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Instructor: Deputy Chief of Police Mark G. Stigler

Police Recruit Academy II-A-7 Constitutional Law Analyze exceptions to the search warrant requirement. ( 4 hour block). Instructor: Deputy Chief of Police Mark G. Stigler. What are the exceptions to the Search Warrant Requirement?. Incident to a lawful arrest Protective sweep Hot pursuit

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Instructor: Deputy Chief of Police Mark G. Stigler

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  1. Police Recruit AcademyII-A-7Constitutional LawAnalyze exceptions to the search warrant requirement.(4 hour block) Instructor: Deputy Chief of Police Mark G. Stigler

  2. What are the exceptions to the Search Warrant Requirement? • Incident to a lawful arrest • Protective sweep • Hot pursuit • In a public place • In plain view • Custodial searches • Consent searches • Abandoned objects • Inspection pursuant to law • Automobiles

  3. Analyze exceptions to the search warrant requirement. Explain when a valid consent search can be made and what can be searched. • No search warrant is required if a person having control of the place or thing to be searched gives his/her consent to the search. • The person who consents to a search must have the authority to grant consent. • This consent must, however, be voluntarily, freely and knowingly given. • The consent must not be coerced

  4. Analyze exceptions to the search warrant requirement. Explain when a valid consent search can be made and what can be searched. (cont.) • If the officer specifies the nature of the item to be searched, the scope of the consent will be limited to any area where there is a chance to find the targeted object.

  5. Analyze exceptions to the search warrant requirement. Explain when a valid consent search can be made and what can be searched. (cont.) • In consent search of vehicles, it is important that the officer end the original traffic stop before asking for consent. • The officer should then tell the subject that he/she is free to go and then try to obtain consent as part of a consensual encounter.

  6. Analyze exceptions to the search warrant requirement. • If the police wish to search a home and both co-owners are present (a husband and wife for example) both must consent. • However, if only one co-owner is present and they consent there is no obligation by the police to try to find the other co-owner to get their consent.

  7. Juvenile or adult suspect who lives with his/her parents, • Depending on the circumstances, a juvenile may have authority to consent to search their parents’ home but only to areas of mutual use. • If the suspect has his/her own bedroom, however, which is kept private and the parents respect this privacy, the suspect's have a reasonable expectation of privacy.

  8. What is the Carroll Doctrine? • The Carroll Doctrine:probable cause automobile search - you can look anywhere in the vehicle where there is a chance to find the evidence that you have probable cause for. • Whether the trunk can be searched or not is determined by the particular factual circumstances of the case. (NOT automatic)

  9. What is the Gant Doctrine? • Under the “Gant” rule, a police officer may perform a search incident arrest of the defendant’s vehicle if one of two factors is present: • The arrestee is within reaching distance of the vehicle’s passenger compartment at the time of the search. • The police have “reason to believe” that the vehicle contains evidence supporting the arrest.

  10. Analyze exceptions to the search warrant requirement. Describe the inventory exception to the warrant requirement. • An inventory of an automobile may be done if the automobile is legally impounded. • An inventory indicates that the items in the car are inventoried to protect the officer from claims of theft, to protect the automobile owner's property and to protect the integrity of the impound area. • An inventory authorizes an officer to go into all parts of the car, including the glove compartment or trunk.

  11. Analyze exceptions to the search warrant requirement. Describe the authority and limitations of a search incident to arrest as it relates to searches of persons, vehicles and residences. • Without a warrant, an officer may search a person incident to an arrest for any evidence. • if in a vehicle, a the area in reach of a suspect may be searched if they still pose a safety risk OR there is PC that there is evidence in the vehicle SUPPORTING THE ARREST.

  12. Seizing Blood w/o a Warrant • The Wisconsin Supreme Court has held that a search incident to an arrest can justify a warrantless seizure of the suspect's blood; provided the officer has a reasonable suspicion the blood contains useful evidence.

  13. Protective Sweep • If making an arrest in a home, in addition to a search incident to the arrest, the police may conduct a protective sweep for those areas of the home for which an officer has a reasonable suspicion a confederate may be lurking. • This sweep is limited in nature and must be specifically targeted to the finding of people. It is not to be used as a ruse for an investigatory search for evidence.

  14. Analyze exceptions to the search warrant requirement. Describe the authority and limitations of a search incident to arrest as it relates to searches of persons, vehicles and residences. (CONT.) • The police may conduct a search incident to an arrest in a home context of the area within the defendant’s lunge capability and when the police have reason to believe there is evidence to be found that supports the arrest. • In any arrest situation the police are entitled to search the person arrested. The limitations are only applicable for searches of the defendant’s lunge area.

  15. Analyze exceptions to the search warrant requirement. Describe the authority and scope of searches regarding electronic devices and cell phones. • An officer can NOT automatically search an electronic device or cell phone under a S.I.A. • Must have exigent circumstancesand probable cause • Placing the electronic device or cell phone in a shielded device such as a Faraday Bag may eliminate exigency and require a warrant.

  16. Can a search incident to arrest justification under “Gant” permit a warrantless search of a computer found at the arrest site? • NO. A search of a computer is too invasive and usually too time consuming to be justified by the search incident to arrest doctrine. • Typically computers are searched either pursuant to a warrant or through consent.

  17. How can a police officer make a lawful entry into a home? • With a search warrant • With valid consent • With probable cause and exigent circumstances • With probable cause and hot pursuit for a jailable offense • Under the community caretaker doctrine.

  18. What are exigent circumstances? Exigent circumstances are: 1) immediate fear of the destruction of evidence or 2) immediate fear of escape or 3) immediate fear of great bodily injury.

  19. Analyze exceptions to the search warrant requirement. Describe the authority to make a warrant-less entry to a residence based on exigent circumstances. • When in hot pursuit of a fleeing subject for whom the police have probable cause to believe has committed a jailable offense, an officer may enter a home without a warrant if he/she has probable cause to believe the subject is in the home. • This hot pursuit exception is limited to a jailable offense situation and to a chase scenario.

  20. Exigent Home Entry (cont.) • Warrantless entry into a home can NOT be justified in an underage drinking case as that is only a forfeiture matter.  • OWI 1st offense case which is just a forfeiture does NOT allow exigent circumstance entry into a home • Payton v. New York, 445 U.S. 573 (1980) the US Supreme Court said police can not make a warrantless entry into a home with just probable cause to arrest unless they have consent or exigent circumstances.

  21. Community Caretaker • However, if the cops see somebody in physical distress they could then enter but that would be a community caretaker or emergency exception as opposed to an exigent circumstance justification. • The emergency doctrine is typically linked to a person’s health and well being; it is not a doctrine motivated by investigatory concerns.

  22. What is the standard for a "community caretaker" intrusion by the police? • The police must be involved in a bona fide caretaking activity.  That is, the police activity must be divorced from any kind of investigatory objective and must be truly motivated by the need to render aid. • The public good must outweigh the intrusion on the individual's privacy.

  23. End II-A-7 Analyze exceptions to the search warrant requirement.

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