 |
|
OFFICER SAFETY / SEARCH & SEIZURE LAWS
Copyright 1997 - 2018 Edward S. Armstrong, Jr.
Copyright 1997 - 2018 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.
II. ARREST (Public, Dwelling, Office)
A. Fourth Amendment
1. Arrest In Public - Police, armed with probable cause, may arrest a suspect in public for a felony. No Warrant is required, even if Police had time to obtain an Arrest Warrant, U.S. v. Watson (1976).For misdemeanor arrests, contact your Police legal advisor.
A suspect's yard, driveway, steps, open porch, and the suspect standing directly on an open threshold are public areas for a warrantless arrest, U.S. v. Santana (1976), see Florida v. Jardines (2013)
2. 48 Hour Rule - After a warrantless arrest, Police must within 48 hours obtain a Judge's independent determination of probable cause, Riverside County v. McLaughin (1991).
3. Arrest in Dwelling or Private Office – Police must have an Arrest Warrant, Consent from the suspect (see # 14, below), or Exigent Circumstances (see # 12 and 13 below) to arrest a person in his residence or private office, Payton v. New York (1980), U.S. v. Santana (1976), Pembaur v. Cincinnati (1986), LaFave 6.1, 3rd Ed.
4. Probable Cause Suspect Present - Police must have probable cause the suspect is present in his premises before executing an Arrest Warrant, Payton v. New York (1980).
5. Knock, Announce, Wait, Before Entering Premises to Make Arrest - Police must knock, announce their authority and purpose, and wait for admittance, before entering a dwelling or private office to execute an Arrest Warrant, Wilson v. Arkansas (1995).
6. Arrest of a Guest in Another’s Dwelling - To arrest a suspect who is a guest in another person’s dwelling, Police must have a Search Warrant, or the homeowner’s Consent to enter, or Exigent circumstances, Steagald v. U.S. (1981), Minnesota v. Olson (1990), Minnesota v. Carter (1998).
7. Confession after Illegal Entry to Arrest - If Police illegally enter a dwelling and make an arrest, any confession obtained inside the premises is inadmissible at Trial. However, a later confession obtained outside the premises in compliance with Miranda may be admissible at Trial, New York v. Harris (1990).
8. Arrest of Employee in Employer’s Private Office - To arrest an employee in his employer’s private office, Police must have a Search Warrant, or the employer’s Consent to enter, or Exigent circumstances, Pembaur v. Cincinnati (1986).
9. Unreasonable Delay Rule - If Police use a Federal Warrant to arrest a suspect, Police must take the suspect before a Judge without unreasonable delay, Rule 5a, Federal Rules of Criminal Procedure. Reasonable delays: medical treatment, personal history record, confession, travel, weekend, etc.
10. Arrest of Alien - If Police arrest a legal or illegal alien, Police must determine if the arrestee’s Country is on the mandatory notification list. If not mandatory, Police must advise the alien it is his choice whether to notify his consulate of his arrest, Vienna Convention. U.S. Department of State, telephone (202) 647-4415, after hours (202) 647-1512.
11. Arrest of Parolee - If a parolee is knowingly subject to a full search condition, Police may search him without RS or PC, Samson v. California (2006).
12. Hot Pursuit - Police, having probable cause that a serious crime has just been committed and probable cause that the suspect has just entered a particular residence, may enter the residence under hot pursuit without a Search Warrant or Arrest Warrant and arrest the suspect, Warden v. Hayden (1967), See also Stanton v. Sims (2013)
13. Exigent Circumstances - Police may enter a residence without a Warrant if probable cause exists that emergency assistance is required for an injured occupant or to protect an occupant from imminent injury, Brigham City v. Stuart (2006), Michigan v. Fisher (2009), see Ryburn v. Huff (2013)
14. Knock and Talk - Police, without Consent or a Warrant, may walk up to the front door of a residence and ask permission to enter and talk with a suspect. The suspect may deny entry or allow entry into the residence. If the suspect gives Consent to enter and Police see evidence in Plain View, Police may seize the evidence without a Search Warrant. If Police have probable cause to arrest the suspect, Police may arrest the suspect without an Arrest Warrant, Kentucky v. King (2011), Florida v. Jardines (2013). See more Knock & Talk cases in Investigative Techniques section.
Drug Dog - Police, without Consent or a Warrant, may not legally approach the front door of a residence with a specially trained canine (dog) in order to smell odors to obtain probable cause for a contraband Search Warrant, Florida v. Jardines (2013).
15. Search of Suspect's Body Not Related to Officer Safety - See Rochin v. California (1952)(Stomach), Cupp v. Murphy (1973)(Fingernail scrapings), U.S. v. Edwards (1974)(Clothing itself), Winston v. Lee (1985)(Bullet in suspect), U.S. v. DeHernandez (1985)(Alimentary canal at border), Missouri v. McNeely (2013)(Blood of suspect), Maryland v. King (2013)(DNA).
B. Officer Safety During Arrest
1. Use of Force - Police may use some degree of physical coercion or threat thereof to accomplish an arrest. The force used must be objectively reasonable, considering such issues as the severity of the crime, whether the suspect posed an immediate threat to Police or others, whether the suspect actively resisted arrest or attempted flight, Graham v. Connor (1989).
Deadly Force - Kisela v. Hughes (2018) Cites most cases!
2. No Knock Warrant, Entry - Police may use a no knock warrant or entry if reasonable suspicion exists that knocking and announcing their identity and purpose would be dangerous, futile, or allow destruction of evidence, U.S. v. Banks (2004).
3. Search Incident to Arrest, Suspect - Police, when making an arrest, may search the suspect and any containers the suspect carries for weapons and means of escape, U.S. v. Robinson (1973)
4. Search Incident to Arrest, Premises - Police, when making an arrest in a premises (dwelling or office), may search the areas within an unsecured suspect’s lunging distance for weapons, means of escape, and evidence, Chimel v. California (1969), Arizona v. Gant (2009). Riley v. California (2014)(cell phone search requires Consent, Search Warrant, or Exigent Circumstances -No SIA)
5. Protective Sweep #1 Premises, Dangerous Persons Near Arrest Area – Police, during an arrest in a premises, may search for persons in closets and places immediately adjoining the arrest area without RS or PC, Maryland v. Buie (1990).
6. Protective Sweep #2 Premises, Dangerous Persons Away From Arrest Area – Police, during an arrest in a premises, may search for persons in areas away from the arrest area (other rooms, closets) if reasonable suspicion (RS) exists that a person is there and is dangerous to Police, Maryland v. Buie (1990). If no RS exists, Police may ask for Consent to conduct a protective sweep.
7. Safety Question - Upon arrest, Police may ask a safety question such as “where is the gun?", without Miranda requirements, and the answer is admissible at Trial, New York v. Quarles (1984), see FBI Memo, dated 10/21/10, regarding safety questions after arrest of terrorist in U.S.
8. Inventory - Police may inventory property taken into Police custody to protect Police from dangerous articles, to prevent a civil suit against Police for theft; and to protect the owner's property, if a Police Department inventory policy exists and Police follow the policy, Illinois v. Lafayette (1983), Florida v. Wells (1990), Riley v. California (2014)(cell phone search requires Consent, Search Warrant or Exigent Circumstances)
9. 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). See number 4, above, for possible SIA. See also Stanton v. Sims (2013)
10. Strip Search - Florence v. County of Burlington (2012).