Digests- Session 3- Warrantless Searches and Seizures

Question 1

What do the N.Y.S. Constitution and the U.S. Constitution have in common regarding searches?

Answer 1

They contain identical provisions regarding a person’s right to be free from unreasonable searches and seizures.

Question 2

Can New York courts interpret the N.Y.S. Constitution differently from the U.S. Supreme Court?

Answer 2

Yes, New York courts may reach different conclusions on identical facts.

Question 3

What is required for a search of a package or container at the time of arrest according to PEOPLE v. GOKEY (1983)?

Answer 3

There must be some articulable reason to believe that failure to search will endanger:
police
public
or
evidence

Question 4

What do New York courts require regarding searches incident to lawful arrests according to PEOPLE v. JIMENEZ (2014)?

Answer 4

They require strict application of the GOKEY RULE, meaning such a search is not automatic.

Question 5

How do federal courts generally view searches incident to lawful arrests?

Answer 5

Federal courts generally allow such searches as incident to a lawful arrest.

Question 6

What did RILEY v. CALIFORNIA (2014) establish regarding searches of digital information?

Answer 6

Federal courts draw the line on searches incident to lawful arrest when the search involves digital information, such as a cell phone.

Question 7

What is the significance of WHREN v. U.S. regarding pretext stops?

Answer 7

The federal courts hold that if the initial stop is lawful, it does not matter if it was a pretext to investigate a more serious crime.

Question 8

What is a pretext stop?

Answer 8

A pretext stop is a
traffic stop where an officer relies on the fact that a vehicle operator has violated the Vehicle and Traffic Law to justify the stop of the vehicle, but the actual motivation of the officer is to investigate some other matter, for which there is no probable cause.

Question 9

What did the Court of Appeals of NYS rule in PEOPLE v. ROBINSON regarding pretext stops?

Answer 9

It ruled that using a Vehicle and Traffic offense as a pretext for stopping a vehicle is acceptable aligning with federal rulings.

Question 10

What is the four-tiered approach to police encounters with the public established in PEOPLE v. DE BOUR?

Answer 10

TIER #1: Request for information
TIER #2: Common law inquiry
TIER #3: Stop and frisk
TIER #4: Arrest

Question 11

What is required for a request for information in TIER #1?

Answer 11

• identity
  *address
• destination

NOTE: This TIER is not applicable regarding public service functions such as search for lost child, etc.

Question 12

What must exist for a common law inquiry in TIER #2?

Answer 12

There must be a FOUNDED SUSPICION that criminality is afoot.

NOTE: At this stage, more pointed questions can be asked. The police officer involved might even ask for consent to search.

Question 13

What is required for a stop and frisk in TIER #3?

Answer 13

REASONABLE SUSPICION that the person is:
committing, has committed, or is about to commit a felony or misdemeanor.

Question 14

What is required for an arrest in TIER #4?

Answer 14

REASONABLE CAUSE TO BELIEVE that the person committed an offense.

Question 15

What are the three conditions under which a police officer can enter a home to make an arrest?

Answer 15

(1) The officer can set forth facts indicating that exigent or emergency circumstances exist.
(2) The officer has consent to enter the premises.
(3) The officer has an arrest warrant.

(Payton v. New York)

Question 16

What happens if a police officer enters a third person’s home without a search warrant?

Answer 16

It is a violation of the third person’s constitutional rights, and any evidence discovered may be suppressed and the officers may be held civilly and criminally liable.

If a person sought by the police on a Warrant of Arrest is in the home of a third person, the police can only enter the home if exigent or emergency circumstances, consent, or a Search Warrant exist.

NOTE: There is a strong body of opinion that IF the police enter TONDELAYO’S house to arrest ROGER on a WARRANT of ARREST but the police do NOT have a Search Warrant for TONDELAYO’S house, the arrest of ROGER is an authorized arrest and ROGER has no standing to argue that TONDELAYO’S house was entered illegally. (See BARRY KAMINS, N.Y. SEARCH and SEIZURE.) Of course, if the police arrested TONDELAYO while in the home searching for ROGER, TONDELAYO would have standing to raise the issue of illegality.

Question 17

What factors can be helpful in determining a wanted person’s residence?

Answer 17

Voter registration
Address listed on driver’s license
Telephone listing
Defendant’s statements
and
Observations of the defendant.

Question 18

What is the code word for exceptions to search warrant requirements and the corresponding exceptions to the acronym?

Answer 18

SPACE SHIPS.
S = SEARCH INCIDENT TO ARREST
P = PLAIN VIEW
A = AUTOMOBILE
C = CONSENT
E = EXIGENT CIRCUMSTANCES

S = STOP, QUESTION, FRISK
H = HOT PURSUIT
I = INVENTORY
P = PUBLIC PLACE
S = SOLE OCCUPANT IN HOMICIDE CASE IS VICTIM

Question 19

What is the rationale for conducting a search incident to arrest?

Answer 19

First, to prevent the arrestee from securing a weapon or object that may endanger the safety of the police or public.

Second, to prevent the arrestee from acquiring any object that might provide a means of escape.

Lastly, to prevent the arrestee’s concealment or destruction of evidence.

Question 20

What happens if an arrest is merely a pretext to conduct a search?

Answer 20

Any evidence found during that search will be suppressed.

Be careful regarding vehicles.
An arrest of an occupant does not give you automatic authority to search passenger compartment.

See PEOPLE v. ROBINSON regarding PRETEXT STOPS OF VEHICLES.

Question 21

What is the scope of a search incident to an arrest?

Answer 21

The arrestee’s clothing and containers concealed in his clothing may always be
searched. A container is defined as any object capable of holding another object.
Common examples of containers which are concealed in clothing include wallets, cigarette cases, pill boxes, and bottles. This search is automatic in every arrest situation. The officer need not suspect that weapons, contraband, or evidence will be found.

The so-called “grabbable/lungeable” area is also within the scope of a search performed incident to an arrest. This is the area within which a suspect may secure a weapon or means of escape, or hide, remove, or destroy evidence. The size of this area depends upon the physical characteristics of the arrestee and will differ with each arrest situation. The lungeable area includes areas underneath tables, beds, and chairs, as well as inside of closets, desks, cabinets, etc. Be careful with vehicles. If you remove defendant from auto and
he is away from the car, the interior is not within his grabbable area.

NOTE: The rule is different regarding containers being
carried (suitcase, etc.). In this case there must be a reason to search.
(See PEOPLE v. GOKEY.)

Question 22

What is the confusion regarding vehicle searches?

Answer 22

Supreme Court of the U.S. has said that the law of search and seizure with respect to automobiles is “INTOLERABLY CONFUSING,” and the court cannot agree even on what it has held in previous decisions. Over the last two decades, the problem has NOT been clarified. The decisions of both the Supreme Court and the Court of Appeals are still confusing.

Question 23

What can happen during the arrest of an occupant of a vehicle?

Answer 23

(A) There may be a FULL SEARCH of the person arrested and anything found on his person or in the clothing he is wearing. But remember the ruling in PEOPLE v. GOKEY.

(B) There may be a FULL SEARCH of the “GRABBABLE AREA.” The N.Y. Courts have clearly limited this area to that which is in the arrested person’s reach.

Question 24

What is required for a search of the vehicle from which an arrested person has been removed?

Answer 24

There may be a search of the vehicle from which the arrested person has been removed. But,
1. PROBABLE CAUSE is needed to make this search.
2. There must be PROBABLE CAUSE that” :
a) a WEAPON may be found;
b) evidence of a crime or contraband may be found;
c) escape may be thwarted.
3. There must be a NEXUS (connection) between the ARREST and the PROBABLE CAUSE. (PEOPLE v. GALAK, 81 NY2d 463 [1993])

NOTE: The rule is different regarding containers being
carried (suitcase, etc.). In this case there must be a reason to search.
(See PEOPLE v. GOKEY.)

NOTE: Knowledge gained during the vehicle stop, including knowledge of a crime not related to the stop, can be used to develop probable cause. The NEXUS can be based on information received hours before the arrest, during the surveillance of the defendant.

Question 25

What is the federal rule regarding searching a vehicle for contraband as per U.S. v. Ross

Answer 25

(A) There may be a FULL SEARCH of the entire vehicle and all containers, closed or otherwise, that could contain the contraband. (B) The SEARCH must be based on PROBABLE CAUSE. (C) If a SPECIFIC container is believed to contain the contraband, it may be SEIZED and SEARCHED without a warrant. (D) N.Y. Courts held that where the police have PROBABLE CAUSE to believe that a vehicle contains CONTRABAND, WEAPONS, CRIMINAL EVIDENCE, etc., they may search the TRUNK, CONTAINERS FOUND, LOCKED GLOVE COMPARTMENT, UNLOCKED BRIEFCASE, CLOSED BAG, LOCKED SUITCASE, HIDDEN COMPARTMENTS, etc. ## Footnote NOTE: If the probable cause extends only to a particular container, a search of the entire vehicle is not justified. NOTE FURTHER: It would seem that the PROBABLE CAUSE which exists when an occupant is NOT arrested will give police more authority than in the case when an arrest is made. If no arrest, there is no requirement of a NEXUS.

Question 26

What is required for an inventory search of an impounded vehicle?

Answer 26

1. The vehicle must be subject to impoundment. 2. Department guidelines must be followed. ## Footnote Refer to PEOPLE v. GALAK, 80 NY2d 715 [1993]. This "GALAK" decision is not the same as the one cited re: Vehicle Search

Question 27

What is the purpose of an inventory search?

Answer 27

An inventory search is not for evidence or contraband; it is to protect property and police. ## Footnote (A) There may be a FULL SEARCH of the entire vehicle and all containers found closed or otherwise. (B) No more than MINIMAL DAMAGE may be caused to open locked containers unless there are EXIGENT CIRCUMSTANCES. (C) An INVENTORY SEARCH is NOT a search for evidence or contraband. It is a search to protect property, protect police, etc. (D) In 2005 (PEOPLE v. JEFFREY) an inventory search was overturned because the department involved did not have a policy regulating inventory searches. Prosecution argued "INEVITABLE DISCOVERY," but Court didn't buy it.

Question 28

What is required for a consent search?

Answer 28

If an individual freely and VOLUNTARILY consents to a search, it is constitutionally permissible without probable cause or a search warrant. ## Footnote Consent to a search is a waiver of a constitutional right, and the courts place a heavy burden upon the prosecution to prove that the consent was voluntary. This burden is based on the assumption that no one waives a constitutional right voluntarily.

Question 29

What factors determine the voluntariness of consent?

Answer 29

Factors include: (A) Background of the person consenting- A person with no prior police contact may be more intimidated into consenting than one with an extensive history (B) Age and intelligence of the person. (C) Coercion or threats by police- Threats= not voluntarily (D) Length of police contact. (E) Whether the person is under arrest- Should be avoided if person is already under arrest, intimidation more likely (F) Cooperation with police- Uncooperative person less likely to give voluntary consent (G) Advisement of the right to refuse consent- not required by consent after advisement more likely to be viewed as voluntary

Question 30

What is third-party consent?

Answer 30

A third party with legitimate control over the area may consent to a search, but not if the suspect objects. ## Footnote A wife with access and control over her husband's night table may consent to the search of the night table. Such a search is not valid in the face of a direction by the suspect not to search. A 2006 decision of the Supreme Court of the U.S. overturned a long-standing New York rule that said if two parties have an equal right of privacy, only one party needed to consent to a search. Now, if the other party is present and objects, NO SEARCH.

Question 31

What are common scenarios for third-party consent?

Answer 31

Common scenarios include: (A) Husband/Wife - A spouse may consent to the search of any property over which there is joint control. This applies to "common-law marriages" as well (B) Parent/Child - A parent can generally consent to a search of the part of the premises occupied by a minor child. But, a young child would generally not have the authority to consent to a search of the family residence. Older children may consent if they have joint access and control over the area in question. (C) Hotel/Guest - Hotel personnel cannot consent to the search of a room registered to a guest who is up to date in his rent payments. The hotel's right to enter rooms for cleaning or repair does not authorize entry for any unrelated purpose. (D) Boyfriend/Girlfriend - It is not necessary that the consentor be a full time resident of the place to be searched. If the consentor has keys, and is free to come and go as he pleases, his consent will be sufficient to sustain the search. (E) School Lockers - School Lockers - Not considered to be private property and consent to search may be given by the principal. Furthermore, because of the special position of school administrators, searches of students need not always be based on probable cause. Sometimes reasonable suspicion is sufficient. ## Footnote CAREFUL - NO TRUMPS YES when there are two people with an expectation of privacy actually present.

Question 32

What is the Plain-View Doctrine?

Answer 32

The Plain-View Doctrine allows police to seize evidence or contraband without a warrant if it is in plain view during a lawful intrusion.

Question 33

What are the conditions for the Plain-View Doctrine?

Answer 33

1. The officer must be in a lawful place. 2. The incriminating nature of the item must be immediately apparent (probable cause is OK) to the observer 3. The discovery must be inadvertent. ## Footnote For example, a police officer who is standing on a sidewalk looks into an apartment window and sees what he reasonably believes to be cocaine. In order to enter the residence to seize the cocaine, the officer would need either a Search Warrant or another exception to the warrant requirement (not the plain-view exception). If the officer heard screams, shouts and gunshots from within the apartment, he could enter pursuant to the exigent circumstance exception. Alternatively, if the officer received the consent of a resident of the apartment, he could enter pursuant to the consent exception. Once the officer is lawfully inside the residence, he can seize the cocaine.

Question 34

What is the crime scene search rule?

Answer 34

There is no 'crime scene exception' to the warrant requirement; a warrant is needed unless the perpetrator has no reasonable expectation of privacy. ## Footnote (MINCEY v. ARIZONA - 1978) However, when the perpetrator does not possess a reasonable expectation of privacy at the crime scene, a warrant is not necessary to enter and search the crime scene. For example, no warrant would be required if the perpetrator was a trespasser upon the crime scene.

Question 35

What actions can police take without a warrant at a crime scene?

Answer 35

Police may: 1. Search for dead or injured victims/ rendering aid 2. Preserve evidence while securing a warrant 3. Photograph evidence Example: the location and body position of a wounded victim who is about to be removed to receive medical treatment 4. Search for perpetrators still present at the scene

Question 36

The Search Warrant exceptions which are used most often at a crime scene are:

Answer 36

1. The emergency exception 2. The consent exception 3. The plain view exception. ## Footnote FURTHERMORE, if a homicide victim is the only person who has a right of privacy re: the place to be searched, no warrant is required. In order to make a warrantless entry into a crime scene based on the emergency exception, the officer must have reasonable cause to believe that unless immediate entry is made a person will be endangered, a suspect will escape, or evidence will be destroyed.

Question 37

What is the implication of the show-up identification case PEOPLE v. GORDON?

Answer 37

The case indicates the NYS Court of Appeals' distaste for station house show-ups, emphasizing the importance of proper identification procedures. ## Footnote NOTE: The Court of Appeals = strong dislike for station house SHOW-UPS, will almost always disallow them. For BUY and BUST operation, they will permit it. Buy and Bust indicates a sale, subsequent arrest, and brought back to the station and identified. People v Gordon- accused made no sale the day of his arrest and was identified on a prior sale at the station with no description of the accused in the documentation of the prior arrest - NO GOOD NOTE: People v Thomas- during a B&B operation, the officers involved spent about 5 minutes with defendant in a well-lighted area. They radioed a description to their back-up team and an arrest was made. Within one hour the officers viewed the defendant through a one-way mirror to confirm the defendant's identification. This was at the station house. App. Div. 2nd Dept. said this was not unreasonable and could not taint the officers' subsequent in-court identification of the defendant.

Question 38

What is the implication of the show-up identification case People v Duuvon | Frequently used by Sgts Test Examiners

Answer 38

People v Duuvon- NYS Court of Appeals upheld a on scene show up where suspect was in handcuffs. However indicated this type of show up is inherently pregudicial and should be closely scrutinized. | Frequently used by Sgts Test Examiners ## Footnote On the scene show-up with handcuffed suspect does not automatically make the show-up invalid.

Question 39

What is a 'Wade' hearing?

Answer 39

A 'Wade' hearing is a legal proceeding to determine the admissibility of identification evidence to guard against improper identification.

Question 40

What is permitted in a BUY and BUST operation?

Answer 40

In a BUY and BUST operation, station house show-ups are permitted.

Question 41

What is required for a police officer to make a vehicle stop?

Answer 41

A police officer must have SPECIFIC and ARTICULABLE facts that reasonably warrant the intrusion. | (PEOPLE v. INGLE, 36NY2d413) ## Footnote NOTE: Courts have interpreted this to mean that the police must observe a violation of the V.T.L.

Question 42

What happens when a vehicle stop is completed?

Answer 42

If an officer issues a summons and determines that the license, vehicle documentation etc. is in proper order, the stop is over. Continuing to detain for a search is not proper.

Question 43

What gives an officer the ability to detain a subject for additional questioning during a traffic stop?

Answer 43

If an officer observes circumstances that give reasonable suspicion of criminal activity, they may detain the suspect for additional questioning.

Question 44

What does presenting false identity indicate?

Answer 44

Presenting false identity gives police a FOUNDED SUSPICION THAT CRIMINALITY IS AFOOT. | NOW LVL 2 STOP- POINTED QUESTIONS AND CONSENT TO SEARCH MAY BE ASKED

Question 45

What is the expectation of privacy in a vehicle?

Answer 45

There is a lesser expectancy of privacy in a vehicle, but the right to forcibly detain a vehicle is similar to stopping a citizen on the street.

Question 46

What constitutes reasonable suspicion for a vehicle stop related to a crime?

Answer 46

NYS Courts haver generally held the position that reasonable suspicion is generally found if the vehicle is seen within a HALF HOUR after the crime and within ONE MILE of the incident.

Question 47

What is the standard for probable cause based on an informant's information?

Answer 47

The probable cause based on an INFORMANT's infomation regarding stoppping a vehicle is NOT as stringent as that which is needed to make an arrest PROBABLE CAUSE TO ARREST: based on Aguilar/ Spinelli Test 1. Is the informant reliable & 2. Is their current infomation reliable ## Footnote In stopping a vehicle based on an informant the prosecution must make SOME showing of the informant's reliability and his basis of knowledge.

Question 48

What is required for a lawful roadblock or roving patrol?

Answer 48

An essential factor is a lack of arbitrariness in the procedure. ## Footnote The "boss" cannot say, "You must all STOP two cabs tonight -- any two."

Question 49

Can police approach a vehicle with guns drawn?

Answer 49

Yes, if they have reason to believe the occupants are armed and dangerous.

Question 50

Is a search authorized when all occupants are removed from a vehicle?

Answer 50

No, a search is not authorized when a vehicle is stopped based on reasonable suspicion and all occupants are removed.

Question 51

Is simply peering inside a stopped vehicle considered a search?

Answer 51

No, simply peering inside a stopped vehicle is not a search.

Question 52

When is an inventory search authorized?

Answer 52

An inventory search is reasonable when conducted at the scene of a crime prior to the vehicle being towed away.

Question 53

When is an inventory search not authorized? and When is it illegal?

Answer 53

1. An INVENTORY SEARCH is not authorized when it is the result of an unlawful arrest. 2. An INVENTORY SEARCH is illegal if it is done to investigate criminal activity.

Question 54

What is the difference between a request for information and a common-law inquiry?

Answer 54

A request for information requires only an articulable reason to approach, while a common-law inquiry requires a founded suspicion that criminality is afoot.

Question 55

List the four levels of police encounters established in People v. Debour and what takes place at each level

Answer 55

1. A REQUEST FOR INFORMATION where only an ARTICULABLE REASON to approach a person is required. (Can't ask for CONSENT to search) Can ask identity, address, destination 2. A COMMON-LAW INQUIRY which requires a "FOUNDED SUSPICION THAT CRIMINALITY IS AFOOT." (May ask for CONSENT TO SEARCH) More pointed questions. 3. STOP and FRISK which requires REASONABLE SUSPICION, that the person is, has, or is about to commit a PL Felony or Misdemeanor. 4. ARREST which requires REASONABLE CAUSE TO BELIEVE the person comitted an offense

Question 56

What has the U.S. Supreme Court condemned regarding roadblocks?

Answer 56

The use of roadblocks for drug interdiction has been condemned, but D.W.I. checks and vehicle safety checks are permissible.

Question 57

What is 'geographical profiling'?

Answer 57

Geographical profiling means stopping a car solely because it comes from a jurisdiction where car theft is common. | Condemed by NYS Court of Appeals

Question 58

What happens in a joint access and control situation?

Answer 58

One person can give consent, but if the other joint person is present and objects, the consent is not valid.

Question 59

What must be present for a search warrant to authorize a search of all persons?

Answer 59

Probable cause must be present for such a search.

Question 60

What does U.S. v. Jones (2012) deal with?

Answer 60

It deals with police installing a GPS on someone's vehicle, requiring a search warrant if there is a trespass or breach of reasonable expectation of privacy.

Question 61

What did Riley v. California (2014) establish?

Answer 61

Police generally may not search digital information on a cell phone seized from an arrested individual without a warrant.

Question 62

What did Rodriguez v. U.S. (2015) rule about traffic stops?

Answer 62

Extending a traffic stop solely to conduct a dog sniff is an unreasonable seizure that violates the 4th Amendment.

Question 63

What are the conditions for seizing an object under the plain view doctrine?

Answer 63

(1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent | PEOPLE v. SANDERS (2016)

Question 64

What did the case of People v. Gayden (2016) confirm?

Answer 64

The flight from police during a common law inquiry (Level 2) raises suspicion from founded suspicion to reasonable suspicion (Level 3), allowing a stop.

Question 65

What did the New York Court of Appeals rule in People v. Bushey (2017)?

Answer 65

A police officer may run a license plate through a government database without suspicion of wrongdoing, which does not constitute a search. ## Footnote Additionally, information obtained indicating the registration of the vehicle is in violation of the law as a result of this check may provide probable cause for the officer to stop the driver of the vehicle.

Question 66

What does the automobile exception to the Fourth Amendment not permit?

Answer 66

It does not permit an officer to enter the curtilage of a home to search a vehicle parked there.

Question 67

What did Carpenter v. U.S. (2018) establish regarding cell phone location information?

Answer 67

Acquisition of cell phone location information from a carrier requires a warrant supported by probable cause. ## Footnote The Court continued, noting that while the Government will generally need a warrant to access cell phone location information, case-specific exceptions may support a warrantless search of an individual’s cellsite records, such as exigent circumstances, missing etc

Question 68

What is a Level 3 DeBour encounter?

Answer 68

Detention, however brief, is a Level 3 DeBour encounter This detainment cannot be justified by facts supporting only a Level 1 encounter. | PEOPLE V. HILL - COURT OF APPEALS (2019)

Question 69

What did the case of People v. Martin (2019) conclude about drug possession?

Answer 69

The defendant was properly concluded to possess drugs found in plain view in the bedroom where he was located, alone. But not those found in a closet outside the bedroom. | PEOPLE V. MARTIN - COURT OF APPEALS (2019)

Question 70

What must officers consider regarding warrantless entry into a home following a subject's flight from a misdemeanor?

Answer 70

Officers must consider all circumstances in pursuit of a suspected misdemeanant to determine if exigency excuses the warrant requirement. The flight of a person suspected of a misdemeanor offense does not categorically justify an officer’s warrantless entry into a home.

Question 71

What did the case of People v. Blandford (2021) address?

Answer 71

The court held that a canine sniff search of a vehicle’s exterior is lawful if police possess founded suspicion that criminal activity is afoot. | PEOPLE V. BLANDFORD - COURT OF APPEALS (2021)