Criminal Procedure, Spring 2015
Prof. Carter
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.”
a. section 1: “reasonableness clause”—tells who, what, and the nature of what is covered/protected. “right of people…houses…unreasonable searches…”
b. section 2: “warrant clause”—tells what is required for a warrant to be issued and about the warrant itself. “but upon probable cause…describing the place to be searched…”
i. Standing
a. Defendants
· D can’t raise a claim of 4th amendment violation unless he personally is the victim of the search/seizure.
· Co-conspirators and co-defendants can’t argue a violation just based on the fact that damaging evidence will be introduced. Alderman v. U.S.
· Federal court can’t make the decision to exclude evidence for a defendant who doesn’t have standing just because it views the offense as especially egregious. U.S. v. Payner.
· Defendants who are charged with crimes of possession may only claim the benefits of exclusionary rule if 4th amendment rights have been violated. Simmons v. U.S.
· RESIDENTIAL PREMESIS. Person who is a resident/has present possessory interest in the premises searched may still challenged the search even though they weren’t at the home when the search was conducted.
· BUSINESS PREMESIS. Corporate or individual employee of a business has standing if they can demonstrate a “nexus between the area searched and their workspace”.
· GUESTS STANDING. Overnight guests have some standing to challenge searches, but those permitted to be in home for a commercial purpose for a short time do not. Minnesota v. Carter. Court looked at: lack of connection between homeowner and defendant, the short period of time on property.
ii. Pretrial nature of 4th amendment issues
· admissibility of evidence usually raised by the defense prior to trial in the form of a motion to suppress. Issue is resolved prior to trial by a judge.
I. Who are “the People”?
a. Does not apply to foreign law enforcement acting outside the U.S.
· But if there is sufficient American involvement in the foreign search of an American citizen, 4th amendment applies.
i. Does not apply to non-U.S. citizens who are temporarily or involuntarily in the U.S.
II. Exclusionary Rule
A. Rule
evidence seized by the police in violation of the Fourth Amendment may not be introduced by the gov’t at criminal trial.
1. federal officer/federal trial exclusion (5th amendment)= Weeks v. U.S.
2. state officer/state trial exclusion (4th amendment)= Mapp v. Ohio
· state can impose more 4th amendment protections than the constitution, but not less. So most defense atty’s argue for application of state 4th amend. interpretations if they get more protection that way. (Also argue for federal as well though.)
· State constitution isn’t binding on federal officers because of supremacy clause.
b. Exclusionary rule is a remedy for unconstitutional searches and 4th amendment violations.
B. Rationale for Rule
· promote police professionalism, deter police from disregarding constitutional rights on a systemic level
C. Reasons for and Against Rule
a. reasons for supporting rule
· people would be worse off without it
· cost of guilty people going free is overstated
· innocent people also benefit from rule because police won’t enter homes or search cars of people with little guilt
· civil remedies don’t work because of govt. immunity so exclusionary rule is the best we can do.
· Framers meant for the constitution to change over time, even though exclusionary rule isn’t mentioned
· Abolition of the rule would allow police to abuse citizen rights
b. reasons against rule
· rule protects the guilty so people are actually less secure when murderers are freed
· rule promotes cynicism because the guilty are self-serving representatives of larger society rather than law abiders
· rule doesn’t distinguish between serious and minor crimes so murderers can go free just as minor offenders can
· 1983 actions and civil remedies can be brought instead
· rule isn’t really a deterrent, since most warrants are thrown out because a cop misunderstands a 4th amendment rule
· no historical evidence pointing to framers’ intent to exclude evidence
D. Limits of the rule
1. evidence obtained by govt. agents used as basis for questions to grand jury witness
· grand jury witness can’t refuse to answer questions just because evidence was obtained from him in an unlawful search; this would otherwise keep prosecutor from even requesting an indictment and interfere with grand jury process
2. evidence obtained by govt agent used in a criminal case after conviction
· illegally seized evidence is admissible after conviction for judge to determine sentencing; because of no further deterrent effect
3. evidence obtained by govt. agents used in quasi-criminal or civil cases
· rule applies to forfeiture proceedings
· doesn’t apply to deportation hearings or civil tax hearings; because deterrence effect is low or non-existent
· applies in bail proceedings and parole revocations.
4. evidence obtained by private persons
i. factors determining consent
1. CLAIM OR SHOW OF AUTHORITY. If officer says he has the authority to conduct a search on the basis of having a warrant, consent granted as a result of that search isn’t valid because it resembles coercion; see U.S. v. Bumper
but if person says, “you didn’t have to bring a warrant, you’re free to search”, this would be okay because person acknowledges consent isn’t linked to warrant claim.
2. MENTAL/EMOTIONAL STATE OF PERSON. See Commonwealth v. Angivoni (where defendant voluntarily consented to search when he was hospitalized with dislocated hip. Court said trauma and medication may have impaired his “understanding and ability to reason reflectively”, so search is no good).
CUSTODY WARNING AND 4TH AMENDMENT RIGHTS WARNINGS. U.S. v. Watson. Failing to give 4th amendment warnings doesn’t have much significance when consent was given on the public street and not in the confines of a police station.
5TH AMENDMENT WARNINGS. U.S. v. Lagrone. Failing to include a 5th amendment warning in request to search isn’t likely to elicit an incriminating statement because simply asking to search isn’t an interrogation, so Miranda warning isn’t necessary.
5. RIGHT TO COUNSEL. Tidwell v. Superior Ct. Consent to search is invalid when arrested person has a lawyer and police don’t notify them that they’ve asked party to consent to search.
6. CONSENT BY DECEPTION. If a police officer talks to person, asks for consent to search and doesn’t tell them they’re a police officer, the consent is valid on the basis that the person has assumed the risk that the officer isn’t who he claims to be. Lewis v. U.S.
Police can’t obtain consent to search based on representation that they intend to look for specific items and then use the consent as permission to conduct a general exploratory search.
7. SCOPE OF CONSENT. Standard for measuring scope of consent is based on what a typical reasonable person would’ve understood by the exchange between an officer and suspect. Florida v. Jimeno. (where police officer said he was looking for drugs and then searched containers in car). Based on idea that a person would think it’s reasonable that drugs could be found there.
