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Criminal Procedure
University of South Carolina School of Law
Crocker, Thomas P.

FALL 2013
(D is the person who is claiming that the search/seizure violated his Fourth Amendment rights, whether or not D is a criminal defendant)
The Fourth Amendment prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. Although the Fourth Amendment is a constitutional source for protection of privacy, and the Court places special emphasis on the sanctity of the home, limitations on official conduct are frequently produced by balancing the individual interest in privacy with the state’s interest in public safety.  Therefore, determining what constitutes a “seizure,” as seen in Florida v. Bostic (1991), is “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.”  Additionally, as seen in California v. Hodari D. (1991), a seizure begins when the police achieve physical control over the suspect.  The test for determining what constitutes a “search” is seen in Katz v. United States (1987), as when a government action infringes on an (1) actual expectation of privacy, as exhibited by the conduct of the individual, (2) that society is prepared to accept as objectively reasonable.
STEP 2: Does D have a reasonable expectation of privacy?
The alleged search or seizure must substantially impinge on an actual subjective expectation of privacy held by D.
IF YES à Was the subjective expectation of privacy that was held by D one that society is prepared to recognize as “reasonable”? 
·         California v. Greenwood (1988) – D puts marijuana in garbage bag at the edge of lawn, so sanitation workers will pick it up.  The police, acting on a tip, ransack the bag before it’s picked up, and seize the plants as evidence that D is cultivating marijuana in his house.  Even if D subjectively believed no one would open up the bag (i.e., he had a subjective expectation of privacy), this expectation of privacy was not a “reasonable” one.  Consequently, no Fourth Amendment search would be deemed to have taken place.
·         Plain View Doctrine (1) the object of the search was in “plain view” at the time the police saw it, (2) the police were in a place where they had a right to be at the time of the view, and (3) the police merely viewed the search object and didn’t “seize” it, answer “no” to this question, because the police view did not violate D’s reasonable expectation of privacy.
IF NO à No Fourth Amendment search or seizure because D’s reasonable expectation of privacy was not violated.
STEP 3: Did the police have probable cause for the search?
The police must have probable cause to believe that the item(s) to be searched for or seized are: (1) contraband or evidence of a crime AND (2) will be found in the place to be searched.
·         Maryland v. Pringle (2003) – “probable cause” means merely a “reasonable likelihood,” not “more likely than not.”
IF YES à Go to Step 4
IF NO à The case will need to fall within some exception to the probable cause requirement (and probably also an exception to the warrant requirement).  Go to Step 5.
STEP 4: Did the police obtain a search warrant before they made the search or seizure?
The warrant must be properly issued by a neutral and detached magistrate, and properly drafted, upon probable cause, supported by oath or affirmation, and with particularity for the place to be searched and the items to be searched for.  Additionally, the search must conform to the warrant in regards to timing and scope.  If they do not, the search cannot be justified as covered by a warrant.  It will have to be validated under some exception to the warrant requirement.  However, some searches and seizures, primarily those of homes and businesses, require not only probable cause but also a warrant (issued on probable cause) which particularly describes the place to be searched and items to be seized.
IF YES à The Search was not a Fourth Amendment violation, because it was properly covered by a warrant.
IF NO à If no search warrant was obtained, the search will have to be validated under an exception to the warrant requirement.  Go to Step 5 and check for an exception.
STEP 5: TERRY STOP AND FRISK EXCEPTION – Did the police have “reasonable and articulable suspicion” that D was engaged in or will be engaged in criminal activity?
The police must have “reasonable suspicion” (not necessarily amounting to probable cause), based on “objective facts,” that D was engaged in criminal activity.
·         Terry v. Ohio (1968) – An officer, suspecting men are casing a store for a robbery, approaches and asked for their names, which they mumbled.  He patted down the outside of their clothing and felt a pistol.
·         Rule: the officer’s actions must be reasonable under the circumstances.  The test of reasonableness of officer’s actions is a case-by-case test: (1) whether the action is justified at its inception (must point to specific and articulable facts at the beginning which taken together with rational inferences from those facts reasonably warrant the intrusion) and (2) whether the search was limited in scope to those facts (limited to that which is necessary for the discovery of weapons)
·         There has to be an articulable suspicion at the inception (no bootstrapping by stopping and then developing an articulable suspicion).  The length of the stop and the intrusiveness must be limited to the circumstances.
Terry Frisk
·         When there is a Terry stop, the police may also conduct a limited search for weapons to protect the investigating officer if the officer has reasonable and articulable suspicion that the person stopped may have a weapon.
What is required for reasonable suspicion?
·         Florida v. J.L. (2000) – A person calls in with an anonymous tip that a man in a plaid shirt at a bus stop is carrying a gun.  The police see a man in a plaid shirt who was doing nothing suspicious.  The police stopped and frisked him and found a gun.
o   The reasonable suspicion requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.  However, a report of a person carrying a bomb does not need the same indicia of reliability.  Also, in quarters were the reasonable expectation of Fourth Amendment privacy is diminished, such as airports and schools, the same degree of reliability is not necessarily required.
·         Illinois v. Wardlaw (2000) – Officer observed a man carrying an opaque bag in an area known for drug trafficking and then the man fled.  The officer chased him and then stopped and frisked him and discovered a weapon.
o   Any refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for detention or seizure.  However, an unprovoked flight is not a mere refusal to cooperate.  Flight in itself gives rise to reasonable suspicion.
IF YES à Was the search (at least initially) limited to a “frisk” or “pat-down” of D’s outer clothing, in an attempt to discover whether D had a weapon?
·         Arizona v. Johnson (2009) – In the case of a vehicle stop, the police may pat down either the driver or the passengers, if they have reason to believe that the person may be armed or dangerous.  They may do the pat-down even if they have no reason to suspect the driver or passenger of wrongdoing. 
If Yes à The search was not a Fourth Amendment violation, because it was justified under the “stop and frisk” doctrine.
If No à The “stop and frisk” exception to the warrant and probable-cause requirement does not apply.  Go to Step 6.
IF NO à The “stop and frisk” exception to the warrant and probable-cause requirement does not apply.  Go to Step 6.
STEP 6: Did D consent to the search or seizure?
The police may conduct a search or seizure by obtaining consent of the target of the search or seizure. Note that law enforcement agent need not give the subject of the search any type of “Miranda” warnings prior to securing such consent.
·         United States v. Matlock (1974) – Someone else, who has the apparent authority to consent under the circumstances, can consent to the search or seizure.  Officer suspects Matlock has been growing marijuana in his garage. 

that the person or place to be seized contained contraband or evidence of crime?  AND
o   The police must have “good reason to fear” that D would destroy the evidence unless restrained.  AND
o   The police must only restrain D, or his premises, (1) in as limited a way as reasonably necessary, and (2) for as limited a time as necessary, until they could get a search warrant.
·         “Police-Created-Emergency” Doctrine: if the police’s own conduct “created” or “manufactured” the threat of evidence destruction, then the main evidence-destruction exception to the warrant requirement will not apply, and the police will need to get a warrant before searching.  But, the police-created-emergency doctrine applies only if the police gain entry by means of an actual or threatened Fourth Amendment violation.
o   Kentucky v. King (2011) – Police, without a warrant, go onto King’s premises, and look through his window, where they see what appears to be a pile of marijuana.  They then knock on the front door, shout “Police.  Open up,” and hear running steps and flushing toilets.  Court upheld conviction, but state that any forced entry will not qualify for the destruction-of-evidence exception where the police got themselves in a position to fear evidence destruction because they violated D’s Fourth Amendment rights at the outset.
IF YES à The initial restraint of D or his premises did not violate the Fourth Amendment, because it qualified for the destruction-of-evidence exception to the warrant requirement.
IF NO à The seizure did not meet the requirements for the destruction-of-evidence required for an exigent circumstances exception to the warrant requirement.
·   Hot Pursuit – Where the police in hot pursuit of D (or someone else, X), whom they reasonably suspected of committing a felony?
·         The police must follow D (or X) into premises that they saw him enter immediately before they followed.
·         The police must find the weapons, contraband, or crime evidence while they were in the premises in hot pursuit of D (or X).
·         Warden v. Hayden (1967) – A search warrant is not needed if there are exigent circumstances, so that obtaining a warrant – even by telephone pursuant to Fed. R. Crim. P. 41 – would gravely endanger the lives of police or others, or if it would be impracticable because items would be destroyed or lost
IF YES à The search/seizure probably did not violate the Fourth Amendment because it was justified under the hot pursuit exception to the warrant (and probable cause) requirements.
IF NO à The hot pursuit exception to the warrant and probable cause requirements not apply.
·   Miscellaneous – Did the police perform the search/seizure without a warrant on account of some other exigent circumstance (e.g., prevention of an imminent serious harm to others)?
·         Brigham City v. Stuart (2006) – police who look through screen door and see fight may enter without warrant under exigent-circumstances exception for emergency assistance
·         Community caretaking (e.g., removing obstacles, towing cars, etc.)
IF YES à The search/seizure probably did not violate the Fourth Amendment, under the general “exigent circumstances” exception to the warrant and probable cause requirements.
IF NO à No form of exigent circumstances exception applies.  Go to Step 9.