Search and Seizure

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Search and Seizure
LTC Steve Lund JA, USAMPS Instructor
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Terminal Learning Objective

• Action Discuss search and seizure law.
• Condition Given a guided classroom discussion.
• Standard Discussed search and seizure law.

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Advanced Law EnforcementTERMS

• Seizure
• Detention
• Arrest
• Apprehension
• Custody
• Terry Stop
• Traffic Stop

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Seizure Standards
Consensual Traffic Stop Terry Stop Apprehension
(Custody)
No Seizure
Reasonable Suspicion
Reasonable Suspicion
Probable Cause
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Apprehension

• Civilian term Arrest
• Military term Apprehension
• (Apprehension always custody)
• ONLY SOLDIERS CAN BE APPREHENDED!!
• Civilians are Detained

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Custody

• Definition
• A formal arrest or
• A restraint on the freedom of movement of the
  degree associated with a formal arrest.
• Objective Test
• Would a reasonable person believe, given all
  facts, that he/she is not free to leave?
• Subjective belief of officer or suspect is
  irrelevant

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Apprehension(Putting Them In Custody)

• What you NEED Probable Cause to believe
  that you have
• 1. A UCMJ violation
• 2. A person subject to UCMJ who
  committed the violation
• (RCM 302 controls)
• (PC fair probability, based on
  ALL the circumstances)

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Probable Cause

• You are the expert.

If you saw this, could you apprehend the owner?
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Can knowing a VIN number give you PC?
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Who Can Apprehend

• MPs, while executing law enforcement duties
• No off duty authority!
• ALL officers, warrant, petty non-commissioned
• On or off-duty, (See Art. 7, UCMJ)
• Investigators, guards, sentinels appointed by
  proper authority and executing assigned duties
• Federal law enforcement officers
• For Deserters
• Civilian police may arrest them

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ApprehensionSpecial Notes

• If you apprehended an officer
• Notify the Staff Duty ASAP
• R.C.M. 302(d)
• Give notice
• Use of Force
• Follow Your SOP!!

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Use of Force
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MP Authority Over Civilians

• Derived from inherent authority of the
  installation commander.
• 18 U.S.C. section 1382, No trespassing
• Civilians are DETAINED
• Turn over to civilian authorities

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Where Can You Apprehend

• Persons subject to the UCMJ
• ANYWHERE!!
• 24 / 7 subject to UCMJ
• Persons NOT subject to UCMJ
• ONLY on-post
• ONLY detain

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Remember

• MP authority to apprehend is based on executing
  military duties
• No authority to apprehend when off-duty (Unless
  NCO, WO or Officer)
• Apprehend those subject
  to UCMJ otherwise detain

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Review

• Your Questions?
• My questions
• What rule governs apprehensions?
• Who gives you the authority to detain civilians?
• What is required to apprehend?
• What can ruin a good apprehension?

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Searches

• US CONSTITUTION
• 4th Amendment

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4th Amendment

• The right of the people to be secure in their
  persons, houses, papers and effects against
  UNREASONABLE searches and seizures shall not be
  violated.

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The 4th Amendment Trigger

• GOVERNMENT INTRUSION
• EXPECTATION OF PRIVACY
• G I R E O P 4th Amendment Trigger

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4th Amendment

• General rules
• Nothing unreasonable
• Warrant required!!!
• based probable cause
• oath / affirmation
• describing place / person to be searched / seized

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Probable Cause

• Reasonable belief
• that specific items or persons connected with
  criminal activity
• are located in a specific place or on a
  person to be searched.

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Your experience is everything!
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Terry Stop

• REASONABLE SUSPICION that Criminal Activity is
  afoot.
• Articulate the facts and
  circumstances that lead you
  to believe that a crime was,
  is or will be committed.

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Frisk

• Stop and MAYBE Frisk (not automatic!)
• Must have reasonable suspicion that person
  stopped is presently armed and dangerous.
• More than just general officer safety.
• Nature of the crime?
• Prior contacts?
• Suspicious bulges?
• Furtive movements?
• Express threat Ill kill you!

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Frisk

• Pat Down the outer clothing in areas where
  weapons may be concealed and reached by the
  suspect.
• Do not reach into pockets unless you are
  retrieving a suspected weapon.
• BUT Define weapons broadly!
• Screwdriver? Pencil? Personal Mace? Pocket
  knife?
• If it is not illegal to carry the dangerous
  item (i.e.. The pencil or pen) hold onto the item
  during the investigation and then return it when
  you are done.

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Search Authorization

• Civilian World
• Judge
• Magistrate
• Military World
• Judge
• Magistrate
• Commander

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Search Authorization

• Experience Common Sense
• Need fresh facts
• From a reliable source
• No guess work / no rumor
• Indicating evidence of a crime
• Is located in the area to be searched
  (expectation of privacy)

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Search AuthorizationKey Questions

• How do you know?
• Saw
• Smelled
• Heard
• Tasted
• Why are you reliable?
• Why are you the expert?
• Talk to the ACTUAL witness

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Search Authorizations

• COMMANDER ? Neutral and Detached
• If he is involved in setting up the investigation
  NO
• If he already has a position regarding the guilt
  or innocence of a suspect NO
• If he remains uninvolved in the details of the
  investigation, remains calm, and appears neutral
  and detached OK

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Search Authorization

• Details on the paperwork
• NO KNOCK Rule
• If justified - request it
• Day/Night Service - no distinction
• If you want night, request it (courtesy)
• Drug Dog OK
• Tell directing official you will use one
  (courtesy)
• Computers
• Contact JAG BEFORE

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Exceptions to the Warrant Requirement
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Search Incident To Apprehension

• PC required (PC to apprehend)
• Expectation of Privacy is diminished
• Apprehension of person
• Scope
• Apprehension in a car
• Scope

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Vehicle Exception

• From Incident to Apprehension to PC
• PC required
• Scope whole car
• Vehicle must be operable

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Exigent Circumstances

• PC required
• Delay will cause loss / escape / harm
• Hot pursuit
• Destruction of evidence
• Life in danger
• Immediate action required

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Consent

• Consent must be voluntary
• No coercion

• Authority to consent
• Scope of search
• Withdrawal of consent

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Plain View Seizure

• I am in an area where I am authorized to be
• No matter how crazy you got there
• I see something illegal
• Must be immediately
  recognizable as contraband
  or evidence of crime
• Seize it!
• If you can get to the
  evidence legally

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Inspections

• Incident of command
• Exam of all or part of unit
• Primary Purpose
• properly equipped
• maintain readiness
• sanitation/cleanliness
• personnel fit/ready for duty

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Inspections

• SUBTERFUGE is the pitfall
• If the Inspection is conducted with the primary
  purpose of finding evidence for use at trial, the
  evidence will be suppressed.
• Must be conducted for health and welfare purpose
  not for criminal investigation.

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Inventory

• Purpose is NOT for criminal investigations.
• Purpose administrative
• Requirements
• Lawful impound
• Standard inventory SOP
• Inventory conducted IAW SOP
• Inventories should be tied to SOPs
• Routine is the key

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Other Searches

• Abandoned property
• NO REOP No 4th Amendment
• Foreign Searches
• 4th Amendment does not apply
• BUT, no gross or brutal maltreatment
• Private Search
• No GI No 4th Amendment

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Summary

• Government intrusion Expectation of privacy
• Search Authorization
• Search Incident to Apprehension
• Vehicle Exception
• Exigent Circumstances Exception
• Consent
• Plain View Exception
• Inspections and Inventories

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Review

• Your Questions?
• What is generally required before you search?
• Define probable cause.
• Who can authorize a search on post?
• When a commander authorizes a search, what must
  he be? Can authorization be issued orally?
• Can commander delegate authority to search?
• What if CDR is gone long-term?

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Review

• What are the two principles which implicate the
  4th Amendment?
• What is the difference between a Terry Stop and
  mere citizen contact?
• What is the purpose of a health and welfare
  inspection?
• Can the results be used as evidence?
• What is the purpose of an inventory?
• Can the results be used as evidence?

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Review

• Where is there REOP?
• Computer?
• Prison?
• Garbage?
• Curtilage?
• Barracks?
• On a military post?

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Review

• You are called to the Commissary because the
  manager suspects one of the employees, Jones, of
  stealing food from the meat department. While
  you interview other employees, the manager says
  that the Jones was just caught on video tape
  carrying a box of meat to his car behind the
  commissary. You check out the area behind the
  commissary, and there is no box of meat or any
  other evidence. You call the Military Magistrate
  to get a Search Authorization to search Jones
  car, but the magistrate is unavailable. You
  learn the thief is about to leave post. You give
  chase and catch Jones.
• Can you search the thiefs trunk? Why?

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Review

• Johnson comes in your office and says that Jones
  raped her 2 months prior. She did not report
  because she was afraid of him, and the system.
  She said that she saved the clothes she wore that
  night without washing. She said Jones wore a
  pair of dockers and purple t-shirt with pictures
  of Prince on the front and Apollonia on the back.
  You send her to get a rape kit done and send her
  clothes to the lab. Then you go to magistrate to
  get an SA to (1) take Jones DNA sample (2)
  take Jones hair sample (3) search for Jones
  t-shirt (4) search for Jones dockers.
• What will magistrate approve? Why?

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Review

• You get an SA to search on-post quarters of SSG
  Jones and his family. You are looking for a
  laptop computer (no discs or peripheral hardware
  just the laptop). You are executing the SA and
  you enter a closet. There are 2 shelves mounted
  to the wall, one at 6 feet and one at 7 feet.
  The higher shelf is too high to see, so you run
  your hand along the shelf to feel if there is
  anything on the shelf. You feel a small box and
  as you move your hand, the box falls to the
  floor. The box pops open and a white powder
  fills the air. You taste the powder and believe
  it to be cocaine.
• Will the cocaine be admissible? Why?

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Review

• Drunk driver is apprehended. MP wants to search
  a locked briefcase in the back seat of the car.
• Can he? Why?
• MP now wants to search the trunk.
• Can he? Why?
• Later MP wants to search the dumpster behind the
  DUI soldiers barracks.
• Can he? Why?

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Review

• You see a red mustang parked at the post theater.
  You know from your experiences back home that
  red mustangs are commonly driven by drug dealers.
  You observe two people standing around the red
  mustang, but nothing has changed hands. It is
  about 1700, and the theater is open for business.
  You believe their activity is suspicious and
  decide to apprehend.
• Is the apprehension good? Why?

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Review

• You are driving on duty and see a car whose
  driver appears to be impaired frequent lane
  changes, speed changes, inability to drive within
  the lane. You pull over and when the driver
  opens the window, you see red eyes and the driver
  is lethargic. You are not a professional at
  knowing what drunk/stoned people look like, but
  you ask the driver if you can search his car. He
  says he doesnt care because the car is not his
  he just borrowed it. You search and find a joint
  in the ashtray.
• Was the search lawful? Why?

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Review

• Soldier in barracks goes into neighboring room,
  without permission, because he thinks neighbor
  stole his Play Station 2. He finds the PS2 in
  his neighbors wall locker after prying the door
  open.
• Will the PS2 be admissible against neighbor? Why?

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Review

• You walk up to a soldier in your unit while he is
  at the bowling alley in civilian clothes. As you
  approach, you see the soldier sneakily pull his
  hand out of his pocket and drop a small bag to
  the ground and then step in front of the bag so
  as to hide it from your view.
• Can you pick up the bag to be used as evidence?
• Will it be admissible in court?

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Review

• You are the commander of a unit that has a drug
  problem. One of your soldiers, PFC Jones, is in
  ASAP because he had come up hot for marijuana.
  Since then he has been working hard to overcome
  his mistakes and has regularly ratted out his
  former buddies. Jones information has been
  completely accurate so far. Today Jones comes in
  your office and tells you that he can buy MJ from
  one of your soldiers. You decide to let him do
  it so that you can break this drug problem once
  and for all. You and Jones count out 50