Part I: Arrest, Search and Seizure
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. (4th Amendment to the US Constitution)
I. Protected Areas and Interests
A. QUESTION: WAS THERE A SEARCH?
i. Originally conceived as protecting AREAS; was there a penetration of a specific space.
1. Olmstead and Goldman: “surveillance without any trespass [. . .] falls outside the ambit of the Constitution.”
ii. Katz v. US changed this, changing focus to PEOPLE, specifically, their objectively reasonable expectation of privacy.
1. NEW STANDARD: a protected area is one in which there is an objectively reasonable expectation of privacy.
2. Facts: put bug on outside of phone booth; no search.
a. Though reasonableness is normally for the Jury to determine, the motion’s judge determines admissibility.
iii. Kyllo v. US (2001): thermal imaging technology used to detect high intensity lights used for growing weed in house an search; it infringes on the home.
1. Scalia Majority – (bright line rule) – infringes on the home, thus is a search. The home is the most protected space – any sense enhancing technology used to gather evidence inside the home is a search, unless it could be obtained through non-enhanced means.
2. Dissent – As thermal imaging technology becomes more common, then the REP will be diminished; furthermore, thermal imaging technology only detects heat coming off the wall – no intrusion into the home.
iv. California v. Greenwood(1988): police searched trash picked up by garbage collector; found drugs.
1. “having deposited their garbage in an area particularly suited for public inspection [. . .], respondents could have had no reasonable expectation of privacy. . .”
2. Smith v. Maryland (1979): no REP in numbers dialed on telephone; he voluntarily conveys those numbers to a third party (telephone company).
3. California v. Ciraolo (1986): no REP in fenced in Backyard – anybody can fly over and look in?
v. Other case law:
1. Curtilage vs. Open Field
a. Curtilage is protected
i. Curtilage is the enclosed area of land around a dwelling; distinct from the dwelling by virtue of lacking a roof, but distinct from the area outside the enclosure in that it is enclosed within a wall or barrier of some sort is protected
b. Open fields are not protected. Oliver
2. Warden v. Hayden: overturned Boyd rule, which had held that only instrumentalities or fruits of a crime could be confiscated.
a. Boyd rule had been very property oriented.
3. Andresen v. Maryland: no violation of the fourth amendment when, pursuant to a warrant, police seized Andresen’s personal papers, in which he detailed his criminal exploits.
a. Court only really addresses the fifth amendment: held that fifth amendment self incrimination clause does not bar the introduction of personal papers that were lawfully seized.
b. Andresen was not subjected to the “cruel trilemma of self-accusation, perjury, or contempt,” which is the touchstone of a Fifth Amendment violation.
II. Probable Cause – Challenging the Sufficiency of PC in a warrant
A. Aguilar – Spinelli TWO PRONGED TEST
i. A finding of probable cause by a magistrate must be on an Affidavit providing:
1. The reliability/of the source
a. Reliability of past information provided
b. Good citizen; no criminal record
c. Draper: Informant had predicted what the suspect would be wearing days in advance. This satisfies reliability
2. Circumstances supporting the conclusion (how does he know?)
ii. Spinelli v. United States (1969): Informant’s tip that Spinelli had been using phones for illegal gambling is not enough to support a finding of Probable cause if (1) the tip does not state reasons why the informant is reliable; and (2) does not include specifics regarding the facts known by the informant.
B. Illinois v. Gates (1983) – Overturned the Aguilar- Spinelli Two Prong Test for Totality of the Circumstances approach:
i. Facts: letter to cops describes scheme of going to Florida for drug runs’ actual mode differs from informant’s description; pretty close, though.
ii. New test: Given all the circumstances set forth in the affidavit, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, is there a FAIR PROBABILITY that contraband or evidence of a crime will be found in a particular place.
1. A reviewing court will only attempt to determine if the reviewing magistrate had a SUBSTANTIAL BASIS for concluding that probable cause existed.
C. Distinguish Probable cause for an Arrest and Probable Cause for a Search:
i. Arrest: substantial probability that a crime has been committed ant that the person to be arrested committed it
ii. Search: substantial probability that certain items are fruits, instrumentalities or evidence of crime and that these items are presently to be found at a certain place.
D. United States v. Grubbs: Anticipatory warrants are “no different in principal from ordinary warrants.”
i. Magistrate must make three determinations:
1. It is NOW PROBABLE that
2. Contraband, evidence of a crime , or a fugitive WILL BE on the described premises
3. WHEN the warrant is executed.
ii. If the warrant is conditional, additional two prong test for probability (determination 1/2, above):
1. Prong 1: if the triggering event occurs, there is a fair probability that contraband or evidence will be found in a particular place
when executing a warrant.
1. Richards v. Wisconsin: “in order to justify a no-knock entry, police must have REASONABLE SUSPICIAN that knocking and announcing, under the particular circumstances, would either:
a. Be dangerous of futile; or
b. Would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence
2. United States v. Banks: attempted to answer Q of how long police should have to wait to enter.
a. Normally: police may enter when it reasonably appeared to the police that an occupant has had time to get to the door
b. Exigency: once the exigency has matured… (whatever that means). Two points clear: (1) time is NOT how long it would take to get to the door; and (2) the time it takes varies with the exigency that is claimed.
iii. Searches of Persons on the Premises:
1. Ybarra v. Illinois: A warrant to search the premises of a bar does not give the police a blank check to search all the individuals on the premises.
a. RELATED ISSUE: Prosecution argued that the search of the people in the bar was a Terry Stop and Frisk. However, there were not facts justifying a finding of Reasonable suspicion as Terry requires, so no dice.
2. Officer Safety Rationale? Los Angeles County v. Rettele: Police forced white couple to stand nude while the police searched for weapons, even though warrant was for black individuals.
3. Michigan v. Summers: Officers detained the occupant of a house they had a valid warrant to search. They first encountered the occupant of the house on his steps and he granted the officers entry to the house. In holding the detention constitutional, the officers gave three rationales.
a. Prevent the destruction of evidence
b. Prevent harm to the officers
i. Muehler v. Mena – upheld the handcuffing of occupants of a home for 2-3 hour search for deadly weapons, where gang activity was expected
c. Facilitate the orderly completion of the search.
iv. Plain View Exception: Coolidge v. New Hampshire held that officers may seize items not named in the warrant “where it is immediately apparent that they have evidence before them” and the discovery is inadvertent
1. Horton v. California – ELIMINATED THE INADVERTANCE REQUIREMENT ON TWO BASES:
a. Evenhanded law enforcement is best served by objective standards.
b. Warrant requirements already prevents the police from conducting “general searches.”