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Criminal Procedure - Outline Part 7

By Collin B. Hardee

Download the PDF version of this outline

<< Part 6 | Part 8 >>

Search Warrants Constitutional Debate

4th Amendment contains 2 clauses:

  • The “Reasonableness Clause” – declares a right to be free from unreasonable searches and seizures of persons, houses, papers and effects
  • The “Warrant Clause” – sets out the requirements of any valid warrant (most especially, that it be supported by probable cause, and that it particularly describe “the place to be searched, and the persons or things to be seized.”

2 Views on the Relationship Between the Clauses – If the police search and seize without a warrant, have they, at least presumptively, violated the 4th Amendment?:

  • Justice Jackson in Johnson v. US (1948) → “The point of the 4th Amendment . . . is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often-competitive enterprise of ferreting out crime . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”
    • Traditional position that the 4th Amendment is better served if police officers apply for warrants, rather than act on the basis of their own probable cause determinations, i.e., “You always have to get a warrant – UNLESS YOU CAN’T”
    • Katz v. US – “Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th Amendment – subject only to a few specifically established and well-delineated exceptions.”
  • US v. Rabinowitz (1950) → The proper 4th Amendment test “is not whether it is reasonable [or practicable] to procure a search warrant, but whether the search was reasonable.”
  • The text of the Amendment bars unreasonable searches and seizures; nowhere does it state that warrants are required, only that when warrants ARE sought they must meet certain specifications
Lo-Ji Sales, Inc. v. NY (1979)

Items of Sale Don’t Lose Privacy Expectation Under Plain View Doctrine – even in public places, the circumstances may be such that there is a reasonable expectation of privacy against government intrusion, rending the “plain view” doctrine inapplicable (e.g., the fact that a merchant has placed items on display in order to sell them to the public does not mean that he has no legitimate expectation of privacy against government intrusion; where a merchant displays porn books/films, he has NOT lost his right to object to an unreasonable search and seizure of them)

  • However, if police had merely looked at the covers of the books/films and concluded they were obscene, this probably would have fallen within Plain View doctrine, since the customers were free to do the same

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 Warrant Particularity Requirement

The “state with particularity” requirement is intended to prevent general searches, the immediate evil “that motivated the framing and adoption of the 4th 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)
Particularity by Incorporation?

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 4th 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)
Execution of a Search Warrant

Wilson v. Arkansas (1995) The 4th 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 4th 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 4th 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.

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