I. criminal procedure overview 3

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  • Recap: Generally, a search/seizure is “unreasonable” without PC and a warrant (p.421)

  • A warrant is a procedural standard (whereas PC is a substantive standard)  both must be met

  • Warrant must be:

    • 1. Supported by oath or affirmation

    • 2. Issued by a “neutral and detached” magistrate (Coolidge)  non-delegation req. (i.e. magistrate cannot simply ratify the bare conclusions of others per Nathanson)

    • 3. Particular enough to permit an officer with reasonable effort to ascertain the identity of the place to be searched (Steele)

    • 4. Executed in a reasonable manner (Wilson)



  • Prevents hindsight bias

  • Freeze the record: written record of what the facts were before the search

  • Pre-screening by neutral and detached mag protects against police over-reach

  • Police are often engaged in a “competitive enterprise of ferreting out crime” – can’t expect police to give due weight to privacy interests

  • Prevents ex-post manipulation of the fact-finding process

  • Historical justification: prevents unjustified indiscriminate searches by the executive (general writs of assistance)

  • Searches are by their very nature inherently intrusive and if nothing is found, then there is no ex post opportunity to challenge the search

  • Rubber stamp theory – magistrates cannot be trusted to do a sound job “some magistrates will sign anything” (data suggests that nearly 98% of warrants are approved)

  • Creates opportunities for “judge shopping” by police

  • Are magistrates really detached and neutral? What about political interests etc. (some judges are elected)

  • Nowhere does 4th Amend say that warrants are actually required (just that “no warrants shall issue, but upon PC”), although courts have held that Framers interpreted them as “reasonable” (a reaction to the general writs of assistance which were despised)

1. Oath or affirmation

Rule: Must be supported by oath or affirmation

  • Generally satisfied by specifying the facts giving rise to PC in the officer’s affidavit attached to the warrant application (unless oral over the phone) (p.423)

  • Negligent or innocent falsehoods will not invalidate a warrant, but reckless disregard will (Franks)

2. Neutral and detached magistrate

Rule: Needs to be issued by a neutral and detached magistrate – non-delegation req. (p.424)

  • Coolidge: warrant issued by state AG held to be invalid as not “neutral or detached” from investigation

  • Connally: warrant issued by magistrate for a fee held to be invalid (as not paid for refusing)

  • Shadwick: doesn’t necessarily need to be issued by a judge/lawyer, SC upheld a warrant process whereby registry clerks were issuing warrants for municipal ordinance violations

3. The particularity requirement

Rule: Must be particular enough “that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended” (Steele) (p.425)

  • Garrison: Warrant said “2036 Park Ave third floor apartment” but there were 2 apartments on that floor. Officers entered and searched the wrong apartment. Court held that officers’ mistake in not specifying which particular apartment in the warrant was “objectively reasonable” on the facts.

  • Blackburn: Warrant said apartment #2 with “ECURB” on the door, but door was missing the numeral 2, and another apartment did have the numeral. Good enough, since “ECURB” lettering was much more distinctive than numerals.

  • Andersen: SC upheld a warrant which authorized the seizure of “other fruits, instrumentalities of crime at this time unknown” (p.426)

  • Note: Greater degree of ambiguity tolerated when police did the best they could under the circs. Also, police are not precluded from seizing items found in plain view (Hicks).

  • Prof: The particularity requirement limits the scope of searches both spatially and temporarily and minimizes the risk that people will wrongly be deprived of their property.

4. Executed in a reasonable manner

Rule: Warrant must not be executed in an unreasonably intrusive manner (Wilson)
Factors to consider in determining reasonableness

  • What time of day did they execute?

  • Look at size of the premises (big house or apart?)

  • Time waited by police before entering

  • Type of items looked for (i.e. drugs can be easily disposed of)

  • Use of force / damage to property

Timing of execution

  • Often limited by statute. E.g., Rule 41 (10 days and during daytime hours).

  • Probable cause must continue until moment of execution (Nepstead)

Gaining entry – “knock and announce” requirement

  • Common-law rule that officers must knock-and-announce before entering (Wilson)

  • In order to justify a “no knock entry”, police need to have a reasonable suspicion that knocking would be dangerous or futile or allow destruction of evidence (Richards)

  • Richards: No per se exception for felony drug searches (depends on the circs)

  • Banks: Must be long enough for someone to reach the door. Less time in a hotel room than in a mansion. In this case, the officers waited 15-20 seconds and then broke down the door, held to be permissible as concerned about destruction of evidence (turned out that B was in the shower)

  • Hudson: Remedies for violation of knock and announce are civil damages, not exclusionary rule

  • Sneak and peak warrants are valid where delay of notice of entry if for a “good reason” i.e. protection of informant (Villegas). Note that under USA PATRIOT Act, you can have no-notice warrants.

  • No limit on warrants in newspaper offices (Standord Daily)

  • Presence of third parties not permitted unless in aid of execution of the warrant (Wilson v Layne: media “ride-alongs” are prohibited) (p.431)

  • Officers may detain occupants of the premises while a search is being conducted (Summers) (p.431)

Where can you look within the place?

  • Can only look in places big enough to contain the warrant’s items (thus if searching for stolen paintings cannot look on the computer) (p.426)

Directory: sites -> default -> files -> upload documents
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upload documents -> Rodriguez Con Law Outline Judicial Review and Constitutional Interpretation
upload documents -> Standing Justiciability (§ 501 Legal/beneficial owner of exclusive right? “Arising under” jx?) 46 Statute of Limitations Run? 46 Is Π an Author? 14 Is this a Work of Joint Authorship? 14 Is it a Work for Hire?
upload documents -> Fed Courts Outline: 26 Pages

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