Dripps-Criminal Procedure-Fall 2015
I. Origins of the Fourth Amendment
A. Writ of Assistance: Written order issues by court that instructs a certain task; granting authority to search for and seize uncustomed goods
1. Different than a modern search warrant
2. General warrants and writes of assistance were unconstitutional
William MacDonald Case/Paxton’s Case (1761-1762): It is argued that the writ asked for here is a deviation from the common law. Paxton was given his writ, but only in this case was it granted; no where else in England used these writs.
Rule: Prohibited items or what hasn’t been duly paid, lye concealed, or are suspected to be concealed, can be searched.
Argument by James Otis Against the Writs (1865): Otis believes writs should only be granted to “special persons” and not just anyone. Says that a man’s house is his castle, and if a writ were to be granted it would take away the privilege of feeling guarded as “a prince in his castle.”
B. Fourth Amendment Search and Seizure: “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 reasons or things to be seized.”
1. Two clauses to the fourth amendment: searches and seizures
a. 4th amendment is interpretative to some extent, and doesn’t spell out exactly what needs to be done.
b. Double barreled
2. If its not search and seizure, then the 4th amendment has nothing to do with it
3. The broader the 4th amendment is, the more we can cover that a search and seizure is reasonable even though that search may not be supported by a warrant.
Entick v. Carrington (1765): Defendants claimed authority under a warrant from the Secretary of State when they broke into P’s house and searched al papers. P sued for trespass. Found in favor of Entick because the secretary of state had no right to issue a warrant; there as no statute or common law allowed a search for all papers. Court explained that if this was a legal warrant then this search would not be a trespass, but it was too vague and not specific enough to be legal. No charge was made before the search to prove that the party has any criminal papers in his custody.
Rule: Can’t seize papers. Need a specific warrant supported by probable cause; must be specific to the place and the items being looked at. They seized all of his papers and not just libel papers, so this was not a specific warrant. Any invasion of property is actionable in trespass unless there is a law excusing the invasion (a warrant). The seizure of papers in the case of libel is illegal.
1. This judgment established limits on executive power.
Virginia Declaration of Rights (Article X/10): General warrants that command search without evidence of fact committed, or to seize any person not named, or whose offense is not particularly described and supported by evidence, are illegal.
1. Single barrel prohibition on general warrants
Massachusetts Constitution (Article 1 § 14): Every subject has a right to be secure against unreasonable searches and seizure of his person, papers, and all possessions. Warrant must be accompanied with a special designation of the person or objects of search, arrest, or seizure.
1. Adams formulation of the 4th amendment is double barreled; a specific prohibition against general warrants.
Act for the Collection of Revenues: You need to have probable cause to search a ship, but not a warrant. Don’t need a warrant because one could just get in their ship and leave; this type of search was warrantless but this act said all other searches need a warrant.
Warrantless Search Example: If a sheriff gets a warrant for stolen silver before searching a house, but then does not find the silver, can the home owner sue the sheriff?
Rule: This is not clear, but some cases indicate that he could sure the sheriff.
What if while searching the house he finds a diary, can he seize it?
Rule: No, because the warrant has to be specific. The warrant was for silver not for a a diary/papers. Even if the sheriff went back and tried to get a warrant for the diary, he would not be able to because the Entick case says you can’t seize papers.
Wrexford v. Smith (False Imprisonment): D’s saw P steal tobacco from a store. D’s pursued him for theft, took P brought him back, and he was prosecuted and convicted of theft.
Rule: When a theft is committed, the owner of the goods stolen and any other person, may pursue and take the goods and the thief.
Ex Parte Jackson: Rule: Letters and sealed packages in the mail are guarded from examination and inspection without a warrant.
C. Remedies to Fourth Amendment Violation
1. If it is an illegal search then a suspect has standing under §1983 for constitutional violation
2. Evidence may be suppressed
II. The Emergence of Professional Police in the Nineteenth Century
A. Law and order became so weak and crime was so common
1. There was no organized law enforcement
2. By the end of silver war there was a police force in every city
3. Every place outside of the South had prosecutors
4. Defense attorneys because standard at this point
B. Industrial revolution in criminal justice:
1. Changes in output (penalties)
2. Changes in input (enforcement by professional police)
3. Changes throughout (processing of arrests by prosecutors and defense counsel)
III. The Federal Regime Based on Boyd v. United States
A. During the course of the 19th century federal criminal justice still followed 18th century model
1. This law started with the Boyd case in the 1880’s and went until the 1960’s
B. 1874 Statute: In 1874 congress adopted a statute stating that whenever individual is suspected of crime, the U.S. attorney will issue a notice to D that would require them to bring forth the papers.
1. If the papers are produced, the attorney is permitted to make examination.
2. If P refuses to show such papers, the allegations will be taken as confessed unless his failure is explained to the satisfaction of the court
C. “1874 Statute” sets up the Boyd case because it allowed for seizure of papers, but constitution trumps statutes.
1. This statute was doing indirectly what they tried to do directly in “1863 statute.”
2. Supreme Court said even if it’s not a search and seizure it’s still a violation of the 5th amendment because the papers are incriminating.
Boyd v. United States (1886): Several cases of plate glass were confiscated from D’s by federal customs agents due to suspicion that certain documents had been falsified for the purposes of avoiding customs fees or duties. 29 cases were legally done but 35 were not. The invoice for the 35 cases could be legally confiscated because this was for an unlawful transaction (gov. has superiority to claim it), where as the 29 cases were not. D’s were ordered by the judge to produce documents showing the quantity and value of the shipments (invoice) according to the 1874 statute. The problem here was that invoices are papers, and Entick said you can’t issue warrant to search papers. The defendants protested under the theory that they could not be compelled to produce evidence against th
wires beyond his house are not within the protection of the 4th amendment.
Agnello v. U.S.: Rule: A search victim may suppress from evidence even contraband that will not be returned; but only the search victim can invoke the exclusionary rule here
IV. Search and Seizure in the States
Wolf v. Colorado: State agents entered D’s office without a warrant and charged D with evidence about conspiring to commit abortions that was allegedly obtained during this illegal search. D claimed this was illegal search and seizure and anything obtained during this would have to be excluded from trial. State argued that exclusionary rule only applied to federal court and not state court.
Rule: 4th amendment illegal search and seizure exclusionary rule does not apply to the states and may be used for conviction. Court held that exclusionary rule was not a necessary ingredient in the 4th amendment.
People v. Defore: Officer arrested D on a charge that he had stolen an overcoat. When D was taken into custody he was in the hall of his boarding house. The officer after making the arrest entered D’s room and searched it. The search produced a bag, and in the bag was a blackjack. D made a motion to suppress the evidence obtained through search without a warrant.
Rule: Evidence D was an outcome of trespass, but Court refused to apply exclusionary rule to the states.
Irvine v. CA: Police strongly suspected D of illegal bookmarking but didn’t have proof. Police planted microphone into D’s house that transmitted any conversation to neighboring house where officers were posted to listen. 20 days after putting microphone in D’s bedroom, they final heard incriminating statements.
Rule: Exclusionary rule not applied. All that was heard was what someone in the hallway or anyone eavesdropping would have heard. Court acknowledges that this is bad but says it is okay because it doesn’t “shock the conscious.” Says if shock was more serious, then the states must exclude the evidence. Weeks was not deemed part of the due process clause and was not binding upon the states.
People v. Gonzalez: Introduction of a concealed weapon seized in the search of a person arrested on general suspicion.
Rule: California’s constitution directs the admission of evidence of the character even if the evidence was produced by an unconstitutional search and seizure. Even though the federal constitutional does not allow admission of evidence when illegally obtained, the state constitution does not bar it.
Rochin v. CA: Without a warrant police break into D’s house. They see a capsule and D swallows it before they can get it. Over D’s objection, they have doctors pump his stomach to get the pill out and then police use this evidence against him.
Rule: This isn’t just breaking into someone’s house, this is something that “shocks the conscious” so it must be excluded from evidence. No distinction between a coerced verbal confession and a coerced physical confession.
