The Search & Seizure Show
by Anthony Bandiero
Attend these weekly podcasts for latest legal updates, search and seizure law, and open question session.
Podcast episodes
Season 1
In Texas, what can you do if a passenger refuses to ID themselves?
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/subscribe IN-PERSON TRAINING: https://www.bluetogold.com/calendar FREE WEBINARS: https://www.bluetogold.com/calendar ON-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/bluetogold INSTAGRAM: https://www.instagram.com/bluetogold/ LINKEDIN: https://www.linkedin.com/company/blue...
Does a prisoner have a expectation of privacy in his cell phone
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.
Can police conduct knock and talks at odd hours of the night?
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
Do Officers have exigency to enter a home for verbal disturbance
The following is a computer-generated transcription, some grammar and spelling errors may be inherent Hey, 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? ...
Determining whether a bicycle is stolen based on a victims allegation?
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...