CRIMINAL PROCEDURE BASICS OF THE 4TH AMENDMENT
People’s Rights
The Constitution applies only to government action, except 13th amend. The word “people” in the 4th Amend interpreted to include all people who are a part of the national community.
Exceptions: A person who commits a crime against America abroad is subject to US laws but not 4th Amend protections. Post 9/11 Gov’t argues illegal aliens have no 4th Amend. Protections. Search and seizure cannot be unreasonable if there is no warrant.
4th Amend. is meant to balance privacy with gov’t power.
Evidence illegally obtained cannot be admitted at trial.
SEARCH AND SEIZURE
No search and seizure, no rights under the 4th.
Thus reasonableness need not apply
Definitions:
Search – Applies to both tangible and audio/visual data. All Searches must be reasonable. Reasonableness – Search of latent places only reasonable with a search warrant.
Unwarranted Search reasonable if probable cause exists and there is a reasonable expectation that the evidence might be destroyed. Search incident to arrest can be reasonable Factors Affecting Reasonableness:
Right to Privacy – 4th amend. incorporates a right to privacy.
Individuals must take affirmative steps to protect privacy, otherwise they are not entitled to it. Test for Right to Privacy:
Subjective Expectation of Privacy It’s Objectively Reasonable Affirmative Steps taken to protect privacy. No Abandonment or manifestation of non-care about privacy. Specific Examples:
NON SEARCH EXAMPLES: Financial Records – Banks granted access for public policy. No expectation of privacy. Trash – Anyone has access so no reasonable expectation of privacy Arial observation – public vantage point so no. reasonable expectation of Privacy. Dog Sniff – Not a search because limited in scope. Drug tests – No search because can only detect Drugs. Tracking Device – Augments visual ok, if can’t be visually verified then violation. Stolen items given to agents Jail – No expectation of privacy. SEARCH EXAMPLES: Infra-Red/Starlight – Is search if looks into areas protected from public view.
Open Fields Doctrine – No objectively reasonable expectation of privacy in an open field.
Only “Curtilage” entitled to 4th amend. protections. Definition of Curtilage:
Proximity from house Enclosure Nature and Use
Steps taken to protect
Warrantless Searches – Exceptions to the Warrant Requirement:
1. Search incident to a lawful arrest 2. Stop and Frisk: The Terry Stop
Less than a seizure, person must believe they can leave. Must be founded on reasonable suspicion.
Must be less invasive than full search and seizure. Balancing Test:
Need to Search verses; Invasion of Privacy
Justification
Close Range Observation Belief Armed and Dangerous Off icer must be able to identify specific facts that lead to objectively reasonable inferences.
3. Plain View 4. Auto Grab Area Exception 5. Consent 6. Hot Pursuit
Search incident to pursuit of dangerous suspect.
7. Exigent Circumstances
Reduced Criteria for Searches
Administrative Searches
In business’ where there is a lower expectation of privacy. I.e. government regulated businesses. See Class Notes The Exclusionary Rule
Evidence & testimony improperly obtained in violation of the law must be suppressed. Applies to violations of the 4th, 5th, 6th and 14th amend. Inadmissible:
Illegally Seized Evidence Fruits of the poisonous tree Exceptions: (burden on prosecution)
1. Inevitable discovery by lawful means 2. Cleansed illegal arrest
i. really flagrant illegal conduct ii. long temporal proximity between arrest and confession? iii. Intervening circumstances
3. Purged Taint, by
i. Intervening actions, including defendant’s own act.
ii.
Voluntary act by D., after initial stress worn off.
ARREST
Definition:
When an individual is not free to leave for the purpose of commencing a criminal prosecution.
Exception - Brief stops are permitted for questioning For What May an Arrest be Made?
Probable Cause of that a crime has been committed:
Statutory Crime Misdemeanor
May arrest for a seatbelt violation
Who May Arrest?
Warranted - Police, or Unwarranted
Standards for Warrant-less Arrest:
Reasonable Cause Elements P. 166 No arrest w/out warrant of suspect in 3rd party residence. Exception – when person there for commercial activity.
Police
When felony committed in presence When have reasonable cause to believe committed felony out of presence
Private Citizens
Only when felony committed in presence.
Force Authorized in Arrest?
Reasonable and proportionate force
Exception – Deadly force against fleeing felons if officer believes poses serious threat to others and a warning has been given. Who May be Arrested or Detained?
The subject of the Warrant The party committing the crime Detainment
Persons present on the premise during a valid search may be detained Vehicle Stops
Reasonable cause required No random stops Legal if at a fixed checkpoint
If near border For Sobriety checking NOT FOR DRUGS
OBTAINING A SEARCH WARRANT
Issued by a ‘neutral and detached’ 3rd party magistrate. Probable Cause to Arrest Gives Probable Cause to Search. Requires Probable Cause
Definition: (Maj.) Totality of the circumstances test.
A Substantial basis to support a high probability of assertion.
3 factors:
1. Same activity as other known criminals 2. Same gear as other known criminals 3. Unorthodox mannerisms
4. Example: Officer sees narcotics in suspect’s car. If high prob. That suspect has dominion over narcotic then there is prob. Cause.
(Min.) 2-prong test
1. Credibility of Basis of Knowledge 2. Informants Credibility Scope of Searches
Premises: Criminal activity must be linked to location.
Scope of search depends on the:
1. Type of Crime 2. Nature of Items Sought 3. Suspects Opportunity for Concealment 4. Normal inferences about where a criminal might hide.
Generally interpreted to be wide and until police have had a chance to look at everything specified in the warrant.
People:
Surgery to remove evidence a violation of the 4th even w/warrant because so invasive. Details of a Warrant
1. Identity of Issuer 2. Identity of Applicant 3. Issuing Authorities’ finding of Sufficiency 4. Identity and Location of Person/Item to be Searched
5. Reasonable Particularity as to:
6. 1. Description – no blank check 5. Individuals or things constituting #4 6. Time frame of search – 6am to 10pm except narcotics 7. Period of time warrant is valid Anticipatory Search warrant may be sought, contingent on a condition precedent.
Executing a Warrant
1. Knock and Announce Requirement
2. Can break and enter if refused admittance
3. Can be implied by no acceptance after reasonable time.
Exceptions to Knock and Announce Requirement
1. Narcotics 2. Hot Pursuit 3. Safety of Others
4. Door unlocked (no breaking so no announce). 5. Other exigent circumstances (serious concern evidence will be destroyed or someone endangered).
No Knock Warrants: Ok as long as reasonable to prevent violent activity. Arrests in Public or in the Home (see section titled arrests)