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Criminal Procedure
University of Kentucky School of Law
Fortune, William H.

Fortune—Spring 2009

POLICE PRACTICES: Arrest, Search & Seizure

The Exclusionary Rule
· Definition—The exclusionary rule requires the suppression of evidence obtained in violation of the defendant’s constitutional rights; typically applied to evidence obtained in contravention of the 4th, 5th, 6th and 14th Amendments

· History of the Exclusionary Rule
o Weeks v. US (1914)—Held that D was entitled to the return of papers that were seized in a warrantless search of his home by a federal marshal, the effect being that the papers could not be used to prosecute the defendant.
§ Weeks came to stand for the application of the exclusionary rule in FEDERAL prosecutions
§ Note—If property had been taken illegally by a private citizen, then the initial wrongdoing was not committed by the government

o Wolf v. Colorado (1949)—Question of whether the 4th Amendment was applicable to the states; Court held that the 4th Amendment (but not the exclusionary remedy) is incorporated by the Due Process Clause of the 14th Amendment.
§ HOWEVER, states can choose to add the exclusionary rule if they want to (a few states like KY had already done so)
§ Held that the exclusionary remedy was NOT MANDATED in state prosecutions
§ Later overruled by Mapp

o Rochin v. CA (1952)—Stomach pumping case; “Shocked the conscience” of the court which led them to say that the states cannot profit from that activity (couldn’t use the result of the stomach pumping against D); offends concept of “ordered liberty”
§ Not a 4th Amendment case but a due process case

o Mapp v. Ohio (1960)—OVERRULED WOLF; Court held that the violation of a state defendant’s right against unreasonable search required the SAME REMEDY as was mandated in federal prosecutions—i.e. the suppression of evidence through the exclusionary rule
§ Established a WIDE SCOPE for the exclusionary rule
ú (1) NECESSARY REMEDY FOR THE INDIVIDUAL—This is the only effective method for the people whose rights have been infringed because other remedies are illusory
ú (2) DETER POLICE MISCONDUCT—Unlawful searches and seizures would be discouraged when the law enforcement community realized they could not use the evidence so obtained when the case went to court
ú (3) PRESERVE JUDICIAL INTEGRITY—Courts not soil their hands with tainted evidence; there is court action in the admission of bad evidence which makes the judicial branch an accomplice in an illegal act
§ Mapp made the exclusionary rule applicable to the states

· The Good Faith Exception
o US v. Leon (1984)—Established GOOD FAITH EXCEPTION to the exclusionary rule
§ RULE—When officers reasonably rely on a warrant issued by a detached and neutral magistrate, evidence that is obtained should be admissible in the prosecution’s case in chief
§ RATIONALE—The exclusionary rule cannot deter police in a case where they acted in good faith on a warrant issued by a judge
§ BALANCING TEST—Balances costs against benefits
ú Benefit—Ensure government agents follow rules
ú Costs—Loss of evidence
§ POTENTIAL PROBLEM—This decision acts as if deterrence is the ONLY rationale for the exclusionary rule
§ STANDING—Limited to case in which the prosecution seeks to use the fruits of an illegal search or seizure against the victim of police misconduct
§ WHAT DOES GOOD FAITH MEAN?—Objectively reasonable in believing that the warrant was based on probable cause; this would also mean non-negligible
ú (1) Knowing or reckless falsehoods in the affidavit
ú (2) A magistrate who doesn’t act like a neutral magistrate(becomes part of the prosecutorial scheme)
ú (3) “Barebones” affidavits—described by the court as one that is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”
ú (4) Facially deficient warrants—those warrants that fail to particularize the place to be searched or the things to be seized in such a manner that the executing officers couldn’t reasonably presume it to be valid
§ BRENNAN’S DISSENT—Argued that the adoption of the exclusionary rule in these situations would promote institutional complicate (better officer training, etc.); also, it would make judges pay more attention

· Process to Obtain a Warrant
o 1.) Complaint—police activity (writes affidavit to show probable cause for warrant)
o 2.) Review by judge (looks for probable cause)
o 3.) Issuance of warrant
o 4.) Police execute warrant and obtain evidence
o 5.) Judicial review of complaint and warrant
o 6.) Different judge admits/excludes evidence

· Applications of the Exclusionary Rule
o Hudson v. Michigan—Court held that evidence need not be excluded when police violate the “knock and announce” rule (5-4 decision)
§ KNOCK & ANNOUNCE RULE—Requires officers to wait 20-30 seconds after knocking and announcing their presence before they enter the home
§ RATIONALE—Court said that the exclusionary rule should be applied ONLY “where its deterrence benefits outweigh its substantial social costs”
§ Added that the knock and announce rule was meant to prevent violence, property damage, and impositions of privacy, not to prevent police from conducting a search for which they have a valid warrant; has nothing to do with the seizure of evidence
§ BALANCING TEST—Found that the social costs outweighed any possible deterrence benefits and that alternative measures such as civil suits and internal police discipline could adequate provide deterrence

· The “Dimensions” of the Exclusionary Rule

Protected Areas and Interests
· Herring v. US (DECIDED 1/15/09)—D was known to police and went to recover truck that was impounded. Officer called in to see if there were any warrants out for D and finds out there is in another county so he searches, finds drugs, and arrests him. After this takes place, clerk discovers there wasn’t really a warrant out for D.
o NEW RULE—5-4 decision; Exclusionary rule applies ONLY if the act of the police goes beyond mere negligence
o Rule is only applied to DELIBERATE, RECKLESS or A SYSTEMIC PATTERN of negligent conduct; this did not fall within those categories
§ Systemic negligence could occur if there was absolutely no training of police; a complete failure to instruct on these types of issues. This was not deemed systemic, just one occasion that it broke down
o DISSENT—argued that deterrence is not the only rationale (lost cause argument now) and that the rule would act as motivation for clerks and everyone to do things better next time)

· Right of Privacy
o The 4th Amendment by its terms protects people’s “persons, houses, papers and effects against unreasonable searches and seizures by the government
o Some cases fall outside the 4th Amendment but are included in the right to privacy
o HYPO—Your car is towed on a public street and you saw nothing that said you could not park there.
§ Has your property been seized? Yes; therefore we presume it is protected as an “effect”
§ By the government? Yes; the company was delegated authority by the government
§ Unreasonably? Need more information like if signs were actually posted or there was any notification?
§ R

er, a car’s interior is subject to 4th Amendment protection (NY v. Class)

o Effects (baggage)—Manipulation of a bag (squeezing it) was a search; a traveler’s personal luggage is clearly an effect protected by the 4th Amendment (Bond v. US)

o Private Citizens—If a citizen brings it to police, it is not a search; no exclusion of evidence

o Sensory Information
§ Natural senses—It is not a search for an officer, lawfully present at a certain place, to detect something by one of his natural senses (US v. Mankani); the result is ordinarily the same when common means of enhancing senses such as a flashlight or binoculars are used
§ Canine Nose—Temporary seizure of luggage at an airport so that it could be brought into contact with a drug doy was NOT a search; much less intrusive than a typical search because doesn’t require opening the luggage; information obtained is limited (US v. Place)
ú TRAFFIC STOP—Reaffirmed in IL v. Caballes and applied to a dog sniff of a vehicle during a traffic stop; found the 4th Amendment does not demand certainty of success to justify a search for evidence or contraband
ú ON-THE-SPOT CHEMICAL TEST—Additionally, an on-the-spot chemical test of a substance that had originally been in a package opening by private parties was not a search
§ Weapons detector—Typically not a search
§ Electronic tracking—Not a search but controversial; court held the use of the “beeper” that police attached to a container of chloroform to monitor who bought it did not constitute a 4th Amendment search (US v. Knotts);
§ Photographic magnification—Court held that aerial photography of a chemical company’s industrial complex was not a 4th Amendment search: “The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems” (Dow Chemical v. US)
§ Banking & credit card transactions—No reasonable expectation of privacy for 4th Amendment purposes because you voluntarily turn it over to third parties (US v. Miller)

(1) Was there a search? Is the 4th Amendment implicated at all?
(2) Is the interest protected against the government? Was there a violation of your reasonable/ legitimate expectation of privacy?
(3) Does the exclusionary rule apply?
-You can have a 4th Amendment violation and yet have the exclusionary rule not apply

“Probable Cause”
· Elements—Probable cause in search cases involves 4 ingredients:
o 1.) Nature of Crime
o 2.) Time
o 3.) Place to be searched
o 4.) Objects to be searched for

· What does probable cause mean? Varies according to the nature of the uncertainty
o If there is uncertainty as to whether any crime has been committed, a court might say that PC is lacking when facts are as consistent with innocence as with guilt
If, on the other hand, the issue is whether D is the perpetrator of a KNOWN CRIME then perhaps less