PART XI – SEARCHES AND SEIZURES WITHOUT A WARRANT

 

1.     a.  To stop a vehicle you must have (1) probable cause of a traffic offense or (2) reasonable suspicion of a crime.

 

b.  You may, without further justification: require the driver to get out of the vehicle, request an opportunity to inspect license and registration, examine the exterior of the vehicle, examine as much of the interior as is visible from the outside (and may use a flashlight to aid that examination), may ask questions regarding the reason for the stop, may inspect the VIN and make whatever entry is necessary to clear a view of the VIN tag.

 

     In Maryland v. Wilson 117 S.Ct. 882 (1997) , the U.S. Supreme Court ruled that officers may order a passenger out of a car during a car stop in addition to the driver.

 

     Much judicial debate has taken place in the last few years regarding the power of officers to ask consent to search a vehicle during or after a traffic stop.  Of course, where there is justification that has been developed during the stop, the search may take place.  But absent such justification, there has been some disagreement over the reasonableness of asking a driver for consent authority to search.

 

     In Ohio v. Robinette 117 S.Ct. 417 (1996) the U.S. Supreme Court refused to create a bright-line rule regarding extensions of traffic stops after completion of original business.  Court stated that reasonableness was the standard in light of the totality of the circumstances and that knowledge of right to refuse consent was but one factor to be considered.

 

     See also text 2:20 – 2:22 (4)

 

2.     a.  See handouts - “Searches and Seizures at a Glance.”
See text - pages 7:4 - 7:6 (top).

 

b.  See handouts - “Overview of Container Searches.”
Also see text - page 7:6 (bottom) - 7:7 (middle).

 

     You may not, if you find the evidence you are seeking in the container, then search the entire vehicle based on a Motor Vehicle Exception.  Like a warranted search, the authority for the search ends when all evidence has been found.

 

     In Wyoming v. Houghton 119 S.Ct. 1297 (1999), the U.S. Supreme Court held that all containers in a vehicle are subject to search in a Motor Vehicle Exception search as long is the item(s) sought could reasonably be in the container.  Court refused to exempt containers that obviously belonged to passengers who are not suspected of criminal activity, but which were left in the vehicle.  (A body search of a passenger is not justified under MVE.)

 

c.  See text - pages 7:6 (top)

 

     In Maryland v. Dyson 119 S.Ct. 2013 (1999) – Supreme Court held that use of the Motor Vehicle Exception to justify searches of motor vehicles does not require exigent circumstances, something that the Maryland Court of Special Appeals held in their decision on this case.  An MVE search delayed thirteen hours was justified by probable cause that existed at the time of seizure of the vehicle.

 

d.  See text - pages 7:7 (middle).

 

     Note that it is unclear what is meant by the term “mobile vehicle” in the decision for CA v. Carney.  The text takes the safe approach, assuming that it doesn’t apply to house trailers.  Clearly if it is not moveable because it is parked, attached to utilities and blocked and skirted, it is not a mobile vehicle.  If, however, it is a trailer simply sitting in a lot, unattached and needing only a tow to become mobile, it might meet the “mobile vehicle” definition.

 

3.     a. - b.       See handouts - “Searches and Seizures at a Glance.”
See text - pages 7:8 - 7:9 (3).

 

     Note that in West Virginia v. Flippo (Per Curiam 1999) the Supreme Court affirmed earlier case law – in particular Mincey v. Arizona 437 U.S. 385 (1978) – which holds that there is no general right to search a crime scene without a warrant.  Searches for evidence in a protected area controlled by the suspect must be justified by an exigency.  Where no definable emergency exists, or where the exigency has been addressed, a warrant must be obtained before any general and nonspecific search takes place.

 

c.  The DUI suspect’s body is removing the alcohol from the blood stream, therefore evidence is being destroyed and an emergency exists.  Taking a blood sample under these conditions is lawful as long as the extraction is done by competent medical personnel.  See text - page 5:9.

 

d.  See text - pages 7:9 - 7:10 (4).

 

     Note that in both cases, the entry was justified by reasonable belief that an emergency exists.

 

4.     a.  See handouts - “Searches and Seizures at a Glance.”
Also see text - pages 7:10 – 7:15 (5. - various parts).

 

U.S. v. Drayon (2002) – there is no requirement that a warning of right to refuse to consent be given.  The issue is more that the person be reasonably able to be know possible consequences of giving consent.  The totality of circumstances must establish that the consent was freely given.

 

b.  See text - pages 7:11 (middle).

 

c.  See text - page 7:12.

 

Note U.S. v. Mancias (2003) provides some guidance on the definition of coercive atmosphere for acceptance of consent to search as voluntary.  A driver of a vehicle, stopped for DWI, but upon testing not intoxicated, was arrested for driving on a suspended license.  The officers placed the suspect in the backseat of the patrol vehicle, in handcuffs, and requested consent to search.  The suspect agreed, and 8th Circuit Court of Appeals found the evidence admissible.

 

d.  See handouts - “Searches and Seizures at a Glance.”
See text 7:12 (bottom) – 7:13 (middle)

 

e.  The search must end when the consenting party says it must.

 

f. - g.        See text - pages 7:13 - 7:14.

 

     The circumstances presented in the text and in class will be the basis for any question regarding objective “f”.  The suggested action on page 7:14 (bottom) for dealing with uncertain authority also applies to the issues in objective “g”.

 

h.  See text - pages 7:15 (top).

 

5.     a.  See handouts - “Searches and Seizures at a Glance.”
See text - pages 7:33 - 7:34 (D).

 

b.  You may use reasonable force to break into a locked container in order to inventory its contents, but you should have a department policy that requires you to do so for all containers in impounded vehicles.  If damage results, you or your department may be required to pay for it.

 

c.  See text - pages 7:34 (middle).

The glove box may certainly be inventoried, and most likely the trunk, again if your department policy requires it of all impounded vehicles.  The same restriction regarding damage applies.

 

d.  See text - page 7:34 (middle).

 

e.  See handouts - “Searches and Seizures at a Glance.”
See text - page 7:34 – 7:35 (E)

 

f.   It is the same as that for inventory of locked containers found in an impounded vehicle.  If there is damage, you or your department may have to pay for it.

 

6.     a. - c. See text – 2:4 – 2:6 (4)

 

City of Indianapolis v. Edmond (2000) – eliminated random car stops for the general purpose of narcotics detection or other general crime control purposes.  DWI checkpoints are still legal, but if the primary purpose is crime control, the checkpoint is unconstitutional.

 

IL v. Lidster (2004) – affirmed the constitutionality of random stops at checkpoints set up near the scene of a crime in order to ask motorists if they have information useful in solving the crime.  Evidence obtained in plain view when making the stops is admissible.

 

7.     This objective requires the application of information from the preceding objectives.  Preparation for this objective is accomplished in several search and seizure role-plays in which trainees play the officers, an instructor plays the detained/arrested/searched party and the other trainees observe.  Class discussion follows each scenario.

 

8.     This is also an application objective.  See 75 above.