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Criminal Procedure Outline - Professor Fields - Campbell Law - Part 2

By Justin B. Lockett
Professor Fields - Fall 2020

Download the PDF version of this outline

<< Part 1 | Part 3 >>

Beeper Cases

United States v. Knotts: Held that it was constitutional for officers to use a radio transmitter which emitted periodic signals to track a suspect to gauge his whereabouts on public roads (they hid it in a five gallon container of chloroform later purchased by the defendant for the use of making drugs.

United States v. Karo: Held that the warrantless “monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the 4th Amendment rights of those who have a justifiable interest in the privacy of the residence.”

  • Difference Between the Two Cases/Why Karo was Unconstitutional: Technology installed outside the defendant’s home, in order to obtain information regarding an activity occurring inside his home.

United States v. Jones: The government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a “search.”

  • Reasoning: The government physically occupied private property (the car) for the purpose of obtaining information. Katz did not repudiate prior 4th Amendment precedent but added to it. If there is a physical intrusion into your personal property, that still constitutes a search.
  • Distinguishing Jones from Knotts and Karo: Third-parties accepted to put the beepers on the object and then sold it to the defendant. There was no third party in Jones. That’s why Jones was a “search” and these two cases were not.
Cell Phones

Carpenter v. United States: An individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI (cell site location information). The location information obtained from Carpenter’s wireless carriers was the product of a search.

  • Reasoning: Cell phone location information is detailed, encyclopedic, and effortlessly compiled. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not itself overcome the user’s claim to 4th Amendment protection. Such intrusion requires a warrant.
  • Carpenter Search Test (Warrant Required): (1) New kinds of “digital age” records, (2) generated as part of “necessary participation” in daily life, (3) through no “meaningful voluntary choice,” (4) and the record reveal “an intimate window into a person’s life.”

Seizures: Today (assuming sufficient grounds to do so) the police may seize contraband, fruits of a crime, criminal instrumentalities, as well as “mere evidence” (evidence that will aid in a particular apprehension or conviction).

Persons; California v. Hodari: “The quintessential ‘seizure of the person’ under our 4th Amendment is an arrest.”

  • Terry v. Ohio: “A seizure occurs when the officer, by means of physical force or show of authority has in some way restrained the liberty of a citizen.”
Probable Cause

Warrant Clause: No warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

Probable Cause is Necessary: A search or seizure conducted in the absence of probable cause ordinarily is considered unreasonable.

Probable Cause to Arrest Definition; Brinegar v. United States: Probable cause to arrest “exists where the facts and circumstances within the officer’s knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in that belief than an offense has been or is being committed” by the person to be arrested.

  • Probable Cause to Search Definition: The same definition applies, except that the italicized language is replaced with “evidence subject to seizure will be found in the place to be searched.”
    • General Rule: A warrant is required for both.
Probable Cause for a Warrant

Affidavit: An officer or prosecutor must write an affidavit in support of a search warrant.

Neutral and Detached Magistrate: It is a long-standing principle that probable cause must be determined by a “neutral and detached magistrate,” and not by “the officer engaged in the often competitive enterprise of ferreting out crime.”

The Test; Illinois v. Gates: The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

  • Factors; Aguilar-Spinelli Two Pronged Test: (1) Basis of knowledge—establishes the means by which the affiant/informant came by the information given in the affidavit. (2) Veracity or Reliability—establishes that the sources of information is honest, trustworthy, and credible. The affidavit must address both of these.
    • Basis of Knowledge Factors: (1) Personal observations of the officer, (2) inferences of police officer from other observable facts, (3) informant statements (establishing same info as 1 and 2), (4) detailed factual background (Draper v. United States), and (5) prediction of future events (Illinois v. Gates; unique or very nuanced, accurate predictions).
    • Veracity or Reliability Factors: (1) Presumed reliability of affiant under oath if police officer or prosecutor, (2) innocent citizen with a good reputation, (3) innocent citizen making statements against his own interests, (4) an informant with a past record of reliability, or (5) an informant who accurately predicts the future.
  • Still Depends on the Magistrate: Even if the magistrate finds a sufficient basis of knowledge and sufficient reliability, she must still find that there is in fact probable cause.
  • Need Not Be Perfect: In dealing with probable cause, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. If affidavits submitted by police officers were subjected to strict tests, police may result to warrantless searches and just hope they have probable cause upon later review.
  • Probably: Probable cause does not mean “probably.” The standard does not “demand any showing that such a belief be more likely true than false.”

Anonymous Tips; Illinois v. Gates: An anonymous tip itself isn’t enough, but with corroborating evidence from police, it can be enough.

  • Reasoning: “The anonymous tip predicted a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.”

Challenging Affidavits; Franks v. Delaware: (1) Defendant must make a “substantial preliminary showing” that a false statement was made knowingly and intentionally, or with reckless disregard. (2) If shown, the 4th Amendment requires a hearing. (3) If perjury is established by a preponderance of the evidence, the affidavit’s remaining contents must be examined for probable cause. (5) Only applies to statements of officer or prosecutor under oath.

Subjective Intent: The subjective intent and motivations of the police officer in seeking the warrant or making the arrest is irrelevant.

Arrest Warrants

Custodial Arrest: To be taken into custody by lawful authorities for the purpose of being held in order to answer for a criminal charge.

  • Seizures: All arrests are “seizures” of persons, but not all seizures constitute arrests.
  • Traffic Stops; Atwater v. City of Lago-Vista: Anything for which a police officer can enforce, even minor traffic stops, can lead to lawful arrests.
  • Arrestee v. Citationee: Police may search an arrestee, but not a citationee, without probable cause (U.S. v. Robinson).
  • Misdemeanors v. Felonies: Police officers must witness a misdemeanor to arrest in public without a warrant, but can arrest in public for a felony without one.
  • Payton v. New York: An officer may not arrest a person in her home without a warrant, absent exigent circumstances or consent.
    • Reasoning: An entry to arrest and an entry to search for and seize property implicate the same interest in preserving the privacy and the sanctity of the home, and justify the same level of constitutional protection.
  • Steagald v. United States: May not arrest a person in another person’s home without at least a search warrant for the other person’s home, absent exigent circumstances or consent.
    • Reasoning: An arrest warrant protects that defendant against unreasonable seizure but not the third party against unreasonable searches.
  • No Automatic Release: An arrest that is invalid because it was executed without a warrant does not automatically mandate a release of the defendant. Instead any evidence obtained is excluded.
  • Executing Arrest Warrant: An arrest warrant carries with it “the limited authority to enter a dwelling in which the suspect lives.”
    • Requirements: Officers must usually knock and announce who they are, their purpose, and wait a reasonable time before entry. A reasonable time depends on the totality of the circumstances. No knock warrants can be issued based on some exigency ground.
  • Exigent Circumstances Exception; Minnesota v. Olsen: A warrantless intrusion may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence, or the need to prevent a suspect’s escape, or the risk of danger to the police or to other persons inside or outside the dwelling.
  • Preliminary Hearing; Gerstein v. Pugh: Whatever procedure a state may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.
    • Requirements: In order to satisfy the Gerstein timeliness requirement, a jurisdiction must provide a probable cause determination within 48 hours after a warrantless arrest, absent a bona fide emergency or other “extraordinary circumstance.”
Excessive Use of Force

4th Amendment: Protects against unreasonable seizures and also excessive use of force.

Graham v. Conner: All claims of excessive force—not just deadly force—would be analyzed under the 4th Amendment’s reasonableness standard.

  • Reasonableness Test: Requires careful attention to the facts of each case, including (1) the severity of the crime, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.
    • Viewpoint: Reasonableness must be judged from the perspective of a reasonable officer on the scene who has to make split-second decisions, rather than with the 20/20 vision of hindsight.

§ 1983; Qualified Immunity: Even if it’s established that an officer acted unreasonably, there shall be no liability unless (1) the official violated a constitutional or statutory right, and (2) the right was “clearly established” at the time of the challenged conduct.

  • Clearly Established Right: A right that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” It must be found in a prior precedential case with identical facts.
Search Warrants

Elements; Same As Arrest Warrant: (1) Probable cause, (2) oath or affirmation, (3) particularly describing the place to be searched and the persons or things to be seized, abd (4) reviewed and approved by a neutral and detached magistrate.

  • See Lo-Ji Sales, Inc. v. New York: the warrant did not particularly state all of the things to be searched and seized, and the magistrate was neither “neutral” nor “detached,” but instead actively helping with the investigation on the scene.
  • Knock and Announce; Wilson v. Arkansas: There is an implicit knock and announce requirement for search warrants.
    • Wait Time after Knocking: A reasonable time depends on the facts and circumstances. Maybe 15 to 20 seconds when evidence has potential to be destroyed.
      • Absent Exigent Circumstances: When immediate entry is not required as a result of an exigency, the reasonable wait time before causing damage to enter may well be longer than if the door to the house is open and they can enter without damaging the residence.
  • Bypassing Knock and Announce; Richards v. Wisconsin: In order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.
    • Reasonable Suspicion: Officers must articulate specific and particularized facts to show that the suspicion is more than an “inchoate and unparticularized hunch.”
    • No Suppression of Evidence; Hudson v. Michigan: The exclusionary rule no longer applies to violations of the knock and announce rule.
  • Damage to Property: Police may damage premises so far as necessary for a no-knock entrance without demonstrating the suspected risk in any more detail than the law demands for an unannounced intrusion simply by lifting the latch.
Executing a Warrant; What and Where Can You Search: Quick Rules
  • Premises: Police may search as much of the premises as is authorized in the warrant.
  • Containers: Police may search containers large enough to contain the sought-after items.
  • Objects: Police may seize an object not described in the warrant if they have probable cause to believe it is a seizable item (contraband or fruit, instrumentality, or evidence of a crime).
  • New Information: Police must limit or stop execution of the warrant if information becomes available that would require them to do so (wrong house, etc.). But reasonable reliance of fact will not invalidate the search (Maryland v. Garrison).
Executing a Warrant; Who Can You Search and Seize: Quick Facts
  • Particularity: The search warrant must specifically describe the persons be search and seize.
  • Searching Other People: Police cannot search other people who happen to be at the location absent independent probable cause that seizable evidence will be found.
  • Detention: But police may, without any probable cause or reasonable suspicion, detach all occupants of the premises and the “immediate vicinity” for the duration of the search.
    • During Execution: This detention rule only applies once execution of the warrant begins.

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