Criminal Procedure Midterm Study Guide

Chapter 1 Amendments - - - - - - Fourth: protects from unreasonable searches and seizures and addresses search warrant rules and regulations. Fifth: Provides protection from double jeopardy and self-incrimination and for grand jury indictment Sixth: provides for a speedy trial and public trial, impartial jury, assistance of counsel, and rights against self-incrimination Eighth: Protects from cruel and unusual punishment and excessive bail Fourteenth: Includes due process clause that incorporates various rights in the Bill of rights 14th amendment’s due process clause 1. Substance due process is protection from arbitrary and unreasonable action on the part of state officials 2. Procedural due process protects a significant life, liberty, or property interest (procedural fairness) 3. The supreme court interprets the due process clause to consist of both types 1st amendment 1. 1st amendment freedom of religion, speech, and assembly and the right to petition to redress of grievances 2. Fishe v. Kansas 274 U.S. 380 (1927) Fourth Amendment 1. Fourth amendment prohibition of unreasonable searches and seizures 2. Specific requirements to guide the warrant process 3. Wolf v. Colorado, 338 U.S. 25 (1949) Fifth Amendment 1. 5th amendment protection against compelled self-incrimination; Mallay v. Hogan, 378 U.S. 1 (1964) 2. 5th amendment protection from double jeopardy; Benton v. Maryland, 395 U.S. 784 (1969) 3. Focuses on the role of the grand jury 4. No person should be “twice put in jeopardy of life or limb” 5. No one can be compelled “to be a witness against himself” 6. The requirement that an individual cannot be deprived of life, liberty, or property without due process law Sixth Amendment 1. 6th amendment right to counsel, speedy trial, public trial, confrontation, impartial jury, and a right to compulsory process 2. In addition to being public, trials should be open, not closed, proceedings. 3. Providing the right of the accused to be present at his or her trial and to be able to put on a defense Eighth Amendment 1. Prohibition of cruel and unusual punishment and excessive bail Bill of Rights****** - Fourteenth: Includes due process clause that incorporates various rights in the Bill of rights Due Process Clause - 14th amendment’s due process clause Substance due process is protection from arbitrary and unreasonable action on the part of state officials Procedural due process protects a significant life, liberty, or property interest (procedural fairness) The supreme court interprets the due process clause to consist of both types Due process model - Individual liberties and rights 1st and foremost, concerned with people’s rights and liberties Gives significant weight to human freedom Human freedom over crime control Due process values Innocent until proven guilty 1. Follows the obstacle course o A criminal process that resembles an obstacle course is one that is complex and needs to be navigated by skilled legal professionals o It is somewhat difficult to operate in a predictable fashion o Doesn’t pride itself on speed and efficiency o Each case must pass through several complicated twists and turns before a verdict can be rendered 2. Metaphor o The obstacle course is rooted in a metaphor 3. Emphasizes quality or quantity o Favors quality o Reaching a fair and accurate decision at every stage of the criminal process o Stresses that each case be handled on an individual basis and that special attention should be paid to the facts and circumstances surrounding the event o Minimizes the potential for error 4. Favors formality o Do not favor informal processes because of the potential for human error and bias, they favor a full-blown adversarial criminal process o Believe that early intervention by judges and other presumptively objective parties is in the best interest of people accused of breaking the law 5. Has faith in the courts o Opposed to law enforcement o Correctly points out that the job of a judge is to interpret the U.S. constitution o This helps provide protection to people charged with crimes o Ties in with formality o When guilt or innocence is determined in court, an air of fairness and objectivity must be maintained 6. Makes a presumption of innocence 7. Seeks to benefit suspects 8. Means justified 9. Maximizes human freedoms 10. Seeks to protect rights at all costs 11. Emphasizes legal guilt Crime control model - Increased police and prosecutorial powers Emphasizes the importance of controlling crime, perhaps to the detriment of civil liberties Crime control values Believe the benefit of controlling crime to society at large outweighs the cost of infringing on some individuals’ due process protections More concerned with the ends 1. Follows the assembly-line metaphor o Criminal process should be automatic, predictable, and uniform o Every criminal should be treated the same, with minimal variations in terms of charges and sentences o Criminal process should be quick and efficient o Move criminals through the justice process as quick as possible 2. Emphasizes quantity or quality o Consistent with assembly-line metaphor o Goal is to move as many offenders as possible through the criminal justice with little delay as possible o If mistakes are made along the way and someone is wrongfully convicted, so be it The overall goal of ensuring that as many criminals are dealt with as possible is superior to protecting any individual’s constitutional rights. 3. Favors informality o The courts are to be avoided; instead, justice should be meted out beyond the walls of a courtroom. Plea bargaining is favored because of its swift, behind-thescenes nature. o Law enforcement establishment should be more involved in making determinations of guilt, not the courts 4. Has faith in the police o Street-justice, giving the police vast discretion in deciding how to deal with people suspected of being involved in criminal activity o All suspects should be considered guilty; if the courts determine otherwise, then so be it. 5. Makes a presumption of guilt 6. Seeks to benefit society 7. Ends justified 8. Maximizes police authority 9. Seeks to control crime at all costs 10. Factual guilt 11. Emphasizes efficiency o Patriot Act - Controversial legislation passed in the wake of the September 11th terrorist attacks. Made several important changes to past law and practice. First it centralized federal law enforcement authority in the U.S. Department of Justice Also provided for Central intelligence agency oversight of all domestic intelligence gathering Case precedent - A rule of case law (i.e., a decision by a court) that is binding on all lower courts and the court that issued it Stare decisis is a Latin term that means to abide by or to adhere to decided cases. 1. This is when a court has handed down a decision on a specific set of facts or legal question, future court decisions that involve similar facts or questions will defer to the previous decision 2. It promotes consistency - Distinguishing cases 1. When a previous decision doesn’t apply to the current facts, a court will distinguish a case saying in effect the case is different and cannot be decided by looking at past rulings 2. Factors of a case are distinguished because they have never been considered by an appellate court and are unique Process - - - a case takes from lowest court to highest Trial- Jury selection if jury trial, prosecutor must meet burden of proof at trial, defendant must present any affirmative defenses by clear and convincing evidence Post adjudication- after conviction or guilty plea- defendant is sentenced and the appeals process begins Federal court structure 1. District court- 94 courts 2. Lowest court at federal level U.S. court of appeals 1. Hears appeals from the district court that falls in its’ circuit U.S. supreme court 1. Highest court in the land 2. Cases must be approved by 4 of 9 sitting justices (rule of 4) writ of certiorari issued if accepted 3. Must be causes with broad sweeping societal significance Tracing progress of a criminal case 1. Trial court- either guilty or not guilty decision is rendered 2. Appellate court can handle cases in several ways (if appeal is granted): -reverse lower court’s decision -vacate lower court’s decision (same as reversing) -remand case to lower court-sent back down to trial court for further action consistent with appellate court’s decision - affirm lower court decision- agrees with trial court - Read what’s starred in Ch 1 of notes and read pages 13-15 and 25-28 Chapter 2 Exclusionary rule - - - - - This is the most significant remedy, in the criminal procedure process. It requires that evidence obtained in violation in the constitution can’t be used in a criminal trial to prove guilt. It was created by the supreme court Boyd v. U.S., 116 U.S. 616 (1886) cases of plate glass were confiscated from defendants under suspicion that documents had been falsified to avoid paying duties/fees. Defendants were ordered by judge to produce documents related to shipments. Defendants argues that they could not be complied to produce evidence against themselves. Arguments against the rule 1. Whether the rule deters police misconduct 2. Whether the rule imposes unnecessary costs on society 3. Whether alternative remedies would be effective and should be pursued When it does not apply 1. Does not apply in grand jury hearings o Grand juries serve investigative functions, it is unlikely the exclusionary rule would have any deterrent effect on law enforcement and the evidence would still be excluded at trial 2. Does not apply to Habeas corpus proceedings o Habeas corpus is the right to pledge that your constitutional rights have been violated o It is not an appeal, it is known as a collateral attack o Since this always follows a criminal trial, the court removed the 4th amendment issues from the list of violations that can be raised in such a petition, assuming they had full and fair opportunity to challenge the violations o Deterrence after the trial would be pointless 3. Parole revocation hearing o Would hinder the function of state parole systems and alter the traditionally flexible administrative nature of parole revocation proceedings o Do not want to destroy neutrality between parolee and officer Exceptions to the Exclusionary Rule 1. “Good Faith” exception o When an honest mistake is made during the course of a search or seizure, any subsequently obtained evidence will be considered admissible o Extended to other situations other than searches and seizures based on detective warrants o Typically, such cases arise where police reasonably rely on information later determined to be incorrect o For examples, if a police officer acts in reasonable reliance on a statute that is later found to be unconstitutional, then the good faith exception doesn’t apply 2. Impeachment exception o Providing that evidence considered inadmissible at one trial can be used in later trial to impeach (attacking the credibility) the defendant o An important limit on the impeachment exception is that it applies only to the impeachment of criminal defendants, not other witnesses. o o Fruit of - Impeachment exception- when you are using evidence to discredit the defendant, this unconstitutionally obtained evidence, may not be able to be used for guilt, but could use to prove dishonesty or is misleading the jury about whom they are. NOT BEING USED TO PROVE GUILTY BUT USED TO DISCREDIT the Poisonous Tree doctrine and exceptions This dates to the Adam and eve story. The poisonous tree is the initial unconstitutional search or seizure. Anything obtained from the tree is considered “forbidden fruit” that should be excluded. 1. Hardone v. U.S., 308 U.S. 388 (1939) -Reaffirmed Silverthorne but noted that it should be left to the discretion of “experienced trial judges” to determine whether “a substantial portion of the case against the accused was a fruit of the poisonous tree” - The poisonous tree is the initial unconstitutional search or seizure, anything obtained from that tree is considered forbidden fruit and should be excluded. -Examples of the fruit of the poisonous tree 1. A suspect is coerced to confess and alerts police to where evidence can be found. Evidence is inadmissible because it’s the fruit of an unconstitutional confession. 2. Police arrest a suspect without probable cause, he confesses. Confession is inadmissible as fruit of an unconstitutional arrest. 3. Police arrest a suspect without probable cause. Suspects rats out 2 co-conspirators that police then arrest. Second set of arrests are the fruit of the poisonous first arrest, assuming the police had no other basis to arrest the co-conspirators. -Exceptions to the fruit of the poisonous tree 1. purge/taint attenuation exception -Court must decide whether the derivative evidence was obtained by exploiting the initial unconstitutional act, or by other means that purged the tainted element of the unconstitutional act. - Wong Sun v. U.S., 371 U.S. 471 (1963)- defendant illegally arrested and released. Defendant returns to station house on own initiative and made statements. Statements admissible because they had become attenuated to the extent that the tainted arrest was purged - Brown v. Illinois, 422 U.S. 590 (1975)- sets forth factors to consider when applying exception - Attenuation exception - Permits the introduction of evidence if it has become attenuated to the extent that it dissipated the taint of the initial unconstitutional act -Should be considered when purged taint applies (1) Whether the Miranda warnings were given prior to voluntary confession; (2) The “temporal proximity” of the illegal police conduct to verbal statements made by a suspect; (3) The presence of intervening events or circumstances; (4) the “purpose and flagrancy of the official misconduct”. Several later cases focused on these four factors to varying degrees. 2. Independent Source- evidence shouldn’t be suppressed if that evidence is later acquired from a constitutionally valid search or seizure. If a search warrant is obtained through an unconstitutional seizure, the warrant and the search conducted under it is illegal. If the warrant is obtained on evidence independent of the unconstitutional search, the warrant and search is valid. - First established in Segura v. U.S.- police initial illegal entry did not exclude evidence as later search warrant was independently supported with evidence that didn’t arise from initial illegal search 3. Inevitable discovery- if evidence would be found regardless of unconstitutional police conduct, it’s admissible -Nix v. Williams- Body of young girl discovered after illegal questioning of defendant was admissible because search party out looking for the girl would’ve found her inevitably - Similar to independent source exception. Some courts have opted to call inevitable discovery exception the hypothetical source exception Attenuation exception- there is intervening or length of time in between the unconstitutional behavior and the obtaining of the evidence, the evidence is obtained that purged the unconstitutional behavior, the evidence would be found another way. Segura v. U.S.******* - - The court ruled that there were no exigent circumstances justifying the initial entry into the apartment. Accordingly, it held that the entry, the arrest of Colon and search incident to her arrest, and the effective seizure of the drug paraphernalia in plain view were illegal. Therefore, the drugs etc. are fruit of the poisonous unconstitutional entry U.S.C. Section 242- A federal statute used to hold police officers (and the government actors) criminally liable for actions that cause violations of people’s constitutional or other federally protected rights - It can be used to prosecute either a state or a federal law enforcement officer - To be held liable under Section 242, a law enforcement officer must act with specific intent to deprive a person of important (or other federal rights) - Constitutional rights must be clearly established U.S.C. Section 1983- A federal statute that provides a remedy in federal court for the “deprivation of any rights… secured by the constitution and laws” of the U.S. also called section 1983 - Liability of state officials - Originally enacted as a part of the KKK act of 1971 imposing liability on state officials who failed to enforce laws against KKK activities. It was rarely used - Monroe v. Pape- officer entered home of James Monroe without a warning and forced occupants to stand naked in the living room while the house was searched. Supreme court held that misuse of authority could support 1983; former chief Justice Rehnquist referred to Monroe as the fountainhead of the torrent civil rights litigation of the last 17 years. - Section 1983 requirements- color of law 1. Color of law- one of the requirements of a successful section 1983 lawsuit is that the defendant, the person being sued, acted under the color of law (in an official capacity) 2. A police officer who appears to be acting within his or her authority while on duty acts under color of law 3. Someone who appears to be acting only in a private capacity, such as that of an ordinary citizen, isn’t acting under color of law - Successful section 1983 Lawsuit 1. Color of law; constitutional rights violations; theories of liability; qualified immunity - Section 1983 conditions of color of law 1. They have identified themselves as officers 2. They are performing a criminal investigation 3. They have filed official police documents 4. They are making an arrest 5. They are invoking police powers in or outside their jurisdiction 6. They are settling a personal vendetta with police power 7. They are displaying weapons or police equipment 8. ONE OR MORE OF THESE CONDITIONS SHOULD BE SATISFIED - Section 1983 requirements constitutional violation 1. Plaintiff must establish that the defendants conduct violates a specific constitutional provision. Daniels v. Williams 2. Violations must be committed with a certain level of culpability, officer intended for violation to occur 3. The level of culpability varies depending on the type of unconstitutional conduct alleged by the plaintiff - Non-Judicial remedies 1. Internal review 2. Civilian review 3. Mediation 4. non-Judicial remedies are important because they are available where neither the exclusionary rule nor civil liability are variable options - Section 1983 Requirements Theories of Liability 1. The three most common theories of liability under section 1983 - Supervisory liability- manager or supervisor is held liable for the officer working under them. There must be a clear link between the supervisor and the constitutional violation committed by a subordinate. Rizzo v. Goode. - Municipal/County liability- can be held liable if they adopt and implement policies and or customs that result in constitutional rights violations. - Individual liability- Plaintiff must demonstrate that his or her constitutional rights were violated by someone acting under color of state law. As a result, of these numerous amendments have been implicated in Section 1983 cases. - Bivens claims 1. Primarily limited to law enforcement officers. Other federal officials enjoy absolute immunity, meaning that the official cannot be sued under any circumstances, at least as far as their official duties are concerned Defenses to Section 242***** - Defenses to Section 1983 - Qualified immunity 1. Created to accommodate two conflicting policy concerns: - Effective crime control and protection of people’s civil liberties 2. Court recognizes it is unfair to hold officials liable for lapses in judgement and honest mistakes 3. Objective reasonableness standard has been applied in order to determine if qualified immunity should be extended to criminal justice officials who are defendants 4. In some cases, defendants have benefitted from qualified immunity, even for violating clearly established constitutional rights, provided that the defendants’ mistaken belief was objectively reasonable 5. Qualified immunity thus affords protection to defendant criminal justice officials not just for reasonably mistaken beliefs, but for any number of actions that are objectively reasonable under the circumstances Chapter 3 Fourth Amendment basic info - Core purposes and elements of the fourth amendment 1. The Fourth Amendment was written to address one of primary grievances (smuggling activities, issued writs of assistance, and no judicial supervision to limit the scope of searches) early American colonists had toward the Crown. 2. The Fourth Amendment continues to serve its purpose in restricting government intrusions in the private lives of citizens. - - Fourth amendment clauses 1. The Fourth Amendment contains two basic clauses: o Reasonableness clause which proscribes unreasonable searches and seizures o Warrant clause which states that no warrants shall be issued, but upon probable cause, supported by the Oath and particularly describing the place or persons to be searched. Fourth amendment terminology 1. The Fourth Amendment protects persons, house, papers and effects from unreasonable searches and seizures. 2. Persons encompasses the individual both internally and externally. 3. An arrest is a seizure of a person, a police officer pulling up the sleeves of a suspected drug user looking for track marks is a search. 4. House is any structure that person uses as a residence on either temporary or longterm basis 5. A hotel room is considered a house as it is a temporary residence, a garage not connected to a house can also fall with the meaning 6. Papers and effects include nearly all personal items. Effects is the “catch all” category which covers just about anything. Fourth amendment search - What is a search 1. A search is an activity geared toward finding evidence to be used in a criminal prosecution - - 2. To define when a search takes place, two factors are important: 3. The search must be of government action 4. Does the intrusion violate a person’s reasonable expectation of privacy. When does a “Search” Occur 1. Not every act of looking for evidence is considered a “search” within the meaning of the Fourth Amendment. 2. If a private citizen conducts a search, they are not bound by the Fourth Amendment because they are not government actors. 3. Fourth Amendment protects citizens from government actions. 4. A search can also take place where a person has a reasonable expectation of privacy. When does a private search become governmental? 1. When a government official receives the objects seized by a private party and subjects them to additional scrutiny. 2. Walter v. U.S., 447 U.S. 649 (1980) – film canisters recovered by private party and turned over to FBI who viewed film. Court ruled that FBI’s actions turned private search into a governmental search. Agents should have obtained a warrant prior to viewing film. 3. U.S. v. Jacobsen, 466 U.S. 109 (1984) – modified Walter and said the governmental search must be substantially more intrusive for the 4th amendment to be triggered. Fed Ex employee opened damaged package and found packages containing a white powder. Federal agents then conducted field tests on them. Court held that agents viewing what a private party had freely made available to them did not violate 4th amendment and the field test had a minimal impact on any protected property interest. Fourth amendment seizure - - What is a seizure 1. Seizure has a dual meaning in criminal procedure. The result of a search is to seize property to be used as evidence. Also, an arrest at any time can be considered a seizing a person. 2. First, property can be seized. Often the result of a search is a seizure of property to be used as evidence 3. Second, people can be seized. An arrest is a seizure within the meaning of the 4th Amendment. When does a seizure occur? 1. An object need not be physically grasped for a seizure to take place. 2. Police can stop short of touching a person, but their actions can still constitute a seizure. There are other things that police can do without triggering the 4th amendment. - - 3. Distinguish between: 4. Seizure of property 5. Seizure of persons 6. Different rules apply to each. Seizures of property 1. A seizure of property occurs when there is some meaningful interference with an individual’s possessory interest in that property. U.S. v. Jacobsen, 466 U.S. 109 (1984). 2. Courts refer to actual and constructive possession in determining if a piece of property is seized. 3. Actual possession – person is physically holding or grasping the property. 4. Constructive possession – possession of property without physical contact. 5. Property is seized if police remove it from a person’s actual or constructive possession. Seizures of persons 1. When an officer by means of physical force or show of authority intentionally restrains an individual’s liberty in such a manner that a reasonable person would believe that he is not free to leave. 2. Would a reasonable person believe that he is free to decline the officer’s requests or terminate the encounter? 3. A person can be seized in several ways: 4. Arrest (Dunaway v. NY, 442 U.S. 200 (1979)) 5. Physically restrained for the purpose of being frisked (Terry v. Ohio, 392 U.S. 1(1968)). 6. Being questioned if officer’s conduct in conjunction with the questioning would make reasonable person believe that they are not free to leave. 7. A person can be seized in several ways: 8. Seizure can occur by pursuit however it is not always clear. What are implications of pursuit NOT being seizure? 9. California v. Hodari D., 499 U.S. 621 (1991) clarifies – when an officer chases a subject but does not lay hands on him/her, a seizure does not occur until the suspect submits to police authority. A seizure occurs the instant a police officer lays hands on a suspect during a chase even if the suspect can break away from the officer’s grasp Fourth Amendment Reasonableness - Protections of the Fourth Amendment triggers questions on whether the police were in line with the Fourth Amendment requirements. Did the police have adequate reason to believe the person arrested in fact committed the crime? - When courts focus on reasonableness of a search, they speak in terms of justification. If there is no justification by the police, then the Fourth Amendment is violated. The only justification mentioned in the 4th amendment is probable cause. READ THROUGH SLIDES 2-31 FOR ADDITIONAL INFORMATION Justification - - If government’s action constitutes a search or seizure, the next fundamental inquiry is justification. The police need to have justification or cause BEFORE (a priori) they can conduct a search or seizure. Probable cause is the only standard mentioned in the 4th amendment but the Supreme Court has invoked the amendment’s reasonableness clause to carve out exceptions to the probable cause requirement. 3 primary levels of justification: Probable Cause Reasonable suspicion Administrative Justification READ PAGE 72 IN TEXTBOOK Terry v. Ohio********* Stop and frisk Two men in front of convenient store Found weapons after Was reasonable suspicion justified Reasonable suspicion - A level of justification lying below probable cause, and is “considerably less than proof of wrongdoing by a preponderance of evidence” However, it is vaguer than a hunch In short, reasonable suspicion must be based on articulable facts that connect the suspect to criminal activity The key factor is knowledge of articulable facts, which is an even that is witnessed and can be explained, as opposed to a gut reaction or a mere hunch. Chapter 4 Components of general warrants - An arrest or search warrant has three essential components: Must be issued by a neutral and detached magistrate Probable cause is required Conform to the Fourth Amendment requirements First requirement is the same regardless of the type of warrant, PC and particularity requirements differ depending on type of warrant. Requirements for an arrest warrant - - - Particularity in an arrest warrant 1. There are two ways to satisfy the Fourth Amendment’s particularity requirement. 2. Supply the suspect name (if known) 3. Supply a specific description 4. If other officers may locate the suspect with reasonable effort, the suspect’s name is not required. 5. If probable cause exists, the name of the suspect is not essential, regardless of whether a warrant is issued. Arrests with warrants 1. It is not the legality of an arrest matter by itself. What is important is that an unconstitutional arrest can lead to the exclusion of evidence. 2. Arrest requires probable cause 3. Stops only require reasonable suspicion. Stop v. Arrest 1. A stop can develop into an arrest if the circumstances dictate. 2. Different justification for each: A stop requires reasonable suspicion; an arrest requires probable cause. - - - - - 3. Police must do more than restrict a person’s movement for an arrest to occur. In Terry, court distinguished between arrests that lead to prosecution and lesser intrusions that occur when a police officer restrains a person’s freedom to walk Facts to distinguish between a stop and an arrest 1. A stop can develop into an arrest if the circumstances dictate. A seizure that is so intrusive may constitute a de facto arrest 2. Courts generally weigh (1) the duration of a stop and (2) the degree of intrusion in assessing whether a stop evolved into an arrest 3. Florida v. Royer, an investigative detention must be temporary and be no longer than is necessary to effectuate the purpose of the stop. 4. Cases illustrating this fall into 4 categories (1) stationhouse detentions (2) street encounters (3) border detentions and (4) home detentions When an arrest warrant is required 1. Carroll v. U.S. – Arrest warrant is NOT required if an officer has probable cause to believe that: 2. A person was committing or had committed a felony 3. A person was committing a certain misdemeanor in the officer’s presence, then an arrest warrant was not required. 4. Court still adheres to this with 2 exceptions. Absent exigent circumstances: 5. An arrest in someone’s private home cannot be made without a warrant 6. An arrest in the home of a third party Arrests in the home 1. Payton v. New York – 4th amendment prohibits warrantless, nonconsensual entry into a private home for the purpose of making an arrest. 2. After investigation, Payton identified as suspect in a murder. Officers arrived to arrest him and used a crowbar to enter his home. Payton not present, but they found a shell casing that was admitted at Payton’s trial. 3. Supreme Court overruled admission of evidence and established this bright-line rule “absent exigent circumstances, an arrest in the home must be accompanied by a warrant. Physical entry of the home is the chief evil against which 4th amendment directed.” Arrests in a 3rd party home 1. Having an arrest warrant does not allow authorities to enter third party homes. 2. A warrantless search into a third-party residence violates the 3rd party’s rights. 3. 2 exceptions: 4. Third party consents 5. Exigent circumstances 6. See Steagald v. United States – Third party’s home searched without warrant for arrestee and cocaine was found. Police must have arrest warrant AND a separate warrant to search third party residence for arrestee. Executing an arrest warrant 1. Police cannot use any means available to effect an arrest. Cannot kick in a door without reason to do so and cannot use deadly force unless necessary. 2. Policies are specified in police department manuals, but 4 issues are to be considered: - 3. Knock and announce presence 4. Property damage is acceptable 5. When deadly force can be used 6. Consequences of arresting the wrong pers READ THROUGH SLIDES 23-28 CHAPTER 4******* Requirements for a search warrant - Particularity in a search warrant 1. The particularity requirement for a search warrant also has two elements: 2. Must specify the place to be searched 3. Steele v. U.S. 267 U.S. 498 (1925) Does not need to state with absolute precision the place to be searched. If the officer ‘with reasonable effort can identify the place intended’. 4. Maryland v. Garrison, 480 U.S. 79 (1987) Even if the warrant incorrectly specifies the place to be searched, the warrant may still be valid if officer’s error was reasonable in ascertaining location 5. Must specify the item to be seized 6. Contrast Lo-Ji with Andresen v. Maryland - Searches with warrants 1. Searches with warrants are subjected to many of the same restrictions as arrests with warrants. Because warrants are searching for things, Courts have placed restrictions on what police can do when searching for evidence with warrants. 2. The fact that a warrant has been obtained does not mean the police can search anywhere or take an unlimited time to search. Executing a search warrant 1. Knock and announce still applies unless exigent circumstances present. However, evidence can’t be excluded for failure to knock and announce. See, Hudson. 2. Use of force rarely an issue, but if a person gets in the way, they may be arrested, and force may be applied if necessary. 3. Reasonable mistakes will not exclude evidence if it is ‘objectively reasonable’, gauged from the standpoint of a reasonable officer. 4. Police can request a warrant with special instructions like no knock, nighttime service, etc. Issues relevant to service of a search warrant 1. Time restrictions (both for when the warrant can be served and for how long the police can look for evidence 2. The scope and manner of the search - - - - - - - 3. The procedure after the service of the search warrant 4. The presence of the media during the services of a search warrant Time constraints 1. There are three restrictions imposed in regard to the timing of a search warrant: 2. The search should take place promptly once issued. Probable cause could dissipate if too much time lapses. 3. Time of day (typically daytime hours 6 a.m. – 10 p.m.) 4. Length of search cannot last indefinitely. Once item(s) are found the search must be terminated. 5. Can take as long as necessary to find item 6. If they fail and leave location, they need to have another warrant to search again. Scope of search 1. Scope refers to the where the pole can look for evidence. Scope must be reasonable based on object of search – diamond ring vs. large screen television. 2. Police may detain people at location as needed while search taking place. Michigan v. Summers 3. Police may not detain people outside the premises being searched such as individuals fleeing scene of search in a vehicle. Bailey v. U.S. 4. Police may not search individuals while warrant being served unless PC exists. A frisk is permissible based on reasonable suspicion that there is a risk to officer safety. Ybarra v. Illinois. Manner of search 1. Manner refers to the physical steps the police can take to find the evidence in question. The manner of the search must be limited to what is reasonably necessary to find the evidence in question 2. Excessive or unnecessary destruction of property may violate 4th amendment even though entry itself is lawful and fruits of the search are not subject to suppression. U.S. v. Ramirez 3. Officers can detain people – even in handcuffs- in order to complete search. Muehler v. Mena 4. Federal Law (U.S.C. 3109) authorizes officers to break open doors and containers if they are refused admittance. After service of a search warrant 1. After a search warrant has been served, the police are required to conduct an inventory of all items seized. 2. Typically, the inventory would take place in front of the person whose property was seized. A copy is then given to person. 3. Helps assure the subject of the search that his property has been accounted for 4. If no one was home at the time of the search, the list is to be left at the location in a prominent place. 5. Police are not required to advise subject how to retrieve his/her property. READ THROUGH SLIDES 36-39 CHAPTER 4 Exceptions for arrest warrant****** Exceptions for search warrant***** - Exigent circumstances, probable cause, hot pursuit, preventing from escape, or preventing the destruction of evidence. Stop v. Arrest v. Nonarrest - - - - Stop v. Arrest 1. A stop can develop into an arrest if the circumstances dictate. 2. Different justification for each: A stop requires reasonable suspicion; an arrest requires probable cause. 3. Police must do more than restrict a person’s movement for an arrest to occur. In Terry, court distinguished between arrests that lead to prosecution and lesser intrusions that occur when a police officer restrains a person’s freedom to walk away. Facts to distinguish between a stop and an arrest 1. A stop can develop into an arrest if the circumstances dictate. A seizure that is so intrusive may constitute a de facto arrest 2. Courts generally weigh (1) the duration of a stop and (2) the degree of intrusion in assessing whether a stop evolved into an arrest 3. Florida v. Royer, an investigative detention must be temporary and be no longer than is necessary to effectuate the purpose of the stop. 4. Cases illustrating this fall into 4 categories (1) stationhouse detentions (2) street encounters (3) border detentions and (4) home detentions Arrests v. Stops v. Nonstops 1. The courts weigh 4 factors in making decision: 2. The purpose of the stop (to question or interrogate) 3. The way the stop takes place (one officer or several) 4. The location of the stop (stationhouse, street, or home) 5. The duration of the stop 6. No single fact is determinative, courts weigh each case individually based on factors identified in case precedent. Non-Stop- A nonstop occurs when a reasonable person would believe that he or she is free to leave Tennessee v. Garner******* Use of deadly force Man escaping over fence over low level crime Ruled that deadly force was unconstitutional in this case Graham v. Connor******* Officer saw two men walk out of a convenient store and believed they committed a crime Handcuffed them and began a search and seizure Questions reasonableness Use of force must be justified on whether the objective officer would handle the same Chapter 5 Warrantless searches - The four types of warrantless searches are: Searches incident to an arrest. Searches conducted under exigent circumstances. Searches involving automobiles; and Searches based on the “plain view” doctrine. Other warrantless searches exist such as consent searches, but they do not require probable cause. Warrantless arrests - Two types of warrantless arrests have been authorized by the Supreme Court. First, if exigent circumstances are present, the police may make a warrantless arrest. Probable cause is required, however. Second, an arrest in public can be made without a warrant. Even certain minor offenses can support arrest in public places. Searches incident to arrest - - When arresting a suspect, police officers must be permitted to search the person and the immediate area to protect the officers from harm and to prevent the destruction of evidence. It would be dangerous to prohibit police from searching arrestees for weapons, and impractical to wait for a warrant before conducting such a search. Chimel v. California – Chimel was arrested in his home. He and his home were searched. Court held that the search of the home was unreasonable, but search of his person was permitted ‘to remove any weapons that he might seek to use to resist arrest or effect his escape and to ‘seize any evidence on his person in order to prevent its concealment or destruction.’ Scope of a search incident to arrest - - A search incident to arrest is also limited scope, or the area that may be searched. U.S. v. Rabinowitz first addressed this, and Supreme Court allowed a search of a one room business incident to arrest. Chimel clarified Rabinowitz to mean that area ‘in the possession or under the control of the person to be arrested can be searched. The ‘armspan’ rule evolved. The armspan rule states that a search incident to arrest would now be limited to the area “within the immediate control” of the person arrested—that is, “the area from within which he might have obtained either a weapon or something that could have been used as evidence against him.” Washington v. Chrisman – officer followed student suspected of underage drinking to his dorm room to get his ID and found marijuana and drug paraphernalia in plain view. Court upheld seizure of evidence. Every arrest is presumed to be a risk of danger. Reasonable for officer to follow suspect to prevent escape. Searches based on exigent circumstances - When the exigencies, or emergency circumstances of the situation require the police to act immediately to avoid danger to themselves, danger to others, the destruction of evidence, or the escape of the suspect, it would be unreasonable to require the police to take time to obtain a warrant. - Generally, 3 types of exigencies are recognized by the courts authorizing police to act without a warrant: Hot pursuit Likelihood of escape or danger to others Evanescent evidence Plain view seizure - - - A plain view seizure is authorized when: The police are lawfully in the area where the evidence is located. The items are immediately apparent as subject to seizure; and The discovery of the evidence is inadvertent. Lawful access requirement 1. Plain view alone is never enough to justify the warrantless seizure of evidence. 2. No amount of probable cause can justify a warrantless search or seizure absent “exigent circumstances.” 3. Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. The “Immediately apparent” requirement 1. Immediately apparent means that the officer has probable cause to seize the object. 2. Keep in mind that immediately apparent has virtually the same meaning as probable cause to seize. The role of inadvertency 1. If an officer who anticipates discovering evidence of a crime should seek prior judicial authorization (a warrant). 2. If an officer is interested in an item of evidence and fully expects to find it during a search should not invalidate its seizure if the search is confined in area and duration by the terms of the warrant or a valid exception to the warrant requirement. Automobile exception - - - - Automobile searches 1. The warrantless search of an automobile is permissible when: 2. There is probable cause to believe the vehicle contains evidence of a crime and 3. Securing a warrant is impractical. Five characteristics of automobiles 1. Travel on public roads. 2. Are subject to state regulations and licensing requirements. 3. Are subject to other strict regulations. 4. Are subject to periodic inspections; and 5. May be impounded for public safety reasons Requirements for warrantless vehicle searches 1. Three general requirements must be met for a valid warrantless vehicle search: 2. The exception must only apply to automobiles. 3. With one exception, such a search must be premised on probable cause: and 4. It must be impractical to obtain a warrant (i.e., the vehicle stop must be such that it is impractical, burdensome, or risky to take time to obtain a warrant). Level of justification for automobile searches 1. Level of intrusion -Search entire car, including containers -Search passenger compartments and containers -Weapons search of passenger compartments and containers -Order occupants out of car -Inventory search 2. Justification required - Probable cause to search - Probable cause to arrest occupant - reasonable suspicion/ fear of safety - Reasonable suspicion to stop - Administrative Reasonable suspicion short answer definition- Reasonable suspicion is when the officer has reasonable articulable facts to believe that a crime has been or is about to be committed. It must be more than a hunch.