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Week 1 Notes

by: Nicole Wolfe

Week 1 Notes CJ 342

Nicole Wolfe
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About this Document

These notes cover the 1st half of chapter 15 Search and Seizure
Criminal Procedure
Kristi Venhuizen
Class Notes
Criminal Justice




Popular in Criminal Procedure

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This 5 page Class Notes was uploaded by Nicole Wolfe on Thursday January 28, 2016. The Class Notes belongs to CJ 342 at University of North Dakota taught by Kristi Venhuizen in Spring 2016. Since its upload, it has received 36 views. For similar materials see Criminal Procedure in Criminal Justice at University of North Dakota.


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Date Created: 01/28/16
CJ 342 Criminal Procedure Kristi Venhuizen Chapter 15 Search &Seizure Historical Background  Common law there were very few protections against unreasonable search & seizure o Most contested amendment  General warrant – authorized searches of unspecified persons and places  Fourth Amendment – developed protections against unreasonable searches seizures o Response to the Writs of Assistance o “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches & 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”  Reasonableness clause – 1 part nd  Warrant clause – 2 part o 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 ordered liberty are incorporated to the 14 amendment’s broad limitations on state and local authority. o States can provide more protection but not less o 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: o Whether the government knew of the activity o Whether the citizen was motivated on the basis of assisting the government  Agency rat v. crusader Border searches th  Justified because those crossing the border are not entitled to the protection of the 4 amendment.  Must use reasonable methods  Does not apply to searches conducted outside of the U.S. Open fields th  Fields surrounding the house and curtilage do not receive 4 amendment protection  4 amendment protects houses, stores, offices, and places of business th Administrative inspections – are allowed under the 4 amendment  Regulated businesses  Inspections to enforce building codes and regulations  Public safety issue  Courts must balance the need to search against the invasion that such search entails th Abandoned property – 4 amendment does not apply th  Does the 4 amendment apply to garbage placed in the curb? (no) o California v Greenwood, 486 U.S. 35 (1987)  Safe keeping of property and protects police  Cannot be used as a pretext for criminal investigation Searches based on consent  Supreme Court refuses to require law enforcement to advise suspects of their right to reuse consent o 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 o Ohio v Robinette, 519 U.S. 33 (1996)  Consent must be voluntary  Implied consent – when law enforcement is invited into the home to investigate crime Third party consent  Only valid when there is mutual use of the property o State v Matlock, 415 U.S. (1974)  Law enforcement can rely on the subjective belief that the person has authority to give consent  Tenancy exception  Conflicts regarding co-occupants o Georgia v Randolph, 547 U.S. 103 (2006) o If there are two people and one says “yes” and the other says “no” the “no” answer always wins. (This is difficult for domestic violence cases) Scope of privacy  Seizure – taking in to custody of physical evidence, property, or even a person o Property – when there is meaningful interference with an individual’s possessory interest in property o Person – law enforcement intentionally restrains an individual’s liberty in such a manner that a reasonable person would believe that he or she was not free to leave  Search – official invasion of a person’s reasonable expectation of privacy as to their person, house, papers, or effects o 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 isn’t a person, house or paper Reasonable expectation of privacy  Katz v U.S., 389 U.S. 347 (1967)  4 amendment protects people, not places California v Greenwood – Supreme Court ruled that 4 amendment search or seizure occurs only when:  The citizen has 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, suspicionless 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 interests involved, and the reduced expectation of privacy  Public announcements put the public on notice that ordinary 4 amendment protections do not apply Sobriety checkpoints Jail and prison searches  Lowered expectation of privacy  Strip searches of inmates requires a balancing of need vs 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 based on probable cause o No precise definition o Prudent and cautious police officers have trustworthy information leading them to believe that evidence of crime might be obtained through a particular search o Some states require more than probable cause  Based on “totality of the circumstances” o Prior record, flight from the scene, suspicious conduct, admissions, incriminating evidence, unusual 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 o Precise description of the place or persons to be searched and the things to be seized o Specific facts to establish probable cause o Information must be reliable and fresh  Confidential informants o Aguilar-Spinelli Test  Demonstrate the information was reliable and credible; and reveal the informant’s basis of knowledge  Test made it difficult for law enforcement to use anonymous tips  1983 the Supreme Court relaxed the test by allowing magistrate to look at the totality of the circumstances when using hearsay evidence  Illinois v Gates, 162 U.S. 213 (1983)  Some states still use the stricter Aguilar-Spinelli Test  Limited authority to withhold the name of a confidential informant o 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 o 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: o 4th amendment requires specificity in describing the place to be searched and the items to be seized  Ex: various albums-not specific; computer related equipment-specific o Courts are less strict when it comes to describing illegal contraband but more strict as it st relates to 1 amendment rights  Probable cause always needed for the following: o Arrests with warrants  Do not need to show person will be in a particularized location  Name or “John Doe” warrants o Searches and seizures to property with warrants  Must specify the place 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 o U.S. v Grubbs, 547 U.S. 90 (2006), the Supreme Court held that anticipatory search warrants do not violate the 4 amendment  Time limitations: o Warrants normally executed during the daytime  Must specifically request a nighttime warrant  Governed by the Rules of Criminal Procedure  Times and requirements vary by state o Service of warrant should take place promptly after issuance o Search can only take as long as is necessary to find the items  Knock and announce rule: o Common Law Principle that law enforcement officers should announce their authority and intentions before entering a residence o Most states have similar requirements o Reduce the potential for violence and to protect privacy o No time limit between announcement and entry  Wilson v Arkansas, 514 U.S. 927 (1995) o Knock and announce elevated to constitutional status o Exigent circumstances may render rule unnecessary  Ex: to protect evanescent evidence  Evanescent: sensitive, perishable  Richard v Wisconsin, 520 U.S. 385 (1997) o Supreme Court ruled that states may not create a blanket “drug exception”  Hudson v Michigan, 547 U.S. 586 (2006) o Supreme Court held that violations of knock and announce requirement do not require the suppression of all evidence seized  NDR Crim. P 41  NDCC 29-29-08  NDCC 29-29-09  Franks Hearing (Franks v Delaware (1978)) evidentiary hearing to test the truthfulness of the allegation in the affidavit of probable cause o 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 o Never need to return contraband or items subject to forfeiture o Can keep legally seized items for as long as the state has a legit interest in their retention


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