Criminal Procedure
4th amendment
SEARCH AND SEIZURE
I. 4th Amendment:
A. “The right of the people to be secure in their homes, persons, 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 and things to be seized.”
1. 4th provides that people should be free in their persons from unreasonable search and seizures
II. SEArch & Seizure: who is being searched, where is the search and what is to be seized
A. Search is trespassory invasion of a person’s reasonable expectation of privacy
1. reasonableness is an objective standard à anybody in a similar/same situation would believe that they had an expectation of privacy (but expectation of privacy is a subjective)
2. full body search is allowed if pursuant to lawful custodial arrest
B. Seizure is substantial interference over a thing or person by the government
a. Seizure Occurs when a reasonable person would believe that s/he is not free to leave – “would a reasonable person in suspect’s situation feel free to leave or decline?”
a. it is not enough to show that officer told her to stop, rather requires a “physical application of force” by officer or a “submission” to officer’s show of force
b. for an officer to stop them, officer needs “reasonable suspicion” to stop them
c. detain = seize = stop
b. Reasonableness of Seizures:
a. Arrest requires PC (sometimes a warrant)
b. Seizure of property (movable stuff) for duration longer than allowed by Terry (20 minutes) requires probable cause but no warrant
III. Analysis OF SEARCH & SEIZURE PROBLEM:
A. Was there Search or Seizure?
1. Yes, then was there a SW?
a. Yes SW: then was it supported by PC? – Was there any probs w/ Issuance or Execution?
b. No SW: then was there lawful Exception?
i. Yes, analyze exceptions
ii. No Lawful Exception, then it was an Unlawful Search and Seizure à so ask – Should Evidence be Suppressed?
iii. state has burden to justify search w/o a warrant
B. Does Complainant have Standing to Challenge the Search or Seizure?
1. Was there reasonable expectation of privacy?
C. If Evidence was Improperly Admitted, should there be a Reversal on Appeal?
1. Harmless Error Test
IV. For a Lawful Search and Seizure in order to obtain SW, Must have 1 to 3 –
A. Probable Cause Test:
1. Totality of Circumstances is substantial basis or fair probability that search will turn up evidence of crime
a. IL v. Gates: not one factor is determinative for PC
i. when there is tip from a CI, then there must be “Corroborating Info”
ii. (however, if it is an anonymous informant, higher standard so need more info)
b. Reasonable Suspicion:
i. more tha
nock and announce presence before attempting forcible entry
a. Unless there’s Exigent Circumstances:
i. Hot Pursuit: 2 Requirements
(1) pursuit must be immediate, meaning right after crime was committed à see robber run
(2) must be continuous à c/n lose sight of the robber
i.e. can chase into house b/c lawfully there
ii. Destruction of Evidence: i.e. suspect has cocaine so do not knock b/c if you knock, then suspect can destroy the cocaine – case by case basis
iii. Escape: if suspect may flee
iv. Risk of danger: i.e. if search and seizure for rifle then there’s risk of danger that suspect may use rifle
3. Things that May Be Seized:
a. Articles Stated in Warrant
b. Plain View doctrine
4. Search of Persons on the Premises: (Ybarra)
a. Can’t search anyone on premises not in SW unless facts to believe contraband or weapon
b. Persons NOT named in SW may not be searched b/c of presence in area
i. can Detain and Handcuff anyone on premises if articulable suspicion of criminal activity
c. Must have reasonable suspicion to search unnamed persons
Reasonable suspicion = conduct, furtive glances, contraband or weapon
