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

CRIMINAL PROCEDURE OUTLINE – CORN SPRING 2011
4TH AMENDMENT: SEARCHES AND SIEZURES
        I.            PURPOSE
a.       Protects people from UNRSNBL searches and seizures
                                                               i.      Touchstone of the 4th amendment is REASONBLENESS
      II.            4th AMENDMENT TRIGGER
a.       Right person being searched or seized – Appreciable connection to the US
                                                               i.      If you are here voluntarily for any amount of time you are protected
                                                             ii.      Verdugo Exclusion- If you are abducted from abroad you are not protected.
b.      Government Actor
c.       Have to have a search or a seizure
    III.            WHAT IS A SEIZURE?
a.       A person is seized when there is physical control or submission to a control of authority.
    IV.            WHAT IS A SEARCH?
a.       Search is a gov’t intrusion into a person’s REP
b.      2 prong test for determining what qualifies as a REP
                                                               i.      Subjective expectation of privacy
1.       Have subjective expectation of privacy when your actions manifest intent to keep something quiet from the public.
a.       Ex: closing the door to the phone booth
                                                             ii.      One that society considers rsnbl – Obj prong
1.       False Friend – once you talk to another person it isn’t objly rsnbl to expect privacy.
a.       This includes numbers being sent to the phone company, etc.
c.       Open Fields and Curtilage
                                                               i.      There is no expectation of privacy in an open field so it is not a search to look there
                                                             ii.      There is expectation of privacy in curtilage, but it varies on a case by case basis.
1.       Curtilage is the area of property closely associated with activities of the home.
2.       Even if it is on your curtilage, if it is exposed to the public it is not protected.
d.      Surveillance Technology
                                                               i.      Through the Wall Surveillance – Any technology that enables the gov’t to penetrate the privacy or sanctity of the home is a search. Tie goes to the homeowner.
                                                             ii.      Sense enhancing technology is allowed  – such as smells that are emanating out of the house which a dog picks up on, etc. – as long as you can’t see anything in the house.
      V.            IF SEARCH, WAS IT RSNBL?
a.       Gov’t has warrant – Presumptively rsnbl
                                                               i.      If get a warrant then D has the burden of proving unrsnbl.
                                                             ii.      Only 4 ways to attack rsnblness of a warrant
1.       Magistrate is biased (involved in investigation, etc.)
2.       Unrsnbl execution (Cops fail to knock and announce)
a.       Can only dispense with knocking when there is rsnbl suspicion of exigency.
3.       Warrant is insufficiently particular (Doesn’t specifically state the places to be searched and things to be seized)
4.       Attack sufficiency of the PC.
a.       Easiest way is to attack the informant
b.      Gov’t has no warrant – Presumptively unrsnbl UNLESS there is a warrant exception
    VI.            PROBABLE CAUSE
a.       PC – facts and circumstances within the officers knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of rsnbl caution in the belief that an offense has been or is being committed by the person being arrested (or evidence subject to seizure will be found in the place to be searched).
                                                               i.      A hunch is not PC
b.      When attacking PC you are claiming that the magistrate made an error but this is difficult because magistrate gets substantial deference
                                                               i.      Trial judge is given high discretion – as long as there is some evidence on both prongs he will not be overruled.
c.       Ways to achieve PC
                                                               i.      Eye Witness
                                                             ii.      Fingerprints on a weapon
                                                            iii.      DNA evidence/forensic evidence of any type
                                                           iv.      Plain view
d.      Informants and PC
                                                               i.      2 prong Aguilar test – before magistrate can act on the opinion of an informant must establish:
1.       that the CI is trustworthy (veracity), AND
a.       CI has provided numerous reliable tips that have led to arrests (track record)
2.       the tip has to contain sufficient stmts of the underlying circumstances from which the informer came to their conclusion. (Foundation)
a.       Need insider information
b.      Corroboration
                                                             ii.      Test is totality of the circumstances
1.       Can compensate for a deficiency in one prong with satisfaction of the other.
2.       Remember it is better to have more foundation than veracity.
a.       More basis of knowledge than veracity
                                                                                                                                       i.      Don’t want a “trust me” warrant
3.       The purpose of corroboration is to validate the foundation but if you have independent evidence of criminality then you no longer need the informant.
  VII.            WARRANT REQUIREMENTS
a.       Search Warrant authorizes you to search a certain place during a certain time for a certain thing.
b.      Arrest warrant authorizes you to arrest the subject of PC wherever and whenever you find him.
c.       Warrant is the Prime Directive!
d.      Cannot enter a home without a warrant – 4th amendment protects the home the most.
e.      If you do not have a warrant you must have a warrant exception or else the gov’t action is presumptively unrsnbl and you have a 4th amendment violation.
VIII.            WARRANT EXCEPTIONS
a.       Exigent circumstances – search for weapons
                                                              i.      Exception to WARRANT requirement ONLY
                                                            ii.      What creates exigency?
1.       Threat to police or other people
2.       Imminent flight of accused
3.       Imminent destruction of evidence
4.       Police can’t create the exigency
                                                          iii.      Not rsnbl if you had plenty of time to get warrant.
                                                           iv.      Detention in anticipation of warrant is preferred.
1.       So if you can detain the suspect in order to make sure they don’t go inside the house and flush the drugs, etc. then that is preferred over a full search of the house.
                                                             v.      Exigency is produced by evidence that creates PC
1.       Still need PC that there is an exigency!
a.       Mere anonymous tip isn’t enough to create PC – therefore not an exigency
                                                           vi.      Scope
1.       Cannot exceed the scope of the exigent circumstances
2.       Once the suspect is found you have to stop searching
3.       Can look for suspect and weapons
4.       Can’t look in places that suspect nor weapons could be located
5.       As long as it is within that scope then anything that is come across is PV
b.      SITLA – Search incident to lawful “arrest” (not citation)
                                                               i.      Once you are arrested SITLA is automatic
1.       Only time it isn’t good is when there is a problem with (1) the arrest or (2) the scope
                                                             ii.      Exception to BOTH WARRANT and PC
1.       Guy arrested for driving without a license can be searched for a weapon even without PC to believe he has a weapon
                                                            iii.      Purpose – protect police and evidence from destruction
1.       Cannot be searching for evidence of a crime – only for weapons
                                                           iv.      Scope
1.       Can only search “wingspan or lunging distance” – where the suspect may be able to reach weapons or evidence.
2.       Within that scope is a full search. Can be seized pursuant to PV.
a.       Can look in pockets – doesn’t matter if a weapon would fit
b.      Ex: Arrest suspect and then you look on his person and see pills – you don’t know that it is drugs, but as long as there is a fair probability that they are drugs then you can seize them.
c.       Exceptions for the Vehicle
                                                               i.      ASITLA – Officer may search not only the persons in the vehicle, but also the vehicle itself and the interior compartments.
1.       Exception to PC and WARRANT requirement
2.       SITLA applies

hs. No guarantee that its drugs but there is a fair probability that its cocaine and that’s all you need because that’s all you would need to get a warrant.
g.       Terry Doctrine
                                                              i.      Exception to WARRANT Requirement
                                                            ii.      Adjusts the cause requirement from PC to Rsnbl Suspicion
                                                          iii.      Triggers/Rule
1.       Terry Stop – Rsnbl suspicion that crime is afoot.
2.       Terry Frisk – rsnbl suspicion the suspect is armed and dangerous
                                                           iv.      Scope
1.       Stop
a.       It is limited in scope to what a rsnbl officer acting in due diligence would need under the circumstances to confirm or deny suspicion that crime is afoot.
2.       Frisk
a.       A cursory pat down of outer clothing to insure suspect has no weapon.
                                                             v.      Rsnbl Suspicion
1.       Less than PC more than a hunch
a.       Hunch plus some articulable fact
                                                                                                                                       i.      Possibly produced by officer’s experience and training.
2.       Informants can provide rsnbl suspicion
a.       The test is similar to Aguilar, but the threshold is less than PC.
3.       There is automatic RS when conducting a traffic stop.
4.       Fleeing from the police creates rsnbl suspicion
a.       However, if you stop and simply say you don’t want to talk then that does not create RS.
                                                           vi.      Distinguishing between a Terry Stop and Frisk and a Search and Seizure
1.       Crt calls “Stop” and “Frisk” a euphemism for “search” and “seizure”.
a.       It’s not full blown search and seizure but it is similar.
2.       Terry frisk/Cursory inspection v. Full blown Search
a.       You do this to make sure that you can perform your job safely.
b.      You're hoping to find “NOTHING”
                                                                                                                                       i.      Because then you are safe!
c.       A full blown search
                                                                                                                                       i.      You do this when you are LOOKING for evidence.
d.      If you are doing a frisk and you are looking for evidence and then you find it, then you can’t use it because you were searching/not doing a cursory inspection.
e.      However, if you are not looking for something but you find it, then you can use it because your presence was legal.
f.        When you stop and frisk you are merely trying to confirm or deny a suspicion. If you confirm the suspicion then it blossoms into PC – at which point you can make a lawful arrest and then conduct a SITLA.
3.       Terry Stop v. Seizure
a.       Terry Stop is a brief investigatory detention
b.      Seizure
                                                                                                                                       i.      Either show of physical force followed by submission OR
                                                                                                                                     ii.      Whether a rsnbl person in the suspect’s position would feel free to terminate the police encounter.
c.       If police stop you and they have rsnbl suspicion that there are drugs in your suitcase, but you won’t let them search, they can detain you until a drug dog gets there and gives them PC to search the suitcase.