Introduction To Criminal Procedure Three major topics
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particularly describe the place to be searched and the items to be seized what police are authorized to look for must be looking for particular things for which they have probable cause does not require total specificity allows police to use common sense in narrowing it down intended to stop ‘general searches’ typographical errors (e.g. address numbers were switched) – usually court says this does matter, still a valid warrant most 4th Amend. issues arise under this requirement Lo-Ji Sales v. NY (1979) – Police got warrant to seize only the copies of the 2 films that the police already had. Magistrate signed it, then accompanied police on search and allowed them to seize many more films, magazines etc. that were not listed in the warrant. After the search, magistrate went back and added to the warrant all the things they had just seized. Held: If you’re involved in the search itself, you’re not neutral and detached. Fourth Amend. does not permit warrant to leave entirely to the discretion of the officials conducting the search to decide what items were likely obscene and to accomplish their seizure, nor does it permit open-ended warrants to be completed while a search is being conducted and items seized or after the seizure has been carried out. Execution of Search Warrant Intro. Interpreted as combination of reasonableness clause and warrant clause States may have laws w/ some standards for executing warrant e.g. search must be conducted in daylight hours Officers must act reasonably while obtaining or executing search warrant Knock and Announce Rule Started as common law rule, now required by 4th Amend (Wilson) Reasonableness requirement ö 4th Amend. requires a knock and announce by police before search Police officers entering a home must knock on the door and announce their identity and purpose before attempting forcible entry. Wilson – 4th Amend. incorporates the common law requirement that police officers entering a home must knock on the door and announce their identity and purpose before attempting forcible entry. Justifications for knock and announce rule: (Richards) protecting human life and limb, property, privacy and dignity privacy of persons being searched – allow them to get dressed before police barge in police safety Justifying a No-Knock Entry 4th Amend. does not permit blanket exception to knock and announce requirement for particular types of criminal activity. Knock and announce is constitutionally required and there are exceptions, but you can’t have a blanket restriction To justify a no-knock entry, police must have a reasonable suspicion that knocking and announcing their presence under the particular circumstances, would: be dangerous or futile, or cause destruction of evidence Richards – Here, the officers’ no-knock entry into D’s hotel room did not violate 4th Amend. b/c they had reasonable suspicion that D might destroy evidence if given further opportunity to do so. If knock and announce not needed (if an exception applies) police can do anything to effectuate a search No-Knock Warrant ö judge who issues it says you can execute w/o knocking – judicial permission for entry w/o knock and announce rule Suppression of Evidence w/ knock and announce rule If search is unreasonable, evidence can be suppressed Knock and announce can apply to any kind of search In many states, violation of the knock and announce excludes evidence exclusionary rule applies in federal system, it does not exclude the evidence Hudson – violation of no-knock rule does not trigger the 4th Amend. exclusionary rule Timing of Entry after Knock and Announce 20-second Rule – Banks After 15 or 20 seconds w/o a response to knock and announce, police could reasonably believe that person inside was destroying evidence. Banks – Police knocked and waited 15-20 seconds for someone to answer, no one did so they forced their way in. Court said it was close call but that waiting this long was reasonable for them to believe that person inside was destroying evidence; period was long enough for police to believe that cocaine would be gone if they waited any longer. Freezing the Situation – While Warrant Sought While police are getting warrant, what authority do they have? Two requirements: reasonableness and warrant while getting a warrant, police must act reasonably they can only minimally intrude on person’s privacy reasonably act to protect the evidence and protect themselves reasonable response to the situation While waiting a search warrant to be issued, police may freeze the situation Police must act reasonable under the circumstances Purpose to protect officers and preserve evidence from being destroyed Illinois v. McArthur – Police wouldn’t let D back into his house for a brief period while waiting for warrant to be issued. Held: Restriction on D was reasonable under 4th Am. It was a seizure, but this short term, limited intrusion into his liberty was reasonable under these circumstances. Scope of Search: Premises Search incident to warrant – police lawfully on premises to execute warrant: Police may search containers large enough to hold the criminal evidence for which they are searching Reasonable for police to conduct a search consistent w/ the need to find the items in the warrant items itself determine the scope of the search scope of search can change based on what they find Police may seize an object not described in the warrant if they have probable cause to believe it is a seizeable item e.g. contraband, or a fruit, instrumentality or evidence of a crime 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 Maryland v. Garrison (1987) Scope of Search: People Search of person incident to search warrant Warrant authorizing search of person must be explicit Search warrant does not automatically authorize police to search person Search warrant doesn’t usually mention people Four ways police can search person: include in the warrant specified person if police have search warrant and people are present, and if they have probable cause to search the person, they can, but must explain why he didn’t get a warrant to do so make valid arrest – if you arrest someone, you automatically have authority to search – don’t need probable cause [Robinson] Terry pat down – for protection of police, they can pat down the suspect to search for weapons [Terry v. Ohio] Seizure of Persons Search warrant implicitly authorizes police to detain occupants of the premises while proper search conducted Police may use reasonable force to secure and maintain detention of occupant Michigan v. Summers (1981) – Bright-line rule: 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. Purpose of detaining people while obtaining a warrant: to protect the police to prevent escape in case incriminating evidence is found facilitate the orderly completion of the search even though there’s no probable cause, its reasonable under the circumstances When Are Warrants Required? General Rule and Exceptions GR = police must have search warrant before doing a search Exceptions to warrant requirement: No 4th Amend. violation (no standing) – Katz Consent Schneckloth v. Bustamonte (1973) Exigent circumstances, hot pursuit Warden v. Hayden (1967) Search incident to lawful arrest Chimel search (person–wingspan) Maryland v. Buie (protective sweep) Belton search (car–passenger compartment) Automobile exception Carroll–Chambers–Carney Plain view and touch Coolidge (1971) and Arizona v. Hicks (1987) Stop and frisk Terry v. Ohio (1968) Exigent Circumstances No general “emergency” exception to warrant requirement need to check occupational safety violations (Marshall v. Barlow’s), need to investigate fire after its been extinguished and its cause determined (Michigan v. Tyler), and need to search murder scene (Mincey v. AZ) do NOT justify warrantless searches Warrant not required in certain exigent or emergency circumstances police must reasonably believe that waiting for warrant would gravely endanger their lives or lives of others can search for persons and weapons Emergency exception: Hot Pursuit Police officers in hot pursuit of fleeing felon can make a warrantless search and seizure. – Warden Fourth Amend. does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Warden v. Hayden (1967) – Armed robber found in his home after tip from witness, police entered house w/ mother’s consent and without a warrant to search for and arrest him, searched house and found weapons and other evidence. The entry without warrant to search for the robber and the search for him without warrant was valid; both were justified by exigent circumstances. Speed was essential here to ensure that D was the only man present in the home and that police had control of all weapons which could be used against them or to effect an escape. Two different intrusions: entered house (consent from mother) and search house. Police do not need a warrant to enter the house here because waiting could increase danger to police, destroy evidence; also if in hot pursuit of suspect, they don’t need warrant to enter house Court approves search for person and weapons, but question left open about warrantless search for other items – could be too much like a general search. Scope of Search after hot pursuit: Scope of search may be as broad as may reasonably be necessary to prevent suspect from resisting or escaping – Warden Hot pursuit is an exigent circumstance and no warrant necessary but still must be probable cause to believe there is an emergency justifies entry and search Limits to warrantless search in hot pursuit: only appears in serious crimes search limited to weapons and a few other things (not a general search for anything) search must be immediate – must be now, not in a few days What police can they search for w/o warrant in exigent circumstances: People and weapons in the house – Warden v. Hayden Chimel search (see below) Police may seize without warrant evidence likely to disappear before warrant can be obtained e.g. blood sample containing alcohol (Schmerber v. Cal.) and fingernail scrapings (Cupp v. Murphy) Searches Incident to Arrest In General Police may conduct search incident to arrest whenever they arrest a person Any arrest is sufficient If arrested for a misdemeanor, Belton search allowed – Ladson (1999) When pulled over for traffic citation, NO Belton search (b/c no custodial arrest) – Knowles v. Iowa (1998) For traffic violations, if D not arrested, there can be no search incident to arrest, even it state law gives officer option of arresting D or issuing citation. Knowles – a nonconsensual automobile search conducted after suspect was issued a citation for driving 43 mph in 25 mph zone was illegal, and contraband found during search was excludable at trial Rationale: When citation is issued, there is less of a threat to the officer’s safety than there is during an arrest, and the only evidence that needs to be preserved in such a case (e.g. evidence of the suspect’s speeding or other illegal conduct) has already been found. Search incident to arrest must be contemporaneous in time and place with arrest – Preston (1964) and Chadwick (1977) Chimel Search Incident to lawful arrest, police may search person and areas into which he might reach to obtain weapons or destroy evidence (his wingspan) Can remove any weapons or evidence he might conceal or destroy Wingspan/armspan = area immediately surrounding his person, from within which he might gain possession of weapon or destructible evidence anything in arrestee’s immediate control, within his armspan Arrestee’s wingspan follows him as he moves e.g. if arrestee is allowed to enter his home, police may follow and search areas within the arrestee’s wingspan in the home Requires some immediacy – can’t search area hours later after arrestee is gone Reasonable search to protect police and preserve evidence Authorizes search without probable cause reasonable under the circumstances to protect the officer and the evidence SCOPE of Chimel search: Wingspan/armspan rule includes backpacks, purses, wallets, packages on the person does not extend to other rooms in the house searching any room other than that in which the arrest occurs can be made only w/ search warrant, in absence of recognized exceptions. Chimel (1969) – Officers enter home w/ arrest warrant and conducted search of his entire home without search warrant and even though D objected to search. Struck down old rule (Rabinowitz/Harris) that a warrantless search incident to a lawful arrest may generally extend to the area that is considered to be in the “possession” or under the “control” of the person. The scope of this search was unreasonable and thus invalid w/o a search warrant. The search went far beyond the D’s person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. Lawful custodial arrest creates situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area. During lawful custodial arrest, a full search of the person is an exception to the warrant requirement of 4th Amend. AND is a ‘reasonable’ 4th Amend. search. (Robinson) Lawful custodial arrest ö probable cause not need for full search of D Authorizes total search of person for any kind of search. Broader than Chimel’s armspan search U.S. v. Robinson (1973) – Police pulled over car on suspicion that D was driving w/ suspended license. Upon his lawful arrest of D, officer searched D, felt object in D’s pocket, pulled it out, opened it and found heroin in a cigarette box. Held: During lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the 4th Amendment, but is also a ‘reasonable’ 4th Amend. search. Bright-line rule; not a case-by-case determination. Here, officer’s search of D was reasonable and constitutional. ** Note: Some states have rejected Robinson Arrest Inventory When D taken into custody, search is automatically required to inventory his belongings before incarcerating arrestee Arrest inventory search = search of his person and property includes entire search of arrestee’s car, including closed containers inside car This is reasonable search under 4th Amend. Purpose ö protect police, preserve evidence, protect govt from lawsuit Lafayette (1983) Cars: Passenger Compartment – Belton Search Police may conduct warrantless search of passenger compartment of car (including containers) after arresting the car’s occupants. When police officer has made lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. Authorizes search without probable cause b/c search incident to an arrest lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have Purpose: protect evidence that would corroborate poor behavior of D Hard and fast rule – not a case-by-case determination Passenger compartment is area “within the arrestee’s immediate control” within the meaning of Chimel. Scope of Belton search: Entire passenger compartment Any containers found in passenger compartment CANNOT search the trunk of the car Belton (1981) – Police pulled car over for speeding, smelled marijuana and saw envelope w/ ‘supergold’ on it that alerted police it was marijuana; ordered occupants out of the car and arrested them. Then police searched the entire car, found jacket on seat w/ drugs in it. Held: The jacket he searched for in the car after the D was removed and arrested for possessing marijuana, was within the area “within the arrestee’s immediate control” within the meaning of Chimel. Thus the search of the jacket was a search incident to a lawful custodial arrest and did not violate the 4th Amend. Dissent – Majority’s rule fails to reflect Chimel’s underlying policy justifications – safety of officer and preservation of evidence. Belton rule governs even when an officer does not make contact until the person arrested has left the vehicle. Belton applies in situations where officer makes contact w/ occupant while he is inside vehicle and when officer first makes contact w/ the arrestee after arrestee has stepped out of the vehicle. 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