1. Chapter 11: Investigative Constitutional Law LawTech Custom Publishing, Inc. Copyright 2010 Investigative Constitutional Law

2. Chapter 11: Officer Safety and Custody Searches Learning Outcomes Learning Outcomes  Those officer safety search activities that require no independent suspicion.  Searches which must be supported by justification, and the applicable standard, including weapons frisks and protective sweeps.  Scope of activity for protective searches.  Jail and prison shakedown inspections and examination of booked property.  Use of force and restraints on unruly prisoners. Investigative Constitutional Law

3. Chapter 11: Officer Safety and Custody Searches Learning Outcomes (Continued) Learning Outcomes (Continued)  Medical care and First Amendment issues.  Civil liability issues. Investigative Constitutional Law

4. Chapter 11: Officer Safety and Custody Searches Officer Safety Searches Officer Safety Searches  Each year in the United States, between 80 and 150 officers die in the line of duty, and another 60,000 (on average) are assaulted.  Searches Not Requiring Independent Justification  Certain situations are so inherently risky that protective measures are automatic.  Arrest: The process of taking an arrested person into custody and transporting him or her to a police station or jail is considered sufficiently dangerous as to justify an automatic search incident to arrest as well as “pre-booking” search. Investigative Constitutional Law

5. Chapter 11: Officer Safety and Custody Searches Officer Safety Searches (Continued) Officer Safety Searches (Continued)  Ordering Out: At a lawful traffic stop, an officer can order any or all occupants, to get out of the vehicle, and no reason need be given for doing so.  Entry Following Arrest: When a person lawfully detained or arrested outdoors requests to go inside for any reason, the officer has the right,for officer safety reasons, to accompany him or her indoors, and to seize any evidence that is lawfully seen. Investigative Constitutional Law

6. Chapter 11: Officer Safety and Custody Searches Officer Safety Searches (Continued) Officer Safety Searches (Continued)  Searches Requiring Reasonable Suspicion  Except in the limited circumstances already discussed, officer safety searches will require the searching officer to articulate a reasonable suspicion that the person is armed and dangerous in order to make a “weapons frisk,” also called a “pat-down search.”  Terry v. Ohio  A weapons frisk must be based on reasonable suspicion that the person may be armed and dangerous. Investigative Constitutional Law

7. Chapter 11: Officer Safety and Custody Searches Officer Safety Searches (Continued) Officer Safety Searches (Continued)  Passenger Compartment: At a lawful vehicle stop, officers who have a reasonable suspicion that the detainee is dangerous and that the vehicle may harbor a concealed weapon may search areas that might contain a weapon.  Protective Sweep: To make a protective sweep during an in- home arrest, officers must have a reasonable suspicion of the presence of a potential assailant. Investigative Constitutional Law

8. Chapter 11: Officer Safety and Custody Searches Officer Safety Searches (Continued) Officer Safety Searches (Continued)  Scope of Search  Officer safety searches must be limited to the scope defined by their objects, whether weapons or potential assailants.  All three situations—weapons frisk of a detained person, frisk of the passenger compartment, and protective sweep—have specific scopes that must be observed. In all three instances, the searches are limited to areas that might reveal the presence of weapons or assailants.In all three instances, the searches are limited to areas that might reveal the presence of weapons or assailants. Investigative Constitutional Law

9. Chapter 11: Officer Safety and Custody Searches Officer Safety Searches (Continued) Officer Safety Searches (Continued)  Officer Survival Perspective and Precautions  Law enforcement officers are in a dangerous profession. The courts know this, and generally do not take a grudging view of reasonable steps to reduce the dangers. The Constitution is not an impediment to officer safety, but it does require that an officer document the objective facts that prompted the officer’s subjective feeling that a safety search was in order. Investigative Constitutional Law

10. Chapter 11: Officer Safety and Custody Searches Jail and Prison Inspections Jail and Prison Inspections  In general, the court has said that to the extent prisoners retain any Fourth Amendment protection, it is substantially diminished, and great deference is to be shown to custodial officials in establishing and carrying out procedures to maintain control of inmates and to insure institutional security.  Suspended Expectation of Privacy: Jail and prison inmates do not have a legitimate expectation of privacy as to unprivileged communications within the place of confinement. Investigative Constitutional Law

11. Chapter 11: Officer Safety and Custody Searches Jail and Prison Inspections (Continued) Jail and Prison Inspections (Continued)  Shakedowns: Unobserved, unannounced shakedown searches in prison and in jail do not violate the Fourth Amendment rights of the inmates.  Strip Searches and Body Cavity Exams: Strip searches and body cavity searches justified by legitimate institutional security concerns and conducted in a reasonable manner do not violate the Fourth amendment.  Examination of Booked Property: A prisoner’s booked or retained property may be seized and searched without a warrant, as long as he remains lawfully in custody. Investigative Constitutional Law

12. Chapter 11: Officer Safety and Custody Searches Maintaining Order in Custodial Facilities Maintaining Order in Custodial Facilities  Segregation of Prisoners: there is a constitutional presumption against racial segregation of prisoners that can be overcome only by showing a strong need and a limited application.  The Supreme Court has ruled that the equal protection clause is violated if custodial officials segregate prisoners by race— even temporarily during reception-center processing—without proving that the segregation is a “narrowly-tailored” necessity justified by “compelling governmental interests.” (Prevent Violence based on Geography – developed by race.) Investigative Constitutional Law

13. Chapter 11: Officer Safety and Custody Searches Maintaining Order in Custodial Facilities (Continued) Maintaining Order in Custodial Facilities (Continued)  Use of Passive Restraints: Passive restraints may be used as necessary for prisoner compliance with reasonable regulations, but not to punish.  Use of Force: Use of force to restore order must be reasonable and must end when order is restored.  First Amendment Issues: Prisoners’ First Amendment rights can be restricted only to the extent necessary for security, order or rehabilitation. Investigative Constitutional Law

14. Chapter 11: Officer Safety and Custody Searches Maintaining Order in Custodial Facilities (Continued) Maintaining Order in Custodial Facilities (Continued)  Medical Care: “Deliberate Indifference” to prisoners’ medical needs violates their constitutional rights.  Eighth Amendment and Due Process Civil Liability: Civil suits alleging mistreatment may claim violations of the Fifth, Eighth or Fourteenth Amendments. Investigative Constitutional Law