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Criminal Procedure
UMKC School of Law
O'Brien, Sean D.

CRIMINAL PROCEDURE OUTLINE – OBRIEN
 
4TH AMENDMENT ISSUES
 
4TH AMENDMENT: SEARCH AND SEIZURE CONSTITUTING AN ARREST
Step 1: Was the Defendant taken into custody by law enforcement officers against his/her will? (Was there an application of physical force or a submission to a show of force?) (CA v. Hodari)
No arrest when:
P.O. yells stop
Approaches a person and attempts to make inquiry
If Yes then go to step 2
If no then no violation
 
Step 2: Did the Government have P/C to arrest?
P/C exists if the facts and circumstances within the officer’s knowledge are sufficient to warrant a prudent person to believe that the suspect had committed or was committing an offense. (Aguilar/Spinelli; Ohio v. Beck)
Public Arrests:
Police may arrest a person in public if there is P/C that a crime has been committed (U.S. v. Watson)
No breach of peace requirement (Atwater v. Lugo Vista)
Use of deadly force depends on reasonableness analysis—deadly fleeing felon ok (Tennessee v. Garner)
K9 is not deadly force
P.O. may arrest even if offense would not lead to jail time (i.e. misdemeanor) (Atwater)
Time Limitation
Must be a judicial determination of P/C as a prerequisite to extended restraint on liberty following a public arrest. (48 hours)
Doesn’t have to be adversarial proceeding. 
Authorities are split as to what happens when there is a violation
Suppress or don’t suppress
If yes go to step 3
If no arrest is invalid
 
Step 3: If arrest was in a home did the government have a warrant?
In home warrantless arrests are presumptively unreasonable (Payton v. NY)
An arrest warrant founded on P/C implicitly carries with it the authority to enter a dwelling in which the suspect lives, if there is reason to believe that the suspect is within. (Payton v. NY)
The porch constitutes a public place (U.S. v. Santana)
If have a warrant for D, may not enter the house of the third party without a warrant to find D (Steagald v. U.S.)
Knock and Announce Requirement: (U.S. v. Gervato)
No required if reasonably believe
Would be futile
Would lead to danger or destruction of evidence
If yes proceed to step 4
If no proceed to step 3a
 
Step 3a: Does an exception apply to home arrest warrant requirement?
Exigent Circumstances
P.O. may enter a home to arrest provided exigent circumstances exist (Payton v. NY)
Hot pursuit of a fleeing felon, need to prevent escape, risk of danger
If Yes arrest was valid
If no arrest is invalid
 
Step 4: Was the warrant proper (i.e. based on probable cause)?
If yes arrest was proper
If no go to step 2a
 
 
 
4TH AMENDMENT: SEARCH AND SEIZURE OF EVIDENCE
Step 1: Was the Search or seizure by a Government Agent?
If No then Search not challengeable under 4th amendment
If Yes go to step 2
 
Step 2: Did the Search violate the D’s Reasonable Expectation of Privacy?
4th amendment protects people and not places
A search or seizure results when an individual’s objective expectation of privacy is intruded upon by the state (Katz v. U.S.)
Recording words coming from a phone booth constitutes a search and seizure
No reasonable expectation of privacy in abandoned property (CA v. Greenwood: Garbage)
No reasonable expectation of privacy of something which could be seen from an aircraft lawfully above the premises (FL v. Riley)
No reasonable expectation of privacy in a VIN number on a car (NY v. Class)
Reasonable Expectation of privacy in personal effects—don’t have to assume that someone will manipulate your luggage (Bond v. U.S.)
Canine Searches:
Don’t constitute a search b/c only tells P.O. if there is contraband in luggage—no protectable privacy interest in contraband (U.S. v. Place)
Curtilage v. Open Field
No reasonable expectation of privacy in an open field (Oliver v. U.S.) (not in the 4th amendment)
Home—most reasonable expectation of privacy
Thermal Imaging violated D’s reasonable expectation of privacy in the home (Kyllo v. U.S.)
Search b/c technology not available to the general public
Electronic Surveillance:
Gas Chromotography—constitutes a search
Electronic Tracking Device
No search if just insert device—no info being covey

ette: A station house search of every item carried by a person who is lawfully in custody is permissible
Government interest in taking inventory and search more private
May search something after arrest that could have been searched at arrest (Edwards)
Knowles v. IA—no search incident to a lawful citation
When arrest/search takes place in the home:
May search incident to lawful arrest
Area in D’s immediate control (Chimel v. CA)
Area from which an attack might be launched (MD v. Buie)
Unless reasonable suspicion cannot go any further
Applies to dangerous felon cases
Where there is P/C to arrest police may seize premises until a warrant to search is obtained b/c there is less privacy interest when someone in jail (Segura v. U.S.)
Search of Car Incident to a Lawful Arrest: (Thornton v. U.S.)
Where there is P/C to make an arrest, so long as the arrestee is the sort of “recent occupant” of a vehicle, officers may search that vehicle incident to arrest
Search Incident to Incarceration (Do not need P/C or Contemporaneity but inventory must be an established procedure)
Reasonable Police Regulations, including inventory searches, administered in good faith satisfy the 4th amendment, even though less intrusive means (park and lock or third party release) were available (CO v. Bertine)
Can look for anything in the car—no limit (CO v. Bertine)
Automobile Search (CA v. Carney) (Must have 1. P/C but no contemporaneity required. Moreover, search limited to containers which might contain the evidence sought)
Mobile Home Constitutes an automobile—mobile and registration requirements (Carney)
Unless parked in a driveway (Coolidge v. NH)