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CAPSULE SUMMARY
This Capsule Summary is intended for review at the end of the semester. Reading it is not a substitute for mastering the material in the main outline. Numbers in brackets refer to the pages in the main outline where the topic is discussed. The order of topics is occasionally somewhat different from that in the main outline.
CHAPTER 1
CONSTITUTIONAL
CRIMINAL PROCEDURE GENERALLY
I. STATE PROCEDURES AND THE FEDERAL CONSTITUTION
A. Meaning of “criminal procedure”: The term “criminal procedure” refers to the methods by which the criminal justice system functions. Here are some of the topics that are usually included within criminal procedure:
- The arresting of suspects.
- The searching of premises and persons.
- The use of electronic surveillance and secret agents.
- The interrogation of suspects, and the obtaining of confessions.
- The use of line-ups and other pre-trial identification procedures.
- The Exclusionary Rule , and how it affects the admissibility of evidence obtained through methods that violate the Constitution.
- The right to counsel.
- Grand jury proceedings.
- Bail and preventive detention.
- Plea bargaining.
- The right to a speedy trial.
- Pre-trial discovery.
- The Double Jeopardy clause. B. Focus on U.S. Constitution: Many aspects of criminal procedure are regulated by the U.S. Constitution, particularly the Bill of Rights (the first ten amendments). As discussed below, most federal constitutional provisions concerning criminal procedure are binding on state proceedings as well as federal ones.
- Non-constitutional issues: The states are free to develop their own procedures for dealing with criminal prosecutions, as long as these do not violate the federal constitution. C. Applicability of Bill of Rights to states: In deciding how the federal constitution applies to state criminal prosecutions, the Supreme Court follows the “selective incorporation ” approach. Under this approach, not all rights enumerated in the Bill of Rights are applicable
to the state, but if any aspect of a right is found to be so necessary to fundamental fairness that it applies to the states, then all aspects of that right apply. Thus if a right is applicable in state courts, its scope is the same as in federal courts. [2]
- ALL BUT TWO RIGHTS APPLICABLE TO STATES: All Bill of Rights guarantees have been held appli- cable to the states, except for two. [4] The two Bill of Rights guarantees that HAVE not been found applicable to the states are: a. BAIL: The Eighth Amendment’s guarantee against excessive bail (so that apparently, A state may choose to offer bail, but may then set it in an “excessive” amount); and b. GRAND JURY INDICTMENT: The Fifth Amendment’s right to a grand jury indictment (so that a state may decide to begin a prosecution by using an “information” prepared by the prosecutor rather than a grand jury indictment). D. RAISING CONSTITUTIONAL CLAIMS IN FEDERAL COURT: A defendant in a state criminal proceeding can of course raise in the proceeding itself the claim that his federal constitutional rights have been violated (e.g., by the use against him of a coerced confession or the fruits of an illegal search and seizure).
- Federal habeas CORPUS: But the state criminal defendant has in some situations a second chance to argue that the state trial has violated his federal constitutional rights: He may bring a federal action for a writ of habeas corpus. The defendant may bring a habeas corpus proceeding only after he has been convicted and has exhausted his state appellate remedies. The petition for habeas corpus is heard by a federal district court judge. If the judge finds that the conviction was obtained through a violation of the defendant’s constitutional rights, he can order the defendant released (usually subject to a new trial). [5] a. LIMITS: There are significant limits on the kinds of arguments a defendant can make in A federal habeas corpus proceeding. Here are two: i. SEARCH AND SEIZURE CASES: In search and seizure casesy if the state has given D the opportunity for a “full and fair litigation" for his Fourth Amendment claim (that is, the defendant got a fair chance to aigue that evidence should not be introduced against him because it was the fruit of an illegal search or seizure), D may not make this argument in his habeas corpus petition, even if the federal court is convinced that the state court reached the wrong constitutional conclusion. [Stone v. Powe//] [5] ii. MISTAKES OF LAW: Under a 1996 federal statute, a federal court can’t give habeas relief for a state-court mistake of law unless the state decision was either “contrary to" or an “unreasonable application of" some “clearly established" principle of federal law as determined by the Supreme Court. [5] Example: Suppose the Supreme Court has never decided a particular issue of federal constitutional law. The state court decides that issue of law against D. A federal dis trict court cannot give habeas relief even if the court believes (based on, say, federal Courts of Appeals decisions) that the state court erred on that issue of constitutional law. II. STEPS IN A CRIMINAL PROCEEDING A. Here is a brief summary of the steps in a criminal proceeding:
B. APPLIES TO BOTH SEARCHES AND ARRESTS: The Fourth Amendment thus applies both to searches and seizures of property , and to arrests of persons. [14]
1. INVALID ARREST NO DEFENSE: Generally, the fact that D was arrested in an unconstitutional manner makes no difference : a defendant may generally be tried and convicted regardless of the fact that his arrest was made in violation of the Fourth Amendment. [14] However, when evidence is seized as part of a warrantless search conducted incident to an arrest , the evidence will be excluded as inadmissible if the arrest was a violation of the Constitution (e.g., the arresting officer did not have probable cause to believe that D had committed a crime). [14] 2. PROBABLE CAUSE FOR ISSUANCE OF WARRANT: Where a search or arrest warrant is issued, the Fourth Amendment requires that the warrant be issued only based on “probable cause." This requirement is quite strictly enforced. 3. WHERE WARRANT REQUIRED: A warrant is usually required before a search or seizure takes place, unless there are “exigent circumstances.” An arrest warrant, by contrast, is usually not constitutionally required. 4. SEARCH MUST ALWAYS BE “REASONABLE”: Whether or not there is a search warrant or arrest warrant, the arrest or search must not be “unreasonable ” 5. PROBABLE CAUSE FOR WARRANTLESS SEARCH OR ARREST: But there is no requirement in the Fourth Amendment that a warrantless search or seizure take place only upon probable cause. This is why police may conduct a brief “stop and frisk” even without probable cause: They are making a Fourth Amendment “seizure,” but merely need some reasonable suspicion, not probable cause. (See Terry v. Ohio , discussed below.) II. AREAS AND PEOPLE PROTECTED BY THE FOURTH AMENDMENT A. TWO DIFFERENT WAYS TO “SEARCH”: There are two different ways in which government may be deemed to have carried out a Fourth Amendment search: [1] First, government will be deemed to have done a “search” of a defendant if government physically intrudes on the defendant’s personal or real property (in an attempt to find something or to obtain information). This is a concept of searches as being a form of trespass on the defendant’s property. [ U.S '. v. Jones ] [15] [2] Second, a search will be deemed to occur if the government infringes on the defendant’s “reasonable expectation of privacy " (again, in an attempt to find something or to obtain information). [Katzv. U.S .] [15] We’ll consider the second of these types first. B. Katz “EXPECTATION OF PRIVACY” DOCTRINE: A Fourth Amendment search or seizure only takes place when a person’s “reasonable expectation of privacy" has been violated. [16] [Katz v. U.S.] 1. WAIVER OF PRIVACY RIGHT: A person’s conduct may mean that he has no reasonable expectation of privacy in a particular situation. If so, no Fourth Amendment search or seizure will result, even if the police are doing something that a non-lawyer would think of as being a “search” or “seizure.”
EXAMPLE: D puts some papers into a public trash bin, unaware that the police are watch- ing his conduct through binoculars. Because a person who disposes of trash normally does not have a “reasonable expectation of privacy” as to the trash, the police do not com- mit a Fourth Amendment search or seizure when they go through the trash bin’s contents and remove the papers belonging to D (and use these in a subsequent prosecution of D). More precisely, a person will be found to have had a “reasonable expectation of privacy” in some matter only if two tests are satisfied: [1] The person exhibited an “actual (subjective) expectation of privacy” in the matter; and [2] That expectation is “one that society is prepared to recognize as 6 reasonable.’” [Katz v. U.S ., concurrence by Harlan] A. CONTEXTS: Some types of evidence that are likely to be found not protected by any “rea- sonable expectation of privacy” are: [1] abandoned property, such as trash; [2] things that can be seen from the perspective of a person stationed on public property (e.g., a police officer stands on a sidewalk and looks through binoculars into a window at the front of D’s house); [3] things a person says or does while in public (e.g., D1 talks to D2 in a restaurant, while a police officer is eavesdropping nearby); and [4] information the police learn by use of other senses while the police are in a place they have a right to be (e.g., the police use dogs to smell odors coming from luggage in a public place and, thus, detect drugs). C. THE PROPERTY-BASED “TRESPASS” APPROACH TO SEARCHES: Apart from government intrusions that infringe on A person’s reasonable expectation of privacy, a Fourth Amendment search can occur if government physically intrudes on a person’s property, and does so for the purpose of finding evidence or other information. This is an alternative path by which a defendant can show that a Fourth Amendment search occurred — if there is a physical intrusion by government on a person’s property coupled with an investigative purpose, a search has occurred even if the individual had no reasonable expectation of privacy as to the type of information the police end up learning. [17] EXAMPLE 1: The police have reason to suspect that D is engaged in cocaine trafficking. Without a valid warrant, they secretly put a GPS tracking device on the underside of a Jeep belonging to D, while the Jeep is in a public parking lot. For 28 days, the tracker sends the government constant wireless signals showing the vehicle’s movements over public roads. When D is tried for narcotics trafficking, the government uses the locational evidence from the tracker to show that D visited the “stash house” where large amounts of cocaine were found. D claims that the placement and use of the tracker was a Fourth Amendment search. Held (by the Supreme Court) for D. The mere conducting of a physical intrusion by the government — the placing the GPS tracker underneath D’s vehicle — was itself enough to constitute a Fourth Amendment search, regardless of whether D’s reasonable expectation of privacy was ever violated. [These facts are a slight modification of the
sodc) being used lor any activities related to the home — the police had evidence that drugs were being manufactured in the bam. U.S. v. Dunn , supra. a. Open fields: Open fields on a farm or ranch (i.c., fields that are not close to the house, and/or arc not within the same tight fencing that includes the house) are not part of the “curtilage," and arc therefore not protected by the Fourth Amendment. [Oliver v. U.S.] [ 22 ] b. Front porches and garages: By contrast, Jardines , supra, shows that the front porch of a house is within the curtilage. Similarly, a residential homeowner’s garage, and her front and back yards (at least if they’re enclosed by a fence), will normally be held to be within the curtilage, 2* Significance: Jardines , supra , seems to mean that the curtilage of a house is protected against unconscnted-to intrusions by the police, even if the area is one as to which the home owner might not otherwise have a reasonable expectation of privacy: [22] E. Transfer to third person: The fact that D has transferred property or information to a third person may indicate that D no longer has a reasonable expectation of privacy with respect to that property. [22]
- Bank records: For instance, when the customer of a bank gives information to the bank in furtherance of the banking relationship, the customer will be found to have no reasonable expectation of privacy in the material, permitting the government to subpoena that material from the bank without triggering the Fourth Amendment. [U.S. v. Miller] [23]
- Phone numbers: Similarly, a person who makes a telephone call in effect transfers to the telephone company knowledge of the number called. Consequently, the person has no expectation of privacy with respect to those phone numbers, and the police may subpoena phone company records to determine what numbers were called (although not the contents of the conversations). [Smith v. Maryland] [23] a. Contents: But there’s a different rule for the contents of a phone call. Katz illustrates that merely because a phone company subscriber may know that the contents of the message are in some sense “disclosed" to the phone company (i.e., pass through the company’s switches), this doesn’t represent the subscriber’s voluntary disclosure of the contents, and thus doesn’t give rise to a loss of a reasonable expectation of privacy in the contents. b. Telephone-call metadata and the War on Terror: On the other hand, two 2013 opinions from the special federal court on terrorism-related surveillance hold that the federal government may , without triggering the Fourth Amendment at all, demand that every telephone carrier in America deliver to the National Security Agency (NSA), every day , “metadata” for every cal! made or received by every subscriber. (The metadata can include information like the originating (caller's)phone number , the terminating (recipient's) phone number and the time and duration of the call.) The government can do this without specifying the subscribers (or their phone numbers), and without any demonstration that any particular call or subscriber has any connection to national security issues. [24-27] i. Rationale: These two opinions concluded that this “metadata" information “about” the call — as distinguished from the contents of the call — is no different from the phone-numbcr- called information as to which, the Supreme Court held in Smith v. Maryland , supra, the caller has no reasonable expectation of privacy. l
- MAIL IN THE POSTAL SYSTEM: In contrast to the phone-number data at issue in Smith v. Maryland, when a person deposits mail with the U.S. postal system or with a private courier, the person does not thereby surrender her reasonable expectation of privacy in the contents. [U.S. v. Van Leeuwen ] [23] 4. EMAILS RESIDING ON A SERVER: It’s unclear whether a person’s act of sending (or receiving) emails via that person’s Internet Service Provider (ISP) indicates that the person has no reasonable expectation of privacy in the contents of those emails. The issue typically arises when the email in question remains on the ISPfs server (either because it hasn’t yet been delivered, or because although it’s been delivered, the recipient does not cause it to be removed from the server). [24] A. LEADING case MAINTAINS PRIVACY: The leading (non-Supreme-Court) case on the issue (from the federal Sixth Circuit), holds that a person’s use of an ISP to send or receive an email message does not represent a surrender of the person’s justifiable expectation of privacy, so government triggers the Fourth Amendment when it demands the stored email’s contents from the ISP. [U.S. v. Warshak ] [24] I. RATIONALE: In Warshak , the Sixth Circuit said that the contents of an email is like the contents of a letter or phone call. Therefore, just as making a phone call doesn’t represent a loss of the privacy expectation in the calls contents {Katz), and putting a letter in the mail doesn’t represent a loss of the privacy expectation in the letter’s contents, entrusting the contents of an email to an ISP shouldn’t be held to represent a loss of the privacy expectation in the email’s contents. F. TYASH AND OTHER ABANDONED PROPERTY: Trash or other abandoned property will normally not be material as to which the owner has a reasonable expectation of privacy. Therefore, when a person puts trash out on the curb to be picked up by the garbage collector, the police may search that trash without a warrant. [ California v. Greenwood ] [28] 1. TRASH ON ONE’S OWN PROPERTY: But if the owner puts his trash out for collection not on the public street or sidewalk but instead on a portion of his own property (and the trash collector comes onto the property to retrieve it), the police probably may not enter D’s property to inspect the trash. (But they could wait until the collector collects the trash, and search it at the street.) [29] **G Some special contexts:
- JAIL CELL:** A prisoner has no legitimate expectation of privacy in his prison cell. Thus even if an inmate shows that a guard has without justification searched the inmate’s personal possessions that are highly unlikely to relate to security issues, the inmate has not made out a Fourth Amendment claim. [Hudson v. Palmer ] [30] 2. GUESTS: Guests in a person’s house may or may not have a legitimate expectation of privacy in the premises being visited. A. OVERNIGHT SOCIAL GUEST: An overnight social guest normally has a legitimate expectation of privacy in the home where he is staying. Therefore, the police may normally not make a warrantless arrest or warrantless search of the premises where D is staying as an overnight guest. (But if the owner of the premises consents to a search, the guest is out of luck.) [Minnesota v. Olson ] [31]
A. MORE MODERN TRACKING TECHNOLOGY: But use of more modern surveillance technology that, say, lets the government automatically track a vehicle’s movements for multiple weeks without the need for humans to physically follow the vehicle (as they had to in Knotts ) might well cross the line into violating the vehicle owner’s reasonable expectation of privacy. In a 2013 case, five members of the Supreme Court seemed to say that this would be true, even if the tracking system did not involve a physical intrusion onto the suspect’s property. [U.S. v. Jones ] [36] (This result may also follow from the principle oi Kyllo v. U.S. , discussed immediately below, that use of “high-tech devices not in general public use” can be a search even when used from a public place.) C. HIGH-TECH DEVICES NOT IN GENERAL PUBLIC USE: If government obtains special high-tech devices , not in general civilian use , and employs them from public places to gain “views” that could not BE had BY the naked eye, the use of such devices will be considered a search. [Kyllo v. U.S.] [38] EXAMPLE: Drug agents think D is growing marijuana inside his house with the use of high- intensity heat lamps. They therefore obtain a “thermal imager” and point it at the outside of D’s house from across the street. The device detects heat escaping from D’s house, and shows the relative amounts of heat as black and white images. The images show that D’s garage is much hotter than the rest of his house. The agents use this information to get a warrant to search D’s house, and find marijuana being grown, as suspected, under lamps in his garage. Held, the use of the imager here was a Fourth Amendment search, which was presumptively unreasonable without a warrant. Since the device was not in general civilian use, and enabled the agents to learn information about what was going on inside the house, its use does not fall within the plain view exception. [Kyllo v. U.S .] D. AERIAL OBSERVATION: When the police use an aircraft to view D’s property from the air, anything the police can see with the naked eye falls within the “plain view” doctrine (as long as the aircraft is in public , navigable airspace). [California v. Ciraolo; Florida v. Riley] [41] E. USE OF OTHER SENSES: Probably the same “plain view” rule applies to senses other than sight (e.g., touch, hearing, or smell).
1. SMELL: For instance, if a police officer (or a dog being used by an officer) smells contraband while standing in a place where he has a right to be, no Fourth Amendment search has taken place. EXAMPLE: While D’s car is properly stopped for a routine traffic violation, a police officer escorts a trained dog to sniff around the exterior of the car to find narcotics. Held, the dog- sniffing was not a Fourth Amendment search or seizure, since the sniffing did not reveal (and could not have revealed) anything as to which the car’s owner had a legitimate expectation of privacy. The sniff could only have revealed the presence of contraband, which no one has the right to possess, and as to which there is therefore no reasonable expectation of privacy. [Illinois v. Caballes ] [43] 2. TOUCH: Similarly, there’s probably a (iplain touch^99 doctrine. For instance, if an officer is conducting a legal pat-down of a suspect under the “stop and frisk” doctrine (see below), and touches something that feels like contraband, the officer may probably seize it under a “plain touch” analog to the plain view doctrine. [42] A. POLICE MUST HAVE A RIGHT TO TOUCH: But this “plain touch” doctrine applies only if the police have the right to do the touching in the first place (just as the “plain view” doc-
trine applies only where the police have the right in the first place to be in the position from which they get the view). [42] Example: A U.S. Border Guard gets on a bus (as he has a statutory right to do), then squeezes the luggage of every passenger that’s located on the overhead storage rack. When he squeezes a soft suitcase owned by D, he feels a brick-like substance. That causes him to suspect illegal drugs, so he opens the suitcase and indeed finds narcotics. Heldy for D: because the agent didn’t have the right to squeeze D’s luggage in the first place (the squeezing violated D’s reasonable expectation of privacy), the agent wasn’t entitled to act on the suspicions that he developed from the squeezing, and therefore didn’t have probable cause to open the suitcase. [Bond v. U.S.] F. Police on defendant’s property: The plain view doctrine applies not only where the police obtain a view from public property, but also where they are lawfully on the owner’s property. [44] Example: The police come to D’s house to make a lawful arrest of him. Any observation they make while in the ordinary process of arresting him does not constitute a Fourth Amendment search. (But this does not allow the police to open closed containers or pack - ages while they are making the arrest, or even move items to get a better view — this would not fall within the plain view doctrine, and would be a Fourth Amendment search.) IV. PROBABLE CAUSE GENERALLY A. Where requirement of probable cause applies: The requirement of “probable cause” applies to two different situations: (1) before a judge or magistrate may issue a warrant for a search or arrest, she must be satisfied that probable cause to do so exists; and (2) before the police may make a warrantless search or arrest (permissible only in special circumstances described below), the officer must have probable cause for that search or arrest. [45-46]
- Source of requirement: Only case (1) above — the requirement of probable cause prior to issuance of a warrant — is expressly covered in the Fourth Amendment. But the Supreme Court has, as a matter of constitutional interpretation, held that probable cause must exist before a warrantless search or arrest as well, to avoid giving the police an incentive to avoid seeking a warrant. B. Requirement for probable cause: The meaning of the term “probable cause” is not exactly the same in the search context as in the arrest context.
- Probable cause to arrest: For there to be probable cause to arrest a person it must be reasonably likely that: a. a violation of the law has been committed; and b. the person to be arrested committed the violation. [46]
- Probable cause to search: For there to be probable cause to search particular premises, it must be reasonably likely that: a. the specific items to be searched for are connected with criminal activities; and b. these items will be found in the place to be searched. [46]
- Less than 50-50 chance: It appears that as long as the police have “particularized suspicion” regarding the existence of fact X, they need not reasonably believe that fact X exists more
- TWO FACTORS: The magistrate should consider two factors in evaluating the informant’s information: (1) whether the informant is a generally reliable witness; and (2) whether facts are set forth showing the informant’s “basis of knowledge” that is, the particular means by which the informant came upon the information that he supplied to the police. [49-51] a. STRONG FACTOR CAN BUTTRESS WEAK FACTOR: But a strong showing ON ONE of these factors can make up for a weak showing on the other one. (Example: If a particular informant is known for being unusually reliable, his failure to set forth the basis of his knowledge in a particular case will not be a bar to a finding of probable cause based on his tip.) [50] b. PREDICTION OF FUTURE EVENTS: Also, if later events help corroborate the informant’s story, these events can be combined with the informant’s story to establish probable cause, even though neither by itself would suffice. [50] B. NON-CRIMINAL SOURCES: Where the police procure information from non-criminal sources (e.g., ordinary citizens, victims of crime, etc.), the courts are more lenient concerning the information than where it comes from, say, informants who are themselves criminals. [52]
- OTHER POLICE OFFICERS: But where an officer making an affidavit for a warrant (or making a warrantless search or arrest) acts in response to statements made by other police officers , probably the arrest or search is valid only if the maker of the original statement acted with probable cause. EXAMPLE: The County Sheriff broadcasts a bulletin stating that D1 and D2 are wanted for breaking and entering. Officer, a city police officer, hears the bulletin, and without knowing anything else, arrests D1 and D2, who happen to live on his beat. Probably, probable cause for the arrest will be found only if the County Sheriff himself had probable cause to make the arrest.) [52]
- TRAINED SNIFFER DOG AS RELIABLE INFORMANT: A dog that is trained to sniff the odor of drugs or other contraband, and to alert his handlers to the contraband, can be the source of probable cause. The reliability of the dog as an “informant” is to be determined by the same “totality of the circumstances” rule that applies to humans under Gates , supra. This standard means that if the dog has satisfactorily performed in an odor-detection training course , that fact alone will typically allow the dog’s “I smell drugs here” alert to constitute probable cause. [Florida v. Harris ] [53] VL SEARCH WARRANTS — ISSUANCE AND EXECUTION A. WHO MAY ISSUE: A search warrant must be issued by some sort of judicial officer , usually either a judge or a magistrate. (We’ll use the term “magistrate” here.)
- Neutrality: The magistrate must be a neutral party , detached from the law-enforcement side of government. [54] B. AFFIDAVIT: Normally, the police officer seeking a search warrant must put the facts establishing probable cause into a written, signed affidavit. [54] C. Ex parte NATURE OF WARRANT: The proceeding for issuing a warrant is ex parte. That is, the suspect whose premises are to be searched does not have the opportunity to contest the issuance of the warrant ; only the police officer’s side of the story is heard by the magistrate. (However, the suspect, if he becomes a criminal defendant, will eventually have a chance to show, at a suppression hearing, that the warrant was issued without probable cause.) [55] If
D. REQUIREMENT OF PARTICULAR DESCRIPTION: The Fourth Amendment requires that a warrant con- tain a particular description of the premises to be searched, and the things to be seized. This means that the warrant must be specific enough that a police officer executing it, even if she had no initial connection with the case, would know where to search and what items to seize. [55-57] 1 DESCRIPTION OF PLACE:* The description of the place to be searched must be precise enough that the officer executing the warrant can figure out where to search. For instance, if the search is to be in an apartment building, the warrant must probably contain the name of the occupant, or the number of the particular apartment, not merely the address of the entire building. [55] 2, Things TO be SEIZED: The things to be seized must also be specifically identified in the warrant. [56] JL NOT SUCH A STRICT REQUIREMENT: However, this requirement is not very strictly interpreted today. ( Example: The warrant refers to a particular alleged crime of selling real estate by false pretenses. The warrant then authorizes a search for various types of documents, "Together with other fruits, instrumentalities and evidence of [this particular] crime" but does not specify anything about these other fruits or instrumentalities. Held, the warrant is not fatally vague. [Andresen v. Maryland ]) [56] b. Contraband: Contraband (property the possession of which is a crime, such as illegal drugs or outlawed firearms) does not have to be described as particularly as material that is innocuous on its face — the officer executing the search is presumed to be able to identify contraband by its very nature. [56] E. What may be seized: Any item that is the subject of a valid search warrant may be seized by the police executing the warrant [57] 1, Incriminating evidence: In particular, this rule means that even items whose only interest to the police is that they incriminate the defendant may be seized. [Warden v. _Hayden_ [57- 58]
- No Fifth Amendment interest: Even items, such as documents, that contain incriminating statements made by the defendant may be seized—this does not violate the defendant’s Fifth Amendment privilege against self-incrimination. {Example: Police, executing a valid warrant, seize business records from D’s office. These records contain incriminating statements made by D. _Held_ seizure of these records did not violate the Fifth Amendment, even though it might have been a violation of D’s Fifth Amendment rights to have required him to produce these records under a subpoena. [Andresen v. Maryland^) [58] F. W arrants against non-suspects: The Fourth Amendment permits searches to be made of die premises of persons w ho are not criminal suspects , if there is probable cause to believe that the search will produce evidence of someone else’s crime. [58]
- Subpoena not necessary: Such a search of a non-suspect’s premises may be made even if a subpoena would be equally effective. [Zurcher v. The Stanford Daily] [58] G Execution of warrants: The Fourth Amendment requires that the procedures w hich the police use in carrying out a search not be “unreasonable ” Thus in general, the police may not behave in an unduly intrusive manner. [59] 1* Entry’ without notice: As a general rule, the officer executing the warrant must knock on the door and announce that he is a law enforcement officer, that he possesses a warrant, and
S. Unrelated items: The items discovered in plain view don’t have to relate to the same criminal activity that gave rise to the warrant, as long as there is probable cause for the seizure of these new items. ( Example: If the police are executing a warrant naming stolen property and they come upon illegal narcotics, they may seize the narcotics even though they have nothing to do with the stolen property charge.) b. Inadvertence not required: It is not required, for application of the plain view doctrine, that the police’s discovery of an item in plain view be “inadvertent” [Horton v. California ] [Example: When police apply for a warrant to search D’s home in connection with a robbery, they have a description of the weapons used. But they get a warrant authorizing the search only for robbery proceeds. While executing the warrant, they come across the weapons. Held, the police could constitutionally seize the weapons under the plain view doctrine, even though the discovery of the weapons was not “inadvertent” [Horton, supra]) [63]
- Bodily intrusions: A search warrant can be issued for search of a person , rather than a place. Such a bodily search (whether done pursuant to a search warrant or not) must of course be “reasonable.” In general, courts measure reasonableness by weighing the individual’s interest in privacy against society’s interest in conducting the search. [64-65] a* Allowable procedures: Thus the forcible taking of blood from a drunk-driving suspect, and the use of x-rays to obtain evidence that D is concealing drugs in his stomach, have been held to be “reasonable” and therefore allowable. b. Surgery: On the other hand, it is not reasonable to place D under a general anesthetic and to remove a bullet lodged deep in his chest, in order to show that D was involved in a particular robbery. [Winston v. Lee] H. “Good faith” exception: Normally, if a search warrant is invalid (e.g., it is not supported by probable cause), any search done pursuant to it will be unconstitutional, and the evidence will be excluded at trial. However, if the police reasonably (but erroneously) believe that the warrant which they have been issued is valid, the exclusionary rule will not apply. (See U.S. v. Leon, discussed in the treatment of the exclusionary rule below.) [65]
CHAPTER 3
WARRANTLESS ARRESTS AND SEARCHES
I. INTRODUCTION
A. Warrant not always required: The Fourth Amendment mentions warrants specifically, but does not actually require warrants — the amendment merely says that “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.” So going by the literal text of this amendment, a warrant might never be constitutionally required.
- Judicial interpretations sometimes requires: But the Supreme Court has interpreted the Fourth Amendment to sometimes require a warrant. In very general terms, the rules for when a warrant is required may be summarized as follows: a. Arrest warrants: An arrest warrant will rarely be required. Only when the police need to enter a private home to make the arrest, and there are no exigent circumstances , does
the Fourth Amendment require the police to procure an arrest warrant before they make the arrest. [79] B. SEARCH WARRANT: But just the converse is true in the case of a search : the general rule is that a warrant is required. Only if some special exception applies will the requirement of a search warrant be dispensed with. Some of the more common exceptions are: i. A search incident to a valid arrest; ii. A search motivated by exigent circumstances (e.g., to avoid destruction of evidence); iii. Certain types of automobile searches (e.g., a search of a car when the driver is arrested and both driver and car are taken to the police station); iv. Searches done after the person to be searched or the owner of the property to be searched consents', v. Partial searches done pursuant to the “stop and frisk” doctrine; and vi. Certain inspections and regulatory searches (e.g., immigration searches at U.S. borders, sobriety checkpoints on highways, etc.). NOTE: The fact that in a particular situation no search warrant is required does not necessarily mean that probable cause is not required. In some but not all of the above listed situations (e.g., exigent circumstances), the police must have probable cause to believe that a search will furnish evidence of crime, even though they are not required to get a warrant. In others of the above situations, something less than probable cause, and perhaps no real suspicion at all, will be needed. ( Example : Less than probable cause, but some suspicion, is required for “stop and frisk,” whereas no suspicion is required for a consent search.) n. WARRANTLESS ARRESTS A. NOT GENERALLY REQUIRED: An arrest warrant is not generally required by the Constitution. This is true even where the police have sufficient advance notice that procurement of a warrant would not jeopardize the arrest. [£/.& v. Watson] [80] B. ENTRY OF DWELLING: The only situation in which an arrest warrant is likely to be constitutionally required is where the police wish to enter private premises to arrest a suspect. In that instance, the requirement for a warrant will depend on whether exigent circumstances exist. [80]
1. NO EXIGENT CIRCUMSTANCES: If there are no exigent circumstances, the police may not enter a private home to make a warrantless arrest. [Payton v. New York] [80] A. RESULT OF INVALID ARREST: A warrantless arrest made in violation of Payton will not prevent D from being brought to trial (since he can always be re-arrested after a warrant has been issued). However, if the police make an in-house arrest that required a warrant because there were no exigent circumstances, then any evidence seized as a result of a search incident to the arrest will be excluded. 2. EXIGENT CIRCUMSTANCES: If there are exigent circumstances, so that it is impractical for the police to delay the entry and arrest until they can obtain an arrest warrant, no warrant is nec essary (at least if the crime is a serious one, such as a felony — as to minor crimes, see Atwater, below). [81]
III. SEARCH INCIDENT TO ARREST A. SEARCH INCIDENT TO ARREST GENERALLY ALLOWED: In general, when the police are making a lawful arrest, they may search the area within the arrestee’s control. This is known as a “ search incident to arrest^99 Search-incident-to-arrest is the most important exception to the general rule that a search warrant is required before a search takes place. [85] EXAMPLE: Officer watches D run out of a coin shop at night, while the shop’s alarm is ringing. Assuming that these facts give Officer probable cause to arrest D (which they almost certainly do), Officer may conduct a fairly full search of D’s person after the arrest. For instance, Officer can require D to empty his pockets to show that there are no weapons, contraband, or stolen property from the coin shop on his person. If on these facts Officer had arrested D while D was driving a car, Officer would also be permitted, under the search-incident-to-arrest doctrine, to search the passenger compartment of the car for weapons, contraband, etc.
1. LIMITED AREA AROUND DEFENDANT: Only the area that is at least theoretically within D’s immediate control may be searched incident to arrest. (The basic idea is that only the area that D might get to in order to destroy evidence or gain possession of a weapon may be searched.) Example: Officers come to arrest D at his house for a recent robbery. They have an arrest warrant but no search warrant. After arresting D, the police conduct a full-scale search of D’s three-bedroom house. They discover some of the stolen property in one of the bedrooms, not the room in which they arrested D. Held, the property may not be admitted against D because it was found pursuant to a search that was unnecessarily widespread. Only the area within D’s immediate control could be searched incident to the arrest. [Chimel v. California ] [85-86] B. PROTECTIVE SWEEP: The Supreme Court also upholds “protective sweeps^99 under the search-inci- dent- to-arrest doctrine. That is, where the arrest takes place in the suspect’s home, the officers may conduct a protective sweep of all or part of the premises, if they have a “reasonable belief’ based on “specific and articulable facts” that another person who might be dangerous to the officer may be present in the areas to be swept. [Maryland v. Buie] [91] 1. ADJOINING SPACES: But “specific and articulable facts” are not needed for the officers to search in closets and other spaces immediately adjoining the place of an arrest, to make sure that no possible attacker lurks there. C. AUTOMOBILE SEARCHES INCIDENT TO ARREST: The basic rule that a warrantless search incident to arrest must be limited to areas within the arrestee’s “immediate control” applies to searches of vehicles after the arrest of the driver. So in most driver arrests for traffic violations, the police will not be entitled to search the passenger compartment incident to the arrest. [Arizona v. Gant] [87] 1. TWO-PART RULE: More precisely, the search-incident-to-arrest rationale allows a warrantless search of the passenger compartment only if one of two things is true: [1] the arrestee has access to the passenger compartment at the moment of the search (which will virtually never be the case if the standard police practice of placing the driver securely in a patrol car is followed prior to the search); or [2] the police reasonably believe that the passenger compartment might contain evidence of r
the offense for which the arrest is being made. [Gant, supra] [87]
- MAJOR CHANGE IN LAW: Gant makes a major change from pre-2009 law — established by the 1981 case of N.Y. v. Belton — under which whenever the police arrested a driver, they could search the entire passenger compartment incident to the arrest, even if the driver no longer even theoretically had access to the compartment (e.g., because he was sitting handcuffed in the patrol car). [87]
- TRAFFIC ARREST WHERE DRIVER IS HANDCUFFED: In the most common driver-arrest scenario — the police make an arrest for a traffic violation, handcuff the driver and put him in the patrol car, and then find evidence of some other crime when they search the passenger compartment — Gant means that the search will now no longer be justified by the incident-to-arrest doctrine. [87] EXAMPLE: The police reasonably (and correctly, as it turns out) believe that D’s driver’s license has been suspended and that there is an outstanding warrant for his arrest for driving with a suspended license. They wait for D at his residence and, when he drives into the driveway, arrest him on the warrant. They then handcuff him, lock him in the back seat of the patrol car, and search the passenger compartment of his car. There, they find cocaine in the pocket of a jacket on the back seat. Held , for D: the search of the passenger compartment was not a proper search incident to arrest because by the time of the search, the compartment was not even theoretically within D’s immediate control, as is required for a search incident to arrest. [Gant, supra] A. SEARCH FOR EVIDENCE OF OFFENSE THAT LED TO ARREST: But even if the driver has been secured so that he has no possible access to the passenger compartment, rationale [2] of Gant (see supra, p. C-19) may apply: if the police “reasonably believe” that the passenger compartment might contain evidence of the offense for which the arrest is being made, they may search that compartment. This rationale will almost never apply to a traffic arrest, but will often apply to arrests on outstanding warrants for, say, drug offenses. [89] EXAMPLE: The police learn that a warrant has been issued for the arrest of D on charges of smuggling heroin from Mexico into Arizona in his black Ford Explorer with license plate “XYZ123.” Officer Brown, while patrolling in Arizona near the Mexican border, spots a black Explorer with that plate. He pulls the vehicle over, sees that D is the driver, arrests D on the warrant, and handcuffs him to the inside of the patrol car. Brown then conducts a search of the passenger compartment, and finds heroin in the glove compartment. The search will likely be valid under the “search for evidence of the offense for which the arrest is being made” rationale. Even if Brown didn’t have “probable cause” to believe that the vehicle was currently being used to smuggle drugs, the fact that D was driving that vehicle in Arizona near the Mexican border probably gave Brown “reason to believe” that the vehicle “might” contain evidence relevant to the drug-smuggling charges. (“Reason to believe” that evidence “might” be found is clearly a much-easier-to- satisfy standard than “probable cause” to believe such evidence “will” be found, the usual standard for a proper search.) If the court agrees that Brown had such “reason to believe,” then the search of the vehicle for evidence relating to the “offense of arrest” (the drug smuggling) will be valid as a special form of search incident to arrest. [Cf. Gant]
