Criminal Procedure, Ch15
Criminal Procedure, Ch15 CJ 342
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Date Created: 02/11/16
Ch. 15 Search & Seizure Historical • Common law there were very few protections against unreasonable search and seizure. • General Warrant: authorized searches of unspecified persons and places • Fourth Amendment: developed protections against unreasonable search and seizure ◦ response to the Writs of Assistance ◦ “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”- 4 amendment ▪ Reasonableness Clause, search has to be reasonable ▪ Warrant Clause: probable cause from a neutral magistrate, affidavit ◦ Most common rule of thumb- warrant should be procured whenever possible but if a proper exception exists, a warrant may not be necessary • Doctrine of Incorporation: provisions of the Bill of Rights deemed to be essential to a scheme of th ordered liberty are incorporated into the 14 amendment broad limitation on state and local authority ◦ States can provide more protection but not less ◦ Wolf v. Colorado, 338 U.S. 25 (1949) When, Where, and to Whom • Only applies to searches and seizures conducted by law enforcement or agents of law enforcement • Determination of Agency Status: ◦ Whether the government knew of the activity ◦ Whether the citizen was motivated on the basis of assisting the government • Border Searches: ◦ Justified because those crossing the border are not entitled to the protections of the fourth amendment ◦ Must use reasonable methods ◦ Does not apply to searches conducted outside of the United States • Open Field: ◦ Fields surrounding the house and curtilage do not receive fourth amendment protection ▪ Curtilage: land around the house • Protects houses, stores, offices, and places of business • Administrative Inspections: are allowed under the fourth amendment ◦ regulated businesses ◦ inspections to enforce building codes and regulations ◦ public safety issues ◦ courts must balance the need to search against the invasion that such search entails • Abandoned property: fourth amendment does not apply ◦ trash, old buildings, • Does the fourth amendment apply to garbage placed on the curb? ◦ California v. Greenwood, 486 U.S. 35 (1987) • Automobile Inventory Searches ◦ Administrative search not subjective to the fourth amendment ◦ Safekeeping of property and protects police ◦ Cannot be used as a pretext for criminal investigation, have to have a legitimate reason to search other than for criminal use • Searches based on Consent: ◦ Supreme Court refuses to require law enforcement to advise suspects of their right to refuse consent ▪ Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ◦ Law enforcement not required to tell a motorist that they are “free to go” before asking for consent to search ▪ Ohio v. Robinette, 519 U.S. 33 (1996) ◦ Consent must be voluntary ◦ Implied Consent- when law enforcement invited into the home to investigate crime • Third Party Consent ◦ Only valid when there is mutual use of the property ▪ State v. Matlock, 415 U.S. 164 (1974) ◦ Law enforcement can rely on the subjective belief that the person has authority to give consent ◦ Tenancy exceptions ◦ Conflicts regarding co-occupants ▪ Georgia v. Randolph, 547 U.S. 103 (2006) ▪ If one says yes and one says no, the no always wins Scope of Privacy • Seizure: taking into custody of physical evidence, property, or even a person ◦ Property: when there is meaningful interference with an individuals possessory interest in property ◦ Person: law enforcement intentionally restrains an individuals liberty in such a manner that a reasonable person would believe that he or she is not free to leave • Search: official invasion of a persons reasonable expectation of privacy as to their person, house, papers, or effects ◦ Act of looking for evidence Definitions • Person: encompasses the individual as a whole • House: any structure that a person uses as a residence on either a temporary or permanent basis • Papers: business records, letters, diaries, memos, and countless other forms of tangible evidence • Effects: anything that is not a person, house, or paper Reasonable Expectation of Privacy • Katz v. United States, 389 U.S. 347 (1967) ◦ Phone booth story, put a listening device in phone booth, he expected privacy while in the phone booth, determined a violation of the fourth amendment • Fourth Amendment protects people, not places • California v. Greenwood- Supreme Court ruled that fourth amendment search or seizure occurs only when... ◦ The citizen has a manifested subjective expectation of privacy and... ◦ The expectation of privacy is one that society (through the eyes of the court) is willing to accept as objectively reasonable • NO bright line rules ◦ Courts typically upheld minimally intrusive, suspicion less searches on the assumption that privacy expectations are reduced • Airport Security Searches ◦ Searches are deemed reasonable given their minimal intrusiveness, the gravity of the safety interest involved, and the reduced expectation of privacy ◦ Public announcements put the public on notice that ordinary fourth amendment protections do not apply • Sobriety Checkpoints • Jail and Prison Searches ◦ Lowered expectation of privacy ◦ Strip searches of inmates requires a balancing of need versus personal invasion ◦ Strip searches of visitors requires reasonable suspicion Warrant Requirement • N.D.C.C. 29-29-01 • Neutral and detached magistrate- designed to ensure that an impartial judge or magistrate stands between the citizen and the state • Must be probable cause ◦ No precise definition ◦ Prudent and cautious police officers have trustworthy information leading them to believe that evidence of crime might be obtained through a particular search ◦ Some states require more than probable cause • Based on “totality of the circumstances” ◦ Prior record ◦ Flight from the scene ◦ Suspicious conduct ◦ Admissions ◦ Incriminating evidence ◦ Usual hour ◦ Suspect resembles the perpetrator ◦ Evasive and untruthful responses to questions ◦ Obvious attempt to hide something ◦ Presence in high crime area ◦ Furtive gestures ◦ Knowing too much • Officers do not need to eliminate all innocent explanations • Application for search warrant • Affidavit ◦ Precise description of the place or persons to be searched and the things to be seized ◦ Specific facts to establish probable cause ◦ Information must be reliable and fresh • Confidential informants ◦ Aguilar-Spinelli Test: ▪ Demonstrate the informant was reliable and credible; and ▪ Reveal the informants basis of knowledge ◦ Test made it difficult for law enforcement to use anonymous tips ◦ 1983 the Supreme Court relaxed the test by allowing magistrates to look at the totality of the circumstances when using hearsay evidence ▪ Illinois v. Gates 462 U.S. 213 (1983) ◦ Some states still use the stricter Aguilar-Spinelli Test ◦ Limited authority to withhold the name of a confidential informant ▪ Courts balance the interest of the public in preserving the anonymity of the informant against the defendant’s need to have the information to prepare a defense ▪ Where the identity of the informant is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way ◦ Required Specificity: ▪ Fourth amendment requires specificity in describing the place to be searched and the items to be seized • Ex: Various Albums-not specific • Misc. Glassware-not specific • Computer Related Equipment-specific ▪ Courts are less strict when it comes to describing illegal contraband but more strict as it relates to First Amendment Rights ◦ Probable Cause always need for the following: ▪ Arrests with warrants • Do not need to show person will be in a particularized location • Name or “John Doe” warrants ◦ Physical appearance, DNA, etc but no name ▪ Searches and seizures of property with warrants • Must specify the places to be searched • Must specify the items to be seized Anticipatory Search Warrants- probable cause does not need to exist until the warrant is executed and the search conducted • United States v. Grubbs, 547 U.S. 90 (2006), the Supreme Court held that anticipatory search warrants do not violate the Fourth Amendment • Probable cause that some future event will happen. • If it does not happen, you cant do anything. It only works once the event has happened • Time Limitations: ◦ Warrants normally executed during the daytime ▪ Must specifically request a nighttime warrant ▪ Governed by the rules of criminal procedure ▪ Time and requirements vary by state ◦ Service of warrant should take place promptly after issuance ◦ Search can only take as long as is necessary to find the items • Knock-and-Announce rule: ◦ Common law principle that law enforcement officers should announce their authority and intentions before entering a residence ◦ Most states have similar requirements ◦ Reduce the potential for violence and to protect privacy ◦ No time limit between announcement and entry • Wilson v. Arkansas, 514 U.S 927 (1995) ◦ Know-and-Announce elevated to constitutional status ◦ Exigent circumstances may render rule unnecessary ▪ Ex: to protect evanescent evidence aka can easily be destroyed • Richards v. Wisconsin, 520 U.S 385 (1997) ◦ Supreme Court ruled that states may not create a blanket “drug exception” • Hudson v. Michigan, 547 U.S 586 (2006), Supreme Court held that violations of knock-and- announce requirements do not require the suppression of all evidence seized • N.D.R. Criminal Procedure 41 ◦ A state or federal magistrate acting within their jurisdiction....... ◦ Warrants are directed to law enforcement, the warrant has to be used within 10 days, issued during the day time unless given permission otherwise, day time= 6am-10pm • N.D.C.C. 29-29-08 ◦ Can break open a door, dispense of know-and-announce • N.D.C.C. 29-29-09 ◦ May break open any outside door or window in aid to getting in or out Franks hearing (Frank v. Delaware (1978)) • Evidentiary hearing to test the truthfulness of the allegations in the affidavit of probable cause ◦ Hearing required when the defendant makes a substantial preliminary showing that statements in the affidavit were false and necessary to finding probable cause • Illegally seized items must be returned to the owner ◦ Never need to return contraband or items subject to forfeiture ◦ Can keep legally seized items as long as the state has a legitimate interest in the retention Exceptions to the Warrant Requirement • Plain view ◦ Three prongs pursuant to Coolidge v. New Hampshire, 403 U.S. 443 (1971) ▪ The officer has legal justification to be in a constitutionally protected area when the seizure occurs, the evidence seized ... ◦ First prong: lawful access ▪ police must be in a lawful vantage point when they see the evidence in order to seize it ▪ Four ways to have a lawful vantage point • Warrant search • Valid arrest • Warrantless search based on probable cause • Non-searches ◦ Second prong: plain view ◦ Third prong: immediately apparent ▪ Means the police has probable cause to seize the evidence ▪ Police do not need to be absolutely certain that the object is subject to seizure • Exigent circumstances ◦ Law recognizes that law enforcement don’t always have time to obtain a search warrant ◦ Three types of emergencies ▪ hot pursuit • police may pursue the suspect into protected space • do not have to halt an investigation that could potentially endanger peoples lives • five limits to hot pursuit: ◦ police must have reasonable suspicion the person they are chasing committed a crime and is on the premises ◦ police must have reasonable suspicion the person will escape or harm will occur if not apprehended ◦ police must begin from lawful starting point ◦ doctrine only applies to serious offenses ◦ generally, the scope of the search can be broad ▪ likelihood of escape or danger to others absent hot pursuit • police must have a reasonable basis to believe the occupant is seriously injured or threatened with such injury ◦ Brigham City v. Stuart, 547 U.S. 398 (2006)- police entered the home after observing one of four adults hit a juvenile ▪ evanescent evidence • evidence that might be lost or destroyed • reasonable belief that evidence will be destroyed • doesn’t apply to relativity minor offenses • three requirements: ◦ no time to obtain a warrant-must be immediate ◦ clear indication the search will result in obtaining evidence ◦ search is conducted in a reasonable manner ◦ Still requires probable cause • Search incident to arrest ◦ allows police to disarm an arrestee and preserve evidence ▪ must be taken into custody ▪ probable cause to arrest must precede the search ◦ police can search the body of the arrestee and the area within that persons immediate control (the area where someone could lunge and be able to reach) *same with a vehicle ▪ Chimel v. California, 395 U.S. 752 (1969) ◦ protective sweeps of dwellings • Automobile ◦ Carroll Doctrine- Carroll v. United States, 267 U.S. 132 (1925) ▪ probable cause that the vehicle contains evidence of a crime ▪ securing a warrant is impractical ◦ rationale: ▪ inherent mobility of vehicles ▪ reasonable expectation of privacy is smaller ▪ driving is a privilege, not a right ◦ three requirements ▪ only applies to automobiles ▪ search must be premised on probable cause ▪ impractical to obtain a warrant ▪ can search closed containers located in the vehicle and passenger belongings if probable cause of crime • United States v. Ross, 456 U.S. 798 (1982) ◦ can search closed containers and passengers contemporaneous to an arrest ▪ New York v. Belton, 453 U.S. 454 (1981) ◦ can search a vehicle contemporaneous to arrest only if arrestee is within reaching distance or reasonably believe the vehicle contains evidence of the offense of arrest ▪ Arizona v. Gant, 556 U.S. 332 (2009) ▪ Limits Belton Actions Sanctioned by a Traffic Stop • Maryland v. Wilson, 519 U.S. 408 (1997)- officer can order a person to stand outside vehicle • Michigan v. Long, 463 U.S. 1032 (1982)- frisk the driver and/or search the passenger compartment for safety reasons • Miranda v. Arizona, 384 U.S. 436 (1966)- do not need to provide Miranda for routine questions with a traffic stop Exceptions to Probable Cause Requirement • stop and frisk: ◦ Terry v. Ohio, 392 U.S. 1 (1968) ◦ Law enforcement technique for police officer to stop, question, and sometimes search suspicious people ◦ Limited pat down for officer safety-search for weapons only ◦ Reasonable suspicion standard to stop and to frisk ◦ A stop always precedes a frisk but does not always give rise to a frisk ▪ must have separate reasonable suspicion that person is armed and dangerous ▪ need additional suspicion, not ever stop has a frisk • Stop- detention of someone for investigation ◦ Fourth amendment only applies when an officer by show of authority restrains a persons liberty ▪ reasonable person does not feel they are free to leave ▪ court must consider all circumstances surrounding the encounter • Duration of stop- no bright line rule ◦ based on 3 factors ▪ public interest served by seizure ▪ nature and scope of the intrusion ▪ objective facts the officer relied on in light of his knowledge and expertise • “Free to leave” ◦ stop does not take place when a person believes free to leave ◦ leaving during the course of conversation could be risky endeavor • Frisk- superficial examination by an officer of the persons body surface or clothing to discover weapons or items that could cause harm ◦ need reasonable suspicion the person is armed and dangerous ◦ can only reach into garment if feel something that resembles a weapon ◦ cannot use a frisk as a fishing expedition ◦ can seize contraband found in plain view during a pat down ▪ Michigan v. Long, 463 U.S. 1032 (1983) ◦ police can seize contraband detected through their sense of touch- “plain feel” exception ▪ Minnesota v. Dickerson, 508 U.S. 366 (1993) • Vehicle stops- officer must have a reasonable and articulate suspicion that a law is being violated • Drug courier profiles- not enough to satisfy reasonable suspicion ◦ area of law that is developing and changing • School searches ◦ students do not lose their constitutional rights at the schoolhouse door ◦ searches are to be judged by the reasonableness standard, not probable cause ◦ generally upheld if the search is reasonably related to the objectives of the search and not excessively intrusive • Drug testing: ◦ permit supervisory personnel to order urinalysis testing of public safety officers, railroad employees involved in train accidents, customs inspectors, and student athletes ◦ higher level of scrutiny when the administrative search results are forwarded to law enforcement, higher standard compared to reasonable suspicion because you are involving law enforcement • N.D.C.C. 29-29-21 ◦ temporary questioning in public, reasonable suspicion, may demand name and address and explanation of actions, may search the person if reasonably suspicious of danger-may take and keep anything found while questioning and must return if legally owned, if not they are arrested Electronic Surveillance • Issue is whether the methods infringe on a persons reasonable expectation of privacy ◦ supreme court ruled that there is no expectation of privacy with cordless and cellular phones ◦ use of pen registers is not a search, records all the phone numbers you've called ◦ high altitude photography is not a search ◦ thermal images are a search • Omnibus Crime Control and Safe Streets Act of 1968: ◦ Interception of electronic communications is okay as long as one party consents ◦ Allows wiretap orders for certain enumerated crimes • USA PATRIOT Act- expands the governments power to conduct electronic surveillance ◦ reauthorizing amendments act of 2006 Exclusionary Rule • Judicially created rule that prohibits the use of illegally obtained evidence in a criminal prosecution of the person whose rights were violated by the police in obtaining that evidence • Evidence obtained through an unlawful search and seizure cannot be used ◦ Weeks vs. United States, 232 U.S • Purpose was to deter illegal searches and seizures by the police in order to enforce constitutional requirements th • Made applicable to the states under the 14 amendment ◦ Mapp vs. Ohio, 367 U.S. 632 (1961) • Applies to all constitutional provisions that govern law enforcement efforts to secure evidence including the 4 , 5 , 6 , and 14 amendments th ◦ 5 : thranda rights ◦ 6 : speedy trail and a lawyer ◦ 14 : due process • Good-Faith exception ◦ evidence obtained through a search warrant that is later held to be invalid may still be admitted as evidence at trail if the police who conducted the search relied on the warrant in good faith ▪ applies to searches conducted pursuant to statutes that are later determined to be unconstitutional ◦ does not apply to the following: ▪ if the magistrate was misled by the affidavit ▪ magistrate abandons judicial rule ▪ affidavit lacks probable cause ▪ warrant is facially deficient ◦ Impeachment Exception: ▪ prosecution can seek to use illegal seized evidence for the purpose of impeaching a witness • used to impeach not to prove quilt of the crime ▪ applies only to criminal defendants, not other witnesses • cannot use on any witnesses, only the defendant ◦ Must have standing to invoke the exclusionary rule: ▪ automatic standing to anyone who was legitimately on the premises searched ▪ does not apply to passengers of an automobile (can challenge the search/seizure but not the stop) ▪ must have a possessory or legitimate privacy interest in the place that was searched ◦ Fruit of the poisonous tree doctrine- holds that evidence derived from other evidence that is obtained through an illegal search or seizure is itself inadmissible ▪ three exceptions: • purged taint ◦ question whether the derivative evidence was obtained by exploitation of the initial unconstitutional act or instead by other meas that are purged of the primary taint • independent source ◦ evidence later discovered during a valid search that is wholly independent of the initial illegal search • inevitable discovery ◦ evidence would be found regardless of unconstitutional police conduct
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