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Criminal Procedure - Outline Part 8

By Collin B. Hardee

Download the PDF version of this outline

<< Part 7 | Part 9 >>

How Long to Wait After Knocking?
  • US v. Banks (U.S. 2003): 15-20 seconds long enough between knock & open, where police didn't know man was in the shower
  • Search Warrant, knock, wait 3 sec, forcibly enter home. Probably not long enough
  • Length of knock depends on facts and circumstances. Generally 15-20 sec is long enough.
In Anticipation of a Warrant
  • Issue – What may the police do before they execute a warrant or even have a warrant to ensure that criminal evidence they expect to find during the search will not be destroyed or moved while they apply for the warrant?
    • Illinois v. McArthur (2001) → An officer may effectively seize the premises (e.g., not let the resident destroy evidence by keeping eye on his or preventing him from going inside/hold someone) without a warrant if the following elements are satisfied:
      1. Police have probable cause to believe that residence contained evidence of a crime and contraband;
      2. police had good reason to fear that, unless restrained, defendant could destroy the evidence before they could return with a warrant, i.e., reasonably could conclude that suspect, upon suspecting an imminent search, would, if given the chance, get rid of the drugs fast;
      3. police made reasonable efforts to reconcile their law enforcement needs w/ demands of personal privacy (e.g., imposing a significantly less restrictive restrain on suspect like only preventing him from entering the residence unaccompanied);
      4. police imposed restraint for a limited period of time that was no longer than reasonably necessary for the police, acting w/ diligence, to obtain the warrant (2 hours)
Executing a Warrant After Entry – Scope of the Search of the Premises
  • Once officers are lawfully on premises to execute a warrant, various search principles apply:
    1. Police MAY search containers large enough to hold the criminal evidence for which they are searching
      • Only allowed to search containers that could potentially contain the evidence being searched for (doesn’t allow you to search anything)
        • Couldn’t search a tiny box if looking for something that couldn’t possibly be in that box
    2. While officers execute a search warrant, they MAY seize an object NOT described in the warrant, if they have probable cause to believe it is a seizable item (contraband, or a fruit/instrumentality/evidence of a crime)
    3. Maryland v. Garrison (1987) → information that becomes available to officers immediately before or during the execution of a warrant may require them to cease or narrow their search, notwithstanding the dictates of the warrant
      • If an “honest mistake” leads police to finding something beyond the scope of the warrant, the court has “recognized the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrant,” thus, allowing the newly-found evidence to be admissible
Searching Persons During the Execution of a Warrant
  • A warrant may authorize the search of a person, but it must be explicit
  • A warrant to search a home or other premises does not provide implicit authority to search persons found at the scene, even if the criminal evidence for which the police are looking might be on them
    • Ybarra v. Illinois (1979) → the police must have independent probable cause to search the person – “a person’s mere propinquity (proximity) to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person” – as well as some justification for conducting the search without a warrant, i.e., they must be able to point to an exception to the “warrant requirement.”
      • Does NOT stand for the proposition that police may NEVER search persons coincidentally at the scene during a warranted search
Seizure of Persons During Warranted Searches
  • Although the police may NOT automatically search persons present at the scene during the execution of a search warrant, the SC created a bright line rule:
    • Michigan v. Summers (1981) → regarding seizure of persons present at scene of execution of search warrant, “a warrant to search [a residence] for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.”
    • Bailey v. US (2013) → The right of detention is automatic: it “does not require law enforcement to have particular suspicious that an individual [seized under the rule] is involved in criminal activity or poses a specific danger to the officers.”
    • Muehler v. Mena (2005) → the right of the police to detain an occupant during a warranted search of a residence necessarily includes the right to use reasonable force to secure and maintain detention of the occupant
  • HOWEVER, b/c the right of detention is automatic and can result in a relatively lengthy detention while the search is conducted, the Summers Rule is limited to:
    • the detention of occupants of the residence at the time of the search, and
    • persons discovered “immediately outside a residence at the moment the police officers execute the search warrant.”
      • Once an individual has left the immediate vicinity of the premises to be searched, the bright-line Summers rule NO LONGER APPLIES
        • 1-mile away from the premises is too much
    • Scalia on “General 4th Amendment Rule” → “the general rule is that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause. Summers embodies a categorical judgment that in one narrow circumstance – the presence of occupants during the execution of a search warrant – seizures are reasonable despite the absence of probable cause.”
Warrant Clause: When are Warrants Required?

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.”

Exigent Circumstances Exception to the “Search Warrant Requirement

General Rule – Officers should not be required to get a warrant when they can’t feasibly do so, in situations such that going through the warrant process could allow the criminal to (1) destroy the evidence, (2) harm another person, or (3) searching when in “hot pursuit” for a suspect. These exigent circumstances allows the police to dispense with the warrant requirement

  • Warden v. Hayden (1967) → Exigent circumstances (the commission of a crime, information about the alleged criminal and his location) prevents neither the entry or search without a warrant invalid
  • 4 Exigencies → Search without a Search Warrant
    1. Hot Pursuit of a fleeing FELON
    2. Imminent Destruction of Evidence
    3. Need to Prevent Suspect from Escape
    4. Risk of Imminent Harm to Police or Others Inside

Police-Created Exigency Exception → if there is a serious threat of destruction of evidence, a search warrant is not needed; however, under the “police-created exigency” doctrine, if the police’s own conduct “created” or “manufactured” the exigency (the threat of evidence-destruction), then the main evidence-destruction exception to the warrant requirement will NOT apply, and the police will need to get a warrant before they conduct a search

  • B/c of Kentucky v. King (2011), the police-created-exigency doctrine is narrowly interpreted; it will nullify the police’s right to enter warrantlessly ONLY when the police “gain entry to premises by means of (1) an actual or (2) threatened violation of the 4th Amendment
    • This means that as long as the police behavior is “reasonable” in Fourth Amendment terms, that behavior will not deprive the police of the ability to enter without a warrant in order to prevent the imminent destruction of evidence.
    • Rule: if there ARE exigent circumstances that would ordinarily relieve the police of the obligation to get a warrant, the police forfeit that right on account of the police-created-exigency doctrine ONLY IF the police were in fact violating, or threatening to violate, the Fourth Amendment
      • The exigent circumstances exception to the Fourth Amendment's warrant requirement applies to an officer-created exigency if the exigency does not arise from the officer's unreasonable or unconstitutional conduct.
        • Under the exigent circumstances doctrine, officers may enter a home without a warrant to deliver emergency aid to an individual, pursue a fleeing suspect, or to prevent the imminent destruction of evidence.
        • A prerequisite to gaining entry into a residence without a warrant under the doctrine is that the officers must have probable cause to believe that dangerous or suspicious activity is currently taking place

NOTICE → An exception to the warrant requirement does NOT necessarily (or, even usually) dispense with the probable cause requirement

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