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Criminal Procedure
University of Oklahoma College of Law
Henderson, Stephen E.

Criminal Procedure Henderson Fall 2015
What is Probable Cause?
Definition [pg.151] = “probable cause” is the “traditional standard” of the 4th; Probable cause to arrest “exists where ‘the facts and circumstances within [the officers’] knowledge and of which they [have] reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed’” by the person to be arrested. [or that evidence subject to seizure will be found in the place to be searched.]  
Need Probable Cause for:
Search warrant
Arrest warrant
Need Reasonable Suspicion for:
Terry stop and frisk (drugs, suspect armed and dangerous, terry car frisk)
no-knock entry (RS that K&A would be (1) futile (2) hot pursuit, (3) harm to 3rd persons or officers, or (4) would cause destruction of Evid.) (Richards v. Wisconson),
Protective sweeps.
Demonstrating Probable Cause
[For Warrant] The magistrate must determine whether there is a fair probability that search will uncover evidence of wrongdoing
deferential standard of review: did the magistrate have a substantial basis for concluding that a search would uncover evidence of wrongdoing (Gates)
This review encourages police to obtain warrants!
[Other Areas, like Tips] Totality of Circumstances (Gates)
Aguilar/Spinelli Test: Veracity and Basis of Knowledge)
Background on 4th Amendment
Text of the 4th Amendment:
“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.”
Touchtone of 4th: “Reasonableness” (KY. v. King)
Two views of the 4th amendment:
a)  warrant preference view: search is presumptively unreasonable if
conducted without a warrant because warrant clause is connected to the
search and seizure clause.
b)  separate clauses view: warrant is not necessary if the search is otherwise reasonable because the warrant clause is not connected to the search and seizure clause.
Four requirements of a valid search warrant:
a)  issued by a neutral and detached magistrate
b)  based on probable cause
c)  supported by oath or affidavit
d)  describes with particularity the places to be searched and the items to be seized.
Exclusionary Rule- Mapp v. Ohio (Deterrence is purpose!)
Definition – evidence obtained in violation of the 4th amendment must be excluded at trial.
** Weeks, 1914 0 Federal Exclusion à Wolf, 1949 – 4th applies to states, but no exclusion à Mapp, exclusion applies to states.
Unequivocally, a judicially-created remedy (Leon, Davis)
So not as strong footing as constitutional rule/remedy.
TRIGGER: POLICE conduct that is sufficiently DELIBERATE that EXCLUSION can meaningfully DETER it, and sufficiently culpable that such deterrence is worth the price paid by the justice system (BALANCE). (p .516)
Deter deliberate, reckless, or grossly negligent CONDUCT, or sometimes REOCCURRING and SYSTEMATIC NEGLIGENCE. (Herring v. US, p. 515)
The exclusionary rule applies to the states through the 14th amendment – (Mapp v. Ohio)
put an end to the “silver platter” doctrine where state agents could hand over illegally seized evidence to federal agents for state prosecution because the federal agents had not obtained it illegally.(no more Silver Plate Doctrine)
reasoning: without the exclusionary rule, the 4th amendment has no bite.
Mapp overruled Wolf which said no exclusionary rule
Exception to the Exclusionary Rule:
But-For cause is NOT the test for exclusion!
But for cause is a necessary, but not SUFFICIENT condition! (Hudson v. MI, p. 500)
1.Good Faith
Evidence obtained in good faith, but upon a defective warrant is admissible (no deterrent effect) – United States v. Leon, p. 485
Even if warrant is invalid for lack of probable cause, the exclusionary rule does not apply if police acted in objective “good faith” (Leon)
Exclusionary rule does not apply because of a search based on clerical error. (MA v. Sheppard, p.515 summary)
No exclusion for reliance on statute later found to be unconstitutional (p. 515, n1)
No exclusion if mistake is by judicial employee (BECAUSE NOT POLICE PERSONNEL!)
Evidence obtained based on reasonable reliance of binding precedent is NOT subject to exclusionary rule. (Davis v. US, p. 523) (no deterrent aspect)
Balance cost-benefit, and use “totality of circumstances.”
the reliance must be objectively reasonable –
whether a reasonably well trained officer would have known that the search was illegal, considering all of the circumstances.
First, the Exclusionary Rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.
Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amend. Or that lawlessness among these actors requires application of the extreme sanction of exclusion.
Third, and most important, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate.
police can not be deterred by exclusion if they acted in good faith, so there is no reason to exclude the otherwise trustworthy evidence because of a technical defect.
Four Exceptions to Leon-says obtained in “good faith”:
affidavit contained information that the police knew to be false or had a reckless disregard for its truth
magistrate has wholly abandoned his judicial role by failing to be neutral
affidavit so lacking in probable cause that belief in it is unreasonable
warrant is so facially deficient that the officers could not reasonably presume it to be valid.
1.Grand Jury, no exclusion
2.Civil trial, no exclusion
3.Impeachment of defendant’s testimony (on direct or cross- examination)
4.Knock and Announce violation, no exclusion (inevitable discovery, usually)
5.Good Faith/Reasonable Reliance (point is to deter)
4th is a personal right; it cannot be asserted vicariously!
Paynor (p. 446)
X’s briefcase illegally seized. Suppressed per X, the owner, not Y, the BF of X.
Problem: Police can benefit from violating the constitution!
Rackas(p. 456 hypos) –
TEST for all questions!:
(1) Was there a 4th Violation?
(2) Will the evidence be suppressed? (is excl the remedy?)
State actor or agent of the state?
REP or Physical intrusion into Constitutionally protected area?
probable cause of auto exception?
search incident to arrest?
exigent circumstances/emergency aid?
inventory search?
^^ all fail here.
Rawlings v. KY (p. 466)
search incident to arrest can precede the arrest!
X’s purse searched, LSD found, Y claims ownership.
Did Y have a REP in HER purse? No, new relationship! (but maybe if he was her husband. FACT specific)
NO REP                Lawful presence            R.E.P LINE!                        Overnight guests (REP)                               FULL REP
Rakas                   Rakas/Carter                                     

. the intrusion (TLO, others)
Excessive in manner of search?
Particularized area?
Rochin – Police conduct that “shocks the cons.” Is suppressed (state & fed.)(also civil damages requirement)
Search Warrants
Items to be seized must be listed with particularity (Lo-Ji, Sales)
Purpose: (1) Gives Officers conducting the search direction, as already decided by a magistrate and (2) Give property owner assurance of what will be searched; magistrate must live up to “neutral and detached” standard.
POLICY: Neutral magistrate is a check on the system.
So, warrant was invalid, BUT MUST GO ON to Step 2:
Was the search illegal?
Yes, because this search is something an ordinary customer would not do in Lo Ji.
Particularity TEST –  
U.S. v. Spilotro (9th Cir. 1986):                                                   
(1) whether probable cause exists to seize all items of a particular type described in the warrant;
(2) whether the warrant sets out objective standards executing officers can differentiate items subject those which are not; and
(3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.
For practical purposes!!! Ask for something small in warrant!      
Katz – two pronged test for whether there has been a search (Harlan concurrence)
a)  person has manifested actual (subjective) expectation of privacy
b)  expectation is one that society is prepared to recognize as reasonable
Example of activity that is not a search under the 4th amendment because there is no reasonable expectation of privacy:
(1)  California v. Greenwood – police rummaging through your garbage is not a search because society does not recognize a reasonable it is accessible to the public.
(2)  police obtaining your phone records is not a search because the numbers dialed from your phone are gathered by the phone company for billing.
(3)  Florida v. Riley – police inspecting your backyard from a helicopter is not a search because members of the general public may legally do so from the same vantage point.
(4)  U.S. v. Knotts – police placing a beeper on your car is not a search because you put your car in plain view when you drive on the highway, and there is no constitutional interest in not having a beeper on your property.
(5)  U.S. v. Place – drug dog sniffing your luggage is not a search because you have no privacy interest in odors emanating from luggage.
(6)  U.S. v. White – police may “wire” a friend of yours to eavesdrop on and even record your conversation and it is not a search because you assume the risk that your friend is an informant.
Examples of activity that does constitute a search:
Karo – police may not monitor a beeper once it has entered a
constitutionally protected area like a home because it reveals information that could not be obtained by surveillance from a public place.