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Criminal Procedure
Stetson University School of Law
McCoun, Thomas Bullitt


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, [except deleted] ; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI: FAIR TRIAL
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.


To search, a police officer must have probable cause to believe that there is – now; at the time of the search – evidence of a crime or illegal goods at the place to be searched.
It is not necessary to believe that the person who owns or possesses the place has committed a crime

To arrest, the officer must have probable cause to believe that the person to be arrest has committed a crime. It is not necessary for officer to believe that they are presently committing a crime or possesses evidence or illegal goods.

United States v. Draper (1959)
Draper is drug dealer – CI tells police about trips to Chicago to get drugs – Police see similar man to description at train station acting suspicious and they stopped, searched and arrested him

The crucial question for us then is whether knowledge of the related facts and circumstances gave “probable cause” within the meaning of the 4th Amendment, and “reasonable grounds” within the meaning of § 104(a).

Information given by CI is hearsay
Brinegar v. United States – probable cause = are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.
Therefore, hearsay is allowed for probable cause purposes
If it is not hearsay, it still did not provide probable cause
With every other bit of informant’s information being thus personally verified, officer had reasonable grounds to believe that the remaining unverified bit of information—that Draper would have the heroin—was likewise true.

Probable cause exists where “the facts and circumstances within their [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. Carroll v. United States
Safest way – Arrest first! – then search

Aguilar v. Texas (1964)
Abrogated by Illinois v. Gates
This case presents questions concerning the constitutional requirements for obtaining a state search warrant.

In Ker v. California, we held that the 4th Amendment's proscriptions are enforced against the States through the 14th Amendment, and that ‘the standard of reasonableness is the same under the 4th and 14th Amendments.’
Obtaining a search warrant is likewise ‘the same under the 4th and 14th Amendments.’

An evaluation of the constitutionality of a search warrant should begin with the rule that ‘the informed and deliberate determinations of magistrates empowered to issue warrants are to be preferred over the hurried action of officers who may happen to make arrests.’ United States v. Lefkowitz

Although the reviewing court will pay substantial deference to judicial determinations of probable cause, the court must still insist that the magistrate perform his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, the magistrate must be informed of some of the underlying circumstances from which the informant concluded this claim, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, Rugendorf v. United States, was ‘credible’ or his information ‘reliable.'

Otherwise, ‘the inferences from the facts which lead to the complaint’ will be drawn not ‘by a neutral and detached magistrate,’ as the Constitution requires, but instead, by a police officer ‘engaged in the often competitive enterprise of ferreting out crime,’ Giordenello v. United States, Johnson v. United States, or, as in this case, by an unidentified informant.

We conclude, therefore, that the search warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible in petitioner's trial.

Illinois v. Gates
The Supreme Court held that:
Test under Aguilar would be abandoned and a totality-of-the-circumstances approach would be used to determine whether an informant’s tip establishes probable cause for a warrant; and
probable cause for warrant authorizing search of defendants' home and automobile was established by anonymous letter indicating that defendants were involved in activities in violation of state drug laws and predicting future criminal activities where major portions of the letter's predictions were corroborated by information provided to affiant by federal agents.

Commonwealth v. Dunlap (2007)
Defendant was convicted in the Philadelphia Municipal Court for possession of illegal drugs. On petition for writ of certiorari, the Court of Common Pleas, affirmed the conviction and sentence. Defendant appealed. The Superior Court, affirmed. Defendant appealed.
Holding: The Supreme Court of Pennsylvania held:                          Reversed
Police training and experience, without more, is not a fact to be added to the quantum of evidence to determine if probable cause to arrest exists, and
officer who observed defendant and another individual exchange currency for an unknown object in a high-crime neighborhood did not have probable cause to arrest defendant for illegal drug activity.

Police training and experience is NOT a factor to be considered in the totality of the circumstances

In conjunction, we have long held that in applying this test to warrantless arrests, probable cause “… is to be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his training and experience.” Commonwealth v. Norwood, 456 Pa. 330, (1974)

Pennsylvania v. Dunlap (2008)
Petition for writ of certiorari is denied – dissent from denial – Roberts and Kennedy
“[A] police officer may draw inferences based on his own experience in deciding whether probable cause exists,” Ornelas v. United States (1996), including inferences “that might well elude an untrained person,” United States v. Cortez (1981).

Mapp v. Ohio (1961)
Starting point to understanding exclusionary rule

The State says that even if the search were made without authority, or otherwise unreasonably, it is not prevented from using the unconstitutionally seized evidence at trial, citing Wolf v. People of State of Colorado, 1949, in which this Court did indeed hold ‘that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.’ Reviewing this holding

The Court in that case clearly stated that use of the seized evidence involved ‘a denial of the constitutional rights of the accused.’ Weeks v. U.S. Thus, in the year 1914, in the Week

v. Ceccolini (1978).

Attenuation Doctrine
The perception underlying these decisions—that the connection between police misconduct and evidence of crime may be sufficiently attenuated to permit the use of that evidence at trial—is a product of considerations relating to the exclusionary rule and the constitutional principles it is designed to protect. Dunaway v. New York (1979); U.S v. Ceccolini

In short, the “dissipation of the taint” concept that the Court has applied in deciding whether exclusion is appropriate in a particular case “attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost.” Brown v. Illinois

Deference to the magistrate is not boundless.
The deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Franks v. Delaware (1978).
The courts must also insist that the magistrate purport to “perform his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.” Aguilar v. Texas
A magistrate failing to “manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application” and who acts instead as “an adjunct law enforcement officer” cannot provide valid authorization for an otherwise unconstitutional search. Lo–Ji Sales, Inc. v. NY (1979).
Reviewing courts will not defer to a warrant based on an affidavit that does not “provide the magistrate with a substantial basis for determining the existence of probable cause.” Illinois v. Gates

In short, where the officer's conduct is objectively reasonable, “excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that … the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty.” Stone v. Powell (WHITE, J., dissenting).
Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations

Four exception to good faith exception:
Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware
The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo–Ji Sales, Inc. v. New York, in such circumstances, no reasonably well trained officer should rely on the warrant.
Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Brown v. Illinois
Depending on the circumstances of the particular case, a warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid