Search and seizure

Purposes of a search Fruits of the crime (e.g., stolen property) Instrumentalities of the crime (e.g., a gun, burglary tools) Circumstantial evidence of a crime (e.g., falsified records) Leads to other sources of evidence (e.g., identify conspirators)

Warrantless searches Consent Administrative search authority (e.g., DMV, ABC) Incident to arrest – Person – Entire passenger compartment of vehicle – Immediate vicinity, for weapons – Inventory search (must be non-pretextual) Impounded vehicle Personal belongings taken

Compelled evidence-gathering techniques: Subpoenas and search warrants Subpoena – usually for persons and/or documents – Issued by courts for trial – Some agencies can issue administrative subpoenas (e.g., telephone toll records) – Grand Juries (investigative phase only) When need a search warrant? – Looking for physical evidence of a crime – Fear of tampering or destruction – Preservation and handling issues (e.g., latent fingerprints) – Need evidence of a precise location where found

Search warrants For persons, places or vehicles Compelled technique – Intrusive and dangerous – Requires planning and great care Tests: – Must we gather this evidence? – Is it available elsewhere? – Can it be preserved without being forcefully seized? – Are less intrusive options available?

Search warrant – basis for issuance Probable cause – what would lead a reasonable person, exercising normal caution, to believe that: – A crime has occurred, is taking place or is being planned – Evidence or fruits of the crime are present at a certain location California rules for issuance same as Federal – Federal laws and court decisions must be followed Exception: under California State law cannot issue for misdemeanors

Search warrant – sources of information Records, including criminal histories Observations Witnesses – Law enforcement officers – Informers – Private citizens – Non-police witnesses not “proven reliable” cannot be the sole basis without corroboration Hearsay permissible

Motor vehicles No warrant necessary (Carroll v. U.S.) – May search anywhere, including closed packages (USA v. Pinela-Hernandez, 9 th. Circuit) Usually probable cause is required – Need a “fair probability” that contraband or evidence will be found – Not required for inventory search of an impounded vehicles Sole basis for a vehicle search cannot be an uncorroborated “tip” from someone whose reliability has not been established (U.S. v. Morales, 9 th. Circuit)

Premises Expectation of privacy – None in a public area – Some in a vehicle – More in another person’s dwelling – Greatest in one’s own dwelling (home or apartment) Cannot enter dwelling without search/arrest warrant Exception - “exigent circumstances” – Save a life or prevent imminent destruction of evidence Probationers and parolees have a lesser expectation if terms include warrantless search – If search based on reasonable suspicion, fruits can be used in criminal prosecution (U.S. v. Knights, Supreme Court)

Persons No warrant required: – Search incident to arrest – “Terry” - reasonable suspicion that someone has a weapon – Probable cause that someone possesses evidence, and failing to secure it will result in its loss or destruction Unreasonable for a hospital to perform non-consensual tests to identify drug users, then to use this evidence against them in court (Ferguson v. Charleston, Supreme Court) Even if a wanted person is clearly visible inside their dwelling, cannot enter without arrest or search warrant (U.S. v. Oaxaca, 9 th. Circuit)

Privacy expectations – some extreme examples Warrantless search of a closed tent on Federal land ruled illegal (U.S. v. Sandoval, 9th. Circuit) Squeezing an opaque bag during immigration checks ruled illegal (Bond v. U.S., Supreme Court) Warrantless thermal imaging of garage ruled illegal as unusual device is not in general use (Kyollo v. U.S., Supreme Court) No “murder scene” exception to search warrant (Flippo v. West Virginia, Supreme Court)