Criminal Procedure
Professor Van Hoek
Fall 2010
14th Amendment: No state shall deny people life, liberty, property without providing them Due Process of law
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 probably cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized…the right to be left alone
I. Searches and seizure
a. 2 clauses
i. “Reasonableness” clause
1. 1st clause of the 4th only protects you from unreasonable searches and seizures. To determine reasonableness, it is based on the reasonable (innocent) ordinary person)
ii. Probable clause
1. Requires that warrants be issued by neutral, disinterested magistrate; based on PC to believe that the evidence sought will aid in a particular apprehension or conviction of a particular offense
2. For warrant: describe the things to be seized as well as place to be searched
3. Does refusal to cooperate give police greater grounds for probable cause to detain or arrest? NO
b. 3 types of searches and seizures
i. Minor league searches and seizures (small category, Terry)
1. Governed by the “reasonableness” clause
2. Stop and frisk
3. Done for the police’s protection only
ii. Major league searches and seizures
1. Needs probable cause and a warrant, or a warrant exception (most legal searches are without warrants) for a search
2. To arrest someone you need probable cause
a. Inside outside rule
iii. Administrative/special needs searches and seizures (small category)
1. Governed by “reasonableness” clause
2. Check lanes
3. Drug testing
4. Inventory search
5. Non-criminal
c. What is a seizure of a person/ what conduct of police takes usage of the 4th?
i. When can police make you stop?
1. Consensual encounters: may/may not chose to engage in conversation with police. Police may not force you to answer: “What time is it?”
2. When he has reasonable suspicion (Terry)
3. Arrest based on probable cause
ii. A seizure is different than an arrest because it is presumptively brief
iii. Minor league seizure
1. Terry stop: Seizure of the personà 2 part test
a. A reasonable person believes they are not free to leave, restraining their liberty (doesn’t have to result in an arrest)
b. Officer, by means of physical force or show of authority along with submission
2. California v. Houdari
a. “Stop in the name of the law” isn’t a seizure, UNTIL there is submission
b. You must have a show of authority and submission (voluntary of by physical force) to be a seizure. Once the person breaks the seizure, by running away, there is no longer a seizure
3. Florida v. Bostick
a. The correct test for a stationary suspect (one sitting down) is: ‘would a reasonable person believe that he was not at liberty to ignore the police presence and go about his business
b. You have a right to say you don’t consent, but if so, is this enough reasonable suspion?
i. O’Conner says standing alone “no” isn’t enoughà but if other factors, there may be cause to search
4. Some stops are reasonableà balancing tests and reasonable suspicion test
a. Balance the governmental interest vs. the degree of intrusion
i. There is a GI in preventing crime
ii. The degree of intrusion must not be that intrusive and presumptively brief
b. Reasonable suspicion
i. Not a very high standardà less than 50 percent
ii. Reasonable suspicion that crime had occurred or will occur (ongoing activity, criminal escapee)
iii. Totality of circumstances: what officer is supposed to look at to find reasonable suspicion
1. Must justify with specific and articulable facts and circumstancesà officer can get this information from ANYWHERE
2. Evidence, interference, hearsay
3. A hunch is NOT enough, but it doesn’t mean the officer has to be right
4. Hypo: Officer Jones has reasonable suspicion of criminal activity that Mary passed a bad check at 7-11. Can he stop her? Yes; frisk her? No
a. Must have reasonable suspicion of criminal activity to stop
b. Must have reasonable suspicion that armed and dangerous to frisk
i. So, if reasonable suspicion that Mary committed an armed robberyà than can frisk because of armed and dangerous suspicion
c. To determine reasonableness of stop; look to:
i. Trigger
ii. Scope- physical scope
1. Difference between arrest and Terry: presumptively brief for Terry
iii. Time limit
iv. Rationale
1. GI v. DI?
v. If seizure on exam:
1. Terry?
a. How brief?
b. Totality of circumstances?
2. Sibron is good case for when it is NOT a valid seizure
a. Cop watched D for hours while he talked to known drug dealersà cop lacked reasonable suspicion for seizure (as well as search) D was only talking and wasn’t doing anything wrong
5. Stop and Frisk
a. Not a full blown search that yo
medicine cabinet, but if he sees weed, its in plain view and can seize it
iii. Buie is search incident to an arrest rule: If they are in the home arresting, they may search the person and area around them. If there is someone else in the home, they may do a home sweep
1. Securing the house is a defense argument…prosecution will argue exigent circumstances, but defense will say cops should have secured the home and that alleviates exigent circumstances
iv. Limited sweep
1. Physical: sweep is limited to a brief, cursory, visual inspection of places where a person could be hiding
2. Time: sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger
a. May continue detention so long as reasonable
i. Sharpe: Officers pull over camper and car- hold car while securing the camper, obvious that they were traveling togetherà court held that the car wasn’t held too long because the officers worked as quickly as they could
ii. Look at whose fault it is for the delay when determining if the continue detention is reasonable
v. Seizure during the sweep?
1. Summers: officers arrived at D’s house with a search warrant and made him stay while they searched the houseà OK!
a. Justified by balancing test
i. Make an orderly search (If person there, officer don’t need to destroy things to get inside/access)
ii. Keeps D from fleeing
iii. Keeps D from bringing back others to do harm
iv. Major league seizure
