blue to Gold Law Enforcement Training. This question comes from an officer in California. And he asks whether, if you're executing a search warrant on a cell phone, and let's say the search warrant is for firearm violations, right, you can picture maybe a gang member, a felon, and we believe that we have evidence of fire, you know, that firearm possession on the cell phone. And so the officer is looking through the phone, text messages, Facebook, etc, etc, for firearm violations, but comes across evidence for narcotic sales. Does the officer have to stop searching the phone? And for you know, in order to does it also have to stop and go get a piggyback warrant? Or can the officer still continue to look for firearm violations? And again, see other evidence in plain view for narcotic sales? And will that come in? So the answer is yes, the officer can go down that route. That is an option. Officers are not required to as long as the scope of the search remains within the boundaries of the search warrant. So we're still looking for firearm evidence, then we are good. However, you know, any officer I think acknowledged that the best practice, of course, would be to get a piggyback warrant. But I think you're just asking academically do we have to stop? And to get that warrant? And the answer constitutionally is no. Right? not constitutional. Now, I'm not going to dress any statutory claims. I do not teach statutory law; that is for your prosecutors and for you know, other people can say, you know, but I'm talking about the Constitution, the Constitution would uphold as long as we can prove that the officer did not go outside the bounds of that scope. And really was, you know, now searching for drug evidence and not any longer searching firemen, then we're going to be fine. But at the same time, we know that best practice especially for firearm or for sales, because that's a very serious crime. We may we're gonna want a timeout and just shut the phone down temporarily go get the worn, the piggyback, worn come back, and then specifically search for firearms more firearm evidence and directly search the phone for sales. I hope this helps. Keep your questions coming. Until next time, stay safe.

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

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Hey guys, it's Anthony Bandiero here with Blue to Gold Law Enforcement Training. I'm in beautiful Lafayette, Louisiana teaching at the parish, which is the county. That's what they call it, the County Sheriff's Department. And a question was asked whether or not a driver may consent to search not only the vehicle, right, but also passenger's possessions?

The answer is maybe this is what the law says, Does the officer reasonably believe that the driver has common authority over those passengers' possessions? And common authority comes in three flavors? One, do you reasonably believe they have mutual use, or joint access or control? One of those three, sometimes more than those three, sometimes all of them, for example, married couples, oftentimes, you know, share property, they have mutual use of it, they both use it, they both access it, and they both have a degree of control over it. But in a situation of friends, it gets a little more trickier. So let's say you stop a car. There's a female passenger and a driver, male driver. The male driver gives you consent to search. Can the officer search the purse in the passionate side? The answer be probably not. Because with those facts that I gave you, it doesn't seem reasonable to believe that the driver has common authority over that purse. What about the passenger has a backpack in the backseat? And it's not there's no name on it. And it's just It's back there. And the driver gives consent; the occupants get out, the passenger gets out. And then the officer searches it and finds, let's say, narcotics, that it's then charged against the passenger. Whether or not the driver has common authority depends, again, whether it's reasonable to believe that, that he has some degree of control over the backpack mutual use joint access, if the backpack is in the backseat, and nobody mentioned makes any mention that it's not their backpack. And in what those basic facts, it seems reasonable to believe that the that that the backpack belongs to the driver. And so therefore, the driver would have apparent common authority over the backpack even if later. He it's proven that that was incorrect. That's not what's required under the Fourth Amendment; what's required is reasonableness. So it's it's not actual authority that we have to prove in most states. Its apparent authority. I hope that helps. One way of looking at this, by the way, is I call it the piggyback rule. The piggyback rule is simply saying, Look, if you're going to base your search off of somebody's consent, each item each place searched, has to be something that you reasonably believe that the person giving you consent could have done the same thing without trespassing on anybody's rights. Does that make sense? You know, so for example, if you go to an apartment, and you have two roommates, and one roommate gone, it seems reasonable to believe that the consenting roommate that's in that apartment can give you consent to search to common areas, his room, a shared bathroom, the kitchen, but would not seem reasonable to get consent to search somebody else's room where he does not stay and does not live in. But married couples, it seems reasonable to get consent to search from let's say the wife while the husband is not there to search almost anything in the house because most spouses have unfettered access to the entire house, even if they don't normally look in those places like so, for example, the garage if the wife and Misty, I don't really go in the workshop, and I don't look in the tools, and I don't look in these areas, but you can go search them, most likely that consent to search is going to be upheld as valid because it's reasonably believed that the officers can piggyback off of the wife's consent...

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Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training. I want to share another question I got from a student in New Orleans. I'm about to head back to the airport. But this is a question that is excellent because it does come up quite often. The question is, if officers have an arrest warrant, can they serve it at a third party's home? Not just the suspect's home or where they live?

And the answer is no. The reason is, is that this is called the steagle rule. What the US Supreme Court says is that the an arrest warrant gives you essentially automatic authority to search for that suspect that fugitive at their domicile, that is that level of intrusion is included with the arrest warrant. So when a judge signs off an arrest warrant, they are essentially also signing off on the ability to search for that person at their domicile. Because that is not highly intrusive. It makes sense that if you have an arrest warrant, well, where would they be? Well, either they're in public, which implicates no Fourth Amendment really issue. But if they're at their home, it makes sense that that's where they would be captured. But one other issue with that is if you are going to serve that arrest warrant at their home, you do have to articulate that you have reason to believe that they're presently home before you execute the search warrant—so valid arrest warrant, at their domicile. And at the time of execution, they are presently you have reason to believe they are presently inside the home. If those three things exist, you can serve the arrest warrant at the house in the same manner, as if you had a search warrant, which includes forced entry after knocking announce now, with when the person flees to a third party's home, or it happens to be a third party's home, their cousins, their friends, their girlfriend's house. Well, whether or not they have Fourth Amendment standing or a fourth amendment privacy interest in that home is actually a different question. Courts will look at does the person spends the night there? You know, they have a key there, and they have unfettered access to the residence. That's what's one issue. So you may or may not be violating the suspect's rights. But you are certainly violating the homeowners rights the third party; they have fourth amendment rights to keep police out of their home to serve these warrants for other people that happen to be in their home at the time. Does that make sense? So if the person is at their cousin's house, the cousins the cousin has a right to keep police out without a different search warrant, naming his or her house in the search warrant. And that's what's going on there. So again, keep that in mind. The officer shared a story where the officer did serve an arrest warrant at the cousin's house. And that is problematic. You're going to need usually either the cousins consent or somebody who has apparent authority over the home, which they didn't have in this case, or you don't have to go back to the magistrate and get a search warrant to look for the fugitive at the cousin's house, then you can serve the arrest warrant. I hope that makes sense. I Hope I'm moving the ball forward with these discussions, and it's giving you some good feedback. Keep the questions coming. And until next time, stay safe.

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

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Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training. I have another question from an officer from Arizona. And it's a great question. I want to share it with you and give you my feedback on it. And so the question is, Can officers still ask for consent to search a vehicle during a traffic stop? Without that being considered extending the traffic stop for an unrelated region reason, in violation of the Rodriguez decision?

And so the answer is, yes, officers can do it. It is not it does not violate Rodriguez. And here's why. So, first of all, as a little bit of a context, Rodriguez is that decision from 2015 that says that if officers overextend a stop for an unrelated reason, then that violates the Fourth Amendment and evidence to suppress? Well, that just makes sense. I mean, Rodriguez decision was really bad facts make bad law type of logic. The officer there extended the stop for seven minutes to run a canine without any reasonable suspicion, but yet the traffic stop was done. It was over. In fact, Rodriguez was let go. And then he was detained when he did not agree for the dock search. But that decision has not been read in a manner that says, any unrelated questioning absolutely no matter what violates the Fourth Amendment. Instead, what courts are really looking for is, are cops doing something? Are they you know, asking so many questions about an unrelated topic, that it measurably extends a stop, and it cannot be upheld under the Fourth Amendment reasonableness standard. But courts fortunately, and I think this is the right answer, by the way, are not reading Rodriguez in a manner that says any question that does not directly relate to the stop is a violation in of itself. So instead, they're trying to find this balancing test, which is many cases are trying to find that proper balance. So for example, you know, if the officer approaches the car for, let's say, the stop was for speeding, and ask for license registration insurance? Do you have any weapons in the car? Do you have anything illegal in the car, you know, and so forth? Those questions are fine. They don't offend the Fourth Amendment because they do not measurably extend the stop. And moreover, many courts find that those type of questions are actually related to the safety issues of a traffic stop, it would be it would be very beneficial, for example, for an officer to know if somebody has a weapon or that they're transporting narcotics, that's a safety issue. And so some courts handle it that way. But even if they don't directly say that they the questioning still does not extend the stop. That is the same logic that applies to consent to search. Rodriguez is not violated if the occupants or the driver give consent to extend the stop for some other reason, for example, consent to search consent to ask questions that are unrelated to the traffic stop, that the defendant can surely give the officers consent to extend the stop. It's just when the officer does it on his or her own. And especially is very intrusive about it. You know, for example, if the stop is about a faulty blinker, right, and the officer is asking just several questions that have nothing to do with a faulty blinker, you know, or traffic-related issues, but it says it's going down this path of a drug investigation that takes you know, a minute or so that is going to offend the Fourth Amendment and the evidence is likely to be is going to be suppressed. So that is the answer. You know, in some states like Minnesota, and Oregon, the answer is a little different because those states do have a topic restriction on traffic stops. But that is not the general rule in the 48 other states. I hope this helps.

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Good morning, guys. It's Anthony Bandiero, here with blue to gold law enforcement training, have another roadside chat. I'm in Memphis, Tennessee today, and I got a question from an officer actually, in Ohio, about whether or not an assigned parking spot at an apartment complex is curtilage?

And the answer is no, it's not because it doesn't qualify under the done factors. That's how I would. That's how I would decide this case. And so the reason behind this real quickly is that in order to be curtilage are four factors. One is how close is it to the home itself? Well, a parking spot at an apartment, typically they're not. They're detached from the actual boundary lines of the apartment. So that leads against it. Number two, is, are there any? Are there any fences or barriers around the area? We're talking about the actual curtilage itself, not just the whole property, you know, so for example, if the apartment has a fence all around it, and it's considered a gated apartment, that is certainly going to weigh in favor of curtilage, but not enough to tip the scales. The third factor is use. What is the area being used for now? It's the exclusive parking spot of the tenant. But it's not, you know, that's a factor that helps. But it's not the kind of use parking in of itself, except the type of use that we're really going after here with curtilage. We're looking for family or personal activities. So that weighs against it, ultimately. And then finally, is there any site screening, and that's going to be a really big one here because any John Q citizen who happens to be in the parking lot can see the vehicle. And there is there, though, that's going to reduce the expectation of privacy. So for those four reasons, I do not believe it's going to be curmudgeon. Also, there are no cases that I've found that was some that was fine that under those general circumstances, that is curtilage. So there's your answer. Keep the questions coming.

Until next time, stay safe.

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I'm Anthony Bandiero with Blue to Gold law enforcement training. I want to make a quick video on a question that was asked to me by two different officers in two different states very recently. And it's a great question. And so now I want to share the answer with you, folks. So the question is, is Ken police run a drug canine around a car in a parking lot?

The answer is yes. Because under those facts, the police did not conduct a Fourth Amendment search. And now here's why. A running a canine first of all, a drunk canine that canine picks up the scent of narcotics, narcotics are illegal to possess. Therefore, a suspect does not have a reasonable expectation of privacy, in that, that sense that's emanating from their car, you know, that's gonna be, you know, during the free air sniff. So that's, that's the first part. The second part is that the dog is lawfully present. When cars are in parking lots, whether it's Wendy's Motel Six is lovestruck stops, and so forth. The suspect can be there, but so can police. Nothing prevents a police officer from being from looking into a car. Now, I wouldn't want to touch the car and manipulate anything, but right to be right to see. And so there because the officer can be outside the car, so Can his best friend, the canine, the canine can also be outside the car. And that is the epitome of a free air sniff requiring no legal justification. And so that is what's going on. Now, you do want to make sure that the dog is lawfully present. So, for example, we have a case called Jardins, where police brought Frankie, the drug-sniffing dog onto the curtilage of a suspect presumed or who was allegedly growing marijuana. Now he was growing marijuana, but at the time was allegedly because they got an anonymous tip. The police brought the dog onto the property while doing a knock and talk, and the dog alerted. The US Supreme Court found in that case that that that was a search under the Fourth Amendment because the police had no implied consent, essentially, to bring that dog onto curtilage. During a knock and talk that was something that most people would not implicitly allow police to do. And it makes sense. And so because the police were trespassing while they brought the dog because they brought the dog, they're trespassing because they brought the dog that therefore it was a search under the Fourth Amendment. But take that same scenario in the parking lot of Wendy's, right, or the motel is, you know, where cops are probably gonna deploy the dog more often. Police can be there just like the suspect can again, and also, you do not need the manager's permission to be on the property. Whether or not, please get it that's a totally different issue. But the suspect has no right to exclude police officers from this side from that parking lot. So it's irrelevant whether or not police got consent from the manager, right? That person even if there's no, even if the manager did not consent. Right. And the suspect brings that up in court. The problem with that is that the suspect has no legitimate privacy interest in that parking lot because there's no right to exclude anybody else...

How're you doing Law enforcement officers. It's Anthony Bandiero, here with Blue to Gold law enforcement training.

And today, I'm going to teach you the four elements that you need before you can do a warrantless vehicle search. The first element is probable cause that seems obvious. You need probable cause that the vehicle contains contraband or evidence. The second element is that the vehicle cannot be inside curtilage. Right, you must have lawful access to the vehicle. So that means that the vehicle mainly is on a public street or in a public parking lot. But if the vehicles inside a garage, underneath a carport, in the back yard, you likely do not have lawful access to that vehicle. And so, therefore, you're gonna need something else, for example, consent to be on the property by somebody with a parent or actual authority or some kind of exigency. So, for example, you believe that the vehicle is going to flee the jurisdiction, and so forth. So the third element is the vehicle has to be rarely mobile. What I like to teach my students is readily mobile means the vehicle either needs gas, tires, or a battery. And so if you see a vehicle broken down on the side of the road, and you develop probable cause to that there's evidence inside the car, can you search it? The answer is yes, if the vehicle, for example, has a flat tire, it's out of gas, or the battery went dead. And finally, the fourth element that you need is your search cannot exceed the probable cause that you have. And so this is very important because whenever you search a vehicle under the motor vehicle exception, you can only search. The scope of the search must be within the bounds of what a magistrate would allow you to search where the metric would allow you to search. So, for example, if you're looking for a stolen MacBook Pro, and you get you got a warrant from a judge, but the judge allows you to search for that computer in the eyeglass case? And the answer is no because it can't be contained in there. And so, the same principles apply when you're conducting a warrantless search or seizure. You don't have extra powers that the judge can give you in the first place. So those are the four elements again, probable cause lawful access, which essentially means the vehicle is not within the curtilage. It's rarely mobile, and your search does not exceed the scope of the probable cause that you have. I hope this helps. If you have a question for me, email me at [email protected]. If you want me to come out and teach you and your fellow officers advanced search and seizure.

Until next time, be safe

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Hello, Law enforcement officers. It's Anthony Bandiero, here with Blue Gold law enforcement training. And today, I'm going to share with you the difference between open view and plain view. Open view is when you are in a non-protected area. And you see incriminating evidence. One of the reasons they call it open view is because, typically, you're on open fields. What is an open field?

Open fields are generally anywhere where you can see the sky, and you're not in curtilage. Right. So I like to say if you can look up and you can actually see the sky, you're on one or two areas, curtilage or an open field, if you can look up and you see a ceiling while you're in a protected area. And how much protection that area gets depends on where it is. So for example, a home is going to get way more protection than the lobby of Burger King. But that's beside the point. So open view is when you see incriminating evidence, or concept, you know, or, or contraband or evidence when you're not in a protected area. Plain view, on the other hand, is when you are inside a protected area and see the evidence or contraband. Now, let me just make one thing clear, it doesn't really matter what you call it in the report. Most officers I know are calling this plain view no matter where they are. And that's okay. But since I'm a legal instructor for police officers, I figured I would just make a quick video and share with you the legal distinction between those two terms. Now, let me give you an example of open view. Open view is when you're walking down a sidewalk, right, that would be considered constitutionally under the Fourth Amendment and open field because it's not curtilage. Tech, usually, and you're walking by, and you look inside a house window and you see a marijuana plant in the window? Well, you that's open view, you don't need any prior justification on why you're on that sidewalk because the constant, the Fourth Amendment does not apply. So you could be there at two o'clock in the morning, you could be nosy, it doesn't matter. But now a plain view example, your call to a domestic violence, you go into the home, and you look over and you see that same marijuana plant in the window. Now, you have just seen it on their plain view, because you're in a constitutionally protected area. And now you see the marijuana plant. The important distinction is that under plain view, you always have to justify why you're in that place to begin with. So assuming that you didn't see the marijuana plant as you're walking up to the house, you're gonna the report has to make clear why you have lawful authority to even be in the home, whether it's the emergency doctrine, consent by one of the occupants. And there are numerous other judicially recognized exceptions which are going to get you into that home. But the point is if you are not lawfully inside that home, then then you cannot have the Plainview exception apply. So for example, if you make an arrest inside of a home, and let's say the arrest is lawful, let's say you had you were in let's say if during that domestic violence, you were in the home and you decide to arrest the husband, for domestic violence, and now your partner sweeps the whole house, including the basement and upstairs for other suspects. But none of it none of the officers had a reasonable suspicion that anyone else was in the house that could pose a danger. And while upstairs, your partner sees a marijuana grow operation or drugs in plain view, that is unlawful because if the court finds, just like I assume for these facts that there was no reason to the protective sweep...