Select Page

Criminal Procedure
John Marshall Law School, Chicago
O'Neill, Timothy P.




i. Rooker v. Commonwealth, 5408 S.W.2d 570 (Ky.App.1974) p. 316

ii. United States v. Master, 614 F3d 236 (6th Cir.2010) p. 316

iii. Virginia v. Moore, 553 U.S. 164 (2008) p. 351

iv. United States v. Davis, 346 F. Supp. 435 (S.D.Ill.1972) p. 317

2. Particular description of the place to be searched

i. Particularity clause: persons, place and things to be seized.

ii. Steele v. United States, 267 U.S. 498 (1925) p. 317

· The 4th Amendment requirement as to particularity in the description of the place to be search, requires only that the description be enough that “the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.”

iii. Steve v. Blackburn, 511 P.2d 381 (Or.1973)

iv. Maryland v. Garrison, 480 U.S. 79 (1987) p. 317

· FACTS: Garrison was discovered with contraband when the police found him while executing a warrant for one of his neighbors; the police believed his neighbor controlled the entire 3rd floor

· – the police made a mistake – but they weren’t behaving unreasonable

· → there was no 4th Amendment violation

· RULE: The question then is always whether the police were acting reasonably.

· – there is a distinction between obtaining the warrant and executing the warrant

· ▪ while it might be reasonable to obtain a warrant for the 3rd floor apartment of a Mr. So and So

· • it is not reasonable to then search the entire 3rd floor when it’s obvious that there are various apartments on that floor

· → police have to adjust their behavior based on circumstances to make their actions reasonable within the 4th Amendment

· – this is not a “good faith exception” because there is NO 4th Amendment violation – can’t get as far as the good faith if the 4th Amendment hasn’t been violated

3. Particular description of the things to be seized

i. Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931) p. 318

ii. United States v. Bradley, 644 F.3d 1213 (11th Cir.2011) p. 319

1. United States v. Sawyer, 799 F.2d 1494 (11th Cir.1986) p. 319


How long are warrants good for (stale information)? What is the shelf-life? [4th amendment does not address]

· Time Frame

· IL – 4 days (96 hours) Illinois Code of Crim. Procedure 5/ section 108

· Check your state statute – may vary

When can a warrant be executed? 108-13 (Illinois criminal procedure) = AT ANY TIME

· Night Time Searches

· IL doesn’t have any distinction between daytime or nighttime searches

1. Time of execution

i. United States v. Nepstead, 424 F.2d 269 (9th Cir.1970) p. 321

ii. State v. Neely, 862 P.2d 1109 (Mont. 1993) p. 321

iii. State v. Miller, 429 N.W.2d 26 (S.D.1988) p. 321

iv. United States v. Jones p. 279

v. United States v. Gerber, 994 F.2d 1556 (11th Cir. 1993) p. 321

vi. Gooding v. United States, 416 U.S. 430 (1974) p. 321

vii. United States v. Gervato, 474 F.2d 40 (3d Cir. 1973) p. 322

1. Berger v. New York p. 507

viii. United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990) p. 322

2. Gaining entry (Hudson v. Michigan)

i. Wilson v. Arkansas, 514 U.S. 927 (1995) p. 322

· SCOTUS says the default rule: knock and announce rule emerges.

a. There are of course exceptions

i. Danger to police

ii. Danger to others

iii. Danger to evidence

· RULE: a police officer must knock and announce before executing a warrant in order for the execution of the warrant to be constitutional


ii. Richards v. Wisconsin, 520 U.S. 385 (1997) p. 322

· FACTS: WI statute – drug exception to knock and announce rule because of the easy disposability of drugs

· WI had a blanket state Supreme Court rule that said: when officer is executing a warrant looking for drugs in a house, it’s the feeling that drugs are easily dumped, or thrown away.

a. Because of this officers can go in unannounced

b. SCOUTUS does not like this and says they are concerned about getting on a slippery slope

· Court says the 4th Amendment does not allow this statute to be constitutional

· slippery slope argument – there could be unlimited exceptions

· can’t make broad categories for not knocking and announcing

· State still wins because of the circumstances in this specific case. SCOTUS found in this situation the police should have been able to go in without announcing.

iii. United States v. Banks, 540 U.S. 31 (2003) p. 323

· FACTS: police didn’t wait long enough before entering; guy was in the shower

· Court (Scalia) says that there is no way for the police to know the guy was in the shower

· The wait time can only depend on the police officers actual knowledge and what would be a reasonable amount of time for someone to get to the door (does the failure to open the door suggest a refusal to let them in?)

3. Search of persons on the premises

i. Ybarra v. Illinois, 444 U.S. 85 (1979) p. 324

· FACTS: police believed that the bartender had drugs at the bar he worked at; the police, when executing the search warrant on the bar, conduct a pat down of all the customers in the bar at the time; the police find drugs on the Defendant through the course of the pat down

· – Defendant wins – the warrant never mentioned any of the patrons of the bar and the police had no probable cause to believe the Defendant had drugs on him

· ▪ “a person’s mere propinquity to other independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”

· – this case carves out a parameter — searches – touching

· – this is a case about if the police have a right to search everyone

· – all things being equal, there must be some individual suspicion to search someone on the premises

· – if the police can point to a reasonable suspicion that a person might be a threat, be holding contraband, etc, they can search them

· inadvertently, if the cop knew they would find it but just didn’t put it in the warrant?

4. Detention of persons on the premises

i. Michigan v. Summers, 452 U.S. 692 (1981) p. 325

· FACTS: Defendant is walking out of his house when the police come to execute their search warrant; the police detain him until they are done searching; after they find drugs on the premises (in the basement), they search him and also find drugs on him

· Motion to suppress the evidence found on him (the drugs found in the basement were found pursuant to the execution of a valid warrant)

· The Court says the police have a right to detain people (legitimate law enforcement interest of prev

ds of the robbery

· the Court (Stevens) modifies plain view exception to eliminate the element of the subjective view of what is going on in the police’s mind – no proof of inadvertent finding of the extra evidence is necessary – surprise is irrelevant – broadens the plain view exception

· “if he or she has a valid warrant to search for one item and merely suspicion concerning the second, whether or not it amounts to probable cause, we fail to see why that suspicion should immunize the second item from seizure if it is found during a lawful search of the first”

· this applies to both searches and seizures

· Plain View is a seizure exception which gives the police the right to take things that are not listed in the warrant.

a. If police are in a place they have a right to be, and if they are looking at something they have a right to see, they then have the right to seize that item.

b. And they believe whatever they are looking at is connected to a crime.

ii. Does it make a difference if the item found was not found inadvertently, if the cop knew they would find it but just didn’t put it in the warrant?

· Defense argument to not seize what was not listed in affidavit or warrant:

a. Bad Faith exception.

b. 4th amendment issue to be raised would be particularity clause, because he is not particularly describing the person, place to be seized.

c. Given a choice between subjective and objective test?

i. SCOTUS will always choose the objective test.

ii. How do defense attorneys prove this?

1. Admission?

2. Evidence?

3. Witness?

iii. Whenever we read that objective test eliminates the reason for a hearing.

iv. Does it have to be a surprise when plain view is invoked?

v. Coolidge v. New Hampshire, 403 U.S. 443 (1971) p. 327

· FACTS: car was searched in the driveway of a home and the warrant to search the car was issued by State Attorney General who was later chief prosecutor at trial

· this case has several issues

· detached magistrate – the Constitution permits only a neutral and detached magistrate to issue search warrants

· plain view exception – anything the police find inadvertently during another search is sizable; has to be inadvertent; requires a subjective view of what is going on in the police’s mind

· Does the government have to prove that it was a surprise/inadvertent?

a. Coolidge court says they are not going to allow the violation of the particularity clause and take what’s there.

b. The subjective state of mind of the officer is irrelevant?

i. What is relevant to invoke plain view?

1. If officer is in a place he objectively has a right to be in the place of the warrant.