Criminal Procedure Notes Legal Outline

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					Criminal Procedure Outline Fall 2006 REP = Reasonable Expectation of Privacy No W / Valid W / Invalid W Themes – We want the police to stop crime & Liberty vs. Security

4th Amendment - 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. 14th Amendment - All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Incorporation Basics - Bill of Rights and the States - Due Process Clause of the 14th Amendment o “nor shall any state deprive any person of life, liberty, or property, without due process of law.” - Incorporation o Total (Never Adopted) Never got 5 votes in Supreme Court  All guarantees given in first 8 rights in Bill of Rights and incorporated o Fundamental rights (Older View)  The fact that a particular criminal procedure applies to the Bill of Rights means it complies with 14th amendment. Procedures, which are implicit in the concept of ordered liberty or from a later case, things that are fundamental to the American scheme of justice. (Applying to the states)  Will takes part of these rights o Selective Incorporation (More modern view) Mapp  Accepts premise of fundamental rights crowd.  “If any aspect of a right is necessary to fundamental fairness such that it should be applied to a state, all aspects of that right will be incorporated”  Follows the scheme of ordered liberty from the federal government to the states The Exclusionary Rule - Wolf v. Colorado - In a prosecution in a state court for a state crime the 14th amendment does not forbid the admission of evidence attained by unreasonable search and seizure. o Weeks v. US (no REP) – In a federal prosecution, evidence secured through illegal search and seizure barred (Matter of judicial interpretation) 30 states reject Weeks doctrine at the time. (Established Exclusionary Rule) o The exclusion of evidence only serve those who, upon their person or property, something incriminating has been found o Remedies: You can sue the cops, civil remedies, demand for law changes if it doesn’t work, inhouse remedies - Mapp v. Ohio (REP) (Reversed Wolf) - Evidence obtained from illegal search and seizures are not admissible in state court. Exclusionary rule applies to the states o Selective Incorporation Doctrine

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o Other remedies to self-police against illegal search and seizures have failed o Elkins “Silver Platter Doctrine” – Evidence of a federal crime seized by state authorities could be handed to the federal authorities to use freely o Rea – The state prosecution cannot use Evidence from a state crime that was seized by federal authorities. Justifications for the Exclusionary Rule o To deter by removing incentive to disregard it o Cardozo, “the criminal is to go free because the constable has blundered” Law set him free o The process has been successful for federal courts o 4th on unreasonable searches with 5th against self-incrimination, requires rule

Searches Covered by the 4th Amendment - Katz v. United States (REP)(No W) - Government’s actions violated the privacy Katz was justifiably relied while using the booth, and this constituted a search and seizure within the 4th Amendment. Violated reasonable expectation of privacy. o The 4th Amendment protects people, not places. Public exposure is not subject to 4th Amendment protection, but what he seeks to preserve as private may be. Protection against ears. o Reversed Olmstead: Surveillance without trespassing and without seizure fell outside the Constitution (Case doesn’t turn on whether intrusion is physical or not) o Warrant application would have been approved…cannot rely on after-the-event justification - California v. Greenwood (No REP)(W) - Police should not have to avert eyes where evidence could have been observed by member of public. o No expectation of privacy in their garbage that society thought reasonable o A expectation of privacy does not give rise to 4th Amendment protection unless the expectation is reasonable o Katz: That which is knowingly exposed to the public is not subject to 4th Amendment protection. Objective reasonability. o Smith: The phone number that you dial is logged somewhere. Is there a reasonable expectation of privacy in phone numbers you dial? NO o Anyone can start picking through trash. Putting it out for purpose of transferring it out. o Dissents claim rummaging through trash destroys sanctity of a person’s life. Also, a letter could lose 4th Amendment protection because you’re giving it to a third party o Standing – Defendant in a criminal case seeking suppression on basis of 4th Amendment may invoke violation of his own rights but not a third person - Florida v. Riley (No W)(No REP) - The 4th Amendment simply does not require police traveling in public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye. o Helicopter not violating law. Aircrafts fly at 400 feet all the time o Dissents claimed that denying essence of Katz, claim that expectation of privacy defeated if members of society could position themselves in a way without breaking the law. Also, coercive power of the state should not be brought to bear here…Police got into airspace and know more than public - United States v. Karo (REP private spaces & NO REP public eye)(W) - The transfer of the container containing beeper did not constitute a seizure. A warrant must be obtained to monitor a beeper that falls within private residences. Striking the monitoring, the evidence in the house should not have been suppressed. o United States v. Knotts: Court held that, since the movements of the can and transfer to the cabin could be seen by the naked eye, no 4th Amendment violation was committed. o Attachment and transfer did not constitute a seizure, but indiscriminate monitoring of property withdraw from public view is a privacy interests issue - Kyllo v. United States (REP) (No W) - Use of the thermal image scanner to obtain a warrant constitutes an unlawful search in violation of the 4th Amendment.

o What limits are there upon the power of technology to shrink the realm of guaranteed privacy? If everyone had a scanner, wouldn’t be deemed unlawful. o Katz test: Expectation of privacy that society deems reasonable. o Affirms minimum levels of privacy in the interior of homes Technique Phone Tap Trash Grab Chopper 1 choppers Beeper Hot stuff Case Katz Greenwood Riley Kano Kyllo Reasonable ex. of privacy? Why? Yes Private convo No 3rd Party Transfer No Public Use of Airspace (Many have No Naked Eye Yes Private Spaces Yes Enhanced observation (rare tech) No, if everyone had a machine

Probable Cause - Warrant clause of the 4th Amendment provides that, “no warrants should be issued but upon probable cause. An arrest or search is unreasonable unless based upon probable cause. When police arrest or search without a warrant, they make the decision for themselves; when the search or arrest is with a warrant, the magistrate makes the judgment. But the decision is not final. o There can be enough to get a search warrant and not for an arrest and the other way around. o Search – Show by substantial evidence that the items you are trying to seize is seizable, connected to criminal activity, and it will be found in the place to be searched. Don’t have to demonstrate whose it is o Arrest – Probable cause that a crime has been committed and the person who you want to arrest has committed it. Can exist without evidence of contraband at any premises under a person’s control. o Probable cause needed for both search and arrest warrants o The Supreme Court prefers warrants - Spinelli v. United States (Invalid W) - An informant’s tip – even when confirmed to minor extent – is not sufficient to provide a basis for the finding of probable cause. o Aguilar test for determining probable cause for a warrant  “Underlying circumstances” allowing the magistrate to judge validity (Basis of knowledge)  Support for the claim that informant was “credible” or his information “reliable” (veracity) o Spinelli’s movements form Illinois to St. Louis, parking at an apartment house, his phone listing, and his known reputation for gambling operations are not sufficient on face value. There has to be evidence of a crime o Considering the weight of the informer’s tip: (Reliable tip)  Affiant did not offer the court reason for support that the tip was reliable  The tip does not contain underlying circumstances from which informer concluded a gambling ring  He did not explain why the sources were reliable  The tip did not describe the criminal activity in such detail that goes beyond casual rumors o Draper: Benchmark for detail provided by informant (Reliable informant)  The tip-provider described in minute details the clothes the person would be wearing, when he would be traveling, and how much drugs he would have on him. Sufficient evidence to make reliable inference  Not applicable here: informant could have hear the numbers at a local bar - Illinois v. Gates (Valid W) - Letter to cops describes scheme of going to Florida for drug runs; actual mode differs from informant’s but pretty close) changes inquiry back to totality of circumstances; says deficiency in one prong of A-S can be compensated for by strong showing in the other; need just a “substantial basis” o TOTALITY OF CIRCUMSTANCES ANALYSIS  A deficiency in one prong may be compensated by the other

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If an informant has been reliable in the past, poor basis of knowledge can be compensated for  Jones: Probable cause to search petitioners’ apartment because of tip from reliable informant  Rugendorf: Multiple informants told police stolen furs were in house  Ker: Had previously sold marijuana to police officer; police observed Ker even though nothing appeared to change hands; car chase ensued…probable cause o If rules continue to be so technical, police officers will engaged in more warrantless searches and hope for an exception to the search warrant rule o Probable Cause  Dealing with probabilities, not technical analysis…It is a fluid concept  Rigid rules are ill suited to an area of such diversity. One rule will not cover every situation o Did the actions observed by the police (corroboration) give rise to inference that the informant is credible and that he reliably obtained his information? Yes o Dissent - Discrepancy in informant predictions and Gates’ actions. Sue did not fly back form Florida. They were actually together, and therefore the prediction that one spouse was always home to guard the contraband was false Maryland v. Pringle (No W) – Stopped car for speeding, roll of money comes out of glove compartment, search and seizure of cocaine in backseat armrest. Officer had probable cause to believe Pringle had committed possession of a controlled substance. o Totality of circumstances basis  Probable cause based on reasonable ground for belief of guilt. (Was a crime and specific person had committed it). Belief must be particularized. o $763 in cash in front of Pringle. Cocaine was accessible to all 3 men. o Maryland Supreme Court thinks money along is innocuous o Reasonable inference that any or all three men had knowledge of the cocaine (Sole or joint probable cause) “Common enterprise” o Pringle countered with Ybarra and Di Re:  Ybarra  Officers got a warrant to search a tavern and found cocaine on Ybarra  Court held that police could not do broad searches, must be individualized  In the present case, it was a small car and it was reasonable to confer a common enterprise among the men  Di Re  Counterfeit gasoline ration coupons handoff in a car  Di Re was in front passenger seat, and nothing could be connected to him. Lack of probable cause  Any inference that everyone at a crime scene is a party disappears after someone is singled out. In this case, no one was singled out. Search Warrants Richards v. Wisconsin (Valid W) – Hotel room, knock, opens door then shuts, bust door in and catch man trying to escape with drugs. The officer’s no-knock entry did not violate the 4th Amendment. Circumstances in this case warranted the result. However, they reversed the ruling on the blanket exception that all drug cases could ignore knock requirement. o In Wilson, knock-and-announce requirement could be waived in circumstances of a threat of violence or disposing the drugs, but creating exceptions to the rule based on culture are problematic:  Considerable overgeneralization - Police could be entering a place containing people not connected to the case, or there may be no place to dispose of the drugs  Creates an exception that can be applied by others – Bank robbers. Know and announce would become meaningless

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o Officers must have reasonable suspicion (Lower quantum of proof than probable cause) of physical threat or drug disposal to drop the rule o In this case, it was reasonable that Richards knew they were officers, and it was reasonable to break in because the drugs could have been disposed of. o Exigencies kill the rule o Court didn’t go for a bright line rule here: Bright line rules can sweep too broadly. Court is balancing. Here disadvantages outweigh the advantages of a bright line rule because the officer can be more in control of this situation. Privacy interest (Court really cares about a person’s home) Warrantless Arrest and Search of Persons - United States v. Robinson (No W) - Law enforcement has the general authority to search incident to a lawful arrest. o A search incident to a lawful arrest is an exception to 4th Amendment warrant requirement  A search may be made of the person of the arrestee by virtue of lawful arrest  Search may be made of the area within the control of the arrestee o Persuasive authorities on this subject are sparse, but tend to support broad statement of the authority to search incident to arrest o Disagree with court of Appeals support of case-by-case litigation to determine whether authority exists  An officers determination to search is an ad hoc judgment. .  Authority to search a person incident to a lawful arrest does not depend on what a court would later decide as the probability of risk of concealed weapons, depends on probable cause. o The intrusion being lawful. A search incident to an arrest requires no further justification o Therefore, the search of respondent’s person by Jenks was permissible under 4th Amendment. o No subjective fear on the part of the officer  No reasonable expectation of privacy of your body after you are arrested once probable cause is attained. o Dissent notes the opportunity for police abuse - Whren v. United States (No W) - Probable cause all you need for search incident to an arrest. Even without subjective fear. The officers have probable cause to believe the petitioners had violated traffic code. o Temporary detention of individuals constitutes a seizure  The decision to stop an automobile is reasonable when the police have probable cause to believe a traffic violation has occurred. o The foremost method of enforcing traffic regulations is acting upon observed violations, which afford the quantum of individualized suspicion necessary to ensure police discretion is sufficiently constrained. o The making of a traffic stop out of uniform does not qualify as an extreme practice, and so is governed by the usual rule that probable cause outbalances private interests - Atwater v. City of Lago Vista (No W) - If an officer has probable cause even for minor criminal offenses, he may arrest that person. o The standard of probable cause applies to all arrests without the need to balance interests and circumstances involved in particular situations. o Two centuries of uninterrupted state and federal practice permitting warrantless arrests for misdemeanors not amounting to breach of peace. o An officer on the street may not be able to tell the distinction between jailable and fine-only charges o Need reliably administrable rules - O’Connor dissents o Custodial arrest exacts toll on individual liberty and privacy o If the state has decided that a fine is an appropriate punishment, there is limited interest in taking that person into custody o A citation or summons would serve just as effectively.

o Officer should be able to cite unique facts for an arrest Warrantless Search of Premises - Peyton v. New York (No W) - Searches and seizures in a home without a warrant or consent are prohibited (absent exigent circumstances). o Homes are special – “The archetype of the privacy protection secured by the 4th Amendment” o Does an arrest warrant provide less protection than a search warrant? To really satisfy 4th amendment, we’d have to prove probable cause to arrest the person and have probable cause where he is now. (Impractical) Court says that maybe there is more protection in a search warrant because you can demand a strict level of detail, but we still want the neutral magistrate between the officer and the citizen. o 4th Amendment draws a bright line at the door of the home. Absent exigent circumstances, the threshold may not be crossed without a warrant o Arrest warrants on probable cause carries limited authority to enter a dwelling where a suspect lives when there is reason to believe suspect is home.  Steagold v. U.S. – Police entered Steagold’s home to look for Lyon’s, found drugs in view, arrested Steagold. Warrant didn’t cover that, so Drugs could not be used against Steagold. RULE: Warrant has to be for suspect’s home. - Chimel v. California (No W) - Warrantless “broad” search not justified as incident to an arrest. Cannot search whole house, just evidence in immediate area. o How do you define immediate area of control? From where could I get a weapon that would be dangerous to the police officer. o Reasonable to search the person and seize weapons or evidence “under immediate control”, but there is not justification for searching rooms other than that in which the incident occurs or searching concealed areas in the arresting room. o SCOPE was unreasonable o No bright line rule here, but the court creates bright line rules from this Plain View - Horton v. California (Valid W) - There is no requirement that the officer discover evidence in plain view inadvertently. The plain view doctrine could apply even if an officer expected in advance to find the object in plain view. The United States Supreme Court eliminated the requirement that discovery of evidence be "inadvertent". o First, the standard is impermissibly subjective, based solely on the state of mind of the officer. The officer’s state of mind is irrelevant , b/c the question under the 4th is whether the search or the seizure is objectively reasonable. Second, rejecting the inadvertence requirement would not allow the officer to look in any more places or with any more intensity than he would otherwise be able to look. In fact, the officer would want to include all seizable materials to expand his search area. o Plain view doctrine is justified when there is a (1) lawful arrival at the place from which the object can be plainly seen, (2) lawful access to the object seized, and (3) an object whose incriminating nature is immediately apparent. o BRIGHT LINE RULE - Arizona v. Hicks - The search of the stereo equipment (a search beyond the exigencies of the original entry) was not reasonable under the Fourth and Fourteenth Amendments o Since the officer who seized the stereo equipment had only a "reasonable suspicion" and not a "probable cause" to believe that the equipment was stolen, the officer's actions were not reconcilable with the Constitution. o What is a plain view search, and what must an officer do to be able to seize inadvertently. o Police must be there legally to see it  Warrant or other justification  Even with a warrant, where are they looking? o Incriminating character must be immediately apparent

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Do police have PC? See hicks Police must be legally able to seize it

Warrantless Seizure and Search of Vehicles of Effects - California v. Carney - Probable cause is sufficient to search inside motor vehicles. o Carroll: “automobile exception” – Privacy interests in an auto protected, but ready mobility of vehicle justifies lesser protection o Vehicle can be quickly moved out o Mobility AND expectation of privacy in auth less than in a home o Passenger compartment open to plain view o Less privacy because of compelling need for governmental regulation o Maryland v. Dyson: auto exception to warrant requirement doesn’t require exigency o Although the vehicle possessed attributes of a home, the vehicle was clearly a Carroll vehicle o A motor home lends itself to drug trafficking o Goals: law enforcement agents are not hamstrung in their efforts to detect criminal activity and legitimate privacy interests are being protected o DON’T NEED A WARRANT - Thornton v. United States - Under the "search incident to arrest" exception to the Fourth Amendment, the police may search the vehicle of a person they have arrested if they did not make contact with him until after he left the vehicle o Danger to police officer flows from the arrest, stress, and uncertainty o “contact initiation rule” would diminish officer safety o Belton: Officer ordered occupants out of the vehicle, unlike here when he just got out o Can search the passenger side of a car if you make an arrest o No basis to conclude that the area of an arrestee’s immediate control is determined by whether the arrestee exited the vehicle o Once probable cause is found, officer can search the entire compartment o “recent occupant rule” o Return to the broader search allow before Chimel o Scalia: Limit these searches to where it is reasonable to believe evidence relevant to the crime of arrest may be found in the vehicle o Can bright line rule be a sword as well as a shield – Rule protects the cops, but a defendant can flip that around and claim they are on the other side. Defendant says recent occupant rule isn’t going to be a good bright line rule. - Knowles v. Iowa – Search incident to citation is not an exception to the 4th Amendment o Robinson rationales for search incident to arrest:  Need to disarm suspect to take him into custody  Preserve evidence for use at trial o Neither are sufficient to justify search here  Threat to officer safety is significantly less when issuing a citation  A routine stop is a brief encounter “Terry Stop”  There is a small chance of danger, but in those cases you may order the driver out of the vehicle, perform a patdown, a Terry patdown of a compartment on reasonable suspicion it may contain a weapon,  Once Knowles was stopped for speeding, all evidence was had been obtained.  As for destruction of evidence, an officer may arrest pursuant to unsatisfactory ID. o We cannot extend the bright-line rule to a situation where there is no concern for the officer and there is no concern for loss of evidence. o No probable cause here  Searching passenger compartment is incident to custodial arrest - Wyoming v. Houghton - Police officers with probable cause to search a car have to right to inspect passengers’ belongings found in the car that are capable of concealing the object of the search.

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o Carroll: The officer had probable cause to believe drugs were in the car o Framers would find this reasonable, they enacted legislation to allow searches of any ship without a warrant if there was probable cause to believe something on there was subject to duty  Contraband good concealed and illegally transported may be search without a warrant where probable cause exists o Ross: upheld reasonable warrantless search of a paper bag and leather pouch in the trunk of defendant’s car with probable cause to believe it contained drugs  If probable cause justifies the search of a lawfully stopped vehicle, it justified the search of every part of the vehicle and its contents that may conceal the object of the search  The permissible scope of the search is in places where there is probable cause to believe it is located (Zurcher)  It is reasonable for officers to search containers or packages without showing individualized probable cause o Passengers possess a reduced expectation of privacy with regard to the property transported on public roads  Exposure to traffic accidents that could expose their identity o Di Re: No searching the body of a passenger  Tramatic consequences won’t happen in search of personal property in car o Effective law enforcement would be impaired when there is reason to believe evidence of criminal wrongdoing is in the car o Passengers are often engaged in common enterprise with driver for concealing contraband o If a “passenger’s property” exception were to become known, passengers would claim everything as their own…Bog down litigation  REASONABLENESS…PRACTICAL REALITIES Colorado v. Bertine - Looking into containers in an inventory search does not violate the 4th Amendment o Probable cause approach is not helpful when analysis center on administrative functions o An inventory search may be reasonable even though it is not conducted with a warrant with probable cause o Opperman: Inventory procedures served to protect owner’s property and to guard police from danger. Strong governmental interests and diminished expectation of privacy o Lafayette: Officer search the contents of a shoulder bag in possession of an individual taken into custody o Police are responsible for the property taken into their possession. Need to protect themselves against false claims of theft. o Supreme Court of Colorado held that the search was unreasonable because the van was towed to a lighted, safe facility and that Bertine could have been offered to make other arrangements for his property. o Could have locked it in a parking lot o Lafayette: It is unreasonable to make officers make distinctions of searchable or sealed when inventorying. o Bertine argues that the police had discretion in how to dispose of his car, however nothing prohibits police discretion as long as it is not based on suspicion of criminal activity  Incentive to impound the car to do an inventory search

Lesser intrusions - The police do not have probable cause - Yet they are concerned about a current offense and their safety - Explicit balancing of the need to search against the invasion which the search entails Terry v. Ohio - It is not unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest

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o Whenever an officer restrains the freedom of a citizen to walk away, he has seized that person. It is a serious intrusion on the sanctity of a person and shouldn’t be taken lightly o Swift action predicated upon on-the-spot observations aren’t subject to warrant procedure o Only test for determining reasonableness: balancing the need to search against invasion of privacy. To justify, officer must present relevant facts and rational inferences o A protective search for weapons is not justified by need to prevent destruction of evidence. Sole justification is for protection of officers, an intrusion reasonably designed to discover weapons. o Where an officer observes conduct in which he has a reasonable belief of criminal activity; where he identifies himself; where nothing dispels his fear of safety; he is entitled to a limited search of outer clothing of such persons to discover weapons that may be used to assault him. o Absent special circumstances, the person approached may not be detained and may refuse to speak to the officer and go on his way. o In proper circumstances, the person may be briefly detained against his well to receive the questions. Refusal to answer furnishes no basis for arrest, but for continued observation. Florida v. J.L. - An anonymous tip that a person carrying a gun is, without more, NOT sufficient to justify an officer stop and frisk. o Anonymous call left no predictive information and left police without a means for testing credibility o There has to be some kind of predictive component that has to be corroborated. Caller has knowledge of the illegal activity. o Reasonableness of suspicion measured by what officers knew before conducting their search o Officials in airports and schools, in places where reasonable expectation of privacy is diminished, can conduct protective searches in situations where it wouldn’t have been justified elsewhere. o This ruling does not diminish Terry rule to frisk a person who has been legitimately stopped. Illinois v. Wardlow – Fleeing from the police is reasonable suspicion to conduct a stop and pat-down o An individual’s presence in an area of expected criminal activity is not enough to support reasonable suspicion alone. o “High crime area” is a contextual consideration o The flight from the police was unprovoked. Nervous behavior is a pertinent fact, suggestive of wrongdoing o Nolan was justified of suspecting criminal behavior. He was being evasive, hiding something o Florida v. Royer: When an officer without reasonable suspicion approaches a citizen, they have the right to ignore and go about their business.  However, unprovoked flight is the opposite of “going about one’s business” o Respondent argues that the flight is not necessarily indicative of criminal activity.  That is true, but does not establish 4th amendment violation Minnesota v. Dickerson - 4th Amendment does not permit the seizure of contraband detected through a police officer’s sense of touch during a protective pat down search. o Purpose of limited search is not to find evidence of crime, but to protect the officer from harm o If protective search goes beyond what is allowed in Terry, it is invalid o Officers may seize contraband in a Terry search, but search must be limited to areas where weapons may be hidden. Clearly you cannot ignore contraband o If contraband is left in plain view, then there is no invasion of privacy and no search. If a pat down leads to touching of something that is immediately apparent to be contraband, there was no invasion beyond pat down o MN Supreme Court rejection of plain feel doctrine:  Touch is less immediate and less reliable  Touch is far more intrusive into privacy o Officers need probable cause to believe item is contraband before seizing it ensures against speculation o Officer determined it was cocaine after squeezing it, even though the officer knew the pocket had no weapons – Overstepping bounds

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Hicks: SIMILAR TO the moving of the stereo equipment to get at the serial numbers – no probable cause