Today I’m going to share with you the three golden rules of search and seizure.
These three golden rules come from reading thousands of court cases over the last 20 years. After a while you start seeing a theme of what the courts are looking for.
Rule one: the more you articulate why you did something, the more likely you’ll be upheld
This is the most important one.
The reason is that the Fourth Amendment prohibits unreasonable searches and seizures. In other words, if what you did was reasonable, it’s lawful.
But what is reasonable depends on the totality of the circumstances. That means every fact and circumstance comes into play. One change in the facts, one change in the circumstances, can determine whether something was reasonable or unreasonable.
So you need to tell the court why you did something.
And this is an objective standard. You can’t go into court and say your honor, I was reasonable, because I sincerely believed that what I was doing was reasonable. The courts will thank you for that feedback, but they require an objective standard.
It’s kind of like taking all the facts and circumstances you had and putting them into an objective-standard computer. If it spits out that a reasonable officer would do something similar to what you did, the court says okay, that was reasonable.
But the key is you want to give that computer as much data as possible.
The three factors to cover in your report
When you write your report, you want to talk about three things in the encounter, whether it’s a consensual encounter, a Terry stop, a use of force, and so forth.
Police. What did you do? What did your partners do? What resources did you have? What resources did you not have?
Suspect. What did the suspect say? What did he do? What was he wearing? If it’s gang attire, say so. Were there any weapons present? What’s his criminal history?
Environment. Where did this encounter take place? Was it at night? Was it in a desolate area? Was it in a high crime area? Were there people around, potential confederates for the suspect?
You want to talk about all of those things and lay them out for the court.
Rule two: the more serious the crime, the more likely the court upholds you
This one is very important.
Say you have reasonable suspicion to stop a person for a suspected sexual assault. You pull out your weapon, you point your gun at them, you say get on the ground. You pat him down and you find a weapon and drugs.
Then the suspect says, hey, when he pointed that gun at me I felt like I was under arrest. A reasonable person in those circumstances would feel like they were under arrest.
The courts are more likely to say nope, pointing a firearm in those circumstances was reasonable, because it was a serious offense.
I like to say that courts are going to bend over backwards to find that your response and your actions were reasonable when it’s a serious offense.
But if it’s a minor offense, they’re going to put the whole weight on your shoulders to convince them, to persuade the court, why you did what you did.
So if you pulled out your firearm and pointed it at somebody suspected of stealing a candy bar at Walmart, the courts are more likely to find that was excessive for the situation. That it was a de facto arrest, an arrest in fact, and that you needed probable cause.
What’s more, they might also find that was excessive force. Many courts around the nation today find that pointing a firearm at somebody without good justification is force, and it has to be justified.
Rule three: conduct every warrantless search as if you had a warrant
What I mean by this is that when you conduct a warrantless search or seizure, which is 95 percent of police work, you don’t get any extra powers that the court couldn’t have given you.
Here’s an example.
Say you have probable cause that there’s a stolen MacBook Pro in a vehicle, and you want to get a warrant. What would the judge tell you? The judge would tell you to look for that MacBook Pro. The judge would say you can look in the trunk, and in bags that can contain the item.
But if you ask the judge, judge, can I look in an eyeglass case? The judge is going to say no. The MacBook Pro cannot be in an eyeglass case.
So when you’re conducting your warrantless search or seizure, you also can’t look in the eyeglass case for that stolen MacBook Pro.
That’s the point. When you’re thinking about the scope of your warrantless search or seizure, keep in mind what the courts would have allowed you to do.
The bottom line
Those are the three golden rules.
Articulate why. Remember that seriousness cuts in your favor. And never let a warrantless search go further than a warrant would have taken you.
I really hope they help. Until next time, be safe.
Related from Blue to Gold
- Constitutional Considerations of Warrantless “Surround and Call-Outs”
- Case v. Montana: The U.S. Supreme Court Clarifies the Legal Standard for Warrantless Home Entry to Render Emergency Aid
- Conducting Warrantless Vehicle Searches
This article is an edited transcript of Roadside Chat Ep. #8. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
