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S EARCH AND S EIZURE Court Systems and Practices.

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Presentation on theme: "S EARCH AND S EIZURE Court Systems and Practices."— Presentation transcript:

1 S EARCH AND S EIZURE Court Systems and Practices

2 2 Copyright and Terms of Service Copyright © Texas Education Agency, 2011. These materials are copyrighted © and trademarked as the property of the Texas Education Agency (TEA) and may not be reproduced without the express written permission of TEA, except under the following conditions: 1) Texas public school districts, charter schools, and Education Service Centers may reproduce and use copies of the Materials and Related Materials for the districts and schools educational use without obtaining permission from TEA. 2) Residents of the state of Texas may reproduce and use copies of the Materials and Related Materials for individual personal use only, without obtaining written permission of TEA. 3) Any portion reproduced must be reproduced in its entirety and remain unedited, unaltered and unchanged in any way. 4) No monetary charge can be made for the reproduced materials or any document containing them; however, a reasonable charge to cover only the cost of reproduction and distribution may be charged. Private entities or persons located in Texas that are not Texas public school districts, Texas Education Service Centers, or Texas charter schools or any entity, whether public or private, educational or non-educational, located outside the state of Texas MUST obtain written approval from TEA and will be required to enter into a license agreement that may involve the payment of a licensing fee or a royalty. Contact TEA Copyrights with any questions you may have. TEA Copyrights Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

3 S EARCH AND S EIZURE 4 th Amendment: Protects citizens from unreasonable searches and seizures. 3 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

4 F RISK Frisk – a pat down of the outer clothing of a person whom an officer has stopped or the search of a container to which a detained person may have immediate access. Why would someone be frisked? 4 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

5 F RISK ( CONTINUED ) The purpose of a frisk is to protect the safety of the officer. ( It is not a fishing expedition.) What does an officer legally need to perform a frisk? 5 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

6 F RISK ( CONTINUED ) Reasonable Suspicion Officers have to be able to articulate why they feared for their safety and why they believed a person had a weapon on or about his or her person that could be used to cause injury or death. 6 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

7 F RISK ( CONTINUED ) What are some reasons to believe a person has a weapon? 7 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

8 F RISK ( CONTINUED ) -The type of crime for which a person has been stopped -Furtive movements -Appearance of the person (bulge) -Time and place (alone at 2 a.m.) -Proximity to a recent crime scene -High crime area 8 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

9 F RISK ( CONTINUED ) -The reputation of the subject -The officer's experience -The description of a wanted vehicle or person 9 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

10 F RISK ( CONTINUED ) The object of a frisk is to locate weapons. -Only reasonable force may be used -Only the outer clothing is touched unless something suspicious is found -Evidence observed under the plain feel/plain touch doctrine may be seized 10 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

11 F RISK ( CONTINUED ) What can be searched? 11 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

12 F RISK ( CONTINUED ) Person Can be done on the entire body 12 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

13 F RISK ( CONTINUED ) Vehicles Anything within reach of the person The glove box can be searched if it is unlocked and within reach of that person 13 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

14 F RISK C ASE L AW Terry v. Ohio Terry Frisk – the right of an officer to frisk for his or her own safety Michigan v. Long -It is permissible to search the passenger area of a vehicle -Discovery of contraband can lead to more searching 14 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

15 S EARCH Search –prying into hidden places for that which is concealed where there is a reasonable expectation of privacy 15 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

16 S EARCH ( CONTINUED ) What is required to conduct a search? 16 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

17 S EARCH ( CONTINUED ) Search Warrant -A written order issued by a magistrate directed to a peace officer to look for property -Contains probable cause So what about the officer who searches your car on a traffic stop? 17 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

18 S EARCHES W ITHOUT A W ARRANT (A COP IS ME) A bandonment C onsent O pen view/plain view P ublic place I nventory S earch incident to arrest M obile doctrine E xigent circumstances 18 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

19 A BANDONMENT A person no longer has a right to privacy of something they have abandoned. 19 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

20 A BANDONMENT ( CONTINUED ) A police officer must show evidence that the person took some action which indicated he or she no longer claimed ownership of the property. 1) Flight from a vehicle 2) Discarded objects 20 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

21 A BANDONMENT ( CONTINUED ) California v. Greenwood (1988) The Supreme Court said a person's trash is considered abandoned property and can be searched. -Trash on the back porch would be in the curtilage of the house and not abandoned property 21 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

22 C ONSENT 1) Must be voluntary 2) May be withdrawn at any point 22 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

23 C ONSENT ( CONTINUED ) For cars 1) The driver must be free to go. -Occurs when the driver's license is returned 2) The search must not be done in a police-dominated area. 3) If the driver revokes consent, the search must stop. 23 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

24 C ONSENT ( CONTINUED ) For residences Any adult who has regular unrestricted access to a place may grant consent for that place, but not for the personal storage places of another. 24 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

25 C ONSENT ( CONTINUED ) Husband/Wife – either spouse may consent to a search. Parent/Child – a parent can give consent to a child's property but the child cannot give consent to the parent's property. 25 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

26 C ONSENT ( CONTINUED ) Landlord/Tenant – a landlord cannot give consent to search a paying tenant's premise. Roommates – a roommate can give consent to a search of the common areas and his room, but not the other roommate's personal storage. 26 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

27 C ONSENT ( CONTINUED ) Host/Guest – a host can consent to the search of a nonpaying guest's room but not to their luggage. 27 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

28 C ONSENT ( CONTINUED ) Other areas Employer/Employee – an employer can consent to the search of an employee's work area but not to his or her desk drawers, locker, or personal tool box. 28 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

29 C ONSENT ( CONTINUED ) Employee/Employer – an employee can give consent to a search of the premise if he is in charge of it for a substantial length of time. ex. Manager, supervisor, etc. 29 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

30 C ONSENT ( CONTINUED ) School Official/Student – a school official who retains combinations to student lockers can give consent to search the lockers. -No right to privacy -School officials can search student property if they have good cause or reason to. 30 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

31 O PEN /P LAIN V IEW A police officer must have a legal right to be where he is and it must be immediately apparent that the object is illegal. When might this happen? 31 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

32 O PEN /P LAIN V IEW ( CONTINUED ) -Standing on a sidewalk -In a public parking lot -In a motel corridor -In view of a neighbor's property etc. Plain feel also applies during a frisk 32 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

33 S EARCH OF O PEN F IELDS An officer does not need a search warrant to search open fields. 33 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

34 S EARCH OF O PEN F IELDS ( CONTINUED ) An open field begins where the curtilage ends. Curtilage – generally considered to be that area of open space surrounding a dwelling which is so immediately adjacent to the dwelling that it is considered part of the house 34 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

35 S EARCH OF O PEN F IELDS ( CONTINUED ) Steps taken by the homeowner to protect the area from passerbys could make something curtilage. Ex. a fence 35 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

36 P UBLIC P LACE No expectation of privacy in most public places 36 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

37 I NVENTORY An inventory is a legitimate law enforcement activity that is not a search, and which sometimes incidentally results in the discovery of evidence. 37 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

38 I NVENTORY ( CONTINUED ) -A detailed list of articles and property must be kept. -Contraband found during an inventory may be lawfully seized and used as evidence for charges. -An inventory must be done in every circumstance to stand up in court. -It is not a fishing expedition. 38 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

39 S EARCH I NCIDENT TO A RREST OVERRULED Chimel v. California (1969) – the area within reach of the person is what can be searched after arrest New York v. Belton (1983) – pertained to cars 39 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

40 S EARCH I NCIDENT TO A RREST ( CONTINUED ) Arizona v. Gant (2009) The Supreme Court held that police may search the passenger compartment of a vehicle incident to a recent occupants arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. 40 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

41 M OBILE D OCTRINE An officer may conduct a warrantless search of a readily movable vehicle if 1) There is probable cause to believe that evidence of a crime is inside 2) The officer cannot safely delay the search to obtain a warrant 41 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

42 M OBILE D OCTRINE ( CONTINUED ) 3) The search must be made immediately 4) Any area the officer has probable cause to believe contains contraband can be searched 42 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

43 M OBILE D OCTRINE ( CONTINUED ) Carrol v. U.S. (1925) – a vehicle can be searched without a warrant when there is probable cause and there is no time to obtain a warrant because it is mobile. U.S. v. Ross (1982) – containers in the car can also be searched when Carrol v. U.S. applies. 43 Copyright © Texas Education Agency 2011. All rights reserved. Images and other multimedia content used with permission.

44 M OBILE D OCTRINE ( CONTINUED ) A mobile home is not considered a vehicle when it is hooked up to utilities. 44

45 E XIGENT C IRCUMSTANCES Specific situations where the court has ruled that the need of the government to immediately provide for the safety and the welfare of the citizens over- rides the people's right to privacy, and a warrant is not first needed before searching. 45

46 E XIGENT C IRCUMSTANCES ( CONTINUED ) What are some examples of exigent circumstances? 46

47 E XIGENT C IRCUMSTANCES ( CONTINUED ) 1) Emergency Circumstances -An unconscious person -An incoherent person -A medical aid situation -Shots fired -Fight noises or screams -Fires, explosions, or natural disasters etc. 47

48 E XIGENT C IRCUMSTANCES ( CONTINUED ) -The police do not have to speculate if the report is correct -The searching and seizing are confined to emergency activities, are warranted, and searching must cease once the emergency ends -A warrant is required for more searching after the emergency is over 48

49 E XIGENT C IRCUMSTANCES ( CONTINUED ) 2) Hot Pursuit -In lawful fresh pursuit of a fleeing felon and a warrantless entry is made into any place -No more than a 30-minute interruption in the pursuit 49

50 E XIGENT C IRCUMSTANCES ( CONTINUED ) 3) Imminent Destruction -Entry into a house without a warrant to prevent the imminent destruction of evidence or contraband 50

51 E XIGENT C IRCUMSTANCES ( CONTINUED ) Other exigent circumstances -Securing a premise on alarm calls -Securing a crime scene for safety 51

52 E XCLUSIONARY R ULE Fruit of the Poisonous Tree Evidence obtained after an illegal government action will be excluded from evidence. This pertains to 1) Physical or tangible evidence 2) Confessions 3) Admissions 4) Identification 5) Testimony 52

53 E XCLUSIONARY R ULE C ASES ( CONTINUED ) Escobedo v. Illinois – A defendant has the right to a lawyer during police interrogation when in custody. This was determined to be a 6 th amendment issue but Miranda v. Arizona overruled this case, making it a 5 th amendment issue instead. 53

54 E XCLUSIONARY R ULE C ASES ( CONTINUED ) Miranda v. Arizona – when a suspect is in custody, he or she has to be advised of the right to a lawyer when talking to the police. Douglas v. California – the indigent must be provided a lawyer if they cannot afford one on their own. 54

55 E XCLUSIONARY R ULE C ASES ( CONTINUED ) Weeks v. United States – police must have a warrant to seize items from a private residence. Any illegally obtained items are not allowed in federal court as evidence. Mapp v. Ohio – evidence obtained in violation of the fourth amendment is not allowed in criminal prosecution in federal or state courts. 55

56 G OOD F AITH If an officer performs an action based on information given to him that he believes is credible, then what he finds is not considered fruit of the poisonous tree. A person giving information is considered credible unless proven otherwise. There are exceptions. 56

57 R ESOURCES 57 Champion, Dean John, Hartley, Richard D. & Rabe, Gary A. Pearson Criminal Courts: Structure, Process, & Issues. (2nd edition) Prentice Hall, 2008. Del Carmen, Rolando V. Criminal Procedure: Law and Practice. (8th edition) Wadsworth, 2010.


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