Criminal Procedure

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The Fourth Amendment

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“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.”

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"Persons"

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(1) The defendant’s body as a whole (as when he is arrested);
(2) The exterior of the defendant’s body, including his clothing (as when he is patted down for weapons);
(3) The interior of the defendant’s body (as when his blood or urine is tested for drugs or alcohol);
(4) The defendant’s oral communications (as when his conversations are subjected to electronic surveillance).

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"Houses"

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(1) Structures used as residences,including those used on a temporary basis, such as a hotel room;
(2) Buildings attached to the residence, such as a garage;
(3) Buildings not physically attached to a residence that nevertheless are used for
intimate activities of the home, e.g., a shed;
(4) The curtilage of the home, which is the land immediately surrounding and
associated with the home, such as a backyard.

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Factors relevant to determining whether land falls within the curtilage

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(1) The proximity of the land to the home;
(2) Whether the area is included within enclosures surrounding the house;
(3) The nature of the use to which the area is put; (public v. private), &
(4) The steps taken by the resident to protect the land in question from observation. United States v. Dunn
(5) Commercial buildings receive limited protection on the theory that one has a greater expectation in his home than in commercial structures.

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Oliver v. United States

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Anything that takes place in “open fields” is still considered fair game for police to use as evidence because it is open for all to see – distinguish between the home and an “open field.”

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Florida v. Riley

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The observations from the helicopter did not violate the 4th Amendment because any person could have observed what was in the partially open greenhouse from that distance – the helicopter was not violating any laws by being at that altitude.

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"Papers & Effects"

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“Papers” encompass personal items, such as letters and diaries, as well as impersonal business records. “Effects” encompass all other items not constituting “houses” or “papers,” such as clothing, furnishings, automobiles, luggage, etc.

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Bond v. US (2000)

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(Greyhound bus case), the officer “squeezed” the bag and this was considered a search under the 4th Amendment because although others might touch a traveler’s carry on, they still have a reasonable expectation that those people will not “feel the bag in an exploratory manner”

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California v. Greenwood (1988)

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There is no reasonable expectation of privacy in garbage left for collection outside the curtilage of one’s home.

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Pen Registers

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Installation and use of a pen register by the telephone company, at the behest of the government, to record the telephone numbers dialed from a private residence is not a search within the meaning of the 4th am., Smith v. Maryland, (1979)

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Electronic Tracking Devices

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Surveillance of activities occurring in public falls outside the protection. Thus, the use of an electronic tracking device attached to a suspect’s vehicle or object carried by the suspect does not constitute a search to the extent that it provides the police with info that could have otherwise been secured by visual surveillance from public places. United States v. Knotts (1983).

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Thermal Imagers
Kyllo v. United States (2001)

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"weed lamps case"
Rule: The use of a thermal-imaging device aimed at a home from a public area to detect relative amounts of heat within constitutes a search (detects intimate activities inside). (Use of such technology constitutes a search if it enables the government to gather evidence from a constitutionally protected area to which it would not otherwise have access without a warrant.)

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Aerial Surveillance

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Aerial surveillance by the gov't of activities occurring within the curtilage of a house does not constitute a search if the surveillance:
(1) occurs from public navigable airspace;
(2) is conducted in a physically non-intrusive manner; and
(3) does not reveal intimate activities traditionally connected with the use of a home or curtilage.

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California v. Ciraolo (1986)

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(aerial surveillance of D’s backyard in which he was growing weed)
Construction of a fence which blocks observations from ground-level and demonstrates the defendant’s desire to maintain privacy does not necessarily equate to a reasonable expectation of privacy if there any modes of surveillance possible under the circumstances, e.g., airplanes and helicopters flying above, observations from taller adjacent buildings, a utility repair person on a pole overlooking the yard.

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Dog Sniffs and Other Tests for Contraband

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Activity that is aimed at detecting the mere presence of contraband, or identifying a suspicious substance as such, does not constitute a search. US v. Place (a dog sniff of luggage, which was located in a public place, does not constitute a search—less intrusive); United States v. Jacobsen (1984) (a chemical test that merely discloses whether a particular substance is cocaine “does not compromise any legitimate interest in privacy,” and is, therefore, not a search).

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Warden v. Hayden (1967)

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The gov’t does not need to have a property interest in certain property in order to seize it, they need only believe that the “evidence sought will aid in a particular apprehension or conviction”

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Is it a search? Factors (3)

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4th Am applies to 3 protected interests people enjoy & should enjoy against intrusion:
1) Privacy;
2) Personal interest in liberty;
3) Property interest – protection against unreasonable seizures of your effects

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Reasonable Expectation of Privacy

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(1) Subjective: Person has to have an honest belief of privacy
(2) Objective: Society would recognize the expectation as reasonable

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Factors to determine reasonableness

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(1) Nature of the place- look at behavior traditionally associated with this place (e.g. home v. agriculture)
2. What steps has the person taken to protect this place--Have they put up signs, built fences, etc. (but we know this doesn’t matter with open fields)
3. How likely is it that privacy will be intruded upon even though you took those steps? How successful?
E.g. Garbage – doesn’t matter he took steps, should’ve known things could still be discovered
4. The means of surveillance used?

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Factors to determine whether the means of surveillance used invades privacy interest

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(1) visual or some exotic tech?
(2) readily available to the general public (e.g. Dow’s emission streams, sophisticated technology not important)
(3) Is it passive or invasive?
(4) Will it intrude into all aspect of your life or just unlawful ones?

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Katz v. United States (1967)

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Wiretap in Phone Booth
appropriate inquiry for 4th am. challenges was whether the D had a “reasonable expectation of privacy.”
What he sought to protect from the public were his conversations, as evidenced in part by shutting the door to the phone booth.
Test: is it an intrusion into a justifiable or reasonable expectation of privacy? (2 prongs)

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Scope of probable cause requirement

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(1) arrest and search warrants; and
(2) all arrests (regardless of whether an arrest warrant is required)
Not all searches and seizures need be founded on probable cause. A lesser standard – “reasonable suspicion” – may apply where the intrusion is minor, such as a pat-down for weapons.

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Probable Cause defined

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“Probable cause” exists when the facts and circumstances within an officer’s personal knowledge, and about which he has reasonably trustworthy information, are sufficient to warrant a “person of reasonable caution” to believe that:
(1) in the case of an arrest, an offense has been committed and the person to be arrested committed it.
(2) in the case of a search, an item described with particularity will be found in the place to be searched.

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Probable cause may be founded on...

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(1) direct information, i.e., information the officer secured by personal observation; and
(2) hearsay information.

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Illinois v. Gates (Informant) Test

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For PC determinations, the magistrate must balance “the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip.” Basis of knowledge and reliability are relevant considerations in the totality of the circumstances approach.

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Warrant based Search

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Police, must first go to a judge
If there is a question about probable cause, it will be raised after the search has occurred, and only if the suspect wants to raise it.
Warrant must be very particular in two ways:
a. Describe the things to be searched
b. The things to be seized
The affidavit should support that these particular things are where the warrant says to look for them

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Standard for PC to search

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“Fair probability that evidence of a crime will be found in a particular place”

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Standard for PC to Arrest

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A crime was committed
And this suspect committed it

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Franks v. Delaware

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It is not enough to show that the info in the affidavit is not true. Burden is on the D to make a showing that there are untrue statements. Have to show that
1) the false statement was knowingly or intentionally or with reckless disregard for the truth (carelessness or negligence is not enough) by a preponderance of the evidence, and
2) that the statements were essential to the finding of probable cause. Redact the false statements and reassess under Gates.
(CA now follows Franks – have to show intentional misstatement)

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Knock & Announce: Requirements

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Generally, the police may not forcibly enter a home to execute a warrant, unless they first knock at the door (or ring the bell), identify themselves, state their purpose for seeking entry, request admittance, and are refused admission-part of the 4th am. Wilson v. Arkansas.
•If the police do not knock and announce=suppression remedy

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Exceptions to Knock and Announce

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When the police:
(1) have chased the person named in the warrant to his home in hot pursuit;
(2) have reasonable suspicion that evidence may be imminently destroyed; and
(3) have reasonable suspicion that there is a risk of harm to the officers or others.

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Richardson v. Wisconsin:
exigent circumstances

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Compliance with K & A would frustrate the purposes of the police action. Police need only “reasonable suspicion” to believe that exigent circumstances exist.
Something that would reasonably cause police to conclude that compliance with knock and announce would increase the danger, Frustrate the purpose, Inhibit the effectiveness of what the police are doing/render the purpose futile

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U.S. v. Banks

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Tells us what constitutes an unreasonable delay for purposes of knock and announce. Time allowed depends on the circumstances – the size of the establishment, if you hear other sounds, etc…

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The “plain view doctrine”

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A police officer lawfully present at the scene may seize without a warrant an object of an incriminating nature if it is in “plain view” of the officer. An article is in plain view if:
(1) the police officer observes the object from a lawful vantage point
(2) the police officer has a lawful right of physical access to the object
(3) its nature as contraband, fruit, instrumentality, or evidence of a crime is immediately apparent upon observation.
(Can look anywhere in the house where it would be reasonable to expect to find)

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Lawful Vantage Point

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Generally speaking, an officer will be in a lawful vantage point during:
a. the execution of a valid search warrant; an in-home arrest pursuant to an arrest warrant; a search justified under an exception to the warrant requirement; or an activity that does not constitute a search and, therefore, falls outside the scope of the 4th am.

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Inadvertent Discovery

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If an officer anticipates discovery of a particular item, the plain view doctrine does not cure his failure to obtain a warrant or to include it in a warrant to search for other items. In such cases, the warrantless search and seizure of such object violates the 4th am.

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Horton v. Ca

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Even if you have a sneaking suspicion that the item it there, doesn’t matter, we don’t want to decide the reasonableness based on the subjective belief of the police officer.

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Exclusionary Rule

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Evidence gathered in violation of the 4th am. is not admissible in a criminal trial against the defendant.
a) applied at the suppression hearing
b) 4th Amendment applies to the states through the 14th Amendment.

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Mapp v. Ohio (1961)

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Exclusionary rule is incorporated against the states. If state police have violated the 4th Amendment, the exclusionary rule must be applied and the evidence must be suppressed.

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Exception to the Exclusionary Rule: US v. Leon (1984)

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Good faith exception, for searches conducted pursuant to a search warrant later deemed to be defective.
Evidence obtained by a police officer in reasonable reliance on a search warrant that is subsequently found invalid may be admissible. It is necessary that a reasonably well-trained officer would have believed that the warrant was valid. …and it does not apply to improperly excecuted warrants.

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When should the police know that the warrant is no good, precluding them from the Leon exception?

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(1) Process-oriented problems surrounding the warrant – should have put the police on notice that something wasn’t right
(2)Police officer intentionally lied to get the warrant.
(3) When the magistrate is abandoning his judicial role
(4) If the cop is magistrate shopping.
(5) He knows that the warrant is so lacking any indicia of PC as to render official belief in its existence entirely unreasonable (fails Gates by such a substantial margin that no person could conceivably believe it).

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Non-Trial Criminal Proceedings

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Illegally seized evidence may constitutionally be introduced in a variety of non-trial criminal proceedings including: grand jury proceedings, preliminary hearings, bail proceedings, sentencing, and proceedings to revoke parole.

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llinois v. Krull

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Police in objective GF relied on a statute that the court later found to be invalid under the constitution.
Ct says it is ok for police to rely on the legislature in these circumstances.

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AZ v. Evans

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The good-faith exception has been extended to a non-warrant search based on an error made by a court employee, rather than by a police officer. (computer showed that there was an outstanding misdemeanor warrant for D’s arrest); a subsequent warrantless search of the defendant’s car incident to the arrest revealed pot). He was arrested illegally, but since the cops were in good faith, they would not give him exclusion as a remedy.

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Why study Gates?

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1) This is the standard that the magistrate should use
2) If you are doing the Leon analysis, you have to use Gates as your benchmark for arguing that it renders G.F.
3) The vast majority of searches and arrests do not have warrants – in these cases we are not in a Leon situation.

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Rule: Leon Exception

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If an officer has reasonably relied upon his independent judgment when securing and executing a search warrant and the evidence will be admissible even if it is later determined that the warrant was invalid.

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Reason for the Leon Exception

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The Leon exception supports the deterrence rationale of the exclusionary rule. If the officer is acting in GF when securing the warrant, then there is nothing to deter even if the warrant is subsequently determined to be invalid.

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Exclusionary rule

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When the gov't engages in unconstitutional behavior during a search or seizure, the exclusionary rule provides that DIRECT evidence of that illegality is inadmissable in the criminal trial of the person whose rights were violated.

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Fruit of the Poisonous Tree Doctrine

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This doctrine excludes any secondary or derivative evidence of an unlawful search or seizure.

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F.O.P applies only to...

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Constitutional violations under the 4th, 5th, and 6th amendments.
(limited in Miranda cases)

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Rationale for F.O.P

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1. The gov't should receive no benefit from illegally obtained evidence
2. Maximizes deterrence
3. It is tainted by the illegal conduct used to secure the initial evidence

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What is secondary evidence?

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(Derivative) evidence which is gleaned from the direct evidence which was gleaned from the unconstitutional conduct (initial illegal conduct=the tree)

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What is Independent Source?

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Holds that the challenged evidence would have eventually been discovered through lawful means.

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Inevitabble Discovery?

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Holds that challenged evidence would have eventually been discovered through lawful means.

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Attenuation?

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The sufficient attenuation doctrine holds that the connection between the challenged evidence and the illegality has been so reduced in strength that the evidence should be rendered admissible.

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Murray v. US (1988)

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The ultimate question is whether the search pursuant to warrant was, in fact, a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.

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(unlawful warehouse entry and subsequent warrant secured)

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Factors for determining whether there has been sufficient attenuation (4)

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(1) Amount of time which has elapsed
(between initial unlawful act and obtaining the evidence)
(2) An intervening act of free will
(e.g. a witness comes forward)
(3) Flagrancy of the violation
(4) The nature of the derivative evidence (verbal=free will=less taint)

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A police search of private premises without a warrant is...

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presumptively unreasonable.
(Payton v. NY)
Warrant procedures minimize the danger of needless intrusions.

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Chimel v. CA

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Authorized a limited search of the arrestee and the area in her control.

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Exigent Searches, generally

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Situations where real, immediate and serious consequences will certainly occur if the police postpone action to obtain a warrant.

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3 categories where exigent circumstances preclude warrant requirement

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1. Imminent destruction of evidence
2. Risk of danger to police or others
3. hot pursuit of fleeing felon
(MN v. Olsen)

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Exigent Circumstances only relieve the government of....

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the warrant requirement; there must still be PC if the subsequent search is to be constitutional. (Emergency does not create PC).

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Warren v. Hayden

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Hot pursuit chase into home upheld where he fled to his home, after robbing a bank with a gun. (and cops saw the gun in plain view in a closet).

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Schmerber v. CA (1966)
(DWI-blood sample)

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Cops instructed doctor at hospital to take the blood of the D, over his objections...held that this bodily intrusion is not per se impermissible, but falls within the 4th and generally requires a warrant. (evidence is being destroyed by passage of time=possible exigency)

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Welsh v. WI (1984)

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If the Jx deems the offense to be very minor, where incarceration is not an option, even exigent circumstances cannot justify a warrantless search.