Select Page

Criminal Procedure
Southern Illinois University School of Law
Dawson, Edward C.

Crim Pro Outline – Dawson Spring 2017
**Reasonableness is the touchstone of all 4A analysis.**
Reactive investigation – crime already committed; responsive
Gather evidence to ID suspect, attempt to locate suspect
Proactive – figuring out future crime before it happens
Working undercover, stop and frisk, registration/inspection checkpoints for cars, surveillance, etc.
Incorporation of Amendments: ***
Almost all of the Bill of Rights have been incorporated, meaning the rights apply to both federal and state governments
All Bill of Rights incorporated except 3A, 5A grand jury, 7A jury rights in civil cases, 8A excessive fines
State that the Amendment has been incorporated in essays ***
Wolf: 4A applies to the States
Mapp: evidence obtained by searches and seizures in violation of the Constitution is inadmissible. (General rule)
6th Amendment – Right to Counsel
Includes the right to have the government provide you a lawyer if you can’t afford one
Exclusionary Rule
Excluding evidence that was obtained in an illegal search and seizure
Purpose: to deter police from performing illegal searches; NOT constitutionally required
Must have a 4A violation &
No exception met
Exceptions to the Exclusionary rule: (only discuss exceptions if essay has potentially invalid warrant***)
“Good faith” exception for warranted searches only (Leon)
Isolated and attenuated (weak) police negligence (Herring)
Policy: what if guilty defendants get let off because of this rule? It’s better that the government lose a case and Defendant get off than the Government securing a conviction based on not following the law.
United States v. Leon: Warrant was issued but later founded that it did NOT have Probable Cause.
Should evidence still be admissible?
Court says to balance “costs and benefits” of allowing evidence in for that scenario.
Costs of the ER: impair truth-seeking function, guilty may go free, can generate disrespect for the law
Balancing approach has tended towards allowing evidence in when it was acquired in good faith**
Here, exclusion won’t deter magistrates because they have no stake in the matters, so don’t apply Exclusionary Rule. Police acted in good faith so nothing to deter there.
Exception to the ER: “good faith” exception (for warranted searches) – as long as officers were using good faith effort to obtain warrant and then use that warrant, evidence will be admissible
Limits on this exception: police reliance on the warrant must be “objectively reasonable” to be in “good faith.”
So not when police are relying on affidavit they should have known was false
Rule: In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.
Exceptions to the Leon Exception to the ER: when there is a warrant, evidence still not allowed in if:
Magistrate wasn’t “detached and neutral”
Officers were dishonest or reckless in preparing affidavit, OR
Officers “could not have harbored an objectively reasonable belief in the existence of PC.”
Exclusionary Rule and Private Persons
If evidence is acquired by a private person, no search so no exclusionary rule needed
But if private person is acting on behalf of police, then it is a search and ER applies
ER and Non-police Government Employees
ER does not extend to mistakes by court employees so would not be suppressed
Won’t have any deterrent effect on these people
Hudson v. Michigan: violation of 4A by entering house too fast
Applied Leon’s cost/benefits of applying ER analysis
Cost: hesitation/police will wait too long, floodgates
Benefits: minimal benefits
So ER not applied; evidence is admissible.
Herring v. United States: recalled warrant was not updated in system so man was arrested and evidence found on him. Later found out warrant was recalled.
ER does not apply; evidence is admissible
ER only applies if:
Culpability of police (flagrant, deliberate, grossly negligent, systemic); and
“flagrant (obviously offensive) or deliberate violations” = apply ER
objective analysis
officer’s experience and knowledge can be relevant
Sufficient deterrence (benefits > costs)
If you get new/unfamiliar question about whether ER applies, you’d want to balance costs/benefits.
Here, evidence is admissible because no evidence that police error was routine
Court said ER would have applied if:
“reckless” recordkeeping in warrant system
deliberate false entries to support future arrests
known, systematic errors
Rule: ER does not apply when there was isolated and attenuated (weak) police negligence
3 ways in which this Herring Exception may NOT apply: same exceptions from Leon
Protected Areas and Interests
Katz v. United States: listening device placed on outside of phone booth
Harlan’s concurrence test:
4A protection applies if:
person have exhibited an actual subjective expectation of privacy
that society is prepared to recognize as reasonable
4A can extend to oral statements
Depends upon what person expects to be private, even if in public place
Katz Test: 4A protects that which the person has a reasonable-expectation of privacy for. (4A protects the person, doesn’t matter the place where they are)
United States v. Jones: government physically occupied private property by putting gps on jeep without judicial authorization
Rule: A search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.
“When the Government physically invades personal property to gather information, a search occurs.”
Technology and Expectation of Privacy
Unless the government gets the data directly from you, 4A not violated
OK if they get it from a database of information; like facebook deciding what ads to show you
Florida v. Jardines: dog sniff on front porch
Rule: Warrant is needed for search of front porch, even if just with dog.
Beyond the “curtilage” are open fields which are fair game, even if privately owned.
Curtilage = area immediately surrounding and associated with the home.
Weed in the very back of your 40 acres = not curtilage
Weed in your detached garage = maybe curtilage
Front porch = curtilage
So 4A protects front porch
Police can stand on area that’s not protected by 4A (like public sidewalk) and observe w

Search Warrants
What's required to get a warrant?
Approval from neutral magistrate
Magistrate must be “detached and neutral” and “capable of determining PC”
Sworn application usually with supporting Officer's affidavit
With sufficient particularized information
To establish PC
What has to be in a warrant?
Place to be searched
Precise enough so officers can “with reasonable effort ascertain and identify the place intended”
Things to be searched for/seized
Affidavit must be incorporated into the warrant if it is what obtains the details for what is being searched for
If it is not incorporated, and the warrant itself does not have these details, the warrant is defective.
Warrants can include conditions or permissions relating to execution – “no knock,” delayed notice, etc.
Time length – issuing jurisdiction will have rule for how long warrant is “good for”
IL = 96 hours
May have to be done during daytime
No general requirement to wait for occupant to come home if there is a warrant
Execution of the Warrant
Generally, police must knock and announce first, but then can break door down after announcing.
No knock is allowed when there is reasonable suspicion that knocking and announcing would:
Be dangerous or futile, or
Allow destruction of evidence
How long must they wait?
If no exigent circumstances, must wait long enough that it is reasonably clear to police that occupant is refusing to let them in
Take into account how long it would take them to get to the door
If there are exigent circumstances:
Exigent circumstances are threat to safety and evidence destruction (same as deciding whether to knock in first place)
Assess how long it would take occupant to get rid of what you are looking for
Reasonable to suspect imminent loss of evidence after 15-20 seconds for daytime drug warrant
Searching Persons on the Premises
Ybarra: customer at bar searched when warrant was only for bar and bartender
Rule: PC to search the place does not extend to PC to search the people there
Can’t pat down occupants (even for safety) without reasonable suspicion.
Detaining Persons on the Premises
Summers: detained occupant while searching the premises
This is allowed when police have an “articulable basis” to suspect criminal activity
Here, magistrate already reviewed for PC, so likely that there was an articulable basis to suspect criminal activity
Detaining purposes:
Reduces risk of harm to officers
Allows for orderly completion of search (might need help from occupants/don’t want them interfering with search)