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12/11/2018 1:58:31 AM
Posted: 11/24/2018 7:34:39 PM EST
What's the best way to study arrest search and seizure and apply it to the real world? I am police and every time I go through my notes I feel like it's just things to memorize. Any help would be appreciated.
Link Posted: 11/24/2018 8:51:56 PM EST
Depends on your A/O and dept rules:
SILA
Search Incidental to Lawful Arrest
Lawful arrest good for a total search of person.
Strip search depends on your dept policy.
not allowed unless you are able to explain to a supervisor why it is necessary (Very specific to my A/O)
Contraband and illegal items if in plain view or with in lungable distance can also be seized.
Link Posted: 11/24/2018 9:03:04 PM EST
[Last Edit: 11/24/2018 9:03:45 PM EST by Global_Cooling]
Link Posted: 11/25/2018 8:42:41 AM EST
Get friendly with your local prosecutor or ADA. Most are willing to steer you in the right direction. They know you only get a limited amount of legal training in the academy and it makes their job easier.
Link Posted: 11/25/2018 12:30:06 PM EST
Thanks for the help guys
Link Posted: 11/25/2018 1:08:39 PM EST
What specific issues are you having with applying it in the real world?

That's kind of a broad topic, if you could narrow it down it would be easier to point you in the right direction.
Link Posted: 11/25/2018 5:29:36 PM EST
I found this in a quick google search. I keep a current pdf copy saved to my work desktop for reference as needed. What exactly about search and seizure do you need to review? This stuff is pounded into your head at the academy, during FTEP and likely reviewed in annual training. I’d recommend contacting your chain of command or senior officers who can answer your questions as agencies have different policies. Your states’ DPS and DA’s office may have resources as well.
Link Posted: 11/25/2018 8:21:54 PM EST
How long have you been working for?

See what the most common arrests you guys deal with and read your statute for the elements that fit that crime. After some time with common and basic arrests it gets pretty simple to convert what the law says to handcuffs.

Sometimes I don't know the answer and have to ask a senior guy and I've been doing this for about 5 years now.

Not sure how it is by you, but if something is weird and your are unsure about an arrest. Take everything you have back with you, review it over with a senior guy or call a states attorney for clarification. You could always get a warrant later or try to pick them up at a later time.
Link Posted: 11/25/2018 8:32:52 PM EST
Discussion ForumsJump to Quoted PostQuote History
Originally Posted By ThatGuy91K:
What specific issues are you having with applying it in the real world?

That's kind of a broad topic, if you could narrow it down it would be easier to point you in the right direction.
View Quote
This us my thought too.

Kinda like asking "how do I do my job?"

J-
Link Posted: 11/27/2018 11:05:51 AM EST
Buddy up with some narcotics guys.
Link Posted: 11/27/2018 12:53:47 PM EST
[Last Edit: 11/27/2018 12:54:41 PM EST by NYresq1]
The key is to be able to articulate what you do so a reasonable person can understand it. If you arrest someone who is know to hide crack rocks in their butt checks, then a strip search is reasonable. If you arrest someone for shooting a gun at their neighbor, then a strip search in most cases would be considered unreasonable.

Now if you are talking about searching cars or the area where you arrest the person, books have been written about those specific circumstances, and they will go more in depth into things like plain view exceptions, inventory for safe guarding, and even protective sweeps. Cars in themselves could be a full day class and then some.

Search and seizure is one of the hardest legal areas we deal with in LE. Its complicated and constantly changing due to case law and different jurisdictions. There is no coverall answer as to if you can, or can't, and when. It all depends on the location, time, the perp, the officers experience, the events occurring before, during and after the arrest, etc etc.

Or as they like to preach in the academy "The totality of the circumstances" will dictate your actions.

As an answer to your original question, get friendly with your local ADA's or AUSA's and ask them specifics. They are the ones who are going to justify and defend your actions when a defense tries to get evidence tossed out in court.
Link Posted: 11/27/2018 9:51:02 PM EST
Discussion ForumsJump to Quoted PostQuote History
Originally Posted By Firecop203:
Get friendly with your local prosecutor or ADA. Most are willing to steer you in the right direction. They know you only get a limited amount of legal training in the academy and it makes their job easier.
View Quote
not exactly sure what you mean, so no disrespect, but no FUCKING way would I ever dream of asking an ADA for advice in my locality...they'd prefer to lock me up than prosecute my arrest

HOWEVER, if I had a prior good working relationship with an ADA, general shop talk would be acceptable and is done, but on an active case I would in no way whatsoever look for help in articulation...

as someone else said, it's a fairly broad question, but in my opinion, you'd be better off asking one of your more senior competent co-workers...they'll have a better feel for what you're looking for and what is acceptable in your jurisdiction and department, than we would...when I travel for work, it amazes me what's considered acceptable in other parts of the country, and I mean amazes me in the best sense of the word and makes me jealous I can't work there
Link Posted: 11/27/2018 11:16:31 PM EST
There are three tiers of police/citizen encounters
There are 4 ways you can enter a home legally
You need to know and understand the difference between Reasonable Articulable Suspicion and Probable Cause.

The 2-3-4 Rule
Below is the 2-3-4 rule. The "2" is for the two types of legal authority possessed by a peace officer. In order to detain a citizen either of the authorities must be in play. The "3" is for the three tiers of police-citizen encounters as outlined by the courts, and the "4" list the four ways in which a peace officer may legally enter a dwelling.

Two Types of Legal Authority (LA)

Reasonable Articulable Suspicion (RAS)
A set of facts and circumstances that would lead a reasonable and prudent peace officer based on his or her knowledge, training, and experience that criminal activity is afoot.
Case Reference: Ornelas v. US, 517 US 691, 95-5259 (1996)
Probable Cause (PC)
A set of facts and circumstances that would lead a reasonable and prudent person when using all of their senses to believe that a crime has been or is about to be committed by the suspected person.
IMPORTANT NOTE per Wagner v. State, 206 Ga.App. 180, 424 S.E.2d 861 (1992): The mere fact that someone calls the police does not constitute probable cause.
Three Types of Police-Citizen Encounters

Verbal/Consensual Encounter: Tier 1
No legal authority is needed to approach a citizen. The encounter must be voluntary on the part of the citizen, and the officer must display no show of authority other than to identify him or herself as a peace officer. An officer may ask for consent to search during a verbal encounter.
Case References: Florida v. Bostic 501 US 429; US v. Baker, 01-16585 (2002)
Investigatory Detention/Brief Stop: Tier 2
An officer must have RAS to make an investigative stop. The suspect can only be held for a reasonable amount of time. Barring any other RAS or PC developed during the stop, the officer must release the suspect once the officer's initial suspicion has been satisfied and all identification checks have been made.
An officer may handcuff a suspect during a brief stop only when necessary for the officer's, the public's, or the suspect's safety. The suspect must be advised that they are not under arrest. An officer may frisk for weapons if the officer has RAS that the suspect is armed
and presents a threat.
Case References: Terry v Ohio 392 US 1 (1968); United Sates v. Arvizu
534 U.S. 266 (2002)

Arrest: Tier 3
An officer must have PC to make an arrest. The officer should conduct a search incident to arrest. The officer must take the suspect before a judge and must read the suspect his/her Miranda warning if the suspect is questioned after being taken into custody.
Four Legal Ways to Enter a Dwelling

Consent
Consent can only be obtained from the owner of the property to be searched, someone with valid authority of the property, or someone with valid control over the property (in that order). Consent can be given verbally or written. The burden of proving consent is on the peace officer, and consent can be withdrawn at any time (must maintain contact) or may be qualified consent.
Warrant/Court Order
An officer can enter a suspect's home to arrest the suspect if the officer has a warrant for the arrest of the suspect and the officer reasonably believes the suspect to be in the dwelling.
Case Reference: Payton v. New York
445 U.S. 573 (1980)
Exigent Circumstances
An officer may enter a dwelling without a warrant when exigent circumstances exist. Examples include situations where an officer has to enter in order to prevent death or injury to those inside of the dwelling, to prevent the destruction of evidence, or to prevent the immediate escape of a suspect.
Hot Pursuit
The officer must be pursuing the suspect for an arrestable offense. The suspect must know that he or she is being pursued, and the suspect must be in actual flight.
Link Posted: 11/28/2018 12:00:02 AM EST
[Last Edit: 11/28/2018 5:01:09 PM EST by texasblueline]
I see you're in Texas too, so the most common resource I point officers to who're interested in learning more are the books printed up by the Texas District & County Attorney's Association (TDCAA). For example, specifically for warrantless searches & seizures there's this one:

https://www.tdcaa.com/publications/warrantless-search-seizure-2017-edition

Check out all their books (https://www.tdcaa.com/publications/), they've got several good books on various legal areas, such as one just specifically on traffic stops and all the various PC and case law regarding them. The books are written to be used by the prosecutors but are still plenty handy for patrol cops. If you look on the desk of most prosecutors you'll usually see a handful of these that they refer to, so it just helps get us on the same page as the prosecutors. They re-print the books every few years to reflect new case law and changes to the law. It can suck to spend your personal money if your PD won't pony up to buy them, but these are really good resources to have in your gear bag.

Another one is what Cdm1985 found and referred to....the Texas Police Association has a guide it puts out on arrest, search, & seizure that's handy to refer to. It used to only be in print and only mailed to members (and the TPA isn't a very popular association, most cops in Texas are members of either FOP/TMPA or CLEAT), but now it's available to read online even if you're not a member:

http://www.texaspoliceassociation.com/peaceofficersguide.php

I tend to like the TDCAA books better, just because I know that it's easier to bring a prosecutor on board with your PC or RS if you can refer them to materials they're familiar with, but the TPA guide is also very handy.

In the end it's still a bunch of reading and understanding, but having those resources to flip to when a question pops into your mind just helps reinforce it.
Link Posted: 11/29/2018 9:33:18 AM EST
Discussion ForumsJump to Quoted PostQuote History
Originally Posted By brown424:
Consent
Consent can only be obtained from the owner of the property to be searched, someone with valid authority of the property, or someone with valid control over the property (in that order). Consent can be given verbally or written. The burden of proving consent is on the peace officer, and consent can be withdrawn at any time (must maintain contact) or may be qualified consent.
View Quote
Unless you are dealing with a rental or leased space/property. SCOTUS has ruled on several cases that a person has a reasonable expectation of privacy in a rented or leased space. Having the building super open an apartment while the tenant is out, is an easy way to get any evidence you find quickly thrown out.

The owner of a property that leases or rents said property or space to another party no longer has the legal authority to grant permission to enter that space.
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