Disclaimer: This is not a lesson on how to hide contraband and get away with it! These laws are meant to PROTECT you from intrusions of privacy, not to ensure that you won’t get in trouble when searched. 4th Amendment Protects people from unreasonable searches and seizures by the government. Need Search Warrant (probable cause, oath, and description of place) HOWEVER not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law. Seems simple but search and seizure law is complex Terms to Know UNREASONABLE: Arbitrary; not guided by or based on good sense PROBABLE CAUSE: police has the facts that support the belief that the person in question broke the law In other words… police can’t search a home, car, or person without some kind of justification (usually a reasonable belief that they will find evidence of a crime there OR stop a crime in progress) Payton v. New York, 445 U.S. 573 (1980) How to determine an “Unreasonable Search?” FIRST STEP – DEFENSE ATTORNEY! Court looks at facts and circumstances of each case *IF unreasonable search determined, any evidence found in search cannot be used at the trial - CALLED EXCLUSIONARY RULE (3rd blank ) *not a “get out of trial” card Evidence seized cannot be used at trial First Question – Was there a search warrant? Def: a piece of paper from a judge that gives an officer permission to search a person or place Judge convinced that there is a REAL NEED to search - Officer has PROBABLE CAUSE - Officer must present UNDER OATH - NEUTRAL magistrate (no connection or overzealous to the case) State v. Freemont - Officer must SPECIFY what they are LOOKING FOR and WHERE they want to look Payton v. New York, 445 U.S. 573 (1980). Police like search warrants for drugs and/or small stolen items because they allow them to search EVERYWHERE because these thing could be hidden anywhere. So if they happen to find a stash of kiddie porn in a desk drawer it would be completely legal evidence to use in court Search Warrant Basics #1. Limited Time Period (avg 10 days) #2. Some States – only executed during the DAY #3. Location Does NOT necessarily authorize a general search of EVERYTHING in a specified place Scenario – not a search of everywhere If the police have the warrant to search a house for stolen 20” TVs or other larger items, it would be UNREASONABLE for them to look in desk drawers, envelopes, or other small places where a TV could not possibly be hidden What if they find something else (ex: drugs) while searching for the TVs? • If cop opens a closet and find drugs in there, it was a reasonable . place to search (a TV will fit in the closet). – The drugs can be used against the suspect • However, if cop opens a drawer where a TV could not fit, and finds drugs, it is inadmissible. Criminal Attorney’s Advice: Don’t Argue and Pay Attention • If the police show up at your door with a search warrant, let them in. • Stay calm. • Ask to see the warrant and read it carefully. • Watch them as they search your home and make sure they restrict the search to the area specified in the warrant. • Try to keep written notes about where the officers searched and what items they seized. • Don’t argue with them. • If they search in an area where they’re not supposed to or seize something not listed in the warrant, you can always challenge the search and seizure later if you’re charged with a crime. When videotaping police, take the following steps to ensure you're in the legal clear: Can I videotape the cops searching my house? YES Tell police you are recording them - the consent of all parties for you to record a conversation (PENNSYLVANIA) -rule does not apply to on-duty police If they ask WHAT ARE YOU DOING? – AVOID - “I’m recording you to make sure you’re doing your job right” or “I don’t trust you.” Instead - “Officer, I’m not interfering. I’m asserting my First Amendment rights” When videotaping police, take the following steps to ensure you're in the legal clear: Can I videotape the cops searching my house? YES Comply with their requests to step back or identify yourself - don’t physically interfere with their work Keep your camera out of the way - low and close to your body but in the open There are Search Warrant exceptions #1 Lawful arrest - most common exception Allows police to search a LAWFULLY arrested person and the area IMMEDIATELY around that person for hidden weapons or for evidence that might be destroyed Justin is arrested for being drunk and disorderly. When he is taken to the police station, he is searched and narcotics are found in his pocket. He may be arrested for possession. #1 Lawful arrest If arrested in house, officers allowed to search places where someone might jump out or where the arrestee might have a weapon. HIS/HER ENTIRE HOUSE may NOT be searched unless search warrant and arrest warrant Ex: The police arrest you in your living room on charges of murder. They may open the door of your coat closet to make sure that no one else is hiding there, but may not open your medicine cabinet because an accomplice could not hide there. #2 CONSENT When person VOLUNTARILY agrees to a search WITHOUT Probable Cause AND Search Warrant **A person may legally allow the police to conduct a search of another person’s property (Even child – common area – not locked bedroom) Davis v. United States, 328 U.S. 582 (1946) What about my landlord? NO – can’t consent to search UNLESS HAVE WARRANT or UNLESS IMMEDIATE ENTRY NEEDED (FIGHT, MARIJUANA) Staying in a Hotel? Nope Parents? YES College Roommate?– May not consent to bedroom but common area -ok #3 Plain View If object connected to crime is in PLAIN VIEW and can be seen by an officer from a place he/she HAS A RIGHT to be, it CAN BE SEIZED without a warrant Purse – NOT PLAIN VIEW Cop to search a bag, probable cause is needed - Can ask you – if you say yes – they can - if you say no – they can’t unless they arrest Maryland v. Macon, 472 U.S. 463 (1985).you (#1) Go back to TVs Scenario Cops can’t open drawer and charge you with drug possession HOWEVER if drawer was already open and there are drugs in it, then they are in "Plain View". The officer did not have to open the drawer and search it, so those items are admissible in court They will just go call the judge and have him fax or email an update to the warrant. (few minutes, to a few days) #4 Stop and Frisk If officer thinks a person is behaving suspiciously and is likely armed, he/she can be searched (pat down out clothes – cannot manipulate objects to feel what they are) Why allowed? *safety of officers and bystanders (injured by a person carrying a concealed weapon) Plain View Doctrine – if cop feels an object that is NOT a weapon but is immediately apparent to the cops as drugs, he can seize the drugs *Don’t need to give reason to suspect, only to a supervisor and/or judge later on (that he/she had a reason that he/she thought a crime had happened Terry v. Ohio, 392 U.S. 1 (1968) Minnesota v. Dickerson, 508 U.S. 366 (1993) Anyone heard of the Terry Stop? Real Case 1968 What is it? Def: a brief seizure of a person for the purpose of investigation - as part of this questionasking, officers are allowed to do a LIMITED frisk for their OWN SAFETY (to make sure the person to whom they are talking doesn’t have a weapon) Supreme Court Challenge Court said Terry Stop is brief and less intrusive than an arrest and full search – lower standard justified Reasons to stop someone: - Loitering and appears not to Depends on - # of fit the time and place officers present, # (looking for something) of suspects and size - Matches a “WANTED” poster - Acts strangely, or emotional, fearful, angry, intoxicated - Present at a crime scene - Running away DON’T Reasons to stop someone: AND - Present in a high-crime area (HOWEVER must be with something else) *Sam Wardlow Case Wardlow – 44 yr old black man - Standing on sidewalk in Chicago’s West Side (a high crime area) - He sees police officers - EVEN THOUGH HE WASN’T DOING ANYTHING WRONG… he started running away Police saw him running – chased him down Caught him – patted him down – found a handgun The fact that he was running in a high crime area gave them “reasonable suspicion” that he may have been doing something illegal ~ Illinois v. Wardlow #5 Emergency Situations when a crime is being committed (need probable cause) In certain emergencies searching a building after a telephoned bomb threat, entering a house after smelling smoke or hearing screams, and other situations where police doesn’t have time to get a warrant Hot Pursuit of a suspect – can enter a building that the suspect entered and can also seize evidence Officer Smith is walking past Mrs. Jones’ store when she rushes out screaming “Help, police!” She tells officer that she has been robbed by someone who had a gun, a red sweatshirt, and glasses. The person took the credit card machine with him along with a paper bag of the money from the cash register. The officer looks up and sees a man with the same description running and carrying a paper bag. The officer MAY arrest the man and use any objects on him as evidence against him. BUT if the officer does NOT see anyone and takes Mrs. Jones to the police station where she identifies the robber from a lineup, an arrest warrant is necessary before the officer goes to his house and arrests him . A search warrant is also necessary to search the suspects house for the stolen money and credit card machine. #6 Border/Airport Searches Customs agents are authorized to search without warrants and without probable cause - Baggage (including carry-on) - Person (metal detectors) - Purse and/or Wallet - Vehicles - Similar belongings entering country United States v. Montoya de Hernandez, 473 U.S. 531 (1985). #7 Public Place Law enforcement officials do not need a warrant to search a trash can that a homeowner sets out for collection in a publicly accessible area next to his house. No reasonable expectation of privacy for things that you make no definite attempt to keep private Also applies to conversations with wiretapped informants U.S. v. Redmon, No. 96-3361, 7th Cir., March 10, 1998. White (1971) Review: Legal or Illegal Search? Why? Police see James standing at a bus stop on a downtown street, in an area where there is extensive drug dealing. The officers ask James if they can look in his bag and he says yes. They open the bag and find drugs Legal Search CONSENT Review: Legal or Illegal Search? Why? After Tyler checks out of a hotel, the cops ask the manager to turn over the contents of the trash can, where they find notes planning a murder Legal Search – PUBLIC PLACE Review: Legal or Illegal Search? Why? Ray is seen shoplifting at the mall. Police chase him home and arrest him down the street from his house. They search the house without a awarrant and find a lot of stolen car stereos Illegal Search – NO SEARCH WARRANT #8 Special Needs Exceptions that do not fit into other categories. • These include probation and parole searches, school searches, searches of highly regulated businesses (such as firearms dealers, pawn shops, and junkyards), employment and educational drug screening, and the immediate search for “temporary" evidence (such as bloodalcohol content). #9 VEHICLE SEARCHES -Same rules apply (see bullet points) https://www.youtube.com/watch?v=eDJrQBwJpqk TRY HW SITUATIONS FOR TONIGHT STOP NOTES HERE FOR SPRING 2015 Search and Seizures, Due Process, and Public Schools • 4th Amendment- “unreasonable” searches and seizures – Privacy and making sure public schools don’t get overzealous in investigating violations • 5th Amendment – “Due Process” – School officials who plan to discipline a student must provide the alleged wrongdoer with 2 rights: (1) Schools CANNOT hold or punish without specific Information about the charges and the evidence behind it (2) A chance to tell his/her story (not elaborate – P. Office) Situations where 4th and 5th would likely apply: (1) Drug Testing students in extracurricular activities (2) Drug-sniffing dogs on campus (3) Locker searches and metal detectors (4) Backpacks, wallet, personal computer searches (5) Searching student’s car in parking lot (6) Pocket Searches BALANCE Between school safety and discipline versus student rights Criminal Standard Law enforcement – “probable cause” that a crime had been committed = presenting evidence to judge – obtain warrant – search private property School Standard “reasonable suspicion” – no warrant necessary Why different standard? AGE and VULNERABILITY of student population and need of school officials to look out for their health and safety PROTECT SCHOOL AND EDUCATIONAL PROCESS Is it against school policy ? Students’ Rights (1)If contraband items are in plain view – can be seized without probable cause, reasonable suspicion, or a warrant Students’ Rights (2) Lockers -expectancy of privacy – none -Why? Schools own lockers (policy) *control lockers NO NEED FOR REASONABLE INDIVIDUALIZED SUSPICION TO SEARCH LOCKERS The search may begin when: a drug dog indicates that there may be some contraband such as drugs in the locker, when a student reports concern of what another student may have in his locker, or when the administration calls for a random search. Students’ Rights (3) Purses and Book Bags NEED REASONABLE SUSPICION to search personal items New Jersey v. T.L.O. New Jersey v. T.L.O. • In 1980, a teacher at Piscataway High School in Middlesex County, New Jersey, found T.L.O. and another girl smoking in a restroom—a place that was by school rule a nonsmoking area. – – – The two girls were taken to the principal's office where T.L.O.'s companion admitted that she had been smoking in the restroom. T.L.O. denied smoking there. She denied that she smoked at all. An assistant vice-principal demanded to see T.L.O.'s purse. • • • Searching through it he found a pack of cigarettes. He also found rolling papers, a pipe, marijuana, a large wad of dollar bills, and two letters that indicated that T.L.O. was involved in marijuana dealing at the high school. T.L.O. was taken to the police station where she confessed that she had sold marijuana at the school. A juvenile court sentenced her to a year's probation. – – The State Supreme Court overturned the decision, stating that T.L.O.'s 4th Amendment rights had been violated. The State of New Jersey asked that the Supreme Court hear its appeal • The presence of rolling papers in the purse gave rise to a reasonable suspicion in the principal's mind that T.L.O. may have been carrying drugs, thus, justifying a more thorough search of the purse. Students’ Rights (4) Body Searches, Pat-downs, Pocket Searches Pat-downs – minimally intrusive Strip Searches – highly intrusive (require probable cause) Pocket Searches – Stern v. New Haven Community Schools *were lawful because school officials had reasonable suspicion or reasonable cause to believe that the student had contraband on him Let’s take a look at your What Do You think homework Students’ Rights (5) Canine Searches Non-intrusive since there is no expectation of privacy in the air around objects -only explore what is within “plain smell” Students’ Rights (6) Student Drug Testing Vernonia School District v. Acton In the mid-1980s, officials in the school district in Vernonia, noticed a rise in drug use among the students *Disciplinary problems arose in frequency and severity. *Student athletes were "the leaders of the drug culture" prevalent among Vernonia's students * School officials were concerned that drug use increases the risk sports-related injury. of All student athletes would be required to submit to the program as a condition of participating in athletics. *All athletes were tested at the beginning of the season *10% of the athletes were selected randomly every week to provide a urine sample. The samples were collected in a manner that preserved the students' modesty. If a student's sample tested positive, the student was given the option of either undergoing counseling and submitting to six weekly drug tests or sitting out the remainder of that season as well as the following season. James Acton, a student, was denied participation in his school's football program when he and his parents refused to consent to the testing Students’ Rights (6) Student Drug Testing con’t Vernonia School District v. Acton Supreme Court – agreed Student athletes – leaders of drug culture Since voluntary – themselves under rule Test’s purpose – NOT PUNISH BUT REMEDIATION and HEALTH Board of Education v. Earls Have right to impose random drug testing as a condition for students to participate in virtually any extracurricular activity Students’ Rights (7) Car Searches T.L.O. applied to Student vehicles searches by school officials parked on school property What does it all mean? • Issues of privacy, search and seizures, and due process rights can be highly charged and emotional COLLISION between Need to keep students safe and give them due process and the desire to let them learn and grow will continue Any Questions?