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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.
III. VEHICLE STOP (traffic violations or crime stops)
A. Fourth Amendment
1. PC Traffic Violation - Police, having probable cause for a traffic violation, may stop the vehicle even if the Police motive is to solve a crime, Whren v. U.S. (1996).
The Miranda warning and waiver are not required during a traffic violation stop, only after an arrest, Pennsylvania v. Bruder (1988).
A passenger in a vehicle stopped by Police has, in addition to the driver, been seized under the 4th Amendment. Therefore, a passenger also has the right to challenge the constitutionality of the stop,
Brendlin v. California (2007).
2. RS Vehicle - Police may stop a vehicle if reasonable suspicion exists a crime has been, is being, or is about to be committed, Delaware v. Prouse (1979), Navarette v. California (2014)(911 call in this case provided RS to stop vehicle)
Heien v. North Carolina (2014) Officer's mistake of Law
3. Vehicle Identification Number (VIN) - There is no REP (reasonable expectation of privacy) in a VIN. If Police lawfully stop a vehicle and the VIN is covered with an object, Police may reach into the car, move the object, and read the number, New York v. Class (1986).
4. Flash Lights and Plain View Evidence - After a lawful vehicle stop Police may use a flashlight to look into the passenger compartment; if Police see an item in plain view which is immediately apparent to be evidence (probable cause), Police may seize the evidence without Consent or a Search Warrant, Texas v. Brown (1983).
5. Consent to Search - After a lawful vehicle stop Police may ask for and receive voluntary Consent to search the vehicle, Schneckloth v. Bustamonte (1973), Florida v. Jimeno (1991).
6. Dog Sniff of Vehicle - After a lawful vehicle stop Police may walk a specially trained dog around the vehicle; if the dog alerts to contraband being present (probable cause), Police may search the vehicle without Consent or a Search Warrant, Illinois v. Caballes (2005), Florida v. Harris (2013)
Rodrigues v. U.S. (2015) After traffic stop is completed, Police must have Consent or RS to conduct a dog sniff.
7. PC Contraband in a Container, Container Ends up in a Vehicle - If Police have probable cause that contraband is in a container and the container ends up in a vehicle located in public, Police may stop the vehicle and search the container without a Warrant, California v. Acevedo (1991).
8. PC Contraband in a Vehicle - If Police have probable cause that a vehicle located in public contains contraband, Police may stop the vehicle and search it without a Search Warrant or Consent, including any containers which can hide the evidence, Maryland v. Dyson (1999), including a passenger’s container, Wyoming v. Houghton (1999).
This search without a warrant may take place later at a different location (e.g., Police station), Texas v. White (1975).
9. Roadblocks & Barricades
a. Safety & Regulatory Inspections - Police may conduct a sobriety checkpoint, license and registration checkpoint, border patrol checkpoint near a border, and highway information checkpoint, without reasonable suspicion (RS) or probable cause (PC), Illinois v. Lidster (2004).
b. General Crime Control - Police may not stop vehicles at a roadblock for general crime control, e.g., drug checkpoint; Police must have RS or PC to stop a motorist for a crime or a traffic violation, City of Indianapolis v. Edmond (2000).
c. Recent Serious Crime - Police may use a roadblock in an area they reasonably know will be used by a fleeing criminal of a recent serious crime, e.g., kidnapping, escape, robbery; Police may stop all vehicles and search for victims and suspects, LaFave § 9.6a., see Barricade, below.
d. Barricade to Crash a Motorist is Deadly Force, Brower v. County of Inyo (1989)
10. PIT Maneuver (Precision Intervention Technique) - Police may use a PIT in an attempt to stop a fleeing motorist from continuing a public-endangering flight, Scott v. Harris (2007).
11. Shooting at Fleeing Vehicle - Mullenix v. Luna (2015), Kisela v. Hughes (2018)(List of Deadly Force cases!)
B. Officer Safety During Vehicle Stop (traffic violation stop or crime stop)
1. Ordering Vehicle Occupants after Traffic Violation Stop or Crime Stop - Police may order the driver and passengers out of the vehicle, Pennsylvania v. Mimms (1977), Maryland v. Wilson (1997), or order them to remain in the vehicle with their hands in view, U.S. v. Moorefield, 111 F.3d 10 (3d 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 any 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 a vehicle’s passenger compartment including unlocked containers if reasonable suspicion exists 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), Riley v. California (2014)(cell phone digital info search requires Consent or Search Warrant)
5. Search Incident to Arrest of Vehicle and Container - If Police arrest a suspect in a vehicle or outside the vehicle where the suspect was a recent occupant, Police may search the passenger compartment and containers therein, closed or unclosed, for weapons, means of escape and evidence, ONLY IF:
a. the arrestee is unsecured and is 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), Riley case above, cell phone search
6. Protective Sweep for Dangerous Person 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).
7. Inventory of Vehicle and Containers Pursuant to Policy - Police may inventory a vehicle in custody and its containers, for: dangerous articles, to prevent a suit against Police for theft, and to protect the owner's property - if a Police Department inventory policy exists and Police follow the policy, Colorado v. Bertine (1987), Florida v. Wells (1990), Riley v. California (2014)(cell phone search of digital info requires Consent or Search Warrant)
8. 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 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 a traffic violation (and not arrested), 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, cited in Turner, above.