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Criminal Procedure - Outline Part 24

By Collin B. Hardee

Download the PDF version of this outline

<< Part 23 | Part 25 >>

5. Was It Reasonable? Did Police Have Adequate Grounds?

a. Probable Cause to ARREST → exists where the facts and circumstances within the officer’s knowledge and of which they have reasonably trustworthy info are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested

  1. Violation of the law has been committed;
  2. The person to be arrested committed the violation

b. Probable Cause to SEARCH → exists where the facts and circumstances within the officer’s knowledge and of which they have reasonably trustworthy info are sufficient in themselves to warrant a man of reasonable caution that evidence subject to seizure will be found in the place to be searched (most specify 1 of 4 categories)

  1. The specific items to be searched for are connected w/ criminal activity; and
  2. These items will be found in the place to be searched

c. Issue of Probable Cause arises in two ways:

  1. Police apply to magistrate for SW or AW – warrants can only be issued if there is probable cause; police set, under oath, the info/facts they believe justifies issuance of a warrant. Magistrate must ask:
    1. Is info trustworthy?
    2. If yes, is there enough information?
      1. Magistrate must also be: (Neutral and Detached)
      2. Standard of Review for Magistrate’s Determination – did magistrate have a “substantial basis for concluding” that a search would uncover evidence of wrongdoing based on the 4 corners of the affidavit (not the hearing)
        1. Can challenge truthfulness of officer’s affidavit via Franks Hearing
  2. Police conducting a warrantless arrest or search – the D may seek to have evidence excluded if they believe police violated 4th b/c didn’t obtain a warrant or lacked PC

d. Informant Information?

  1. Totality of the Circumstances Test (Gates) → So long as a neutral magistrate can reasonably determine that, based on the informant’s info and all other available facts, there is PC to believe that a search/arrest is justified, he may issue warrant; Key to Gates test is corroboration/future event predictor
    1. Aguillar/Spinelli “Factors”
      1. Basis of Knowledge → how did informant come across information
        1. Personal observations of officer and inferences from other observable facts (presumed trustworthy)
        2. Informant/Tipster statements → Must implicate/suggest criminal activity
          1. If anonymous → prediction of future activity usually sufficient
          2. If tipster → if correct about X, Y, and Z, he is probably correct about criminal activity
      2. Veracity/Reliability → how reliable and credible is the witness; did tip predict future with details?
        1. Gates allows a strong showing on one of the prongs to make up for an inadequate showing on the other
        2. Presumed reliability of affiant under oath (police, detective, prosecutor)
        3. Innocent citizen → good reputation; making statements against own interest
        4. Past record of informant’s reliability
        5. Corroboration of police and informant/tipster info (more = better)
    2. Staleness Doctrine → a tip/info from an informant can grow “stale” if sat on for too long without acting

e. Arrest Warrants

  1. Remember:
    1. An arrest is a “seizure”, but not all seizures are arrests
    2. All arrests MUST be supported by probable cause, but do not always need a warrant
    3. Only NEED AW to get into the home of the arrestee
    4. If warrantless arrest, suspect needs PC hearing within 48 hours (Gerstein Hearing)
    5. Interest Protected by AW → issued by magistrates upon showing of PC to believe that subject has committed an offense; therefore, AW serves to protect an individual from an unreasonable seizure
    6. Summary:
      1. Public Place = PC ONLY (no warrant needed)
      2. Home = PC + AW (+ “Reason to believe home” requirement)
      3. 3rd Party Home = PC + SW
  2. Arrest in Public Area
    1. An arrest warrant is not required to make a felony arrest in a public place; just need PC only
    2. Porch is considered public
  3. Arrest in Residence
    1. Absent exigent circumstances, the police may not enter a private home to make a warrantless arrest; must have PC + AW from magistrate (Watson)
    2. If there are NO exigent circumstances, the police may NOT enter a private home to make a warrantless arrest b/c entry into a private home is an extreme intrusion (Payton)
      1. Result of Invalid Arrest? → a warrantless arrest made in violation of Payton will NOT prevent the D from being brought to trial, but evidence seized during the arrest will not be admissible
      2. Confession Stemming from Warrantless Arrest? → confession that follows a warrantless arrest will NOT be excluded
      3. Confession Following An Arrest Lacking PC → confession made after arrest with no PC WILL be excluded
    3. Need “Reason to believe suspect is within” the suspect’s home to go in (Payton)
  4. Arrest in 3rd Person’s Residence (Steagald Third-Party Principle)
    1. Absent exigent circumstances, need probable cause and a SW to search a home
    2. Reasoning? → b/c 3rd party did not commit crime that opened door to police
  5. Exigent Circumstances (Exceptions to Payton):
    1. Hot pursuit of a fleeing felon;
    2. Imminent destruction of evidence;
    3. Need to prevent a suspect’s escape; or
    4. Risk of danger to the police or other persons inside/outside the dwelling

f. Search Warrants

  1. Remember:
    1. SW are not required but “searches conducted outside the judicial process, without prior approval by judge/magistrate, are per se unreasonable under 4th Amendment – subject to exceptions” (Katz)
      1. Today: no SW warrant required, but strong preference for SW; MAY REBUT presumption if falls under an exception
      2. Federal Rules of Criminal Procedure Rule 41 → lists everything that should be on a SW
        1. Violation of Rule 41? → Does NOT result in suppression of evidence
    2. If getting a warrant, must be authorized by neutral and detached magistrate – judge cannot join the search (Lo-Ji Sales)
    3. If getting a warrant OR if police conduct warrantless search, must have PC
    4. Particularity Requirement – preventing general warrants
      1. Particularly describes the PLACE to be searched
      2. Particularly describes the ITEMS to be seized
        1. Particularity by Incorporation → warrant MAY cross reference other documents that are ATTACHED to warrant
    5. Supported by Sworn Affidavit
    6. Inventory, Receipt, and Return
    7. Staleness Doctrine – PC must be present on the day of the planned arrest/seizure
    8. Interest Protected by SW → issued upon showing of PC to believe that the legitimate object of a search is located in a particular place; therefore, safeguards an individual’s interest in the privacy of his home and possession against unjustified intrusion of the police
  2. Knock-and-Announce
    1. 4th Amendment prohibition on unreasonable searches and seizures contains an implicit “Knock-and-Announce” Per Se Rule previously embedded in the common law (Wilson)
    2. Where Unannounced Entry Justified – Must knock-and-announce before entering, with exceptions:
      1. Threat of physical violence;
      2. Prisoner escapes from police and retreats into his dwelling;
      3. Reason to believe that evidence will likely be destroyed if advance notice given
    3. Richards Rule – To justify a “no-knock” entry, police must have “reasonable suspicion” that knocking and announcing presence, under particular circumstances, would be:
      1. dangerous or
      2. futile, or
      3. it would inhibit the effective investigation of the crime, allowing the (3) destruction of evidence
        1. “Reasonable Suspicion” Standard – must exist “some minimal level of objective justification” (less demanding than PC)
    4. Silence/Refusal after Knock-and-Announce
      1. If occupant is known to be home, but won’t answer or refuses entry, officer may use force to break in after giving the occupant an adequate time to respond
    5. Must wait approximately 15-20 seconds before entering (Banks)
  3. In Anticipation of Warrant (McArthur)
    1. Police may ensure a suspect doesn’t destroy evidence while a warrant is obtained, i.e., allowed to hold someone while police go get warrant
    2. Police must maintain the status quo
    3. Reasonable to secure scene/suspect while wait for SW if:
      1. PC to believe residence contained evidence of crime/contraband
      2. Good reason to fear that, unless restrained, suspect could/would destroy evidence
      3. Didn’t arrest suspect but reasonably restrain them (e.g., watching them/making sure they don’t go in house alone)
      4. limited time period that was no longer than reasonably necessary for police, acting with diligence, to obtain warrant (e.g., 2 hours was okay)
  4. Destroying property in a search
    1. If going to damage property, must show reason to believe destruction is necessary
  5. Scope of Search of Premises After Entry – once officers are lawfully on the premises to execute a warrant, various principles apply
    1. Police may search any container large enough to hold the criminal evidence sought in warrant (only allowed to search containers that could potentially contain evidence sought – not search everything)
    2. Police may seize items not described in warrant, if they have PC to believe it is seizable item (e.g., contraband, fruit of crime, instrumentality, evidence of crime)
      1. Plain View Doctrine
    3. Info that becomes available immediately before or during search may require police to cease/narrow search
    4. If police, acting in good faith belief, make reasonable and honest mistake and find something beyond scope of warrant, search can still be valid, e.g., searching wrong apartment (Garrison)
      1. Court has recognized “need to allow some latitude for honest mistakes that are made by officers in dangerous and difficult process of making arrests and executing search warrants”
  6. Anticipatory SW
    1. Situations when police know drugs are going to be delivered to a residence
    2. Two (2) requirements:
      1. PC to believe something to occur; and
      2. if it occurs, PC to believe contraband is in a specified place/home
    3. Rule is about the HOUSE, not the PERSON
  7. Detaining/Searching Person During Warranted Searches
    1. SW must explicitly authorize the search of the person
    2. A warrant to search a home or other premises does NOT implicitly authorize the search of persons found at the scene, even if the criminal evidence for which police are searching for might be on them
      1. Police must have independent probable cause to search the person plus an exception to warrant requirement (Independent PC + Exception to Warrant Requirement = Search of Person at Scene) (Ybarra)
        1. “a person’s mere proximity to others independently suspected of criminal activity does NOT, without more, give rise to PC to search that person”
    3. May automatically detain anyone at location of search for length of search with use of “reasonable force” to secure and maintain detention, i.e., no PC needed (Summers)
      1. May detain using handcuffs (Mueller)
    4. May detain individuals in the immediate vicinity of the premises to be searched; 1 mile away was too far (Bailey)
      1. Summary:
        1. Immediate Vicinity = Curtilage + a bit more (1 mile away = too far)
        2. May automatically DETAIN:
          1. Occupants of residence at time of search; AND
          2. Persons discovered immediately outside residence at time of search
        3. Must have independent grounds for PC + Exception to search person at scene of crime
  8. Summary – Broad Categories of Exceptions to SW
    1. Exceptions dispense with search warrant requirement; do NOT dispense with PC requirement
    2. Always require “reasonableness”
    3. Prosecution must prove exceptions apply if no SW – “Before agents of gov. may invade the sanctity of the home, burden is on the gov. to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries”
    4. If have SW, burden on Defendant to prove they don’t apply
    5. 6 broad categories of exceptions to SW Requirement:

a. (1) Search Incident to Lawful Arrest (SILA) → MUST BE CONTEMPORANEOUS to arrest, i.e., no time in between

  1. Is the arrest lawful (supported by PC)?
  2. Chimel Rule → when an arrest is made, it is reasonable for arresting officer to:
    1. Search the person arrested to remove any dangers to police officer; (this right to conduct a warrantless search on arrestee is automatic, i.e., need no further PC to believe arrestee has weapons/drugs (Robinson)) and
      1. This includes looking into “containers” that are on the person (Robinson, e.g., heroin in cig pack, purses, wallet, etc.)
      2. When a SILA occurs, police may examine items of personal property found on the person of the arrestee, not limited to items suspected of being weapon
        1. This is more than a pat-down; a thorough search
    2. Search & seize evidence within the area of the arrestee’s immediate control (grabbing area)
      1. Rationale: (1) officer safety and (2) prevention of destruction of evidence
  3. Arrest Inventories → When an individual is incarcerated, even temporarily, upon booking, without a warrant or PC, they will be searched (protect arrestee from theft; reduce false claims of theft; ensure safety of arrestee, prisoners, and police)
    1. Body Cavity Search? → Not under Arrest Inventory search; must show evidence that something is being concealed first
  4. Cell Phones & Electronic Storage Devices → NO SILA; Cannot search through cell phone with SILA exception; need a warrant b/c cell phone doesn’t fit Chimel concerns (policy decision; not reconciled w/ Robinson) (Riley)
    1. Officer can prevent phone from locking if seized in unlocked state
    2. Need a warrant if NOT physical SILA

b. (2) Plain View (and Touch) Doctrine

  1. Applies to seizures; NOT searches b/c no additional search/intrusion into home
  2. Police may seize unnamed items as long as search was conducted in proper area and unnamed item was in “plain view”
  3. No inadvertence requirement for police – don’t have to find item by “accident” or unintentionally
  4. For doctrine to be applied so that warrantless seizure of evidence is allowed, 3 requirements:
    1. Officer must have lawful right to be in place that view is from, i.e., can’t trespass to get into viewable position;
    2. Officer must have lawful right to access object; and
    3. The object’s incriminating nature must be “immediately apparent” – object has to be viewable and not microscopic (Horton)
      1. Officer needs PC (when looking at surrounding circumstances) to believe an object is incriminating and thus subject to seizure; not merely reasonable suspicion (Hicks)
  5. Plain Touch
    1. Officer may lawfully pat down a suspect’s outer clothing for weapons and if upon feeling the contours/mass makes the objects identity immediately apparent, its warrantless seizure would be justified by same practical considerations in plain view doctrine (Dickerson)
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