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Search and Seizure Handbook (2nd Edition)
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For more information about the Search and Seizure Handbook, you can call 800.428.5331

About the Search and Seizure Handbook

In a meaningful, substantive and easy-to-use way, The Search & Seizure Handbook helps readers understand key cases and issues of the Fourth Amendment that are needed to perform the important role of applying and enforcing state and federal laws. 

 

Drawing from his extensive experience as a street cop, David Waksman presents readers with an accessible handbook that can eliminate the guesswork for the average police officer.  This valuable text provides the reader and potential trainer with a basic understanding of the Constitution and the various safeguards that law enforcement officers must have to deal successfully with the current criminal justice system.

 

The Search & Seizure Handbook fills a long-needed void among the available materials used for training and guidance of law enforcement officers at every level of government.

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By David Waksman

     Police officers routinely respond to violent domestic disputes.  Usually the parties live together.  What happens when she tells you that he keeps his stash in that dresser drawer and he beats her whenever he gets high.  Can you search the dresser or the premises on her say so alone.  Must he also consent? 
    
In Georgia v. Randolph,
[1] a domestic in Americus, Georgia, the United States Supreme Court gave us the answer this year. Wife Janet called the police when husband Scott, took their child to a neighbor.  Janet advised responding officers that her husband “was a cocaine user whose habit had caused (them) financial problems.”  As this was occurring, Scott returned to the home, denied drug use and advised that Janet was the one who abused drugs and alcohol.  With that, Sergeant Murray asked Scott for permission to search the house.  Scott clearly refused.  The sergeant then asked Janet for permission, which she readily gave.  Janet led the officers to an upstairs bedroom that she indicated was Scott’s.  Sergeant Murray entered and saw the customary straw and white powder.
     After Scott’s indictment for cocaine possession, he moved to suppress the evidence on the grounds that he did not consent to the search and his refusal should overrule that of wife Janet’s.
     Co-tenants or joint occupiers have equal standing in the home.  Who wins here?  Who controls the actions of the police?  The Supreme Court accepted the case:
 

to resolve a split of authority on whether one occupant may give law enforcement effective consent to search shared premises, as against a co-tenant who is present and states a refusal to permit the search.[2]

     The court upheld the general rule of third party consent by persons having joint access or control previously announced in U.S. v. Matlock, however, they went on to hold that: 

a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant. Scott Randolph's refusal is clear, and nothing in the record justifies the search on grounds independent of Janet Randolph's consent. (That means if he’s the one going to jail, he can overrule her.)

 

     They did drop a few hints of when that rule might not apply: 

The State does not argue that she gave any indication to the police of a need for protection inside the house that might have justified entry into the portion of the premises where the police found the powdery straw (which, if lawfully seized, could have been used when attempting to establish probable cause for the warrant issued later). Nor does the State claim that the entry and search should be upheld under the rubric of exigent circumstances, owing to some apprehension by the police officers that Scott Randolph would destroy evidence of drug use before any warrant could be obtained.  At 1533.

     Since many of these cases originate as domestics, what happens when the potential defendant does not object as he is outside his home, sitting in the rear of the police car,[3] having been arrested for assaulting his beloved?  Must you go outside and ask him too?

     The Randolph court also spoke to that issue: 

So long as there is no evidence that the police have removed the potentially objecting tenant from the (home) for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other … (allowing the other co-tenant who is present to object).   (Any other rule) would needlessly limit the capacity of the police to respond to legitimate opportunities in the field if we were to require … the police to … find a potentially objecting co-tenant before acting on the permission they had already received….

Better to accept (this rule) than to impose a requirement, (that would be) time-consuming in the field and in the courtroom, with no apparent justification.  At 1527.

     This is also the rule in Florida:

State v. Purifoy[4] was a typical domestic situation.  Her hit her. He was arrested
           and placed into the caged unit.  They went into the house to talk to her.  Whose
           consent is necessary for a lawful search?

     The trial court granted (subject’s) motion to suppress on the grounds that, although (the girlfriend who lived there) consented to the search, the police failed to obtain the consent of (the subject), who was in custody (but) available to consent. Because the record reflects that (the girlfriend) possessed common authority over the premises, she had authority to consent to the search and the police were not obligated to seek consent from (the subject who was currently not present).

     The First District Court of Appeal (binding on all trial courts in Florida), then discussed the law to be applied to those facts:

It is well-established that a search conducted pursuant to valid consent is a recognized exception to the requirements of probable cause and a search warrant, Schneckloth v. Bustamonte, 412 U.S. 218, 222, (1973), although the consent to search must be voluntary, and the person giving consent must have authority to do so, United States v. Matlock, 415 U.S. 164 (1974), or must reasonably appear to have authority to do so, Illinois v. Rodriguez, 497 U.S. 177 (1990). Authority to consent to a search arises from the mutual use of the property by persons generally having joint access, common authority over, or other sufficient relationship to the premises or effects to be inspected. Under such circumstances, it is reasonable to conclude that any of the co-occupants has the right to permit the inspection in his or her own right, and that the co-occupants have assumed the risk that others with whom they control the premises might permit the commonly held areas to be searched…. (Earlier cases) … specifically considered and rejected the argument that the police were required to seek consent from a defendant in police custody and could not rely on the consent given by a third party with authority over the premises.


   So what do we do when we get to those ever recurring domestics? 

     If it is reasonable (the key question to all Fourth Amendment questions) to arrest the hubby/boyfriend and put him in the caged unit outside the house, as you continue to interview the battered spouse, do it.  If your intent is merely to remove him so he cannot object if she gives consent to search, the rule of Randolph would apply to frustrate the search.  Got it?            

     Are these cases authority for you to get your suspect’s mother’s consent to search her juvenile son’s bedroom?

     First ask yourself a few questions.  Does Junior know that his mother enters his room on a regular basis to clean it?  To what areas does she have access?  Does she open the dresser drawers to replace his clean clothes?  Does she put fresh linen on his bed and look under it for his socks?  Is it reasonable for him to assume no one is invading his privacy?  What about that locked fishing or toolbox in the closet?  The one with the lock on it?  What is the owner of that box telling us?  Is there a reasonable expectation of privacy in that locked box?

     Your job is dangerous enough.  So long as you are doing it, and obtaining contraband as evidence, it might as well be admissible in court.  Be safe out there, and we’ll see you ‘On the Road.”

This article is excerpted from his new book, The Search and Seizure Handbook, 2/Ed. available from Prentice Hall or Pearson Custom Publishing.  It was recently cited by the U.S. Supreme Court as a: “(S)ource now available to teach officers and their supervisors what is required of them under this Court’s cases, (and) how to respect constitutional guarantees in various situations.… See, D. Waksman & D. Goodman, The Search and Seizure Handbook (2d ed. 2006).” BOOKER T. HUDSON, Jr v. MICHIGAN, United States Supreme Court, June 15, 2006.

About the Author
David M. Waksman, J.D., is a nationally known homicide prosecutor with vast experience in trying violent offenders. He is a very popular speaker, not only at professional meetings, but before business and civic groups as well. Waksman brings a witty and pointed humor to this oftentimes dry and sensitive area. He has been invited several times to address the Mystery Writers of America, giving them the reality they need for their novels.
 
Mr. Waksman is well published in police publications. He has had two criminal justice related Op-Ed articles published in the Miami Herald, and has been featured numerous times on TV shows such as Inside Story, Inside Edition, COPS, Hard Copy, 48 Hours and Dateline NBC. The local TV networks call upon him to comment on current cases in the news. On the 200th anniversary of the Bill of Rights, Mr. Waksman appeared with Justice Antonin Scalia, Judge Robert Bork, and several other distinguished judges and lawyers in a nationally televised PBS segment of Fred Friendly's The Constitution - That Delicate Balance. The show featured a hypothetical case highlighting the constitutional problems encountered in investigating and prosecuting a capital case.
 
Waksman has toiled 32 years in the criminal courts of Miami, Florida, after working the mean streets of The South Bronx for six years as a police officer and rising to the rank of sergeant in the New York Police Department. He may have tried more first-degree murder cases than any other American prosecutor.
 
Mr. Waksman's career as a prosecutor began under the legendary Richard Gerstein. He also worked eighteen years as an assistant to America's most popular, and longest serving Attorney General, Janet Reno, when she served as Miami's top prosecutor. During that time period he tried over eighty-five homicide cases to juries, including twenty in which the death penalty was sought.
 
Prosecutor Waksman's trial experience spans well over 180 jury trials, primarily for such crimes as homicide, rape, child abuse, armed robbery, home invasion robbery, and public corruption. In federal court, five years before the world heard of Rodney King, Mr. Waksman was sworn in as a Special Assistant United States Attorney to prosecute a Hialeah police officer for Conspiracy to Violate the Civil Rights of two people, by killing them, after that officer was acquitted in state court of homicide charges, resulting from an off-duty drug robbery gone bad.
 
David Waksman, not content to fight his battles in Miami-Dade County, has been teaching the cops of America the law and procedures they need to combat violent crimes in their communities. Since 1988 he has taught a monthly seminar on homicide investigation for the Southern Police Institute (University of Louisville) in various locations (22 states, 34 cities) across the country. He also teaches new detectives, crime scene technicians, medical examiners and forensic investigators at the nationally renowned Dade County Medical Examiner's Police-Medical Investigation of Death seminar. He has taught classes (one a Fourth Amendment seminar) at the University of Miami School of Law and at several colleges in the South Florida area. Local police departments continually call upon Mr. Waksman to teach refresher courses and in-service training to their investigators.
 
Waksman is also on the staff of the National College of District Attorneys, at their training facility in Columbia, South Carolina. He teaches newer prosecutors how to be effective advocates in jury trials at the National Advocacy Center.
 
In September of 2001, Mr. Waksman was invited by the U.S. Departments of State and Justice to participate in a training seminar in Yerevan, Armenia. With two FBI agents, and a medical examiner, a five-day class was taught (during the week of September 11th) entitled Major Case/Homicide Investigation. The seminar was an advanced level course designed for Armenian investigators, prosecutors and medical examiners currently participating in homicide investigations. The class was presented in rather austere conditions, in a former Soviet military installation. As the investigators spoke no English, the class was taught with simultaneous translations, as well as his collection of rather graphic slides.
 
His unique experiences and engaging style make him a compelling storyteller, one who can cut through the confusing legal issues that have befallen our modern American justice system. He tells it as he sees it, yet protects himself from the carnage, as most cops do, with humor, albeit it away from the grieving families.
 
The compliment he appreciates most came from a Metro homicide detective:
 
Waksman, you're nothing more than a cop in a lawyer's uniform.


[1] 126 S.Ct. 1515 (2006)

[2] A footnote in the opinion states that the four U.S. Courts of Appeals to have considered this question have ruled that the consent of one is sufficient in the face of an objection by another, as have the majority of the state courts to address the question.  Standing alone was the Supreme Court of the state of Washington.  State v. Leach, 113 Wash.2d 735 (1989) required the consent of all present occupants.

[3] It has been said that the heroes of America are not to be found in rock bands or on basketball courts.  They ride in the front of police cars and hang on to the rear of fire trucks.

[4] 740 So.2d 29 (Fla. 1DCA 1999)

 

 

 


 

     

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