Administration of Criminal Justice I Outline

Search (4th)

Identification (14th, 6th)

Interrogation (5th)

Investigation (suspect)

Search incident to arrest

can be with a Warrant (arrest)

or Warrantless

Arrest (seizure- 4th amendment)

Informed of charges

Bail

Pleas - 48 hours after

Determination of probable cause or informationCan lead to Preliminary Hearing or Grand Jury

Jackson v. Denno - hearingMotion to suppress evidence (4th, 6th, 14th and statutes)

Incompetent to stand trialInsanityMotion to QuashMotion to Dismiss

Pretrial Motions

TrialSentencingAppeal

Informed of Rights (Miranda)/process

Initial Appearance

Pleas - within 48 hours

Arraignment

Habeas corpus - Smith v. Cain

Post conviction:

Structure of Criminal Justice

THE EXCLUSIONARY SANCTION

Fourth Amendment - secure in their persons, houses, papers and effects

Police entered home with no warrant (blank piece of paper)Police claimed that they were looking for two different things that ranged sizes from huge to small

Who regulates the search area as it is occurring? The resident. She was handcuffed and not able to.

Right to counselEntitled to see a copy of the warrantForcibly entering the home (5th Amendment)

Constitutional Violations of this case

Weeks v. United States- created exclusionary rule for federal cases - warrantless searches violate 4th amendment. is it a rule of constitutional law or evidence?

Wolf v. Colorado - the 4th amendment (unreasonable search or seizure) applies to states,

Prior Decisions

Case Notes from Mapp

Mapp v. OhioExclusionary Rules

Administration of Criminal Justice I OutlineTuesday, January 31, 201212:07 PM

ACJ Page 1

Wolf v. Colorado - the 4th amendment (unreasonable search or seizure) applies to states, but the weeks rule (exclusionary rule) does not

Mapp v. Ohio - broadened the Weeks rule (warrantless searches) to states

The fourth amendment is for judges, they are the ones who are issuing warrantsFunctions as a deterrent to dishonest police worksCreates certainty as to police procedure

Reasoning - the Weeks rule applies to State + Federal

Exclusionary rule applies to the 4th, 5th, and 6th Amendments Exclusionary Sanctions for 5th and 6th Amendments

Courts can admit evidence that is in violation of the 4th AmendmentBased on whether the admission of the evidence encourages violations of the 4th Amendment and whether it would serve a deterrent function

Judicial Integrity

The exclusionary rule is not a personal constitutional right The exclusionary rule prevents violation of constitutional rights by deterring police officers from violating rights and by encouraging the development of practical guidelines and training programs. This is known as systematic prevention (Stone v. Powell).

Remedial Function

Evidence obtained in violation of constitutional rights can be used at parole hearings (Pennsylvania Board of Probation and Parole v. Scott)

Exclusionary rule does not apply before a grand jury (Calandra)Defendants cannot seek habeas corpus relief unless they were not given full and fair litigation.

Other Uses of Unconstitutionally Obtained Evidence

There is no federal or state constitutional right to have evidence excluded because of a statutory violation

Nonconstitutional Illegality

Book Notes from Mapp

What was procedure before Leon? Magistrate can grant warrant by enough probable cause, or if not enough probable cause the officer continues to investigate until he has enough

Established that evidence obtained in good faith by police relying upon a search warrant that subsequently is found to be deficient may be used in a criminal trial.

Officer misleads the magistrateRubber stamp judge - a judge who does not review the material and always approvesAffidavit is so lacking in probable cause as to render official belief in its existenceWarrant is facially deficient

Exceptions to relying on good faith

Objective test - a reasonably well trained officer

There is a balancing act between costs of deterrence and the benefits of providing due process rights (McGough says this balance is the most important thing to take from Leon)

The narrowing has led to a move away from a pure application of the 4th Amendment to the states, and allows them to introduce evidence despite an illegal or improper method of acquiring it.

Leon and the cases that happen post-Mapp are narrowing the broad rule of Mapp.

What do we take away from Leon and Mapp?

No - the question is is there probable cause or not?The magistrate decides, not the reasonably well-trained officer

Is a police officer thinking he has probable cause permissible?

Good faith rule - would an officer have realized that the statute was unconstitutional?Krull (good faith exception is extended to warrantless searches made pursuant to an invalid statute) is much more significant than Leon

Can a warrant be authorized by an invalid statute (Krull)?

Class Notes from Leon

United States v. Leon

ACJ Page 2

Evidence was admissible because officer relied in good faith on the statuteinvalid statute) is much more significant than Leon

Court clerksLegislaturesJudgesPolice officers who conduct investigation- Footnote 7 in LeonPolice officers execute search or arrest- Footnote 7 in LeonLaw enforcement team

Umbrella of who falls under 4th Amendment

Not the direct authority providing for the rule, but exclusionary rule does apply in a delinquency action

In Re Gault? - proceedings for juveniles had to comply with the requirements of the Fourteenth Amendment

Herring v. United States- Have a note that a warrant exists but it does not? Exclusionary rule does not apply

In Groh, the officer mistakenly inserted a description of the premises to be search instead of the description of the person or property to be seized

In Sheppard, the court allowed evidence to be admitted that was a result of a search conducted with an inadequate warrant. The judge made the mistake, but led the officer to believe the warrant was valid. The officer reasonably believed it was valid - evidence could be seized

The difference here is the reasonable officer standard - a reasonable officer should know that if there is nothing listed it is invalid; however, if the wrong thing is listed a reasonable officer could not catch the mistake. ?

Groh v. Sheppard Unreasonable Reliance on Defective Search Warrant

The difference between Leon and Krull is that one is geared towards judicial officers while the other is geared towards legislators.

In Krull warrantless searches done pursuant to an invalid statute is admissible if the officer truly believes the statute is good law. Good Faith.

Warrantless Activity Authorized by Invalid Statute

Arizona v. Evans - The officer thought there was a valid search warrant, because he looked at his computer in his squad car and saw that there was a warrant. A court clerk, however, failed to pull the warrant down from the system. The evidence was allowed to stay because of good faith; court clerks are treated like judges

Mistaken Perception that Valid Warrant Exists

If the evidence would have been discovered without the violation of constitutional rights, it is admissible (Nix v. Williams).

Nix v. Williams - They found a body due to illegally obtained information, but there was a search with 200 people going on in that area. The body would have been discovered eventually. Evidence was admitted.

Inevitable Discovery Exception

Book Notes from Leon

Section 5 is more extensive than 4th amendment - we should expect more protection from the LA Section 5

US Constitution - only the person affected can bring the claimLA Dec of Rights - any person adversely affected can bring the claim

adversely affected addition

Differences:Section 5 is basically the 4th Amendment

The Louisiana Supreme Court is the ultimate authority on State Law rights - The state

What if Miranda rights were overturned tomorrow? - Big whoop. LA would provide more rights

Section 13 is the Miranda Rights

Louisiana Declaration of Rights

ACJ Page 3

The Louisiana Supreme Court is the ultimate authority on State Law rights - The state can not take away rights granted to you by the US Supreme Court but it can grant you additional rights

Section 16 is the 5th Amendment and 6th

Longlois goes with the exclusionary rule Bickham goes against the exclusionary rule

These cases go different waysLonglois and Bickham deal with statutory violations and exclusionary rules

The Bickham statute that was violated is merely a procedural rule to divide responsibility among the officers

However, Longlois dealt with the officers express powers of arrest

Why the split?

The important thing to take away from these cases is to look at the purpose of the statute and determine if the exclusion should apply

Matheiu - similar to Bickham, this was a procedural rule and the exclusionary rule was not used

Varnado - Good Faith exception is used in Louisiana

Louisiana Cases

No search warrant, no exigency, probable cause existed => all evidence from Way leading to Toy is fruit of the poisonous tree

Authorities watched Way for six weeks, arrested him and found heroin

Way became an informant and confessed that he bought heroin from "Blackie Toy"

Hom Way

Agents went to Toy's laundromat and asked for laundry... Toy said they were closed... agent showed badge and Toy ran into his home

Agents broke open Toy's door, Toy reached into dresser and Agent pulled out gun and handcuffed him

Agents searched the premises and dresser and did not find any physical evidenceToy was questioned and told the officers that someone named "Johnny" was selling heroin and provided a description of the house

Poisonous tree here - no warrant, no probable cause, no exigency

Toys Laundromat

Agents entered home and found Johnny Yee. Yee surrendered less than an ounce heroin and said it was sold by Toy and "Sea Dog"

Another poisonous tree here - no warrant, no probable cause, no exigency

Yees house

Toy was questioned and said that Sea Dog was SunAgents knocked on Sun's door, revealed themselves to his wife, wife locates Sun and they search the house. No drugs found again.

Another poisonous tree

Suns (Sea Dog) House

Agent interrogated Toy, Yee, and Sun separately and then released under their own recognizance

Gave statements after they were released

Statements made by Toy at the time of his arrestHeroin surrendered by YeeToy's unsigned statementSun's unsigned statement

Proof of the possession was over four inadmissible items (potential fruit):

FactsCase Notes from Wong Sun

Diagram From Class

Wong Sun v. United StatesScope of Exclusionary Sanctions

ACJ Page 4

COA found that there was not probable cause for Toy's arrest, the Supreme Court affirmsToy's statements cannot be used as evidenceThe heroin from Yee cannot be usedToy's unsigned statement cannot be usedSun's unsigned statement can be used and the heroin can be used against him

Holding

4th amendment protects against seizure of tangible and intangible thingsToy's statements were the product (even intangible) of unwarranted search

The police only got to Yee through violating the rights of ToySame for Yee's heroin

An accuseds statements have to be corroborated Two Rules of Evidence for Statements

Toy's unsigned statements would require extrinsic corroboration and an out of court declaration made after arrest may not be used at trial against one of the declarant's partners in crime

Reasoning

ACJ Page 5

An accuseds statements have to be corroborated A statement made by a co-conspirator against another co-conspirator is not admissible after the conspiracy

Fiswisk v. United States (329 U.S. 211): while such a statement is admissible against the others where it is in furtherance of the criminal undertaking all such responsibility is at an end when the conspiracy ends.

New York v. Harris- the taint ends once the person leaves their home and gets on a public street

The taint was attenuated

Sun's statement was voluntary and detached enough from the illegal arrest

The heroin can be used against Sun because the evidence was a violation of Yee's rights, not Sun's

Remanded because the court was worried the judge took into account the statement of Yee

BIG FISH LITTLE FISH- violate the little fish and get the big fish What is a poisonous tree to one person is not a poisonous tree to another person

Need an arrest warrant if arrested in your house, if you are on the street you dont need a warrant

This means that Wong Sun cannot push for the exclusionary rule if his 4th Amendment rights were not violated.

In this case, Toys 4th Amendment rights were violated, therefore, he can invoke the exclusionary rule, but Wong Sun cant

Wong Sun did not have standing and Toy did

Once a defendant establishes a violation of his constitutional rights, he is entitled to suppression of all fruit of that poisonous tree

Aka- Derivative Rule A defendant seeking to invoke the fruits doctrine must establish that the challenged evidence was obtained by police as a factual result of a violation of his rights

Evidence obtained before a violation is not subject to challengeIn Murray the police entered a warehouse and saw weed, then they went and got a warrant and never said anything about the weed that they have previously seen. The Supreme Court said that the two searches were independent and the evidence could not be excluded. Confirming searches are not allowed if the search is used to get the warrant - if they would have gotten the warrant anyway, it would be independent and allowed (can not run tainted evidence through the system and use it. Does not matter if the magistrate knows the evidence is tainted)

Fruit of the Poisonous Tree

If the police have a justification to question a suspect, any statement he makes after an unlawful arrest is admissible in court

Not all evidence that results from a constitutional rights violation has to be suppressed

Limits to the Fruit Doctrine

If evidence is obtained by police after a violation of a defendants rights, but not as a consequence of that violation, its is said to be an independent source and it is admissible

Physical presence cannot be excluded from evidence

Fruit of the poisonous tree is admissible if the taint of the violation is attenuatedAttenuation of the Taint

The Supreme Court ruled that testimony given by the witness was an act of her own free will in no way coerced or even induced by official authority

He did not intentionally find the evidence, just a causal relationship between him finding the evidence and the eventual

CeccoliniTestimony of Witness as Excludable Fruit

Attenuation of TaintIndependent Source

Exceptions to Exclusionary Requirements

Book Notes from Wong Sun

ACJ Page 6

Independent Source Impeachment of Testifying Defendant- evidence acquired in violation of 4th Amendment rights can be used to impeach the defendants credibility

Motion to suppress based on 4th amendment violationDefendant has the burden of proof of the violationDefendant has to prove standing (personal violation)

Independent sourceLive witness/ free willAttenuationInevitable discovery

How do you Dissipate the taint: (Dissipation) - who bears the burden of proof of dissipation? We think it is State... recent cases suggest that it may be defendant p36 middle of page

How do we suppress evidence?

Police got radio call about store robbery and description of getaway carOfficer spotted similar car and followed until he stopped itThe petitioners were not the owner of the car, just passengersPetitioners and two others were ordered out of car and car was searchedPolice found shotgun and shells in the carPetitioners were arrested

Facts

Rakas moved to suppress rifle and shells on violation of 4th and 14thTrial court said that they did not have standing and dismissedAppelate affirmed because the car did not belong to the petitioners and they had no standing

Procedure

The Supreme Court said that the search did not violate the rights of the defendants

Whether the challenged search violated the fourth amendment rights of a criminal defendant who seeks to exclude the evidence obtained

Rakas says that it is similar to Jones v. United States (defendant was given a key to friend's apartment while he was gone and was searched; court said anyone legitimately on premises where a search occurs may challenge its legality)

Arguments

Dissenting judge says that we are abandoning a bright line rule for less certain analysis

Where do we draw the line?

Jones rule is too broad

Have to show that you have a reasonable expectation of privacyThe Jones rule is not determinative of whether there was a legitimate expectation of privacy in the areas of the automobile searched

Reasoning

The Jones rule makes unquestionable senseWhen sharing a private place with other people, they should expect that police will intrude only with consent or with a warrant

To base the rule off of a possessory interest is absurdAllows police to engage in bad faith searches involving more than one person

Dissent

Case Notes from Rakas

The Supreme Court is dodging the issue of probable cause to stop the carState v. Jackson - person who steals vehicle does not have standing to challenge You can have searches within searches - ex) if a briefcase was inside the car, there would be two searches

Lawful seizures need probable cause, sometimes things provide probable cause (illegally

Class Notes from Rakas

Rakas v. Illinois

ACJ Page 7

Lawful seizures need probable cause, sometimes things provide probable cause (illegally possessed items) on their face

Olson had a similar case to Jones, however, he was not there by himself; he was a guest of the owners.

An overnight guest is enough to show an expectation of privacy

Minnesota v. Olson

The court ruled that there is a difference between someone's home and place of business

Guests present for a business transaction were not given the privacy exception.

Minnesota v. Carter - The defendants rented used a room to make cocaine and paid the owner in cocaine

New York v. Berger - commercial properties are given less protection than residencesO'Conner v. Ortega - worker can claim protection over a workspace (i.e. private office)

Privacy in Premises

You have to reasonably expect the storage place would be free from governmental intrusion

The defendant has the burden of proof

Rawlings v. KentuckyUse of a Place for Storage

Brendlin v. California - a passenger is seized and has standing to contest to a automobile stop when a reasonable person would feel free to decline the officer's requests or otherwise terminate the encounter with the officer

Standing for Challenging stops

Book Notes from Rakas

Adversely affected- In Louisiana, any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court (Article 1 Section 5)

Police are watching a house, see people leave and pull them over

The drugs were the product of an illegal arrestThe statement is not immune from exclusion because it is regarded as fruit of the illegal arrest

Both fruits cannot be used against driver and passenger

Police search the car and find drugs. Driver and passenger give statement of where they bought the drugs from. Cullota was arrested.

Facts

Through Article 1, Section 5 - the evidence cannot be used against Cullota Reasoning

State v. Cullota

Louisiana Cases

CONSTITUTIONAL DOCTRINES RELATING TO LAW ENFORCEMENT CONDUCT

Schmerber was in a hospital after a car accident, officer noticed alcohol on breath and bloodshot eyes at the scene of the accident

The police officer requested a blood sample to be taken by the physician, no warrantThe blood sample indicated Schmerber was intoxicated and he was arrested

Facts

Defendant moved to exclude evidence based on 14th amendment violationAppelate court denied exclusion and affirmed his convictionThe Supreme Court affirms

Procedure

Rochin - officers without probable cause entered home and found pills, Rochin swallowed them and he was taken to hospital where his stomach was pumped

Previous Cases

Case Notes from Schmerber

Schmerber v. California Scope of the Basic Doctrines

ACJ Page 8

The Supreme Court said that the conviction violated due process and a sense of justice shocks the conscious

swallowed them and he was taken to hospital where his stomach was pumped

The Supreme Court did not exclude the blood because the violation did not offend the sense of justice in Rochin

Breithaupt - unconscious driver had a blood sample taken, no opportunity to object.

Rochin search not ok pumped stomach against willSchmerber search ok blood test against willBreithaupt search ok blood test not against will because the defendant was unconscious

Distinction between the three

This right only protects against being forced to testify against yourself, not the withdrawal of blood

The 14th amendment protects against state self-incrimination

CompulsionWitness against yourself (testimonial or communicative)

Two components of 5th amendment claim:

Distinction is between compelling communications or testimony (BAD) v. being the source of real or physical evidence (OK)

The test depended on a chemical analysis only, so they did not compel him to testify against himself - no 14th amendment violation

The 5th amendment guarantees against federal self incrimination

Probable cause? officer smelled liquor and eyes were bloodshot at scene of accident and two hours later in the hospital

Exigency? evidence of alcohol disappears as hours passThe test was reasonable and performed in a reasonable manner

The 4th amendment is search and seizures

The 6th Amendment Claim (not talked about in book)- the assistance of council at trial

Reasoning

Exigency- they were worried that the alcohol would be out of his system

J- Justification A- AuthorizationE- Execution (reasonable)

4th Amendment analysis of the search and seizure

You can be asked to try on clothes from the scene and other things, but it is not against the 5th Amendment

Lie detector- the distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling communications or testimony, but that compulsion which makes a suspect or accused the source of real or physical evidence; does not violate it.

If they are all three equally reliable, why are lie detectors not allowed? The lie detector acts as a window into the accuseds mind and permeates the security and safety of his own consciousness

Lie detector test- may not be used in criminal prosecution, but the court has routinely approved the use of BAC and DNA

Breithaupt was unconscious and in Schmerber, he refusedWhy are they redeciding the same issue? The 14th amendment grabs all the cases that dont fall under the 4th - 6th amendments

Difference between Schmerber and Breithaupt

Laws that require a driver to comply with breath, blood, or urine testing for intoxication levels are implied consent laws. Refusal to cooperate with a police officer who requests to see proof of insurance, a drivers license, or requests that a driver submit to chemical testing carries a penalty of suspended driving privileges for up to one year.

Blood test evidence under LA Law

Why is the 14th amendment claim treated independently?

Class Notes from Schmerber

ACJ Page 9

Mapp - 4thMalloy v. Hogan - 5thEscobedo v. Illinois - 6th

1957 - 1996 cases - the 14th amendment falls outside of thisWhy is the 14th amendment claim treated independently?

United States v. Wade - police did not violate fifth by requiring Wade to repeat robber's words because it only used physical characteristics

Voice samples

Pennsylvania v. Muniz - having a suspect speak to hear the slurred words also only uses physical characteristics and is not providing a testimony

Doe v. United States- to be testimonial, the communication must relate a factual assertation or disclose information

Field Sobriety Tests

Fifth is violated only if compulsion to engage in testimony is not allowedSouth Dakota v. Neville - fifth does not bar use of evidence because no impermissible compulsion is imposed upon the suspect

Compulsion Must Be Impermissible

Minnesota v. Murphy - probationers can be compelled to answer questions that pose no realistic threat to incrimination

Requirement that compelled activity be incriminating

Added by the court, but not in the amendment languageFourth Amendment Warrant Requirement

In general, a Fourth Amendment requirement that a search be based upon "probable cause" to believe that the search would result in discovery of something the officers had a right to seize.

Fourth Amendment Probable Cause Requirement

County of Sacramento v. Lewis - shocking the conscience is still a valid test of admissibility of evidence

Due Process Prohibition Against Conduct Shocking the Conscience

Book Notes from Schmerber

Shopkeeper was closing for the night, saw someone armed and the shopkeeper pulled his gun and fired

Shopkeeper was shot and brought to the hospitalRespondent was found later with gunshot wound, and told police that he was robbedRespondent was taken to hospital and shopkeeper said that he was the man who shot himPolice investigated and decided that the defendant's story was not trueVA moved for the supposed bullet to be removed from petitioner - just under the skinBullet was found to be about 2 inches into the body

Facts

Trial judge granted motion for surgeryRespondent brought an action in the USDC for 4th amendment violations, deniedMoved for new trial based on evidence about depth in the body, denied and VA SC affirmed the denial, district court then affirmed

The Supreme Court granted certiorari

Procedure

Reasonableness of surgical intrusions beneath the skin weighs interests in privacy against society's interest in obtaining evidence

Extent to which the procedure may threaten the safety or health of the individualExtent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity

Is there a less intrusive method to use?

Factors of intrusion from Schmerber:

Reasoning

Case Notes from Winston

Winston v. Lee

ACJ Page 10

Is there a less intrusive method to use?Is it essential to the prosecution?

VA clearly had probable cause to conduct the search

Intrusions on the suspect would be too intrusive

Mapp v. Ohio 4Mallory v. Hogan 5Escobedo v. Illinois 6

Incorporation of Amendments into state law

Class Notes from Winston

Deals with electronic surveillance accomplished through physical trespass, this was found to violate the Fourth Amendment despite the fact that intangible conversations, not places or things were affected.

A unanimous court held that listening to a conversation via a spiked mike inserted into a house constituted an illegal search and seizure

Silverman - Focused on whether police had intruded in some physical sense into a protected area

Law Prior to Katz:

Officers placed a listening device to hear Katz in a phone booth and overheard the end of his conversation

Court found that officers engaged in a searchWent away from Silverman (supra) rule and focused more on "what a person seeks to preserve as private, even in a public area, may be const. protected"

Have you signaled to others that you expect privacy?A person exhibited an actual expectation of privacy (subjective prong)

Expectation is one that society is prepared to recognize as reasonable (objective prong)

Harlan's concurring opinion:

If the phone booth was open during the call, we wouldnt even have this caseCourt said there was a search because Katz believed his conduct would be private

Katz v. United States

What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amendment protection, but what he seeks to preserve as private, even in an area accessible to the public may be constitutionally protected

Reasonable Expectation of Privacy

Means that owner had no expectation of privacy

Horton - An officer has not engaged in a search where an officer observed an item left in plain view

Texas v. Brown - if an officer uses artificial lighting to see into a darkened area, it is not a search (shining flashlight into car at night)

Because the item was in plain view means the owner had no reasonable expectation of privacy in information obtainable by looking at the item

No he needs to go get a warrantSearch is separated from seizure

Can an officer seize something that is in plain view?

Immediately apparent Officer has to be lawfully in the place

Requirements for plain view search: (Plain View is not considered a search! No need for a reasonableness test)

Plain View Observations

i.e. checking to see if a substance was cocaine (United States v. Jacobsen)May not be a search, if the information permits no reasonable expectation of privacy

Law Enforcement Conduct Revealing Only Criminal Information

Book Notes from before Katz

Katz v. United StatesPolice Activity Constituting a Search (What is a search?)

ACJ Page 11

A fedex package came open and the employee saw that it was cocaine, he called the police and they checked it to see if its cocaine

No reasonable expectation of privacy

i.e. checking to see if a substance was cocaine (United States v. Jacobsen)

The test is substance specific, there is no possibility of other privacy violationsHow does this field test differ from opening a trunk?

The movement of equipment was a search, because it enabled the officer to obtain information (serial numbers) otherwise unavailable to them

Conducted with a warrantAnd supported by probable cause to believe it will result in info that a crime has been committed or the identity of a person who has committed a crime

Reasonable under 4th if:

Arizona v. Hicks- An officer who was properly in an apartment moved some stereo equipment to look at the serial numbers. The court ruled that this was a search

Searches Permissible on Less Than Probable Cause

The mechanical interception of spoken words is sometimes a search Smith v. Maryland - Tracked pen strokes to obtain phone numbers; is not a search because it did not record conversations, just phone numbers - no expectation of privacy for phone numbers

Electronic Surveillance as a Search

The manner in which the information is obtained through this investigative technique is much less intrusive than a typical search

It is substance-specific (like testing cocaine - there is no disturbance of non-contraband)

Not a Search

United States v. Place - exposure of luggage in a public place to a dog sniff test was not a search - did not open luggage - no reasonable expectation of privacy with contraband

Dog Sniffing as a Search

California v. Greenwood: respondents could have no reasonable expectation of privacy in the inculpatory items they discarded; not considered a search. No search when trash on the curb was placed in non transparent trash bags. Expectation of privacy does not give rise to 4th protection unless society is prepared to accept the expectation as reasonable -trash was placed on curb for collection by third party

Examination of Trash as a Search

The defendant does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner

Bond v. United States- The officer manipulated the defendants bag and it was held to be a search

Manipulation of Luggage as a Search

The government only restricts government searchersPrivate Party Search

Same facts but police go in to house following the neighbor and find the tree. Could the police officer use this? If the police do not exceed the actions of the private party search than they do not change it from a private party search - can still use evidence

Leave a key with your neighbor, he sees a pot plant. Takes a leaf and brings it to the local constable. Can the police use that evidence?

If your neighbor breaks into the house it is still admissible as long as the police played no role in the collecting of the evidence.

If you ship with a private shipper you have an expectation of privacy - shipment of pornographic material to wrong address - images too small to see - police are called -police take and view on a projector - Had they stopped when they saw the package and got a warrant it would have been okay - but taking the package and using on a projector took it a step further than the private party.

Search Hypos:

Class Notes from Katz

ACJ Page 12

projector took it a step further than the private party. If a principal thinks there is a drug problem, searches the student, finds pot, and then calls the police -If the government is enticing or authorizing private third parties to engage in a search- it does not qualify as a private party search (Coy v. Iowa)

Sometimes depends on frequency of useLip reader read Katzs phone conversation instead of listening device?

Police dog smelled marijuana in house, while outdoors

Immediately apparent that it is contrabandLawfully in the place where they obtained the viewpoint of the evidence

Requirements for plain view Does this count as plain view?

There was a sidewalk dissecting itWas the dog on the curtilage?

Issues: (1) Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause; and (2) whether the officers conduct during the investigation of the grow house, including remaining outside the house awaiting a search warrant is, itself, a Fourth Amendment search.

Pending case in Supreme Court: Florida v. Jardines

Outside parties can act outside the rules of their companies

Facts: Officer walked around a locked gate at Olivers farm and passed no trespassing signs to search a field after being tipped that marijuana was being grown back there. Found a marijuana field about a mile away from defendant's home.

Trial: Suppressed the evidence - citing Katz - Not an open fieldCourt of Appeals: reversed the suppression - human relations that create the need for privacy do not ordinarily take place, in open fields.

The Supreme Court: Affirmed

Procedural History

No 4th amendment violation because of the open and public nature of fieldsOliver differs from Hester because Oliver is not an open field, per se (no trespassing signs and gates)

Society is not prepared to recognize the privacy of an open field

Facts: Officers entered the woods between two houses. Followed a foot path until they found a patch of marijuana surrounded by chicken wire. Officers went get a search warrant and arrested Thorton

Trial: Suppressed - warrant premised on information obtained during warrantless search

Appeal: open fields doctrine did not justify search. The Supreme Court: reversed and remanded

Procedural history:

Maine v. Thorton

Hester v. United States- officers can enter and search a open field without a warrantPrevious Case

Effects - the framers intended effects to be limited to personal instead of real property.

Open fields are not explicitly covered in the 4th amendment and they are not considered an effect - not an unreasonable search to search an open field

Exception: curtilage - the area immediately surrounding your house is not included in the open field doctrine

Open fields doctrine - permits officers to enter an open field and search without a warrant.

Holding: The Supreme Court took both cases to clarify the discrepancy between Oliver and Thorton

Case Notes from Oliver

Oliver v. United States

ACJ Page 13

included in the open field doctrineCurtilage demands protection under 4th amendment

Creates a danger that constitutional rights will be arbitrarily and inequitably enforced

Makes it hard for police officer to discern boundaries.

Case by Case analysis

Protecting open fields would make it unreasonable and complicated for police to analyze the situation - were signs posted, fences to expect privacy?

Is it against the law? Trespassing. Legislation is the will of the people.Intimacy of the settingPotential uses of propertyReferendum (poll) of the people to determine views

One can only have a reasonable expectation of privacy over curtilage (factors given in Dunn) surrounding the house

Frequency of the activity (Riley)

How do we tell if society thinks it is reasonable or not? Sources:Society does not recognize the expectation of privacy

Legitimate test: whether the government's intrusion infringes upon the personal and societal values protected by the 4th amendment.

Affirms Hester

Just because privacy is expected does not mean its a legitimate expectation of privacy!!

Officers crossed over the perimeter fence (whole 198 acres fenced in), climbed a barbed wire fence and the fence surrounding the large barn front and approached he barn. They walked under the overhang and up the locked gates. By shining a flashlight through the netting they observed a drug laboratory.

The proximity of the home to the area claimed to be curtilageWhether the area is included within an enclosure that surrounds the homeThe nature of uses to which the area can be putThe steps taken by the resident to protect the area from observation

Four factors as to curtilage:

The Supreme Court held the evidence as admissible and the officers did not engage in a search

United States v. DunnBook Notes from Oliver

Facts: Government obtained a warrant to place a GPS in the undercarriage of Jones car. Warrant was for 10 days and for placement in DC. GPS was placed on the 11th day in Maryland.

Trial: only suppressed while parked next to house - [a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.

DC Appeals: warrantless use of the GPS - violated 4th amendThe Supreme Court - cert granted

Procedural History:

Issue: Was the placement of a GPS device a search? Yes

The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a search

The police officer had obtained a warrant. The warrant was limited to DC and had a 10 day limit for the placement of the GPS. The GPS was placed on the 11th day and was placed in Maryland.

The court found that the government did not have a search warrant = warrantless search against the 4th amendment.

Holding:

Case Notes from Jones

United States v. Jones

ACJ Page 14

Government admits the warrant was deficient, they try to prevail because the government believed there was no search.

against the 4th amendment.

Oliver said that the trespass didnt matterJones said that the trespass does matter

Is Oliver still good law?

The search was the installation and use of information

Scalia view of search - Trespass (intrusion constitutionally protected space or violation of reasonable expectation of privacy

Alito - whether reasonable expectations of privacy were violated, says the police activity was a search. The length of time of surveillance was too long to expect privacy.

Class Notes from Jones

Anonymous tip that weed was being grown on Rileys propertyOfficer could not see greenhouse from the road so he circled in a helicopter at 400 feet above ground

Officer was able to see into the greenhouse because parts of the roof were missing.Officer was able to see what he thought was marijuana with his naked eyeWarrant was obtained and marijuana was found

Facts

Florida trial court granted motion to suppressCOA reversedFL SC affirmed trial court decisionThe Supreme Court granted certiori

Procedure

The yard was within the curtilage, but society did not support the expectation of privacy

The home and curtilage are not necessarily protected from inspection that involves no physical invasion - 4th amendment does not require police in public airways to obtain a warrant to view what is visible to the naked eye

California v. Ciraolo- It was not a search when the police used a fix winged airplane to see a marijuana field at 1000 feet, with the naked eye

Precedent

The helicopter viewing was not a search under the 4th amendment

Property was within the curtilagePrecautions protected against ground level observationBoth defendants could not have reasonably expected privacy from fly over

Comparison to Ciraolo

Private and commercial flights in the public airways are routineWould be a different case if the helicopter had been flying at a height not within FAA regulations

Flyover did not interfere with defendants normal use of the greenhouse or curtilage (no undue noise, no wind, dust, or threat of injury)

How routine (often) the activity is - frequency of intrusionStandard for how the court determines what is reasonable - Riley

Court doesn't care whether there is a trespass - it is beyond the curtilageStandard for how the court determines what is reasonable - Oliver

Holding and Reasoning

Too much weight of the reasoning was placed on the helicopter flying at FAA regulations => the real test is that public air travel at that height is routine and considered reasonable by society

OConners Concurring

Go back to the Katz analysisBrennans Dissent

Case Notes from Riley

Florida v. Riley

ACJ Page 15

Very little air traffic with helicopters at 400 feetGo back to the Katz analysis

Did not reveal any information besides buildings and equipmentThe mere fact that human vision is enhanced some what, at least to the degree here, does not give rise to constitutional problems.

Dow Chemical Company v. United States - aerial observation of a 2000 acre outdoor facility with a camera was not a search

Use of Camera in Aerial Surveillance

The court ruled that this was similar to someone following them in a car

Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science an technology afforded them in this case.

Not a search - The transmitter did not give the police any information that could not have been obtained with ordinary eye sight or physical surveillance.

United States v. Knott- The use of a beeper did not invade a legitimate expectation of privacy (The warrantless installation was not challanged)

United States v. Karo- the installation of a beeper was not against the 4th Amendment because defendant did not have possession or tittle to the can, but once it was installed, it was against the 4th Amendment (it became a warrantless search) because it provided officers with information about the inside of the home that they would not have previously been able to obtain.

The difference between the two cases is that the first case just showed where they were and the second case showed were the item was, which was not visible to the naked eye

Surveillance by Beeper

Kyllo v. United States- Thermal imaging = search The 4th amendment has never been tied to a measurement of the quality or quantity of information obtained

What if it only picked up marijuana heat lamps? Would still be a violation of a reasonable expectation of privacy

Thermal Imaging Surveillance

State v. Rabb- A dog sniffing at the door of a residence= thermal imaging because of the intrusion of the constitutionally protected area

Dog Sniff at Residence Door

Book Notes from Riley

Because Article 5 1 of LA Constitution makes specific reference to property it provides greater rights to privacy than the US Constitution.

Defendants charged w/ producing marijuanaTrial court: MTs to Suppress OverruledCertiori Granted

Background

Defendants are growing pot on land that is clearly marked with numerous signs stating no trespassing and have chained the road entering the land in further attempts to ensure privacy

Trespassing hunter sees pot and tells SheriffMarijuana was not visible from the public road or from outside the propertySheriff trespasses, then again with another officer, then again the next yearStarted surveillance of the propertyPolice returned again and arrest the defendants

Facts

Was there a legitimate expectation of privacy? YESIssue

Previous Cases

State v. Byers

Louisiana Cases

ACJ Page 16

State v. Fearn - Seizure of weed in ditch not viewable from street was not constitutional under similar circumstances

Hester - warrantless search and seizure was permitted by open fields doctrine

Previous Cases

Ct differentiates Hester on the grounds that the defendants had taken every precaution to ensure privacy, none taken in Hester

Police could not invoke plain view doctrine because the officers were not lawfully present when they viewed the weed

Weed was not visible from roadDefendants had done everything they could to have a legitimate expectation of privacy - signs and chain

Relied on the LA decision in State v. Fearn

Reasoning

While an officer was making an arrest next door, he noticed that the neighbors were not sitting on the porch

Previously the neighbors had told the officers that if they are not on the porch, then that means there is drug activity in the area

The officer then walked up to the porch to speak with one of the neighbors, and he looks through the screen door of one of the other apartments and notices a man cutting crack on the kitchen table

Facts

Trial court convicted defendant of attempted possession of cocaineCOA reversed and suppressed the evidence because the officer never observed the defendant committing a crime

LA SC reverses the COA decision and says that the officer was within the plain view doctrine, had exigent circumstances to enter the home, and probable cause

Procedure

Was the officer engaged in an illegal search by being on the front porch? NoIssue

Arresting officer was lawfully in a position to observe defendants behavior.

Prevention of the destruction of evidenceProbable cause to arrest the defendant

There were exigent circumstances allowing the officer to immediately enter the residence.

Porches are not given as much protection because porches can be entered by the public to knock on the door

Cop had entered the curtilage (porch) of the home, but he was lawfully on the front porch for a legitimate purpose (Oliver)

Reasoning

The court upheld the warrantless arrest of defendant Dreary in his home based on probable cause acquired when an officer conducting a legitimate police investigation knocked on the side of the defendants house and observed through the opened front door the startled defendant drop a bag of crack cocaine

Dreary affirms the holding in State v. Dixon: the police have the same right as other members of the public to approach the doorway of a home and see what was exposed by the owner to the view of the general populace.

State v. DrearyPrevious Cases

State v. Brisban

Defendant is growing weed in ditch in backyard of parents houseDitch was screened from view by a shed and fence and could not be seen from public street

Neighbor notices the plants and calls policeOfficer views the scene from neighbors house and walks over to identify

FactsState v. Fearn

ACJ Page 17

Officer views the scene from neighbors house and walks over to identifyOfficer identifies weed before he gets to defendant's property of the plants were not visible unless close inspectionOther of plants were only visible at the defendant's property lineOfficers arrest defendant and seize the weed without a warrant

Defendant charged with possession of marijuanaTrial judge grants motion to suppressCourt of Appeal grants certiori

Procedural Background

Was the defendant's expectation of privacy violated by the warrantless search and seizure? Yes

Issue

Defendant had reasonable expectation of privacy Search was not incidental to an arrest because the defendant was not in immediate control of weed

Must be prior justification for intrusion - not metEvidence is discovered inadvertently - not met, this was a planned searchImmediately apparent without close inspection that the items are evidence or contraband

Plain view conditions (LA):

Plain view alone is not enough to justify a warrantless seizure, so the exception does not apply to this case

There was no exigency

Reasoning

Both dissents view this as a Hester open fields issue

The view of the plants was obstructed only from the southeast and a person could w/o difficulty position himself to see the area from the street

The plants were not enclosed and less than 10 feet from the neighbors propertyHeight of weeds are the only form of coverThese facts do not create a sufficient expectation of privacy

Chief Justice Sanders

Dissent

Seizure - if it is unlawfully possessed than it is not a seizure.Soldal v. Cook County - mobile home was removed from its location under the direction of the police; activity was not considered a seizure and was protected because they did not enter or rummage through the house

Definition of a seizure - whether activity constitutes a meaningful interference with the suspects possesory interests; (a person as well as an item can be seized)

The 4th Amendment protects against seizures resulting from "searches" but not seizures generally

ContrabandInstrumentalities and fruits of crimeEvidence-Okay to seize, but at one time was barred by the 4th AmendmentMay also seize a suspects possession after an arrest if it is to prevent damage to possession

Items Subject to Seizure - Officers are entitled to seize items which they have sufficient reason to believe are seizable

Coolidge v. New Hampshire - it must be immediately apparent to the officer that the item is subject to seizure

Arizona v. Hicks - probable cause is required for seizures

Need for Probable Cause

Searches of Seized Items

Book Notes from before Horton

Horton v. CaliforniaPolice Activity Constituting a Seizure

ACJ Page 18

Once the officers have seized the item and there is no possibility of the arrestee destroying it or interfering, a search is no longer an incident to the arrest and a warrant is needed

United States v. Chadwick - officers validly seized a footlocker, but illegally searched it because of no warrant

Searches of Seized Items

Victim was attacked by two masked men with a machine gun and a stun gunThe victim was handcuffed and robbedVictim was able to identify defendant's voicePolice officer determined that there was probable cause to search defendants home for robbery property and weapons

Warrant only authorized search for the robbery proceeds (three rings)Officer searched home pursuant to warrant and found weapons and other evidence in plain view, the evidence was seized

Facts

What are the conditions of a plain view seizure? Inadvertent discovery is a characteristic of plain view seizures, but not a necessary condition

Issue

Seizures in plain view only violates the possessory interest of property owners, not privacy rights, because the item is already in plain view.

Police must be located in a place from which the object ban be plainly seen, but they must also have a lawful right of access to the object itself

In plain view + Nature must be incriminating on the items face. (contraband)

2 requirements of a plain view seizure:

The search was authorized by the warrant and the seizure was authorized by the plain view doctrine

Holding and Reasoning

There is no reason why the officers couldnt have obtained a warrant for seizureAllowing officers to act without a warrant to know the location of evidence, have probable cause to seize it, and intend to seize it is unconstitutional

Rewards lazy police work when officers dont fill out warrant because they know that they will stumble across desired evidence

Inadvertent discovery protects possessory interest

Dissent

Case Notes from Horton

Things listed on the warrantThings that are unlawfully possessedA weapon owned by a parolee

What can you seize during a search?

When in doubt, name the smallest thing that you could findLook for a car only in a few spots, you can look for a ring almost anywhere

May not necessarily have to start in the place where the item would most likely be found

Must stop when the things in the warrant are found

A search warrant limits searches only to areas where the item your are searching for can be found

Suspected tax evasion, ask neighbors and get wind of home brewed beer. Officer gets search warrant looking for financial records indicating tax evasion

Yes, he can pick up evidence pertaining to other crimes. See tax return in desk, Can he seize it?

Hypo

Class Notes from Horton

ISSUANCE AND EXECUTION OF ARREST AND SEARCH WARRANTS

Illinois v. GatesThe Showing of Probable Cause

ACJ Page 19

Issued upon presentation of information believed to justify the arrest or searchInformation is presented for an arrest in a complaintInformation is presented for a search in an affidavit

Warrant - court order authorizing a law enforcement officer to arrest an identified person or search a specified place for and to seize specific items

When a search warrant is desired, the document of application is ordinarily called simply an affadavit

Warrants are preferred because they are issued by an unbiased magistrate beforehand to avoid violations of the 4th amendment

Basics

Can officers use tainted evidence? Murray v. United States- no fruit from the poisonous tree to prove probable cause

Can officers use hearsay? GatesWhat is probable cause for an arrest? A person of reasonable prudence would believe that it is more probable than not, he is guilty of committing a crime

For a search warrant? A person of reasonable prudence would believe there is evidence of a crime would be found in a particular location

Big issues from this chapter

Neutral

Coolidge - attorney general actively involved in investigation could not issue warrant

Connally v. Georgia- A justice of the peace was given $5 for every warrant issued and nothing for denials, declared unreasonable

Cannot be biased

Detached

The Supreme Court gives two requirements

Does not say whether someone completely outside the sphere of the judicial branch could issue a warrant

Clerk of the Municipal Court can issue a warrant (Shadwick)

No requirement that the issuer needs to be a judicial officer or magistrate

Suppression Hearing Judges dont start the hearing de novo, they take the magistrates judgment into account

Traditionally, a judicial officer may only issue warrants for law enforcement actions within the judges jurisdiction

If the property or person is within the district before the warrant is executedUSA PATRIOT Act allows federal judges to issue warrants for any districts where activities related to terrorism may have occurred

Exceptions:

Need for a local magistrate

Magistrates

Aguilar v. Texas - the magistrate cannot take the officers word that probable cause exists. They must examine it and determine on their own.

The tip describes the suspects criminal activity in sufficient detail that the magistrate can infer that the informant obtained the information in a reliable way

Other information may corroborate parts of the information in the tip to justify relying on the tips assertions

Physical testimonies are the bestFacts that provide basis of knowledge (how the informant got his information) and veracity of reporter (how reliable is the informant)

How do you know the informant is telling the truth?

Spinelli v. United States- a tip is not usually valid under Aguilar, but it can constitute probable cause if:

Showing Probable Cause Before Gates We will use this as a basis for probable cause

Book Notes from before Gates

Illinois v. Gates

ACJ Page 20

and veracity of reporter (how reliable is the informant)

Had to meet both prongs independently. - (we now use the totality of circumstances)

Police received anonymous letter in mail informing that there is a couple who engages in drug trades, the next date for a drug delivery is given, and that the defendants have $100,000 of marijuana in their basement

Officer followed the tip, verified the address, and that a flight was bookedPolice started surveillance of the flight and the couple on their way home

Judge decided that the defendants mode of operation was corroborated

Officer signed affidavit and the judge issued a search warrant for the defendants residence and car

Police were waiting for defendants at their home and found the drugs in the car and home

Facts

Defendants were indicted for violation of state drug lawsDefendants moved to suppress evidence seized during a warranted searchTrial court - granted motion because the affidavit failed to support probable cause that the car and home contained contraband

IL COA - affirmed

The letter had to adequately reveal the basis of knowledge of the letter writerThe letter had to provide facts to establish the veracity (truthfulness) of the informant or the reliability of the report

Used two-prong test from Spinelli (we will use this two prong test in class even though it was overruled) have to independently show probable cause on each prong

IL SC - affirmed the lower decisions and granted the suppression of evidence because the warrant was invalid under the decision in Aguilar

The Supreme Court granted certiorari, reversed

Procedure

Holding: Jones standard should be reinstated: if the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing

More scrutiny would cause police to go outside of warrants to obtain evidenceAnonymous tips would be devalued

A rigorous analysis is not useful because the people issuing affidavits are not trained on legal principles

Jones standard should be reinstatedThe big fact is that the tip talked about future behavior instead of recognized routines

Reasoning

The Spinelli/Aguilar two-prong test should be kept to structure the inquiry for greater accuracy

Brennan Dissent

There were many discrepancies between the tip and the real events => no probable cause regardless of standard used.

Stevens Dissent

Case Notes from Gates

Anticipatory Warrant - Warrant based on an affidavit showing probable cause that at some future time, certain evidence of a crime will be located at a specified place.

Most anticipatory warrants are subject to a triggering condition, not just a mere passage of time

1.) It is NOW probable that 2.) contraband, evidence of crime, or a fugitive In theory, an anticipatory warrant is no different than a normal warrant:

Grubbs- The defendant ordered child porn from the Feds and it was sent to him through a controlled delivery, they applied for an anticipatory warrant beforehand that allowed them to search only after the tape was delivered and taken inside the residence

Anticipatory Warrants and Probable CauseBook Notes after Gates

ACJ Page 21

1.) It is NOW probable that 2.) contraband, evidence of crime, or a fugitive WILL BE on the described premises 3.) when the warrant is executed

The triggering condition does not have to be listed in the warrantMust have a fair probability that if the condition occurs that the evidence will be found in the particular place AND there must be probable cause to believe the triggering condition will occur

Alabama v. White 496 U.S. 325 cites gates - uses totality test

Police officer obtain information from a Jefferson Parish Police officer.The police officer received his information from a reliable informant.

Facts

Procedural HistoryHolding: Not enough to search 850 Florida Blvd.

Set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him

Affidavit submitted to magistrate may be based entirely on hearsay, but if so it must be:

prior accurate reportsany specific independent corroboration of the accuracy of the instant report

Factors which support credibility of an unidentified informant

Direct personal observation by the informantIn informant obtained info indirectly, must give reasons in sufficient factual detail for the magistrate to evaluate the credit and reliability of both the indirect source and indirectly obtained information.

Factors which support the credibility of the information

Officer obtained warrant after another officer told the officer who was applying for affidavit what he saw

Double hearsay could be used as reliable to justify issuance of search warrant, providing that the affidavit meets the tests of both reliability of informant and the information

A search warrant may be validly based upon hearsay information which demonstrates a substantial factual basis for the search.

State v. PacieraCited cases

Reasoning

State v. Culotta Part 2

Defendant operated a Rehab ClinicPolice suspected him of defrauding several insurance companies by charging fake sessions, forging Dr. names, and charging under fake Dr. names.

Although not included in the affidavit, officer orally informed the magistrate of the informant and his reasons for the omission.

N ot lawful search but in this case it does not matter since the police did not instigate the search.

The informant also gave the officer some of the defendants business records that showed fraud.

The officer got a warrant because he had information from an informant, but intentionally hid her identity for safety purposes

Ruled that under the totality of the circumstances probable cause existed and regardless the omission was in good faith (Leon)

Good Faith exception of the name - he left it out to protect the citizen.

We know nothing about the veracity of the informant. This is a bad warrant according to Gates.

The judge gave him the warrant

FactsState v. Barrilleaux

Louisiana Cases

ACJ Page 22

Good Faith exception of the name - he left it out to protect the citizen. The affidavit gave NO information about the reliability of the informant, no information about the informants knowledge, and no independent police follow up to corroborate the tip

Trial Court: Good faith exception of Leon means warrant was validCOA: affirmed

Procedural History

Should the exclusionary rule be applied in cases where an officer in good faith and for valid reasons omits pertinent info from the affidavit but provides the info orally to the magistrate?

Issue

Where an officer in good faith leaves information out of an affidavit and instead orally tells the judge the exclusionary rule will not apply.

Exclusionary rule is used to enforce Four Corners Doctrineallows for Leon exception

Holding

Requires an officer seeking a search warrant to reveal, at the time of the issuance of the warrant, all information that he possesses bearing on the probable cause determination to be made by the magistrate

The magistrate is limited to the facts contained within the four corners of the affidavit in his determination of probable cause

Four Corners Doctrine - based on LA Code of Crim Procedure art. 162Key Term

Generally an affidavit cannot be supplemented or rehabilitated by the testimony of the affiant or the issuing magistrate.

The court threw out the four corner rule as a must and made it a guide unless police have acted in good faith and for a valid purpose

Officer acted in good faith and magistrate erred in not denying- applying the exclusionary rule here doesnt further goal of deterrence of police misconduct

deterrent purpose of the exclusionary rule would not be boosted in any way by suppressing the evidence

Level of deterrence outweighed by cost of exclusion

Court adopts a good faith exception (like Leon) to the four corners doctrine based on a balance of issues

Reasoning

4-corner implemented to protect the accused from the actions of over-zealous officersNot enforcing the doctrine could allow the state to rehabilitate a facially deficient warrant by showing that the police somehow gave the magistrate enough info...

Dissent- Calogero

Detective was informed that a child was brought to hospital with burns on 50% of bodyMother told police that she asked her son to run the bath water and to take a bath. He complained about the temperature and when she came to get him, he fell back into the tub. The boy did not say that he was in any pain.

Detectives applied for a search warrant to get photos of crime scene, collect evidence, obtain skin tissue, test water temperatures, and victims clothing.

Magistrate signed the search warrant, the temperatures were tested and defendants were arrested

Defendants filed motion to suppress evidence - used the four corners rule - that it is not apparent as to what crime was committed from the warrant

Facts

Issue

Reversed - Evidence seized is admissibleHolding

Probable cause is not defeated by imagining innocent explanations for an activity Reasoning

State v. Green

ACJ Page 23

Probable cause is not defeated by imagining innocent explanations for an activity Standard: when a reasonable man could assume that an innocent explanation was less likely than a criminal one

The magistrate could have concluded that a crime was committed from the references to a victim, time factors, incident, using the word suspects, and that they were Mirandized

The affidavit did not present probable cause and the evidence must be suppressedDissent - Kimball

Man sexually assaulted Bailey with a knifeBailey gave detailed description of suspectDefendant was taken into custody on the same day, on different chargesDefendant remarked that he mistakenly heard the bail hearing was about Bailey and he did not know who that was

Clothing and knife matching the description was found and admittedOfficers matched Franks to Baileys description and obtained a warrant

Facts

State argued that defendant could not go behind the warrant, but must fight the information of the four corners

Motion to suppress was denied

Defendant files motion to suppress because the warrant did not show probable cause and attacked the veracity of officer statements - the real account did not match the affidavit

DE SC - Affirmed. A defendant may not challenge the veracity of a sworn statement used by police to obtain a warrant.

The Supreme Court reverses - because defendant has complete bar - Defendant gets chance to contest the veracity of statements

Procedural History

Does a defendant in a criminal proceeding ever have the right under the 4th and 14th amendments to challenge the truthfulness of factual statements made in an affidavit supporting the warrant?

Issue

Where the defendant makes a preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the affidavit, and if the false statement is necessary to find probable cause, the 4th amendment requires a hearing be held at defendant's request. Warrant and fruits are voided if a preponderance is in defendants favor.

Holding

This does not mean that it is completely accurate - just thought to be trueMuch of the information is based on hearsay or compiled hastily

It is presumed that information contained in the affidavit is truthful

A complete ban on challenging veracity would nullify probable cause requirements because the officers could lie to convince the magistrate with no real consequences

The urgency of a search will not allow a magistrate to completely verify every assertion

Reckless disregard for the truth- Not intentional but knowing

There must be allegations of deliberate falsehood or reckless disregard for the truth, along with an offer of proof, to challenge the affidavit

Defendant should point out what is false about affidavit and supporting reasons of why

Affidavits should be furnished, or their absence satisfactorily explainedIf the false material is set aside and there is still probable cause: no hearingIf there is no probable cause: defendant is entitled to a hearing

Rule:

Reasoning

Case Notes from Franks

Class Notes from Franks

Franks v. DelawareChallenging Factual Assertions in the Affidavit

ACJ Page 24

They want an affidavit to dispute a warrant- have to prove that the warrant was purposely false

Does it only apply to police officers? Yes, only the affiants statements and governmental informants

Some informants can be governmental if they get paid What about informants who are given time off their sentences? Grey area in the law

Only reaches to governmental parties

Class Notes from Franks

Roviaro v. United States - due process gives you the right to confront your accuser when presented at trial, or else the evidence must be discarded

McCray v. Illinois - left the question unanswered, the court answered No, but it may have been because of the particular circumstances. The government cannot be forced to disclose the identity when the identity is used to get a warrant

Franks suggests that the defendant may have the right

Does the 4th amendment give defendant right to know who was the informant?Availability of Informants Identity

Book Notes from Franks

Rey convicted of possession of heroin with intent to distributeSearch pursuant to warrant was conducted at Reys houseAffidavit contained surveillance and witnesses of heroin activity by Kenner - however the surveillance was mistakenly being performed on Rey

Facts

United States v. Thomas - remove the inaccurate statements from the affidavit then examine the remaining to see if probable cause exists

Prior Case

Adopts the Thomas ruleName error was not intentionalMistake was in name only. The informants had the wrong name but not the wrong person.

The mistaken identification of the car owner was not a major issue in criminal activityInclusion of mistaken suspects criminal history was not intentionalProbable cause existed after removal of misrepresentationsTEST: Negligent, unintentional misrepresentation = reevaluate the affidavit with the misinformation deleted to see if the remaining facts would establish probable cause

When the misrepresentation was intentional: quash the warrant because it is in line with the good faith doctrine to exclude evidence that is not obtained evidence obtained in good faith.

Reasoning

State v. Rey

They had recently seen Palmer bring automatic illegal weapons into apartmentSomeone upstairs had pointed a gun at a 12 year oldSomeone reported that Palmer had discharged arms in the back yard

Affidavit recited information from Lehnens neighbor and her son

Police investigated and found Palmer and defendant had criminal records which gave probable cause

Search with warrant yielded drugs, but no weapons

Facts

Witness said that from his distance it would have been impossible to identify weapon (not included in affidavit)

Defendant filed motion to suppress

Trial court denied motion to suppress - no intent to deceiveLA SC affirms

Procedure

Issue

State v. Lehnen

Louisiana Cases

ACJ Page 25

Should a motion to suppress be granted when an officer omits, without bad faith on his part, relevant facts which might affect the magistrates decision on probable cause? (NO)

Issue

Court does not believe that affidavits truthful assertions, where not all information was given, should be removed to determine probable cause

TEST: Officer omits without bad faith relevant information = Consider the affidavit as if the omitted facts were present on review

The fact that they both had criminal records played a significant role in the determination to still find probable cause

Trial courts determination of probable cause is entitled to significant deference

The magistrate would have found that probable cause exists, even with the excluded information.

Reasoning

Louisiana does follow Franks, only requiring more stringent sanctions than the Supreme Court upheld

What extent do the 4th amendment or state provisions embody statutory and court appointed warrant requirements?

What is the effect of violating requirements upon the admissibility of evidence?

Two Major Questions

Officer can force entry after notice have been given and entry refused 18 USCA 3109Miller and Sabbath - arrests without warrants must comply with criteria identical to those set out in the statute. Evidence used from searches that do not comply with criteria, is not admissible in federal court.

Wilson v. Arkansas - some unannounced entries are unreasonable under the 4th amendment

If they think evidence will be destroyedFear for the safety of the officersIf the person can run away

Some unannounced entries are reasonable:

Announcement Requirements

Cady v. Dombrowski - the officers failed to list all items seized on the inventory filed with the court - the failure to list items did not subject them to exclusion

Once the property owner is informed that his property has been seized, he can turn to public sources of law to learn about the remedial procedures available to him.

Perkins never needed the warrant number to file a motion for the return of the property.

West Covina v. Perkins - Supreme Court reversed holding that when the police seize property for a criminal investigation, due process does not require them to provide the owner with notice of state law remedies.

Return of the Warrant and Inventories of Seized Items

Book Notes from before Richards

Police had substantial evidence that Richards was selling drugs out of his hotel roomApplied for a no-knock entry warrantThe magistrate granted the warrant, but deleted the no-knock portionOfficers knocked, Richards opened the door and then closed itOfficers started to knock the door down while identifying themselves and found Richards trying to escape

Found cash and cocaine

Facts

Richards moved to suppress evidence because the officers failed to knock and announce their presence prior to entry

Procedure

Case Notes from Richards

Richards v. WisconsinExecution of Warrants

ACJ Page 26

their presence prior to entryTrial court denied motion because the officers acted with exigency based on Richards actions and acknowledged the easily disposable nature of the drugs

Exigent circumstances are always present in felony drug cases

Exigent circumstances in felony drug cases make the situation dangerous, or evidence could be destroyed

Principal intrusion is the execution of the warrant, not the manner of entry

Wisconsin SC re-affirmed the pre-Wilson rule that police officers are never required to knock and announce their presence when executing a search warrant for felony drug investigation - per se exception to Wilson rule

The Supreme Court granted certiori and overturns the blanket exception

Overgeneralization - searches could be done when no one related to the drug activity is present or when the drugs could not be quickly destroyed

Exception could be applied to other categories and create new exceptions which would render the knock-and-announce element of the Fourth Amendment reasonableness requirement meaningless.

Creating exceptions to knock-and-announce rule creates two problems

Must have reasonable suspicion that knocking and announcing would be dangerous, futile or inhibit effectiveness of search

Court goes against a hard-line rule and makes it a case by case analysis

Once Richards knew the police were at the door it was reasonable for the police to force entry.

The no-knock entry in this case did not violate the 4th amendment

Footnote p151 no-knock entry is less intrusive than a warrantless search, but should not be unduly minimized.

Reasoning

Just need reasonable suspicion not probable causeUse of the exclusionary rule for this situation is inappropriate (Hudson v. Michigan)United States v. Place, just need reasonable suspicion is all that is needed for a dog to sniff a locker

Class Notes from Richards

Unlocked doors, partially opened doors, opening chain locked doors, or using a pass key is the same as breaking down a door unannounced.

Sabbath v. United States- Police knocked, no one answered, door was unlocked, policed entered

Entries Requiring Announcement

Violations of these requirements affect the admissibility of evidence obtained only if the violation was "substantial" or intentional or if the complaining defendant was in some sense predjudiced- Moya v. State

Rule 41d - requires some sort of service (either handing to the person, or leave a copy where the property was taken)

If the warrant is not disclosed until after the search, the individual losses privilege of pointing out that certain items are beyond the scope of the warrant and determining if the officers are operating under valid authority

Rule 41b provided that a technical violation excludes the fruits of the search

United States v. Gantt - Rule 41d was not satisfied when the officers showed the face of the warrant but not the search list because the defendant was arrested before he could view it

Groh v. Ramirez - in some cases it would be improper to leave a copy of the warrant (wiretap)

Service of the Warrant

Wilson or Richards does not address whether the lawfulness of a no-knock entry

United States v. Ramirez - Officers broke window in garage and pointed a gun before breaking in to discourage people from using the dangerous weapons located in the garage

Destruction of Property in Entering

Book Notes from Richards

ACJ Page 27

Wilson or Richards does not address whether the lawfulness of a no-knock entry depends on whether property is damaged when entering

However, unnecessary or excessive destruction could cause the 4th amendment to be violated

The officers were being reasonable in this case

Magistrates denial of permission for no-knock entry does not affect the reasonableness of the officers actions to the unforeseeable circumstances

A magistrate can grant a no-knock entry if the circumstances call for it

Magistrates Authorization for No-Knock Entry

Court held that magistrate did not have power to redate a warrant, evidence was suppressed

Sgro v. United States - warrant was valid for 10 days, officers did not act, took it back to magistrate who changed the date and reissued it

Whether the period of delay between issuance and execution is reasonable depends on the facts and circumstances

Case by case basis - nature of cocaine trafficking supported continued existence of probable cause.

United States v. Williams - officer was granted search warrant for cocaine. Informant notified cocaine was gone, informant notified officer 8 days later that another shipment of cocaine arrived. Search warrant executed 8 days after issuance of warrant but within the 10 day time frame. 8 day delay did not destroy probable cause

Delay in Execution of a Warrant

41c1 - warrant shall be executed in the daytime unless issuing authority and for reasonable cause, authorizes its execution at another time

In this case, meth was being produced until 2 am, so no one would be sleeping or surprised by the knock

Policy reason: People overreact to intrusions in the middle of the night and have a greater expectation of privacy

State v. Richardson - reasonable necessity (evidence will be destroyed by morning) may authorize a night time search of a family occupied residence

Gooding v. United States - only requires a showing that contraband will likely be present at the time that the magistrate authorizes the warrant for

Suppression only required if prejudice that the search might not have occurred, the search would not have been so abusive if rule was followed, or that there was evidence that the rule was intentionally disregarded

State v. Moore - if a warrant is executed in violation of non-constitutional limits on nighttime searches, suppression may not be required

State v. Fitch - warrant did not state reason for nighttime search; evidence was excluded

providing immediate notification will have an adverse resultThe warrant prohibits the seizure of any tangible propertyThe warrant provides for service at a reasonable, later time (no more than 30 days)

Allows delay if

Authorizes sneak and peek warrants - allow officers to enter, search and leave without providing notice

USA PATRIOT Act Delay of Service of Warrant

Nighttime Execution

Officers executing a warrant to search for cocaine, rapped hard enough on door to hear from the back of house and no indication was made that anyone was present

Waited 15-20 seconds and broke open doorBanks was in shower and said that he did not hear anything until the door was busted

Facts

Procedure

Case Notes from Banks

United States v. Banks

ACJ Page 28

Moved to suppress evidence because officers waited an unreasonably short time before forcefully entering

District Court denied the motionCOA reversed and ordered suppressionThe Supreme Court granted certiori and allowed evidence

Procedure

Similar to Ramirez - here the Government claims that a risk of losing evidence arose shortly after knocking and announcing

Was the 15-20 seconds reasonable? Yes, cocaine could be destroyed after this time passage. If it was something larger that could not be destroyed, this timing is not reasonable

It is immaterial whether or not the officers knew that Banks was in the showerRamirez also holds that exigency trumps destruction of property

Reasoning

Police obtained warrant to search for drugs and firearms and found both in plaintiffs home

They had announced their presence, but only waited 3-5 seconds before opening the unlocked door

Facts

Hudson moved to suppressMichigan court said that there is no suppression for cases when the warrant was followed but knock and announce was not followed

The Supreme Court granted certiori

Procedure

The exclusionary rule is inapplicable to knock and announce violationsHolding

Interests protected by knock and announce requirements do not include shielding of potential evidence from the government

The absence of a rule for wait time protects officers from violence and prevents destruction of evidence - we do not need to deter officers from assessing an exigency

There was no violation of any Fourth Amendment protected rights- Its not like they busted in and he was naked

Reasoning

Separating the manner of entry from the related search slices the violation too finelyThe violation was the but-for cause of finding the evidence - the question is not if the police would have found the evidence either way, but if they misbehaved

The majority has changed the definition of attenuation (majority says it occurs when the interest protected by the constitution would not be served by suppression of evidence)

The majority speaks of substantial social costs, and weighing them against whats gained from the search challenges the very premise of the exclusionary rule. Showing that a valid warrant could have been attained is irrelevant

Dissent - Breyer

Case Notes from Hudson

Traditional Definition: Attentuation is the time between the constitutional violation (tree) and the fruit

Class Notes from Hudson

Hudson v. Michigan

Officers knocked and yelled police. search warrant two times before using battering ram after seeing lights on and people running inside the house.

Found cocaine, weapons and large amount of cashWife testified that officers waited 10-15 seconds from hearing the noise until they

FactsState v. Williams

Louisiana Cases

ACJ Page 29

Wife testified that officers waited 10-15 seconds from hearing the noise until they forcefully entered

It was at night. 4:30 in the morning.Husband says that it was about 3 secondsNeither defendants heard the knocking and announcing

Trial court suppressed evidence because police didnt wait long enough considering it was 4am in the morning - people need more time

COA affirmedLA SC granted certiori - overturned

Procedure

The time that 3109 requires officers to wait depends on the circumstances of each caseTrial court ruled that a person needs more time to answer the door in the early morning to take time to get out of bed - however, 4 out of 6 people in the house were already awake at the time of search

The defendants watched the battering of the door take place and this is constructively a denial of entry

Courts have generally employed a five second rule when testing to see whether a constructive denial of entry has occurred.

Reject a bright line rule but the officers here waited long enough

Exclusionary rule does not apply even if the time limits was exceeded.

Reasoning

United States v. Karo - putting a beeper in a can to track someone's location is a search -the circumstances that led officers to place the beeper, the length of time of beeper surveillance, and the object where the beeper is to be placed would have been sufficient to permit issuance of warrant

Particularity about the Place to be Searched

Marron v. United States - a description of things to be seized in the warrant limits officers authority to search within the premises, but they may seize other items if they have probable cause and they are in the process of searching for listed items.

Stanley v. Georgia - a warrant was issued for bookmaking mater