The Search & Seizure Show

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hello, Law enforcement officers. It's Anthony Bandiero, here with Blue to Gold law enforcement training. And today we're gonna ask a very simple question. Do you need to read Miranda in its entirety to someone who claims that they already know their rights?

The answer is yes. Even if you're, even if you're arresting a judge that's been on the bench for 40 years, and all he's done is criminal trials. And you arrest him for domestic violence. And you want to read him, Miranda. And as you're reading it, he says, hey, look, I don't need you to read me, Miranda. I know Miranda from the back of my hand. I can read you, Miranda, if you want me to, if you want me to. You can't say this is I find it funny because it's kind of ridiculous. You can't if you intend to interview him or her. You can't stop and say, Okay, I know you understand Miranda. You have to read Miranda, in its entirety. And the main reason here is that when you go to court, and you try to argue to the court that you got to a knowing and intelligent waiver of Miranda, well, it's hard to prove that the that the person knew their rights and knew what they were waiving, without you telling them what they are waiving. Does that make sense? So if if you tell him you have the right to remain silent, and he knew you stop right there because they know their rights, and you are convinced that they do know the rights, let's say you've read this person 2020 times before and you've read a Miranda 20 times before, but then you never read them that they have the right to an attorney. And if they couldn't afford one, one would be provided. It's hard to go into court and say, well, he intelligently knowingly waived his right to counsel. Because he told me he knew all his rights. You see the point there. That's the courts, basically, in order to prevent this kind of back and forth, and I know he knew his rights because I dealt with him before. They have a blanket rule. You have to read Miranda in its entirety. So I hope this helps. If you have any other questions, email me at [email protected].

Until next time, be safe

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

How're you doing, Law enforcement officers? It's Anthony Bandiero here with Blue to Gold law enforcement training. And today, I'm gonna teach you C.R.E.W.

C.R.E.W is an acronym that I teach my students during the advanced search and seizure class to keep in mind whenever they are searching or seizing a protected area, true stands for consent, or a recognized exception or a warrant. And the point here is whenever you are searching; you're seizing the protected areas under the Fourth Amendment, which are persons, houses, places, you know, places, papers and effects and so forth. You need crew, you need either consent by a person who has actual or apparent authority over that item or place, or you need to recognize exception. So the motor vehicle exception to the search warrant requirement, you need exigent circumstances. So for example, imminent destruction of evidence to before entering a house to secure evidence, community caretaking and so forth. So you're you need to recognize exception. If you don't have consent or a recognized exception. There's only one thing left, and you need a search warrant. And that's why I want you to keep this in mind. So whenever you're searching or seizing in a protected area, ask yourself Do I have crew? Do I have consent from a person to if I don't have consent? Do I have a recognized exception, which is most searches or seizures are going to occur with a recognized exception. If you don't have if you can't think of a recognized exception, then you're going to need a warm. This kind of give me give you an example. Real quick to how crew plays out. So you're in a home investigating a domestic violence while your partner is talking to the victim. For example, you're looking around, and you see a meth pipe on the kitchen table. Now, is that a search under the Fourth Amendment? No, because you're lawfully present, and you're allowed to use your natural senses to look around if you're lawfully present. So that is not a search under the Fourth Amendment. Therefore you don't need crew. But now you go over to the kitchen table, and you seize that meth pipe. Do you now need crew? Yes, because once you seize the item that implicates the Fourth Amendment, so do you have consent? No, not in this case? Do you have a recognized exception? The answer is yes. It's the plain view seizure doctrine. So you're allowed if you're lawfully present, you may seize evidence that is readily apparent to be contraband or evidence. And of course, under these circumstances, you don't need a warm, so that's how you use crew. I hope it helps and if you have any other questions for me, please email me at info at Blue to gold calm. If you want to read, I believe the best search and seizure book written for cops. It's a search and seizure Survival Guide. It's available on Amazon or on my website Bluetogold.com.

Until next time, be safe

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hello law enforcement officers, it's Anthony Bandiero, here with blue to gold law enforcement training. And today we're going to ask whether or not police can insert an undercover officer or a confidential informant into the jail setting to speak to the suspect about the crime for which they have believed to have committed without Miranda. And the answer, generally speaking, is yes, police can do this. Why? Because the coercive atmosphere that the Supreme Court is trying to prevent without a person volunteer voluntarily and knowingly waiving their rights, the right to silence is not present under those conditions. Right. When we're in the police academy, we learned very early on in our young police academy career that in order for Miranda to apply, you need custody, plus interrogation by police officer. Well, it's interrogation by a known police officer. If you have somebody in jail, and they think they're talking to a friend, like the confidential informant, or they're talking to a fellow cellmate, the undercover officer that has no coercive atmosphere there, because they think they're talking to somebody on their level, they're not talking to a police officer looking to build evidence against him. So, therefore, Miranda doesn't apply. There are two caveat that you have to keep in mind when it will apply. The first one is under the Fifth Amendment if they have invoked their right to counsel, if while you're arresting the person, you read a Miranda, and they say, You know what I want my lawyer, you can't get around this by putting a confidential informant in the cell with them. They have that once they say they, they want their lawyer, they're going to get their lawyer and the only way around that is if they initiate conversation with you about their crime. So them asking, Hey, I want my attorney and then later asking, Hey, how long am I going to spend in jail? Or what is my bail? That's not going to work that has nothing to do with the general crime for which they are accused of. But if they say, Hey, you know what, I do want to talk to you about the sexual assault, then they've opened up conversation again, and you can give them a new Miranda, right, fresh Miranda, and then get a waiver, preferably in writing. So that's, that's one caveat where this would not apply. The other one is under the Sixth Amendment. Once they have an attorney appointed to them, you can't talk to him about the climate issue. You can't talk about the crime that they've been charged with, or any related, possibly another crime that has the same Nexus as the one that they are accused of. So for example, if they are arrested for an armed robbery where a death occurred, but they have not been charged with the felony murder, you cannot obviously talk to them about the felony murder, even if has nothing to do with the actual armed robbery. That whole that whole Nexus that whole, you know, the facts, the crime that they are accused of. That's all off limits, that doesn't apply to any unrelated, uncharged crime for which a lawyer has not been appointed. So just think about that. I hope this helps Miranda, you know, I find that a lot of officers do have the basics down. But when it comes to some of these winding roads of different issues, Miranda can be actually quite complicated...

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

How're you doin? Law enforcement officers? It's Anthony Bandiero, here with Blue to Gold law enforcement training. And today we're going to ask whether or not you can obtain consent to search from somebody who has invoked their right to silence on the Miranda?

And the answer is yes, you can. And the reason is because Miranda protects testimony, right? It doesn't protect citizens or a suspect from using physical evidence against them. So the point here is that Miranda does not protect the act of giving consent to search because that consent the search has to do with physical evidence and not testimony. So very simple question, even a simpler answer. I hope this helps. Now, just also realize that if somebody has invoked the right to silence, and then you ask for consent to search, that doesn't give you a right that's not going to open the door for other questioning, right? That doesn't mean that if they gave you consent to search that they have now overturn their previous invocation. Other rules apply to that, and I will also cover those videos, but I hope this helps. If you have any questions for me email me at info at Blue to gold calm. Also, if you're interested in a search and seizures father guide, you can purchase it on Amazon or my website bluetogold.com

Until next time, be safe.

Have another question? Click here: https://www.bluetogold.com/show

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

How are you doing Law enforcement officers, it's Anthony Bandiero, here with Blue to gold law enforcement training. And today I'm gonna share with you the three golden rules of search and seizure.

These three golden rules come from reading 1000s of court cases over the last 20 years. And after all, you start seeing a theme of what the courts are looking for the first golden rule, and the most important is, the more you articulate why you did something, the more likely you'll be upheld in court. And the reason for this is, first of all, the Fourth Amendment prohibits unreasonable searches and seizures. In other words, if what you did was reasonable, it's lawful. But what is reasonable is depends on the totality of circumstances, right. So that means that every fact and circumstance comes into play, right? One change in the fact or one change in the circumstances of something can determine can change whether it was reasonable or unreasonable. So you need to tell the court why you did something. And finally, this is an objective standard. You can't go into court and say, Your Honor, I was reasonable because I sincerely believed that what I was doing was reasonable. The courts will thank you for that feedback. But they require an objective standard, right? So it's kind of like taking all the facts of circumstances that you had, they put into this objective standard computer, if it spits out that it would do a similar response, as you did, then the court says, Okay, that was reasonable. But the key is you want to give that computer as much data as possible. And so the final point here is, when you do your report, you want to talk about three factors in the encounter, whether it's a consensual encounter, and Terry Stop, a use of force and so forth. The first factor is police. Talk about what police did, what did you do? What did your partners do? What resources did you have? What resources did you not have, and so forth? The next factor is suspect. What did the suspect say? Do? What was he wearing it? For example, if it's gang attire? Was there any weapons present? What's his criminal history, and so on? And finally, talked about the environment? Where does this encounter take place? Was it at night? Was it in a desolate area was in a high crime area, and so forth? You know, was it were there people around, you know, potential Confederates for the suspect, you want to talk about all those things, and laid out for the court. The second golden rule is, the more serious the crime, the more likely the court is going to uphold your actions as reasonable. And This is, you know, this is very important. So for example, if you have reasonable decision of suspicion to stop a person for a suspected sexual assault, and you pull out your weapon, you point your gun at them, and you say, hey, get on the ground. And then, you know, you pat them down, and you find, you know, a weapon and drugs and so forth. And then a suspect says, hey, you know, when he pointed that gun at me, I felt like I was under arrest, a reasonable person in those circumstances would feel like I was under arrest, and the courts are more likely. And I say, note, using pointing a firearm in those circumstances was reasonable because there's a serious offense. And so I like to, you know, basically say that courts are going to bend over backwards to find that your response and actions were reasonable when it's a serious offense. But if it's a minor offense, then they're going to put the whole weight on your shoulders to tell to to basically convince them to persuade the court, why you did what you did. And so if you pulled out your firearm and pointed at somebody suspected of stealing a candy bar at Walmart, the courts are gonna more likely not find that that was excessive for the situation. Right...

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

How you doing, law enforcement officers. It's Anthony Bandiero. Here, Senior Legal instructor with Blue to Gold law enforcement training.

I just read a case and I want to share it with you because it's really has some really good teaching points. The case is pagane Gonzalez V. Marino, it's out of the First Circuit. And essentially what happened here is this. FBI agents were interested in a suspect because they believed that he had child pornography on his laptop. Instead of getting a search warrant, they came up with a clever idea. They went to his house, and they said, Hey, your laptop is sending malicious signals to Washington, DC. But guess what? We're with the government; we're here to help, we'll fix it for free. If you if you let us look at the laptop. We'll find out what's kind of going on. And we'll fix it for free the suspect consents for the entry and the search of the laptop for the malicious software. The FBI agents then find what they were looking for. And they said that they'll do some more work on the computer at the office, they take the computer, they write up a search warrant for the home and arrest one for the suspect. Right. And the suspect says, Look, that's not fair. You can't do that. You told me you're I got malicious software, that I'm the victim of malware. And you're trying to help me with this. And instead, you're looking for evidence of child pornography, in the First Circuit agreed. Right. And let's look at why. First of all, the general principle here is that when uniformed officers, uniform doesn't mean always mean uniform, but known officers when known officers create an emergency in order to enter a home to search. That is that is not good. You cannot do that. Because it invalidates the consent, because what reasonable person what's what not agree? Under those circumstances? Right? It's kind of like, it's kind of like this if police went to somebody's home and said, Hey, we believe that there there's a kidnap victim, a little girl that got kidnapped Jesse, A witness said that she's in your house? And can we go look around? I mean, most people are gonna like, especially because they didn't, this is a lie, they didn't connect anybody, they're gonna allow the police to come in and look for the for the kidnap victim. And instead, if the police are looking for a marijuana grow operation, that is going to, you know, invalidate the consent because they created an emergency for the kidnap victim. So that's what happened here, right? The agents are saying that we're looking for this malicious software that's coming from your computer, a reasonable person is going to allow them to get rid of that software so that they're not breaking the law and so forth. The other issue with uniformed officers is you cannot claim to have an authority that you don't have, right? You can't say, Hey, I have a search warrant for your home. But you know what, I'd really like your cooperation, if you do cooperate, I'll let you know, the prosecutor know that you cooperated and so forth. And they're like, Okay, come on in, that is going to completely invalidate the consent. Because basically, what you're telling a person is, I'm going to search anyway, whether you consent or not, but can you will you consent, that is not a freely, involuntarily involuntary consent. So you don't want to do it that way; those things will invalidate consent. And that's what happened here. But while we're on the topic of lying in order to search somebody's home, and I want to make sure that we're talking about deception to search a home, right, we're not talking about general principles regarding lying and relying on interviews and interrogation or lying to a suspect on the side of the road.

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey guys, it's Anthony Bandiero here with Blue to gold law enforcement training.

I want to do a really quick video about a US Supreme Court case that's coming up. It's State of Kansas versus Charles Glover. And the Supreme Court is going to hear this case very soon. And the question is whether or not a police officer has reasonable suspicion to stop a car based purely off of the license check. The registration check shows that the registered owner has a revoked license. And I'm going to predict the future here for you. Okay. The Supreme Court is going to say, yes, the officer had reasonable suspicion that the Kansas Supreme Court said the officer had a hunch. But really, is it a hunch when you know that the registered owner has a revoked license? And especially when there's only one, one register owner not to mix a little bit tougher case. But there's one register owner? And you know, from your training experience, that most people drive their own cars? Is it possible that you can lend your car to somebody else and then the officer could have stopped your friend, or your your your brother or sister? Absolutely. But that's not a reasonable suspicion requires reasonable suspicion requires the officer to articulate facts or circumstances that will lead a reasonable person to believe that criminal activity is afoot. Right. The afoot is from Terry versus Ohio. But it's a fancy way of saying that you can put your finger on something you can say, look, Judge, this is why I stopped this particular car. It wasn't a hunch; I believe that it's a good chance, a fair chance, least reasonable suspicion standard, that the driver is the registered owner and therefore has that revoked license. A hunch would be, Hey, I heard that a person driving a white escalate has a revoked license. Oh, look, there's a white escalate. Let me go stop that car. That's a hunch you can't stop that car because you have nothing to put your finger on that. This is a person driving on a suspended license or revoked license. So the officer in Kansas, I think, did a great job. It's an IT is an important cause. To me. It's an easy case. I don't know why it's taken the supreme US Supreme Court to get involved. I will say before I leave off some teaching points here is that this maybe could have been avoided if the officer put in some more facts and circumstances, for example, that the if the if the revoke licenses for a male, that he believed he you know that a male was driving, they didn't appear to be a female, maybe the same age, if there are dark tinted windows, put that in there, hey, look, I couldn't even see the driver, because the tint that tinted windows was so dark. Right. You know, that would have helped the officer from my understanding purely stopped the vehicle and the reports a look, registered owner has a revoked license. Therefore I can automatically stop the car. It's it's probably true. You know, I think again, a Supreme Court is going to, I believe find in favor the officer, but it's always good to put those extra things in there. Things that does, you know, clearly officer probably had more information, he probably saw a driver that was a male or you know, for example. So I hope that helps. I just want to throw that out there. If you want me to answer more of your search and seizure questions, contact me through the blue to gold comm webpage. Also, if you're interested in having me come out to your agency and teach you and your fellow brothers and sisters advanced search and seizure law, do the same thing and contact me be safe until next time.

Have another question? Click here: https://www.bluetogold.com/show

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Alright, guys got another great question from a police officer in Texas. So here's the situation. So you stop a car, you gain voluntary consent to search the vehicle. And the driver says, Yes, you get the driver out. And then you conduct the pat-down on the driver, and you feel like hard objects in their pocket. And you ask the driver whether or not you could retrieve the item.

He says, Yes, you retrieve the item, you pull it out of his pocket, you open it up, and there's heroin inside the container. And the question is, is, is asking him whether you can retrieve the item also allow you to search the item? Well, it depends. Let's look at the legal role. The legal role, is that whether or not you could open an item and search it under consent depends on whether or not you opened it, it was within the scope of the search. Now, this is an objective test, typically, where where, what would a reasonably objective person believe you're allowed to do when you ask the person whether you could retrieve the item did that when you asked the person if you could retrieve the item? And they said, Yes, that also include you opening the item? And so if there's there's no clear-cut answer, because you never asked the person whether or not you could open that and you said, Can I retrieve the item? So what are some of the factors that are going to come into play here? One is, would a reasonable person believe that when a police officer says, After putting down an object in their pocket, the police officer asked, you know, can I retrieve that item? I think, and actually in addition, not only that, but you also just ask for consent to search the vehicle. So we know that the reason person would know that the officer is interested in searching for something, whether it's drugs, you know, proceeds from drug sales, weapons, and so forth, or stolen property. So we already know that a reasonable person is going to be on alert that the officer is interested in searching. And so when you ask a person to retrieve an object from their pocket, it's it's implied that they want to search it. Because otherwise, why would the police officer want to simply grab a, an object out of the person's pocket? And I mean, I guess they could, they could look at it. But that's probably not going to tell you much. The officers, most recent people believe that daughter actually wants to search it. That's why they're asking if they can retrieve it. So I believe just with these barebone facts that you that most courts are are probably going to find that it's implied that within the consent to search of scope is implied that the officer is actually looking to look inside the item, not just retrieve it. Which brings me to my next point, you may still be able to retrieve the item under a protective under the Terry forest doctrine. In other words, that item may be considered a weapon under the pat-down. But that doesn't necessarily allow you to get inside the item either. So the better approach here is to justify the search under the implied scope of when I asked to retrieve that included looking inside of it. So I think that this is most likely a good search. It's not black and white, of course, because there's gonna be a fight. In court, you know, if the defense attorney wants to argue that the opening it opening the item was outside the scope of the search, I think he loses because I think a reasonable person would believe that opening the item was within the scope of the search. But good question. I hope this discussion helped and just come to the factors that the courts are going to look at, so be safe, and until next time. I'm out

Have another question? Click here: https://www.bluetogold.com/show

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey, guys, Anthony Bandiero Here, Senior Legal instructor at Blue two gold law enforcement training. I got another question. And I thought it was a great question. And it's not a search and seizure related question. It's an evidence related question. But it's something that drug investigators especially run into all the time, and it's wanting to use the use this as an opportunity to share some information. So the question is, is, if a narcotics investigator is has a parallel investigation, you know, and they ask another officer, usually a uniformed officer to develop independence, reasonable suspicion or probable cause to stop the defendant's car. And that turns into a search and, you know, in drug evidence is found, does the defendants have a right to, to gain information about the investigation that kind of prompted this pre tech stop?

Right. And these are called Wall stops, because there's a wall between the the actual stop, which was, let's say, a speeding violation or whatnot, and an ongoing criminal investigation that may actually be based off of may have probable cause to, to also stop the defendants vehicle or not. But the point is, there's a wall between these two, and this, this, this parallel investigation is usually the reason why it's it's a pretext stop. So does defendant have a right to that information? The answer is no. And here's why. There are two principles at play here. First of all, it's in play here is the Brady rule. Right? You've if you were a cop in 2019, you've definitely heard of Brady violations. Right. Brady come from Brady V. Maryland. It's a US Supreme Court case that essentially says that the prosecutor has an obligation to hand over exculpatory evidence to the defendants, exculpatory evidence, right? Not inculpatory exculpatory that's fancy legal jargon for things that help defend and prove his innocence. Right? Or things that would help him get a reduced sentence. If you if you're sitting that kind of information, you got to hand it over because the defendant needs it for his defense. If not, it's a due process violation. So let's talk about why not handing over this parallel investigation. You know, the stuff behind the wall is not is not a Brady violation. Well, first of all, it's 99%, probably not going to be exculpatory. Everything that you know about this defendant tends to show, I believe, you know, if it's a drug investigation, and he is involved in narcotics sales, he has been trafficking. He has been undercover or hand-to-hand transactions or sold to an undercover officer. That's not going to help him he doesn't want that information in the court. So it's not exculpatory. Right? And so that's, that's the main reason. It has nothing to do with what the actual reason for the stop, which was, let's say, speeding and so forth, so it doesn't help them. So there's no due process violation. Now, just to be clear, it also, the evidence would also now have to be exculpatory, exculpatory, but also material, because we get a lot of info as police officers, we get a lot of information that may tend to prove or help the defendant. show his innocence. For example, if you're investigating an aggravated battery, and the defendant's neighbor says, you know, the defendant, he is such a nice person, I've never seen him hurt a fly, and he helps me take out my trash every Sunday. Do you need to give that information over to the defendant? Is that is that a material exculpatory information? No, absolutely not. It doesn't have nothing has nothing to do with the crime issue, which is aggravated battery.....

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

How're you doing? Guys? It's Anthony here with blue to gold law enforcement training, just left another great phenomenal class teaching officers search and seizure in Galveston, Texas, beautiful place. And one of the students asked the question, I think it's worth asking here, and we can take some teaching points from it. So the question is, is, if an airport officer runs a K9 dog on a drug canine on a piece of luggage, and alerts, can we then sit back and wait for the owner to pick up that luggage and then arrest the owner and then actually search the case, incident to arrest?

And the answer is yes. But let's walk through the analysis here. So whenever we do a search, we search or seizure a protected item. We need crew, meaning crew, we need consent, or recognize exception or a warm, alright. And whether or not we need crew is based off the phone analysis. The first question courts are going to ask is whether or not the search or seizure even involves a protected area? Well, that's going to be easy here, a suitcase is a container, it is in effect, and in effects are protected under the Fourth Amendment. Persons houses, papers, and effects. So yes, the answer is we are dealing with a protected item protected by the Fourth Amendment. Is the is the free air dog sniff a search? The question the answer is no. Now in these circumstances, the officer had lawful access to the item and just a free air sniff around a piece of luggage is not going to implicate the Fourth Amendment. So the suitcase is a protected item, the dog search is not a search under the Fourth Amendment. So that's not an issue. The second thing is whether or not the arrest would offend the Fourth Amendment. So obviously a person is protected by the Fourth Amendment. And they would be seized that they were arrested. So we need an exemption to the war requirement. Well, officers an exemption to the war requirements anytime officers have probable cause that a person has committed a crime. And the officer has lawful access to the person. Well, we know when a person's in the airport, they have lawful access. If they have probable cause that the person committed a crime, they can go quickly collect habeas Gravis with the handcuffs and arrest that person. So the final piece of this is that we have no search in the fourth member with the dog; we do have a fourth amendment seizure the person if we make the arrest. And the final piece is whether or not the dog alert on the luggage is itself enough for proper cause arrest. It is right because you're going to be able to articulate that a person picking up their luggage, right? They probably even have a tag with their with their ticket number on it. They're picking up their luggage, they're the ones they're the one that gave it to the airline to transport when they're picking up their luggage. Is there a fair probability? Right probable cause? Is there a fair probability that this person knows that there are drugs? In their suitcase? The answer is yes. Right? Yes, it's fair, it's, it's fairly probable that if you pick up a piece of luggage, and there's a dog alert on that luggage, then then then there's probable cause to arrest. And if you didn't have to arrest the person, you searched the luggage that's going to be searched incident to a lawful arrest. Now, the other question that came up in this class is, could you search the luggage without the arrest? And this is, again, we're talking about drug talk. And the answer is? No. The reason is, is that there is no exception to the war requirement. There's no recognized exception number. We need crew, and we don't have consent. We don't have a war. So is there recognize exceptions open up a container?....