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Criminal Procedure
St. Thomas University, Florida School of Law
Lawson, Tamara F.

I. Fourth Amendment: Arrest, Search and Seizure
A. Introduction
1. two views of the 4th amendment:
a) warrant preference view: search is presumptively unreasonable if conducted without a warrant because warrant clause is connected to the search and seizure clause.
b) separate clauses view: warrant is not necessary if the search is otherwise reasonable because the warrant clause is not connected to the search and seizure clause.
2. Four requirements of a valid search warrant
a) issued by a neutral magistrate
b) based on probable cause
c) supported by oath or affidavit
d) describes with particularity the places to be searched and the items to be seized.
B. Exclusionary Rule
1. Definition – evidence obtained in violation of the 4th amendment must be excluded at trial.
2. The exclusionary rule applies to the states through the 14th amendment – Mapp v. Ohio
a) overruled Wolf v. Colorado which held that the exclusionary rule did not apply because of federalism concerns.
b) put an end to the “silver platter” doctrine where state agents could hand over illegally seized evidence to federal agents for state prosecution because the federal agents had not obtained it illegally.
c) reasoning: without the exclusionary rule, the 4th amendment has no bite.
3. Exception to the exclusionary rule: Evidence obtained in good faith, but upon a defective warrant is admissible – Leon
a) the reliance must be objectively reasonable – whether a reasonably well trained officer would have known that the search was illegal, considering all of the circumstances.
b) police can not be deterred by exclusion if they acted in good faith, so there is no reason to exclude the otherwise trustworthy evidence because of a technical defect.
c) Four Exceptions to Leon
(1) affidavit contained information that the police knew to be false or had a reckless disregard for its truth
(2) magistrate has wholly abandoned his judicial role by failing to be neutral
(3) affidavit so lacking in probable cause that belief in it is unreasonable
(4) warrant is so facially deficient that the officers could not reasonably presume it to be valid.
C. What Constitutes A Search?
1. 4th amendment only triggered by government action.
a) private actors are considered government agents if:
(1) act at the direction or request of the government
(2) act pursuant to government policy or regulation
(3) act with the knowledge, acquiescence, or encouragement of the government
(4) act with a purpose or motivation to be a government actor
2. Katz – two pronged test for whether there has been a search (Harlan concurrence)
a) person has manifested actual (subjective) expectation of privacy
b) expectation is one that society is

(1) the proximity of the area to the home
(2) whether there is an enclosure that surrounds both the home and the area
(3) the nature of the uses to which the area is put
(4) the steps taken to protect the area from observation
b) a warrant may be required to search curtailage, but no warrant is ever required to look through an open field – it is not even a 4th amendment “search” because there is no expectation of privacy.
D. Probable Cause
1. Definition of Probable Cause to search is different than probable cause to arrest:
a) probable cause to search means that there is a “fair probability that evidence of a crime is presently in the place to be searched.”
b) probable cause to arrest means that there is a fair probability that:
(1) a crime has been committed; and
(2) the person to be arrested committed the crime.
2. OLD WAY of determining probable cause from an informant’s tip (Aguilar/Spinelli two-pronged test overruled by Gates):
a) veracity prong – must be evidence that the informant himself was reliable
basis of knowledge prong – must be facts showing the