{"id":7597,"date":"2023-10-27T15:54:35","date_gmt":"2023-10-27T15:54:35","guid":{"rendered":"https:\/\/portal.bluetogold.com\/?p=7597"},"modified":"2026-09-17T06:14:33","modified_gmt":"2026-09-17T13:14:33","slug":"three-golden-rules-of-search-and-seizure","status":"publish","type":"post","link":"https:\/\/portal.bluetogold.com\/?p=7597","title":{"rendered":"Three Golden Rules of Search and Seizure"},"content":{"rendered":"

These three golden rules come from reading thousands of court cases over the last 20 years and seeing a theme regarding what the courts are looking for.<\/p>\n

What is the first golden rule of search and seizure?<\/h2>\n

The First Golden Rule, and the most important one, is:<\/p>\n

The more you articulate why you did something, the more likely it will be upheld in court.\u00a0<\/strong><\/p>\n

The reason for this is, first of all, 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.<\/p>\n

That means that every fact and circumstance comes into play.\u00a0 One change in a fact or one change in the circumstances of something can determine whether it was reasonable or unreasonable.\u00a0 So you need to tell the court why you did what you did.\u00a0 This is an objective standard.<\/p>\n

What does an objective standard actually mean?<\/h2>\n

You can’t go into court and say, \u201cYour Honor, I was reasonable, because I sincerely believed that what I was doing was reasonable.\u201d\u00a0 The courts will thank you for that feedback, but they require an objective standard.\u00a0 So it’s kind of like taking all the facts and the circumstances that you had and putting them into this \u201cobjective standard\u201d computer.\u00a0 If it prints out that it would do a similar thing to what you did, then the court would say, \u201cOkay, that was reasonable.\u201d\u00a0 But the key is that you want to give that computer as much data as possible.<\/p>\n

What three factors should your report cover?<\/h2>\n

And so the final point here is that when you do your report, you want to talk about three factors in the encounter, whether it was a consensual encounter<\/a>, a Terry Stop, a use of force, etc.\u00a0 The first factor is police. Talk about what the police did, what you did.\u00a0 What did your partners do?\u00a0 What resources did you have?\u00a0 What resources did you not have, and so forth?<\/p>\n

The next factor is the suspect.\u00a0 What did the suspect say, or do?\u00a0 What was he wearing?\u00a0 For example, was it gang attire?\u00a0 Were there any weapons present?\u00a0 What is his criminal history, and so on?<\/p>\n

And finally, talk about the environment.\u00a0 Where did this encounter take place?\u00a0 Was it at night?\u00a0 Was it in a desolate area?\u00a0 Was it in a high crime area, and so forth?\u00a0 Was it where there were people around, potential confederates of the suspect?\u00a0 You want to talk about all those things, and lay it out for the court.<\/p>\n

Does the seriousness of the crime change what is reasonable?<\/h2>\n

The second golden rule is:<\/p>\n

The more serious the crime, the more reasonable your actions are likely to be viewed by the court.<\/strong><\/p>\n

This is very important.\u00a0 For example, if you have reasonable suspicion<\/a> to stop a person for a suspected sexual assault, you pull out your weapon, you point your gun at them, and you say, \u201cGet on the ground.\u201d\u00a0 Then you pat them down, and you find a weapon and drugs and so forth.\u00a0 Then, later, the suspect says, \u201cWhen he pointed that gun at me, I felt like I was under arrest.\u201d\u00a0 A reasonable person in those circumstances would feel like they were<\/em> under arrest, and the courts are more likely to say, \u201cPointing a firearm in those circumstances was reasonable, because there was a serious offense.\u201d<\/p>\n

The courts are going to bend over backwards to find that your response and actions were reasonable when it’s a serious offense. But if it’s a minor offense, then they’re going to put the whole weight on your shoulders to basically persuade the court that what you did was reasonable.\u00a0 So if you pulled out your firearm and pointed it at somebody suspected of stealing a candy bar at Walmart, the courts will more likely than not find that it was excessive for that situation.\u00a0 That was a de facto arrest, and for that you needed probable cause<\/a>.\u00a0 Many courts around the nation today find that pointing a firearm at somebody without good cause is force and it has to be justified. So that’s the second golden rule.<\/p>\n

Why conduct warrantless searches as if you had a warrant?<\/h2>\n

The Third Golden Rule is:<\/p>\n

Conduct all warrantless searches and seizures in the same manner as if you had a warrant.<\/strong><\/p>\n

When you conduct a warrantless search or seizure, which is 95% of police work, you don’t have any extra powers that the court couldn’t have given you.\u00a0 An example is if 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?<\/p>\n

He would tell you to look for that MacBook Pro.\u00a0 The judge has said, \u201cYou can look in the trunk and in bags that could contain the item.\u201d\u00a0 But if you ask the judge, \u201cCan I look in an eyeglass case?\u201d the judge is going to say, \u201cNo, the MacBook Pro cannot be in an eyeglass case.\u201d\u00a0 So when you’re conducting a warrantless search or seizure, you also can’t look in the eyeglass case for that stolen MacBook Pro.\u00a0 That’s just the point; when you’re thinking about the scope of your warrantless search or seizure, you want to keep in mind what the courts would allow you to do.<\/p>\n

Those are the three golden rules.\u00a0 If you keep them in mind while in the field, your courtroom experience should be less stressful.<\/p>\n

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