Search and Seizure issues

[Ronin226]

Are there any officers on this board who could share some search and seizure knowledge? I feel pretty confident with my 4th Amendment issues, but I have observed some officer do some "creative" searches which I didn't feel were completely legal or justified. Here are the examples:

1. During a protective sweep, an item of evidence is found in plain view. There is no other probation, parole, search warrant status on the house. The officer searches further in the room and finds more evidence that is not in plain view. I believe this is an illegal search, but I see it happen on occasion.

2. Officer has authority to tow a vehicle on a traffic stop for whatever reason (unlicensed driver etc). Officer does a tow inventory on the car, but does not tow the car after finding no evidence. Lets the driver do whatever he wants with it or have a friend pick it up. Again, I believe this to be an illegal search.

3. Suspect has a minor misdemeanor warrant (no other status). Officer goes to "serve" the warrant and does a protective sweep (trying to find evidence). Officer finds no evidence and advises suspect of warrant, not taking him into custody.

Let me know if you guys have encountered these situations and what your take is on them.

Thanks..

[leesrt]

There are to many variables to answer your questions properly.
To search anything you need a warrant, PC, or permission.
The building of PC can vary depending on how skilled the officer is on articulating all the criminal Indicators he observes.

An inventory is done when a vehicle is towed. If its not towed you don't inventory, period. What you say that officer did is why they have motions hearings.

[PhilipCal]

Are there any officers on this board who could share some search and seizure knowledge? I feel pretty confident with my 4th Amendment issues, but I have observed some officer do some "creative" searches which I didn't feel were completely legal or justified. Here are the examples:

1. During a protective sweep, an item of evidence is found in plain view. There is no other probation, parole, search warrant status on the house. The officer searches further in the room and finds more evidence that is not in plain view. I believe this is an illegal search, but I see it happen on occasion.

2. Officer has authority to tow a vehicle on a traffic stop for whatever reason (unlicensed driver etc). Officer does a tow inventory on the car, but does not tow the car after finding no evidence. Lets the driver do whatever he wants with it or have a friend pick it up. Again, I believe this to be an illegal search.

3. Suspect has a minor misdemeanor warrant (no other status). Officer goes to "serve" the warrant and does a protective sweep (trying to find evidence). Officer finds no evidence and advises suspect of warrant, not taking him into custody.

Let me know if you guys have encountered these situations and what your take is on them.

Thanks..

In your "protective sweep" I'm assuming that you're on the premises legally. Either by invitation(consent) or, in the execution of a warrant. In that instance. if you observe, contraband, or the fruits and instrumentalities of a crime", in open view , you may seize these articles and charge appropriately.
Additionally, you may seize and charge for any article named in the warrant, or in the search authorized by the warrant. Let me try to put this in another perspective, which might help you. If your warrant authorizes a search for an automobile, you'd be justified in searching a garage, carport, or similar structure. Somewhere a car is likely to be. You would not be justified in searching a bedroom, living room, or some area of a house, where something as large as an automobile couldn't be stored, or isn't likely to be.

Inventory searches on impounds are authorized, and serve to protect you and your agency from claims of theft or negligence. Again, contraband, fruits, instrumentalities of crime, if found can be seized and appropriate charges made. The inventory search could possibly still fly, even if the Officer later decided to allow the vehicle to be moved by a third party. If an Officer routinely does this, and it becomes known, that he does, some serious problems could arise. The least of these will be the court's granting defense "Motions to Supress" at Evidence Hearings.

Finally, be careful of the term "Protective Sweep". While the courts do not expect an Officer to be careless or non observant when executing a warrant, they're not going to be very tolerant of abuses of the authority a Search Warrant grants.

[iamacop]

Are there any officers on this board who could share some search and seizure knowledge? I feel pretty confident with my 4th Amendment issues, but I have observed some officer do some "creative" searches which I didn't feel were completely legal or justified. Here are the examples:

1. During a protective sweep, an item of evidence is found in plain view. There is no other probation, parole, search warrant status on the house. The officer searches further in the room and finds more evidence that is not in plain view. I believe this is an illegal search, but I see it happen on occasion.

2. Officer has authority to tow a vehicle on a traffic stop for whatever reason (unlicensed driver etc). Officer does a tow inventory on the car, but does not tow the car after finding no evidence. Lets the driver do whatever he wants with it or have a friend pick it up. Again, I believe this to be an illegal search.

3. Suspect has a minor misdemeanor warrant (no other status). Officer goes to "serve" the warrant and does a protective sweep (trying to find evidence). Officer finds no evidence and advises suspect of warrant, not taking him into custody.

Let me know if you guys have encountered these situations and what your take is on them.

Thanks..

To answer your question, yes, all the searches listed were illegal, well atleast as I'm concerned.

[just joe]

#1 is illegal.

#2 is really pushing it. It is one thing to get ready to impound a vehicle and then have the guy's buddy show up. You can always be a nice guy and not tow. It is something else to do this as a matter of routine. Anyone can see that you are trying to circumvent the law.

#3: Depends on the circumstances. If I knock on a guy's door and ask if I can come in and talk to him for a minute and he says sure and lets me in, well I can look for all my beady little eyes can see while I'm standing there. If he's got a bong and a bag of buds on his coffee table, too bad for him.

[pulicords]

All three of your cases are "borderline" and as such may or may not meet current legal guidelines established by case law. If heard in the right (or wrong) courtroom, evidence could be admitted, or it could be excluded as being seized in violation of the defendant's 4th or 14th Amendment protections.

"Unlawful" searches don't usually result in lawsuits, that's what the "exclusionary rule" is all about and I'm sure the officer(s) involved recognize that when they work on the "edge" of what the law allows. Unfortunately actions like these have a nasty habit of biting all of us, since they frequently result in new case law with greater restrictions. Keeping searches within the reasonable definitions established by case law keeps unreasonable restrictions from being set as a new standard.

[Nightshift va]

each case is different but:

Are there any officers on this board who could share some search and seizure knowledge? I feel pretty confident with my 4th Amendment issues, but I have observed some officer do some "creative" searches which I didn't feel were completely legal or justified. Here are the examples:

1. During a protective sweep, an item of evidence is found in plain view. There is no other probation, parole, search warrant status on the house. The officer searches further in the room and finds more evidence that is not in plain view. I believe this is an illegal search, but I see it happen on occasion. (CHIMMEL VS CALIFORNIA....A PROTECTIVE SWEEP CAN BE DONE IN THE AREA'S WHERE THE PERSON BEING ARRESTED OR TARGET OF THE WARRANT COULD GAIN ACCESS TO A "WEAPON". this would not include other rooms, especially ones where he is not located in or after he is in custody. The only exception would be if there were specific "items" listed on the warrant other than the person alone or he had the authority and gave you consent.

2. Officer has authority to tow a vehicle on a traffic stop for whatever reason (unlicensed driver etc). Officer does a tow inventory on the car, but does not tow the car after finding no evidence. Lets the driver do whatever he wants with it or have a friend pick it up. Again, I believe this to be an illegal search. (NAH, NOT ILLEGAL, JUST NOT A GOOD PRACTICE.IF THE OFFICER HAS TO DO AN INVENTORY SHEET TO ACCOMPANY THE TOW ITS VERY REASONABLE. BUT THE OFFICER SHOULD NOT GET IN A HABIT OF CHANGING HIS MIND JUST BECAUSE HE DIDN'T FIND DRUGS, THEN CALL OFF THE WRECKER..Supreme Court still hasn't ruled on "Inventory searches" related to their most reccent RETARDED decision to give cars the same privacy priviledges of a persons home. Big blow to L.E.

3. Suspect has a minor misdemeanor warrant (no other status). Officer goes to "serve" the warrant and does a protective sweep (trying to find evidence). Officer finds no evidence and advises suspect of warrant, not taking him into custody. (Not unless your protective sweep is for WEAPONS ONLY for OFFICER SAFETY. and it has to be limited to areas he could grab a weapon upon your encounter or on his person and even then the search should be limited and reasonable without a warrant or without consent. similar to ur first question. IT IS ENTIRELY REASONABLE TO MAKE SURE THE GUY ESPECIALLY IF HE'S NOT IN CUFFS IS "FRISKED" for WEAPONS BEFORE YOU TAKE UR ATTENTION OFF HIM TO ISSUE PAPERWORK..Just so you don't get shot in ur face. sounds reasonable if u can articulate it that way. If not stay in ur squad car.

Let me know if you guys have encountered these situations and what your take is on them. My take was put in after each of your questions. As for encountering these issue's. YEPPERS...every freakin day.

Thanks..

ILL TRY, LOOK AT THE END OF EACH QUESTION.

[Smurfette_76]

Are there any officers on this board who could share some search and seizure knowledge? I feel pretty confident with my 4th Amendment issues, but I have observed some officer do some "creative" searches which I didn't feel were completely legal or justified. Here are the examples:

1. During a protective sweep, an item of evidence is found in plain view. There is no other probation, parole, search warrant status on the house. The officer searches further in the room and finds more evidence that is not in plain view. I believe this is an illegal search, but I see it happen on occasion.

If the Officer wants to search further into the house, he should obtain a SW based on the evidence already seized. If the evidence in plain view (your protective sweep articulation doesn't matter) is in a car, the rest of the vehicle CAN and SHOULD be searched w/o a warrant. Plain view doctrine, Carroll doctrine applies.

2. Officer has authority to tow a vehicle on a traffic stop for whatever reason (unlicensed driver etc). Officer does a tow inventory on the car, but does not tow the car after finding no evidence. Lets the driver do whatever he wants with it or have a friend pick it up. Again, I believe this to be an illegal search.

Bad practice and that Officer will find his pee pee getting smacked for that one.

3. Suspect has a minor misdemeanor warrant (no other status). Officer goes to "serve" the warrant and does a protective sweep (trying to find evidence). Officer finds no evidence and advises suspect of warrant, not taking him into custody.

Also bad practice and I'd consider it an illegal search.

Let me know if you guys have encountered these situations and what your take is on them.

No, I haven't personally encountered these situations because when I'm around and I see an Officer about to illegally search (usually because they are ignorant of the requirements) I stop them. I had ONE Sgt years ago where I tried to tell him what he was doing was wrong. He and I got into it later and we haven't gotten along since.

The means has to justify the end, not the other way around.

[westside popo]

^ ^ ^
I like and agree with her answers.

Except for the "pee pee getting smacked."

[PtlCop]

#1 - Once you find the initial illegal item, it's wholly reasonable to look for other items in plain view. It is unreasonable to begin opening closed containers, moving items to see serial numbers, etc. Once you've established that the occupants of the residence are out, seal the place and make your application for a search warrant. The search you describe would likely be determined unlawful and everything that was found after the initial plain view observance would likely be suppressed.

#2 - It could go either way. I've started a tow inventory log before, done the inventory and then had the guys wife drive up in a friend car and beg and plead for us not to tow the vehicle as it was their only one, I relented and let her take it from the scene. I kept the tow log and turned it in as voided with my paperwork though. Had my tow inventory found some illegal substances, I would have impounded the car. I think it's easy enough to articulate that prior to a wrecker arriving, a family member pleaded with you to allow them to take the car. I do not make this my normal practice and have done it only once. I kept the tow log to ensure that if they made any 4th amendment violation claims, I could easily point out that my report narrative, in-car video and tow log supported my side of the story. Eventually the people you work with are going to get sued for searching a car, calling it a tow inventory and then not towing the car. It doesn't matter what THEY call it, it matters what it is...an illegal search of the vehicle.

#3 - Illegal as far as i'm concerned. As stated, the protective sweep is done to ensure the officers safety and to ensure that no weapons or persons that could harm the officer are present. If the stated purpose of the visit is the serving of an arrest warrant and the officers do their protective sweep and find contraband and then don't fulfill the purpose of their visit, I can see how a judge would suppress everything as the officers entered under false pretenses and were in effect gaining entry by coercion (saying they were there to serve a warrant, which grants them access, and then not serving the warant). The bigger question is, why is the wanted criminal not being taken into custody?

No, I've not seen these actual instances take place, but I can assure you that I'd see them once, and try to correct the behavior myself, man to man. If that didn't work and the problems persisted and my fellow officers continued to put me into a position where I was observing illegal activity and could potentially be named in a lawsuit, I'd have to forward it to the supervisor. If you're standing idly by and watching it happen and you haven't tried to correct it yet, you're as much of the problem as they are.

[iamacop]

There is no such thing as a bad search.

Ya, and O.J. is innocent.

[mdrdep]

In order to keep from getting banned, I promise to never post after more than 4 beers.

[Nightshift va]

Ronin. Just look up that Chimmel vs California case. It covers the search of areas into the same room the person is arrested in.
As for vehicles...look at Carrol Doctrine (very old case law) the Ross case and Maryland vs Buie.

[1042 Trooper]

Are there any officers on this board who could share some search and seizure knowledge? I feel pretty confident with my 4th Amendment issues, but I have observed some officer do some "creative" searches which I didn't feel were completely legal or justified. Here are the examples:

1. During a protective sweep, an item of evidence is found in plain view. There is no other probation, parole, search warrant status on the house. The officer searches further in the room and finds more evidence that is not in plain view. I believe this is an illegal search, but I see it happen on occasion.

Depends what the evidence is. If it is contriband, you own the house - anywhere else like substance could be secreted. However, since it is NOT exigent circumstances - get a warrant.

2. Officer has authority to tow a vehicle on a traffic stop for whatever reason (unlicensed driver etc). Officer does a tow inventory on the car, but does not tow the car after finding no evidence. Lets the driver do whatever he wants with it or have a friend pick it up. Again, I believe this to be an illegal search.

Not illegal if nothing is seized or used against the owner. Irritating and unprofessional but not illegal. And always remember - an INVENTORY is just that - it is NOT a search and should never be refered to as such. Paints a different picture to a jury. If by happenstance we find some illegal goodies, well, good for us, but it was an INVENTORY - not a search. It becomes a search after and if we find something illegal during our inventory.

3. Suspect has a minor misdemeanor warrant (no other status). Officer goes to "serve" the warrant and does a protective sweep (trying to find evidence). Officer finds no evidence and advises suspect of warrant, not taking him into custody.

Huh? Has a warrant but lets him go???? I wouldn't want to have to explain that to the judge who issued it. A warrant is a COMMAND from the court to arrest the person - NO OFFICER DISCRETION HERE.

Get some.

[PtlCop]

Depends what the evidence is. If it is contriband, you own the house - anywhere else like substance could be secreted. However, since it is NOT exigent circumstances - get a warrant.


Not illegal if nothing is seized or used against the owner. Irritating and unprofessional but not illegal. And always remember - an INVENTORY is just that - it is NOT a search and should never be refered to as such. Paints a different picture to a jury. If by happenstance we find some illegal goodies, well, good for us, but it was an INVENTORY - not a search. It becomes a search after and if we find something illegal during our inventory.


Huh? Has a warrant but lets him go???? I wouldn't want to have to explain that to the judge who issued it. A warrant is a COMMAND from the court to arrest the person - NO OFFICER DISCRETION HERE.

Get some.

I think I'm giong to disagree.

It doesn't matter what it's called, it matters what it *IS.* You can say its a tow inventory all you want, but if you don't actually tow the car...that's not what it is. If you're using the term "tow inventory" to justify poking around in a car, then you damn well better tow the car, or have a valid, reasonable and justifiable reason for not towing it (such as the example I gave earlier).

Here's the way it'd play out in front of the judge in your civil rights violation case:

Attorney: At what point did you search my clients vehicle without consent, exigent circumstances, or a warrant?

PO: I didn't sir, i completed a tow inventory on the vehicle, not a search.

Attorney: Excellent, which tow company came to pick up the vehicle?

PO: None, I didn't tow the car.

Attorney: So...you did a tow inventory, but didn't tow the car?

PO: That's right.

Attorney: So you didn't do a tow inventory, because to do a tow inventory, you have to have a tow. You didn't tow it, correct.

PO: Correct.

Attorney: So, without a warrant, exigent circumstances or consent to enter the vehicle, you did so anyway?

PO: ****!!!!!!!!!!!



It doesn't matter if we call it a tow inventory, if there's no tow involved, it's not an inventory...it's a search.