Search and Seizure Transcripts August 20, 1997 9 a.m. - 10 a.m. GUESTS: MICKEY SHERMAN, CRIMINAL DEFENSE ATTORNEY SERGEANT CHRISTOPHER ARCIERO, CONNECTICUT STATE TROOPER, The following are excerpts from the viewer call-in portion of the program. Search and Seizure in the Home Legal Grounds for Search and Seizure Search and Seizures on the Highway Improper Searches Use of Police Dogs in Search and Seizures Seizure Of Property And Money Tips for an Orderly Search JUNE GRASSO: Good morning. I'm June Grasso, and welcome to Legal Cafe, your daily wakeup call to the law in your life. It's Wednesday, our day to focus on the law and your home, and we'll start with a look a search and seizure--what it means if the police knock on your door and want to take a look inside. Do you know your legal rights if this ever happens? Let's find that out from someone who knows criminal law inside and out, Mickey Sherman, a criminal defense attorney from Connecticut who lectures frequently on criminal law issues. Mickey is the president of the Connecticut Criminal Defense Lawyers Association, a frequent Court TV guest, and a first-time guest to Legal Cafe. Welcome, Mickey. MR. SHERMAN: Good to be here. SEARCH AND SEIZURE IN THE HOME MS. GRASSO: Now, let's go into the home. The home is your castle. You have your stuff there. You don't want to be bothered. When can police come in and say, "I want to take a look around?" MR. SHERMAN: Under two circumstances--if they have a warrant, a search warrant, signed--a piece of paper signed by a judge, where a police officer and a couple of cops have gone to a judge, have put down in a bunch of paragraphs, "We believe that a crime has been committed or is being committed at this address, by this person, and we believe that evidence of this crime exists, and therefore we believe probable cause exists to issue this warrant." The judge signs off on it, gives this paper to the police, they run to the house, the knock on the door--they're supposed to knock--and say, "We're here, Mr. Jones. We have a search warrant." You've got to let them in. There's no choice. The only other way you must let someone in or you will let someone in is if you agree, if you consent. If they don't have a warrant, but you say, "Yeah, sure, you can search." I don't think you'll that. MS. GRASSO: You know what question I'm going to ask-- MR. SHERMAN: Why would you do it? MS. GRASSO: Why would you ever do that? MR. SHERMAN: Because they're the police. They're the police. You know, what are you going to say, no? Believe it or not, so many people--so many guilty people do that. I always ask my clients, "Wait a second. You have two pounds of marijuana, all this hashish, you know, Quaaludes, so why did you let them in?" "Well, you know, I didn't want to say no. I didn't want to get in trouble." MS. GRASSO: It's amazing. And we're going to talk more about when you should and shouldn't consent in just a few moments. LEGAL GROUNDS FOR SEARCH AND SEIZURE MS. GRASSO: Welcome back to Legal Cafe. I'm June Grasso. Our topic this hour is police searches. What are police allowed to do in the name of fighting crime? A police search, particularly in your home, is generally valid only if police have first gotten permission from a judge. That's known as a warrant. Anyone who watches cop shows on television has heard that term before. The Fourth Amendment of the Constitution is the law of the land on search and seizures. The Fourth Amendment provides that people should be free from unreasonable searches and seizures. What is reasonable depends on the circumstances. Generally court's look at the government's actions versus an individual's privacy expectations. In certain instances, a warrant may not be required for a search if the person consents to a search, if the evidence is in plain view, if the police are in hot pursuit of a suspected criminal, or if there are exigent circumstances--your basic emergency. Before we take your calls, I want to bring a law enforcement perspective into our discussion. Christopher Arciero is on the phone. He's been a Connecticut state trooper for 15 years. He's also an attorney, and he has trained upwards of 500 state troopers about the laws of search and seizure. Thanks for being here, Christopher. SEARCH AND SEIZURES ON THE HIGHWAY SGT. ARCIERO: You're welcome. Good morning. MS. GRASSO: Good morning. I'm going to start with a simple question for you. When you enter a home or you pull over a suspicious car on the highway, what's going through your mind as a police officer? SGT. ARCIERO: Well, the first thing and probably the most important thing is the officer's safety. We instruct all our officers that if they punch the clock in the morning, they punch it at night to go home to their families. And, secondly, and just as important is the fact that before we intrude on anybody's freedom of movement, we have some type of grounds to do so, whether it be reasonable suspicion or probable cause. MS. GRASSO: Now, a car is driving on a highway in Connecticut. Let's take speeding out of the factor here, but what kinds of reasons can you have to stop that car? Can you stop them for any reason? You drive by and you know--you look the driver, you think he or she looks suspicious. SGT. ARCIERO: No, that would be profiling, and we don't teach profiling. We don't condone profiling. However, there are various other means by which you can stop the vehicle. If you believe that car was involved in some type of crime or if you see some type of equipment violation on the vehicle, those would be grounds to make a stop of that vehicle--to seize the moment, if you will, to either confirm or dispel that vehicle or the occupants involved in it in some type of crime. MR. SHERMAN: Sergeant, if I can interrupt, don't--doesn't the Connecticut state police routinely stop cars going up the northeast corridor when they fit a certain profile for drug couriering? SGT. ARCIERO: I don't believe that's the case. Again, I know the courts have prohibited profile-type stops of vehicles. You just can't do that. MR. SHERMAN: But don't you get an extra amount of speeding cases pulling into the first rest stop into Connecticut once you leave New York, going northbound, because that's the first place that drug couriers or people who are picking up or transporting drugs usually stop? SGT. ARCIERO: I don't believe that's the case, but, again, we've developed, sort of data bases for intelligence with respect to drug couriers, but that doesn't form the only basis by which we stop vehicles. IMPROPER SEARCHES MS. GRASSO: All right. Christopher, stay right there. We're going to take our first caller. Ray from Florida is on the line. Good morning, Ray. You're on Legal Cafe. Q Good morning. MS. GRASSO: Hi. Have you been stopped or you have just a question? Q Well, yes, I have a question, but first of all, I would like to say that I think your program is--it's great. MS. GRASSO: Oh, thank you so much. Q Yes, and my question is I was arrested in a parking lot back in Louisiana, and the officers took my keys out of my pocket, went into my home, and came back and charged me with marijuana possession-- MS. GRASSO: May I ask you, first of all, Ray, what were you arrested for? Q I was arrested for dating a white girl. MS. GRASSO: Is that a crime on any books? I never heard of it. MR. SHERMAN: Is that a felony or a misdemeanor down there? Q It's a misdemeanor. MR. SHERMAN: Yeah. Q But I was acquitted of all charge. MS. GRASSO: Okay, and they took your keys out of your pocket-- Q After they arrested me, right. MS. GRASSO: --and then went to your home. Q Yes. MS. GRASSO: Now, what happened as far as the charges against you? They then charged you with drug violations? Q I was acquitted of all charges. MS. GRASSO: Okay. So now you--what's your question, whether that was a proper thing for them to do? Q Right. MS. GRASSO: Okay. I think the answer's pretty easy on that one. MR. SHERMAN: Kind of a no-brainer, and I guess the court and the jury agreed with it. There's just no way. Were you near your home when you were in the car? Q I was in the parking lot. I was about 150 feet away from my home. MR. SHERMAN: Well, was the search suppressed, or didn't--did the jury-- Q Yes, it was suppressed. MR. SHERMAN: So the judge agreed that this was an improper search. Q Right. MR. SHERMAN: Yeah. It was a no-brainer. MS. GRASSO: Is there any way they can ever, on a regular arrest--you're away from your home--then turn it into a search of your home without a warrant? MR. SHERMAN: Without a warrant, I don't see it. Not unless they have probable cause to believe that a crime is being committed right then and there at the home. Our trooper may have a different opinion, but I don't know. Trooper? SGT. ARCIERO: Unless there's consent given by the-- MR. SHERMAN: Yeah. SGT. ARCIERO: --arrested individual, there'd be no grounds for that trooper to transport that search from the scene of the arrest to the residence. MR. SHERMAN: What they could do is secure the place and then run and get a real quick warrant. SGT. ARCIERO: Assuming that there's probable cause-- MR. SHERMAN: Yeah. Yeah. SGT. ARCIERO: --and evidence to allow a search. MR. SHERMAN: Yeah. And, you know, that's perfectly allowable. MS. GRASSO: All right. So thanks so much, Ray, for calling. USE OF POLICE DOGS IN SEARCH AND SEIZURES MS. GRASSO: Welcome back to Legal Cafe. I'm June Grasso, along with my guests defense attorney Mickey Sherman in the studio and Connecticut state trooper Christopher Arciero on the telephone. Let's go back to our phones, where Dennis from New Jersey is standing by. Good morning, Dennis. Q Good morning. MS. GRASSO: Hi. Do you have a question for us? Q Yes. What I'd like to know is what are the legal guidelines of a police dog in terms of the search and seizure procedures? MS. GRASSO: All right. Let's go to Christopher Arciero, who's a Connecticut state trooper. Christopher, is it different if it's a dog that's going to do the searching, let's say, of your car or your house? SGT. ARCIERO: No, I think a dog is just an extension of the trooper, and to the extent that there's probable cause or reasonable suspicion or there's a consent they can utilize the dog to assist that trooper in the furtherance of that search. MS. GRASSO: Dennis, have you had an instance where a police officer used a dog to search something of yours? Q Right, I was at a recent traffic stop in Nevada, and they ran the credentials check and then they asked me could they search the car. MS. GRASSO: And what'd you say? Q And I said no. MS. GRASSO: Okay. Q And then he proceeded to take out the little canine dog, and he did a sniff around the car. And I'm saying, like, wait a minute, now, if the dog is under the same legal guidelines as the police officer, I already told them, no, they couldn't search the vehicle, but they went and did it anyhow. MS. GRASSO: Now let's ask Mickey Sherman. Now the dog--is the sniffing in plain view? MR. SHERMAN: The dog's in plain smell. There's no question about it. It's in plain smell. But I don't buy it. I'm sorry. I, you know, I think if the officers had probable cause to search, then they could use the dog to assist them. I agree with Arciero. But, no, I don't think they can base their probable cause on a dog sniffing. I think it's kind of different at the airports, but-- MS. GRASSO: Well, the airport's-- MR. SHERMAN: Yeah, it's a different deal. MS. GRASSO: Mickey, if the dog is just sniffing around the car--in other words, suppose the dog is sniffing around the outside of the car where the officers could be walking to look and see if there's anything inside-- MR. SHERMAN: If they can see it in plain view, it's okay. MS. GRASSO: So the dog can sniff around and is that all right? MR. SHERMAN: What happens, the dog is going to hit on something, and then the officers are going to use that as probable cause. It's like when you take money, you take hundred-dollar bills, you give it to the dog, and the dog will always smell marijuana, okay, or cocaine. But then they did a study some years ago, and 80 percent of all the hundred-dollar bills that are in circulation have some cocaine on it, where dogs hit on them. It's some astounding statistic like that. So it's just not reliable. It's just not reliable, and it's not right. MS. GRASSO: Okay. MR. SHERMAN: Unless you are caught doing something or the police have probable cause, I don't think the dog should make the judgment here. MS. GRASSO: Okay, we're going to--Dennis, you knew your rights to say no when they asked for a consent to search the car. SEIZURE OF PROPERTY AND MONEY Let's go to another Dennis in New York. Good morning, Dennis. Thanks for holding. Q Okay. MS. GRASSO: Hi. Q How are you doing? MS. GRASSO: Okay. How are you? What--you said you had a problem with being stopped? Q Yes, I have. MS. GRASSO: Tell us. Q I got married and I bought a Land Cruiser from the bank and I got--the day I got married, and I was--like two months later, I was driving and I do promotions for record companies, so I had a sum of money in my truck. I got stopped by the police. They asked me did I have anything in my truck illegal-- MS. GRASSO: Dennis, let me stop you one second. What did they stop you for? Q I don't know. MR. SHERMAN: Tail light. Q I don't know. MR. SHERMAN: Yeah. MS. GRASSO: Okay. So they asked--I'm sorry, go ahead. I thought maybe they had stopped you for speeding or for some-- Q No apparent reason. MS. GRASSO: Okay. Q Just because I was a young black man in a nice Land Cruiser, to be blunt about it. And they stopped me, asked me did I have anything in my truck illegal. I told them no. So he said, "What's in that bag in your back seat?" I said, "That's money." So he said, "How much money?" I told him how much money it was-- MR. SHERMAN: How much. Q It was $14,000. MS. GRASSO: That's a lot of money to be carrying. Okay. And so what happened? Q And he said, "So what're you doing with $14,000?" I was at another party. I said, "I'm going to rent a venue out." I work for Big Daddy K--he's a rap star--and I said, "We're going to get a venue to do a show with Keith Murray--(audio blocked)--and he was like, "Y'all don't make that kind of money." So he got the money, called for a backup. They took me out to the police and kept me down there for 10 hours, questioned me, they let me go, they told me I could come get my vehicle and my money the next day, and that's been eight months ago. They told me they have it for investigation ever since. MS. GRASSO: You mean you haven't gotten your car or your money back? Q Haven't gotten my car or my money back. MS. GRASSO: Have you hired a lawyer to try to help you get it back? Q Three lawyers in Suffolk County won't take the case because it's a fight against Suffolk County. MS. GRASSO: Mickey, what do you think about this instance? Well, I mean, police right away, if you have a lot of money, they suspect there's a drug transaction. MR. SHERMAN: Yeah, or you're a courier or something. That's not an unusual situation at all. I can't believe that with nothing else they're taking--they've kept the car and the money. I mean, there was no--did the dog hit on it for cocaine or anything like that, or no? Q No dog was involved. MR. SHERMAN: No dog was involved? Q No, sir. MR. SHERMAN: And the papers were in order on the car and everything like that? Q Yes. MR. SHERMAN: And they didn't arrest you for anything? Q Never been arrested. MR. SHERMAN: Are you on probation or parole for anything like that? Q No probation, no parole. MR. SHERMAN: Nothing. And no one ratted you out for anything? Q I wasn't doing anything to get ratted out for. MR. SHERMAN: No, but there's no informants involved that they said you did something wrong? Q No. MR. SHERMAN: I think it's unconscionable. I don't--I'm not shocked by this story. It happens. MS. GRASSO: But how does he get his--his car and his money back? MR. SHERMAN: Well, he's going to--the state is going to wait for him to blink, it's as simple as that. They know that he's up against it, and they've got the money, they've got the car, and he's got to go through the motions. He's got to hire a lawyer, he's got to fight for it, and eventually he's going to get it back, but in the meantime, they're going to hold on to it and they're going to want to compromise. They'll probably say, "We'll give you back half the money." MS. GRASSO: Really? Wow. MR. SHERMAN: It stinks. MS. GRASSO: That's amazing. All right, Dennis, so you have to hire a lawyer on that one. Q You know what the problem with that is? MS. GRASSO: What? Q They've got my money, so how can I hire a lawyer? MR. SHERMAN: That's the thing. Well, you've got to get a lawyer who believes enough in your case that you're going to promise him a piece of the money if he gets it. MS. GRASSO: Because this way--I mean, there's no other way you're going to be able to get out of that. Thanks for calling, and good luck with that. TIPS FOR AN ORDERLY SEARCH MS. GRASSO: We still have a little bit of time in this hour, so let's take a second to highlight some of the key legal points on search and seizure. We'll call this Mickey Sherman's House Blend for an Orderly Search. First, be calm and try to learn why the police have stopped your vehicle or want to enter your home. You should also insist on calling a lawyer, but do so firmly and politely. Finally, if any potentially illegal activities are happening, try not to make any incriminating statements about them. It's always better to let your lawyer do the talking. Mickey, is there ever an instance where you should consent to a search of your car or your house? MR. SHERMAN: If your name is Cardinal O'Connor, you're okay. MS. GRASSO: (Laughs.) Okay. MR. SHERMAN: Other than that, unless you know for sure that there's nothing there, but the problem is if there's other people who share your home with you or your car, use your car, you don't know what they may have left there, so it's generally not worth taking the risk to be a nice guy, to be cooperative. Everyone wants to be--everyone is generally wanting to be a good citizen, and, you know, as much as I'm saying this, when Trooper Arciero stops me on the way back, I'll probably let him search my car. So, you know, it's easy to say it, but when you're confronted there with the officer right there, most people will say, "Yep. Go ahead." MS. GRASSO: Christopher Arciero, as a Connecticut state trooper for so many years, do people consent to search a lot? SGT. ARCIERO: You'd be surprised at the number of people that will allow you-- MR. SHERMAN: Absolutely. SGT. ARCIERO: --to check their house, their vehicle, their luggage, their baggage-- MR. SHERMAN: And that's when they're dirty, right? No, seriously, that's when they've got bad stuff there, too, right? SGT. ARCIERO: Yes. We find a lot of things in those consent searches. MR. SHERMAN: Yeah. MS. GRASSO: Now, what is your best advice to someone who's stopped by police on a highway or on a street and, you know, what's the best advice for not letting the situation escalate and for handling the situation in the best way possible? SGT. ARCIERO: Well, it's a two-way street, and I think someone talked about it earlier--the respect. As long as there's a two-way respect and you cooperate, I think there's going to be less likelihood of problems being created. MS. GRASSO: Okay. Christopher Arciero, thanks so much for being here. We appreciate it--on the phone. SGT. ARCIERO: Thank you, June. MS. GRASSO: Mickey, let's talk a little bit--because I think the ordinary citizen, the contact they have with police in most spheres is when you're driving in your car and you get stopped. First of all, what can they look for? MR. SHERMAN: Well, they can look for obvious contraband. If they see property which is obviously stolen--has "Property of Jones Bank and Trust" and it's a money bag, that's stolen property. But if there's a typewriter sitting in there or a computer, that doesn't necessarily mean it's contraband. If they see drugs in plain view, without opening this and going under that if they see drugs-- MS. GRASSO: What about the glove compartment? MR. SHERMAN: They can't go in there. However, when they--when you give them your license and registration and you open up the glove compartment and out comes the kilo of cocaine or the marijuana or the hash pipe with the roaches, you've got problems. Likewise if it comes out of your visor or if it falls from under the seat. MS. GRASSO: Suppose they see something that looks suspicious--they see something that looks like something to do with drugs in the car and then they--then they are allowed to go, "Okay, get out. I want to search now. I'm going to go into your trunk, I'm going to go into your glove compartment"? MR. SHERMAN: It depends on how suspicious it looks. If it looks like a weapon, if it looks like drugs, you know, but it just can't be a brown bag. if there's a brown bag and they can't tell what's inside of it, it's not enough. They've got to see something. They've got to see a syringe, a straw, any marijuana or narcotics paraphernalia. The problem you have is that 90 percent of the time, it's under the seat, and the officer will always say, "I saw him reaching furtively"--that's a great police officer term. Except for the Connecticut police, who do everything right, by the way--never miss a chance to kiss up to the local police. But, you know, other states I'm talking about, of course-- MS. GRASSO: Right. MR. SHERMAN: --they will always say that they saw furtive movements under the seat, and that's where the problems come in. MS. GRASSO: Well, Mickey Sherman, it's a pleasure having you here. I hope you don't get stopped on your way home. MR. SHERMAN: I'll try not to. MS. GRASSO: Okay. Thanks so much. Please come back again. That's a wrap for hour one of our Wednesday Legal Cafe, but there's a lot more ahead I the next 60 minutes. We'll turn our attention to the trials and tribulations of buying a condo or a co-op. You may not realize all the legal pitfalls until you actually get down to business, so grab a refill and stay right here.