Search and Seizure
Terminal Learning Objective
• Action: Discuss search and
seizure law.
• Condition: Given a guided
classroom discussion.
• Standard: Discussed search and
seizure law.
Advanced Law Enforcement:
TERMS
Seizure
Detention
Arrest
Apprehension
Custody
Terry Stop
Traffic Stop
Seizure Standards
Consensual
No Seizure
Traffic Stop
Reasonable Suspicion
Terry Stop
Reasonable Suspicion
Apprehension
(Custody)
Probable Cause
Apprehension
• Civilian term = Arrest
• Military term = Apprehension
(Apprehension always = custody)
• ONLY SOLDIERS CAN BE
APPREHENDED!!
• Civilians are “Detained”
Custody
• Definition:
1.A formal arrest; or
2.A restraint on the freedom of movement of
the degree associated with a formal arrest.
• Objective Test:
– Would a reasonable person believe, given
all facts, that he/she is not free to leave?
• Subjective belief of officer or suspect is
irrelevant
Apprehension
(Putting Them In Custody)
What you NEED = Probable Cause to believe
that you have:
1. A UCMJ violation
2. A person subject to UCMJ who
committed the violation
(RCM 302 controls)
(PC = “fair probability, based
on ALL the circumstances”)
Probable Cause
You are the expert.
If you saw this, could you apprehend the owner?
Can knowing a VIN number give you PC?
Who Can Apprehend
1. MPs, while executing law enforcement duties
– No off duty authority!
2. ALL officers, warrant, petty & non-commissioned
– On or off-duty, (See Art. 7, UCMJ)
3. Investigators, guards, sentinels appointed by
proper authority and executing assigned duties
4. Federal law enforcement officers
5. For Deserters:
– Civilian police may arrest them
Apprehension
Special Notes
• If you apprehended an officer:
– Notify the Staff Duty ASAP
• R.C.M. 302(d)
– Give notice
– Use of Force
• Follow Your SOP!!
Use of Force
MP Authority Over Civilians
• Derived from inherent authority of
the installation commander.
– 18 U.S.C. section 1382, No
trespassing
• Civilians are “DETAINED”
– Turn over to civilian authorities
Where Can You Apprehend
• Persons subject to the UCMJ:
– ANYWHERE!!
– 24 / 7 = subject to UCMJ
• Persons NOT subject to UCMJ:
– ONLY on-post
– ONLY “detain”
Remember
• MP authority to apprehend is based on
“executing military duties”
• No authority to apprehend when off-duty
(Unless NCO, WO or Officer)
• Apprehend those subject
to UCMJ – otherwise “detain”
Review
• Your Questions?
• My questions:
– What rule governs apprehensions?
– Who gives you the authority to detain
civilians?
– What is required to apprehend?
– What can ruin a good apprehension?
Searches
US CONSTITUTION
4th Amendment
4th Amendment
“The right of the people to be secure in
their persons, houses, papers and effects
against UNREASONABLE searches and
seizures shall not be violated….”
The 4th Amendment Trigger
GOVERNMENT INTRUSION
EXPECTATION OF PRIVACY
G I + R E O P = 4th Amendment Trigger
4th Amendment
• General rules:
1. Nothing “unreasonable”
2. Warrant required!!!
• based probable cause
• oath / affirmation
• describing place / person to be searched /
seized
Probable Cause
• Reasonable belief
• that specific items or persons connected
with criminal activity
• are located in a specific place
or
on a person to be searched.
Your experience is everything!
Terry Stop
• REASONABLE SUSPICION that Criminal
Activity is “afoot.”
• Articulate the facts and
circumstances that lead you
to believe that a crime was,
is or will be committed.
Frisk
• Stop and MAYBE Frisk (not automatic!)
• Must have reasonable suspicion that person
stopped is presently armed and dangerous.
–
–
–
–
–
–
More than just general “officer safety.”
Nature of the crime?
Prior contacts?
Suspicious bulges?
Furtive movements?
Express threat: “I’ll kill you!”
Frisk
• Pat Down the outer clothing in areas where
weapons may be concealed and reached by
the suspect.
• Do not reach into pockets unless you are
retrieving a suspected weapon.
– BUT… Define weapons broadly!
• Screwdriver? Pencil? Personal Mace? Pocket knife?
• If it is not illegal to carry the “dangerous” item (i.e.. The
pencil or pen) hold onto the item during the investigation
and then return it when you are done.
Search Authorization
• Civilian World
– Judge
– Magistrate
• Military World
– Judge
– Magistrate
– Commander
Search Authorization
• Experience + Common Sense
– Need fresh facts
– From a reliable source
– No guess work / no rumor
– Indicating evidence of a crime
– Is located in the area to be searched
(expectation of privacy)
Search Authorization
Key Questions:
• How do you know?
– Saw
– Smelled
– Heard
– Tasted
• Why are you reliable?
• Why are you the expert?
• Talk to the ACTUAL witness
Search Authorizations
• COMMANDER  Neutral and Detached
– If he is involved in setting up the investigation – NO
– If he already has a position regarding the guilt or
innocence of a suspect – NO
– If he remains uninvolved in the details of the
investigation, remains calm, and appears “neutral and
detached” – OK
Search Authorization
Details on the paperwork:
• NO KNOCK Rule
– If justified - request it
• Day/Night Service - no distinction
– If you want night, request it (courtesy)
• Drug Dog = OK
– Tell directing official you will use one (courtesy)
• Computers
– Contact JAG ‘BEFORE’
Exceptions to the Warrant
Requirement
Search Incident To Apprehension
• PC required (PC to apprehend)
– Expectation of Privacy is diminished
• Apprehension of person
– Scope
• Apprehension in a car
– Scope
Vehicle Exception
•
•
•
•
From Incident to Apprehension to PC…
PC required
Scope = whole car
Vehicle must be
operable
Exigent Circumstances
• PC required
• Delay will cause loss / escape / harm
– Hot pursuit
– Destruction of evidence
– Life in danger
• Immediate action required
Consent
• Consent must be voluntary
– No coercion
• Authority to consent
• Scope of search
• Withdrawal of consent
Plain View Seizure
• I am in an area where I am authorized to be;
– No matter how crazy you got there
• I see something illegal
– Must be immediately
recognizable as contraband
or evidence of crime
• Seize it!
– If you can get to the
evidence legally
Inspections
• Incident of command
• Exam of all or part of unit
• Primary Purpose:
– properly equipped
– maintain readiness
– sanitation/cleanliness
– personnel fit/ready for duty
Inspections
• SUBTERFUGE is the pitfall
• If the Inspection is conducted with the
primary purpose of finding evidence for use
at trial, the evidence will be suppressed.
• Must be conducted for health and welfare
purpose; not for criminal investigation.
Inventory
• Purpose is NOT for criminal investigations.
• Purpose = administrative
• Requirements:
– Lawful impound
– Standard inventory SOP
– Inventory conducted IAW SOP
• Inventories should be tied to SOPs
– Routine is the key
Other Searches
• Abandoned property
– NO REOP; No 4th Amendment
• Foreign Searches
– 4th Amendment does not apply
– BUT, no gross or brutal maltreatment
• Private Search
– No GI; No 4th Amendment
Summary
• Government intrusion &
Expectation of privacy
• Search Authorization
• Search Incident to Apprehension
• Vehicle Exception
• Exigent Circumstances Exception
• Consent
• Plain View Exception
• Inspections and Inventories
Review
•
•
•
•
•
Your Questions?
What is generally required before you search?
Define probable cause.
Who can authorize a search on post?
When a commander authorizes a search, what
must he be? Can authorization be issued orally?
• Can commander delegate authority to search?
– What if CDR is gone long-term?
Review
• What are the two principles which implicate
the 4th Amendment?
• What is the difference between a Terry Stop
and “mere citizen contact?”
• What is the purpose of a health and welfare
inspection?
– Can the results be used as evidence?
• What is the purpose of an inventory?
– Can the results be used as evidence?
Review
• Where is there REOP?
– Computer?
– Prison?
– Garbage?
– “Curtilage?”
– Barracks?
– On a military post?
Review
You are called to the Commissary because the
manager suspects one of the employees, Jones, of
stealing food from the meat department. While you
interview other employees, the manager says that the
Jones was just caught on video tape carrying a box of
meat to his car behind the commissary. You check
out the area behind the commissary, and there is no
box of meat or any other evidence. You call the
Military Magistrate to get a Search Authorization to
search Jones’ car, but the magistrate is unavailable.
You learn the thief is about to leave post. You give
chase and catch Jones.
– Can you search the thief’s trunk? Why?
Review
Johnson comes in your office and says that Jones
raped her 2 months prior. She did not report because
she was afraid of him, and the system. She said that
she saved the clothes she wore that night without
washing. She said Jones wore a pair of dockers and
purple t-shirt with pictures of Prince on the front and
Apollonia on the back. You send her to get a rape kit
done and send her clothes to the lab. Then you go to
magistrate to get an SA to: (1) take Jones’ DNA
sample; (2) take Jones’ hair sample; (3) search for
Jones’ t-shirt; (4) search for Jones’ dockers.
– What will magistrate approve? Why?
Review
You get an SA to search on-post quarters of SSG
Jones and his family. You are looking for a laptop
computer (no discs or peripheral hardware – just the
laptop). You are executing the SA and you enter a
closet. There are 2 shelves mounted to the wall, one
at 6 feet and one at 7 feet. The higher shelf is too
high to see, so you run your hand along the shelf to
feel if there is anything on the shelf. You feel a small
box and as you move your hand, the box falls to the
floor. The box pops open and a white powder fills the
air. You taste the powder and believe it to be
cocaine.
– Will the cocaine be admissible? Why?
Review
Drunk driver is apprehended. MP wants to search a
locked briefcase in the back seat of the car.
– Can he? Why?
MP now wants to search the trunk.
– Can he? Why?
Later MP wants to search the dumpster behind
the DUI soldier’s barracks.
– Can he? Why?
Review
You see a red mustang parked at the post theater.
You know from your experiences back home that red
mustangs are commonly driven by drug dealers. You
observe two people standing around the red
mustang, but nothing has changed hands. It is about
1700, and the theater is open for business. You
believe their activity is suspicious and decide to
apprehend.
– Is the apprehension good? Why?
Review
You are driving on duty and see a car whose driver
appears to be impaired – frequent lane changes,
speed changes, inability to drive within the lane. You
pull over and when the driver opens the window, you
see red eyes and the driver is lethargic. You are not
a professional at knowing what drunk/stoned people
look like, but you ask the driver if you can search his
car. He says he doesn’t care because the car is not
his – he just borrowed it. You search and find a joint
in the ashtray.
– Was the search lawful? Why?
Review
Soldier in barracks goes into neighboring room,
without permission, because he thinks neighbor
stole his Play Station 2. He finds the PS2 in his
neighbor’s wall locker after prying the door
open.
– Will the PS2 be admissible against neighbor?
Why?
Review
You walk up to a soldier in your unit while he is at
the bowling alley in civilian clothes. As you
approach, you see the soldier sneakily pull his
hand out of his pocket and drop a small bag to
the ground and then step in front of the bag so as
to hide it from your view.
– Can you pick up the bag to be used as evidence?
– Will it be admissible in court?
Review
You are the commander of a unit that has a drug
problem. One of your soldiers, PFC Jones, is in ASAP
because he had come up hot for marijuana. Since then
he has been working hard to overcome his mistakes
and has regularly ratted out his former buddies. Jones’
information has been completely accurate so far.
Today Jones comes in your office and tells you that he
can buy MJ from one of your soldiers. You decide to let
him do it so that you can break this drug problem once
and for all. You and Jones count out $50