Search and Seizure Law For Cops

A person is seized within the meaning of the 4th Amendment when a reasonable person would believe they are not free to leave. Does an officer need a justification to approach private individuals on the street to ask questions? Does asking for an ID make it a seizure under the 4th Amendment? In this Episode, I discuss consensual encounters and a recent New Mexico Court of Appeals decision.
State v. Ramey, 2020-NMCA-041 - casetext.com/case/state-v-ram...
REGISTER FOR SEARCH AND SEIZURE IN NEW MEXICO WEBINAR HERE: us02web.zoom.us/webinar/regis...
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Erik Scramlin is a former Chief Deputy District Attorney and owner of Tactical Legal Solutions, LLC. Courses and contact information available at tacticalattorney.com
DISCLAIMER: This is not legal advice. This content and all of Tactical Attorney's content is for informational purposes only. You should contact your attorney to obtain legal advice with respect to any particular issue. Nothing here should be construed to form an attorney client relationship of any kind.

[@kentlbrown5810]

In my opinion, if there are multiple officers and they spread out around you, you have been seized.

[@kentlbrown5810]

Even without the policy, your first statement that the officer “stopped” the citizen. If that was a stop it is NOT a consensual conversation.

[@jerryschneider145]

This is very good. If I ever served on a jury, this is the kind of information I would like to know.

[@chrisnolan7423]

This seems clear to me and from the comments most people. The fact that it could be confusing to a police officer is concerning to myself as a citizen.

[@AndreRosario-zm8pf]

Always ask for a warrant. No warrant tell the police have a good day. Remain Silent. Attorney up always

[@logansilva8017]

Consensual encounter would mean the person who the cop is encountering has agreed to the encounter. This means that the cop would have to ask for a person's consent before the encounter can proceed to take place. This means that the encounter should be presented in such a way that a person clearly understands they have the choice to avoid/deny or end the encounter as they choose. Come here I'd like to talk to you. This isn't Consensual. Where you headed? I have a few questions that I'd like to ask you. This isn't Consensual. If you have some time to spare would you mind answering a few questions that id like to ask you? That is Consensual. A cop can't pull a person over and call it a Consensual encounter. I don't have Consensual encounters with people who can and will use everything that i say or do against me. Towards the end of the video you said that the cop needs to come up with some probable cause or something that would cause them to suspect a person, or they need to let them go. If the encounter is Consensual, the person is free to go whenever they choose. If the encounter is Consensual when do intrusive questions being asked with the expectation of an answer, turn a Consensual encounter into an interrogation? If the encounter leads to a person, self incriminating then the encounter probably wasn't Consensual.

[@deanpeterson8753]

I just found your channel not too long ago. Great Stuff. Since this was a New Mexico-specific case, is there a recent U.S. Supreme Court decision that focuses on consensual encounters? I'm in Texas, so I'm looking for something more generally applicable that would be binding on us here.

[@logansilva8017]

You say that Consensual encounters with police are good for communication between police and the community's that they police. What's good about communicating when the communication is being used as a tool to gain probable cause to suspect those who choose to comminate?

[@gilbertgarcia2418]

So regardless of how a "consensual" contact arises if I ask if I'm detained or under arrest and told no then ask if I'm free to go and told no what does that mean? Am I seized? I'd treat this as an arrest and exercise my rights to the fullest. Would that be wrong?

[@simohammed2011]

If he says you aren’t free to go after you asking him, it means you are detained( an officer who knows the law wouldn’t detain a person without a reasonable suspicion). The officer needs to have a probable cause to conduct an arrest( you don’t need to ask him if you are under arrest or not because you would be handcuffed and seized already!

[@aubreytycer8708]

Seems to me the elephant in the room is Terry v Ohio. In what situation would a police department think that exposure to civil lawsuits is a good idea?

[@tacticalattorney]

Right on. I've worked with a lot of fantastic police departments, no department wants to get sued or violate someones civil rights. Unfortunately, legal training isn't sexy and often times isn't taught very well. My message to law enforcement has been to recognize the importance of good and consistent legal training and make it a top priority. It's absolutely necessary for the officers and the citizens. Thanks for the comment, excellent point!

[@kalishakta]

@@tacticalattorney In many cases officers know they will not be financially liable for their misconduct. This is an incentive for malpractice.

[@logansilva8017]

They don't want to violate anyone's civil rights. That explains the countless channels each with endless videos of them doing just that, violating people's civil rights. No good can come from an interaction where anything you say or do during that interaction can and will be used against you.

[@austincjett]

Here's an example of what makes my blood boil. My wife, a great grand mother, was a passenger in a car that was stopped because the driver didn't signal a turn early enough. The officer made everyone ID. He didn't say my wife was under arrest for not having an ID on her person, but he made her feel that it was going to happen. Everyone in the car was her offspring and pleaded as to her name. The officer said "having a picture ID was needed" but finally let everyone go after an extended amount of time. The town the officer works at is Rector, Arkansas. I'm not going to "just let this go" I called the police department, and they said it was policy. I then sent a message to the sheriff and he didn't respond. It pisses me off and the next step is protesting on the steps of city hall.

[@godlessheathen100]

Does the policy of stopping people late at night fit the definition of a dragnet??

[@chrisnolan7423]

Screening an area to be able to pin crimes on someone,whether or not to prosecute is up to the DA,but clearance rates will look good.

[@chrisnolan7423]

I ment to say arrest rates not clearance

[@orlandogutierrez36]

Thank you so much for the information! I am currently in the worst cituation of my life :( I live in bernalillo county new Mexico, and had an argument with one of my neighbors a while back, long story short we had an argument and he yelled to someone in his to get a gun, so I retreated deeper into my property to avoid the danger of the situation. My neighbor called the cops saying that he thought I had a weapon, I was not there when the cops searched my girlfriend's vehicle in my yard, shouldn't there have been any evidence or are they just taken by their word (probable cause?) no Matter how outlandish their claims are? Anyhow I'm currently on pre trial, they impounded my girlfriends car, said they were gonna do gsr tests, they found no gsr on the car, but got a search warrant for my house, in which search a big gun was found. I did absolutely nothing wrong but am killing myself with stress and anxiety. Any response would be greatly appreciated god bless

[@orlandogutierrez36]

^bb gun.

[@tacticalattorney]

I'm sorry to hear about your situation. The rules of ethics prevent me from giving any legal advice. Based on what you have said, I would recommend that you talk to a criminal defense attorney ASAP. You can also request a court appointed attorney. Time is of the essence, you will definitely want to get an attorney as soon as possible and raise these concerns with your attorney. All the best.

[@logansilva8017]

What ended up happening?

[@theautisticpage]

Good effort but cops don't give a shit.

[@justinkeller7882]

I am a career criminal. Thanks for the info. Muahahahahaha

[@tonycollister5275]

So how do citizens find out what their rights are?

[@atlantabootytickler7953]

bill of rights

[@tacticalattorney]

@@atlantabootytickler7953 Excellent question. The Constitution and the Bill of Rights is a good starting point. There are many good resources out there that can help break it down for you. www.law.cornell.edu/constitution/index.html for example is a good resource with explanations.

[@EnzotheGreat3537]

I don't answer questions. I plead the 5th,record in the encounter keep your mouth shut. The police aren't your friends. Keep it simple.

[@rspafford8822]

So what rights do we really have.? Considering our constitution really just mean updated law. Each case should be decided individually not one case that vaguely represented another applied to everyone. A judge could’ve had a fight with his wife the night before. He could’ve had a bad breakfast burrito, any number of things could make a decision by a judge different on that particular day, not be decided by previous judges decision. Founding followers are rolling in their graves. Fourth amendment doesn’t exist anymore since 19/71 your first amendment only exist. If it’s convenient, it makes everybody comfortable., and your fifth amendment will be questioned and manipulated into making you talk when you don’t want to do any number of law-enforcement agencies. In my particular state there are six agencies that police our downtown areas. Officers kill seven people a week in the United States that’s over 1000 people a year and they’re worried about us.? I am a law abiding citizen never been in trouble in my life. The most encounter I can ever have. It’s not with a number. It’s a police officer. A cop is falling behind me. I don’t feel protected. I feel scared, even though there’s nothing on me that is illegal And I haven’t done anything illegal but if I reach my registration or my phone to my insurance or return my drivers license, I could be shot to death. The best we can hope for this to hold our steering wheel and hope the officer doesn’t feel scared. I’ve served for combat tours with the Ranger battalion I don’t wish to specify and I would never shoot someone in some of the circumstances, shoot people for. I could not sleep at night if I shot a 17-year-old kid for reaching for his cell phone or a 13 year-old autistic kid running away from me and shooting him in the back. Police are extremely dangerous you are giving someone with less training and I had as a bat boy who was tabbed. The freedom to kill American civilians without discrepancy. People realize officers discretion is made by someone with possibly 16 weeks of training that’s ridiculous. You couldn’t even make it into battalion with that is just your time in Georgia. I don’t even exercise my fourth amendment it’s dangerous. I’m worried about the police not a criminal. The speed limit I follow all traffic was and I make sure I don’t break any laws because I am terrified of getting shot in front of my children by a “ scared “ police officer.

[@rspafford8822]

The constitution never said void if there’s cases law or an officers discretion trump’s a citizens rights become a ridiculous police state. I’m moving to Russia.

[@AnthonyJenne2001]

As a citizen I want to know this, unfortunately officers will still push there powers and continue to violate

[@traviskey5695]

Okay I just had a debate with my aunt. I live in California where adults 21 and older are legally allowed to possess. An ounce or less of marijuana. It is not considered criminal. But also in California the police are allowed to use the mere possession of marijuana as probable cause to search your vehicle... My stance on this since the state of California has decriminalized the adult recreational use of marijuana the mere possession of that legally owned substance should no longer be considered or used as probable cause for search... From my understanding of probable cause stems from illegal criminal activity. If marijuana possession is no longer a criminal activity therefore it should not be used as probable cause to search for criminal activity... What the state of California police officers are doing is they're allowing legally possessed marijuana to be used as probable cause to fish for crimes.

[@tacticalattorney]

Such a good question. This question has been coming up a lot with many state's de-criminalizing marijuana. I'm not well versed in California law, so the answer depends on how the California courts are interpreting this issue. For state's like California that primarily follow the 4th Amendment, marijuana may still provide the basis for establishing reasonable suspicion and probable cause. Marijuana is still at the moment a schedule I controlled substance under federal law. This means it's still illegal under federal law. In fact, there is ample case law that provides that employers can still prohibit employees from using marijuana even if they have a medical marijuana card. Current case law reminds us that marijuana is not "legalized" it is still illegal under federal law even if a state decides not to prosecute it. Its definitely a subject in the gray area and we will have to look to the courts for case law to give us more guidance in the coming years.

[@traviskey5695]

@@tacticalattorney wouldn't the proper way of establishing probable cause would be to first demonstrate probable suspicion... Smelling marijuana could clearly and justly be argued to raise suspicion of a DUI... Just like when an officer pulls over someone and they smell alcohol. The smell of alcohol does not immediately jump to probable cause to search a vehicle. It leads to probable suspicion of driving under the influence. Once the officer then establishes that the person is or is not intoxicated then the officer can proceed further. If the person is intoxicated obviously the officer has probable cause to arrest the offender... This would give probable cause then to search the person and the vehicle... This is not the case with marijuana... In most cases the smell of marijuana automatically leads to probable cause to either search the individual or their vehicle. Once their vehicle is searched and if another crime is found they are charged with that crime other than the probable cause given by the police officer...... And it seems to be a miscarriage of justice for an officer to claim marijuana smell is probable cause but yet you can never be a charge with a crime of possessing lawful marijuana....... The officer find your legally possessed marijuana but then finds other criminal offenses that then you get charged for and never charged with marijuana possession. This seems like a complete fishing expedition

[@logansilva8017]

The cop pulls a person over, claiming an incomplete stop, but really, the cop just wants to go fishing. Now, the cop approaches the driver and asks for their licenses and registration, which the driver provides, so the cop goes back to his car. Everything comes back good and up to date, and the cop approaches the driver for a second time and says, "Do you know why I stopped you? Too, which the driver replied, "No officer, I don't know why you stopped me. And the cop says well is there a reason why you didn't stop at the stop sign back there? Driver, I thought that I did stop at the stop sign. Cop, no, you failed to make a complete stop. Have you had anything to drink tonight? Driver, no officer, I haven't had anything to drink tonight. Cop, I'm smelling a hint of Marijuana, is there anything in the vehicle that I should know about? Driver, no officer, there isn't anything in here. Cop, do you mind if I take a look? Driver, I'd rather you didn't, officer, there isn't anything in here. Cop, alright, I'm going to have you step out of the car, turn around, place your hands on your head, and interlace your fingers. Driver. complies. Cop, when was the last time you used Marijuana? Driver, yesterday evening. Cop, I'm going to have you step on over here for some quick sobriety tests. Driver complies, and the tests are finished. Cop, I'm going to need you to turn around and place your hands behind your back. You are under arrest for driving while intoxicated. Cop, proceeds to take the driver to the hospital, and once they arrive, the cop pulls into a gated parking lot behind the hospital. Shortly after parking, a silver chrysler pulls up into the parking spot beside the cop and now arrested driver. A woman steps out of the chrysler and is met by the cop and the two of them have a short conversation before the arrested driver is removed from the back of the cop car. Cop, should we take the hand cuffs off? Lady, no, it should be alright with them on. Cop, turn this way, Driver. Lady, lifts driver's shirt sleeve and proceeds to draw blood. Second court date and the charges are dropped due to a lack of evidence.

[@logansilva8017]

No Marijuana was found, no Marijuana smoking utensils were found. No papers, no pipe, nothing. Not even an admission to using any substance. Breathalyzer came back clean, no alcohol. Blood came back with nothing besides Marijuana. Was arrested, car impounded, drivers license suspended, Blood taken in a parking lot. Bail money and attorney fees spent. All because of a tyrant swine decided that it was a good day to violate someone.