Criminal Procedure Midterm Outline—Dressler

Criminal Procedure: Midterm Outline—Dressler I. PERSONS, HOUSES, PAPERS, & EFFECTS a. Persons: i. Body ii. Exterior Clothing iii. Interior of Body iv. Includes electronic eavesdropping per Katz v. United States b. Houses: i. All structures people commonly use as a residence ii. Buildings attached to the residence iii. Any building that is not attached that is used for intimate activities of the home iv. Includes the CURTILAGE--the area to which extends the intimate activity associated with the sanctity of a man's home and privacies of life. v. Offices, stores, and other commercial buildings are included, however they are treated differently because of a lesser expectation of privacy. vi. NOT INCLUDED: 1. Open fields 2. Unoccupied or undeveloped real property outside the curtilage c. Papers and Effects: i. Personal items such as letters and diaries as well as impersonal business records ii. EFFECTS represents the residual component of the constitutional phrase, for example: 1. Automobiles 2. Luggage 3. Other containers, clothing, weapons, and even fruits of a crime per Warden v. Hayden SEARCHES a. 4th amendment protects people not places; the ultimate question is what protection is affords those people? Katz v. United states. i. KATZ TEST: "What a person knowingly exposes to the public, even his own home or office, is not subject to the 4th amendment protection, whereas what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." ii. Reasonable expectation of privacy test 1. Subjective prong: individual must have exhibited an actual expectation of privacy--a weakness in this prong is once the government announces that they are searching your mail, phone calls, etc. no one has a actual expectation of privacy. With the onset of technology, the protected areas under the 4th amendment grow more narrow. 2. Objective prong: Must prove that the expectation the person exhibited is one that society is prepared to recognize as reasonable. a. Important factors in the objective prong: i. Nature of property inspected ii. Extent to which the person has to take measure to keep information, property, or activity 1. A person cannot possess a reasonable expectation of privacy in that which they knowingly expose to the public or is in open view II. Hanson 2 2. One who voluntarily conveys information or property to another person assumes the risk that the latter individual is a government agent or will transmit the information or property to the government. (so the court expects an individual who seeks full 4th amendment protection to live in isolation within his house with the shades drawn.) iii. Degree of intrusion experience by the police activity 3. BOTH PRONGS must be met. False Friends i. No search is present for undercover agents present when statements made by defendant are used to incriminate the defendant. This follows the assumption of risk theory--a speaker assumes the risk that the listener is not whom she claims to be--a friend--or is a friend who will ultimately betray her. Wired False Friends i. United States v. White held that there is no difference between the plain false friend and the wired false friend. Open Field i. Entry and exploration into so-called open fields does not amount to a search. 1st announced in Katz, reaffirmed in Oliver v. United States. Open fields include any unoccupied or undeveloped area outside the curtilage. It need be neither open nor a field. To determine whether or not the land falls within the curtilage look to United States v. Dunn: 1. The proximity of the land to the home 2. Whether the area is included within the enclosures surrounding the house 3. The nature of the use to which the area is put, and 4. The steps taken by the resident to protect the land in question from observation Technological Information Gathering i. Surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public might be constitutionally proscribed absent a search warrant. ii. Katz requires the court to consider the nature of the technology used (does it permit the government to see what would otherwise be invisible to the naked eye, even in daylight, from a lawful vantage point) and the nature of the place being observed (is it an open field, the curtilage of a home, commercial property, or the interior of a home). 1. Pen Registers a. Smith v. Maryland--pen registers used to register telephone numbers dialed from individual phone lines are not unconstitutional because they only record the number dialed. 2. Electronic Tracking Devices a. Installation of such a device raises a seizure issue but is not a search to use it per United States v. Knotts. The beeper does not provide the police with any information that they could not have secured by visual surveillance from public places along the route used by the defendant, however in United States v. Karo, the use of a beeper that went inside a home was found to be unconstitutional. 3. Thermal Imagers b. c. d. e. 2 Hanson 3 a. Kyllo v. United States--"We think that obtaining by senseenhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area…constitutes a search, at least here where the technology used in question is not in the general public use." 4. Aerial Surveillance a. Non-sense-enhanced aerial surveillance by the government of activities occurring within the curtilage of a house does not constitute a search if the surveillance: i. Occurs from public navigable airspace ii. Is conducted in a physically non-intrusive manner iii. Does not reveal intimate activities traditionally connected with the use of a home or curtilage. b. Surveillance by airplanes i. A person cannot assume that what she grows in the backyard will not be observed in a non-intrusive way by passing aircraft in public airspace or for that matter by a power company repair mechanic on a pole overlooking the yard. United States v. Ciraolo. c. Surveillance by helicopters i. Specifies the importance of aerial surveillance to follow guidelines of the FAA. For it not to be a search, the aircraft must be observing all federal regulations. 5. Dog Sniffs and other tests for contraband a. Canine sniffs are not unconstitutional b. Chemical tests used to determine if a substance is contra band and for no other reason is also no unconstitutional. 6. Inspection of Garbage a. California v. Greenwood--a person has no reasonable expectation of privacy in garbage left outside the curtilage of the home. III. SEIZURES a. Seizure occurs when either a possessory interest or an actual seizure of the property is taken by either destroying, removing from actual possession, premises are secured. b. Seizure of persons i. Terry v. Ohio definition--Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen, can it be concluded that a seizure has occurred. 1. Physical restraint 2. Ordered to stop so the officer can conduct a frisk 3. Intentionally shot by the officer 4. Taken into custody 5. Brought to police station for questioning or fingerprinting ii. United States v. Mendenhall 1. Reasonable person test--"We conclude that a person has been seized within the meaning of the 4th amendment only if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." a. Things that might constitute a seizure even when the person is free to leave: 3 Hanson 4 i. ii. iii. iv. Several officers Display of a weapon by a police officer Physical touching of the person by the police officer Use of language or tone of voice compelling compliance with police officer iii. Factory Sweeps 1. INS v. Delgado--factory sweeps are not considered seizures when the workers are only encountered for a brief time and are allowed to continue working and moving about the workplace. iv. Bus Sweeps 1. Florida v. Bostick--a seizure does not simply occur because a police officer approaches an individual and asks a few questions. 2. Reasonable person test assumes a reasonable "innocent" person. Other factors to look at include: a. Age b. Gender and the agents gender c. NOT race per Mendenhall v. Police pursuit 1. California v. Hodari D.--police may chase someone without any basis for believing that he is involved in wrongdoing. Police officers may seize a fleer IV. PROBABLE CAUSE a. Probable cause exists when the facts and circumstances within an officer's personal knowledge and of which she has reasonably trustworthy information, are sufficient in themselves to warrant a person of reasonable caution in the belief that i. In the case of an arrest, an offense has been committed and the person to be arrested committed it ii. In the case of a search, a specifically described item subject to seizure will be found in the place to be searched b. Probable cause is an objective concept--what a person of reasonable caution would believe c. Mere Evidence Rule i. Warden v. Hayden 1. Police officers may seize not only fruits, instrumentalities, and contraband, but also mere evidence such as an article for which there is a nexus between it and criminal activity. 2. This nexus exists if there is probable cause to believe that the evidence sought will aid in a particular apprehension or conviction. d. Probable cause and pretextual police conduct i. If probable cause objectively exists to conduct an arrest or search, the court will look no further: it is of no 4th amendment consequence that the officer may subjectively have an ulterior motive--even, for example, a racially biased reason. ii. Whren v. Untied States--a search or seizure supported by probable cause is constitutionally reasonable under the 4th amendment without regard to the officer's motives for the action. iii. An officer may make a full custodial arrest based on probable cause as a pretext to conducting a search of evidence unrelated to the arrest. e. Determining Probable Cause i. When determining probable cause, a magistrate must ask the following two questions: 4 Hanson 5 1. Is the information being offered sufficiently trustworthy to be considered?, and 2. If it is, is the quantum of evidence sufficient to constitute probable cause? ii. Offered evidence or probable cause by a police officer 1. Direct information: (police officer is affiant) information that the officer secured by personal observation. Direct information is considered reasonably trustworthy because the oath the affiant makes, affirms his honesty, and the fact that it was observed first hand attests to the basis of his knowledge. 2. Hearsay information: (3rd person is the informant) information received from another person who is not present for questioning by the magistrate. Hearsay must be reasonably trustworthy. Disclosure of the informant's identity need not be disclosed unless there is doubt as to the officer's credibility regarding the hearsay. a. Gates v. Illinois--Totality of the circumstances i. The court abandoned the two-prong Aguilar test and in its place substituted the totality of the circumstances analysis. ii. A balanced assessment of the relative weights of all the various indicia of reliability and unreliability attending an informant's tip. The prongs from Aguilar--basis of knowledge and veracity--remain highly relevant in determining the value of the informant's tip, however the prongs are no longer treated as separate, independent requirements iii. Bald and Un-illuminating Assertions 1. A magistrate should not consider an affiant's assertion that he has cause to suspect and does believe that seizable articles will be found in a particular place, unless the affiant provides the reasons for his belief. V. ARRESTS a. A person is arrested when he is taken into custody by lawful authority, for the purpose of holding him in order to answer for a criminal charge. Under the 4th amendment an arrest constitutes a seizure, however not all seizures are an arrest. b. Making an arrest i. Police may make a felony arrest without a warrant, however a warrant is required for a misdemeanor arrest unless the offense occurs in the officer's presence. ii. The categorical rule is that all arrests must be made and founded on probable cause. As a constitutional matter, a police officer may: 1. Arrest a person in a public place without a warrant even if it is practicable to secure one 2. Not arrest a person in his home without an arrest warrant, absent exigent circumstances or valid consent, and 3. Absent exigent circumstances or valid consent, may not arrest a person in another person's home without a search and perhaps an arrest warrant. iii. A warrantless arrest does not invalidate a conviction but may bring issues concerning evidence obtained throughout the arrest process to light. c. Deadly force: 5 Hanson 6 i. Tennessee v. Garner--Use of deadly force to stop a felon is constitutionally unreasonable unless two conditions are met: 1. Officer must have probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others 2. If the officer reasonably believes that such force is necessary to make the arrest or prevent escape, however the officer must use non-deadly force if feasible. d. Non-deadly force: i. Graham v. Connor--all claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under the 4th amendment reasonableness standard. This is an objective standard. e. Arrest in a public place: The Watson no-warrant rule i. United States v. Watson--federal postal inspectors arrested D in a restaurant for possession of stolen credit cards. The arrest was made without a warrant but was upheld on probable cause. The court based its decision on history and law that allowed federal marshals to arrest felons without a warrant. f. Arrest in the home: The Payton Warrant requirement rule i. Payton v. New York--4th amendment prohibits the warrantless, nonconsensual entry into a suspect's home in order to make a routine non-exigent felony arrest. Physical entry of the home is the chief evil against which the wording of the 4th amendment is directed. ii. Knock and Announce rule: 1. Wilson v. Arkansas--a police officer, even when armed with a warrant, may not ordinarily enter a residence without satisfying the knock and announce requirement. This applies to arrests as well as search warrants. g. Exigencies justifying warrantless entry i. Hot pursuit--warrantless entry of a home is permitted in hot pursuit of a fleeing felon. United States v. Santana--hot pursuit involves some sort of chase of the suspect, but it need not be an extended hue and cry in and about the public streets. In Santana, the police chased a suspect from outside her house into her house. ii. Minnesota v. Olson--court ruled that if the police have probable cause to believe that if they do not enter the home immediately, (1) the evidence will be destroyed, (2) the suspect will escape; or (3) harm will result to the police or others, either inside or outside the dwelling. 1. Welsh v. Wisconsin--in circumstances of minor offenses, exigent circumstances do not forego the warrant requirement of Payton. h. Arrest in a 3rd person's home i. Steagald v. United States--a person whose home is searched for the presence of a guest is entitled, absent an emergency or consent, to a prior judicial determination of probable cause to search the premises for the person to be arrested. SEARCH WARRANTS IN GENERAL a. Warrant application process i. Application for the warrant prepared by the affiant ii. Officer seeks magistrate--forum shopping is common iii. Magistrate must be neutral and detached b. Neutral and Detached magistrate requirement VI. 6 Hanson 7 i. The magistrate cannot be a member of the executive branch, such as the state attorney general. ii. Cannot receive fees based on amount of approved warrants iii. Cannot act as an adjunct law enforcement officer by going to the place to be searched or the things to be seized Oath or affirmation i. A defendant cannot attack the validity of the warrant unless 1. A false statement was included in the affidavit 2. The affiant made the false statement knowingly or intentionally 3. The false statement was necessary to the magistrates finding of probable cause Particularity requirement i. Warrants must particularly describe the places to be searched and the persons or things to be seized. 1. Places to be searched must be described in a manner sufficiently precise that the officer executing the warrant can identify it with reasonable effort. 2. Persons or things to be seized: should be described with sufficient particularity that in the words of the Supreme Court in Marron v. United States, seizure of one thing under a warrant describing another cannot occur. This test has not been applied strictly. Execution of search warrants i. In anticipation of execution 1. Illinois v. McArthur--when police have (1) probable cause to conduct a search; (2) the police have good reason to fear that unless restrained the defendant will destroy evidence; (3) the police make reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy; and (4) the length of time of the restraint is limited, police may restrain a defendant while they are waiting for a warrant. ii. Time of execution 1. Must be within 10 days 2. Some jurisdictions bar nighttime execution of warrants iii. Means of Entry 1. Knock and announce rule applies but there are exceptions: a. Circumstances presenting threat or danger, physical violence, hot pursuit, and when police officers have reasonable belief that the evidence will be destroyed if advance notice is given. Searches of persons while executing a warrant i. In premises open to the public 1. A warrant allowing the police to search all persons on the premises is overbroad and unconstitutional. 2. Ybarra v. Illinois--a person's mere propinquity to others independently suspected of criminal activity does not without more give rise to probable cause to search that person. ii. In private homes 1. This question has not been answered, however, officers in a residence will frequently have reason to fear that the occupants are connected to the suspected criminal activity going on there or, at least, that they have an incentive to protect the criminal interests of the residents of the home by using force against arresting officers. Detention of persons during searches c. d. e. f. g. 7 Hanson 8 i. Michigan v. Summers--justification for the detention of persons during the execution of search warrants is: 1. To avoid the risk that an occupant might leave with the evidence sought 2. To reduce the risk of bodily harm to the officers or others 3. To facilitate the search by inducing the detained occupants to open locked containers and doors. h. Scope of the search i. Police may constitutionally seize any item if: 1. They see the item while searching a place which they have authority to search 2. The item is located in such an area 3. Police have probable cause to believe the item is subject to seizure ii. Once the articles particularly described in the warrant are discovered and seized, the search must stop. EXIGENT CIRCUMSTANCES a. Intrusions into the human body i. Schmerber v. California--evidence in blood would be lost if not taken immediately, however the police must be: 1. Justified in requiring the individual to submit to the test, and 2. The means and procedures employed are reasonable. b. External searches of the Body i. Cupp v. Murphy--an officer forcefully took evidence from the defendants fingernails because the defendant was attempting to destroy it. c. Entry and Search of a home i. Minnesota v. Olson 1. Hot pursuit of fleeing felon 2. Imminent destruction of evidence 3. The need to prevent a suspects escape 4. Risk of harm to the police or to others inside or outside the dwelling INCIDENT TO LAWFUL ARRESTS a. A police officer who makes a lawful full custodial arrest may conduct a contemporaneous warrantless search of: i. The arrestee's person ii. The area within the arrestee's immediate control (grabbing and lunging area), and iii. If the arrest occurs in a home, closets and other spaces immediately adjoining the area of arrest from which an attack could be immediately launched b. No probable cause is necessary to conduct the search, only to make the arrest; officer must also have probable cause to SEIZE anything, probable cause that the evidence to be seized is related to the crime being arrested for or other. c. LAWFUL CUSTODIAL ARRESTS: an arrest that includes transporting the arrestee to the police station for booking. Under Knowles v. Ohio and Atwater v. Lago Vista the Supreme court has ruled that full custodial arrests are constitutional for minor or "fine only" offenses. This gives the police an incentive to make full custody arrests when they have any premonition of criminal activity or the existence of criminal evidence. d. CONTEMPORANEOUSNESS OF THE SEARCH: The search incident to the arrest is limited to time contemporaneous with the search, once enough time has gone by to cure the problem of evidence destruction or flight, an ensuing search is not allowed. United States v. Edwards; police bought the defendant new clothes more then 10 hours after the arrest so they could search his old clothes for paint chips. Supreme court said: "a search of a person that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention." VII. VIII. 8 Hanson 9 e. AREA WITHIN THE IMMEDIATE CONTROL: area into which a person might lunge for a weapon or for evidence to destroy. Searches incident to an arrest in the home are therefore limited to this area, for example an arrest made in one room of a three-room home is limited to the room in which the arrest is made. (Exceptions apply) Chimel v. California. i. No bright line rule, among factors to consider are: 1. Whether arrestee is handcuffed 2. Whether arrestee is cuffed in front or in back 3. Size and dexterity of arrestee 4. Size of the room 5. Whether containers in the room are open or shut 6. If shut, whether they are locked or unlocked 7. Number of officers relative to number of suspects ii. Some courts apply a bright line "one-room" rule iii. Area within immediate control can change with arrestee's movement f. AUTOMOBILES: Bright line rule for cars devised in N.Y. v. Belton--a police officer may contemporaneous (substantially contemporaneous) to the arrest of an occupant of an automobile, search the passenger compartment and all containers found therein, whether the containers are open or closed. A container is any object capable of holding another object. Trunk and engine compartment fall outside the bright line Belton Rule. i. Arrestee has to have been an occupant of the car at the time of contact with the police. ii. There is an issue as to whether the rule applies to locked containers. iii. Motor Homes are not given more 4th amendment rights than regular automobiles (California v. Carney) iv. Has to be incident to a lawful custodial arrest g. PROTECTIVE SEARCHES FOR DANGEROUS PERSONS: Maryland v. Buie--as a precautionary matter, police officers may search in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched before the police have time to depart. Areas are limited to places that are big enough to hide a human being. If Chimel is right, Belton is hard to fathom. CARS AND CONTAINERS THEREIN a. There are different justifications for warrantless non-consensual searches of automobiles and the containers within them i. Incident to a lawful arrest ii. After a vehicle has been lawfully seized and towed iii. In limited circumstances when a driver is stopped on a highway for violating a traffic offense iv. THERE IS ALSO A SPECIFIC EXCEPTION TO THE 4TH AMENDMENT WARRANT REQUIREMENT FOR AUTOMOBILES. b. SEARCHES AT THE SCENE: a police officer can search a car without a warrant at the scene if he has probable cause to believe the car contains contraband, or fruits, instrumentalities, or evidence of a crime, if: i. He stops the car on a highway Carroll v. United States ii. The vehicle is readily capable of use on the highway, is found "in a setting that objectively indicates that the vehicle is being used for transportation," and is discovered stationary in a place not regularly used for residential purposes. California v. Carney iii. If a car is readily mobile and probable cause exists to believe it contains contraband, the 4th amendment permits police to search the vehicle without more. IX. 9 Hanson 10 c. SEARCHES AWAY FROM THE SCENE: a warrantless search of a car away from the scene is valid if the same search would have been valid at the scene. d. PROBABLE CAUSE REQUIREMENT: U.S. v. Ross--the scope of a warrantless automobile search is defined by the object of the search and places in which there is probable cause to believe that it may be found. California v. Acevedo--searches may be made only where there is probable cause that the item being searched for would be present. Also once the information that is sought is found the search must stop. e. CASE HISTORY REGARDING WARRANTLESS SEARCHES OF AUTOMOBILES i. Carroll v. United States--1st time exception for warrantless search of an automobile was used based on the exigency argument. ii. Chambers v. Maroney (Mobility)--police officers with probable cause to search an automobile at the scene where it was stopped may constitutionally do so later at the station house without first obtaining a warrant. This decision basically takes away any real meaning of mobility and the exigency argument and places automobiles outside the protection of the 4th amendment. iii. Coolidge v. New Hampshire--facts in this case distinguish the car searched from those searched in Chambers and Carroll because the car was parked in the owner's driveway and was unoccupied. To distinguish this case from Chambers, the issue really comes down to mobility-iv. Michigan v. Thomas--basically takes the issue of mobility away from the analysis of searching cars v. Cady v. Dombrowski--why, mobility aside, are cars different then homes-because of the extensive regulation of cars and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving motor vehicles will be substantially greater than police-citizen contact in a home or office. vi. Cardwell v. Lewis--"one has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as a repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view." vii. California v. Carney--applies the automobile exception to mobile homes--when a vehicle is being used on highways or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes, the two justifications for the vehicle exception come into play. f. SEARCH OF CONTAINERS FOUND IN CARS: Containers within a car may be searched, belonging to the driver or passenger of a vehicle, during a lawful warrantless automobile exception search. If the container may be searched at the scene it may be searched without a warrant shortly after at the police station. i. Probable cause to search the car transfers to the container ii. Cannot open a container outside of the vehicle iii. United States v. Chadwick--people have a greater expectation in their containers then their cars iv. Arkansas v. Sanders--one is not less inclined to place private, personal possessions in a suitcase merely because the suitcase is to be carried in an automobile rather than transported by other means. v. United States v. Ross--permissible scope of a warrantless search is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Ross rule applies to all containers in the automobile. 10 Hanson 11 vi. California v. Acevedo--overruled Sanders and allowed for any container to be searched if it was inside a vehicle regardless of whether it was in the vehicle when the probable cause to search was realized. PLAIN VIEW AND OTHER RELATED DOCTRINES a. PLAIN VIEW DOCTRINE--an article is in plain view if and subject to a warrantless search by an officer if: i. The officer observes it from a lawful vantage point 1. Officer must be where he is lawfully or in other words, the officer can't have violated the 4th amendment to be able to see the object being seized. Usually there are 4 ways for an officer to arrive at a lawful vantage point: a. Discover the article during the execution of a valid search warrant b. The object may come into view during an in-home arrest pursuant to an arrest warrant c. Criminal evidence may be discovered by an officer during a search justified under an exception to the 4th amendment d. View of an object may arise from an officer's activity that does not constitute a search ii. The officer has a right of physical access to it, and 1. Basically any time an officer has the right to be in the immediate place of the evidence, he has a right of physical access iii. Its nature as an object subject to seizure (that it is contraband or fruit, instrumentality, or evidence of a crime) is immediately apparent when the officer observes it. 1. Must be immediately apparent to the police that they have evidence before them (Coolidge v. New Hampshire). Immediately apparent means that the officer must have probable cause to seize the article in plain view. (Arizona v. Hicks). b. The plain view doctrine is not an exception to the 4th amendment but a justification for police conducting a warrantless seizure of the evidence in plain view. (Horton v. California). It is intended to free the police from the inconvenience of securing a search warrant to seize that which is found in plain view during an otherwise lawful search or non-search activity. c. ARIZONA V. HICKS--A man was shot in an apartment from a bullet that came through his ceiling and officers went to the apartment above to look for the shooter. While inside one of the officers noticed some stereo equipment that looked suspicious because of the area and quality of the apartment. Without probable cause to suspect the stereo equipment was stolen, the cop turned over or around to get the serial numbers and then found that the equipment had been stolen. In this case the officer had a right to be in the apartment and had physical access to the stereo equipment, what lacked was the 3rd prong of the plain view doctrine, that of the object being subject to seizure by its nature. Because the officer had to perform a "second" search to see the serial numbers it was considered unconstitutional without probable cause. "A search is a search even if it happens to disclose nothing but the bottom of a turntable." Scalia. i. The dissent here makes a case for a warrantless search based on the idea that turning the turntable over was nothing but a cursory search which is not a violation of the 4th amendment if the officer had a reasonable suspicion to believe the item to be searched is connected to criminal activity. d. "INADVERTENT DISCOVERY": THE PLAIN VIEW DEBATE X. 11 Hanson 12 i. Can on officer who expects to discover something besides what they have a warrant for do so? Horton v. California--"inadvertency, although a characteristic of most legitimate plain view seizures, is not a necessary condition of the doctrine." ii. Policy is that the courts don not want a rule that to effectively regulate 4th amendment procedures has to divine the state of the officer's mind at the time a warrant is issued. There is no reason to believe that an officer will omit a specific item expected to be discovered through a warranted search from the warrant application. The other side is that to require the officer to include all that is expected to be seized in a warrant provides greater preciseness and completeness in warrant applications. e. USE OF OTHER SENSES UNDER THE PLAIN VIEW DOCTRINE i. Plain Hearing and Plain smell--anything that can be heard or smelled is also a justification to a warrantless seizure under the plain view doctrine. ii. Plain touch or feel doctrine--the same principles apply to this as do to the plain view doctrine, namely that the officer must be where he is lawfully, be able to touch the item lawfully, and upon touching the object it is immediately apparent that it is contraband or fruit, instrumentality, or evidence of a crime. Minnesota v. Dickerson. iii. Second searches, as in Dickerson, are not allowed. The officer in Dickerson conducted a pat down of the defendant's body and felt a lump, to really know what the lump was the officer conducted a second search by examining the lump. Once the officer knew that the defendant was unarmed, he should have stopped. Chapter 16--INVENTORY SEARCHES a. South Dakota v. Opperman--pursuant to standard procedures in the jurisdiction, the police unlocked the car door, inventoried the contents of the passenger compartment, and removed them for safekeeping. During the inventory, the police discovered marijuana in the unlocked glove compartment. "Generally speaking, a routine inventory search of a lawfully impounded car is reasonable under the 4th amendment." Police may seize criminal evidence in an inventory search under the plain doctrine rule. i. Inventory must be routine or standard procedure b. Containers--In Bertine, the court ruled that police may open containers found in a car during an inventory search without probable cause or a search warrant, only if they are following standard police procedures that MANDATE the opening of such containers in EVERY impounded vehicle. c. Locke portions of the automobile i. Not yet decided but probable allowed per Opperman d. Inspection of Papers i. Frequently barred by lower courts, however, the police must inevitably handle papers found during an inventory and they will often need to peruse them in order to identify them on an inventory sheet. e. Arrest Inventories i. Police may search an arrested person as well as his personal effects, including containers as part of a routine inventory at a police station incident to booking and jailing. Chapter 17--CONSENT SEARCHES a. Validly obtained consent justifies an officer in conducting a warrantless search with or without probable cause. b. Validity of consent: i. Consent must be voluntary and the burden of proof is on the prosecution. It is determined from the totality of the circumstances, among the factors are: XI. XII. 12 Hanson 13 A show of force by the police, such as displaying guns The presence of a large number of officers Repetitive requests for consent after an initial refusal, and Evidence relating to the consenting person's age, race, sex, level of education, emotional state, or mental condition, that suggests that her will was overborne by the officer's conduct. Claim of authority by the police 1. Bumper v. North Carolina--officers told defendant that they had a warrant to search her house but no warrant was ever disclosed. Court ruled that a state couldn’t meet its burden by showing acquiescence to a claim of lawful authority. Where there is coercion there cannot be consent. Police deception 1. Consent is not vitiated by the fact that, but for the misrepresentation or nondisclosure of a police officer's identity, the person would not have granted consent to the undercover officer to enter the individual's premises. 2. United States v. Dichiarinte--police obtained consent to search by explaining they wanted to search for narcotics, but really wanted to search business records. The court said the consent was invalid on the grounds that "police may not obtain consent to search items and subsequently use the consent as a license to conduct a general exploratory search." Police cannot exceed the scope of a search to which consent is given. Courts are mixed on deceptive searches inside the scope of the consented search Awareness of 4th amendment rights 1. Schneckloth v. Bustamonte--a person does NOT need to know their 4th amendment rights to waive them 2. Ohio v. Robinette—Officer doesn’t have to explain to the searched that he doesn’t have to consent. 3. Johnson v. Zerbst--state must prove an intentional relinquishment of a known right or privilege Scope of Search 1. Standard of measuring the consented search is an objective reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the subject? Florida v. Jimeno. Third party consent 1. Stoner v. California--police obtained consent from hotel clerk to enter defendant's room. Court ruled that consent was invalid. 2. United States v. Matlock--the court announced that a warrantless search was valid if police obtain consent from one who possesses common authority over the property searched. Common authority rests on mutual use of the property by persons generally having joint access or control for most purposes. This may be different if the objecting party is present and voices his objection. Apparent Authority 1. Illinois v. Rodriguez--a warrantless entry of a residence is valid when it is based on the consent of a person whom the police, at the time of entry, reasonably (but incorrectly) believe has common authority over the premises. Reasonableness standard is placed on the searching officer. 1. 2. 3. 4. ii. iii. iv. v. vi. vii. 13 Hanson 14 XIII. Chapter 18--Terry v. Ohio: The reasonableness balancing standard in criminal investigations a. Began a shift from warrantless searches being unreasonable per se to whether the search was reasonable. b. Allows police to conduct a wide array of searches and seizures that are considered less than ordinarily intrusive on the basis of a lesser standard of cause than probable cause, so called reasonable suspicion. c. Allows police to conduct searches like car inventories, border searches, sobriety checkpoints, and drug and alcohol testing of public employees and public school children, without individualized suspicion of any kind. d. MAJORITY OPINION--Ruled that the officer's stop and frisk procedure in Terry was a seizure under the 4th amendment. Only when the officer by means of physical force or show of authority has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred. The pat down was also considered a serious intrusion and therefore a search under the 4th amendment, however it was not ruled to be a violation of the 4th amendment because of the less intrusiveness of the search and seizure. e. Balancing test to determine whether a search is reasonable: balance the intrusion against the need for information. f. Part of the balancing test is that the police officer has a legitimate immediate interest in protecting himself from possible weapons. g. Purpose of a Terry search is limited to the determination of whether the suspect is armed and is not justified to deter the destruction of evidence. h. A pat down of the outside of the suspect’s clothing is reasonably designed to discover knives, guns, clubs, or other hidden instruments for the assault of the police officer, and when a hard object that feels like a weapon is discovered during the pat down, a full search under the clothing to remove it. i. REASONABLE SUSPICION: i. Reasonable suspicion is based on the totality of the circumstances. j. HEARSAY: i. Reasonable suspicion can be based on hearsay, however the informant's basis of knowledge and veracity apply in Terry context. Although the informant's basis of knowledge is taken into consideration, it does not need to meet the standard of normal informants. 1. Adams--because a tipster had given a correct tip on a prior occasion it was good enough for the one at issue. 2. White--tipster gave specific information about the description of a car was sufficient to justify a stop but not sufficient to justify a search, however the defendant consented to a search in any case. 3. Florida v. J.L.--tipster reported to the police that a young black male wearing a plaid shirt and standing at a particular bus stop was carrying a gun. Court unanimously held that the officers lacked reasonable suspicion in this case to search J.L. k. DRUG COURIER PROFILES i. In the drug trafficking field, an officer's suspicions will often be buttressed by his awareness that the suspect's conduct or appearance conforms to so-called drug courier profile which is a set of characteristics purportedly often associated with drug traffickers, compiled by law enforcement such as the DEA. THIS APPEARANCE DOES NOT provide sufficient reasonable suspicion without more. l. HIGH CRIME AREAS 14 Hanson 15 i. The fact that a person is in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that he himself was engaged in criminal conduct. ii. California v. Hodari D.--fleeing is reasonable suspicion iii. Illinois v. Wardlow--unprovoked flight, when coupled with other factors, can constitute Terry level suspicion. m. DISTINGUISHING A TERRY STOP FROM AN ARREST i. Length of detention: 1. U.S. v. Sharpe--twenty minute detention of suspects stopped in their vehicles on a public highway in order to investigate criminal activity was not considered an arrest a. Officer pursued his course of investigation diligently and reasonably b. Method of investigation was likely to dispel officer's suspicions quickly c. The detention lasted no longer than necessary to effectuate the purpose of the stop d. A DETENTION THAT LASTS INDEFENITELY WILL AT SOME POINT BECOME AN ARREST EVEN IF THE ABOVE ARE MET. 2. U.S. v. Montoya de Hernandez--seizure upheld lasting over 16 hours. A woman suspected of concealing drugs in balloons in her alimentary canal in to smuggle them refused to undergo an x-ray and the officers detained her in a small room until they could get the balloons. ii. Forcible movement of the subject: 1. Dunaway v. New York--police took D into custody at his neighbor's home and transported him to the police station for questioning. Court treated this as a de facto arrest requiring probable cause. 2. Florida v. Royer--police moved D from an airport concourse to a room 40 feet away and because there was no reason to move D, the court said it was tantamount to an arrest. 3. Pennsylvania v. Mimms--once a driver is pulled over in his car, the incremental intrusion from asking him to leave his car is de minimis. Therefore the right to order someone out of their car needs no additional justification. 4. Maryland v. Wilson--adds to Mimms the ability to order passengers out of the car. 5. Walls v. State--a police officer cannot order a passenger to stay after the passenger has left the vehicle and walks away unless he has separate probable cause against the passenger. iii. Existence of less intrusive means: 1. Florida v. Royer--efforts employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicions in a short period of time. 2. U.S. v. Place--a 90 minute detention of D's luggage was unreasonable because the police were waiting for a police dog to sniff the luggage was unreasonable because they knew the D was coming in and should have been prepared. 3. BOTH ROYER AND PLACE ONLY TOUCH ON THE DETENTION OF THE SUSPECT AND NOT THE MEANS TO DETERMINE 15 Hanson 16 CRIMINAL ACTIVITY, AND WHETHER THE POLICE ACTED UNREASONABLY. n. GROUNDS FOR TERRY STOPS i. Crime prevention v. Crime detection--Terry stops are not reasonable in crime detection or post crime investigation. ii. Nature of crime: depending on the type of crime, a Terry stop is reasonable. Violent and drug trafficking crimes are a given but the courts are silent of minor offenses. iii. Fingerprinting: transportation to a police office for purposes of fingerprinting, if under judicial supervision, is acceptable upon less than probable cause. 1. Belief that suspect has committed a crime 2. There is a reasonable basis for believing that fingerprinting will establish or negate the suspect's connection with the crime 3. The fingerprinting is conducted with dispatch iv. Weapons searches: Of persons 1. Permissibility: a. Adams v. Williams--an officer may immediately conduct a pat down for his own safety 2. Method a. Pat down (frisk)--an officer is justified in making a pat down but may not search inside pockets and such unless the suspect does something to give the officer reason to believe for his own safety he needs to. Also an officer may make an immediate seizure of a weapon without frisking first for his own safety. 3. After the pat down a. Without further justification a pat down revealing nothing cannot be followed by an additional search. v. Protective sweeps of residences 1. Maryland v. Buie--quick and limited searches of a premise, incident to an arrest and conducted to protect the safety of police officers and others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. vi. Temporary seizures of property 1. U.S. v. Place--police officers may, without a warrant, temporarily detain luggage on the basis of reasonable suspicion that it contains narcotics in order to investigate the circumstances that aroused their suspicion. SPECIAL NEEDS a. ADMINISTRATIVE SEARCHES: i. Camara v. Municipal Court--health inspectors entered Camara's home without consent or a warrant. The court developed an administrative search version of probable cause that does not require individualized suspicion of wrongdoing, and which requires only that an administrative search be reasonable. ii. Except in the case of emergency or consent, a warrant, albeit based on administrative probable cause, is required. iii. New York v. Burger--because Burger was a closely regulated business there is no need for a warrant. b. INTERNATIONAL BORDER SEARCHES AND SEIZURES i. At the border 1. Routine searches and seizures a. United States v. Ramsey--people may be stopped at the international border or its functional equivalent and they and XIV. 16 Hanson 17 their belongings may be searched without a warrant and in the absence of individualized suspicion of wrongdoing, pursuant to the sovereignty power. These types of searches and seizures are reasonable simply because they occur at the border. 2. Non-routine searches and seizures a. Reasonable suspicion of criminal activity allows police forces to detain an individual longer than is normal under a routine search and or seizure. United States v. Montoya de Hernandez. Hernandez's personal freedom was not as important as the national interest in preventing the importation of illegal drugs. ii. Near the border 1. Reasonableness of these seizures and searches depends in part on whether they take place at a fixed checkpoint or as a result of so called roving border patrol. 2. Roving Border Patrols--Almeida-Sanchez v. United States--a car 25 miles from the Mexican border was stopped and marijuana was found by officers. The court ruled it was an unreasonable because the police had no warrant and no probable cause to conduct the search. a. United States v. Brignoni-Ponce--individuals were stopped based solely on the basis of their Mexican ancestry appearance. The court held that roving patrols cannot detain, even briefly, for questioning in the absence of reasonable suspicion of illegal presence in the country. 3. Fixed interior checkpoints--United States v. Martinez-Fuerte--vehicle occupants may be stopped at fixed checkpoints and briefly detained for questioning without individualized suspicion of wrongdoing. Any questioning or detainment other than to determine citizenry must be coupled with probable cause or consent. a. The distinction between roving and fixed checkpoints are: i. Subjective intrusion on the security of lawful travelers is appreciably less in the case of fixed checkpoints ii. Fixed checkpoints involve less discretionary enforcement activity than roving patrols. c. VEHICLE-USE SEARCHES AND SEIZURES i. License and vehicle registration inspections 1. Random traffic stops are not permissible just to see whether or not the driver has a license or not ii. Sobriety Checkpoints 1. Michigan Department of State Police v. Sitz--sobriety checkpoints that equally stop and treat motorists the same are constitutional. iii. Drug interdiction checkpoints 1. City of Indianapolis v. Edmond--because there is no criminal law enforcement aspect to drug checkpoints they are unconstitutional. d. SPECIAL NEEDS SEARCHES AND SEIZURES i. Special needs beyond the normal need for law enforcement make the warrant impracticable. Special needs cases are evaluated by the government activity by the reasonableness-balancing standard used in Camara v. Municipal Court-balancing the need for information against the intrusion upon 4th amendment rights. Nearly always the government interest trumps individual rights ii. SPECIAL NEEDS EXCEPTION DOES NOT APPLY WHEN SEARCH IS TO GENERATE EVIDENCE FOR LAW ENFORCEMENT PURPOSES. 17 Hanson 18 iii. Searches directed at public school students 1. New Jersey v. T.L.O--a female student was caught smoking in the bathroom and upon further investigation by the principal (looking in the student's purse) the principal found marijuana. The court stated "it is unsuited to the school environment …as it would unduly interfere with maintenance of the swift and informal disciplinary proceedings needed in the schools." 2. Public school teachers and administrators can search students without a warrant if: a. There are reasonable grounds for suspecting the search will turn up evidence that the student has violated or is violating either the law or the rules of the school, and b. Once initiated, the search is not excessively intrusive in the light of the age and sex of the student and nature of the infraction. iv. Searched directed at public employees 1. O'Connor v. Ortega--court adopted the reasonableness test from T.L.O. For a search to be reasonable at its inception, there must exist reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct or that the search is necessary for a non-investigatory work-related purpose such as to retrieve a needed file. As for the scope of the search the measures taken must be reasonably related to the objectives of the search and not excessively intrusive. v. Searches directed at probationers 1. Griffin v. Wisconsin--The court approved a non-exigent search by a probation officer of a probationer's home. vi. Drug and Alcohol testing 1. Immediate goal of testing cannot be to obtain evidence for law enforcement 2. Testing is more likely to more tolerated for those working in a highly regulated position or one with a lower expectation of privacy 3. There should be a significant relationship between the employee's responsibilities and the employer's concern about drug and alcohol use. In other circumstances there should be a significant societal reason for identifying drug users and alcohol abusers 4. Random testing is more likely to be approved if there is evidence that a system based on individualized suspicion is impracticable. 5. Regulations authorizing testing should remove most, if not all, discretion of the government agency 6. Scrupulous care must be taken to ensure the dignity of the person tested is respected in the specimen-collection process. 7. Ferguson v. City of Charleston—can’t have police entanglement in drug testing. FOURTH AMENDMENT STANDING a. 4th amendment rights cannot be vicariously asserted. A person who makes a motion to suppress evidence that the government intends to use against him at trial must show that he was a victim of a search and seizure as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. Test is reasonable expectation of privacy. b. To decide whether a person has standing under the 4th amendment the question to be asked is Were his 4th amendment rights violated? XV. 18 Hanson 19 i. Target Standing--Suppose that police enter X's house without a search warrant in order to seize evidence belonging to D. May D--the target of the search-contest the police action, although it was X's privacy that was invaded. In Rakas v. Illinois, the Supreme court ruled that such a defendant does not have standing, and said that target standing is not necessary to enforcement of the exclusionary rule. ii. Derivative Standing--McDonald v. United States: D's conviction was reversed by the court following the reasoning that X had the right to have his property returned to him prior to trial as the result of the fourth amendment violation. Basically the idea is that a defendant has the right to raise 4th amendment rights if the 4th amendment rights of a co-defendant were violated. However, this idea was later overruled in Wong Sun v. U.S. and Alderman v. U.S. iii. Automatic Standing--The idea that a defendant did not have to prove standing if possession of the evidence seized was a necessary element of the crime for which he was prosecuted. Jones v. United States--the automatic standing idea allows a defendant to get out of a sticky situation that otherwise would force him to admit criminal activity to prove standing. This was later taken care of in Simmons v. United States where the court ruled that self incriminating evidence included in a motion to suppress could not be used at trial on the issue of guilt. iv. Pre Rakas--a defendant had standing to raise a 4th amendment claim if: 1. He owned or had a possessory interest in the premises searched 2. Was legitimately on the premises at the time of the search 3. Owned the property seized, and 4. Had lawful possession of the property seized v. Post Rakas--A person has standing only in situations where the person has a reasonable expectation of privacy. Specifically in Rakas a passenger of a searched car lacked standing because the court said he did not have a REP in the car. vi. Standing when owner or lessor is present--to have standing in this situation a defendant must show the following per Minnesota v. Carter: 1. The defendant was in the premises for non-commercial purposes 2. He had spoken confidentially with the owner or lessor regarding their commercial activities and/or 3. They had had prior or more substantial connections to the premises vii. Search of One's own automobile 1. When owner is absent--State v. Abramoff--often courts will rule that standing is lacking if a car owner gives complete control of the car and its contents for an extended period of time, especially if the vehicle will be driven a considerable distance away from the owner. viii. Search of another person's automobile 1. When the owner is absent: a person has standing to contest a search of an automobile in which he is an occupant, although he is not the owner, if he has a reasonable expectation of privacy in the area of the automobile searched. 2. When the owner is present: most likely that a person will not have standing; however the reasoning behind the court's decision in Minnesota v. Olson may transfer to automobiles. In all it hinges on the reasonable expectation of privacy. ix. Standing when a person's personal property is seized during a search of an area outside the person's control 19 Hanson 20 1. Rawlings v. Kentucky--a person may not successfully challenge a search of an area in which he has no reasonable expectation of privacy even though he has a possessory or ownership interest in the property seized during the search. x. Standing to contest a seizure 1. A person may challenge the seizure of his own person but lacks standing to challenge the seizure of someone else. THE EXCLUSIONARY RULE a. The exclusionary rule was adopted in 1914 under Weeks v. United States. b. Wolf v. Colorado--applied the 4th amendment to the states c. Rochin v. California and its progeny i. Rochin--a man and wife are in bed when the police break into their house; the man puts capsules of morphine in his mouth and the police try to get them out but cannot so they take him to the hospital and have his stomach pumped. The court ruled that this conduct by the police was "bound to offend even hardened sensibilities. Rochin came up with the "shock the conscience" test. ii. Irvine v. California--government was within its rights to introduce at trial statements that the police had obtained illegally by entering D's home to install and then later move a hidden microphone. Irvine was distinguished from Rochin because of the coercion and force used in Rochin. iii. Mapp v. Ohio--OVERRULED WOLF--applies the exclusionary rule to the states. 3 little pigs case. d. Rationale for the exclusionary rule i. Purpose is to deter--to compel to respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it. ii. Imperative of judicial integrity--the judiciary is compelled to uphold the constitution and cannot take part in lawlessness. e. The exclusionary rule does not apply to: i. Non-criminal proceedings ii. Habeas Corpus--where the state has provided an opportunity for full and fair litigation of a 4th amendment claim, the constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. iii. Grand jury proceedings f. Exclusionary rule exceptions i. Good faith exception: 1. Police officer must act in reasonable reliance on a search warrant that subsequently is determined to be invalid. 2. United States v. Leon a. Evidence obtained from an invalid search warrant may be used by the prosecution in their case in chief, if a reasonably well trained officer would have believed that the warrant was valid. b. Evidence is not admissible merely on a finding that the officer involved in the search honestly believed the warrant being executed was valid. This is an objective test. c. Exceptions to Leon: i. Does not apply if the magistrate who issued the warrant relied on information supplied by the affiant who knew the statements to be false or recklessly disregarded the truth--Franks v. Delaware XVI. 20 Hanson 21 ii. When the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York. This happens when the magistrates action was so lacking in neutrality that a reasonable officer would have realized that the magistrate was not functioning in an impartial, judicial manner. iii. An officer may not rely on a warrant so lacking in probable cause as to render official belief in its existence entirely unreasonable--the warrant cannot be wholly conclusory as in Illinois v. Gates. iv. When a warrant is invalid on its face; when it fails to describe in particularity who and what is to be searched and seized. ii. Impeachment exception 1. A prosecutor may introduce evidence obtained from a defendant in violation of the 4th amendment for the limited purpose of impeaching the witness on: a. Direct testimony b. Answers to legitimate questions put to the witness during cross examination 2. The prosecutor can only use evidence to impeach the defendant and no other defense witness g. FRUIT OF THE POISONOUS TREE i. Any evidence obtained from an invalid search is excluded, however, additionally, any evidence obtained from evidence obtained illegally is excluded as well. ii. Independent Source Doctrine 1. Evidence that is not casually linked to governmental illegality is admissible pursuant to the independent source doctrine. This evidence is fruit of a non-poisonous tree 2. The ISD applies if the challenged evidence is discovered for the first time during lawful police activity 3. ISD also applies if evidence is initially discovered unlawfully, but later is obtained lawfully in a manner independent of the original discovery. Murray v. United States. iii. Inevitable discovery rule 1. Nix v. Williams--evidence linked to an earlier illegality is admissible in a criminal trial if the prosecutor proves by a preponderance of the evidence that the challenged evidence ultimately or inevitably would have been discovered by lawful means. iv. Attenuated connection principle 1. Wong Sun rule: a. Nardone v. United States--evidence secured as the result of police illegality is admissible if the connection between the illegality and the challenged evidence has become so attenuated as to dissipate the taint. b. Not all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. 21 Hanson 22 22