The Fourth Amendment and Search & Seizure An Update Table of Contents A Publication of The California Legal Update Fourteenth Edition January, 2014 Robert C. Phillips Deputy District Attorney (Ret.) San Diego District Attorney’s Office 858-395-0302 (C) [email protected] i © 2014 Robert C. Phillips. All rights reserved. © 2014 by Robert C. Phillips All rights reserved. No part of this Outline may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or through any information storage or retrieval system, when done for commercial purposes or for any form of a monetary return or profit, except as expressly permitted by federal copyright law and as indicated below. This Outline has been prepared and published for the purpose of aiding law enforcement officers, police and private investigators, law enforcement administrators, prosecutors, the judiciary, other attorneys including but not limited to those engaged in the practice of criminal law, students, and legal educators and scholars, in accessing, using and understanding the field of Fourth Amendment Search and Seizure Law. As such, permission is expressly granted by the author to the above listed persons, or any other person, to use, reproduce, cite, and/or employ in the field of law enforcement, education or instruction any or all of this Outline, provided the source is properly and correctly identified, and except when done for commercial purposes or profit as described above. The information provided in this Outline is a summary of various aspects of Fourth Amendment Search and Seizure Law, and in many respects represents no more than the author’s opinions, interpretation and conclusions concerning the various topics discussed. Readers are advised not to rely upon the information provided in this publication without first researching and verifying the legal rules and issues intended to be used. This Outline is not intended to be a substitute for the reader’s own professional judgment and legal research. The author accepts no legal responsibility or liability for a user’s failure to properly research and verify the continued validity or correctness of any of the cases, rules, conclusions, or opinions contained in this Outline. Comments concerning errors, misinterpretations, and/or other suggestions for correcting, expanding, or improving the information provided in this Outline are respectfully solicited, and should be directed to the author. Robert C. Phillips Deputy District Attorney (Retired) San Diego District Attorney’s Office [email protected] 858-395-0302 How To Use This Manual: To locate the law on any particular subject of interest to you, it is suggested that you first note the general description of the subject under “Chapter Summary,” on page iii, below. This will guide you to the correct page of the Table of Contents under “Topics,” beginning on page iv. There you will find a more detailed description of the various legal issues. This in turn will note for you the specific page in the expanded Outline where you will find all the relevant cases on that topic. ii © 2014 Robert C. Phillips. All rights reserved. Table of Contents Page Chapter Summary: Chapter 1: The Fourth Amendment, United States Constitution 1 Chapter 2: Consensual Encounters 17 Chapter 3: Detentions 29 Chapter 4: Arrests 115 Chapter 5: Searches and Seizures 253 Chapter 6: Searches with a Search Warrant 296 Chapter 7: Warrantless Searches 465 Chapter 8: Searches of Persons 490 Chapter 9: Searches of Vehicles 573 Chapter 10: Searches of Residences and Other Buildings 616 Chapter 11: New Law Enforcement Technology 670 Chapter 12: Open Fields 687 Chapter 13: Searches of Containers 689 Chapter 14: Border Searches 712 Chapter 15: Fourth Waiver Searches 726 Chapter 16: Consent Searches 757 iii © 2014 Robert C. Phillips. All rights reserved. Page Topics: Chapter 1: The Fourth Amendment, United States Constitution: 1 The Fourth Amendment: 1 California Constitution, Art I, § 13 1 Scope: 2 “Due Process” and the Fourteenth Amendment 2 “Persons, Houses, Papers and Effects “ 2 The Exclusionary Rule; Overview: 2 History 2 The Primary Purpose of the Exclusionary Rule 2 The Rule of Reasonableness 3 Private Persons and the Exclusionary Rule 4 Limited Use of the Exclusionary Rule 4 Rule of Exclusion: 6 Benjamin Cardozo 6 Verbal Evidence 7 Illegal Detention 7 Fruit of the Poisonous Tree 7 Federal Rules of Evidence, Rule 402 8 Exceptions: 8 California’s Exclusionary Rule 8 Defendant and His Identity 8 iv © 2014 Robert C. Phillips. All rights reserved. Searches by Foreign Entities 9 Impeachment Evidence 9 New Crimes Committed in Response to an Illegal Detention or Arrest 10 Searches Based Upon Existing Precedent 10 The “Minimal Intrusion Doctrine” 11 Expectation of Privacy 12 Juvenile Cases 13 On Appeal 13 Case Authority: 13 The Courts’ Order of Priority 13 Decisions from the United States Supreme Court: 13 Decisions from lower Federal Courts: 14 State Court Interpretation taking Precedence 14 Decisions From Other States 15 Opinions of the California Attorney General 15 Writ of Habeas Corpus 15 The Outline: 16 Police-Citizen Contacts 16 Other Topics 16 Chapter 2: Consensual Encounters: 17 General Rule 17 Test 17 Limitations 18 v © 2014 Robert C. Phillips. All rights reserved. No Detention: 18 Obtaining personal identification information, running a warrant check 19 Asking for identification 19 Mere police questioning 20 Walking along with, or driving next to a person 20 Asking to step out of the vehicle 20 Asking a person to remove his hands from his pockets 20 Flashlighting or spotlighting a person 21 Inquiring into the contents of a subject’s pockets 21 A consensual transportation 21 Inquiring into possible illegal activity 21 Displaying a badge, or being armed 21 Contacts on buses 21 During a knock and talk 21 Consensual Encounters vs. Detentions 22 Specific Issues: 23 Contacts on Buses 23 Flight 24 Photographing Subjects 26 Knock and Talks 27 Chapter 3: Detentions: 29 General Rule 29 vi © 2014 Robert C. Phillips. All rights reserved. Test 30 Race 32 Detentions vs. Arrests: 32 General Rule 32 Indicators of an Arrest: 32 The Use of Firearms 32 The Use of Handcuffs 33 A Locked Patrol Car 33 Show of Force 33 Physical Touching 33 Transporting a Detainee 34 Exceptions: 34 In General 34 Examples: 35 Firearms 35 Handcuffing 35 Putting into a patrol car 35 Case Law 36 Non-Consensual Transportation Exceptions 38 Reasonable Suspicion: 40 Defined 40 Detention of a Victim or Witness 41 Articulable Objective Suspicion 43 vii © 2014 Robert C. Phillips. All rights reserved. A Hunch 43 The Totality of the Circumstances 44 The Officer’s Subjective Conclusions 45 A Seizure 45 Probable Cause vs. Reasonable Suspicion 45 Various Factors: 45 In General 45 A “High Crime” or “High Narcotics” Area 46 Types of Detentions: 47 Traffic Stops: 47 Detention vs. Arrest 47 No Law Enforcement Involvement 48 Moving Violations 48 Avoiding a DUI Checkpoint 50 Vehicle Code Registration Violations 50 Vehicle Code Equipment Violations 53 Weaving Within the Lane: 55 State Rule 55 Federal rule 55 Vehicle Stops Involving Agricultural Irrigation Supplies, per V.C. § 2810.2 56 Community Caretaking Function 57 Parking Tickets 58 Gang-Related Investigations 58 viii © 2014 Robert C. Phillips. All rights reserved. Narcotics-Related Traffic Stops Using a Controlled Tire Deflation Device (CTDD) 58 Checking the Vehicle for a Wanted Suspect 58 Mistake of Law vs. Mistake of Fact 59 Pretext Stops 61 Motor Vehicle Passengers: 64 To Arrest a Passenger 64 To Detain a Passenger 65 Ordering Out 67 Ordering In 68 Demanding Identification 70 Flight 70 Search Incident to Citation 71 To Identify a Suspect in a Criminal Offense 72 Detention of a Person to Determine Citizenship 73 Detention of a Resident (or Non-Resident) During the Execution of a Search Warrant 73 Prolonged Detentions 74 Enlarging the Scope of the Original Detention 77 Taking Fingerprints 79 Driving Under the Influence Cases: 79 Weaving 79 DUI (and Other Regulatory “Special Needs”) Checkpoints 80 ix © 2014 Robert C. Phillips. All rights reserved. Other Regulatory Checkpoints 82 Vehicle Inspection Checkpoints, per V.C. § 2814.1(a) 84 Duel Purpose Checkpoints 84 Multiple Agency Checkpoints 84 Drug Interdiction Checkpoints 84 Checkpoints on Indian Land by Indian Authorities 85 A Field Interview 86 During Execution of a Search or Arrest Warrant, or Fourth Waiver Search 87 Pending the Obtaining of a Search Warrant 89 Detentions Away from the Place being Searched 90 Anonymous Information: 90 Rule: 90 Patdown for Weapons 90 Contraband in a Vehicle 91 Specific Physical Description 91 Further Examples 92 Looking for Exceptions 92 Corroboration: 95 Rule 95 To Establish Probable Cause 96 Examples 97 In Prison or Jail 98 x © 2014 Robert C. Phillips. All rights reserved.