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Criminal Procedure Outline - Martin 5 March 2022
Michael Murray
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I THE CRIMINAL PROCESS: FAILURE AND LEGITIMACY
A. Problems of Failure
1. The Scottsboro Defendants
2. Powell v. Alabama
a. “The prompt disposition of criminal cases is to be commended and encourages.
But in reaching that result a defendant, charged with a serious crime, must not be
stripped of his right to have sufficient time to advise with counsel and prepare his
defense
b. In a capital case…it is the duty of the court, whether requested or not, to assign
counsel for him as a necessary requisite of due process of law…
3. Brown v. Mississippi
a. State refused to exclude confession from torture saying that immunity from self-
incrimination was not essential to due process of law; and that failure to exclude
was at best mere reversible error and not a violation of a constitutional right
b. The Supreme Court held that the conviction and sentence are void for want of the
essential elements of due process, and the proceeding thus vitiated could be
challenged in any appropriate manner
c. Immunity from self-incrimination a federal right protected in states by the 14
th
amendment
B. Moving the States toward the federal model: Incorporation
1. Standards for measuring “Due Process of Law”
a. Hurtado v. California
(1) Due process of law was not meant to include the institution and process of a
grand jury
(2) Conclusion reached by the fact that the amendment includes phrases granting
the grand jury right and due process of law. If the latter included the former,
it would not have been mentioned individually
b. Twining v. New Jersey
(1) Jury was allowed to draw an inference of guilt from the defendant’s failure to
testify
(2) Was not violative of due process
(3) Due process test changed: no longer had to trace the right in question to the
Magna Carta; they only had to show that the right in question was
“fundamental”
c. Palko v. Connecticut
(1) The state was able to appeal an error and retry a defendant convicted of the
crime but to a lesser degree.
(2) Double jeopardy did not apply since the question was not about guilt but only
degree
d. Duncan v. Louisiana
(1) The due process clause of the 14
th
amendment requires that states accord the
right to jury trial in prosecutions for offenses that are not petty
(2) States not bound to follow all the “baggage” of the 6
th
amendment decisions
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(a) Not required to use 12 or unanimous decisions
(3) Dissenting opinion
(a) Disagree with the total incorporation view of the 14
th
amendment
(b) Due process of law requires only that criminal trials be fundamentally fair.
(c) It has not been demonstrated that trial by jury is the only fair means of
resolving issues of fact
e. Notes:
(1) Hurtado has never been overruled
(2) Palko has never been overruled but the court has rejected the analytical
structure, holding that double jeopardy clause is incorporated into the due
process clause
C. Legitimizing the Criminal Process
1. The norms of the criminal process
a. Legitimating factors depend on:
(1) The accuracy of verdicts
(a) Innocent weighted approach (our system)
[1] Erroneous convictions are worse than erroneous acquittals
(b) Guilt weighted
[1] Societal interest in punishing the guilty outweighs the interest in
protecting innocent defendants
(c) Guilt-innocence neutral (civil system)
(d) Factors of accuracy
[1] Defendant can test the state’s case
[2] Right to a lawyer
[3] Right to confront witnesses
[4] Public trial before an impartial jury
[5] Speedy trial
(2) The fairness of the procedure
(3) Honoring the presence of certain limitations on the power of government to
find or use evidence, and
(4) Efficiency
II THE FOURTH AMENDMENT: AN OVERVIEW
A. The Text and its Mysteries
1. Amendment 4
a. “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.”
b. No remedy included
B. The Fourth Amendment, the Exclusionary Rule, and the States
1. Weeks v. United States
a. Development of the exclusionary rule as to the federal government
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b. Protection of the 4
th
amendment is of no value, and, so far as those thus placed are
concerned, might as well be stricken from the Constitution
c. Items illegally seized should have been returned to the defendant
2. Wolf v. Colorado
a. Exclusion rule will not be imposed upon the states as an essential ingredient of
due process
b. Essentials of due process
(1) This clause exacts from the states for the lowliest and the most outcast all that
is implicit in the concept of ordered liberty
(2) Representing as it does a living principle, due process is not confined within a
permanent catalogue of what may be given time be deemed the limits or the
essentials of fundamental rights
c. The security of one’s privacy against arbitrary intrusion by the police is basic to a
free society. It is therefore implicit in “the concept of ordered liberty” and as such
enforceable against the States through the Due Process Clause.
3. Mapp v. Ohio
a. Exclusionary rule applies to States and “evidence (illegal acquired) shall not be
used at all.”
b. This court has ever since (Weeks) required Federal law officers a strict adherence
to the command which the Supreme Court has held to be a clear, specific, and
constitutionally required even if judicially implied deterrent safeguard
without insistence upon which the fourth amendment would have been reduced to
“a form of words.”
c. It is to deter to compel respect for the constitutional guaranty in the only
effectively available way-by removing the incentive to disregard it
d. 3 steps to Majority’s decision
(1) Shift in policy indicated by state laws
(2) Deterrent?
(3) Common sense
e. 4 1 3 decision: 5 decided to overrule Wolf; 1 for different reasons
f. Dissent:
(1) Court overreached to find a reason to overrule Wolf
(2) Court had no regard for stare decisis
(3) Excluding confessions and excluding evidence not similar
(a) Illegal confessions make a prisoner the instrument of his own conviction;
exclusion of evidence is only a matter of disciplining police
(4) The court has discounted total incorporation
C. The Reach of the Fourth Amendment
1. Foreign property owned by a non resident alien
a. Aliens are not among “the people” the framers intended to protect from
unreasonable searches and seizures
2. Searches by private citizens
a. 4
th
amendment only intended to limit government actions
III PASSING THE THRESHOLD OF THE FOURTH AMENDMENT
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A. What is a search?
1. General Principles
a. Good search = warrant + probable cause
b. Katz v. United States
(1) Supreme Court refused to promote the phrase “constitutionally protected area”
(a) 4
th
Amendment cannot be translated into a general right of privacy
(b) It protects individual privacy against certain kinds of governmental
intrusion
(2) The fourth amendment protects people not places
(3) What a person knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection. But what he
seeks to preserve as private, even in an area accessible to the public, may
be constitutionally protected
(4) 4
th
Amendment governs not only seizure of tangible items, but extends to the
recording of oral statements, overheard without any “technical trespass under
local property laws
(5) Reasonable expectation of privacy
(6) Recording the conversation while using a phone booth is a search and seizure
within the meaning of the 4
th
amendment
(7) J. Harlan; Concurring
(a) Rule:
[1] A person exhibited an actual (subjective) expectation of privacy and
[2] The expectation is one that society is prepared to recognize as
“reasonable”
(8) J. Black; dissent
(a) The fourth amendment protects privacy only to the extent that it prohibits
unreasonable searches and seizures of persons, houses, papers, and effects
2. The Katz doctrine in application
a. Untied States v. White
(1) Hoffa v. United States held that however strongly a defendant may trust and
apparent colleague, his expectations in this respect are not protected by the
fourth amendment when it turns out that the colleague is a government agent
regularly communicating with the authorities
(2) Individual assumes risk that confidant will reveal info.
(3) J. Harlan; dissent
(a) On Lee held that in the absence of a trespass, no constitutional violation
had occurred when a police officer transmitted conversations to a third
party
(b) The issue here is whether to interpose a search warrant procedure between
law enforcement agencies engaging in electronic eavesdropping and the
public generally
(c) “Place” is an important factor
b. Smith v. Maryland
(1) Harlan’s rule in his concurring opinion in Katz adopted as rule in 4
th
amendment searches
(2) Use of a pen register not a violation of 4
th
amendment
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(a) His conduct was not and could not have been calculated to preserve the
privacy of the number he dialed
[1] Not a reasonable expectation of privacy
(b) Is not an expectation which society is prepared to recognize as
‘reasonable’
[1] Court has consistently held that a person has no legitimate expectation
of privacy in information he voluntarily turns over to third parties
(c) J. Stewart; dissent
[1] Those who disclose certain facts to a bank or phone company for a
limited business purpose need not assume that this information will be
released to other persons for other purposes
(3) Notes
(a) Tracking devices:
[1] A person traveling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one place to
another
[2] However, warrantless tracking within a private residence is a violation
of the 4
th
amendment
c. Oliver v. United States
(1) Open field doctrine permits police officers to enter and search a field without
a warrant
(2) Part III A
(a) No single factor determines whether an individual may legitimately claim
under the fourth amendment that a place should be free of government
intrusion. Factors include:
[1] Intention of framers
[2] The uses to which the individual has put a location
[3] Societal understanding that certain areas deserve the most scrupulous
protection from government intrusion
(b) An individual may not demand privacy for activities conducted out of
doors in fields except in the area immediately surrounding the house
(curtilage)
(c) Privacy in open fields is not an expectation that society recognizes as
reasonable
(3) Part III B
(a) Case by case basis would leave police officers to guess before every
search
(b) Create difficulties for courts, police, and citizens
(4) Part IV
(a) The test of legitimacy is not whether the individual chooses to conceal
assertedly private activity.
(b) Rather, the correct inquiry is whether the government’s intrusion infringes
upon the personal and societal values protected by the fourth amendment
(c) The existence of property right is but one element in determining whether
expectations of privacy are legitimate
(5) J. White concurred as to Parts I and II; no need to go further
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(a) No way to convert a field into a house or an effect
(6) J. Marshall; dissent
(a) Curtilage not defined under 4
th
amendment: is it a house or an effect
(b) Katz specifically rejected a locational theory of coverage of the
amendment
(c) Private land marked in a fashion sufficient to render entry a criminal
trespass under the laws of the state in which the land lies should be
protected by the fourth amendment
(7) Factors in determining limit of curtilage:
(a) Proximity of the area claimed to be curtilage to the home
(b) Whether the area is included within an enclosure surrounding the home
(c) The nature of the uses to which the area is put
(d) The steps taken by the resident to protect the area from observation by
people passing by
d. California v. Ciraolo
(1) Does building a 10 foot fence around the yard manifest
(a) A subjective expectation of privacy from all observations of his backyard
or
(b) A hope that no one would observe his unlawful gardening pursuits
(2) What a person knowingly exposes to the public, even in his own home or
office, is not a subject of fourth amendment protection. Katz
(3) Expectation that outdoor garden was protected form lawful aerial observation
is unreasonable and is not an expectation that society is prepared to honor
(4) J. Powell; dissent
(a) Focuses on technology
e. Notes
(1) Florida v. Riley
(a) Law enforcement officer observed the interior of a partially covered
greenhouse
(b) Because the sides and roof of his greenhouse were left partially open and
whatever was growing in the greenhouse was subject to viewing
(c) Owner could not have expected that the greenhouse would be immune
from examination by an officer
(2) Different if plane had been flying illegally? (Too low or in restricted air
space?)
(3) Garbage:
(a) No reasonable expectation of privacy when it comes to garbage placed out
for collection
(4) Police can not reasonably be expected to avert their eyes from evidence of
criminal activity that could have been observed by any member of the public
(5) Border agent’s physical manipulation of bag on bus violated the fourth
amendment
(a) A passenger expects that his bag may be handled. He does not expect the
bag to be felt in an exploratory manner
f. Kyllo v. United States
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(1) At the very core of the fourth amendment stands the right of a man to retreat
into his own home and there be free from unreasonable governmental
intrusion
(2) Court has held in past that visual observation is no search at all
(3) While the court upheld enhanced aerial photography of an industrial complex
in Dow Chemical, we noted that we found “it important that this is not an area
immediately adjacent to a private home, where privacy expectations are most
heightened
(4) Obtaining by sense-enhancing 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
at least where the technology in question is not in general public use
(5) Any physical invasion of the structure of the home by even a fraction of an
inch, was too much
(6) Where the government uses a device that is not in general public use, to
explore details of the home that would previously have been unknowable
without physical intrusion, then surveillance is a search and is presumptively
unreasonable without a warrant
(7) J. Stevens; dissent
(a) Monitoring such emissions (excessive heat, smoke, odor) with sense-
enhancing technology, and drawing useful conclusions from such
monitoring is an entirely reasonable public service
(b) United States v. Place, court held that a dog sniff which discloses only the
presence or absence of narcotics does not constitute a search within the
meaning of the fourth amendment
B. What is a seizure?
1. United States v. Karo
a. Creating a potential invasion of privacy does not constitute a search under the 4
th
amendment
b. Seizure:
(1) Some meaningful interference with an individual’s possessory interests in that
property
(2) If the presence of a beeper could constitute a seizure merely because of its
occupation of a space, it would follow that the presence of any object would
violate the 4
th
amendment
(3) No fourth amendment rights were violated
2. Notes
a. Search = privacy
b. Seizure = possessory interests
(1) Take the property
(2) Damage the property
(3) Deprive owner of property for unreasonable length of time
c. Seizure of persons:
(1) Quintessential seizure is an arrest
(a) Arrest is effected by the slightest application of physical force or show of
authority
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(2) A seizure has occurred when an officer, by means of physical force or show of
authority has in some way restrained the liberty of a citizen
d. Objects subject to seizure; categories
(1) Contraband: evidence that may not lawfully be possessed by a private party
(2) Fruits of a crime
(3) Instrumentalities used in the commission of an offense (e.g. weapons,
automobile for the get-away, etc.)
(4) Mere evidence: i.e., an item of value to the police solely because it will help in
the apprehension or conviction of a person for an offense
(a) Barred by the fourth amendment until 1967
IV THE SUBSTANCE OF THE 4
TH
AMENDMENT
A. Probable Cause
1. Definition
a. Where the facts and circumstances within the officers’ knowledge and of which
they have reasonably trustworthy information sufficient in themselves to warrant
a man of reasonable caution in the belief that;
(1) An offense has been or is being committed by the person to be arrested or
(2) An item subject to seizure will be found in the place to be searched
2. Spinelli v. United States
a. Hearsay can establish probable cause; however it must (Spinelli rule):
(1) Credibility: Adequately reveal the basis of knowledge of the informant; the
particular means by which he came by the information, and
(2) Informant’s Reliability: Facts sufficiently establishing either the veracity of
the affiant’s informant, or the reliability of the informant’s report
b. Aguilar requires information as to whether the information came from observation
or if the informant received it from another
3. Notes
a. Magistrate’s job
(1) Assess the credibility of that source, and
(2) Weigh the information furnished if he believes it to be true.
4. Illinois v. Gates
a. Illinois Supreme Court properly applied the two-prong test derived from Spinelli
(1) Source had to adequately reveal the basis of knowledge of the information
(2) Provide facts sufficiently establishing either the “veracity” of the affiant’s
informant, or, alternatively, the “reliability” of
b. However, court overturns the Spinelli rule…or does it? Court split: 4-1-2-2
c. The test is now the ‘totality of the circumstances’ analysis
d. The task of the magistrate is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him, there is
probable cause
e. Standard of review: ensure the magistrate had a substantial basis for concluding
that probable cause existed.
f. A wholly conclusory statement does not meet the above requirements; it cannot
be a mere ratification of the bare conclusions of others
g. J. White; concurring in judgment
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(1) Agrees with holding but not overturning Spinelli
(2) Result that a statement from an unusually honest informant can be used
(a) Points out that the court has repeatedly held that the unsupported assertion
or belief of an officer does not satisfy the probable-cause requirement
(b) This ruling holds that an unsupported assertion or belief from an informant
does satisfy the p-c requirement
(c) Findings of probable cause should not be authorized unless there is some
assurances that the information on which they are based has been obtained
in a reliable way by an honest or credible person
h. J. Brennan; dissent
(1) Information given by informant should not have been considered reliable
because an important fact was wrong and made the actions less suspicious
5. Notes
a. Preference for the warrant process
(1) The resolution of doubtful or marginal cases of probable cause should be
largely determined by the preference to be accorded to warrants
(2) An appellate court should pay great deference to a magistrate’s decision to
issue a warrant, but when police act without a warrant, they make the initial
probable cause determination and a trial court approves the police action after
the fact, an appellate court shall conduct de novo review of the probable cause
matter.
B. Arrest and Search Warrants
1. Importance of Warrants, generally
a. Johnson v. United States
(1) 4
th
amendment requires that the probable cause for a warrant be decided by a
neutral and detached magistrate
(2) Warrant requirement can be dispensed with (DICTA):
(a) Suspect fleeing or likely to take flight
(b) Search of a moving vehicle
(c) Threat that contraband or evidence may be removed or destroyed
(3) Inconvenience or slight delay are not proper excuses
b. Searches conducted outside the judicial process, without prior approval by judge
or magistrate, are per se unreasonable under the fourth amendment-subject only to
a few specifically established and well delineated exceptions
2. Arrest Warrants
a. United States v. Watson
(1) Requirement to obtain warrant for all arrests would constitute an intolerable
handicap for legitimate law enforcement
(2) Authorizes warrantless public arrests on probable cause
(a) Rather than encumber criminal prosecutions with endless litigations with
respect to the existence of exigent circumstances
(3) Concurring; J. Powell
(a) Anomaly that more protection from searches of things than from seizures
of persons
(4) Dissent; J. Marshall
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(a) A warrant requirement for arrests would minimize the possibility that such
an intrusion into the individual’s sacred sphere of personal privacy would
occur on less than probable cause
b. Gerstein hearing
(1) 4
th
amendment requires a judicial determination of probable cause as a
prerequisite to extended restraint of liberty following arrest
(2) Standard Probable cause
(3) Proceedings informal; non-adversarial
(4) Gerstein v. Pugh
(a) The detached judgment of a neutral magistrate is essential if the fourth
amendment is to furnish meaningful protection from unfounded
interference with liberty. Accordingly, we hold that the 4th amendment
requires a judicial determination of probable cause as a prerequisite to
extended restraint of liberty following arrest.
(5) Jurisdiction must provide a hearing within 48 hours after a warrantless arrest
(even over a weekend) absent a bona-fide emergency or other extraordinary
circumstances: County of Riverside v. McLaughlin
c. Executing an arrest: use of force
(1) An arrest constitutes an unreasonable seizure of the person if the method of
making the arrest is unreasonable
(2) A police officer may not use deadly force to prevent the escape of a fleeing
felon, unless she has probable cause to believe that the suspect poses a threat
of serious physical harm, either to the officer or to others: Tennessee v.
Garner
(3) Implicit in Garner is that all claims that law enforcement officers have used
excessive force deadly or not in the course of an arrest, investigatory stop,
or other ‘seizure’ of a free citizen should be analyzed under the fourth
amendment ‘reasonableness standard’. Graham v. Connor
d. Payton v. New York
(1) Search of the immediate area incident to an arrest was reasonable under
Chimel v. California
(2) Language of the amendment applies equally to seizures of persons and
seizures of property
(3) Basic principle of the 4
th
amendment law that searches and seizures inside a
home without a warrant are presumptively unreasonable
(4) Seizure of property in plain view involves no invasion of privacy and is
presumptively reasonable, assuming that there is no probable cause to
associate the property with criminal activity
(5) Judge Leventhal: An entry to arrest and entry to search for property implicate
the same interest in preserving the privacy and the sanctity of the home and
justify the same level of constitutional protection
(6) For 4
th
amendment purposes, an arrest warrant founded on probable cause
implicitly carries with it the limited authority to enter a dwelling in which the
suspect lives when there is reason to believe the suspect is within
(7) Dissent; J. White
(a) 4
th
amendment protects people, not places
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(b) 4 restrictions on home arrests constitute powerful and complementary
protections
[1] Felony
[2] Knock and announce
[3] Daytime
[4] Stringent probable cause
(c) Officers must now decide whether the circumstances are sufficiently
exigent to justify their entry to arrest without warrant
(d) If wrong, the arrest may be invalidated or they may refrain from arresting,
creating the possibility that a dangerous criminal will escape into the
community
e. Exceptions to the arrest warrant requirement
(1) Hot pursuit of a fleeing felon
(2) Imminent destruction of evidence
(3) Need to prevent a suspect’s escape
(4) Risk of danger to the police or to other person
f. Procedures to arrest someone in another person’s home
(1) Arrest warrant for one person does not authorize the search of a third party’s
home even though the object of the warrant is there
3. Search Warrants in General
a. The Constitutional Debate
(1) California v. Acevedo
(a) The 4
th
amendment does not by its terms require a prior warrant for
searches and seizures; it merely prohibits searches and seizures that are
unreasonable
(2) Per se approach variant of the warrant requirement argument
(a) The first (reasonableness) command and the second (warrant) command
are linked by an implicit third that no searches and seizures may take place
except pursuant to a warrant
(b) Common sense counterexamples
[1] Exigent circumstances
[2] Consent searches
[3] Plain view searches
[4] Real life
(3) Modified Per Se variant of the warrant requirement argument
(a) Warrantless searches and seizures are per se unreasonable, save for a
limited number of well-defined exceptions
[1] Contrary to the text of the constitution
(4) Two models of the 4
th
amendment
(a) Model I: A search is or seizure must be reasonable, considering all
relevant factors on a case-by-case basis. Factors include:
[1] Probable cause
[2] Warrant obtained
[3] Exigent circumstances
[4] Nature of intrusion
[5] Quantum of evidence seriousness of the offense under investigation
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(b) Model II: A warrant is always required for every search and seizure
[1] Remove requirement for writing
b. The nature of a valid Search Warrant
(1) Lo-ji Sales, Inc. v. New York
(a) 4
th
amendment does not permit open-ended warrants
(b) By participating in search, town justice did not manifest that neutrality and
detachment demanded of a judicial officer when presented with a warrant
application
(2) The requirement of warrant specificity
(a) “Particularly describing the place to be searched and the persons or things
seized” was intended to prevent general searches
c. Executing a search warrant
(1) Wilson v. Arkansas
(a) The common law “knock and announce” principle forms a part of the
reasonableness inquiry under the fourth amendment
(b) Not an all encompassing rule: the 4th amendment principle of
reasonableness should not be read to mandate a rigid rule of
announcement that ignores countervailing law enforcement interests
(c) May not apply in circumstances:
[1] Presenting a threat of physical violence
[2] Escape and pursue of prisoner into dwelling
[3] Destruction of evidence
(2) Richards v. Wisconsin
(a) Lower courts can make reasonable exceptions, but blanket exceptions or
per se exceptions (no knock OK for all drug warrants) not acceptable
(b) In order to justify a “no-knock” entry, police must a have a reasonable
suspicion that knocking and announcing their presence would be
dangerous or futile, or it would inhibit effective investigation of the crime
by, for example, allowing the destruction of evidence
(c) Reasonable suspicion: officer must articulate something more than a
“hunch”. There must exist some minimal level of objective justification
for the police conduct
(3) Executing after entry
(a) Police may search containers large enough to hold the criminal evidence
for which they are searching
(b) They may seize an object not described in the warrant, if they have
probable cause to believe it is a seizeable item
(c) Information that becomes available to a police officer immediately before
or during the execution of the search my require them to cease or narrow
their search
(4) Searching persons during execution of a warrant
(a) A warrant may authorize search of a person but must be explicit
(b) Mere propinquity to others independently suspected of criminal activity
does not, without more give rise to probable cause to search that person. A
search or seizure of a person must be supported by probable cause
(5) Seizure of persons during execution
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(a) A search warrant implicitly carries with it the limited authority to detain
the occupants of the premises while a proper search is conducted
(6) In anticipation of a warrant
(a) Illinois v. McArthur
[1] Officer prevented man from reentering home while other officer went
to get a warrant; Supreme Court upheld
[a] Police had probable cause to believe that defendant’s home
contained evidence of a crime and contraband
[b] The police had good reason to fear that, unless restrained,
McArthur would destroy the drugs before they could return with a
warrant
[c] Police made reasonable efforts to reconcile their law enforcement
needs with the demands of personal privacy
[d] Police imposed the restraint for a limited period of time
4. Search Warrant Requirement: Exceptions to the “Rule”
a. Katz v. United States
(1) Searches conducted outside the judicial process are per se unreasonable
subject only to a few specifically established and well-delineated exceptions
b. Exigent circumstances
(1) Warden v. Hayden
(a) “The exigencies of the situation made the course imperative”
(b) The 4th amendment does not require the police to delay in the course of an
investigation is to do so would gravely endanger their lives or the lives of
others
(2) Welsh v. Wisconsin
(a) Has applied only hot pursuit to arrests in the home
(b) Hot pursuit
[1] Immediate or continuous pursuit of the petitioner from the scene of the
crime
[2] Some threat to the public safety
(3) Minnesota v. Olson
(a) A warrantless intrusion may be justified by
[1] Hot pursuit of a fleeing felon
[2] Imminent destruction of evidence
[3] Need to prevent a suspect’s escape
[4] Risk of danger to police or others, inside or outside the dwelling
(b) In the absence of hot pursuit, there must be at least probable cause to
believe one or more of the other factors justifying entry were present
(c) In assessing risk of danger take into consideration
[1] Gravity of crime
[2] Likelihood suspect is armed
c. Search incident to arrest
(1) Chimel v. California
(a) A search of the arrestee’s person and the area “within his immediate
control” —construing that phrase to mean the area from within which he
might gain possession of a weapon or destructible evidence
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(b) Dissent; J. White
[1] Court has never held that warrantless searches are necessarily
unreasonable
[2] Unreasonable to require police leave a scene to obtain a warrant when
they are already legally there
(2) Particular justification
(a) Police must, whenever practicable, obtain advance judicial approval of
searches and seizures through the warrant procedure and that the scope of
a search must be strictly tied to and justified by the circumstances which
rendered its initiation permissible
(3) United States v. Robinson
(a) There is a distinction between a search incident to arrest and a limited
search for weapons
(b) A search incident to arrest needs no additional justifications; such as the
probability of possessing fruits of the crime or weapons
(c) Powell, concurring, believes that an individual lawfully subjected to a
custodial arrest retains no significant fourth amendment interest in the
privacy of his person
(4) Whren v. United States
(a) Automobile stop is subject to constitutional imperative that it not be
unreasonable under the circumstances; as a general matter, decision to
stop automobile is reasonable where police have probable cause to believe
that traffic violation has occurred
(5) New York v. Belton
(a) When a policeman has made a lawful custodial arrest of the occupants of
an automobile he may, as a contemporaneous incident of that arrest,
search the passenger compartment of the vehicle and may also examine
the contents of any container found within the passenger compartment and
such "container", i. e. an object capable of holding another object, may be
searched whether it is open or closed.
(b) Grab area = passenger compartment and any containers
(6) Search incident to citation is not analogous to search incident to arrest
(a) Lacks the underlying rationales of the need to disarm the suspect and need
to preserve evidence for later trial
(7) Supreme Court has upheld the validity of a warrantless arrest for minor
offenses, such as a misdemeanor seatbelt violation, punishable only by a fine
d. Cars and containers
(1) Chambers v. Maroney
(a) Carroll v. United States
[1] Court held that automobiles and other conveyances may be searched
without a warrant in circumstances that would not justify the search
without a warrant of a house or an office, provided that there is
probable cause to believe that the car contains articles that the officers
are entitled to seize
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[2] The right to search and the validity of the seizure are dependent on the
reasonable cause the seizing officer has for belief that the contents of
the automobile offend against the law
(b) Where police, as result of talking to victim and teen-age observers, had
probable cause to believe that robbers, carrying guns and fruits of crime,
had fled scene in light blue compact station wagon carrying four men, one
wearing a green sweater and another wearing a trench coat, officers had
probable cause to stop automobile and search it for guns and stolen
money, and search of automobile at station house without a warrant was
not improper
(c) Not unreasonable to take the car to the station to search. Arrest happened
at night and a careful search was impractical and not safe for the officers
(2) Coolidge v. New Hampshire
(a) Warrant for search of automobile was invalid because it was not issued by
a "neutral and detached magistrate," where determination of probable
cause was made by the chief enforcement agent of the state, the Attorney
General, who was actively in charge of criminal investigation and later
was to be chief prosecutor at the trial.
(b) Searches conducted outside judicial process, without prior approval by
judge or magistrate, are per se unreasonable under Fourth Amendment,
subject only to a few specifically established and well-delineated
exceptions which are jealously and carefully drawn.
(c) Rule in Carroll does not extend to cars parked in a driveway.
(3) California v. Carney
(a) When vehicle is being used on highways or is capable of that use and
found stationary in place not regularly used for residential purposes,
justifications for vehicle exception to warrant requirement that vehicle is
readily mobile and there is reduced expectation of privacy stemming from
pervasive regulation of vehicles capable of traveling on highways comes
into play, and warrantless search is justified.
(4) Automobile Inventory
(a) 4
th
amendment does not apply to routine inventory searches
(b) Police do not have unfettered discretion
[1] Not permitted to open locked suitcase when there is no policy with
respect to the opening of closed containers encountered during an
inventory
(5) Warrantless seizure of a vehicle based on the probable cause to believe that
the car was used in a crime and therefore constituted ‘contraband’
(b) Recognized the need to seize readily movable contraband before it is
spirited away
e. Containers in cars
(1) United States v. Chadwick
(a) Warrantless searches of luggage or other property seized at the time of an
arrest cannot be justified as incident of that arrest either if the search is
remote in time or place from the arrest or no exigency exists, despite
contention that the Constitution permits the warrantless search of any
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property in the possession of a person arrested in public, so long as there is
probable cause to believe that the property contains contraband or
evidence of crime.
(b) By placing personal effects inside a double-locked footlocker, defendants
manifested an expectation that the contents would remain free from public
examination, no less than one who locks the doors of his home against
intrusion, and there being no exigency, it was unreasonable for
Government to conduct search of the footlocker without the safeguards
that a judicial warrant provides, even where agents lawfully seized the
footlocker at the time of the arrest of its owners and there was probable
cause to believe that it contained contraband.
(c) The Factors which diminish the privacy aspects of an automobile do not
apply to respondents’ footlocker
(d) A person’s expectations of privacy in personal luggage are substantial
greater than in an automobile
(2) Arkansas v. Sanders
(a) The warrant requirement applies to personal luggage taken from an
automobile to the same degree to such luggage in other locations
(3) California v. Acevedo
(a) Police may search container located within automobile, and need not hold
container pending issuance of warrant, even though they lack probable
cause to search vehicle as whole; it is enough that they have probable
cause to believe that container itself holds contraband or evidence.
(b) Police may search an automobile and the containers within it where they
have probable cause to believe contraband or evidence is contained
(4) Containers belonging to passengers
(a) Police with probable cause to search a car may inspect any passengers’
belongings found in the car that are capable of concealing the object of the
search
f. Plain-view doctrine
(1) Horton v. California
(a) Fourth Amendment does not prohibit warrantless seizure of evidence of
crime in plain view, even if discovery of evidence was not inadvertent;
although inadvertence is characteristic of most legitimate "plain view"
seizures, it is not a necessary condition.
(b) Conditions on plain view
[1] Officer must be lawfully located in a place from which the object can
be plainly seen
[2] Object must be in plain view
[3] Its incriminating character must be immediately apparent
[4] Officer must have lawful right of access to the object itself
(2) Arizona v. Hicks
(a) Officer's actions, in moving stereo equipment in order to locate serial
numbers and determine if equipment was stolen, constituted "search,"
notwithstanding that officer was lawfully present within apartment where
equipment was located in plain view.
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(b) Taking action, unrelated to the objectives of the authorized intrusion,
which exposed too view concealed portions of the apartment or its
contents, produced a new invasion of privacy unjustified by the exigent
circumstance that validated the entry
(c) Probable cause to believe that the incriminating character is immediately
apparent
g. Consent
(1) Schneckloth v. Bustamonte
(a) It is well settled that one of the specifically established exceptions to the
requirements of both a warrant and probable cause is a search conducted
pursuant to consent
(b) Limited to cases in which the consenting party is not in custody
(c) Prosecutor has burden of proving that the consent was in fact freely and
voluntarily given
(d) It would be impractical to impose on the normal consent search the
detailed requirements of an effective warning
(e) Protections of 4
th
amendment are different than those other rights of a
criminal defendant which require a strict standard of waiver
[1] Must demonstrate that the consent was in fact voluntarily given and
not the result of duress or coercion, express or implied
[2] Not required to demonstrate such knowledge as a prerequisite to
establishing a voluntary consent
(f) Voluntariness is key
[1] Totality of circumstances test
[a] Duress/coercion (actions of police)
[b] Vulnerability or sophistication of consenter
[c] Knowledge of right to deny consent
(2) A search conducted in reliance upon a warrant cannot later be justified on the
basis of consent if it turns out that the warrant was invalid
(3) United States v. Matlock
(a) Prosecution may show that permission to search obtained from a third
party who possessed common authority over or other sufficient
relationship to the premises or effects sough to be inspected
(4) Illinois v. Rodriguez
(a) Warrantless entry is valid when based upon consent of third party whom
police, at time of entry, reasonably believe to possess common authority
over premises, but who in fact does not do so.
5. The “Reasonableness” Standard
a. Terry v. Ohio
(1) Only when the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen may it be concluded that a seizure
has occurred
(2) Police officer who has reason to believe that he is dealing with armed and
dangerous individual, regardless of whether he has probable cause to arrest
may make reasonable search for weapons, even though he is not absolutely
certain that individual is armed; reasonableness of action depends not on his
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inchoate and unparticularized suspicion or hunch but on specific reasonable
inferences which he is entitled to draw from facts in light of his experience
(3) Sole justification of officer's search of person whom he has no cause to arrest
is protection of officer and others nearby, and it must therefore be confined in
scope to intrusion reasonably designed to discover guns, knives, clubs, or
other hidden instruments for assault of officer.
b. Drawing lines: “Terry Seizures” versus de facto arrests
(1) Dunaway v. New York
(a) Application of Fourth Amendment's requirement of probable cause for
seizure of defendant did not depend upon whether the intrusion was
termed an arrest under state law; his seizure, transportation to a police
station, and placement in interrogation room and questioning under
conditions in which he was not free to go was not analogous to the
narrowly defined intrusions approved in Terry.
(b) Confession given by defendant when, in violation of the Fourth
Amendment, he was seized without probable cause and taken to the police
station for questioning in hope that something might turn up, was
inadmissible where no intervening events broke the connection between
his illegal detention and his confession.
(2) Florida v. Royer
(a) Suspect fit ‘drug courier’ profile
(b) Police brought suspect and luggage to small room and suspect consented
to search
(c) Police lacked probable cause
(d) Suspect was unconstitutionally restrained when consent given
(e) Suspect reasonably believed that he was being detained and was not free
to board the plane
(3) United States v. Sharpe
(a) Court in Royer noted that an investigative detention must be temporary
and last no longer than necessary to effectuate the purpose of the stop
(b) To fall under Terry, police must investigate in a diligent and reasonable
manner
(c) Delay in this case was attributable to the evasive action of the defendant
c. Drawing lines: Seizure versus non-seizure encounters
(1) United States v. Mendenhall
(a) A person is seized only when, by means of physical force or a show of
authority, his freedom of movement is restrained. Only when such
restraint is imposed is there any foundation whatever for invoking
constitutional safeguards
(b) A person has been seized within the meaning of the Fourth Amendment
only if, in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave
[1] Subjective intent of agent to detain suspect had she attempted to leave
is irrelevant except insofar as that may have been conveyed to the
suspect
(2) Florida v. Bostick
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(a) Florida Supreme Court adopted a rule that a drug search on buses during
scheduled stops is per se unconstitutional
(b) When a person is seated on a bus and has no desire to leave, the degree to
which a reasonable person would feel that he or she could leave is not an
accurate measure of the coercive effect of the encounter
(c) Suspect’s freedom of movement was restricted by a factor independent of
police conduct
(d) The appropriate inquiry is whether a reasonable person would feel free to
decline the officer’s requests or otherwise terminate the encounter
(e) Refusal to cooperate, without more, does not furnish the minimal level of
objective justification needed for a detention or seizure
(f) Argument that no reasonable person would freely consent to search of
luggage that he knows contains drugs
[1] The reasonable person test presupposes an innocent person
(g) In order to determine whether a particular encounter constitutes a seizure,
a court must consider all the circumstances surrounding the encounter to
determine whether the police conduct would have communicated to a
reasonable person that the person that the person was not free to decline
the officer’s request or otherwise terminate the encounter
[1] Rule combines police conduct approach from Terry with individual
perception approach from Mendenhall
(3) California v. Hodari D.
(a) An arrest requires either physical force or submission to an assertion of
authority
(b)