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Please let me know if these posts help you by e-mailing me at DAA2000@aol.com

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DA

When do you have to read Miranda before questioning?

Alot of officers and attorneys believe that you have to read a suspect his rights before questioning him if the suspect is not free to leave. This is absurd. Check out this question from one officer about this....

Question
"An incident arose the other day that made me think of your class.

An Officer stopped a driver and passenger for a valid violation. (Should be noted there was no need for him to wait for the violation to occur due to the reasonable suspicion of the two looking into parked cars windows in an apt complex parking lot at 0300 hours.) No crime was committed at this time. The Officer called for a K-9 to check the truck and the dog alerted to the interior of the truck. A subsequent search revealed a meth pipe between the passenger seat and the center console. Neither would admit to owning the pipe. Officer arrested both of them for possess drug paraphernalia.

The problem arose when he was told he violated the constitutional rights of the two by not reading them Miranda before asking them about the pipe. Then another arose when he was told the arrest was not valid because he could not prove ownership of the pipe, neither would admit.

Answer
First -- and as an aside -- The USSC in MARYLAND V PRINGLE held basically that if evidence is discoverd in the passenger compartment both the driver and passenger may be arrested. (That doesn't mean they will be prosecuted -- you are going to need an admission or fingerprints to get a prosecutor to prosecute probably.)

Second -- I need to know whether the two were "restrained in a significant way" at the time they were questioned -- were they handcuffed or in the back seat of the police car? If not, then I would think there was no custody and any statements they made would have been admissible.

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DA

Impounding Vehicles on Driveways

IMO -- the 99% rule should be that you should not impound a vehicle on a driveway.

There are, of course, exceptions -- like maybe it was involved in a hit and run -- and it is therefore evidence of a crime -- but even then I would be careful -- and get a warrant if possible.

OK -- here is an interesting case on this issue.

An officer sees a car being driven way too slowly and rather poorly on a residential street.

The officers sees traffic offenses, so he turns on his lights.

The driver pulls into a driveway.

It turns out that the driver was a little old lady trying to learn how to drive and being "helped" by her husband, who is a licensed driver. Unfortunately, the driver, Mrs Miranda, has no license.
For no apparent reason the officer throws the book at Mrs. Miranda giving her tickets and then impounding her car under a local ordinance permitting the impoundment of any car where the driver is not licensed.

The Mirandas sued -- and the 9th Circuit ruled that officers may only seize cars on driveways under the community caretaking doctrine. That certainly didn't apply here.

BTW -- Section 1983 does not give a hoot about a local ordinance that commands that you seize a vehicle. Remember you can't use a local ordinance or statute as a defense to a Section 1983 action / Constitutional violation.

It is poor judgment like that above that ends up costing every officer their powers.

A word to wise should suffice.

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DA

Motel Evictions -- Question

Dale,

I have attended your class 3 times. Twice as a patrolman and once as a Sergeant.

Our town has a bunch of hotels / motels. They range from nice to crappy to say the least. Lately we have been having trouble at one of the middle of the road hotels with large parties. A majority of the time patrol goes to the hotel and the first thing the clerk says is "I want them all tossed out". Well you can kinda guess what the patrolman do , they storm down to the room and kick everyone out. Fortunately for us it has not come back to bite us.

This past weekend we rsponded to the same hotel for another unruley party and the clerk as usual says to the responding officers" I want them all tossed out". I responded as well and heres were the problem started. I told the clerk we were done being the eviction police. I explained to the clerk we (the police) are sticking our necks out on the line and that we were not going to evict anyone anymore. I tried to explain to her that we weren't in the business of violating peoples rights and she looked at me like I had 3 heads.

Now I'm having to answer to my higher ups as to why we refused to "toss" the unruly party goers out.? I went over the cases in the book (I call it my bible) with my bosses. I was met with raised eye brows and concerned looks. Ha, unusual but good ! So now I'm stuck with them wanting me to investigate other options. I basically told them a majority of the problem lies with the motel management "Dont rent rooms to people who are having parties". You and I both know that wont happen. I remember you touching on this specific topic in your classes and I dont remember if you talked about other options or not. Are there any is my question?

Ok -- here are a few suggestions --

1. Tell the motel to include in the "contract' / agreement signed when the person checks in that the person renting the room agrees that if he / she is noisy, officers at the direction of the motel personnel may summarily evict the lessee. It should also be included that force may be used by the officers in evicting the renters. Tell the motel that their attorneys must draw this up and it must satisfy you (the officers and your attorneys) that it gives them sufficient power to throw them out. The contract must provide that officers may enter the room in these circumstances without additional consent or warrant.

2. Tell the clerk that she / he can throw the people out -- and you will stand by and make sure there is no breach of peace.

3. Tell the motel to hire their security guards.

Best -

DA

Searching Trunks

I am often asked by officers when is it ok to the trunk of a car?

Here is the simple answer --

There are three theories for the search of a trunk -
1. PC
2. Consent
3. Inventory

My answer is usually that every prosecutor would love for you to have all three theories.

Let's assume you (believe you) have probable cause to believe there are drugs in vehicle.

Always ask for consent. If you find drugs, be sure to fill out an inventory form -- or whatever your department requires for inventories.

That gives the prosecutor everything he / she wants.

Best -

DA

5th Amendment Right to an Attorney

The 5th Amendment right to an attorney is different from the 6th Amendment right to an attorney.

It is easy for officers to confuse the two rights.

First, the 6th Amendment right occurs when formal proceedings begin against a defendant. Formal proceedings normally commence when an attorney is appointed at an initial appearance or (less often) when a grand jury indictment is handed down (if this occurs before the initial appearance).

The 6th Amendment right to an attorney is "crime specific" -- so officers may talk to a suspect about other crimes than the one which the suspect is represented.

According to People v Outlaw and People v Lira, the 5th Amendment right, on the other hand, is not "crime specific" -- so once a suspect has asked to speak to an attorney, officers may not question him / her about other crimes.

The exceptions to this are:
1. There is "break in custody" United States v Drake, People v Outlaw.
2. (Presumably) When the case is over and the suspect has been sentienced (-- but I am not aware of any cases that say this. It just makes sense to me.)

Best -

DA

Noisy Parties

I get a lot of e-mails about breaking up noisy parties. Officers are particularly vulnerable to civil suits when they enter premises simply based on the complaint of a neighbor. These suits can get very expensive when party goers get hurt. Best careful on this one.

Consent
My advice is that if you can consent to go into a noisy party, you can go in. The limits / scope of the consent is what you ask. If you ask if you can come in, you can go into the house. You can't go roaming around the house in search of underaged drinkers -- or whatever, unless you ask for consent to do that from a person who had at least joint access to the areas of the house you want to search.

Exigency / Emergency
The Illinois courts have ruled that noisy parties -- even under-aged noisy drinking parties -- are not exigencies.

Officers may, of course, enter if they get a 911 call that someone has passed out, etc. but such calls must be treated as emergencies as it relates to the party who is in trouble.

Search Warrant
Many states provide for telephonic warrants. Officers should get their lobbyists to pass legislation providing for the procurement of telephonic warrants to enter noisy parties.

Noise Ordinances
I also suggest very stiff noise ordinances that impose heavy fines on owners that permit noisy parties on the premises.

Back Yards
Back yards that are fenced are usually protected by the 4th Amendment. Be careful about enter them without a warrant or consent.

Best -

DA

Terry Searches of Passengers

On September 13, 2008 I worte a blog about a case called State v Johnson. The ruling in the case from Arizona Courts was that an officer cannot pat a passenger down if the passenger is free to leave -- even if the officer can articulate reasonable suspicion to believe the passenger is armed.

The case went to the United States Supreme Court -- Arizona v Johnson.

The decided this case in such a milque toast way that the court was able to muster a 9-0 decision in favor of the state and reversing the Arizona Courts' decision.

The Court simply held that there was no way that the passenger was free to leave as the moment he got out of the vehicle the officer patted him down and found a gun in his waistband.

Since this was a detention (passengers are lawfully detained the same as drivers during a traffic stop) the pat-down was reasonable.

Best -

DA

Seminars -- April, May and June

I try to set up most of my seminars about six months in advance.

If you want me to do a seminar at for your agency, or you are interested in attending any of the following seminars, e-mail me at DAA2000@aol.com.

Here is my seminar schedule for the next few months -

April 14-16 East Hazel Crest Village Hall -- 4th Amendment for Sgt and Lts

April 21-23 DuPage County Sheriff Dept -- 4th Amendment for Drug Officers

April 28-30 Palatine PD -- 4th Amendment for Sgts and Lts

May 12-14 Lisle PD -- 4th Amendment for Officers

May 26-28 -- Montgomery PD -- 4th Amendment for Sgts and Lts

June 9 -- Lombard Village Hall -- Legal Issues Related to Taking Statements

June 11 -- Hodgkins PD -- Civil Liability / Section 1983

June 17 -- Bolingbrook PD -- Recent Case Law

June 23-25 -- Buffalo Grove -- 4th Amendment for Officers

Best -

DA

Searches -- Parolees

All officers know that parolees must normally sign an "agreement" to avoid incarceration. The agreement usually contains language that permits searches of parolees and their property.

There have been some changes in the "rules" related to these searches in the recent years.

Until relatively recently, Illinois courts did not allow searches of parolees by law enforcement without "reasonable suspicion."

Recently however, both the United States and Illinois Supreme Courts have changed the rules on searches of parolees and their property.

The United States Supreme Court (USSC) in Samson v United States held that officers may search a parolee based solely on his condition of release. The court ruled that basically a parolee was not a lot different than an inmate as it related to his / her expectations of privacy -- and that the conditions of release then determined the parolee's rights v. the officers' powers.

In California that condition of release included the clause that parolees may be searched at any by parole officers or law enforcement officers. Because Samson accepted this term by his signature, his expectations of privacy were significantly diminished such that officers could search him with any theory.

The rationale for this rule was that over 2/3 of parolees are returned to prison. That figure was / is so high that the government has a legitimate purpose in ensuring that parolees do not possess contraband or weapons.

After Samson, the Illinois Supreme Court was faced with the case of People v Wilson, 885 NE2d 1033 (2008), which presented a similar situation related to the suspicionless search of a parolee's premises.

In Wilson, the parolee "agreed" to the search of person, property or residence as a condition of his release.

Subsequently, officers searched the parolee's home and discovered cocaine and heroin.

The Illinois Supreme Court, based on Samson, held that the evidence was admissible.

For those in AZ -- the 9th Circuit, in the same facts as Wilson ruled that the evidence was admissible for the same reasons. US v Lopez, 474 F3d 1208 (9th Cir 2007)

Warning: these cases give officers a lot of power -- abuse the rule, lose the rule.

news

I have been "snowbirding" down south for most of winter -- but I'm back now and intend to work at keeping my blogs up to date for a while.

First, Arizona v Gant will soon be decided by the US Supreme Court. When that comes down I will let you know my thoughts.

I am also going to put lots of the questions I have been getting -- and my answers on here.

I get 5-10 questions a day. I'm pretty good at getting to them and getting back to you.

If you have a question, send it to my e-mail DAA2000@aol.com.

If I use the question here, I will not divulge your name, department, etc.

Best -

DA