Criminal Procedure: Pre-Trial
Professor Pierson
Spring 2014
Arrest, Search, and Seizure
4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizure, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, particularly describing the place to be searched and persons or things to be seized
· For the search to be reasonable under the 4th Amendment, there has to be a warrant unless one of the exceptions exists
I. The Exclusionary Rule: evidence obtained in violation of the 4th Amendment is ordinarily inadmissible in a criminal trial
a. SCOTUS has often indicated that a primary purpose of this rule is to deter the police and as stated in Mapp: to deter – to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it
b. It’s the last step in the decision tree – have to ask yourself “what do we do with this?”
c. Timeline of the Exclusionary Rule:
i. United States v. Weeks (1914): exclusionary rule applies to the feds under 4th Am
ii. Wolf v. Colorado (1949): 4th Amendment not applied to states under Due Process Clause
iii. Mapp v. Ohio (1961): overruled Wolf; 4th Amendment applies to the states
iv. United States v. Leon (1984): good faith exclusion to the exclusionary rule
d. Two options if warrantless search/seizure:
i. Exclude evidence
1. Problems with this option is that guilty people go free and that reliable evidence is excluded despite the size of the crime
ii. § 1983 action for civil damages because 4th Amendment rights were violated
1. Tough cases to win because plaintiff in this type of action is the criminal defendant so the plaintiff’s credibility is diminished
a. Plaintiff most often going to have an extensive criminal record and be less sophisticated or articulate than most plaintiffs
2. Damages are measured by the violation of constitutional rights and are determined in equitable ways, which is hard to do with a search and seizure because you need to have tangible damages in order to bring the case
a. The violation of privacy is considered intangible damages
e. Exceptions to the Exclusionary Rule
i. Case-in-Chief of government: most defendants with search issues don’t take the stand so there’s no cross or re-direct of the search
ii. Illegally seized information can be presented at the grand jury in order to get an indictment
iii. Good faith exception (see Leon and Herring)
iv. Inevitable Discovery
v. Independent Source
f. Mapp v. Ohio (overruled Weeks)
i. Facts: 3 officers went to P’s home based on evidence of her participation in a bombing and P denied them entrance. 3 hours later the police sought entrance again and had 4 more officers with them; no answer when they knocked so they forcibly opened a few doors to the house and entered. Cops didn’t let her attorney in and didn’t let her talk to her attorney. Mapp got the “warrant” from the cops and put it in her bra, but officers recovered the warrant and arrested her after she became belligerent. Cops found obscene materials and she was ultimately convicted of their possession.
1. Pierson believes the cops engaged in egregious behavior by retrieving the warrant
ii. Issue: whether the exclusionary rule applies to the states
iii. Holding: Exclusionary rule applies to evidence obtained in violation of the 4th Amendment’s search and seizure clause in all State prosecutions
1. Placed the requirement of excluding illegally obtained evidence from court at all levels on the government
2. 4th Amendment only requires probable cause, which is a low threshold, but it doesn’t matter if the cops find evidence of something else so long as they have a legitimate basis for being inside the home
iv. Rule: all evidence obtained by search and seizure in violation of the Constitution is, by the 4th Amendment, inadmissible in a state court
v. “Silver Platter” Doctrine: A federal prosecutor may make no use of illegally obtained evidence, but a State prosecutor across the street may, although he’s supposedly operating under the enforceable provisions of the same Amendment
vi. Dissent:
1. Half the States still adhere to common law non-exclusionary rule
2. Main concern not desirability of the rule, but whether the States should be forced to follow it
a. This Court should continue to forbear from fettering the States with an adamant rule which may embarrass them in coping with their own peculiar problems in criminal law enforcement
3. DPC is flexible and didn’t want to impose the exclusionary rule on the States
a. The dissenters federalism concern was undercut by the “Silver Platter” doctrine
g. United States v. Leon
i. Facts: police acted in reasonable reliance and magistrate gave them the warrant without probable cause in a big drug investigation case with lots of corroboration.
1. Leon filed motion to suppress and has the burden of proof; government put the cops on the stand
2. Leon challenged the probable cause
ii. Issue: whether the evidence obtained under a search warrant issued by a magistrate, but found to be without proper probable cause, shall be excluded
iii. Holding: No. Only when a warrant is grounded upon an affidavit knowingly or recklessly false has SCOTUS suppressed the evidence as a result
1. Good faith reliance on warrant doesn’t justify exclusion and allows evidence to be admitted
a. An officer acting in good faith and within the scope of a search warrant should not be subjected to 4th Amendment constitutional violations
i. Officer’s reliance must be objectively reasonable
2. Exclusionary rule is meant to deter police, not punish magistrates and judges for their mistakes on the warrants
a. Suppression remains the appropriate remedy where the magistrate was misled by information in an affidavit that the affiant knew was false or would’ve known was false except for his reckless disregard for the truth
iv. Dissent: 4th Amendment must be read to condemn not only the initial unconstitutional invasion of privacy, but also the subsequent use of any illegally obtained evidence
1. Exclusionary rule was part and parcel of the 4th Amendment’s limitation upon governmental encroachment of individual privacy
2. Chief deterrent of this rule is its tendency to promote institutional compliance with the 4th Amendment à good faith exception will encourage police to provide only the bare minimum necessary for securing a search warrant
v. Massachusetts v. Sheppard was decided as a companion case to Leon
1. Facts: the face of the warrant said “controlled substance” but the search and probable cause were for evidence of a homicide
a. Officer went to magistrate and was told the magistrate would make the necessary changes to the warrant, but he didn’t fix them all so the warrant was still for controlled substances
2. SCOTUS said the execution was in good faith and the cop relied on the issuing judge even though the warrant was facially invalid
3. Shows how broad the good faith exception is
a. Basically just having a warrant immunizes the officers even if the information contained on the warrant is incorrect
h. Herring v. United States
i. Facts: Petitioner went to ask about truck that had been impounded, and the clerk performed routine outstanding warrants check. Petitioner had warrant in neighboring county so the deputies performed search of vehicle and discovered methamphetamines and firearms; within minutes of initially reporting the warrant, the county officials called the officers back and told them the warrant as a clerical error and petitioner didn’t have an outstanding warrant
1. Petitioner had already been arrested for possession before the call came in
2. At trial he challenged the evidence’s admissibility claiming it was an unreasonable search because of the clerical mistake
a. Trial court denied motion to suppress and 11th Circuit affirmed by explaining that the exclusionary rule doesn’t apply where arresting officers were innocent of wrongdoing and the invalid search was result of negligence
ii. Issue: when police errors lead to an unlawful search, and the arresting officers are innocent of wrongdoing, does the 4th Amendment require application of the exclusionary rule?
1. Holding: No. When arresting officers are innocent of wrongdoing, and the error resulting in an unlawful search is the result of isolated negligence removed from the search itself, application of the exclusionary rule is inappropriate as it would likely have little effect preventing future unlawful searches
iii. Evidence only going to be excluded if there is deliberate error and the costs aren’t too great
1. Exclusionary rule should only be applied when the deterrent effect outweighs the social costs of losing important evidence necessary to convict a cri
s a search
iii. NEW TEST: physical trespass on personal property + 2-part Katz test
iv. Sotomayor’s concurrence: doesn’t want to use physical trespass; wants to use Katz test
1. Says even under Katz, there’s a search in this case because it’s not reasonable for someone to follow a person daily for 4 weeks to obtain the same information that a GPS provides
a. Focused on the use of GPS as constituting a search
v. Alito’s concurrence: wants it left to the legislature and no test
1. Says Katz is hard to apply with technology and focuses on same issue as Sotomayor in regard to GPS’s usage
e. HYPO using Katz and Jones
i. A large acre of land, even with a fence, and a no trespassing sign, but the cops come over the fence
1. Well-settled that it’s not a search under the 4th Amendment because under Katz the fact that it’s a large acre makes it unreasonable to think that it remains private under the “open fields” doctrine
a. In Jardines, Scalia attempts to reconcile the conflict between the two in ingenuous way by stating that “open fields” doesn’t equal personal property and doesn’t fit the list of what’s protected by the 4th Amendment
i. Scalia’s language about trespass (p. 121, 3rd para.) he addresses the issue and says Katz and “open fields” still applies
f. Florida v. Jardines
i. Facts: Cops go to the front door with a drug dog who alerts the officers to drugs so they go get a warrant
ii. Holding: Front porch of home is part of home itself under 4th Amendment
1. Typically, ordinary citizens are invited to enter onto the porch, either explicitly or implicitly, to communicate with occupants. Officers cannot go beyond the scope of that invitation
2. Entering porch for the purposes of conducting search requires broader license than the one commonly given to general public and without such license, officers conducted unlawful search in violation of the 4th Amendment
iii. Scalia: “curtilage” of the home = protected by the 4th Amendment because the home is the most protected thing under the 4th Am
1. Curtilage = area attached, joined, or immediately associated with the home
a. Gets tricky à if you live on 2 acres, the entire 2 acres is not curtilage of the home
2. Drug dog is considered form of technology in this case and how it’s distinguished from the actions of normal people
a. Had to use Katz to find there to be search and physical trespass is what a normal person would do so Scalia’s reasoning gets blurred
i. His holding doesn’t make sense if the physical trespass test is used to find a search so he had to use Katz
iv. Concurrence (Kagan, Soto, Ginsburg): wanted to decide under Katz – relied on cases cited in Jones majority
1. People have heightened expectation of privacy in their homes and areas immediately surrounding their homes and in this case, the police violated that expectation
2. Because police used device (drug sniffing dog) not in public use to learn details about the home, Kagan argued illegal search had been conducted
v. Dissent (Alito): focused on Katz and argued that cop didn’t do anything that a citizen wouldn’t have done, but that cop had better drug dog
1. Thought majority’s interpretation of public license to approach person’s front door too narrow and should extend to officers collecting evidence against an occupant
a. Argued that CL trespass doesn’t limit public license to particular category of visitors approaching the door for specific purpose
2. Thinks technology limits the applicability of Katz + physical trespass as the test
III. Probable Cause
