Criminal Procedure Outline

Searches & Seizures

1. Scope of 4^th Amendment Protection

1. Background è 4A imposes investigative limitations on the police

• “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 person or things to be seized.”

• “People” – does NOT apply to a non-resident alien located in a foreign country [Verdugo-Urquidez]

• No line b/w people & objects – they are afforded the same protections

• Reasonableness clause – Searches & seizures are presumed unreasonable UNLESS carried out pursuant to a warrant

• Probable Cause – minimum showing necessary for warrant application

• State Action – Individual is protected from gov’t action

• Remedies – possibility of exclusionary rule

Analysis è

1. Has there been a “search” within the operation of the 4^th Amendment ?

2. If so, was the search “reasonable” ?

0. Was a legally obtained, valid warrant issued ?

1. If not, was a warrantless search permissible ?

2. If a search was proper either w/or w/o a warrant, did the search exceed its permissible scope ?

2. Reasonable Expectation of Privacy – Katz TEST

1. Is there an ACTUAL expectation of privacy ?

• Did D “knowingly expose” conduct to the public? [objective]

• Are there attempts to keep it private ?

2. Is the expectation “reasonable” ? – in accordance w/societal standards [one that society is willing to accept as legitimate]

• Normative context

• Manner of the intrusion is also a factor 4

1. Open Fields è No legitimate expectation of privacy here [Oliver]

• Even reasonable steps to protect… will NOT legitimize the expectation of privacy

• Individual may NOT legitimately demand privacy for activities conducted out of doors [exception = curtilage]

• No societal interest in protecting such area

• Does NOT have to be “open” – may be locked gate

• Curtilage à Line drawn here [Dunn]

• Areas around your home which are the site of such intimate activities so as to constitute an expectation of privacy which is r’ble & normative.

• 4-Factors è

1. Proximity of the area claimed to be curtilage to the home

2. Whether the area is included within an enclosure surrounding the home

3. The nature of the uses to which the area is put

4. Steps taken by residents to protect the area from observation by people passing by

2. Public Access è Police may obtain information that members of the pubic could obtain.

• If an aspect of a person’s life is subject to scrutiny by society, then that person has NO legitimate expectation in denying equivalent access to police

3. Drug Detection è Investigation which can ONLY uncover illegal activity

1. Canine Sniffs – NOT a search – b/c information being obtained is limited… ONLY detects presence of drug odor.

• Manner of intrusion is slight

• Still need warrant for “positive” alert

1. Sniffs of people – allowable

2. Sniffs of places – greater expectation of privacy

2. Chemical Testing for Drugs – NOT a search- “a chemical test which discloses whether or not a particular substance is cocaine does NOT compromise any legitimate interest” Jacobsen

• It is a seizure however – BUT reasonable b/c only minimal amount is taken

4. Sensory Enhancement è

• Nothing in the 4^th Amendment prohibited police from augmenting the sensory faculties bestowed upon them at birth w/such enhancement as science & technology afforded them in this case. Knotts

• It is the exploitation of technological advances that implicates the 4^th Amendment, NOT their mere existence. Karo

1. Other Devices – Taborda – Use of telescope invaded a person’s r’ble expectation of privacy when viewing suspect’s apartment from across the street.

5. Prison Cells è No constitutionally protected expectation of privacy in his cell, or in papers or property in his cell.

• Prison officials free to seize anything to serve legitimate gov’t purpose

• Public Schools è There IS a reasonable expectation of privacy when they attend public schools

• Despite the need for schools to maintain discipline

• Schoolchildren may find it necessary to carry w/them a variety of legitimate, non-contraband items, & there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them on school grounds. TLO

 

2. Warrant Requirement & Probable Cause

• Searches conduct w/o warrant are presumed unreasonable [unless exception applies]

 

1. Background & Per Se Requirement of Warrant

• When the right of privacy must reasonably yield to the right of a search is, as a rule, to be decided by a judicial officer, NOT a policeman or government [Johnson]

• Goals à

• Prevent unjustified searches – gov’t interference w/no good reason

• Executive officials should NOT have such power to make determination – result could be indiscriminate searches

 

2. Quality of Information: What Kind ?

 

1. 2-Pronged TEST è Aguilar-Spinelli

• Assessment of the informant è for MAGISTRATE to decide

• Veracity – truthfulness

• Citizen informants are presumptively reliable [but not where they are anonymous]

• Has he been right 100 times before ? – past performance

• Information has traditionally led to arrests & convictions

• Other circumstances including informant’s relationship

• Is informant known to be right by others

• Veracity of Police Officer – presumed honest [rebuttable]

• Veracity with extensive detail COULD create a basis of knowledge

• Large amount of detail could allow for reasonable inferences [Draper]

• Veracity CANNOT be inferred on the basis of knowledge

2. Basis of Knowledge – which is sufficiently reliable/accurate

• Did the police officer SEE it ?

• Who saw it ?

• Is a “reliable informant” enough ?

• Must be a “sound basis” for alleging that evidence would be found in the specified place

2. Totality of Circumstances è Gates

• Fair probability that contraband or evidence of a crime will be found in a particular place

• Allows for “common-sense” calculation

• Veracity & basis prongs are still “highly relevant” to this determination – BUT not independent

• Standard of Review for Court è Substantial basis for the magistrate’s decision under the totality of the circumstances

 

3. Quantity of Information: How Much ?

1. Equivocal Activity – Activity may have an innocent explanation despite its appearance.

• Must view factors: officer’s experience, inferences, etc… to allow for a finding of probable cause

• Did the officer have enough p/c ? – subjective standard

 

4. Execution of Warrant/ SCOPE – Concerned w/ specificity & r’bleness of search

 

1. What can be seized

• Mere evidence – Hayden – Beyond the SCOPE of a permissible 4^th Amendment search

• Old rule allowed only for seizure of “fruits & instrumentalities” of a crime - NOT mere evidence like clothing worn during crime

• Modern Rule è Anything can be seized so long as à “There is reasonable cause to believe that the specific “things” to be searched for & seized are located on the property to which entry is sought. Zurcher

 

• Search of Non-Suspects’ Premises è Warrant still valid so long as there is reasonable cause to believe the evidence of crime is located on the identified property

• State Constitution may allow for greater protections – e.g. attorney’s offices [work product generally cannot be obtained during search]

 

• Plain view – Horton – TEST

• That the officer did NOT violate the 4^th amendment in arriving at the place from which the evidence could be plainly viewed [lawful presence by police]

• Within the SCOPE of the search

• Incriminating nature of the object to be seized MUST be “immediately apparent”

• Officer must have a lawful right of access to the object itself

2. Where can be searched – requires particularized description – protection against a “general warrant”

• Degree of particularity depends on the nature of the place being searched & on information which could reasonably been obtained

• TEST – Robinson – Whether the warrant enables the executing officer to locate & identify the premises w/r’ble effort, & whether there is any reasonable probability that another premises might be mistakenly searched.

 

3. Particularity & Reasonableness

• Reasoning è

• Operates as a necessary control over officer’s discretion

• Establish specific record of p/c prior to the search

• Prevent officer from using warrant as a blank check

• General clause allowing for seizure of “other items…” may be too general & invalidate the warrant [Andresen]

• Severability - No need to suppress ALL evidence b/c some item was seized improperly

 

4. Notice & Scope -

• Contreras-Ceballos – “knock & announce” rule

• 3 Purposes è

1. Protect citizens & law enforcement officials from violence

2. Protect individual privacy rights

3. Protect against needless destruction of private property

• Constitutional Basis – Must assess FACTORS

• Risk of destruction of evidence

• Hot Pursuit

• Officer Safety

• EXCEPTIONS – “knock & announce” is NOT required where è

1. No break – E.g. police entry through open door is NOT a break

2. Emergency – E.g. risk of destruction or harm

• Changes in Circumstances – At time of execution – any change in circumstances may or may NOT justify a no-knock entry

 

5. The Screening Magistrate – Must be “neutral & detached”

• Requirements è

• Neutral & detached

• Capable of determining probable cause

• No need for person to be a lawyer or judge

 

3. Warrantless Searches & Seizures

 

1. Seizures of Persons

 

1. Public Arrest – Watson

• Public arrest w/o warrant is constitutional - court gives deference to Congressional Statute

• Still must show P/C after the fact – at post-arrest hearing Gerstein

• Magistrate assesses p/c at the time of the hearing including subsequent confessions & information [Gerstein]

• 48-hour rule – Requires prompt hearing [McLaughlin] – State assumes burden of showing reasonableness if delay

 

2. Entry into Home to Arrest – Must have arrest warrant to enter home for person – home is an especially private place [Payton]

• Arrest warrant standard – p/c believe D committed crime

• Home of a 3^rd Party à Must have p/c to believe that suspect is located in home of 3^rd party [Steagald] arrest warrant alone is NOT sufficient

• Exigent Circumstances Exception à Excuses the obtaining of warrant prior to seizure of person [Does NOT excuse finding of p/c]

 

 

3. Overnight Guests – Arrest warrant required as in Payton [Olson]

• Status of overnight guest is alone enough to show that he had an expectation of privacy in the home [Olson]

• No such expectation for temporary visitors b/c no reasonable expectation of privacy as a temporary guest [McNeal]

 

2. Detention Short of Arrest – “Stop & Frisk”

1. Terry Stop – Allows police officer to make a “stop” of a person & frisk for weapons after meeting TEST à

1. Specific & articulable facts which = unusual conduct

• NOT a hunch

• Objective TEST – BUT thru lens of officer’s training & experience

• That criminal activity is afoot

• Armed & dangerous

• Allows for I.D. if officer approaches & identifies self

• Reasonable inquiry given totality of circumstances

• May pat for weapons – outer clothing only

• Tip from “known” informant is enough [Adams]

 

• Motor Vehicle Stops à Automatic right to have driver exit the vehicle [Mimms] – passenger too [Wilson]

• Reasoning – intrusion is de minimus on citizen & protection of officer is necessary due to dangerous nature of traffic stops

• Detention of Occupants of Home à Allowed during execution of search warrant [Summers]

• Reasoning – Risk of flight & threat to evidence – detention automatically flows from execution of the warrant

2. Protective Search – at Terry stop – must have reliable knowledge of facts providing reasonable basis for suspecting that the individual to be subjected to that intrusion is armed & may be dangerous

• Police are given deference w/concerns about risk of harm involved in a stop [totality test under Russ]

• Search Beyond Person à Includes limited exam. of area from which person, who police believe is dangerous, might gain immediate control of weapon [Long]

• Protective SWEEP à Allows for quick & limited search of premises incident to arrest conducted to protect safety of police & others [Buie]

• Search for evidence à NOT allowed under Terry [Dickerson]

 

3. Reasonable Suspicion – Court must investigate the source of information which reasonable suspicion is based…whether sufficient cause to justify stop [Brignoni-Ponce]

• Quantum à Particularized suspicion contains 2 Elements; Cortez

• Assessment based on Totality – trained officer draws inferences

• Must raise suspicion that individual being stopped is engaged in wrongdoing

• Quality à Anonymous informant’s tip w/significant corroboration amounts to reasonable suspicion [White]

• Probabilities Assessment à Use of computer “hits” along with other supporting info = reasonable suspicion [Ornelas-Ledesma]

• NOTE: Test is whether there is reasonable suspicion of criminal activity, NOT whether the facts can be construed as innocent [Trullo]

 

• Completed Crimes à Terry stop can be based on reasonable suspicion that suspect has already committed a crime [Hensley]

• Collective knowledge of police is allowed

• Profiling à Agent is required to articulate factors leading to reasonable suspicion – BUT factors which set forth a “profile” does NOT detract from their evidentiary significance as seen by a trained agent. [Sokolow]

 

4. Mere Encounter & Stop – Physical custody is NOT required to define a seizure as opposed to a stop.

• Free to Leave TEST à In view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave [Mendenhall]

• No obligation to tell suspect he is free to leave

• Seizure can be implied by taking of property [e.g. ticket]

• Non-Compliance à Suspect must submit to authority in order to turn stop into seizure [Hodari] – order is NOT a detainment

• Momentary hesitation by suspect is NOT sufficient Hernandez

5. The Line b/w Stop & Arrest à An investigative detention must be temporary & last no longer than necessary to effectuate the purpose of the stop [Royer]

• Scope of intrusion varies w/facts of situation

• State has burden of showing justification for scope of seizure

• P/C is required to force suspect to move in order to further the investigation or place more pressure on the suspect [Royer]

• BUT may force suspect to move for safety or security

 

• 4 Criteria Which Bear on This à

• The degree of force/restraint imposed

• Length of detention

• Place of detention [was movement required]

• Relationship of detention to basis for it

 

• Forced Movement to I.D. à Forced movement out of vehicle is NOT an arrest under Mimms [Hicks]

 

• Scope of Inquiry During Stop à Terry does NOT permit questioning beyond the scope of the reasonable suspicion for which the suspect was stopped

• No fishing expeditions [Babwah]

 

• Time Limits on the Stop à No bright line – must consider facts

• Did suspects contribute to the delay ? [Sharpe]

• Law enforcement must diligently pursue the investigation

 

• Show of Force à Can amount to arrest – e.g. gun to head

• Use of handcuffs NOT necessarily arrest if for safety [Allen]

 

6. Evidentiary Seizure/Search: Unlawful Detention – May be necessary to seize property on reasonable suspicion

• Person w/property – intrudes on both possessory interest of person & liberty interest to travel w/property [r’ble suspicion necessary]

• Limited Searches for Evidence à E.g. where gun is shot

• Protective search is allowed for gun – based on possible risk of harm to self & others [Dickerson]

 

4. Search Incident to Arrest – 4A allows for search to extend to person & area within his immediate control [Chimel]

• Reasoning è

• Safety of officer

• Preservation of evidence

• Arrested person has diminished expectation of privacy anyway

 

• Persons à

• Full body search of arrestee is allowed regardless of the nature of the crime for which he was arrested [Robinson]

• Search of person & areas w/i immediate control of D is allowed [Chimel]

• Timing of search does NOT matter [can search 1^st then arrest]

• Must be roughly contemporaneous

 

• Automobiles à [Belton]

• Passenger compartment area of car IS considered w/i “grab area” & may be searched – BUT NOT the trunk

 

5. Pretext

• Standard à What COULD the reasonable officer do under the circumstances [Whren]

• Other arguments are NOT 4A, they are equal protection

 

6. Searches of Moveable Objects – need NOT be contemporaneous 4

 

1. Carroll Doctrine à Police may search an automobile w/o warrant so long as they have p/c to believe it contains evidence [NOT a search incident to arrest] – INCLUDING TRUNK

• Reasoning à

• Car is highly moveable & impractical to obtain warrant

• Lesser expectation of privacy in automobile

• NOTE – p/c here attaches to the object NOT the person

• P/C + exigency (mobility of the object) allows for search w/o warrant

 

2. Closed Containers à

1. Found in vehicle – Where p/c attaches to vehicle, may open any packages & luggage which could reasonably contain items for which police have p/c to search for [Ross]

2. Placed in vehicle – Where p/c attaches to container, police can search any container once placed in vehicle [Acevedo]

 

3. Exception NOT applicable where à

1. Moveable object is no longer mobile

2. P/C is foreseeable – could have obtained warrant

 

4. Other Moveable Property à E.g. where p/c relates to luggage or footlocker

• Higher expectation of privacy b/c item is a “repository for personal effects” [Chadwick]

• Alternative – seize the object & obtain warrant (intrusion is limited)

 

7. Exigent Circumstances – Justify intrusion even in the absence of warrant

• Reasoning à

• Render assistance

• Preserve evidence related to crime

 

1. Hot Pursuit – Warrantless search & seizure allowed where police are in “hot pursuit” of dangerous suspect [Hayden]

• Scope may be as extensive as reasonably necessary to prevent suspect from resisting or escape

• May pursue suspect into private dwelling with p/c to arrest in public

 

2. Public Safety – Purpose to render aid

• Only need reason to believe that assistance/aid is necessary [Riccio]

 

3. Risk of Destruction of Evidence – No time for warrant

• Must have p/c that crime is being committed OR evidence is inside

• Police must have reason to believe that going to a magistrate would allow for the destruction of the evidence

• Exigence required by Dorman Factor TEST è

1. The gravity or violent nature of the offense w/which suspect is to be charged

2. Whether the suspect is reasonably believed to be armed

3. Clear showing of p/c… to believe suspect committed the crime

4. Strong reason to believe suspect is in the premises being entered

5. Likelihood that suspect will escape if NOT swiftly apprehended

6. Peaceful circumstances of the entry

 

4. Securing Premises – Premises may be “seized” to maintain status quo until warrant can be obtained [Segura] from the outside

 

5. Fire Safety – Constitutes emergency, allows for warrantless search & seizure immediately after [Tyler]

• After fire has been extinguished – no emergency – warrant required

• What kind of Warrant ?

• Administrative Warrant – for fire protection purposes

• Criminal Search Warrant – for evidence of crimes

 

8. Administrative Searches – Based on “special needs”

 

1. Generally – Administrative warrant IS required under 4^th Amendment

• Balance the need against the invasion

• Administrative warrant does NOT require conventional demonstration of p/c

• Special Need = “general & neutral enforcement plan” – non-law enforcement [Barlow’s Inc.]

2. Highly Regulated Businesses – No warrant requirement so long as there is a special need (non-law enforcement) & reasonable [Burger]

• Reasoning à Lesser expectation of privacy (statute controls)

• Reasonableness Determination à Burger

1. Substantial gov’t interest which informs the regulatory scheme [of the special need]

2. Warrantless inspection is necessary to further the scheme

3. Notice to owner of lawfulness & defined scope [w/limit to discretion of inspectors]

 

3. Individual Targets – Warrantless search allowed where “reduced expectation of privacy”

 

• Public Schools [w/Suspicion] – “En loco parentis” reduced expectation balanced w/ need to maintain school discipline allows search w/o warrant

 

• Random Drug Testing [Suspicionless] – [Vernonia] TEST

• Non-law enforcement – special need

• Reduced expectation of privacy

1. Class of individual

• Student in custody of state ? [TLO]

• Condition of probation ?

• Condition of employment ? [Von Raab]

2. Manner of the Intrusion

1. Collection

2. Dissemination of info [do police get the info ?]

 

3. Government Interest

1. Is it compelling ?

2. Efficacy ?

4. Necessary to advance the interest ?

 

4. Roadblocks –

1. Suspicionless Seizures –

• Roadblock stopping every car is lawful so long as they serve some legitimate law enforcement purpose [Prouse]

• Random Checks – unconstitutional – discretionary police abuse

• Stopping a person at a roadblock IS a seizure for 4^th Amendment purposes [Brower]

 

2. Permanent Checkpoints – Fixed checkpoint is minimally intrusive

• Discretion is limited due to fixed point

• G interest is substantial

• Manner is reasonable

 

 

3. Temporary Checkpoints – May be upheld

• Substantial gov’t interest

• Is the means used of advancing the interest substantially tied ?

• E.g. sobriety checkpoints at temporary locations in order to minimize traffic congestion & safety

 

5. Inventory – Suspicionless Search For Law Enforcement Purposes

• Reasoning è “caretaking” function

• Protect owner’s property while it is in police custody

• Protect police against claims of lost or stolen property

• Protect police & public from potential danger

 

• Property Carried by Arrestee è Lafayette

• Inventory allowed by same reasoning as above

 

9. Consent –

 

1. Validity - Must be voluntary & intelligent [Bustamonte]

• Mere acquiescence is NOT enough to constitute “voluntary”

 

2. Knowledge of the right – NOT required

• Police need NOT inform suspect of right

 

3. TEST à [Gonzalez-Basulto]

1. Voluntariness of D’s custodial status

2. Presence of coercive police procedures

3. Extent & level of D’s cooperation w/police

4. D’s awareness of his right to refuse consent

5. D’s education & intelligence

6. D’s belief that no evidence will be found

 

4. Actual Authority – So long as the person has access & authority to areas consented to, consent is valid [Matlock]

• Ownership interest does NOT matter

• Reasoning – assumption of risk that person with access will allow others access

• Does NOT extend to areas which person has NO right of access

 

5. Apparent Authority – Authority determination must be “reasonable”

• Even if later it is determined that NO actual authority existed

• NO valid consent for mistake of law by police

• E.g. Hotel manager allowing access to room – by law no access

 

 

 

6. Scope of Consent – Burden on D to withdraw consent where unclear

• Standard of objective reasonableness [Jimeno]

• What would reasonably have been consented to

• Search for drugs in car would allow for opening of containers where drugs may be found

 

Exclusionary Rule

 

1. General Rule è Evidence seized unlawfully will NOT be admitted in the ensuing prosecution of D [Mapp]

 

2. Purpose

1. Judicial Integrity

2. Deter police from violating 4A

 

3. Scope – All evidence illegally obtained must be excluded.

 

1. Fruit of the Poisonous Tree – Evidence directly or indirectly acquired as a result of an illegal search or arrest is NOT allowed [Wong Sun]

 

1. Dissipation of the Taint – Taint may be removed & evidence may be used where è

 

1. Inevitable discovery – Police would have discovered the evidence regardless of their illegal action. (Independent source that did NOT happen yet)

• Preponderance standard

• No need to prove absence of “bad faith” by officers [Nix]

 

2. Independent Source – Obtained evidence from an independent source NOT connected to the illegal search or seizure [Murray]

• E.g. info given to magistrate (w/o tainted info) warrant is issued even after police have seen contraband

• So long as the decision to enter was not a product of what was found by illegal conduct [Murray]

 

3. Confessions – Weak link b/w illegal conduct by police & the challenged evidence.

• Reasoning – No deterrent effect on police to exclude confession which was not the product of illegal conduct.

 

4. Standing to Invoke – Whether D can object to exclusion of evidence

 

1. Standard – D must have “legitimate expectation of privacy” in the area which the evidence was found [Rakas]

• Ownership is NOT the standard – otherwise, D would have to admit ownership to gain standing

 

5. Good Faith Exception – Exclusionary rule does NOT apply when police rely in good faith on case law later changed by another judicial opinion [Peltier]

• Even if law purports to authorize a warrantless search which is later held unconstitutional [Krull]

• Even where police rely in good faith on defective search warrant [Leon]

• Standard – Officer’s reliance must be objectively reasonable

• Suppression if è

1. Warrant obtained by police misconduct (dishonest or reckless)

2. Magistrate abandons role and acts as law enforcement

3. Affidavit lacks p/c – unreasonable belief of police

4. Facially deficient warrant [e.g. no particularity of place]

 

 

6. Use of Illegally Seized Evidence – Evidence may still be used in è

1. Immigration cases

2. Tax proceedings

3. Grand jury proceedings

4. Impeachment purposes (against D but NOT W’s)

• May use voluntary confessions for impeachment ONLY

• May NOT impeach involuntary confessions for impeachment purposes

 

Confessions: 5^th & 6^th Amendments

 

1. 5^th Amendment – “No person shall be compelled in any criminal case to be a W against himself”

 

1. Due Process Approach – Used to exclude involuntary confessions

• Spano – Involuntary confessions excluded – totality test

 

2. Right to Counsel Approach – 6A violation

 

3. Self - Incrimination Approach - Miranda

 

2. Miranda Requirements

 

1. Custody – Only applies to custodial interrogations

2. Government Official – Applies to government actors

3. Warnings – Were the 4 warnings given

1. Right to remain silent

2. Statements can be used in a court of law

3. Right to an attorney

4. Right to appointed attorney if cannot afford one

4. Waiver – Must be knowing & voluntary

3. Constitutional Status

1. Impeaching D-Witness – Statements obtained in violation of Miranda may still be used to impeach D [Harris]

• Miranda will NOT be perverted into a license for perjury

 

2. Involuntary Confessions – NO use at all, even for impeachment

 

3. Impeachment With Prior Silence – NOT allowed [e.g. silence about alibi… amounts to due process violation] Doyle

 

4. Pre-Arrest Silence – E.g. failure to turn self in may be used for impeachment purposes [Jenkins]

 

5. Post-Arrest, Pre-Miranda Silence – Allowed to be used for impeachment purposes [Fletcher]

 

4. Admitting the Fruits of a Miranda Violation – Information obtained

 

1. Leads to W’s à Miranda defective confession may be excluded BUT NOT the information which led to another W which was obtained [Tucker]