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Thread: Seeking case law...warrantless search after arrest

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    Regular Member Logan 5's Avatar
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    Seeking case law...warrantless search after arrest

    Regarding officer safety & warrantless searches- If a cop arrests you, cuffs you, and then takes you into your home, with you still cuffed, does that give them the right to search your home without your consent? IIRC that doesn't, because they voluntarily enter your home and have no reason to be concerned that you're going to grab a weapon or destroy evidence because you're cuffed with your hands behind your back.
    Last edited by Logan 5; 11-28-2012 at 03:07 AM.
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    I have come across a very few cases--like maybe two--on the subject. Recently, say within the last year and a half.

    I don't recall the details or even the case names. I only have a vague recollection of the outcomes. But, I'm pretty sure cops can warrantlessly search the inside of the house, even if they don't take the arrestee inside. Say, the cops arrest someone on the front porch. The rationale seems to be a protective sweep for other people who may be dangerous to the cops, for example, someone who may attack the police or try to liberate the arrestee. This sort of search would, I think, be limited to looking in places where a person could hide--closets, under beds, etc--but not inside dresser drawers and other places too small for a person to hide. Under the plain view doctrine, if the cop sees something illegal during his protective sweep, those items probably are admissable.

    I also have the vague impression those cases were relatively low appeals court cases. Meaning, they might have been only state cases or federal circuit. I'm pretty darn sure they were not SCOTUS cases. If I'm right, this issue may still be undecided in any given jurisdiction.

    You could hunt cases here: www.fourthamendment.com
    Last edited by Citizen; 11-28-2012 at 04:19 PM.
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    Assuming that the officer is permitted to go into the house in search of friends of the cuffed suspect that he reasonably suspects of wishing him ill (and that is one helluvan assumption; it would seem that the wisest thing to do in the event that the officer believes there may be folks inside who present a danger to him would be to take the suspect and leave, not to go into the danger zone), the officer should only be able to look where he could reasonably expect to find a person. That would not include inside small drawers in desks or under toilet-tank lids, where one might find a baggie of leafy stuff.

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    Regular Member Logan 5's Avatar
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    I'm thinking that it's not a legal search since the perp is arrested, cuffed behind his back, and there is no one else in the house.

    I know there was a very similar case a few years back where a man was arrested outside of his car, and the cops searched his car against his wishes claiming it was a Terry stop thus legal, but it was found in his favor and evidence was withheld because he was outside of his car, thus officer risk was not a factor.

    Or something along those lines.
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    [QUOTE=Logan 5]I'm thinking that it's not a legal search since the perp is arrested, cuffed behind his back, and there is no one else in the house.

    Considering the subject, you may be interested in the following roll calls created by a police attorney:

    "Consent Once Removed"

    "Plain Smell"


    Quote Originally Posted by Logan 5
    I know there was a very similar case a few years back where a man was arrested outside of his car, and the cops searched his car against his wishes claiming it was a Terry stop thus legal, but it was found in his favor and evidence was withheld because he was outside of his car, thus officer risk was not a factor.

    Or something along those lines.
    I believe you're thinking of Arizona V. Gant.

    See some of the roll calls, having to do with vehicle searches, by the same attorney:

    "Vehicle Searches"

    "Gant"

    "Mbacke"

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    Regular Member Gunslinger's Avatar
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    Quote Originally Posted by eye95 View Post
    Assuming that the officer is permitted to go into the house in search of friends of the cuffed suspect that he reasonably suspects of wishing him ill (and that is one helluvan assumption; it would seem that the wisest thing to do in the event that the officer believes there may be folks inside who present a danger to him would be to take the suspect and leave, not to go into the danger zone), the officer should only be able to look where he could reasonably expect to find a person. That would not include inside small drawers in desks or under toilet-tank lids, where one might find a baggie of leafy stuff.

    In each of the situations below, a police officer does not need a search warrant to conduct a search.

    ■If an individual voluntarily consents (agrees to) a search, no warrant is needed. The key question in this kind of search is what counts as a voluntary agreement? In order for a consent search to be legal, the individual must be in control of the area to be searched and cannot have been pressured or tricked into agreeing to the search.
    ■A police officer that spots something in plain view does not need a search warrant to seize the object. In order for a plain view search to be legal, the officer must be in a place he has the right to be in and the object he seizes must be plainly visible in this location.
    ■If a suspect has been legally arrested, the police may search the defendant and the area within the defendant's immediate control. In a search incident to arrest no warrant is necessary as long as a spatial relationship exists between the defendant and the object.
    ■Following an arrest, the police may make a protective sweep search if they reasonably believe that a dangerous accomplice may be hiding in an area near where the defendant was arrested. To do so, police are allowed to walk through a residence and complete a "cursory visual inspection" without a warrant. If evidence of or related to a criminal activity is in plain view during the search, the evidence may be legally seized.
    ■If the police stop a car based on probable cause, they can search for objects related to the reason for the stop without obtaining a warrant. During a car search, the police are also allowed to frisk the subject for weapons, even without a warrant if they have reasonable suspicion that the suspects may be involved in illegal activities.
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    A key element of Gant's situation was that his car was at his own house. Meaning, it didn't need to be towed after he was arrested; thus there was also no justification for a later inventory search.

    If the same situation had occurred away from his home, the police would have towed the car to impound and then inventoried its contents, meaning any contraband would have been discovered anyway.

    Check out "vehicle inventory searches". And, although maybe not directly applicable, "inevitable discovery".

    (chuckle) I recently read the excerpt of a state court ruling where the cop claimed he was inventorying a vehicle's contents. One of his credibility problems was that he did not use paper or pencil. The court didn't buy his explanations, and slapped down the search.
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    Regular Member Logan 5's Avatar
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    [QUOTE=carsontech;1858698]
    Quote Originally Posted by Logan 5
    I'm thinking that it's not a legal search since the perp is arrested, cuffed behind his back, and there is no one else in the house.

    Considering the subject, you may be interested in the following roll calls created by a police attorney:

    "Consent Once Removed"

    "Plain Smell"




    I believe you're thinking of Arizona V. Gant.

    See some of the roll calls, having to do with vehicle searches, by the same attorney:

    "Vehicle Searches"

    "Gant"

    "Mbacke"
    All I get is "Error 500- server error".
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    Regular Member MKEgal's Avatar
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    There's a very recent decision from the 7th Circuit saying that police were unreasonable in searching an apartment after 2 men (one wounded) came out. Police had claimed it was a 'protective search', the court disagreed.

    Here's the PDF of the decision. It's a pretty quick read, & rather humorous in parts.
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    "The Page cannot Be Found" is the message I get.
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    Another exception to the warrant requirement is "exigent circumstances"--preventing the destruction of evidence, preservation of human life, hot pursuit (on foot) of a subject who runs into a dwelling--even if it is not his own. Concerning exigent circumstances--the police are not allowed to "create" exigent circumstances and then use this as a pretense for entry. Any search of a vehicle must be related to the reason the vehicle was stopped to begin with. If the driver was stopped for a burned out tail light--what evidence of a defective tail light would be found in the car. The mere presence of a firearm is not justification for search. In a duty-to-notify state officers are (generally) permitted to disarm the citizen at their discretion for the duration of the stop. Armed does not equal dangerous. I have had some spirited discussions about this concept with local police. They claim anyone with a firearm is automatically dangerous (based on the mere possession) and are to be cuffed, the car searched, and the serial numbers run to determine whether the gun is stolen or not. I have had one deputy tell me "I search every car I stop". I asked him what was his justification for this. He said it was for "officer safety"!!! Go on "Oyez"--this is the U.S. Supreme Court site. You can peruse cases by "issue', civil rights, search and seizure, commerce, and more. Great info there and will help you get a feel for the "mindset" of the court--past and present.

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    Regular Member Logan 5's Avatar
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    Can you direct me to those cases?
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    Last edited by Yard Sale; 12-10-2012 at 04:02 PM.

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    Recommend OP go to google scholar and see how this case has been cited in recent history ... its a 1969 case, which is OK but leaves one wondering what law came down afterwards that considered that ruling.

    Fun stuff.

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    Quote Originally Posted by 4sooth View Post
    Another exception to the warrant requirement is "exigent circumstances"--preventing the destruction of evidence, preservation of human life, hot pursuit (on foot) of a subject who runs into a dwelling--even if it is not his own. Concerning exigent circumstances--the police are not allowed to "create" exigent circumstances and then use this as a pretense for entry. Any search of a vehicle must be related to the reason the vehicle was stopped to begin with. If the driver was stopped for a burned out tail light--what evidence of a defective tail light would be found in the car. The mere presence of a firearm is not justification for search. In a duty-to-notify state officers are (generally) permitted to disarm the citizen at their discretion for the duration of the stop. Armed does not equal dangerous. I have had some spirited discussions about this concept with local police. They claim anyone with a firearm is automatically dangerous (based on the mere possession) and are to be cuffed, the car searched, and the serial numbers run to determine whether the gun is stolen or not. I have had one deputy tell me "I search every car I stop". I asked him what was his justification for this. He said it was for "officer safety"!!! Go on "Oyez"--this is the U.S. Supreme Court site. You can peruse cases by "issue', civil rights, search and seizure, commerce, and more. Great info there and will help you get a feel for the "mindset" of the court--past and present.
    Unless I commit an arrestable offense, NO LEO is going to search my vehicle without a warrant, without facing felony charges, starting with armed robbery under the color of authority.
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    Quote Originally Posted by 4sooth View Post
    Another exception to the warrant requirement is "exigent circumstances"--preventing the destruction of evidence, preservation of human life, hot pursuit (on foot) of a subject who runs into a dwelling--even if it is not his own. Concerning exigent circumstances--the police are not allowed to "create" exigent circumstances and then use this as a pretense for entry. Any search of a vehicle must be related to the reason the vehicle was stopped to begin with. If the driver was stopped for a burned out tail light--what evidence of a defective tail light would be found in the car. The mere presence of a firearm is not justification for search. In a duty-to-notify state officers are (generally) permitted to disarm the citizen at their discretion for the duration of the stop. Armed does not equal dangerous. I have had some spirited discussions about this concept with local police. They claim anyone with a firearm is automatically dangerous (based on the mere possession) and are to be cuffed, the car searched, and the serial numbers run to determine whether the gun is stolen or not. I have had one deputy tell me "I search every car I stop". I asked him what was his justification for this. He said it was for "officer safety"!!! Go on "Oyez"--this is the U.S. Supreme Court site. You can peruse cases by "issue', civil rights, search and seizure, commerce, and more. Great info there and will help you get a feel for the "mindset" of the court--past and present.
    Yes officers can use the exigent circumstance argument to justify a search of a residence. If they are in hot pursuit of an individual and it enters a home, they cannot search anything and everything; they can only search for a person and areas where a person could be hiding.

    It would be hard to argue in court that they believed a suspect was hiding in a kitchen drawer or something similiar. This would be a violation of the Fourth Amendment.

    I believe ANY search of a person's belongings is unconstitutional without a warrant, but the courts have disagreed with me over the years. It is amazing how they can misinterpret the Fourth Amendment -- and every other amendment in the Constitution.

    EDIT: I visited the web-site you shared in your post and found a case coming before the Court very interesting. The case of Florida v. Jardines will be a case to monitor very closely. The gentleman that is summarizing the case in the video seems to believe it was OK for the officers to go onto private property and use a drug dog to detect narcotics INSIDE the home without a warrant. I hope the court is sensible in this decision and rules the act unconstitutional. If this passes scurtiny, then officers can take their dogs from house to house. If they allow it to stand with RAS as a precursor to the use of the dog it will still allow them to go door to door because RAS in such a situation could be anything.

    These officers went onto private property without having official business at the residence and used a drug detecting K9 to establish probable cause for a warrant. If this is deemed constitutional then we have better watch out, because our private property rights are history!
    Last edited by KYGlockster; 12-10-2012 at 11:48 PM.
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    Quote Originally Posted by KYGlockster View Post
    SNIP These officers went onto private property without having official business at the residence and used a drug detecting K9 to establish probable cause for a warrant. If this is deemed constitutional then we have better watch out, because our private property rights are history!

    With any luck they'll remember the uproar over Kelo vs New Haven. (property rights vs eminent domain)
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

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    Quote Originally Posted by 4sooth View Post
    Another exception to the warrant requirement is "exigent circumstances"--preventing the destruction of evidence, preservation of human life, hot pursuit (on foot) of a subject who runs into a dwelling--even if it is not his own. Concerning exigent circumstances--the police are not allowed to "create" exigent circumstances and then use this as a pretense for entry. Any search of a vehicle must be related to the reason the vehicle was stopped to begin with. If the driver was stopped for a burned out tail light--what evidence of a defective tail light would be found in the car. The mere presence of a firearm is not justification for search. In a duty-to-notify state officers are (generally) permitted to disarm the citizen at their discretion for the duration of the stop. Armed does not equal dangerous. I have had some spirited discussions about this concept with local police. They claim anyone with a firearm is automatically dangerous (based on the mere possession) and are to be cuffed, the car searched, and the serial numbers run to determine whether the gun is stolen or not. I have had one deputy tell me "I search every car I stop". I asked him what was his justification for this. He said it was for "officer safety"!!! Go on "Oyez"--this is the U.S. Supreme Court site. You can peruse cases by "issue', civil rights, search and seizure, commerce, and more. Great info there and will help you get a feel for the "mindset" of the court--past and present.

    Unfortunately, Pennsylvania vs Mimms established that, during a car stop, armed = dangerous.

    In Terry v Ohio, the court gave three criteria: armed + dangerous + nothing in the intitial moments of the encounter serves to dispel the cop's safety concerns.

    In PA v Mimms, that later court equated armed with being dangerous. Without even calling attention or acknowledging they were changing Terry. Fortunately, PA v Mimms was about a traffic stop, not a foot encounter like Terry.

    And, Michigan v Long says where in the car the cop may search for a weapon for officer safety.

    You can read all three cases here: http://forum.opencarry.org/forums/sh...ources-Here!!&
    Last edited by Citizen; 12-13-2012 at 01:56 AM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  19. #19
    Regular Member Logan 5's Avatar
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    Looking at all of these is good, except they cover motor vehicles. I'm talking about residence/real estate.
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  20. #20
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    much may hinge on where the OP's subject was arrested and the distance to the dwelling

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