The Search & Seizure Show Anthony Bandiero

The following is a computer-generated transcription, some grammar and spelling errors may be inherent

Hey guys, welcome to another roadside chat. My name is Anthony Bandiero. I'm an attorney and senior legal instructor for Blue to Gold enforcement training. And let's get right into it. So this question came from an officer from New Jersey. And the hypothetical goes something like this patrol was notified of a suspicious person and vehicle, they found a male under the influence of heroin, located right outside the vehicle, a semi conscious female was under the influence of heroin in the passenger seat. So the mail tells the cops that there is heroin crack, and a handgun in the vehicle. So the cops then search the passing department, they find those things. So the mail wasn't lying, there was drugs and gun a gun in the vehicle, then the cops asked for consent to search the trunk. The male denies consent.
So the question is, is can police search the trunk on the motor vehicle exception? And the answer is going to be most likely? Yes. Here's why. First, do you think under these facts, right, a judge would give you a warrant for the car for the trunk? And I think the answer is yes, there's multiple drugs found in the car. And the actually says, There was heroin folds in the in the car, which is indicative of selling and so forth, right trafficking, there's a gun in the car, again, indicative of trafficking.
Dealers use weapons for self help, they can't call 911 When they get robbed, right. So they have to resort to their own self help. So it seems to me that he may be involved in in dealing, and where would more evidence be of that crime, it's certainly in the trunk, maybe even the engine compartment. Dealers are known to just keep a small supply in the passenger apartment. But the big stuff is, you know, in the trunk and an engine compartment, it could be in the airbox under the manifold cover in a fuse box, in a box and so forth. So that's really what it comes down to me. If the officers do feel confident that they have the facts and circumstances that would lead a neutral and detached judge to issue a warrant for that trunk, then it's searchable under the motor vehicle exemption.
If the cop does not feel confident, and does not have any facts or circumstances about why he believes that there's more evidence in the truck, then don't search it. Right. But if you do, then that's the quintessential motor vehicle exception search. I hope this helps. Thanks for your questions help to move the ball forward. Please join me for my live webinars on Demand training and of course, the in person training that we're doing around the country. Until next time, stay safe

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Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training, giving you another roadside chat. Alright, so this question comes from an officer in Kansas, and the officer asked this. So the situation was several officers stopped out with young kids that were suspected of throwing rocks from an overpass onto a car. And the officers noticed that they had cell phones, and they asked for consent to search the cell phone for evidence of them, you know, throwing rocks and so forth, they reasonably believe that if they were up to no good, they would be recording it. So a,
the kids were 1112 13, and 12. So four kids total, and a couple of my believe, offered their cell phones to be viewed and the videos looked at and so forth. So the officers got consent from the kids. They looked at the videos, they did not see anything illegal. They gave the phones back and the kids were released. Well, what happens later, mom calls, right, one of the kids mom's calls and says, You have no right to search my kids cell phone without my permission. My son cannot give you permission. That's my cell phone, I pay for it. And the officer asks, well, did my you know these officers mess up?
And the answer is no.
It is.
It is legally possible for a juvenile to consent to search. So what are the requirements of consent to search? Well, it has to be free and voluntary. In other words, the person gave consent to search freely on his or her own will. And it was voluntary. In other words, there was no
gun to the kit to the person's head, right. So that's free and voluntary. Also, the requirement is that the person has to have authority to give consent over the things searched.
These factors are judged based on a totality of the circumstances, a totality of circumstances, the whole thing comes into all the facts come into play.
And then finally, the prosecutor the burden of proof is preponderance of the evidence. That is how much proof you need to prove to the court that you had free voluntary consent. So free and voluntary consent.
The person giving consent has the authority.
And based off to the totality of circumstances, can the prosecutor prove by a preponderance of the evidence more likely than not that the consent was free, you know that those factors are met? Well, let's look at it here. Okay. So first of all, courts do not have an age cutoff. There are plenty of cases out there where juveniles are consenting to search.
The juvenile has authority over the phone, the juvenile is a user of the phone, the mom can also give consent, but they do not need to track down mom, they can get consent from somebody else who can give it the officer who shared the story said that there was no threats. There was no you know, it was it was just very calm and cordial and asked the kids to kind of prove that there weren't anything by showing the videos. So there is no threats, there is no harassment.
And this is there is no facts given to me at least, that would show that the cops cannot prove that the kids the kid gave free and voluntary consent. Mom's consent is not required.
They can get it if they want, but it's not required. So based off of this question, we are good to go. This is a valid consent. And if the officers would have found evidence on the phone, not only would we be good, but the officer presents convinced sees the phone as evidence to be used at trial.
There you go. Keep your questions coming. I can't answer all the questions, but ones that I believe other officers like know the answer, I will share them on this YouTube format. Until next time, stay safe

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Hey guys, it's Anthony Bandiero, here, Senior Legal instructor at Blue to Gold law enforcement training. And today's question is, what evidence can I use from a private search? Well, the short answer is all of it. And here is why a private search is when a person searches or ceases something and there's no government involvement. Now, the general rule is, is that if there is no government involvement, you can use any evidence that they obtained period in the story, even if what they did, would have been completely prohibited if you did it. So what does it mean for a private person to be, you know, to be converted into a government agent, we are looking for things like the officer encouraged the person to do it, they directed or ordered them to do it, or they participated in the in the search, right? When you have those things in play, you have just made that private person, a government agent, and that now everybody has to play by the fourth minute rules. But the other the reverse side of that coin is also true. If the private person is not involved with law enforcement, and they're not being encouraged, directed, ordered. And they're not, you know, in law enforcement officers not participating in it, you can use any evidence they bring you, even if it would have offended the Fourth Amendment. Let me give you a couple examples. Security personnel, detain somebody because they were counting cards, and it was against house rules, right. So they brought the person back to the casino security office, they then opened up this guy's backpack and found drugs. Now they're not going to arrest this person, they were just going to trespass them. So what we have is a detention by a private security officer, and those is going to trespass them. Now they call police that the officers showed up, saw the drugs, right, that was obtained from the backpack. And the question is, can the officer use those drugs? In a case? Can I use it as evidence and answers? Absolutely, yes, no problem. Because even if the officer may have not been able to do the exact same thing, if he or she was on scene, for example, trespassing, somebody would not allow you to go right into their backpack. But it didn't happen with police involvement. Right. So we have another case, where a FedEx employee was really on the hunt for drugs being concealed in FedEx shipping packages. And he apparently, maybe even violated some FedEx rules, by searching boxes and so forth that he thought was contraband. And, in fact, he made, he was behind eight cases for the DEA.

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Hey guys, it's Anthony Bandiero here with blue to gold Law Enforcement Training bring you another roadside chat. This question is is can you look inside a woman's purse, or a man's backpack during a pat down?
The answer is maybe. So here's, here's how this works. So we know that pat downs are, you know, an overall minimally intrusive way to protect yourself from weapons and blunt objects during a Terry stop. And if you have reason to believe that the person is either armed or dangerous, you can pat the person down for weapons. As far as
purses and backpacks go, if you can also articulate that you believe that the weapon could be in there, then what the courts want to see is that you start from the outside and only go into the container, the backpack or purse, if you cannot effectively pat the item down from the outside. So literally, what I would like to see in your reports, if you are doing this on a purse, for example, is that, you know, you articulate that the purse is thick sided, it's not conducive to a pat down, therefore, you opened it up, and only did those things necessary to find a weapon, blunt object, knife, and so forth. You know, again, you're not looking for evidence. Now, if you see evidence, in plain view, it is going to come in, but the courts do want, especially when you're doing something a little bit non traditional as looking inside containers, they're gonna want to make sure that you're on the up and up, and not using this as a as a, as a ruse to get into people's, you know, backpacks, and so forth. So that's the rule you if they have access, and also that they have access to it, right. So typically, when people are detained, they,
you know, either they can be handcuffed or not, but usually they still have, or will have access to those places. So if you stop somebody for potentially being involved in an armed robbery, and you pat that person down, and they're carrying a backpack, you know, most cops are probably going to pat down the backpack as well, because that's where the gun would be right? If they if you have
evidence that they actually use a firearm, while if you've Terry stop them, they probably have a firearm on them somewhere. And if it's not on there person, it's likely in that backpack. So start from the outside, if you can effectively do that, you unzip it, and just look for the gun, and then you secure the gun and you go from there. That's the rule on containers associated with pat downs. I hope this helps. Again, you gotta do me a favor, you got to subscribe. And like that gives me the feedback that I need. Also, if you want legal updates, go to my website, blue to gold calm and you'll see you know, sign up for legal updates. And don't forget the live training, right? This is just a small piece of it. I'm going to give you a small piece of go to bluetogold.com, look at a training calendar and see if there's a class that you can attend online or in person. You want to see the whole shebang right I do this I do three days of search and seizure training, which makes cops experts in the law. Until next time, stay safe.

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Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training, giving you another roadside chat. Today's question is one that I get all the time around the country. And it's, it's important. So let's go through, can you get consent to search a home from a spouse, even if the non consenting spouse has left?
Okay, so the answer is yes, you can, you can use that consent, even if the person who is non consenting, let's say, let's say the wife will allow you to search the home, but the husband is like, no way you can not search the house. And he tells you, you know, that, that, that my lack of consent is good for the next two years, right. And then he goes to the store, he goes to work, he gets arrested. And the question is, can we now go back to the wife and ask her for her consent, even though we know that her husband has already said no? And the answer is? Absolutely, yes.
Here's why.
When a spouse leaves the property, for a lawful reason, for example, they get arrested. And that arrest was not done to remove them from the you know, from the environment, but done for lawful reason, domestic warrants, whatever, or they go to the store to get a six pack of beer, they are taking the risk, that the person that they leave behind will betray their trust.
All law enforcement officers need to conduct a consensual search on a house, apartment, whatever is valid consent from someone with a parent authority. And
a non consenting spouse or roommates is not present at the time of the search. That's what it is. That's the rule. This comes from a Supreme Court case called California vs. Fernandez. Now many officers are thinking about a case called Georgia versus Randolph, where the non consenting husband was on scene and says you cannot search my house, the wife said yes, husband said no, the police searched anyway. Well, we know the result of that case, you can't do it. But if the husband is going to leave his drugs, his illegal guns and whatever at the

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Hey guys, it's Anthony Bandiero here with blue to go Law Enforcement Training. This week I'm in Independence, Missouri, doing advanced search and seizure. If you're interested in this training, and you want me to come to your agency, shoot me an email on blue to gold.com

Alright. Today's question is, when is Miranda required during a detention? So first of all, this is a little bit of a pet peeve of mine, because when I go around the country, many officers tell me that Miranda is required when the person is not free to leave. They were taught this. But unfortunately, it's bad training.
And oftentimes, it's the lawyers that are training them to say this, that is not the legal standard, being not free to leave, is a detention. But we know that during the tensions, Miranda is not required. For example, during a DUI investigation, how many times have you read Miranda, to a DUI suspect during fsts? Almost never, because it's a detention and you're you're in the investigative phase. But yet the person is not free to leave. Certainly, if the person turned around and started walking away, you would detain them and probably arrest them for obstruction and so forth. And in addressing for the product DUI as well. But my point is, is they are not free to leave. So but Miranda is not required. Instead, officers need to articulate that it's that Miranda is required, when there's actually three components, one arrest like custody, not free to leave arrest, like custody, number two eminence interrogation. So for example, if you arrest somebody, and put them back in a police car, and you're going to question them at the station, what Miranda is not required at this point, because you're not interrogating him, you're not asking him questions that are reasonably likely to elicit a incriminating response. You can wait for the Miranda until you get to the stage or you can read it on scene, and you will, there it's not going to expire that soon. And finally, the third requirement is known officer.
This makes sense. Because if you have a suspect that is in jail, pre assignment of a lawyer, right, that's when the Sixth Amendment kicks in. But you have somebody in a holding cell a pre arraignment, the 48 hour holds whatever you know, your state does. And you insert an undercover agent into that jail cell and that person
confesses that is valid that can be used against them.