Rules and Elements of Criminal Procedure

Rules and Elements of Criminal Procedure

I. What is a Search? 2

II. What is a Seizure? 3

III. Probable Cause 4

A. Arrest Warrants 4

B. Search Warrants 5

IV. Warrant Exceptions 6

A. Exigent Circumstances 6

B. Search Incident to an Arrest 6

C. Cars and Containers 7

D. Plain View and Touch 7

E. Consent 8

V. Terry – Diminishing Warrants and Probable Cause 9

A. Terry Doctrine 9

B. De Facto Arrests 10

C. Seizure v. Non-Seizure Encounters 11

D. Reasonable Suspicion from Informants and Running 11

E. Extending Terry to Bags, Cars, and Houses 12

VI. Special Needs 13

A. Adminstrative Law 13

B. Kids 13

C. Borders 14

D. Drug Testing 14

VII. 4th Amendment Remedies 15

A. Standing 15

B. Exclusionary Rule 15

1. Fruit of the Poisonous Tree 16

2. Independent Source and Inevitable Discovery Doctrine 17

VIII. 5th Amendment 18

A. Toture - Voluntariness 18

B. Miranda 18

1. Waiver of Miranda 19

2. Exceptions to Miranda 20

IX. 6th Amendment 21

A. Massiah 21

B. Waiver 22

I. What is a Search?

Rule:

* / Generally, there is a search when you expectation of privacy has been invaded.

2 Prong Test from Katz:

1 / You must have a subjective expectation of privacy
2 / There must be an objective view from society that you had a right to privacy

Problems with 2 Prong Test from Katz:

1 / If the government tells you it is watching you, you cannot have a subjective expectation of privacy
2 / If it is objective, it is therefore subjective because everyone should be the same
3 / If the government tells you, it can’t be objectively reasonable because you;’d have to be an idiot

Things that are Searches:

1 / Cops scanning you house with a heat seeking lamp - Kyllo
2 / Dog sniffing you trunk after a highway search – Kayakis
3 / Entering a barn not on curtilige - Dunn

Things that are not Searches:

1 / Overhearing a conversation – White
2 / Pen Register on a phone – Smith
3 / Beeper placed on your car – Knotts
4 / Dog sniffing your luggage – Place
5 / Searching an open field even if you have a fence around it – Oliver
6 / Looking through the window of a barn – Dunn
7 / Flying over curtilige at a lawful height – Ciraolo
8 / Greenhouse – Riley
9 / Trash – Greenwood
10 / Photo Surveillance from 12,000 ft. – Dow Chemical

II. What is a Seizure?

Rule:

* / Generally, in order for there to be a seizure, you must interfere with someone’s possessory interest.

Objects Subject to Seizure:

1 / Contraband
2 / Fruits of a Crime
3 / Instrumentalities
4 / Mere Evidence – an item that will help in the apprehension of a person or conviction of a person (i.e. bloody shirt).

Case Law:

* / Karo – Putting a beeper in a can of ether is not a seizure. Even though the drug dealer did not know it was in the can, his possessory interest was not interfered with.

III. Probable Cause

Old Presumption:

* / If you didn’t have a warrant, there was an unreasonable search and seizure.

Today:

* / Probable cause to arrest exists where the facts and circumstances within the officers’ knowledge and of which they have reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offence has been or is being committed by the person to be arrested.
* / Probable cause does not require the preponderance of the evidence (more likely than not)
* / Probable cause can be based on hearsay

Old 2 Prong Test from Spinelli:

1 / Basis of Knowledge – Focused on the informant. Informant had to have first hand knowledge.
2 / This test focused on the police. Police must do due diligence in investigating informant’s info. Must coborrate story.

Gates gets rid of 2 Prong Test from Spinelli:

1 / The two prong test is relevant, but not dispositive.
2 / Probable cause is fluid, you must look at the totality of the circumstances.
* / Gates says that anonymous tips are ok.
* / Gates allows for a coboration of mostly completely innocent facts to be probable cause

Franks Hearing:

* / You cannot compel the informant to be disclosed. Only the magistrate can.
* / If the magistrate thinks the cops (affiant) is lying, the magistrate can compel the disclosure of the informant in a Franks hearing.

A. Arrest Warrants

Generally:

* / You need an arrest warrant to enter someone’s house. IF you have an arrest warrant, you are not supposed to enter someone’s house unless you reasonably believe that they are there.

When you need an arrest warrant:

1 / To enter someone’s house – Payton
* / If the police have an arrest warrant for you, but you are in a third parties house, the police need a search warrant for the third parties’ house

When you do not need an arrest warrant:

1 / When someone is in public – Watson
2 / When you have an exigent strategy (see section IV for warrant exceptions)

B. Search Warrants

Generally:

* / Until recently, a search was presumptively unreasonable if you had no warrant. Today, there are so many exceptions that this is no longer true.
* / As a practical matter, federal agents get a warrant. State police, on the other hand, are more likely to search under an exception to the warrant clause.
* / Police can prevent you from re-entering your house while they go obtain a search warrant. McArthur

3 Things needed for a search warrant:

1 / Probable Cause
2 / Oath or Affirmation (Particularity requirement has been bled out of the Constitution – too many exceptions)
3 / A Neutral or detached magistrate – Lo-Ji Sales

Knock and Announce Rule:

1 / Police are supposed to knock and announce to execute a search warrant. Wilson
1.  Person has a right to know that you have a search warrant
2.  Avoid Violence
2 / Police do not have to knock and announce to execute a warrant in a felony drug case – evidence could be destroyed. Richards
* / 15-20 seconds is sufficient for knock and announce. Banks

IV. Warrant Exceptions

A. Exigent Circumstances

2 Main Reasons for exception for Warrant Requirement:

1 / Officer Safety
2 / Destruction of Evidence

When does an exigent circumstance exist?:

1 / Warden v. Hayden – Man holds up a cab company, runs home. Cops are let in by his wife. Cops go looking for him and find gun in the basement. Ok because they were looking for man or the stolen money.
2 / Schmerber – taking blood from a man in an ambulance for evidence of DWI.

When does an exigent circumstance not exist?:

1 / Welsh v. Wisconsin – Drunk driver drives into a field and goes home. Cops entering his house and searching it is not permissible.
2 / Vale – Just because drugs are involved, doesn’t mean warrant is not required.

B. Search Incident to an Arrest

Generally:

* / Officers can perform a search incident to an arrest. Chimel – “The Wingspan Case”
* / However, although officers can search around a person, they cannot search everywhere in the house because that is equivalent to a general search warrant.
* / Brigtline Rule from Robinson – If you are taken into custody under probable cause, any custodial searches are acceptable.

What is Wingspan (Chimel):

* / Wingspan – area that a suspect can reach in which he can grab a weapon or destroy evidence.
* / Exactly what wingspan is decided on a case by case basis.
* / Belton – Chimmel applies even though it would be impossible for a suspect to reach some of the things that the police searched.

C. Cars and Containers

You Can Have a Warrantless, Non-Consensual Search of a Car if:

1 / There is a valid arrest, but you can’t search the trunk – Belton
Note: You don’t have to be in the car. Can be exiting or getting in under Thornton.
2 / Inventory Search (Abandoned car, for example). You can look in car, glove box, but you cannot take off paneling. Must be within guideline of the department.
3 / Michigan v. Long search – If there is reasonable suspicion that there is a weapon in the car.
4 / Chimmel – Grabbing areas can be searched.

Searching a Car on the Scene:

* / If you constitutionally can search a car on the scene, it doesn’t matter whether the police do it on the scene, or take it “downtown”. Location does not matter.
* / Chambers and White – uphold this.
* / Larry – The problem with Chambers and White is that the exigency no longer exists when the cars are taken downtown. The exigency no longer exists because the cars can no longer drive away.

2 Reasons Courts Have Given For Allowing Warrant Exceptions for Cars:

1 / Cars are Mobile. Chambers
2 / Cars are regulated. Carney

Jurisprudence on Containers Before and After Acevedo:

Before

/ If you know what is in a container, you need a warrant. If the container is opened incidental to a valid arrest and you don’t know what is in the container, you do not need a warrant.
After / If police have probable cause, they can open any container without a warrant. However, you can only search something that can reasonable contain contraband (i.e. if you are looking for a bazooka, you cannot search a briefcase). Also, if you already found what you are looking for, ploice are permitted to keep looking.

D. Plain View and Touch

Plain View Test from Horton:

1 / Police must see from a lawful vantage point
2 / Police must have a right of access to seize something
3 / Police must have a reasonable belief that an item is the subject to seizure.

Plain Touch Doctrine:

* / Generally, you cannot go into pockets during a Terry pat down. But, if you feel a 2 ft. bong, this is plain touch doctrine. (This subject is revisited extensively in section V).

E. Consent

Test from Schneckloth for Valid Consent:

1 / Whether consent to search was voluntary depends on the totality of the circumstances. Consent will be voluntary unless coercion is present.
2 / Consenter’s ignorance of the right to refuse is only one of many factors taken into consideration.
* / Waiver of 4th Amendment Rights DOES NOT require knowing and intelligent waiver.

Manners in which 3rd Parties and Consent to Searches from Matlock:

1 / When there is common authority over a room
2 / Long term guests (However if they have no common authority over a particular room, they cannot consent)
3 / Parents can consent to search of kids’ rooms
4 / When on consent and another does not – courts are divided on this
5 / Spouse can give consent (However if they have no common authority over a particular room, they cannot consent)

V. Terry – Diminishing Warrants and Probable Cause

A. Terry Doctrine

Terry Doctrine:

* / As a practical matter, if a policeman has a reasonable suspicion that criminal activity is afoot, you can stop (seize) someone and seek to dispel that situation. If not dispelled and there is still a reasonable suspicion that the subjects are armed, the police can do an outer body pat.
* / Result of Terry Doctrine – Results in a doctrine that you don’t need probable cause because you don’t have a search and you don’t have a seizure (These are “baby” searches and “baby” seizures, not full blown searches and seizures)
* / If you do a Terry pat down (justified by officer safety), you can seize anything that feels like contraband (guns, drug stuff – justified by crime prevention), but you cannot seize packages, open them, and find drugs.

2 Main Concerns That Brought About Terry Doctrine:

1 / Crime Prevention
2 / Officer Safety

Terry Diminishes the Roles of:

1 / Warrants
2 / Probable Cause

Analyzing Terry: 2 Questions to ask:

1 / Do you have an interaction which does not give rise to the level of seizure?
2 / Is this a full blown seizure or less than a full seizure (Terry seizure)?

B. De Facto Arrests

Terry Seizure or Arrest:

Case / Circumstances / Terry Seizure or Arrest? / Result

Dunaway

/ Informant tells about man who commit murder. Police pick suspect up and drive to station. / Arrest / Unconstitutional. This was an arrest. The police needed probable cause, which they did not have.

Royer

/ Royer fit the description of a dealer. Police take is licenses, ticket, and luggage. / Arrest / Unconstitutional. The defendant was no free to go and under effective arrest. The police needed probable cause, which they did not have.

Mimms

/ Cop asked a guy to get out of car. Guy had huge bulge that looked like a gun. / Terry Seizure / Constitutional. Police can order someone out of the car in the interest of safety. Once out of car, police can do a Terry search.

Wilson

/ Same as Mimms. / Terry Seizure / Same as Mimms.

Sharpe

/ One camper and one Pontiac are pulled over. Camper takes off. One cops goes after camper, one holds Pontiac. / Arrest / Although a de facto arrest, it is allowed because it was reasonable for the inexperience officer to hold the Pontiac and wait for backup.

Montoya

/ Heroin swallower detained at border for 16 hours. / Arrest / Constitutional. You have no rights at the border.

C. Seizure v. Non-Seizure Encounters

Terry Seizure or Arrest:

Case / Circumstances / Seizure/Arrest (Yes/No)? / Rationale

Mendenhall

/ D arrived in Detroit and was questioned by the DEA. A female agent searched the D. D has heroin in her underwear. / No / D consented to search. Cops did not take her license or tickets. A reasonable person would have believe that he/she was free to go.

Bostick

/ Bostick’s bag is searched on a bus. / No. / A reasonable person would have believed he/she was free to go.

Hodari D.

/ Cop yells and discharges gun in the air. / No. / You have not been seized. Seizure requires physical force or submission.

D. Reasonable Suspicion from Informants and Running

2 Rules Regarding Reasonable Suspicion from Informant and Running: