The Law Officer's Pocket Manual

2022 Edition

John G. Miles Jr., David B. Richardson, Anthony E. Scudellari

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000572407
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

The Law Officer's Pocket Manual is a handy, pocket-sized, spiral-bound manual that highlights basic legal rules for quick reference and offers examples showing how those rules are applied. The manual provides concise guidance based on U.S. Supreme Court rulings on constitutional law issues and other legal developments, covering arrest, search, surveillance, and other routine as well as sensitive areas of law enforcement. It includes more than 100 examples drawn from leading cases to provide guidance on how to act in a wide variety of situations.

Some new material in the 2022 Edition:

• In a unanimous ruling, the U.S. Supreme Court curbed warrantless home entries. The court said that police can't automatically pursue fleeing misdemeanor suspects into a residence without a warrant. Whether exigent circumstances exist depends on the particular facts of each case.
• In another case, the high court ruled that when a police officer applies force to a suspect's body with intent to restrain, this is a seizure under the Fourth Amendment.
• The Supreme Court, in a unanimous ruling, bolstered home protections. It ruled that the community caretaking exception to the Fourth Amendment's warrant requirement doesn't extend to the home.
• The U.S. Supreme Court, in a unanimous decision, untangled some jurisdictional issues involving Native American, state, and federal enforcement officials. The court bolstered the authority of tribal police over non-American Indians traveling on public roads through reservations.
• In a pair of cases, the Court reinforced the court-made doctrine of qualified immunity. In both cases the high court said the law was not so "clearly established" as to allow litigation against the officers to move forward.
• In a civil rights case, the court sent the case back to the circuit court to determine if the suit can move forward.

VII. SEARCH AND SEIZURE

DOI: 10.4324/9781003271567-7

The entire topic of search and seizure is treated under this heading, although some of the same rules appear in other chapters. In particular, consult the material in Chapter V (“Search Incident to Arrest”) under “Plain View” and “Automobile Searches.”

The Fourth Amendment to the U.S. Constitution strictly limits the power of law enforcement officers to make searches. With a few very limited exceptions, you can conduct a search only if you have probable cause to believe that evidence of a crime is located in the place you wish to search.

The probable-cause test for a search is similar to the probable-cause test for an arrest. It requires a reasonable belief, based on a reliable source, that contraband or evidence of a crime is probably in the place to be searched. It must go beyond mere suspicion or an educated hunch. On the other hand, probable cause is less than an absolute certainty or proof of guilt.

A search is not justified by what it reveals.

For example, you have a “hunch” that the man who often leaves an expensive car parked outside a high school is up to no good. You search the car one day and find a large quantity of marijuana under the seat. The search is invalid since you had no probable cause to search the car.

You must meet the requirements of a valid search for each search you conduct. Searches must be limited in time and area and must be directed toward specific things.

For example, you have authority to search a home for a stolen television set. You also have a hunch that a resident of the home may be a drug dealer. You may not search drawers or other areas where a television set could not be. Nor may you continue your search after you find the stolen television set.

Even a small movement or manipulation of an object is a “search” if the movement or manipulation allows you to perceive something you would not otherwise have detected.

For example, while responding to an emergency in a shabby dwelling, you notice some high-priced stereo equipment. Suspecting it might be stolen, you turn the equipment over in order to see the serial number. You have made a search, and unless the requirements for a valid search have been met, what you learn from the search and what you seize as a result may be inadmissible.

The U.S. Supreme Court has also held that an officer’s squeezing of a traveler’s luggage in a way that allowed the officer to feel the contents of the luggage amounted to a “search” for Fourth Amendment purposes. Although the traveler had placed the luggage in the overheard bin of a bus, where he should have expected other passengers might move it, the court stressed that other travelers would not be expected to handle the luggage in an “exploratory manner.”

A. Search Without a Warrant

As a general rule, a search must be supported by a valid warrant. There are, however, limited exceptions to this rule.

While these exceptions are important, you should keep in mind that in close cases, a search with a warrant may be upheld when a search without a warrant will be declared invalid. Moreover, obtaining a warrant whenever possible forces you to review your case and may reveal significant flaws in the evidence that can be corrected before the case is botched.

Keep in mind that homes are places to which the Constitution gives special privacy protection. If you have probable cause to search a home but are concerned that someone may hide or destroy evidence inside while you are getting a search warrant, you may secure the home by preventing the residents from going inside unaccompanied by an officer while the warrant is sought.

The major exceptions to the warrant requirement are the following: searches “incident to” a valid arrest; automobile searches made under certain conditions; searches made under emergency conditions or exigent circumstances; and searches made with valid consent.

1. Search Incident to Arrest

At the time you make an arrest, or immediately after the arrest, you may search the arrested person and the immediate area into which he can reach. If the arrest takes place in or near an automobile, you may, incident to the arrest, search the passenger compartment and any containers you find inside.

The search-incident-to-arrest exception to the warrant requirement is discussed thoroughly in Chapter V.

2. Automobile Searches

You can make a warrantless search of a car that was in motion, or at least mobile, when seized, and which you have probable cause to believe contains contraband or evidence of a crime. This is true even if the car has been taken into police custody.

The authority to search a car that was mobile at the time police obtained custody of it, without first obtaining a warrant, exists independently of the authority to search the car incident to arrest.

For example, you stop a robbery suspect’s car, arrest him, and take him into custody. His car is then driven to the police stationhouse several miles from the scene of the arrest. You may search the car without a warrant at the stationhouse, assuming, of course, that you have probable cause to believe it contains evidence of the robbery or of some other crime.

Under these same facts, you may also search the passenger compartment of the car at the scene, incident to the arrest, even if you do not have probable cause with respect to the car. If you have probable cause to believe the vehicle contains contraband, or fruits or instrumentalities of the crime, you may search the entire vehicle then, or later at the stationhouse, even though there is no danger that the automobile or any evidence may be lost.

You do not have to use your authority under the “automobile exception” as soon as possible. In one case, for example, law enforcement officers seized a truck they had probable cause to believe contained marijuana. Inside the truck were wrapped packages, which the officers removed and placed in storage for several days before searching them. The Supreme Court upheld the search of the packages under the “automobile exception,” despite the passage of time between the seizure and the search. It seems clear that the initial search of the truck could have been put off for several days as well.

In another case, police got a tip that provided probable cause to believe that, later in the day, a suspect would be driving through the county in a particular automobile with a load of illegal drugs. The police did not attempt to obtain a warrant to search the car. Thirteen hours later, the suspect did indeed drive into the county in the automobile described in the tip. The Supreme Court upheld the warrantless stop and search of the car.

If you do not obtain probable cause to search a car until after it has lost its mobility or has been taken into custody, obtain a warrant before making the search.

Caution: If you have some doubts about whether you actually have probable cause to search a car, and you are sure you will be able to retain custody of the car until a warrant is obtained, you should play it safe and try to get a warrant.

An automobile search founded on probable cause may extend to any part of the vehicle, including closed containers found inside, in which the object of the search can be concealed.

Suppose you have probable cause to believe a suspect is dealing narcotics from the trunk of his car. You stop the car and search it, including the trunk. In the trunk you find a closed paper bag. The bag may be the hiding place of the narcotics—therefore, you may search it.

This exception to the warrant requirement extends to searches of passengers’ belongings as well, so long as you have probable cause, and the passengers’ belongings are capable of containing the object of the search. You may not, however, search the passengers themselves on the basis of probable cause as to their vehicle.

For example, you make a traffic stop and notice a hypodermic syringe sticking out of the driver’s shirt pocket. The driver says something about the syringe that gives you probable cause to believe he has illegal drugs in the car. For safety reasons, you order the occupants out of the car. You see that one of the passengers has left a purse in the car. You may search the passenger’s purse for drugs, but you may not search the passenger. The law is not clear on whether you may search the purse if the passenger is clutching it.

Note: One circuit court has said there was probable cause to search a vehicle trunk based on the smell of marijuana and the driver’s “shocked” body language. The court noted the initial stop and interior search were legal.

Note: A “motor home” (including a van, RV, or similar vehicle), so long as it is mobile, is subject to warrantless searches to the same extent an automobile would be.

Caution: The Supreme Court ruled 8–1 that police can’t use the automobile exception to the warrant requirement to enter private property and search a vehicle parked in the driveway.

Note: A unanimous Supreme Court ruled that simply because the person in control of a rental car isn’t on the contract, the driver still has a reasonable expectation of privacy.

In addition, circuit courts are split on whether an unlicensed, unauthorized driver of a rental car can challenge a search. Check your local rules.

3. Emergencies and Exigent Circumstances

You may make a warrantless search of anything, whether personal belongings, a vehicle, or a building, any time that you have good reason to believe it is necessary to save a life or prevent injury or serious property damage.

For example, while walking a beat, you hear the sounds of a vicious fight and cries for help from within a building. You may, of course, enter the building to prevent injury or damage.

However, you must be careful not to act as if an emergency existed after the emergency situation has passed.

Also, a search under emergency conditions must be limited to dealing with the emergency. If you enter a premises to break up a serious fight, you are not justified in continuing your “search” after the fight has been broken up.

Caution: The U.S. Supreme Court, in a unanimous ruling, held that the pursuit of a suspect who has committed a misdemeanor doesn’t categorically qualify as an exigent circumstance allowing for warrantless entry into a home.

Note: It is best to obtain a warrant.

You may make a warrantless search for evidence that you have probable cause to believe is in the place or thing to be searched, and that you have reason to believe will be destroyed or moved before a warrant can be obtained.

For example, you observe a suspect engage in a suspicious illegal drug transaction, and you follow him into an apartment complex. You lose sight of him around a corner in a hallway where there are only two apartments. Outside the door to one of the apartments, you get a whiff of the odor of burnt marijuana. The odor makes you think that this door was recently opened.

You bang on the door and repeatedly identify yourself as a police officer. No one comes to the door, but you can hear people inside the apartment running around and possibly destroying evidence.

You don’t need a search warrant to kick in the door. The suspicious transaction and the odor of marijuana provided probable cause to believe there was evidence of drug trafficking in the apartment, and the sound of the destruction of evidence made it reasonable to immediately enter the apartment rather than get a search warrant.

Note: It is important that you did not demand entry before you became aware of the facts indicating that evidence was in danger of imminent destruction. Also, courts disagree as to what sounds and odors are required for an officer to reasonably believe that evidence is being destroyed.

4. Hot Pursuit

If you are pursuing a person you have probable cause to believe is armed and has just committed a serious crime, you may, for the purpose of your own safety, the safety of the public, and the prevention of escape, search the building into which you have pursued ...