Brad: Intro ... Let's jump into this this morning. We're going to be talking about search warrants in the next few podcasts. So, the first question really is, "When is a search warrant required?"

Michael Kenny:Ok, well that's a really good question. You know, we hear things about search warrants being out there and issued and I'm sure a lot of us don't really understand what how many questions are involved when a search warrant comes up. Anytime the government executes a search on a person's property or home or even his person himself, that is considered a search. A search warrant is required in almost all cases unless there's some type of exception. The fourth amendment of the US Constitution has this simple instruction to the government, and it says that folks are not going to be subjected to unreasonable searches and seizures. What case law over the years has helped us understand is that a search is going to be considered a violation by the government or an intrusion by the government into a person's reasonable expectation of privacy. There's some other changes that we've had since then which involves a possessory interest that a person has which is very recent, but in general we're talking about a search, we're talking about the government invading a person's reasonable expectation of privacy. There's two prongs to an expectation of privacy. There's  the person's own expectation, which is considered a subjective expectation of privacy, and then there's the objective expectation - that's where the term reasonable comes from. Meaning an expectation that society or the reasonably prudent man would consider something that he would expect to be private, fair to be considered fair and private. So, you only have a search when a reasonable expectation of privacy is violated. I can give you a quick example. If somebody is in a park, and they are having a conversation out loud and screaming at another person saying, "listen I have a very large quantity of drugs sitting in my car right now and I plan to sell it to someone down the street" Well, there really in that circumstance can't be said that there's a reasonable expectation of privacy in that conversation. Because that conversation is held out in the open in the public in a park where people are walking by at a very high level. If you convert that to a person having a conversation in their home and officers are using high powered recording devices to capture that conversation, in that instance you would say that there is, without a doubt, a reasonable expectation of privacy in that conversation.  This person is having a conversation in the comfort and seclusion of their home, not in the open park. In that second set of circumstances, if the officers are using a recording device to capture that, that most certainly would be considered a search. Whereas the conversation in the park is not a search. So the first question you have to ask yourself is, "Is there a search? Is there some intrusion on a person's reasonable expectation of privacy?" The second question after that is asked is, "Is there probable cause to execute the search?" And probable cause with regard to a search warrant, has been defined in a lot of different ways, but the basic meaning is a fair probability that contraband or evidence of a crime will be found. And the officer would have to have sufficient data, sufficient facts to rely upon to come to that conclusion that evidence or contraband will be found in a particular location. That standard is one of the most important standards, because without the probable cause, you don't get to do the search. It doesn't matter whether you might have a warrant somehow erroneously issued, you can't do a search without probable cause. Every search that happens has to have both probable cause and a warrant. And the only time that you don't need a warrant is if there is some exception to the warrant requirement. So another example is someone in a car. Someone driving by in a car if they have some clearly illicit contraband sitting in the vehicle seat and an officer happens to walk by and notices the contraband right there in plain view, then it is not considered a search because the person is driving his car on the open road with these big clear windows and society would not be prepared to recognize that that person would have a legitimate reasonable expectation of privacy. So the officer sees the item. And when he sees the item, he would develop probable cause to execute a search. And because it is a vehicle there is an actual exception to the warrant requirement called the vehicle exception. And in those circumstances the court has said an officer would not have to stop after he sees the contraband in the vehicle and go and find a magistrate or a judge to issue a warrant and then come back and find the vehicle. The courts have said the officer can execute the search immediately when they develop probable cause that there's evidence of crime inside the vehicle. 

6:17 B: The last few weeks we talked about DUI's is the vehicle expectation is that involved in a DUI?

M: There's always a lower expectation of privacy that folks have in their vehicle, but there are searches that happen when people are arrested for a DUI. And that usually happens when the person is taken into custody, and is secured and obviously their body is searched, and the officers do that to determine if they have any weapons, and sometimes  there's something in the pocket that might be another illegal substance which might be another charge separate from a DUI charge, like a drug possession charge. And it used to be some years ago that officers could search the entire interior of the car if a person was arrested. The used to be an exception, or there still is an exception, called the search incident to arrest. And the reason why courts came up with that exception to the warrant requirement is because they were immediately concerned with the safety of the law enforcement officers. What the idea behind it is if a person is being taken into custody, the officer would be permitted to search the area within the person's reach. This is to protect the officers and make sure there's no weapons that the person might be able to get as he's being taken into custody, or even some items of evidence that might be destroyed - along those lines. However, the court began to revisit that search incident to arrest requirement when it comes to vehicles because in most instances when a person is arrested for a DUI case, for instance, involving a vehicle, they're taken out of their vehicle, they're handcuffed out of their vehicle, and then they're secured in the back of a police cruiser. That notion that the vehicle needs to be searched to prevent that person from getting a weapon or getting some item of evidence is kind of nonexistent. That person sitting in the back of a police cruiser and there's no way that he's going to be able to get his hands on anything inside of the car. So, the courts have revisited that search exception and said that you can't search the interior of the car when a person is being arrested. Now there might be some exceptions. There might be some other reasons, but the simple catchall "I arrested them and now I can search the car and maybe find some evidence of other crimes" no longer exists. 

8:52 B: ok, You and I've talked on the phone about a terry stop, correct? Can you explain a little bit on a terry stop - t e r r y stop, right?

M: Right, so a terry stop, we were talking about probable cause and probable cause is used in two different scenarios. There's probable cause for a search and then there's probable cause for an arrest. They're both the same exact level. They require the same amount of facts and circumstances to be provided. A probable cause for a search is the officer provides information based on his observations in totality of the circumstances that would allow the court to believe that there is a fair probability that items of evidence would be found in a certain place. Probable cause for an arrest is the officer believes under the facts and circumstances of his involvement, of what he's observed, he can point to reasonable facts to believe that  a crime has been committed and he would execute an arrest on this person. There's a lower standard called reasonable suspicion. Reasonable suspicion comes up when an officer sees something that looks like there might be something criminal going on but he's not quite sure. He doesn't have enough facts to articulate, for instance actually observing people involved in criminal activity per say, but it might be a situation where a person is hanging out outside a business at a late hour. Maybe walking through like he's casing the area. Maybe some unusual movements near the entrance area of a store. The officer at that point in time may not be able to articulate that this person is committing a burglary of a store. And he may not have enough evidence to say this person has on his person tools used to commit a burglary. He doesn't have enough for that yet, but courts have said there might be enough for what's called a reasonable suspicion. If the officer has reasonable suspicion, he can execute what's called a terry stop, which is a short detainment so the officer can determine whether or not a crime has occurred, is occurring, or is about to occur. That give the officers a little bit of time to investigate whether or not there is something that's about to happen. As far as police contact, there's two types of contact folks have - really three types of contact, in the end when a person gets arrested. The first type is a consensual encounter, and that's when an officer is walking down the street and waves to you and says hello, says, "hey I'd like to have a conversation with you. Would you like to have a conversation with me?" And that person sits and talks to the officer and maybe during that point in the conversation the officer asks some questions and the person without thinking it through finds himself implicating himself in a crime. That involvement between the officer and the person is consensual. There was no reasonable suspicion that a crime was going on, and the officer didn't need any reasonable suspicion, he just encountered someone. The next level up is called a terry stop. And we get these definitions of a stop and these levels of encounter from the US Supreme Court case The Terry Case, which talks about the terry stop and why the officer would be allowed to detain a person for a short period of time to make this inquiry in this investigation. And after the terry stop, if the officer believes after communicating with this person and determines that there's enough for an arrest or maybe determines there's enough for an actual search, that next level is the probable cause. And that's the probable cause for the search or the probable cause for the arrest of the person. 

B: Alright, Mike you want to kind of give us just an overall recap?

M: Sure, so the question that comes up, "when is a search warrant required?" A search warrant is required anytime the officers are going to - I say officers, any agent of the government - is going to violate or implicate  a person's reasonable expectation of privacy. Anytime that happens, there is going to be a requirement of probable cause and in most cases, there is going to be a requirement of a search warrant. There are some cases where courts have allowed there to be an exception to the warrant requirement, but those are actual specific exceptions. There's a search incident to arrest exception, for example, where a person is being arrested and the officer can search the person or the area around the person within his reach. That does not require a search warrant. There is the vehicle exception to a search warrant where an officer, if he determines there's probable cause that there's evidence of a crime inside the vehicle, he can open the doors and search the vehicle. One specific example of that is if an officer pulls a person over for say speeding and when the person rolls down the window to talk to the officer and the officer detects the distinct odor of recently smoked marijuana, that officer has now been provided with probable cause to search the vehicle. He doesn't need to see the marijuana. He doesn't need to have anyone mention there's marijuana in the car. If he smells it, he can execute a search of the vehicle to determine whether or not the evidence of the crime is still inside.