Professor Rich, Criminal Procedure, Spring 2012
A. Search Warrants
1. The Significance of Using a Search Warrant
a. Warrant History
Warrant Clause of 4th Amendment: “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.”
· Driving force behind adoption of 4th Amendment was experience of life in Colonial times. Purpose is to protect people against arbitrary action by their own government.
b. The Warrant Preference
· USSC would prefer that law enforcement officers not engage in warrantless searches only after they have obtained a search warrant, thus leaving P.C. determination to a neutral M.J. (IL v. Gates).
c. The Warrant Requirement
· Searches/seizures without prior approval are per se unreasonable under 4th Amendment, and subject only to a few specifically established exceptions (Katz).
· Majority of searches, however, do occur without a warrant:
o Searches based upon showing of generalized exigency;
o Searches incident to arrest;
o Consent searches;
o Car searches;
o Administrative searches;
o Drug testing;
o Inventory searches; and
o Investigative Terry stops and frisks.
2. Probable Cause
a. Constitutional Requirement: difference between P.C. for arrests and P.C. for searches.
· Arrest P.C.: M.J. issues upon showing that P.C. exists to believe that the subject of the warrant has committed an offense, and thus the warrant primarily serves to protect an individual from an unreasonable seizure.
· Search P.C.: issued upon a showing of P.C. to believe that the legitimate object of a search is located in a particular place, and therefore safeguards an individual’s interest in the privacy of his home and possessions against the unjustified intrusion of the police.
b. Probable Cause Test
· Requires more than “mere suspicion,” but less than “beyond a reasonable doubt”; showing of a “fair probability” on each of the points the prosecution must establish in order for a warrant to issue. Dealing with probabilities; do not have to be sure.
· “The task of the issuing M.J. is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place” (IL v. Gates).
· Look to reasonable, common-sense determinations.
· In MD v. Pringle (p. 167), “We think it was reasonable for the officer to infer a common enterprise among the three men. The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him.”
c. Informer’s Privilege
d. Staleness
· For P.C. to support warrant, “the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time” (Sgro).
· Court will consider whether the evidence is likely to disappear quickly in its P.C. determination.
· Other facts:
o Nature of criminal evidence sought (e.g., large or small, moveable or fixed?).
o Location of evidence on premises (e.g., plain view or buried under concrete?).
o State in which the evidence was observed (e.g., solid or liquid, easily disposable or permanent?).
o Nature of place to be searched (e.g., readily moveable vehicle or residential home?).
e. Anticipatory Warrants
· Anticipatory warrant: search warrant based only upon a showing of prospective P.C. (i.e., a showing that evidence of a crime will be or is likely to be present on the premises sought to be searched at some specified time in the future subsequent to the occurrence of some specified triggering condition. Upheld by Grubbs (2006).
· Requires two prerequisites of probability:
o (1) Must be P.C. to believe the triggering condition will occur.
o (2) Must be fair probability that contraband or evidence of a crime will be found in a particular place.
· Supporting affidavit must provide M.J. with sufficient information to evaluate both aspects of the P.C. determination.
· 4th Amendment does not require that the triggering condition for an anticipatory search warrant be set forth in the warrant itself.
· Many will involve C.I.’s information that narcotics will be delivered to a certain place at a certain time. Law enforcement may know the exact details of the delivery because they are involved in the delivery. In these cases of “controlled deliveries,” the narcotics can be said to be on a “sure course” to the designated search premises and anticipatory warrants are often upheld on this basis. Some courts have held that such warrants become invalid and cannot be executed when and if the contingent event (e.g., the delivery of drugs) that established the prospective P.C. does not occur (e.g., no delivery appears to have been made).
3. Obtaining Warrants
a. Affidavits
· All information that prosecution intends to use to support the issuance of a warrant must be fully disclosed to the M.J. at the time he is considering the application.
o Presented in the form of written affidavits, sworn to by affiant under oath.
o An otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but did not disclose to the M.J.
· Many jurisdictions require the M.J. to consider only the information contained within the affidavit in determining whether P.C. exists.
b. Challenging Affidavits
· (1) On the face: counsel may argue that facts set out in warrant are insufficient to establish P.C. to search.
· (2) Counsel may argue at a suppression hearing that some/all of the statements in the affidavit are false. Mere falsity of information is not enough in itself to render a warrant defective and unconstitutional.
· Franks v. DE (1978) (p. 165): search warrant affidavits are to be treated as presumptively valid, and to challenge an affidavit successfully, “there must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof…Allegations of negligence or innocent mistake are insufficient.”
· At Franks hearing, ∆ must show that particular statements in an affidavit were intentionally or recklessly made (and not merely false or simply negligently made), or that the affiant intentionally or recklessly omitted material information, the offending statements are redacted from the affidavit (or the omissions are included) and then the redacted/amended affidavit is re-evaluated to determine whether it still supports P.C.
· This means that even when an affiant has been shown to have intentionally lied in a search warrant affidavit, that affidavit may nonetheless still establish P.C.
c. Review of Probable Cause Determinations
· P.C. determinations in cases where an issuing M.J. has actually issued a warrant are not reviewed de novo by appellate courts to determine whether the underlying affidavit established P.C.
· Standard for review is more deferential to M.J.
· If the M.J. had a “substantial basis for concluding that a search would uncover evidence of wrongdoing, the 4th Amendment requires no more” (Gates).
a. What Can Be Seized?
· Items that have been specified and particularly described in a search warrant as evidence of a crime under the authority of that warrant.
· Non-described items that the officers see in “plain view” while they are lawfully present at a place lawfully executing a search warrant, provided that it is immediately apparent to the officers that these items are connected with criminal activity and that the officers have P.C. to believe that such items are evidence of crime (Horton v. CA, 1990) (ppg. 168, 298).
· Does not matter that items seized by executing officers because they are in plain view are totally unconnected with the crime that is the subj
pen fields.
o Entry of open fields also does not constitute a search within the post-Katz meaning.
§ “Intimate activities” protected by the 4th Amendment do not take place in open fields. Society has no interest in protecting the activities that do occur in open fields, such as the growing of crops.
§ As a practical matter, these lands are usually accessible to the public and police in ways that a home or office would not be. A “No Trespassing” sign generally would not deter anyone from entering.
§ Court finds it important that the public and police could survey the lands from the air, suggesting that the mode of intrusion may not matter.
§ Hester supplies the basis for this decision. Open fields were distinguished from curtilage (i.e., areas surrounding the home to which extends the intimate activity associated with the sanctity of the home). Court has extended 4th Amendment protection to the curtilage of a home.
o Brennan’s dissent argues that locked gates and “No Trespassing” signs show a subjective expectation of privacy. The steps taken to secure privacy reflect that subjective expectation of privacy.
b. Definition of Curtilage
· Dunn’s (1987) factors (p. 119):
o (1) Proximity of area claimed to be curtilage to the home;
o (2) Whether the area is included within an enclosure surrounding the home;
o (3) Nature of the uses to which the area is put; and
o (4) Steps taken by the resident to protect the area from observation by people passing by.
· Factors are flexible to bear upon relevant consideration: whether the area in question is “so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of 4th Amendment protection.”
· There is no R.E.O.P. for making methamphetamines.
· Example: how factors were applied in Dunn:
Factor
Facts of Dunn
Court says…
(1) Proximity
Barns are 50 feet away from house.
Far
(2) Enclosure
Entire property is surrounded by fence, but there is another fence surrounding the home, and the barns are not within that fence.
Would be more like curtilage if the barn were within the fence most closely surrounding the house.
(3) Uses
Manufacturing drugs
Not an activity associated with the home.
(4) Steps to protect privacy
Barbed wire
Does not prevent people from seeing activities.
c. How Much Privacy Is Due Curtilage?
· Does not follow from the fact that an area is identified as a curtilage that police surveillance of it inevitably constitutes a search.
i. CA v. Ciraolo (1986) (p. 120)
· Facts: Police were unable to observe the contents of Δ’s backyard because of a 6-foot outer fence and a 10-foot inner fence completely enclosing the yard. Officers secured private plane and flew over yard at 1,000 feet (within navigable airspace). Identified marijuana. Based on this surveillance, obtained search warrant.
· Issues:
o (a) Whether information secured from aerial surveillance was properly used to secure warrant; then
o (b) Whether the surveillance itself was a search.
· Held: Not a search.
o Subjective prong of Katz:
§ 10-foot fence makes it clear that Δ had a subjective intent to keep the fields private.
