Criminal Procedure Outline I. The Fourth Amendment a.

Definition: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized Is Government conduct a search or seizure? a. Katz: i. Subjective expectation of privacy ii. Expectation of privacy is one society considers reasonable b. Examples of per se searches/non-searches i. Open fields: No, however it protects curtilage ii. Information where a member of the public also has access to 1. Electronic surveillance with Def 2. Financial information where banks comply with statutory requirement to disclose 3. Pen register 4. Pager phone numbers, but not numbers stored in phone 5. Trash left in curb 6. Aerial surveillance 7. Manipulating placement of bags in public common area iii. Illegal activity investigations 1. Canine sniff of closed luggage for drugs 2. Chemical tests which sole purpose is to detect drugs 3. Thermal detection to detect heat to find marijuana operation c. Augmenting sensory faculties i. Electronic beepers if visual surveillance would suffice, but using beeper in one’s home, which is not open to visual surveillance is disallowed d. Must be a government actor i. Private citizen searches are not searches for purposes of 4th 1. government cannot view films if package opened by private citizen ii. Not searches for purposes of the 4th 1. State reopens package already opened by PC 2. State goes no further than previous private search if homeowner still has reasonable expectation of privacy 3. State reopens package that another state actor previously searched and resealed, unless altered iii. Foreign officials in foreign country is not state action 1. If it shocks conscience, or U.S substantially participated, then it is State action

II.

Constitutional Requirements for Search Warrants i. Forced entry if officer refused admission after notice a. Informant tip ii. Accomplice statement reliable without corroboration Probable Cause and Arrest Warrants a. but not necessary they give prior to search iv. Requirement i. Execution of Warrants i. Must give copy of warrant. Per se unreasonable if search/seizure conducted without warrant i. Probable cause ii. Detailed description of suspect + close to time of crime ii. Exigent circumstance excuses “no knock” requirement if reasonable suspicion that notice would be dangerous.III. Mistaken arrests permissible if finding of ‘fair probability’ [probable cause] exists After Probable Cause Has Been Established IV. Veracity b. Totality of circumstances test: fair probability that contraband or evidence of a crime will be found in a particular place 1. before forced entry 1. Citizen informants presumed reliable iii. 12 seconds is enough 2. VI. purpose ii. Underlying basis of knowledge b. Circumstances that justify arrest warrants based on probable cause i. No application of rule if door is open 4. notice of authority and 2. Two-pronged test is a factor a. The Warrant Clause a. V. or lead to destruction of evidence iii. Requirements i. futile. Magistrate approval c. Knock and Announce Rule: Officer must give. Exceptions galore b. . Application i. Hot Pursuit exception make unannounced entries reasonable 3. Fair probability [probable cause] to believe that the person to be arrest has committed a crime b. Application of KA Rule 1. Media ride-along is disallowed to observe execution of warrants Probable Cause and Search Warrants a. Described with Particularity iii.

Building searches include curtilage 3. Even if warrant has been established based on probable cause. Arrests i. Search of places: Requires reasonable cause to believe objects are located there based on i. Limitations: PC can be lost if information upon which it is based upon becomes stale VII. No deadly force to effect arrest unless a. warrant is not required and is not therefore presumptively unreasonable [diff than searches] 1. Cannot search a person through forced endoscopy [unreasonable] d. Other Probable Cause Requirements a.a. Statute: PC + Reasonable cause to believe person has committed a felony/misdemeanor iii. Public places: PC to believe person committed a felony 1. Probable cause must be found post-warrantless arrest 1. Seizure of evidence: Permitted if probable cause to believe it will lead to conviction or arrest b. may be unreasonable v. If no hearing within 48 hrs. it may still be ‘unreasonable’ e. Anticipatory search warrants are permissible as long as they are conditioned on events that would create probable cause Warrantless Searches + Seizures + Arrests a. Suspect’s home: Requires arrest warrant unless exigent circumstances 1. anything more may not be a. Third-party home: Search warrant is required to search for suspect in third person’s home vii. expectation of privacy is higher in someone’s home than in someone’s car vi. 48 hours is reasonable. Search incident-to-arrest permissible ii. Different types of guests: VIII. Type of crime ii. PC to believe D poses a threat of death to officer/public iv. Nature of the place ii. Description of place searched must be with reasonable particularity i. Information reasonably available 1. Wrong address is permissible only if reasonable stop to obtain correct address were taken 2. Requires only probable cause. Nature of item sought iii. Opportunity for concealment c. . All officers can use info to make arrest or conduct search b.

Frisk: Can only be used for protective purposes and not to find evidence of crime a. Encounter v. Requirement to justify a stop 1.1. An officer must stop questioning if it is an encounter. Inspection of weapon permissible if weapon is found c. Reasonable suspicion [RS] determined by the source of information and suspicious behavior a. Temporary business guests: No arrest warrant required b. Arrest 1. it may rise to an arrest . Stop v. Stop or Seizure: A reasonable person would believe he was not free to leave [Medenhall test] 1. Factors i. Race ii. Profiles of criminal activities iii. Protective sweeps incident to arrest may be allowed if RS someone other than arrestee is on premises who poses a risk of harm and limited to inspection of spaces where a person may be found iv. Stop 1. if he continues. Terry: Officer has reasonable cause [RC] to suspect person is engaged in crime and may be armed 1. To justify frisk. it may rise to a stop requiring reasonable suspicion a. and may include areas where the person might gain immediate control of a weapon b. Allows officers right to order driver and passengers out of vehicle during a legal stop 2. Stop and Frisk [warrantless search exception] i. Factory sweep: refusal to answer questions allows one to leave v. Non-physical show of authority to make a stop is not a stop until suspect yields to it 2. Overnight guest: arrest warrant required 2. Flight in a high crime area iii. RS requires objective particularized basis for suspecting a person of crime based on TOC b. Totality of circumstance ii. If Terry stop sufficiently long. Scope of frisk extended if suspect is dangerous. RC to believe person poses a threat of harm to officer/others i. Objective communication of officer’s authority to restrain citizen’s freedom of movement b.

Definition: If the police has a right to be there.c. Probable cause is necessary to seize an item in plain view ii. Plain View Doctrine i. Always permissible so long as there is probable cause to believe it contains evidence of criminal activity 1. determines the grab area iii. Police may have ‘automatic right’ to open containers in the arrestee’s grab area to “protect themselves” vi. Requires probable cause to search an area of the automobile but not probable cause to arrest an occupant 2. The area within his immediate control ii. Search may come before or after arrest so long as police has probable cause to arrest before the search 1. Warrantless seizures permissible if item’s identity is apparent and police has probable cause to believe it is drugs f. Exigencies ‘can’ justify a search beyond the grab area 4. Protective sweeps can extend beyond grab area iv. his grab area extends with him 3. Search incident to arrest requires probable cause to arrest a person. Passenger compartment searches admissible so long as there was a custodial arrest of an occupant of the automobile 1. Plain Touch Doctrine 1. motor homes when reasonable to believe they are not used for residency . Search Incident to Arrest [extension of warrantless searches] i. Allows searches of the person vii. not search. Custodial arrests permits ‘automatic searches’ incident to arrest 1. Police may search person and things in arrestee’s possession at police station v. then seizure of evidence of any crime may be permissible 1. Limitations 1. Warrantless Search of Cars i. Equal protection still protects stops based on race e. If arrestee himself moves. The time of arrest. Custodial arrests do not extend right to search 2. Arrest Power Rule: Search may extend only to the 1. Person of the arrestee and 2. and does not arrest the suspect d. Police cannot create grab area by brining suspect to item they wish to search 2. but not probable cause of the search ii. Rule inapplicable when officer only issues a citation. and the object is immediately apparent. Pre-textual stops are permissible so long as there was probable cause to arrest i. Scope of warrantless search of cars 1.

Warrantless entry of home impermissible if for minor offense iii. warrantless seizures permissible if probable cause to believe it is subject to forfeiture iii. Exigent Circumstance Exception to Warrant Requirement i. Probable cause suspect will a. Administrative Searches a. Mobile containers [luggage. Circumstances where Exigency arises 1. Public Safety a. Police cannot use exception if they could have obtained a warrant before the exigency arises v. . Containers and warrantless search of cars 1. Police cannot create exigent circumstance iv. Police allowed to seize evidence pending a warrant IX. Probable cause for search/arrest and 2. Seizure permitted if based upon probable cause b. Search impermissible unless exigent circumstances make seizure pending a warrant insufficient to underlying interest 2. Destroy or remove evidence c. Destruction of evidence a. Before police can obtain a warrant ii. Excuses warrant and knock and announce rule b. Closed containers: Permitted if probable cause to search the container or the car 3. Hot Pursuit 2. Escape b. Create danger to officers or public 3. pocketbook. Delay would result in significant risk of harm to police or public 3. briefcase] a. Requirements for Rule to apply 1. Concealment: Police also allowed to search passenger’s belongings that may conceal an object of the search g.2.