Criminal Procedure Outline I. The Fourth Amendment a.

Definition: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized Is Government conduct a search or seizure? a. Katz: i. Subjective expectation of privacy ii. Expectation of privacy is one society considers reasonable b. Examples of per se searches/non-searches i. Open fields: No, however it protects curtilage ii. Information where a member of the public also has access to 1. Electronic surveillance with Def 2. Financial information where banks comply with statutory requirement to disclose 3. Pen register 4. Pager phone numbers, but not numbers stored in phone 5. Trash left in curb 6. Aerial surveillance 7. Manipulating placement of bags in public common area iii. Illegal activity investigations 1. Canine sniff of closed luggage for drugs 2. Chemical tests which sole purpose is to detect drugs 3. Thermal detection to detect heat to find marijuana operation c. Augmenting sensory faculties i. Electronic beepers if visual surveillance would suffice, but using beeper in ones home, which is not open to visual surveillance is disallowed d. Must be a government actor i. Private citizen searches are not searches for purposes of 4th 1. government cannot view films if package opened by private citizen ii. Not searches for purposes of the 4th 1. State reopens package already opened by PC 2. State goes no further than previous private search if homeowner still has reasonable expectation of privacy 3. State reopens package that another state actor previously searched and resealed, unless altered iii. Foreign officials in foreign country is not state action 1. If it shocks conscience, or U.S substantially participated, then it is State action

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The Warrant Clause a. Per se unreasonable if search/seizure conducted without warrant i. Exceptions galore b. Constitutional Requirements for Search Warrants i. Probable cause ii. Described with Particularity iii. Magistrate approval c. Execution of Warrants i. Knock and Announce Rule: Officer must give, before forced entry 1. notice of authority and 2. purpose ii. Application of KA Rule 1. Forced entry if officer refused admission after notice a. 12 seconds is enough 2. Hot Pursuit exception make unannounced entries reasonable 3. No application of rule if door is open 4. Exigent circumstance excuses no knock requirement if reasonable suspicion that notice would be dangerous, futile, or lead to destruction of evidence iii. Must give copy of warrant, but not necessary they give prior to search iv. Media ride-along is disallowed to observe execution of warrants Probable Cause and Search Warrants a. Requirements i. Totality of circumstances test: fair probability that contraband or evidence of a crime will be found in a particular place 1. Two-pronged test is a factor a. Veracity b. Underlying basis of knowledge b. Application i. Informant tip ii. Citizen informants presumed reliable iii. Accomplice statement reliable without corroboration Probable Cause and Arrest Warrants a. Requirement i. Fair probability [probable cause] to believe that the person to be arrest has committed a crime b. Circumstances that justify arrest warrants based on probable cause i. Detailed description of suspect + close to time of crime ii. Mistaken arrests permissible if finding of fair probability [probable cause] exists After Probable Cause Has Been Established

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a. All officers can use info to make arrest or conduct search b. Limitations: PC can be lost if information upon which it is based upon becomes stale VII. Other Probable Cause Requirements a. Seizure of evidence: Permitted if probable cause to believe it will lead to conviction or arrest b. Search of places: Requires reasonable cause to believe objects are located there based on i. Type of crime ii. Nature of item sought iii. Opportunity for concealment c. Description of place searched must be with reasonable particularity i. Nature of the place ii. Information reasonably available 1. Wrong address is permissible only if reasonable stop to obtain correct address were taken 2. Building searches include curtilage 3. Cannot search a person through forced endoscopy [unreasonable] d. Even if warrant has been established based on probable cause, it may still be unreasonable e. Anticipatory search warrants are permissible as long as they are conditioned on events that would create probable cause Warrantless Searches + Seizures + Arrests a. Arrests i. Requires only probable cause; warrant is not required and is not therefore presumptively unreasonable [diff than searches] 1. Search incident-to-arrest permissible ii. Statute: PC + Reasonable cause to believe person has committed a felony/misdemeanor iii. Public places: PC to believe person committed a felony 1. No deadly force to effect arrest unless a. PC to believe D poses a threat of death to officer/public iv. Probable cause must be found post-warrantless arrest 1. 48 hours is reasonable; anything more may not be a. If no hearing within 48 hrs, may be unreasonable v. Suspects home: Requires arrest warrant unless exigent circumstances 1. expectation of privacy is higher in someones home than in someones car vi. Third-party home: Search warrant is required to search for suspect in third persons home vii. Different types of guests:

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1. Overnight guest: arrest warrant required 2. Temporary business guests: No arrest warrant required b. Stop and Frisk [warrantless search exception] i. Stop or Seizure: A reasonable person would believe he was not free to leave [Medenhall test] 1. Totality of circumstance ii. Requirement to justify a stop 1. Reasonable suspicion [RS] determined by the source of information and suspicious behavior a. RS requires objective particularized basis for suspecting a person of crime based on TOC b. Factors i. Race ii. Profiles of criminal activities iii. Flight in a high crime area iii. Terry: Officer has reasonable cause [RC] to suspect person is engaged in crime and may be armed 1. Allows officers right to order driver and passengers out of vehicle during a legal stop 2. Frisk: Can only be used for protective purposes and not to find evidence of crime a. To justify frisk, RC to believe person poses a threat of harm to officer/others i. Scope of frisk extended if suspect is dangerous, and may include areas where the person might gain immediate control of a weapon b. Inspection of weapon permissible if weapon is found c. Protective sweeps incident to arrest may be allowed if RS someone other than arrestee is on premises who poses a risk of harm and limited to inspection of spaces where a person may be found iv. Encounter v. Stop 1. An officer must stop questioning if it is an encounter; if he continues, it may rise to a stop requiring reasonable suspicion a. Objective communication of officers authority to restrain citizens freedom of movement b. Non-physical show of authority to make a stop is not a stop until suspect yields to it 2. Factory sweep: refusal to answer questions allows one to leave v. Stop v. Arrest 1. If Terry stop sufficiently long, it may rise to an arrest

c. Search Incident to Arrest [extension of warrantless searches] i. Arrest Power Rule: Search may extend only to the 1. Person of the arrestee and 2. The area within his immediate control ii. The time of arrest, not search, determines the grab area iii. Limitations 1. Police cannot create grab area by brining suspect to item they wish to search 2. If arrestee himself moves, his grab area extends with him 3. Exigencies can justify a search beyond the grab area 4. Protective sweeps can extend beyond grab area iv. Search may come before or after arrest so long as police has probable cause to arrest before the search 1. Custodial arrests do not extend right to search 2. Police may search person and things in arrestees possession at police station v. Passenger compartment searches admissible so long as there was a custodial arrest of an occupant of the automobile 1. Police may have automatic right to open containers in the arrestees grab area to protect themselves vi. Custodial arrests permits automatic searches incident to arrest 1. Allows searches of the person vii. Rule inapplicable when officer only issues a citation, and does not arrest the suspect d. Pre-textual stops are permissible so long as there was probable cause to arrest i. Equal protection still protects stops based on race e. Plain View Doctrine i. Definition: If the police has a right to be there, and the object is immediately apparent, then seizure of evidence of any crime may be permissible 1. Probable cause is necessary to seize an item in plain view ii. Plain Touch Doctrine 1. Warrantless seizures permissible if items identity is apparent and police has probable cause to believe it is drugs f. Warrantless Search of Cars i. Always permissible so long as there is probable cause to believe it contains evidence of criminal activity 1. Requires probable cause to search an area of the automobile but not probable cause to arrest an occupant 2. Search incident to arrest requires probable cause to arrest a person, but not probable cause of the search ii. Scope of warrantless search of cars 1. motor homes when reasonable to believe they are not used for residency

2. warrantless seizures permissible if probable cause to believe it is subject to forfeiture iii. Containers and warrantless search of cars 1. Mobile containers [luggage, pocketbook, briefcase] a. Seizure permitted if based upon probable cause b. Search impermissible unless exigent circumstances make seizure pending a warrant insufficient to underlying interest 2. Closed containers: Permitted if probable cause to search the container or the car 3. Concealment: Police also allowed to search passengers belongings that may conceal an object of the search g. Exigent Circumstance Exception to Warrant Requirement i. Requirements for Rule to apply 1. Probable cause for search/arrest and 2. Probable cause suspect will a. Escape b. Destroy or remove evidence c. Create danger to officers or public 3. Before police can obtain a warrant ii. Circumstances where Exigency arises 1. Hot Pursuit 2. Public Safety a. Delay would result in significant risk of harm to police or public 3. Destruction of evidence a. Excuses warrant and knock and announce rule b. Warrantless entry of home impermissible if for minor offense iii. Police cannot create exigent circumstance iv. Police cannot use exception if they could have obtained a warrant before the exigency arises v. Police allowed to seize evidence pending a warrant IX. Administrative Searches a.