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Criminal Procedure
Stetson University School of Law
McCoun, Thomas Bullitt

1.       Fourth Amendment in General
a.       Written primarily to battle against general warrants, which were common place in England
b.      The Fourth Amendment forces warrants to be constructed relatively strictly
c.       Far too impractical to always require the police to get a warrant.
i.      First clause of the Fourth Amendment prevents police from abusing warrantless searches
2.       Probable Cause
a.       General Notes
i.      Both warrants and searches and seizures rely on probably cause (few exceptions exist)
ii.      Based on the Fourth Amendment
iii.      Probable cause falls between a bare suspicion and reasonable doubt, within probable cause an anonymous tip without any background is lower, then an anonymous tipster who approaches a cop on the street, but the highest level on the probable cause scale is an honest citizen who sees something and/or an eyewitness cop that sees something
iv.      Probable cause does not 51%
v.      Seizure applies to arrest of individual as well as taking of property
vi.      Favors cops having warrants, as opposed to warrantless searches
vii.      You have to identify not only the information leading to probable cause, you also have to clarify probable cause for what (what are the cops looking for)
1.       Search has to have nexus of where crime was committed and where they want to search
viii.      Probable cause is a rather forgiving standard
1.       The cops can arrest person for wrong crime, search the person and find drugs, if there was probable cause for the arrest, then the drugs are still admittable
ix.      Based off of a Reasonable Standard
1.       The cops subjective opinion is irrelevant, depends on what a reasonable officer would do.
2.       The cops can act maliciously, yet it doesn’t matter you still have to look at the reasonable person standard
b.      Affidavits
i.      Must include some of the circumstances that the informant had given when they received the information and the circumstances and information as to why the information is credible and reliable
c.       Ways for a Search to be Deemed Unreasonable
i.      Beyond scope of the warrant
ii.      Too much destruction, when looking for the evidence
iii.      No warrant
iv.      Sometimes if the search unnecessarily occurs at night or an odd hour
d.      Probable Cause can be based on:
i.      What the cop knows himself; or
1.       Cop’s observations (smell, hear, touch)
2.       Well trained dog
3.       Reliable confidential informant
ii.      That which he has information that is sufficiently reliable.
e.      Approach
i.      Look at whether the police had probable cause to support the search warrant
ii.      Look at the reasonableness (including the scope) of the search and seizure
f.        Cases
i.      Aguilarà a warrant cannot be based solely on the uncorroborated information provided by a confidential informant. 
ii.      Grahamà shows the liberalization of probable caused use to combat the “war on drugs”
3.       Exclusionary Rule
a.       General Notes
i.      Doesn’t say anything about potential 4th Amendment Remedies
1.       Without any remedy, the 4th Amendment had no “bite”
ii.      Goal of the “rule” is to deter police officers’ misconduct. It created and incentive for cops to uphold individual rights.
iii.      A cop cannot receive information through an illegal search, then clean it up with a warrant
iv.      Stalenessàcop sits on information that is basis for warrant, then applies for it later because information may be gone now. This situation also does not fall under the “good faith” exception. 
b.      Cases
i.      Weeksàbefore this case, the exclusionary rule did not extend to states, so Federal Agents could illegally seize evidence then walk across the street give the evidence to state authorities and the state could use the evidence against you in criminal proceedings
ii.      Mapps v. Ohioàprevents use of evidence in court, but also in the future of criminal investigation. 
iii.      United States v. Calandraà”In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrant effect…”
iv.      City of Pasco v. TitusàShows the remedy for a bad arrest is to suppress the evidence found during the bad arrest.
1.       Doesn’t prevent prosecutor from prosecuting someone, they just cannot use the evidence found during the bad arrest.
2.       Dismissal is not the proper remedy
v.      United States v. Leonàcreates the “good faith” exception=where the cops act in objective good faith on a warrant, the evidence seized will not be excluded because it would punish cops operating with warrants and that would have no deterrent effect. If cops act without a warrant, there is no “good faith” exception. 
1.       Four Exception to the “Good Faith” Exception
a.       False information is knowingly used or if they act in reckless disregard to obtain the warrant
b.

                   ii.      State v. Constantinoàreaffirmed an ancient principle of law, that eavesdropping is not a search because it is so common (everyone does it) and cops do it all the time
iii.      United States v. WhiteàConversations you have with a third party is not constitutionally protected
iv.      Lewisànot a search or seizure when you allow the person in your home
v.      Lopezàwhen the agent (undercover) is welcomed into your home and is carrying electronic surveillance, it does not constitute a search
vi.      Hoffaàno protected privacy when talking to others (a third party)
vii.      United States v. NerberàCops bug hotel room with video equipment, cops were in and out of the room all night long. Bad guys were videoed the entire time. Court rules that the video of the time when the cops were in the room did not constitute a search and was admissible, but the portion of the video when they were outside constituted a search and was inadmissible. 
viii.      United States v. KnottsàCops use a “beeper” to track a package. Court says this does not constitute a search because anyone can see/follow someone on a public road. There is no expectation of privacy and it is not expected by society. There is really no difference between following them and using the beeper device. 
ix.      United States v. KaroàCourt says there is a search, when the beeper the police use allowed them to know something about the inside of the house, that they would otherwise need a warrant for. Cops are best advised to get a warrant before using a beeper device. 
x.      Oliver v. United Statesà Court says that the “open fields doctrine” is still valid under the Katz doctrine, just use the standard. Open fields are not mentioned in Fourth Amendment and society has not garnered a great level of privacy because fields are used for growing things and that is the same thing Oliver was doing.
1.       Court is to look at these factors when analyzing society’s expectation of privacy:
a.       Intention of the Framers’ of the Fourth Amendment
b.      How is the property being used?
c.       How has society normally treated this type usage?
d.      Historical perspective
2.       Court divided searches into three primary sections: