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Criminal Procedure
South Texas College of Law Houston
Corn, Geoffrey S.

Criminal Procedure Corn Spring 2014
Fourth Amendment
The scope of protection of the Bill of Rights has been extended to the states by the Due Process Clause of the 14th Amendment.  The process was piecemeal but today almost all are included.
              a.  Right to a Grand Jury
              b.  Right to an unanimous verdict (except in a Capital Trial)
              c.  Right to a 12 person jury
The 4th Amendment is triggered by government action,  to include private actors acting at the direction of the government,  directed at someone who qualifies as “people” (which excludes aliens who are in the US involuntarily), that qualifies as a search or seizure.
4th Amendment triggered conduct must be reasonable.  Reasonable does not always require a warrant.  If a warrant is relied upon, it must include probable cause and it must be specific (premises to be searched and persons/things to be seized), not general.  An unreasonable search or seizure triggers the Exclusionary Rule, which has been incorporated by all of the states since 1961.
A search is a government intrusion upon a person's reasonable expectation of privacy (REP).  Harlan's two prong test for REP
  a.  Is there a subjective expectation of privacy – did the person shield thing from the public?
  b.  Is it an expectation society considers reasonable?
The rationale behind the above is to expand the scope of the 4th Amendment from property to people.
If it doesn't qualify as a search, it doesn't have to comply with the 4th Amendment
Warrant – includes presumption of reasonability
To Challenge Warrant and Exclude Evidence, must prove
1.       No probable Cause, or
2.       The magistrate was not neutral and detached, or
3.       Lack of specificity – too general – facially defective
**For exclusion due to being facially defective, defect must be so obvious any reasonable officer would recognize it
Knock and Announce – No Per Se Exceptions
1.       Exception may be authorized based on reasonable suspicion that knocking and announcing will create exigency
2.       Violation doesn't trigger exclusionary rule
No warrant – search or seizure is presumptively unreasonable
Govt can rebut assumption by proving applicability of an established exception
Arrest Warrants
1.       Must always have probable cause
2.       Warrant also required if cop must do search of suspect's REP in order to find him
3.       Arrest Warrant – authorizes arrest of suspect but carries with it implicit authority to search suspect's home in order to find him;  it doesn't authorize search of 3rd party home to find suspect, but suspect won't have standing to complain if he's arrested in 3P home  (3rd Party could complain but only if you found something to incriminate him there
Exceptions to Warrant Requirement
1.       Exigency – exigency establishes probable cause and vice versa
                a.  Imminent Destruction of Evidence
                b.  Imminent flight of suspect
                c.   Imminent danger to officer or those in proximity (danger doesn't have to be caused by
            If police create exigency trough their own conduct, key becomes whether they were acting
            Lawful conduct that creates an exigency doesn't limit exception
            Unlawful conduct that creates an exigency will bar application of the exception
            Look for trigger – Did cop act lawfully
            If cop enters home under exigent circumstances – he can search any place warrant would allow
2.       SITLA – Search Incident to Lawful Arrest
Trigger:  lawful (officer had probable cause to believe that suspect committed a crime) arrest (suspect must be taken into custody)
If officer was mistaken, SITLA still applies
SITLA is automatic once suspect is under arrest – no further justification is needed
Key to STILA Scope:  can search person of arrestee and anything within his wingspan
Automobile SITLA – if police arrest vehicle occupant or recent occupant, and arrestee has genuine access to auto, SCOPE of SITLA extends to interior of car and all containers in interior;  once suspect is secured away from vehicle, police may only search vehicle if they have reason to believe evidence related to crime of arrest will be found in vehicle
3.       Automobile Exception
When police have PC to search auto or other motorized conveyance, or any container in the auto, they may do so without obtaining a warrant
Acevedo – even if they know exactly where to look in the car and it's a container, they don't need a warrant
Scope is critical – police can only look where they would have been authorized to look had they obtained a warrant
Definition of Auto – Motorized, Government Regulated, Conveyance
4.       Plain View Exception – to warrant requirement for seizure of property or suspect
Police may seize property or suspect without warrant if discovered in plain view
Requirements for Plain View
  a.  Lawful vantage point to observe the thing*
       *could be pursuant to a warrant for something else, exigent circumstances, or consent
  b.  Incriminating nature is immediately apparent – ie. What you can see, hear touch or smell
        creates PC
  c.  Must have lawful access to point of seizure
Plain touch – variation on Terry Search – if what you feel creates PC, can seize; if you have to manipulate item to create PC, can't seize
5.       Consent
Test – Is it voluntary? – if voluntary, it's valid

y distinguishable from general crime control
Three Factors
  a.  Compelling government interest
  b.  Low level of intrusion on individual liberty
  c.  Effectiveness of the program – doesn't have to be the best, just reasonably effective
Common Special Needs Programs – Counterterrorism Bag Checks, Purses and backpacks in public schools, drug testing of airline pilots and railroad engineers, drug testing school athletes (because they could get hurt if high), checkpoints for recently escaped violent convicts
1.       No vicarious invocation of someone else's constitutional rights is allowed to exclude evidence
2.       To have standing to invoke the exclusionary rule – Defendant must prove how government conduct intruded upon her constitutional rights
3.       No standing to complain about search when a passenger in someone else's car – do have standing to complain about seizure of car, since seizure of car is seizure of occupants
4.       Individual's share standing in another's home when they are social overnight guests
5.       The Defendant bears the burden of proving standing.
Exclusionary Rule
1.  Purpose – to deter police misconduct
2.  Matt v. Ohio – extended exclusionary rule to states
3.  If exclusion does not contribute to police deterrence, rule won't apply
4.  Good Faith Exception – where police violate Fourth Amendment but act in objective good faith
      reliance on
       a.  A facially valid warrant;
       b.  A mistaken indication of an arrest warrant in a judicial database; or
       c.  Mistaken indication of an arrest warrant in the police database
     In these cases the evidence they seize will not be excluded
5.  Exceptions to Good Faith Exception
       a.  Affidavit which supported the warrant was false or misleading (lie by one officer is imparted to
       b.  Magistrate is not neutral or detached
       c.  Information supporting the warrant is so vague or stale that no reasonable office would have
            relied on it
       d.  The warrant is so facially defective that no reasonable officer would rely on it
             BUT if magistrate reassures officer it's valid, then reliance is in good faith