The Search & Seizure Show

Have a search and seizure question in mind? Submit them for instructors to answer or join the next Search & Seizure show and get your questions answered LIVE ON AIR. 🚨 https://www.bluetogold.com/show https://bluetogold.com/trainings/?attendance=webinar

Search & Seizure Show | Volume VIII | July 09, 2024 Have a search and seizure question in mind? Submit them for instructors to answer or join the next Search & Seizure show and get your questions answered LIVE ON AIR. 🚨 https://www.bluetogold.com/show https://bluetogold.com/trainings/?attendance=webinar

The following is a computer-generated transcription, some grammar and spelling errors may be inherent Hey guys, it's Anthony here, bringing in a roadside chat from the road. Actually, I'm in Joplin, Missouri this weekend. It's actually really nice to be out here. And it's a beautiful place. So this question comes from an officer in Alabama. And he says, Can a subject be interviewed after invoking Miranda, on a separate case, by a different agency. And so the kind of the backstory is a suspect was arrested by a neighboring department. They went into interview him, but he said he wants to have an attorney. Now, this officer wants to read, you know, give him Miranda again, and interview him on a different case.And here's the answer, the answer is that according to the US Supreme Court, this guy is off limits for any interview, regarding anti any crime for 14 days, post Miranda custody, alright. So this rule makes a little bit difficult for cops to get to interview people after they invoke the right to counsel. So there's a couple things going on. Number one is this 14 day rule, the 14 day rule comes from a US supreme court called Chester, where they made a bright line rule normally Supreme Court that doesn't make bright line rules, but here they did. So it's a bright line rule that if the guy invokes the right to counsel, he's off limits for 14 days, post Miranda custody, what does that mean? Post Miranda custody? Well, being in Miranda custody is a totality of circumstances tests that ask whether or not a reasonable person would believe custodial, like arrest exists. And the cops are asking questions, which are likely to elicit an incriminating response. So that's kind of like your arrests, you know, during the booking process, and so forth. But when does a person leave Miranda like custody? Well, if they're released from jail, certainly, that is easy. If they're put into general population, we don't have a lot of court cases on this. But if they're put into general population with other inmates, and they're going to be held for a while, this is not like a holding cell. But this is like their new home until they get bail money, or maybe they're just waiting trial, there's the best argument is that they are not in arrest, like custody at that point, because jail is now their home, we certainly know that. That prison is the person's home, and a person is not in Miranda custody, while they're serving a sentence in prison, it's less clear in jail, but I think the best advice I have for you is that, you know, let the person you know, if he's in general population, you know, let him have his 14 days, and then re mirandize him and see if he will talk now you don't need to talk to an attorney if you're talking about a different crime. But if you're talking about the same crime or any criminal act, you know, any crimes that can be related to that one he's been held on, he's off limits, period, basically, until he talks unless you have his attorney present, and the PERT and the attorney signs off on it. This rule sometimes has consequences that are not really logical like so for example, the cop here wants to talk to a guy about a different crime different agency. But yet, he's off limits for 14 days. ,,When it comes to law enforcement training, we are the gold standard, visit blue to gold.com or call 888-579-7796 to learn more about our training books and free webinars Also don't forget to like, subscribe and share this channel

The following is a computer-generated transcription, some grammar and spelling errors may be inherent Alright, hey guys, it's Anthony Bandiero Here, attorney, Senior Legal instructor for Blue to Gold law enforcement training, bring it to the roadside chat from Joplin, Missouri. Got a question from an officer in Florida. He basically wants me to clarify protective sweeps and murder scenes. Okay, so the officer says, you know, he was watching one of my videos regarding protective sweeps, I mentioned the case called Mincy versus Arizona. And I'll explain in a second, where I talked about there's, you know, the Supreme Court ruled that there is no murder scene exception to the search warrant requirement. Okay. And then, you know, so he's talking about look, you know, however, if response reporting shooting in a driveway of a residence, wouldn't we have exigent circumstances, to conduct a warrantless sweep of the residence for possibly other injured parties to see if the perpetrator is still on scene, you know, and so forth. Right. Also, the officer says, you know, we also, you know, follow the trajectory of the bullet to see if other people been injured, you know, across the street, maybe in the back, you know, the other houses on the other street and so forth. And, and to make sure that nobody was hit similar to a public safety statement, you know, hey, where did you shoot? How many rounds? Did you fire? That type of thing? I'm looking at my computer, by the way. So any clarification would help? Look, let's let's do this. This is, uh, this is great. This is a great question. It's a great follow up question. Let's make sure that if there's some confusion about what I'm saying, you're like, man, you know, that doesn't really sound right. You know, please, I want you to reach out to me, because in my brain, it all makes sense. But when I make these quick videos on the road, I could say something that may not be. I mean, it makes sense. So let's first talk about Mincy versus Arizona. Look, the general rule there is that once police secure the scene, and they're looking for other victims, and they don't find anybody looking for that perpetrator, that you can't, you can't just stay in people's homes, process a crime scene, you know, and then use that evidence against somebody who has a privacy interest in the home. And in the Mincy case, the cops are actually in the house for four days, four days processing that crime scene, and no warrant and no consent. So that's the problem. All right. And they, you know, they recover, like almost 300 pieces of evidence, and so all that was suppressed. And that's not the way we do it. So instead, when we have a crime scene, we go to a murder scene, right, like a shooting and so forth. What we're gonna do is we're gonna arrive on scene, and we're going to, you know, potentially enter the home if you believe that more victims, or the perpetrator can be in the home. So what the officer is saying is absolutely correct, right. You know, that's what they're doing. And that is absolutely permissible. Mincy does not prevent that, because menses only about processing crime scenes. It's not about protective sweeps, that would fall under other court cases. Marilyn versus buoy US Supreme Court. I also think a case called Ryberg. Versus Huff would also kind of cover the public safety aspect. It's it's not directly on point, but it does talk about how when officers, you know, reasonably believe that they're about to be attacked, you know, they can enter homes and so forth. And I think that would apply for potential perpetrators. But look, the vast majority of courts, if not all, courts, are going to let cops go in there and look for perpetrators and more victims...

The following is a computer-generated transcription, some grammar and spelling errors may be inherent Hey guys, Anthony Bandiero Here attorney, Senior Legal instructor bringing a roadside chat from an officer in Texas. Now, this officer says, you know, ask basically can we automatically pat down suspected gang members? Right? And to give you a little context here, the officer is talking about, you know, attending some outlaw motorcycle gang training, and, you know, get a lot of bad deals in the area. And then instructors basically saying, hey, look, if you are dealing with a one percenter, right? Michigan versus long, which is a US Supreme Court case, about first can vehicles allows you to essentially, you know, conducted frisk of that motorcycle for for weapons. The officer will first ask, though, this is what they teach, they'll ask for consent to search the motorcycle, if they say no, then they get them off the bike. And they search it anyway. Because of their because they're, it's known that gang members can easily access the saddlebag these game members can access to settle back and potentially grab a weapon. Now, the question is, is does Michigan versus long really hold that that suspect a gang members, you know, essentially can be automatically patted down just with that fact alone. And certainly, Michigan versus long doesn't it's not that fact pattern that's that case involved a drunk driver who crashed into a ditch and the officer saw him trying to go back to the car, it was a knife in the in the mat pocket in the door, if the door is open, you got you know, long back and another partner looked for sees the knife and look for more weapons in the immediate area, and found narcotics in the center console and the Supreme Court upheld it because the logic was, hey, look, he was trying to go back to the vehicle. It's, you know, it's a fluid situation, he's intoxicated, there was only one weapon in there, that could potentially be another weapon in there. And that frisk of the vehicles upheld, but it certainly didn't talk about anything about gang members. Now. All I can tell you is what I teach, right? I don't teach automatics like, you know, automatic searches, you know, for my cops. There's really no automatics out there. There's no free lunch when it comes to the Fourth Amendment, you're going to have to work for it a little bit, you're gonna have to go to court and explain that simply having a 1% patch. You know, that's one factor. It's a very important factor and, and but what else do you got there? I mean, you know, we're gonna have to have something more. And usually there's going to be so that's the good news. Here are some cases that kind of, you know, illustrate what I'm talking about, right. Here's a case out of Kansas, a case called State vs. Goldston. 2009. Now it says here at the time that the officer conducted the pat-down, he knew the following facts about the suspect. He was in a database as a documented gang member. He was with a known gang member who was on supervised release from prison and had been involved in prior stop involving drugs within the last two weeks. He had just come from a city known for drug activity, and were several arrests and or area of town. Actually, I think, I'm sorry, it's not a city. It was a gas station. He just came from a gas station where several rest of them made recently for drug activities and so forth. The officer also articulated he knew that drug dealers that involved in gangs often had weapons to protect the drugs and the money. Right. They're self help, right? They're like their own little police department. And considering all these facts, the court upheld, but do you see what's going on there? It's not just saying Your Honor. The person is a one percenter therefore, I conducted a vehicle suite, you know, or pat down. We need something more than that in mind book, but you're gonna have it usually...

The following is a computer-generated transcription, some grammar and spelling errors may be inherentHey guys, it's Anthony Bandiero Here attorney and senior legal instructor for blue to gold law enforcement training. Bring another roadside chat. This one comes from an officer in California. One of my favorite agencies actually, he's a chippy. And I love it I love Calvin hire patrols is a very fine organization in my book. But on topic here, the officer says basically, can an officer reach in slightly into a person's home to pull them out and arrest them? If they have probable cause, but no arrest warrant, right? So let's go over the fact pattern here. So an officer has probable cause, and the person opens up the door, they're talking to the officer, and the suspect is just you know, just an inch inside his house. Right? He's right next to the threshold, essentially, would it be a constitutional violation to reach in there and actually pull this guy out? With just the probable cause alone? No consent, no agency, no arrest warrant? Well, to answer that question, let's go over a few cases. Number one is, we do know that the threshold of a house is the bright line rule of where a person can be arrested. Under Supreme Court precedents, this case is called us versus Santana. And Santana was standing in our doorway when she was placed under arrest. And she ran to her house, the cops filed, they arrested her, you know, evidence was found, during the arrest in the Supreme Court basically held that that is the point of the demarcation line. So one foot forward, Santana's on our porch, one foot back, she's inside the house. So if you're in the doorframe, which is called the threshold, then the person can be arrested under the Fourth Amendment. Now, we don't have any cases from the US Supreme Court about pulling people out of their home. But we do have some cases about related issues involving the home. And I think it's very clear to me at least that the US Supreme Court would not uphold any intrusion into the home to pull somebody out to arrest them unless you had an arrest warrant exigency, or you know, their consent, right? Hey, come on out, you know, when you come out, right. So to support this position, let me read you a case from the 11th circuit. I actually, I'm just trying to actually find an I apologize, but I just realized that I have the citation, but not the name of the case, I'll give you a citation. It is a four a three, f dot 3d 1231. It's the 11th circuit 2007. So basically, what the court has said here is that there was an officer standing on the porch. And he reached into the suspects residence and pulled him out of the door and arrested him. Now, the suspects say that he was behind the threshold of the door completely in his residence. And the court found that going into his home and pulling them out violate the Fourth Amendment, because he didn't have a warrant, consent or Asian circumstances. And they also cite a US Supreme Court case called Kylo. Kylo is a case involving heat imaging using a heat thermal imaging on a home, and they found that that violated the Fourth Amendment. And they found in that court, they said that the bottom line is that unless a warrant is obtained or agency and so forth, any physical invasion of the structures of the home by even a fraction of an inch is too much. And that's what I teach my classes. So some cops have Anthony. What if his hand is on the threshold? Can I grab his hand and pull him out? And I say, I don't know because I've never seen a case like that. However, I will tell you that I would never do it. It's just not in the spirit of Santana. Right? I mean, I say never do it. If I if it was a really serious case, I probably would have exigency, but it's not in the spirit of Santana, to me spent 10 Santana was like the person was, you know, kind of in their doorway, kind of like leaning on the doorframe...

The following is a computer-generated transcription, some grammar and spelling errors may be inherentHey guys, Anthony Bandiero Here attorney, Senior Legal instructor for blue to gold law enforcement training.Now the roadside chat from an officer question comes from an officer in Florida. And basically I think comes down says, Can you clarify protective sweeps at murder scenes? All right. Here's what my officer says. I watched a, you know your video regarding protective sweeps where you referenced a case called Mincy versus Arizona a 1978. Case. I'll give you a little background in a second, where there is no murder scene exception, you know, under the Fourth Amendment, so if respond to report, it's shooting in a driveway of a residence, wouldn't we have exigent circumstances to conduct a warrantless sweep of the residence for possibly other injured parties or to see if the perpetrator was still on scene? In similar fashion, we typically follow the path of the bullet trajectory to ensure no one else was hit, similar to a public safety statement type of issue, right? How many shots did you fire, what direction and so forth? Alright. So in order to understand where my officers coming from, we got to understand what I said before. So under that Minsi case, your police are not allowed to search a to basically process a crime scene in Mincy. Very unfortunately, an officer got killed during an undercover operation. The officers then you know, came in, you know, they rested man. So he actually got shot as well, but he survived. The officers then spent four days processing the crime scene. without consent, right. mincey was not asked, nor did he give his consent, and the officers did not get a warrant. Now, the Supreme Court suppressed a lot of the evidence that was obtained during that search of his of menses residence. Why? Because the Supreme Court said, Look, we understand that this is a serious crime, it's a murder of a police officer. However, there is no murder scene exception, you don't you don't get around the Fourth Amendment warm requirements simply because you have a murder or a very serious crime. Okay. Now, with that in mind, that does not apply to what the officer is talking about here, these protector sweeps, there's totally different Minsi is about one thing, it's about processing crime scenes, it's about the luminol. It's about the strings in this the sticks through the holes to see trajectories, it's about blood splatter, you know, analysis and see, basically, it's about CSI coming in on the scene, and getting trace evidence and stuff. It has nothing to do with two things. Number one, as partner here, number one is any kind of plain view evidence. See if the officers sweep up, you know, let's do a protective sweep of the murder scene to make sure there are no victims, and then they see a gun in plain view, they can absolutely if they want seize that gun under plain view that that guns coming in, they can seize a knife with blood on it. Now many cops are just gonna leave it there. And let's see OSI do that, or the tech does and so forth. And that's fine, too. But the point is, it has nothing to do with these plain view seizures as long as the cops were lawfully present, which brings me to my next point, the protective sweeps Mincy does not prohibit protect sweeps when you reasonably believe more victims or the perpetrator could be inside the house. Therefore, if officers arrive at a crime scene where there is a shooting, and they reasonably believe, and I think most of the time, they are going to believe this that the location of the shooting and where the that the suspect could have retreated into the home. And he could still be in there. But you know, cops can go in there and sweep it and to take him into custody or you know, to detain him and so forth...