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 Traffic Stop Terry Stop Apprehension (Custody) No Seizure Reasonable Suspicion 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 = 4 th 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: Ill 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 K ey 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 Authority to consent Scope of search Withdrawal of consent Consent must be voluntary No coercion 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 4 th Amendment Foreign Searches 4 th Amendment does not apply BUT, no gross or brutal maltreatment Private Search No GI; No 4 th 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 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 4 th 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? 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 thiefs 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 soldiers 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 doesnt 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 neighbors 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