“Takeaways from Training” will be a series of occasional articles detailing some tips I’m passing on from a law enforcement training class I recently attended. Going to a day or two of training does not make me or anyone else an expert on the topic. I can’t stress enough the importance of finding training classes and going through them yourself.
Last week I attended a one day Advanced Search and Seizure Class. Despite one day not being nearly enough, I did learn a decent amount. I wanted to share some of the things that I either learned from the class or things I already knew that came up in order to help newer officers or officers who want a little more information on the topic. As always, nothing in this post should taken as gospel and you should follow your state/local laws and department policies.
Case Law, Case Law, Case Law
Obviously, almost everything that came up in the class involved some sort of case law. I can not stress this enough for officers that just got out of the academy or are about to graduate: You will NEVER be good at search and seizure, or be a well rounded officer in general, without knowing and understanding current case law, and staying up to date on new cases. You can’t just rely on what you learned in the academy. You need to study it further, whether that be in training classes or on your own time. Google Scholar (or some other case law source) should be a bookmark on your phone or computer. Speaking of which, we did a brief breakdown on how to use Scholar, which you can find here.
When in Doubt, Just Get a Search Warrant
This is another one that seems obvious. However, as a class we had a discussion that lasted more than a half hour on a scenario surrounding the legality of a consent search. And in fact, the actual case the scenario was based on, Fernandez v. California (2014), was deemed a legal consent search by the US Supreme Court. That seemed to be a bizarre decision to me and you should read the case if you’re interested. But the main issue I had with this particular scenario and the discussion surrounding it is that the officers in this case had plenty of Probable Cause to get a search warrant. Whether or not they could get consent should be a moot point. If you have enough to get a warrant, just write it up. It isn’t that hard and it’s better to be safe than to end up losing your case or being on the bad side of case law.
If You Don’t Have PC, Consent is King
Have Your Badge just did a brief post about consent searches to go along with is latest podcast (find it here) and I’ll expand on it here. If you don’t have Probable Cause, consent is a very valuable tool that is often underutilized by many officers. It can get tricky to obtain a lawful consent search. There are a few things to remember that will be true in most states according to case law. For example, in most cases, the person must feel they are free to leave, though you don’t have to specifically tell them that they are. If it’s a traffic stop, unless there is some additional reasonable suspicion, you either have to conclude your stop and separate yourself from the subject before attempting to obtain consent or have a partner attempt to obtain it while you handle the business of the stop to avoid prolonging the it. Rodriguez v. U.S. (2015) is an important case to understand when dealing with what you can and can’t do on a traffic stop, absent some sort of reasonable suspicion.
Outside of a traffic stop, it is much easier to try and obtain consent. Some things to remember are that, again without some sort of reasonable suspicion, the subject can refuse consent and can leave the conversation at any point. Also remember to hand back any identification or documents they give you prior to trying to obtain consent, as a reasonable person might not believe they are free to go if you still have their ID.
Though most of the time the subject must feel he is free to go, an arrested person can also give consent under certain circumstances. (US v. Watson)
It may sound complicated, but when done correctly, consent searches are a valuable tool. You’ll be amazed what you can find on a person or in a car that they gave you permission to search.
Get Comfortable with Being Uncomfortable
Search and Seizure involves working in gray areas a lot of the time. It’s about understanding what you can and can’t do, knowing the case law, and being able to articulate it while you are doing it, in your report, and in court down the road. Doing consent searches, asking the right questions to get people to admit to illegal activity, and making pretext stops are all uncomfortable when you aren’t used to it, but they are all legal. You need to get comfortable with doing all of these things if you want to be effective at proactively finding people involved in criminal activity.
4th Amendment Waivers
One thing I didn’t know existed because we don’t use them where I work is a 4th Amendment Waiver. This is something agreed to, generally during a plea deal, in which a person waives their 4th Amendment Rights for a specified amount of time. This means that if you come across them during that time, you can search them without consent or PC. It seems like it would be a pretty good tool, and I recommend talking with your local prosecutors to see if they can start implementing them in your plea deals.
If you are interested in learning more about search and seizure, the following are some good cases to read to get a good understanding of it.
Whren V. U.S.– Traffic stops, specifically pretextual ones
Terry v. Ohio– Reasonable suspicion and frisks
US v. Humphries– Plain Smell
Minnesota v. Dickerson– Plain Feel
Oliver v. U.S., U.S. v. Dunn, and Horton v. U.S.– Open Fields
California v. Greenwood, U.S. v. Scott– Abandoned Property
U.S. v. Robinson (2017) – Weapon frisks on traffic stops
Chimel v. California– Search for weapons, evidence in the “wingspan” of arrested person
Michigan v. Long– “Vehicle Frisk”
There are a few hundred more, but those are a good start.
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