Criminal Procedure: Investigation Outline

Criminal Procedure Outline

Professor Dillof

Spring 2012

1. Fourth Amendment

A. Text

· 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.

B. Search

1) What Is A search

· A Search Occurs When:

i. The person expects privacy in the thing searched; and

ii. Society believes that expectation is reasonable. (Katz v. U. S., 389 U.S. 347 (1967)).

2) Warrants

a. Warrant Requirements

1. General Rule

· To Be Valid, A Warrant Must:

a) Be based upon probable cause; and

b) Particularly describe the place to be searched and items to be seized; and

c) Issued by an impartial magistrate.

2. Probable Cause

a) General Rule

· Police must show “substantial chance” or “fair probability” that they will find evidence of criminal activity. (Illinois v. Gates 462 U.S. 213 (1983))

· 50/50 chance will work.

b) The Warrant Or Affidavit Must Not Be Based Upon Fraud

· If the defendant can show by a preponderance of the evidence that that the warrant or affidavit intentionally contained false or fraudulent statements, and that probable cause was based on those statements. The warrant is invalid and all evidence obtained is excluded. (Franks v. Delaware, 438 U.S. 154 (1978))

c) Use of Informants For Probable Cause

· Sufficiency of probable cause supported by informants shall be judged upon the “Totality of the Circumstances” (Illinois v. Gates 462 U.S. 213 (1983))

d) Anticipatory Warrants

· A warrant may be issued in anticipation of a future event if:

1) There is a fair chance item will be there when Trig-Condition-for-Search occurs, and

2) There is a Fair chance that Trig-Condition-for-Search will occur. (U.S. v. Grubbs. 547. U.S. 90 (2006)).

3. Warrant Must Be Precise On Its Face

· A warrant must describe, with reasonable precision, the place to be searched and the items to be seized. (Andresen v. Maryland, 427 U.S. 463 (1976))

4. The Warrant Must Be Issued by A Natural, Detached Magistrate

· Just because the police have enough probable cause to obtain a search warrant does not mean they can do the search without it. (Johnson v. U.S. 333, U.S 10 (1948)).

· Judge may not be involved in the execution of warrant. (Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979))

b. Execution Of The Warrant (Reasonableness)

1. Warrant Must Be Executed By The Police

· The police and not private individuals must be the ones who execute the warrant. (Wilson v. Layne, 526 U.S. 60 (1999))

· The police may not be accompanied by third party, including media, who is not there to aid in the execution of the warrant. (Wilson v. Layne, 526 U.S. 60 (1999))

2. Warrant Should Be Executed Without Unnecessary Delay As Probable Cause May Disappear.

3. Knock and Announce

a. General Rule

· Knock and announce principle is part of reasonableness requirement. (Richard v. Wisconsin, 520 U.S. 385 (1997)).

b. Delay Requirement

I. Shortened Time

· If officers have a reasonable fear destruction of evidence, 15-20 second delay is reasonable. (U.S. v. Banks, 540 U.S. 31 (2004))

II. No Announce Required

· If the officers has reasonable suspicion, based upon facts that knocking and announcing would:

1) Be Dangerous; or

2) Be Futile; or

3) Inhibit the Investigation (ex. destruction of evidence). (Richard v. Wisconsin, 520 U.S. 385 (1997)).

c. Remedy For Violation

· The evidence obtained from a violation of the knock and announce rule will not be excluded under the exclusion rule. (Hudson v. Michigan 547 U.S. 586 (2008))

c. Exceptions To The Warrant Requirement

1. Search Incident To A Lawful Arrest

a. General Rule

· Police may conduct a warrantless search upon arrest so long as the arrest did not violate the federal constitution, regardless of if it violated a state constitutions. (Vir