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SEARCHES & SEIZURES:

KNOW YOUR RIGHTS

Dick Clark

dick@dickclarklaw.com

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Speaker profile: Dick Clark (1)

Former Policy Advisor to Governor Dave Heineman
Former Lobbyist and Board Member for Nebraska Firearms Owners Association (NFOA)
Committee Legal Counsel, Nebraska Legislature
Leader, Public Policy-SIG, Faith Based Security Network�
Private practice attorney based in Lincoln

Practice areas:

Firearms law
Criminal defense
Civil rights restoration
Trusts and estates

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Speaker profile: Dick Clark (2)

Firearms experience:

Rifle and shotgun shooting merit badge instructor, New Orleans Area Council, Boy Scouts of America
Sales representative, Heart of Dixie Guns, Auburn, AL
Incorporator, Midwest Church Security Coalition
Security ministry leader, Southview Baptist Church
Assorted practical/tactical shooting courses, faith-based security programming, etc.�
Shooter, hunter, and reloader

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The Bill of Rights (1)

United States originally operated under the Articles of Confederation
Constitution was ratified in 1788

Created much stronger national gov’t

More power to raise revenue through tariffs, imposts, excises, duties
Became effective on March 4, 1789

Powers of government enumerated

For Congress, list is in Art I, sec. 8

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The Bill of Rights (2)

Anti-Federalists were concerned that this new government could become a tyranny
They proposed a “Bill of Rights”

Designed to better safeguard liberty
Offered as a campaign pledge by James Madison
Seventeen articles originally proposed
Twelve articles presented to the States for approval on September 25, 1789
Ten articles ratified by the States

VA was last, on December 15, 1791

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The Bill of Rights (3)

Freedom of religion and the press�
Right to keep and bear arms�
No quartering troops during peacetime�
No unreasonable searches or seizures�
Grand jury indictment req’d for capital cases; no double jeopardy; no compulsory self-incrimination; no taking of property without just compensation

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The Bill of Rights (4)

Speedy, public trial by jury in state/district where crime occurred; explanation of charges; confront accuser; subpoena defense witnesses; assistance of counsel�
Trial by jury in all matters >$20; jury findings of fact final�
No excessive bail; no cruel & unusual punishment�
Enumeration of rights doesn’t disparage other rights�
Powers not granted to feds or denied states stay with states or people

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Fourth Amendment (1)

“The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

“

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Fourth Amendment (2)

As interpreted by courts, helps answer questions like…

When do police need a warrant?
When can police search your vehicle?
Can police enter home/business without warrant?
Do you have privacy in public?
What happens if your rights are violated?

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What is a search?

A government action that infringes on a person’s reasonable expectation of privacy.�

For their body, or
For their property.

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What is a seizure?

A person is seized if all the circumstances surrounding an incident would lead a reasonable person to believe he is not free to leave.�
Property is seized if police have meaningfully interfered with a person’s ability to possess it.

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Warrants (1)

What is a warrant?

A document issued by a government official, usually a judge, authorizing a LEO to arrest a person or search and/or seize property.�

When do police need a warrant?

For any search, seizure, or arrest…
Unless within an exception.

(There are MANY exceptions.)

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Warrants (3)

What can be searched or seized?

A warrant may describe persons or property

Must describe with “particularity” adequate to allow the average person to identify the person, place, or property named in the warrant.�

Once at location named in warrant, police can search and/or arrest those named, as well as anyone present whom they have probable cause to believe participated in a crime.

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Warrants (4)

Even if there is not probable cause to believe a person found at the scene has participated in a crime, police may temporarily detain…�

To control the scene
For officer safety
To preserve evidence
To check for open warrants�

If no probable cause to arrest, the person must be released.

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Warrants (5)

“Knock and announce” was long-time common law standard (ca. 1604)

Many exceptions permitted by modern courts and legislators have greatly increased prevalence of “no-knock” warrants
See Neb. Rev. Stat. § 29-411

Exceptions where evidence likely to be destroyed or where notice would create danger for officer or another person

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Warrantless searches (1)

Courts have recognized many exceptions to the warrant requirement:

Consent to search
Plain view
Stop and frisk
Probation search
Administrative search
Abandoned property
Borders
Inventory
Incident to arrest
Protective sweep
Vehicles… and more!

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Warrantless searches (2)

“Stop and frisk,” also called a “Terry stop”

If officer has reasonable suspicion that person has committed an offense, may detain and “pat down” for weapons
Weapons or contraband found may be used as evidence
At least one federal circuit court has held that a person possessing a gun is subject to a stop-and-frisk without other reasonable suspicion

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Warrantless searches (3)

Plain view

An officer may seize without a warrant any evidence or contraband that is immediately apparent and lawfully viewable by an ordinary person.

Search incident to arrest

No warrant required for a search during or immediately following a lawful arrest.
Includes person and their immediate surroundings from which they might get a weapon, effect escape, or destroy/hide evidence

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Warrantless searches (4)

Consent

Law enforcement may search a person or his property if that person consents.
LEO has no duty to inform of right to refuse�
Consent may usually be withdrawn, even after the search has begun

Exceptions: airports, prison security

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Automobile searches (1)

Tracking devices

Placement of a tracking device on a vehicle is considered a search requiring a warrant.

But guidelines are murky�

Dog sniffs

Dog sniff of a car does not require a search warrant
BUT police cannot prolong traffic stop after citation for unreasonable amount of time to wait for a dog

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Automobile searches (2)

Containers, wheel wells, & body panels

LEO may search any closed container in passenger compartment

E.g., glove compartment, console, coat pockets, bags, boxes
Requires probable cause
May sometimes be searched incident to arrest

Trunk

Trunk search requires probable cause that it will yield evidence relating to offense leading to arrest

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Automobile searches (3)

Inventory search

All-encompassing catch-all after arrest of a person found in an automobile.
Police are authorized to impound vehicle
Contents must be inventoried to protect property of person arrested AND protect police from false allegations of stealing
No warrant needed
Evidence obtained may be used in criminal case

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What about people in the car?

Carroll v. United States (1925)

SCOTUS reasoned that

car’s mobility makes getting a warrant more difficult
greater regulation of cars means there is lesser expectation of privacy

Consent

Remember: LEO can always search with consent
BUT... court will consider voluntariness, scope of consent, and authority of the person giving consent

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What about people outside car?

Person being arrested means police can search their “wingspan”

If inside car, interior of car is fair game
SCOTUS rules in 2009 that arrest outside of vehicle means police must have probable cause that evidence supporting arrest will be found in vehicle
Applies to passengers and drivers

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Searches of the home (1)

Generally, SCOTUS has recognized that highest expectation of privacy is at home

greatest protection against warrantless searches
But...

Abandoned property

No warrant needed for garbage in a trash can on the curbside, items dropped by fleeing suspect, etc.

Open fields and land

No expectation of privacy

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Searches of the home (2)

Curtilage

Area immediately surrounding a house is protected from warrantless searches
Factors: proximity to house, enclosures, how used
LEO may approach and knock like any other person

Dog sniffs

Requires warrant if at or around person’s house

Plain view

No warrant needed if visible from lawful vantage point

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Searches of the home (3)

Consent

LEO can search with actual consent

Exigent circumstances

Probable cause + emergency = warrantless search
E.g., to protect life, pursue fleeing felon, or prevent destruction of evidence

Drone surveillance

Rule of thumb: wherever the public can fly a drone, police can too
Rapidly developing area of case law

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RVs, boats, and planes

Motor homes

Can be treated like house or like vehicle
Depends on use of the motor home

Driving down highway?
Connected to utilities, not readily mobile?

Boats

Similar to motor homes; depends on use

Airplanes

Vehicle exception applies, allows warrantless searches in many cases

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Remedy: Exclusionary Rule

Illegally obtained evidence generally inadmissible

“Fruit of the poisonous tree”�
Exceptions for:

Good faith reliance on defective warrant
Independently available
Inevitable discovery
Incriminating statements to impeach witness
If defendant opens door by mentioning in trial

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Remedy: §1983 actions

Federal law authorizes damages for violation of civil rights
To win, must show

Person acting under color of law
Deprived person of rights guaranteed under Constitution and laws of U.S.
E.g., excessive force, unreas. search, illegal detention

LEO reasonable error = qualified immunity

Must show action was objectively unreasonable