SEARCH WITHOUT A WARRANT A. Burden of Persuasion on the Prosecution B. 5 Exceptions 1. Search incident to arrest – Robinson/Chimel (is it a cite and release or an arrest?) a. Lunging radius (Belton – the Chimel radius begins at the point the officer decides to make a custodial arrest) b. Cop has a right to monitor movements c. Functionally contemporaneous – Chadwick d. Search incident to booking – Lafayette 2. Consent a. Must be voluntary/free and unconstrained choice i. subject to age i. look at personality ii. intimidation iii. do they know they can say no iv. environment (in custody or not) a1. View from the point of view of police officer b. Subject to conditions c. Request for counsel – Consent given in custody subsequent to a request for counsel can only be valid if the person in custody clearly retracts, waives the right to counsel, and then gives consent. d. Common authority – One tenant can only give consent to common areas or areas where he has control. e. Reasonable belief of cop that one who has given consent actually has authority 3. Exigent Circumstances a. Hot pursuit – Public to Private pursuit i. Time constraints ii. Nature of the offense iii. No need for knock and notice iv. Police can look where the person may be hiding or where a weapon may be. b. Probable Cause that Evidence is in the Process of Being Destroyed c. Probable cause that there is evidence in the premises, and good faith belief that the evidence will be destroyed before they can obtain a warrant. i. Freeze the situation pending the arrival of the warrant ii. Restrict access to areas the evidence may be d. Limited Protective Sweep – Buie i. Protective sweep is permitted if during an in-house search, a cop possesses a reasonable suspicion that others associated with the crime are in the house and pose a threat to police. ii. Police can look where that person may be hiding or where a weapon may fit. e. Imminent threat to life i. Objective standard – 4 year old is in the cracks. 4. Travel Stops and Vehicles 5. Misc. Searches 6. Arrest Warrant + Reasonable Belief that the suspect is in HIS home --Payton a. Subject to knock and notice b. May look for the suspect only and then must leave SEARCH WITH WARRANT A. Obtaining – Probable Cause 1. Substantial probability that certain items are the fruits, instrumentalities or evidence of a crime and that these items are the presently found in a certain or particular place. 2. Purpose of a search warrant is to get pre-approval from the neutral detached magistrate. 3. Information from a 3rd party informant i. Ag/Spinneli – Higher Threshold a. Is this source of info reliable (we want underlying facts that lead to conclusion that the guy is reliable). b. Did the source have first hand knowledge info (sometime we can infer that there is first hand knowledge if the details are very specific). ii. Gates a. Look at totality of circumstances to determine if probable that criminal activity is afoot. B. The Actual Warrant 1. Particularity, Description of Things, Specificity a. Who, What, Where b. When the thing we are looking for is per se contraband, the court will be more general in its descriptions. c. If it is enough that a reasonable police officer at the time of the warrant can ascertain exactly where the place is. C. Executing 1. Must be executed within 10 days or when PC is gone, which ever comes first. 2. In order to have night time search need a separate sign off by judge. 3. Scope of search warrant. 4. Knock and Notice – Police must knock and identify as officer, and wait a reasonable amount of time. a. Exception 1 – Compliance will lead to officer peril. b. Exception 2 – Purpose of the search/arrest would frustrated. c. Exception 3 – Hot Pursuit PLAIN VIEW – Use plain view as an extension to what police can do with regards to search Subsequent to a justifiable prior intrusion, if the police are situated in a place where they have a right to be and they come upon evidence, which they have a probable cause to believe is incriminatory, they may seize same. SEIZURES A. Was there a seizure? 1. Mendenhall/Delgado – Would a reasonable person feel so intimidated that they felt they could not simply turn and walk away? a. Factors – Threatening presence of more than one officer b. Display of weapons c. Some manner of physical contact d. Use of language or tone that compliance might be compelled 2. Hodari flight exception a. If a person were to flee, then they have not been seized b. Scalia says in a flight scenario we need to have compliance or physical force in order to have a seizure. B. If a seizure then ask what type of seizure is it? 1. Detention a. Requires reasonable suspicion – particularized objective facts to believe criminal activity is afoot – Terry b. Actual criminal activity does not need to specified c. Exceptions to RS requirement i. Checkpoint stops – Border Stops (different analysis), Drunk Driving A. Must be related to highway safety B. Intrusion must be minimal C. Limited Cop Discretion d. Terry allows for a safe brief furthering of the investigation. Once the officer has briefly furthered the investigation he must either arrest or cut loose. i. Use hindsight approach to determine if the police acted reasonably and diligently e. 3rd party informants 2. Terry Frisk (subset of detention) a. Subsequent to a prior justifiable detention, if there is reasonable suspicion that the defendant has a weapon the office may conduct a Terry frisk. b. Outer clothing frisk, that is least intrusive and reasonable. Officer may not dwell. c. Looking for hard objects. 3. Non-Traditional Frisk a. Did the cop act reasonably. b. Michigan v. Long – Auto Exception – Police can do a frisk (a least intrusive search) of the areas in the car that would be immediately accessible to the driver. What about locked area? 4. Arrest a. Requires probable cause based on facts within the personal knowledge of the officer or affiant sufficient to convince a reasonably cautious person that an offense has been committed or is in the process of being committed by the accused. b. Warrantless Arrest in a Public Place i. A peace officer is permitted to arrest in a public place for a misdemeanor or felony committed in his presence as well as for a felony committed outside his presence, if there is probable cause for making the arrest, notwithstanding an adequate opportunity to procure a warrant. c. Process