CRIMINAL PROCEDURE – Dillon
The 4th Amendment: Arrest, Search, and Seizure
4th Amendment: “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 person or things to be seized.”
Is the 4th applicable to what happened?
1) Was there must be government action?
2) Did the government action intrude upon society’s reasonable expectation of privacy?
3) Did the government action breach the individual’s expectation of privacy?
Examples:
· A pizza delivery guy being arrested in an apartment where there are drugs would not have an expectation of privacy – illegally obtained evidence would not be suppressed
· You have an expectation of privacy as to the contents of your bedroom.
o A cop cannot climb a ladder to look in the window and seize your marijuana plant
o A cop is not intruding if they spot your marijuana Xmas tree from the sidewalk
Expectation of Privacy – changes as the day goes on; is highest in your home bathroom
· The interest of society to acquire the material must outweigh the individual’s right to privacy.
Ex: A bullet can be removed for evidence, but not if there is a chance it could kill the suspect
· Government employees’ desks can be searched if there is reasonable suspicion of workplace related misdeeds. Private employers are not bound by the 4th Amendment, so they can search what they want.
· Guests have an expectation of privacy as to the guest room, but not the rest of the house.
· You have no expectation of privacy as to what you expose to the world.
What about a tent?
· If you pay to rent space, you have an expectation of privacy.
· If you are in your own open field, you have an expectation of privacy
· If you are on a neighbor’s land without permission, you have no expectation of privacy.
Police Powers and Individual Rights
· Function like a teeter totter. As one increases, the other decreases.
· The Supreme Court sets the floor and the States set the ceiling.
The 4th Amendment protects people, not places.
Probable Cause – the belief that someone committed a crime or that a place is hiding evidence of criminality
Must be present for a search or seizure to be lawful, whether or not you have a warrant
Anything learned after the fact is irrelevant to whether you have probable cause; you cannot add things after the fact
Standard of Proof – more likely that not, NOT beyond a reasonable doubt
· The information must be fresh not stale
How to Measure:
No warrant – what did the officer know at the time they acted?
Ex: I saw him selling what I thought were drugs. An informant told me.
Warrant – what information did the magistrate have when they made the decision to issue the warrant?
To arrest a group – if there is proof of an ongoing enterprise, probably not limited to one person [Pringle]
Aguilar Spinelli Test – NY – To establish probable cause, you must show:
1) Veracity – reliability of the informant AND
2) Basis of Knowledge – reliability of the information
Veracity Prong
Each member of the information chain must be reliable:
Ex: Bartender à Informant à Officer à Magistrate
1. Victims, citizen informants, and police officers are presumptively reliable to establish probable cause. BUT, if there is a personal relationship between the informant and the perpetrator, more investigation may be necessary
Ways to establish reliability:
a. Past track record
b. Detailed information (corroboration)
c. Citizen informant (no axe to grind, not involved, no criminal record)
d. Declaration against interest
e. Take an oath and speak with the magistrate (possible perjury if lying)
f. Officer affidavit (assumed to be reliable)
Basis of Knowledge Prong
Factors to consider:
a. Did the informant witness the activity?
b. Is there self verifying detail? [Draper]
c. Corroboration must go to the heart of the criminal activity (does not apply to veracity)
· New York basis its standard on the state constitution as they cannot overrule the Supreme Court
Examples of NY cases in which probable cause is challenged on the basis that Ag/Sp is not met:
1. Drug addict implicates the seller. Veracity is established by having the informant buy drugs. Police corroboration is sufficient because it went to the heart of the transaction.
2. Citizen informant – typically lack of motive to testify falsely. One cop tells another and the second makes the arrest. Both police are presumptively reliable, as is the citizen informant. All we know is that she’s an eye witness; she did not show up at the hearing, so we do not know how she got the information. If she had appeared at the hearing, probably cause could possibly be established.
3. Undercover cops gives a description to a regular cop and an arrest is made. Veracity is OK and basis of knowledge is OK because it’s first hand – we know that the undercover bought the drugs.
Gates Test – Federal – Totality of the Circumstances to establish probable cause
· Appellate courts must accord a substantial deference to the issuing magistrate. Strictly applying Ag/Sp doesn’t do that and would discourage the use of warrants. This test implies that the use of a warrant will increase the chances that the warrant will be deemed lawful.
· Still considers the same issues as Ag/Sp
· Doesn’t discount anonymous tips as Ag/Sp does.
Reasons for a totality of the circumstances test:
1. magistrates aren’t lawyers (NY wants Ag/Sp because some magistrates are not lawyers)
2. encourages the use of warrants
3. used as a buffer
4. deference to the magistrate
5. a common sense approach
Example: Johnson – defendant arrested solely on an informant’s statement
· NY – Ag/Sp test
o Basis of knowledge – informant spoke to the defendant
o Veracity – informant made a statement against interest; BUT, the informant was only involved with the gun purchase, so this prong is not satisfied
· Federal – Gated totality test should establish probable cause, even though there is no warrant
Issuance of Warrants – the 4th Amendment requires a neutral and detached magistrate; our buffer from the government
The Warrant Clause requires:
1) probable cause
2) oath or
e force, depending on what they’re looking for.
· You do not need to knock and announce if there is an emergency.
· You need special circumstances for a no-knock warrant. Acceptable reasons:
1. officer safety
2. evidence will be destroyed
Freezing the scene – a temporary intrusion meant to protect officers. They must act reasonably, depending on the circumstances.
Protective sweep – a run-through to make sure no one else is present for safety reasons; they can look wherever someone can hide
After the search is completed, the officers must file a return with the court to document what they seized.
Law of Arrest – when a person is deprived of liberty by lawful authority
A finding that an arrest was illegal does not mean the charges are dropped. It just means that any evidence collected as a result of the illegal arrest will be suppressed.
No formal declaration is necessary. Would a reasonable person, innocent of any wrongdoing, believe they are under arrest?
In NY, an arrest warrant may be executed at any time and you do not need to knock and accounce.
Public Places – your expectation of privacy is reduced [Watson]
· In NY, the police can make a warrant-less arrest for commission of any crime if they have probable cause.
Entry to Arrest- police must have a warrant to enter a home (included hotel rooms and apartments) to make an arrest [Payton]
· An arrest warrant gives the police authority to enter home if they reasonably believe that the suspect is there
· If you are staying with a friend, the police can still use an arrest warrant to enter, but they cannot seize evidence and use it against the friend who is a resident
Trickery – can be used to get a suspect out of a home, but it cannot rise to the level of duress or coercion
Test – Would a reasonable person feel they were free to terminate the police encounter? If no, then there is a seizure. [Bostick]
Search Incident to a Lawful Arrest – you do not need a warrant to do so (major exception to the warrant requirement) [Robinson]
· If the arrest is in unlawful, the search is invalid
· The arrest provides justification for the search – there is no additional probable cause requirement.
· The search must be proximate to the arrest, but that is interpreted loosely.
Where can the police search?
1. the person
2. the grabbable area
What can the police seize? Anything, regardless of the probable cause to believe it’s evidence or contraband.
Reasons for the search:
1. safety of the officers
2. prevent the destruction of evidence
3. disallow contraband in jail
