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									CRJ 302 Criminal Procedures
           Part I
When and where the “Exclusionary
   Rule” Does Not (Usually)
      The Exclusionary Rule Does Not Apply to
       Evidence Obtained in a Private Search
• 4th Amendment prohibits
  unreasonable search and
• Evidence obtained in
  violation of the 4th
  Amendment is inadmissible
  under the exclusionary rule
• Evidence obtained by private
  persons, even if the result of
  illegal conduct, is not subject
  to the exclusionary rule

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            The Exclusionary Rule Applies Only in
                       Criminal Cases
• Forbids the use of evidence tainted or soiled
  by improper or illegal police conduct in
  criminal cases
• Such evidence however can be used in civil

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   Evidence Will Not Be Suppressed Where Only the
  Rights of One Other Than the Defendant Have Been

• Evidence is excluded under the
  exclusionary rule by the defendant
  making a motion to suppress that
• To succeed in this motion, the
  defendant must show his rights
  were violated, not the rights of
  some other person
• Standing- means the defendant is
  the proper person to challenge the
  police conduct because it violated
  the defendant’s rights

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 Abandoned Property Will Not Be Suppressed

                      • If by conduct or words
                        the defendant shows that
                        she has relinquished the
                        expectation privacy in
                        property, the object may
                        be used as evidence

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   Throwaway as a Type of Abandonment
                    • Persons fleeing the police with
                      illegal drugs or other
                      contraband on their person will
                      often throw away what can be
                      very incriminating evidence
                    • If the throwaway is a voluntary
                      abandonment of the object,
                      courts will allow the object to
                      be used as evidence against the

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            Denial of Ownership as a Form of
• Persons who deny ownership of property to a
  law enforcement officer relinquish their right
  of privacy in the property and do not later
  have standing to challenge the use of
  evidence obtained from the property

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     Evidence Obtained from Garbage or Trash

                         • Trash receptacles kept in a
                           home or garage have 4th
                           Amendment constitutional
                           protection while located in
                           such places
                         • Evidence obtained from these
                           places without valid consent
                           or a search warrant would be
                           suppressed and could not be
                           used, even if it were proven
                           that the trash was abandoned

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            Abandoned Motor Vehicles
                        • Many states have statutes that
                          define when a vehicle is legally
                        • Wisconsin provides that if a
                          vehicle is left unattended on a
                          public highway or public
                          property under such
                          circumstances as to cause the
                          vehicle to reasonably appear
                          to have been abandoned for
                          more than forty eight hours,
                          the vehicle is deemed
                          abandoned and constitutes a
                          public nuisance

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 Expiration of Rental Agreements for Motels and
       Lockers as a Form of Abandonment

                   • Many courts have held that the
                     expiration of a motel room
                     agreement or the expiration of
                     the rental time for a storage
                     locker was a form of
                   • In those cases, courts held that
                     defendants had no standing to
                     challenge evidence obtained by
                     police searches

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 Evidence Discovered in Open Fields Will Not Be
• Curtilage-is that area close to a home where a
  persons assert a right of privacy
• The 4th Amendment extends to the home and to the
• Open fields include any unoccupied or undeveloped
  area outside of the Curtilage

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 Evidence Discovered in Open Fields Will
       Not Be Suppressed Cont..
                     • An open field need be
                       neither open nor a field
                       as those terms are used in
                       common speech
                     • An open field can consist
                       of woods, swamps,
                       meadows, or fields of
                       farm crops

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   Evidence Discovered in Good Faith or
  Honest Mistake Will Not Be Suppressed
• The Leon good faith rule permits the use of evidence
  where a search warrant contains a technical error that
  does not violate a fundamental constitutional right of a
• Not all states have adopted this good faith exception
• Honest mistake-Court recognized the need to allow some
  latitude for honest mistakes that are made by officers in
  the dangerous and difficult process of making arrests and
  executing search warrants

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      Other Areas Where the Exclusionary
             Rule Does Not Apply
            • Common Carriers (airlines, parcel services,
            • Grand jury proceedings
            • Probation or parole revocation hearings
            • Searches by probation or parole officers
            • Military discharge proceedings

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• Evidence Is Admissible If Obtained During an
  Administrative Function Under the “Special Needs”
  of Government
• Child protective proceedings
• Civil tax proceedings
• Evidence obtained in foreign countries
• Important witness testimony against the defendants
• Sentencing proceedings after criminal conviction

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            Part II: Administrative Searches,
                        • The US Supreme Court and
                          hundreds of lower courts have
                          upheld the thousands of
                          administrative searches and
                          functions that are conducted
                          everyday by federal, state, and local
                          employees. The majority of these
                          employees are non-law
                        • They are not conducting searches
                          but are conducting administrative
                          functions related to the special
                          needs of government

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        Exclusionary Rule is not Applicable
• Security Screening at Airports, Courthouses, and
  other Public Buildings and Places
• Fire, Health, and Housing Inspections
• School Searches on Reasonable Suspicion
• Drug Testing Without Probable Cause or a Search

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Administrative Searches, continued
• Work-Related Searches in Government Offices
• Roadblocks or Vehicle Checkpoint Stops
• Correctional Programs, Hearing, or Requirements
  that may cause a prison Inmate to Incriminate
• Other “Special Government Needs” Where Neither
  Probable Cause nor Search Warrants Are Needed

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Security Screening at Airports, Courthouses, and
        Other Public Buildings and Places
                         • There are over 1 billion
                           screening of people in the US
                           each year
                         • Since 911 security screenings
                           have extended to courthouses,
                           public buildings, sporting
                           events and rock concerts
                         • Thousands of illegal weapons
                           are confiscated as a result of
                           the administrative screenings.

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            Security Screenings Cont
• Most courts hold the screening fall under the
  “government special needs of security”
• Other courts have held that the searches and
  finding of evidence is admissible because once
  and individual presents their person for
  screening they have consented and cannot
  withdraw during the screening process
• Unless the search was for evidence and not
  safety reasons

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     Fire, Health, and Housing Inspections
• There is much concern in
  large cities where
  buildings are old and
  decaying and efforts must
  be supported to prevent
  fires, and rid buildings of
  rodents and insects and
  to preserve the
  community in a healthful
  and safe condition

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     Fire, Health, and Housing Inspections
• Most people consent to fire inspections but if they refuse
  the police must get a search warrant based on public
• The owner of the property cannot be punished because
  that is a 4th amendment right to refuse
• The “warrant protection clause” is still in place in there
  situations and the search of private property must be
  justified by reasonable government interest

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            School Searches on Reasonable
                                    • In light of what happened at
                                      the Indian Reservation school
                                      in Red Lake Miss and before
                                      that, the court has found it is
                                      unreasonable to require a
                                      teacher to get a search
                                      warrant before searching a
• Sign warns against                • It would unduly interfere with
  taking weapons inside school on     maintenance of swift and
  Red Lake Indian Reservation         informal disciplinary
  where shootings occurred            procedures needed in the

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            School Searches on Reasonable
                   Suspicion Cont..
• The general rule is students can be searched
  w/o a warrant based on reasonable suspicion
      – Example: A student tells a teacher another
        student has a gun
      – Students can also have their lockers searched
        randomly at any time. If as handgun is found it
        can be used as evidence

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    Drug Testing w/o Probable Cause or a
               Search Warrant
                   • Private businesses can conduct
                     drug testing of employees
                     without fear of 4th amendment
                     rights since it does not apply to
                     searches by private parties
                   • There was a case where the
                     National Treasury had a policy for
                     submitting to drug testing if
                     employees were seeking a
                     transfer or promotion. (Rules

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    Drug Testing w/o Probable Cause or a
           Search Warrant Cont..
• The US Supreme Court identified 3 areas where
  government interests are sufficient to justify a drug test
      – Ensuring certain employees have unimpeachable integrity and
      – Enhancing Public Safety (testing an airline pilot)
      – Protecting truly sensitive information
      – Suspicionless drug testing is required of federal, state, and local
        government employees.
            • This includes detectives, guards, police officers, firefighters, fire
              protection specialists, nurses, hazardous waste employees,
              commercial carriers, locomotive operators, etc..

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    Drug Testing on Reasonable Suspicion
                      • Police officers have
                        diminished expectation of
                        privacy because of their
                      • They must always be
                        mentally and physically
                        alert while driving motor
                        vehicles and must be able
                        to exercise good

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    Drug Testing on Reasonable Suspicion
• To believe an officer may be using drugs or a phone tip
  that an officer recently consumed marijuana is enough to
• School boards may test student athletes w/o a warrant.
  The Supreme Court states they have a reduced
  expectation of privacy and that the intrusion to collect a
  urine sample was basically harmless
• Any students participating in any extra-curricular activity
  can be required to drug test. The Supreme court has
  refused to hear any cases on this and has left it to the
  lower courts

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      The Work Related Searches in
   Government Offices (The Ortega Rule)
                    • Private employers can
                      make work related
                      searches of an employees
                      desk, files, and company
                      owned computers.
                    • This could be done if the
                      employee is sick and
                      another is filling in and
                      fraud is suspected

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        Roadblocks or Vehicle Checkpoints
                      • Roadblocks and checkpoints were
                        used during the Oct 2002 sniper
                        shootings in Washington DC.
                      • Law enforcement and the military
                        used the roadblocks in an
                        attempt to apprehend the snipers
                        who killed 10 people
                      • The Supreme Ct has ruled that
                        checkpoints can be used to check
                        for drunk drivers, driver’s
                        licenses, to detect illegal aliens,
                        fleeing criminals, thwart terrorist
                        activity and other public safety

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 Correctional Programs, Hearing, or Requirements that
   may Cause a Prison Inmate to Incriminate Himself

• Because of the
  seriousness of the
  problem sexual assault
  inmates must disclose to
  law enforcement,
  correctional officers, and
  probation officers and
  accept responsibility for
  crimes in which they have
  been sentenced

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    Other “Special Government Needs” Where Neither
     Probable Cause Nor Search Warrants Are Needed
• The need to supervise persons on probation and parole
• Illegal Aliens- Near the Mexican Border the Supreme
  Court has stated there is no need for particularized
  suspicion before making a routine stop because of the
  heavy traffic and the ability to justify a possible carrier of
  illegal aliens
• Safety in Jails and Prisons- A persons in jails have a
  reduced right to privacy and are subject to random
  checks for weapons and contraband. Even body cavity
  searches are allowable.

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