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1. THE DETENTION ( TERRY ) FRISK = PLAIN VIEW = WEAPONS WEAPONS/CONTRABAND 2. CONSENT (KNOWING + VOLUN

1. THE DETENTION ( TERRY ) FRISK = PLAIN VIEW = WEAPONS WEAPONS/CONTRABAND 2. CONSENT (KNOWING + VOLUNTARY) 3. PROBABLE CAUSE NO PLUS EXIGENT CIRCUMSTANCES EXIGENT CIRCUMSTANCES SEARCH WARRANT WARRANTLESS

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1. THE DETENTION ( TERRY ) FRISK = PLAIN VIEW = WEAPONS WEAPONS/CONTRABAND 2. CONSENT (KNOWING + VOLUN

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  1. 1. THE DETENTION (TERRY) FRISK = PLAIN VIEW = WEAPONS WEAPONS/CONTRABAND 2. CONSENT (KNOWING + VOLUNTARY) 3. PROBABLE CAUSE NO PLUS EXIGENT CIRCUMSTANCES EXIGENT CIRCUMSTANCES SEARCH WARRANT WARRANTLESS COURT FAVORS PRESUMED UNREASONABLE = BURDEN ON GOVERNMENT  SCOPE

  2. ORDER OF ASSESSMENT • State Statute  • State Constitution • Federal Constitution

  3. STANDARD FOR SEARCHES • Reasonable Expectation of Privacy • “Reasonable” Defined: • objective standard • privacy expectation that society recognizes • Scope

  4. RULES FOR PLAIN FEEL • Legitimate Basis for Handling Person or Object • Inadvertent Discovery • Reasonableness of Handling for Context • To Search Container Felt Need: • probable cause and • search warrant or • exigent circumstances or • consent

  5. 4th AS APPLIED TO PERSONS • 4TH Applies to Person Seizure • Standard is Reasonableness • use of excessive force may be unreasonable • standard is objective: reasonably objective belief of officer at time and place of seizure

  6. WHEN A PERSON IS “SEIZED” • Show of Authority or • Use of Force • Must Actually Produce the “Stop” • Reasonableness

  7. 4th AS APPLIED TO PROPERTY • 4th Applies to Seizure of Property • “Seizure” occurs when: • meaningful interference with a property right • Due Process Applies - 14th

  8. STANDING RULE • A Privacy Interest in Place Searched or • A Possessory Interest in Items Seized • State May Maintain Inconsistent Theories • Statements of Defendant to Assert Right not a Waiver (5th) • No Standing if Seizure From Third Party

  9. PLAIN VIEW STANDARDS • NB: Real “Plain View” is not a search • No 4th Violation in Arriving at Place of View • Character as “Evidence” Requires Probable Cause • contraband, or • evidence of crime

  10. FLYOVERS • Reasonableness Standard • does flyover interfere with normal use of property? • does flyover allow viewing of intimate details of use of property? • does flyover cause undue: noise, wind, dust or threat of injury?

  11. KNOCK AND ANNOUNCE • Part of 4th Inquiry via 14th Due Process • Test - Reasonableness: • peril to officers • risk of loss of evidence • Best Practice: • set out in affidavit • endorsed in warrant • May be Reassessed: • circumstances at time of service • Excessive Property Damage may be Unreasonable • Suppress Only if K&A Violations Produces Discovery of Evidence

  12. Hiibel v. Sixth Judicial District 542 US 177, 124 S Ct 2451 (2004) (a law which requires detainee to identify self is not vague and does not violate 4th or 5th Amendments) Compare

  13. SMUGGLERS PROFILE • Travels to, from, or through “source city” • Last to leave plane • Claims no baggage • Scans gate area • Pays cash for tickets • Stay at destination unusually short as compared with flight length

  14. LIMITATIONS ON PROFILE CONDUCT • Length of detention must be brief *exception: U.S. v. Montoya de Hernandez •  Search is either: • with consent - knowing; voluntary, or • with probable cause plus search warrant or exigent circumstances • Scope: • scope of consent, or • scope of affidavit and warrant

  15. INTRUSIVE PERSON SEIZURES – TEST COMMUNITY INTEREST IN FAIRLY AND ACCURATELY ASSESSING GUILT V. INDIVIDUAL’S HEALTH, SAFETY, PRIVACY, AND BODILY INTEGRITY

  16. STANDARDS FOR “SPECIAL NEEDS” SEARCHES • High state interest  • Statute serves that interest • Warrantless inspection is necessary to regulatory scheme • Statute is adequate substitute for search warrant: • informs of inspections • scope of inspections • how to comply  • who will conduct • Inspections are reasonable in time, scope and intensity

  17. VEHICLE SEARCHES (ABSENT CONSENT) • There must be probable cause • Potential Mobility = exigent circumstances - no warrant required • Scope: • if probable cause for vehicle = vehicle plus all containers • passenger property may be searched if logical receptacle; need not connect passenger to driver, or driver’s conduct • if probable cause for container = may search container only • exception: if probable cause takes searcher beyond container

  18. MOTORHOMES, MINIVANS, ET. AL. • MAY BE SEARCHED WARRANTLESS IF: • IS BEING DRIVEN, OR • CAPABLE OF BEING DRIVEN ON ROADWAY, AND • IS STATIONARY AT A PLACE NOT REGULARLY USED FOR OVERNIGHT ACCOMMODATION

  19. STANDARDS FOR VALID ROADBLOCKS • HIGH STATE INTEREST •  PROGRAM IS EFFECTIVE IN ADVANCING INTEREST • DEGREE OF INTRUSION MINIMAL

  20. STANDARDS FOR VALID VEHICLE INVENTORY • Legal basis for vehicle seizure • Clear departmental inventory policy • Officer must comply with policy • Search must be to protect property • Scope of policy: • may be “all or nothing” • may be some officer discretion (container which could contain valuables)

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