{"id":7207,"date":"2023-10-26T15:11:20","date_gmt":"2023-10-26T15:11:20","guid":{"rendered":"https:\/\/portal.bluetogold.com\/?p=7207"},"modified":"2026-09-17T07:03:06","modified_gmt":"2026-09-17T14:03:06","slug":"seizing-evidence-obtained-by-another-person","status":"publish","type":"post","link":"https:\/\/portal.bluetogold.com\/?p=7207","title":{"rendered":"Seizing Evidence Obtained by Another Person"},"content":{"rendered":"

How can police seize evidence that was obtained unlawfully by another person?\u00a0 <\/strong><\/h2>\n

Hello.\u00a0 My name is Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.\u00a0 This question comes from an officer in Miami.<\/p>\n

He says, \u2018We went to a number one call for a domestic disturbance.\u00a0 We’re inside the residence and while talking to the male and female, the male reaches into the woman’s purse, (it doesn’t say if they’re married or not), and grabs a crack pipe.\u00a0 He shows it to the officer and says, \u2018Look, this is what she’s up to.\u2019\u00a0 The officer then returns the pipe back into the purse, and leaves the bag inside the home and basically escorts the female outside, reads her Miranda, and then she admits that the pipe is hers and that she uses\u00a0 crack cocaine and so forth.\u00a0 Anthony, what do you think about all this?\u201d<\/p>\n

Can we seize the evidence?\u00a0 Are we good?\u00a0 Did we, because of what the private person<\/a> did, taint the evidence?<\/strong>\u00a0 All right, here’s what I think the officers should have done to begin with.\u00a0 They should have grabbed the crack pipe, and in my view, they should not have put that evidence back into the purse.<\/p>\n

First of all, the Fourth Amendment only applies to police conduct or their agents; it does not apply to a private person.\u00a0 So it doesn\u2019t matter if the cop has any concerns about how that evidence was obtained, because at the end of the day, the private person reached into that purse and grabbed out the evidence. \u00a0 There’s no indication here that the cop told the person to do it, encouraged the person to do it, or simultaneously looked into the woman’s purse without authority.\u00a0 So the evidence comes out.<\/p>\n

Now the officer sees the contraband.\u00a0 That is now in plain view<\/a>.\u00a0 There’s no restriction on going over to that evidence and grabbing it and doing what you want with it, seizing it for the prosecution or prevention of\u00a0 destruction. The point is, we didn’t have to put that evidence back into the purse.<\/p>\n

Once we got her out of the house we read her Miranda.\u00a0 That’s fine.\u00a0 She admits that it’s her pipe and so forth.\u00a0 If she allows you to go back into the house to grab the evidence that would be fine.\u00a0 But if she said, \u201cYou know what, I actually don’t want you to look into my purse.\u201d\u00a0 Maybe she has something else in that purse that she does not want you to see.\u00a0 Are you able to go into the purse anyway?\u00a0 The answer is \u201cNo.\u201d<\/p>\n

None of the exceptions apply.\u00a0 You don’t have consent.\u00a0 You don’t have a recognized exception, like search incident to arrest, nor exigency, and you don’t have a search warrant.\u00a0 You don’t have what I call C.R.E.W., consent, recognized exception or a warrant.<\/p>\n

Can we now continue to search the purse because we have this crack pipe? \u00a0 Let’s say that, again, the private person pulls it out.\u00a0 The answer is \u201cProbably not,\u201d\u00a0 because you don’t have a search incident to arrest.\u00a0 Most likely she’s not going to be near the purse at the time of arrest.\u00a0 You’re probably going to separate her from the purse.<\/p>\n

Generally speaking, you don’t want to use a search incident to arrest on items or containers that they have no access to.\u00a0 We also know that probable cause<\/a> alone does not get us into containers.\u00a0 You need some kind of recognized exception.<\/p>\n

Can you get her consent while she’s under arrest?\u00a0 Yes.\u00a0 But if she doesn’t give you consent, you’re probably going to need a warrant.\u00a0 In this case, you’re going to bring the purse with you and go get a warrant, and go from there.<\/p>\n

I hope this helps. \u00a0 If you have a question of your own, contact us at<\/p>\n

bluetogold.com\/show, and until next time my friends, stay safe.<\/p>\n

Related from Blue to Gold<\/h2>\n