OFFICER SAFETY / SEARCH & SEIZURE LAWS

Copyright 1997 -2015 Edward S. Armstrong, Jr.

All law enforcement officers must confer with their training officers, legal advisors and prosecutors regarding the following legal issues. State law can be more restrictive (pro-defendant) than Federal law. Federal circuit courts of appeal often disagree with other Federal circuit courts on issues not yet decided by the United States Supreme Court. Also, lower courts (State and Federal) sometime disagree on what a Supreme Court decision means. The following statements are not to be taken as legal advice.


 
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VI.   OFFICER SAFETY LAWS - OVERVIEW


1.   Ordering Vehicle Occupants after Traffic Violation Stop or Crime Stop - Police may order the driver and passengers out of a lawfully stopped vehicle (traffic violation stop or crime stop), Pennsylvania v. Mimms (1977), Maryland v. Wilson (1997), or Police may order them to remain in the vehicle with their hands in view, U.S. v. Moorfield, 111 F.3d 10 (3rd Cir. 1997), or order those who got out of the vehicle to return to the vehicle, U.S. v. Williams 419 F.3d 1029 (9th Cir. 2005).


2.   Frisk of Person and Container - After a lawfully made vehicle stop, or lawfully made foot stop, Police may frisk a person (and an unlocked container on or carried by the person which can hide a weapon), if reasonable suspicion exists the person is armed and dangerous, Terry v. Ohio (1968), Arizona v. Johnson (2009).

3.   Frisk of Vehicle and Container - Police may frisk the passenger compartment of a vehicle, including an unlocked container, if RS exists that an occupant is armed and dangerous, Michigan v. Long (1983).

4.   Search Incident to Arrest of Person and Container - Police may search a person under arrest and a container on or carried by the person for: weapons, means of escape and evidence, U.S. v. Robinson (1973)(for strip or body cavity searches contact your department's legal advisor).

Cell phone search of digital information, Consent or Search Warrant required, Riley v. California (2014)

5.   Search Incident to Arrest of Vehicle and Container - If Police arrest a suspect in a vehicle or outside a vehicle where the suspect was a recent occupant, Police may search the vehicle?s passenger compartment and containers therein, closed or unclosed, for: weapons, means of escape, and evidence,  ONLY IF:

a.  the arrestee is unsecured and within the reaching distance of the passenger compartment at the time of the search, or

b.  it is reasonable to believe the vehicle contains evidence of the offense of the arrest,

N.Y. v. Belton (1981), Thornton v. U.S. (2004), Arizona v. Gant (2009).

6.   Search Incident to Arrest of Premises and Containers- If Police arrest a suspect in a premises (dwelling, office), and the suspect is unsecured, Police may search the area within the suspect's lunging distance for weapons, means of escape, and evidence, Chimel v. California (1969), Arizona v. Gant (2009)

Cell phone search of digital information, Consent or Search Warrant required, Riley v. California (2014)


7.   Protective Sweep
for Dangerous Persons Near an Arrest Area - Police, during an arrest (e.g., in a premises, in a vehicle), may search for other persons in places where a person could be hiding immediately adjoining the arrest area without RS or PC, Maryland v. Buie (1990), Section IV, Arizona v. Gant (2009).

8.   Protective Sweep
for Dangerous Persons Away from an Arrest Area - Police, during an arrest (e.g., in a premises), may search for other persons in areas away from the arrest area if RS exists that a person is there and poses a danger, Maryland v. Buie (1990). If no RS exists, Police may ask for Consent to conduct a sweep.

9.   No Knock Entry of a Premises - Police must knock, announce their authority and purpose, and wait for admittance before executing Arrest Warrants and Search Warrants. However, Police may use a no knock warrant or entry if RS exists that knocking and announcing would be dangerous, futile, or enable evidence to be destroyed, Richards v. Wisconsin (1997), U.S. v. Ramirez (1998), U.S. v. Banks (2003).

 See Hudson v. Michigan  (2006)(the exclusionary rule does not apply for a knock and announce violation; however, Police may be sued by the occupant and disciplined by their department for a violation).

10.   Detaining and Handcuffing Occupants of a Premises- Police may detain and control the occupants of a premises being searched for contraband, Michigan v. Summers (1981), use reasonable force to accomplish the detention, Graham v. Connor (1981), and in potentially dangerous situations, handcuff the occupants,  Muehler v. Mena  (2005).

The Summers rule, which allows Police to detain the occupants of a premises during a contraband search, is limited to the immediate vicinity of the premises, Bailey v. U.S. (2013)

11.   Inventory of Lawfully Seized Property - Police may inventory property lawfully taken into custody (valuables, cash, clothes, vehicle, contents of containers) to protect Police from: dangerous items; civil suit; and to protect the owner's property  - if a Police Department inventory policy exists and Police follow the policy, South Dakota v. Opperman (1976),  Illinois v. Lafayette (1983), Colorado v. Bertine (1987), Florida v. Wells (1990).

12.   Safety Questions without Miranda - Police may ask an arrested suspect safety questions such as ?where is the gun? without first giving the Miranda warning, and the answer may be used against him, New York v. Quarles (1984).

13.   Recording Suspects? Conversations in a Patrol Car - Police may record the conversations of arrestees who are placed in a patrol car, without their knowledge, Consent, or a Title III Court Order, even when the officer is away from the patrol car, U.S. v. Turner, 209 F.3d 1198 (10th Cir. 2000).

The Eleventh Circuit Court of Appeals held that persons lawfully stopped for traffic violations, who give consent to Police to search their car, and who voluntarily sit in the patrol car during the search, may be lawfully bugged, without their knowledge, Consent or T-III Court Order, see Turner.

 14.   Hot Pursuit - Police who enter a premises under hot pursuit may look for weapons prior to and
immediately contemporaneous with the suspect's arrest, Warden v. Hayden (1967). SIA allowed upon
arrest, see above. See also Stanton v. Sims (2013)

15.   Use of Force - Police may use some degree of physical coercion or threat thereof to accomplish a Terry stop or an arrest. Police use of force must always be objectively reasonable under the circumstances, Graham v. Connor (1989).

16.   Deadly Force - Police may use deadly force if (a) probable cause exists that a suspect poses a threat of serious physical harm to Police or others, or (b) probable cause exists that a suspect has committed a crime involving the infliction or threatened infliction of serious physical harm and will escape, and (c) if feasible, a warning that deadly force will be used, Tennessee v. Garner (1985), Plumhoff v. Rickard (2014)

(NOTE: Many law enforcement departments and agencies place greater restrictions on its officers /agents than the Supreme Court does in Tennessee v. Garner. Some require the threat under (a) to be imminent and do not allow deadly force to be used under (b). Every law enforcement officer must be sure of his department or agency deadly force policy) 






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