Criminal Procedure - Outline Part 7

Magistrate That Leads Search is NOT “Neutral & Detached” → a magistrate who not only accompanies the police to the scene to search, but actively participates in the search, is not neutral and detached – the court invalidated the search and its fruits b/c of the magistrate’s lack of neutrality

Consent to Search Induced by Reference to Invalid/False Warrant → if the police state that they have a search warrant, and the warrant is in fact invalid (either b/c of insufficient definiteness, lack of probable cause, etc.) the consent of the person whose premises are to be searched is similarly invalid – such consent is given in the face of “colorably lawful coercion,” and cannot be regarded as voluntary

The “state with particularity” requirement is intended to prevent general searches, the immediate evil “that motivated the framing and adoption of the 4^th Amendment,” Payton v. NY (1980), and to prevent “the seizures of one thing under a warrant describing another.” Andresen v. Maryland (1976)

• “Together with other fruits, instrumentalities, and evidence of crime at this time unknown” should be read in a fair context as “authorizing only the search and seizure of evidence relating to” the particular crime under investigation (Andresen)

The fact that the application (what the officer actually searches and seizes) adequately described “the things to be seized” does NOT save the warrant from its facial invalidity. The 4^th Amendment by its terms requires particularity in the warrant, not in the supporting documents.

A warrant MAY “cross-reference other documents” if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.

Staleness Doctrine → the longer the attenuation between the criminal act and the warrant, the more likely the probable cause will “expire”

• For a warrant, must show that probable cause is present on the day of the planned arrest/seizure and it stays valid only for a few days after that set date
• However, police can “refresh” the probable cause by “double-checking”
• Rule is usually only applicable to fungible/expendable/sellable items (e.g., drugs, contraband)

Wilson v. Arkansas (1995) → The 4^th Amendment prohibition on unreasonable searches and seizures contains an implicit “Knock-and-Announce” Per Se Rule previously embedded in the common law

• “[HOWEVER], this is not to say that every entry must be preceded by an announcement. The 4^th Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.”
• EXCEPTIONS (where unannounced entry may be justified):
  1. Under circumstances presenting a threat of physical violence;
  2. Where a prisoner escapes from him and retreats to his dwelling (“senseless ceremony” to require an officer in pursuit of a recently escaped arrestee to make an announcement prior to breaking the door to retake him);
  3. Where police have reason to believe that evidence would likely be destroyed if advance notice were given

Exception to “Knock-and-Announce” During Entry Where No Response From Inhabitants – If the officer identifies himself, and is then refused entry, he may use FORCE to break into the premises

• Silence? → If the occupant is known to be home, and makes no answer, the officer may break in after giving the occupant an adequate time in which to respond.
  • EXCEPTION where evidence may be DESTROYED (See Richards)

Richards v. Wisconsin (1997) → the ordinary duty to give the occupant an adequate time to answer the door will NOT APPLY under circumstances in which this would be dangerous (e.g., the occupant is believed to be armed and violent) or would likely lead to the destruction of evidence

• In the case of evidence, the more easily disposed-of the evidence is, the less time the police must wait
• Absent? → If there is no one home, the officer may also break in – searches have not been held “unreasonable” solely b/c they were executed by forcible entry in the absence of the inhabitants
• Holding: the 4^th A does not permit a blanket exception to the knock-and announce requirement for this entire category of criminal activity.
• Rule: In order to justify a "no-knock" entry, the police must have "reasonable suspicion" that knocking and announcing their presence, under the particular circumstances, would be (1) dangerous or (2) futile, or that it would inhibit the effective investigation of the crime, by for example, allowing the (3) destruction of evidence.
  • "Reasonable suspicion" standard: must be more than an "inchoate and unparticularized suspicion or 'hunch.'"
  • There must exist "some minimal level of obj. justification."
  • Less demanding standard than PC.

Richards Rule: “No knock” allowed if “reasonable suspicion” that knock would:

1. be dangerous
2. futile OR
3. lead to destruction of evidence

Will come back to K/A in Hudson v. Michigan -- suppression does NOT apply.

• What Can Be Searched During a Search Warrant