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Criminal Procedure
South Texas College of Law Houston
Wheeler, Michael E.

Criminal Procedure
Michael Wheeler
Spring 2014
4th Amendment Search & Seizure
        I.            Protection against unreasonable search of seizure
      II.            Exclusionary Rule – Opting out of relevant evidence (evidence from unreasonable search or seizure)
a.       Purpose for rule:
                                                               i.      Deterrence – to compel respect for constitutional guarantees
                                                             ii.      Also judicial integrity
Analysis for 4th Amendment Search & Seizure
1.       Determine whether the 4th Amendment applies
2.       If it does -> was there a warrant? Rules/limits
3.       If no warrant -> is there an exception?  Rules/limits
4.       If unconstitutional S/S -> can it be admitted anyway?  Exclusionary Rule
  I.            Does the 4th Amendment apply? 3 key questions (all require affirmative answer)
                   1.            Do we have a search or a seizure?
                                       i.      Was it unreasonable?
                   2.            Did person have standing to challenge it?
                   3.            Who is doing the search or seizure?
Do we have a search or a seizure?
Search or seizure must be unreasonable – Must satisfy 1 of 2 tests
1.       Trespass-based test – government agent must physically intrude on a constitutionally protected area to obtain information
                                       i.            This test was mostly dormant until 2012
a.       US v. Jones – GPS placed under car to trace movement over 28 day period (no warrant); SC said this was a physical trespass
b.      Karo & Knotts – Where a beeper is legally placed in a container in a warehouse, the container is observed being loaded into a truck, and the location of the truck is monitored by use of the beeper there is no violation of the 4th Am vs. the warrantless monitoring of a beeper in a private residence, in a location not open to visual surveillance, does violate the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence
2.       Privacy-based test – agent's S/S of a constitutionally protected area violates a person's reasonable expectation of privacy; Katz test – 2 components
                                       i.            Defendant’s actual or subjective expectation of privacy
                                     ii.            Privacy expectation must be one that society recognizes as reasonable
3.       Kilo case (2001) – S/S is presumptively unreasonable when it uses a device that is not in public use to explore details of the home that the officers could not have known without physical intrusion
                                       i.            Cops used thermal imaging device to locate hot spots inside home used to cultivate marijuana; SC said you need a warrant
Areas and items protected by the 4th amendment
1.       Persons
2.       Houses
                                       i.      Also includes hotel rooms
                                     ii.      Also includes curtilage – Area adjacent to home to which the activity of home life extends (front porch, enclosed backyard) – look out for garage; needs to be attached to home
3.       Papers
4.       Affects (purses, backpacks, cars, etc.)
Areas and items that have NO 4th Amendment protection (because they are knowingly exposed to 3rd parties)
1.       Account records held by bank
2.       Public airspace (anything that can be seen below while flying)
                                       i.      CA v. Sorallo – marijuana growing seen from plane
3.       Garbage left for collection – viewed as abandoned property
4.       Odors (that emanate from car or luggage – odors from home are treated differently)
5.       Open fields doctrine – anything that can be seen in or across the open field
Does the individual have standing to challenge the government's conduct?
1.       That person's personal privacy rights must have been invaded; not the rights of a third party
                                       i.            There must be a violation of legitimate expectation of privacy
a.          Does Def. have an expectation of privacy, and
b.         Is it one that society accepts as reasonable?
2.       Contexts most likely to encounter?
                                       i.            Person subjected to search owns premises: STANDING
                                     ii.            Person is not an owner, but lives in the premises (renting): STANDING
                                    iii.            Overnight guest: STANDING, at least as to areas guests can be expected to access (common areas)
                                   iv.            Using premises for commercial purposes: NO STANDING
a.          Ex: Using house to cut and bag cocaine for a few hours
                                     v.            Standing claim is based on ownership of the property that was seized: only if property owners have a reasonable expectation of privacy in the area from which the property was seized
a.          Ex: guy that put his drugs in his girlfriend's purse – NO STANDING
                                   vi.            Passengers in auto searches: NO STANDING
a.          Ex: rifle in vehicle belonging to passenger seized; passenger has NO STANDING to challenge S/S
C.      Who is doing the search or seizure?
1.       Government must be the one doing the search or seizure
                                       i.            Police conduct must be sufficiently deliberate such that exclusion would meaningfully deter it, and sufficiently culpable such that such deterrence would be worth the price paid by the justice system
                                     ii.            Rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some cases recurring or systemic negligence
2.       Private party rule – evidence obtained by private party is not excluded
II.            Was there a valid warrant? 
4 requirements:
1.       Executed by a neutral and detached magistrate,
2.       Supported by probable cause,
3.       With Particularity, and
4.       Based in oath or affirmation
A.      Must be executed by neutral and detached magistrate – mandated by text of 4th amendment
1.       Neutrality – magistrate ceases to be neutral when conduct demonstrates bias in favor of the prosecution (pretty rare)
                                       i.            Ex: getting paid for every warrant issued rather than by a base salary
B.      Supported by probable Cause – requires proof of a fair probability
1.       Probably cause – generally requires a reasonably particularized ground for belief of a defendant’s guilt
2.       PC for searches – police must be able to show that the fruits, instrumentalities or evidence of crime exist, and can be found at the place to be searched
3.       PC for seizure (arrest) – a showing that a crime has been committed, and that the person to be arrested committed it
4.       Illinois v. Gates – use totality of the circumstance test to make “common sense determination” that probable cause exists – factors = circumstances
                                       i.            Illinois v. Gates test (above) replaced A/S test (below)
                                     ii.            Aguilar Spinelli test – now just factors to be used in totality of circumstances
a.       Establish informants basis of the knowledge
b.      Establish informants reliability or veracity
5.       Hearsay may be u

.            If person not there, leave copy of warrant and list of items seized
9.       Arrests
                                             i.            Arrest warrant carries the limited authority to enter a suspect’s home when there is a reasonable belief that the suspect is within
                                           ii.            Arrest warrant does not authorize entry into a third person’s home absent exigent circumstances – need search warrant too
III.            Warrantless arrests and searches
Searches & arrest w/o warrant are on their face unreasonable
a.       Preference is given to warrants
b.      You don't need a warrant to arrest someone in a public place
                                                               i.      De facto arrest when police compel someone to come to the stationhouse for either fingerprinting or questioning
                                                             ii.      Can arrest for any offense, even those punishable by a monetary fine only
A.      Analysis for warrantless arrests
a.       1st – Threshold inquiry – need probable cause
                                                               i.      Policeman can make on-the-scene assessment of probable cause
                                                             ii.      This gives legal justification for arresting a person suspected of crime, and for a brief period of detention
b.      2nd – Judicial officer must make a fair and reliable determination of probable cause as a condition for any significant pretrial restraint on liberty either before or promptly after arrest
                                                               i.      Promptly means – within 48 hours
B.      Analysis for warrantless searches
a.       Need an exception to let them stand
                                                               i.      SEAA CIPS – 8 basic exceptions to the warrant requirement
C.      8 Basic exceptions – SEAA CIPS
1.       Search incident to lawful arrest
                                       i.      US v. Robinson – Any lawful custodial arrest justifies a full search of the arrestee’s person
                                     ii.      Justifications:
Officer safety – need to disarm suspect
Need to preserve evidence
                                    iii.      Timing – must be contemporaneous in time and place with the arrest
                                   iv.      Geographic scope – wingspan (body, clothing, area, and any containers within arrestee's immediate control) without regard to the offense for which the arrest was made
Lunge area – the area from which he might gain possession of weapon or destroy evidence
Need reason to go beyond lunge area
Protective sweep – there must be articulable facts and rational inferences that warrant reasonable prudent officer in believing that there is a need for a sweep
Limits – cannot go beyond scope of making sure the area is safe and secure i.e. looking for stolen goods in box on top of dresser