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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. Terry Stop
2. Terry Frisk
3. auto exception
4. SIA
5. Inventory

C. Overview
1. 2 Prongs-
a) proscribes unreasonable search and seizure
b) warrant requirements
2. all unreasonable s&s and those conducted wo 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:
(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):
a) Rascaf
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 feeling from them = no submission; evidence seized was not subject to ER bc no illegal seizure)

5. Break in Seizure
a) ie 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 to look for signs of intoxication in motorists passing through does not violate 4/14 (MI Dept of State Police v Sitz)
(c) balance state interest, goal must be highway safety related, w degree of intrusion upon individual motorists who are stopped
(d) difference between traditional criminal search and administrative search is assessed at the level of individual search

(4) Program CANNOT primarily be motivated to detect general criminal wrongdoing
(a) ie uncovering illegal narcotics – Edmond
(b) if motivated by a general interest in crime control (v highway safety) then violative of 4th A
(c) Rationale – if do not draw line, 4th A would not prevent rampant intrusions in everyday life

c) Cases:
(1) MI Dept of State v Sitz (US, 1990): started check point program , had committee to determine procedures governing checkpoint pnts, site selection; 2 were detained, 2 arrested, 3rd drove through wo stopping and arrested; prog not violate 4th and 14th A’s

(2) City of Indianapolis v Edmond – began checkpoint for narcotics, used procedure, pattern, written, Edmond and Plamer both stopped and filed class action for them and future motorists; it did violated 4th A bc primary purpose was criminal wrong doing

3. Modicum of Suspicion/ Rascaf – moderate, small amount
a) Appearance / objecting to detention:

g) Un Reasonable Inferences
(1) inference that a person who talks to narcotics addicts are engaged in criminal traffic of narcotics is simply not sort of reasonable inference req’d to support an intrusion by police upon an individual’s personal security (Sibron)

h) Cases:
(1) Terry v OH (US, 1968) – officer was in plainclothes, saw men walking back and forth 5-6 times/person in front of store, thought they were casing it, followed them, 3 men total, patted them down, felt pistol, reached in and removed it, ordered into a store, patted others down, found 1 more gun; not unreasonable for police of seize persona and subject him for limited search when he has probable cause

(2) Sibron v NY (SC, 1968) – saw S talk to narcotics addicts, not hear convos, went inside to eat, told him to come outside, officer said ‘u know what I am after,’ S reached into pocket, but officer thrush his hand in and found heroin; evidence unlawfully obtained by officer.

(3) Peters – officer was at home, saw 2 men tiptoeing outside, not recognize them, they ran away when he came out of apt, he chased, found weapons in pat down and removed objects; for 4th A search was incident to lawful arrest

(4) AL v White (US, 199) – police had call saying white leaving apts at particular time, in car, w tail light broken, where she was going, would have cocaine in brown case, followed her, asked if they could look in car and she consented, found MJ and cocaine in purse; bc the tip was corroborated by evidence there was reliability to provide reasonable suspicion to investigatory stop

5. Scope of the Frisk
a) Automobile exception – lower privacy standard, considered public space
b) Search of Interior of Car / Wingspan Area
(1) if officer reason to believe that driver or occupant is armed and dangers (RASPAD) he can:
(a) frisk
(b) and conduct limited search of interior immediately wi subject’s control
(c) passenger compartment search
(d) containers in car
(e) permissible even where suspect is being held by police outside the car
(f) (MI v Long)
(2) Rationale:
(a) possibility suspect may break away or get weapons in the car after he is released (MI v Long)
c) Trunk
(1) probable cause
d) Plain Feel Doctrine + Frisk
(1) must be immediately recognized as contraband or weapon to seize during a frisk (Probable Cause)