The Search & Seizure Show

Alright, guys got another question for you for roadside chat. This one is long fact pattern, but I think it's worth it right. This one is the question is determining if a bicycle is stolen based on an alleged victims accusation. So this question comes from an officer in California. And he did a very, very good job give me, you know, a lot of background for this case. And the essence of this case is, you know, is there probable cause? Is there forth an issue, and basically taking an alleged victims word at face value, that somebody has their bike and it's stolen? Right, what not much more. And I think that's a great scenario. So let's let me read the fact pattern. And let me address a few issues. Okay. So a little long, but again, that's why we're here to see what you would do. Alright, so this is what he said, a resident of a neighboring city came to our PD to report that a bicycle was stolen from her home about three days ago. The theft had not been reported to her local PD prior to coming to our PD, very common, right. But she did post a theft on a social media app called next door. The bicycle was an older beach cruiser style bicycle, with a child seat attached to the back. The resident did not have any proof of ownership, such as a purchase receipt or a serial number of the stolen bike. Now, at this point, one question I do have the option for the officer? And I don't know the answer is, is does the resident also have pictures of her, you know, with the with the bike with her kid, you know, on the bike, you know, that would kind of help circumstantially that the bike belonged to her. I'm thinking that she did, I'm gonna assume that she did, because it's going to be pretty hard to ask people to look for a stolen bike, with just some words, you're going to probably want a picture. So let's assume that the victim here has a picture that that's all she has those a picture of her riding the bike or, you know, next to the house and so forth. A few days after the victim posted the stuff on the app, another user on the app posted a picture showing that a male a black male was riding the bicycle, and that the bike matches description that the victim said was stolen, right. So again, I'm assuming as a picture here, if no picture, it's less circumstantial evidence that she owns the bike. According to the person who posted the picture, the male was last seen riding the bike in our city in the top city, behind the shopping center with a transient encampment nearby. Now, the encampment is along the 405 freeway, and the victim requests that the officers check on this area and see if they can locate her bicycle. And also check the area and saw a bicycle matching description. Matching description perfectly. Right. So now, almost now I'm thinking that there is no picture. But anyway, it was tied to a tree inside the cabin. Next to one of the tents about one foot or so from this particular tent, the officer contacted a white male who did not see the other suspect riding the bicycle from the camp...

The following is a computer-generated transcription, some grammar and spelling errors may be inherentHey, it's Anthony Bandiero here with Blue to gold law enforcement training. roadside chat from an officer in Nevada. All right, so here's the basis. The idea here is you know, do officers have agency to enter a home based off of a verbal disturbance that verbal domestic so let's say you know, a new officer response to a disturbance call, okay. The neighbors are calling up hey, these guys are going at him. Upon walk him to the door, he or she hear screaming and yelling. You know, coming from inside the house. The officer announces police in the yelling stops. The young officer then knocks on the door but no one answers and can hear people moving inside. The officer is not sure what to do and wait for an additional unit. Okay, that's pretty common should be waiting for additional unit anyway. Right. The new officer relays the information to the senior officer Hey, I heard these guys screaming when I knocked on the door yell police, they stopped screaming. The senior officer decides to make entry to render aid based on the agency to protect an occupant from imminent harm. Would the agency be okay? Now, one of the things like is the agency stale, right, because we waited for the senior officer. Well, first of all, I gotta tell you, you know, just as my personal opinion, and so take it for what it's worth, but I got a little hesitation to begin with, like about why we're even entering this home. I'm personally not seeing the emergency aid exception applicable here. The emergency aid exception allows cops to force entry into a home without consent without a warrant when they believe that there is imminent harm, or violence or render aid. But it seems to me that what we have fundamentally is verbal, and I understand that verbals can escalate into into physical, but I'm not sure courts are going to buy off on that as something as a matter of routine is automatic. Is there anything else? Is there a history of violence at this house? Is that the the the neighbors hear any kind of crashing plates and breaking plates and stuff? Certainly, no throw on the lawn, which could indicate a propensity for physical violence. But I'm just telling you just you know, my opinion here is that if you have a case, and it's purely verbal, you have no evidence. Besides the fact that they're yelling at each other, that someone needs or needs your help in protection. I personally would not be entering that home with those facts. I'm just telling you, because I've seen this more and more with cases because if I was the judge, be like, Okay, where is the eminent? where's the evidence that this person is about to be assaulted physically? People oftentimes get into verbal arguments. I've been in verbal arguments, you know, with my spouse, and you have to, and if police knew that and knew nothing else, would that allow them to force entry into my home? I don't think so. And that's my point. So be careful there. Do you want something more than just verbal? But even if, and by the way, this is not clear. I mean, in no way am I telling this office senior officer that he or she did the wrong thing? By no means am I meaning any disrespect? I'm just saying let's, you know, I'm sure there was a lot more I mean, this thing is a paragraph. I'm sure in the real case, there's a lot more going on. And really, by the way, the officers not really asking about that issue. The officer is asking what the staleness of it. And I'll ask that next. But so just to let you know that, you know, I respect you guys. And I know that there's way more case more and more facts and so forth. And finally, the officers really kind of talking about is there a stillness issue here? ...

he following is a computer-generated transcription, some grammar and spelling errors may be inherentHey guys, welcome to another roadside chat. My name is Anthony Bandiero, Senior Legal instructor and Attorney at Blue to Gold Law Enforcement Training. This question comes from an officer in California. And he asks whether, if you're executing a search warrant on a cell phone, and let's say the search warrant is for firearm violations, right, you can picture maybe a gang member, a felon, and we believe that we have evidence of fire, you know, that firearm possession on the cell phone. And so the officer is looking through the phone, text messages, Facebook, etc, etc, for firearm violations, but comes across evidence for narcotic sales. Does the officer have to stop searching the phone? And for you know, in order to does it also have to stop and go get a piggyback warrant? Or can the officer still continue to look for firearm violations? And again, see other evidence in plain view for narcotic sales? And will that come in? So the answer is yes, the officer can go down that route. That is an option. Officers are not required to as long as the scope of the search remains within the boundaries of the search warrant. So we're still looking for firearm evidence, then we are good. However, you know, any officer I think acknowledged that the best practice, of course, would be to get a piggyback warrant. But I think you're just asking academically do we have to stop? And to get that warrant? And the answer constitutionally is no. Right? not constitutional. Now, I'm not going to dress any statutory claims. I do not teach statutory law; that is for your prosecutors and for you know, other people can say, you know, but I'm talking about the Constitution, the Constitution would uphold as long as we can prove that the officer did not go outside the bounds of that scope. And really was, you know, now searching for drug evidence and not any longer searching firemen, then we're going to be fine. But at the same time, we know that best practice especially for firearm or for sales, because that's a very serious crime. We may we're gonna want a timeout and just shut the phone down temporarily go get the worn, the piggyback, worn come back, and then specifically search for firearms more firearm evidence and directly search the phone for sales. I hope this helps. Keep your questions coming. Until next time, stay safe.When it comes to legal training, we're the gold standard. Visit bluetogold.com or Call 888-579-7796 today to purchase the search and seizure Survival Guide, register for a class or learn how to bring our search and seizure training to your agency

The following is a computer-generated transcription, some grammar and spelling errors may be inherentHey guys, it's Anthony Bandiero here with Blue to Gold Law Enforcement Training. I'm in beautiful Lafayette, Louisiana teaching at the parish, which is the county. That's what they call it, the County Sheriff's Department. And a question was asked whether or not a driver may consent to search not only the vehicle, right, but also passenger's possessions? The answer is maybe this is what the law says, Does the officer reasonably believe that the driver has common authority over those passengers' possessions? And common authority comes in three flavors? One, do you reasonably believe they have mutual use, or joint access or control? One of those three, sometimes more than those three, sometimes all of them, for example, married couples, oftentimes, you know, share property, they have mutual use of it, they both use it, they both access it, and they both have a degree of control over it. But in a situation of friends, it gets a little more trickier. So let's say you stop a car. There's a female passenger and a driver, male driver. The male driver gives you consent to search. Can the officer search the purse in the passionate side? The answer be probably not. Because with those facts that I gave you, it doesn't seem reasonable to believe that the driver has common authority over that purse. What about the passenger has a backpack in the backseat? And it's not there's no name on it. And it's just It's back there. And the driver gives consent; the occupants get out, the passenger gets out. And then the officer searches it and finds, let's say, narcotics, that it's then charged against the passenger. Whether or not the driver has common authority depends, again, whether it's reasonable to believe that, that he has some degree of control over the backpack mutual use joint access, if the backpack is in the backseat, and nobody mentioned makes any mention that it's not their backpack. And in what those basic facts, it seems reasonable to believe that the that that the backpack belongs to the driver. And so therefore, the driver would have apparent common authority over the backpack even if later. He it's proven that that was incorrect. That's not what's required under the Fourth Amendment; what's required is reasonableness. So it's it's not actual authority that we have to prove in most states. Its apparent authority. I hope that helps. One way of looking at this, by the way, is I call it the piggyback rule. The piggyback rule is simply saying, Look, if you're going to base your search off of somebody's consent, each item each place searched, has to be something that you reasonably believe that the person giving you consent could have done the same thing without trespassing on anybody's rights. Does that make sense? You know, so for example, if you go to an apartment, and you have two roommates, and one roommate gone, it seems reasonable to believe that the consenting roommate that's in that apartment can give you consent to search to common areas, his room, a shared bathroom, the kitchen, but would not seem reasonable to get consent to search somebody else's room where he does not stay and does not live in. But married couples, it seems reasonable to get consent to search from let's say the wife while the husband is not there to search almost anything in the house because most spouses have unfettered access to the entire house, even if they don't normally look in those places like so, for example, the garage if the wife and Misty, I don't really go in the workshop, and I don't look in the tools, and I don't look in these areas, but you can go search them, most likely that consent to search is going to be upheld as valid because it's reasonably believed that the officers can piggyback off of the wife's consent...

The following is a computer-generated transcription, some grammar and spelling errors may be inherentHey guys, it's Anthony Bandiero here with blue to gold law enforcement training. I want to share another question I got from a student in New Orleans. I'm about to head back to the airport. But this is a question that is excellent because it does come up quite often. The question is, if officers have an arrest warrant, can they serve it at a third party's home? Not just the suspect's home or where they live?And the answer is no. The reason is, is that this is called the steagle rule. What the US Supreme Court says is that the an arrest warrant gives you essentially automatic authority to search for that suspect that fugitive at their domicile, that is that level of intrusion is included with the arrest warrant. So when a judge signs off an arrest warrant, they are essentially also signing off on the ability to search for that person at their domicile. Because that is not highly intrusive. It makes sense that if you have an arrest warrant, well, where would they be? Well, either they're in public, which implicates no Fourth Amendment really issue. But if they're at their home, it makes sense that that's where they would be captured. But one other issue with that is if you are going to serve that arrest warrant at their home, you do have to articulate that you have reason to believe that they're presently home before you execute the search warrant—so valid arrest warrant, at their domicile. And at the time of execution, they are presently you have reason to believe they are presently inside the home. If those three things exist, you can serve the arrest warrant at the house in the same manner, as if you had a search warrant, which includes forced entry after knocking announce now, with when the person flees to a third party's home, or it happens to be a third party's home, their cousins, their friends, their girlfriend's house. Well, whether or not they have Fourth Amendment standing or a fourth amendment privacy interest in that home is actually a different question. Courts will look at does the person spends the night there? You know, they have a key there, and they have unfettered access to the residence. That's what's one issue. So you may or may not be violating the suspect's rights. But you are certainly violating the homeowners rights the third party; they have fourth amendment rights to keep police out of their home to serve these warrants for other people that happen to be in their home at the time. Does that make sense? So if the person is at their cousin's house, the cousins the cousin has a right to keep police out without a different search warrant, naming his or her house in the search warrant. And that's what's going on there. So again, keep that in mind. The officer shared a story where the officer did serve an arrest warrant at the cousin's house. And that is problematic. You're going to need usually either the cousins consent or somebody who has apparent authority over the home, which they didn't have in this case, or you don't have to go back to the magistrate and get a search warrant to look for the fugitive at the cousin's house, then you can serve the arrest warrant. I hope that makes sense. I Hope I'm moving the ball forward with these discussions, and it's giving you some good feedback. Keep the questions coming. And until next time, stay safe.When it comes to legal training, we're the gold standard. Visit bluetogold.com or Call 888-579-7796 today to purchase the search and seizure Survival Guide, register for a class or learn how to bring our search and seizure training to your agency.

The following is a computer-generated transcription, some grammar and spelling errors may be inherentHey guys, it's Anthony Bandiero here with blue to gold law enforcement training. I have another question from an officer from Arizona. And it's a great question. I want to share it with you and give you my feedback on it. And so the question is, Can officers still ask for consent to search a vehicle during a traffic stop? Without that being considered extending the traffic stop for an unrelated region reason, in violation of the Rodriguez decision? And so the answer is, yes, officers can do it. It is not it does not violate Rodriguez. And here's why. So, first of all, as a little bit of a context, Rodriguez is that decision from 2015 that says that if officers overextend a stop for an unrelated reason, then that violates the Fourth Amendment and evidence to suppress? Well, that just makes sense. I mean, Rodriguez decision was really bad facts make bad law type of logic. The officer there extended the stop for seven minutes to run a canine without any reasonable suspicion, but yet the traffic stop was done. It was over. In fact, Rodriguez was let go. And then he was detained when he did not agree for the dock search. But that decision has not been read in a manner that says, any unrelated questioning absolutely no matter what violates the Fourth Amendment. Instead, what courts are really looking for is, are cops doing something? Are they you know, asking so many questions about an unrelated topic, that it measurably extends a stop, and it cannot be upheld under the Fourth Amendment reasonableness standard. But courts fortunately, and I think this is the right answer, by the way, are not reading Rodriguez in a manner that says any question that does not directly relate to the stop is a violation in of itself. So instead, they're trying to find this balancing test, which is many cases are trying to find that proper balance. So for example, you know, if the officer approaches the car for, let's say, the stop was for speeding, and ask for license registration insurance? Do you have any weapons in the car? Do you have anything illegal in the car, you know, and so forth? Those questions are fine. They don't offend the Fourth Amendment because they do not measurably extend the stop. And moreover, many courts find that those type of questions are actually related to the safety issues of a traffic stop, it would be it would be very beneficial, for example, for an officer to know if somebody has a weapon or that they're transporting narcotics, that's a safety issue. And so some courts handle it that way. But even if they don't directly say that they the questioning still does not extend the stop. That is the same logic that applies to consent to search. Rodriguez is not violated if the occupants or the driver give consent to extend the stop for some other reason, for example, consent to search consent to ask questions that are unrelated to the traffic stop, that the defendant can surely give the officers consent to extend the stop. It's just when the officer does it on his or her own. And especially is very intrusive about it. You know, for example, if the stop is about a faulty blinker, right, and the officer is asking just several questions that have nothing to do with a faulty blinker, you know, or traffic-related issues, but it says it's going down this path of a drug investigation that takes you know, a minute or so that is going to offend the Fourth Amendment and the evidence is likely to be is going to be suppressed. So that is the answer. You know, in some states like Minnesota, and Oregon, the answer is a little different because those states do have a topic restriction on traffic stops. But that is not the general rule in the 48 other states. I hope this helps.

The following is a computer-generated transcription, some grammar and spelling errors may be inherentGood morning, guys. It's Anthony Bandiero, here with blue to gold law enforcement training, have another roadside chat. I'm in Memphis, Tennessee today, and I got a question from an officer actually, in Ohio, about whether or not an assigned parking spot at an apartment complex is curtilage? And the answer is no, it's not because it doesn't qualify under the done factors. That's how I would. That's how I would decide this case. And so the reason behind this real quickly is that in order to be curtilage are four factors. One is how close is it to the home itself? Well, a parking spot at an apartment, typically they're not. They're detached from the actual boundary lines of the apartment. So that leads against it. Number two, is, are there any? Are there any fences or barriers around the area? We're talking about the actual curtilage itself, not just the whole property, you know, so for example, if the apartment has a fence all around it, and it's considered a gated apartment, that is certainly going to weigh in favor of curtilage, but not enough to tip the scales. The third factor is use. What is the area being used for now? It's the exclusive parking spot of the tenant. But it's not, you know, that's a factor that helps. But it's not the kind of use parking in of itself, except the type of use that we're really going after here with curtilage. We're looking for family or personal activities. So that weighs against it, ultimately. And then finally, is there any site screening, and that's going to be a really big one here because any John Q citizen who happens to be in the parking lot can see the vehicle. And there is there, though, that's going to reduce the expectation of privacy. So for those four reasons, I do not believe it's going to be curmudgeon. Also, there are no cases that I've found that was some that was fine that under those general circumstances, that is curtilage. So there's your answer. Keep the questions coming. Until next time, stay safe.

The following is a computer-generated transcription, some grammar and spelling errors may be inherentI'm Anthony Bandiero with Blue to Gold law enforcement training. I want to make a quick video on a question that was asked to me by two different officers in two different states very recently. And it's a great question. And so now I want to share the answer with you, folks. So the question is, is Ken police run a drug canine around a car in a parking lot? The answer is yes. Because under those facts, the police did not conduct a Fourth Amendment search. And now here's why. A running a canine first of all, a drunk canine that canine picks up the scent of narcotics, narcotics are illegal to possess. Therefore, a suspect does not have a reasonable expectation of privacy, in that, that sense that's emanating from their car, you know, that's gonna be, you know, during the free air sniff. So that's, that's the first part. The second part is that the dog is lawfully present. When cars are in parking lots, whether it's Wendy's Motel Six is lovestruck stops, and so forth. The suspect can be there, but so can police. Nothing prevents a police officer from being from looking into a car. Now, I wouldn't want to touch the car and manipulate anything, but right to be right to see. And so there because the officer can be outside the car, so Can his best friend, the canine, the canine can also be outside the car. And that is the epitome of a free air sniff requiring no legal justification. And so that is what's going on. Now, you do want to make sure that the dog is lawfully present. So, for example, we have a case called Jardins, where police brought Frankie, the drug-sniffing dog onto the curtilage of a suspect presumed or who was allegedly growing marijuana. Now he was growing marijuana, but at the time was allegedly because they got an anonymous tip. The police brought the dog onto the property while doing a knock and talk, and the dog alerted. The US Supreme Court found in that case that that that was a search under the Fourth Amendment because the police had no implied consent, essentially, to bring that dog onto curtilage. During a knock and talk that was something that most people would not implicitly allow police to do. And it makes sense. And so because the police were trespassing while they brought the dog because they brought the dog, they're trespassing because they brought the dog that therefore it was a search under the Fourth Amendment. But take that same scenario in the parking lot of Wendy's, right, or the motel is, you know, where cops are probably gonna deploy the dog more often. Police can be there just like the suspect can again, and also, you do not need the manager's permission to be on the property. Whether or not, please get it that's a totally different issue. But the suspect has no right to exclude police officers from this side from that parking lot. So it's irrelevant whether or not police got consent from the manager, right? That person even if there's no, even if the manager did not consent. Right. And the suspect brings that up in court. The problem with that is that the suspect has no legitimate privacy interest in that parking lot because there's no right to exclude anybody else...

How're you doing Law enforcement officers. It's Anthony Bandiero, here with Blue to Gold law enforcement training. And today, I'm going to teach you the four elements that you need before you can do a warrantless vehicle search. The first element is probable cause that seems obvious. You need probable cause that the vehicle contains contraband or evidence. The second element is that the vehicle cannot be inside curtilage. Right, you must have lawful access to the vehicle. So that means that the vehicle mainly is on a public street or in a public parking lot. But if the vehicles inside a garage, underneath a carport, in the back yard, you likely do not have lawful access to that vehicle. And so, therefore, you're gonna need something else, for example, consent to be on the property by somebody with a parent or actual authority or some kind of exigency. So, for example, you believe that the vehicle is going to flee the jurisdiction, and so forth. So the third element is the vehicle has to be rarely mobile. What I like to teach my students is readily mobile means the vehicle either needs gas, tires, or a battery. And so if you see a vehicle broken down on the side of the road, and you develop probable cause to that there's evidence inside the car, can you search it? The answer is yes, if the vehicle, for example, has a flat tire, it's out of gas, or the battery went dead. And finally, the fourth element that you need is your search cannot exceed the probable cause that you have. And so this is very important because whenever you search a vehicle under the motor vehicle exception, you can only search. The scope of the search must be within the bounds of what a magistrate would allow you to search where the metric would allow you to search. So, for example, if you're looking for a stolen MacBook Pro, and you get you got a warrant from a judge, but the judge allows you to search for that computer in the eyeglass case? And the answer is no because it can't be contained in there. And so, the same principles apply when you're conducting a warrantless search or seizure. You don't have extra powers that the judge can give you in the first place. So those are the four elements again, probable cause lawful access, which essentially means the vehicle is not within the curtilage. It's rarely mobile, and your search does not exceed the scope of the probable cause that you have. I hope this helps. If you have a question for me, email me at [email protected]. If you want me to come out and teach you and your fellow officers advanced search and seizure. Until next time, be safe

The following is a computer-generated transcription, some grammar and spelling errors may be inherentHello, Law enforcement officers. It's Anthony Bandiero, here with Blue Gold law enforcement training. And today, I'm going to share with you the difference between open view and plain view. Open view is when you are in a non-protected area. And you see incriminating evidence. One of the reasons they call it open view is because, typically, you're on open fields. What is an open field?Open fields are generally anywhere where you can see the sky, and you're not in curtilage. Right. So I like to say if you can look up and you can actually see the sky, you're on one or two areas, curtilage or an open field, if you can look up and you see a ceiling while you're in a protected area. And how much protection that area gets depends on where it is. So for example, a home is going to get way more protection than the lobby of Burger King. But that's beside the point. So open view is when you see incriminating evidence, or concept, you know, or, or contraband or evidence when you're not in a protected area. Plain view, on the other hand, is when you are inside a protected area and see the evidence or contraband. Now, let me just make one thing clear, it doesn't really matter what you call it in the report. Most officers I know are calling this plain view no matter where they are. And that's okay. But since I'm a legal instructor for police officers, I figured I would just make a quick video and share with you the legal distinction between those two terms. Now, let me give you an example of open view. Open view is when you're walking down a sidewalk, right, that would be considered constitutionally under the Fourth Amendment and open field because it's not curtilage. Tech, usually, and you're walking by, and you look inside a house window and you see a marijuana plant in the window? Well, you that's open view, you don't need any prior justification on why you're on that sidewalk because the constant, the Fourth Amendment does not apply. So you could be there at two o'clock in the morning, you could be nosy, it doesn't matter. But now a plain view example, your call to a domestic violence, you go into the home, and you look over and you see that same marijuana plant in the window. Now, you have just seen it on their plain view, because you're in a constitutionally protected area. And now you see the marijuana plant. The important distinction is that under plain view, you always have to justify why you're in that place to begin with. So assuming that you didn't see the marijuana plant as you're walking up to the house, you're gonna the report has to make clear why you have lawful authority to even be in the home, whether it's the emergency doctrine, consent by one of the occupants. And there are numerous other judicially recognized exceptions which are going to get you into that home. But the point is if you are not lawfully inside that home, then then you cannot have the Plainview exception apply. So for example, if you make an arrest inside of a home, and let's say the arrest is lawful, let's say you had you were in let's say if during that domestic violence, you were in the home and you decide to arrest the husband, for domestic violence, and now your partner sweeps the whole house, including the basement and upstairs for other suspects. But none of it none of the officers had a reasonable suspicion that anyone else was in the house that could pose a danger. And while upstairs, your partner sees a marijuana grow operation or drugs in plain view, that is unlawful because if the court finds, just like I assume for these facts that there was no reason to the protective sweep...

The following is a computer-generated transcription, some grammar and spelling errors may be inherentHello, Law enforcement officers. It's Anthony Bandiero, here with Blue to Gold law enforcement training. And today we're gonna ask a very simple question. Do you need to read Miranda in its entirety to someone who claims that they already know their rights? The answer is yes. Even if you're, even if you're arresting a judge that's been on the bench for 40 years, and all he's done is criminal trials. And you arrest him for domestic violence. And you want to read him, Miranda. And as you're reading it, he says, hey, look, I don't need you to read me, Miranda. I know Miranda from the back of my hand. I can read you, Miranda, if you want me to, if you want me to. You can't say this is I find it funny because it's kind of ridiculous. You can't if you intend to interview him or her. You can't stop and say, Okay, I know you understand Miranda. You have to read Miranda, in its entirety. And the main reason here is that when you go to court, and you try to argue to the court that you got to a knowing and intelligent waiver of Miranda, well, it's hard to prove that the that the person knew their rights and knew what they were waiving, without you telling them what they are waiving. Does that make sense? So if if you tell him you have the right to remain silent, and he knew you stop right there because they know their rights, and you are convinced that they do know the rights, let's say you've read this person 2020 times before and you've read a Miranda 20 times before, but then you never read them that they have the right to an attorney. And if they couldn't afford one, one would be provided. It's hard to go into court and say, well, he intelligently knowingly waived his right to counsel. Because he told me he knew all his rights. You see the point there. That's the courts, basically, in order to prevent this kind of back and forth, and I know he knew his rights because I dealt with him before. They have a blanket rule. You have to read Miranda in its entirety. So I hope this helps. If you have any other questions, email me at [email protected]. Until next time, be safe

The following is a computer-generated transcription, some grammar and spelling errors may be inherentHow're you doing, Law enforcement officers? It's Anthony Bandiero here with Blue to Gold law enforcement training. And today, I'm gonna teach you C.R.E.W. C.R.E.W is an acronym that I teach my students during the advanced search and seizure class to keep in mind whenever they are searching or seizing a protected area, true stands for consent, or a recognized exception or a warrant. And the point here is whenever you are searching; you're seizing the protected areas under the Fourth Amendment, which are persons, houses, places, you know, places, papers and effects and so forth. You need crew, you need either consent by a person who has actual or apparent authority over that item or place, or you need to recognize exception. So the motor vehicle exception to the search warrant requirement, you need exigent circumstances. So for example, imminent destruction of evidence to before entering a house to secure evidence, community caretaking and so forth. So you're you need to recognize exception. If you don't have consent or a recognized exception. There's only one thing left, and you need a search warrant. And that's why I want you to keep this in mind. So whenever you're searching or seizing in a protected area, ask yourself Do I have crew? Do I have consent from a person to if I don't have consent? Do I have a recognized exception, which is most searches or seizures are going to occur with a recognized exception. If you don't have if you can't think of a recognized exception, then you're going to need a warm. This kind of give me give you an example. Real quick to how crew plays out. So you're in a home investigating a domestic violence while your partner is talking to the victim. For example, you're looking around, and you see a meth pipe on the kitchen table. Now, is that a search under the Fourth Amendment? No, because you're lawfully present, and you're allowed to use your natural senses to look around if you're lawfully present. So that is not a search under the Fourth Amendment. Therefore you don't need crew. But now you go over to the kitchen table, and you seize that meth pipe. Do you now need crew? Yes, because once you seize the item that implicates the Fourth Amendment, so do you have consent? No, not in this case? Do you have a recognized exception? The answer is yes. It's the plain view seizure doctrine. So you're allowed if you're lawfully present, you may seize evidence that is readily apparent to be contraband or evidence. And of course, under these circumstances, you don't need a warm, so that's how you use crew. I hope it helps and if you have any other questions for me, please email me at info at Blue to gold calm. If you want to read, I believe the best search and seizure book written for cops. It's a search and seizure Survival Guide. It's available on Amazon or on my website Bluetogold.com. Until next time, be safe

The following is a computer-generated transcription, some grammar and spelling errors may be inherentHello law enforcement officers, it's Anthony Bandiero, here with blue to gold law enforcement training. And today we're going to ask whether or not police can insert an undercover officer or a confidential informant into the jail setting to speak to the suspect about the crime for which they have believed to have committed without Miranda. And the answer, generally speaking, is yes, police can do this. Why? Because the coercive atmosphere that the Supreme Court is trying to prevent without a person volunteer voluntarily and knowingly waiving their rights, the right to silence is not present under those conditions. Right. When we're in the police academy, we learned very early on in our young police academy career that in order for Miranda to apply, you need custody, plus interrogation by police officer. Well, it's interrogation by a known police officer. If you have somebody in jail, and they think they're talking to a friend, like the confidential informant, or they're talking to a fellow cellmate, the undercover officer that has no coercive atmosphere there, because they think they're talking to somebody on their level, they're not talking to a police officer looking to build evidence against him. So, therefore, Miranda doesn't apply. There are two caveat that you have to keep in mind when it will apply. The first one is under the Fifth Amendment if they have invoked their right to counsel, if while you're arresting the person, you read a Miranda, and they say, You know what I want my lawyer, you can't get around this by putting a confidential informant in the cell with them. They have that once they say they, they want their lawyer, they're going to get their lawyer and the only way around that is if they initiate conversation with you about their crime. So them asking, Hey, I want my attorney and then later asking, Hey, how long am I going to spend in jail? Or what is my bail? That's not going to work that has nothing to do with the general crime for which they are accused of. But if they say, Hey, you know what, I do want to talk to you about the sexual assault, then they've opened up conversation again, and you can give them a new Miranda, right, fresh Miranda, and then get a waiver, preferably in writing. So that's, that's one caveat where this would not apply. The other one is under the Sixth Amendment. Once they have an attorney appointed to them, you can't talk to him about the climate issue. You can't talk about the crime that they've been charged with, or any related, possibly another crime that has the same Nexus as the one that they are accused of. So for example, if they are arrested for an armed robbery where a death occurred, but they have not been charged with the felony murder, you cannot obviously talk to them about the felony murder, even if has nothing to do with the actual armed robbery. That whole that whole Nexus that whole, you know, the facts, the crime that they are accused of. That's all off limits, that doesn't apply to any unrelated, uncharged crime for which a lawyer has not been appointed. So just think about that. I hope this helps Miranda, you know, I find that a lot of officers do have the basics down. But when it comes to some of these winding roads of different issues, Miranda can be actually quite complicated...

The following is a computer-generated transcription, some grammar and spelling errors may be inherentHow're you doin? Law enforcement officers? It's Anthony Bandiero, here with Blue to Gold law enforcement training. And today we're going to ask whether or not you can obtain consent to search from somebody who has invoked their right to silence on the Miranda? And the answer is yes, you can. And the reason is because Miranda protects testimony, right? It doesn't protect citizens or a suspect from using physical evidence against them. So the point here is that Miranda does not protect the act of giving consent to search because that consent the search has to do with physical evidence and not testimony. So very simple question, even a simpler answer. I hope this helps. Now, just also realize that if somebody has invoked the right to silence, and then you ask for consent to search, that doesn't give you a right that's not going to open the door for other questioning, right? That doesn't mean that if they gave you consent to search that they have now overturn their previous invocation. Other rules apply to that, and I will also cover those videos, but I hope this helps. If you have any questions for me email me at info at Blue to gold calm. Also, if you're interested in a search and seizures father guide, you can purchase it on Amazon or my website bluetogold.com Until next time, be safe.Have another question? Click here: https://www.bluetogold.com/show

The following is a computer-generated transcription, some grammar and spelling errors may be inherent How are you doing Law enforcement officers, it's Anthony Bandiero, here with Blue to gold law enforcement training. And today I'm gonna share with you the three golden rules of search and seizure.These three golden rules come from reading 1000s of court cases over the last 20 years. And after all, you start seeing a theme of what the courts are looking for the first golden rule, and the most important is, the more you articulate why you did something, the more likely you'll be upheld in court. And the reason for this is, first of all, the Fourth Amendment prohibits unreasonable searches and seizures. In other words, if what you did was reasonable, it's lawful. But what is reasonable is depends on the totality of circumstances, right. So that means that every fact and circumstance comes into play, right? One change in the fact or one change in the circumstances of something can determine can change whether it was reasonable or unreasonable. So you need to tell the court why you did something. And finally, this is an objective standard. You can't go into court and say, Your Honor, I was reasonable because I sincerely believed that what I was doing was reasonable. The courts will thank you for that feedback. But they require an objective standard, right? So it's kind of like taking all the facts of circumstances that you had, they put into this objective standard computer, if it spits out that it would do a similar response, as you did, then the court says, Okay, that was reasonable. But the key is you want to give that computer as much data as possible. And so the final point here is, when you do your report, you want to talk about three factors in the encounter, whether it's a consensual encounter, and Terry Stop, a use of force and so forth. The first factor is police. Talk about what police did, what did you do? What did your partners do? What resources did you have? What resources did you not have, and so forth? The next factor is suspect. What did the suspect say? Do? What was he wearing it? For example, if it's gang attire? Was there any weapons present? What's his criminal history, and so on? And finally, talked about the environment? Where does this encounter take place? Was it at night? Was it in a desolate area was in a high crime area, and so forth? You know, was it were there people around, you know, potential Confederates for the suspect, you want to talk about all those things, and laid out for the court. The second golden rule is, the more serious the crime, the more likely the court is going to uphold your actions as reasonable. And This is, you know, this is very important. So for example, if you have reasonable decision of suspicion to stop a person for a suspected sexual assault, and you pull out your weapon, you point your gun at them, and you say, hey, get on the ground. And then, you know, you pat them down, and you find, you know, a weapon and drugs and so forth. And then a suspect says, hey, you know, when he pointed that gun at me, I felt like I was under arrest, a reasonable person in those circumstances would feel like I was under arrest, and the courts are more likely. And I say, note, using pointing a firearm in those circumstances was reasonable because there's a serious offense. And so I like to, you know, basically say that courts are going to bend over backwards to find that your response and actions were reasonable when it's a serious offense. But if it's a minor offense, then they're going to put the whole weight on your shoulders to tell to to basically convince them to persuade the court, why you did what you did. And so if you pulled out your firearm and pointed at somebody suspected of stealing a candy bar at Walmart, the courts are gonna more likely not find that that was excessive for the situation. Right...

The following is a computer-generated transcription, some grammar and spelling errors may be inherentHow you doing, law enforcement officers. It's Anthony Bandiero. Here, Senior Legal instructor with Blue to Gold law enforcement training. I just read a case and I want to share it with you because it's really has some really good teaching points. The case is pagane Gonzalez V. Marino, it's out of the First Circuit. And essentially what happened here is this. FBI agents were interested in a suspect because they believed that he had child pornography on his laptop. Instead of getting a search warrant, they came up with a clever idea. They went to his house, and they said, Hey, your laptop is sending malicious signals to Washington, DC. But guess what? We're with the government; we're here to help, we'll fix it for free. If you if you let us look at the laptop. We'll find out what's kind of going on. And we'll fix it for free the suspect consents for the entry and the search of the laptop for the malicious software. The FBI agents then find what they were looking for. And they said that they'll do some more work on the computer at the office, they take the computer, they write up a search warrant for the home and arrest one for the suspect. Right. And the suspect says, Look, that's not fair. You can't do that. You told me you're I got malicious software, that I'm the victim of malware. And you're trying to help me with this. And instead, you're looking for evidence of child pornography, in the First Circuit agreed. Right. And let's look at why. First of all, the general principle here is that when uniformed officers, uniform doesn't mean always mean uniform, but known officers when known officers create an emergency in order to enter a home to search. That is that is not good. You cannot do that. Because it invalidates the consent, because what reasonable person what's what not agree? Under those circumstances? Right? It's kind of like, it's kind of like this if police went to somebody's home and said, Hey, we believe that there there's a kidnap victim, a little girl that got kidnapped Jesse, A witness said that she's in your house? And can we go look around? I mean, most people are gonna like, especially because they didn't, this is a lie, they didn't connect anybody, they're gonna allow the police to come in and look for the for the kidnap victim. And instead, if the police are looking for a marijuana grow operation, that is going to, you know, invalidate the consent because they created an emergency for the kidnap victim. So that's what happened here, right? The agents are saying that we're looking for this malicious software that's coming from your computer, a reasonable person is going to allow them to get rid of that software so that they're not breaking the law and so forth. The other issue with uniformed officers is you cannot claim to have an authority that you don't have, right? You can't say, Hey, I have a search warrant for your home. But you know what, I'd really like your cooperation, if you do cooperate, I'll let you know, the prosecutor know that you cooperated and so forth. And they're like, Okay, come on in, that is going to completely invalidate the consent. Because basically, what you're telling a person is, I'm going to search anyway, whether you consent or not, but can you will you consent, that is not a freely, involuntarily involuntary consent. So you don't want to do it that way; those things will invalidate consent. And that's what happened here. But while we're on the topic of lying in order to search somebody's home, and I want to make sure that we're talking about deception to search a home, right, we're not talking about general principles regarding lying and relying on interviews and interrogation or lying to a suspect on the side of the road.

The following is a computer-generated transcription, some grammar and spelling errors may be inherent Hey guys, it's Anthony Bandiero here with Blue to gold law enforcement training.I want to do a really quick video about a US Supreme Court case that's coming up. It's State of Kansas versus Charles Glover. And the Supreme Court is going to hear this case very soon. And the question is whether or not a police officer has reasonable suspicion to stop a car based purely off of the license check. The registration check shows that the registered owner has a revoked license. And I'm going to predict the future here for you. Okay. The Supreme Court is going to say, yes, the officer had reasonable suspicion that the Kansas Supreme Court said the officer had a hunch. But really, is it a hunch when you know that the registered owner has a revoked license? And especially when there's only one, one register owner not to mix a little bit tougher case. But there's one register owner? And you know, from your training experience, that most people drive their own cars? Is it possible that you can lend your car to somebody else and then the officer could have stopped your friend, or your your your brother or sister? Absolutely. But that's not a reasonable suspicion requires reasonable suspicion requires the officer to articulate facts or circumstances that will lead a reasonable person to believe that criminal activity is afoot. Right. The afoot is from Terry versus Ohio. But it's a fancy way of saying that you can put your finger on something you can say, look, Judge, this is why I stopped this particular car. It wasn't a hunch; I believe that it's a good chance, a fair chance, least reasonable suspicion standard, that the driver is the registered owner and therefore has that revoked license. A hunch would be, Hey, I heard that a person driving a white escalate has a revoked license. Oh, look, there's a white escalate. Let me go stop that car. That's a hunch you can't stop that car because you have nothing to put your finger on that. This is a person driving on a suspended license or revoked license. So the officer in Kansas, I think, did a great job. It's an IT is an important cause. To me. It's an easy case. I don't know why it's taken the supreme US Supreme Court to get involved. I will say before I leave off some teaching points here is that this maybe could have been avoided if the officer put in some more facts and circumstances, for example, that the if the if the revoke licenses for a male, that he believed he you know that a male was driving, they didn't appear to be a female, maybe the same age, if there are dark tinted windows, put that in there, hey, look, I couldn't even see the driver, because the tint that tinted windows was so dark. Right. You know, that would have helped the officer from my understanding purely stopped the vehicle and the reports a look, registered owner has a revoked license. Therefore I can automatically stop the car. It's it's probably true. You know, I think again, a Supreme Court is going to, I believe find in favor the officer, but it's always good to put those extra things in there. Things that does, you know, clearly officer probably had more information, he probably saw a driver that was a male or you know, for example. So I hope that helps. I just want to throw that out there. If you want me to answer more of your search and seizure questions, contact me through the blue to gold comm webpage. Also, if you're interested in having me come out to your agency and teach you and your fellow brothers and sisters advanced search and seizure law, do the same thing and contact me be safe until next time.Have another question? Click here: https://www.bluetogold.com/show

The following is a computer-generated transcription, some grammar and spelling errors may be inherent Alright, guys got another great question from a police officer in Texas. So here's the situation. So you stop a car, you gain voluntary consent to search the vehicle. And the driver says, Yes, you get the driver out. And then you conduct the pat-down on the driver, and you feel like hard objects in their pocket. And you ask the driver whether or not you could retrieve the item. He says, Yes, you retrieve the item, you pull it out of his pocket, you open it up, and there's heroin inside the container. And the question is, is, is asking him whether you can retrieve the item also allow you to search the item? Well, it depends. Let's look at the legal role. The legal role, is that whether or not you could open an item and search it under consent depends on whether or not you opened it, it was within the scope of the search. Now, this is an objective test, typically, where where, what would a reasonably objective person believe you're allowed to do when you ask the person whether you could retrieve the item did that when you asked the person if you could retrieve the item? And they said, Yes, that also include you opening the item? And so if there's there's no clear-cut answer, because you never asked the person whether or not you could open that and you said, Can I retrieve the item? So what are some of the factors that are going to come into play here? One is, would a reasonable person believe that when a police officer says, After putting down an object in their pocket, the police officer asked, you know, can I retrieve that item? I think, and actually in addition, not only that, but you also just ask for consent to search the vehicle. So we know that the reason person would know that the officer is interested in searching for something, whether it's drugs, you know, proceeds from drug sales, weapons, and so forth, or stolen property. So we already know that a reasonable person is going to be on alert that the officer is interested in searching. And so when you ask a person to retrieve an object from their pocket, it's it's implied that they want to search it. Because otherwise, why would the police officer want to simply grab a, an object out of the person's pocket? And I mean, I guess they could, they could look at it. But that's probably not going to tell you much. The officers, most recent people believe that daughter actually wants to search it. That's why they're asking if they can retrieve it. So I believe just with these barebone facts that you that most courts are are probably going to find that it's implied that within the consent to search of scope is implied that the officer is actually looking to look inside the item, not just retrieve it. Which brings me to my next point, you may still be able to retrieve the item under a protective under the Terry forest doctrine. In other words, that item may be considered a weapon under the pat-down. But that doesn't necessarily allow you to get inside the item either. So the better approach here is to justify the search under the implied scope of when I asked to retrieve that included looking inside of it. So I think that this is most likely a good search. It's not black and white, of course, because there's gonna be a fight. In court, you know, if the defense attorney wants to argue that the opening it opening the item was outside the scope of the search, I think he loses because I think a reasonable person would believe that opening the item was within the scope of the search. But good question. I hope this discussion helped and just come to the factors that the courts are going to look at, so be safe, and until next time. I'm outHave another question? Click here: https://www.bluetogold.com/show

The following is a computer-generated transcription, some grammar and spelling errors may be inherent Hey, guys, Anthony Bandiero Here, Senior Legal instructor at Blue two gold law enforcement training. I got another question. And I thought it was a great question. And it's not a search and seizure related question. It's an evidence related question. But it's something that drug investigators especially run into all the time, and it's wanting to use the use this as an opportunity to share some information. So the question is, is, if a narcotics investigator is has a parallel investigation, you know, and they ask another officer, usually a uniformed officer to develop independence, reasonable suspicion or probable cause to stop the defendant's car. And that turns into a search and, you know, in drug evidence is found, does the defendants have a right to, to gain information about the investigation that kind of prompted this pre tech stop? Right. And these are called Wall stops, because there's a wall between the the actual stop, which was, let's say, a speeding violation or whatnot, and an ongoing criminal investigation that may actually be based off of may have probable cause to, to also stop the defendants vehicle or not. But the point is, there's a wall between these two, and this, this, this parallel investigation is usually the reason why it's it's a pretext stop. So does defendant have a right to that information? The answer is no. And here's why. There are two principles at play here. First of all, it's in play here is the Brady rule. Right? You've if you were a cop in 2019, you've definitely heard of Brady violations. Right. Brady come from Brady V. Maryland. It's a US Supreme Court case that essentially says that the prosecutor has an obligation to hand over exculpatory evidence to the defendants, exculpatory evidence, right? Not inculpatory exculpatory that's fancy legal jargon for things that help defend and prove his innocence. Right? Or things that would help him get a reduced sentence. If you if you're sitting that kind of information, you got to hand it over because the defendant needs it for his defense. If not, it's a due process violation. So let's talk about why not handing over this parallel investigation. You know, the stuff behind the wall is not is not a Brady violation. Well, first of all, it's 99%, probably not going to be exculpatory. Everything that you know about this defendant tends to show, I believe, you know, if it's a drug investigation, and he is involved in narcotics sales, he has been trafficking. He has been undercover or hand-to-hand transactions or sold to an undercover officer. That's not going to help him he doesn't want that information in the court. So it's not exculpatory. Right? And so that's, that's the main reason. It has nothing to do with what the actual reason for the stop, which was, let's say, speeding and so forth, so it doesn't help them. So there's no due process violation. Now, just to be clear, it also, the evidence would also now have to be exculpatory, exculpatory, but also material, because we get a lot of info as police officers, we get a lot of information that may tend to prove or help the defendant. show his innocence. For example, if you're investigating an aggravated battery, and the defendant's neighbor says, you know, the defendant, he is such a nice person, I've never seen him hurt a fly, and he helps me take out my trash every Sunday. Do you need to give that information over to the defendant? Is that is that a material exculpatory information? No, absolutely not. It doesn't have nothing has nothing to do with the crime issue, which is aggravated battery.....

The following is a computer-generated transcription, some grammar and spelling errors may be inherentHow're you doing? Guys? It's Anthony here with blue to gold law enforcement training, just left another great phenomenal class teaching officers search and seizure in Galveston, Texas, beautiful place. And one of the students asked the question, I think it's worth asking here, and we can take some teaching points from it. So the question is, is, if an airport officer runs a K9 dog on a drug canine on a piece of luggage, and alerts, can we then sit back and wait for the owner to pick up that luggage and then arrest the owner and then actually search the case, incident to arrest?And the answer is yes. But let's walk through the analysis here. So whenever we do a search, we search or seizure a protected item. We need crew, meaning crew, we need consent, or recognize exception or a warm, alright. And whether or not we need crew is based off the phone analysis. The first question courts are going to ask is whether or not the search or seizure even involves a protected area? Well, that's going to be easy here, a suitcase is a container, it is in effect, and in effects are protected under the Fourth Amendment. Persons houses, papers, and effects. So yes, the answer is we are dealing with a protected item protected by the Fourth Amendment. Is the is the free air dog sniff a search? The question the answer is no. Now in these circumstances, the officer had lawful access to the item and just a free air sniff around a piece of luggage is not going to implicate the Fourth Amendment. So the suitcase is a protected item, the dog search is not a search under the Fourth Amendment. So that's not an issue. The second thing is whether or not the arrest would offend the Fourth Amendment. So obviously a person is protected by the Fourth Amendment. And they would be seized that they were arrested. So we need an exemption to the war requirement. Well, officers an exemption to the war requirements anytime officers have probable cause that a person has committed a crime. And the officer has lawful access to the person. Well, we know when a person's in the airport, they have lawful access. If they have probable cause that the person committed a crime, they can go quickly collect habeas Gravis with the handcuffs and arrest that person. So the final piece of this is that we have no search in the fourth member with the dog; we do have a fourth amendment seizure the person if we make the arrest. And the final piece is whether or not the dog alert on the luggage is itself enough for proper cause arrest. It is right because you're going to be able to articulate that a person picking up their luggage, right? They probably even have a tag with their with their ticket number on it. They're picking up their luggage, they're the ones they're the one that gave it to the airline to transport when they're picking up their luggage. Is there a fair probability? Right probable cause? Is there a fair probability that this person knows that there are drugs? In their suitcase? The answer is yes. Right? Yes, it's fair, it's, it's fairly probable that if you pick up a piece of luggage, and there's a dog alert on that luggage, then then then there's probable cause to arrest. And if you didn't have to arrest the person, you searched the luggage that's going to be searched incident to a lawful arrest. Now, the other question that came up in this class is, could you search the luggage without the arrest? And this is, again, we're talking about drug talk. And the answer is? No. The reason is, is that there is no exception to the war requirement. There's no recognized exception number. We need crew, and we don't have consent. We don't have a war. So is there recognize exceptions open up a container?....

The following is a computer generated transcription, some grammar and spelling errors may be inherent.Hey guys, Attorney Anthony Bandiero here bringing a roadside chat this time. An officer from Texas wants clarification on knockin talks. And in particular, I guess the question would be, can you do a knock and talk at odd hours at night? Okay, the answer is yes. If you have a reason to believe that the occupants would be receptive to uninvited guests, so my friend in Texas, you know, you've seen other videos where I talk about how courts have held that you know, knocking at odd hours at night, you know, police open the door, and the officers going back to write that report and saying, Oh, that was a knock and talk. No, it was not. That is not a knock and talk that was as to say, the least a detention, because what reasonable person would feel free to ignore you. So if they chose to open that door, they have been essentially detained. They're even still in their house, but it's still a form of the tension, because the person did not feel free to leave. And they submitted to your show of authority. Okay. But going back to the question, is it possible to have a knock and talk late at night? What's interesting about this question is it comes very, it's very timely, because there was a case decided, just a few months ago, out of the First Circuit, and here's what happened. Basically, a boyfriend, girlfriend, you know, they're college students, and their relationship is in turmoil. So they break up, the boyfriend doesn't take no for an answer the ex-boyfriend and is basically harassing her, also, in some way stalking her, they end up after, you know, a month or so goes by, they kind of makeup and but just as friends, right, just as friends, at least that's what she wants. He doesn't he wants a relationship again. But you know, she, she allows him to be a friend. And he starts doing really weird stuff again, you know, and they get into a fight in, you know, an argument at his at her house, and he takes her cell phone, alright, and leaves. Now, this happens, you know, around three o'clock in the morning or so. And, you know, she calls the police, the phone is missing. They, you know, believe, you know, they that, you know, obviously he took it right. So they go to his house now, they go to his house around for a 5am kind of read from the case. And they observed the lights on in the home and decided to conduct a knock and talk rather than apply for a warrant to go get that phone. So here, the court said the officers entered the property, walked into the front porch, knocked on the door, and announced that they were police officers seeking to speak with the occupant. No one answered and the officers left the property. Was that in and of itself a constitutional violation? And the court said no, at this point, there was nothing constitutionally infirm about the officer's conduct, which was expressly permitted by the knock and talk exception to the warrant requirement. Okay. So they basically did what the public to do. Um, I want to let you know, though, a key to me in this case, is that the lights were on, and that they knew that French, the defendant here was just at the girlfriend's house recently, so he was up, they knew he was up recently, the lights are on. And, you know, it seems reasonable that maybe French would like to talk to the police and, you know, settled matter like, oh, no, I don't have her cell phone, she probably left it in her car or something. So, so far, so good. Okay. And let's also pause for a second and let me give you the citation. The citation for this case is French versus Merill, M E R, R, I L, excuse me, Ll, and the citation is 15 415. I'm sorry, F fourth. So federal fourth 116 First Circuit 2021. Okay. The problem is, though, they the officers in that case, went back to the home

Hey guys, it's attorney Anthony Bandiero. Here, bring you another roadside chat. And this question comes from an officer in Nevada, and actually, he's a corrections officer in prison. And he brought a great a great scenario. Do prisoners have a reasonable expectation of privacy in cell phones? Right? So the scenario is an officer, you know, in prison, found a cell phone, searched it without a warrant, and, you know, saw some information that helped prove that the prisoner knew, you know, that he had it, you know, I guess he's trying to say, Oh, I have nothing to do with that cell phone. But, you know, the evidence inside the phone shows that he made calls to people associated with him and so forth. Alright. So normally, the prison would get a search warrant. But the question for us today is, do you need one? And the answer is no. Right? The answer is no. And the reason why is because the prisoner knows or should know that they cannot have that cell phone. Clearly, it's contraband, right. All the rules, say it no cell phones, they know or should know that that phone is absolutely prohibited in that facility. So, therefore, when they brought it in somehow or obtained it, they're possessing contraband. And generally speaking, a person does not have any reasonable expectation of privacy in contraband. A good example of that is a Supreme Court case called Illinois versus Kabbalists, where the Supreme Court said that a dog sniff in and of itself is not a Fourth Amendment search if it is trained to detect contraband, right. So in that case, the canine was run around a vehicle during a traffic stop, it alerted to the presence of contraband, and a search ensued on the probable cause. And Kabbalists lost that case because again, the dog is not searching under the Fourth Amendment. Well, it's the same concept applies here. When officers in the prison facility search contraband, it's not a search because it doesn't implicate the Fourth Amendment. The Fourth Amendment prohibits unreasonable searches and seizures. This is not even a search, right? Because it doesn't implicate it's not a protected item. Let me just give you an example from a case called United States versus bash. I have the Westlaw citation. It's 2021, w l 3207252. So again, 2000, what are 2021 WL that sounds for Westlaw, three to 07252. It's out of the Eastern Eastern District of California, it was decided actually very recently, July 29, 2029. So here's a case where corrections officers search a cell phone in a cell in a cell and the bash the prisoner is trying to complain about this search and saying that you guys needed a search warrant. And here's what the court said about that. It said. Moreover, it is well settled that prisoners have no reasonable expectation of privacy in the belongings they keep with them. The Fourth Amendment, prescription against unreasonable searches and searches does not apply within the confines of the prison cell. California prisoners are prohibited from possessing a cell phone. And thus, defendant bashe cannot claim to have had a reasonable expectation of privacy in the contents of the contraband cell phone, which he possessed and violation of the law. Well, I don't have the Nevada law in front of me, but I'm sure that either by regulation or directly by law, the prisoners in Nevada cannot have a cell phone that would be considered contraband. Again, the law can basically tell the Department of Corrections for you to decide what's contraband, what's not. And the DLC would then lay out that cell phones are included, you know, also found another very persuasive case. This case is called we bring it up here. It's called United States versus huart and it's huart as H.U.A.R.T let me just kind of explain what's going on here. So the citation by the way, is 735. F 3d 972. A case out of the Seventh Circuit decided in 2013 against you at unit United States versus Huart 735 f 3d 972.

The following is a computer generated transcription, some grammar and spelling errors may be inherent.Hello, my friends, it's attorney Anthony Bandiero. Here bringing you a roadside chat. The question comes from an officer in Texas; he says I'm in Texas; I want to know if you stop someone for a traffic violation. Can you identify the passengers? Or can the passage refuse to give identification? It's a very easy answer; it applies to all states. Well, this first part may not be right; you can enter the fourth amendment, ask for a person's identification, or identify themselves, as it's a lot easier. If you just ask for their information, write it down; it gets a little more complicated when you take their ID, not because they may be free to leave, but just because it's a little more intrusive, and so forth. But you can certainly ask under the Fourth Amendment for their information, and you can run their information as long as it does not, you know, extend a traffic stop. So it's ideal if you can have somebody else run the passenger. So those rules differ a little bit, depending on what state you're in. But under the Fourth Amendment, the rules are the same, of course, right. But the second part is much easier. Can you demand a passenger's ID? Are there any consequences? The refuse? Absolutely not. Do not do it, do not threaten to arrest them for obstruction unless you have reasonable suspicion as to them. Suppose you end up arresting this person, for you know, some violation and because you know. In that case, you think that you have obstruction or refuses identify, expect a very bad day in court. And you can also get sued, and you may lose civilly because some courts are saying that a person's rights refuse themselves.The right to refuse to identify themselves is clearly established, and you have no reason to order them to identify themselves. So the takeaway here asking, usually no problem. Demanding big problem if you don't have reasonable suspicion, before you leave, hit the like button, subscribe, share with your friends. Thank you.Have another question? Click here: https://www.bluetogold.com/show____________More about Blue to Gold:NEWSLETTER: https://www.bluetogold.com/subscribeIN-PERSON TRAINING: https://www.bluetogold.com/calendarFREE WEBINARS: https://www.bluetogold.com/calendarON-DEMAND TRAINING: https://university.bluetogold.com/BOOKS AND TRAINING MATERIALS: https://www.bluetogold.com/store____________Let’s Connect: FACEBOOK: https://www.facebook.com/BluetoGoldTr...TWITTER: https://twitter.com/bluetogoldINSTAGRAM: https://www.instagram.com/bluetogold/LINKEDIN: https://www.linkedin.com/company/blue...

Hey guys, this is Anthony, Senior Legal instructor with blue two gold law enforcement training. Just got a question from an officer in Idaho. Two great questions, I want to share it and give you my thoughts about it. The question is, is if you have reasonable suspicion or probable cause that a passenger in a vehicle, right has committed a crime, can you stop the vehicle even though you have no reasonable suspicion? or probable cause that the driver has committed a crime? And the answer is yes. And let's look at why the answer is yes. First of all, we know that the US Supreme Court has already said that, when you have reasonable suspicion or probable cause that the driver has committed a crime, the car can be stopped, even though there's passengers in the vehicle, right. And so the Supreme Court has held that those passengers are legally seized under the Fourth Amendment, even though you have no suspicion that they've committed any crime. So we already know that. So we know, based on that logic, that the reverse is true, that if you have reasonable suspicion, or probable cause, that the passenger has committed a crime, let's say you think that they have a warrant, or they're not wearing their seatbelt, they throw a cigarette out the window, you know, that type of crime, we know that we can stop the vehicle because that's where the passenger is, even though the driver has not committed any crime. And so that's the that's the logic behind it. But there's a few things I want to kind of share with you before I end off and one is, remember, just that the driver has at this point not committed any crime. So, you know, demanding a license demanding registration insurance is maybe not appropriate, right? Because they are just they happen to be there, you have lawfully stopped them, but whether or not you can lawfully identify them, just because they're in the car, it may or may not be may not be required. I mean, because if you stop the driver, and for speeding, for example, can you demand that a passenger provided identification? The answer is generally no. Right? Because they just happen to be there, even though they are seized under the Fourth Amendment. They have not done anything wrong. So you're required your your requirement to identify themselves is really not applicable. I think the reverse is true for the driver. Now, if you ask the driver, can I see some identification or see a driver's license and they tell you, I don't have a driver's license? Well, guess what? They have now committed a crime in your presence. They just told you that they have no driver's license. So now that now you can take enforcement action on them, whether it's a citation, or an arrest. So that's the question. I hope this helps. It was a great question I want to share with you just remember if you have other questions, email me info at Blue to gold comm info at Blue to gold calm. I would love to answer more of your questions in this kind of format. It's easy for me and hopefully helps you too. So until next time, be safe.

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