The Search & Seizure Show: Recent Episodes
Anthony Bandiero
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Have a search and seizure question in mind? Submit them for instructors to answer or join the next Search & Seizure show and get your questions answered LIVE ON AIR. π¨ https://www.bluetogold.com/show https://bluetogold.com/trainings/?attendance=webinar
Search & Seizure Show | Volume VIII | July 09, 2024 Have a search and seizure question in mind? Submit them for instructors to answer or join the next Search & Seizure show and get your questions answered LIVE ON AIR. π¨ https://www.bluetogold.com/show https://bluetogold.com/trainings/?attendance=webinar
Search & Seizure Show | Volume VII | June 19, 2024 Have a search and seizure question in mind? Submit them for instructors to answer or join the next Search & Seizure show and get your questions answered LIVE ON AIR. π¨ https://www.bluetogold.com/show https://bluetogold.com/trainings/?attendance=webinar
The following is a computer-generated transcription, some grammar and spelling errors may be inherent
Hey guys, welcome to another roadside chat. My name is Anthony Bandiero. I'm an attorney and senior legal instructor for Blue to Gold enforcement training. And let's get right into it. So this question came from an officer from New Jersey. And the hypothetical goes something like this patrol was notified of a suspicious person and vehicle, they found a male under the influence of heroin, located right outside the vehicle, a semi conscious female was under the influence of heroin in the passenger seat. So the mail tells the cops that there is heroin crack, and a handgun in the vehicle. So the cops then search the passing department, they find those things. So the mail wasn't lying, there was drugs and gun a gun in the vehicle, then the cops asked for consent to search the trunk. The male denies consent.
So the question is, is can police search the trunk on the motor vehicle exception? And the answer is going to be most likely? Yes. Here's why. First, do you think under these facts, right, a judge would give you a warrant for the car for the trunk? And I think the answer is yes, there's multiple drugs found in the car. And the actually says, There was heroin folds in the in the car, which is indicative of selling and so forth, right trafficking, there's a gun in the car, again, indicative of trafficking.
Dealers use weapons for self help, they can't call 911 When they get robbed, right. So they have to resort to their own self help. So it seems to me that he may be involved in in dealing, and where would more evidence be of that crime, it's certainly in the trunk, maybe even the engine compartment. Dealers are known to just keep a small supply in the passenger apartment. But the big stuff is, you know, in the trunk and an engine compartment, it could be in the airbox under the manifold cover in a fuse box, in a box and so forth. So that's really what it comes down to me. If the officers do feel confident that they have the facts and circumstances that would lead a neutral and detached judge to issue a warrant for that trunk, then it's searchable under the motor vehicle exemption.
If the cop does not feel confident, and does not have any facts or circumstances about why he believes that there's more evidence in the truck, then don't search it. Right. But if you do, then that's the quintessential motor vehicle exception search. I hope this helps. Thanks for your questions help to move the ball forward. Please join me for my live webinars on Demand training and of course, the in person training that we're doing around the country. Until next time, stay safe
The following is a computer-generated transcription, some grammar and spelling errors may be inherent
Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training, giving you another roadside chat. Alright, so this question comes from an officer in Kansas, and the officer asked this. So the situation was several officers stopped out with young kids that were suspected of throwing rocks from an overpass onto a car. And the officers noticed that they had cell phones, and they asked for consent to search the cell phone for evidence of them, you know, throwing rocks and so forth, they reasonably believe that if they were up to no good, they would be recording it. So a,
the kids were 1112 13, and 12. So four kids total, and a couple of my believe, offered their cell phones to be viewed and the videos looked at and so forth. So the officers got consent from the kids. They looked at the videos, they did not see anything illegal. They gave the phones back and the kids were released. Well, what happens later, mom calls, right, one of the kids mom's calls and says, You have no right to search my kids cell phone without my permission. My son cannot give you permission. That's my cell phone, I pay for it. And the officer asks, well, did my you know these officers mess up?
And the answer is no.
It is.
It is legally possible for a juvenile to consent to search. So what are the requirements of consent to search? Well, it has to be free and voluntary. In other words, the person gave consent to search freely on his or her own will. And it was voluntary. In other words, there was no
gun to the kit to the person's head, right. So that's free and voluntary. Also, the requirement is that the person has to have authority to give consent over the things searched.
These factors are judged based on a totality of the circumstances, a totality of circumstances, the whole thing comes into all the facts come into play.
And then finally, the prosecutor the burden of proof is preponderance of the evidence. That is how much proof you need to prove to the court that you had free voluntary consent. So free and voluntary consent.
The person giving consent has the authority.
And based off to the totality of circumstances, can the prosecutor prove by a preponderance of the evidence more likely than not that the consent was free, you know that those factors are met? Well, let's look at it here. Okay. So first of all, courts do not have an age cutoff. There are plenty of cases out there where juveniles are consenting to search.
The juvenile has authority over the phone, the juvenile is a user of the phone, the mom can also give consent, but they do not need to track down mom, they can get consent from somebody else who can give it the officer who shared the story said that there was no threats. There was no you know, it was it was just very calm and cordial and asked the kids to kind of prove that there weren't anything by showing the videos. So there is no threats, there is no harassment.
And this is there is no facts given to me at least, that would show that the cops cannot prove that the kids the kid gave free and voluntary consent. Mom's consent is not required.
They can get it if they want, but it's not required. So based off of this question, we are good to go. This is a valid consent. And if the officers would have found evidence on the phone, not only would we be good, but the officer presents convinced sees the phone as evidence to be used at trial.
There you go. Keep your questions coming. I can't answer all the questions, but ones that I believe other officers like know the answer, I will share them on this YouTube format. Until next time, stay safe
The following is a computer-generated transcription, some grammar and spelling errors may be inherent
Hey guys, it's Anthony Bandiero, here, Senior Legal instructor at Blue to Gold law enforcement training. And today's question is, what evidence can I use from a private search? Well, the short answer is all of it. And here is why a private search is when a person searches or ceases something and there's no government involvement. Now, the general rule is, is that if there is no government involvement, you can use any evidence that they obtained period in the story, even if what they did, would have been completely prohibited if you did it. So what does it mean for a private person to be, you know, to be converted into a government agent, we are looking for things like the officer encouraged the person to do it, they directed or ordered them to do it, or they participated in the in the search, right? When you have those things in play, you have just made that private person, a government agent, and that now everybody has to play by the fourth minute rules. But the other the reverse side of that coin is also true. If the private person is not involved with law enforcement, and they're not being encouraged, directed, ordered. And they're not, you know, in law enforcement officers not participating in it, you can use any evidence they bring you, even if it would have offended the Fourth Amendment. Let me give you a couple examples. Security personnel, detain somebody because they were counting cards, and it was against house rules, right. So they brought the person back to the casino security office, they then opened up this guy's backpack and found drugs. Now they're not going to arrest this person, they were just going to trespass them. So what we have is a detention by a private security officer, and those is going to trespass them. Now they call police that the officers showed up, saw the drugs, right, that was obtained from the backpack. And the question is, can the officer use those drugs? In a case? Can I use it as evidence and answers? Absolutely, yes, no problem. Because even if the officer may have not been able to do the exact same thing, if he or she was on scene, for example, trespassing, somebody would not allow you to go right into their backpack. But it didn't happen with police involvement. Right. So we have another case, where a FedEx employee was really on the hunt for drugs being concealed in FedEx shipping packages. And he apparently, maybe even violated some FedEx rules, by searching boxes and so forth that he thought was contraband. And, in fact, he made, he was behind eight cases for the DEA.
The following is a computer-generated transcription, some grammar and spelling errors may be inherent
Hey guys, it's Anthony Bandiero here with blue to gold Law Enforcement Training bring you another roadside chat. This question is is can you look inside a woman's purse, or a man's backpack during a pat down?
The answer is maybe. So here's, here's how this works. So we know that pat downs are, you know, an overall minimally intrusive way to protect yourself from weapons and blunt objects during a Terry stop. And if you have reason to believe that the person is either armed or dangerous, you can pat the person down for weapons. As far as
purses and backpacks go, if you can also articulate that you believe that the weapon could be in there, then what the courts want to see is that you start from the outside and only go into the container, the backpack or purse, if you cannot effectively pat the item down from the outside. So literally, what I would like to see in your reports, if you are doing this on a purse, for example, is that, you know, you articulate that the purse is thick sided, it's not conducive to a pat down, therefore, you opened it up, and only did those things necessary to find a weapon, blunt object, knife, and so forth. You know, again, you're not looking for evidence. Now, if you see evidence, in plain view, it is going to come in, but the courts do want, especially when you're doing something a little bit non traditional as looking inside containers, they're gonna want to make sure that you're on the up and up, and not using this as a as a, as a ruse to get into people's, you know, backpacks, and so forth. So that's the rule you if they have access, and also that they have access to it, right. So typically, when people are detained, they,
you know, either they can be handcuffed or not, but usually they still have, or will have access to those places. So if you stop somebody for potentially being involved in an armed robbery, and you pat that person down, and they're carrying a backpack, you know, most cops are probably going to pat down the backpack as well, because that's where the gun would be right? If they if you have
evidence that they actually use a firearm, while if you've Terry stop them, they probably have a firearm on them somewhere. And if it's not on there person, it's likely in that backpack. So start from the outside, if you can effectively do that, you unzip it, and just look for the gun, and then you secure the gun and you go from there. That's the rule on containers associated with pat downs. I hope this helps. Again, you gotta do me a favor, you got to subscribe. And like that gives me the feedback that I need. Also, if you want legal updates, go to my website, blue to gold calm and you'll see you know, sign up for legal updates. And don't forget the live training, right? This is just a small piece of it. I'm going to give you a small piece of go to bluetogold.com, look at a training calendar and see if there's a class that you can attend online or in person. You want to see the whole shebang right I do this I do three days of search and seizure training, which makes cops experts in the law. Until next time, stay safe.
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Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training, giving you another roadside chat. Today's question is one that I get all the time around the country. And it's, it's important. So let's go through, can you get consent to search a home from a spouse, even if the non consenting spouse has left?
Okay, so the answer is yes, you can, you can use that consent, even if the person who is non consenting, let's say, let's say the wife will allow you to search the home, but the husband is like, no way you can not search the house. And he tells you, you know, that, that, that my lack of consent is good for the next two years, right. And then he goes to the store, he goes to work, he gets arrested. And the question is, can we now go back to the wife and ask her for her consent, even though we know that her husband has already said no? And the answer is? Absolutely, yes.
Here's why.
When a spouse leaves the property, for a lawful reason, for example, they get arrested. And that arrest was not done to remove them from the you know, from the environment, but done for lawful reason, domestic warrants, whatever, or they go to the store to get a six pack of beer, they are taking the risk, that the person that they leave behind will betray their trust.
All law enforcement officers need to conduct a consensual search on a house, apartment, whatever is valid consent from someone with a parent authority. And
a non consenting spouse or roommates is not present at the time of the search. That's what it is. That's the rule. This comes from a Supreme Court case called California vs. Fernandez. Now many officers are thinking about a case called Georgia versus Randolph, where the non consenting husband was on scene and says you cannot search my house, the wife said yes, husband said no, the police searched anyway. Well, we know the result of that case, you can't do it. But if the husband is going to leave his drugs, his illegal guns and whatever at the
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Hey guys, it's Anthony Bandiero here with blue to go Law Enforcement Training. This week I'm in Independence, Missouri, doing advanced search and seizure. If you're interested in this training, and you want me to come to your agency, shoot me an email on blue to gold.com
Alright. Today's question is, when is Miranda required during a detention? So first of all, this is a little bit of a pet peeve of mine, because when I go around the country, many officers tell me that Miranda is required when the person is not free to leave. They were taught this. But unfortunately, it's bad training.
And oftentimes, it's the lawyers that are training them to say this, that is not the legal standard, being not free to leave, is a detention. But we know that during the tensions, Miranda is not required. For example, during a DUI investigation, how many times have you read Miranda, to a DUI suspect during fsts? Almost never, because it's a detention and you're you're in the investigative phase. But yet the person is not free to leave. Certainly, if the person turned around and started walking away, you would detain them and probably arrest them for obstruction and so forth. And in addressing for the product DUI as well. But my point is, is they are not free to leave. So but Miranda is not required. Instead, officers need to articulate that it's that Miranda is required, when there's actually three components, one arrest like custody, not free to leave arrest, like custody, number two eminence interrogation. So for example, if you arrest somebody, and put them back in a police car, and you're going to question them at the station, what Miranda is not required at this point, because you're not interrogating him, you're not asking him questions that are reasonably likely to elicit a incriminating response. You can wait for the Miranda until you get to the stage or you can read it on scene, and you will, there it's not going to expire that soon. And finally, the third requirement is known officer.
This makes sense. Because if you have a suspect that is in jail, pre assignment of a lawyer, right, that's when the Sixth Amendment kicks in. But you have somebody in a holding cell a pre arraignment, the 48 hour holds whatever you know, your state does. And you insert an undercover agent into that jail cell and that person
confesses that is valid that can be used against them.
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Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training. And today I'm bringing another roadside chat from Studio.
Today's question is, what is a cat out of bag search? So this ties in with another video that I made about private searches. Just to remind you a private search is not a Fourth Amendment search. It does not have to be reasonable. We don't care if it would offend the Fourth Amendment. If you know if you did it, if the police are not involved in it, and they didn't encourage it. It's not a fourth research period, you can use the evidence. Now let's talk about this related issue, which is, what if somebody sees something right from a private area? Like say for example, they bring you a backpack from the from a roommates bedroom, right? And they say, look, there's drugs in here.
There is a doctrine out there called cat out of the back search and allows officers to conduct the same private search that the private person did without offending the Fourth Amendment.
So let's kind of dive a little dive into this and explain what's going on here. So let's walk through this. So imagine a roommate suspects that their that their fellow occupant is selling drugs. One day, they go into the occupants bedroom, snooped around and open up drawers and look in closets and look into a backpack. And lo and behold, they find two ounces of methamphetamine,
shocked and pissed off, because their roommate is, you know, is they confirm what they are doing. They bring the backpack to you at the police station.
The legal question is, what can you do with that backpack? And the answer is the exact same thing the private person did before they entered the police station. That means that if an officer unzipped the backpack, and looked inside and saw those two ounces of methamphetamine, that officer could seize that meth as plain view. And here's why the cat is out of the bag. In other words, the private person, the actual defendant in this case, has lost his reasonable expectation of privacy as to what is in the backpack? Think about him? Is it reasonable for a person to have this private search conducted by their roommate or talk about the defendants point of view, and their roommate found the drugs and and brings it to the inn brings it to the police station? And that roommate says, hey, look, I know what's in here. You know, there's, there's this substance that looks just like, you know, like narcotics is the way it's packaged. And maybe they have personal experience with it. But my point is, you know, there is probable cause that there's evidence in this bag. It's not reasonable anymore, that the defendant has privacy as to those contents. I mean, it just doesn't make any sense. But the Supreme Court said in a case called Jacobson, the cat is out of the bag, we know what's in it. Therefore, the police can do the exact same search.
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Hey guys, it's Anthony Bandiero here with political law enforcement training. Today's question is, can you run a drunk canine in a motel parking lot? The short answer is yes, you can. And here's why. A person that staying at a hotel does not usually have any reasonable expectation of privacy in the parking lot. Think about it, you go stay at the Hilton, the Motel Six, whatever, you certainly have a reasonable section of privacy in your hotel room. But the but the parking lot, why would you have no exclusive right of access. Other people are, you know, entering the parking lot. It's usually these are not gated. But even if they are gated, they're not just for you, you know, they're for anybody who has access to the hotel. So, generally speaking, there is no privacy interest there. Therefore, the dog is lawfully present if the dog is lawfully present, that is the definition of a free air sniff, a dog can be run around a vehicle, I would not touch the vehicle on purpose. That is another issue involving that may be a search in the Fourth Amendment. I have other videos that address that issue. But as long as the dog is lawfully present, there is no constitutional search occurring. Therefore, when the dog alerts to the presence of contraband, now you have probable cause that can allow you to either a go get a search warrant, or be it under the Fourth Amendment, you can search that car under the motor vehicle exception, even though there's not somebody present in the vehicle, as long as police have lawful access to the vehicle, plus probable cause, and the vehicle appears mobile that it can it does drive, it does move, even if you don't have the keys, that is a motor vehicle exception. And there you have it. So keep these questions coming. Also, please hit subscribe. Follow me on Facebook. Let's get these conversations going. Let's clear up all these confusions that cops have under the Fourth Amendment and the Fifth Amendment. Until next time, stay safe
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Hey guys, it's Anthony Bandiero Here, Senior Legal instructor at Blue to Gold law enforcement training. And today's legal question is, what is a cause of injury search? Before I dive into what that is, don't forget to hit subscribe, follow me on Facebook, it's gonna be a great resource for you to get information and share tactics and so forth, your fellow officers, alright, a cause of injury search is when officers arrive at a medical scene. And they search the person's belongings for things that can help explain while the why the person is in medical distress. And oftentimes, these cases are about discovering evidence in plain view. So this is an exception to the fourth member crime, right? So you arrive on scene, it's a call is a man down, let's say it's in their home, and fires their you know, medical is there, the ambulance there, and you walk into, you know, provide coverage and support for the situation. Maybe it's a drug den, and so forth. Maybe it's you've had calls there previously. So you want to make sure the other first responders are safe. And while you're in there, you see a backpack next to the to the person, let's say the person is apparently odd, and you open up the backpack, and you find a gun, you find, you know, a drug evidence, you find maybe some fraudulent credit cards, now we're going to have a fight in court in the defendants argument is, you should have never went into my backpack. And your response would most likely be I had a right to do it as the core cause of injury, I'm looking to help you. I'm looking for reason for the overdose. I'm looking for medical alert bracelets, maybe even you know Id because that can also help provide care for the person, maybe the their refreshes in the system, they've they've had medical care before, and there's past notes about allergies and so forth. That's really why you're doing this. Now, as far as the mental mindset goes, by the way, we don't really care what you're thinking personally inside. I mean, certainly, many cops are going to have a hunch at the least that they might find other evidence in plain view. But as long as you were objectively reasonable, we don't care about your mental mindset. Now. Once what does that cause of injury search end? It ends when the necessity for terminates, you know, so for example, if the person is not overdose, but is in diabetic shock, and now, medical tells you hey, look, we're good. Like we know what this person is what's going on with this person or they start becoming you know, they're revived, then it doesn't seem with those facts that I gave you that there is still a need to keep looking for a cause of injury. So that's what it ends. Now, one other note on this is what about the evidence? in plain view, many states have immunity laws for drugs in plain view? Well, certainly, if your state gives immunity to people who have overdosed, and that's not going to be used for evidence, but what about the gun? And what about the fraudulent credit cards? You know, certainly those things are not protected by most immunity laws. So those things would come in as plain view evidence. I hope this helps keep the questions coming. And until next time, stay safe. When it comes
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Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training, bring it to the roadside chat from the studio since travel restrictions are in place. Alright. Today's question is, is can officers search a locked container during a vehicle inventory search? And before I give you the answer, I just want to remind my viewers to please hit subscribe, please visit me on YouTube and Twitter and get connected with me because what my goal is, I want to make the largest law enforcement community for getting answers and sharing tactics, getting legal, you know, answers and so forth. That's my goal, because I want to train all law enforcement officers in this vital information. And I want to work to, I want to help us all work together to share best practices. Alright, let's dive right in. If you have a policy that allows you to go into law containers and the answers you can, so that's really the answer. Courts want you to conduct vehicle inventory searches, and they are searches I subconsciously anthony They're not really searches. We're not supposed to call them searches. They are searches. They're just inventory searches. And that searches for evidence. Anyway, as long as your policy says it, you know, that is the kind of that's the kind of thing that courts are looking for, because they courts want to either reduce or eliminate officer discretion when conducting a vehicle inventory search, because they do not want them to be a, you know, wholesale rummaging for evidence, they want them to be legit. They want to be in good faith. You know, why do you get to inventory search a car, to protect somebody's property, to protect your agency from false claims, and to also secure dangerous items. That's why these are not supposed to be, hey, let's get into that car through an inventory search type of mentality. So policies now coming in two flavors, written and Customs and Practice. Ideally, if you want to keep your agency out of suppression hearings, and so forth, your policy should allow you too, to inventory locked containers. If you have access to them with a key or the person gives you a combination and so forth. I do not recommend that you break open closed containers or lock containers during inventory search. Because if you do it, if you do not do it on all cars, but just doing uncertain cars, what the defense attorney is going to likely say is, Why are you breaking my client's property? You know, it just doesn't, it doesn't sound reasonable.
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Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training. And I'm in Scotch Plains, New Jersey delivering a fantastic advanced search and seizure class to some great officers. And I want to give you take this opportunity, give you some advice. Okay? The advice is this. When it comes to pat downs, it's armed or dangerous, not armed and dangerous. And here's what I mean. In the seminal case of Terry versus Ohio, the US Supreme Court talked about, you know, Officer Martin McFadden with the Cleveland Police Department, you know, patrolling Euclid Avenue for something like 38 years on the job and most of them as a plainclothes officer. And he sees Terry and his friends going back and forth in front of stores and things that they're up to something about to commit an armed robbery. And he Pat's him down and finds two, revolvers Ontarian in a cohort. And the Supreme Court said that if the officer can articulate that the person is armed and dangerous, they can do the pat down will certainly McFadden had reasonable suspicion that Terry and his friends were on dangerous because there but the hold up the store. But I wish they didn't use that phrase. That phrase comes from Old Hollywood, you know, be on the lookout for a suspect who is considered armed and dangerous. But what they should have said, and it would have given a lot more guidance to hard working police officers out there that want to go home at night, is it's not armed and dangerous. It's armed or dangerous. We got to get out of our mind is armed and dangerous. Because here's what happens. Officers are sometimes not patting down people, because they consider them dangerous. But they have no articulation that they're also armed. That is not what courts look for. They routinely look for armed, are they armed? Do they have the bolts consistent with the weapon? Are they favoring one side, you know, on their waist area? You know, are they walking in with a certain gate? That seems like they have a concealed carry and so forth? Are they visibly armed, you can certainly disarm people during a lawful detention or probable cause traffic stop for your safety, even if they're lawfully carrying, if you believe that this would help your safety that is, that is easy for the courts. I mean, a person with a gun can instantly become dangerous.
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Hey guys, it's Anthony Bandiero here with blue to go Law Enforcement Training. I'm in Martin County, Florida teaching advanced search and seizure having a great time out here. And the question I got was, Can officers lie during a knock and talk? And the answer is, yes, certainly officers are not, you know, required to share all their inner secrets about an investigation with an occupant. So that's not a problem. You know, courts have upheld, you know, deception during investigations for centuries. But I want to transition to another related question. And that is, Can officers lie, to get into a home to, you know, see evidence and so forth. And the general rule for known officers, these are, you know, these are not undercover officers. These are known officers, that the documents know that they're dealing with the police. The general rule is that officers should not lie about their primary purpose about coming into the home. Let me give you some examples. And an infamous case, officers told the occupants that there was a bomb planted somewhere in the building, right? That's, that's they got a bomb threat, and they want to look for it. What the cops were really after was plain view evidence of drugs. Well, they get into the apartment to look for the bomb, they find no drug evidence, and we go from there. The court easily suppress that evidence, no rational person would say no to the police. After hearing that there's a bomb somewhere in the building. Let me give another example. Officers were investigating disability fraud. The occupant was suspected of being highly mobile, and he's lying about his disability and so forth. They wanted to catch them on camera inside his home moving around with no issues. They told him that he was the victim of identity theft. This was a lie, he there was no evidence of him being the victim of an ID theft. Based off this, though, they won't take a report, the occupant invites him in, and they secretly record him moving around and so forth and use that against him in his disability disability fraud case, that was suppressed, because the primary purpose was a lie, that we're not there for fraud. Compare that to these two cases. cops told the suspect that they were following up on a two year old burglary that he reported. Okay, so the he was the victim of the Burgh. But that was a lie. The case was closed, there was no leads, and so forth. What they were really after was child porn evidence. They want to see if there's something in plain view. So they told him this and they wanted to talk to him further inside the home. So the occupant of Vida men, they're acting like they're taking more information about stuff that was stolen, all the while they're looking around the home looking for the, you know, plain view evidence that was suppressed, the primary purpose was a lie, there was no investigation. But compare it to this case, officers were investigating a burglary. And the occupant was the target. They were hoping to get into the home to see if there was plain view evidence of the property stolen. Now, when they went to his house, they said, Look, we're rescuing a Burg. And he asked him I suspect and the cops lied and says, No, you're not. Okay. He says, Come on in. And while they're taking the report, and so forth, and asking him questions, they see plain view evidence that was upheld as constitutional, because the primary purpose was not a lie. They were there for the burglary. But the secondary purpose, of course, was also to see if they saw plain view evidence. So this is just about telling somebody why you're there. Remember, though, is if you do not, if you remain silent about why you're there, and you're like,
Hey guys, it's Anthony Bandiero here with Blue to gold Law Enforcement Training. I'm in Scotch Plains New Jersey teaching advanced search and seizure. And I'm going to answer a question today that I know a lot of you have on your mind. Can you search a vehicles passenger for marijuana? And the answer is, probably, but I have to go into some, you know, legal reasoning here because the answer is really not that clear. In some regards, this video is probably going to be more than average, I try to keep my videos all under five minutes, this one is probably going to go a little longer. But let me dive right into it. Here's what the Supreme Court has told us about passengers. There's two key cases I want you to know about. Before we dive into a little more discussion about the marijuana issue. One, back in the 1940s, the US Supreme Court said that if you have probable cause for the vehicle, right, that there's something in a vehicle, it doesn't give you automatic right? To search passengers, you have to have a Nexus that just makes sense. If you pull over a vehicle, and let's say it's Uber, and you find drugs on the Uber driver, certainly that would not give you probable cause in and of itself to search some passenger who does not know that Uber driver. The other case, happened 1970s. And what happened there is the officer gave the driver a citation for speeding, and then did a search incident to arrest. Well, the logic here and I do hear cops, you know, saying this, and they're kind of taught this way is that a citation is in lieu of arrest you have you heard that before? Right? It's like, I'm not, I'm kind of like a rescue, but you're going to be free to go. That's an old school language from some court cases, quite frankly, I don't teach it because I see no value in it. If you have even if you have an arrestable offense, let's say a suspended license, and your state allows you to arrest somebody for a suspended license, but you're just going to cite and release them, you get none of the benefits of an arrest, you get no search, you have to be diligent in your time, and so forth. So there's no value in saying it's Aluma. Rest, from our perspective, from the law enforcement, or maybe academically, it's, it's, it's in lieu of arrest, let the prosecutors enjoy that doctrine, if it gives them anything, but for you, it gives you nothing new, they're having arrest or you don't, if you don't have an arrest, it's treated like a Terry stop, even though you're citing the person. All right, now let's move into the marijuana discussion. If you have probable cause, that a passenger has drugs on them, like marijuana, and you are not intending to arrest, that's where the problem comes in. When you do a search of somebody person, and it's not for weapons, that is arrest, like, in other words, if if you have a passenger probably cause that they have drugs in their pocket, you go right into the pocket and pull out the drugs. That type of action is arrest like meaning it needs to be supported by probable cause. And you probably technically arrested them, even though they may not go to jail that day. That is actually not a big deal. The fact that they don't go to jail, but still you have, you know, essentially did a search incident to arrest. That's the only exception. We do not have an exception at the Supreme Court level that says if you have probable cause that somebody has evidence on their person that in and of itself allows you to search the person, you know, for example, you have probable cause that somebody has drugs in their backpack and they're walking down the street. Do you have automatic authority to stop the person and search the backpack? Under some recognized exception of search one requirement?
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Hey guys, it's Anthony Bandiero here with Blue to gold Law Enforcement Training. I'm in Scotch Plains New Jersey teaching advanced search and seizure. And I'm going to answer a question today that I know a lot of you have on your mind. Can you search a vehicles passenger for marijuana? And the answer is, probably, but I have to go into some, you know, legal reasoning here because the answer is really not that clear. In some regards, this video is probably going to be more than average, I try to keep my videos all under five minutes, this one is probably going to go a little longer. But let me dive right into it. Here's what the Supreme Court has told us about passengers. There's two key cases I want you to know about. Before we dive into a little more discussion about the marijuana issue. One, back in the 1940s, the US Supreme Court said that if you have probable cause for the vehicle, right, that there's something in a vehicle, it doesn't give you automatic right? To search passengers, you have to have a Nexus that just makes sense. If you pull over a vehicle, and let's say it's Uber, and you find drugs on the Uber driver, certainly that would not give you probable cause in and of itself to search some passenger who does not know that Uber driver. The other case, happened 1970s. And what happened there is the officer gave the driver a citation for speeding, and then did a search incident to arrest. Well, the logic here and I do hear cops, you know, saying this, and they're kind of taught this way is that a citation is in lieu of arrest you have you heard that before? Right? It's like, I'm not, I'm kind of like a rescue, but you're going to be free to go. That's an old school language from some court cases, quite frankly, I don't teach it because I see no value in it. If you have even if you have an arrestable offense, let's say a suspended license, and your state allows you to arrest somebody for a suspended license, but you're just going to cite and release them, you get none of the benefits of an arrest, you get no search, you have to be diligent in your time, and so forth. So there's no value in saying it's Aluma. Rest, from our perspective, from the law enforcement, or maybe academically, it's, it's, it's in lieu of arrest, let the prosecutors enjoy that doctrine, if it gives them anything, but for you, it gives you nothing new, they're having arrest or you don't, if you don't have an arrest, it's treated like a Terry stop, even though you're citing the person. All right, now let's move into the marijuana discussion. If you have probable cause, that a passenger has drugs on them, like marijuana,...
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Hey guys, it's Anthony Bandiero, here with blue to gold law enforcement training this week. I'm in Martin County, Florida. And the question I have for you is whether or not officers can go into the backyard when they're serving an arrest warrant and not violate curtilage? And the answer is, yes, officers can do it. And here's why. Now, first of all, the question comes up, because when I talk about curtilage, in my class, I remind the students that from the Supreme Court's perspective, the back yard is typically treated like the home itself. So if you're going to be there, you need a reason you need what I call crew, you need the person's consent, you need a recognized exception or a warrant. There's the crew. Now, here, the recognize exception is the arrest warrant. An arrest warrant gives the officers permission to invade somebody's privacy, in the same manner as if they had a search warrant. Really, an arrest warrant is two things. One, it provides judicial probable cause to arrest somebody, but it also gives the police officer authority to search for that person at their home under three conditions. One, that that do have a valid arrest warrant that this is their house or their domicile, it doesn't necessarily mean that the address you're serving, it has to be on the warrant. But you do have to if there's a any doubts about that, let's say for example, they moved, and you look at DMV records, and you talk to a neighbor, and you talk to their employer, and they're like, yeah, they put this address on their employment application, you're gonna want to explain to the court why you had probable cause that this is now their legal domicile where they live. And then finally, the third ingredient is there, you have reason to believe they are present at the time of execution. One thing I want to kind of guide you on though, is that because going into the backyard is in a sense, like going into the home itself, that third element should be there before you go into the backyard. So for example, you should have a reason to believe that they're presently home before you go into the backyard. The cars in the driveway, the neighbor says they saw them there you see them, and so forth. If you have those elements, you can go into the backyard to serve the arrest warrant for officer safety purposes and so forth in the same manner as if you had a search warrant, which does mean forced entry after following complying with knockin announce. I hope this helps keep the questions coming in. Until next time, stay safe.
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Hey guys, it's Anthony Bandiero, here with blue to gold law enforcement training, and just outside of Cleveland, Ohio. And today's question is, can you run the serial number of a firearm that you are holding during a traffic stop? And the answer is most likely, but there are some caveats I want to go over. So first of all, we do know that if you are lawfully seizing a gun, for example, during a pat-down during a traffic stop, even if some is lawfully concealed carry, and you want to seize that gun during the traffic stop for your safety. Well, that certainly is going to be upheld. That's pretty clear. And then when you have the firearm, normally the firearms serial number is in plain view, you can just look at it. And that's not going to be a search under the Fourth Amendment right to be right to see, that's plain view. But what happens when you are running the gun, and the gun itself has nothing to do with the traffic stop, you know, it's just a safety issue. For example, the traffic stop is for speeding feller to maintain lane and so forth. The next legal question that we have to address is, does the running the gun extend the traffic stop? Because if it does, it could be prohibited under Rodriguez. So let's go through if you're running the firearm, and the serial number is is offered along with the suspects or the driver's license information, so forth, and dispatches gives you all that at one time, that's not usually gonna be an issue because it didn't extend the stop. It's part of the other things that you did it did not measurably extend the stop. So that's that's the first issue benefit. But if it does extend itself, let's say for example, dispatch tells you, hey, look, NCIC has taken a while to get back on this gun. And everything else is, is completed on the traffic stop, and you just waiting, there is an argument that that unrelated investigation is extended stop. And if something is found as a result of that, it's the fruit of the poisonous tree. So keep that in mind, I think courts are going to bend over backwards to give you the tools you need to, to find stolen firearms and so forth. But just keep that in the back your mind at some, at some point it can become extended, it could extend the stop. The next issue is what if the if the serial number is hidden from plain view. So for example, if there's a Hogue grip on the grip, and that certain number is, is underneath those I know, some Rugers have their serial number plates there. And you have to actually remove a grip or you have to remove a firearm part, you know, part of the furniture of the firearm and so forth. That is not playing view, right, that is a search under the Fourth Amendment. And I recommend that if you're going to do that, and be that and be intrusive on the person's firearm, have some reason to give to the court why you believed that run the firearm was reasonable...
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Hey guys, it's Anthony Bandiero, here with blue to gold law enforcement training. And I'm outside of Cleveland, Ohio. And today's question is, may officers run a drug dog in apartment or motel hallways? And the answer is yes and no.
Officers can run a drug canine in a motel or hotel hallway, but they cannot run the same dog in an apartment hallway. Usually, these are the most these are the this is the best approach here. And let me explain to you why. Now, first of all, when we are talking about areas outside of the front door, you know, are around a home, motel apartment and so forth. Those areas are classified under one of three categories. First, curtilage, curtilage, is protected, like the home itself. And these are areas intimately associated with domestic life, you know, playing with the kids barbecues, you know, hanging out on lawn chairs, and so forth. And then the second area are areas where there's a reasonable expectation of privacy. And finally, is open fields. So curtilage,
reasonable section of privacy, and open fields. Now let's go let's start with motels. motels don't have curtilage. You know, most motels do not have curtilage. Colleges is more associated with non traditional home, like a tent. But there are areas where the person the occupants have an exclusive right of control over it. If you think about most motels, they cannot exclude anybody from the hallways. This is why or that is why it is not curtilage. Let's go on to reasonable expectation of privacy. Hallways in a motel also are not protected under a reasonable expectation of privacy tests. The main reason is that society does not think it's reasonable. For the for a multiwell a motel occupants to have such a high expectation of privacy, that it would be unreasonable for officers public in canines to be in those hallways, it's just not that type of environment. And if you think about it, that makes sense. motels are certainly like a home inside the motel room when the person is lawfully occupying it. But there's real world consequences and limitations. You know, for example, people can be immediately evicted. If they violate a rule, like smoking and fighting and partying and breaking stuff. You know, that's not true with a home. And it's it's a commercial establishment. So really, hallways are the third category, open fields, let's move on to apartments, apartment hallways are not curtilage. Generally speaking, there is no right of exclusive control, you know, an occupancy over that hallway, other people can access it, they can invite the public. So it's not curtilage. You know, there may be an area in an apartment that is exclusive to one resident, but generally speaking hallways are not. But they are often considered areas where a person has a reasonable expectation of privacy. The reason is, is that most courts find that the apartment dweller, this isn't this is a traditional home, right, clearly, and they want to uphold a higher level of privacy in these areas. In some ways, I think courts feel it's unfair for the traditional home with the white picket fence, and the cops can bring the drug sniffing dog onto that property into the front door. Why should the apartment dwelling dweller have a less expectation of privacy? Will they do because again, hallways are not exclusive. They're not like the front door with a white picket fence. But this is a this is a proper balance.
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Hey guys, it's Anthony Bandiero Here, attorney and senior legal instructor with Blue to Gold law enforcement turning, bringing the roadside chat from the studio got an excellent question from an officer from Florida, right, the great state of Florida. So I'm going to call this chat. How do you handle misdemeanor crimes that are not committed in your presence? That's what I want to call this, right. And so the giveaway some context, if I give you this scenario, many states, not all, but many states have a misdemeanor restriction that you can, you can not make an arrest for a misdemeanor, that was not committed in your presence. Now, all of those states that have this restriction also have some rules that have exceptions. So for example, DUI, not coming in your presence, domestic violence, not coming your presence, you can still arrest on those, even though they're misdemeanors, but they still have this common law rule that if you didn't see with your own senses, then you have to go another route. So I want to give some cops some tools to use to address those situations that come up frequently, right. So before I dive in with those tools, let me give you the scenario. I got my computer up in front of me so we can read a little bit. So officers get a call that the victim had or her purse stolen. They arrived 30 minutes later, now they have a suspect description. They see the suspect, you know, a few blocks from the place where this the purse got stolen. Now this purse wasn't as this is not a strong arm robbery. This was simply the lady was on her phone. She's not she's not paying attention that she's an outside cafe. And the guy just comes up and grabs the purse and leaves right so then she realizes a purse is gone. So not a strong arm robbery or theft. Now in Florida, the have a felony? I think it's is it a felony? Yes, I felony is $750 or more in value. The victim says The purse is worth about 450 Not a lot of contents that are worth anything inside the purse. So she's claiming a loss of approximately $45. So we're in the misdemeanor level. Now they also have video of him. You know, behind some bushes, they add a school they go behind the bushes, they find the contents of the they find the person so forth. And here's where we're at, you know, can we make the arrest or not? If we can't make the arrest? What are we supposed to do? Okay, well, let's, let's address a few things
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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor for Blue to Gold law enforcement training, bringing into the roadside chat from the studio. Alright, this question comes from an officer in California, all right. So let me just kind of give you the question basically is will a no trespassing sign and they closed gate prohibits you from doing a knock and talk. Alright. So before I kind of go into my feedback here, let me get, let me give you some context here. So deputies in a role setting, they want to do a knock and talk on a burglary suspect. They don't have probable cause to arrest them. Now the suspect lives on a 100 acre ranch. It's fenced barbed wire, the driveway gate is closed, but also to keep the cows in, right. It's a rancher to working ranch, but the gate is not locked. There are several no trespassing sign No Trespassing signs provided near the front gate. about midday, the deputies open the gate drive through and close the gate behind them don't let the animals out. Right. They drive down a mile long driveway to reach a suspects house. And they talk to him. So the officer has two questions. Number one is are we good here on a knock and talk in number two is if if we are or not, you know, if we develop probable cause to arrest him? Can we arrest him? Okay. So whether or not whether or not a knock and talk is lawful, is falls into the Girl Scout rule. Okay, it's it comes from a case called Florida versus Jordan's US Supreme Court. So the Girl Scout rule basically means this do you believe? You know, take the cop part out of it? Right? I know your mission is to find out. But take the car cop part out. Do you believe that the Girl Scouts could do the same thing without offending? This person's raised quantitation of privacy? Right? Or trespassing on his property? Do you
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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor with Politico law enforcement training, bringing you a roadside chat from the studio. We got a doozy today, this is a question that comes up a lot. I also see it a lot. I'm being very proactive about this particular issue, which is, can police tag an abandoned or junk vehicle? When it's on curtilage? Okay, here is the scenario, I'm looking at my computer here. Right? So there's a new ordinance. This is this comes out of Louisiana, the great state of Louisiana. So this is there's an ordinance that's that, that directs police officers to tag abandoned or junk vehicles on private property without consent without a search warrant. Right, and then order to put give them notice that they got to get the thing out of there. And now the next question, which is not answered by the scenario is okay. Even if officers tag it, and you know, it, it goes nowhere. I guess we're gonna need a warrant to seize it. I don't know. I like to know that. I like to know what the ordinance says about that, too. Alright. So can officers do this? And it also applies to code enforcement and applies to, you know, agents of the government. Right, not just law enforcement. But I would recommend that cops be extremely cautious about this. So here's the first question I have for you. Is the vehicle on curtilage? Or is it on open fields, right? open fields are those areas that a person may own, but they're not protected by the Fourth Amendment. I mean, somebody can own 100 acres, but that 100 Acres is not going to be 100 acres of cartilage, it's going to be maybe an acre of curtilage. I mean, I'm just kind of, I want to see pictures, but of what the land looks like and where the home is, and things that they set up barbecues, lawn furniture, corn Hall. But certainly you can own a lot more land and curl it. So if the vehicle is on curtilage, buyer beware, you're probably going to get burned very bad. curtilage are those areas that are intimately associated with the home, right with family life, they're physically and psychologically associated with domestic life. The backyard is your quintessential curtilage, your carports your side, you know, areas rent your home. And if the car is there, my belief is 100%. Cops cannot be there tagging cars. Now, if the car is in the driveway, I've seen cases go back and forth. But if that portion of the driveway is curtilage, I would not be on it. Why Anthony? It's just the driveway because you don't have the homeowners consent.
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Hey guys, it's Anthony Bandiero Here, attorney and senior legal instructor with Blue to Gold law enforcement training, bringing you another roadside chat from the studio. Let's get right into this. This question comes from California, and the officer is asking about the stale misdemeanor rule. So I guess the question is, is, what is the stale misdemeanor rule? Okay, I'm gonna give you a scenario to apply to, all right. The stale misdemeanor rule is a common law doctrine, that essentially means that if a crime was committed within the officer's presence, and he or she could arrest that person right then and there, right, but yet waits, and doesn't arrest and then arrest sometime down the road, let's say the next day, next week, whatever that makes that arrest. courts have held that that is a stale arrest, it's a still misdemeanor, and the appropriate response is not to arrest them anymore. But to submit a warrant request, or give them a citation and kick them loose. So the first thing is this stale misdemeanor rule is not really alive. And well, in many states. It is a live in California, but it's a very the case all on this doctrine is very limited. And the idea behind it is that, you know, we don't want this threat of arrest, hanging over people's heads that simply commit a misdemeanor and the officer's presence. And then, you know, because you have a year in a day, usually the file, right, the file the charges, we don't want this hanging over the person's head forever. So like, if you saw a person breaching the peace, right, disorderly conduct, let's just go with that disorderly conduct on Saturday, and you go up to them and say, hey, you know, knock it off, right? Or, or you don't do anything? And then you don't, you know, and then the next week, you see the same guy. And you decide just to arrest them for that disorderly conduct happened last week, the courts don't see that being legitimate for a misdemeanor that you didn't arrest for before. Okay, so there it is. It's, it's, again, a very rarely used doctrine in courts. But let's apply it to some facts. So my officer friend here says, Look, cops investigated domestic, right. And the husband is not home, he took off on foot, but we have probable cause. So the officer on that shift, writes a PC declaration for the husband, they handed off to the next shift and say, Hey, you can find them. Here you go, here's the, you know, here's the PC declaration, it's all ready to go. You can book them in the next shift finds them or the next morning, they find him, they then arrest him. Right. And we go to court. Are was that a still misdemeanor?
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Hey guys, it's Anthony Bandiero Here, attorney and senior legal instructor for blue to gold law enforcement training, bringing you another roadside chat from the studio. Okay. So here's the question from Texas. The officer says, If I get consent to search a vehicle, does the traffic stop have to end first? Before I can search? And the answer is no. So consent includes with it, the agreement to extend the traffic stop. Does that make sense? So we know that when it comes to traffic stops, you know, the scope of the traffic stop is determined by its mission. Which means why do we stop this person? If we stopped the person for speeding, we have the scope is a speeding investigation, we do not get a free drug investigation, right? So. So that's what it is now. Here, the officer says he actually built up reasonable suspicion for drugs, then asked for consent. And now he's wondering, do I have to stop the traffic stop? And then, you know, ended and then go for the search? And the answer is absolutely not. In fact, that'd be kind of silly, actually. Because if you have reasonable suspicion for drugs, asking for consent is now actually related to the traffic stop, because it concerns what's going on. Um, what you should do is actually put the original reason for the stop on ice. Just if you're writing a ticket, you should probably stop writing that ticket and now diligently pursue what the new issue is right? For drugs and so forth. That's actually what courts would want to see. I've had a there's a case out of Kansas, where the officer had reasonable suspicion pretty early into the traffic stop, did all of the traffic stop. And then, you know, include right in the ticket, all that kind of stuff, and then started pursuing the drug investigation, and then of calling a dog later the core throughout the throughout the evidence, because they're like, hey, look, you were not diligently pursuing your reasonable suspicion. And so that's, that's a great point, put the original reason on ice and then go from there. Okay. If you don't have reasonable suspicion, now, some states require reasonable suspicion before even asking for consent, you know, like Oregon, and so forth. So just think about that. But even if you don't have reasonable suspicion, I mean, the person giving you consent, is, again, consenting to extend the traffic stop here, the officer said, oftentimes, they'll talk to the drivers and ask Is anything any contraband in the vehicle and so forth? And they're like, no, do you want to take a look?..
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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor for blue to gold law enforcement training, bringing you another roadside chat from the studio. This question comes from an officer in Florida. And he asks, have courts relaxed the manipulation rule? Under Terry pat downs? So what the officers talking about here is a case that's called Minnesota versus Dickerson, US Supreme Court. Basically what happened there were officers patted down Dickerson, they felt an item in his pocket while during the pat down. And they described the path and you know, when they're feeling sad, they described it as manipulating it, feeling it, pinching it, squeezing it, to basically determine whether or not it was drugs, right. And then they felt, you know, that that was a rock like substance. And that combined with all the other circumstances, while the stop was made in the first place, because we thought that drug activity is occurring.
The court, the cops knew that it was, you know, potentially rock cocaine, or at least had probable cause? Don't you want to know it? But you had probable cause? They removed it? Sure enough, they're correct. And we're going to the US Supreme Court. So the US Supreme Court held that in that case, right. The cops manipulation of the item failed to satisfy the playing field doctrine, or the plain touch doctrine, wherever you want to call it. But they did say if while patting somebody down, an officer feels an item that is immediately apparent. Remember that immediately apparent as contraband evidence, fruits or instrumentalities, of a crime and so forth, that they could go into the pocket and seize it. Now, back to the original question, the officer is asking, have courts relaxed this rule? And the answer is no. They're very strict on it. If a cop goes to court, and is asked, at the time that you felt this item in the pocket,
did you believe that it was a weapon or something that could hurt you? And then they in the officer says, No, I knew at that point, that it's not something that can hurt me. Okay. But you continue to feel the item? Yes. And how describe how you felt that item and so forth? Well, I felt that I put my hand in it, you know, I pinched it, I squeezed it...
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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor for blue to gold law enforcement training, bringing on the roadside chat from the studio. Here we got a great question from the great state of Idaho, which is going to be my future residence one day already bought the lands as the build the house. So, here's, here's we got going on there.
So this question is, can police evict tenants or occupants from a long term stay motel? Man, before I get into this, this is this area of the law is really underdeveloped. We certainly have a lot of cases from evicting people from hotels and hotels, and, and so forth. And of course, we have lots of cases from trying to get people out of, you know, apartments and houses. And then in between those two is the long term stay the extended stay America type of situation. And let's go through it. Alright, let's go. This is good stuff here. Okay. So here's a scenario. A local hotel, it was a Motel Six, and now it's called the extended stay. Is it? Yeah, extended stay. What I mean, I would love to, I would love to live there. It just sounds like a beautiful place. And so the cop, you know, gets requests by staff to evict people, right. And they want to know, you know, does and while we're evicting people other questions, the COP is asking, you know, do we have to? Does the manager have to give the notice to evict? Can we do it for the manager? Can we walk right into the door? Can we just use the master key and just walk right in? Alright, so hopefully, this video is not too long. But I'm telling you, this video is going to help you because this issue comes up all the time. Okay, let's first start with the premise of dealing with true hotels that are your stereotypical, you know, one night to night type of scenarios. So the law is pretty clear on this one. Hotels and motels have a common law, right? to evict people for cause these are what the courts refer to as transient lodging, right? The person knows that they're not going to be staying there forever. And that if they break the rules, it's not unreasonable to expect to get the boot. So the law is pretty clear. If the management calls you and says, Hey, we need help the victim this person because of partying, drugs, smoking, you know, whatever breaking stuff, then the laws pretty clear that they got to leave. But what about them if they pay for the next week? Anthony, that's a civil issue...
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Hey guys, it's Anthony Bandiero. Here, attorney and senior legal instructor with Blue to Gold law enforcement training bringing the roadside chat from the studio. This question, let's see, look on my computer here. This question comes from an officer in the great state of Texas, right? Maybe it's the maybe it's the Great Republic of Texas. I don't know, technically, if it's, you know, what they call it down there. Alright. So this officer has a great scenario. And basically the question is, is Can an intoxicated owner of a vehicle give consent to search? Right despite being intoxicated. So the scenario here, the officer says that they stopped a vehicle with three occupants, the owner of the vehicle is in the rear seat due to be intoxicated, so they have a designated driver, that's always nice. And they see some old containers in the vehicle. So they're gonna get into the vehicle based on that alone. But that's not a very comprehensive search by any means. Because you can only look in places where open containers are likely to be so you don't get the trunk. You don't get the hood. You don't get tiny little places. Usually. I know what you're gonna say. But Anthony, there's little shooters can be in there. Okay, if the court buys it, then that's fine. But while doing there, they while in the car, retrieving the open containers, the officer see some Swisher Sweets, which is, you know, very commonly associated with marijuana cigarettes. So that's where we're at. Okay. So, and those are under the seat. And that's another telltale sign that they're probably marijuana cigarettes, right. But the cop then goes to the owner, again, this owner is intoxicated, would have been arrested that behind the wheel and says, Can we search your car? And he or she says yes. Is that consent valid? Based off of these facts? Absolutely. Absolutely. Voluntary intoxication is not going to get you out of consent to search, right? Voluntary intoxication, doesn't get it person out of there consensus search, basically, the role is this. Under the totality of the circumstances, do you reasonably believe that the person has the capacity to know that it's it's a, you know, they have a choice, right? It's a yes or no, they have the capacity understand that they have a choice. That's it. That's really all it takes. And the burden of proof for the court is usually pretty low. In most states, it's preponderance of the evidence...1
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Hey guys, it's Anthony Bandiero Here, attorney and senior legal instructor for Blue to Gold law enforcement training, bringing you another roadside chat from the road. Right. So a lot of these I make are from the studio because of travel restrictions. Or just as more convenient to be honest with you, sometimes I make them because I get so many of these, but I'm here in Greenville, Tennessee, trying to catch up on these, these questions. And the next one is going to be from an officer in New York, right, just north of New York City. And basically, the officer is give me a scenario here, where under the lights kind of coming into the car, but it is what it is, hopefully that's not too distracting. Alright, so the question is, when officers respond to an OD, right, and the person is is revived, they're going to go to the hospital? Can you take their cell phone as evidence and to see, you know, who the dealer is, you know, because that's that person could potentially be charged for contributing to the, to the overdose? What if the, the person, you know, ends up dying? Can you searches, you know, basically seize any cell phones and the circumstances? Here's, here's my, my feedback. Number one, obviously, without any question, taking a person's cell phone is a fourth amendment issue, right? It's a seizure on the Fourth Amendment, especially if they're alive, right? Because they're alive, and they have a possessory interest in their cell phone. Therefore, you know, the seizure has to be reasonable. Now, if it's a, if the person is being transported to the hospital, and you're going to conduct a criminal investigation to determine, you know, who sold the narcotics to the person and so forth, and seizing the phone in order to get a warrant. It's reasonable, that's, that's, you know, that's, that's gonna be reasonable, they're, you know, likely, you're gonna have probable cause. But the problem is going to be seizing it as a matter of routine, and then keeping it in the evidence locker, whatever,
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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor for Blue to Gold Law enforcement training, bringing you the roadside chat from the studio. Let's get started. So today's question is, what is plain view? Alright, what is plain view? So, plain view is nothing more than right to be right to see. Right. That's how I train it right to be right to see, hear and smell. So basically the idea here is that if you are lawfully present, there is no search under the Fourth Amendment, by using your God given senses, there is no search, if you are lawfully in somebody's home, investigating a domestic violence. And you're looking around the home, even if you had the intent to find something, right. You know, let's say that the husband is a suspected drug dealer, and you are lawfully present because of that. Because of the investigation in your mind like Well, hey, since I'm here, let me see if I can find plain view evidence. And you look over, and you see drugs, stuff behind a book in the bookcase, you're like, well, that's a little, you know, cellophane package, you know, sticking out a little bit, he tried to hide it before you guys came in and didn't do a good job. That's plain view. Right? That's plain view, you have a right to be where you're at. You're using your God given senses. And the evidence is immediately apparent. So that's another thing that courts will throw in there, they'll say not only do you have to be lawfully present, the evidence has to be immediately apparent as evidence, contraband and so forth. All that means it's not that, you know, you look at it in instantly, you know what it is, right? You know, it's evidence. You don't you can look at and be like, Wait, is that what am I seeing what I'm seeing here, you know, so forth. But immediately apparent, basically means that you have probable cause without manipulation. So if you manipulate something that's not playing view, let me give you an example. You're in a home,///
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Hey guys, it's Anthony Bandiero Here Attorney and senior legal instructor with Blue to Gold Law enforcement training, bringing you to the roadside chat from Greenville, Tennessee, where I'm out here for the week teaching. Alright, so this question comes from an officer in South Carolina. And he's asking about, can you compel somebody to provide their fingerprints and or facial recognition to unlock their cell phone? And the answer is yes, the answer is yes. Because fingerprints and facial ID is not testimonial, there is no recognized privacy interests, you know, in your fingerprints in your in your face. So that's generally the case and other, you know, with my legal brain, I'm also thinking of mass facial recognition software, you know, that you're, you're putting downtown, and you're identifying everybody who's downtown, implicates a different constitutional principle, but that's not relevant here. So the point is, is that if you got a court order to basically compel a person to unlock their phone with their fingerprint or facial ID, that would be lawful, that's not a Miranda violation, because it's not testimonial, however, just to get a little more, you know, in depth here, having them provide their password, or even, you know, let's say those like those, the Android type of unlock right, the pattern, that would be a Miranda issue, because the person has to think about their answer. Right. And that's testimonial, and they could incriminate themselves. Now with that, one, you're not going to be able to compel them to provide their password or pattern, unless it's a foregone conclusion. So that's what the doctrine is called. foregone conclusion, a foregone conclusion essentially says this, if you can prove to the court that you know it's on the phone, right, it's not, it's not that you don't know what's on the phone, so that you need the evidence to bolster your case and to prove your elements, then, most likely, they're going to give you a a warrant to basically compel the person to provide their, their password. Now, let me give an example. Let's say a friend of the defendants saw child porn on his phone, he knows his child porn, the guy, the defendant was bragging about it, and so forth...
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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor for blue to gold law enforcement training, bringing you another roadside chat from the studio. Alright, today's question comes from an officer in Utah, and the officer basically asked, do we need a warrant for a death investigation? Okay, well, let's, let's kind of go through this. So the officer says, Look, we get into the house because we have exigency. You know that there's somebody the SES in the home, you know, you know, let's say that the cleaning person comes, and they call and the homeowners dead, and so forth. Alright. So they said that they cannot get a hold of anybody with standing in order to continue the death investigation, right. So I guess, like the cleaning person be a good example, like the cleaning person, generally speaking, cannot let you just search around the home, you know, during the decimal because they don't have a privacy interest in the home enough needed to allow you to have free rein of the house. So. So they want to, you know, they want to look to see if you know, if the depth is suspicious, if the suspect it natural causes, location prescription bottles, or a doctor's information to try to see what the health is, you know, if the person has been to a doctor within the last 30 days, and so forth. So the question is, does this require a warrant? And the general answer is no. Okay. So death investigations, if they're, if there's no foul play, and you're trying to determine the cause of death, and you are in your in the home lawfully, you know, generally speaking, these are not criminal investigations, you're basically playing corner, right, you're, you're basically playing corner, you know, you're trying to find out just like you said, medical issues prescription, you're trying to find the cause you're trying to help find the cause of death. And because that is not a criminal investigation, the US Supreme Court case in Mincy, versus Arizona has and apply. So Mincy is a stands for the proposition that if you are in a murder scene, right inside of a home, the murder itself, obviously a very serious crime, in and of itself is not going to allow you to search the residents for for evidence of the of the murder, without either a consent, or be a warrant, right? There is no murder scene exception to the search warrant requirement. But we don't have that here, you know, officers are in the home, and they're just trying to find the cause of death, there is no murder....
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Hey guys, it's Anthony Bandiero. Here attorney and senior legal instructor for Blue to Gold Law Enforcement Training bring you another roadside chat from the studio got an excellent question. I'm looking at my computer here from an officer in California. Okay, so the officer basically is asking, Can police go into a neighbor's backyard during a SWAT operation? Excellent question. So let me just kind of give you a little feedback about the scenario here. So during a SWAT operation, let's say a search warrant, SWAT operators are attempting to establish containment next to the house, right to the residence, the target. Now they ask permission to go into somebody's backyard, but they are denied. Can the officers still enter the neighbor's backyard for containment purposes only? or would this be a violation of the Fourth Amendment? Excellent question. And here's your answer. Do you have agency? Right? Do you have actions the agency just to get you into people's backyards? Now? I need to know more facts. Right? I didn't know more facts, why do you believe that? That there's no time to go get additional pre-approval to be in these neighbor's backyard. By the time you get that approval? Whatever, something bad could happen. I need to know what I know. Now, first of all, we're pretty close there logically because this cop is telling me that they got SWAT deployed, you know, on this house, right? In 2021, we're not dusting off Swat, unless it's pretty serious is my impression out there because of the liability that comes with SWAT operations. So we're getting our operators out. And we're gearing up. It's, it's for a serious situation, right? People have guns, and so forth. That could be, you know, a menace and so forth. So I want to know that though. So I guess that goes along with what the operation is about? If this is a, I mean, Wahby does not SWAT for a child porn investigation? I don't know. You're gonna have to sell me on it. But you get my point. So the answer is Look, do you have exigency? Do you have some kind of public safety issue that if you are not in that backyard, this guy could escape and hurt other people? Right? Is this is his this neighbor's house, the only yard that you could have put is the only yard that you could actually potentially have a container like contain this person, there's no alley, there's, there's a huge retaining wall. On the other side. In other words, this neighbor, like it or not, has the best place for us to to be in case this guy comes out. So stuff like that will help. But as a matter if we go into that backyard, and we go to court, and we get sued, now, these, these neighbors are already denying entry. So you know what's going to happen. If the cops go back there anyway, they're likely to get sued, right?..
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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor with Blue to Gold law enforcement training, bringing you another roadside chat from the studio. Alright, so we got a great question here today from an officer in Texas, the great state of Texas. Alright, so the question is, is can you search a vehicle on curtilage with exigency. And let's go to the scenario, okay, I'm looking at my computer here. Alright. The officer is called to a noise complaint. Upon arrival at a house, right, Upon arrival, he sees a car in the driveway with probably music blaring. He smells the odor of marijuana emanating from the vehicle. And this one is actually unique in the sense that the car had two tires, you know, to the rear tires on the sidewalk, which violates a city ordinance. But it's, it's safe to say that the other half of the car is on curtilage. Okay, we go to the car, we make contact, right? And can we search the car? The answer is yes. Here's why. Number one is the case Collins v. Virginia, which is the US Supreme Court case that held that police cannot search a car that's on curtilage under the motor vehicle exception alone, alone. And that is for good reason. Because when you're on someone's curtilage, it's like being in their home. I mean, the curtilage is treated like the home itself, according to the US Supreme Court in a case called Florida versus guardians. So if you're going to be on some of these curtilage, you've got to have a damn good reason to why you're there. I mean, knockin talks work. But if you're doing criminal enforcement, on people's curtilage, you better have some exigency, emergency urgency, or you better have their consent. But if you don't have that, you've got to go get a warrant. And the motor vehicle exception, remember, there is no underlying exigency in the car when it's unoccupied, and nobody's near it, and so forth. Right. Some states court cases, we'll talk about that, that the motor vehicle exception is based off of the exigency of the inherently mobile vehicle. But come on. I mean, that's, that is, that may be one way to describe it. And that may be another reason why we allow these searches as far as is making it just this it's kind of bogus, there is no exigency. When you stop a car for speeding, you have probable cause that there's evidence in there, the guy is under arrest in the backseat, you have the car keys. Nobody else is around you, and you're in the boonies, and there is no exigency there. Right? We know that. Okay. So that's why Cosby, Virginia said, look, the motor vehicle exception will not work. However, exigency will now this case is kind of unique, because half the car is on open fields, the sidewalk, and the other half is on curtilage. Remember, you know, called Virginia the car was 100% within the curtilage it was in a carport. So, this one is a little weird. But even if it was actually fully on the driveway, I still think we win because law noise complaint brings us lawfully into view and next to the car we can we can absolutely go to the to the car and address the issue...
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Hey guys, it's Anthony Bandiero. Here, attorney and senior legal instructor at Blue to Gold law enforcement training, bring you the roadside chat. All right, this question comes from an officer in Alabama. So I'm looking at my email here. And basically, the question is, Can cops use binoculars to view suspects in a public area?
These they want to see, for example, you know, salesman, narcotics,
you know, and so forth. Now, does the officer need probable cause? To do that? Does the cop need probable cause to make contact and so forth? And I have your answer. The answer is very easy. Cops can absolutely use binoculars to see anything that would be open to view, they do not have to, let's say the, the people are in a park.
And cops want to be 500 yards away. With ultra powerful binoculars. They don't want to burn their position, right? They can absolutely be five yards away, not visible to these people to the naked eye use binoculars to see what they're doing. There is no expectation of privacy when the people are in a public place from being surveilled. So that's by binoculars to say the least right? You start bringing in drones and you start bringing in pole cameras, you know, maybe sometimes the answers get a little murky, but absolutely when it comes to binoculars, so basically, binoculars are free game, except when you point them towards windows of a house, right? Or backyards, can golf get a little tricky. But especially into Windows, if you are looking into Windows, and you are seeing something that is not visible with the naked eye from a lawful vantage point, then that is a search under the Fourth Amendment. Let me give you an example.
Cops could stand on the sidewalk in front of a home and with the naked eye, see cocaine on the kitchen table. But they don't want to be on the sidewalk looking, you know this guy's house because they're going to get burned. So instead they go 200 yards back
and use binoculars and see the same thing would that be lawful? If the court believes and you're going to convince the court of this, that you could have seen the same thing with the naked eye from the sidewalk, you will win.
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Hello, everyone, it's Anthony Bandiero. Here, attorney and legal instructor for blue to gold law enforcement training. And here's today's question. Can cops automatically tow a car or rental car? If the driver is not on the rental agreement? Well, the answer, we don't really have a lot of case on this very issue. Because really, it's not gonna be necessarily a search or seizure issue. It may come up if drugs are found and so forth. But fundamentally, it's a it's a tort claim. So here's my advice. I would not tell it not automatically because it's a civil issue. You are a criminal investigator, you investigate crimes. Is there a crime being committed in your presence? By a non authorized driver driving the hertz or Enterprise rental car? I don't see it. Do you have a law that says they can't do it? If you do, that's a different story. But if they have a valid license, and the car is not reported, stolen, embezzled, and so forth, it's not your fight. Right? That's between them and Hertz. If hertz has a problem with what they're doing, and they find out about it, then you know, they can call a lawyer. Now, does this prevent you from calling the rental company and letting them know what's going on with their car? No, I don't see a problem with that. That's that would fund the fall under committee caretaking? Do you reasonably believe that hertz may want to recover their car if they find out that a non authorized driver is driving it because that person may not have insurance may not have a license, and therefore their vehicle may be damaged? And they have little to no recourse? Absolutely. Go? Go ahead and call the rental company and ask them what they want to do. But don't forget that. A couple things. Number one, it's the rental car cars choice, the rental companies choice, it's not your choice. It's not your car. If they don't want to, if you say hey, I really think you should tow it Don't say stuff like that. Just say hey, look, this is what I got a monitor traffic stop. What do you want to do? The other thing that cops ask while we're talking about rental cars is Anthony, can hertz give me consent? Search that car? Absolutely not. Not until the point that they recover it. Now, if they recover it because of a vile, you know, they're violating the contract, then hertz can give you consent to search the car, you may search it anyway under inventory. But that doesn't answer the one burning question is okay...
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Hello, everyone, it's Anthony Bandiero. Here, attorney and senior legal instructor for blue to gold law enforcement training, bringing the roadside chat. All right. This one is a good one. I like this one. This one is Ken cops break a car's window to retrieve a firearm, that the firearm is evidence. Alright, this comes from an officer from California from Southern California. Alright, so let me give you the background here. Okay. I'm reading from a computer call for service. The victim says that she was assaulted with a gun. The suspect pointed the gun at her, didn't shoot her. But pointed at her. We obviously have assault with a deadly weapon. The victim knows the suspect knows where they were likely the person lives and gives it an accurate description of the vehicle, including plate and so forth. The deputies arrive at that address. And what did they see parked on the street? The vehicle? A neighbor is standing outside the cop say, Hey, neighbor, do you know who drives this car? And they're like, yeah, the guy and they described the suspect. And they're like, did you just go into this house? And he's like, yeah, he was he just came home, you know, maybe no more than five minutes ago. Now, the deputies look in the car. And what do they see in plain view? The gun, this guy did not even hide the gun from being observed from plain view. Right? Now the question is, what can we do? Can we go into that car and retrieve that gun? And hear the deputies specific want to know, if they try to open up the door in the door and the car is locked? Right? No doors are open? Can they make a four century into the vehicle? Can they smash the windows? Well, I have your answer my friends. I have your answer. And maybe you're gonna be surprised at this. But the answer is yes, they could. Now before I get in to the legal reasoning, I want you to know that not all states follow the federal motor vehicle exception, right? Mobile conveyance exception. They don't, they don't, not all states are going to have these rules. Some states like Washington, New Mexico, New Jersey, Pennsylvania, are going to have more restrictive rules. But the vast majority of states apply the standard motor vehicle exception that was based off of Carroll in cases after that. Okay. So in order to retrieve that gun, we gotta have four things. If these four things are in place at the exact same time, cops can smash the window. Number one probable cause? Clearly, I think we are slam dunk probable cause that That gun is evidence. Right? That gun is and also we're talking about California here too. It's going to be the guns not gonna be legal anyway, under these conditions. I mean, I don't you know, from my knowledge of California law, you cannot transport that gun like that in California. Now, this was, you know, another state, that's pro gun, you know, maybe different story, but the gun itself is also evidence of a different crime, which is, you know, some kind of illegal transportation firearm, but certainly it's also evidence of the assault with a deadly weapon. So check probable cause, next factor is is the vehicle and curtilage the vehicle cannot be on curtilage under the motor vehicle exception. And let if it is on curtilage, you cannot retrieve the evidence unless you have either consent by some even give it or you have exigency or a warrant here, the cop made it clear to me that the car is on the street in front of the house. That is not curtilage. So we don't have that issue. By the way...
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Hey guys, it's Anthony Bandiero Here attorney, Senior Legal instructor,
for Blue to Gold Law enforcement training, bringing a roadside chat now this one is gonna be a little long. But I think worth it enhances this is great real life stuff here. So the officer from it's an officer from Missouri, basically, the question revolves around Hot Pursuit. So what are the Hot Pursuit requirements, but let me read to you what's going on with this case. So you have some context. Again, I think it's gonna be worth your time here. Okay, this is great for like roll call training, and so forth. So this is, this is excellent. So an officer observes a male about to exit a house, but upon seeing the officer, he steps back in pretty common, you know, suspicious behavior, not necessary reasonable suspicion, but suspicious. Now the officer knows that this location has a history of drugs, right? It's it's an it's a known drug house. So he goes down the street, he parks, he then sees that same male, exit the house, cross the street at an angle against city ordinance, right, you gotta be 90 degrees, thus committing an infraction in the officers present presence, okay? The mailman enters a property of another person who the cop knows has complained about people crossing their lawn. Now, we have probably costs for the the cross country violation. And now we have reasonable suspicion that they're violating the trespassing, even though we don't have a victim at this point. But we at least have reasonable suspicion that the person the owner of the house would not want this and they would want to file a complaint. Okay. The officer drives down the road, he's gonna try to make contact with this guy. And the male upon seeing the mark patrol vehicle, that we're not, we're not chasing him, there's no lights on. He takes off running, unprovoked flight into an address where a woman was standing at the open door. So he runs into the house, okay, slams the door. The officer gets out quickly approaches the door knocks and announces, Hey, police, and the lady answered the door. And he says the cop says where'd he go? And he replies who can you picture this, the officer pushes the door open past her. No resistance buyer, she doesn't resist but opens the door pushes past and goes into the house and observes the male exiting out the back window. The cop does not follow because he's too big for that window. So he goes around to you know, out to the front and then into the back to pursue him. Now he doesn't see the male. But when it gets back around to the house, he hears the woman talking to a male inside. He believes that that male is the one that he was chasing. So he re enters the house...
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Hey guys, it's Anthony Bandiero here with Blue Gold law enforcement training. And our question comes today from an officer in Tennessee. And actually a very common question is, what is the difference when in inventory? And they search? Alright, let's dive into this. As also Tatum would say, let's get into this. So they're both searches. Okay, I hear time and time again, officers say, hey, inventories are not searches. Well, yes, they are. I know what they mean. But I'm just trying to be specific here. If it wasn't a search, then it wouldn't be controlled by the Fourth Amendment, because the fourth man only controls two things, it controls searches, or seizures. So it has to be a search. Otherwise, it would not fall under the gambit of under the Fourth Amendment. But what the COP is trying to say is in when the cops say this, and you're absolutely correct, that what they mean or not, what they mean is, they're not searches for evidence. Inventory searches are force for safekeeping, right? For looking for dangerous items, for listing out items of value. That's what their searches for their searches for the for the Toshiba and so forth. A search when we say hey, we are searching for something, we normally imply that we are searching for evidence. Okay, so that's the difference. Inventory searches are for to fill out the toe sheet and to protect the person's property and against false claims, dangerous items, and then searches for evidence or for things for criminal investigations. Now, the officer says, what are the common pitfalls that officers tend to fall into with these inventories and so forth, I'm gonna tell you that the common pitfalls is when we use inventory searches for criminal investigations. And what I mean by that is, sometimes cops will be on a traffic stop, they will have a hunch that there's something or reasonable suspicion that there's something in the car, they cannot get consent, because the person will not give it. They have no drug dog available. They also have no probable cause. But the person's registration is expired by two weeks. And per their law, their state law or their policy, they have discretion to tow that car. And so they say to themselves, they say, You know what, let me just tow the car and see what's inside of it. Because the law says I can that is a pitfall that is unconstitutional, in my view, right. And I have support by the US Supreme Court in this. But you should never use these inventory exceptions. As a short circuit, the Fourth Amendment probable cause requirement. So don't do it. Now. At the same time, if cops have this hunch that there's something in the car, but they have to tow it, because the law requires it. It's a DUI, their car smashed up, it's in the intersection, the car is blocking somebody's driveway, and they still have a hunch that something is in it. I say, don't worry about it. Because the end result will be the same as long as your inventory search looks like an inventory search and doesn't look like a rummaging of just a general rummaging for evidence. It looks it complies with your policy, that it should not matter what you're thinking...
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Alright guys, we got to talk about Caniglia V. Strong, US Supreme Court. May 17 2021. I've been talking about this case for months. You know, my students have asked me my opinion on it. I've given my opinion. And let me just share a little bit of background about it. But it's a very massive, hugely important case on two fronts. Number one, firearm confiscation and the red flag laws. And number two, a little more guidance on the so called Community caretaking doctrine as it applies to homes. Let me give you just some quick facts. Okay, I know you're busy. I'm busy. I'm in justly No, I'm in the great state of Tennessee. Teaching just out of outside of Nashville, love teaching here. And if you want me to come to your agency, or you want a fellow instructors come to your agency like the great and Kelleher and so forth to come your agency and teaching folks search and seizure, give us a call. Okay. So the background what happened was cops were called to a house because a husband the night before threatened to, you know, he kind of threatened suicide in an indirect way he told his wife that he was tired of fighting tarda arguing, why don't you shoot him, you know, shoot, shoot me right and get it all over with that was kind of like his, his tone. The wife then went to a hotel for the night. She called the husband the next morning, no answer. She feared that he actually did commit suicide, he called the police to do a welfare check on him. They ended up contacting him and he basically assured the cops that it was not a danger to himself. However, he did agree this is in Rhode Island, by the way, he did agree to go to the hospital voluntarily to do a mental, you know, Psych psychiatric evaluation. So why he was gone. The cops then spoke to the wife, right, the wife returned to the home. And I believe this is several hours later, up to four hours later. And the officer then they knew that he had a gun, right or guns, they then entered the home without a warrant without consent, and no exigency to go seize the husband's firearms, why community caretaking? If we can, if we don't seize these guns, maybe he comes back after the hospital and kills his wife kills himself and so forth. So this is, you know, something like best practice, right? Well, the husband then sues to get his guns back, he has a lot of problems getting his guns back, and so forth. Finally, he gets him back. But he Sue's over this whole entry to begin with. He's saying, hey, look, you should have never even gone into my house under those conditions. And then he filed a federal district in a federal lawsuit, and he loses. And then he appeals to the First Circuit and loses...
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Hello, everyone, it's Anthony Bandiero Here, Attorney senior instructor for blue to gold law enforcement training. Bring the roadside chat This question comes from an officer in Idaho. And so basically, the officer asks, basically, about are homeless people allowed to sleep in parks after hours. And the reason that this is coming up is because of a case called Martin versus Boise, which is a case of the Ninth Circuit, right, which the US Supreme Court refused to hear. So basically, it's good law in the ninth circuit. So here's a scenario. The officers aware that enforcing laws against homeless people is very problematic, after this case, the Martin case, because basically what the Supreme Court or the Ninth Circuit said is that if you're going to enforce anti camping ordinances against homeless people, the question before you enforce it, and you arrest them? Or you cite them is, where can they go? Do they have a place an alternative place to go? Is there a shelter? There's a bit available? Is there another place? A park in town where or a place where you want campers to go? Is that place close enough? Or are you trying to say that the next available camping ground that you can go to for free, is 100 miles down the highway, right? So these are all great questions. And I'm telling you right now that you need to be very, very careful. Before you start running around enforcing all various laws against homeless people. I am not saying that you're not going to enforce the being in the street, or you can enforce it being in the street blocking traffic, blocking sidewalks. But when it comes to these, these anti camping enforcement actions, just be careful. I have a whole webinar on dealing with homeless people and RVs tents and so forth. But just be careful. I personally would not want to see these decisions made at the sergeant or line level, I just wouldn't I would like them to be made at the command level. I want lieutenants and above and especially my chiefs, talking to their legal counsel, I want them talking to their attorney, so the prosecutors to their state's attorney, because you are potentially getting yourself wrapped up into a very expensive lawsuit. Homeless people have a lot of advocates, they may not have a lot of money, but they have a lot of attorneys willing to give their time to fight their cases. Okay, so they pull on the heartstrings. And I understand I mean..
Hey guys, it's Anthony Bandiero. Here, attorney and legal instructor for Blue to gold law enforcement training, bring it to the roadside chat from the studio. All right. Let's start here. So the question comes from an officer in Illinois. And she's she asks, Can you transport a DUI suspect somewhere else? For field sobriety tests? And I have your answer. The answer is, if you do not have consent, and you just do it, and you order the person to go somewhere else, and you drive them somewhere else, that is going to likely be considered an arrest. Now, if it's an arrest, okay, the first question is, is do you have probable cause? If you move this person, you have probable cause, then it's not an invalid arrest. It's called a de facto arrest and arrest in fact, but then the next issue is going to come up for you is Miranda issues? Because if you did arrest them, because most courts will believe that involuntary transportation equals in arrest, because most people think that they're have been formally arrested. Now, if you bring them let's say, to the station house, because it's snowing outside, and you start asking questions, again, about, okay, confirm how much you had to drink? Well, I know I told you to, but really, it was four. And all these other things in any other testimonial type answers will likely be suppressed unless you have Miranda, but most cops are not reading Miranda, while they're doing field interviews, and so forth. And so that's the answer. Now, the way around this is to seek the person's consent. If you have a good reason, let's say that it's snowing out, and you don't want to or you're on an incline decline. It's not. There's no flat surface and area to do field sobriety tests. So you want to ask them, Hey, do you want to go to the station? Or do you want to go to the firehouse and on a flat surface and have a better opportunity to perform these tests satisfactory? Do you want to do that? And if they say, yes, then argue that, you know, articulate that the person gave you free and voluntary consent to move the traffic stop, essentially, to the fire station or the police department. But if they say, No, they do not want to move, then, basically, I would treat that as a refusal to do the tests and go from there. And the question would be okay, if you can't do the test on the location where you're at, then I would try to figure out what matter had probable cause? If you have probable cause, then if it was me, I'll just make the arrest and go from there. If I don't have probable cause, then I'm at to look, look at some other options. Right. But that's the deal here.
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Hello, everyone, it's Anthony Bandiero Here, attorney and senior legal instructor for Blue to gold law enforcement training. Bring it on the roadside chat from the studio. Alright, this question comes from an officer in Idaho. My future home state, by the way, bought some property in Idaho can't wait to build. Alright. So the question look at my computer here, the question is, can you make entry into a third party residence for a warrant? If you visually see the suspect? I definitely have your answer. Let's give you some context. So the COP is doing a knock and talk at a third party residence, let's say the cousin's house due to a tip or see that the subject sub-subject is at the location, and also has a warrant for his arrest. When you arrive at the location, and you see the subject through window, you see the subject through window, and he looked through you and he, and he sees you. Right. So can you enter the home and arrest the suspect? Right. Also, the homeowner answers the door and tells you the suspect is inside know, he says yeah, he's uh, he's here. And do you have to get a search warrant? Consent? Or can you just go in with the arrest warrant? Guys, I definitely, definitely have your answer with 100% certainty because there is a US Supreme Court case directly on this issue is called us versus steagle. And the answer is no, and cops can not go in. So the reason why is because cops aren't not or are not necessarily violating the suspects rights, the ones they have an arrest warrant for. But they are certainly violating the homeowners rights. See, the homeowner has a right to keep police out of his or her home, unless they have judicial authority. Right. So just because they have a friend who's hanging out, that happens to have a warrant for their arrest, that does not mean that police can barge into that person's home, invade their privacy interest in order to effectuate that search warrant, I'm sorry, arrest warrant. So you're violating that person's rights. So you would need either consent, the homeowner can certainly give you consent to come in. Even if the the wanted the fugitive says how man You can't come in here. That's going to be a rare circumstance, indeed, where that guests can override the homeowners consent because they have greater authority of their home. So consent will work exigency will work if you have agency, you know, for example, if you do not get this person in custody right now, do you believe that he will be long gone before you come back? You better have specific facts, not just a. It could be possible? No, you're gonna need the guy's been running from police. And I don't have any people I can put on the house, I can't surround it. I can't stay here until I come, you know, come back with a warrant. You're going to legitimate agency. Okay. Do you have probable cause, that the suspect has evidence on their person, like DNA evidence, let's say that they're also suspected in a violent crime. And they also happen to have a warrant for the rest, but they're suspected about a crime that just occurred, you know, recently, like within that within a couple hours or so forth, and they may have gunshot residue on their hands, DNA evidence on their genital area, you know, evidence on their fingernails, that's something that will get you into the home and take them into custody? Or do you have a search warrant for him for that residence? That's what you'll need. If you don't have that you can't go in. And this question comes up a lot, because cops are like, But Anthony, I can see this dude. He's like, he's in the window or the the the homeowner opens the door, and I can see him sitting on the couch. ..
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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor with blue to gold along for some training, bringing the roadside chat from the studio. Alright, we got it. We got a doozy here. So my, the question is going to be, can officers conduct a surround and call out on a third party? third party's home. Okay. So when I say third parties home, what I'm talking about here is your surrounding a third party, right, someone who's not directly connected with the case when you are trying to get in custody another person, right, you have a warrant for the person, and they're at a third party's home, you have probable cause for the person, and they're at a third party's home. So that's how I like the idea here, I'll go into more detail about what I mean and so forth. But let me give you this scenario. This is from an officer in in from Indiana. All right. So they conduct surveillance of for wanted suspects, they have an arrest warrant for that person. They will often see them at a third party's home, a friend's house cousin's girlfriends, etc. They'll sometimes see them come out and go back into the home, right? They're grabbing the paper in their slippers. Well, maybe not quite that right. And so they know for sure that the guys there. So the next move is to surround the home and call the person out. If the person refuses to come out, they'll go get the warrant, and enter the home for that. Okay, so the COP is wondering, hey, does this practice? Is this practice flawed? Or is it constitutionally firm? Okay. I think it's flawed. I think we got I think we got a problem on our hands, my friends. And I have some concerns. Now I tried to look up, you know, when I answered these questions, just so you know, I'm a practicing attorney, I got clients that, you know, that need me that pay me that, you know, call me and, you know, I got to focus the vast majority of my of my energy and my time for my clients in my training and so forth. But I do try to find some cases, you know, when I when I do these, these roadside chats, and I found one that supports my position, but I've not found one that really is like on onpoint. So we're kind of making some case law here, but let's walk through it. Okay. So first of all, we know that if police have an arrest warrants, they can serve that arrest warrant at the person's domicile. That rule came from Payton, New York, Payton versus New York, okay. So if police have a warrant, they can serve it at that person's domicile. If the police have a warrant, and the person is at a third person's house, cousin, friend, etc, then they need either consent by the homeowner to come in exigency, or they need a search warrant to go into the third party song. And the reason why this is a supreme court here, right? The Supreme Court said, You know what..
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Hello, everyone, it's Anthony Bandiero Here, attorney, Senior Legal instructor for Blue to gold law enforcement training, bringing in a roadside chat. Alright, this question comes from an officer in Utah love teaching in Utah. So the officer is basically saying, what are the requirements to ping a cell phone for a suicidal suspect? Right, or I should say subject. So, here are some of the contexts. Can officers request a cell phone ping based off of a third party's suicidal report? Right, that's something suicidal. Sometimes these reports are hours, if not days old. Is there a reasonable timeframe to get the pain? Does the urgency fade as time passes? I'm seeing this use more and more. And basically, our law enforcement officers overstepping and or infringing on an individual's rights of privacy? So excellent question. And we don't have a lot of clear answers. So number one, I do not give any answer or any my opinion that's based off a state law. The reason why is that I'm a constitutionally, I'm a constitutional expert, not a statutory expert. So my viewers out there that are in Illinois, New York, you know, and so forth. You're going to have statutes on this issue, that you have to research everybody that the research, but I bring up those states because those states are notoriously a little bit more restrictive. Okay. So back to the question, constitutionally, well, the most appropriate case that we have on this issue is Carpenter, right from the US Supreme Court, I think 2018 Don't quote me on that part. But it's a it's a recent case. And carfinder involved getting cell site location information on a suspect, believed to be involved in cell phone robbery stories, actually. So they had about 127 days of data that they got. And based off of that data, they put carpenter at all the right places at the right time for these cell phone robberies. And the Supreme Court found that that was a search under the Fourth Amendment, and therefore required some exception to the Fourth Amendment or a warrant exigency may get you there, but not 427 days, right? exigency for like here, and now type pinging but usually a search warrant. Now one thing that they did say, in the case in a footnote, I think footnote two or three in the carpenter case, was that they gave a bright line rule that certainly seven days or more of location history requires a search warrant. But carpenter didn't really address the here and now, agency arguments for suicidal people, armed and dangerous people, kidnapping suspects and so forth. That's not what carpenter is all about carpenter really focused on historical data. Still, though, it did involve location information. So I'm just saying, you know, as far as the Supreme Court goes, that's our most relevant case where we kind of look for guidance. Now, going back to the question, so constitutionally, if somebody is about to commit suicide or hurt somebody else, but commit suicide..
Alright, let's talk about a question that I got from a YouTube viewer. And he puts us in a calm, he says, Anthony, can you do a video on how to turn a traffic stop into a consensual encounter? And why? Yes, I can. This is known my friends as the trooper to step or the clean break rule. So let me give you the context here. So you, you have a hunch that something's going on. You know, you don't necessarily have reasonable suspicion, or even if you do have reasonable suspicion, but you don't have a canine available, you know, but you want to see if you can get consent to search, right? What I recommend is if look, if you have a hunch, or reasonable suspicion, but no cane unavailable or no other resources, if they say no to because it's one that just try to transition the traffic stop to a consensual encounter, then talk to the guy, see if you can, you know, seeking, you know, seek consent to search if he says, yes, go from there. If he says no, then probably have a good day. Right. So what courts want to see, and this is the general in all states, right? What courts want to see is that there's a clean break between the traffic stop, and the transition to the consensual encounter a clean break, meaning is it, you know, clear, obvious to the driver, that he is free to go, and that this new conversation is based upon consent? Is it clear, right? What have you done to establish this clean break now? This is where the trooper to step comes in, and your addiction officers are going to be very well trained in this this thing, but any officer can do it. This is what I recommend. What I recommend is once you've decided what enforce Next, you're going to take a warning ticket verbal warning, whatever you're going to do, right?
Maybe get the guy out of the car, right if it's safe to do so get the guy out of the car. Talk to him about the enforcement action, Sir, here's your warning, your written warning, and so forth, given back all their paperwork and say something like this, sir. That's all I have for you. Do you have any questions, comments or concerns for me? Before you go? And the guy says, No, I appreciate it. I'm good to go, sir. Have a good day. I like officers to then turn around, start walking back there to their car, and then pause, turn back around and say Hey, sir, you know, before you get going, can I ask you a few more questions.
And the guy will usually say Yeah, what's up? That is a consensual encounter. Now this is a little over the top, do you have to do the trooper to step? Absolutely not. There are cases out there where the officer simply said, Sir, you're free to go. But before you go, can I ask you some questions, the courts have upheld it. However, in this day, day and age of high scrutiny by courts against, you know, proactive law enforcement officers. I like officers to just be very clear, and you know about what they're doing and making sure there's no misunderstandings about what's going on. So the two step is a very clean, clear way of letting that guy know, he is free to go. Right. And so that's why I like to see. So that's what I want to see. And you know, in articularly report that you know, based off these Reno's circumstances a reason person will feel free to go therefore I engaged in a consensual encounter...
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All right, this question comes from an officer in Indiana. And the question is is, so if we have if I stop a car with fraudulent plates, can I search it for the documents, to prove ownership, insurance and so forth. And so here's, you know, here's kind of the context here. So I'm a police officer in Indiana. And we, the officer stopped a car that was being driven around with some paper plates. Now he ran the plates. And he said that it should have returned as just expired, but it didn't, I don't think it returned at all. So some kind of fictitious release result switching that the plates are fictitious, stop the driver stop the vehicle contacted the driver, and she says, I just bought this car off Facebook marketplace, paid cash, no title, no bill of sale, the play came with the car. So the whole thing is a mess. Right. And dispatch also notified that the that plate was expired in in 2020. And it actually because I guess an additional search on it, and it was registered for a different vehicle. So the whole thing is fraudulent. The car is likely, you know, unregistered, uninsured, probably uninsured and so forth. So we have some probable cause for some violations here. Now, the compensation, can I search the vehicle for documents, you know, for ownership, you know, any kind of proof that she's in on it, maybe some other paper tags and so forth? Right? Insurance? You know, stuff that proves that it's her vehicle disproves it, all this kind of stuff? And the answer is absolutely, absolutely. There are two reasons why number one, Yasser kind of mentions one of them, probably cause? So do you have probable cause? Is there a fair probability that more evidence is inside the car that could help you prove or disprove your case? And I think the answer is yes. Right? She's saying that she doesn't have anything else in the car, or, you know, the play came with it, let's see what else is in the car, right? She says she has no bill of sale; maybe if there's a bill of sale, that's, that's to somebody else. Maybe it proves that she sold the car and so forth, right? She has, or she knows that she's not supposed to have the car. But also, there's this other rationale that's also out there by courts, that simply states that when the owner driver of the vehicle is unable or unwilling, right, to provide any documentation for the vehicle, it is reasonable to search those places where those documents are often held. For the paperwork, glove box, center console, above the visor, you know, little areas where the cupholders are, and so forth, you know, in the trunk, if you can justify it, maybe maybe not, you know, but it's much cleaner, if they're in those, especially in those areas where they're under control the driver. But the point is, that's another reason because that's part of, you know, the regulation of vehicles that you're you're supposed to be providing this, this documentation to prove ownership, and legality and so forth. So probably cars plus those other case, the other case law, on the books help justify that I it'd be very, I'd be very surprised that there's a court out there that said that the officer here did not have the right to do a limited search for that paperwork. And in order to move the ball forward now, I also you're probably wondering the same thing. Well, Anthony, what about inventory searches, right? That could work too, but maybe for some reason, the officer does not want to tow the car. Maybe she pulled into her driveway. And there's not really a community caretaking rationale, you know, to tow the car, maybe we'll leave it there. Maybe it's in a private parking lot...
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Alright, guys, today's questions is so important. It's important to every single officer watching my videos and those that watch my videos. It is what happens if we lose qualified immunity? Right? It's on your mind. I know it is. And if you've already lost qualified immunity in some of the states like Colorado and so forth in New York, New Mexico, right, then what does that mean? Okay, well, first of all, let's get down to it. What is qualified immunity qualified immunity is a judicially created doctrine that protects officers from lawsuits when the issue is not clearly established under the law. In other words, officers oftentime make decisions in the field, constitutional decisions that are not quite black and white, you know that the US Supreme Court has not addressed it, their Circuit Court has not addressed it, their state Supreme Court has not addressed this issue. So what is what are they supposed to do? Say, timeout? Suspect? Look, I'm going to timeout for a second. I'm going to go seek judicial approval. But what I'm going to do, and I'll be back, no, they can't do a timeout. So qualified immunity is there to protect officers except the blainley. Incompetent from lawsuits against for situations that are not clearly established under the law? In summary, to qualify for qualified immunity, right, to get to be immune from a lawsuit. The qualifications are this, number one, did you even violate the constitution? That's one question that the courts can ask and answer, right. Um, maybe they say, Look, I know, it's unclear that this officer, you know, but we actually find that the officer did the right thing. So, boom, we don't need qualified immunity, the officer actually was constitutional. But even if the court found that the officer was conducting or doing something that was unconstitutional, right, the next question is, alright, was the law clearly established at the time because, again, if the laws not clearly established, then it's not fair to hold the officer liable for money damages, when it's not even clear that they would have violated at the time of the act. So clearly established law comes from again, the US Supreme Court, and your circuit court, and your state Supreme Court. So for example, if you're in Texas, and you do something, right, and the Illinois State Supreme Court has found that what you did violates the Constitution, does that apply to you know, that is persuasive, not binding on my Texas officers, so that is not going to eliminate qualified immunity for Texas cops, right?..
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Hello everyone, Anthony Bandiero. Here, Attorney Senior Legal and started for Blue to gold law enforcement training, bringing to the roadside chat. Today's question is, what are the rules regarding a temporary seizure of a firearm during a traffic stop?
Great question by officer comes from North Carolina. So, base a little bit of context here, let me read what he or she wrote at a quick question regarding temporary seizing a firearm during a traffic stop. And so, this officer said, Look, I've watched your video about running the firearm, you know, serial numbers and things like that things to kind of think about, I do have another video about that. Um, you know, so he says, in my experience, besides blatantly obvious officer safety issues, right, there's something about the tropics, aka drive by shooting or a brandishing case. You know, we can seize them. Also, drivers will generally allow you to temporary seize a firearm if you ask for it, right. If you say, Hey, do you have any firearms in a vehicle and say yes, especially in a state like North Carolina, where a lot of people likely have firearms, especially if you explain to them why. But the officer also explains that that's not the only option that they do that he does. And maybe he also separates the firearm from the person maybe brings the guy out of the car. Hey, where's the firearm? Under the seat? Okay, fine. Much has come out and we'll do business outside the car. But push comes to shove. Right. The question is, if there are no other reasons, to be concerned for your safety, can we still separate the firearm and seize the firearm? I guess, right, seize the firearm during the traffic stop, even if we have no other reason to believe that they could use that firearm against us? And the answer is yes. Absolutely. Absolutely. Why? Because the firearm equals armed and dangerous. Right? That's Terry versus Ohio, right. So if you don't know about the firearm, they may or may not be armed and dangerous. You gotta articulate that. But the if you know that they have a firearm or have a reasonably the firearm, then they are automatically considered armed and dangerous to Terry Stop level, which is reasonable suspicion enough to seize that firearm during the traffic stop. That just makes sense. Because, you know, look, if a judge is going to second guess, a cop, and say, Hey, you have to have the firearm plus something else? Well, they're gonna have blood in our hands, right? There's gonna be that one cop out there that just can't have those as a gun inside the car, maybe even on the guy's hip. But can't figure out another reason why that gun could be a danger to the officer, then the person flips out on the cop shoots the cop. And now we have this case where the judge says you can't do it, the cop, the judge, is gonna have blood on his hands. Right or her hands. That's just not the way it works. So I've never seen a court case require something more than just a firearm if I mean, if you know the firearms there that is armed dangerous. So at the same time, look, I was a cop in a pro gun, state, Nevada. Everybody had guns. Right. So while well West, and the way I did business was, you know, oftentimes if they said they had a gun, and they were concealed carry permit, and there's nothing shady about them. They're on the up and up...
Alright, so today's questions is a little complex. So you got to bear with me on this one, I might need to take a little bit of your time to get through it. But the question is, is our orders to detain and transport the suspect back to the station for a formal interview? lawful. All right. So, alright, so not all states may have this, but there's still an interesting situation. So an officer from Missouri says that it is a common practice in Kansas City, Missouri, where the process the state prosecutor's issue in order A, it's called a stop order, or a PLI a person of interest order that's entered into the computer system. And when the person is found, they are then handcuffed, transported back to the station for a formal interview. Okay, so common practice. Now, it's this is not a fresh arrest, right? This is not, you know, where somebody got arrested and transported and, you know, we're gonna interview them. These are based off of these orders issued by the State prosecutors. Some of the officers feel that this is an unlawful practice. Right, that this is basically an unlawful arrest. And that you would have to have either an arrest warrant, probable cause or consent. Okay, so let's go through this. So first of all, let me say that if you have probable cause, to arrest the person, and, you know, the stop order is based on probable cause. We don't have an issue, I don't see the issue, because we can just call that an arrest, and just arrest the person. You see my point here. The only issue is going to be if the stop orders or P allies are based on reasonable suspicion or anything less than probable cause. So let me assume that that's what's going on. Again, now, it also talks about fresh PC, we don't have fresh PVC. I don't think it's gonna matter. I don't see the issue there. As long as you have probable cause, whether it's stale or fresh, if it's still probably caused, and there is a right to arrest the person. We can just call this stop order or poi an arrest warrant. Right. It may be it may be called it's not called an arrest warrant. But I think we just call it that, constitutionally, because it looks the same. That's what kind of looks like right. So if it's if these if these stoppers appeal wise or not based on probable cause, Houston, we have a problem. So let me just go through some I'm getting my source here from the great Wayne Lafave if you know, you've been in my classes, you know that Wayne Lafave is a God in in search and seizure, you know, history, and he's most cited and Prudential search and seizure expert, according to the US Supreme Court and so forth. And he has a treatise called the search and seizure treatise, right. So, here is a case where you see what this is a case in US versus Brignone. Ponce, for to to us. 873 1975. So, here's what the Supreme Court said about something like bringing bring the guy back to the police station, right. The detention of the petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly, where he was found. Instead, he was taken from a neighbor's home to a police car, transported to a police station and placed in an interrogation room sound familiar?...
Alright. Today's question is, can we search a deceased victim's cell phone? Right? Okay, so comes from an officer in Alabama, let me ask, let me give you the context here recently, and, you know, at overdoses, our narcotics Units unit has been wanting to seize the cell phones for the purpose of searching them. The goal is to charge a drug dealer with the death of the individual, right? As well as general information gathering, maybe they can point to the right finger in the direction of local dealers in the in the city and so forth. Now, the cop says My understanding is that since the person is deceased, they no longer have a fourth human rights in the deceased has no more issue, privacy interest in the phone, and they can perform the search without a warrant. Now, the only hiccup the officer is seeing here is that what if the family member says no, you cannot take our son's cell phone? You cannot take our daughter cell phone? We want it that's going to be ours, because we're going to inherit his property? Do they now have to get a warrant? If they do not get consent? All right? Well, look, I kind of talked about cell phones before. But let me just re address it because it's a very important issue. Generally speaking, there is no privacy interest that the drug dealer has in the phone. So even if the cops search the phone with nobodies without the famous consent, even though they may get the property in probate or whatever, right. They don't, there's the family doesn't have a most likely a privacy interest in the phone. It's the son's phone, it's his phone. Now, even if they got the phone after the death, it's not, they still have no privacy interest in the information. So we're not going to really have an issue there. Even if they had a privacy interest, even if they're the only time the Fourth Amendment is going to be implicated as if they're being charged. So if the mom, for example, says you cannot have my, my, my phone, my son's cell phone, and we find out later that she paid the bill, she has common authority over the phone, she often uses it because the sun allows you to use it, and blah, blah, blah, that's not going to come up. And that's not going to be an issue of the criminal case against the drug dealer. Unless the drug dealer is mom, right. So even if mom has a privacy interest, it's not going to come into court because the drug dealer, if it's not mom at some third party, who's dealing drugs in the in the city is not going to be able to use go through mom to try to claim that he has some privacy insure. So again, it's at the end of the day, the result is probably the same. So just a wrap up. If somebody dies, and they have a cell phone, and police, you know, then the guy has the disease no longer has a privacy interest. He's not going to complain, right, obviously. And even if they somebody else, like the family member that has some tied to the phone complains, their denial, even for warrantless search is not going to be effective, as long as they're not a defendant. Right, because but if somehow, that family member who happens to have a privacy interest in a phone, which can be rare, but they happen to have a privacy interest phone, if they start becoming a person of interest, Houston, we have a problem. They can complain if they do have a legitimate privacy, interest and phone, they can complain about a warrantless search..
Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training, bringing to the roadside chat from Knoxville, Tennessee. I got a question from an officer in Las Vegas, Nevada, Las Vegas Metro. So here's the question. Can you search a person for evidence if you have probable cause? Okay, so, you know, in other words, do you have to make the arrest? Right. Okay. Let's go through some a couple scenarios at the officer. I got my little laptop here that I'm reading from the car. Alright, so one is basically the officer had a consensual encounter with a suspect that he knows from the past prior arrests, you know, he's your neighborhood felon, get type deal, right? You know who he is. And the cop asked them hey, Johnny, you got meth on you. And this guy mitts? Yeah, I got meth on me. And so that can be a site and release type of situation. You don't have to arrest them, right? Otherwise, we don't have the problem. We can do a search incident to arrest the COP is asking, Can I retrieve that evidence? Without the arrest? And he's getting conflicting answers. But I have your answer. The answer is yes. The answer is yes. Under two, and under two rationales. Number one is exigency. You don't have time to go chase down a warrant, while this guy is standing on the street, even if he's in handcuffs, he can manipulate the evidence, he can, you know, if he has a, let's say, some kind of paraphernalia, he can, he can break it, he can land on it, you know, he can try to escape. The point is, you know, there's this exigency there, there's this, there's this urgency just to get the evidence off of his person to cure it, and then go from there. So there is usually exigency. And you know, the vast majority of courts have held the same. The other one is that the intrusion is less than what you could have done, which is arrest the guy. I mean, think about it. If it's an arrestable offense, it's it's a, it's a, it's a crime committed in your presence, you know, even if it's a misdemeanor, it's a crime being committed your presence, he is telling you that he has meth on his person. That is probable cause, right? I mean, why would he lie about that? So is there a fair probability he's telling the truth and add that also with his prior histories? And so, you know, how is he going to complain? When he goes to court and say, Your Honor, they should have retrieved that evidence. But isn't it true defendant that they could have also arrested you and did a full search incident to arrest including potentially a visual cavity search at jail if you're going to be put into general population? So the cop you're saying that the cops can do that, but they can't do a lesser intrusion? Which is just to retrieve the evidence cite you and have you go on your way? Is that what you're saying? Defendant? It doesn't. It's not reasonable, right? It's more reasonable just to do the lesser intrusion, and kick the guy loose. Okay, so and so now, the other scenario that the cop says, Okay, so there's the drug scenario, here's the nurse scenario. A person is detained by loss prevention. The loss prevention does not retrieve the evidence from the person, but they have him in custody, right. They're just basically doing a citizen's arrest. But they're not searching. So the cops show up, and they watch the, you know, security cam, and what did they see on a security cam, this guy stuffing stuff down his pants, you know, in his backpack, whatever. And now, can we retrieve that evidence without arresting him? Well, we know that this is not a misdemeanor coming your presence, by the way, you know, just because you watch a film of a past event is not come in your presence..
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Hello, everyone, it's Anthony Bandiero here with blue to gold law enforcement training, bringing to the roadside chat. All right. So our question today comes from an officer in the great state of Tennessee. I Love Tennessee. All right. So here's the question. Can a tenant in a government housing project waive their Fourth Amendment protections of the home by lease agreement? Okay. Let me give some context. So the officer sharing here that in our local housing authority, it is my understanding that the manager can enter and search a tenants apartment anytime, under the lease agreement. On occasion, they have asked that we stand by while they do so. And have even asked for Kane for canine to sniff the apartment. Does this violate the Fourth Amendment? Or does the lease agreement act as it as act as consent? Alright, so the, the quick answer is, can the government housing project waive a person's fourth amendment rights?
And the answer is no. Because no government agency can basically tell a person you have no more fourth amendment rights, right? If you're going to take if you're going to subscribe to this or, you know, accept these government benefits, you have no fourth amendment rights, that's not the way to look at it instead. The question is, okay, are they asking for something that is reasonable? Right, if it's reasonable, it likely complies with the fourth time, it's not like the government, government housing projects have no have no authority to inspect their property to make sure that people are not abusing the property. And, you know, if they get a tip that something's manufacturing drugs or so forth, that they can't do anything about it. But the point is, still, is that is that a waiver of the Fourth Amendment? No. Is it potentially reasonable under the Fourth Amendment? Maybe? So let's go through it. So number one, apparently, right, or allegedly, the lease agreement says that we can come into your apartment anytime and inspect. I doubt that's the case. Right? If that if it truly said that we can come into your apartment anytime and you know, without notice, or without any kind of just cause I doubt a court would uphold that. Because that is not reasonable. Right? You are the government and you're in you're offering these benefits. And you're saying as a stipulation to accepting the benefit, I have to allow the government's right, you know, aka the Housing Authority, the law, the government to come into my home and just rummage through my stuff or just inspect my property? No. So I doubt that that's the case...
Alright guys, today's question comes from an officer in Texas and asked me, Can you trespass? Someone sleeping in a rented storage unit, I am sure that all of you have run into something similar. So Now, usually I don't touch statute issues. I'm a search and seizure guy. But I think I can address this when I see them being pretty straightforward.
And the answer is, yes. I think that this ties in with search and seizure, because we have a lot of debates today about, you know, when Pete When homeless people have nowhere to go, you know, police options are sometimes limited. But we're when we're talking about those cases, Martin versus Boise, for example, out of the Ninth Circuit, we're talking about situations of public property, right? There is a debate going on around the country, where if homeless people do not have a place to go, and they're sleeping in parks, and so forth, and under bridges, and cops want to trespass them and move them along. The question for the courts becomes where, right, okay, you want to move them from here to there? Or move them? And then where, right? Where can they go? Is there a shelter available, if there's not a shelter available is another place that they can go like a designated urban camping spot. So that's kind of where I think the flavor is coming from. But normally, we don't have those issues when it comes to private property. Now, the storage unit is not a hotel, it's not sanitary, there's no bathrooms. It's just, you know, the it's not safe, frankly, for safe and sanitary, sanitary, for people to be sleeping in storage units. So this the, if the rental storage unit, you know, manager wants to kick these people out for improper use of the storage unit, I see no problem at all, for criminal trespass, for my understanding of Texas law, but you know, even a lot of places, it's just not going to be a lawful use of the premises. So therefore, they can be trespassed, I think it's a pretty straightforward question. I understand. I'm going to also again, give a little spin about how to look at it through the eyes of maybe some search and seizure issues because of the homelessness problems pervasive around the country. But again, I don't think that's going to change the outcome here. I think that the storage unit absolutely has the right to keep people out of their storage unit living in there, and they can be trespassed for it. Alright, so pretty straightforward answer, hopefully move the ball forward a little bit before you guys go. Do me a favor, hit like, please hit subscribe, and tell your friends about us. Alright, until next time, my friends stay safe.
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Alright guys, this is a question that comes up a lot. It is when can we enter a home after a 911? Hang up? Right? I shouldn't really say 911 Hang up. And let me give you some context here from my email. All right, there's officers from Texas, you know, we often get sent to Nemo and hang up calls with no information provided by the caller. When we get on scene and someone answers the door, they typically tell us everything is fine. You know, inside it was also it was an accident. My question is, at what point do we have an obligation to go inside the home to check on the welfare of others. So the cop will typically ask if there's anyone else inside. And if they say no, and the cop doesn't have any reason to believe anyone else is inside there, then the officer concludes the investigation leaves. Now they tell the officer that someone is inside, I let them know that I want to check on the person to check on their welfare, and typically give them the option of bringing them to the cop right to the door, or the COP is going to potentially make a forced entry and walk past the husband, let's say and go check on people. Now, let's say that we get a 911 Hang up. And upon meeting the caller at the front door, we are informed it was an accident that they dialed 911 and everything is fine. They then tell us that there are other people inside but no emergency exists. We don't see anything that would indicate an emergency. I don't hear anything that would give us exigent circumstances to enter the home. The question is, are we obligated to check on the rest of the residents welfare inside the home? And if we enter the home without consent or any other agency, would that be violating the person's rights? All right. This is a great question. And you know that this comes up all the time. So let's just kind of address it now. First of all, the laws, you know that the officer can recognize that he's did some research and the case was a little over the place. I will say that the majority of the cases seem to be supportive of the officer's actions. Right of going in of making sure that people okay nama one hangups, you know, can be pretty serious. But this is 2021. This is not your grandparents Police Department. There are a lot of stuff going down today that was would never have gone down even 10 years ago. So the game that we're playing today is way more advanced is way more protective of your liability. Okay. So with that said, Here's what I teach. Number one. What is the rule? The rule is this falls under the emergency aid exception. This is not a does not fall under community caretaking. We know that community caretaking does not apply to homes. Right, we have that from a US Supreme Court case called Coniglio versus strong caretaking Communicare taking is a pretty a relatively low standard where cops just want to make sure that people are okay; that's not the standard that we use anymore. We are definitely in the ballpark of exigency emergency urgency, and that falls under the emergency aid exception. So, therefore, in order for you to push past the husband, for example, and check on the occupants, you're going to be able to need to articulate some ongoing emergency where time is of the essence...
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Alright guys, this question comes from an officer from Florida and basically the idea is the Carroll doctrine. Concerning passenger's property. Let me kind of read a little bit about about about the background for my email, give you some flavor what's going on. Alright, so officer in Florida had a traffic stop, right? For expired registration, now made contact with the driver and the passenger, who are both not the registered owners of the vehicle. The driver provided an expired with his license but learned later that it was suspended. The passenger provided an ER name, but no license and is also making it clear that they cannot search nobody can search her stuff, nor the car. Now she has a warrant, but we learned later that the warrant is not extra but extraditable about where they're at. So it's not going to be executable. Alright, so while hold on me. All right, there also the tag attached. The vehicle was not assigned to the tag on the license plate is not assigned to the vehicle. So there's all kinds of things going on. There's no canine available. Now the vehicle is inventorying for towing in plain view on the driver's side floor was a crack pipe, and then plain view. When the doors open open, we also see a US needle in the storage compartment, a book bag that the driver was holding. My first approach was searched, drug paraphernalia were found in some cocaine, the driver was charged appropriately. Now what we're going to be talking about here is what about the passenger? Right? The passenger also has some property. And can that now the passenger admits that hold on the passenger Okay, he's the pastor saying, hey, you know, the needle can't be the drivers because he's snorts his cocaine doesn't shoot a needle. But apparently, she admits that she uses needles. Right. But also, the needles might belong to the owner of the car. So the question is, could the passenger's purse be searched? Under the Carol doctrine, the motor vehicle exception is based on the totality of circumstances, alright. Hope you got a flavor what's what's kind of going on? But alright, so here's the deal. Okay. So, generally speaking, the passengers items fall under the Carol doctrine. So passengers don't fall under the Carol doctrine like passengers are not searchable under the motor vehicle exception. Instead, you have to have probable cause as to them whether you have probable cause here; that's not the question the COP is asking. So I won't address it. But we do know, from a case, I think it's called Wyoming versus hufton. Maybe not be saying that correctly. But it's Wyoming versus the US Supreme Court. And the US Supreme Court stated that if police have probable cause for the car, that they can also search those areas where they reasonably believe more evidence could be found. Well, okay, that's the question for us here. Do we believe that more evidence of the drugs could be found in the passengers? Purse? And I believe the answer is yes. But the way that you answer this question is another case. So we know that passenger stuffs our belongings are fair game if you have probable cause. Well, that brings us to another case called us versus Ross. And they're the US Supreme Court says that you search a car in the same manner as if you had a warrant. My question for you then is this. Do you think, based on the circumstances that the cop if he or she wanted to, can go get a warrant for the car in
for the purse? If the answer is yes, then you search the car, you search the purse? If the COP is unsure, then you probably shouldn't search the purse because you don't have your probable cause. In other words, what would you articulate? Is that make sense? That's kind of what we're looking at here...
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Alright guys, welcome to another roadside chat. Today's question is, from an officer in Indiana, would the single purpose container doctrine allow cops to search a vehicles hidden compartment? Alright, so the first thing we want to learn is what is a single purpose container? Okay, a single purpose container is this doctrine that basically says some containers by their shape by their manner of under totality circumstances, the way that they're kept, the what they're packaged in. Things on the outside, are so telling of what to contain what the contents are, that a reasonable officer would know that only contraband is inside. So that's a roundabout way. So in other words, a single purpose container is a container that announces its contents in a manner that only contraband is inside. Okay, the why this is important. This is important because under the Fourth Amendment, in order to search a container, you have to have usually probable cause plus probable cause, plus search incident to arrest probable cause plus motor vehicle, probable cause plus consent, probable cause plus exigency. In other words, there is no such thing as searching a container based off a probable cause alone, it doesn't exist, it's a unicorn. So single purpose container doc doctrine basically saves some of these searches, it allows, because the way that the Supreme Court looks at it is that a single purpose container would not have any privacy interest, and so forth. Let me give you an example of a single purpose container, a drug package, right? A brick of cocaine. It's wrapped up in, you know, paper or duct tape and so forth. Can you see inside of it? No. But do you know that it's packaged in a way that only contraband is inside? Yes, therefore, you don't need any other reasons to search it. The reason the package containing contraband is enough, but don't be fooled, because sometimes you'll have probable cause that a container has contraband inside. But it's not a single purpose container because it could have something else like so for example, there was a case involving a cooler, and the cop smelled the marijuana emanating from the cooler and the cop opened the cooler and found marijuana. But the problem is the under this situation, the cooler was not near the guy wasn't search incident to arrest it wasn't part of the motor vehicle. The problem is that there was no other reason to get into the cooler because it was not a single purpose container. The cooler could have other things in it nonconscious ban bologna sandwich, Capri Suns, you get my point, not just marijuana in at this time was it was contraband. Alright, so now we get to the cops question, would the single purpose container doctrine allow cops a search of vehicles hidden compartment? Other words? Could the hidden compartment be viewed as a single purpose container? The answer is most likely not. I don't have any cases on it. I haven't seen it. But I don't really see courts, or at least prosecutors applying the single purpose container to hidden compartments of a vehicle. And here's for good reason. Frankly, you don't need the single purpose container doctrine to save the day for the searches. Why? Because the COP is going to have probable cause anyway. And if you have probable cause plus motor vehicle, that is the motor vehicle exception, why not just use that? Forget the whole more complicated argument about single purpose container? So that's really the answer here. We don't need the single purpose container to even search the hidden compartment because you're going to have if you have probable cause you have probable cause and just use the motor vehicle exception. All right...
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Hey guys, it's Anthony here, bringing in a roadside chat from the road. Actually, I'm in Joplin, Missouri this weekend. It's actually really nice to be out here. And it's a beautiful place. So this question comes from an officer in Alabama. And he says, Can a subject be interviewed after invoking Miranda, on a separate case, by a different agency. And so the kind of the backstory is a suspect was arrested by a neighboring department. They went into interview him, but he said he wants to have an attorney. Now, this officer wants to read, you know, give him Miranda again, and interview him on a different case.
And here's the answer, the answer is that according to the US Supreme Court, this guy is off limits for any interview, regarding anti any crime for 14 days, post Miranda custody, alright. So this rule makes a little bit difficult for cops to get to interview people after they invoke the right to counsel. So there's a couple things going on. Number one is this 14 day rule, the 14 day rule comes from a US supreme court called Chester, where they made a bright line rule normally Supreme Court that doesn't make bright line rules, but here they did. So it's a bright line rule that if the guy invokes the right to counsel, he's off limits for 14 days, post Miranda custody, what does that mean? Post Miranda custody? Well, being in Miranda custody is a totality of circumstances tests that ask whether or not a reasonable person would believe custodial, like arrest exists. And the cops are asking questions, which are likely to elicit an incriminating response. So that's kind of like your arrests, you know, during the booking process, and so forth. But when does a person leave Miranda like custody? Well, if they're released from jail, certainly, that is easy. If they're put into general population, we don't have a lot of court cases on this. But if they're put into general population with other inmates, and they're going to be held for a while, this is not like a holding cell. But this is like their new home until they get bail money, or maybe they're just waiting trial, there's the best argument is that they are not in arrest, like custody at that point, because jail is now their home, we certainly know that. That prison is the person's home, and a person is not in Miranda custody, while they're serving a sentence in prison, it's less clear in jail, but I think the best advice I have for you is that, you know, let the person you know, if he's in general population, you know, let him have his 14 days, and then re mirandize him and see if he will talk now you don't need to talk to an attorney if you're talking about a different crime. But if you're talking about the same crime or any criminal act, you know, any crimes that can be related to that one he's been held on, he's off limits, period, basically, until he talks unless you have his attorney present, and the PERT and the attorney signs off on it. This rule sometimes has consequences that are not really logical like so for example, the cop here wants to talk to a guy about a different crime different agency. But yet, he's off limits for 14 days. ,,
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The following is a computer-generated transcription, some grammar and spelling errors may be inherent
Hey guys, it's Anthony Bandiero Here, attorney, Senior Legal instructor at Blue to Gold. Okay, so been really busy. I'm going to be putting out more of these videos as as we go forward here. But I'm outside of Cleveland, Ohio delivering our advanced search and seizure classes. And hopefully you've attended one of our classes. If not, please sign up online. Also, we traveled the country. Today's question comes from an officer in New York. And he was reading my book, the search and seizure Survival Guide. And he said, Hey, you know, you mentioned an automatic pat down in your book, what is an automatic pat down, you know, and just kind of give you some more context, and he wanted more context to understand what I was talking about. First of all, I'm glad he reached out because I don't normally use the word automatic anything. When it comes to the Fourth Amendment. There really are no automatics. I mean, everything is based on something else, like a search incident to arrest. Okay, it's automatic, right? I mean, you get to search somebody's incident to arrest, but it's not automatic in the sense that you have to have a lawful arrest. If you don't have a lawful arrest, then the search would be invalid to be for the poisonous tree. But what I mean by automatic pat downs is that when you're dealing with violent people who are suspected of violence, and that crime is is suspected of being involved with a weapon, then pat them down. Right? That's an automatic pat down. So violence plus weapon I mean, this is when you think about it, it's like okay, Anthony, that makes that makes sense. Obviously, I'm going to pat down somebody who I believe is violent and also has a weapon. And the reason why I call it automatic is because it instantly satisfies Terry, right? Terry versus Ohio has two requirements you know for pat downs right? It says that the person is considered armed and dangerous. Well, if they're if you believe that they could have a weapon, there's the arm check and dangerous if you believe that they've committed violence against somebody else, and they have a valid temperament Right? Or some other factors that believe that they could engage in a violent act on you well, there's the dangerousness equals pat down. So when you serve out these guys, you're gonna you're gonna pat them down, you're still going to articulate it, you're not going to use the phrase you know, I then conducted an automatic pat down in your report Don't say stuff like that the court will push back on you and say look, you know, what do you mean by automatic right? Say that I conducted a pat down because the person was believed to be involved in a violent crime such as you know, sexual assault and the report to be abused the weapon I you know, ie a knife gun, you know, some kind of striking device, you know, and so forth. So, that's what I mean. Alright, so there you go. Keep the questions coming hopefully adds a little more context to my viewer in New York, or my reader in New York and also some other cops guys, keep these questions coming. Please hit the Like button. let YouTube know if you find these videos, valuable. Comment. Any comments are great, you know, feedback for me and for the rest of the viewers. And finally, stay safe out there and keep up the good work. Thank you.
When it comes to law enforcement training, we are the gold standard, visit blue to gold.com or call 888-579-7796 to learn more about our training books and free webinars. Also, don't forget to like, subscribe and share this channel.
The following is a computer-generated transcription, some grammar and spelling errors may be inherent
Alright, hey guys, it's Anthony Bandiero Here, attorney, Senior Legal instructor for Blue to Gold law enforcement training, bring it to the roadside chat from Joplin, Missouri. Got a question from an officer in Florida. He basically wants me to clarify protective sweeps and murder scenes. Okay, so the officer says, you know, he was watching one of my videos regarding protective sweeps, I mentioned the case called Mincy versus Arizona. And I'll explain in a second, where I talked about there's, you know, the Supreme Court ruled that there is no murder scene exception to the search warrant requirement. Okay. And then, you know, so he's talking about look, you know, however, if response reporting shooting in a driveway of a residence, wouldn't we have exigent circumstances, to conduct a warrantless sweep of the residence for possibly other injured parties to see if the perpetrator is still on scene, you know, and so forth. Right. Also, the officer says, you know, we also, you know, follow the trajectory of the bullet to see if other people been injured, you know, across the street, maybe in the back, you know, the other houses on the other street and so forth. And, and to make sure that nobody was hit similar to a public safety statement, you know, hey, where did you shoot? How many rounds? Did you fire? That type of thing? I'm looking at my computer, by the way. So any clarification would help? Look, let's let's do this. This is, uh, this is great. This is a great question. It's a great follow up question. Let's make sure that if there's some confusion about what I'm saying, you're like, man, you know, that doesn't really sound right. You know, please, I want you to reach out to me, because in my brain, it all makes sense. But when I make these quick videos on the road, I could say something that may not be. I mean, it makes sense. So let's first talk about Mincy versus Arizona. Look, the general rule there is that once police secure the scene, and they're looking for other victims, and they don't find anybody looking for that perpetrator, that you can't, you can't just stay in people's homes, process a crime scene, you know, and then use that evidence against somebody who has a privacy interest in the home. And in the Mincy case, the cops are actually in the house for four days, four days processing that crime scene, and no warrant and no consent. So that's the problem. All right. And they, you know, they recover, like almost 300 pieces of evidence, and so all that was suppressed. And that's not the way we do it. So instead, when we have a crime scene, we go to a murder scene, right, like a shooting and so forth. What we're gonna do is we're gonna arrive on scene, and we're going to, you know, potentially enter the home if you believe that more victims, or the perpetrator can be in the home. So what the officer is saying is absolutely correct, right. You know, that's what they're doing. And that is absolutely permissible. Mincy does not prevent that, because menses only about processing crime scenes. It's not about protective sweeps, that would fall under other court cases. Marilyn versus buoy US Supreme Court. I also think a case called Ryberg. Versus Huff would also kind of cover the public safety aspect. It's it's not directly on point, but it does talk about how when officers, you know, reasonably believe that they're about to be attacked, you know, they can enter homes and so forth. And I think that would apply for potential perpetrators. But look, the vast majority of courts, if not all, courts, are going to let cops go in there and look for perpetrators and more victims...
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Hey guys, Anthony Bandiero Here attorney, Senior Legal instructor for Blue to gold law enforcement training, bringing to the roadside chat from Joplin, Missouri. What a great place, by the way, my first time here, and it won't be my last. All right. So I have a question for Nasir. He actually doesn't say what state he's from. And his email addresses personal email address, but that's okay. And he wants clarification on detaining someone who committed a crime. But the victim doesn't want to press any charges. And then they want to know about, you know, can we still detain him, identify him, try to find out what his story is, and so forth. So this situation is this, they responded to a suspicious person called, of unknown subject, knocking on a door that doesn't belong there. As he left, he broke a vase that was on the patio, you know, that can just imagine this guy just like, something's wrong with him. He just like, smacks his face and it just breaks, right? They can they contacted the homeowner, right? And she says, Look, I don't want anything done, right? I'm not going to be a victim here, and just let it go. I want nothing to do with it. So they then leave? Well, they then see him walking down the street. And they considering a consensual contact. You know, since the victim doesn't want anything done, but the officer is asking, you know, let's say he doesn't want to engage in a consensual contact, can we actually detain him? Right? And investigate? And here's my answer. I think the answer is no, I don't really have a case on this. I've never seen a case on this. But I think jelly answer's no. Because look, if you look at the tensions, what are they for, they're supposed to be for conforming or dispelling whether criminal activity is afoot, right? criminal activities ongoing. So we basically have no victim no crime. That's kind of the way I'm looking at this right? You have a person who's saying, I don't want to make this a criminal issue, right? This is gonna be a wash for me. So you don't have that? You. You also don't have. And again, I'm spitballing here because there could be a case out there that that says, yeah, actually, we can still contact him and so forth. I'll tell you one of potential what I think we could do but wait for it. And then also, we don't have probable cause, either, because we have no, you know, we don't have enough evidence, because we have no victim that doesn't want to make this a crime. We don't have evidence that the person at this point has engaged as committed a crime, because again, you got this no victim, no crime kind of idea. So I would say no, I would not detain this person; if they don't want to talk, they can keep on walking. Here's the caveat. If the officer has facts or circumstances that lead him or her to reasonably believe that this person will commit a future crime, right, that this person, you know, maybe we saw him going up to other people's houses and knocking on the door. I'm definitely good on that point. I'm definitely good with a detention at that point. Because it looks like he's going from house to house and he could be breaking more stuff in plus, what is he really up to? ...
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Hey guys, Anthony Bandiero Here attorney, Senior Legal instructor bringing a roadside chat from an officer in Texas. Now, this officer says, you know, ask basically can we automatically pat down suspected gang members? Right? And to give you a little context here, the officer is talking about, you know, attending some outlaw motorcycle gang training, and, you know, get a lot of bad deals in the area. And then instructors basically saying, hey, look, if you are dealing with a one percenter, right? Michigan versus long, which is a US Supreme Court case, about first can vehicles allows you to essentially, you know, conducted frisk of that motorcycle for for weapons. The officer will first ask, though, this is what they teach, they'll ask for consent to search the motorcycle, if they say no, then they get them off the bike. And they search it anyway. Because of their because they're, it's known that gang members can easily access the saddlebag these game members can access to settle back and potentially grab a weapon. Now, the question is, is does Michigan versus long really hold that that suspect a gang members, you know, essentially can be automatically patted down just with that fact alone. And certainly, Michigan versus long doesn't it's not that fact pattern that's that case involved a drunk driver who crashed into a ditch and the officer saw him trying to go back to the car, it was a knife in the in the mat pocket in the door, if the door is open, you got you know, long back and another partner looked for sees the knife and look for more weapons in the immediate area, and found narcotics in the center console and the Supreme Court upheld it because the logic was, hey, look, he was trying to go back to the vehicle. It's, you know, it's a fluid situation, he's intoxicated, there was only one weapon in there, that could potentially be another weapon in there. And that frisk of the vehicles upheld, but it certainly didn't talk about anything about gang members. Now. All I can tell you is what I teach, right? I don't teach automatics like, you know, automatic searches, you know, for my cops. There's really no automatics out there. There's no free lunch when it comes to the Fourth Amendment, you're going to have to work for it a little bit, you're gonna have to go to court and explain that simply having a 1% patch. You know, that's one factor. It's a very important factor and, and but what else do you got there? I mean, you know, we're gonna have to have something more. And usually there's going to be so that's the good news. Here are some cases that kind of, you know, illustrate what I'm talking about, right. Here's a case out of Kansas, a case called State vs. Goldston. 2009. Now it says here at the time that the officer conducted the pat-down, he knew the following facts about the suspect. He was in a database as a documented gang member. He was with a known gang member who was on supervised release from prison and had been involved in prior stop involving drugs within the last two weeks. He had just come from a city known for drug activity, and were several arrests and or area of town. Actually, I think, I'm sorry, it's not a city. It was a gas station. He just came from a gas station where several rest of them made recently for drug activities and so forth. The officer also articulated he knew that drug dealers that involved in gangs often had weapons to protect the drugs and the money. Right. They're self help, right? They're like their own little police department. And considering all these facts, the court upheld, but do you see what's going on there? It's not just saying Your Honor. The person is a one percenter therefore, I conducted a vehicle suite, you know, or pat down. We need something more than that in mind book, but you're gonna have it usually...
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Hey guys, Anthony Bandiero Here attorney, Senior Legal instructor letter roadside chat. And our question comes an officer from Texas.
Can a person in police custody provide consent to search without violating Miranda?
The answer is yes. Here's why. Miranda only applies for the three conditions. The person is in arrest like custody. One. Number two, the officer is asking questions, which is foreseeable that they would that the answers would incriminate the person? Right? To the right. And number three, we're talking to a known officer that the suspect knows he's talking to a police officer versus an undercover agent. Well, we're missing something here. If Okay, we have in custody arrest like casies Actually backup I didn't, I didn't tell you the fact pattern. So I let me let me tell you with an officer stops a suspicious male in a parking lot, who was stumbling all over the place appearing heavily intoxicated, they meet the criteria for a public intoxication arrest. So the male was placed in handcuffs. And in the patrol vehicle, I've removed from his pockets, right for his consent, so forth. You know, this is just a, again, a public intoxication almost like for, we're almost like community caretaking, we're trying to help this person, you know, not get hit by a car and so forth. The officer then asked for consent to search those items. Now. I understand. And he and the cop understands, too, that this is probably gonna be justified under a search incident to arrest. But the officer wants to go beyond this. You know, he did ask this person for consent without reading memoranda. And he's under arrest in the back of a police car. Is that consent valid? I mean, there's the fact that he does not have Miranda invalidated. And the answer is no. Because consent is not something likely to incriminate himself. You're not it's not an interrogation. Asking a person Hey, wait, can I can I search your car? Can I search your backpack, even though they're under arrest, and you have no right to search those things, is not incriminating. It's not interrogation. That's why Miranda is not required. Further, there was a US Supreme Court case on this issue. It's called us vs. Watson like 1976. Were the awkward the suspect was in the back of police car in handcuffs under arrest, that he had nothing to do with it. He was not arrested from his vehicle. He was arrested from a restaurant. And the police asked for consent to search his vehicle. And he said yes. And based off Italian circumstances the court upheld and even though no Miranda was provided. Now sometimes giving Miranda will help, you know, just kind of show that he has rights and it's less coalhurst coercive, but the point is is not required. And that and that is why all right. All right. Keep the questions coming. I love them and hopefully you're enjoying this channel too. We're getting more people you know, you know this thing is it's one of those things where you build up an audience and it starts off slow for every subscriber you work really hard for but then start exponentially starts building up people start sharing them and you hit the subscribe button guy and hit the like button. If you liked what I'm doing here. Thank you, right. I appreciate it. Alright guys, see you next time.
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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor for blue to gold law enforcement training. Bring another roadside chat. This one comes from an officer in California. One of my favorite agencies actually, he's a chippy. And I love it I love Calvin hire patrols is a very fine organization in my book. But on topic here, the officer says basically, can an officer reach in slightly into a person's home to pull them out and arrest them? If they have probable cause, but no arrest warrant, right? So let's go over the fact pattern here. So an officer has probable cause, and the person opens up the door, they're talking to the officer, and the suspect is just you know, just an inch inside his house. Right? He's right next to the threshold, essentially, would it be a constitutional violation to reach in there and actually pull this guy out? With just the probable cause alone? No consent, no agency, no arrest warrant? Well, to answer that question, let's go over a few cases. Number one is, we do know that the threshold of a house is the bright line rule of where a person can be arrested. Under Supreme Court precedents, this case is called us versus Santana. And Santana was standing in our doorway when she was placed under arrest. And she ran to her house, the cops filed, they arrested her, you know, evidence was found, during the arrest in the Supreme Court basically held that that is the point of the demarcation line. So one foot forward, Santana's on our porch, one foot back, she's inside the house. So if you're in the doorframe, which is called the threshold, then the person can be arrested under the Fourth Amendment. Now, we don't have any cases from the US Supreme Court about pulling people out of their home. But we do have some cases about related issues involving the home. And I think it's very clear to me at least that the US Supreme Court would not uphold any intrusion into the home to pull somebody out to arrest them unless you had an arrest warrant exigency, or you know, their consent, right? Hey, come on out, you know, when you come out, right. So to support this position, let me read you a case from the 11th circuit. I actually, I'm just trying to actually find an I apologize, but I just realized that I have the citation, but not the name of the case, I'll give you a citation. It is a four a three, f dot 3d 1231. It's the 11th circuit 2007. So basically, what the court has said here is that there was an officer standing on the porch. And he reached into the suspects residence and pulled him out of the door and arrested him. Now, the suspects say that he was behind the threshold of the door completely in his residence. And the court found that going into his home and pulling them out violate the Fourth Amendment, because he didn't have a warrant, consent or Asian circumstances. And they also cite a US Supreme Court case called Kylo. Kylo is a case involving heat imaging using a heat thermal imaging on a home, and they found that that violated the Fourth Amendment. And they found in that court, they said that the bottom line is that unless a warrant is obtained or agency and so forth, any physical invasion of the structures of the home by even a fraction of an inch is too much. And that's what I teach my classes. So some cops have Anthony. What if his hand is on the threshold? Can I grab his hand and pull him out? And I say, I don't know because I've never seen a case like that. However, I will tell you that I would never do it. It's just not in the spirit of Santana. Right? I mean, I say never do it. If I if it was a really serious case, I probably would have exigency, but it's not in the spirit of Santana, to me spent 10 Santana was like the person was, you know, kind of in their doorway, kind of like leaning on the doorframe...
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Hey guys, Anthony Bandiero Here, attorney, Senior Legal instructor for Blue to Gold get a roadside chat question from a cop in, in Texas. And basically the COP is asking, Hey, if my reasonable suspicion has been dispelled, can I still run the person for once before I let them go? And here's kind of like a fact pattern. So the officer conducts a reasonable suspicion stop on a motor vehicle, because the insurance is unconfirmed. Okay, so far, so good. Right? The driver presents the insurance at the window. So the driver presents insurance? And is the tropics is the traffic stop over? Is the officer still allowed to conduct a warrant check, and so forth? In check their license? Well, okay. So here's the question for the court. If the reasonable suspicion is over, if that piece of paper is enough documentation for you to believe that the person has insurance, and, you know, if they have insurance, and then it's over, the running of warrants check, or checking their license is not related to the reasonable suspicion. And that's the problem here. Now, if the officer says, Hey, look at my training experience, you know, if it comes back with no insurance, our, you know, our databases are in sync, insurance talks to the insurance companies, there's there still may be a problem with the insurance, maybe we can start doing some more investigation. But if this is a reasonable suspicion stop, you don't get the latitude that you normally get with probable cause stops, see with a probable cause, stop for speeding lane change, and so forth. You get to do those things reason related to conduct that investigation, like running people for wants, and so forth. But with Terry stops, they're much more, much more narrow. And that's the problem here. There is a case and I forget the name, if you ask me for it, I'll throw it into the comments. But there is a case out of Nevada, really about this issue. The the officer believed that a suspect was underage violating curfew, stopped out with him, asked for his ID. And he provided a California ID that showed that he was an adult. But instead of letting him go, the officer random for once came back with a warrant found the gun in a backpack. And the court found that that was unlawful over the tension. And I have to agree. Because if the person provides you an ID that looks legitimate, it is valid, it is not expired, it doesn't look fake, it has the hologram, the picture doesn't look wonky, like it's you know, a, you know, you know, homemade and so forth. Right, then the warrants, check has nothing to do with the crime at issue. You did not stop him because you believed he's wanted. You stop them because you believe that he was underage. And he proved that he was over age, you know, to a fair, you know, I mean, nothing's perfect. They also said, Well, I want to just make sure because a lot of IDs are fake. Well, you're gonna have to something more than that. Just begin making that assumption. I mean, does the Id look fake at all to you? Is he acting, you know, does it look like him in the picture? And that's the kind of the idea here. So that's the case, I have the backup. What I'm saying here, you certainly there's a case out of Illinois where the officer stopped, the person thought there was a registration violation, determine that there wasn't. And before releasing them simply asked him, Hey, can I see your license before you leave? And the person says, Why don't I don't have a license?...
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Hey guys, Anthony Bandiero Here attorney, Senior Legal instructor for blue to gold law enforcement training.
Now the roadside chat from an officer question comes from an officer in Florida. And basically I think comes down says, Can you clarify protective sweeps at murder scenes? All right. Here's what my officer says. I watched a, you know your video regarding protective sweeps where you referenced a case called Mincy versus Arizona a 1978. Case. I'll give you a little background in a second, where there is no murder scene exception, you know, under the Fourth Amendment, so if respond to report, it's shooting in a driveway of a residence, wouldn't we have exigent circumstances to conduct a warrantless sweep of the residence for possibly other injured parties or to see if the perpetrator was still on scene? In similar fashion, we typically follow the path of the bullet trajectory to ensure no one else was hit, similar to a public safety statement type of issue, right? How many shots did you fire, what direction and so forth? Alright. So in order to understand where my officers coming from, we got to understand what I said before. So under that Minsi case, your police are not allowed to search a to basically process a crime scene in Mincy. Very unfortunately, an officer got killed during an undercover operation. The officers then you know, came in, you know, they rested man. So he actually got shot as well, but he survived. The officers then spent four days processing the crime scene. without consent, right. mincey was not asked, nor did he give his consent, and the officers did not get a warrant. Now, the Supreme Court suppressed a lot of the evidence that was obtained during that search of his of menses residence. Why? Because the Supreme Court said, Look, we understand that this is a serious crime, it's a murder of a police officer. However, there is no murder scene exception, you don't you don't get around the Fourth Amendment warm requirements simply because you have a murder or a very serious crime. Okay. Now, with that in mind, that does not apply to what the officer is talking about here, these protector sweeps, there's totally different Minsi is about one thing, it's about processing crime scenes, it's about the luminol. It's about the strings in this the sticks through the holes to see trajectories, it's about blood splatter, you know, analysis and see, basically, it's about CSI coming in on the scene, and getting trace evidence and stuff. It has nothing to do with two things. Number one, as partner here, number one is any kind of plain view evidence. See if the officers sweep up, you know, let's do a protective sweep of the murder scene to make sure there are no victims, and then they see a gun in plain view, they can absolutely if they want seize that gun under plain view that that guns coming in, they can seize a knife with blood on it. Now many cops are just gonna leave it there. And let's see OSI do that, or the tech does and so forth. And that's fine, too. But the point is, it has nothing to do with these plain view seizures as long as the cops were lawfully present, which brings me to my next point, the protective sweeps Mincy does not prohibit protect sweeps when you reasonably believe more victims or the perpetrator could be inside the house. Therefore, if officers arrive at a crime scene where there is a shooting, and they reasonably believe, and I think most of the time, they are going to believe this that the location of the shooting and where the that the suspect could have retreated into the home. And he could still be in there. But you know, cops can go in there and sweep it and to take him into custody or you know, to detain him and so forth...
Hey guys, it's Anthony Bandiero Here, attorney and senior legal instructor for blue to gold Law enforcement and training during the roadside chat. All right, this question where's this officer read me see if it says it actually doesn't say because it came from a personal email, but no problem. Alright, this officer asks, Can police force a GSR test on someone who doesn't want their hat or their hand swapped. And a GSR test for the non-police watchers here is a gunshot residue test. So basically, you know, the Q tip type stuff to see if there's gunshot residue on their hand, which would indicate that they're the ones that fired the firearm? And the answer is yes. And here's why. So first of all, I want to kind of bring my book into the mix here. The search and seizures valve guide, best selling search and seizure book in America. Please check it out. It's on Amazon. It's also on our website bluetogold.com , just click on store and you'll see all the products that we have for you folks that do your job constitutionally. And the it's not directly on the GSR, but it is under a topic called fingernail scrapes. But it's the same kind of constitutional principle. And this issue actually went to the US Supreme Court in 1973. So it happened is a guy named I think his name was cup. But he went into to have an interview with police about the death of his wife. Now the police suspected that he was the perpetrator, he actually killed his wife. And he was saying no, was it me, you know, this is what happened. And so somebody else did it and so forth. Well, while talking to him, he you know, he made some emissions they had they actually had probable cause for him. And they looked at his fingernails, and they saw that there was debris, right blood and skin tissue, maybe even some material fabric material under his fingernails. And the wife was strangled, and so forth. And they then forced him, they forced the scrape of his fingernails, and they sent it to the lab. And that material under his fingernails was from her dress. And it was like DNA, if I got my facts straight. It's been a while since I've read the case. But the point was, was that evidence was used to convict him. Now the husband went to the US Supreme Court and said, Hey, that was an intrusion that you didn't have a warrant, and so forth. And the Supreme Court upheld it. Right, that this was, you know, basically, you know, where there was probable cause. It was they considered a limited intrusion. Right? It's not that intrusive. It's not like a cavity search, right? It's not that intrusive. And it was readily destructible. Right? The destructibility of it. So there is that that agency that kind of exists as well. So if he's not complying, if he's not, you know, cooperating and you know, he's holding his hands and so forth. Can you do a forced GSR swap? I would say the answer is yes. Especially if he's not being cooperative, because what is he going to try to do? While you're, if you're going to go the warrant route, if he's being non-compliant,..
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Hey guys, it's Anthony Bandiero Here, attorney, Senior Legal instructor for blue to gold law enforcement training. i This question comes from an officer in Colorado basically, the officer saying, Can I force a passenger to keep his backpack in a car before I start searching it under probable cause? Right? And the answer is yes, absolutely. Under a case called us versus Ross, if a police officer has probable cause to search a vehicle, they get to conduct a search in the same manner as if they have a warrant. So if, if they if the police believe that that backpack could contain the evidence, then they get to search it, right. And there's also another case out there, I think it's Wyoming versus hufton. Might be often that but somebody in the comments can probably correct me if I'm wrong. But that's another case where the Supreme Court has held that if cops have probable cause for a vehicle, they get to search containers, including those belonging to passengers, again, if they reasonably believe the contraband could be found in that location. So straightforward question. straightforward answer for once. Okay, I hope that helps. Guys. Before you, you leave, please hit like, subscribe, leave a comment, share with your friends. And before until next time, my friends stay safe and keep keep up the great job you doing.
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Hey guys, it's Anthony Bandiero Here attorney and senior legal instructor for Blue to Gold law enforcement training, bringing a roadside chat. This question comes from an officer in Colorado. And the question is, can police search a shoplifting suspects purse for evidence without making an arrest?
And the answer is going to be yes. Definitely, as far as yes, in Colorado, but I believe the answer is yes, everywhere. But let's go through this. Now. Generally speaking, if you have probable cause for somebody, right, and you search them, and you find evidence and you arrest them, Most courts are going to call that a search incident to arrest but Anthony, the search came before the rest that didn't come incident to well, the supreme court requires that the search be contemporaneous, which courts have interpreted to be either right before or right after, you know, generally speaking, however, when you're not going to make an arrest, the PC search is generally authorized under exigency, right? Because when you stop out somebody do you really have you have probable cause that they have evidence they're going to cite and release them or whatever. Do you really have enough time under the circumstances to go get the warrant? Probably not most horses just fight on their agency. And here's the background. So got this batch to $1 General stain that they caught something you know, they saw something stealing makeup and putting in a purse now first of all, we know we got a classy girl, you know, I'm saying if you got a suspect who's stealing makeup from the Dollar General. Ah, that's gonna be a that's a good looking lady right there. Okay, look, she's gonna look like a clown after she puts that makeup on. But I digress at least be a little more bougie. You know, I'm saying like my wife, and you know, get it at least from Walmart. Or if you're really nice, Tarjay. But I can, I will continue. They knew she put in her purse. ...
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Hey guys, Anthony Bandiero Here, attorney, Senior Legal instructor for blue to gold law enforcement training, bringing the roadside chat from a cop. In Utah, the cop asked me something that's actually a base in statutory law, but has a search and seizure component. The officer says, Can you arrest someone for DUI? If you did not see them in actual physical control of the vehicle? Alright.
So the answer is it depends on your state law, because DUI statutes come in two flavors, what are both? What are they have both. One is that the statute requires that the person be driving at the time of contact, or, and or they be in actual physical control, which is where you can prove circumstantially that they were driving the vehicle previously. Now, most states in my experience, allow both right? You the person's driving, right? Which obviously, implies that they're an actual physical 12 That time, or you can also prove circumstantially that they were driving the vehicle in the past that is most common with accidents, right? You show up on an accident scene, and the person's not in the vehicle? How do you prove that they drove? They're intoxicated. That's circumstantial evidence. You can also have direct evidence by them making admissions and so forth, but usually gonna have to have something more than just the admission that they drove the vehicle. So let me give you the the hypo or the hypothetical here, right. So the officer gets a report of an erratic driver. Apparently, many phone many calls on this. He was also reported be all over the roadway. He had traffic cones, he ran people off the roadway, we're looking at a possible DUI. They have the plate, they run it, and they find the vehicle is parked at the residence unoccupied. 10 minutes later, they knock on the door. The driver says, Yeah, I came from that area, right. He makes admissions that he was in the area of where the traffic cones and people ran up the road. But he tells the cops that he drank alcohol since then at home. Now the officer saying in his training experience, there's no way he could have got that intoxicated within the 10 minutes, meaning most people don't drink that heavily within the last 10 minutes, and so forth. Now, the question ultimate question again is, can we arrest this person? ...
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Hey guys, Anthony Bandiero Here, attorney, Senior Legal instructor for Blue to gold's got a question from an officer in Arizona. He says, When can I search a vehicle? After I arrest the driver for DUI? Alright, so, you know, we're making some assumptions here that the vehicle is probably not going to be towed. You know, somebody might come on scene and pick it up, or it's gonna be allowed to be parked. And officer wants to know, hey, look, Can I Can I still search it, you know, as incident to arrest? Based on DUI?
Well, you can search cars on a two circumstances, right? I mean, besides inventories, and consent, and so forth, when it comes to these DUIs? Number one is you have probable cause if you have probable cause that there's evidence in the vehicle, you search it. That's the motor vehicle exception. However, there's another way. And it's actually was provided to us by a very pretty famous case called Arizona versus dance. Arizona versus ganz says that you can search a vehicle if you have reason to believe there is a fence related evidence inside the vehicle. Okay, let's, let's parse that out a little bit. First, is this, this reason to believe, is reason to believe a lower or higher standard than probable cause? Well, it's lower, it's close to like reasonable suspicion. That's the first thing so you can actually search the car with less than probable cause. The second component is reason to believe what that there is offense related evidence instead, inside the vehicle. So if you're going to resume for DUI, do you have any reason to believe that offense related evidence can be inside the vehicle? Most of the time, the answer is going to be? Yes. But don't make it automatic. Don't think that, you know, don't go to court and say, Your Honor, if I arrest somebody for DUI, I'm automatically going to search that vehicle. Don't say stuff like that. Say, why would you have a reason to believe that there's something in the car? The key is articulation. They're coming from they're intoxicated and recovering from a friend's house? Well, it's pretty common that people bring BYOB they bring alcohol to people's houses, and then they retain some of it when they leave, right because alcohol is expensive. You know, you know, it's just kind of a it's a common thing. You know, you're cheap. You know, your friend, your friend feeds you some ribs and some burgers. And during leave your your leftover alcohol from the consume later, you cheap bastard. Right? So stuff like that. I another one, you ask the guy he's coming from a bar? Oh, yeah. How much did you have to drink two beers? Well, take him at face value if he really only had two beers. And he is clearly over the limit, by way more than two beers could do now have a reason to believe that there could be alcohol in that car. Think about it. Right? He saved two beers, then how did it get so drunk? He probably is, you know, maybe has opened containers, even though oftentimes these people lie to you about their consumption. But look, you know, he's telling you two beers. Could there be a receipt in the vehicle for a bar tab? The point is, is that you know, you want to you want to have some articulation, but it's but it's great that this is a this is a great lesson for you. There is actually multiple ways to search vehicles. These are just two of them: probably cars, and the Gantt reasons to believe search. So there's your answer. Short, sweet, keep them coming. Do me a favor, guys. Before you exit the door. Hit the like button. Subscribe, please subscribe and maybe do comment if you have time. Alright, until next time, my friends. Stay safe.
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Hey guys, Anthony Bandiero Here, Attorney, Senior Legal instructor for Blue to Gold law enforcement training, bringing a roadside chat here. We got a question when Officer in Texas. And he says he asks, can you search in Uber passengers property based off of a K9 alert?
And the answer is yes if the officer reasonably believes that the contraband could be in that container, right. So if the, you know, I just give an extreme example, if the Uber driver is under surveillance as a drug dealer, right. And, you know, all the evidence points towards the target of this, you know, of this, of this investigation is that the Uber driver is involved in narcotics, they make a traffic stop for, you know, let's say, some violation of the motor vehicle code. And during that ride in the citation, they run the dog around the car, free or sniff. So far, so good in most states, the dog alerts, and the first place they go to and let's say they saw that the, they observed that the Uber driver picked up a passenger, right. And the first thing that they search for is the passengers belongings. That'd be problematic to me because if I was the defense attorney, I would say, why did you believe there's a fair probability there would be evidence in my client's belongings, based off this prior investigation, like you, your all your indicators are already pointing towards the driver as the culprit for possessing narcotics, why would you just go, and I may or may not win that case. But it's definitely a good question. Right? I wouldn't recommend it. So the officers should first, you know, search the Pat, the Uber driver's belongings, backpack, car, and so forth. Now, during that search, if there's, you know, some facts or circumstances that leave the police lead the police to believe that there could be more evidence in the passage belongings like the passenger knows the driver, and they run the passenger, and he's on paper for narcotics, or he has a criminal history, you know, then, you know, we go from there. Now, if the dog alerts, and we don't know where the prop where the contraband is, you know, is it fair to believe that it could also be in the passenger belongings? I think the answer is yes; I believe that police are going to win that one. Hands down, but I'm just kind of thrown since we have these conversations to move the ball forward. I just wanna let you know that generally speaking, the answer is yes. But why not? Add some context as well? That may be sometimes it may be no. All right. All right. So that's it. Keep the questions coming. Do me a favor. If you liked this video, hit like, please subscribe. Comment below. Share with your friends help me build an audience if you want if you can. I want to reach more cops. Alright, until next time, my friends, stay safe and keep up the great job.
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Alright, guys got another question for you for roadside chat. This one is long fact pattern, but I think it's worth it right. This one is the question is determining if a bicycle is stolen based on an alleged victims accusation. So this question comes from an officer in California. And he did a very, very good job give me, you know, a lot of background for this case. And the essence of this case is, you know, is there probable cause? Is there forth an issue, and basically taking an alleged victims word at face value, that somebody has their bike and it's stolen? Right, what not much more. And I think that's a great scenario. So let's let me read the fact pattern. And let me address a few issues. Okay. So a little long, but again, that's why we're here to see what you would do. Alright, so this is what he said, a resident of a neighboring city came to our PD to report that a bicycle was stolen from her home about three days ago. The theft had not been reported to her local PD prior to coming to our PD, very common, right. But she did post a theft on a social media app called next door. The bicycle was an older beach cruiser style bicycle, with a child seat attached to the back. The resident did not have any proof of ownership, such as a purchase receipt or a serial number of the stolen bike. Now, at this point, one question I do have the option for the officer? And I don't know the answer is, is does the resident also have pictures of her, you know, with the with the bike with her kid, you know, on the bike, you know, that would kind of help circumstantially that the bike belonged to her. I'm thinking that she did, I'm gonna assume that she did, because it's going to be pretty hard to ask people to look for a stolen bike, with just some words, you're going to probably want a picture. So let's assume that the victim here has a picture that that's all she has those a picture of her riding the bike or, you know, next to the house and so forth. A few days after the victim posted the stuff on the app, another user on the app posted a picture showing that a male a black male was riding the bicycle, and that the bike matches description that the victim said was stolen, right. So again, I'm assuming as a picture here, if no picture, it's less circumstantial evidence that she owns the bike. According to the person who posted the picture, the male was last seen riding the bike in our city in the top city, behind the shopping center with a transient encampment nearby. Now, the encampment is along the 405 freeway, and the victim requests that the officers check on this area and see if they can locate her bicycle. And also check the area and saw a bicycle matching description. Matching description perfectly. Right. So now, almost now I'm thinking that there is no picture. But anyway, it was tied to a tree inside the cabin. Next to one of the tents about one foot or so from this particular tent, the officer contacted a white male who did not see the other suspect riding the bicycle from the camp...
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Hey, it's Anthony Bandiero here with Blue to gold law enforcement training. roadside chat from an officer in Nevada. All right, so here's the basis. The idea here is you know, do officers have agency to enter a home based off of a verbal disturbance that verbal domestic so let's say you know, a new officer response to a disturbance call, okay. The neighbors are calling up hey, these guys are going at him. Upon walk him to the door, he or she hear screaming and yelling. You know, coming from inside the house. The officer announces police in the yelling stops. The young officer then knocks on the door but no one answers and can hear people moving inside. The officer is not sure what to do and wait for an additional unit. Okay, that's pretty common should be waiting for additional unit anyway. Right. The new officer relays the information to the senior officer Hey, I heard these guys screaming when I knocked on the door yell police, they stopped screaming. The senior officer decides to make entry to render aid based on the agency to protect an occupant from imminent harm. Would the agency be okay? Now, one of the things like is the agency stale, right, because we waited for the senior officer. Well, first of all, I gotta tell you, you know, just as my personal opinion, and so take it for what it's worth, but I got a little hesitation to begin with, like about why we're even entering this home. I'm personally not seeing the emergency aid exception applicable here. The emergency aid exception allows cops to force entry into a home without consent without a warrant when they believe that there is imminent harm, or violence or render aid. But it seems to me that what we have fundamentally is verbal, and I understand that verbals can escalate into into physical, but I'm not sure courts are going to buy off on that as something as a matter of routine is automatic. Is there anything else? Is there a history of violence at this house? Is that the the the neighbors hear any kind of crashing plates and breaking plates and stuff? Certainly, no throw on the lawn, which could indicate a propensity for physical violence. But I'm just telling you just you know, my opinion here is that if you have a case, and it's purely verbal, you have no evidence. Besides the fact that they're yelling at each other, that someone needs or needs your help in protection. I personally would not be entering that home with those facts. I'm just telling you, because I've seen this more and more with cases because if I was the judge, be like, Okay, where is the eminent? where's the evidence that this person is about to be assaulted physically? People oftentimes get into verbal arguments. I've been in verbal arguments, you know, with my spouse, and you have to, and if police knew that and knew nothing else, would that allow them to force entry into my home? I don't think so. And that's my point. So be careful there. Do you want something more than just verbal? But even if, and by the way, this is not clear. I mean, in no way am I telling this office senior officer that he or she did the wrong thing? By no means am I meaning any disrespect? I'm just saying let's, you know, I'm sure there was a lot more I mean, this thing is a paragraph. I'm sure in the real case, there's a lot more going on. And really, by the way, the officers not really asking about that issue. The officer is asking what the staleness of it. And I'll ask that next. But so just to let you know that, you know, I respect you guys. And I know that there's way more case more and more facts and so forth. And finally, the officers really kind of talking about is there a stillness issue here? ...
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Hey guys, welcome to another roadside chat. My name is Anthony Bandiero, Senior Legal instructor and Attorney at Blue to Gold Law Enforcement Training. This question comes from an officer in California. And he asks whether, if you're executing a search warrant on a cell phone, and let's say the search warrant is for firearm violations, right, you can picture maybe a gang member, a felon, and we believe that we have evidence of fire, you know, that firearm possession on the cell phone. And so the officer is looking through the phone, text messages, Facebook, etc, etc, for firearm violations, but comes across evidence for narcotic sales. Does the officer have to stop searching the phone? And for you know, in order to does it also have to stop and go get a piggyback warrant? Or can the officer still continue to look for firearm violations? And again, see other evidence in plain view for narcotic sales? And will that come in? So the answer is yes, the officer can go down that route. That is an option. Officers are not required to as long as the scope of the search remains within the boundaries of the search warrant. So we're still looking for firearm evidence, then we are good. However, you know, any officer I think acknowledged that the best practice, of course, would be to get a piggyback warrant. But I think you're just asking academically do we have to stop? And to get that warrant? And the answer constitutionally is no. Right? not constitutional. Now, I'm not going to dress any statutory claims. I do not teach statutory law; that is for your prosecutors and for you know, other people can say, you know, but I'm talking about the Constitution, the Constitution would uphold as long as we can prove that the officer did not go outside the bounds of that scope. And really was, you know, now searching for drug evidence and not any longer searching firemen, then we're going to be fine. But at the same time, we know that best practice especially for firearm or for sales, because that's a very serious crime. We may we're gonna want a timeout and just shut the phone down temporarily go get the worn, the piggyback, worn come back, and then specifically search for firearms more firearm evidence and directly search the phone for sales. I hope this helps. Keep your questions coming. Until next time, stay safe.
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Hey guys, it's Anthony Bandiero here with Blue to Gold Law Enforcement Training. I'm in beautiful Lafayette, Louisiana teaching at the parish, which is the county. That's what they call it, the County Sheriff's Department. And a question was asked whether or not a driver may consent to search not only the vehicle, right, but also passenger's possessions?
The answer is maybe this is what the law says, Does the officer reasonably believe that the driver has common authority over those passengers' possessions? And common authority comes in three flavors? One, do you reasonably believe they have mutual use, or joint access or control? One of those three, sometimes more than those three, sometimes all of them, for example, married couples, oftentimes, you know, share property, they have mutual use of it, they both use it, they both access it, and they both have a degree of control over it. But in a situation of friends, it gets a little more trickier. So let's say you stop a car. There's a female passenger and a driver, male driver. The male driver gives you consent to search. Can the officer search the purse in the passionate side? The answer be probably not. Because with those facts that I gave you, it doesn't seem reasonable to believe that the driver has common authority over that purse. What about the passenger has a backpack in the backseat? And it's not there's no name on it. And it's just It's back there. And the driver gives consent; the occupants get out, the passenger gets out. And then the officer searches it and finds, let's say, narcotics, that it's then charged against the passenger. Whether or not the driver has common authority depends, again, whether it's reasonable to believe that, that he has some degree of control over the backpack mutual use joint access, if the backpack is in the backseat, and nobody mentioned makes any mention that it's not their backpack. And in what those basic facts, it seems reasonable to believe that the that that the backpack belongs to the driver. And so therefore, the driver would have apparent common authority over the backpack even if later. He it's proven that that was incorrect. That's not what's required under the Fourth Amendment; what's required is reasonableness. So it's it's not actual authority that we have to prove in most states. Its apparent authority. I hope that helps. One way of looking at this, by the way, is I call it the piggyback rule. The piggyback rule is simply saying, Look, if you're going to base your search off of somebody's consent, each item each place searched, has to be something that you reasonably believe that the person giving you consent could have done the same thing without trespassing on anybody's rights. Does that make sense? You know, so for example, if you go to an apartment, and you have two roommates, and one roommate gone, it seems reasonable to believe that the consenting roommate that's in that apartment can give you consent to search to common areas, his room, a shared bathroom, the kitchen, but would not seem reasonable to get consent to search somebody else's room where he does not stay and does not live in. But married couples, it seems reasonable to get consent to search from let's say the wife while the husband is not there to search almost anything in the house because most spouses have unfettered access to the entire house, even if they don't normally look in those places like so, for example, the garage if the wife and Misty, I don't really go in the workshop, and I don't look in the tools, and I don't look in these areas, but you can go search them, most likely that consent to search is going to be upheld as valid because it's reasonably believed that the officers can piggyback off of the wife's consent...
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Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training. I want to share another question I got from a student in New Orleans. I'm about to head back to the airport. But this is a question that is excellent because it does come up quite often. The question is, if officers have an arrest warrant, can they serve it at a third party's home? Not just the suspect's home or where they live?
And the answer is no. The reason is, is that this is called the steagle rule. What the US Supreme Court says is that the an arrest warrant gives you essentially automatic authority to search for that suspect that fugitive at their domicile, that is that level of intrusion is included with the arrest warrant. So when a judge signs off an arrest warrant, they are essentially also signing off on the ability to search for that person at their domicile. Because that is not highly intrusive. It makes sense that if you have an arrest warrant, well, where would they be? Well, either they're in public, which implicates no Fourth Amendment really issue. But if they're at their home, it makes sense that that's where they would be captured. But one other issue with that is if you are going to serve that arrest warrant at their home, you do have to articulate that you have reason to believe that they're presently home before you execute the search warrantβso valid arrest warrant, at their domicile. And at the time of execution, they are presently you have reason to believe they are presently inside the home. If those three things exist, you can serve the arrest warrant at the house in the same manner, as if you had a search warrant, which includes forced entry after knocking announce now, with when the person flees to a third party's home, or it happens to be a third party's home, their cousins, their friends, their girlfriend's house. Well, whether or not they have Fourth Amendment standing or a fourth amendment privacy interest in that home is actually a different question. Courts will look at does the person spends the night there? You know, they have a key there, and they have unfettered access to the residence. That's what's one issue. So you may or may not be violating the suspect's rights. But you are certainly violating the homeowners rights the third party; they have fourth amendment rights to keep police out of their home to serve these warrants for other people that happen to be in their home at the time. Does that make sense? So if the person is at their cousin's house, the cousins the cousin has a right to keep police out without a different search warrant, naming his or her house in the search warrant. And that's what's going on there. So again, keep that in mind. The officer shared a story where the officer did serve an arrest warrant at the cousin's house. And that is problematic. You're going to need usually either the cousins consent or somebody who has apparent authority over the home, which they didn't have in this case, or you don't have to go back to the magistrate and get a search warrant to look for the fugitive at the cousin's house, then you can serve the arrest warrant. I hope that makes sense. I Hope I'm moving the ball forward with these discussions, and it's giving you some good feedback. Keep the questions coming. And until next time, stay safe.
When it comes to legal training, we're the gold standard. Visit bluetogold.com or Call 888-579-7796 today to purchase the search and seizure Survival Guide, register for a class or learn how to bring our search and seizure training to your agency.
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Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training. I have another question from an officer from Arizona. And it's a great question. I want to share it with you and give you my feedback on it. And so the question is, Can officers still ask for consent to search a vehicle during a traffic stop? Without that being considered extending the traffic stop for an unrelated region reason, in violation of the Rodriguez decision?
And so the answer is, yes, officers can do it. It is not it does not violate Rodriguez. And here's why. So, first of all, as a little bit of a context, Rodriguez is that decision from 2015 that says that if officers overextend a stop for an unrelated reason, then that violates the Fourth Amendment and evidence to suppress? Well, that just makes sense. I mean, Rodriguez decision was really bad facts make bad law type of logic. The officer there extended the stop for seven minutes to run a canine without any reasonable suspicion, but yet the traffic stop was done. It was over. In fact, Rodriguez was let go. And then he was detained when he did not agree for the dock search. But that decision has not been read in a manner that says, any unrelated questioning absolutely no matter what violates the Fourth Amendment. Instead, what courts are really looking for is, are cops doing something? Are they you know, asking so many questions about an unrelated topic, that it measurably extends a stop, and it cannot be upheld under the Fourth Amendment reasonableness standard. But courts fortunately, and I think this is the right answer, by the way, are not reading Rodriguez in a manner that says any question that does not directly relate to the stop is a violation in of itself. So instead, they're trying to find this balancing test, which is many cases are trying to find that proper balance. So for example, you know, if the officer approaches the car for, let's say, the stop was for speeding, and ask for license registration insurance? Do you have any weapons in the car? Do you have anything illegal in the car, you know, and so forth? Those questions are fine. They don't offend the Fourth Amendment because they do not measurably extend the stop. And moreover, many courts find that those type of questions are actually related to the safety issues of a traffic stop, it would be it would be very beneficial, for example, for an officer to know if somebody has a weapon or that they're transporting narcotics, that's a safety issue. And so some courts handle it that way. But even if they don't directly say that they the questioning still does not extend the stop. That is the same logic that applies to consent to search. Rodriguez is not violated if the occupants or the driver give consent to extend the stop for some other reason, for example, consent to search consent to ask questions that are unrelated to the traffic stop, that the defendant can surely give the officers consent to extend the stop. It's just when the officer does it on his or her own. And especially is very intrusive about it. You know, for example, if the stop is about a faulty blinker, right, and the officer is asking just several questions that have nothing to do with a faulty blinker, you know, or traffic-related issues, but it says it's going down this path of a drug investigation that takes you know, a minute or so that is going to offend the Fourth Amendment and the evidence is likely to be is going to be suppressed. So that is the answer. You know, in some states like Minnesota, and Oregon, the answer is a little different because those states do have a topic restriction on traffic stops. But that is not the general rule in the 48 other states. I hope this helps.
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Good morning, guys. It's Anthony Bandiero, here with blue to gold law enforcement training, have another roadside chat. I'm in Memphis, Tennessee today, and I got a question from an officer actually, in Ohio, about whether or not an assigned parking spot at an apartment complex is curtilage?
And the answer is no, it's not because it doesn't qualify under the done factors. That's how I would. That's how I would decide this case. And so the reason behind this real quickly is that in order to be curtilage are four factors. One is how close is it to the home itself? Well, a parking spot at an apartment, typically they're not. They're detached from the actual boundary lines of the apartment. So that leads against it. Number two, is, are there any? Are there any fences or barriers around the area? We're talking about the actual curtilage itself, not just the whole property, you know, so for example, if the apartment has a fence all around it, and it's considered a gated apartment, that is certainly going to weigh in favor of curtilage, but not enough to tip the scales. The third factor is use. What is the area being used for now? It's the exclusive parking spot of the tenant. But it's not, you know, that's a factor that helps. But it's not the kind of use parking in of itself, except the type of use that we're really going after here with curtilage. We're looking for family or personal activities. So that weighs against it, ultimately. And then finally, is there any site screening, and that's going to be a really big one here because any John Q citizen who happens to be in the parking lot can see the vehicle. And there is there, though, that's going to reduce the expectation of privacy. So for those four reasons, I do not believe it's going to be curmudgeon. Also, there are no cases that I've found that was some that was fine that under those general circumstances, that is curtilage. So there's your answer. Keep the questions coming.
Until next time, stay safe.
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I'm Anthony Bandiero with Blue to Gold law enforcement training. I want to make a quick video on a question that was asked to me by two different officers in two different states very recently. And it's a great question. And so now I want to share the answer with you, folks. So the question is, is Ken police run a drug canine around a car in a parking lot?
The answer is yes. Because under those facts, the police did not conduct a Fourth Amendment search. And now here's why. A running a canine first of all, a drunk canine that canine picks up the scent of narcotics, narcotics are illegal to possess. Therefore, a suspect does not have a reasonable expectation of privacy, in that, that sense that's emanating from their car, you know, that's gonna be, you know, during the free air sniff. So that's, that's the first part. The second part is that the dog is lawfully present. When cars are in parking lots, whether it's Wendy's Motel Six is lovestruck stops, and so forth. The suspect can be there, but so can police. Nothing prevents a police officer from being from looking into a car. Now, I wouldn't want to touch the car and manipulate anything, but right to be right to see. And so there because the officer can be outside the car, so Can his best friend, the canine, the canine can also be outside the car. And that is the epitome of a free air sniff requiring no legal justification. And so that is what's going on. Now, you do want to make sure that the dog is lawfully present. So, for example, we have a case called Jardins, where police brought Frankie, the drug-sniffing dog onto the curtilage of a suspect presumed or who was allegedly growing marijuana. Now he was growing marijuana, but at the time was allegedly because they got an anonymous tip. The police brought the dog onto the property while doing a knock and talk, and the dog alerted. The US Supreme Court found in that case that that that was a search under the Fourth Amendment because the police had no implied consent, essentially, to bring that dog onto curtilage. During a knock and talk that was something that most people would not implicitly allow police to do. And it makes sense. And so because the police were trespassing while they brought the dog because they brought the dog, they're trespassing because they brought the dog that therefore it was a search under the Fourth Amendment. But take that same scenario in the parking lot of Wendy's, right, or the motel is, you know, where cops are probably gonna deploy the dog more often. Police can be there just like the suspect can again, and also, you do not need the manager's permission to be on the property. Whether or not, please get it that's a totally different issue. But the suspect has no right to exclude police officers from this side from that parking lot. So it's irrelevant whether or not police got consent from the manager, right? That person even if there's no, even if the manager did not consent. Right. And the suspect brings that up in court. The problem with that is that the suspect has no legitimate privacy interest in that parking lot because there's no right to exclude anybody else...
How're you doing Law enforcement officers. It's Anthony Bandiero, here with Blue to Gold law enforcement training.
And today, I'm going to teach you the four elements that you need before you can do a warrantless vehicle search. The first element is probable cause that seems obvious. You need probable cause that the vehicle contains contraband or evidence. The second element is that the vehicle cannot be inside curtilage. Right, you must have lawful access to the vehicle. So that means that the vehicle mainly is on a public street or in a public parking lot. But if the vehicles inside a garage, underneath a carport, in the back yard, you likely do not have lawful access to that vehicle. And so, therefore, you're gonna need something else, for example, consent to be on the property by somebody with a parent or actual authority or some kind of exigency. So, for example, you believe that the vehicle is going to flee the jurisdiction, and so forth. So the third element is the vehicle has to be rarely mobile. What I like to teach my students is readily mobile means the vehicle either needs gas, tires, or a battery. And so if you see a vehicle broken down on the side of the road, and you develop probable cause to that there's evidence inside the car, can you search it? The answer is yes, if the vehicle, for example, has a flat tire, it's out of gas, or the battery went dead. And finally, the fourth element that you need is your search cannot exceed the probable cause that you have. And so this is very important because whenever you search a vehicle under the motor vehicle exception, you can only search. The scope of the search must be within the bounds of what a magistrate would allow you to search where the metric would allow you to search. So, for example, if you're looking for a stolen MacBook Pro, and you get you got a warrant from a judge, but the judge allows you to search for that computer in the eyeglass case? And the answer is no because it can't be contained in there. And so, the same principles apply when you're conducting a warrantless search or seizure. You don't have extra powers that the judge can give you in the first place. So those are the four elements again, probable cause lawful access, which essentially means the vehicle is not within the curtilage. It's rarely mobile, and your search does not exceed the scope of the probable cause that you have. I hope this helps. If you have a question for me, email me at info@bluetogold.com. If you want me to come out and teach you and your fellow officers advanced search and seizure.
Until next time, be safe
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Hello, Law enforcement officers. It's Anthony Bandiero, here with Blue Gold law enforcement training. And today, I'm going to share with you the difference between open view and plain view. Open view is when you are in a non-protected area. And you see incriminating evidence. One of the reasons they call it open view is because, typically, you're on open fields. What is an open field?
Open fields are generally anywhere where you can see the sky, and you're not in curtilage. Right. So I like to say if you can look up and you can actually see the sky, you're on one or two areas, curtilage or an open field, if you can look up and you see a ceiling while you're in a protected area. And how much protection that area gets depends on where it is. So for example, a home is going to get way more protection than the lobby of Burger King. But that's beside the point. So open view is when you see incriminating evidence, or concept, you know, or, or contraband or evidence when you're not in a protected area. Plain view, on the other hand, is when you are inside a protected area and see the evidence or contraband. Now, let me just make one thing clear, it doesn't really matter what you call it in the report. Most officers I know are calling this plain view no matter where they are. And that's okay. But since I'm a legal instructor for police officers, I figured I would just make a quick video and share with you the legal distinction between those two terms. Now, let me give you an example of open view. Open view is when you're walking down a sidewalk, right, that would be considered constitutionally under the Fourth Amendment and open field because it's not curtilage. Tech, usually, and you're walking by, and you look inside a house window and you see a marijuana plant in the window? Well, you that's open view, you don't need any prior justification on why you're on that sidewalk because the constant, the Fourth Amendment does not apply. So you could be there at two o'clock in the morning, you could be nosy, it doesn't matter. But now a plain view example, your call to a domestic violence, you go into the home, and you look over and you see that same marijuana plant in the window. Now, you have just seen it on their plain view, because you're in a constitutionally protected area. And now you see the marijuana plant. The important distinction is that under plain view, you always have to justify why you're in that place to begin with. So assuming that you didn't see the marijuana plant as you're walking up to the house, you're gonna the report has to make clear why you have lawful authority to even be in the home, whether it's the emergency doctrine, consent by one of the occupants. And there are numerous other judicially recognized exceptions which are going to get you into that home. But the point is if you are not lawfully inside that home, then then you cannot have the Plainview exception apply. So for example, if you make an arrest inside of a home, and let's say the arrest is lawful, let's say you had you were in let's say if during that domestic violence, you were in the home and you decide to arrest the husband, for domestic violence, and now your partner sweeps the whole house, including the basement and upstairs for other suspects. But none of it none of the officers had a reasonable suspicion that anyone else was in the house that could pose a danger. And while upstairs, your partner sees a marijuana grow operation or drugs in plain view, that is unlawful because if the court finds, just like I assume for these facts that there was no reason to the protective sweep...
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Hello, Law enforcement officers. It's Anthony Bandiero, here with Blue to Gold law enforcement training. And today we're gonna ask a very simple question. Do you need to read Miranda in its entirety to someone who claims that they already know their rights?
The answer is yes. Even if you're, even if you're arresting a judge that's been on the bench for 40 years, and all he's done is criminal trials. And you arrest him for domestic violence. And you want to read him, Miranda. And as you're reading it, he says, hey, look, I don't need you to read me, Miranda. I know Miranda from the back of my hand. I can read you, Miranda, if you want me to, if you want me to. You can't say this is I find it funny because it's kind of ridiculous. You can't if you intend to interview him or her. You can't stop and say, Okay, I know you understand Miranda. You have to read Miranda, in its entirety. And the main reason here is that when you go to court, and you try to argue to the court that you got to a knowing and intelligent waiver of Miranda, well, it's hard to prove that the that the person knew their rights and knew what they were waiving, without you telling them what they are waiving. Does that make sense? So if if you tell him you have the right to remain silent, and he knew you stop right there because they know their rights, and you are convinced that they do know the rights, let's say you've read this person 2020 times before and you've read a Miranda 20 times before, but then you never read them that they have the right to an attorney. And if they couldn't afford one, one would be provided. It's hard to go into court and say, well, he intelligently knowingly waived his right to counsel. Because he told me he knew all his rights. You see the point there. That's the courts, basically, in order to prevent this kind of back and forth, and I know he knew his rights because I dealt with him before. They have a blanket rule. You have to read Miranda in its entirety. So I hope this helps. If you have any other questions, email me at info@bluetogold.com.
Until next time, be safe
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How're you doing, Law enforcement officers? It's Anthony Bandiero here with Blue to Gold law enforcement training. And today, I'm gonna teach you C.R.E.W.
C.R.E.W is an acronym that I teach my students during the advanced search and seizure class to keep in mind whenever they are searching or seizing a protected area, true stands for consent, or a recognized exception or a warrant. And the point here is whenever you are searching; you're seizing the protected areas under the Fourth Amendment, which are persons, houses, places, you know, places, papers and effects and so forth. You need crew, you need either consent by a person who has actual or apparent authority over that item or place, or you need to recognize exception. So the motor vehicle exception to the search warrant requirement, you need exigent circumstances. So for example, imminent destruction of evidence to before entering a house to secure evidence, community caretaking and so forth. So you're you need to recognize exception. If you don't have consent or a recognized exception. There's only one thing left, and you need a search warrant. And that's why I want you to keep this in mind. So whenever you're searching or seizing in a protected area, ask yourself Do I have crew? Do I have consent from a person to if I don't have consent? Do I have a recognized exception, which is most searches or seizures are going to occur with a recognized exception. If you don't have if you can't think of a recognized exception, then you're going to need a warm. This kind of give me give you an example. Real quick to how crew plays out. So you're in a home investigating a domestic violence while your partner is talking to the victim. For example, you're looking around, and you see a meth pipe on the kitchen table. Now, is that a search under the Fourth Amendment? No, because you're lawfully present, and you're allowed to use your natural senses to look around if you're lawfully present. So that is not a search under the Fourth Amendment. Therefore you don't need crew. But now you go over to the kitchen table, and you seize that meth pipe. Do you now need crew? Yes, because once you seize the item that implicates the Fourth Amendment, so do you have consent? No, not in this case? Do you have a recognized exception? The answer is yes. It's the plain view seizure doctrine. So you're allowed if you're lawfully present, you may seize evidence that is readily apparent to be contraband or evidence. And of course, under these circumstances, you don't need a warm, so that's how you use crew. I hope it helps and if you have any other questions for me, please email me at info at Blue to gold calm. If you want to read, I believe the best search and seizure book written for cops. It's a search and seizure Survival Guide. It's available on Amazon or on my website Bluetogold.com.
Until next time, be safe
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Hello law enforcement officers, it's Anthony Bandiero, here with blue to gold law enforcement training. And today we're going to ask whether or not police can insert an undercover officer or a confidential informant into the jail setting to speak to the suspect about the crime for which they have believed to have committed without Miranda. And the answer, generally speaking, is yes, police can do this. Why? Because the coercive atmosphere that the Supreme Court is trying to prevent without a person volunteer voluntarily and knowingly waiving their rights, the right to silence is not present under those conditions. Right. When we're in the police academy, we learned very early on in our young police academy career that in order for Miranda to apply, you need custody, plus interrogation by police officer. Well, it's interrogation by a known police officer. If you have somebody in jail, and they think they're talking to a friend, like the confidential informant, or they're talking to a fellow cellmate, the undercover officer that has no coercive atmosphere there, because they think they're talking to somebody on their level, they're not talking to a police officer looking to build evidence against him. So, therefore, Miranda doesn't apply. There are two caveat that you have to keep in mind when it will apply. The first one is under the Fifth Amendment if they have invoked their right to counsel, if while you're arresting the person, you read a Miranda, and they say, You know what I want my lawyer, you can't get around this by putting a confidential informant in the cell with them. They have that once they say they, they want their lawyer, they're going to get their lawyer and the only way around that is if they initiate conversation with you about their crime. So them asking, Hey, I want my attorney and then later asking, Hey, how long am I going to spend in jail? Or what is my bail? That's not going to work that has nothing to do with the general crime for which they are accused of. But if they say, Hey, you know what, I do want to talk to you about the sexual assault, then they've opened up conversation again, and you can give them a new Miranda, right, fresh Miranda, and then get a waiver, preferably in writing. So that's, that's one caveat where this would not apply. The other one is under the Sixth Amendment. Once they have an attorney appointed to them, you can't talk to him about the climate issue. You can't talk about the crime that they've been charged with, or any related, possibly another crime that has the same Nexus as the one that they are accused of. So for example, if they are arrested for an armed robbery where a death occurred, but they have not been charged with the felony murder, you cannot obviously talk to them about the felony murder, even if has nothing to do with the actual armed robbery. That whole that whole Nexus that whole, you know, the facts, the crime that they are accused of. That's all off limits, that doesn't apply to any unrelated, uncharged crime for which a lawyer has not been appointed. So just think about that. I hope this helps Miranda, you know, I find that a lot of officers do have the basics down. But when it comes to some of these winding roads of different issues, Miranda can be actually quite complicated...
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How're you doin? Law enforcement officers? It's Anthony Bandiero, here with Blue to Gold law enforcement training. And today we're going to ask whether or not you can obtain consent to search from somebody who has invoked their right to silence on the Miranda?
And the answer is yes, you can. And the reason is because Miranda protects testimony, right? It doesn't protect citizens or a suspect from using physical evidence against them. So the point here is that Miranda does not protect the act of giving consent to search because that consent the search has to do with physical evidence and not testimony. So very simple question, even a simpler answer. I hope this helps. Now, just also realize that if somebody has invoked the right to silence, and then you ask for consent to search, that doesn't give you a right that's not going to open the door for other questioning, right? That doesn't mean that if they gave you consent to search that they have now overturn their previous invocation. Other rules apply to that, and I will also cover those videos, but I hope this helps. If you have any questions for me email me at info at Blue to gold calm. Also, if you're interested in a search and seizures father guide, you can purchase it on Amazon or my website bluetogold.com
Until next time, be safe.
Have another question? Click here: https://www.bluetogold.com/show
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How are you doing Law enforcement officers, it's Anthony Bandiero, here with Blue to gold law enforcement training. And today I'm gonna share with you the three golden rules of search and seizure.
These three golden rules come from reading 1000s of court cases over the last 20 years. And after all, you start seeing a theme of what the courts are looking for the first golden rule, and the most important is, the more you articulate why you did something, the more likely you'll be upheld in court. And the reason for this is, first of all, the Fourth Amendment prohibits unreasonable searches and seizures. In other words, if what you did was reasonable, it's lawful. But what is reasonable is depends on the totality of circumstances, right. So that means that every fact and circumstance comes into play, right? One change in the fact or one change in the circumstances of something can determine can change whether it was reasonable or unreasonable. So you need to tell the court why you did something. And finally, this is an objective standard. You can't go into court and say, Your Honor, I was reasonable because I sincerely believed that what I was doing was reasonable. The courts will thank you for that feedback. But they require an objective standard, right? So it's kind of like taking all the facts of circumstances that you had, they put into this objective standard computer, if it spits out that it would do a similar response, as you did, then the court says, Okay, that was reasonable. But the key is you want to give that computer as much data as possible. And so the final point here is, when you do your report, you want to talk about three factors in the encounter, whether it's a consensual encounter, and Terry Stop, a use of force and so forth. The first factor is police. Talk about what police did, what did you do? What did your partners do? What resources did you have? What resources did you not have, and so forth? The next factor is suspect. What did the suspect say? Do? What was he wearing it? For example, if it's gang attire? Was there any weapons present? What's his criminal history, and so on? And finally, talked about the environment? Where does this encounter take place? Was it at night? Was it in a desolate area was in a high crime area, and so forth? You know, was it were there people around, you know, potential Confederates for the suspect, you want to talk about all those things, and laid out for the court. The second golden rule is, the more serious the crime, the more likely the court is going to uphold your actions as reasonable. And This is, you know, this is very important. So for example, if you have reasonable decision of suspicion to stop a person for a suspected sexual assault, and you pull out your weapon, you point your gun at them, and you say, hey, get on the ground. And then, you know, you pat them down, and you find, you know, a weapon and drugs and so forth. And then a suspect says, hey, you know, when he pointed that gun at me, I felt like I was under arrest, a reasonable person in those circumstances would feel like I was under arrest, and the courts are more likely. And I say, note, using pointing a firearm in those circumstances was reasonable because there's a serious offense. And so I like to, you know, basically say that courts are going to bend over backwards to find that your response and actions were reasonable when it's a serious offense. But if it's a minor offense, then they're going to put the whole weight on your shoulders to tell to to basically convince them to persuade the court, why you did what you did. And so if you pulled out your firearm and pointed at somebody suspected of stealing a candy bar at Walmart, the courts are gonna more likely not find that that was excessive for the situation. Right...
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How you doing, law enforcement officers. It's Anthony Bandiero. Here, Senior Legal instructor with Blue to Gold law enforcement training.
I just read a case and I want to share it with you because it's really has some really good teaching points. The case is pagane Gonzalez V. Marino, it's out of the First Circuit. And essentially what happened here is this. FBI agents were interested in a suspect because they believed that he had child pornography on his laptop. Instead of getting a search warrant, they came up with a clever idea. They went to his house, and they said, Hey, your laptop is sending malicious signals to Washington, DC. But guess what? We're with the government; we're here to help, we'll fix it for free. If you if you let us look at the laptop. We'll find out what's kind of going on. And we'll fix it for free the suspect consents for the entry and the search of the laptop for the malicious software. The FBI agents then find what they were looking for. And they said that they'll do some more work on the computer at the office, they take the computer, they write up a search warrant for the home and arrest one for the suspect. Right. And the suspect says, Look, that's not fair. You can't do that. You told me you're I got malicious software, that I'm the victim of malware. And you're trying to help me with this. And instead, you're looking for evidence of child pornography, in the First Circuit agreed. Right. And let's look at why. First of all, the general principle here is that when uniformed officers, uniform doesn't mean always mean uniform, but known officers when known officers create an emergency in order to enter a home to search. That is that is not good. You cannot do that. Because it invalidates the consent, because what reasonable person what's what not agree? Under those circumstances? Right? It's kind of like, it's kind of like this if police went to somebody's home and said, Hey, we believe that there there's a kidnap victim, a little girl that got kidnapped Jesse, A witness said that she's in your house? And can we go look around? I mean, most people are gonna like, especially because they didn't, this is a lie, they didn't connect anybody, they're gonna allow the police to come in and look for the for the kidnap victim. And instead, if the police are looking for a marijuana grow operation, that is going to, you know, invalidate the consent because they created an emergency for the kidnap victim. So that's what happened here, right? The agents are saying that we're looking for this malicious software that's coming from your computer, a reasonable person is going to allow them to get rid of that software so that they're not breaking the law and so forth. The other issue with uniformed officers is you cannot claim to have an authority that you don't have, right? You can't say, Hey, I have a search warrant for your home. But you know what, I'd really like your cooperation, if you do cooperate, I'll let you know, the prosecutor know that you cooperated and so forth. And they're like, Okay, come on in, that is going to completely invalidate the consent. Because basically, what you're telling a person is, I'm going to search anyway, whether you consent or not, but can you will you consent, that is not a freely, involuntarily involuntary consent. So you don't want to do it that way; those things will invalidate consent. And that's what happened here. But while we're on the topic of lying in order to search somebody's home, and I want to make sure that we're talking about deception to search a home, right, we're not talking about general principles regarding lying and relying on interviews and interrogation or lying to a suspect on the side of the road.
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Hey guys, it's Anthony Bandiero here with Blue to gold law enforcement training.
I want to do a really quick video about a US Supreme Court case that's coming up. It's State of Kansas versus Charles Glover. And the Supreme Court is going to hear this case very soon. And the question is whether or not a police officer has reasonable suspicion to stop a car based purely off of the license check. The registration check shows that the registered owner has a revoked license. And I'm going to predict the future here for you. Okay. The Supreme Court is going to say, yes, the officer had reasonable suspicion that the Kansas Supreme Court said the officer had a hunch. But really, is it a hunch when you know that the registered owner has a revoked license? And especially when there's only one, one register owner not to mix a little bit tougher case. But there's one register owner? And you know, from your training experience, that most people drive their own cars? Is it possible that you can lend your car to somebody else and then the officer could have stopped your friend, or your your your brother or sister? Absolutely. But that's not a reasonable suspicion requires reasonable suspicion requires the officer to articulate facts or circumstances that will lead a reasonable person to believe that criminal activity is afoot. Right. The afoot is from Terry versus Ohio. But it's a fancy way of saying that you can put your finger on something you can say, look, Judge, this is why I stopped this particular car. It wasn't a hunch; I believe that it's a good chance, a fair chance, least reasonable suspicion standard, that the driver is the registered owner and therefore has that revoked license. A hunch would be, Hey, I heard that a person driving a white escalate has a revoked license. Oh, look, there's a white escalate. Let me go stop that car. That's a hunch you can't stop that car because you have nothing to put your finger on that. This is a person driving on a suspended license or revoked license. So the officer in Kansas, I think, did a great job. It's an IT is an important cause. To me. It's an easy case. I don't know why it's taken the supreme US Supreme Court to get involved. I will say before I leave off some teaching points here is that this maybe could have been avoided if the officer put in some more facts and circumstances, for example, that the if the if the revoke licenses for a male, that he believed he you know that a male was driving, they didn't appear to be a female, maybe the same age, if there are dark tinted windows, put that in there, hey, look, I couldn't even see the driver, because the tint that tinted windows was so dark. Right. You know, that would have helped the officer from my understanding purely stopped the vehicle and the reports a look, registered owner has a revoked license. Therefore I can automatically stop the car. It's it's probably true. You know, I think again, a Supreme Court is going to, I believe find in favor the officer, but it's always good to put those extra things in there. Things that does, you know, clearly officer probably had more information, he probably saw a driver that was a male or you know, for example. So I hope that helps. I just want to throw that out there. If you want me to answer more of your search and seizure questions, contact me through the blue to gold comm webpage. Also, if you're interested in having me come out to your agency and teach you and your fellow brothers and sisters advanced search and seizure law, do the same thing and contact me be safe until next time.
Have another question? Click here: https://www.bluetogold.com/show
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Alright, guys got another great question from a police officer in Texas. So here's the situation. So you stop a car, you gain voluntary consent to search the vehicle. And the driver says, Yes, you get the driver out. And then you conduct the pat-down on the driver, and you feel like hard objects in their pocket. And you ask the driver whether or not you could retrieve the item.
He says, Yes, you retrieve the item, you pull it out of his pocket, you open it up, and there's heroin inside the container. And the question is, is, is asking him whether you can retrieve the item also allow you to search the item? Well, it depends. Let's look at the legal role. The legal role, is that whether or not you could open an item and search it under consent depends on whether or not you opened it, it was within the scope of the search. Now, this is an objective test, typically, where where, what would a reasonably objective person believe you're allowed to do when you ask the person whether you could retrieve the item did that when you asked the person if you could retrieve the item? And they said, Yes, that also include you opening the item? And so if there's there's no clear-cut answer, because you never asked the person whether or not you could open that and you said, Can I retrieve the item? So what are some of the factors that are going to come into play here? One is, would a reasonable person believe that when a police officer says, After putting down an object in their pocket, the police officer asked, you know, can I retrieve that item? I think, and actually in addition, not only that, but you also just ask for consent to search the vehicle. So we know that the reason person would know that the officer is interested in searching for something, whether it's drugs, you know, proceeds from drug sales, weapons, and so forth, or stolen property. So we already know that a reasonable person is going to be on alert that the officer is interested in searching. And so when you ask a person to retrieve an object from their pocket, it's it's implied that they want to search it. Because otherwise, why would the police officer want to simply grab a, an object out of the person's pocket? And I mean, I guess they could, they could look at it. But that's probably not going to tell you much. The officers, most recent people believe that daughter actually wants to search it. That's why they're asking if they can retrieve it. So I believe just with these barebone facts that you that most courts are are probably going to find that it's implied that within the consent to search of scope is implied that the officer is actually looking to look inside the item, not just retrieve it. Which brings me to my next point, you may still be able to retrieve the item under a protective under the Terry forest doctrine. In other words, that item may be considered a weapon under the pat-down. But that doesn't necessarily allow you to get inside the item either. So the better approach here is to justify the search under the implied scope of when I asked to retrieve that included looking inside of it. So I think that this is most likely a good search. It's not black and white, of course, because there's gonna be a fight. In court, you know, if the defense attorney wants to argue that the opening it opening the item was outside the scope of the search, I think he loses because I think a reasonable person would believe that opening the item was within the scope of the search. But good question. I hope this discussion helped and just come to the factors that the courts are going to look at, so be safe, and until next time. I'm out
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Hey, guys, Anthony Bandiero Here, Senior Legal instructor at Blue two gold law enforcement training. I got another question. And I thought it was a great question. And it's not a search and seizure related question. It's an evidence related question. But it's something that drug investigators especially run into all the time, and it's wanting to use the use this as an opportunity to share some information. So the question is, is, if a narcotics investigator is has a parallel investigation, you know, and they ask another officer, usually a uniformed officer to develop independence, reasonable suspicion or probable cause to stop the defendant's car. And that turns into a search and, you know, in drug evidence is found, does the defendants have a right to, to gain information about the investigation that kind of prompted this pre tech stop?
Right. And these are called Wall stops, because there's a wall between the the actual stop, which was, let's say, a speeding violation or whatnot, and an ongoing criminal investigation that may actually be based off of may have probable cause to, to also stop the defendants vehicle or not. But the point is, there's a wall between these two, and this, this, this parallel investigation is usually the reason why it's it's a pretext stop. So does defendant have a right to that information? The answer is no. And here's why. There are two principles at play here. First of all, it's in play here is the Brady rule. Right? You've if you were a cop in 2019, you've definitely heard of Brady violations. Right. Brady come from Brady V. Maryland. It's a US Supreme Court case that essentially says that the prosecutor has an obligation to hand over exculpatory evidence to the defendants, exculpatory evidence, right? Not inculpatory exculpatory that's fancy legal jargon for things that help defend and prove his innocence. Right? Or things that would help him get a reduced sentence. If you if you're sitting that kind of information, you got to hand it over because the defendant needs it for his defense. If not, it's a due process violation. So let's talk about why not handing over this parallel investigation. You know, the stuff behind the wall is not is not a Brady violation. Well, first of all, it's 99%, probably not going to be exculpatory. Everything that you know about this defendant tends to show, I believe, you know, if it's a drug investigation, and he is involved in narcotics sales, he has been trafficking. He has been undercover or hand-to-hand transactions or sold to an undercover officer. That's not going to help him he doesn't want that information in the court. So it's not exculpatory. Right? And so that's, that's the main reason. It has nothing to do with what the actual reason for the stop, which was, let's say, speeding and so forth, so it doesn't help them. So there's no due process violation. Now, just to be clear, it also, the evidence would also now have to be exculpatory, exculpatory, but also material, because we get a lot of info as police officers, we get a lot of information that may tend to prove or help the defendant. show his innocence. For example, if you're investigating an aggravated battery, and the defendant's neighbor says, you know, the defendant, he is such a nice person, I've never seen him hurt a fly, and he helps me take out my trash every Sunday. Do you need to give that information over to the defendant? Is that is that a material exculpatory information? No, absolutely not. It doesn't have nothing has nothing to do with the crime issue, which is aggravated battery.....
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How're you doing? Guys? It's Anthony here with blue to gold law enforcement training, just left another great phenomenal class teaching officers search and seizure in Galveston, Texas, beautiful place. And one of the students asked the question, I think it's worth asking here, and we can take some teaching points from it. So the question is, is, if an airport officer runs a K9 dog on a drug canine on a piece of luggage, and alerts, can we then sit back and wait for the owner to pick up that luggage and then arrest the owner and then actually search the case, incident to arrest?
And the answer is yes. But let's walk through the analysis here. So whenever we do a search, we search or seizure a protected item. We need crew, meaning crew, we need consent, or recognize exception or a warm, alright. And whether or not we need crew is based off the phone analysis. The first question courts are going to ask is whether or not the search or seizure even involves a protected area? Well, that's going to be easy here, a suitcase is a container, it is in effect, and in effects are protected under the Fourth Amendment. Persons houses, papers, and effects. So yes, the answer is we are dealing with a protected item protected by the Fourth Amendment. Is the is the free air dog sniff a search? The question the answer is no. Now in these circumstances, the officer had lawful access to the item and just a free air sniff around a piece of luggage is not going to implicate the Fourth Amendment. So the suitcase is a protected item, the dog search is not a search under the Fourth Amendment. So that's not an issue. The second thing is whether or not the arrest would offend the Fourth Amendment. So obviously a person is protected by the Fourth Amendment. And they would be seized that they were arrested. So we need an exemption to the war requirement. Well, officers an exemption to the war requirements anytime officers have probable cause that a person has committed a crime. And the officer has lawful access to the person. Well, we know when a person's in the airport, they have lawful access. If they have probable cause that the person committed a crime, they can go quickly collect habeas Gravis with the handcuffs and arrest that person. So the final piece of this is that we have no search in the fourth member with the dog; we do have a fourth amendment seizure the person if we make the arrest. And the final piece is whether or not the dog alert on the luggage is itself enough for proper cause arrest. It is right because you're going to be able to articulate that a person picking up their luggage, right? They probably even have a tag with their with their ticket number on it. They're picking up their luggage, they're the ones they're the one that gave it to the airline to transport when they're picking up their luggage. Is there a fair probability? Right probable cause? Is there a fair probability that this person knows that there are drugs? In their suitcase? The answer is yes. Right? Yes, it's fair, it's, it's fairly probable that if you pick up a piece of luggage, and there's a dog alert on that luggage, then then then there's probable cause to arrest. And if you didn't have to arrest the person, you searched the luggage that's going to be searched incident to a lawful arrest. Now, the other question that came up in this class is, could you search the luggage without the arrest? And this is, again, we're talking about drug talk. And the answer is? No. The reason is, is that there is no exception to the war requirement. There's no recognized exception number. We need crew, and we don't have consent. We don't have a war. So is there recognize exceptions open up a container?....
The following is a computer generated transcription, some grammar and spelling errors may be inherent.
Hey guys, Attorney Anthony Bandiero here bringing a roadside chat this time. An officer from Texas wants clarification on knockin talks. And in particular, I guess the question would be, can you do a knock and talk at odd hours at night?
Okay, the answer is yes. If you have a reason to believe that the occupants would be receptive to uninvited guests, so my friend in Texas, you know, you've seen other videos where I talk about how courts have held that you know, knocking at odd hours at night, you know, police open the door, and the officers going back to write that report and saying, Oh, that was a knock and talk. No, it was not. That is not a knock and talk that was as to say, the least a detention, because what reasonable person would feel free to ignore you. So if they chose to open that door, they have been essentially detained. They're even still in their house, but it's still a form of the tension, because the person did not feel free to leave. And they submitted to your show of authority. Okay. But going back to the question, is it possible to have a knock and talk late at night? What's interesting about this question is it comes very, it's very timely, because there was a case decided, just a few months ago, out of the First Circuit, and here's what happened. Basically, a boyfriend, girlfriend, you know, they're college students, and their relationship is in turmoil. So they break up, the boyfriend doesn't take no for an answer the ex-boyfriend and is basically harassing her, also, in some way stalking her, they end up after, you know, a month or so goes by, they kind of makeup and but just as friends, right, just as friends, at least that's what she wants. He doesn't he wants a relationship again. But you know, she, she allows him to be a friend. And he starts doing really weird stuff again, you know, and they get into a fight in, you know, an argument at his at her house, and he takes her cell phone, alright, and leaves. Now, this happens, you know, around three o'clock in the morning or so. And, you know, she calls the police, the phone is missing. They, you know, believe, you know, they that, you know, obviously he took it right. So they go to his house now, they go to his house around for a 5am kind of read from the case. And they observed the lights on in the home and decided to conduct a knock and talk rather than apply for a warrant to go get that phone. So here, the court said the officers entered the property, walked into the front porch, knocked on the door, and announced that they were police officers seeking to speak with the occupant. No one answered and the officers left the property. Was that in and of itself a constitutional violation? And the court said no, at this point, there was nothing constitutionally infirm about the officer's conduct, which was expressly permitted by the knock and talk exception to the warrant requirement. Okay. So they basically did what the public to do. Um, I want to let you know, though, a key to me in this case, is that the lights were on, and that they knew that French, the defendant here was just at the girlfriend's house recently, so he was up, they knew he was up recently, the lights are on. And, you know, it seems reasonable that maybe French would like to talk to the police and, you know, settled matter like, oh, no, I don't have her cell phone, she probably left it in her car or something. So, so far, so good. Okay. And let's also pause for a second and let me give you the citation. The citation for this case is French versus Merill, M E R, R, I L, excuse me, Ll, and the citation is 15 415. I'm sorry, F fourth. So federal fourth 116 First Circuit 2021. Okay. The problem is, though, they the officers in that case, went back to the home
Hey guys, it's attorney Anthony Bandiero. Here, bring you another roadside chat. And this question comes from an officer in Nevada, and actually, he's a corrections officer in prison. And he brought a great a great scenario. Do prisoners have a reasonable expectation of privacy in cell phones? Right? So the scenario is an officer, you know, in prison, found a cell phone, searched it without a warrant, and, you know, saw some information that helped prove that the prisoner knew, you know, that he had it, you know, I guess he's trying to say, Oh, I have nothing to do with that cell phone. But, you know, the evidence inside the phone shows that he made calls to people associated with him and so forth. Alright. So normally, the prison would get a search warrant. But the question for us today is, do you need one? And the answer is no. Right? The answer is no. And the reason why is because the prisoner knows or should know that they cannot have that cell phone. Clearly, it's contraband, right. All the rules, say it no cell phones, they know or should know that that phone is absolutely prohibited in that facility. So, therefore, when they brought it in somehow or obtained it, they're possessing contraband. And generally speaking, a person does not have any reasonable expectation of privacy in contraband. A good example of that is a Supreme Court case called Illinois versus Kabbalists, where the Supreme Court said that a dog sniff in and of itself is not a Fourth Amendment search if it is trained to detect contraband, right. So in that case, the canine was run around a vehicle during a traffic stop, it alerted to the presence of contraband, and a search ensued on the probable cause. And Kabbalists lost that case because again, the dog is not searching under the Fourth Amendment. Well, it's the same concept applies here. When officers in the prison facility search contraband, it's not a search because it doesn't implicate the Fourth Amendment. The Fourth Amendment prohibits unreasonable searches and seizures. This is not even a search, right? Because it doesn't implicate it's not a protected item. Let me just give you an example from a case called United States versus bash. I have the Westlaw citation. It's 2021, w l 3207252. So again, 2000, what are 2021 WL that sounds for Westlaw, three to 07252. It's out of the Eastern Eastern District of California, it was decided actually very recently, July 29, 2029. So here's a case where corrections officers search a cell phone in a cell in a cell and the bash the prisoner is trying to complain about this search and saying that you guys needed a search warrant. And here's what the court said about that. It said. Moreover, it is well settled that prisoners have no reasonable expectation of privacy in the belongings they keep with them. The Fourth Amendment, prescription against unreasonable searches and searches does not apply within the confines of the prison cell. California prisoners are prohibited from possessing a cell phone. And thus, defendant bashe cannot claim to have had a reasonable expectation of privacy in the contents of the contraband cell phone, which he possessed and violation of the law. Well, I don't have the Nevada law in front of me, but I'm sure that either by regulation or directly by law, the prisoners in Nevada cannot have a cell phone that would be considered contraband. Again, the law can basically tell the Department of Corrections for you to decide what's contraband, what's not. And the DLC would then lay out that cell phones are included, you know, also found another very persuasive case. This case is called we bring it up here. It's called United States versus huart and it's huart as H.U.A.R.T let me just kind of explain what's going on here. So the citation by the way, is 735. F 3d 972. A case out of the Seventh Circuit decided in 2013 against you at unit United States versus Huart 735 f 3d 972.
The following is a computer generated transcription, some grammar and spelling errors may be inherent.
Hello, my friends,
it's attorney Anthony Bandiero. Here bringing you a roadside chat.
The question comes from an officer in Texas; he says I'm in Texas; I want to know if you stop someone for a traffic violation. Can you identify the passengers? Or can the passage refuse to give identification?
It's a very easy answer; it applies to all states. Well, this first part may not be right; you can enter the fourth amendment, ask for a person's identification, or identify themselves, as it's a lot easier.
If you just ask for their information, write it down; it gets a little more complicated when you take their ID, not because they may be free to leave, but just because it's a little more intrusive, and so forth. But you can certainly ask under the Fourth Amendment for their information, and you can run their information as long as it does not, you know, extend a traffic stop.
So it's ideal if you can have somebody else run the passenger. So those rules differ a little bit, depending on what state you're in. But under the Fourth Amendment, the rules are the same, of course, right. But the second part is much easier. Can you demand a passenger's ID? Are there any consequences? The refuse? Absolutely not. Do not do it, do not threaten to arrest them for obstruction unless you have reasonable suspicion as to them. Suppose you end up arresting this person, for you know, some violation and because you know. In that case, you think that you have obstruction or refuses identify, expect a very bad day in court. And you can also get sued, and you may lose civilly because some courts are saying that a person's rights refuse themselves.
The right to refuse to identify themselves is clearly established, and you have no reason to order them to identify themselves. So the takeaway here asking, usually no problem. Demanding big problem if you don't have reasonable suspicion, before you leave, hit the like button, subscribe, share with your friends. Thank you.
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Hey guys, this is Anthony, Senior Legal instructor with blue two gold law enforcement training. Just got a question from an officer in Idaho. Two great questions, I want to share it and give you my thoughts about it.
The question is, is if you have reasonable suspicion or probable cause that a passenger in a vehicle, right has committed a crime, can you stop the vehicle even though you have no reasonable suspicion? or probable cause that the driver has committed a crime? And the answer is yes. And let's look at why the answer is yes. First of all, we know that the US Supreme Court has already said that, when you have reasonable suspicion or probable cause that the driver has committed a crime, the car can be stopped, even though there's passengers in the vehicle, right.
And so the Supreme Court has held that those passengers are legally seized under the Fourth Amendment, even though you have no suspicion that they've committed any crime. So we already know that. So we know, based on that logic, that the reverse is true, that if you have reasonable suspicion, or probable cause, that the passenger has committed a crime, let's say you think that they have a warrant, or they're not wearing their seatbelt, they throw a cigarette out the window, you know, that type of crime, we know that we can stop the vehicle because that's where the passenger is, even though the driver has not committed any crime. And so that's the that's the logic behind it. But there's a few things I want to kind of share with you before I end off and one is, remember, just that the driver has at this point not committed any crime. So, you know, demanding a license demanding registration insurance is maybe not appropriate, right? Because they are just they happen to be there, you have lawfully stopped them, but whether or not you can lawfully identify them, just because they're in the car, it may or may not be may not be required. I mean, because if you stop the driver, and for speeding, for example, can you demand that a passenger provided identification? The answer is generally no. Right? Because they just happen to be there, even though they are seized under the Fourth Amendment. They have not done anything wrong. So you're required your your requirement to identify themselves is really not applicable. I think the reverse is true for the driver. Now, if you ask the driver, can I see some identification or see a driver's license and they tell you, I don't have a driver's license? Well, guess what? They have now committed a crime in your presence. They just told you that they have no driver's license. So now that now you can take enforcement action on them, whether it's a citation, or an arrest. So that's the question. I hope this helps. It was a great question I want to share with you just remember if you have other questions, email me info at Blue to gold comm info at Blue to gold calm. I would love to answer more of your questions in this kind of format. It's easy for me and hopefully helps you too. So until next time, be safe.