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Search and Seizure

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Title: Search and Seizure


1
Search and Seizure
LTC Steve Lund JA, USAMPS Instructor
2
Terminal Learning Objective
  • Action Discuss search and seizure law.
  • Condition Given a guided classroom discussion.
  • Standard Discussed search and seizure law.

3
Advanced Law EnforcementTERMS
  • Seizure
  • Detention
  • Arrest
  • Apprehension
  • Custody
  • Terry Stop
  • Traffic Stop

4
Seizure Standards
Consensual Traffic Stop Terry Stop Apprehension
(Custody)
No Seizure
Reasonable Suspicion
Reasonable Suspicion
Probable Cause
5
Apprehension
  • Civilian term Arrest
  • Military term Apprehension
  • (Apprehension always custody)
  • ONLY SOLDIERS CAN BE APPREHENDED!!
  • Civilians are Detained

6
Custody
  • Definition
  • A formal arrest or
  • A restraint on the freedom of movement of the
    degree associated with a formal arrest.
  • Objective Test
  • Would a reasonable person believe, given all
    facts, that he/she is not free to leave?
  • Subjective belief of officer or suspect is
    irrelevant

7
Apprehension(Putting Them In Custody)
  • What you NEED Probable Cause to believe
    that you have
  • 1. A UCMJ violation
  • 2. A person subject to UCMJ who
    committed the violation
  • (RCM 302 controls)
  • (PC fair probability, based on
    ALL the circumstances)

8
Probable Cause
  • You are the expert.

If you saw this, could you apprehend the owner?
9
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10
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11
Can knowing a VIN number give you PC?
12
Who Can Apprehend
  • MPs, while executing law enforcement duties
  • No off duty authority!
  • ALL officers, warrant, petty non-commissioned
  • On or off-duty, (See Art. 7, UCMJ)
  • Investigators, guards, sentinels appointed by
    proper authority and executing assigned duties
  • Federal law enforcement officers
  • For Deserters
  • Civilian police may arrest them

13
ApprehensionSpecial Notes
  • If you apprehended an officer
  • Notify the Staff Duty ASAP
  • R.C.M. 302(d)
  • Give notice
  • Use of Force
  • Follow Your SOP!!

14
Use of Force
15
MP Authority Over Civilians
  • Derived from inherent authority of the
    installation commander.
  • 18 U.S.C. section 1382, No trespassing
  • Civilians are DETAINED
  • Turn over to civilian authorities

16
Where Can You Apprehend
  • Persons subject to the UCMJ
  • ANYWHERE!!
  • 24 / 7 subject to UCMJ
  • Persons NOT subject to UCMJ
  • ONLY on-post
  • ONLY detain

17
Remember
  • MP authority to apprehend is based on executing
    military duties
  • No authority to apprehend when off-duty (Unless
    NCO, WO or Officer)
  • Apprehend those subject
    to UCMJ otherwise detain

18
Review
  • Your Questions?
  • My questions
  • What rule governs apprehensions?
  • Who gives you the authority to detain civilians?
  • What is required to apprehend?
  • What can ruin a good apprehension?

19
Searches
  • US CONSTITUTION
  • 4th Amendment

20
4th Amendment
  • The right of the people to be secure in their
    persons, houses, papers and effects against
    UNREASONABLE searches and seizures shall not be
    violated.

21
The 4th Amendment Trigger
  • GOVERNMENT INTRUSION
  • EXPECTATION OF PRIVACY
  • G I R E O P 4th Amendment Trigger

22
4th Amendment
  • General rules
  • Nothing unreasonable
  • Warrant required!!!
  • based probable cause
  • oath / affirmation
  • describing place / person to be searched / seized

23
Probable Cause
  • Reasonable belief
  • that specific items or persons connected with
    criminal activity
  • are located in a specific place or on a
    person to be searched.

24
Your experience is everything!
25
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26
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27
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28
Terry Stop
  • REASONABLE SUSPICION that Criminal Activity is
    afoot.
  • Articulate the facts and
    circumstances that lead you
    to believe that a crime was,
    is or will be committed.

29
Frisk
  • Stop and MAYBE Frisk (not automatic!)
  • Must have reasonable suspicion that person
    stopped is presently armed and dangerous.
  • More than just general officer safety.
  • Nature of the crime?
  • Prior contacts?
  • Suspicious bulges?
  • Furtive movements?
  • Express threat Ill kill you!

30
Frisk
  • Pat Down the outer clothing in areas where
    weapons may be concealed and reached by the
    suspect.
  • Do not reach into pockets unless you are
    retrieving a suspected weapon.
  • BUT Define weapons broadly!
  • Screwdriver? Pencil? Personal Mace? Pocket
    knife?
  • If it is not illegal to carry the dangerous
    item (i.e.. The pencil or pen) hold onto the item
    during the investigation and then return it when
    you are done.

31
Search Authorization
  • Civilian World
  • Judge
  • Magistrate
  • Military World
  • Judge
  • Magistrate
  • Commander

32
Search Authorization
  • Experience Common Sense
  • Need fresh facts
  • From a reliable source
  • No guess work / no rumor
  • Indicating evidence of a crime
  • Is located in the area to be searched
    (expectation of privacy)

33
Search AuthorizationKey Questions
  • How do you know?
  • Saw
  • Smelled
  • Heard
  • Tasted
  • Why are you reliable?
  • Why are you the expert?
  • Talk to the ACTUAL witness

34
Search Authorizations
  • COMMANDER ? Neutral and Detached
  • If he is involved in setting up the investigation
    NO
  • If he already has a position regarding the guilt
    or innocence of a suspect NO
  • If he remains uninvolved in the details of the
    investigation, remains calm, and appears neutral
    and detached OK

35
Search Authorization
  • Details on the paperwork
  • NO KNOCK Rule
  • If justified - request it
  • Day/Night Service - no distinction
  • If you want night, request it (courtesy)
  • Drug Dog OK
  • Tell directing official you will use one
    (courtesy)
  • Computers
  • Contact JAG BEFORE

36
Exceptions to the Warrant Requirement
37
Search Incident To Apprehension
  • PC required (PC to apprehend)
  • Expectation of Privacy is diminished
  • Apprehension of person
  • Scope
  • Apprehension in a car
  • Scope

38
Vehicle Exception
  • From Incident to Apprehension to PC
  • PC required
  • Scope whole car
  • Vehicle must be operable

39
Exigent Circumstances
  • PC required
  • Delay will cause loss / escape / harm
  • Hot pursuit
  • Destruction of evidence
  • Life in danger
  • Immediate action required

40
Consent
  • Consent must be voluntary
  • No coercion
  • Authority to consent
  • Scope of search
  • Withdrawal of consent

41
Plain View Seizure
  • I am in an area where I am authorized to be
  • No matter how crazy you got there
  • I see something illegal
  • Must be immediately
    recognizable as contraband
    or evidence of crime
  • Seize it!
  • If you can get to the
    evidence legally

42
Inspections
  • Incident of command
  • Exam of all or part of unit
  • Primary Purpose
  • properly equipped
  • maintain readiness
  • sanitation/cleanliness
  • personnel fit/ready for duty

43
Inspections
  • SUBTERFUGE is the pitfall
  • If the Inspection is conducted with the primary
    purpose of finding evidence for use at trial, the
    evidence will be suppressed.
  • Must be conducted for health and welfare purpose
    not for criminal investigation.

44
Inventory
  • Purpose is NOT for criminal investigations.
  • Purpose administrative
  • Requirements
  • Lawful impound
  • Standard inventory SOP
  • Inventory conducted IAW SOP
  • Inventories should be tied to SOPs
  • Routine is the key

45
Other Searches
  • Abandoned property
  • NO REOP No 4th Amendment
  • Foreign Searches
  • 4th Amendment does not apply
  • BUT, no gross or brutal maltreatment
  • Private Search
  • No GI No 4th Amendment

46
Summary
  • Government intrusion Expectation of privacy
  • Search Authorization
  • Search Incident to Apprehension
  • Vehicle Exception
  • Exigent Circumstances Exception
  • Consent
  • Plain View Exception
  • Inspections and Inventories

47
Review
  • Your Questions?
  • What is generally required before you search?
  • Define probable cause.
  • Who can authorize a search on post?
  • When a commander authorizes a search, what must
    he be? Can authorization be issued orally?
  • Can commander delegate authority to search?
  • What if CDR is gone long-term?

48
Review
  • What are the two principles which implicate the
    4th Amendment?
  • What is the difference between a Terry Stop and
    mere citizen contact?
  • What is the purpose of a health and welfare
    inspection?
  • Can the results be used as evidence?
  • What is the purpose of an inventory?
  • Can the results be used as evidence?

49
Review
  • Where is there REOP?
  • Computer?
  • Prison?
  • Garbage?
  • Curtilage?
  • Barracks?
  • On a military post?

50
Review
  • You are called to the Commissary because the
    manager suspects one of the employees, Jones, of
    stealing food from the meat department. While
    you interview other employees, the manager says
    that the Jones was just caught on video tape
    carrying a box of meat to his car behind the
    commissary. You check out the area behind the
    commissary, and there is no box of meat or any
    other evidence. You call the Military Magistrate
    to get a Search Authorization to search Jones
    car, but the magistrate is unavailable. You
    learn the thief is about to leave post. You give
    chase and catch Jones.
  • Can you search the thiefs trunk? Why?

51
Review
  • Johnson comes in your office and says that Jones
    raped her 2 months prior. She did not report
    because she was afraid of him, and the system.
    She said that she saved the clothes she wore that
    night without washing. She said Jones wore a
    pair of dockers and purple t-shirt with pictures
    of Prince on the front and Apollonia on the back.
    You send her to get a rape kit done and send her
    clothes to the lab. Then you go to magistrate to
    get an SA to (1) take Jones DNA sample (2)
    take Jones hair sample (3) search for Jones
    t-shirt (4) search for Jones dockers.
  • What will magistrate approve? Why?

52
Review
  • You get an SA to search on-post quarters of SSG
    Jones and his family. You are looking for a
    laptop computer (no discs or peripheral hardware
    just the laptop). You are executing the SA and
    you enter a closet. There are 2 shelves mounted
    to the wall, one at 6 feet and one at 7 feet.
    The higher shelf is too high to see, so you run
    your hand along the shelf to feel if there is
    anything on the shelf. You feel a small box and
    as you move your hand, the box falls to the
    floor. The box pops open and a white powder
    fills the air. You taste the powder and believe
    it to be cocaine.
  • Will the cocaine be admissible? Why?

53
Review
  • Drunk driver is apprehended. MP wants to search
    a locked briefcase in the back seat of the car.
  • Can he? Why?
  • MP now wants to search the trunk.
  • Can he? Why?
  • Later MP wants to search the dumpster behind the
    DUI soldiers barracks.
  • Can he? Why?

54
Review
  • You see a red mustang parked at the post theater.
    You know from your experiences back home that
    red mustangs are commonly driven by drug dealers.
    You observe two people standing around the red
    mustang, but nothing has changed hands. It is
    about 1700, and the theater is open for business.
    You believe their activity is suspicious and
    decide to apprehend.
  • Is the apprehension good? Why?

55
Review
  • You are driving on duty and see a car whose
    driver appears to be impaired frequent lane
    changes, speed changes, inability to drive within
    the lane. You pull over and when the driver
    opens the window, you see red eyes and the driver
    is lethargic. You are not a professional at
    knowing what drunk/stoned people look like, but
    you ask the driver if you can search his car. He
    says he doesnt care because the car is not his
    he just borrowed it. You search and find a joint
    in the ashtray.
  • Was the search lawful? Why?

56
Review
  • Soldier in barracks goes into neighboring room,
    without permission, because he thinks neighbor
    stole his Play Station 2. He finds the PS2 in
    his neighbors wall locker after prying the door
    open.
  • Will the PS2 be admissible against neighbor? Why?

57
Review
  • You walk up to a soldier in your unit while he is
    at the bowling alley in civilian clothes. As you
    approach, you see the soldier sneakily pull his
    hand out of his pocket and drop a small bag to
    the ground and then step in front of the bag so
    as to hide it from your view.
  • Can you pick up the bag to be used as evidence?
  • Will it be admissible in court?

58
Review
  • You are the commander of a unit that has a drug
    problem. One of your soldiers, PFC Jones, is in
    ASAP because he had come up hot for marijuana.
    Since then he has been working hard to overcome
    his mistakes and has regularly ratted out his
    former buddies. Jones information has been
    completely accurate so far. Today Jones comes in
    your office and tells you that he can buy MJ from
    one of your soldiers. You decide to let him do
    it so that you can break this drug problem once
    and for all. You and Jones count out 50
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