Search and Seizure - Persons

Question 1

As long as the police do not violate the ____, ____, or ____ Amendment of the United States Constitution when obtaining evidence, or the constitutionally based procedures set out in ________, the evidence is admissible in court.

Answer 1

Fourth, Sixth, or Fourteenth Amendment of the United States Constitution

Procedures set forth in Miranda v. Arizona

Question 2

5 factors considered to establish “standing”?

Answer 2

(1) whether the defendant has a property or possessory interest in the thing seized or the place searched; (2) whether he has the right to exclude others from that place; (3) whether he has exhibited a subjective expectation that it would remain free from governmental invasion; (4) whether he took normal precautions to maintain his privacy; and (5) whether he was legitimately on the premises.

Question 3

Does a person who has rented a room with a stolen credit card have standing to contest entry by police, including compliance with knock and notice?

Answer 3

No. This person lacks standing to the hotel room.

Question 4

Does a person who is merely present in a hotel room that is rented to another have standing to question the validity of the police entry (Koury (1989) 214 Cal.App.3d 676; Hernandez (1988) 199 Cal.App.3d 1182), including compliance with “knock and notice” requirements?

Answer 4

No. This person lacks standing to the hotel room.

Question 5

Does a frequent guest who ran back into his friend’s home for the purposes of evading police and flushing narcotics down the toilet have standing to challenge entry of the residence or the locked bathroom?

Answer 5

No. This person lacks standing to the residence and the bathroom.

Question 6

Does the lessee of a rental car have standing, even though the lease has expired and he is holding over, if the rental company has not tried to regain control of the vehicle.

Answer 6

Yes. The lessee has standing to challenge the search of the vehicle.

Question 7

Does a driver who is not on the car rental agreement but otherwise in lawful possession and control of the rental car have standing to challenge the search of the car.

Answer 7

Yes. The the driver who is not on the rental car agreement but has lawful possession and control of the rental car has standing.

Question 8

Does an owner of a residence who is ABSENT at the time his home is searched have a sufficient privacy interest to assert a knock/notice violation.

Answer 8

Yes. The absent home owner has standing to his home.

Question 9

Does a tenant who has not formally been evicted, even though the landlord has gotten a restraining order to keep him away from the premises have standing to his apartment.

Answer 9

Yes. The tenant has standing.

Question 10

Does a babysitter have standing in the residence during the time he or she is sitting and while the owner is away?

Answer 10

Yes. The babysitter has standing over the residence.

Question 11

Does a person have standing to contest a warrantless search of a gym bag the person was sitting next to because he told the searching officer it did not belong to him?

Answer 11

No. The person does not have standing over the gym bag.

Question 12

Does the driver of a stolen vehicle have standing to object to a seizure or search of the stolen goods, including the stolen car.

Answer 12

NO

Question 13

IS it still only a consensual encounter, not a detention, when the officer asked “Can I talk to you for a moment?” and the individual said “yes” and then agreed to wait in the back of a police car while the officer ran a warrants check, when everything was spoken in a polite conversational tone without physical or verbal force?

Answer 13

Yes. It is still a consensual encounter because the person agreed to speak with the officer, agreed to wait in the back of the police car, and the officer’s tone remained polite without physical or verbal force.

Question 14

Chamagua quickly walked into an apartment complex after he saw a patrol car approaching. Officers saw him put something in his pocket. They pulled their car slightly into the driveway alongside Chamagua before getting out. After they asked him, “Hey, how are you doing? What’s your name? Do you got anything illegal on you?” Chamagua admitted to having a pipe. Was this a detention or consensual encounter?

Answer 14

It was held as a Consensual Encounter. “Asking questions, including incriminating questions does not turn an encounter into a detention.” Additionally, “[p]eople targeted for police questioning rightly might believe themselves the object of official scrutiny,” but “directed scrutiny” is not a detention.

Question 15

Officers observed the defendant walking through a shopping center at 1:20 a.m. when all the stores were closed. They shined a spotlight on him and got out of their car, and one officer said, “Come over here. I want to talk to you.” Was this a consensual encounter or a detention?

Answer 15

This was held as a detention. It was a detention because the “command” and the other circumstances would make the suspect believe he was not free to leave. And without some indication of criminal activity, just walking through a closed shopping center in the early morning hours did not amount to reasonable suspicion.

Question 16

Officer was patrolling a high-crime, high-drug area of Vallejo after 11 p.m. when he observed defendant standing next to a parked car. The officer stopped the patrol car about 35 feet away and turned on the patrol car spotlight to illuminate defendant. Defendant appeared to be nervous, and the officer walked “briskly” toward him. Officer could see defendant look shocked and nervous and start walking backwards. Defendant said, “I live right there,” and pointed to a nearby house. Officer said, “Okay, I just want to confirm that,” and asked defendant if he was on probation or parole. Defendant said he was on parole. Was this a lawful consensual encounter?

Answer 16

The combination of the spotlight and the officer “rushing at” defendant and asking about his “legal status” amounted to an unlawful detention.

Question 17

ARE questions regarding identity and a request for identification allowed during a consensual contact?

Answer 17

YES. The law is clear that questions regarding identity and a request for identification ARE allowed during a consensual contact.

Question 18

Is taking a voluntarily offered license automatically mean a detention has occurred?

Answer 18

The court found that voluntarily handing over identification DID NOT convert the encounter into a detention because the individual was free to request that his identification be returned and to leave the scene. The court found it significant that the officer asked for, rather than demanded, identification.

Question 19

An officer approached a man who he thought, based on an anonymous telephone tip, might be dealing drugs. As the officer identified himself, the man reached into his pants pocket where the officer had noticed a 1½-inch bulge. Fearing that the man was reaching for a weapon, the officer grabbed the man’s wrist and pulled his hand out of the pocket, causing him to drop a package of heroin. Was the officer’s actions lawful?

Answer 19

The court upheld the officer’s actions because either

(1) they were necessary to ensure his safety or
(2) the man’s movement provided a basis, as of that moment, to detain him and check for weapons.

Question 20

Officers stopped to help a driver with a disabled car. The driver, who wore a hooded sweatshirt with a heavy item bulging out of the front pocket, appeared nervous and continued to touch whatever was in his pocket. Concerned that the item might be a weapon, one officer asked the driver to stop reaching into the sweatshirt. Did this request turn the stop into a detention from a consensual encounter?

Answer 20

NO. The request DID NOT turn the consensual encounter into a detention. Asking someone to keep his hands out of his pockets under these circumstances “is a normal, expected response to an officer’s concern for his or her own personal safety during the encounter.”

Question 21

An officer saw a group of five or six people standing in front of an apartment complex and recognized two of them as residents. As the officer approached, they all walked away, except Ross. The officer asked Ross to come over and talk to him and to identify herself, which she did. He asked her for confirming identification and asked her, for his own safety, to remove her hands from her pockets, which she did, discarding some cocaine in the process. Was this a consensual encounter or an unlawful detention?

Answer 21

Because everything was done by request, it was a consensual encounter, not a detention.

Question 22

Two city police detectives were assigned to the gang unit, which maintained a photographic file of known gang members and associates. One day they saw five males on known gang “turf,” wearing gang clothing, standing together in front of an apartment where gang members often gathered, talking and socializing. The officers detained them (by ordering them to “stay there”), patted them down, ordered them to sit, interviewed each one individually, and photographed them. The entire process took 15 to 20 minutes. Was this a lawful detention?

Answer 22

The detention was unlawful.

Question 23

Officers saw two men walk away from each other in an alley in an area with a lot of drug trafficking. They believed the men would have met each other if the police had not been there. This “looked suspicious” to the officers, so they stopped one of the men and asked for identification. When he refused, they arrested him. Was this a lawful detention?

Answer 23

This was an unlawful detention. The court held that the fact that the men were in a neighborhood frequented by drug users was not enough for reasonable suspicion.

Question 24

Police saw a man in a front driveway stripping copper wire from an air conditioning unit. The man said he was there visiting his friend “Rick” and that the air conditioner was broken. He did not know Rick’s last name, and he admitted to being on probation for a narcotics offense. An officer approached a partially open side door to the house, leaned inside, identified himself as police, and commanded anyone inside to come to the door. Defendant, who turned out to be Rick, walked out of a bedroom and followed the officer’s instructions to turn around and walk backwards out of the house. Was it lawful to detain Rick for reasonable suspicion of an in-progress burglary?

Answer 24

The detention in the home was unlawful. The officers lacked specific, articulable facts suggesting that defendant might be engaged in criminal activity. Taking a very narrow view of the facts, the court found that the officers could not have reasonably concluded that a burglary was in progress.

Question 25

Police received a report of a “male Black adult” wearing a dark hoody and black pants harassing customers in front of a business during the middle of the day in a high-crime area. The caller referred to the man’s cognitive problems and linked him to a nearby homeless camp but did not report an actual crime. Officers responded over two hours later and attempted to talk to Thomas–the only person in the immediate vicinity–who was wearing the clothing described in the call and sitting 70-80 yards away from the business. Would it be reasonable for the officers to detain the subject and search him?

Answer 25

Those facts, plus his refusal to identify himself, was not enough for a detention and pat search.

Question 26

Was it reasonable to detain a man with an axe who was riding a bicycle at 3:00 a.m., even though no “axe crime” had been reported?

Answer 26

It was a lawful detention. “Some activity is so unusual, so far removed from everyday experience that it cries out for investigation.”

Question 27

At 3 a.m. in a residential neighborhood known for burglaries and drug trafficking, a patrol officer spotted two persons standing near a vehicle parked in a particularly dark location, apparently talking to someone inside the car. When the officer activated his spotlight and lit up the car interior, two people inside the car ducked down out of sight and one person outside the car (Souza) took off running. The officer caught him, patted him down, and discovered cocaine. Was the detention lawful?

Answer 27

The detention was lawful under the totality of the circumstances. The area’s reputation, the time of night, and the suspects’ efforts to avoid detection were all proper factors to consider and provided reasonable suspicion of criminal activity.

Question 28

At midnight, officers lawfully stopped defendant’s car for a taillight violation. After defendant complied with the request to step out of the car and walk backwards with his hands behind his head, the officers grabbed his hands to conduct a weapons search based on the “high-gang location.” Was the weapons search and high risk stop lawful?

Answer 28

The search based solely on a driver’s presence in a high-crime area late at night was unlawful.

Question 29

A disgruntled father of a high school football player threatened one of the coaches and said he would see the coach after the game. Someone reported to another coach that the father had a gun. After the game, officers found the father in the parking lot with a group and he started walking away when the police car pulled into the lot. The police drew their weapons and placed him in handcuffs. He admitted he had a gun in his pocket. Was this a lawful detention?

Answer 29

The detention was lawful.

Question 30

An anonymous caller from a pay phone reported that a grey station wagon was parked at a nearby restaurant and that the driver was armed and carrying a kilo of cocaine. Officers observed defendant leave the restaurant and drive away. A warrants check indicated that the wagon’s registered owner had an outstanding misdemeanor warrant, and the officers conducted a felony stop. Was the anonymous tip “probable cause” for the High Risk Stop? Did the warrant provide sufficient grounds for the T-Stop?

Answer 30

The uncorroborated anonymous tip did not provide probable cause for the “felony extraction” amounting to an arrest. The court intimated that the discovery of the warrant might have provided sufficient independent grounds to stop defendant’s car, but defendant’s lack of similarity to the physical description on the warrant “immediately dispelled” that basis for the arrest.

Question 31

Officers saw two men walk away from each other in an alley in an area with a lot of drug trafficking. They believed the men would have met each other if the police had not been there. This “looked suspicious” to the officers, so they stopped one of the men and asked for identification. When he refused, they arrested him. Was this a lawful detention and arrest?

Answer 31

The detention was unlawful. The court held that the fact that the men were in a neighborhood frequented by drug users was not enough for reasonable suspicion.

Question 32

Officers saw two males loading a TV into the trunk of a car at 7:30 p.m. when most nearby businesses were closed. There were no television shops nearby, and the neighborhood had been plagued by burglaries. When they saw the officers, the men looked “shocked,” slammed down the trunk lid, and walked swiftly toward a bar. They ignored the officers’ requests to talk and had to be forcibly detained. Was this a lawful detention?

Answer 32

The court ruled there were enough specific facts to make the detention valid.

Question 33

At midnight, officers lawfully stopped defendant’s car for a taillight violation. After defendant complied with the request to step out of the car and walk backwards with his hands behind his head, the officers grabbed his hands to conduct a weapons search based on the “high-gang location.” Was this a lawful search?

Answer 33

The search based solely on a driver’s presence in a high-crime area late at night was unlawful.

Question 34

Normally, a search is not permitted unless: (Name 4 conditions)

Answer 34

(1) you have consent, (2) the detainee is on parole, PRCS, searchable probation, or searchable mandatory supervision, (3) you are concerned about a possible weapon, or (4) you have “probable cause” to arrest and/or search.

Question 35

Miranda warnings are never necessary unless you have both “____” and “____.”

Answer 35

Custody and Interrogation

Question 36

True or False. If the detainee is on parole, PRCS, searchable probation, or mandatory supervision with a search term, you are entitled to search him/her without any suspicion of criminal activity.

Answer 36

True. You are entitled to search without any suspicion of criminal activity.

Question 37

You may conduct a pat down or limited weapons search of someone you have DETAINED under these conditions:

Answer 37

(1) only for weapons, (2) only of his outer clothing, and (3) only if you have specific facts that would make a reasonable officer fear for his own or others’ safety.

Question 38

Minor denied that he was involved in a recent carjacking and that he was in possession of any keys. The officer who conducted a lawful pat down search pulled out what felt like a set of keys in the minor’s pocket. Was the officer justified in removing the keys from the minor’s pocket?

Answer 38

The officer had probable cause at the time of the “plain feel” search to believe that the keys were evidence linking the minor to the carjacking based on the minor’s similarity to the description of one of the suspects, a police dog tracking a scent inside the stolen truck vehicle to the minor, and the minor’s denial of having any keys in his possession.

Question 39

An officer responding to a “panhandler” complaint noticed a large bulge in the suspect’s front waistband. For officer safety, he pat-searched the suspect, concluded that the object was a bottle, and withdrew it. Was the officer justified in removing the bottle from the suspect’s pocket?

Answer 39

The officer had the right to feel and retrieve the bottle (a full fifth of brandy) as it was a potentially dangerous weapon.

Question 40

During the course of a pat search for weapons, an officer felt in the suspect’s pocket a hard rectangular object that he thought might be a knife. Was it was legal for him either to reach into the pocket and remove the object or simply to widen the pocket and look inside.

Answer 40

It was legal. “The police are not required to grab blindly after a frisk reveals a possible weapon. A blind grab could risk injury either to the officer or the suspect.”

Question 41

When does detention occur?

Answer 41

Detention occurs until and unless the suspect actually is physically caught or stops on her own, i.e., submits to your authority.
A “detention requires some coercive governmental action, beyond the act of pursuit, sufficient to lead a reasonable person to believe he or she was not free to leave.”

Question 42

Suspect who pulled a gun on officers fled in a green Ford Focus. The Focus was found in a Fred Meyer parking lot 30 minutes later and placed under surveillance. That evening, Lopez, who partially matched the description of the suspect, pulled up in a Ford Taurus and dropped off a female to drive the Focus out of the lot. Lopez was stopped and taken into custody. He consented to a search of the Taurus, in which officers found narcotics, cash, and a loaded gun in a secret compartment. Was this a lawful detention and was the evidence suppressed?

Answer 42

Lopez’s seizure and its fruits–his consent to search–were valid. The evidence was not suppressed.

Question 43

Can a Deputy patdown a man who was sitting in a stopped car, engine running, in the middle of a one-lane rural dirt road, even though the man had no license or other identification, refused to let the deputy search his vehicle, appeared nervous and sweating, and the deputy had discovered a film canister containing baking soda.

Answer 43

The deputy can not, due to none of these factors would lead an officer to reasonably believe that a weapon might be used against him. “Specific and articulable” facts showing that the suspect may be armed and dangerous are necessary.

Question 44

While on routine patrol, two officers spotted a young man looking into two parked cars in an alley where there were many complaints of criminal activity, including vehicle tampering and theft. As the officers drove by slowly, the man tried to hide behind a dumpster. When they approached and spoke to him, he became very nervous, boisterous, angry and antagonistic–“borderline combative.” The man was nearly 6’ tall and 190 pounds. Is a patdown search lawful?

Answer 44

The patdown was lawful. The officers were not required “to await an actual assault before assuring themselves that the detainee was not armed with a lethal weapon.”

Question 45

Officers assigned to a gang detail in a “stronghold” area covered by a gang injunction were citing several gang members for tobacco possession and investigating a recent gang-related shooting when two of the officers saw 14-year-old H.M. sprint through heavy traffic towards them, in violation of Vehicle Code section 21954. The juvenile was sweating profusely and looking behind him as if trying to get away from something, and he appeared confused and nervous. One of the officers knew H.M. to be a gang member. H.M. was detained and pat -searched for officer safety. Was this a lawful patdown search?

Answer 45

The patdown was lawful based on the juvenile’s unusual and suspicious behavior. It was not merely a matter of a minor traffic infraction; a known member of a street gang was running through traffic in a manner that suggested he was fleeing criminal activity in a gang stronghold.

Question 46

During the execution of a narcotics search warrant, an officer patted down a man who was sitting on a couch in the living room, even though (1) the man was completely passive and not saying or doing anything threatening, (2) there was nothing beyond the inherent danger of the situation to specifically indicate that the man might be armed and dangerous, and (3) the search warrant did not authorized a search of his person.

Was it lawful to pat down the man on the couch for weapons?

Answer 46

It was lawful.

Question 47

Are PRCS offenders subject to the same mandatory search and seizure clause as parolees?

Answer 47

Every person placed on Post Release Community Supervision, and his or her residence and possessions, shall be subject to search or seizure at any time of the day or night, with or without a warrant, by an agent of the supervising county agency or by a peace officer. Therefore, just as with parolees, PRCS status, alone, informs officers that the person is searchable.

Question 48

Jones was a DUI suspect on PRCS and supervised by Solano County Probation. After he was arrested for the DUI, he refused to provide a breath sample and the arresting officers obtained a warrantless blood sample. Was this a lawful blood draw?

Answer 48

PRCS search condition authorized the blood draw without the necessity of a warrant and held that a warrantless blood draw is within the scope of a search condition of an offender on either PRCS , parole, or searchable probation.

Question 49

Is a probationer with a search condition subject to a warrantless blood draw following a valid DUI arrest, if the officers were aware of the probationer’s search condition prior to the warrantless search.

Answer 49

Yes. A probationer with a search condition is subject to a warrantless blood draw following a valid DUI arrest as long as the officers were aware of the probationer’s search condition prior to the warrantless search.

Question 50

When may the stored or archived data of the AVL system be accessed to determine past location(s) and other corollary information?

Answer 50

If an administrative complaint has been made in advance of the access and the access is reasonably necessary to investigate the complaint. The system data may be used as an aid in any existing criminal and/or administrative investigation.

Question 51

Who can access the AVL Playback software?

Answer 51

The AVL Playback software is accessed by the Chief of Police or his designee as a tool in the complaint process as one part of the fact-finding procedure.

Question 52

A Nebraska officer stopped a car for driving on the shoulder, completed a written warning, and returned the driver’s and passenger’s documents (licenses, registration, proof of insurance). At that point, the officer had the driver step out of the car while a narcotics detection dog walked around the car. Was the dog sniff and continued detention lawful?

Answer 52

HELD: The dog sniff was not lawful because the driver was detained after completion of the traffic stop.

Question 53

“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.” Identify which Amendment of the Constitution?

Answer 53

The Fourth Amendment

Question 54

The general rule is that an officer who detains (seizes) a suspect pending a showup should NOT:
- move him to a different location; or
- conduct a full-scale search of the suspect.
What are three exceptions to the general rule of “bring the witness to the suspect.”

Answer 54

1. Probable Cause to Arrest
   If you have probable cause to arrest the suspect, you may transport him to the witness(es) for identification. (Rafael (1982) 132 Cal.App.3d 977.)
   Note: If there is any doubt as to whether probable cause to arrest exists, do not move the suspect unless consent is obtained, or it is impracticable to bring the witness (see below).
2. Consent
   If you obtain the valid, voluntary consent of a detainee to move him to the witness for a showup, the movement is lawful. (Ortega (1982) 135 Cal.App.3d 244.)
   A conditional consent is still voluntary.
   Example: Suspect says he will agree to be transported if his companion can come too or if you will bring him back afterwards (assuming he is not identified). Such a consent is valid.
3. Impracticability
   If it is impossible or impractical to bring the witness to the suspect, the courts will often permit the movement of the suspect to the witness.
   a. The Witness or Victim Is Injured or Incapacitated
   b. Availability of Officers Is Limited
   If the detention occurs in an area where there are not enough officers to secure the scene, chase other suspects, transport the witnesses, etc., courts have permitted the immediate transportation of the suspect to the witness.

Question 55

True or False
Under the “automobile exception,” it is not necessary that the warrantless search of a vehicle take place on the roadside at the time of the stop. Instead, you can tow the car away and search it at a later time, “even after it has been impounded and is in police custody.” (Thomas (1982) 458 U.S. 259, 261; Henderson (9th Cir. 2001) 241 F.3d 638, 649.) If the “police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct either an immediate or a delayed search of the vehicle.”

Answer 55

True