4A: Evidentiary Search and Seizure

Approach to Evidentiary Searches and Seizures

(1) Does D have a 4A right (seizure by government concerning a place or thing in which D had a reasonable expectation of privacy) or does the search involve physical intrusion into a constitutionally protected area? (2) Did the police officers have a valid warrant; (3) If no warrant, did an exception apply?

Standing

A person must have their own reasonable expectation of privacy with respect to the place searched or the item seized, based on the totality of the circumstances

Standing Always Exists:

(1) The person owned or had a right to possession of the place searched; (2) the place searched was in fact their home regardless of ownership or right to possession; and (3) if the person was an overnight guest of the owner of the place searched

“Sometimes” Category of Standing

If the person owns the property seized. Standing only if there is a reasonable expectation of privacy

Things Held Out to the Public

A person does not have a reasonable expectation of privacy in objects held out to the public. This generally includes information in the hands of third parties but not cell-site location information.

Things Held Out to the Public Examples

the sound of your voice; the style of your handwriting; the paint on the outside of the car; account records held by a bank; the location of the car on a public street or highway (unless LEOs attach a GPS); anything that can be seen across open fields; anything that can be seen from a public airspace; odors emanating from your person, luggage, car, etc.; and garbage set out on the curb for collection

Two Core Requirements for a Facially Valid Search Warrant

(1) probable cause that seizable evidence will be found on the person or premises at the time of execution, supported by affidavit of facts; and (2) particularity as to the places to be searched or the objects to be seized

Probable Cause: use of Informers

An affidavit based on an informant tip must have sufficient indicia of reliability and credibility under the totality of the circumstances

Invalidating a Search Warrant

A defendant may invalidate a search warrant by establishing (1) a false statement was included in the affidavit by the affiant; (2) the affiant intentionally or recklessly included the false statement; and (3) the false statement was material to the finding of probable cause

Reliance on Invalid Warrant

Evidence obtained by the police in reasonable reliance on a facially-valid warrant may be used by the prosecution despite an ultimate finding that the warrant was not supported by PC

Warrant Precise On Its Face

A warrant must describe with particularity the place to be searched and items to be seized. This must be on the actual warrant regardless of whether it was included in an underlying affidavit

Anticipatory Warrants

A warrant can predict when illegal items may be in a suspect’s home or office, and the items need not be on the premises at the time the warrant was issued

Warrant: Searches of Third-Party Premises

A warrant may be obtained to search premises belonging to nonsuspects as long as there is PC to believe that evidence will be found there

Neutral and Detached Magistrate

The magistrate who issues the warrant must be neutral and detached

Execution of a Warrant

Only the police may execute a warrant and it must be executed without unreasonable delay

Knock and Announce

Police must knock, announce their purpose, and wait a reasonable time for admittance unless the officer has RS that announcing would be dangerous, futile, or would inhibit the investigation

Warrant, Third Party Involvement

The police may not be accompanied by an third parties unless the third parties are present to aid in identifying stolen property

Scope of the search

Limited to what is reasonably necessary to discover the items listed in the warrant

Unrelated Items Found

Police may seize contraband or fruits or instrumentalities of crime that they discover regardless of whether the items were specified in the warrant

Effect of Knock and Announce Violation

A violation of knock and announce will not result in the suppression of evidence otherwise properly obtained

Search of Persons Found on Premises

A warrant to search for contraband authorizes the police to detain occupants of the premises during a search but does not authorize the police to search persons found on the premises who were not named in the warrant. The warrant does not give authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed. Detentions are limited to persons in the immediate vicinity of the premises when the warrant is being executed