The Search & Seizure Show

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

Hey guys, Attorney Anthony Bandiero here bringing a roadside chat this time. An officer from Texas wants clarification on knockin talks. And in particular, I guess the question would be, can you do a knock and talk at odd hours at night?

Okay, the answer is yes. If you have a reason to believe that the occupants would be receptive to uninvited guests, so my friend in Texas, you know, you've seen other videos where I talk about how courts have held that you know, knocking at odd hours at night, you know, police open the door, and the officers going back to write that report and saying, Oh, that was a knock and talk. No, it was not. That is not a knock and talk that was as to say, the least a detention, because what reasonable person would feel free to ignore you. So if they chose to open that door, they have been essentially detained. They're even still in their house, but it's still a form of the tension, because the person did not feel free to leave. And they submitted to your show of authority. Okay. But going back to the question, is it possible to have a knock and talk late at night? What's interesting about this question is it comes very, it's very timely, because there was a case decided, just a few months ago, out of the First Circuit, and here's what happened. Basically, a boyfriend, girlfriend, you know, they're college students, and their relationship is in turmoil. So they break up, the boyfriend doesn't take no for an answer the ex-boyfriend and is basically harassing her, also, in some way stalking her, they end up after, you know, a month or so goes by, they kind of makeup and but just as friends, right, just as friends, at least that's what she wants. He doesn't he wants a relationship again. But you know, she, she allows him to be a friend. And he starts doing really weird stuff again, you know, and they get into a fight in, you know, an argument at his at her house, and he takes her cell phone, alright, and leaves. Now, this happens, you know, around three o'clock in the morning or so. And, you know, she calls the police, the phone is missing. They, you know, believe, you know, they that, you know, obviously he took it right. So they go to his house now, they go to his house around for a 5am kind of read from the case. And they observed the lights on in the home and decided to conduct a knock and talk rather than apply for a warrant to go get that phone. So here, the court said the officers entered the property, walked into the front porch, knocked on the door, and announced that they were police officers seeking to speak with the occupant. No one answered and the officers left the property. Was that in and of itself a constitutional violation? And the court said no, at this point, there was nothing constitutionally infirm about the officer's conduct, which was expressly permitted by the knock and talk exception to the warrant requirement. Okay. So they basically did what the public to do. Um, I want to let you know, though, a key to me in this case, is that the lights were on, and that they knew that French, the defendant here was just at the girlfriend's house recently, so he was up, they knew he was up recently, the lights are on. And, you know, it seems reasonable that maybe French would like to talk to the police and, you know, settled matter like, oh, no, I don't have her cell phone, she probably left it in her car or something. So, so far, so good. Okay. And let's also pause for a second and let me give you the citation. The citation for this case is French versus Merill, M E R, R, I L, excuse me, Ll, and the citation is 15 415. I'm sorry, F fourth. So federal fourth 116 First Circuit 2021. Okay. The problem is, though, they the officers in that case, went back to the home

Hey guys, it's attorney Anthony Bandiero. Here, bring you another roadside chat. And this question comes from an officer in Nevada, and actually, he's a corrections officer in prison. And he brought a great a great scenario. Do prisoners have a reasonable expectation of privacy in cell phones? Right? So the scenario is an officer, you know, in prison, found a cell phone, searched it without a warrant, and, you know, saw some information that helped prove that the prisoner knew, you know, that he had it, you know, I guess he's trying to say, Oh, I have nothing to do with that cell phone. But, you know, the evidence inside the phone shows that he made calls to people associated with him and so forth. Alright. So normally, the prison would get a search warrant. But the question for us today is, do you need one? And the answer is no. Right? The answer is no. And the reason why is because the prisoner knows or should know that they cannot have that cell phone. Clearly, it's contraband, right. All the rules, say it no cell phones, they know or should know that that phone is absolutely prohibited in that facility. So, therefore, when they brought it in somehow or obtained it, they're possessing contraband. And generally speaking, a person does not have any reasonable expectation of privacy in contraband. A good example of that is a Supreme Court case called Illinois versus Kabbalists, where the Supreme Court said that a dog sniff in and of itself is not a Fourth Amendment search if it is trained to detect contraband, right. So in that case, the canine was run around a vehicle during a traffic stop, it alerted to the presence of contraband, and a search ensued on the probable cause. And Kabbalists lost that case because again, the dog is not searching under the Fourth Amendment. Well, it's the same concept applies here. When officers in the prison facility search contraband, it's not a search because it doesn't implicate the Fourth Amendment. The Fourth Amendment prohibits unreasonable searches and seizures. This is not even a search, right? Because it doesn't implicate it's not a protected item. Let me just give you an example from a case called United States versus bash. I have the Westlaw citation. It's 2021, w l 3207252. So again, 2000, what are 2021 WL that sounds for Westlaw, three to 07252. It's out of the Eastern Eastern District of California, it was decided actually very recently, July 29, 2029. So here's a case where corrections officers search a cell phone in a cell in a cell and the bash the prisoner is trying to complain about this search and saying that you guys needed a search warrant. And here's what the court said about that. It said. Moreover, it is well settled that prisoners have no reasonable expectation of privacy in the belongings they keep with them. The Fourth Amendment, prescription against unreasonable searches and searches does not apply within the confines of the prison cell. California prisoners are prohibited from possessing a cell phone. And thus, defendant bashe cannot claim to have had a reasonable expectation of privacy in the contents of the contraband cell phone, which he possessed and violation of the law. Well, I don't have the Nevada law in front of me, but I'm sure that either by regulation or directly by law, the prisoners in Nevada cannot have a cell phone that would be considered contraband. Again, the law can basically tell the Department of Corrections for you to decide what's contraband, what's not. And the DLC would then lay out that cell phones are included, you know, also found another very persuasive case. This case is called we bring it up here. It's called United States versus huart and it's huart as H.U.A.R.T let me just kind of explain what's going on here. So the citation by the way, is 735. F 3d 972. A case out of the Seventh Circuit decided in 2013 against you at unit United States versus Huart 735 f 3d 972.

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

Hello, my friends,

it's attorney Anthony Bandiero. Here bringing you a roadside chat.

The question comes from an officer in Texas; he says I'm in Texas; I want to know if you stop someone for a traffic violation. Can you identify the passengers? Or can the passage refuse to give identification?

It's a very easy answer; it applies to all states. Well, this first part may not be right; you can enter the fourth amendment, ask for a person's identification, or identify themselves, as it's a lot easier.

If you just ask for their information, write it down; it gets a little more complicated when you take their ID, not because they may be free to leave, but just because it's a little more intrusive, and so forth. But you can certainly ask under the Fourth Amendment for their information, and you can run their information as long as it does not, you know, extend a traffic stop.

So it's ideal if you can have somebody else run the passenger. So those rules differ a little bit, depending on what state you're in. But under the Fourth Amendment, the rules are the same, of course, right. But the second part is much easier. Can you demand a passenger's ID? Are there any consequences? The refuse? Absolutely not. Do not do it, do not threaten to arrest them for obstruction unless you have reasonable suspicion as to them. Suppose you end up arresting this person, for you know, some violation and because you know. In that case, you think that you have obstruction or refuses identify, expect a very bad day in court. And you can also get sued, and you may lose civilly because some courts are saying that a person's rights refuse themselves.

The right to refuse to identify themselves is clearly established, and you have no reason to order them to identify themselves. So the takeaway here asking, usually no problem. Demanding big problem if you don't have reasonable suspicion, before you leave, hit the like button, subscribe, share with your friends. Thank you.

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Hey guys, this is Anthony, Senior Legal instructor with blue two gold law enforcement training. Just got a question from an officer in Idaho. Two great questions, I want to share it and give you my thoughts about it.

The question is, is if you have reasonable suspicion or probable cause that a passenger in a vehicle, right has committed a crime, can you stop the vehicle even though you have no reasonable suspicion? or probable cause that the driver has committed a crime? And the answer is yes. And let's look at why the answer is yes. First of all, we know that the US Supreme Court has already said that, when you have reasonable suspicion or probable cause that the driver has committed a crime, the car can be stopped, even though there's passengers in the vehicle, right.

And so the Supreme Court has held that those passengers are legally seized under the Fourth Amendment, even though you have no suspicion that they've committed any crime. So we already know that. So we know, based on that logic, that the reverse is true, that if you have reasonable suspicion, or probable cause, that the passenger has committed a crime, let's say you think that they have a warrant, or they're not wearing their seatbelt, they throw a cigarette out the window, you know, that type of crime, we know that we can stop the vehicle because that's where the passenger is, even though the driver has not committed any crime. And so that's the that's the logic behind it. But there's a few things I want to kind of share with you before I end off and one is, remember, just that the driver has at this point not committed any crime. So, you know, demanding a license demanding registration insurance is maybe not appropriate, right? Because they are just they happen to be there, you have lawfully stopped them, but whether or not you can lawfully identify them, just because they're in the car, it may or may not be may not be required. I mean, because if you stop the driver, and for speeding, for example, can you demand that a passenger provided identification? The answer is generally no. Right? Because they just happen to be there, even though they are seized under the Fourth Amendment. They have not done anything wrong. So you're required your your requirement to identify themselves is really not applicable. I think the reverse is true for the driver. Now, if you ask the driver, can I see some identification or see a driver's license and they tell you, I don't have a driver's license? Well, guess what? They have now committed a crime in your presence. They just told you that they have no driver's license. So now that now you can take enforcement action on them, whether it's a citation, or an arrest. So that's the question. I hope this helps. It was a great question I want to share with you just remember if you have other questions, email me info at Blue to gold comm info at Blue to gold calm. I would love to answer more of your questions in this kind of format. It's easy for me and hopefully helps you too. So until next time, be safe.

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