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Criminal Procedure
University of Oklahoma College of Law
Thai, Joseph


Professor Thai

Spring 2013

The Warrant Requirement

Generally, searches conducted without a warrant are unconstitutional unless they qualify under one of the six exceptions to the warrant requirement.

Four Requirements of a Search Warrant

1. Be based on probable cause

2. Be supported by oath or affirmation

3. Particularly describe what is to be searched or seized

4. Be issued by a neutral and detached magistrate

a. There must be presented to the magistrate an adequate showing of probable cause (either to search or arrest) supported by oath or affirmation. This is usually in the form of an affidavit from a police officer.

b. Probable Cause – quantity of facts and circumstances within the police officer’s knowledge that would warrant a reasonable person to conclude that the individual in question has committed a crime (in the case of an arrest) or that specific items related to criminal activity will be found at the particular place (in the case of a search).

c. May be Anticipatory – It is sufficient that there is reason to believe that seizable evidence will be found on the premises to be searched at a future date when the warrant will be executed; there need not be reason to believe that there is seizable material on the premises at the time the warrant is issued.

Demonstrating Probable Cause

1. In order to issue a warrant, the magistrate must determine whether there is a fair probability that a search will uncover evidence of a wrongdoing.

2. Standard of review for magistrate’s decision to issue warrant:

a. Deferential Review: Did the magistrate have a substantial basis for concluding that a search would uncover evidence of wrongdoing (Gates)

b. Justifications:

i. Deferential review encourages police to obtain warrants (no warrant = no deference)

ii. PC determinations are so act specific that de novo review would not really help guide lower courts and magistrates when deciding whether to issue a warrant

3. Two Tests:

a. Totality of the circumstances (Gates)

i. Veracity and basis of knowledge are closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place.

b. Spinelli v. US (US 1969-91): two part test for demonstrating PC

i. Basis of knowledge: Warrant must set forth the underlying circumstances necessary to enable the magistrate to judge the validity of the informer’s conclusion (i.e., how did the informant come by the reported information – personal observation, heard it from a friend, etc.)

ii. Veracity: There must be some reason to believe that the informant’s report is true

1. One way of establishing veracity is by averring that the informant previously supplied the police with truthful/accurate information.

a. Paid informants and anonymous informants are presumptively unreliable

b. Corroboration of innocent details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted justifies reliance on accuracy of information provided (Gates).

c. Identified citizen informants are presumptively reliable because there motivations suggest little chance of fabrication

Challenging the Warrant

1. A defendant may challenge the validity of a search warrant by contesting any assertion in the affidavit upon which the warrant was issued. A search warrant is invalid if a defendant makes a “substantial showing” by a “preponderance of the evidence” of all of the following facts:

a. A false statement was included in the affidavit by the affiant;

b. The false statement was necessary to find probable cause; and

c. The affiant knowingly or recklessly included that false statement.

2. Exam Tip: The mere fact that an affiant included a false statement in an affidavit for a search warrant does not automatically invalidate the search warrant if the affiant was acting in good faith.

3. Effect of Lack of Probable Cause

a. A finding that the warrant was invalid because it was not supported by probable cause does not necessarily entitle a defendant to have the evidence obtained under the warrant excluded. Evidence obtained by police in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause (U.S. v. Leon).

The Exclusionary Rule

1. Justification of the Exclusionary Rule

a) Deterrence: Exclusion of evidence is a very strong deterrent to police misconduct

b) Judicial Integrity: The courts should not sanction the use of illegally obtained evidence, to allow such evidence sullies the courtroom and violate the imperative of judicial integrity

i. Connotation of this argument is that illegally seized evidence should never be admissible – but, empirically, this is not currently and never has been the case.

ii. Counter argument: judicial integrity also requires search for truth and justice – allowing people to go free due to suppression of valuable and convincing evidence does not further judicial integrity

iii. The exclusionary rule is virtually unique to American jurisprudence. It has been applied to the 4th, 5th, 6th, and 14th Amendments.

iv. Exclusion is a judicially created remedy, not a constitutional right.

v. Inapplicable in habeas corpus proceedings.

vi. Unavailable in civil actions brought by the IRS to collect taxes, in deportation hearings, and in parole revocation hearings.

vii. No exclusion for clerical errors on the part of the judiciary.

2. Permissible Use of Illegally Obtained Evidence

a) U.S. v. Callandra – illegally seized evidence is not excluded from grand jury proceedings

b) Impeachment

3. Good Faith Exception

a) Where a warrant is obtained in good faith (i.e., affiant did not lie to or mislead the court), evidence uncovered during search pursuant to that warrant is admissible even if the warrant is later invalidated. – U.S. v. Leon.

b) Evidence not excluded when wrong warrant form is used. Where evidence was obtained from the accidental issuing of the wrong warrant form, the evidence will not be excluded because of the neutral decision maker that is magistrate or judge.

i. Broadened to cover the case of a warrant that erroneously described the items to be seized as long as the officer had good faith in the warrant or words of the magistrate.

ii. When officers execute a warrant that fails to describe the things to be seized and leave the description part blank, they forfeit the protection of the good faith defense.

c) Good Faith Does Not Apply in the Following Cases

i. Where the police misled (either deliberately or in reckless disregard of the truth) the magistrate in their application for the warrant.

ii. Where the warrant was so obviously invalid (either because probable cause is lacking or it fails to particularize the place to be searched or things to be seized) that no officer could reasonably rely on it.

iii. Where the magistrate abandoned his neutral and detached posture.

iv. The warrant is defective on its face (e.g. failure of the warrant to state with particularity the place to be searched or things to be seized.)

4. Standing – only those who are actual victims of the alleged violation have “standing” to challenge it. This prevents A from complaining about an infringement of B’s rights.

a) To have standing to challenge a search under the 4th Amendment, a person must have a legitimate expectation of privacy.

i. The person owned or had a right to possession of the place searched;

ii. The place searched was in fact the person’s home whether or not the person owned or had a right to possession of it

iii. The person was an overnight guest of the owner or otherwise had a genuine privacy interest in the place searched.

5. Application of Exclusionary Rule

a) The rule applies in both federal and state cases. The Fourth Amendment limitations apply to any government search or seizure.

6. Knock and Announce Rule Violation

a) Exclusion is not an available remedy for violations of the knock and announce rule pertaining to the execution of a warrant.

b) Generally, an officer executing a search warrant must knock and announce her authority and purpose and be refused admittance before using force to enter the place to be searched. However, no announcement need be made if the officer has reasonable suspicion, based on facts specific to this particular entry, that knocking and announcing would be dangerous or futile or that it would inhibit the investigation.

Exceptions to the Warrant Requirement

1) Incident to any constitutional arrest; 2) automobiles; 3) Plain View; 4) Terry Stop; 5) Consent; 6) Emergency/exigency

1. Incident to any constitutional arrest

a. Search incident to arrest justifies a search not only of the person but to any area immediately accessible to the individual (the reach rule).

b. If the police have a reasonable and articulable suspicion that accomplices may be present who could pose a threat to police, police may conduct a protective sweep by looking into areas where accomplices could be hiding.

2. Of automobiles, to the extent police have probable cause to believe that the vehicle contains fruits or instrumentalities of crime, evidence of crime, or contraband.

3. Of things in plain view when police are legitimately on the premises, to the extent police have probable cause to believe the things to be contraband or fruits or instrumentalities of crime.

a. Requirements:

i. The police must legitimately be on the premises

ii. They discover objects that they have probable cause to believe are contraband or fruits or instrumentalities of crime; and

iii. They observe such evidence in plain view.

4. If police have an articulable suspicion that a person is involved in criminal activity (a Terry stop) and reasonably believe the stopped person is armed and dangerous – police may frisk the person

5. To the extent police have consent to search, given by a person with apparent authority to consent

6. In certain emergencies/exigent circumstances such as when police reasonably believe that evidence is likely to disappear before a warrant can be obtained, if there is reason to believe someone may be in imminent physical danger.

Search Incident to Constitutional Arrest

A search may be conducted without a warrant if it is incident to a constitutional arrest.

1. Any Arrest Sufficient: The police may conduct a search incident to arrest whenever they arrest a person and the arrest is constitutional (i.e., based on probable cause and with a valid warrant, if required). The police need not actually fear for their safety or believe that they will find evidence of a crime, as long as the suspect is placed under arrest.

a. Issuance of Traffic Citation Insufficient Basis

i. For traffic violations, if the suspect is not arrested, there can be no search incident to arrest, even if state law gives the officer the option of arresting a suspect or issuing a citation.

1. Rationale: When a citation is issued, there is less of a threat to the officer’s safety than there is during an arrest, and the only evidence that needs to be preserved in such a case has already been found.

2. Arrest must be constitutional: An arrest must be made pursuant to a warrant based on probable cause or the police must have had probable cause to make the arrest.

a. Arrest in violation of State law: The constitutionality/lawfulness of an arrest does not depend on whether the arrest was authorized by state law but rather simply on whether the police had a warrant or ot

. Search need not be contemporaneous to stop: If the police could have conducted a warrantless search of the vehicle when the vehicle was stopped, the vehicle may be towed to the police station and searched at a later time.

a. Similarly, packages removed from a lawfully searched vehicle may be taken to a remote location and searched later without obtaining a warrant.

b. Special Circumstances: Warrantless searches of vehicles may be deemed reasonable in special circumstances where the police believe it necessary for the safety of the general public.

Plain View Exception

1. Requirements: Warrantless seizures by the police are justified when:

a. The police must legitimately be on the premises

b. They discover objects that they have probable cause to believe are contraband or fruits or instrumentalities of crime; and

c. They observe such evidence in plain view.

2. Inadvertence not required

3. Prior justification for intrusion

a. A police officer normally does not have the right to seize evidence on the private property merely because it is in plain view. There must be some prior justification for the officer’s presence on the property.

b. Note: Even when police illegally enter private property, evidence initially discovered during that illegal entry may be admissible if it later is discovered during a valid search that is wholly unrelated to the illegal entry.

4. Sufficiency of belief: Certain knowledge that incriminating evidence is involved is not necessary.

5. Other senses: The plain view doctrine does not require an officer to actually “see” the incriminating evidence.

a. Plain smell: If a police officer can smell the presence of marijuana outside of the door of a residence, that plain smell could give rise to probable cause to search that residence.

b. Plain hear: If a police officer, lawfully positioned, overhears a conversation in an adjacent room, that evidence would be admissible.

Stop and Frisk Exception

The fourth exception to the warrant requirement allows the police to stop a suspect and frisk (pat down) that person for weapons.

1. Reasonable suspicion required: When the police have an articulable, reasonable suspicion that someone may be involved in criminal activity, they may stop the person even though they do not have probable cause. If the police reasonably believe that the suspect may be armed and presently dangerous, they may conduct a protective frisk of the person.

a. Reasonable suspicion need not be based on personal knowledge: A stop is permissible to investigate a suspect of a completed crime. Reasonable suspicion may be based on a “wanted” flyer or bulletin. However, for the stop to be valid, the flyer or bulletin must have been issued based on probable cause.

2. Totality of circumstances considered: In deciding whether to stop and frisk someone, the police may consider the totality of the circumstances.

a. Flight: A person’s unprovoked flight after seeing a marked police car passing by in a high crime area provided officers with reasonable suspicion to conduct a Terry stop of the defendant (Wardlow).

3. Approach to a Terry Stop

a. Did the police have an articulable reason to believe that criminal activity was being committed or about to be committed?

b. Did the police have reason to believe that the suspect was armed?

c. Is the evidence something that, based on its plain feel, an officer immediately could have determined to be a weapon or probable cause to believe is contraband?

1. If yes to all of these, then it is contraband.

4. Scope Limited

a. Frisk: Generally limited to a patdown of the outer clothing.

i. Caveat – specific information supplied by an informant: An officer may reach into an area of a person’s clothing, such as a belt, without a preliminary frisk, when the officer has specific information a weapon is hidden there. The source of this information may be an unnamed informant’s tip. The tip need not have sufficient reliability to support a warrant in order to justify the seizure.

ii. Stop for traffic violation: Once a police officer has lawfully stopped a vehicle for a traffic violation, he may search the passenger compartment for weapons if he believes that the occupant may be dangerous.

1. If the officer reasonably suspects anyone in the vehicle is armed and dangerous, the officer may conduct a frisk of that person.

b. Stop: A stop occurs when the police conduct is such that a reasonable person would believe that he is not free to leave.

c. Stop and identify: As long as the police have the reasonable suspicion required to make a Terry stop, they may require the detainee to identify himself, and the detainee may be arrested for failing to comply with the request.