CRIMINAL PROCEDURE OUTLINE

Criminal Procedure OutlineI can do everything through him who gives me strength. (Phil. 4:13)The 4th Amendment Right to Be Secure Against Unreasonable Searches And SeizuresI. 4th Amendment Checklist

A. Does D have standing to raise a 4th Amendment challenge to the specific item of evidence in question?

B. Did the police activity in question implicate a person, house, paper or effect?

C. Did the police activity constitute a search and/or seizure?

D. Were the search and/or seizure reasonable or unreasonable?

1. Did the police have adequate grounds to conduct the search and/or seizure?

2. Did the police act on the basis of a search warrant and/or arrest warrant?

E. If yes to previous question, then ask:

1. Did the police conduct the search and/or seizure on the basis of a warrant later declared to be invalid?

a. If yes, then consider good-faith exception.

2. Is there evidence that is a fruit of the poisonous tree?

a. If yes, fruits of poisonous tree inadmissible subject to two exceptions: the inevitable discovery doctrine, and the attenuated-connection doctrine.

II. The Threshold Requirement What is a search, what is a seizure? A. GENERAL CONSIDERATIONS

1. 4th Amendment protects against unreasonable searches and seizures. If the government activity is neither a search nor a seizure, it not regulated by the 4th Amendment and need not be reasonable

2. Interests Protected

a. Search interest in maintaining personal privacy

b. Seizure interest in:

i. Seizure of Person Being free from governmental interference / physical disruption and inconvenience (look at stop and frisk)1) an innocent person subject to a bodily seizure suffers a 4th Amendment intrusion even though he had nothing to hide

ii. Seizure of Property Retaining possession of property

1) Rarely an issue because is obvious

3. There are 3 legitimate interests, held by all citizens that can be impaired by a government intrusion:

a. Keeping control over an use of his property free from unreasonable seizures of property

b. Keeping information that may be personal or embarrassing private, even though not indicative of criminal activity

B. WHAT IS A SEARCH BEFORE KATZ Needed physical intrusion in order to violate 4th Amendment 1. Boyd v. US a. An order requiring an individual to produce business invoices was a search because it was a material ingredient and effected the sole object and purpose of a search, which was forcing from a party evidence against himself. 2. 2 Classifications

a. False Friends: If you go about talking to people secrets it is foreseeable and as an assumption of risk; you dont reasonably expect that when you tell somebody something that it is confidential and run the risk that they will tell.i. On Lee v. US (1952): informants electronic transmission of statements to a nearby law enforcement officer was not a search because the speakers consent to the presence of the informant precluded a trespass and because the speaker was talking confidentially and indiscreetly with one he trusted, and he was overheard.ii. Lopez v. US (1963): a known Internal Revenue Service agents recording of a bribe offer not a search because the suspect had consented to the agents presence in his office, and had taken the risk of recording and reproduction in court by willingly speaking to the agent.iii. Hoffa v. US (1966): informant who listened to, reported, and testified about Hoffas inculpatory remarks did not search because no interest legitimately protected by the Fourth Amendment was involved. Hoffa had not relied upon the security of his hotel room, for he had allowed the informant to enter and listen. Rather, he had relied upon his misplaced confidence that the informant would not reveal his voluntary confided wrongdoing.

b. Physical Intrusions:

i. Olmstead v. US (1928): wiretapping from outside a building was not a search because, unlike the typical searches known to our Constitutions Framers, there was no actual physical invasion and no trespass upon a protected location.ii. Goldman v. US (1942): placing a detecta-phone against the outer wall and listening to conversations inside the building not a search.iii. Silverman v. US (1961): inserting a spike mike into a party wall and picking up conversations passing through heating ducts was a search because the physical intrusion was sufficient to cross the constitutional threshold, even though it did not effect a technical trespass. iv. Clinton v. Virginia (1964): attaching a listening device to a wall by means that caused a thumbtack-sized penetration was a search.C. WHAT IS A SEARCH AFTER KATZ 2 Pronged Test1. Katz v. United States (1967)

a. Facts: The government (P) thought that Katz (D) was transmitting by phone, from a public phone booth, information related to illegal gambling activities. Although no warrant was sought or received, officers intercepted and recorded D's side of the phone conversations with an electronic listening device attached to the outside of the booth.

b. Issue: Whether listening and recording conversations with an electronic listening device attached to the outside of a public phone booth constitutes a "search and seizure," subject to 4th Amendment protections. c. Holding: Yes. One who enters a public telephone booth is "entitled to assume that the words he utters into the mouthpiece will not be broadcast to the worldd. Rationale:

i. 4th Amend. protects people, not placesii. 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.

iii. What he sought to exclude when he entered the booth was not the intruding eye -- it was the uninvited ear.iv. One, who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

2. Katz Test:

a. (1) that a person has exhibited an actual (subjective) expectation of privacy and

b. (2) that the expectation is one that society is prepared to recognize as reasonablei. Factors against reasonableness include:1) Voluntary disclosure of information to a third party who was cooperating with the government2) The failure to take precautions to safeguard ones privacy and/or the public exposure of ones activities3) The fact that a refusal to recognize a privacy entitlement would compromise nothing that society has any interest in protecting 4) The fact that the government is almost certain to learn nothing at all, nothing of significance, or nothing legitimate in the search (United States v. Jacobson, 466 U.S. 109 (1984) Agents reopening of a package that had been previously opened by Fed Ex employees who qualified as private parties1. Did not violate a legitimate privacy expectation because the removal and visual inspection of the contents enabled the agent to learn nothing that had not previously been learned (and communicated to him) during the private search A chemical field test that identified a substance found inside the package as cocaine1. Was outside 4th Amendment control because it could disclose only one fact previously unknown to the agent (whether a suspicious white powder was cocaine), which could not compromise any legitimate interest in privacy because: The fact that a substance is something other than cocaine is nothing of special interest, and The fact that a substance is cocaine is not something in which one can have a legitimate privacy interest D. APPLICATION OF KATZ PRINCIPLES

1. False Friendsa. United States v. White (1971)i. Facts: narcotics agents electronically overheard several conversations between a government informer, who was carrying a concealed radio transmitter, and White (D) while they were in the informers home without a warrant.ii. Holding: 3rd party electronic monitoring without warrant violate the 4th Amendment. 4th Amendment offers no protection to a wrongdoer's misplaced belief that one to whom he voluntarily confides will not reveal his words.iii. Rationale: No justifiable and constitutionally protected expectation that a person with whom one is conversing will not then or later reveal the conversation to the police. Undercover agent may write down his conversations with a DF, and later testify concerning his recollection of such conversations without first obtaining a warrant. No different result if agent recorded or transmitted those conversations instead of immediately writing them down.iv. Policy: Use of false friends is essential to the detection of otherwise inaccessible information about crimev. Different from Katz: In Katz, the person on the other side of the phone was not the one who talked to the police, or was even an agent. The police recorded a conversation between Katz and a third person. If we say that the 4th Amendment offers no protection to a wrongdoer's misplaced belief that one to whom he voluntarily confides will not reveal his words, it is the risk that the other person will turn to the police (or that the other person is an agent) what is not protected. Nevertheless it is a risk that is measured by the persons judgment over the character of another. When police overhears conversations that were never revealed to it, it is depriving the individual of the chance to make the judgment and the risk is not that the person will turn to the police (or is an agent), but the risk is that the conversation will be heard by the police without justification. vi. According to the professor, both, Katz and White, involve the same risk that the other person would turn against them and that the government would get the informationb. Hoffa v. US (1966) The minute you speak to another party youve lost control of those words. No reasonable expectation of privacy in the ideas or words conveyed to X because you are knowingly exposing these thoughts or ideas, therefore there is no search and no 4th amendment protection whatsoever.

2. Pen Registersa. Smith v. Maryland (1979)i. Facts: police installed a pen register, without a warrant, at the central telephone system in order to determine the identity of the numbers that the suspect was dialingii. Holding: Installation of the pen register was not a search and no warrant was required. No legitimate expectation of privacy on the numbers DF dialed because those were automatically turned over to 3rd party (telephone co.).iii. Rationale: Everyone knows the phone co. knows which numbers someone dialed from the house; therefore, there is no reasonable expectation of privacy. DF assumed the risk that the company would reveal to police the numbers he dialediv. Notes: 1) 4th amendment only triggered by government action.

2) Private actors are considered government agents if:

act at the direction or request of the government

act pursuant to government policy or regulation

act with the knowledge, acquiescence, or encouragement of the government

act with a purpose or motivation to be a government actor

3. Open Fields and Curtilagea. Oliver v. United States (1984) (Open Fields)i. The 4th Amendment is not extended to open fields. ii. Did not hold that 4th Amendment protection ceases once one passes beyond the walls of the home, there is a distinction between open field and curtilage (the land immediately surrounding and associated with the home).iii. Steps taken to protect privacy, such as planting the marihuana on secluded land and erecting fences and No Trespassing signs around the property, do not establish that expectations of privacy in an open field are legitimate.

iv. The fact that the government's intrusion upon an open field is a trespass at common law does not make it a search in the constitutional sense. In the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment.

b. United States v. Dunn (Factors to Determine Curtilage)i. the proximity of the area to the home

ii. whether there is an enclosure that surrounds both the home and the area

iii. the nature of the uses to which the area is put

iv. the steps taken to protect the area from observation

c. A warrant may be required to search curtilage, but no warrant is ever required to look through an open field it is not even a 4th amendment search because there is no expectation of privacy (Oliver and Ciraolo)

4. Access by Members of the Publica. Aerial Observationsi. California v. Ciraolo (1986) (Aerial Observation of Curtilage) 1) Facts:

Police received an anonymous telephone tip that DF was growing marijuana in his backyard, which was enclosed by two fences (10 feet high) and shielded from view at ground level.

Officers were trained in marijuana identification. They flew in a private airplane over DFs house, within navigable airspace, at an altitude of 1,000 feet, and identified and photographed the marijuana plants growing in the yard.

They obtained a search warrant on the basis of one of the officer's naked-eye observations (although the photograph was attached as an exhibit, the warrant was not based on it because the officer said that it did not depict a true representation of the color of the plants) and seized the evidence.

2) Holding: Observations of illegal activity within the curtilage, from a public vintage point, are not protected because there is not an expectation of privacy that society is prepared to honor.3) Rationale: Although defendant's yard was within the curtilage of his home, this did not bar police observation.

4th Amendment does not require officers to shield their eyes when passing by a home on public streets. 10-foot fence around his yard did not preclude an officer's observations from a public vantage point where he had a right to be and which rendered activities clearly visible. Fence might not shield from the eyes of a citizen or policeman perched on top of a truck or a two-level bus.

DFs expectation that his yard was protected from observation was unreasonable and not an expectation that society was prepared to honor. DF had no reasonable expectation of privacy because he ought to know that planes flying above his house could see his backyard from the air. Observations of illegal activity within the curtilage, from a public vintage point, are not protected because there is not an expectation of privacy that society is prepared to honor

ii. Florida v. Riley (additional note) 1) Court said surveillance in helicopter at the height of 400 feet not search because even though planes at this height would violate FAA rules, helicopters would not and can expect that anyone in helicopter can observe marijuana on this curtilage. 2) According to the court, it would have been a different case if flying at that altitude would have been contrary to law or regulation.b. Squeeze Search (Manipulation of Bag in Public Transit)i. Bond v. US (2000)1) Facts: Border Patrol Agent Cantu boarded a bus in Texas to check the immigration status of its passengers. As he walked off the bus, he squeezed the soft luggage which passengers had placed in the overhead storage space. He squeezed a canvas bag above DFs seat and noticed that it contained a "brick-like" object. After petitioner admitted owning the bag and consented to its search, Agent Cantu discovered a "brick" of methamphetamine. DF was indicted on federal drug charges. 2) Holding: the agent's manipulation of the bag was a search. his personal luggage was protected because he had a privacy interest in it. The court held that the search violated the Fourth Amendment because petitioner sought to preserve privacy in the luggage by using an opaque bag and placing that bag directly above his seat and because the agent's physical manipulation of the bag went beyond the handling that petitioner could reasonably have expected.

3) Rationale: Although a bus passenger clearly expects that other passengers or bus employees may handle his bag, he does not expect that they will feel the bag in an exploratory manner.

4) Note: Ciraolo search more like a search with a specific purpose behind it, whereas in Bond, it was a random search 5. Technology to Enhance Inspectiona. Kyllo v. US (2001)i. Facts: Agents used a thermal imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. Based in part on the thermal imaging, a Federal Magistrate Judge issued a warrant to search Kyllo's home, where the agents found marijuana growing. ii. Issue: Whether the thermal-imaging aimed at a private home from a public street, constitutes a search under the Fourth Amendmentiii. Holding: Obtaining information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, such as petitioner's private residence, constituted a search, at least where the technology was not in general public use. Since thermal imaging technology was not in general public use, such surveillance was a search and was presumptively unreasonable without a warrant. Whether the search warrant was supported by probable cause without the surveillance evidence was for the trial court to determine in the first instance.iv. Rationale: the 4th Amendments protection of the home has never been tied to measurement of quality or quantity of information obtained. All details in the home are intimate details, because the entire area is held safe from prying government eyes. The Fourth Amendment draws "a firm line at the entrance to the house." That line, we think, must be not only firm but also bright -- which requires clear specification of those methods of surveillance that require a warrant.v. Rule: Where the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment "search," and is presumptively unreasonable without a warrant.

E. WHAT IS A SEIZURE (look at Chapter 5 stop and frisk)

1. Interests Protected:

a. Seizure of Property Retaining possession of property

i. Rarely an issue because is obvious

b. Seizure of Person Being free from governmental interference / physical disruption and inconvenience i. an innocent person subject to a bodily seizure suffers a 4th Amendment intrusion even though he had nothing to hide

III. Probable Cause

A. GENERAL CONSIDERATIONS1. The substance of the protection provided by the 4th Amendment is contained within 2 separate clauses: first, the unreasonableness clause, and second, the warrant clause. 2. Probable cause to arrest requires that there be a certain quantum of likelihood that:a. That particular individualb. Has committed or is committing a particular offense

3. Probable cause to search requires that there be a certain quantum of likelihood that:a. something that is properly subjected to seizure by the government, i.e., contraband or fruits, instrumentalities, or evidence of a crimeb. is presently c. in the specific place to be searched

4. Probable cause does not require certainty, but only a sufficient likelihood. The question is, what is the necessary quantum or level of probability required by the 4th Amendment

a. There is an inherent demand for current information in determinations of probable cause:

i. The object of the search must be sufficiently likely to be in the place to be searched at the time of the search.

ii. The mere passage of time is likely to diminish the probability that an item that was in a particular place still remains in that location.

iii. Information that forms the basis for a determination of probable cause to search is subject to challenge as too stale, which means that it is no longer sufficiently supportive of the conclusion that the sought item is currently located in the place to be searched. 5. One of the concerns inherent in the early stages of the 4th Amendment was not the there were warrantless searches; rather it was that the warrants were too broad and the judges and police had too much discretion.

6. One thing to think about is that everyone could know details about another person B. INFORMATION FROM INFORMANTS1. Draper v. US (1959)(known and reliable informant + verification)a. Facts: Agent was given information by a known informer who had proved reliable in the past, that DF would arrive from a specific train on either of two days, wearing certain clothing, and carrying a tan zipper bag, and would be walking fast, and carrying narcotics. The agent observed DF who fitted the description arriving from one of the named trains and arrested him without a warrant. A search of DF turned up two envelopes containing heroin and a search of his bag revealed a syringe.

b. Issue: Is there probable cause for arrest?c. Holding: Yes. Where agent is given info by a known and reliable informer and agent verified the information, there is probable cause. Therefore, the heroin discovered in search incident to lawful arrest which agent effected after so observing defendant was competent evidence.d. Rationale: The informant was known to be accurate and reliable and the police could independently verify every facet of the tipe. This was a loose test. If someone tips some details and there are enough details that match, the police could get a warrant and conduct a search.

2. Spinelli v. US (1969)(Higher Threshold than Draper)a. Facts: DF was convicted for traveling to Missouri from Illinois with the intention of gambling. He challenged the search warrant. Warrant was based on: 1) The FBI had tracked DF for 5 days, during four of which he traveled from Illinois to a certain apartment house in Missouri, and on one day he was tracked to a specific apartment; 2) 2 phone numbers were associated with the specific apartment; 3) The government officials stated that this person was a known bookie; and 4) A reliable informant told the FBI that DF was a bookie and used the 2 phone numbers associated with the apartment in Missouri.b. Issue: Whether the informants tip provide probable cause.

c. Holding: No. Informants tip does not provide probable cause for a search warrant if the tip (1) does not state reasons why the informant is reliable and (2) does not include specifics regarding the facts known by the informant in sufficient detail so that the Magistrate may independently judge the validity of the informants information.

d. Rationale: In this case, there are no facts provided in the informant's tip to explain why the informant thought D was involved in gambling. Also the affiant-officers failed to support their claim that their informant was "credible" or his information reliable.

e. Aguilar-Spinelli Test. The informant must: i. Declare the basis of knowledge or basis of information the particular means by which he came by the information. He can do so by declaring either: 1) That he has himself seen or perceived the fact or facts asserted, or2) That his information is hearsay, but there is a good reason for believing itii. Provide facts sufficiently establishing either the veracity of the affiants information, or, alternatively, the reliability of the informants report

f. Notes: i. Why did the Court adopt the two-pronged test? What is so wrong in that the police search our homes with a warrant, even if they are nice? 1) In our society, people do not expect the government to come in and search our houses, regardless of whether there is something or not in the house.2) The test might help define what judges must require from the officers and at the same time protect the Court from being overturned because of an unsubstantiated warrant.

ii. Spinelli constitutes a significant development of the doctrine in Aguilar; Aguilar dealt only with hearsay alone, while Spinelli involved a factual mixture of hearsay and police investigation. The 2 together gave rise to the Aguilar-Spinelli two-pronged test.

3. Illinois v. Gates (1983) (Going back totality of circumstances, Spinelli only a factor)a. Facts: i. Police received an anonymous letter stating that the DFs made their living by trafficking in drugs. It set forth a modus operandi of how they obtained the drugs and gave dates for the next purchase. It indicated that DF had $100,000 worth of drugs stored in their house. ii. Police were able to confirm that DFs activities were as predicted in the letter, i.e., the wife drove her car to Florida and checked into a room and that the husband had reservations to fly to Florida. Police surveillance confirmed that the couple and car headed north the day after the husband arrived in Florida. iii. Based on this information, a search warrant was issued. The car search revealed marijuana, and the search of D's house revealed drugs, weapons, and other contraband.b. Procedure: Illinois Supreme Court suppressed the evidence because the search warrant was based on a confidential informant's tip that did not satisfy the Aguilar-Spinelli "veracity" and "basis of knowledge" prongs for probable cause.c. Issue: Is an anonymous letter alleging criminal activity with detailed modus operandi, coupled with a policeman's affidavits confirming activity conforming to aspects of the modus operandi, sufficient to constitute probable cause even if Aguilar-Spinelli test is not satisfied?d. Holding: Yes. Court abandoned the rigid Aguilar-Spinelli two-pronged test and adopted a totality-of-the-circumstances approach. Informant's recitation of detailed facts, though relating to innocent activities, when corroborated by observation by police officers, afforded probable cause to believe that respondents had drugs in their possession. e. Rationale: The informant's veracity, reliability, and basis of knowledge are all highly relevant considerations in the totality-of-the-circumstances analysis. But strong evidence as to one prong can make up for the weakness on the other prong.

f. Notes:

i. Gates adopts a totality of the circumstances approach. To describe what it entails, the Court says 2 things:1) The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.2) An affidavit must provide the magistrate with a substantial basis for determining the existence of probable causeii. Why did the Court eliminate the Aguilar-Spinelli rule?1) Majority said that the Aguilar-Spinelli test was being over-technically applied and the magistrates were over broadly denying warrants2) The informants do not always fit both parts of the test 3) Officers would rather take their chances and conduct a warrantless search, expecting to fall under one of the exceptions, rather than going to a judge to get a warrant4) Court is almost saying that this test is too difficult for the people to follow iii. What are the protections afforded by the new rule?1) Remember Prof. Ronners example of student accusing her of dealing drugs, because she failed the student, based on normal conduct but describing specific details about her. Does the new test afford protection against untrue assertions?

iv. Despite Gates, a number of state courts continue to adhere to the Aguilar-Spinelli doctrine State courts are free to grant their citizens the greater privacy and liberty protection afforded by the Aguilar-Spinelli two-pronged test.

v. Massachusetts v. Upton, 466 U.S. 727 (1984)1) Court explained that the SC had not merely refined or qualify the two-pronged test. Rather, the court rejected it as hyper-technical and divorced from the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

C. THE NATURE OF PROBABLE CAUSE OBJECTIVE TEST1. Whren v. US (1996)(Probable Cause is Objective Analysis) a. Facts: Officers saw DFs car stop 20 seconds in a high drug area. It then made a right turn without making a turn signal and then drove off at unreasonable speed (traffic violations). They stopped the car and as one officer walked to the car, he spotted 2 large plastic bags of drugs and arrested DFs. b. DFs Arguments: Officers traffic-violation ground for stopping the truck was pretextual. What the officer really wanted was to conduct investigation of a crime the officers had no probable cause for. The test should be whether a police officer, who acted reasonably, would have stopped the car for the given reasonc. Holding: The temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment's prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objectived. Rationale: i. Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the meaning of this provision. 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; subjective intentions play no role in ordinary, probable-cause 4th Amendment analysis. e. Notes: i. Scalia believes that the 4th Amendment does not protect against racial discrimination, the Equal Protection Clause does. Therefore, he says, if an officer is using racial profiling, you can bring a 1983 action in civil court. However, the Equal Protection Clause is inefficient and impractical because:

1) You must prove that the officer had intent to discriminate it is very hard to prove it.

2) Victims of such conduct dont file a suit for this because they feel they dont have the time, resources, etc, to conduct a case where the police didnt find anything

3) Most dont know it exists

4) If the person lives in a high crime zone, is it wise for you to bring an action against the police? Usually, that person would not like to be the person that caused the police to get mad at the neighborhood

IV. Search Warrants

A. GENERAL CONSIDERATIONS1. Fourth Amendment text does not explicitly demand a warrant to search or to seize. 2. Also, historical origins of the Amendment do not reveal a concern with threats posed by warrantless searches or seizures. However, it does reveal that it was not the prospect of warrantless searches and seizures, but, rather, the abusive use of warrants to search and seize, that troubled the Framers of the Constitution. 3. The second clause of the Fourth Amendment the warrant clause was designed to prevent the threats and eliminate the abuses. 4. The SC has also discerned certain implicit restrictions upon the issuance and execution of warrants. The warrant must reasonable in its

a. Issuance

i. Neutral detached magistrate (Johnson, Connally, Coolidge)ii. Probable cause

1) Judged in light of the information available to the officers at the time they obtained the warrant (Garrison)iii. Particular place to be searched (Garrison)iv. Particular things to be seized (Andersen, Groh)b. Execution:

i. Whether the officers' failure to realize the over-breadth of the warrant was objectively understandable and reasonable (Garrison)ii. Knock and announce (Wilson)B. WARRANT REQUIREMENTS 1. The Neutral and Detached Magistrate Requirement a. Johnson v. US (1948) i. Facts: Police received information from a confidential informer that unknown persons were smoking opium in a hotel. They went to there and recognized the strong odor of burning opium, which led them to DFs room. Officers knocked on the door, DF let them in and the police talked to her, and asked her about the opium smell, which defendant denied noticing. The officers arrested her and searched the room, turning up incriminating opium and smoking apparatus. ii. Issue: Whether police needed a warrant to enter the room

iii. Holding: Yes.

iv. Rationale:

1) Entry to defendants living quarters was demanded under color of office. It was granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right. 2) At this time, the officers needed evidence which a judge might have found to be probable cause for a search warrant and get the warrant from him. 3) This was not a search incident to an arrest because the officers did not have probable cause to arrest before entering the room and even if they did, there were no exigent circumstance to enter.

4) 4th Amendments protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Police cannot make assumptions to what a judge would decide, because it would reduce the 4th Amendment to nullity and leave the people's homes secure only in the discretion of police officers. But look at the Good Faith Exception

v. Rules: When the right of privacy must reasonably yield to the right of search is to be decided by a judicial officer, not by a policeman or government enforcement agent. An officer gaining access to private living quarters under color of his office and of the law must then have some valid basis in law for the intrusion.

vi. Per se Rule: Police need a warrant to search, especially if it is in a home. Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. Such searches are held unlawful notwithstanding facts unquestionably showing probable cause.b. Connally v. Georgia (1977) magistrate who received $5 for issuing a warrant was not constitutionally qualified.c. Coolidge v. New Hampshire (1971) The individual must also not be affiliated with law enforcement. Warrant issued by state Attorney General in his capacity as a justice of the peace was unconstitutional.

d. While individuals that issue the warrants need not be trained lawyers, they must be capable of determining whether probable cause exists for the arrest or search.

2. Probable Cause Facially Sufficient Affidavit (look at section on Probable Cause)a. A warrant is not validly issued unless it is supported by probable cause. Probable cause does not require certainty; a fair probability will suffice. Consequently, a probable cause showing is not invalidated by the fact that the conclusions it supports turn out to have been mistaken. b. A warrant is subject to a Fourth Amendment challenge if the officer supplying the basis for the warrant intentionally or recklessly furnishes false information to the issuing magistrate. i. In the event that at the hearing the allegation of perjury is established by a preponderance of the evidence, and, with the affidavits false material set to one side, the affidavits remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. 3. Particular Description of Things to be Seizeda. Andersen v. Maryland (1976)i. Facts: DF acting as a settlement defrauded the purchase of some land. The investigators obtained warrants to search DFs offices. The warrants listed specified items pertaining to Lot 13T to be seized and every item finished with the phrase: "together with other fruits, instrumentalities and evidence of crime at this [time] unknown." At trial, a number of the seized items (including documents pertaining to a lot other than Lot 13T but located in the same subdivision and subject to the same liens as Lot 13T) were admitted in evidenceii. Issue: Whether the descriptive terms of the search warrants were so broad as to make them impermissible general warrants, in violation of the Fourth Amendmentiii. Holding: No. The "together with" phrase must be read as authorizing only the search for and seizure of evidence relating to the crime of false pretenses with respect to Lot 13T.iv. Rule: General warrants are prohibited by the Fourth Amendment, since it requires particular description of the things to be seized; nothing is left to the discretion of the officer executing the warrant.v. Notes:1) The warrant did not se forth the list of the contraband and did not say that it would adopt and incorporate the list in the application2) There is a balance. On one hand, you dont want to give a warrant so broad that would equate to warrantless. However, on the other hand, you want to give the law enforcement some leeway to find evidence in such complex matters.3) Should search warrants that contain both sufficiently particular and too general sections be treated as severable and, therefore, partially valid, or should they be considered wholly invalid due to the general portion.

SC has not addressed the question, but see

1. US v. Kow (9th Cir. 1995) warrant could not be severed when the valid part of the warrant was a relatively insignificant part of a search that was otherwise invalid

2. US v. Brown (10th Cir. 1993) warrant contained language which was overbroad, but that it could be severed from the rest of the valid warrant

3. US v. George (2d Cir. 1992) warrant could be severed but severance would not be appropriate if no portion of the warrant was sufficiently particularizedb. Groh v. Ramirez (2004)

i. Facts: Although the application described the contraband that was sought (automatic firearms, automatic weapon parts, destructive devices, and receipts pertaining purchase of those items), the warrant itself did not; it only said the magistrate was satisfied with the affidavit in order to find probable cause (but the affidavit was not attached to the warrant either).

ii. The search uncovered no illegal weapons or explosives but the owners of the ranch filed a 1983 civil action claiming violation of Fourth Amendment rights. iii. Holding: Warrant was invalid and that the search was unreasonable because the warrant itself did not specify the items to be searched nor had attached the affidavit. iv. Reasoning: 4th Amendment requires particularity in the warrant, not in the supporting documents. Furthermore, the warrant did not incorporate other documents by reference, nor did either the affidavit or the application accompany the warrant. v. Rule: Searches whose only defect is a lack of particularity in the warrant are presumptively unreasonable. 1) Unless the particular items described in the affidavit are also set forth in the warrant itself (or at least incorporated by reference, and the affidavit present at the search), there can be no written assurance that the Magistrate actually found probable cause to search for, and to seize, every item mentioned in the affidavit.

2) A particular warrant also 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. vi. Compare with US v. Leon and Massachusetts v. Sheppard (Good Faith Exception). The Court makes 2 distinctions, saying that in Groh:1) The warrant described none of the items to be seized and did not cross-referenced it with the affidavit. It seems that this would make unreasonable any reliance on the warrant.

2) 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. Even though petitioner acted with restraint in conducting the search, the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer.

In Sheppard, the judge had assured the officers that he would take the steps necessary to fix the warrant to constitutional requirements. Thus, it was not unreasonable for the police in that case to rely on the judges assurances that the warrant authorized the search they had requested.

In this case, by contrast, officer did not alert the Magistrate to the defect in the warrant that he had drafted, and therefore we cannot know whether the Magistrate was aware of the scope of the search he was authorizing.

Finally, since there were no items described, it would not have been reasonable under Leon for the officer to rely on a warrant that was so patently defective, even if the Magistrate was aware of the deficiency.

4. Particular Description of Place to be Searched AND Reasonable Execution of the Warranta. Maryland v. Garrison (1987)i. Facts: Officers obtained warrant for a third floor apartment. The warrant was ambiguous based on the info that the police submitted to the Magistrate. They believed that there was only 1 apartment on the third floor but in fact there were 2. One owned by the person owner of the apartment in the warrant and the other by the DF. Before the officers became aware that they were in respondent's apartment, they discovered the contraband.ii. Issue: Whether the seizure of the contraband in DFs apartment, not described by the warrant but reasonably believed by the police, was prohibited by the Fourth Amendmentiii. Holding: The warrant was valid when it was issued and the officers' execution of the warrant reasonably included the entire third floor, and their conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched iv. Rationale/Rules: 1) Validity of the warrant must be judged in light of the information available to the officers at the time they obtained the warrant. The discovery of facts demonstrating that a valid warrant was unnecessarily broad does not retroactively invalidate the warrant. 2) The validity of the search depends on whether the officers' failure to realize the over-breadth of the warrant was objectively understandable and reasonable, and it unquestionably was. The facts available to the officers at the time suggested no distinction between the 2 apartments on the 3rd floor. v. Notes:1) Dissent argued that there were 7 mailboxes and the officers rang the 7 door bells waiting for someone to open up and let them in they should have known that it was possible that there was more than one apartment on the third floor

2) One possible repercussion is that the police might slack off in the future and rely on what they know or should have known at the time the warrant was issued, rather than investigating thoroughly. Most importantly, however, this rule could be abused and will likely result in extended searches on multi-family buildings usually occupied by poor people and minorities. Same effect as Atwater, Leon and Sheppard. police may detain a person during search of residences

limited in that it is only for warranted search and contraband

C. EXECUTING THE WARRANT1. Knock and Announce Requirementa. Wilson v. Arkansas (1995)i. Facts: Police officers, in executing a search warrant, entered through an unlocked screen door without first knocking or announcing their presence. DF asserted that the search of her home was invalid because the police had violated the common-law principle requiring them to announce their presence and authority before entering. ii. Holding: The common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry and a search or seizure of a dwelling might be constitutionally defective if police officers entered without prior announcementiii. Rationale:

1) Given the longstanding common-law endorsement of the knock and announce practice there is little doubt that the Framers thought that whether officers announced their presence and authority before entering a dwelling was among the factors to be considered in assessing a searchs reasonableness2) However, countervailing law enforcement interests may establish the reasonableness of an unannounced entry. Examples: the threat of physical harm to police, the fact that an officer is pursuing a recently escaped arrestee, and the existence of reason to believe that evidence would likely be destroyed if advance notice were given

iv. Notes:1) This is a case-by-case analysis, not a bright-line rule. Reasonableness is the key.

2. Exceptions to the Knock and Announce Requirement Entry Without Notice or by Forcea. What Justifies an Exception to the Knock and Announce Requirement? i. Richards v. Wisconsin (1997)

1) Trial court imposed a per se exemption on cases involving felony drug investigation2) SC reversed Court reasoned that there were 2 serious concerns with creating exceptions:

1. Overgeneralization

2. The reasons for creating an exception in one category could, relatively easily, be applied to others3) Rules: There is no per se exception to the knock-and-announce requirement, the court must determine whether the facts and circumstances of the particular entry justified an exception in that case

What justifies an exception to the knock and announce requirement?

1. reasonable suspicion that knocking and announcing their presence, under the particular circumstances,

2. would be dangerous or futile, or

3. would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence Note: this standard (as opposed to a probable cause requirement) provides a balance between the legitimate law enforcement concerns in the execution of search warrants and the individual privacy interests affected by no-knock entries.

Allowing Magistrates to issue warrants that authorize officers to enter without knocking and announcing seems reasonable when sufficient cause to do so reasonable suspicion that entry without prior announcement will be appropriate in a particular context can be demonstrated ahead of time.

4) Note: The courts do not want per se rules regarding exigent circumstancesb. What if Officers Must Brake In or Damage Property?

i. United States v. Ramirez (1998)1) Facts: Police officers entered DFs house without knocking and announcing by braking a window in DFs garage

2) Procedure: 9th Circuit held imposed a heightened standard. The SC reversed.

3) Issue: Whether the reasonable suspicion standard applies when the entry results in the destruction of property, or whether there is a heightened standard.

4) Holding: The reasonable suspicion in Richards does not depend on whether police must destroy property in order to enter.

5) Rationale/Rules:

Unannounced entry is permissible based on a reasonable suspicion, and the constitutionality of the entry is not altered by the fact that property was damaged or destroyed during the entry.

The seizure involved in excessive or unnecessary destruction of property in the course of a search during a no-knock entry could be constitutionally unreasonable and could support a claim for damages (civil suit). However, the entry itself is lawful and the fruits of the search not subject to suppression.

US v. Ritelli( unclothed couple case where the court said the search was reasonable because cops could have thought they were associated with the suspects.

3. Exigent Circumstances After Knocking When can the Officers Brake In After Knocking?

a. United States v. Banks (2003)i. Facts: Officers executing a warrant for cocaine knocked on the door and, after waiting 15 to 20 seconds, and with no indication whether anyone was home, broke open the front door with a battering ram (D was in the shower).

ii. Procedure: Trial court denied Ds motion to suppress. The Court of Appeals reversed, setting forth 8 factors that officers should consider in deciding when to enter and delineated 4 categories of intrusion following a knock and announcement, concluding that different standards of reasonableness applied to each category. SC reversed.

iii. Issue: Whether the entry was constitutional where the police only waited 15 to 20 seconds to brake in after they knocked and announced.

iv. Holding: Yes; after 15 to 20 seconds without a response, police could fairly suspect that the cocaine would be disposed of if they were waited any longer.

v. Rules:1) Reasonableness of warrant execution must be determined case by case based on the totality of the circumstances2) The identical reasonable suspicion standard dictates whether officers are exempt from the ordinary obligation to wait before entering premises following a knock and announcement.

3) The facts known to the police are what count in judging reasonable waiting time.

vi. Note: there are other 2 general observations from Banks:

1) When officers justify an entry after a knock and announcement on the ground that an occupants failure to admit them fairly suggested a refusal to let them in, the reasonableness of suspecting refusal turns on whether an occupant has had time to get to the door.

The time needed to respond will vary with the size of the establishment.2) The need to damage property does play a role in assessing the reasonableness of entry in cases with no reasons to suspect an immediate risk of frustration or futility in waiting at all.

The need to damage property is a good reason to require more patience than it would be reasonable to expect if the door were open.

4. Scope of Execution What is the Scope of Polices Authority?a. Although a warrant is valid, the execution of the warrant might be unreasonable because of officers have exceeded the scope of their authority under the warrant

i. Example: warrant to search stolen computer within the house where the computer might be found searches of places too small to fit the computer are unreasonable

b. Wilson v. Layne (1999)i. Facts: Officers invited representatives of the media while executing an arrest warrant in a private home. Officers did not know that the address in the papers was in fact the suspects fathers house. They arrived and subdued the father thinking it was in fact the suspect, while the photographer was taking numerous pictures, although none were published. The father filed a civil suit for damages for violations of his Fourth Amendment rights.

ii. Issue: Whether the police exceeded the scope of its authority under the arrest warrant by permitting the media to accompany them during the execution of an arrest warrant.

iii. Holding: Yes. The presence of the photographer and reporter was not related to the objectives of the authorized intrusion. It is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home is not in aid of the execution of the warrant.

iv. Reasoning: This was not a case in which the presence of the third parties directly aided in the execution of the warrant. Although the media ride-along may further the law enforcement objectives of the police in a general sense, this is simply not enough to justify the intrusion into a private home.

v. Rule:1) A search that is otherwise reasonable can be rendered unconstitutional because the scope of the search exceeds that permitted by the terms of a validly issued warrant.

2) Fourth Amendment requires that police actions in execution of a warrant be related to the objectives of the authorized intrusion.D. WARRANT REQUIREMENT AND SEIZURE OF PERSONS1. Arrests in Publica. US v. Watson (1976)i. Facts: Postal inspector received info from a known and reliable informant that DF was stealing credit cards from the mail and had given one to him and agreed to give him more. At the inspectors suggestion, a meeting was arranged DF and the informant. Upon a prearranged signal from the informant that DF had the additional cards, postal officers made a warrantless arrest, removed him from the restaurant, and gave him Miranda warnings. When they could not find the cards on him, DF consented to a search of his car which was nearby and the police found the stolen credit cards there. ii. Issue: Whether the warrantless arrest was unreasonable under the 4th Amendmentiii. Holding: No. The arrest was based on probable cause; therefore, it did not violate the Fourth Amendment. Since the arrest comported with the Fourth Amendment, DFs consent to the car search was not the product of an illegal arrest.iv. Rule: An officer is permitted to arrest without a warrant for (1) a misdemeanor or felony committed in his presence as well as (2) for a felony not committed in his presence if there was reasonable ground for making the arrest.

v. Notes:1) The rule permits warrantless arrest where there is probable cause, even if the officer had adequate opportunity to procure a warrant2) This case deals with arrest in a public place, not the home3) Why is it different from searches? Isnt an arrest more a pervasive deprivation of liberty and privacy? Why dont the police need a warrant? Court says because that is how it has been done throughout history

This resembles Justice Rehnquists acceptance of Miranda in Dickerson4) Dissent argued that in history, felonies were only the horrific crimes. Today, the ancient rule is not good because there are so many felonies that it is just not reasonable. 5) Gerstein v. Pugh (1975) 4th Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest. States must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and that determination must be made by a judicial officer either before of promptly after arrest.

6) County of Riverside v. McLaughlin (1991) Judicial determinations of probable cause within 48 hours of arrest complies with the promptness requirement. When it takes more than 48 hours, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance

b. Atwater v. City of Lago Vista (2001)i. Facts: DF drove her truck in Lago Vista, Texas, with her small children in the front seat. None of them was wearing a seatbelt (misdemeanor). The officer saw the violation, stopped her, verbally berated her, and then arrested her. ii. Holding: 4th Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. Rationale: 1) Court rejected DFs request to mint a new rule of constitutional law forbidding custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time and the government can show no compelling need for immediate detention for 4 reasons: It is hard for the police officers to apply It would be more work deficient administration It would flood the courts of litigation Legislature is the appropriate body to apply such a rule

2) The arrest satisfied constitutional requirements. It is undisputed that the officer had probable cause to believe that DF committed a crime in his presence. The officer was authorized (though not required) to make a custodial arrest without balancing costs and benefits or determining whether Atwater's arrest was in some sense necessaryiii. Rule: If an officer has probable cause to believe that an individual has committed even a very minor criminal offense (traffic violation) in his presence, he may, without violating the Fourth Amendment, arrest the offender. Standard of probable cause applies to all arrests, without the need to balance the interests and circumstances involved in particular situations.

iv. Notes:1) This rule might give place for police officers racial profiling. The police can choose who to arrest and who to be lenient with.

2) Although the majority conceded that Atwaters claim to live free of pointless indignity and confinement clearly outweighs anything the City could raise against it specific to her case, the Court found the arrest to be reasonable because it only required probable cause that a she had committed a crime (traffic violation), without weighing any interests.

2. Arrests in the Housea. Warrant may be required where the police wish to arrest a person in his home in the absence of exigent circumstances b. Payton v. New York (1980)Entry of the house without any warrant i. Facts: Officers had probable cause to believe that DF had murdered (a felony) the manager of a gas station and went to his apartment without a warrant. They knocked but no one responded, even though there was light and music in the apartment. 30 minutes later, the police broke the door open and found there was no one there. However, they found, in plain view, a .30 caliber shell casing, which was seized and used at a trial against Payton. Payton moved to suppress the evidence.

ii. Issue: Whether an arrest warrant is required for an in-house arrestiii. Holding: Yes. Absent exigent circumstances, the 4th Amendment bars warrantless, nonconsensual entry into a home to make a routine arrest.iv. Rationale:

1) Physical entry of the home is the chief evil against which the 4th Amendment is directed.

2) To be arrested in the home involves not only the invasion of the person, but also an invasion of the sanctity of the home, which is too substantial an invasion to allow without a warrant, in the absence of exigent circumstances, even when probable cause is present.

3) An entry to arrest and an entry to search for and to seize property implicate the same interest in preserving the privacy and the sanctity of the home, and justify the same level of constitutional protection.4) It is true that the area that may legally be searched is broader when executing a search warrant than when executing an arrest warrant in the home. See Chimel v. California, 395 U.S. 752. This difference may be more theoretical than real, however, because the police may need to check the entire premises for safety reasons, and sometimes they ignore the restrictions on searches incident to arrest. But the critical point is that any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual's home.5) Cops want to search professors house on Tuesday at 5pm while she is teaching then we can get a warrant to arrest her; can they do that? No because the professor was not there and they needed to have probable cause that she is there. 6) Review( in order for a search warrant you need probable cause and that the seizable items will be on the property at the time of the search.3. Arrests in the Curtilagea. US v. Santana (1975) (See Exigent Circumstances)i. Facts: One of the DFs was standing in the doorway of her house when the police arrested her (with probable cause) without a warrant for possessing heroin with intent to distribute.ii. Holding: Court held that the search was ok based on the hot pursuit. However, in order to apply the hot pursuit, the first question is whether a warrant is needed. iii. Note: 1) Does Santana overrule the curtilage protection cases? No. The Courts determination seems to be that, under the 4 Dunn factors, the doorway was not curtilage.

The same could be said about Ciraolo. 2) The holding about the propriety of a warrantless arrest in Santana is arguably a narrow one, limited by the specific facts of the case There was no barrier or obstruction that impeded the public from seeing, speaking to, hearing, or even touching DF as she stood in her front doorway. When the officers stopped their vehicle in front of the home, they were a mere 15 feet from that doorway. 3) The key question is whether the person is in a public place (or open fields) in view of the factors in Dunn. 4. Arrests in a third partys housea. Steagald v. United States (1981)Entry of a third partys house with arrest warranti. Facts: Police obtained an arrest warrant for Lyons, a federal fugitive wanted for drug charges. Based on information received from a confidential informant, DEA agents entered Steagalds home to search for Lyons without first obtaining a search warrant for Steagalds home. In the course of searching the home the agents found cocaine and other incriminating evidence but did not find Lyons. Steagald was arrested on federal drug charges.

ii. Issue: Whether the police need a search warrant to enter the house of a third party while looking for the person described in the warrantiii. Holding: Yes. A search warrant must be obtained to look for a suspect in the home of a third party, absent exigent circumstances or consent.

iv. Rationale:

1) Two distinct interests were implicated by the search in this case -- Lyons' interest in being free from an unreasonable seizure and DFs interest in being free from an unreasonable search of his home. Because the arrest warrant for Lyons addressed only the former interest, the search of DFs home was no more reasonable than it would have been without any warrant.

2) With only the arrest warrant, the Magistrates determination is that there is probable cause to arrest a person, it doesnt specify the location. DFs only protection from an illegal search was the agents personal determination of probable cause, and not that of a neutral and detached magistrate, to believe that the subject of the warrant was in DFs house.

3) Otherwise, the police could search all the homes of the individuals friends and acquaintances with only one arrest warrant.

4) A search warrant requirement under the circumstances of this case will not significantly impede effective law enforcement efforts. An arrest warrant alone suffices to enter a suspect's own residence, and, if probable cause exists, no warrant is required to apprehend a suspected felon in a public place. Moreover, the exigent-circumstances doctrine significantly limits the situations in which a search warrant is needed. And in those situations in which a search warrant is necessary, the inconvenience incurred by the police is generally insignificant. v. Rule: A search warrant must be obtained, absent exigent circumstances or consent, for an officer to search for the subject of an arrest warrant in the home of a third party.vi. Note: Payton and Steagald are related to Watson (arrest in public) in that they involve felony arrests. However, Payton and Steagald involve the validity of warrantless entries of dwellings to perform such searches.

vii. Standing: Would Lyons (subject of the arrest warrant) have objected to the lack of search warrant if the police had found him in the home? 1) Probably not, Steagald was worried with the owners privacy rights, not with the visiting arrestee. Even if he can prove that he had a legitimate expectation of privacy under Rakas, courts would usually hold that the arrestee cannot claim any greater protection in the house of a third party than he possessed in his own home pursuant to Payton. V. Exceptions to the Warrant Requirement

A. OVERVIEW1. Searches and seizures inside a man's house without warrant are per se unreasonable in the absence of some one of a number of well defined "exigent circumstances.

2. Warrant requirement is subject to few, specifically established and well-delineated exceptions:a. Searches incident to arrest i. The rule was stated in Chimelii. The rule was expanded in Robinson and in Belton b. Exigent circumstances searchesc. Automobile doctrine searchesd. Inventory searchese. Consent searchesf. Plain view seizures 3. For each, 3 aspects should be identified:a. WHY The underlying rationale of the exception

b. WHAT NEEDS TO BE SHOWN The precise showing necessary to invoke the exception

c. SCOPE The scope of the warrantless authority conferred by the exception

EXCEPTIONS TO THE WARRANT REQUIREMENT

ExceptionRationaleShowingScope

Search Incident to Arrest

Exigent CircumstancesIts unrealistic to expect officers to stop in the middle of a chase to get a warrant. Suspect could escape, destroy evidence or create threat to public safety

Automobile Searches

Inventory Searches

Consent Searches

Plain View Seizures

Stop and Frisk

B. SEARCHES INCIDENT TO ARRESTS1. Spatial Limitationsa. Chimel v. California (1969) Area within arrestees immediate controli. Facts: Officers, armed with an arrest warrant for an alleged burglary but not a search warrant, were admitted to DFs home by his wife, where they awaited for him. When he entered he was served with the arrest warrant. Although DF denied the officers request to look around, they conducted a search of the entire house on the basis of the lawful arrest, and seized evidence of burglaryii. Issue: Whether the officers could perform a search, and if so, if they could do it of the entire house as a constitutionally valid search incident to Ds arrest. iii. Holding: Assuming the arrest was valid, the warrantless search of DFs house cannot be constitutionally justified as incident to that arrest. The scope of the search here was unreasonable under the Fourth and Fourteenth Amendments, as it went beyond DFs person and the area from within which he might have obtained a weapon or something that could have been used as evidence against him, and there was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area.iv. Rationale: There is no justification for routinely searching any room other than that in which an arrest occurs or for searching through all the desk drawers or other closed or concealed areas in that room itselfv. Rule: Officer may search: 1) the arrestees person to discover and remove weapons and to seize evidence to prevent its concealment or destruction, and 2) the area within arrestees immediate control, meaning the area from which he might gain possession of a weapon or destructible evidencevi. Note: This is a 2 prong test:

1) Weapons that could endanger officers2) Destructibility of evidenceb. New York v. Belton (1981) Area where the DF is a recent occupanti. Facts: DF was a passenger in an automobile that sped by a police officer at an excessive rate of speed. In the process of discovering that none of the occupants owned the car or was related to the owner, the policeman smelled burnt marihuana and saw on the floor of the car an envelope that was marked Supergold, a name for marihuana. He directed the occupants to get out of the car and arrested them for unlawful possession of marihuana. After searching each of the occupants, he searched the passenger compartment of the car, found a jacket belonging to DF, unzipped one of the pockets, and discovered cocaine.

ii. Holding: The items seized in the warrantless search of the vehicle's passenger compartment, incident to defendant's lawful custodial arrest, were justifiably seized because of the exigencies (lawful custodial arrest).iii. Rationale:

1) The search of respondent's jacket was a search incident to a lawful custodial arrest, and hence did not violate the Fourth and Fourteenth Amendments. 2) The jacket, being located inside the passenger compartment of the car, was within the arrestee's immediate control within the meaning of Chimel.3) Not only may the police search the passenger compartment of the car in such circumstances, they may also examine the contents of any containers found in the passenger compartment. And such a container may be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. iv. Rules: When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search (1) the passenger compartment of that automobile and (2) the contents of any containers found within the passenger compartment. He can search where the passenger was a recent occupant.

1) Passenger compartment is always within the arrestees immediate control

2) Containers in the arrestees grab area can be opened automaticallyv. Dissent: The Court today turns its back on the product of the analysis in Chimel, formulating an arbitrary "bright-line" rule applicable to "recent" occupants of automobiles that fails to reflect Chimel's underlying policy justifications. The Chimel exception to the warrant requirement was designed with two principal concerns in mind: the safety of the arresting officer and the preservation of easily concealed or destructible evidence. Chimel standard permits police officers who have effected a custodial arrest to conduct a warrantless 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." When the arrest has been consummated and the arrestee safely taken into custody, the justifications underlying Chimel's limited exception to the warrant requirement cease to apply: at that point there is no possibility that the arrestee could reach weapons or contraband.vi. Notes:

1) Once arrested, the officer may search any area in which the arrestee was a recent occupant. Although the passengers were outside from the car while they were arrested, the court allowed the search of the car2) 2 ways to look at this: It only applies to cars Intellectual Analysis Cases are stare decisis that can be applied to future situations. 1. Extension of Rule 1: Passenger compartment is always within the arrestees immediate control although it would be in obvious conflict with Chimels case-by-case approach to an arrestees area of immediate control

Ex: search of dresser drawer in a motel room could be deemed as within the arrestees control area, even though the arrestee could be handcuffed and surrounded by officers at the time of the search

2. Extension of Rule 2: Containers in the arrestees grab area can be opened automatically although in conflict with Chadwick (search of arrestees footlocker not justified because it had been brought to the police station; there was no risk of destruction of evidence or peril to officers)

Container within arrestees immediate control even though the arrest did not occur in or near a car

Briefcases, even where a car is not involved

What if someone has just left the house and is arrested outside the house can Belton be applied to search the house where the arrestee has been a recent occupant?3) Purpose behind Belton to create a bright-line rule to tell the police how to behave even if it means to sacrifice part of the 4th Amendment rights. vii. Additional Notes:

1) The Belton majority asserted that it was providing a bright-line rule to guide operation of the Chimel doctrine in the context of arrests of automobile passengers. However, it doesnt clearly delineate the spatial and temporal boundaries of the search.

c. Thornton v. United States (2004) Area within arrestees immediate controli. Facts: Officer approached Thornton after he got out of his car and found marijuana in his pocket. Officer searched the car after he had been handcuffed and placed in a police car.

ii. Issue: Whether the Belton rule applies when the officer first makes contact with the arrestee after the DF has stepped out of his vehicle

iii. Holding: The span of the area generally within the arrestees immediate control is not determined by whether the arrestee exited the vehicle at the officers direction, or whether the officer initiated contact with him while he remained in the car. An arrestee is no less likely to attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of, the vehicle.

iv. Rationale: The Court said that an arrestees status as recent occupant may turn on his temporal or spatial relationship to the car at the time of the arrest and search. It declined to address Thorntons argument that it should limit the scope of Belton to recent occupants who are within reaching distance of the car, but intimated that his concession that he was in close proximity, both temporally and spatially, to his vehicle when he was approached by the officer made it likely that Thornton was within reaching distance at the time of the arrest.

v. Concurrence (Scalia)1) Thought that the search could not have been justified to protect officer safety or prevent the concealment or destruction of evidence, and agreed that Belton had led to the approval of purely exploratory searches of vehicles during which officers are allowed to rummage around in a car to see what they might find. He suggested that if the Court was going to continue to allow Belton searches on stare decisis grounds, it should at least be honest about why they are doing so.

2) Scalia would limit the Belton searches to cases where it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle.

d. Washington v. Chrisman (1982) Post-Arrest Movements i. Facts: Officer saw a man who appeared underage carrying liquor. He asked for id and the DF said it was in his dormitory room. DF agreed that the officer could accompany him while he went to get it. As DF entered the room, the officer stayed in the doorway and saw the DFs roommate become nervous. He entered the room and saw seeds and a small pipe used in marijuana smoking. The officer obtained consent to search the room and found LSD.

ii. Holding: Officer could enter the dormitory room of an arrested student without a warrant because it is not unreasonable under the 4th Amendment for a police officer to monitor the movements of an arrested person following the arrest.

iii. Rationale: Insofar as the monitoring requires a warrantless entry into a private place, an exception is justified by the officers compelling needs to ensure his own safety and the integrity of his arrest.

iv. Notes: Chrisman did not decide whether the rule would apply if an officer requested or commanded an arrestee to enter a private area, or whether an officer has any authority to search areas nearby within the immediate control of the arrestee who has entered the private place while exercising the authority to monitor an arrestees movements.

2. Searches of the House Incident to Arrest (with an arrest warrant but not a search warrant)a. Payton v. New York (1980)i. Police need a warrant to arrest a DF in the home. But once they get the arrest warrant, they can apply the Chimel, the extension of Belton, Thornton, and Chrisman doctrines to search the house. ii. Notes:

1) Why is an arrest warrant enough and not a search warrant?

2) While the officers are allowed to enter the house with an arrest warrant, they are limited by Chimmel, Belton, etc.

3. Searches of the Person Incident to Arrest a. Chimel v. California (1969)i. Rule: Arresting office can search the arrestees person to 1) discover and remove weapons and 2) to seize evidence to prevent its concealment or destructionb. United States v. Robinson (1973)i. Facts: DF was pulled over by a police officer. The officer had probable cause to arrest defendant for driving after his license had been revoked. He then made a full-custody arrest for such offense. In accordance with prescribed procedures, he then searched defendant and felt an object under defendant's coat. The officer reached into the coat and pulled out a cigarette package. He felt there was something in the package that was not cigarettes. The officer opened the package and found what was later determined to be heroin.ii. Holding: 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.iii. Rationale:

1) A more extensive exploration of the suspect's person was authorized. This was to protect the officer, but also to preserve evidence. The fact that defendant was to be arrested for a driving offense did not lessen the officer's right to search defendant.2) A search incident to a valid arrest is not limited to a frisk of the suspect's outer clothing and removal of such weapons as the arresting officer may, as a result of such frisk, reasonably believe and ascertain that the suspect has in his possession, and the absence of probable fruits or further evidence of the particular crime for which the arrest is made does not narrow the standards applicable to such a search. 3) A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment and a search incident to the arrest requires no additional justification. Whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest need not be litigated in each case.4) Since the custodial arrest here gave rise to the authority to search, it is immaterial that the arresting officer did not fear the respondent or suspect that he was armed.iv. Dissent: In holding that "the fact of the lawful arrest" always establishes the authority to conduct a full search of the arrestee's person, regardless of whether in a particular case "there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest," the majority's departs from our long tradition of case-by-case adjudication of the reasonableness of searches and seizures under the Fourth Amendmentv. Notes: How do you reconcile this case with the 2 prongs of Chimel? 1) The only way to do it is to say that the justification is based on a reduced expectation of privacy caused by the arrest.

The officer even conceded that the thing he felt was not a weapon. Moreover, the search had nothing to do with the offense and the offense is not one that requires search and seizure. The Court cited Chimel as supporting its decision: it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.

However, in Chimel the arrest was based on burglary and therefore the 2 justifications applied. Here, DF was arrested for driving with a revoked license, although the justification for search and seizure of weapons might apply, there is nothing to support search for evidence that could be concealed.vi. Gustafson v. Florida (1973)1) DF tried to distinguish Robinson on the basis that in his case there were no police regulations requiring the officer to take him into custody and no police policies requiring a full-scale body search of an arrestee.

2) The Court refused to follow that view and held that a warrantless search of the arrestee equivalent to that authorized by Robinson was reasonable because the officer had probable cause to arrest and he lawfully effectuated the arrest and placed the defendant in custody

3) Rule: Police procedures are not dispositive.

4. NO Search Incident to Citation a. Knowles v. Iowa (1998) i. Facts: Officer stopped D for speeding. Iowa law authorized officer to either issue a citation or arrest and if he decided to issue the citation, it also authorized him to conduct a search of the same magnitude that he could conduct incident to the arrest of the offender. The officer decided to give the driver a citation and, pursuant to the statute and without any articulable reason to believe that anything incriminating would be found, he searched the driver and the car. The officer discovered marijuana and a pot pipe under the passenger seat. DF challenged the search claiming that the search incident to citation authorized by the statute violated the 4th Amendment.

ii. Holding: The Court refused to extend the bright-line rule of Robinson to a situation where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all.

iii. Rationale: 1) There are 2 rationales for the search incident to arrest exception: 1) the need to disarm the suspect in order to take him into custody, and 2) the need to preserve evidence for later use at trial. Neither of these rationales for the search incident to arrest exception is sufficient to justify a full search incident to a traffic citation.

2) While the concern for officer safety is not absent in the case of a routine traffic stop, that concern does not by itself justify the intrusion attending a full field-type search.

3) Moreover, the need to discover and preserve evidence cannot justify a full search incident to a citation for speeding because once a driver is stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense has been obtained. No further evidence of excessive speed is going to be found on his person or in the car.

4) As for destroying evidence of other crimes, the possibility that an officer would stumble onto evidence wholly unrelated to the speeding offense seems remote.

5) But arent these the same concerns that the Court oversaw in Robinson???

iv. Rule: There can be no search incident to a citation.v. Notes:1) Atwater, however, restricts the significance of the Knowles holding because Atwater authorizes arrests for all minor offenses. Therefore, an officer can avoid the strictures of Knowles by arresting a minor offender. Moreover, Whren would allow this, even if the officer decided to arrest an individual in order to exercise the authority to search incident to that arrest, since it holds that subjective motives of the officer are irrelevant and the arrest is good as long as there is probable cause violation of a law provides that. C. EXIGENT CIRCUMSTANCES1. General Considerationsa. Here, courts address situations in which an officer had probable cause to search, but had insufficient time to seek a warrant. b. The exigent circumstances only excuse the officer from getting a Magistrates determination that there is probable cause; it does not permit a search in the absence of probable cause. c. The exception applies to searches and arrests. d. Therefore, for example, although Payton requires a warrant to arrest a person in the home, the exigent circumstances excuse the requirement. 2. Warden v. Hayden (1967) Hot Pursuit Exception (Decided before Chimel) a. Facts: The police were informed that an armed robbery had occurred and that the suspect had thereafter entered a certain house. Minutes later they arrived there and the DFs wife had no objection to their searching the house. Some officers arrested DF in an upstairs bedroom. Others simultaneously searched the first floor and basement and found weapons in a flush tank; they found the clothes that DF had wore during the robbery in a washing machine while allegedly looking for a man or the money, and found some ammunition. b. Issue: Is a search warrant necessary to enter a house to search for a suspect that may have just been involved in an armed robbery, and to conduct any subsequent search if incidental to the arrest.c. Holding: The exigencies of the situation, in which the officers were in pursuit of a suspected armed felon in the house which he had entered only minutes before they arrived, permitted their warrantless entry and search. d. Rationale:

i. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that DF was the only man present and that the police had control of all weapons which could be used against them or to make an escape.ii. The permissible scope of search must, at least, be as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape. iii. The seizure of clothing occurred prior to or immediately contemporaneous with the DFs arrest, as part of an effort to find a suspected felon, armed, within the house into which he had run only minutes before the police arrived.

e. Rule: A warrant is not necessary if the exigencies of the situation make that course imperative, and items which may relate to the crime can be seized.

f. Notes:

i. What allows the police to continue the search once he is found?

1) Police can find another exception, i.e., can search the immediate area for weapons. ii. The police go in without an arrest warrant, search the house, go through the washing machine, the flush tank, the rooms, under the mattress etc. Why is this right?1) The home is a shield but not a sword once you flee into the house, the protections of the warrant and its consequences should yield to police and societys interest. 2) Fourth Amendment protects from unreasonable searches and seizures, it protects the innocent from the intrusion of the police. However, in the cases of hot pursuit, where the pursuit is so close in time must yield and create a narrow corridor to enable the police to catch crime 3) The court probably weighted the interests of society and individuals and concluded that in hot pursuit cases, the balance should tip in favor of society. iii. Payton does not apply to hot pursuitsiv. Although one may argue that Chimels restricts the meaning of this opinion by demanding that the search could only be carried out in the areas of immediate control, one could argue on the other hand that Belton re-established Wardens authority on the basis that they can search the area where DF was a recent occupant. Because of the exigency in circumstances, the police could reasonably believe that the DF was in many places of the house.

v. This is the classic hot pursuit exception the police is actually in process of chasing him and went in the house a few minutes after the suspectvi. Richards applies here the exigency in the circumstances excuses the police from knocking and announcing justified by a reasonable suspicion that harm will occur if officers knock and announce their presence and identity. g. Policy: In a situation of a fleeing felon, and the police are literally following them, the suspect cannot hide in his house. h. Additional Research Based on the Book References:

i. Material considerations in considering whether the presence of an exigent circumstance is present justifying a warrantless entry: 1) A grave offense is involved, particularly one that is a crime of violence (rather than complacent crimes, like gambling)2) The suspect is reasonably believed to be armed. Delay in arrest of an armed felon may well increase danger to the community meanwhile, or to the officers at time of arrest (this was present in Warden).3) That there is, not merely the minimum of probable cause, but a clear showing of probable cause, including reasonably trustworthy information to believe that the suspect committed the crime involved (could be from reliable informant)

4) Strong reason to believe that the suspect is in the premises being entered (Warden). 5) A likelihood that the suspect will escape if not quickly apprehended. 6) The circumstance that the entry, though not consented, is made peaceably. Forcible entry may in some instances be justified. But the fact that entry was not forcible aids in showing reasonableness of police attitude and conduct. The police, by identifying their mission, give the person an opportunity to surrender himself without a struggle and thus to avoid the invasion of privacy involved in entry into the home.7) Whether it is made at night On the one, the late hour may underscore the delay (and perhaps impracticability of) obtaining a warrant, and hence serve to justify proceeding without one.

On the other hand, the fact that an entry is made at night raises particular concern over its reasonableness, and may elevate the degree of probable cause required, both as implicating the suspect, and as showing that he is in the place entered3. Welsh v. Wisconsin (1984) (The most importan