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Criminal Procedure
Villanova University School of Law
Chanenson, Steven L.

Arrest, Search and Seizure: Fourth Amendment
Persistent Themes
·         Liberty v. Security: the balance between effective law enforcement and protecting civil liberties
·         We want cops to stop crime and bring criminals to justice
The Exclusionary Rule
The 4th Amendment: “The right of the people to be secure in their persons, houses, 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 to be seized.”
Exclusionary rule: In the Federal justice system, evidence obtained in violation of the 4th amendment is ordinarily inadmissible in a criminal trial.
Application to the State:
§ Wolf v. Colorado:rejects the exclusionary rule as applied to the states. In a prosecution in a State court for a State crime the Exclusionary rule is not applied to the states through the 14th b/c:
·         Justification: State’s reliance on other methods are effective; protects only individuals who have broken the law; not vital to ordered liberty (at the time 30 States reject the Weeks doctrine)
§ Mapp v. Ohio: overturns Wolf, noting that the exclusionary rule is necessary to protect 4th Amendment rights in State courts. Exclusionary rule applies to states when evidence is gained unconstitutionally.
·         Purpose of the Exclusionary Rule: to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.
·         Mapp is an example ofthe selective incorporation doctrine — if any aspect of right necessary to fundamental fairness then all aspects of the right must be applied to the state. This type of incorporation is adopted, and is a more modern view.
What is a Search?: Protected Areas and Interests
Search: A search occurs when the government intrudes on an area where a person has a constitutionally protected, reasonable expectation of privacy that society is willing to accept.
Standard: Did the government intrude on a reasonable expectation of privacy?
a.      Actual/Subjective expectation of privacy
b.      Recognized as objectively reasonable by society
Reasonable Expectation of Privacy
1.      What a person seeks to preserve as private, even in an area accessible to the public may be constitutionally protected.
·         Katz v. US: (Public Phone booth) — private conversation, closed door; search can occur without a physical intrusion into a constitutionally protected area b/c the fourth amendment protects people, not places.   4th Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amend protection. But what he seeks to preserve as private, even in an area accessible to the public may be constitutionally protected.
2.      Information that could not have been obtained through visual surveillance.
·         US. v. Karo: (Beeper) — information obtained by a beeper when in a private space without the homeowner’s knowledge violates the reasonable expectation of privacy. The information that was obtained could not have been through visual surveillance.
·         Visual surveillance does not violate a persons expectation of privacy.
3.      Intimate Details of a Home that can only be known by actual presence.
·         Kyllo v. US:(Heat radiation) — Intimate details that can only be obtained using sense-enhancing technology (uncommon new technology) that couldn’t otherwise be obtained without physical intrusion.
No Reasonable Expectation of Privacy
1.      Items that are voluntarily turned over to third parties
·         California v. Greenwood: (Trash Bags) — a person has no expectation of privacy in information they voluntarily turn over to third parties.
2.      Items that a party knowing exposes to the public, even if it is in their own home or office.
·         Florida v. Riley: (Helicopter) — the growing of marijuana in a greenhouse, which was viewable from a helicopter 400 ft. above, is not protected. Court claims that this was open to the public (public airspace that anyone could have been flying in).
Probable Cause
Rule: In order to issue a warrant, the magistrate must determine whether there is a fair probability that search will uncover evidence of wrongdoing.
Search warrant: must show item is properly seizeable, connected to a crime, and is where you think it is. You do not have to demonstrate whose it is.
Arrest warrant:  PC that the crime has been committed, that the person committed the crime, and that PC can exist whether or not there is contraband.
Search v. Arrest:
§ The amount of evidence (PC) is the same.
§ Showing probabilities for different things, one can exist without the other. There can be enough to get a search warrant but no

bright line rule: a blanket exception for felony drug investigations for a no knock and announce requirement based on safety and preserving evidence is not justified because:
a.      Overgeneralization
b.      Would extend to all investigations where there might be a hypothetical-risk of exigent circumstances. This would render the knock and announce rule meaningless.
c.       Duty of the court to decide if a particular entry w/o the knock and announce requirement is justified.
Warrantless Arrest and Search of Persons
·         Rule: As long as there is PC then the police can arrest, search the individual, and the area within the immediate control in order to disarm suspect, take into custody and preserve evidence. If there is PC for arrest, then this intrusion is reasonable.
·         US v. Watson: There can be an arrest without a warrant for felonies committed with PC or for a misdemeanor in the presence of the officer. Do not need to show exigent circumstances, whether it was practicable to get a warrant, or whether the suspect was about to flee, etc.
 Searches Incident to Arrest
§ U.S. v. Robinson: The officer believed that Robinson was driving without a license. After the arrest, a pat-down revealed crumpled package of cigarettes which contained heroin capsules. Because he had PC for the arrest, he was able to search, and therefore seize the contraband. Officer does not have to indicate a subjective fear that respondent was armed in order to search.
·         Rule: If the officer has PC to arrest, then they have the authority to search the individual.  A custodial arrest of a suspect based on PC is  a reasonable intrusion under the 4th Amendment, that intrusion being lawful, a search incident to the arrest requires no additional justification.
·         Justification for authority to search:
1.      Need to disarm suspect in order to take him into custody
2.      Need to preserve evidence on his person for later use at trial