Select Page

Criminal Procedure
University of Denver School of Law
McDaniel-Miccio, Rabbi Kris

I. 4th A and Deprivation of Liberty

A. 4th A – 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.

B. 4th A Req of Probable Cause Exceptions:

1. Destruction of Evidence

2. Threat to Public Safety

3. Hot Pursuit

4. Terry Stop

5. Terry Frisk

6. Auto exception

7. SIA

8. Inventory

C. Overview

1. 2 Prongs-

a) Proscribes unreasonable search and seizure

b) Warrant requirements

2. all unreasonable s&s and those conducted w/o warrant are per se invalid under 4th A, subject to a few specific exceptions

D. When does 4th A Apply? 2 CONDITIONS

1. govt conduct (Jacobesen)

a) private individual acting at direction of govt agent or policy

b) 2 Factors:

(1) degree of govt encouragement, knowledge and acquiescence w regard to private conduct

(2) purpose underlying private part action (their own or gov objective)

2. search –

a) 2 Prongs: Katz

(1) citizen manifested a subjective expectation of privacy and

(2) the expectation is one that society accepts as reasonable (Greenwood)

E. Predicate:

1. once 4th A applies, police must have cause before they conduct search or seizure

2. the greater the invasion of privacy, the more cause must be demonstrated

3. sliding scale

F. Seizure (“stop”) Req

1. Predicate for Terry Stop (Investigative Stop):


2. Test:

a) objective – reasonable person believe they are not free to leave

3. Factors:

a) totality of circumstances

b) physical force, show of authority, restrained liberty, language / tone of voice

c) buses are not a per se coercive environment (Drayton)

4. Actual Seizure Requirements:

a) actual application of force

b) OR submission to authority / command

c) (Hodari – no seizure where police have not yet caught the subject or placed any physical restraint on him, and fleeing from them = no submission; evidence seized was not subject to ER bc no illegal seizure)

5. Break in Seizure

a) in flight, or break form physical force

b) no detention, starts all over again

6. Advising of Right To Refuse Consent

a) not required, does not = seizure

b) no seizure even though passenger was not advised of his right to refuse consent

c) no search bc there were no threats, intimidation, show of force, and no blocked exits

d) (Drayton)

7. Cases:

a) CA v Hodari – (1991) 4-5 youths huddled around car, saw police and ran, H saw officer following him and dropped rock of crack; no seizure occurred when H dropped drugs

b) Us v Drayton – (SC, 2002) 3 officers boarded bus, asked them if can frisk him, yes, found drugs, asked to check Drayton next and he said yes, found cocaine on Drayton; D was not seized and gave voluntary consent

G. Sliding Scale of Suspicion

1. Random Stop

a) Predicate

(1) reasonable suspicion to believe a traffic offense has occurred

(2) notion that police can conduct ‘routine’ stops, wo any cause, to check driver license rejected (14th A violation)

b) Q’g that accompanies such stops:

(1) requests for license and registration (and field comp check of driver and vehicle) generally not “investigatory and not req further justification)

c) Rationale:

(1) little contribution to highway safety

(2) best way to enforce regulations is through observed violations

(3) state int not great enough / not sufficiently productive to = reasonable law enforcement practice under 4th A

d) Cases:

(1) Delaware v Prouse – (SC 1979): patrol man stopped P, smelled Mj walking to care, seized MJ in plain view on floor, absent reasonable suspicion that motorist is unlicensed or car not registered, stopping auto and detaining driver is unreasonable under 14th A

2. Pervasive Road Block – lowest level of intervention, NOT a 4th A Detention

a) Rule for permissible stop:

(1) written mandate maintained by police

(2) pattern – cannot be left to discretion then it become arbitrary and const offensive

(3) valid purpose – sobriety check

b) Rule for stop and inquire

(1) only for purposes of safety (ie car insurance)

(2) cannot look for specific crimes wo particularized suspicion

(a) lowest level of intervention (do not need suspicion)

(b) need written policy

(c) pattern

(3) Administrative Search Rationale Exception-

(a) applied in a wide range of contexts to dispense w pre-req for individualized suspicion

(b) fixed sobriety check points


a) Pat down:

(1) new level of justification for stop and frisk –

(a) no warrant (public v private space),

(b) predicate dropped from probable cause, higher than rascaf – RASPAD

(2) weigh govt int in conducting stops and frisks against interference w individual liberty

b) Rascaf 1st –> seizure / detention

(1) officer must be prepared to articulate the specific facts giving rise to reasonable suspicion that criminal activity may have been afoot

(2) can ask for identification (Hiibel)

c) Raspad 2nd –> frisk

(1) additional step of patting down is further intrusion and req’s additional justification (Terry)

(2) restricted to what is necessary to discover weapons

(3) Rationale

(a) in the course of investigating unusual conduct, police entitled to protection of himself and others in attempt to discover weapons that might be used against him

d) Plain Feel / probable cause 3d -> Reach into pockets or hidden areas

(1) only if pat down reveals likely presence of weapon

(2) must be immediately apparent – plain feel

(3) probable cause

(4) Rationale:

(a) exigency

(b) impractical to demand a warrant

(c) street stops have implicit, immediate need

e) Flight From Police

(1) unprovoked flight from police in high crime area

(2) or deliberately furtive actions

(3) indicia of mens rea + specific knowledge on part of police officer to suspect crime

(4) can be a factor in probable cause

(5) (Peters, in Sibron v NY)

f) Anonymous Tips

(1) totality of the circumstances approach

(2) tip itself inadequate to justify police action

(a) no basis for crediting either a caller’s veracity or the accuracy of predictions

police corroboration reqd to est sufficient indicia of reliability to constitute reasonable suspicion and permit an investigative stop (AL