Con Crim Pro I
Grossman
Fall 2011
I. Does the 4th amendment apply?
a. Was it a search or a seizure?
i. Search
1. If its not a search, you don’t need PC
2. Katz v. US
a. 4th protects people, not places
i. What is knowingly exposed to the public isn’t protected, but what he seeks to preserve as private is
b. It’s a search if there is a manifestation of privacy (subjective of D) AND expectation of privacy is reasonable (objective)
3. CA v. Greenwood
a. Do you have an expectation of privacy in your trash?
i. NO, when you give it up you no longer have an expectation of privacy in it – notion of abandonment
ii. Abandonment must be a volitional act
4. State v. Boone
a. Boone was evicted – deputy comes to return apartment to landlord and finds checks and credit cards not in D name
i. This is a search because of state action when deputy opened the dresser drawers to seize the cards
5. Oliver v. US – not a search in an open field – not a person, paper, house or effect – society won’t recognize privacy of open fields as reasonable
6. US v. Dunn – what is “curtilage”?
a. Consider: proximity to home; within an enclosure around home; nature of uses to which area is put; steps taken to keep private
7. Bond v. US – manipulating contents of luggage makes it a search
8. Kyllo v. US – sensory devices: the more sophisticated and harder for general public to get the greater likelihood it’s a search – also consider where search is taking place (ex. Home, more privacy there)
9. Illinois v. Caballes – dog sniff is not a search
10. US v. Knotts/US v. Karo – no expectation of privacy in travel, but once beeper is in home it becomes a search because of privacy expectation
ii. Seizure – must be based on reasonable suspicion that criminal activity is afoot (or a relatively serious crime in the past)
1. Defined – a reasonable person feels freedom is restrained (limited detention) – add “in a significant way” to be a full blown seizure
a. Factors to determine level of seizure
i. How much force was used to effect seizure
ii. Was that much force needed to effect the seizure
iii. How much time was D detained
iv. Where was D detained
v. Was D moved from one place to another
vi. Were there reasons for the detention other than the police investigation
vii. Were words of command used by the police to detain D
viii. Did they tell D he was free to leave
ix. During the detention was D interrogated or subjected to intrusive police techniques or tests
x. Did the police use the least intrusive means that were reasonable under the circumstances
2. Was there a show of authority to which D yielded or was physical force used?
3. Frisk/Terry stop – must be based on showing of reasonable suspicion that D is armed or dangerous
a. Did D do or say something to indicate he was armed
b. Did D do anything to dispel the initial suspicion
c. Was the crime itself the kind likely to be committed by one who is armed
d. Was the frisk limited to just looking for weapons (articulable suspicion) or full-blown (PC)
e. Extent and Scope of Terry type seizure
i. Look at duration – can be full blown seizure if it escalates
1. Use of force can also escalate
ii. One exception is if D tries to run, if cop needs to use element of force to effect Terry detention in proper way
f. US v. Robinson
i. 2 purposes behind search incident to arrest: (1) make sure D isn’t armed; (2) seize any evidence D could destroy
ii. you don’t need further PC to search incident to arrest because its reasonable in all circumstances where they make an arrest
g. Terry v. Ohio
i. For Terry stop, need reasonable, articulable suspicion at time when D is seized
ii. To pat down, you need 2nd articulable suspicion D is armed
h. FL v. Bostick –test is if a reasonable person feels free to terminate the encounter
i. FL v. JL – tip given that guy had gun, cops found D and searched him and found gun
i. Ct said search was unreasonable because cops had to do their own observation to give them required suspicion
j. US v. Hensley – Terry applies to past crimes as well – look at the amount of time after the crime was committed
k. Illinois v. Wardlow – refusal to cooperate doesn’t equal articulable suspicion – flight isn’t always grounds for stop but can be
l. Minnesota v. Dickerson – manipulating object after knowing it wasn’t a weapon goes beyond Terry stop so 4th implicated
iii. Always consider:
1. Did the initial limited detention escalate into a full-blown seizure
2. Did the initial pat-down become a full blown search?
b. If not, 4th doesn’t apply so we ask, does D have standing to challenge the search or seizure? If not, 4th is inapplicable to protect D.
i. Standing – D inividual rights have to be intruded upon in some manner
ii. Unless you are the party aggrieved you can’t challenge because no standing
iii. Passenger in a car may have an expectation of privacy; but not always
1. Look for strong connection with driver or owner of car
iv. Test: does person challenging search have reasonable expectation of privacy in area being searched?
v. Jones v. US
1. 2 reasons why D has automatic standing: (1) legitimately on premises; (2) charged with a possessory crime
vi. Simmons v. US – D has right to make statements during motion to suppress without that evidence being used against him at trial
vii. Rakas v. Illinois – current approach to standing
1. Standing depends on whether challenge search/seizure violates rights of person challenging
viii. Rawlings v. KY – claiming ownership doesn’t confer standing
ix. Brendlin v. CA – when cop stops a car all occupants are seized so occupants can challenge seizure
x. Minnesota v. Olson – person has expectation of privacy in home as a guest
II. Has 4th been complied with? (you need both A and B to satisfy 4th)
a. Was there PC or PC substitute?
i. PC – must have before you search or seize
1. Reliability factors
a. Oath taker (deponent/affiant) – automatically reliable
b. Past relationship and prior dealings with deponent (usually here deponent is cop)
c. Independent corroboration by one deemed reliable, but needs to be unusual or suspicious activity and helps if the info is not well-known
d. Declaration against penal interest (ex. D buys drugs and then becomes police informant)
e. Status of informant (if V or W, generally presumed reliable)
f. Is informant named or anonymous? (naming increases reliability)
g. Reputation of suspect (rep as drug dealer can be a factor)
2. Basis of knowledge factors
a. Sensory perception
b. Specificity of details that are suspicious and not generally known to the public
yone is given equal chance of being stopped
10. Consent
a. Schneckloth v. Bustamonte – consent is the absence of coercion
i. D doesn’t have to know he has the right to withhold, key is D has to show he was coerced into consenting to suppress
b. FL v. Jimeno – only justification for search is consent so that is what limits search – “yes you can look in my car” doesn’t mean “you can look in my briefcase in my car” for that you need second consent
c. Illinois v. Rodriguez – someone with close enough relationship to D, they can authorize search of that person (parent/child) – based on if its reasonable that the cop would believe person had authority to give consent to search
d. D doesn’t have to be told he has the right to withhold his consent!
c. Search Warrants
i. Illinois v. Gates
1. Totality of circumstances test created
a. You have to consider BOTH reliability and basis of knowledge, but you now combine them so a short fall in one area can be made up by another area
ii. Coolidge v. NH – you must be a neutral and detached magistrate to sign warrant
iii. Particularity requirements of 4th
1. Description of place to be searched
a. 2 times where we look at how particularized
i. when it makes clear what they cannot search, described with reasonableness
ii. execution of search – did they go beyond where allowed
1. MD v. Garrison – 2 apartments on 3rd floor, one belonged to McWebb, one to Garrison even though warrant only allowed search of McWebb apartment – not particularized which apartment in the warrant but the cops acted reasonably so they can use what was found in Garrison’s apartment
b. You need to particularly describe the items to be searched
i. Evidence of a crime requires lots of specifics
ii. First amendment protected items require great particularity
2. Ybarra v. Illinois
a. Warrant to search bartender and bar itself
b. Ct says no PC for patrons (as D was) – to distant from bartender
c. Key is to find the connection between the person searched and the target of the search
3. Michigan v. Summers – detaining D was less intrusive than the search of the home allowed by warrant
4. Intensity and duration
a. Police can’t look for items everywhere in premises
b. Police must stop when the find what they are looking for
iv. Staleness of warrant
1. Some jurisdictions require special authorization for night time searches
2. Sneak and peek warrant – continuing investigation into warehouse without tipping off bad guys, etc
3. State v. Peterson
a. Factors to determine if warrant is stale: character of crime; is item perishable or easily transferrable; location convenience or secure operational base; length of time
