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California Narcotic Officers’ Association

34th Annual Training InstituteSan Diego, California

November, 1998

A WORKABLE APPROACHTO SEARCH AND SEIZURE

Presenter:

JUDGE JOHN J. ( Jack ) RYANSuperior Court, Orange County

Table of Contents

INTRODUCTION

THE REASON FOR THE FOURTH AMENDMENT

THE INTENT OF THE FRAMERS OF THE FOURTH AMENDMENT

REASONS WHICH PERMIT WARRANTLESS SEARCHES ANDSEIZURES

SEARCH WARRANT, PREPARATION AND EXECUTION

LEGAL REQUIREMENTS FOR WARRANTLESS SEARCHES

SEARCHES INCIDENTAL TO A LAWFUL ARREST

BODILY INTRUSIONS

AUTOMOBILE SEARCHES (CARS)

ADMINISTRATIVE SEARCHES

WAIVERS

FORFEITURES

PLAIN SIGHT SEIZURES

SEARCHES NOT SUBJECT TO THE EXCLUSIONARY RULE

OFFICER'S GUIDE FOR ORAL/FAX SEARCH WARRANTS

A WORKABLE APPROACH TO SEARCH AND SEIZURE

INTRODUCTION:

This paper is designed to show peace officers how to make correct legal search andseizure decisions by using their common sense and logic. It can also be a valuableresearch tool for attorneys. Just about every Fourth Amendment issue will be discussed

in a logical sequence with suggestions (/) offered for the peace officer.

The laws on search and seizure are found in thousands of Appellate decisions and afew statutes. Courts have been interpreting the Fourth Amendment for over 100 yearsand have not yet resolved all the issues nor have they been consistent in those theyhave. Don’t be frustrated! An understanding of how each decision is arrived at revealswhat an officer should do to avoid losing any evidence in court.

The law represents the opinion of the majority of the justices who happened to vote onthat case. But, every case has new evidence; another officer; different place and time. Any change in facts, judges or a judge’s opinion, could change the result. The officer’sanalysis will not have to change, if what the officer does will satisfy all the judges, all thetime. The workable approach is designed to show the officer how to accomplish that! There are five steps to the workable approach:

1. Understand the reasons why the 4th Amendment was created.2. Understand that the 4th Amendment was intended to require warrants.3. Understand the reasons for exceptions to the "warrant" rule.4. Understand the legal requirements for warrants.5. Understand the legal requirements for warrantless intrusions.

THE FIRST STEP: THE REASON FOR THE FOURTH AMENDMENT

It is important in analyzing any rule, to determine why it was necessary in the first place.The Fourth Amendment was written by the American colonists who revolted againsttheir government because of certain abuses. They were particularly upset about theuse of general warrants and warrantless searches. After the Revolutionary War theydrafted the Constitution to limit the power of the federal government, and then added theBill of Rights to demonstrate that certain inalienable rights would always belong to thepeople. The 4th Amendment was designed to prohibit general warrants and to restrict

warrantless searches and seizures. / It is critical for the officer to understand that theFourth Amendment was intended to limit peace officers in their quest to investigatecriminal activity. "The right of privacy was deemed too precious to entrust to thediscretion of those whose job is the detection of crime and the arrest of criminals."

(McDonald v. United States (1948) 335 U.S. 451.) The Supreme Court has beenrepeating this message ever since Boyd v. United States (1886) 116 U.S. 616, 625:

"The practice had obtained in the colonies of issuing writs of assistance to therevenue officers, empowering them, in their discretion, to search suspectedplaces for smuggled goods, which James Otis pronounced the worst instrumentof arbitrary power, the most destructive of English liberty and the fundamentalprinciples of law, that ever was found in any English law book; since they placedthe liberty of every man in the hands of every petty officer."

The Court was quoting from a speech made by James Otis, a high ranking governmentofficial who tried to persuade the British Court to declare the exploratory searchesillegal. The rejection of his plea, in February 1761, was a leading cause for theRevolutionary War. Remember that the colonists fought and killed friends, neighbors,and relatives to gain, among other things, a right of privacy. Understand their emotion,a "revolutionary spirit", and then you have completed the necessary first step in theanalysis of any search and seizure issue.

/ If the officer does not accept the lst step, he or she will begin the analysis in step 5 byasking the wrong question. When deciding whether to make a warrantless intrusion, theofficer may ask: "Why can’t I...? The correct question should be: "What permits me...?

THE SECOND STEP: THE INTENT OF THE FRAMERS OF THE FOURTHAMENDMENT

The Fourth Amendment states:

"The right of the people to be secure in their persons, houses, papers and effects,against un-reasonable searches and seizures shall not be violated, and nowarrants shall issue, but upon probable cause, supported by Oath or affirmationand particularly describing the place to be searched, and the person or things tobe seized."

The language just quoted is contained in only one sentence,uninterrupted by either a colon or semicolon. It can beinterpreted to mean that: All searches & seizures should be with a warrant! The Courts continue to tell us that the 4th Amendment requireswarrants, with very few exceptions. (See Katz v. United States(1967) 389 U.S. 347, 357-358; People v. Dumas (1973) 9 Cal 3d871, 880.) "Where a search is undertaken... to discover evidenceof criminal wrongdoing, this Court has said that reasonableness generally requires theobtaining of a judicial warrant." (Skinner v. Railway Labor Executives’ Association (1985) 489 U.S. 602,619.)

The alternate interpretation: All searches and seizures must be reasonable, requires anawareness of these "presumptions":

A search or seizure with a warrant is presumed to be reasonable. (Franks v.Delaware (1978)

438 U.S. 154; People v. Hobbs (1994) 7 Cal.4th 948.)

A search or seizure without a warrant is presumed to be unreasonable. (See, UnitedStates v. Leon (1984) 468 U.S. 897.)

Advantages Earned by Using a Warrant:

There are several good reasons for procuring a warrant. They include:

1. A procedural advantage for the prosecution. When an officer procures a warrant,that officer has effectively switched the burden of proof. Because of the presumption ofreasonableness which attaches when the officer uses a warrant, the defendant has theburden of proving that a search or seizure was unreasonable. (See People v. Lazanis(1989) 209 Cal.App.3d49; United States v. Longmire (7th Cir. 1985) 761 F.2d 411.) A good rule of thumb toremember is: In close cases, the party with the burden loses!

2. A practical advantage. Because the officer’s opinion that there was probablecause has already been approved by a magistrate, reviewing courts are directed tointerpret warrants in a common sense and realistic fashion. (United States v. Ventresca(1964) 380 U.S. 102, 108-109.) The trial court judges are also advised that "theresolution of doubtful or marginal cases...should be largely determined by thepreference to be accorded to warrants." (People v. Superior Court (Johnson) (1972) 7Cal.3d 704,711.)

3. The "Good Faith" exception to the exclusionary rule. A peace officer may berewarded by utilizing the warrant procedure, because, if the officer reasonably believedthat there was probable cause, the evidence may not be excluded even though thereviewing judge disagrees with the officer’s opinion. The United States Supreme Courtheld that a warrant will be upheld if it is facially valid (i.e., the place, person and thingshave been described with particularity), unless:

a) The affiant was dishonest or reckless in the preparation of the affidavit, or:

b) The affiant could not have harbored an objectively reasonable belief in theexistence of

probable cause.

Just White explained: "The objective standard we adopt today requires officers to have areasonable knowledge of what the law prohibits... The key to the (exclusionary) rule’seffective-ness as a deterrent lies, I believe, in the impetus it has provided to policetraining programs that make officers aware of the limits imposed by the 4th Amendmentand emphasize the need to operate within those limits." (United States v. Leon (1984)468 U.S. 897; Massachusetts v. Sheppard (1984) 468 U.S. 981.)

Expansion of the good faith rule: Good faith has been applied in cases where warrantshave not been "facially valid" (See People v. Rodrigues-Fernandez (1991) 235Cal.App.3d 543.); to an arrest made on a recalled warrant which remained in the systembecause of a court error (Arizona v. Evans (1995) 514 U.S. 1 ); to a condition ofprobation search made after probation had terminated, based on clerical error (Peoplev. Downing (1995) 33 Cal.App.4th 1641); and to jurisdiction error by a magistrate issuingan "out of county" warrant (People v. Dantzler (1988) 206 Cal.App.3d 289).

/ The good-faith exception to the exclusionary rule will not apply to police error!

4. Limited immunity. The United States Supreme Court has given peace officerslimited immunity in civil rights law suits, in those cases where the officer procured awarrant in GOOD-FAITH. (Mallay and Rhode Island v. Briggs (1985) 475 U.S. 335.)

Sanctions: Failure to procure a warrant, unless justified, is a violation of law. The resultis suppression of evidence and a possible civil rights law suit. (Monroe v. Pape (1961)365 U.S. 167; In Re Lance W. (1985) 37 Cal.3d 873.)

THE THIRD STEP: REASONS WHICH PERMIT WARRANTLESS SEARCHES ANDSEIZURES

There are three reasons which justify warrantless searches and seizures:

Exigency: "Exigent circumstances means an emergency situation requiring swift actionto prevent imminent danger to life or serious damage to property, or to forestall theimminent escapeof a suspect or destruction of evidence. (People v. Ramey (1976) 16 Cal.3d 263, 276;see United

States v. Chadwick (1977) 433 U.S. 1, and the cases cited.) / If someone might gethurt or if evidence could be lost before the officer could procure a warrant, there wouldbe an exigency.The officer cannot create an exigency and benefit from it!

Waiver: A waiver involves a knowing, intelligent, and voluntary giving up of aconstitutional right. "The People (have) the...burden of proving that the defendant’smanifestation of consent was the product of his (or her) free will and not a meresubmission to authority. The voluntariness of the consent is in every case a question offact to be determined in the light of all the circumstances." (United States v. Bumper

(1968) 391 U.S. 543; People v. James (1977) 19 Cal.3d 99, 106.) / The officer shoulduse words that make it clear exactly what the officer wants permission to do. i.e., "May Ilook around," may not imply a request to search small places for dope!

Forfeiture: There are many situations when any alleged expectation of privacy would beunreasonable. A person could lose an expectation of privacy by what they do or wherethey do it. I call this "forfeiture". The officer will recognize a forfeiture when anaverage person would believe that, under the particular circumstances, the suspectcould not have had a reasonable expectation of privacy. Realize that as time andcircumstances change, so may the "expectation" (see California v. Ciraolo (1986) 476U.S. 207.) Some courts have used this type of analysis to find that a person with anoutstanding warrant, unknown to the officer, has no reasonable expectation (People v.Joyce (4-20-98) __ Cal.App.4th ___); and a traveler can have his or her luggage poofedby an officer (People v. Santana (4-23-98) __ Cal.App.4th ___).

THE FOURTH STEP: SEARCH WARRANT, PREPARATION AND EXECUTION

In the absence of an exigency, waiver, or forfeiture, the officer will have to apply for awarrant. The 4th Amendment explains that a valid search warrant requires:

1. Probable cause to search is, that state of facts or circumstances, and whenappropriate, the veracity and basis of knowledge of an informant, which would cause theofficer to believe that there is a fair probability that contraband or evidence of a crime willbe found in a particular place. The officer’s expertise and opinions are relevantconsideration(see, Illinois v. Gates (1983) 462 U.S. 213, 238.)

/ A safer definition for officers to follow is: Is it more likely than not, that I or anotherofficer, will find those items sought to be seized at the place to be searched.

Anticipatory probable cause: A search warrant may be issue for evidence which "is on asure course to the destination targeted for the search." (United States v. Ruddell (9thCir. 1995) 71 F.3d 331.) The officer may request a warrant when the officer can provethat the right to search will exist within a reasonable time in the future. Controlleddeliveries of contraband, controlled buys, reverse stings are examples of when awarrant could be procured first! (See, People v. Sousa (1993) 18 Cal.App.4th 549.)

2. Particular descriptions of:

a) Place to be searched. The place will be described with particularity, even if theaddress is wrong, as long as the description will allow another officer, with reasonableeffort, to find the correct place! (Tidwell v. Superior Court (1971) 17 Cal.App.3d 780,787; Steele v. United States 267 U.S. 498, 503.)

b) Persons to be Seized. The officer should describe those persons whom theofficer expects to arrest at the place being searched even though a valid arrest may bemade anyway. (By using the warrant the officer has switched the burden of proof!) And,

c) Things to be seized. "A warrant must describe the...things to be seized withparticularitysufficient to prevent a general, exploratory rummaging in a persons belongings... Ingauging a warrant’s specificity, we consider three factors: (1) whether probable cause

exists to seize all items of a particular type described in the warrant; (2) whether thewarrant sets out objective standards by which executing officers can differentiate itemssubject to seizure from those which are not; and (3) whether the government was ableto describe the items more particularly in light of the information available to it at the timethe warrant was issue (United States v. Lacy (9th Cir. 1997) 119 F.3d 742.)

The description has to be reasonably specific. (See, United States v. Rodriguez (9thCir. 1989) 869 F.2d 469; Marron v.United States (1927) 275 U.S. 192; Burrows v.Superior Court (1974) 13 Cal.3d 238, 249.) Do not ask for any and all photographs,when the subject of the photographs can be defined. (See, People v. Bradford 15

Cal.4th 1229.) / A search of a computer hard drive and disks was approved in U.S. v.Lacy (9th Cir. 97) 119 F.3d 742, because the officer limited the request to GIF (graphicinterchange format) files depicting minors engaged in sexually explicit activity.

In some cases, courts have found that prefatory phrases, such as: articles of personalproperty tending to establish the identity of persons in control of the premises; andevidence relating to the crime of ... to be sufficiently particular (See, People v. Alcala(1992) 4 Cal.4th 742, 799; Andressen v. Maryland (1976) 427 U.S. 463, 642.)

/ The officer is well advised to avoid this type of language and be as specific aspossible in describing the things to be seized. Being specific will not reduce the scopeof a legal search. The plain sight rule permits the officer to seize any evidence relatedto the crime as well as any contraband. (Horton v. California (1990) 496 U.S. 128.)

Use the attached search warrant guide as a checklist!

SECURING A HOUSE WHILE WAITING FOR A WARRANT: To justify the securing of aresidence the officer should consider:

1) the degree of urgency involved and the amount of time necessary to obtain awarrant.

2) reasonable belief that the contraband is about to be removed.3) the possibility of danger to police officers guarding the site while a search warrant

is sought;4) information indicating the suspects are aware that the police are on their trail; and5) the ready destructibility of the contraband and the knowledge that efforts to

dispose of narcotics and to escape are characteristics of persons engaged in thenarcotics traffic. (People v. Koch (1989) 209 Cal.App.3d 770, 782; United Statesv. Rubin (3d Cir. 1973) 474 F.2d 262, 268-269.)

/ In other words, the officer needs probable cause and exigent circumstances. If thereis time to procure a telephonic warrant, there won’t be an exigency. (See United Statesv. Andersson (9th Cir. 1987) 813 F. 2d 1450, and cases cited.)

Officers were reasonable in telling a motel manager not to allow anyone into an arrestedmurderer’s room. An officer entered the room the next day and saw the murder

weapon, then procured a warrant. / It is safer to secure the room and get a warrantprior to entry, so the prosecutor won’t have to rely on the inevitable discovery rule! (People v. Bennett (1998) 17 Cal.4th 373.)

The Supreme Court has applied the "inevitable discovery rule" in a case where officersmade an illegal entry to secure a residence while waiting for a search warrant based oninformation known prior to the bad entry. (Segura v. United States (1984) 468 U.S.796.) "The doctrine of inevitable discovery has been defined in this manner: Althoughtypically any evidence obtained, even indirectly, through the illegal actions of police isinadmissible as fruit of the poisonous tree, where the court finds that the challengedevidence would have been eventually secured through legal means regardless of theimproper official conduct, the inevitable discovery exception allows the evidence to beadmitted." (People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 673.)

/ When a house is "secured" while a warrant is being sought, the securing officersshould make sure that the affiant has no access to any of the information obtained aftera questionable entry! Officers should never rely on the inevitable discovery rulebecause there may be a violation of the suspect’s civil rights under state law. (SeePeople v. Shuey (1975) 13 Cal.3d 835.) If a warrant would not have been procured, ‘butfor’ the illegal entry, there is no inevitable discovery! (Murray v. U.S. (1988) 487 U.S.533, 542; People v. Lamas (1991) 229 Cal.App.3d 560, 570.)

Executing the warrant:

"Knock-Notice" Rule: An officer, prior to forcing (i.e., non-consensual) entry into a housefor the purpose of effecting an arrest or executing a search warrant, must comply withthe "knock/notice" rules (Wilson v. Arkansas (1995) 514 U.S. 927; §§844, 1531 P.C. inCalifornia; 18 USC 3109, federal). i.e.:

a) Identify him or her self.b) Demand admittance.c) Explain the purpose for which admittance is desired.d) Be refused admittance or wait a reasonable length of time.e) And in arrest situations, reasonable grounds for believing that the person to be

arrested is inside. (See, United States v. Sabbath (1968) 391 U.S. 585; People v.Peterson (1973) 9 Cal.3d 717, 723;)

Exceptions to the knock-notice rule

Substantial compliance: An officer has substantially complied with the knock andannounce rule when the occupants have indicated by conduct that no furtherexplanation or information is desired and that entry is being refused without regard tothe officer’s reason or purpose. (See People v. Sanford (1968) 265 Cal.App.2d 960,965; 18 USC 3109; United States v. Alfonso (9th Cir. 1985) 759 F.2d 728, 742.)

Useless gesture: When the occupants can see the police who are making therequired announcement, it may not be necessary to wait for a refusal before entry. Thepurpose of the rule has been satisfied. (People v. Ulher (1989) 208 Cal.App.3d 766; seeMiller v. U.S. (1958) 357 U.S. 301; People v. Gonzales (1989) 211 Cal.App.3d 1043.)

No-Knock: An officer is excused from giving notice when the officer acts on areasonable good faith belief that compliance would increase his or her peril, frustrate anarrest, or permit the destruction of evidence. (See People v. Bacigalupo (1991) lCal.4th 103, 305; United States v. Perez (9th Cir. 1995) 67 F.3d 1371; see Kerr v.California (1963) 374 U.S. 23.)

No-Knock Search Warrants: The United States Supreme Court said in Richards v.Wisconsin (1997) 520 U.S.____; 117 S.Ct. 1416, that "the practice of allowingmagistrates to issue no-knock warrants seems entirely reasonable when sufficient causeto do so can be demonstrated ahead of time." The Court was discussing states whichhave statutes permitting no-knock warrants. There is no such authority, as of yet, inCalifornia. (Parsley v. Superior Court (1973) 9 Cal.3d 934.) Note that even underRichards "the reasonableness of the officer’s decision must be evaluated as of the timethey entered..."

Use of a subterfuge, to enter with a warrant or with probable cause: When the officeris armed with a warrant, or has probable cause, the employment of a ruse which resultsin the occupant voluntarily opening the door is not a forcible entry. (People v. Veloz(1971) 22 Cal.App.3d 499, 502; United States v. Contreras-Ceballos (9th Cir. 1993) 999F.2d 432.) Entry permitted by a ruse is an exception to Ramey! (People v. Evans (1980)108 Cal.App.3d 193, 196.) An undercover entry to purchase drugs is consensual. (Lewis v. United States (1966) 385 U.S. 206. 211.)

/ It may be safer to trick the suspect out. In a case where the police knew they wouldbe unsuccessful in "kicking" a door in, they staged a gunfight on the street in front of thesuspect’s house. The suspect was asked to examine his automobile for possibledamage from the gunshots. This was acceptable!!! (See People v. Thompson (1979)89 Cal.App.3d 425, 430-431, and cases cited; Dickey v. U.S. (9th Cir. 1964) 332 F. 2d773, 777-778.)

Use of a subterfuge, to enter without probable cause: � An entry by stratagem forthe purpose of developing probable cause may be illegal. (i.e., having a manager callan occupant advising that a package was being delivered to his room, then the officerssaw marijuana in plain sight after the door was opened. People v. Reeves (1964) 61Cal.2d 268.) In Reeves, and all the cases like it, the ruse caused the loss of an

expectation of privacy. / If the occupant eliminates the expectation of privacy, i.e., byinviting prospective renters in, then an officer who poses as a renter could make a validentry. (See, United States v. Garcia (9th Cir. 1993) 997 F.2d 1273, 1280.)

It is permissible for an officer to knock on a door and tell the occupant that the officer isinvestigating possible criminal activity at the location. If contraband is seen in plainsight, and there is an exigency, an immediate arrest and seizure should be reasonable.(People v. Robinson (1986) 185 Cal.App.3d 528.)

Inner doors: "The cases are split on the issue of whether police are constitutionallyrequired to give knock-notice at closed inner door." (See People v. Aguilar (1996) 48Cal.App.4th 632, 637-638, and the cases cited.) Common sense and the newer cases(i.e., Aguilar) indicate that if proper notice is given at an outer door, no further noticeshould be required at closed inner doors.

/ As a practical matter, the notice at the outer door is typically heard by all theoccupants as well as some neighbors! (The older cases include Young v. Superior Court(1976) 57 Cal. App. 3d 883; and People v. Webb (1973) 36 Cal. App. 3d 460, involvedunannounced entries into a closed, occupied bath room and bed room.)

Back doors: It is permissible for officers to go to a back door when the front door isinaccessible, or when there is no answer, or if it is one that any member of the publiccould use. (See United States v. Garcia (9th Cir. 1993) 997 F.2d 1273, 1279 and casescited.)

Scope of a search pursuant to a warrant: The scope of a lawful search is defined by theobject of the search and the places in which there is probable cause to believe that itmay be found (Maryland v. Garrison (1987) 480 U.S. 79, 84.)A search warrant typicallycovers the curtilage and appurtenances of the place described. (See, People v.Grossman (1971) 19 Cal.App.3d 8; United States v. Gorman (9th Cir. 1996) 104 F.3d272.) Curtilage, the land immediately surrounding and associated with the home, hasbeen considered part of the home itself for Fourth Amendment purposes (Oliver UnitedStates (1984) 466 U.S. 170.) The officer may search any place within the curtilagewhere the officer might reasonably expect to find any of the items listed in the warrant. (i.e., mailbox (don’t read unopened mail) People v. Weagley (1990) 218 Cal.App.4th 569;garbage cans for the apartment, People v. Estrada (1965) 234 Cal.App.2d 136, 142;carport, People v. Grossman (1971) 19 Cal.App.3d 8; outbuildings, People v. Smith(1994) 21 Cal.App.4th 942, 950.)

Searching personal property of a non-resident: A majority of Courts throughout thecountry distinguish searches of persons, including their clothing, from searches of othertypes of property belonging to a non-resident. (see, United States v. Johnson (D.C. Cir.1973) 475 F.2d 977, which permitted a search of a non-resident's purse as being within

the scope of the warrant.) / A more common sense approach, which will satisfy all thecourts is: "When the police know that the personal effects found on the property belongto a non-resident, the police may rely on the authority of the search warrant to conduct asearch of the personal effects of the non-resident only if someone within the premiseshas had an opportunity to conceal contraband within the personal effects of thenon-resident immediately prior to the execution of the search warrant." (People v.McCabe (1983) 144 Cal.App.3d 827, 830; United States v. Johnson at 979.)

� A search was found to be illegal when an officer searched the clothing of a non-resident who had just taken a shower at the place being searched! (People v. Reyes(1990) 223 Cal.App.3d 1218.) A pat down of the clothing would have been reasonable.

/The problem with the holding in this case and all the others which found searches of anon-occupant's property to be illegal, is that the officer never testified about why thesearch was conducted. When the officer and prosecutor assume that all property, eventhat associated with a visitor is covered by the warrant, some of the evidence may besuppressed! If the officer can associate the person or property with the premises, orwith the illegal activity, or get a consent, the search will always be legal!

Detention of occupants: A"warrant to search for contraband founded on probablecause implicitly carries with it the limited authority to detain the occupants of thepremises while a proper search is conducted." (Michigan v. Summer (1981) 452 U.S.692.) Consent by an owner of a business to search for drugs, however, does not allowthe officer to detain employees. (People v. Shields (1988) 205 Cal.App.3d 1065.) "Merevisitors", (i.e., someone with no connection to the premises or crime) absent an exigency orconsent, may not be detained after their status is determined. (See, People v. Glasser(1995) 11 Cal.3d 354, 374.) People v. Hannah (1996) 51 Cal.App.4th 1335, allowed thebrief detention of an individual who may have been a "mere visitor" in a house where anarrest warrant was being served, for officer safety and to determine the personsconnection to the residence.

Detention of late arrivals: It is permissible to detain and frisk a person who walks induring the search of a home containing methamphetamine and cocaine. It would bereasonable to believe that such a person was connected to the residence and narcotics.(People v. Huerta (1990) 218 Cal.App.3d 744.)

Detention of persons who want to leave the premises: A person who is leaving orwho wants to leave a place about to be searched may be detained if the officer canarticulate facts connecting the person to the premises or reason to believe there couldbe danger to the officers. (Michigan v. Summer (1981) 452 U.S. 692; United States v.Reed (D.C. Cir. 1993) 997 F.2d 1576,1579.)

Frisking occupants: Neither the United States Supreme Court nor the CaliforniaSupreme Court has addressed the issue of frisking persons who happen to be at asearch scene. (See the dissent in denial of petition for writ of certiorari in Guy v. Wisconsin (1993) 125

L Ed 2d 709.) /The officer should utilize the analysis set out in Terry v. Ohio (1968) 392U.S. 1, 27. It would appear that persons involved in the narcotic's trade are dangerous(People v. Thurman (1989) 209 Cal.App.3d 817, 824), and persons entering a residenceof illicit drug activity might be armed. (People v. Huerta (1990) 218 Cal.App.3d 744,750.)

/ The officer should give the judge the benefit of his or her training and experiencewhen testifying in such situations, because, unless this is done, there may be insufficientevidence to justify such an intrusion. Assuming that an individual would be armedbecause that person came to a house where methamphetamine is sold, without offering

any evidence to justify such belief, has been found insufficient. (People v. Gallant(1990) 225 Cal.App.3d 200.)

Frisking persons coming to the house: It is impermissible to frisk persons who aremerely in the area of the house! But, if the officer sees a friend of a meth dealer driveup to the meth lab while it was being searched, and believes the late arrival could be aco-conspirator, then a frisk would be appropriate. (United States v. Carrafa (9th Cir.1995) 59 F.3d 176.)

Questioning persons detained while a warrant is being executed: The officer mustcomply with"Miranda" when an officer engages in a custodial interrogation!

Interrogation includes the use of "any words or actions on the part of the police...thatthe police should know are reasonably likely to elicit an incriminating response from thesuspect." (Rhode Island v. Innis (1980) 446 U.S. 291, 301; In re Albert R (1990) 112Cal.App.3d 783, 789.)

Custodial has been more difficult to define. "...the task of defining custody is aslippery one." (see, Michigan v. Tucker, 417 U.S. 433, 478.)

/ There is a workable test to determine when an interrogation becomes custodial:

1. There is probable cause to make an arrest, and;2. The officer intends to make the arrest, and; 3. The officer has the ability to make the arrest, and;4. The probable cause, intent, and ability are manifested. (i.e., a reasonable person,

aware of all the circumstances would assume all of the above!)

OR: It appears to a reasonable person that the above factors exist!

This usable test is consistent with the Supreme Court's latest definition of whencustodial begins. (See, Stansbury v. California (1994) 511 U.S. 318; People v.Stansbury (1995) 4 Cal.4th 1017.) If the circumstances indicate that there was a formalarrest or restraint on freedom with movement associated with a formal arrest, there iscustody!

/The officer is actually in control of the situation! If the officer understands the test, theofficer can insure that the incident is not 'custodial', or be prepared to comply withMiranda.

Rescue Doctrine: The officer does not have to comply with the admonishmentrequirements set out in Miranda when the officer is trying to save someone’s life. Asuspect’s admission that he swallowed cocaine was admissible. (People v. Stevenson(1997) 51 Cal.App.4th 1234.)

Entering homes to make an arrest or to conducta search: A warrantless, non-consensual, non-exigent entry into a home to make an arrest orsearch is not permitted. (Payton v. New York(1980) 445 U.S. 573; People v. Ramey (1976) 16Cal.3d 263.) A home may include any structurewhere a person resides, including a tent in apublic park, or a makeshift hut. (United States v. Gooch (9th Cir.1993) 6 F.3d 673;People v. Franco (1986) 183 Cal.App.3d 1089.)

THIRD -PARTY HOMES: A search warrant is required for a non-consensual, non-exigent entry into a "third party’s home to arrest a suspect, even though there is a validarrest warrant for the suspect. (Stegald v. United States (1981) 451 U.S. 204.)

Doorways of homes: A doorway to a home or hotel room has been considered to be apublic place. (United States v. Santana (1976) 427 U.S. 38; United States v. Vaneaton(1995) 49 F.3d 1423.) If the suspect is voluntarily (i.e.,with no police involvement)standing in the doorway to the residence or a motel room, a warrantless arrest isallowed. In those situations where the need to arrest has just arisen (i.e.,an exigency!)the officer may follow a suspect who is trying to thwart the arrest into the home. (Santana at 43.)

/ In a factual situation quite similar to Ramey, (i.e.,probable cause to arrest; officers tosuspect’s home; knock; suspect appears at front door, then retreats upon seeing theofficers) the 9th Circuit in Vaneaton allowed officers to enter a residence to arrest theretreating suspect. Ramey, however, is binding because it was decided on FederalConstitutional grounds. The defendant’s retreat into the house was held to be a policecreated exigency! Although a legal warrantless arrest may be made at the front door,the officer is well advised to get a warrant when time permits!

Consensual entries: (See the discussion on consent searches.) A request by a suspectto retrieve clothing inside a house was an implied consent for the officer to enter inUnited States v. Gilbert (9th Cir.1985) 774 F.2d 962.) Drugs found in plain sight wereadmissible!

Third Party Consents: The consent will be valid if the officer is reasonable inbelieving that the person giving consent has common authority (mutualuse/access/control) over the premises, even if such belief is mistaken. (Illinois v.Rodriguez (1990) 497 U.S. 177, 185-189.) The general rule is that landlords have noauthority to consent to an entry of a premises occupied by a tenant. (People v.Escudero (1979) 23 Cal.3d 800, 806.)

/ Don’t assume. It’s better to ask if the tenant has abandoned the premises or hasbeen evicted. (See, People v. Roman (1991) 227 Cal.App.3d 674, 680-681.)

Exigent Entries: Before entering a home to make a warrantless arrest, the officer should evaluate the following factors to determine if an exigency exists:

1. The gravity of the offense.2. Whether the suspect is armed.3. The level of probable cause.4. Whether the defendant will be found on the premises.5. The likelihood of the suspect escaping if not promptly arrested. (See, Dorman v.

U.S. (D.C.Cir. 1970) 435 F.2d 385, 392-293; People v. Bacigalupo (1991) 1Cal.4th 103.)

/ The officer cannot create the exigency to make a warrantless entry! (See, Peoplev. Bellizzi (1995) 34 Cal.App.4th 1849; U.S. v. Munoz-Guerra (5th Cir. 1986) 788F.2d 295.) If a court finds that there was time to get a warrant (telephonic) therewould be no exigency! (See People v. Blackwell (1983) 147 Cal.App.3d 646, 653.)

Examples of exigent, non-warrant entries into homes:

Arson Scene: The arson investigator can remain on the scene for a reasonable timeto investigate the cause of the blaze after it is distinguished. (People v. Glance (1989)209 Cal.App. 3d 836.) The validity of reentries to further investigate the cause of the firedepends on the circumstances.

/ Once it has been determined that the cause of the fire was arson and theexigency no longer exists, if the suspect has a privacy interest in the property, theinvestigator should consider getting a warrant before looking for additional evidence. See, (Michigan v. Clifford (1984) 464 U.S. 287.)

Clandestine Drug Labs, depending on the circumstances, could quality asexigencies.

/ If the officer believes there is imminent danger to persons and acts accordingly,the officer’s decision should be upheld. (i.e.,If the officer smells the odor of a toxic orexplosive chemical such as phenyl 2-propanone or ether coming from a building andbelieves because of the circumstances that there is actual danger, and then actsaccordingly by doing such things as: notifying the fire department; warning orevacuating neighbors; render the property safe by turning off the burners andopening windows, the entry should be valid.) See, People v James (1998) 62Cal.App.4th 244; People v. Stegman (1985) 164 Cal.App.3d 936, 944-955; People v.Messina (1985) 165 Cal.App.3d 937; United States v. Echegoyen (1986) 799 F.2d1271.)

� The odor of a potentially dangerous chemical, without evidence corroborating theofficer’s belief that danger was imminent, will not justify a warrantless entry into abuilding. (People v. Duncan (1986) 42 Cal.3d 91.) Remember that the definition ofexigency includes the word "imminent". "Imminent essentially means it is reasonable toanticipate the threatened injury will occur in such a short time that it is not feasible toobtain a search warrant." (People v. Blackwell (1983) 147 Cal.App.3d 646, 652.)

Crime in progress: Common sense and the law tell us that when an officer is in aplace where the officer is entitled to be (i.e., a hotel hallway) and reasonably believes acrime is being committed (packaging heroin), and there is an exigency because thesuspect sees the officer, an immediate entry is permitted. (People v. Ortiz (1995) 32Cal.App.4th 286, 289.) When an officer has probable cause to believe a burglary istaking place, an immediate, unannounced entry is permitted, but when the officer seesnarcotics in plain sight, a search warrant or consent is required before a further searchis permitted. (People v. Duncan (1986) 42 Cal.3d 91.)

Domestic Violence: An officer responding to a domestic violence call can enter ahome to ensure the caller’s safety even though the alleged victim tells the officereverything is okay. (People v. Higgins (1994) 26 Cal.App.4th 247.)

Homicide Scene: There is no blanket authorization to make a warrantless search of ahomicide scene. The need to protect or preserve life or avoid serious injury isjustification ...a warrantless search must be strictly circumscribed by the exigencieswhich justify its initiation. The Supreme Court reversed the murder conviction of a dopedealer who killed a narcotics officer making an undercover buy at the dealer’sapartment, because the warrantless search continued after the exigency dissolved.(See, Mincey v. Arizona (1978) 437 U.S. 385, 395.)

Hot Pursuit: "...a suspect may not defeat an arrest which has been set in motion in apublic place...by the expedient of escaping to a private place." (United States v.Santana (1976) 427 U.S. 38, 43.) The Santana rule applies to persons trying to avoidan arrest for traffic violations. The refusal to comply with the officer’s attempts to detainfor the purpose of issuing a citation provides probable cause to arrest for resisting... (Inre Lavoyne M. (1990) 221 Cal.App.3d 154; People v. Lloyd (1989) 216 Cal.App.3d 1425,1429.) "(The officers) acted reasonably when they entered the house and began tosearch for a man of the description they had been given and for weapons which he hadused in the robbery or might use against them...Speed here was essential, and only athorough search of the house for persons and weapons could have insured that Haydenwas the only man present and that the police had control of all weapons which could beused against them or to effect an escape." (Warden v. Hayden (1971) 387 U.S. 294-299.) See People v. Hull (1995) 34 Cal.App.4th 1418, where officers were permitted toenter a house to make an arrest and recover stolen property. The officers dusted stereospeakers with a fluorescent powder, attached a beeper, then placed the equipment in abait car. They monitored the beeper to a home, but, unfortunately, were observed bythe suspect. The entry to arrest the auto burglar and to recover the property before thepowder dissipated was okay. This was an exigency which the police did not create.

Medical Aid: "Numerous state and federal decisions recognized that the FourthAmendment does not bar police officers from making warrantless entries and searcheswhen they reasonably believe that a person within is in need of immediate aid. (Tamborino v. Superior Court (1986) 41 Cal. 3d 919,924, quoting Mincey v. Arizona(1978) 437 U.S. 385, 392.) Common sense prevails in these exigent entry cases. Forexample, in People v. Roberts (1957) 47 Cal. 2d 374, 377-378, officers went to anapartment to talk to a burglary suspect but received no response after knocking on thedoor. The officers heard "moans or groans" as if someone inside was in distress (it could

have been a pigeon). No one was in distress, or even inside! A radio, taken in the burglarywas! Since the stolen property was in "plain sight", it was admissible. Of course, if theradio had to be moved before it could be determined that it was stolen property, it wouldno longer be considered to have been in plain sight. (See, Arizona v. Hicks (1987) 480U.S. 321.)

Missing Person: "Doubtless there are an infinite variety of situations in which anentry for the purpose of rendering aid is reasonable. Included are those in which theentry is made...to seek an occupant reliably reported as missing. (People v. Wharton(1991) 53 Cal.3d 522, 578.)

Fruits of an illegal entry: If there was probable cause to make the arrest, an illegal entrywill not affect the admissibility of voluntary statements made outside the house, nor will itprotect the suspect from prosecution for the previous crime... (See New York v. Harris(1990) 495 U.S. 14.)Anything found in the house will be suppressed.

Reentry into a home to make an arrest, after a legal initial entry: A reentry into aresidence to make an arrest is permissible when the officer has consent to reenter or anexigency still exists. Examples include those situations when the undercover operatorleaves the premises for the purported purpose of getting the purchaser; money; scale;testing material; or even to test the substance. (See, United States v. Diaz (7th Cir.1987) 814 F.2d 454; People v. Cespedes (1987) 191 Cal.App.3d 768.)

/ In buy-bust situations, when possible, the buyer should remain in the premiseswhile the other officers enter. (See, People v. Evans (1980) 108 Cal. App.3d193.) When the buying officer leaves the residence after making a buy andimmediately reenters with other officers, some (most) courts may find that theoriginal consent to enter was still valid (i.e., Cespedes) but some courts may not(i.e., People v. Garcia (1982) 139 Cal. App.3d Supp. 1)!

� Garcia is cited because it manifests the way some judges will analyze the reentry. Itreally doesn’t matter if the Garcia decision is binding or correct. What matters is, if theofficer relies on a case decision which held that a quick reentry is acceptable, instead ofrelying on a warrant, waiver, or exigency, then the officer can expect to prevail at somemotions and lose at others.

Reentry to quench a continuing exigency is allowed. When officers entered a housebecause of their concern over the odor of an explosive chemical and were unable toquench it, a reentry with the personnel who could is appropriate. (See, People v.Stegman (1985) 164 Cal.App.3d 936.) Any appreciable delay before making the reentrywill be illegal. (See, People v. Ellers (1980) 108 Cal.App.3d 943.) In People v. Ngaue &Smith (1992) 8 Cal.App.4th 896, the officer who saw a firearm in plain sight after a hotpursuit entry was permitted to reenter some 15-20 minutes later to retrieve the weapon. Reentering after the defendant has been removed would also be illegal absent consentor an exigency. (People v. Dyke (1990) 224 Cal.App.3d 648.) Although a reentry maybe valid, a warrant or consent is necessary before a search may be conducted. (See,People v. Frazier (1977) 71 Cal.App.3d 690, which validated an entry in response to

screams and the plain sight viewing of a small quantity of heroin and marijuana, butsuppressed additional heroin and marijuana found upon a non-exigent reentry.)

Protective Sweeps Upon entry into a home for the purpose of executing a warrant or tomake an arrest, the officer is permitted to make a cursory search for other persons whocould present a danger to the officer or interfere with the lawful process. "A corollary ofthe plain sight rule...is that during a lawful search of premises for persons believed to behiding, police officers may seize contraband evidence in plain sight." (Maryland v. Buie(1990) 494 U.S. 325; People v. Block (1971) 6 Cal.3d 239.) The officer does not haveto have probable cause or even a reasonable suspicion to believe anyone else ispresent! (People v. Wilson (1997) 59 Cal.App.4th 1053.)

THE FIFTH STEP: LEGAL REQUIREMENTS FOR WARRANTLESS SEARCHES

Whenever an officer has made a warrantless intrusion, the courts ask:

1. Did the defendant exhibit a reasonable expectation of privacy? Thisexpectation must be one that "society is willing to recognize...as reasonable." (California v. Ciraolo (1986) 476 U.S. 207; Smith v. Maryland (1979) 442 U.S. 735, 740;People v. Berutko (1969) 71 Cal.2d 84, 93,fn 8.)

If the defendant did not exhibit a reasonable expectation of privacy, there must havebeen a waiver or forfeiture !

If the defendant did exhibit a reasonable expectation of privacy, there has to be anexigency to justify the warrantless search or seizure, then the Courts ask:

2. Was the officer's intrusion reasonable? (Katz v. United States (1967) 389U.S. 349; People v. Triggs (1973) 8 Cal.3d 844, 891.)

In all warrantless searches and seizures, the People have the burden ofproving that the police conduct was reasonable. The officer, therefore,must be prepared to tell the court what the officer believed and all thefacts upon which the belief was based. The courts balance thedefendant's expectation of privacy against the nature of the officer'sintrusion. It should be obvious, that the larger the governmental intrusion, the moreincriminatory the facts must be to justify it!

Examples Of Some Legal Warrantless Intrusions

DETENTIONS (Temporary seizures/car stops)

Definition: There is a detention when the circumstances would make a reasonableperson believe that he or she was not free to leave. (Michigan v. Chesternut (1988) 486U.S. 567, 573.) / Since judges will disagree about when this occurs, the officer maywant to rely on a test that the officer can control. That is, a detention occurs wheneveran individual's right to be let alone is temporarily disturbed for investigatory purposes. (see Terry v. Ohio (1968) 392 U.S. 1, 19, footnote 16.)

When the officer is justified in "detaining" a person, that person is not free to walk away. The officer will always know when a person is being bothered for investigatory purposes,therefore, the officer should be prepared to relate to the court, those facts whichprompted the officer to react.

Legal Requirement: A detention requires a showing of suspicious circumstances(reasonable suspicion). The legal test has been defined as "a particularized and objectivebasis for suspecting the particular person stopped of criminal activity." (see UnitedStates v. Cortez (1981) 449 U.S. 411, 417-418.) The facts must be such as wouldcause any reasonable police officer in a like position, drawing on the officer's training orexperience to suspect the same criminal activity and the same involvement by theperson in question." (In Re Tony C. (1978) 21 Cal.3d 888, 893; The circumstancesneed not be inconsistent with innocence. (United States v. Rodriquez (1992) 976 F.2d592.)

/ Suspicious circumstances (reasonable suspicion) can be restated in these easier tounderstand terms: The person appeared to be involved in some activity not totallyconsistent with innocent behavior! The seminal case on detentions illustrates this pointvery well. In Terry, an experienced officer, observed three men standing on a corner ina business area. Two of the men walked to a jewelry store, looked in, then up and downthe street, etc. After returning to the corner, the third man did the same. Upon returningthe officer legally detained and frisked all three. These men could have been involved ininnocent activity, but the officer was reasonable in believing they could have beenrobbers.

� An anonymous tip, with little more, will justify a detention. (see, Alabama v. White(1990) 496 U.S. 325.) Some things to be mindful of include the reputation of the area;the details of the tip; prior history of the suspect; flight when the officer approaches. Thefollowing anonymous tips have been approved: "A man is selling drugs in an apartmenthallway", and the responding officer sees a male crouched over in a corner of thehallway. (People v. Johnson (1991) 231 Cal.App.3d 1.) "Three males selling dope forma particular car" in an area known for drug sales, and the officers see the described carwith three occupants talking to pedestrians. (People v. Ramirez (1996) 41 Cal.App.3d1608.) "Drugs being sold from"...suspects flee from the apartment house known fordrug trafficking. (United States v. Lane (6th Cir. 1990) 909 F.2d 895; People v. Souza

(1994) 9 Cal.4th 224.) Information from a known informant does not have to becorroborated. (Adams v. Williams (1972) 407 U.S. 143, 146-147.)

Scope: A detention is merely a lesser form of an arrest and is justified by the need toinvestigate possible criminal activity. It is permissible to require the production ofidentification from one legally detained. (United States v. Sharpe (1985) 470 U.S. 675;People v. Long (1987) 231 Cal.App.3d 1.) Once the reason to investigate has beenresolved, the detention must cease. It is permissible to wait for an interpreting officerwhen necessary. (People v. Avalos (1996) 47 Cal.App.4th 1569.)

/ The officer has to be careful not to turn a detention into a defacto arrest by usingmore force or time than is necessary. (See, People v. Rivera (1992) 8 Cal.App.4th1000, which held that a burglary suspect who was bitten and held by a dog, was onlydetained.)

Field Interrogations : Suspicious circumstances are required before an officer can stopan individual and demand identification. (Brown v. Texas (1979) 443 U.S. 47, 51-52;People v. Rodriguez (1993) 21 Cal.App.4th 232.) The non-consensual photographing ofsuspected gang members is also a detention! (People v. Rodriguez (1993) 21Cal.App.4th 232.)

Traffic citations : The stopping of a vehicle to issue a traffic citation is considered adetention. (see Delaware v. Prouse (1979) 440 U.S. 648; People v. Superior Court(1970) 3 Cal.3d 807, 812.) If the stop was valid for the driver, it will also be valid forpassengers. (see, People v. Bell (1996) 43 Cal.App.4th 754, 761-762 and the federalcases cited.) An officer may not detain the driver, or passengers, for any longer thanreasonably necessary to deal with the offense. The officer cannot extend the detentionwhile waiting for a warrant check! (People v. McGaughran (1979) 25 Cal.3d 577, 587;Bell at 763.)

A traffic stop may be extended when the driver has no driver’s license, registration, andthere are out of state plates on the car. (People v. Dasilva (1989) 207 Cal.App.3d 43.)

It is permissible to order a traffic offender out of a vehicle for officer safety. (Pennsylvania v. Mimms (1977) 434 U.S. 106.)

It is permissible to make a driver stopped for a traffic violation keep his or her hands insight. (People v. Superior Court (1972) 7 Cal.3d 186, 206 fn. 13.)

It is permissible to run a warrant check and to ask questions unrelated to the traffic stop, as long as the detention for the traffic violation is not unreasonably prolonged. (i.e., 1minute is okay, see, People v. Brown (1998) 62 Cal.App.4th 493 and cases cited.)

It is permissible to stop a car to arrest a passenger of an outstanding warrant. (In reWilliam J. (1985) 171 Cal.App.3d 72.)

Passengers : It is permissible to have the occupants of a legally stopped vehicle exitfor officer safety. (see, Maryland v. Wilson (1997) 519 U.S. 408; See People v. Bell(1996) 43 Cal.App.4th 754, which discusses the California and federal cases dealingwith detention of passengers.) A passenger may be detained in order to verify his orher identification, as long as the vehicle was stopped for a violation. (People v. Grant(1990) 217 Cal.App.3d 1451, 1460.) A passenger may be further detained if the officerhas reason to believe that the passenger is involved in criminal activity. (People v.

Fischer (1995) 38 Cal.App.4th 338.) / The officer should be prepared to justifyanything beyond a minimal intrusion of a passenger, or risk losing any evidence foundas a result of the detention. (People v. Gonzales (1992) 7 Cal.App.4th 381.)

"Pretextual" Car Stops : An officer may follow a vehicle, wait for a traffic violation,then hope to see contraband in plain sight, or to smell contraband, or get a consent tosearch. Any resulting seizure will be constitutional!!! The United States Supreme Courtheld that it was permissible for undercover officers to stop a car for a traffic violation in ahigh drug area even though the stop would not have been made but for the officer'ssuspicions about dope. (Whren v. U.S. (1996) 517 U.S. 806.)

EVERY CONTACT IS NOT A DETENTION!!! / The officer should be able tocontrol any situation if the officer understands what detentions, consensualencounters, and mere contacts are. If an officer wants to talk to an individualabout criminal activity, and there are suspicious circumstances, the officer maydetain such person. This person is not free to leave! If there are no suspiciouscircumstances, then the officer may wait until they develop, or requestpermission to ask questions. BE PATIENT!!!

Consensual encounters : Stop & Talk - The following dialog by an officer was heldto create a consensual encounter in People v. Profit (1986) 183 Cal.App.3d 849, 856: "Iam a narcotics agent. I would like to talk to you a minute. You are not under arrest; youare free to leave and not speak to me if you don't want to." (see United States v. Erwin(9th Cir. 1986) 803 F.2d. 1505.) Requesting identification will not turn a consensualencounter into a detention, unless the request is coercive. (See People v. Lopez (1989)212 Cal.App.3d 289; People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227.)

Knock & Talk/Boarding Busses : It may also be permissible for an officer to go tosomeone's home and attempt to get permission to enter to talk about possible criminalactivity; or board a bus to ask passengers questions about possible criminal activity, orfor consent to search luggage. The language used by the United States Supreme Courtin a bus boarding case illustrates that the officer may be able to control the type ofcontact the officer has with any individual. The Court wrote, in Florida v. Bostick (1991)501 U.S. 429:

"No seizure occurs when police ask to examine the individual's identification, andrequest consent to search his or her luggage - so long as the officers do not convey amessage that compliance with their requests is required.... We remand so that theFlorida courts may evaluate the seizure question under the correct legal standard."

/ The officer is in the best position to evaluate the "seizure question". If it is adetention , the officer knows it is, and knows that it will have to be justified by a showingof suspicious circumstances. If, it is a consensual encounter, the officer knows it is, andknows that it will have to be justified in court by showing knowledge, understanding andvoluntariness. If neither, it may only be a mere contact.

Mere contact : A "mere contact" occurs when the officer is either not disturbing anindividual's right to be left alone, or the disturbance is not for investigatory purposes. Several examples of mere contacts by officers were suggested by Justice Gardner inBatts v. Superior Court (1972) 23 Cal.App.3d 435. These include: Knocking on a doorto borrow a ladder in order to get a cat out of a tree; awakening a citizen to deliver amessage of a death in the family; stopping a young man from throwing a frisbee on acrowded beach; stopping a pedestrian to warn him or her about entering aneighborhood where muggings are frequent; getting a dog owner out of bed to quiet thepet; stopping motorist to warn of adverse weather or road conditions. In each situation,the officer detected evidence of some crime.

The Batts case illustrates but a few of the types of contacts officers have with peoplewhich do not involve a bothering for investigatory purposes. Make sure the court ismade aware of the reason for the contact.

Chases: If a person runs when the officer approaches, and the officer chases,without catching, and the person doesn't yield if ordered to do so, and such persontosses some evidence into plain sight, it would only be a mere contact!!! (SeeCalifornia v. Hodari D (1991) 499 U.S. 621; and People v. Arangure (1991) 230Cal.App.3d 1302.)

Flight, the circumstances preceding the flight, a high crime area, the time of night, couldamount to probable cause. The officer should relate all the facts which caused theofficer to react... (see, People v. Souza (1994) 9 Cal.4th 224, and the federal casescited.)

PAT DOWNS (STOP AND FRISK)

Definition: A pat down (frisk) includes the touching of the outer clothing of a suspect forconcealed objects which might be used as instruments of assault. (Sibron v. New York(1968) 392 U.S. 40, 65.)

Legal requirement: A suspect who has been legally detained may be frisked if theofficer observes unusual conduct which leads the officer to reasonably conclude, in lightof that officer's experience ... that the person detained may be armed and presently

dangerous. (see Terry v. Ohio (1968) 392 U.S. 1, 23-30.) / An officer who details hisor her experience is reasonable in believing a drug seller might be armed. (People v.Lee (1987) 194 Cal.App.3d 975.) This test can be restated as: SuspiciousCircumstances ( reasonable suspicion ) + Fear.

Scope: Although the cases refer to a pat down as a limited search for weapons, theofficer is not permitted to put his or her hands into pockets, or under clothing; nor canthe officer open purses or attache cases. The officer is only permitted to touch, from theoutside. A frisk does not include opening closed containers! (see Sibron; People v.Valdez (1987) 196 Cal.App.3d 799.)

If an officer feels something unlike a knife or gun, the officer must be able to articulatefacts which reasonably support a belief that the thing felt like an object useable as aninstrument of assault. (People v. Mosher (1969) 1 Cal.3d 379, 394; see Terry v. Ohio(1968) 392 U.S. 1.) There is a case which justified the retrieval of a gun from a fannypack as a frisk, but the officer had already seen the outline of the gun which certainlyindicates probable cause! (People v. Ritter (1997) 54 Cal. App.4th 274.)

An officer may frisk a person whom the officer must remove from a place, such as afreeway, for officer safety. (People v. Tobin (1990) 219 Cal.App.3d 634.) If there is noduty to remove, the officer should request permission to frisk! (People v. Scott (1976)16 Cal.3d 242.)

Plain feel (tactile perceptions): An officer may seize contraband during a legal frisk forweapons when the officer feels an object whose contour or mass makes its identityimmediately apparent. "Knowledge gained by a police officer through the sense oftouch is as meaningful as knowledge gained through other senses." (People v. Chavers(1983) 33 Cal.3d 462, 471.) .The officer is not permitted to manipulate, squeeze, ormove the object to determine what it might be. But, if the officer has the expertise, andcan tell immediately upon touching the shape of the object that it is crack or any othercontrolled substance, the officer would have probable cause to make the arrest andconduct a search incidental to the arrest. (See, Minnesota v. Dickerson (1993) 508 U.S.366.)

/ The officer should relate all the circumstances, including his or her expertise, thecircumstances leading up to the touching, a description of what was actually felt (i.e.,textured, rubbery feeling the size and shape of a pea, bounced back to original shape,and why the officer thought it was a _______. (People v. Lee (1987) 194 Cal.App.3d975.) Another good example of how an officer can protect his or her decision, involveda routine traffic stop followed by a consent search which revealed a scale with the odorof methamphetamine, a beeper, a small plastic bag, and a lie by the driver. Thisinformation gave the officer probable cause to believe that a lump felt under the pant legwas methamphetamine. (People v. Dibbs (1995) 37 Cal.App.4th 832.) The followingitems were also legally seized by experienced officers in high narcotics areas, under theplain feel doctrine: syringe, People v. Autry (1991) 232 Cal.App.3d 365; two hard brickshaped packages containing cocaine, United States v. Pace (9th Cir. 1990) 893 F.2d1103.

� It is not enough to say that, based on the officer’s experience, film canisters, pillbottles, or aluminum foil, are used to hide a controlled substance. (People v. Valdez(1987) 196 Cal.App.3d 799; People v. Leib (1976) 16 Cal.3d 869, 872; Remersv.Superior Court (1970) 2 Cal.3d 659.) The officer should tell the court what preceded

the viewing or feeling. i.e., / An officer was justified in frisking an individual who was inan area known for drug activity and weapons, and seen talking to another male, thenremoving something from the wheel well of a nearby vehicle, and transferring anunidentified object to the other person for money. After momentarily losing sight of thesuspect, the officer saw him again at the same place, talking to a female. The officerdetained and frisked the suspect and felt a hard object which could have been a knife. When questioned about the hard object, the suspect seemed confused. The officeropened the pocket, observed a metal "hide a key case ", which the officer removed andopened. The seizure of heroin and cocaine inside the key box was legal! (People v.Limon (1993) 17 Cal.App.4th 524.)

Officer's opinion: "...the detaining officer must have a particularized and objectivebasis for suspecting the person stopped of criminal activity... The process does not dealwith hard certainties, but with probabilities. Long before the law of probabilities wasarticulated as such, practical people formulated certain common-sense conclusionsabout human behavior; jurors as fact finders are permitted to do the same--and so arelaw enforcement officers.... the evidence thus collected must be seen and weighed notin terms of library analysis by scholars, but as understood by those versed in the field oflaw enforcement." (United States v. Cortez (1981) 449 U.S. 411.)

SEARCHES INCIDENTAL TO A LAWFUL ARREST

Legal requirement: A lawful arrest can only be made upon probable cause. Probablecause to arrest is: That state of facts which would lead a man of ordinary care andprudence to believe and conscientiously entertain an honest and strong suspicion thatthe person is guilty of a crime. (see United States v. Cortez (1981) 449 U.S. 411, 418.) This definition has been modified to allow court's to place more weight on the opinionsof experienced police officers. (see United States v. Brignoni-Ponce (1975) 422 U.S.873, 885; People v. Medina (1972) 7 Cal.3d 30, 37.) It is not necessary for the officer tohave identified a particular crime. (see Cortez, at 418; People v. Stokes (1990) 224Cal.App.3d 715.) If there is probable cause for one crime, but the suspect is arrestedfor another offense without probable cause, the arrest is still valid. (People v. Rodriguez(1997) 53 Cal.App.4th 1250; People v.Lewis (1980) 109 Cal.App.3d 599.) An officer ispermitted to make a search or seizure when directed by another officer who hasprobable cause. (People v. Ramirez (1997) 59 Cal.App.4th 1548.)

Problems with the articulation of probable cause : An officer almost always knowswhen there is sufficient evidence to make an arrest or to conduct a search. Theproblem is not with the officer having probable cause. The problem is with the officer'sability to articulate probable cause. Because of our intelligence and literacy, we havedeveloped a habit of speaking, writing and even thinking in conclusionary terms. Probable cause, however, is based on perceptions. When an officer is told that anindividual just sold a 20 of crack, the officer assumes that one individual gave a small,pebble sized and shaped, off-white or creme colored object, to someone else inexchange for $20. Don’t assume! Debrief the person giving the information. When theofficer is percipient, the officer should repeat in court exactly what was seen, heard, felt,smelled or tasted. Remember, probable cause is based on facts. The officer has tostate what was perceived, who perceived it, and why an informant should be believed.

Information from an anonymous informant is insufficient. (see, Aguilar v. Texas (1964)378 U.S. 108, 114-115; People v. Hill (1974) 12 Cal.3d 731, 760-761.) Information froman anonymous informant coupled with the officer's observation of traffic, in and out ofdefendant's residence; a prior related arrest; and the officer's opinion...would besufficient. (People v. Kershaw (1983) 147 Cal.App.3d 750, 758-759.)

Scope of searches incidental to a lawful arrest: The scope of any search incidental toan arrest depends on the circumstances of the arrest. The exigencies or absencethereof, will dictate the officer's proper response. "When an arrest is made, it isreasonable for the arresting officer to search the person arrested in order to remove anyweapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize anyevidence on the arrestee's person in order to prevent its concealment or destruction... There is ample justification, therefore, for a search of the arrestee’s person and thearea...from which he might gain possession of a weapon or destructible evidence" (Chimel v. California (1969) 395 U.S. 752, 763.)

/ The Chimel decision was based on logic and common sense. It should be relativelyeasy to follow. i.e., In drug cases or any case involving potential danger to the officer, itwould be reasonable to look under a bed the arrestee was sitting on (see, dicta inPeople v. King (1971) 5 Cal.3d 458, 463) or a desk the defendant was sitting at (UnitedStates v. Tarazon (9th Cir. 1993) 989 F.2d 1045.) A person's jacket, in close proximity,is an extension of the body. (People v. Edwards (1971) 22 Cal.App.3d 598.) Contemporaneous searches of purses, shopping bags, wallets, suitcases, etc., if inclose proximity to the arrestee will be upheld. (see, People v. Flores (1979) 100Cal.App.3d 221; United States v. Andersson (9th Cir. 1987) 813 F.2d 1450.) It is alsopermissible to seize the numbers on a pager taken from a drug seller because thenumbers will be erased. (United States v. Meriwether (6th Cir. 1990) 917 F.2d 955.)

PRE-TRANSPORTATION "SEARCHES" OF SUSPECTS BEING TAKEN TO JAIL

The United States Supreme Court by a 5-4 vote, has interpreted the 4th Amendment aspermitting a complete search (see body cavity searches, below) of any person who is beingtaken into custody. United States v. Robinson (1973) 414 U.S. 218, and Gustafson v.Florida (1973) 414 U.S. 265, involved searches of cigarette packages containing heroinand marijuana, respectively. The arrests were for driving with a revoked license anddriving without a driver's licenses in possession. Justice Powell, in his concurringopinion, had the correct analysis. "I believe that an individual lawfully subjected to acustodial arrest retains no significant Fourth Amendment interest in the privacy of hisperson. (Robinson and Gustafson at page 260.)

This is a right answer, based on correct reasoning! In other words, the defendantsFORFEITED any expectation of privacy.

Moving Suspects for a Possible Identification: A suspect may be taken to the sceneof a crime for a possible in-field identification when the officer had probable cause toarrest, has consent, or there is an unusual circumstance. (In re Rafael V. (1982) 132Cal.App.3d 977.) An unusual circumstance would include a hostile crowd...,incapacitated witness..., or any situation where it would be less intrusive to move thesuspect. (See, People v. Harris (1975) 15 Cal.3d 384.)

BODILY INTRUSIONS

Blood Withdrawal is permitted incidental to a valid arrest when there is probablecause to believe that admissible evidence will be in the blood; the withdrawal isperformed in a medically approved manner; and there is reason to believe theevidentiary value of the blood will diminish before a warrant can be procured (i.e., anexigency!). (see, Schmerber v. California (1966) 384 U.S. 757.) Absent a sufficientneed, in D.U.I. cases, the officer should not take blood if a urine test was already given. (People v. Fiscalini (1991) 228 Cal.App.3d 1639.)

Body Cavity Searches, Visual (non-jail)/due process of law: The United StatesSupreme Court, in a case involving the search of a cigarette package found on theperson of a traffic offender who was taken into custody for driving on a revoked license,stated: "...we hold that in the case of a lawful custodial arrest a full search of theperson... is also a reasonable search..." (United States v. Robinson (1973) 414 U.S.218.) The officer in Robinson, however, did not conduct any type of body cavity search,so the quoted language cannot stand for the proposition that one would be authorizedas incidental to any type of arrest. In fact, the court in Robinson went on to point outthat some searches could violate the Due Process Clause of the FourteenthAmendment, resulting in the exclusion of evidence. There is no fixed test to determinewhat violates due process. Due process is vaguely defined as: "those cannons ofdecency and fairness which express the notions of English-speaking peoples eventoward those charged with the most heinous offenses; due process is a summarizedconstitutional guarantee of respect those personal immunities which...are so deeprooted in the traditions and conscience of our people as to be ranked as fundamental, orare implicit in the concept of ordered liberty." (Rochin v. California (1952) 342 U.S. 165,quoting older cases.) / An officer can use his or her intelligence and a sense of fairness to make a correctdecision. For example, an officer may not even think of conducting a strip searchincidental to a low level driving offense, but might when the circumstances indicate thata suspect is concealing a weapon or narcotics. In People v. Wade (1989) 208Cal.App.3d 304, an officer stopped a car for expired registration. Before the stop, theofficer noticed that the passenger was making movements with his arms below thewaist. This individual had the classic signs of being under the influence of heroin. Theofficer conducted a strip search at the police station and when the individual bent over, aballoon fell out. The evidence was admissible.

� There is, however, another problem. California has a statute covering strip searchesof pre-arraignment detainees arrested for misdemeanors. (i.e., no strip search is allowedwithout probable cause and written approval by the supervising officer. A physical search requires awarrant and other conditions.) The court in Wade, said the officer was in violation of PenalCode Section 4030. A violation could be filed as a misdemeanor; there are liquidateddamages of $1000; possible punitive damages; and the officer would also be liable forattorney fees!

Body Cavity Searches, Physical (non-jail)/due process of law: The general rule isthat absent consent or an exigency, a carefully drawn search warrant is required beforea valid bodily intrusion may be made. (See, Schmerber v. California (1966) 384 U.S.757, 770.) Absent an imminent life threatening situation, warrantless intrusions such asthe use of an emetic or a stomach pump to retrieve swallowed narcotics will be invalid. (Rochin v. California (1952) 342 U.S. 165; People v. Bracomonte (1975) 15 Cal. 3d 394,401.) Schmerber did not rule out warrantless invasions of the body if done by medicalpersonal using proper medical procedures and if done without brutality which shocks theconscience. See People v. Jones (1971) 20 Cal.App.3d 201, for an example of a validwarrantless, life-saving stomach lavage of a suspect who may have swallowed a fataldose of barbituric acid.

Warrant for a body cavity search: / It is recommended that the officer talk to aphysician prior to making application for a warrant. The officer should discuss thefollowing with a physician: potential problems for the individual if the contraband is, or isnot, removed in a medically approved manner; other methods of retrieval, includingnatural causes; the positive and negative aspects of each method; the doctor'srecommended procedure and the reasons for it. The warrant should specify the exact nature of the medical procedure to be authorized. "A search for the person of __________(i.e., John or Jane Doper)" will not validate aviewing of the alimentary canal by x-ray, whereas, "search by X-Ray of John Doper'salimentary canal", would. If there is going to be an entry into a body cavity, it would bepreferable to specify the type of procedure and instruments the doctor intends to utilize. (See, Jauregui v. Superior Court (1986) 179 Cal.App.3d 1160.)

Besides having probable cause to believe that a body search will reveal evidence of acrime, the magistrate must apply a balancing test to the following:

1. The reliability of the method to be employed. 2. The seriousness of the underlying criminal offense.3. The strength of the (probable) cause.4. The materiality of the evidence sought. (i.e., is there other available evidence...)5. Lesser intrusive alternatives. A crucial factor is the extent to which the procedure may

threaten the safety or health of the individual. 6 "Another factor is the extent of intrusion upon the individual’s dignitary interest in

personal privacy and bodily integrity."

� A court ordered prostate massage to retrieve evidence in a sex case was held invalidin People v. Scott (1978) 21 Cal. 3d 284, 293. Winston v. Lee (1985) 470 U.S. 753,759, disallowed the potentially dangerous removal of a bullet from a robber.

Body Cavity Searches, Visual (jail/due process): See the discussion above on pre-arraignment misdemeanants. As a general rule, strip searches and visual cavitysearches are permitted on inmates. Although the cases say that these searches may bemade on less than probable cause, the courts actually use an Administrative Searchanalysis. (i.e., The need for the search is balanced against the invasion of personalrights which the search entails. courts must consider the scope of the particularintrusion, the manner in which it is conducted, the justification for initiating it, and theplace in which it is conducted. People v. Pifer (1989) 216 Cal.App.3d 956, 959-960quoting Bell v. Woolfish (1979) 441 U.S. 520, 559.)

Body Cavity Searches, Physical (jail/due process): Although a warrant is not required,the same criteria used for the issuance of a warrant are considered in determining thevalidity of a body cavity search on an inmate. (i.e., reliability of the method to be employed;seriousness of the underlying criminal offense; strength of the cause; materiality; lesser intrusivealternatives; extent of intrusion upon the individual’s dignitary interest in personal privacy and bodilyintegrity.) California Administrative Code Title 15, §3287 (b), requires that body cavitysearches be conducted in a medical setting, supervised by a physician. Physicalintrusions must be performed by a physician. After receiving tips that marijuana wasbeing brought into an Honor Farm, the medical staff was directed to perform rectalexaminations of all inmates returning from work furlough. Marijuana was recoveredfrom a returning inmate and the procedure was approved in People v. West (1985) 170Cal.App.3d 326.

Preventing suspects from swallowing evidence/due process: Reaching into amouth to retrieve evidence is permitted, because "the mouth is not a sacred orifice." (People v. Lara (1980) 108 Cal.App.3d 237, citing Bracamonte.) "Attempts to swallowevidence can be prevented as long as excessive force is not employed. (People v.Johnson (1991) 231 Cal.App.3d 1; People v. Bracomonte (1975) 15 Cal.3d 394, 405;see People v. Sanders (1969) 268 Cal.App.2d 802, and cases cited.) Choking (i.e.,prevent breathing or obstruct the blood supply to the head) violates due process, without any needto inquire into the precise degree of choking involved. (People v. Jones (1989) 209Cal.App.3d 725, 730.) Grabbing, squeezing, or clenching the lower jaw to preventswallowing and applying pressure to the back of the neck was not excessive in People v.Johnson (1991) 231 Cal.App.3d 1. The thumb on one side of throat with the rest of thefingers on the other side was not a choke!!! (People v. Cappella (1989) 208 Cal.App.3d1331, 1336, citing federal and other state decisions.)

Telling a suspect to "spit it out or I’ll blow your head off," while holding a gun to his or herhead was found excessive in People v. Allen (1978) 86 Cal.App.3d 948, but "if you bitemy finger, I’m going to bust your head open," was not excessive based on an inmatesstubborn resistence. (People v. Lara (1980) 108 Cal.App.3d 237.)

AUTOMOBILE SEARCHES (CARS )

Definition: There are many labels used to describe legal warrantless car searches. The

labels are misleading. / Officers would be wise to forget the labels and rely on asearch warrant absent an exigency (mobility!) or waiver.

Legal Requirement: The general rule is that cars can be searched without a warrantwhen the officer has probable cause to believe the car contains contraband, stolenproperty, or evidence of a crime and there are exigent circumstances. "If a car is readilymobile and probable cause exists to believe it contains contraband, the FourthAmendment thus, permits police to search the vehicle without more." (Pennsylvania v.Labron & Kilgore (1996) 518 U.S. 938; see Chambers v. Maroney (1970) 399 U.S. 43,48.) The car only has to be apparently mobile! (United States v. Hatley (9th Cir. 1993)15 F.3d 856.)

Houseboats on a lake and motor homes on a public street are treated as automobiles.(United States v. Albers, et al (9th Cir. 1998) 136 F.3d 670; California v. Carney (1985)471 U.S. 386, 390-392.)

Scope - Probable Cause Searches of cars : An officer may search any part of avehicle, including closed containers, wherein the officer might reasonably expect to findthose items the officer has probable cause to believe are present. (United States v.Ross (1982), 456 U.S. 798, 825; California v. Acevedo (1991) 500 U.S. 565.) It would beunreasonable to look in a "snuff case" for an open container of alcohol. (People v.Chapman (1990) 224 Cal.App.3d 253.)

Delayed probable cause searches of a vehicle which have been taken into policecustody, are permitted. (See Michigan v. Thomas (1982), 458 U.S. 259; People v.Laursen (1972) 8 Cal.3d 192, 202.) Delayed probable cause searches of packagesremoved from a vehicle are also permitted. (United States v. Johns (1985) 469 U.S.478.)

Scope - Incidental to Arrest: The United States Supreme Court permits a search of theentire passenger compartment of a car, including containers, glove compartments,consoles, luggage or other receptacle located in the passenger area incidental to acustodial arrest of the driver. (New York v. Belton (1981) 453 U.S. 454.) Passengers:The scope of such a search does not extend to passengers, absent probable cause.... (see, People v. Temple (1995) 36 Cal.App.4th 1219.) It is permissible to orderpassengers out of the vehicle for officer safety. (People v. Fischer (1995) 38Cal.App.4th 338.) The search may include articles left in the vehicle by a passenger. (People v. Prance (1991) 226 Cal.App.3d 1525; United States v. Moorehead (9th Cir.1995) 57 F.3d 875.) The decision in Belton, which was an expansion of Chimel, hasbeen interpreted to include vehicle searches incidental to the arrest of a person whorecently occupied the vehicle and was arrested in close proximity to the vehicle. (People v. Boissard (1992) 5 Cal.App.4th 972; People v. Stoffle (1991) 1 Cal.App.4th1671.)

/ In most cases the officer will have probable cause to search. The officer is welladvised to testify about it when it exists. Probable cause searches are not as restrictiveas incidental searches and is a type of search which will be readily accepted by alljudges.

Scope - Automobile Inventories: The United States Supreme Court distinguishes policeconduct designed to uncover criminal activity from conduct unrelated to criminalinvestigation. If a vehicle is lawfully impounded, and if there exists standardizeddepartmental criteria for the officer to follow, a complete inventory, including thecontents of closed containers, can be lawfully made under the 4th Amendment. (Floridav. Wells (1990) 495 U.S. 1.) The policy may not have to be in writing (People v. Benites(1992) 9 Cal.App.4th 367.) An officer was allowed to inventory a tote bag removed froma vehicle for the arrested person before the vehicle was inventoried. (People v. Salcero(1992) 6 Cal.App.4th 720.) But a search of trousers left in a vehicle was ruled invalid aspart of an inventory in United States v. Ramos-Osequera (9th Cir. 1997) 120 F.3d 1028.

The majority of justices believe that the inventory "serves to protect an owner’sproperty... and insures against claims of lost, stolen, or vandalized property..." (Coloradov. Bertine (1987) 479 U.S. 367; South Dakota v. Opperman (1976) 428 U.S. 364, 375-376; People v. Scigliano (1987) 196 Cal.App.3d 26.) The label "administrative" to justifyimpound searches is troubling. An inventory will not prevent claims of lost... propertynor protect the property. A better analysis is to ask: Does a person have a reasonableexpectation of privacy in the contents of an automobile lawfully impounded by thepolice? The average citizen must believe, if his or her car is removed from a highway bythe police, that its contents will be inventoried. That is an example of a forfeiture.

� The inventory cannot be a pretext for an investigatory search! (See People v. Aguilar(1991) 228 Cal.App.3d 1049.) If the officer has probable cause, he or she shouldarticulate it!

Community Caretaking Search : The officer may be able to search a disabled vehicleto retrieve a weapon for public safety. (Cady v. Dombrowski (1973) 413 U.S. 433.) Labels are misleading. The officer should always explain the nature of the exigency! The non-consensual entry into a house to investigate a possible burglary, one hour afterthe "suspects" left, was not permitted in United States v. Ronald (9th Cir. 1993) 991 F.2d529.

Roadblocks - Sobriety Checkpoints : When a driver of an automobile is directed toslow down and stop at a police generated checkpoint, that driver has been seized. (Michigan State Police v. Sitz (1990) 496 U.S. 444.) Every unwanted contact betweenan officer and an individual is not necessarily unreasonable, nor does it have to becalled a detention. It is a mistake to use the words, ‘detention’ and ‘seizure’interchangeable. These words are not synonymous. We should recognize that alldetentions are seizures, but all seizures are not detentions. They could, for example,qualify as consensual encounters or mere contacts!

The current law-administrative : The United States, California and other StateSupreme Courts have held that an administrative seizure by police does not requireindividualized suspicion. (See, Sitz, supra; Ingersoll v. Palmer (1987) 43 Cal.3d 1321,1330; Christopher v. State (1991) 202 Ga App 41; People v. Scott (1984) 483 NYS 2d649. "...searches conducted as part of a general regulatory scheme in furtherance of anadministrative purpose, rather than as part of a criminal investigation to secure evidenceof crime, may be permissible under the Fourth Amendment though not supported by ashowing of probable cause directed to a particular place or person to be searched." (People v. Hyde (1974) 12 Cal.3d 158, 165; United States v. Davis (9th Cir.1973) 482F.2d 893, 908)

A detention does require individualized suspicion!

Administrative searches are gauged by the three prong balancing test suggested inBrown v. Texas (1979) 443 U.S. 47, in lieu of the individualized suspicion test articulatedin Terry. Most of the checkpoint cases indicate that the primary purpose for the stopswas not to discover evidence of crime or to arrest drunk drivers. The checkpoints wereutilized to promote public safety by deterring people who were going to drink fromdriving after drinking. The problem is that Brown was not an administrative search caseand it did not involve a checkpoint. The officer in Brown saw two men in an alley. Thetwo individuals walked away in opposite directions when the officer approached. TheCourt in Brown held that requiring a pedestrian to identify himself to an officer withoutindividualized suspicion was in violation of the Fourth Amendment.

The Court in Brown, however, did discuss two car stop cases. One involved an illegalrandom stop of a vehicle to check for license and registration. (Delaware v. Prouse(1979) 440 U.S. 648.) The Supreme Court suggested that checkpoints could beconstitutional if the state developed methods for spot checks that involve less intrusionor that do not involve the unconstrained exercise of discretion. (Prouse at 663.) Thesecond case, United States v. Brigoni-Ponce (1975) 422 .S. 873, involved an illegalrandom stop by the border patrol checking for aliens. Neither Brown, Prouse, norBrigoni-Ponce suggested guidelines for setting up a constitutional checkpoint!

The constitutional reasonableness of an administrative seizure (checkpoint) isdetermined by weighing the gravity of the public interest and the degree to which theprogram advances that concern against the intrusiveness of the interference withindividual liberty. (See, Brown v. Texas (1979) 443 U.S. 47, 50-51.)

Suggested sobriety checkpoint procedures: The department should consider usingguidelines similar to those used by the officers in Ingersoll when setting up a sobrietycheckpoint. Most courts will find the stop to be a valid administrative stop. If a judgebelieved the stop was for the purpose of discovering evidence of a crime, i.e. executive,and if the procedures used by the Burlingame Police Department in Ingersoll werefollowed, the court should find the stop to have been consensual, or might evenconclude that a driver forfeited any right to complain about the stop! The guidelinesinclude:

The decision to set up a checkpoint was made by supervisory personnel and the officers working thecheckpoint had no discretion as to which cars were to be stopped! (Note similarity to reasons forwarrant requirement!)

There was advance publicity of the roadblock.

The checkpoint was highly visible.

The location selected was safe for motorists to stop in.

The area had a relatively high incidence of alcohol related accidents or arrests.

An "escape" route was established, and cars using this route could not be stopped absent evidence ofpossible criminal activity.

There was a neutral formula for stopping vehicles.

The delay to the motorists was minimized.

It can be reasoned that because of advanced publicity and well lit road signs placed wellahead of the checkpoint, any driver who approached the checkpoint impliedly consentedto being stopped. Advanced publicity is not necessarily required to have aconstitutionally permissible checkpoint!(See, People v. Banks (1993) 6 Cal.4th 926, 935.)

ADMINISTRATIVE SEARCHES have also be approved in the following instances:

Agricultural checkpoints : The quarantine officer may stop motorists at inspectionstations and request to look into the trunk. Plant material may be removed for furtherinspection. (People v. Dickenson (1980) 104 Cal.App.3d 505; United States v. Shafer(9th Cir. 1972) 461 F.2d 856.) If narcotics are discovered during a lawful inspection, theywould be admissible. (People v. Hampton (1981) 115 Cal.App.3d 515.)

Airplane boarding searches of passengers for weapons to deter highjacking. Peoplev. Hyde (1974) 12 Cal.3d 158, 165. In a case where a passenger caused the metaldetector to react, the security officer then felt a heavy object, believing it to be a gun. Achase ensued and a peace officer caught the individual, lifted the shirt and saw a brickshaped object wrapped in aluminum strapped to the chest. The seizure wasreasonable. (People v. Coston (1990) 221 Cal.App.3d 898.) An airline employeenotified the San Diego police working the airport detail that the x-ray of a passenger’scarry-on luggage revealed a large sum of money. The luggage was detained for 2hours at the San Francisco airport waiting for a dog to be available. The delay was toolong (United States v. Morgan (9th Cir. 1991) 16 F.3d 651.)

Airport boarding searches are only permitted to discover weapons and explosives. They cannot be manipulated into general searches for narcotics or money. (UnitedStates v. $19,910 (9th Cir.1991) 16 F.3d 1051; watch People v. Santana (4/23/98)___Cal.App.4th ___, which permitted a squeezing of luggage to smell the expelled air.) The Santana court used a forfeiture analysis, but other courts may disagree.

Drug courier profile stops are not administrative! / Explain why the stop wasmade: i.e., traveler paid for an airline ticket with $20 bills; a round trip ticket was to asource city; the traveler used an alias; no luggage was checked by the traveler; (a shortstay in the source city); the traveler appeared nervous at the airport, etc. As long as thetraveler’s conduct is consistent with that of persons who have been apprehendedtransporting drugs, the officer would be reasonable in detaining and questioning suchperson. (See, United States v. Sokolow (1989) 490 U.S. 1, 9-10.)

Border (Immigration) checkpoints. (See, 8 U.S.C. 1357; 19 U.S.C. §482; §1565)"Routine" searches and seizures are permitted at the international border in order toregulate the collection of duties and to prevent the introduction of contraband into thecountry, without cause or a warrant. (United States v. Ramsey (1977) 431 U.S. 606,616-617; United States v. Montoya de Hernandez (1985) 473 U.S. 531.) The degree ofinvasiveness or intrusiveness associated with any particular type f search determineswhether or not that search qualifies as routine.

Although Courts have approved as routine, intrusions such as: pat downs, havingsuspects drop their pants or raise their skirts; searches of baggage and outer clothing(Braks at 513-514); finding of heroin within the soles of tennis shoes (see United Statesv. Ramos-Saenz (9th Cir. 1994) 36 F. 3d 59); searches of wallets, purses, and pockets,(Henderson v. United States (1967) 390 F.2d 805, some judges may require more. There generally is a reason which caused the officer to do more than usual, so why notexplain what it was!

Envelopes ( mail ): Envelopes may be opened when there is reason to believe thatthe envelope contains more than correspondence. (United States v. Ramsey (1977)431 U.S. 606.) Sealed letters cannot be read without a search warrant. (Ramsey, 19CFR §145.3) Custom officers can search international mail at will. (United States v. Ani(9th Cir.1998) ___ F.3d ___.)

Extended detentions for monitored bowel movements or x-rays. A reasonablesuspicion that the suspect is an alimentary canal smuggler (balloon swallower) isrequired to justify an extended detention. Customs agents are entitled to ensure thatthe suspect is not introducing a harmful agent into this country. A delay of 16 hours or 6days for a monitored bowel movement may be reasonable. (United States v. Montoyade Hernandez (1985) 473 U.S. 531; United States v. Chukwubike (1992) 956 F.2d 209.)

Strip searches: A reasonable suspicion that the individual is concealing somethingbeneath their clothing is required. (United States v. Avila-Rodriguez (9th Cir. 1996) 74F.3d 1246.)

Body Cavity Searches/Monitored Bowel Movements. A reasonable suspicionthat the individual has secreted contraband in a body cavity or has swallowedcontraband is required. The finding of a lubricant; anti-laxative; feeling a full, firmstomach; refusing to eat or drink; discomfort; 2 pair of underpants with a paper towel inthe crotch area; lies and the typical profile data are examples of what would provide anexperienced officer with reasonable suspicion. (See, United States v. Gonzalez-Rincon(9th Cir. 1994) 36 F.3d 859.) Common sense and due process tell us that the physicalremoval of an object from a bodily cavity other than the mouth should be performed byqualified medical personnel.

Functional Equivalents of the Border are treated the same as border searches. (United States v. Martinez-Fuerte (1976) 428 U.S. 543.) A functional equivalent couldinclude airports (any place a plane coming from another country lands); established stations nearthe border; a point marking the confluence of two or more roads that extend from theborder. (See, Almeida-Sanchez v. United States (1973) 413 U.S. 266, 273; UnitedStates v. Moore (1980) 638 F.2d 1171.) Vessels coming from international waters intoour territorial waters are also subject to inspections similar to those at vehicularcheckpoints away from the border. (See, United States v. Villamonte-Marquez (1983)462 U.S. 579; United States v. Dobson (9th Cir. 1986) 781 F.2d 1374.)

Extended Border Searches : (i.e., reasonable certainty that any contraband found ina vehicle was in the vehicle when it crossed the border. United States v. Espericueta-Reyes (9th Cir. 1980) 631 F.2d 616.) The officer must have a reasonable suspicion thatthe suspect was involved in criminal activity. There must also be a reasonable certaintythat any contraband discovered was in the possession of the suspect or in the vehicle atthe time it crossed the border. (United States v. Fleischauer (9th Cir. 1993) 8 F.3d 31.)

Exit Searches: The border search exception to the Fourth Amendment applies topersons leaving the country. (United States v. Nates (9th Cir. 1987) 831 F.2d 860.) Thestatute, 19 U.S.C 482, states that reasonable cause to suspect...is required before anytrunk or envelope may be searched. The cases require a reasonable suspicion!

Permanent Immigration Checkpoints: A stop at a permanent immigrationcheckpoint is constitutional "so long as the scope of the detention is limited to a few briefquestions about immigration, the production of immigration documents, and a visualinspection of the vehicle...limited to what can be seen without a search.... Arrests orsearches at immigration checkpoints must be justified by either probable cause orconsent." (See, United States v. Martinez-Fuerte (1976) 428 U.S. 543, 556-558, 567;United States v. Robles (9th Cir. 1992) 964 F.2d 882.)

Secondary Inspection Points: No cause is required to refer an individual to asecondary checkpoint, but probable cause or consent will be required for a search. (United States v. Brigoni-Ponce (1975) 422 U.S. 873, 882.)

Temporary Immigration Checkpoints: It is permissible to operate temporaryimmigration checkpoints. (United States v. Hernandez (9th Cir. 1984) 739 F.2d 484.)

Dual Purpose Checkpoints: As long as the officers are looking for illegal aliens,they may also look for drugs, even at a temporary checkpoint. (United States v. Soto-Camacho (9th Cir. 1995) 58 F.3d 408.)

Roving Patrols: Reasonable suspicion that the vehicle contains illegal aliens isrequired. Probable cause or consent is needed to justify a search. (United States v.Ortiz (1975) 422 U.S. 891; People v. Valenzuela (1994) 28 Cal.App.4th 817.) Characteristics of the area; proximity to the border; patterns of traffic and time of day;previous alien or drug smuggling in the area; driver’s behavior, including evasiveness;behavior of passengers; model and appearance of the vehicle; officer’s experience, areexamples of reasonable suspicion. (United States v. Brigoni-Ponce (1975) 422 U.S.873, 884-885.) Apparent efforts to avoid a checkpoint, combined with other factors,constitute reasonable suspicion. (United States v. Sanchez (9th Cir. 1994) 23 F.3d1488.)

Driver license checkpoints , based on the dicta in Delaware v. Prouse (1979) 440U.S. 648, that 'non-discretionary' stopping of all vehicles for reasons such as license,registration, or equipment checks may be permissible. (People v. Alvarez (1996) 14Cal.4th 155.) Random stops are not permitted. (See, People v. Kenway (1990) 219Cal.App.3d 441.)

Fish & Game checkpoints . Hunting is a highly regulated activity. In People v.Perez (1996) 51 Cal.App.4th 1168, the court held that it was reasonable for anagriculture inspector to ask the occupants of the cars stopped at their checkpoint if theywere hunting. All the hunters were sent to the secondary checkpoint set up by Fish &Game wardens.

Sobriety checkpoints to prevent accidents caused by drunken drivers, MichiganState Police v. Sitz (1990) 496 U.S. 444.

Vehicle safety checkpoints People v. May (1977) 76 Cal.App.3d 543. � Theseroadblocks can not be a "pretext whereby evidence of narcotics violations might beuncovered in plain view in the course of a check for drivers licenses." (Texas v. Brown(1983) 460 U.S. 730, 739.) Note: This is a different Brown case than the one relied onfor administrative DUI checkpoints!. Texas v. Brown did involve a vehicle equipmentcheckpoint!

Administrative searches of businesses : The United States Supreme Court allowsadministrative searches of business enterprises operating within certain pervasivelyregulated industries, when the searches are to further the regulatory scheme, and theregulatory statute must perform two basic functions of a warrant. (i.e., advise the ownerof the commercial premises that the search is being made pursuant to the law and has aproperly defined scope, and it must limit the discretion of the inspecting officers. See,New York v. Burger (1987) 482 U.S. 691, 702-703.)

� If the primary objective of the search is to gather evidence of criminal activity, awarrant must be obtained. (Michigan v. Clifford (1984) 464 U.S. 287, 294; Michigan v.Tyler (1978) 436 U.S. 499.)

Auto repair shops (People v. Grey (1972) 23 Cal.App.3d 456; Methamphetamine foundby officers working auto thefts was admissible in People v. Calvert (1993) 18 Cal.App.4th 1820; §2805 V.C.).)

Bars: ABC agents were reasonable in inspecting a bar where drugs were being sold.(People v. Paulson (1989) 216 Cal.App.3d 1480.) Bar checks by police forminors...(People v. Costillo (1992) 7 Cal.App.4th 836.)

Firearm dealers: United States v. Biswell (1972) 406 U.S. 311, 316.

Health care providers: Miller v. Obledo (1978) 79 Cal.App.3d 714.

Junkyards : New York v. Burger (1987) 482 U.S. 691.

Liquor dealers: Colonnade Corp. v. United States (1970) 397 U.S. 72; People v.Lisner (1967) 249 Cal.App.2d 637.

Message parlors: Kim v. Dolch (1985) 173 Cal.App.3d 736.

Nursing homes: People v. Firstenberg (1979) 92 Cal.App. 3d 570.

Pawn shops: United States v. Biswell (1972) 406 U.S. 311. An officer can seize stolenproperty from a pawn broker with a receipt. (Christians v. Chester (1980) 218Cal.App.3d 273.)

Administrative searches of residences : Non-exigent, non-consensual inspection of aprivate residence for building code violations requires an administrative warrant. Camara v. Municipal Court (1967) 387 U.S. 523; Marijuana was suppressed when abuilding inspector failed to comply with the requirements relating to forcible entries setout in section 1822.56 of the Civil Code.

WAIVERS

Consent searches : The 4th Amendment protects people from unwarrantedgovernmental intrusions into the "privacies of life" but that right can be waived; as longas the waiver is knowing, understanding, and voluntary. (See Schneckloth v.Bustamonte (1973) 412 U.S. 218; Bumper v. North Carolina (1968) 391 U.S. 543, 548;People v. Shelton (1965) 60 Cal.2d 740.) See People v. Avalos (1996) 47 Cal.App. 4th1569, which held that a consent to search a truck obtained through subterfuge wasvalid!

/ The scope of the search may be limited by the words used by the officer or the wordsof assent uttered by the individual. When the officer tells a driver that he suspects hemay be involved with narcotics, and the driver consents to a search of the car, theconsent includes everything where the officer could reasonably expect to find dope,including closed containers. (Florida v. Jimeno (1991) 500 U.S. 248.) If a car is legallystopped, and the officer sees evidence of dope, and the passenger consents to a searchof his or her baggage which is in the trunk of the car, the officer can use a dog to sniffthe baggage without any further consent. (See, People v. Bell (1996) 43 Cal.App.4th754, 769, and the federal cases cited.)

If the person giving consent, is being detained or is under arrest, the officer has to beprepared to articulate those facts justifying the detention or arrest. (See People v.Lawler (1973) 9 Cal.3d 156, 163.) The officer does not have to inform a lawfullydetained suspect the he or she is free to go. (Ohio v. Robinette (1996) 519 U.S. 33.)

Third Party Consents : The more difficult situations involve consents by someone otherthan the suspect being investigated. The test for a consent given by a third partyinvolves a determination of whether under the circumstances the officer was reasonablein believing that the person giving consent had some possessory right or control overthe specific area to be searched. (See, United States v. Matlock (1974) 415 U.S. 164,171; People v. McClelland (1990) 136 Cal.App.3d 503, 506; United States v. Morning(1995) 64 F.3d 531.) The officer does not have to be correct in his or her belief; onlyreasonable! (Illinois v. Rodriguez (1990) 497 U.S. 177; People v. Dyke (1990) 224Cal.App.3d 648.) The officer should not acquiesce to or indirectly encourage a privateparty (maid) to search for incriminating evidence. (United States v. Walther (9th Cir.1981) 652 F.2d 788, 791.)

A car owner's consent covers articles left in the vehicle by a third party. (People v. Clark(1993) 5 Cal.4th 950, 979.)

Employers may consent to an area search but have no authority to permit police todetain an employee. (People v. Shields (1988) 205 Cal.App.3d 1065.)

A spouse , or co-occupant, can give consent to search all common areas over theobjection of the suspect spouse or co-occupant! (People v. Haskett (1982) 30 Cal.3d841, 856; United States v. Matlock (1974) 415 U.S. 164, 171; Frazier v. Cupp (1969)394 U.S. 731, 740.) A spouse, temporarily residing elsewhere (i.e., battered woman'sshelter) can consent to a search of the family home. (People v. Bishop (1996) 44Cal.App.4th 220, 239.)

The California Supreme Court has held that a parent may not be able to give consentfor the search of a minor child's personal property, unless the parent has a protectiveinterest in that property. (i.e., A parent may not have an interest in a 17 year old son'slocked tool box. See In Re Scott K. (1979) 24 Cal.3d 395, 404-405.)

Condition of probation searches - California: A person convicted of a crime is notentitled to be placed on probation as a matter of right. If the court grants probation, thecourt may also impose conditions which are reasonably related to the criminal activityand designed to assist in the offender's rehabilitation. When the defendant agreed toaccept the search condition, the defendant waived the expectation of privacy. (SeePeople v. Mason (1971) 4 Cal.3d 759, 764-765; People v. Lent (1975) 15 Cal.3d 481,486.) The officer need not know that the individual had accepted search & seizure as acondition of probation. (In re Tyrell J. (1994) 8 Cal.4th 68.)

Searches of probationers may be conducted for reasons related to the rehabilitative andreformative purposes of probation or other law enforcement purposes. A waiver of 4thAmendment rights as a condition of probation does not permit searches undertaken forharassment or searches for arbitrary or capricious reasons. (see People v. Bravo (1987)43 Cal.3d 600, 610.) An excessive number of fruitless searches might indicate

harassment. (People v. Clower (1993) 16 Cal.App.4th 1737, 1742.) � Watch UnitedStates v. Ooley (9th Cir. 1997) 116 F.3d 370, which remanded a California probationsearch case to the District Court to determine whether it was a subterfuge by the policeto avoid getting a warrant. (Not followed in In re Arron C. (1997) 59 Cal.App.4th 1365.)

The officer should not use one person’s condition of probation to search for evidenceagainst another. (Watch, People v. Woods (1998) 61 Cal.App.4th 246. The court wasfollowing precedent, but disagreed with it!)

Condition of probation searches - federal, most other states: The Federal ProbationAct allows trial courts to impose to impose probation conditions. (18 USC 3651-3656.) Probation officers are required to use all reasonable methods, not inconsistent withconditions imposed by the trial judge, to aid probationers and to bring aboutimprovements in their conduct and condition. (18 USC 3655; United States v. Duff (9thCir. 1987) 831 F.2d 176 , approving drug testing ordered by probation.) The 9th circuitrequires that the probation officer have a reasonable (not probable & maybe not evenobjective?) belief that a search is necessary. The probation officer may enlist the aid ofthe police as long as it is not a subterfuge for a criminal investigation. (United States v.Consuelo-Gonzalez (9th Cir. 1975) 521 F.2d 259, 267.) Searches may be invalidated ifthe probation officer or parole officer was acting as a "stalking horse" for the police. Thisseems to mean that police initiated searches to avoid the warrant requirement aresuspect. (see, United States v. Richardson (9th Cir, 1988) 849 F.2d 439.)

� Many State Courts, other than California, restrict condition of probation searches toprobation officers as well as requiring some cause.

Parole searches : Parole searches by parole officers are necessary for effective parolesupervision. Parole agents may enlist the aid and assistance of law enforcementofficers... (People v. Wagner (1982) 138 Cal. App. 3d 473, 479; Latta v. Fitzhairis (9thCir. 1975) 521 F.2d 246. The police may call the parole officer to request a search. (See People v. Johnson (1987) 43 Cal. 3d 296, 317.) Watch People v. Pate (3-25-98)__ Cal.App.4th ___, which held that a "parolee at large" had no expectation of privacy inhis motor vehicle!

Absent approval by a parole officer, a peace officer needs suspicious circumstances(reasonable suspicion) to justify a "parole search". There must be a reasonablesuspicion that the parolee is involved in criminal activity, or has otherwise violatedparole, and that the search may turn up evidence of that activity, or that evidence of afuture violation will be uncovered. (see People v. Burgener (1986) 41 Cal.3d 505,533-535; People v. Brown (1989) 213 Cal.App.3d 187.) An anonymous tip requirescorroboration! (Watch, People v. Reyes (1996) 51 Cal.App.4th 1388 which the UnitedStates Supreme Court has agreed to review.)

FORFEITURES - Examples of forfeitures

Abandonment : "There can be nothing unlawful in the seizure of abandoned property." (Abel v. United States (1960) 362 U.S. 217, 214; People v. Smith (1966) 63 Cal.2d 779,800-801.) A denial of any interest in the property (i.e., luggage) is an abandonment.

(United States v. Nording (9th Cir. 1986) 804 F.2d 1466.) � Throwing a bag onto a carin response to an officer’s inquiry is not an abandonment. (Smith v. Ohio (1990) 494U.S..541.)

Auditory eavesdropping : As long as the officer is in a place where the officer is legallyentitled to be and can hear defendant's conversation without the aid of any mechanicalor electronic equipment, there is no violation of an expectation of privacy. It ispermissible to place an ear up against an apartment door from the hallway. (People v.Guerra (1971) 21 Cal.App.3d 534. And officers who were legally occupying a roomadjacent to a drug suspect's room in a boarding house could use overheard discussionsof sales. (People v. Kaaienapua (1977) 70 Cal.App.3d 283.) It is permissible to wire aninformant who enters a suspect's house (United States v. White (1971) 401 U.S. 745,751), but, it is impermissible to leave a monitoring device (Katz v. U.S. (1967) 389 U.S.347, 352-353).

Bank records : The United States Supreme Court has held that a depositor has noexpectation of privacy in the bank records of his or her accounts. (United States v.Miller (1976) 425 U.S. 435.) California, however, has a Right to Financial Privacy Actwhich makes it a misdemeanor and provides for civil penalties for a bank to revealdepositor records in violation of the act. (see §§7460-7493 Government Code.) The lawdoes not apply if the bank is a victim. The Act also permits certain information to berevealed without a warrant. This means that bank records received without judicialprocess would be admissible, but the banks won't give them to you!

Beepers : It is illegal, absent a warrant, to monitor a beeper placed in a drum ofchloroform by law enforcement, after the container is moved inside a residence. (UnitedStates v. Karo (1984) 468 U.S. 705.) It is permissible to monitor stolen property (bait)which had a beeper installed by the police. (Watch People v. Erwin (1997) 55Cal.App.4th 15; United States v. Jones (4th Cir. 1994) 31 F.3d 1304; People v. Hull(1995) 34 Cal.App.4th 1448.)

Booking searches : "The warrantless search of a person at booking and the seizure ofhis property is reasonable. This includes searches of "closed containers". (see, Illinoisv. Lafayette (1983) 462 U.S. 640, 643-648; United States v. Edwards (1974) 415 U.S.800, 802-804; People v. Hovey (1988) 44 Cal.3d 543, 570; People v. Clark (1992) 3Cal.4th 41, 143.) The reading of a letter taken from an unsealed envelope was proper. (People v. Miranda (1989) 44 Cal.3d 57, 80-82.)

Dogs (Plain Odor) : A dog sniff is not considered a search. The dog must be in a placewhere the handler is legally entitled to be (i.e., plain sight) and the item subjected to thesniff must not have been illegally seized. A dog is permitted to sniff a warehouse from apublic alley (United States v. Lingefelter (9th Cir. 1993) 997 F.2d 632); or a semi-traileron a public street (United States v. Solis (9th Cir. 1976) 536 F.2d 880); or a train sleepingcompartment from the corridor (United States v. Colyer (D.C. Cir. 1989) 878 F.2d 469,576). The dog's positive reaction can give the officer probable cause. A search warrantwill be required prior to a search, in most situations. The officer has to establish thedog's reliability and the officer's (or trainer's) expertise. (See United States v. Place(1983) 462 U.S. 696; People v. Mayberry (1982) 31 Cal.3d 335; People v. Malgren(1983) 139 Cal.App.3d 234 .)

Ham radios : No expectation of privacy. (United States v. Rose (1st Cir. 1982) 669F.2d 23)

Jail searches : There is no reasonable expectation of privacy within a jail, unless theofficer created it. (see, North v. Superior Court (1972) 8 Cal.3d 301, 311.) Randomshakedown searches without cause are permitted. (Hudson v. Palmer (1984) 468 U.S.517.) Conversations between visitors and inmates, including spouses, may bemonitored during jail visits. (People v. VonVillas (1992) 11 Cal.App.4th 175; UnitedStates v. Hearst (1977) 563 F.2d 1331.)

Open fields: There is no expectation of privacy when marijuana is grown in an openfield (United States v. Oliver (1984) 466 U.S. 170; People v. Hill (1974) 12 Cal.3d 731),or in a greenhouse beyond the curtilage of the home (United States v. Van Damme (9thCir. 1995) 48 F.3d 461 ), or in outbuildings beyond the curtilage (United States v. Brady(9th Cir. 1993) 993 F.2d 177).

Pager broadcasts : A pager broadcast is an oral communication; but is one without anyreasonable expectation of privacy. (People v. Medina (1987) 189 Cal.App.3d 39, 49.) Pagers seized incidental to a lawful arrest may be activated to retrieve the numericaldisplay, when the officer has probable cause.... (People v. Bullock (1990) 226Cal.App.3d 380, 387) The transmitting party has no expectation of privacy in theirnumber being retrieved from a pager by an officer. (United States v. Merwether (6th Cir.1990) 917 F.2d 955.)

Pen registers (a device that registers numbers called from a particular phone) are permittedwithout a warrant. (Smith v. Maryland (1979) 442 U.S. 735; United States v. New YorkTelephone (1977) 434 U.S. 159, 161, fn 1.)

Phone traps (a device that registers the number of the phone calling a particular number) arepermitted without a warrant. (See, Smith v. Maryland (1979) 442 U.S. 735; People v.Suite (1980) 101 Cal.App.3d 680, 684,)

PLAIN SIGHT SEIZURES :

The "plain sight rule" permits an officer to seize contraband, stolen property, or evidenceof a crime if the officer is able to reasonably identify such item from a position where theofficer had a legal right to be. (See Guidi v. Superior Court (1973) 10 Cal. 3d 1, 13;Warden v. Hayden (1967) 387 U.S. 294.) Weapons, even if not connected to the crime,can be seized for safety purposes. (United States v. Humphrey (9th Cir.1985) 759 F.2d743, 748.) It is permissible to look through tinted car windows on a public street.

(United States v. Head (1986) 783 F.2d 1422.) � The "plain view" doctrine may not beused to extend the scope of an otherwise lawful search, but the discovery of evidenceneed not be inadvertent. (Horton v. California (1990) 496 U.S. 128.

An item is in plain sight as long as the officer has "probable cause" to believe that whathe or she sees, without disturbing the item, is contraband, stolen property or evidence of

a crime. / The officer should not assume that the judge will agree that expensivestereo equipment in a near vacant, squalid apartment was probably stolen. (see,Arizona v. Hicks (1987) 480 U.S. 321.) Testify that, in your opinion, the property wasstolen and give the objectively verifiable reasons for such belief! i.e., It is reasonable toopine that car stereo in a home with cut wires was stolen. (In re Curtis T (1989) 214Cal.App.3d 715; People v. Stokes (1990) 224 Cal.App.3d 715.) A television set, samebrand and size as one reported stolen, was legally seized in plain sight although notlisted in the search warrant. (People v. Rios (1988) 205 Cal.App.3d 833.)

Certain containers are so distinctive in nature that an experiencedofficer would have probable cause to search or seize them when foundin plain sight. i.e.,: Paper bindles, People v. Lilienthal (1978) 22 Cal.3d891, 898-890; Heroin balloons, Texas v. Brown (1983) 460 U.S. 730;People v. Lee (1987) 194 Cal.App.3d 975, 984; brick-shaped objectssmelling like marijuana, People v. McKinnon (1972) 7 Cal.3d 899, 917. ½2 of acellophane baggy seen protruding from a pocket of an individual in a high drug area byan experienced officer. (People v. Gonzales (1989) 216 Cal.App.3d 1185)

The use of flashlights is permitted by the plain sight rule! (People v. Hill (1974) 12Cal.3d 731, 748; United States v. Dunn (1987), 480 U.S.294.) The use of binoculars isalso permitted, if, used to aid what was seen by the naked eye! (Dow Chemical v. UnitedStates (1986) 476 U.S. 227; United States v. Lee (1927) 274 U.S. 559, 563.)

Aircraft Overflights : If the officer is legally entitled to be (up)there, there is no reasonable expectation of privacy (below)? Unaided observations into the curtilage of a home from"navigable" airspace is not in violation of the 4th Amendment.

(i.e., 1000 feet above congested areas; 500 feet above non-congested areas. 14 CFR §91.79.) "Thedefendant's subjective expectation that his garden was protected from such observationis unreasonable and is not an expectation that society is prepared to honor." (Californiav. Ciraolo (1986) 476 U.S. 207.)

Helicopter Overflights : There is no minimum height restrictions onhelicopters, unless over a congested area. (People v. Romo (1988) 198Cal.App.3d 581.) The flight path must be reasonable. A view with thenaked eye, from 400 feet above a greenhouse within the curtilage of a home, is legal(Florida v. Riley (1989) 488 U.S. 445; See People v. McKim (1989) 214 Cal.App.3d894.) The use of a 600 mm lens to amplify what was already observed is permissible.(United States v. Van Damme (9th cir. 1995) 48 F.3d 261.)

Post-booking searches : "During their period of police custody an arrested person'spersonal effects, like his person itself, are subjected to reasonable inspection,examination, and test." (People v. Remiro (1979) 89 Cal.App.3d 809, 835; People v.Rogers (1966) 241 Cal.App.2d 384, 389-390.)

� Some courts have required a warrant for a post-booking search. (Smith v. SuperiorCourt (1980) 103 Cal.App.3d 840.) Other courts distinguish post-booking searcheswhich are designed to find an item not discovered at the initial booking search. (see,People v. Superior Court (Gunn) (1980) 112 Cal.App.3d 970.) The Gunn analysis isconsistent with federal cases which use the "forfeiture" analysis to uphold delayedsearches of items taken in the booking process. (see United States v. Johnson (9th Cir.1987) 820 F.2d 1065, 1072; United States v. Burnette, (9th Cir.1983) 698 F.2d 1038,cert. denied.) And see People v. Bradley (1981) 115 Cal.App.3d 744, which held there

was no vestige of privacy in a ring inventoried in the booking process. / The officershould consider getting a warrant or consent when the officer wants to find somethingnot disclosed at the initial booking search!

Telephone company records - motels , etc.: Warrants are not required for theserecords according to the United States Supreme Court, because there is no reasonableexpectation of privacy. (see Smith v. Maryland (1979) 442 U.S. 735.)

Telephones : Title III of the Federal Omnibus Crime Control andSafe Streets (§18 U.S.C. 2510-2521) prohibits the interception ofwire or oral communications, absent an authorized warrant. Section2510 was amended for the purpose of including "cellular phones" inthe warrant requirement. A subsequent amendment indicates thatany cordless telephone conversation is covered by Title III! (seePeople v. Chavez (1996) 44 Cal.App.4th 1144; McKamey v. Roach (7th Cir. 1995) 55F.3d 1236.) The statutory exclusionary rule created by Congress, even applies toconversations improperly recorded by civilians. (People v. Otto (1992) 2 Cal.4th 1088.)

The exclusionary rule, however, may not be invoked on behalf of criminals who illegallyrecorded conversations for criminal purposes. (See People v. Murtha (1993) 14Cal.App.4th 1112, 1118-1119, and the federal cases cited.) It is permissible to record ormonitor telephone conversations as long as one of the parties to the conversationagrees. (People v. Murphy 8 Cal.3d 349, 359 & fn. 9.)

Thermal imaging devices : The 9th Circuit and one California Appellate Court has foundthat the use of a thermal imaging device to detect heat on the surface of a residencewithout a warrant to be illegal. (United States v. Kyllo (9th Cir. 4-7-98); People v.Deutsch (1996) 44 Cal.App.4th 1224.) Thermal image scanning is a procedure thatmeasures the amount of heat emitted from an object. The device compares relativeheat on surfaces. The majority of federal courts which have addressed this issue havefound the procedure to be legal because there is no reasonable expectation of privacy. (See, United States v. Ford (11th Cir. 1994) 34 F.3d 992; United States v. Pinson (8th Cir.1994) 24 F.3d 1056; United States v. Myers (7th Cir. 1995) 46 F.3d 668.)

Trash . There is no reasonable expectation of privacy in the contents of a trashcontainer placed in front of one's house for collection. (California v. Greenwood (1988)486 U.S. 35.)

Video Surveillance : Although silent video recordings may not be covered by the"Electronics Communications Privacy Act of 1986", i.e., Title I, formerly Title III (UnitedStates v. Chen (9th Cir. 1992) 979 F.2d 714), a search warrant will be necessary inevery situation where an agent is not physically present at the time of the recording.

(See, People v. Henderson (1990) 220 Cal.App.3d 1632.) / A showing of necessityfor such a warrant is required. The following suggestions are taken from United Statesv. Koyomejian (9th Cir. 1992) 970 F.2d 536, 542. (1) ...normal investigative procedureshave been tried and failed or reasonably appear to be unlikely to succeed if tried or tobe too dangerous...; (2) a particular description of the type of activity sought to be videotaped, and the offense to which it relates; (3) restrict the length of the surveillance to thetime absolutely necessary to achieve the objective, not to exceed 30 days; (4) set themonitor up in such a way to minimize the taping of activity not covered by the warrant.

SEARCHES NOT SUBJECT TO THE EXCLUSIONARY RULE

Non-governmental searches : The 4th Amendment was designed to protect anindividual's right of privacy from unwarranted governmental intrusions. Therefore,searches or seizures by security guards, airline employees, landlords, lessors, etc., arenot proscribed by the Constitution and the results of such searches are admissibleunless the civilians were acting as agents of the police and, as such, made anunreasonable search. (See Burdeau v. McDowell (1926) 256 U.S. 465.) It may bepermissible for a civilian to further his or her own objectives and to assist law

enforcement. (United States v. Cleveland (1994) 38 F.3d 1092.) / But officers shouldnot encourage private citizens (motel manager) to make searches (enter suspect’sroom) for incriminating evidence! (United States v. Reed (9th Cir. 1994) 15 F.3d 928,931.) It is permissible to order a hotel manager not to allow anyone to enter the room ofan individual just arrested for murder. (People v. Bennett (1998) 17 Cal.4th 373.)

It is permissible to retrieve drugs from a doctor who is trying to save the life of a suspectwho swallowed drugs. (United States v. Chukwubike (9th Cir. 1992) 956 F.2d 209.)

It is permissible for an officer to re-examine the property revealed by the private search. (United States v. Jacobsen (1984) 466 U.S. 109, 126; People v. Brouilette (1989) 210Cal.App.3d 842, 848.)

Security Guards are not governmental authorities, unless acting as agents for thepolice. (In re Christopher H. (1991) 227 Cal.App.3d 1567; United States v. Francoeur(1977) 547 F.2d 891, 893-894.) Public School Authorities are government officials! The school official has toarticulate facts which indicate a reasonable suspicion (less than probable cause) thatthe student was violating or did violate a rule, regulation, or statute. (See New Jersey v.T.L.O. (1985) 495 U.S. 725; In Re William G.(1985) 40 Cal.3d 550, 564.) A complaintbe a parent that a particular student was carrying a weapon was sufficient to justify asearch of the student’s locker in People v. Joseph G. (1995) 32 Cal.App.4th 1735. Useof metal detectors for weapons was approved in In re Latasha W. (1998) 60 Cal.App.4th1524.

CONCLUSION:

The general rule is that all searches and seizures should be made pursuant to awarrant. The general rule will apply absent an exigency, waiver, or forfeiture. Since theburden of proof is on the People to prove the reasonableness of any search or seizurewithout a warrant, the officer must be prepared to articulate the facts relied upon inreacting to a suspect's conduct. The officer does not have to read hundreds of casedecisions to be able to make a correct choice. The officer does have to use commonsense, based on training and experience, and have the ability to analyze each situationindependently. Remember, it is the officer on the street who makes the initial"constitutional" decision. That decision will be sustained by the courts if the officer usesa correct method of analysis and repeats, for the court, all the facts relied upon inmaking the decision.

OFFICER'S GUIDE FOR ORAL/FAX SEARCH WARRANTS

JOHN J. (Jack) RYANOrange County Superior Ct.

I. PRELIMINARY PROCEDURES (Turn to page 7 for facsimile transmission warrants.)

Summarize your evidence (facts) in chronological order. Discuss your facts with aDeputy District Attorney.

Fill in the phone numbers you may need to procure a telephonic warrant:Sheriff (for Duty Deputy District Attorney): ____- _______ (Orange Co. 834-7370)Detention Release (for Duty Magistrate): ___-____ (Orange Co. 647-4581)Sheriff I.D. Technician (for tape recorder, until midnight!): ___-____ (Orange Co.834-4527) Magistrate: ___-____.

(If this is a telephonic application, you must have a warrant form in your possession. This formis called the "duplicate original". Fill it out before the conference call with the magistrate. SeeAttachment 1, for a search warrant form.)

II. THE TELEPHONIC CONFERENCE

A. Foundational conversation: "Today's date is____________; The timeis ________.

My name is________________, it is spelled _ _ _ _ _ _ _. Your honor, would youplease state and spell your name. Would you administer the oath at this time". (Make sure the recorder is functioning!)

B. Search warrant form dat a: (State what you have written on the Warrant Form.(attach.1)

"I placed my name _____________________ (state your name) in the spacedesignated, Name of Affiant."

§1524 P.C.: "I have placed an "x" next to the following language of Section 1524because there is probable cause to believe that the property [person] sought to beseized:

(1) was stolen or embezzled.(2) was used as the means of committing a felony.(3) is possessed by a person with the intent to use it as means of committing a

public offense or is possessed by another to whom he or she may havedelivered it for the purpose of concealing it or preventing its discovery.

(4) tends to show that a felony has been committed or that a particular personhas committed a felony.

(5) tends to show that sexual exploitation of a child, in violation of Penal CodeSection 311.3, or possession of matter depicting sexual conduct of a personunder the age of 18 years, in violation of Section 311.11, has occurred or isoccurring.

(6) there is a warrant to arrest the person.

/ A special master may be required if the items sought to seized are in the possession of alawyer, doctor, psychotherapist, or clergyman who is not reasonably suspected of havingengaged in criminal activity related to the documentary evidence sought by the warrant. (§1524(c) P.C.)

Place to be searched : "There is probable cause to believe that the property describedherein is at the following place(s), as written on the warrant form:

i.e., "A single family residence located at __________(address), (give a physicaldescription)__ _____________________________; located near ___________(relative location to an intersection or landmark; and (if appropriate) the storage areagarbage area, and garage.

/ The location will be described with particularity if another officer can find it, even if theaddress is incorrect!!!

Vehicle to be searched (if applicable): "I have described the vehicle to be searched as(type...color...license plate #... registered owner...)

Persons to be seized (If applicable): "I have described the person(s) to be seized as ____________... (name... sex... race... age... hair... height... weight...etc.)

Property to be seized:

1. (Describe the primary evidence sought.) i.e.,"Heroin, a [black tarrysubstance/brownish powdery substance/white powdery substance.]"

2. (Describe other evidence which helps prove the offense.) i.e., "Scale; The followingpackaging materials ____________; Records of (heroin) transactions; Money". 3. (Describe the evidence which will connect a person to the offense.) i.e., "The followingitems of identification which tend to disclose the name[s] of those persons who havea possessory interest in the described location; utility bills; telephone bills; driver'slicense; keys...photographs and canceled mail envelopes."

/ Each item listed on the warrant must be supported by probable cause. If you follow theserules, you will never create a "voidable" overbroad warrant: 1. Ask for too few, rather than too many items. 2. Be more descriptive & less general. 3. Avoid phrases like, "including but not limited to". 4. If you list an item, discuss it in your affidavit!!!

When there is a warrant to arrest the person[s]: If a warrant of arrest been issuedfor the person of __________________________, relate the details. Describe the factswhich cause you to believe that this person is located at the place previously described.

(If you are making an application for a warrant of probable cause to arrest, use the Officer’sGuide for oral/fax warrants of probable cause for arrest.)

Knock-Notice Excused: There is, as of yet, no authority for a magistrate to issue a No-knock warrant. (The United States Supreme Court, in Richards v. Wisconsin (4-28-97) 137L.Ed.2d 615; __U.S.___, said in dictum: "The practice of allowing magistrates to issue no-knock warrants seems entirely reasonable." This language follows a paragraph whichdiscusses those states which have authorized no-knock warrants. Our legislature has not, as ofyet, authorized magistrates to issue no-knock warrants. The California Supreme Court has heldthat "courts are without power to institute a practice of issuing such warrants". Parsley v.Superior Court (1973) 9 Cal.3d 934)

The officer, however, may legally force entry without complying with the notice requirements ifthere is an exigency at the time the officer is at the suspect's door. The officer will have toarticulate in court that evidence which indicated why the giving of notice to the occupants wouldhave resulted in the destruction of evidence or harm to the officer or others. (Wilson v.Arkansas (1995) 514 U.S. 927, 936; Richards v. Wisconsin (1997) 137 L.Ed.2d 615; __ U.S.___, note 2; People v. Bittaker (1989) 48 Cal.3d 1046.)

Time of search: "I am/am not requesting that a NIGHT SEARCH be approved.

Jurisdiction : "I have indicated that your honor is a Judge of the [Superior Court][Municipal Court _______________ Judicial District] Department/Division ____.

CONCLUDE THE WARRANT FORM DATA : "Your honor, I have read to youeverything that has been filled in on the warrant form. I will place today's date, thecorrect time, your signature, and whether the Night Search has been approved if youissue the warrant at the conclusion of my oral affidavit."

III. AFFIDAVIT DATA - THE STATEMENT OF PROBABLE CAUSE

A. Expertise : i.e., "I have been a peace officer for ___ years. I have worked on the__________ [narcotics] detail for _____ years. I have attended the following schools________. I have testified as an expert witness on ____ occasions. I have formed anopinion about this particular substance on at least ____ occasions, and my opinion wasverified by lab analysis on [all/most/some] of those occasions...."

DON'T EXAGGERATE! ��

B. When you are relying on the perceptions of an informant; render the factswhich make the informant believable

Citizen informants : "The informant has lived in this community for ____ years. Theinformant is [currently employed .../attended school in this community/has no known arrests] and is a law abiding person. � This type of informant does not require corroboration!

Untested, paid, or arrestee informants

Corroborated by prior contacts : "I believe that the information provided by theinformant is valid because: "I have received information from this informant on__________occasions within the past ______ months. This information resulted inseizures of __________; ______ arrests; _______ convictions. I have neverreceived bad information from this informant (or explain if you have)." &/or

Corroborated by police investigation : "The information provided by thisinformant was corroborated by an investigation conducted by ________________,as [previously/will be] described in the affidavit." &/or

Corroborated by other informants : "I received similar information from one [ormore] independent informant[s] who has/have provided information in this case andall the statements will be set out in detail."

/ 1. Supply the magistrate with any negative data about the informant, including whetherarrested; under the influence; paid; promised....

2. If you can't corroborate the informant, you may bring the informant before a magistrate,and have the magistrate examine the informant under oath. The magistrate determineswhether the informant is believable!

C-1. The facts when the affiant was percipient : i.e., "On ____________ (date andtime), while [I / your affiant] was present at _____________ (address), I saw and heard(observed) the following: _______________." Describe in detail: what you saw, i.e.,colors, size, shape... the exact words you heard... the odors you smelled... the approximateweight of anything you felt...tasted, if appropriate. If you speak and write in terms of personalperceptions you will avoid a lot of potential problems.

C-2. The facts when the informant was percipient : "I was told by the informant, thaton __________ (date and time) the informant was at______ (location). The informantsaid that the following was personally observed _______________..."

/ Relate what the informant saw, heard, smelled etc. This will require a careful debriefing byyou before you make application for the warrant. You do not have to name the informant in theaffidavit, therefore, you do not have to give a reason for not....

d. Render the appropriate opinions: 7 If you are using an opinion by the informant, supplythe facts which make the informant an expert.

"The word (phrase) ____ (state the jargon or street language used)means_________________.

"I believe that a scale will be found at the described location because ________.

"I believe that records of (heroin) transactions will be found... because ________.

"I believe that ____________ (evidence) will be found because __________.

(If an item sought to be seized hasn't been discussed before, discuss it NOW!)

IV. NIGHTTIME SEARCH: (If you want to search immediately, and it is not between 7:00a.m. and 10:00 p.m., you must give the reasons why you believe the search must be madebefore the daytime hours.) i.e., "The contraband will be sold or moved... The suspect(s)are only at the location during the nighttime hours... An accomplice has beenarrested...")

V. CONCLUSION OF THE CALL: "Your honor, are you satisfied that probable causeexists for the issuance of this warrant? Did I describe the place, person(s), and thingswith sufficient particularity? Do you have any questions? Are there any changes Ishould make on the warrant?

"Would you issue the warrant at this time?" "Is the warrant approved for Night Service?"

"I am now placing today's date ___/___/___ ; the correct time which is, ___:___ [a.m.][p.m.]; and an "x" in the [YES] [NO] box for NIGHT SERVICE on the warrant form. May Isign your name to the warrant form?" Please spell your full name.

VI. EXECUTION OF THE WARRANT

The warrant should be executed as soon as practical. 7 Don't wait the 10 daysmentioned in section 1534; it could cause a timeliness problem.

Comply with the Knock/Notice rules specified in section 1531 of the penal code.

Display the warrant to the person whose premises is being searched (if applicable).

Write the exact time of the execution of the warrant on the face of the duplicate originalwhich you have in your possession. (write, under the magistrate's name, "executedat___:___[a.m.][p.m.] on ___/___/___.")

Give (or leave) an itemized list of the property taken to (for) the person from whom it wasseized.

VII. FOLLOW-UP PROCEDURES - TELEPHONIC WARRANTS

Procure the tape (oral affidavit). Have it transcribed. Proof read the transcription andmake the appropriate changes.

Prepare an "original" warrant. (There will be two warrants; the duplicate original and theoriginal.) The original will be signed by the issuing magistrate.

RETURN the warrant, forthwith. (§1537 P.C.) Make sure the magistrate signs theoriginal warrant and writes in the exact time the warrant was issued. (§1528(b) P.C.)

Have the magistrate certify that the transcription is accurate. (Required by section 1528(b)of the Penal Code; Use the attached certification form, Attachment 2.)

File all the documents with the clerk of the court. (the duplicate original; original; tape;transcription; certification form; and the return.)

SEALING AFFIDAVITS: If a peace officer believes that certain information could reveal theidentity of an informant, whom the officer would like to keep confidential, an affidavit containingthe potentially revealing identification information, may be executed and sealed. (People v.Hobbs (1994) 7 Cal.4th 948. See, Swanson v. Superior Court (1989) 211 Cal.App.3d 332;People v. Flannery (1985) 164 Cal.App.3d 1112.)

FACSIMILE TRANSMITTED AFFIDAVITS (§1526(b)(2) P.C.)

TELEPHONE THE ISSUING MAGISTRATE (unless a Deputy District Attorney has set up aconference call. The conversation does not have to be recorded).

1. "Your honor, would you administer the oath at this time."

2. "May I sign my name on the affidavit."

"What is the magistrate's fax number? ___________________. "My Fax number is ___-___-____. My telephone number is ___-___-____."

77 Fax the warrant, affidavit, and any attachments to the magistrate.

3. "Has the magistrate received the facsimile copy of the search warrant, consisting of[1] [__] page[s]; [and] affidavit, consisting of __ pages [and attachments, consistingof __ pages]." (This is the 'original warrant'.)

"Are all the pages legible."

"My signature is on page [1/__ ] of the affidavit."

4. IF THE MAGISTRATE ISSUES THE WARRANT . "Would your honor sign thewarrant and place today's date, __-__-199_, and current time __:__ [am] [pm] belowyour signature."

"Your honor, please write on the warrant that 'the oath of the affiant wasadministered orally over the telephone'." (This is the original warrant.)

5. The magistrate will fax the signed search warrant to you. �

ACKNOWLEDGE RECEIPT OF THE WARRANT : "I have received the facsimile copyof the signed search warrant." (This is the duplicate original warrant.)

"I have written 'duplicate original' on the facsimile copy."

EXECUTION OF WARRANT: Make sure you note the exact time and date of the execution of the warrant on thewarrant.

RETURN: File the duplicate original warrant, original warrant, affidavit [attachments] and thereturn to the search warrant / certificate of service with the clerk of the court, as soon aspractical after you execute it. (§1537 P.C ./ 817(h) P.C.) The 'original warrant' should be withthe magistrate or magistrate's clerk.

TELEPHONIC SEARCH WARRANT

STATE OF CALIFORNIA - COUNTY OF ORANGE SW NO.

(DUPLICATE/ORIGINAL) SEARCH WARRANTTHE PEOPLE OF THE STATE OF CALIFORNIA TO ANY SHERIFF, POLICEMAN

OR PEACE OFFICER IN THE COUNTY OF ORANGE, having declared under penalty of perjury

and proof by affidavit, as set forth in the attached and incorporated Statement of Probable Cause , having been made

before me by (Name of Affiant) that there is probable cause to

believe that the articles, property, and persons described herein may be found at the locations set forth herein and that it

is lawfully seizable pursuant to Penal Code Section 1524 as indicated below by "x"(s) in that it:

was stolen or embezzled.

was used as the means of committing a felony.

is possessed by a person with the intent to use it as means of committing a public offense or is possessed by

another to whom he or she may have delivered it for the purpose of concealing it or preventing its discovery.

tends to show that a felony has been committed or that a particular person has committed a felony.

tends to show that sexual exploitation of a child, in violation of Penal Code Section 311.3, or possession of matter

depicting sexual conduct of a person under the age of 18 years, in violation of Section 311.11, has occurred or is

occurring.

there is a warrant to arrest the person.

YOU ARE THEREFORE COMMANDED TO SEARCH: (Premises, vehicles, persons)

FOR THE FOLLOWING PROPERTY OR PERSONS :

AND TO SEIZE IT/THEM IF FOUND and bring it/ them forthwith before me, or this court, at the courthouse of this court. The

Affidavit and incorporated Statement of Probable Cause in support of this Search Warrant were sworn to as true under penalty of

perjury on (date) at A.M. / P.M. Wherefore, I find probable cause for the issuance of this

Search Warrant and do issue it.

KNOCK-NOTICE EXCUSED: [ ]

,NIGHT SEARCH APPROVED: YES [ ] NO [ ]

(Signature of Magistrate)

Judge of the Superior / Municipal Court, Judicial District, Dept. / Div.

DATE AND TIME OF SERVICE OF WARRANT :

F026-582.1 (Rev. 8/97)

OFFICERS’ GUIDE FOR ORAL & FAX WARRANTS OF

PROBABLE CAUSE FOR ARREST (§817 P.C.)

JOHN J (Jack) RYAN, Judge

Orange County Superior Court

May 13, 1998

I. PRELIMINARY PROCEDURES-Telephonic: (See Attachment 1 for a sample Warrant of

Probable Cause for Arrest. Penal Code '817 authorizes a magistrate to issue an arrest warrant based on an

oral or fax application. Use Paragraph III for fax applications.)

Make sure that you have a warrant form. (See Attachment 1 for a sample Telephonic Warrant of

Probable Cause For Arrest form.)

Make sure that the conversation is being tape recorded!

List the phone numbers you may need:

Duty magistrate: ________________________

_____________:________________________

_____________:________________________

II. SUGGESTED SCRIPT - TELEPHONIC:

[Take the oath] Would the magistrate administer the oath at this time?

[affiant’s name] My name is _______________. It is written on the warrant form.

[Suspected offenses] I believe the suspect has committed the following crime[s]: _________

________________. I have written the appropriate section numbers on the warrant form.

[Suspect’s name] The name of the suspect we wish to arrest is ______________? This name is

written on the warrant form.

[Suspect’s description] Describe the suspect. This is how I described the suspect on the warrant

form?

[Probable Cause] I believe there is probable cause to arrest _______________, for the listed

offense[s]for the following reasons:

Your honor, are you satisfied with the statement of probable cause? Would you issue the warrant at

this time?

[Request bail.] The bail schedule for this (most serious if more than one) offense is $ ____.__.

I am requesting that bail be set in a higher/lower amount of $___________, for the following reasons:

______________________________________________________.

Which amount should I write on the warrant form?

[Time issued and date of warrant] I am writing the time that this warrant was issued: __:__ [am/pm].

I am also writing today's date on the warrant form: __-__-199_.

[Sign the magistrate’s name to warrant] May I sign your name on the warrant form. Is the correct

spelling: _ _ _ _ _ _ _ _ _ _ _ _ _ _?

You are a judge of the [Superior Court] [Municipal Court, ______________ Judicial District] Orange

County.

[Follow up] Remember to file a "certificate of service" (see attachment 2) with the clerk of the court

after the suspect has been taken into custody.

III. SUGGESTED SCRIPT - FACSIMILE TRANSMITTED WARRANT OF PROBABLE

CAUSE FOR ARREST (' 817(c)(2) P.C.)

(REQUIRES A TELEPHONE AND ACCESS TO A FAX! Prepare the declaration in support of the warrant

first!)

[Take the oath] Would you administer the oath at this time?

[Sign the affidavit] I have signed the declaration (affidavit) in support or the warrant of probable cause

for arrest.

[Fax all the documents to the magistrate] I am faxing the warrant, declaration (affidavit), and any

attachments to your fax # ___-___-____."

Ask if the documents have been received. Has your honor received the facsimile copy of the warrant of

probable cause for arrest/declaration in support of the warrant of probable cause for arrest (affidavit)

/attachments.

The warrant consists of [1/__] page[s]; and the declaration (affidavit) [including attachments]

consists of [__] pages. Are all the pages legible?

Have magistrate verify your signature/fax number. I have signed the warrant on page [1/_ ] of the

declaration (affidavit) in support of the warrant of probable cause for arrest.

My Fax number is: __________________.

(Will the warrant issue) Are you satisfied, after having read the declaration (affidavit) in support of the

warrant of probable cause for arrest, [including attachments] that there is probable cause for the

issuance of the warrant.

[Ask the magistrate to sign the warrant] Would you sign the warrant and place today's date on it? It

is __-__-199_, and the current time __:__ [am] [pm].

[Ask the magistrate to indicate on the warrant that the oath was given orally over the telephone]

Would you write on the warrant that 'the oath of the affiant was administered orally over the

telephone '. (This is the original warrant.)

[Ask the magistrate to fax the signed warrant of probable cause for arrest to you]

[Acknowledge that you have received the signed warrant] I have you received the warrant of

probable cause for arrest. I am writing "duplicate original" on the facsimile copy.

FOLLOW UP PROCEDURES:

Make sure you note the exact time and date of the execution of the warrant on the warrant.

File the duplicate original warrant, original warrant, declaration in support of warrant of probable cause for

arrest (affidavit) [attachments] and the "certificate of service" (see attachment 2) with the clerk of the court

after the suspect has been taken into custody. (see, '1537 P.C.; '817(h) P.C.)

TELEPHONIC WARRANT OF PROBABLE CAUSE FOR ARREST ('817 P.C.)

County of [Orange] [_______________], State of California

The People of the State of California to any peace officer of the STATE:

Proof by declaration under penalty of perjury having been made this day to me by

(affiant), I find that there is probable cause to believe that

the crime(s) of

has/have been committed by the defendant named and described

below.

NAME OF SUSPECT: ___________________________________________________

DESCRIPTION OF SUSPECT: ____________________________________________

_____________________________________________________________________.

Therefore, you are commanded to arrest ____________________________________

_____________________________________________________________________, and to bring

the defendant before any magistrate in Orange County pursuant to Sections 821 825, 826 and 848 of

the Penal Code.

Defendant is admitted to bail in the amount of _____________ dollars ($ ).

Time Issued: ___:___ a.m./p.m. ___________________________________(Signature of the Judge, see '1528 P.C.)

Dated: ___-___-_____. Judge of the ________________ Court

Attachment 1

CERTIFICATE OF SERVICE OF WARRANT OF PROBABLE CAUSE ('817(h) P.C.)

(1) The warrant of probable cause for arrest was served on ___-___-_____, at __:__a.m./p.m.

(2) The name of the arrested person is: _________________________________________.

(3) The location of the arrest was: ________________________________________________

__________________________________________________________________________.

(4) The defendant was incarcerated in the [____________________ City Jail] [________________

County Jail] [_______________________].

Dated: ___-___-_____.

Signature: _______________________________

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