Criminal Procedure

Fourth Amendment Rule Statement

• The Fourth Amendment broadly prohibits unreasonable searches and seizures

• (Fourth Amendment is applicable to the states through the Fourteenth Amendment’s Due Process Clause)

Definition of “Seizure”

Any exercise of control by a government agent over a person or thing

Seizure of a Person

• A seizure occurs when, under the totality of the circumstances, a reasonable person would feel that they were not free to decline the officer’s requests or otherwise terminate the encounter

• There must be an application of physical force or a submission to a show of force

Probable Cause to Arrest

An arrest must be based on probable cause: trustworthy facts or knowledge sufficient for a reasonable person to believe the suspect has committed or is committing a crime for which arrest is authorized by law

When is a warrant required for an arrest?

• A warrant is generally not required before arresting a person in a public place

• Police generally must have a warrant to effect a nonemergency arrest of a person in their homePolice can also arrest with a warrant if they have probable cause.

Terry Stops

• If the police have reasonable suspicion of criminal activity, they may briefly detain a person for investigative purposes

  • Reasonable suspicion requires something more than a hunch, but a lesser showing than probable cause

• If police have reasonable suspicion that the detainee is armed and dangerous, they may frisk the detainee for weapons

Reasonable Suspicion

• More than a hunch, but less than probable cause

• Whether police have reasonable suspicion depends on the totality of the circumstances

• Where reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability

Duration and Scope of Terry Stops

• Investigatory stops are not subject to a specific time limit

• Police must act in a diligent and reasonable manner in confirming or dispelling their suspicions

Automobile Stops

• Police may stop a car if they have at least reasonable suspicion to believe that a law has been violated

• A police officer’s mistake of law does not invalidate a seizure as long as the mistake was reasonable

• An automobile stop constitutes a seizure of all occupants

• If the officer reasonably believes the detainees are armed, the officer may frisk the occupants and search the passenger compartment for weapons

Traffic Stops and Police Dogs

During routine traffic stops, a dog sniff is not a search, so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries

Informational Checkpoints and Roadblocks

• Police may set up a roadblock for purposes other than seeking incriminating information about the drivers stopped.

• If special law enforcement needs are involved, the roadblock must:

  • Stop cars on the basis of some neutral, articulable standard (e.g., every car) and

  • Be designed to serve purposes closely related to a problem pertaining to automobiles

Pretextual Stops

If police have probable cause to believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop

Detention to Obtain a Warrant

If police have probable cause to believe that a suspect has hidden drugs in their home, they may, for a reasonable time, prevent the suspect from going into the home unaccompanied while police obtain a search warrant

Fourth Amendment: Governmental Conduct

• The Fourth Amendment generally protects only against governmental conduct

• It does not protect against searches by privately paid police unless they are deputized as officers of the public police

  • E.g., security guards and campus police

Fourth Amendment Standing

To object to an evidentiary search and seizure, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized

Reasonable expectation of privacy

• A person has a REOP any time:

  • They own or have a right to possession of the place searched

  • The place searched was in fact their home

  • The person was an overnight guest of the owner of the place searched

• Sometimes: Owner of property seized

  • The owner of seized property has standing only if they have a reasonable expectation of privacy in the item or area searched

• No REOP: Objects held out to the public

Fourth Amendment and Sense-Enhancing Technology

Use of sense-enhancing technology that is not in general public use to obtain information from inside a suspect’s home that could not otherwise be obtained without physical intrusion violates the suspect’s reasonable expectation of privacy

Requirements of a Valid Warrant

• Probable cause

• Particularity: A warrant must describe with particularity the place to be searched and items to be seized

• Neutral and detached magistrate

Execution of Warrants

• Warrants must be executed without reasonable delay

• Police must knock and announce their presence unless doing so would be dangerous or futile

• The scope of search is limited to what is reasonably necessary to discover the items described in the warrant

• A search warrant authorizes police to detain (but not search) occupants of the premises

Exceptions to the Warrant Requirement

1. Search incident to constitutional arrest

2. Automobile exception

3. Plain view

4. Consent

5. Stop and frisk

6. Hot pursuit/evanescent evidence/emergency aid

Search Incident to Constitutional Arrest

• Incident to a constitutional arrest, police may search the arrestee’s person and areas into which they might reach to obtain weapons or destroy evidence

• Police may make a protective sweep of the area if they believe accomplices may be present

• Police may search the passenger compartment of an automobile if:

  • The arrestee is unsecured and still may gain access to the interior of the vehicle; or

  • Police reasonably believe that the vehicle contains evidence of the crime of arrest

• At the police station, police may make an inventory search of the arrestee’s belongings or an impounded vehicle

Automobile Exception

• If police have probable cause to believe a vehicle contains contraband, they may search the whole vehicle and any container that might reasonably contain the item

• Police may tow the vehicle to the station and search it later

• If police have probable cause only to search a container in a vehicle, they may search only the container

• The necessary probable cause can arise after the car is stopped, but must arise before anything or anybody is searched

Plain View: Warrant Exception

Police may make a warrantless seizure when they:

• Are legitimately on the premises

• Discover contraband

• See such evidence in plain view

• Have immediate probable cause to believe that the item is contraband

Consent: Warrant Exception

• A warrantless search is valid if the police have voluntary consent

• Knowledge of the right to withhold consent is not required

• The search cannot exceed the scope of consent

• Any person with an apparent equal right to use or occupy the property may consent

  • An occupant cannot give valid consent when a co-occupant is present and object

  • If an objecting co-occupant is removed for a reason unrelated to the refusal, the police may act on the consent of the remaining occupant

Stop and Frisk: Warrant Exception

• Police may stop a person without probable cause if they have an articulable and reasonable suspicion of criminal activity

• The officer may conduct a protective frisk if he reasonably believes that the person may be armed and dangerous

  • Scope of the frisk is generally limited to a patdown of outer clothing

  • The officer may seize any item that he reasonably believes, based on plain feel, is a weapon or contraband

Evanescent Evidence: Warrant Exception

Evidence that might disappear quickly if the police took the time to get a warrant

• A police officer can scrape under a suspect’s fingernails without getting a warrant

• A warrant is required for a BAC test if practical

Hot Pursuit: Warrant Exception

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may pursue the suspect into a private dwelling

• Rule of Thumb: If police are not within 15 minutes behind the fleeing felon, the exception does not apply

Emergency Aid: Warrant Exception

Police may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public

Administrative Inspections and Searches

• Inspectors must have a warrant for searches of private residences and commercial buildings

• Probable cause required to obtain a warrant is more lenient than for other searches

• A showing of a general and neutral enforcement plan will justify issuance of a warrant

Public School Searches

Only reasonable grounds for the search are necessary

• Moderate chance of finding evidence of wrongdoing

• Measures adopted to carry out the search are reasonably related to the objectives of the search

• The search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction

Border Searches

No showing of suspicion is needed to conduct a search at the U.S. border

Fourteenth Amendment: Voluntariness

• For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary

• A statement will be involuntary only if there is some official compulsion

• If an involuntary confession is admitted into evidence, the harmless error test applies

  • The conviction need not be overturned if there is other overwhelming evidence of guilt

Sixth Amendment Right to Counsel

• Guarantees the right to assistance of counsel in all critical stages of a prosecution after judicial proceedings have begun

• Prohibits police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged

• The Sixth Amendment is offense specific

• Waiver must be knowing and voluntary

Remedy for Sixth Amendment Violations

• If a violation occurs during non-trial proceedings, the harmless error rule applies

• A violation during trial results in automatic reversal of the conviction

• A statement obtained in violation of a defendant’s Sixth Amendment right to counsel is inadmissible in the prosecution’s case-in-chief but can be used to impeach

Miranda: Custodial Interrogation

Miranda warnings are required prior to custodial interrogation by the police.

• Custody: Two-step test

  • Whether a reasonable person would feel free to terminate the encounter and leave

  • Whether the relevant environment presents the same inherently coercive pressures as station house questioning

• Interrogation: Any words or conduct by police that they should know are likely to elicit an incriminating response

• Governmental Conduct: Warnings are generally only necessary if the detainee knows they are being interrogated by a government agent

  • Warnings are not necessary when the detainee is being interrogated by an informant

Miranda: Waiver

• Waiver must be knowing and voluntary

  • It is probably sufficient if the detainee received the warnings and chose to answer questions

Miranda: Invocation of Right to Remain Silent

• Invocation must be explicit, unambiguous, and unequivocal

• If the detainee invokes their right to remain silent, the police must scrupulously honor the request by not badgering the detainee

• SCOTUS allowed police to reinitiate questioning when:

  • Police waited a significant amount of time

  • The person was re-Mirandized

  • The questions were limited to a crime that was not the subject of the earlier questioning

Miranda: Invocation of Right to Counsel

If the detainee unambiguously indicates that they wish to speak to counsel, all questining must cease until counsel has been provided unless the detainee:

1. Waives their right to counsel by reinitiating questioning

2. Is released from custody and 14 days have passed since release

Miranda: Effect of Violation

• Statements obtained in violation of the Miranda rules may be used to impeach the defendant’s trial testimony, but may not be used as evidence of guilt

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