Law Talk Episode 3: 4th Amendment Rights Continued

Jacob Tingen: Welcome to Law Talk with Tingen and Williams. My name is Jacob Tingen and I’m here with Jonathan Jordan, again one of the partners at our law firm. Two weeks ago, we discussed Fourth amendment rights, and today we’d like to revisit that topic, so Jonathan, are you ready to talk about [crosstalk 00:00:55]…


Jacob Tingen: Welcome to Law Talk with Tingen and Williams. My name is Jacob Tingen and I’m here with Jonathan Jordan, again one of the partners at our law firm. Two weeks ago, we discussed Fourth amendment rights, and today we’d like to revisit that topic, so Jonathan, are you ready to talk about [crosstalk 00:00:55] rights.

Jonathan Jordan: Yeah, yeah, let’s get into it.

Jacob Tingen: Okay. Alright, so we thought we’d take our discussion in a … We wanted to cover four basic, main topics but also wanted to let you know. This time is an opportunity for you to call in, get a free consult. You can call us at 804-477-1720. We’re here every Wednesday at 11 am. Happy to talk to you about any issue related to the law that you’d like to talk about. This is Law Talk with Tingen and Williams. Call, make Facebook comments, but in the mean time, let’s go ahead and talk about Fourth amendment rights. Where do you want to start, Jonathan?

Jonathan Jordan: Well, let’s do a little recap in case someone is joining us for the first time today.

Jacob Tingen: Alright, cool.

Jonathan Jordan: So, the Fourth amendment … The U.S. Constitution protects from illegal searches and seizures. Or, intrusive searches and seizures. It says that our papers, our documents, our persons, and our homes are to be secure from unlawful government interference. So, basically, there’s been a long chain of case law that tells us what reasonable searches or unreasonable searches are in Intel, but we’re going to apply those … There’s basically four standards, but before we get to those, what I want to talk about is first off, if we’re talking about a Fourth amendment search, it has to be a government actor. If it’s your boss, if it’s your wife, if it’s a bad neighbor, it doesn’t count. It has to be a government entity trying to intrude in your life.
The second thing is, the only remedy for an unlawful search or an unlawful seizure is suppression of evidence. Like, they just can’t use it against you in trial.

Jacob Tingen: It’s the whole doctrine of the fruit of the poisonous tree. [crosstalk 00:02:45] That’s what the courts call it.

Jonathan Jordan: Yeah. Anything they get that … Any further evidence that they get from an illegal search or the poisonous tree, the unlawful action, they don’t get to use it against you.

Jacob Tingen: Now, you did mention something that I thought was interesting. I just want to make sure that we clarify this. There has been a long history of people talking about these issues. Right? But that history continues. Right? That’s why we’re still talking about it today because people disagree over what’s reasonable, what’s unreasonable.

Jonathan Jordan: Yeah. And, the standard … This is funny because the standard is always changing. Now, the U.S. Supreme Court has come down and said basically it has to be based on what people have a reasonable … Where they have a reasonable expectation of privacy. So, you’re not immune from … I mean, you’re … For example, they found that anything you throw into the trash can can be searched or seized because you no longer have an expectation of privacy in things you’ve thrown out. Or, things you’ve given to third parties, you no longer have an expectation of privacy. But, the danger … The challenge, I should say, with the courts and with lawyers and everybody else, new technology is changing our reasonable expectations of privacy.

Jacob Tingen: Right.

Jonathan Jordan: I mean, with email, what we send by email, are we reasonably … Do we expect privacy in that? What about the metadata that goes with it?

Jacob Tingen: The whole metadata conversation is what the issue with the NSA is, right? Because they’re not collecting actual phone calls, just the metadata about the phone calls, which is the big concern. They’re not listening in, necessarily, although [crosstalk 00:04:21] there are disputes-

Jonathan Jordan: There is some disputes about that.

Jacob Tingen: … there are some disputes about whether they’re doing, but publicly, what they’re saying is “well, we’re just collecting the timing of the phone calls and latitude and longitude and those kinds of things.”

Jonathan Jordan: And parties involved.

Jacob Tingen: Those metadata. Yeah.

Jonathan Jordan: You know, calling and receiving numbers.

Jacob Tingen: Now, what’s interesting is, on the whole topic of that. And this is probably a little bit off base, so we should tangent back to our real topic. But, if you’re having a phone conversation and you’re in a public place. Say you’re walking through the subway and having a phone conversation, do you really have a right to privacy to a conversation you’re having in public, but on your phone? It’s just one of those questions. This is the complexity of new communication as part of what the courts have a problem with.

Jonathan Jordan: There’s lots of … I’ll just highlight some interesting issues. We won’t really get into them, but the court has recently heard cases on whether the police putting a tracking, GPS, device on your car is a search or seizure. They’ve got into whether a dog sniff at your front door is a search. They’ve answered the question of infrared imaging, they have a thermal imagers that the police were driving around in and they’re checking for houses that are hotter than normal to see if they were growing drugs inside.

Jacob Tingen: Right. Right.

Jonathan Jordan: Normally, an average person wouldn’t think about that. You will think that the temperature of your house is your secure in that. So, it raises lots of other issues, that standard of reasonable expectation of privacy.

Jacob Tingen: Right. All right. Let’s talk about then, before we met we decided we’d talk about police encounters. We’d start there. What do we want to get into today?

Jonathan Jordan: So, there’s four grades or … Basically, any time we’re going to interact with a police officer, we’ve kind of got these categories of what kind of interaction it will be. The low-

Jacob Tingen: And what kind of action is justified by the government.

Jonathan Jordan: Exactly. What they can do based on why we’re dealing with them. The first one is an encounter. That is walking up on the street, the same as anybody else, when the police are able to act as anybody else would. If a neighbor can knock on your door, the police can knock on your door. If a neighbor can say, “Hey. Can you talk for a second?” I just did that with my neighbor the other day. Police can do that too. That’s an encounter. Now, the encounter lasts as long as both parties want it to last. As soon as the … Bless you.

Jacob Tingen: Excuse me. Sorry.

Jonathan Jordan: So, as soon as you no longer wish to talk to a police officer, you can end the encounter. If it’s only an encounter, you have a right to walk away. No thank you. See you later. I’ve got things to do. I’m out of here. If a police stops you from walking away or tells you to hold or wait or anything like that, then maybe we’re moving into something a little more … Maybe we’re moving into a stop. An encounter is not a stop. Encounter is just a chat.

Jacob Tingen: Right. So, police encounters, then, there’s no real Fourth amendment interaction at that point. But, people do need to be aware that unless we’re getting to one of these higher grades … because we’re going to talk about a whole spectrum of encounters with government. Unless you’re in one of these more complex spectrums of interaction, then the government can’t actually stop you. So, if the police are just talking, you can walk away. You can refuse to help. So, that’s important to know. The next thing, then, would be reasonable suspicion.

Jonathan Jordan: Yeah. Before I jump into that … If you don’t know if you’re stopped or not, you can always ask them.

Jacob Tingen: Ah, right. Am I free to go? Is that the question?

Jonathan Jordan: Yeah. You ask them if you’re free to go. And, if they say … If they don’t say yes, you keep asking them or you walk away. They don’t want to tell you you’re free to go if they really want to keep chatting with you.

Jacob Tingen: Yeah, but they can’t stop you if you are free to go.

Jonathan Jordan: So, you ask the question. If they don’t say no, then you walk away.

Jacob Tingen: Right.

Jonathan Jordan: You don’t have to keep talking to them. You don’t have to let them in your house. You don’t have to … You’re free to leave. However, now we talked about stops. We move on to stops. We started with that a couple of weeks ago, with stops. When the police turn their light on behind you, you know you’re not free to go.

Jacob Tingen: Right. Right. Well that’s a traffic stop. If you want to listen to traffic stops, it’s going to be episode one of Law Talk. We talked about traffic stops. How do you know, in the non-traffic context … I mean, it’s not like police walk up behind you and flash lights. How do you know, in an interaction on the street, whether you’re free to go or not.

Jonathan Jordan: Well, the one way is you ask them if you’re free to go. [crosstalk 00:09:15]

Jacob Tingen: Okay. We already covered that. Yeah.

Jonathan Jordan: The other way, they will give you command type or command words or command tone. Freeze. Stop. [crosstalk 00:09:25]

Jacob Tingen: Oh, okay.

Jonathan Jordan: Or they physically grab you. They seize you.

Jacob Tingen: Don’t move. Hands in the air. Those kinds of things.

Jonathan Jordan: Yeah. They start giving orders or there’s … I mean, this is where it gets a little bit hard to tell. But, what if four officers in uniform surround you?

Jacob Tingen: Yeah. Well, so what’s interesting there is from a constitutional law perspective, let’s say that they don’t have reasonable suspicion. It’s just a police encounter. If they impede your movement, have they falsely imprisoned you? I mean, that’s more of a civil law question but when it comes to protecting your civil rights … you know. Again, that’s probably not the kind of thing you would take to a lawyer unless something really egregious happened but technically at that point, if they don’t have reasonable suspicion or probable cause or a warrant, but they’re restraining your freedom and liberty of movement, then something wrong is happening.

Jonathan Jordan: Exactly. But that’s another way … That’s part of the test of whether or not you’re free to leave. The question is would a reasonable person in that circumstance feel free to leave? If they have big guns and they’re in uniform and they’re surrounding you, a reasonable person would not feel free to leave.

Jacob Tingen: Yeah, right. Right.

Jonathan Jordan: They have been stopped at least. Right?

Jacob Tingen: So, what does a police officer need to prove … Let’s say, let’s just take the hypothetical. Let’s just assume while we’re talking our hypothetical John is going to take his case to court and say the police unlawfully stopped me. What has to happen for a police officer to say, “No, no, no. I had reasonable suspicion.” [crosstalk 00:11:03]

Jonathan Jordan: This is very closely related to episode 1 of a traffic stop. It’s the same standard. Now, police don’t wear flashing lights on their shoulders so you’re alerted that they’re stopping you. But, if the police walks up to you and you’re not free to leave, objectively, you can’t … You’re not free to walk away or they tell you you’re stopped, the only time they’re able to make that stop under that standard is if they have reasonable suspicion. Now, reasonable suspicion, we mentioned earlier, is reasonable, articulable facts.

Jacob Tingen: Right. Right.

Jonathan Jordan: In light of the officer’s training and experience. So, a reasonable officer would have grounds to think or investigate what you were doing and based on it … maybe things you don’t even know about. Maybe someone called in a tip. But, they would need that to make the stop and they would have to explain why they did it later to a judge.

Jacob Tingen: So, let’s talk a little then … a little bit. They’ve got reasonable suspicion. How long can they hold you?

Jonathan Jordan: That’s part of the reasonable stop. The standard is a floating standard. So, there isn’t a set two and a half minutes or 21 minutes.

Jacob Tingen: Or, 48 hours or anything like that.

Jonathan Jordan: It’s reasonable based on the circumstances. One example I use often in time with the traffic stop is how long does it take them to get your information, review your license, check for arrest records, and investigate the reason they pulled you over. An average traffic stop is what? 10 minutes.

Jacob Tingen: Yeah.

Jonathan Jordan: So, that’s about what they have in that circumstance. So, if they’re holding you for 20 minutes while they bring a dog or whatever, they’ve held you longer than they should of under reasonable suspicion.

Jacob Tingen: Okay.

Jonathan Jordan: So, if they’re stopping you on the street, you check to see if you’re the same person that was just reported running out of a gas station that was robbed, the reasonable stop would be long enough to find out if you’re that person or whether they think you’re that person. We’re not talking … Not a very long time. Maybe, I don’t know, five minutes. Check your ID, ask you where you’ve been, that kind of thing.

Jacob Tingen: Now, we discussed this in the context of cars, but let’s discuss it in the context not cars. We discussed that depending on what was going on, car searches, person searches, that kind of thing. Most of that was motivated by officer safety. Under the reasonable suspicion standard, they don’t have probable cause. They only have reasonable suspicion. What’s their right or authority to search you or anything on you?

Jonathan Jordan: To search a person, it’s still based on officer safety. When they make that stop, there is no automatic right to search a person. So, they need reasonable suspicion to make the stop. You know, reasonably suspect that you may have been involved in some sort of crime. Right?

Jacob Tingen: Right.

Jonathan Jordan: They don’t get to automatically move on to searching you unless, coupled with that reasonable suspicion, they also have reason to believe you may be armed and dangerous. Now, they don’t have to know you’re armed and dangerous, and they don’t need to … But, they need to articulate, in my experience, he was shifty, he was-

Jacob Tingen: Or, it could be just a training thing like statistically this happens in more than 60% of the cases, the suspect is armed. Something like that.

Jonathan Jordan: Yeah, well, they need to articulate why. But, has to be more than a hunch. It has to be-

Jacob Tingen: More than a hunch.

Jonathan Jordan: … more than a hunch. I talked about spidey senses or cop senses tingling, but it has to be I’m afraid of this person and this is why.

Jacob Tingen: Now, beyond reasonable suspicion, at what point do we cross that line into probable cause?

Jonathan Jordan: Probable cause is … What the courts are sort of … It’s a fuzzy line between reasonable suspicion and probable cause, but probable cause isn’t even the same standard of more probable than not.

Jacob Tingen: So, let’s break it down then. If there is a fuzzy line because lawyers, as we know, live in the fuzzy areas between distinctions. So, let’s talk about something that’s clear probable cause and then let’s talk fuzz. Okay?

Jonathan Jordan: Okay.

Jacob Tingen: So, what’s something that’s clearly probable cause so we can just get that standard into people’s heads.

Jonathan Jordan: Well, probable cause is … Some courts … I think there’s some case law in Virginia that says something similar to 40% sure that a crime has been committed. Let’s say they have a witness report and you match that report somewhat. Let’s say you were acting suspicious or you were trying to hide your face or you were hiding something in your pocket. All of these things coincide with what the witness was saying they had seen. [crosstalk 00:15:38] Then they’re raising up to something more than just suspicion. They’re like, “I think we’ve got our guy” rather than “this may be our guy.”

Jacob Tingen: So, on the subject of probable cause and witness descriptions. How specific does the description have to be? Just thoughts. I understand that you don’t have access to have statistics or data on this right off hand. But, I’m just kind of curious like … And then, what’s the room there for discrimination. Right? So, if somebody says, and I’m just going to use an example, like “Black male. Bald.” Can they literally search every black male that’s bald or do they need a little more to go on than that to justify the probable cause?

Jonathan Jordan: Well, I mean, they probably need more than that for probable cause. Maybe that’s enough for reasonable suspicion to start an investigatory stop. Right? They were say “this guy matches it.” We’re going to … For these reasons, we’re going to make the stop and check it out.

Jacob Tingen: So, under either standard, reasonable suspicion or probable cause, there’s legitimate reason to stop you.

Jonathan Jordan: Yeah. Yeah, at one point, you’re just doing an investigatory stop. If you’re ever going to start moving into detention, seizure, that’s when you need probable cause.

Jacob Tingen: Okay, so, stopping and investigating is reasonable suspicion. Detention and potential arrest, probable cause and then definitely warrant territory at that point.

Jonathan Jordan: Well, you don’t need a warrant to make an arrest, but-

Jacob Tingen: Well, but you-

Jonathan Jordan: … but the standard is probable cause and you always need probable cause to get a warrant.

Jacob Tingen: To get a warrant. Right, so-

Jonathan Jordan: The difference is in which order that you do it. For example, the warrant is the highest standard that you get, and in that case, you actually go to the judge or magistrate and you convince them. You explain what you thought, or the police would, what they felt. What they saw. Why they thought that. How it related to their training and why they think a warrant should be given either to arrest or seize or search. Right? But, in the field, the police officer isn’t going to say, “Oh. Wait here please. I’ll be back in an hour. I got to go see-”

Jacob Tingen: With a warrant. Right.

Jonathan Jordan: … got to go see a judge.

Jacob Tingen: Can I ask you just a quick follow-up because I don’t want to just leave one bad example. What’s a good example of a witness description, then, that would satisfy probable cause?

Jonathan Jordan: Let’s say a victim says “I know this person. This is my husband just did this to me, and he just left. He’s driving a very specific car, a certain kind of license plate. He’s got a bumper sticker. He’s wearing a ball cap and-”

Jacob Tingen: And a flannel shirt.

Jonathan Jordan: Yeah. The more detailed the descriptions and from the more reliable potential witness, the more likely it’s to be probable cause. If it’s some known druggie, liar, on the street that’s giving out information, they’re going to be more, potentially more, skeptical, especially if police have a history with that person lying, that’s probably not enough for probable cause.

Jacob Tingen: So, let’s talk then, still, about this potential for confusion just because it’s curious to me. Let’s say the victim, this wife, describes her husband and then they actually find someone else driving a brown truck, wearing a flannel shirt and a baseball cap, but it’s not the guy. They stop him. Detain him for an hour or two. Have they violated his rights or is that well within their probable cause while they investigate [crosstalk 00:18:44]-

Jonathan Jordan: Well, as long as they had probable cause … Now, probable cause does not have to be absolutely correct or sure knowledge. It’s a determination made in the heat of the moment. So, they’re not going to go back after the fact and say you were wrong, so obviously you did not have probable cause. It’s that determination right there. As I’ve said, some Virginia courts have said maybe 40% belief that this is the guy.

Jacob Tingen: It doesn’t have to be certainty for probable cause.

Jonathan Jordan: I mean, for that, yes.

Jacob Tingen: But we’ve got to have a strong justification [crosstalk 00:19:13] for that kind of-

Jonathan Jordan: For that guy, obviously he’s going to feel his rights were violated and he’s going to be really mad about it. As far as remedies, he’s probably not going to have any because if they had reasonable, articulable probable cause, like they said, I had this and we really believed we had the guy. It turned out we were wrong. There’s no requirement to actually be right.

Jacob Tingen: Now, one more question before we get into the fuzz line between reasonable suspicion and probable cause. Let’s say they stop this poor guy who is not the guy they were looking for under a probable cause standard. If they find anything while they’re searching him and investigating whether or not he’s the guy they were looking for originally, fruit of the poisonous tree or legitimate? Let’s say they find ten pounds of cocaine. That’s not fruit of the poisonous tree. [crosstalk 00:20:01]

Jonathan Jordan: No, it’s not.

Jacob Tingen: … because the stop was justified even though it was incorrect.

Jonathan Jordan: They have a right. If they have a right to be where they are and doing what they’re doing, it’s not excluded. So, if they just happen to get him … Let’s say they have a … Now this is another part of the discussion of where they can search and when they can search different portions of vehicle or a person. Right? Merely stopping and investigating somebody is not the same as having a right to automatically strip search him.

Jacob Tingen: Right, right, right.

Jonathan Jordan: But, if they had a right, if they had probable cause to actually do the search and be where they were going to be, and they come across something else, it’s usable.

Jacob Tingen: Yeah, even if that’s not what they were originally looking for. If it’s there, tough luck.

Jonathan Jordan: Yeah. And that sometimes happens for a third party. Let’s say … We’ll go back to cars because it’s more common there. Say somebody’s speeding or whatever, right? They’re doing reckless things on the road, an officer sees them, stops them, starts investigating the speeding or whatever they pulled them over for and they smell pot in the car. And as they’re looking … Now, they might have … We’ve moved from reasonable suspicion or whatever standard they made the original stop under, now they’re investigating potential drug use. So, now, they’re searching the car and let’s say there’s a passenger in the car who was not smoking pot, but he’s got his little weed stash in his pocket or whatever. If the officer making the stop and when they do make the stop, they also can stop everybody else in the car. Suddenly, a person who was not originally a suspect in the initial stop, is now potentially being searched and being seized and being prosecuted for what he had on him, even though he wasn’t part of the original crime.

Jacob Tingen: Yeah, through what started as just a reasonable suspicion for a stop and then developed into probable cause as events progressed.

Jonathan Jordan: Exactly. I’ve had that happen with some different clients I’ve had.

Jacob Tingen: Oh, I thought you were going to say personally.

Jonathan Jordan: No.

Jacob Tingen: I was going to say, “Jonathan, you don’t need to share.”

Jonathan Jordan: They were passengers in a car minding their own business and later suddenly they’re being searched and seized and accused of additional crimes.

Jacob Tingen: You’re judged by the friends you spend your time with. That’s totally true. So, let’s talk about the fuzzy area then between reasonable suspicion and probable cause and kind of understand that a little better. Because you did say that there was a gray area. I’d like to explore it a little.

Jonathan Jordan: Okay. Well, the gray area is a reasonable person, a reasonable officer, with the training of an officer and experience of an officer in that situation. Because at some point, you’re going to move from I kind of think this is happening to you get into more concrete reasons.

Jacob Tingen: But, you still have to justify those to a judge and/or a jury if possible. If necessary.

Jonathan Jordan: Yeah. If you’re getting a warrant, that has to be justified in advance. If you’re just charging the person with a crime at the time, that gets justified after the fact in trial. The first part of the hearing is like let’s have a reasonable suspicion hearing right in front of the trial to determine whether or not the stop or the encounter or whatever it was was justified.

Jacob Tingen: Right.

Jonathan Jordan: To determine whether or not that evidence later … And that was used can now come in as part of the additional charges or crimes that are being charged.

Jacob Tingen: Now, it is common for defense attorneys to file what’s known as motions to suppress. The basis for many of those motions is this fruit of the poisonous tree doctrine. The “hey, you didn’t have probable cause to search there.” Maybe you only have reasonable suspicion to stop and pat down but not to put your hands in pockets or open bags. What were you doing? That’s fruit of the poisonous tree, so we’re going to suppress any evidence you found. Is that kind of how it works?

Jonathan Jordan: Exactly. So one example I would give in that scenario. Let’s say I was stopped for, I don’t know, whatever reason and the officer feels endangered. I’m a big guy. Maybe I’m acting shady or I’m aggressive because I’m in a bad mood and just got in an argument. I don’t know. Right? The officer feels somehow threatened or feared for his safety. And he says, “would you mind stepping out of the car?” Or he sees that maybe I’m a concealed weapons permit holder or something like that and he just wants to feel secure. So, he says “do you mind getting out of your car?”

Jacob Tingen: Right. Right.

Jonathan Jordan: At that point, the officer … If he can articulate why he’s afraid and it’s reasonable, he can search me.

Jacob Tingen: Yeah, because he could say “I’m 5’4″. He’s 6’4″.” Is that enough of a reason? Or-

Jonathan Jordan: Yeah. Well, potentially. It’s in light of the whole circumstances. Maybe I’m super muscular and I have black belt training and I’m wearing my [G 00:24:40]. Right? Or [Gee 00:24:42]. Whatever they call it. Maybe he’s a little bit afraid that I’m going to go Jackie Chan on him. So, it’s in light of the circumstances. If I’m aggressive, if I’m big, if he’s all alone in a dark place. Officer safety is a big deal so if they can say why they were afraid, it’s probably going to be okay. So, now we’re into the search. At this point, the search can only be a pat down search for weapons. If the officer … Anything than an open hand, right? They’re patting down the exterior of my clothing …

Jacob Tingen: … to make sure that nothing’s wrong or going to happen to them.

Jonathan Jordan: Yeah. So, let’s say he’s in the course of patting down my pockets. He comes across my pocket knife here. Now, he’s patting it. Just the example … He’s patting it … Let me get the camera … With an open hand. But, with an open hand, you can feel that maybe there’s a edge to it. You can feel that there’s screws. You can feel certain things. You know that’s a knife. An officer would know that was a knife. Now, they have a reason to reach in my pocket and pull the knife out. Because that’s how they … They have a right to seize that weapon to ensure their security. Now, it could be a gun, it could be a bike chain. I don’t know, whatever. Right? If they can feel what it is and know what it is, from an open hand pat down on the outside of the clothing, they’re justified in seizing that, at least temporarily. Now, let’s say he reaches in my pocket and he pulls that out, and my little baggie of heroin or whatever falls out with it.

Jacob Tingen: Right.

Jonathan Jordan: He had a right to be in there, seizing that weapon. You don’t get to suppress that baggie.

Jacob Tingen: So, keep your weapons and your drugs in different pockets, everybody. That’s the lesson that Jonathan is trying to teach you. So, I just wanted to cover one last thing, because we’re coming up on our half hour here. But, again, if you wanted to ask a question about this conversation, just explore your Constitutional rights, or if you’ve had a criminal law issue, now would be a good time to call in. 804-477-1720. We’ve been talking about this kind of spectrum of encounters with the police. We talked about just general police encounters. When they have reasonable suspicion to stop you. Probable cause to perform some kind of limited searching. And now, I’d like to talk about the gold standard of their ability to search and seize which would be warrants. So, how does a policeman or officer obtain a warrant and then what do they have to prove to the judge? Because earlier you mentioned that for a probable cause standard, it’s only about 40%. So, 40% probable cause justification for what they’re doing. But, what about … Since we’re making up fake percentages. What’s the percentage surety of unlawful activity that you would need to prove to a judge to get a warrant? Does it need to be more than 40% or is it just the 40%?

Jonathan Jordan: It’s the same. It’s the same 40%. It’s the same probable cause standard. The difference is you have to go convince a judge in advance. The interesting thing about a warrant is if a judge decides that they believe that you’re 40% sure, or the officer is 40% sure because of the evidence presented to them, they’re going to give a warrant to either search or seize somebody. Right? Let’s say it’s an arrest warrant to go grab Joe Blow. Right? They know … So, the arrest warrant will say probably where he is likely to be, his house or his buddy’s house or some place specific, and that warrant only grants the officer the authority to search or seize that person in the areas that person is likely to be. So, let’s say they have a search warrant to come get me in my house. I’m hanging out, watching TV, one night. They knock on the door. They come in to arrest me and I’m watching TV in my TV room. Now, that doesn’t give them authority to go poking around in my filing cabinet and my kitchen drawers and my toolbox. They can only search for me in places where a human, my size, can be.

Jacob Tingen: Right.

Jonathan Jordan: Now, if they don’t see me-

Jacob Tingen: [crosstalk 00:28:57] If there are drugs sitting on the table, that’s evidence against you. But, as long as you keep your drugs in drawers and you’re sitting out in a place where a human being could fit, then you should be okay.

Jonathan Jordan: It doesn’t always have to be drugs. They call it contraband. It could be weapons. It could be money. It could be-

Jacob Tingen: Any evidence of unlawful activity. That’s-

Jonathan Jordan: Exactly.

Jacob Tingen: Keep your cash in small drawers.

Jonathan Jordan: They have what’s called the plain sight doctrine they’ve developed over the years. Is like anything in the course of a normal investigation or a search to come get me, they see it in plain sight, they can get it. If they have to start manipulating things and moving things to get access to that evidence, it’s going to be suppressed.

Jacob Tingen: So, let’s take it one step further, though, on this plain sight doctrine, which could be deserving of its own podcast episode all on its own. If they see something in plain sight that suggests unlawful activities, does that give them probable cause to cause further search?

Jonathan Jordan: Absolutely. This is … You have to keep in mind, this is a moving thing. If in the course of them doing what they have the right to do, at step. Right? Let’s say they’re just chatting with you and they happen to peak through your door while you have it open and they see your arsenal on your coffee table, then maybe the rules have just changed. At any point, it can be escalated because they’re just investigating. If they have reason to believe, or could be reasonable suspicion or probable cause, they have the power to make it more intense. Intensify the search, intensify the investigation.

Jacob Tingen: Right. And, again, for safety of themselves and others.

Jonathan Jordan: Yeah.

Jacob Tingen: So, that’s our half hour today. Thank you Jonathan. The next time we talk, there’s a couple of other topics that we could explore in this area. In particular, how searches and warrants to search your home, and those kind of things, and what behaviors you can engage in to protect your rights. So, we’ll cover more of that the next time we’re on with Jonathan. Again, we’re here. Law Talk with Tingen and Williams. Free legal consults, Wednesdays at 11 am. You can either call in or leave a Facebook consult. Last week we actually got a live consult on Facebook. Leave questions, call in. And we’re happy to talk to you about any legal topic. As a law firm, we do criminal. Jonathan does criminal. I do immigration and business and trademark issues. We’ve got … Jonathan also does family. We also do wills and estates and personal injury and a number of other issues. We’re excited to serve the local legal community and serve you and hopefully you can learn a lot from our weekly Law Talk Tingen and Williams podcast and Facebook Live programs. We’ll see you later. Bye.

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