I. Fundamental Rights
a. Focus upon three Amendments
i. 4th Amendment—Search and Seizure/Right to Privacy
1. only applies to a situation IF:
a. there is govt. action (Bill of Rights only restricts the govt.)
b. if the action breaches society’s reasonable expectation of privacy
c. if the govt. action breached the reasonable expectation of the individual intruded upon.
d. Note the objective and subjective nature of this test!
2. applicable only to unreasonable searches and seizures—therefore ones with a warrant may be reasonable.
ii. 5th Amendment—Miranda rights, voluntariness of statements
iii. 6th Amendment—Right to Counsel
b. Constitutional Law
i. Gives power and authority to the federal govt.; also limits and defines.
ii. As per the 14th Amendment—total incorporation, anything that the SC holds as a right must be implemented in the states.
1. selective incorporation actually; only those rights in the Bill of Rights that the SC deem as fundamental to be concepts of ordered liberty shall be made applicable to state court proceedings.
iii. Balancing between the individual rights and the rights of society. Also seen with individuals vs. officers (as representatives and protectors of society).
c. Floor/Ceiling Concept
i. SC sets the ceiling for the police’s conduct. They can only go this far in the states or federal proceedings, and no state can raise the ceiling for police power. Cannot grant more power than the SC!
ii. This also means that the SC set the floor for individual rights. These rights cannot be taken away.
iii. However, remember the dichotomy—state application of SC rulings. Must think of the consequences of each system
II. Warrants/Probable Cause
a. 4th Amendment Right to Privacy
b. what IS a seizure?
i. Taking something that belongs to you: an act, papers, person or effects.
c. Right is against unreasonable searches and seizures. If they act reasonably they are permitted!
i. Issue of warrants here. No warrants shall issue unless on probably cause (supported by oath/affirmation) with particularity.
i. No warrant is valid unless:
1. there is probable cause. This DOES NOT MEAN absolute or certain. Means “kinda” or “Sorta.”
2. oath or affirmation
1. was it reasonable to act w/o a warrant?
2. what gave them probable cause in this case?
iii. Four Corners Rule
1. the magistrate is limited to whatever is within the four corners of the application. Cannot go outside what is in front of him!
2. can not assume the judge knows something, etc. limited to written on the document!
iv. Aguilar/Spinelli Test to determine probable cause
1. veracity prong
a. once you determine the reliability of the person imparting the information, whether an informant or officer
2. basis of knowledge
a. person imparted—HOW did they get such knowledge? Did they acquire it in a reliable way? Is it so detailed as to assume they got first hand information/knowledge?
b. This is applied at every stage of analysis. At all stages of the warrant!
c. In NYS, you still have to satisfy the basis of knowledge prong—need something to demonstrate that the basis of knowledge is reliable. (one prong can bolster another prong…)
3. once these two elements are satisfied, you have received sufficient factual information from which you can conclude that the part of the information is reliable and the basis of knowledge is reliable.
a. Farther away you get from the source the harder it is to get the warrant. Remember, the simplest way to get a warrant is when the officer sees the crime
4. remember, a strong basis of knowledge may bolster a WEAK veracity claim (think informant is bolstered by police work/observation. It bolsters the reliability of an informant!)
v. Fellow Officer Rule
1. one officer is allowed to rely upon information coming from another officer, which prompts the officer to act.
2. did the police have the right to come in right before and told their information to a judge—would It have been sufficient to satisfy the test? If so, then yes, PC exists.
vi. Informant Privilege
1. the police officer is not required to reveal the name of the informant at the hearing, but if the defendant can raise the issue if the informant exists—it will grant him a Dardan hearing. The judge himself brings in the informant for an in camera inspection which is sealed. Identity of the informant is still confidential
vii. Case Law
1. Aguilar v. Texas, 374
a. The warrant was void b/c it did not provide any basis for the determination that probable cause existed
i. Magistrate doesn’t know how the informant got the information (hearsay, observation, gossip).
b. No affirmative allegation that the affiant or the affiant’s unidentified source spoke with personal knowledge of the matters contained within
i. The informant also has the option of swearing to these statements before the judge. This oath/affirmation
c. Affidavit did not indicate any sources for the affiant’s belief and did not set forth any other sufficient basis upon which a finding of probable cause could be made.
d. Magistrate cannot act as a rubber stamp for the police—the judge must make the conclusion that there was probable cause—judge cannot rely on the conclusions of the officers!
2. Draper v. United States, 377
a. Paid informant’s tip in regard to drug activity. Arrest was made w/o a warrant
b. The Court found there was probable cause b/c the informant was known and the agent was able to independently verify ever facet of the tip (i.e. clothing, and a bag carried by the informant).
c. Probably cause was established at the point that the officer corroborated the informant.
d. Must confirm the hearsay is reliable!
e. Trusted the informant here b/c:
i. It was so detaile
i. Any place that the evidence could be.
c. Sneak and Peek
i. Govt. can go in and look around
d. Video warrants
i. They can go in and install a camera or stereo recorder
ii. You need SUPER probable cause and no other way to get the information
e. Execution of Warrants
i. Must be w/i 10 days of the issuance (NYS)
ii. Knock and announce warrants
1. there are times and places where this is not appropriate!
2. must demonstrate that the officers would be in danger by announcement or that evidence would be destroyed
iii. must be issued during the daytime
iv. minimum seizure of an individual to protect the safety of the police officers
v. you may use trickery to get into a place to be searched with a no knock warrant—cannot do this with a knock and announce!
f. Case Law
1. anticipatory warrant – anticipating where the evidence will be
2. cannot give a John Doe warrant; if the informant is going to sign the warrant, they have to sign their name.
3. Removal of officer discretion regarding what place to search! Same goes for the inside. w/o this removal the warrant’s particularity is not sufficient.
4. when they come in they can freeze the scene.
IV. Arrest, Search Incident to Lawful Arrest
a. Arrest is a seizure under the 4th amendment
i. Must be a deprivation of liberty!
ii. Subjecting the person to the control and will of the officer
iii. Not necessary that there be a declaration of the arrest
iv. Reasonable person, innocent of any wrong doing, standard. What would they think?
v. 2 Categories:
1. bright line where a warrant is NOT needed
2. where the reasonableness clause determines whether the warrant is necessary
vi. cannot simply enter a house with an arrest warrant—must have reason to believe that they are there and you probably need probable cause to know they are there!
c. Three Types of Police/Person Encounters [each level the govt. permissible activity may vary. Based on the level of information that they possess!