Criminal Procedure Criminal Procedure Outline I.

Probable Cause - The quantum of facts and circumstances within the officers knowledge that would warrant a reasonable person to conclude that a crime has been committed (arrest) or evidence related to the crime will be found at a particular location (search). A. The text of the Fourth Amendment protects the legitimate expectation of privacy: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 1. Probable Cause: The level of justification required for a full scale police intrusion into a citizens life. a. Arrest is never constitutionally reasonable in the absence of probable cause. b. 2. B. A search and seizure of property is unreasonable unless accompanied by a warrant based on probable cause.

The greater the intrusion of liberty, the greater the required justification.

Exclusionary Rule: Evidence seized by the police in violation of the Fourth Amendment may not be introduced in a criminal trial of the victim of the unreasonable search and seizure. This directs focus to the police activity that resulted in the discovery of the challenged evidence. The HOME is afforded the highest Fourth Amendment protection. However, the individual must have a present possessory interest in the home. Threshold Issue #1: Standing A criminal defendant may not raise a claim of a Fourth Amendment violation unless he or she is the alleged victim of the unreasonable search or seizure. There must be a reasonable expectation of privacy. 1. The facts and circumstances relied on for probable cause can be time sensitive. The information can become stale and no longer support probable cause. 2. Probable cause to search relates to the present location of the items sought and is likely to become stale earlier than probable cause to arrest.

C. D.

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Threshold Issue #2: The Fourth Amendment applies only to government actors and their agents (police and those working at their behest). This is determined by the totality of the circumstances (does not apply to private security guards). The Amendment also applies to other government officials (such as teachers). Checklist: 1.) Does the defendant have standing? 2.) Was this government activity? 3.) Did the activity constitute a search or seizure? a. Analyze actions taken by the police step-by-step, in chronological order. (i.e., backpack, purse, wallet) 4.) If it was a search or seizure, did the government have adequate grounds to conduct? a. Are there articulated facts to support the search? 5.) Did the officer have a warrant? If NO, was there a valid reason for not having one? (Exceptions such as emergency) 6.) If a warrant was obtained, was it obtained in a proper manner and was it in the proper form? 7.) If answers to the above render the activity unreasonable, what is the remedy? Exclusion? The initial determination that probable cause exists is made either by: 1. Prior to the action, a warrant is signed by a magistrate, or 2. At the scene based on the officers reasonable belief (later reviewable by a magistrate).

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G.

____________________________________________________________ { { { { Less intrusion { Terry Stop and Frisk, { { Requires Reasonable Suspicion Full scale search & { arrest, requires Administrative search; Probable Cause i.e., health inspector, Requires legitimate interest H. The officer must have articulable facts and circumstances that would lead another officer of like training to reach the same conclusion that the officer reached. An officers expertise and training will be considered in the probable cause analysis, but it is insufficient by itself to transform the officers hunch into adequate probable cause. Probable cause to search requires belief that: contraband, fruits of a crime, instrumentalities, or evidence of a specific crime is going to be found in the

I.

particular place the police are searching. Probable cause requires a connection between the place to be searched and the contraband. 1. Probable cause to arrest requires the reasonable belief that a crime has been committed, and that the particular person (arrestee) did it. The persons present location is irrelevant to a probable cause arrest. 2. J. To develop probable cause, officers must rely on: their own observations and reasonably trustworthy hearsay (informants)

Specific allegations are required, and not conclusory statements. The officer must have specific facts and circumstances that can be articulated to a third party (magistrate) and be measured against an objective standard (reasonable officer come to the same conclusion). If the facts tell you there is probable cause, there is probable cause. However, if the officer claims probable cause, it must be analyzed. Examine the Source of the Information: 1. Officers own observations: credibility and trustworthiness are presumed. 2. 3. Reports from IDENTIFIED informants (victim, witness): credibility and trustworthiness is likewise presumed, absent special circumstances. Reports from UNNAMED informants: credibility must be demonstrated (confidential informants, anonymous informant). The reliability of an informants tip is examined by: the veracity of the informant (reliability/credibility) and the basis of the informants knowledge. (Spinelli). Also use independent police corroboration.

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L.

Spinelli v. United States - Spinelli was convicted of traveling to St. Louis, Missouri, from a nearby Illinois suburb with the intention of conducting gambling activities. At every stage in the proceedings in the lower courts, Spinelli challenged the constitutionality of the warrant which authorized the FBI search that uncovered the evidence necessary for his conviction. The affidavit contained the following allegations: (1) During four of five days of observation, Spinelli crossed a bridge to Missouri and parked his car at a St. Louis residence, (2) The apartment contained two telephones, (3) The application stated that Spinelli was a known bookmaker and gambler, and (4) that a confidential and reliable informant told the FBI that Spinelli was operating a handbook from the telephones at the St. Louis apartment. 1. The two prongs of the Aguilar/Spinelli test are that, when law enforcement seeks a search warrant and a magistrate signs a warrant: a. The magistrate must be informed of the reasons to support the conclusion that such an informant is reliable and credible. (Veracity)

b.

The magistrate must be informed of some of the underlying circumstances relied on by the person providing the information. (Basis of the Knowledge)

2.

The Court concludes that the affiant offered the magistrate no reason in support of the conclusion that the source was reliable, and that in the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accuseds criminal activity in sufficient detail so that the magistrate may know that he is relying on something more substantial than a causal rumor (Draper). The Court notes that such an inference cannot be made in the present case, as the only facts supplied were that Spinelli was using two telephones. Veracity can be established by showing the credibility of the informant. What is there past track record? Have they informed before and have they been right? What is the reliability of the information itself? An officers statement as to the reliability is not enough. Facts and circumstances must be shown. Reliability can be shown through an admission against self-interest (particularly if an informant has no history of working with the police). Basis of the Knowledge is established when the informant alleges that he or she personally observed the reported facts. The informant cant be solely repeating hearsay. The basis of knowledge can also be demonstrated through self-verifying detail sufficiently detailed information from which it reasonably may be inferred that the informant is speaking from personal knowledge. (Draper)

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M.

Under the old Spinelli test, both prongs of the test had to be satisfied for the informants information to be valid. This test was modified under Gates, as the Court stated that probable cause was a fluid concept, and that an informants veracity and basis of the knowledge were to be evaluated under the totality of the circumstances, rather than as discrete factors. As such, a strong showing in one factor may make up for a deficiency in the other. Furthermore, independent police corroboration of the facts in the tip will also buttress reliability (Draper). Gates v. Illinois (Totality of the Circumstances) The Bloomingdale police department received an anonymous letter stating that Sue and Lance Gates made their living selling drugs. The letter detailed the couples arrangement, stating that Sue would drive their car to Florida to get loaded with drugs, then Lance would fly down and drive the car back. The letter noted that on May 3 Sue would be driving again. A subsequent investigation established that Lance had flown to West Palm Beach on the 5th then headed north in a car with plates issued to him. A search warrant was obtained and executed when the couple

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arrived home. The search resulted in the discovery of 350 pounds of marijuana in their car as well as marijuana, contraband, and weapons in their home. 1. An informants veracity, reliability, and basis of knowledge should be understood as closely intertwined issues that may usefully illuminate the common sense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place. This totality of the circumstances approach is far more consistent with the Courts prior treatment of probable cause than is any rigid demand that specific tests be satisfied by every informants tip. 2. The Court states that probable cause is a fluid concept in which one simple rule will not cover every situation. The Spinelli test factors of veracity and basis of knowledge are better understood as relevant considerations in the totality of the circumstances. Therefore, a deficiency in one may be compensated for in determining the overall reliability of a tip by a strong showing as to the other or by some other indicia of reliability. Gates Rationale In determining whether the tip provides probable cause, the magistrate must weigh all the various indicia of reliability (and unreliability) surrounding the tip. Ohio uses Gates and Draper. Ohio holds that an anonymous tip must demonstrate a future activity that can be corroborated by independent police investigation.

3.

O.

Generally, the motivation of the informant has no role in the accuracy of the information, unless the information shifts blame from informant to another person. Suspicious Circumstances 1. The mere existence of a prior criminal record does not, in and of itself, constitute probable cause to believe a person is involved in criminal activity (no search, no arrest, no Terry). a. However, knowledge of a suspects prior criminal activity may be used as confirmation of an informants tip. Officer use hard information, not just rumor or reputation. Is the information as consistent with legal activity as it is with illegal activity? 2. Flight from a police officer does not, without more, constitute probable cause to believe a person is involved in criminal activity (no search, no arrest, no Terry). If the officers are uniformed, some level of guilt is indicated by flight. a. However, flight can be counted as a factor in the establishment of probable cause. High Crime Area: Mere presence in a high crime area cannot, by itself, justify an arrest or a search. However, it can be a factor in the probable

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cause equation. A presence, plus other suspicious circumstances can establish reasonably suspicion of criminal activity and warrant further investigation. 4. Suspicious, but Lawful Conduct: Lawful conduct, no matter how suspicious it may seem, will not constitute probable cause to search or arrest.

Q.

Final Thoughts: 1. Known informants are not subjected to the same critical examination as unnamed informants. 2. All jurisdictions give some weight to an officers expertise and experience. However, matching a profile is not enough by itself to arrest or search. There must be articulable facts and circumstances that can be measured by a third person under an objective standard. Police observation is presumed credible, and courts give deference to police training, experience, and expertise. The identity of an unnamed informant does not necessarily have to be disclosed to the defendant or the court, the magistrate can order an in camera inquiry which will preserve confidentiality. The need to preserve confidential informants outweighs the defendants need to cross-examine.

3.

R.

Summary: To determine whether probable cause exists examine: 1. The timing of the information (stale or fresh?) 2. What is the source of the information? a. Officer observation b. Reasonably trustworthy hearsay i. Veracity ii. Basis of knowledge (Factors under Gates) iii. Independent police corroboration Any suspicious circumstances (No one factor is dispositive, but a combination may add up to probable cause) a. Suspects criminal record b. Flight from police or other furtive conduct b. Presence in a high crime area

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II.

Warrant - Judicial authorization for police action, either to search a particular place (search warrant) or to seize a particular person (arrest warrant).

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Searches conducted outside the judicial process are per se unreasonable, subject to certain exceptions to the warrant requirement. Otherwise, the search is unreasonable. A warrant can also be used to search for and seize a person, not because they are wanted for arrest, but because they are being unlawfully restrained (Elian Gonzales). Application Process: 1.) Officer seeking the warrant prepares an affidavit and application. 2.) Documents are then reviewed and approved by a superior officer, who then finds a judge. Once a magistrate denies a warrant, another magistrate may not authorize the warrant on the same facts (judgeshopping). Judge critically examines the probable cause determination. In less than 10% of instances will a judge deny a warrant. Upon judicial approval, the warrant is issued. The original and copy to the officer and copy and supporting documents retained. After execution, the officer signs a return to inventory.

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C.

3.) 4.) 5.) D.

Requirements for Validity: 1.) Signed by a neutral and detached magistrate. 2.) 3.) Adequate showing of probable cause supported by oath or affirmation (affidavit). The warrant must describe with particularity the place to be searched or the items/person to be seized.

E.

Neutral or Detached Magistrate: Any official who is trusted with the administration of the laws. The official cannot be associated with the police or prosecutors office. Therefore, the state attorney general or any executive official cannot issue a warrant. 1. The magistrate cannot have a financial interest. The magistrate cannot have any financial stake in the issuance of the warrant. 2. The magistrate is required to make an independent evaluation of probable cause. The magistrate has to be adequately trained to make the probable cause determination. In Coolidge v. New Hampshire (1972), the Court invalidated a warrant because the state official who was the chief investigator and prosecutor

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in the case was not the neutral and detached magistrate required by the Constitution. 4. Where a judge issues a search warrant based upon an affidavit which he does not read, he makes no determination of probable cause but merely serves as a rubber stamp for police. Such action is improper ever though the affidavit actually shows probable cause for the issuance of the warrant. In Shadwick v. City of Tampa (1972), the Court upheld a city charter provision authorizing municipal court clerks to issue arrest warrants for municipal ordinance violations. The Court held that an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search.

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F.

Probable Cause Supported by Oath or Affirmation: Affidavit set forth facts and circumstances sworn to and signed by an officer, then presented to magistrate. Two common challenges to a probable cause showing: 1. Facial inadequacy (difficult to win under Leon good faith exception). 2. Franks Challenge: Disputes the truthfulness of the facts set out in the affidavit. a. Franks Challenge: The Defendant must make a preliminary showing that the affidavit contains a false statement made by the affiant officer either knowingly and intentionally or with reckless disregard for the truth. The Defendant must then show that the false statement was material to the finding of probable cause. b. Once the threshold is met, the Defendant is entitled to a full, evidentiary hearing. The standard of proof is preponderance of the evidence. If this is established, the judge excises the false statement and reviews the probable cause showing. If probable cause exists without the false statement, the warrant is valid and the search is good.

3.

Groh v. Ramirez The fact that the application adequately described the things to be seized does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. The mere fact that the Magistrate issued a warrant does not necessarily establish that he agreed that the scope of the search should be as broad as the affiants request.

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G.

Describe With Particularity: Limits the permissible bounds of the search or seizure. 1. Places: Description must be sufficiently precise that the executing officer can identify it with reasonable effort. Generally, street address/apartment number work. If a car is to be searched, the license number or VIN are adequate. 2. 3. Minor errors or inconsistencies will generally not invalidate a warrant. It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended. The common practice is to identify premises in an urban area by street address, which is sufficient.

H.

Person/Thing to be Seized: The executing officer should have no discretion in what is taken. In practice, courts are not as strict. Less specificity is required for contraband. However, greater specificity is required for: a. Stolen property, b. Items protected by the First Amendment, c. Items that are lawfully possessed, or that are kept in the same location as lawful items. 1. The Fourth Amendment requirement of particularity in the description of the persons or things to be seized is intended to prevent general searches, to prevent the seizure of objects on the mistaken assumption that they fall within the magistrates authorization, and to prevent the issuance of warrants on loose, vague, or doubtful bases of fact. A greater degree of ambiguity will be tolerated when the police have done the best that could be expected under the circumstances, by acquiring all the descriptive facts which reasonably investigation of this type of crime could be expected to uncover and by ensuring that all of those facts were included in the warrant. A less precise description is required of property which is, because of its particular character, contraband.

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3.

I.

Modifications of the Particularity Requirement: 1. Good Faith Exception Exclusion limited to cases where the warrant was so facially defective that no reasonably well trained officer would believe its validity. Objectively reasonable mistakes will not invalidate a search conducted pursuant to a defective warrant. (Garrison) 2. Plain View Doctrine Officers are permitted to seize items not described in the warrant IF:

a. b.

Items are in plain view while the officers are acting within the confines of the originally authorized search, and The incriminating nature of the items is immediately apparent without analysis or determination (finding automatic weapons while searching for narcotics). Seizure of the item is permitted because it would be inefficient to make the officers obtain another warrant while on site. i. Field testing is not considered an additional search. Sending contraband away to a lab is considered a further search.

c.

J.

Neutrality, Particularity, and Good Faith 1. Execution of the Warrant: Time of Execution - Statutes and court rules commonly provide that a search warrant must be executed within a certain time, such as 10 days. Execution within that time is proper provided that the probable cause recited in the affidavit continues until the time of execution, given consideration to the intervening knowledge of the officers and the passage of time. 2. 3. Daytime Only - In many jurisdictions, a search warrant may only be served in the daytime. Notice - Courts have imposed two limitations on notice in executing search warrants: (1) the court should not allow the officers to dispense with advance or contemporaneous notice of the search unless they have made a showing of reasonable necessity for the delay, and (2) the court should nonetheless require the officers to give the appropriate person notice of the search within a reasonably time of the covert entry. Gaining Entry - In order to justify a no-knock entry, the police must have a reasonably suspicion that knocking and announcing their presence under the particular circumstances would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. (Richards v. Wisconsin, 1995) a. In United States v. Banks (2003), concerning notice, the Court held that in the absence of exigent circumstances, the issue is simply whether the occupants failure to admit the police fairly suggested a refusal to let them in, which means the question would be whether it reasonably appeared to the police that an

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occupant has had time to get to the door. This judgment is to be made upon the facts known to the police at the time. 5. Search of Persons on the Premises - A persons mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. (Ybarra v. Illinois, 1979) Detention of Persons on the Premises - In assessing the justification for the detention of an occupant of premises being searched for contraband pursuant to a valid warrant, both the law enforcement interest and the nature of the articulable facts supporting the detention are relevant. Most obvious is the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found. Furthermore, the orderly completing of the search may be facilitated if the occupants of the premises are present. Terry Frisk Some seizures constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity. Intensity and Duration of the Search: Although a search under a search warrant may extend to all parts of the premises described in the warrant, it does not follow that the executing officers may look everywhere within the described premises. They may only look where the items described in the warrant might be concealed. Seizure of Items Not Named in the Search Warrant a. In Horton v. California (1990), the Court stated that if the officer has knowledge approaching certainty that the item will be found, we see no reason why he or she would deliberately omit a particular description of the item to be seized from the application for a search warrant. . .On the other hand, if he or she has a valid warrant to search for one item and merely a suspicion concerning the second, whether or not it amounts to probable cause, we fail to see why that suspicion should immunize the second item from seizure if it is found during a lawful search for the first. Presence of Third Parties a. In Wilson v. Layne (1999), the Court concluded that where the police enter a home under the authority of a warrant to search for stolen property, the presence of third parties for the purpose

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of identifying the stolen property has long been approved by the Court and the common-law tradition. 11. Delivery of the Warrant - Many jurisdictions have statutes or court rules declaring that an officer executing a search warrant must deliver a copy of the warrant at the place searched. The requirement assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.

K.

Execution of the Warrant - Governed by court rules (federal, state, local check jurisdiction). 1. Analysis: a. Time b. Method of entry c. Duration and intensity of search (scope) 2. Time - Generally, warrants must be executed within a specified number of days from issuance (OH Rule 4.1(c): 3 days; FRCrP 41(e)(2)(A)(i): 10 days). a. Searches must begin during daytime (7 a.m. 8 p.m.), unless judicially authorized for good cause. Method of Entry - Knock and Announce Unless otherwise authorized, police must knock on the door, announce their presence and purpose, and request permission to enter. The officers must allow a reasonable time for the occupant to respond. Officers only have to wait long enough for the individual to get to the door. Whats reasonable will depend on the circumstances. Only after refusal (overt of constructive) can the police use force to enter. Knock and announce: a. Reduces destruction of property, b. c. Avoids unexpected entries that could result in a violent reaction, Prevents unnecessary invasion of privacy. i. However, knock and announce may permit certain individuals to destroy evidence.

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Exceptions to Knock and Announce Entry - Police have reason to fear imminent destruction of the evidence. (Mere possibility of destruction is not enough. May require that occupants were in the act of destroying evidence.) a. Where police have reason to believe that announcing their presence will pose a threat to the safety of the officers.

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b. c.

Other exigent circumstances (hot pursuit, emergency, screaming, gunshots, etc.) Hudson v. Michigan (2006) Police executed a warranty for drugs and firearms. After announcing their presence, the officers kicked in the door in three seconds. The Court held that imposing the massive remedy of exclusion for a knock and announce violation would generate a constant flood of alleged failures to observe the rule and concluded that evidence obtained during a knock and announce violation cannot be excluded.

5.

Failure to knock and announce is not necessarily fatal to the search itself. Wilson v. Arkansas, knock and announce is one factor in determining the validity of the search. The totality of the circumstances must be weighed to determine whether the search was reasonable despite the failure to knock and announce. a. However, the Wilson case does not stand for the prospect that police can dispose of the knock and announce requirement. Knock and announce would continue to be examined under a case-by-case basis. (Richards v. Wisconsin No blanket exceptions to knock and announce) b. Police can dispense of knocking and announcing upon application to the court. Certain situations also call for dispensing of knocking and announcing (kidnapping).

6.

Duration and Scope: Police are permitted to search anywhere the specified items are likely to be. The search must stop once specified items have been found. a. The Plain View Doctrine applies, but some states require that the discovery be inadvertent. Ohio abandoned the inadvertence requirement in 1991. b. A warrant that authorizes a seizure of any of a particular item is not necessarily authorization to seize all such items. The evidence cant be needlessly cumulative unless it is contraband.

7.

Persons on the Scene: The warrant may always specify that particular individuals expected to be on the scene are to be searched as long as there exists probable cause. a. Application must establish probable cause to believe they will be there during execution and they will be holding evidence. Authorization to search any person found is likely overbroad.

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8.

Where Warrant is Silent as to Persons on the Scene: A persons proximity to one suspected of criminal activity is not, without more, probable cause to search that person. (Ybarra). Police need articulable facts and circumstances that would warrant the belief that this person is holding contraband or evidence. However, safety pat-down would be permissible if police have a reasonable suspicion that the person is armed and dangerous. Police officers in a home have an incentive in protecting the interests of the residents. In a number of jurisdictions, police may conduct a weapons frisk in a private residence of the occupants when executing a search of a residence without a reasonable suspicion that they are armed and dangerous. Police may detain all occupants while police are executing a search for contraband. (Michigan v. Summers). This is an attempt to stop a resident from fleeing with the evidence. Furthermore, the reasonable detention may facilitate the search. a. Courts have declined to apply this rule when police are acting without a warrant. b. c. d. The rule as stated is limited to searches for contraband. Summers relates to residences. Even an intrusive detention of residences on the premises may be permitted under certain circumstances. (Muehler v. Mena).

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The Winds of Change: The touchstone of the Fourth Amendment is the reasonableness of the search under the totality of the circumstances. Reasonableness can only be determined by balancing the need to search/seize against the level of intrusion that the search or seizure entails. Factors to Consider: Where the police had a warrant; whether they had probable cause; whether they knocked and announced; the existence of any exigent circumstances; the nature of the intrusion; the seriousness of the offense. a. No one factor is dispositive, however there is no per se unreasonableness.

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III.

Exclusionary Remedy - Requires suppression or exclusion of any evidence obtained in violation of the defendants Constitutional rights. The rationale behind the rule is to protect and insure proper police behavior by punishing overzealous investigative practices.

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1. 2. A.

Deter unlawful searches and seizures (unlawful police conduct). Maintain judicial integrity.

Development of the Rule - First applied to federal courts in 1914 in Weeks v. U.S. The first attempt to apply the rule to the states occurred in Wolf v. Colorado (1949). In Wolf, the Court stated that States are subject to the substantive provisions of the Fourth and Fourteenth Amendments. However, exclusion was held not to be a constitutional mandate and that states were free to choose their own remedies. The rule was subsequently applied to states where the police behavior shocks the conscience. (Rochin v. California, 1952). The Rochin case was narrowly interpreted, in that exclusion would be implemented only in instances of police coercion, violence, or brutality. The Rule announced in Weeks was applied to states as a constitutional mandate in 1961 in Mapp v. Ohio. Exclusion is essential to protecting the fundamental right to privacy and judicial integrity. The Court stated that the state solutions were unworkable. Criticisms of the Exclusionary Rule: 1. Exclusion does not deter constitutional violations. 2. 3. 4. Exclusion punishes the wrong persons. (Prosecutors have no power over the police) Rule is a judicial construct, not a constitutional mandate. Rule lacks proportionality (minor police errors and egregious police misconduct have the same remedy exclusion)

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F.

Limitations on the Exclusionary Rule: 1. Remedy can only be enforced by one with standing to assert a Fourth Amendment violation. There must be a legitimate expectation of privacy in the place searched. 2. Wrongfully obtained evidence is only excluded from the states casein-chief. It may be used for rebuttal purposes if the defendant opens the door for impeachment purposes. Exclusion is not required if evidence would have been inevitably discovered. The rule states that if the evidence that was wrongfully

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obtained would have inevitably been discovered in the same discovered, then it does not have to be excluded. 4. The Exclusionary Rule is limited in its application to criminal and quasi-criminal trials and direct appeals. It is NOT available in grand jury proceedings, civil actions, and parole hearings.

G.

Leon Good Faith Exception - Evidence obtained from the defendant pursuant to a search warrant that is subsequently determined to be invalid, may be introduced at the defendants criminal trial if a reasonably well-trained officer would have believed the warrant was valid. (Leon) 1. Punishing the police for a magistrates error does not serve the goal of the exclusionary rule (to deter police misconduct). 2. The reasonableness of the officers belief in validity is determined by examining the totality of the circumstances surrounding acquisition. (Mass. v. Sheppard, 1984). Would a reasonably well trained officer have known that the search was illegal despite the magistrates authorization? If the answer is no, the evidence cannot be excluded. a. An officer cannot execute a forum-shopped warrant and admit the seized evidence. b. c. Where police recklessly or deliberately mislead the magistrate, the good faith exception will not apply. If the warrant is so obviously lacking on its face (failure to particularize), then no reasonable, well trained officer would execute the warrant and the good faith exception will not apply.

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4.

The marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable good faith reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. The officers reliance on the magistrates probablecause determination and on the technical sufficiency of the warrant must be objectively reasonable. Groh v. Ramirez (2004) Because petitioner himself prepared the invalid warrant, he may not argue that he reasonably relied on the Magistrates assurance that the warrant contained an adequate description of the things to be seized and was therefore valid.

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H.

Leon and Warrantless Searches: Objective good faith may exist where officers have relied on: 1. Statutes

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Computer Entry Judicial Decision a. Aside from these situations, Leon does not extend to a nonwarrant situation.

I.

Other Remedies: 1. Constitutional Tort Civil suit under 42 U.S.C. 1983. These suits are difficult to win because police are entitled to a level of immunity from suit for their on-the-job conduct. Courts will look to the conducts objective reasonableness, and generally speaking, if it is an issue of the officers discretion, the Court will protect the officers ability to exercise discretion. 2. One does not have the privilege to use force (self-help) to withstand a perceived unlawful arrest, even if the officer is wrong. The appropriate remedy is exclusion of illegally seized evidence or a 1983 action. The exclusionary rule does not apply to the unlawful arrest itself. It only applies to the admission of evidence that was discovered in an unlawful search and seizure. Contingent Exclusionary Remedy Professor Dripps states that courts should begin to experiment with suppression orders that are contingent on the failure of the police department to pay damages set by the court in an amount equal to the expected governmental gain from the violation.

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IV.

Protected Areas of Interest A. Is the Activity a Search? 1. Early 20th Century - The essence of a Fourth Amendment violation was the invasion of the right to personal security, liberty, and private property. To constitute a search, the conduct must include unlawful physical intrusion (person, house, papers, and effects). Olmstead Physical Intrusion/Trespass Doctrine. Overturned by Katz. B. Katz v. United States (1967) *Know Case by Name* - What a person knowingly exposes to the public is NOT entitled to the protection of the Fourth Amendment, but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. 1. Harlans Concurrence The Fourth Amendment protects a citizens reasonable expectation of privacy. (New test after Katz overruled Olmstead) 2. The Fourth Amendment applies only where:

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a. b.

The citizen has manifested an actual, subjective expectation of privacy, and The expectation of privacy is one that society is willing to accept as objectively reasonable. The police activity will not constitute a search if either prong is missing.

3.

Katz was convicted of transmitting wagering information by telephone from Los Angeles to Miami and Boston in violation of a federal statute. At trial, the Government was permitted over the petitioners objection to introduce evidence of the petitioners end of telephone conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. a. The Fourth Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. b. The Court notes that the Fourth Amendment protects people, not places, and that what Katz seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. The Court states that Katz did not shed his right to exclude uninvited ears to his conversation simply because he made his calls from a place where he might be seen.

C.

Factor: Setting Intruded Upon: 1. Home = Highest Protection 2. 3. Open Fields = No Protection (Any unoccupied or undeveloped area that falls outside the curtilage of the home) Curtilage Moderate Protection (The area immediately surrounding and in close proximity to the home, which extends the intimate activity associated with the sanctity of the home and the privacies of life)

D.

Curtilage Factors - The common law distinguished curtilage from open fields. Only the curtilage warrants the Fourth Amendment protections that attach to the home. At common law, the curtilage is the area to which extends the intimate activity associated with the sanctity of a mans home and the privacies of life, and therefore has been considered part of the home itself for Fourth Amendment purposes. The courts consider the proximity of the area considered to be curtilage to the home, whether the area is included within an enclosure, the nature and uses of the area, and the steps taken to protect the area from observation. 1. Proximity to the home

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2. 3. 4. E. F.

Included in enclosures surrounding the home Steps taken to protect privacy (Fence? What kind of fence? Gate?) The use to which the area is put

Moderate Protection for Curtilage: Police may observe, but may not enter. Oliver v. United States Open fields are usually accessible to the public and police, and putting up a no trespassing sign is not an effective way to keep out trespassers. Furthermore, police can observe the property by sight and aerial oversight. Therefore, because it is observable by airspace, no trespassing signs are generally not enough to create a legitimate expectation of privacy. Other Settings: 1. Buildings/Structure in Open Fields A search occurs if the police enter a structure on an open field, but looking is not a search. a. What is the nature of a search? Merely looking or physical intrusion? 2. Business/Commercial Premises Protected by the Fourth Amendment. a. See v. City of Seattle (1967): The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonably official entries upon his private commercial property. Public Places: a. Schools Students have a reasonable but diminished expectation of privacy at school. The Fourth Amendment does apply in a school setting, but there is generally no expectation in privacy in school property (lockers). If an individual has been suspected of wrongdoing, administrators will have to demonstrate the reasonableness of the scope of the search in the students person. The scope if based on the students age and the nature of the infraction. Metal detector scans are permissible. b. Detention Facilities The Fourth Amendment has no applicability to a prison cell. (Hudson v. Palmer, 1984). Generally speaking, the reason for the search is the deciding factor and the search must be based on institutional security and internal order. The search cannot be based on the prosecutors desire to obtain evidence.

G.

3.

4.

Vehicles: It is not a search for the police to take a paint sample from a car parked in a public lot. There is also no reasonable expectation of

19

privacy in the VIN. However, police cannot reach inside the car to remove an obstruction to the VIN. 5. Restrooms/Dressing Rooms: Mode of governmental observation is relevant in determining whether there exists a reasonable expectation of privacy. (Setting intruded upon, Manner of intrusion). a. Hidden intrusions will likely trigger the Fourth Amendment as it will not trigger the subjective expectation of privacy. Garbage In California v. Greenwood (1988), the respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. The Court stated that the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. The Court concluded that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.

6.

H. I. J.

Factor: Nature of Intrusion Physical entry or observation? Factor: Manner of Observation Generally overt observation is not a search. 1. Covert or surreptitious = search. Factor: Vantage Point Where police observations are made from a location to which the public has lawful access (either from air or ground), the Fourth Amendment is not implicated. 1. Where, however, the police must enter the premises or curtilage to make their observation, a search has taken place triggering the amendments protections. The fact that navigable airspace exists above property can destroy the legitimate expectation of privacy. (Ciraolo) 1. Aerial Surveillance: Surveillance by overflight of a protected area is not a search within the meaning of the Fourth Amendment if the surveillance (1) occurs from public navigable airspace and it (2) is conducted in a physically nonintrusive manner. 2. Flights that are outside the navigable airspace will constitute a search within the meaning of the Fourth Amendment.

K.

L.

Factor: Sensory Enhancement It is not a search for an officer, lawfully present at a certain place (vantage point) to detect something by one of his natural senses. (Cant give x-ray vision or heat vision, etc.) 1. Where the device employed merely facilitates a surveillance that would otherwise be possible to conduct without the enhancement, the Fourth Amendment is not implicated. (Binoculars, flashlight, amplifiers). The physical setting in which the device is employed place a key role in

20

determining whether the Fourth Amendment will apply. Observations into the home using sensory enhancement are more likely to implicate the Fourth Amendment then are observations into the curtilage. 2. 3. Is the device used from a lawful vantage point? Is it readily available to the public? What details are shown? (See Dow Chemical) Kyllo: Obtaining by sense-enhancement technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search within the meaning of the Fourth Amendment. Summary: Sensory enhancement devices must be used from a lawful vantage point, readily available to public, and observation must be able to be made without enhancement (physical intrusion?).

4.

M.

Common Forms of Enhancement and Technological Information Gathering: 1. Dog Sniffing - As long as a dog is sniffing items exposed to the public, there has been no Fourth Amendment violation. There is no objectively reasonable expectation of privacy to those things exposed to the public. (Place A dog sniff is not a search because it does not require the opening of the luggage). The dog can also sniff a car (Caballes). If the dog has searched an apartment building, car, luggage, etc. is legal. However, a dog sniff on a person gives a strong argument that it is more intrusive than the sniff of an inanimate object and may trigger the Fourth Amendment. 2. It is NOT a search for an officer, lawfully present at a certain place (vantage point) to detect something by one of his natural senses. Where the device employed merely facilitates a surveillance that would otherwise be possible to conduct without the enhancement, the Fourth is not implicated. Other Forms: a. Gas Chromatography: Reliability issues in the evidence. b. Magnetic Fields c. Pen Registers/Caller i.d./Cell Phones d. Tracking Devices/GPS (Does the tracking device cross a threshold giving police access to an area they otherwise would not have access) e. Chemical Field Tests (On the spot tests to determine if a substance is contraband is not a search under the plain view doctrine, but a further test, sent away to a lab to gather evidence of contraband IS a search. A field sobriety test is categorized under an implied consent law as part of accepting your drivers license.)

3.

21

f. g. h.

i.

j.

Passive Alcohol Sensors Enclosed Space E-Mail Tracking: (Warshak v. U.S.; 6th Cir. Individuals maintain a reasonable expectation of privacy in e-mails that are stored with or sent through a commercial ISP. The content of email is something that the use seeks to preserve as private and therefore may be constitutionally protected.) Pagers/Text Messages: While the content may be protected, the fact that messages are sent are not. The police can find out how many texts were sent. Once transmitted, the sender doesnt control what happens to the message. Should the recipient turn the message over to the police, there is no constitutional complaint. Its the interception of the messages that are at issue. Physical Characteristics: While there is an expectation of privacy in an individuals person, the physical characteristics of a person (sound of voice, face) are afforded little to no protection. (There is no infringement for fingerprint samples, voice exemplars, and handwriting samples.) Samples for blood type and DNA will require a warrant because of the physical penetration.

N.

False Friends/Misplaced Loyalty: Generally, a person has no legitimate expectation of privacy in information conveyed to a third person, even in an ostensibly private conversation. You essentially assume the risk that this person will reveal the information to the police, whether at police request or upon their own initiative. 1. You trust someone else with your secrets at your own risk. 2. What if the police plants someone as an acquaintance? It is NOT a search when a visibly present police agent masquerading as the suspects friend listens to and reports to police statements made by the suspect to the agent or to another person in the agents presence. (Hoffa) a. An invitation negates any breach of privacy claims. Even if the person is wearing a wire or carries a hidden tape recorder, simultaneously transmitting or recording the statements will not trigger the Fourth Amendment. Misplaced reliance on others is not an expectation entitled to constitutional protection.

3.

O.

Special Privilege Claims Work Product: Police can search any area if they have probable cause to believe that fruits of a crime or contraband can be found on the premises. The fact that the property owner is not suspected of criminal activity is not an issue.

22

1.

Press: Stanford Daily Valid warrants can be issued to search any property where there is probable cause to believe that fruits of a crime, instrumentalities, or contraband may be found. We interpose a judicial officer to determine whether there is probable cause for the police to conduct the search. The Court stated that a subpoena duces tecum would undermine legitimate police interests by giving guilty parties the opportunity to destroy evidence due to a time delay. There is no special Fourth Amendment protection by virtue of the First Amendment, other than describing the items to be seized with exceptional precision and particularity. The Stanford decision lead Congress to pass the Privacy Protection Act of 1980, making it unlawful for police to search or seize work product from the press UNLESS: (1) the person in possession is the suspect, (2) immediate seizure is necessary to prevent death or serious bodily injury or destruction of evidence, (3) the office to which the materials relate involves national security or child pornography, or (4) a duces tecum has been issued but not complied with. The remedy under the act is civil damages plus attorneys fees but exclusion is not available. Therefore, the Privacy Act does not create a legitimate expectation of privacy, but does place perimeters on police conduct. There is also a good faith defense to the Act. Attorneys: Minnesota prefers a duces tecum. Check jurisdiction. In Ohio, duces tecum is required for work product, but a regular search warrant for anything else. Congress: No special protection from search warrant under Speech and Debate Clause. California Privacy Protection Act: Special Master is appointed to oversee entire search.

2.

3.

4. 5. P.

Analysis: To determine whether any particular police activity constitutes a search for purposes of the Fourth Amendment, examine: 1. The Setting Intruded Upon Home? Curtilage? Field? 2. 3. 4. 5. The Nature of the Intrusion Entry of Observation? The Manner of the Observation Covert of Overt? Vantage Point from which the Intrusion was Made Any Sensory Enhancement Used Permissible so long as the item used is readily available to the public and does not permit the police to make an observation they otherwise would not have been able to make.

23

Could they have made the same observation from the sidewalk? Extra sense (thermovision)? V. Warrantless Arrests A. Arrest - Taken into custody by lawful authority, for purposes of answering criminal charges. An arrest entails: 1. Seizure of the person 2. Freedom of movement is significantly curtailed. B. Justification: Probable cause to believe (that quantum of facts and circumstances that would lead a reasonably person to conclude) that the person taken into custody has committed a crime. 1. An arrest without probable cause is per se unreasonable. 2. C. The initial determination is generally made by police on the scene, subject to judicial review.

Probable Cause Hearing: To be held promptly after arrest, generally within 48 hours (depending on the circumstances). 1. ORC 2935.04: An arrested person shall be taken before a judicial officer without unnecessary delay. 2. The probable cause hearing is intended to be informal and nonadversarial.

D.

Requirements of a Valid Arrest Warrant: 1. Signed by a neutral and detached magistrate, 2. Based upon probable cause a. An adequate showing will require specific facts and circumstances that connect the suspect to the criminal activity. Identify the arrestee by name or with a specific enough description that officers may locate with reasonable effort.

3. E.

Arrest Warrant Necessary?: Depends on TWO factors 1. Seriousness of the offense, AND 2. Place where the arrest is to occur. A warrant is generally required for a misdemeanor UNLESS the offense was committed in the officers presence. Felony Arrests: 1. If arrest occurs in a public place, no warrant is required.

F. G.

24

2. 3.

If the arrest occurs in the suspects own home, an arrest warrant is required, absent consent or exigent circumstances. If the arrest occurs in the home of a third person, both an arrest warrant AND a search warrant are required, absent consent or exigent circumstances.

H.

Public Places: Street, public park, privately owned commercial building OPEN to the public, or any other public site. 1. Outside the home. 2. Curtilage. The use of Deadly Force will NOT render a warrantless arrest unreasonable. Arrest at the Home: 1. Outside the Home No warrant required 2. 3. On the Threshold No warrant required (on the doorway) Inside the Home Warrant required, absent consent or exigent circumstances.

I. J.

K.

Exigent Circumstances: Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts 1. Hot pursuit 2. Officers have reasonably belief that without immediate entry: a. Suspect will escape, b. Evidence will (not might) be destroyed, c. Suspect will pose a threat to police or others.

L.

Entry Into a 3rd Persons Home: Need arrest warrant AND search warrant based on probable cause to believe the arrestee will be at the location to be searched at the time of execution. Unanswered Questions: 1. What if the arrestee shares the residence with others? 2. How long does guest status last? 3. Can a guest have a legitimate expectation of privacy in someone elses home? Case Law

M.

N.

25

1. 2.

Watson v. U.S. (1976) Warrantless arrest in public place does not violate the Fourth Amendment. Payton v. New York (1980) It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable. Yet it is also well-settled that objects such as weapons or contraband found in a public place may be seized by the police without a warrant. The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. a. Freedom from intrusion in the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment. b. The Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspects home in order to make a routine felony arrest.

VI.

Searches Incident to Arrest A. Rule - Police may, incident to a lawful arrest, conduct a warrantless search of the person arrested, and the area within the suspects immediate control. (Chimel) 1. In order to: a. Remove weapons that could be used to resist arrest. b. Discover evidence the suspect could conceal or destroy. i. Goal of officer safety B. C. The area within the suspects immediate control is known as the suspects grabbable space. Prerequisites: 1. Applies to full-scale, custodial arrests. (Knowles No incidental search to the issuance of a citation; the need to discover and preserve evidence did not exist, threat to officer safety is significantly less) a. Virginia v. Moore (2008) Traditional standards of reasonableness 2. Underlying arrest must be based upon probable cause. (Leon good faith exception applies). a. Probable cause to arrest is what triggers the right to search. Generally, arrest precedes the search.

3. D.

Limitations:

26

1. 2.

Search must be substantially contemporaneous with the arrest. The search must occur at or near the time of arrest. Scope is limited to: a. The person of the arrestee b. Any containers immediately associated with the person (backpack, purse, etc.) i. As long as it is large enough to contain a weapon. ii. Penetration of a persons body surface is not allowed. The grabbable space around the arrestee. i. An arrest will not justify a search of an entire house (Chimel).

c.

E.

Grabbale Space The immediate vicinity of the arrest. 1. Factors: a. Is the suspect handcuffed? Front or back? b. Size of room c. Whether any containers are open or shut. Locked or unlocked? d. Ratio of officers to suspects. The more officers that are on the premises, the smaller the grabbable space. Arrests in Private Places: When an arrest is made in a residence, officers may make a protective sweep of the premises in the interest of officer safety. 1. Officers may search adjacent closets and other spaces from which an attack could be launched. 2. 3. Officers may search the entire premises ONLY IF they have a reasonable belief that persons are present who may pose a threat. Sweep must end by the time the arrest is complete and the suspect is removed.

F.

G.

Police may seize without a warrant, any item they find during a search incident to an arrest, provided the officer has probable cause to believe it is evidence of a crime. It need not be the crime for which the suspect was arrested and the plain view doctrine applies. Police are permitted to search anywhere where what they are searching for may be. (Ex: person not going to be in a cabinet). 1. Degree of urgency 2. Amount of time necessary to get a warrant 3. The ready destructibility of the evidence Emergency Assistance: Police are permitted to enter a home in order to render emergency assistance or to protect someone from imminent injury.

H.

27

I.

Containers in Grabbale Space Police may, without a warrant, search any containers found within the grabbable space during a search incident to arrest. 1. No probable cause or reasonable suspicion that the suspect is armed and dangerous is required. The authority to search flows directly from the arrest. Whren v. U.S. (1996) An officers subjective motivation for stopping a citizen is constitutionally irrelevant so long as the officer has an objectively reasonable basis for the intrusion. 1. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. 2. 3. Thus, violating traffic laws is an objectively reasonable basis to stop a driver even when the real purpose is to conduct a search of the vehicle. Indicative of the difficultly of proving pretext?

J.

K.

Pretextual Stops: 1. Generally occur when police stop motorists suspected of being drug carriers. Courier Signals: 1. Driving a van, RV, late model car, or SUV 2. Temporary or out of state plates 3. Radar detector or visible air fresheners 4. Driving with an open road map 5. Fast food wrappers 6. Failing to watch a passing police car Jailhouse Searches: May be justified as an inventory search or a delayed search incident to arrest. Full-scale search may be performed of any person booked into jail. The searches are justified to make sure that no weapons or contraband are being brought into the jail and to preserve evidence. The inventory search is also justified in order to protect the inmates property and to protect the jail population. This also protects the police from accusations of theft. Case Law 1. U.S. v. Robinson (1973) It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. a. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or

L.

M.

N.

28

evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonably intrusion under the Fourth Amendment. That intrusion being lawful, a search incident to the arrest requires no additional justification. b. In the case of a lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under that Amendment.

2.

Chimel v. California (1969) There is ample justification for a search of the arrestees person and the area within his immediate control, construing that phrase to mean from within which he might gain possession of a weapon or destructible evidence. There is no comparable justification, however, for routinely searching rooms other than that in which an arrest occurs.

VII.

Vehicle Searches A. The Citizens Interest: 1. Privacy interests in the contents of the car. 2. Unimpeded travel. 3. Possessory interest in the car. B. Auto Exception Rule An officer may conduct a warrantless search of an automobile that he has probable cause to believe contains evidence or contraband IF: 1. He stops the car while it is being used on the highway, OR 2. The car is readily capable of use on the highway, but is discovered in a stationary position in a place not regularly used for residential purposes.

C. D.

An unoccupied vehicle parked in a driveway may not be searched without a warrant. Police may also conduct a warrantless search of an auto that has been removed from the scene or immobilized and secured, so long as the search would have been valid had it been conducted at the place where it was first stopped or discovered. Rationale: 1. Ready Mobility 2. Diminished Expectation of Privacy in Autos (Carney)

E.

29

F.

Scope of an Auto Search The right to search the car pursuant to an auto exception extends to the entire vehicle, so long as the object sought could be found in the area searched (Acevdeo). 1. Generally, law enforcement officers can search the trunk, engine compartment, glove compartment and console, interior of upholstered seats, etc. Containers 1. Basic Container Doctrine All containers are entitled to Fourth Amendment protection EXCEPT those whose contents are in plain view (worthy v. unworthy). 2. Unworthy Open, transparent, or its distinctive configuration proclaims its contents (matter of police training).

G.

H.

Containers in Vehicles (Ross/Acevedo) Police may search an automobile AND ANY CONTAINERS within it when they have probable cause to believe contraband or evidence of a crime is present anywhere inside. 1. Police may search only where the item sought may be hidden. a. Vehicle exception trumps container doctrine. 2. Acevedo Police, in a search extending only to a container within an automobile, may search the container without a warrant where they have probable cause to believe that it holds contraband or evidence.

I.

Search Incident to Arrest in an Automobile: A police officer, contemporaneous to the arrest of an occupant of an automobile, may search the passenger compartment of the vehicle (inside of the car) and all containers found incident therein, as an incident of the arrest. (Belton Interior of car is considered the grabbable space). 1. Rationale - Protect the officer; preserve evidence. Scope of Search Incident to Arrest in an Automobile: 1. Applies only to occupants of the vehicle a. Current or recent occupants (Thornton, includes passengers) 2. 3. Physical proximity to the vehicle is irrelevant Police can order passengers to get out of the automobile. a. Search of passengers requires probable cause to believe they are in possession of evidence. b. Search of containers belonging to passengers is permissible without an individualized probable cause for each one. A passengers personal belongingsare in the car and the officer

J.

30

has probable cause to search for contraband in the car. (Wyoming v. Houghton, 1999) i. A passenger-property exception would provide a way for criminals to hide contraband. 4. K. Police can search any containers, regardless of ownership.

Auto Inventory Search: Rule Police may, without a warrant, conduct an inventory search of an arrestees impounded vehicle. This can be done either at the scene of arrest or later at impound. Without the right to impound, police may not conduct an inventory search. 1. Bertine Reasonable police investigation relating to inventory procedures administered in good faith satisfies the Fourth Amendment. Inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment. 2. 3. Rationale Protect arrestees property while in police custody; insure against claims of loss, theft, or vandalism Scope a. The inventory must be conducted pursuant to standard police procedures. b. c. Applies only if vehicle is actually impounded. Search must be conducted within a reasonable time of impound.

VIII.

Stop and Frisk - Police need only reasonable suspicion to conduct. A. Common Practice: stop and frisk 1. Brief detention and questioning 2. Officer may conduct a brief pat-down search for weapons B. Rule: When an officer, by means of physical force or show of authority, stops and detains an individual, the officer need not have probable cause, but must nonetheless be able to articulate specific facts that give rise to the reasonable suspicion that criminal activity may be afoot. 1. Because the additional step of patting down or frisking the suspect is a further intrusion on individual liberty and security, additional justification is required: reasonable suspicion that the suspect may be armed and dangerous. Summary of Rule: To stop and question: reasonable suspicion that criminal activity is afoot. To stop and frisk: reasonable suspicion that the suspect is armed and dangerous.

C.

31

D.

The purpose of a Terry stop is not for the purpose of uncovering evidence. It is limited to determine whether the suspect is armed and dangerous. 1. Terry There must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer where he has reason to believe that he is dealing with an armed and dangerous individual regardless of whether he has probable cause to arrest the individual for a crime. a. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would clearly be unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. The Stop: A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. This is an objective standard. 1. The question is always whether a reasonable person in the defendants place would have believed that his freedom of movement was restricted. 2. Factors to Examine: a. Threatening presence of several officers. b. c. d. e. Display of a weapon by an officer. Rough, physical touching of the person. Use of language or tone of voice that indicates that compliance with the officers request might be compelled. Without these additional pressures, or other abnormally intimidating circumstances, police questioning is unlikely to be considered a seizure under the Fourth Amendment. Other Factors: Path blocked? Paperwork returned?

E.

f. F.

A refusal to cooperate or answer questions, without more, does NOT provide either probable cause or reasonable suspicion to search or seize. 1. A request for identification or questions relating to identity is not a seizure. 2. State statutes may require providing identification when demanded.

32

G.

Hodari In the context of a pursuit, the seizure of the person occurs only where there is either: 1. An actual application of force on the subject, OR 2. The subject submits to police authority.

H.

Royer An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. 1. i.e., to confirm or dispel suspicion. 2. Government bears the burden of proving that the least intrusive means available were used.

I.

Duration of Stop: Automobiles If the officer who made the stop has checked out the drivers license and registration and has written up the citation or warning, then any extension of the stop thereafter for the purpose of questioning about drugs or seeking consent to search for drugs is generally illegal. 1. Florida v. Bostick A seizure does not occur simply because an officer approaches an individual and asks a few questions. So long as a reasonable person would feel free to disregard the police, the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny. 2. Ideally, the officers investigative activity is limited to the offense for which the stop was made, unless reasonable suspicion develops as to other offenses. a. As a practical matter, the courts often deem questioning on unrelated matters unobjectionable, so long as it is accomplished within the permissible time span of the traffic stop.

J.

Degree of Intrusion Police are required to use the least intrusive means reasonably available to verify or dispel the officers suspicion in a short amount of time. The government bears this burden. Summary: If police merely question or communicate with an individual, without detaining the person against their will, the Fourth Amendment is not implicated and no justification need be shown. 1. At the point at which a reasonable person would believe that he is no longer free to leave, or otherwise terminate the encounter with police and is being detained, the Fourth Amendment is triggered, and officers must have reasonable suspicion that criminal activity is afoot. 2. To support the additional intrusion of a frisk for weapons, the officer must also have reasonable suspicion that the suspect is armed and dangerous.

K.

33

3. L.

If the nature and duration of the detention rises to the level of a full scale arrest or its equivalent, probable cause must be shown.

Reasonable Suspicion Falls below probable cause and above an unparticularized hunch. Like probable cause, it is a fluid concept, and must be more than a bare suspicion. 1. Definition: The detaining officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. a. May be based on hearsay (information received from an informant), but that information need not carry as much indicia of reliability as required in probable cause analysis. Airport Drug Couriers Profile: 1. Pay cash for the airline ticket, particularly using small bills for a large fair. 2. 3. 4. 5. 6. Travel under an assumed name. Dont check luggage. Travel to or from a narcotics source city (such as Miami). Stay only for a brief time in the destination city. Appear nervous during the trip. a. While no one of these factors alone is proof of illegal conduct, the combination of them may amount to an objectively reasonable suspicion that criminal activity is afoot.

M.

N.

Reasonable Suspicion can also be based on information obtained from another police department (such as all points bulletin and wanted posters). 1. Police in one jurisdiction can detain someone whos wanted in another PROVIDED: a. The department issuing the flyer had the necessary justification to order the person to be detained, b. The actual detention is not significantly more intrusive than would have been allowed in the issuing jurisdiction.

O.

Scope of Search: Police are required to use the least intrusive means available to confirm or dispel officers suspicion within a reasonable time. 1. A protection search must be no more invasive than is necessary to ensure the officers safety.

34

2.

Officers may pat down the outside of the suspects clothing, and if he feels something he believes to be a weapon, he can reach under the clothing to remove it. a. If the object is a container, the officer may further feel or manipulate it to determine if it is a weapon. If the officers suspicion is not dispelled by further manipulation, he can seize the container and get a warrant to open it.

O.

Terry and the Plain View Doctrine: If during the course of a Terry frisk the officer can identify an object as contraband by its feel or smell, it can be seized. 1. If the officer can decide that an object IS contraband before he decides that it is NOT a weapon, the item may be seized under the plain view doctrine. Scope of Search: Automobiles Police may conduct a weapons search of the passenger compartment of a car stopped during a lawful investigation of the driver. 1. Should be based on a reasonable suspicion that the driver is armed and dangerous, BUT a. Courts place the interest in officer safety ahead of the minimal intrusion of a visual scan for weapons. Suspicionless Seizures: Courts have upheld driving checkpoints, holding that they require no individualized suspicion of wrongdoing, provided they are conducted under certain conditions 1. States must develop procedures that do not involve the unfettered use of officer discretion. 2. To determine the reasonableness of suspicionless seizures, there must be a balance between: a. Gravity of the public interest, b. c. d. Degree to which the seizure advances that interest, Degree of intrusion into individual liberty. Special Needs may also justify minimally intrusive searches in other settings (i.e., schools, probationers/parolees, employee drug testing).

P.

Q.

R.

Investigative Detention Other Places/Purposes: 1. On the scene fingerprints are permitted (Hayes) 2. Voice exemplar before a grand jury is permitted (Dionisio)

35

IX.

Consent Searches A. Legal Effect If valid consent has been given, the police may proceed unencumbered by any of the requirements of that Amendment. 1. They may search without a warrant or justification, and the scope of that search is proscribed only by whatever limits the consenting individual may outline 2. B. If any officer discovers evidence during a warrantless consent search, she may seize it without a warrant pursuant to the plain view doctrine.

Voluntariness Consent need only be voluntary to be valid. 1. NOT the produce of official threats, pressure, intimidation, harassment, or duress or coercion, either express of implied. 2. Voluntariness is a question of fact.

C.

Factors to Examine Voluntariness: 1. Tactics used by police (weapons drawn, repeated requests to search after refusal) 2. Deceptive tactics (would the deception have induced a reasonable person to give consent they wouldnt otherwise have given?) a. Unfair deception The particular vulnerabilities of the subject (age, intelligence, emotional state) a. Absent some coercive tactic by police, consent will be deemed voluntary, regardless of the mental or emotional health of the consenter. Knowledge of the right to refuse consent. (Not fatal to search, but a factor to consider) a. Objective Standard: - Would a reasonable person in the same situation have felt free to decline consent (same standard as Bostick).

3.

4.

D.

Third Party Consent: Consent to search may be given by the person whose property is searched OR by a third party who shares common authority over and access to the property. 1. Common Authority is the mutual use of property by persons generally having joining access or control for most purposes. 2. However, mere legal authority is NOT enough. There must be mutual use of the property for most purposes. a. A landlord cannot consent to the search of a tenants apartment. Neither can a hotel clerk consent to the search of a hotel room.

36

E.

Actual v. Apparent Authority: 1. Actual Authority Mutual use and common authority. 1. Apparent Authority Facts and circumstances would lead a reasonable person (officer) to believe that the consenter had actual consent. a. A search based on a reasonable mistake of fact concerning the authority of a third person to give consent is a reasonable search under the Fourth Amendment.

F.

Scope of Consent Search: Determined by the consenter if no limits, police may search anywhere including containers, where the item is likely to be. a. Issue What would a reasonable person have understood the scope of the search to be from the exchange between the officer and the consenter. Who May Consent? 1. Anyone with authority (actual/apparent), but a third party cannot consent to a search of areas or objects that they do not have mutual control. 2. Employer/Employee Determined by the employees expectation of privacy in the area/object. a. Private office or shared workspace? Spouses - Courts presume spouses have actual authority to consent to search ALL of the martial property. Children Generally, children may NOT consent to a full search of the parents home. a. Police may enter the home with a childs permission and seize any contraband or evidence in plain view. Parents Generally MAY consent to a search of the childs room, depending on the childs expectation of privacy. The older the child, the greater the expectation of privacy. a. Who cleans the room? Is the room shared?

G.

3. 4.

5.

H.

Motive for Consent: Ulterior motives for granting consent are, for the most part, constitutionally irrelevant. An antagonistic relationship between the third-party consenter and the subject of a search is only one factor weighing against valid consent. Illinois v. Rodriguez The Fourth Amendment generally prohibits the warrantless entry of a persons home, whether to make an arrest or to search for specific objects. The prohibition does not apply to situations in which

I.

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voluntary consent has been obtained, either from the individual whose property is searched, or from a third party who possesses a common authority over the premises. 1. Common authority rests on mutual use of the property by persons generally having joint access or control for most purposes. X. Miranda and Interrogation A. Interrogation: The Fifth Amendment Privilege against compulsory selfincrimination. B. Voluntariness: The earlier court approach was to focus on the voluntariness of any statement obtained from the suspect. 1. 1936: Fundamental Fairness requires that a statement obtained by police that was NOT the product of a voluntary choice by the suspect not be admitted at trial. The voluntariness of the confession is determined under the totality of the circumstances. 1. Issue: Is the confession the product of an essentially free and unconstrained choice by its maker. Factors: 1. Threatened or actual use of violence, 2. Psychological pressures, a. Length of the interrogation, b. Physical conditions, c. Whether the suspect was deprived of food, clothing, or sleep, d. Personal characteristics of the suspect (psychological makeup, times interrogated by police, age) e. Promises of leniency may also render the confession involuntary. f. Police deception,

C.

D.

E. F.

Although ultimately eclipsed by Miranda and Massiah, the voluntariness of the statement is still the touchstone for Fifth Amendment protection. The Miranda Rule: The prosecution may not use statements, whether exculpatory or inculpatory, that have been obtained as a result of custodial interrogation unless the state demonstrates the use of procedural safeguards effective to secure the privilege against self-crimination. 1. Miranda v. Arizona (1968) - Miranda was arrested at his home and taken into custody to a Phoenix police station. He was identified by a complaining witness and police took him to an interrogation room where he was questioned by two police officers for several hours.

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Miranda was not advised that he had a right to have an attorney present, and the officers procured a written confession from Miranda. a. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against selfincrimination. b. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required: (1) prior to any questioning the person must be warned that he has a right to remain silent, (2) that any statement he does make may be used as evidence against him, (3) and that he has a right to the presence of an attorney, and (4) if he cannot afford one an attorney will be appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. If he indicated in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning.

G.

Custodial Interrogation: Questioning initiated by law enforcement officers after a person has been taken into custody, or otherwise deprived of his freedom of action in any significant way. Miranda warnings do not need to be given until the officers are engaged in custodial interrogation. 1. Warnings must be given prior to any police interrogation of a suspect held in custody. The warnings must be given in clear and unequivocal terms. Warnings: 1. The right to remain silent, 2. 3. 4. Choose to speak, and anything can be used against you at trial, Right to consult and have an attorney prior to questioning, and to have that attorney present during questioning. Attorney appointed at state expense if the subject cannot afford one.

H.

I.

Miranda stated that Congress and the States are free to develop their own procedural safeguards for protecting a suspects Fifth Amendment rights during custodial interrogation, BUT they must be as fully effective as those suggested, or police MUST give the specific warnings outlined in the case.

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J.

Legal Effect: If the suspect decides to exercise his rights, the interrogation must cease until an attorney is consulted. The suspect has the right to cut off questioning. 1. If police do obtain a statement from a suspect in custody, the state must meet the heavy burden of demonstrating that the suspect knowingly and intelligently waived the privilege. Any statement obtained in violation of these requirements may not be admitted into evidence. Rationale: Even in the absence of any physical or psychological coercion, custodial interrogation is so intimidating as to be per se compulsive. 1. While confessions can play an important role in convictions, the need for any particular confession in any particular prosecution is slight. Reaction and Retrenchment: 1. Michigan v. Tucker Miranda rules are merely procedural safeguards designed to prevent a violation of the Fifth Amendment. A failure to provide warnings is not itself a violation of the Constitution. 2. 3. 4. Title II, Omnibus Crime Control Act: Standard for admissibility is voluntariness. Miranda warnings are only one factor in determination. Dickerson v. U.S. Miranda upheld as a constitutional mandate and not just a prophylactic rule (Scalia, Thomas dissent). New York v. Quarles Recognized a public safety exception to Miranda. 1. Rescue doctrine? Hostages? Statements have been admitted in state courts. Thus, while Miranda has not been directly overruled, the Court has found many places where the rules can be narrowed.

K.

L.

5. M.

The Meaning of Miranda 1. In Custody Formal arrest, or restraint on freedom of movement to the degree associated with a formal arrest. 2. Would a reasonable person believe himself to be in custody or deprived of his freedom of movement in a significant way. a. Factors: i. Location ii. Duration iii. Persons present Miranda protections are triggered by the interrogation of a suspect: a. Questioning initiated by law enforcement officers. Does NOT include:

3.

40

i. ii. iii. 4.

Volunteered statements, Limited follow up to volunteered statements, Routine background and administrative questioning.

The functional equivalent of interrogation Any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response. Invoking Miranda If the individual under interrogation indicates in any manner, at any time prior or during questioning, that he wishes to remain silent, the interrogation must cease. a. Police may attempt to interrogate again, after the initial request has been scrupulously honored. i. Factors: (1) Whether the interrogation was immediately stopped, (2) (3) (4) (5) The officers zeal in attempting to pursue questioning after the rights were invoked, The amount of time elapsed between interrogations. The subject matter and scope of the second interrogation. Whether the suspect was provided a fresh set of Miranda warnings before the second interrogation. (i) Not one factor is determinative.

5.

6.

If the individual states that he wants the assistance of counsel, the interrogation must cease until counsel has been made available, and is present, UNLESS the suspect himself initiates further communication with the police. a. Any comment or inquiry that can fairly be said to represent a desire or willingness to discuss the investigation.

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