Criminal Procedure Notes

I. SEARCHES AND SEIZURES

 4TH AMENDMENT: “The right of the people to be secured in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and 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.”

o 4TH AMENDMENT ONLY APPLIES TO SEARCHES.

o REQUIREMENTS FOR 4TH AMENDMENT ANALYSIS

 Prerequisite: government action

 Step One: What constitutes a search?

 Step Two: If there is a search, was it unreasonable?

 Government Action: Who Performed the Search?

o Confidential informant: Confidential informants used in prosecution are not considered

government action under 4th Amendment.
 Therefore, confidential information does not bring 4th Amendment protections.
 Rationale: When a person invites a person, including a confidential
informant, the person invited assumes the risk that the person invited will
testify against them.
 Confidential Informant using a wire transmitter: This is not a search since the
person who invited the confidential informant over has no reasonable expectation
of privacy.
o Third Party Doctrine (“False Friends Rule”): When police obtain information that is
voluntarily turned over from a third party, there is no search.
 Rationale: There is no reasonable expectation of privacy in information or items
voluntarily conveyed to a third party.
 Smith v. Maryland: The court ruled that the pen registry given to the police did
not constitute a search since the defendant had no reasonable expectation of
privacy in the information stored by the telephone company.
 (STEP 1) What There A Search?
o Two test that can show that a search exists: (1) Katz RE Test or (2) Trespass Test
o Katz (Reasonable Expectation of Privacy) Test
 There must be: (1) subjective expectation of privacy that is (2) objectively
reasonable.
 Subjective expectation of privacy that, by his conduct, he seeks to
preserve something as private; and
 The subjective expectation of privacy is prepared to recognize as
reasonable.
 Katz: Katz showed that he had a subjective expectation of privacy when
he closed the phone booth, and the court found that there is a value of
privacy, which promotes honesty and the sharing of ideas and
communications.
 No Privacy interest in:
 Trash cans (Greenwood) – no reasonable expectation of privacy
o Trash cans are regularly exposed to the public where they could
be invaded by animals, and one abandons their personal property
when placing them on the curb.
 Open fields (Oliver) – no reasonable expectation of privacy
o You cannot have a reasonable expectation when acting in an
open field.
 Voluntary disclosure to a third party cooperating with the government
(Hoffa) – No reasonable expectation of privacy
o False friends doctrine – no reasonable expectation that someone
you voluntarily provide information with will not testify against
you with it
 Failure to take precautions to safeguard privacy – no subjective
expectation of privacy
o You cannot have a subjective expectation of privacy doing
something when you never took any measures to ensure privacy
 Public exposure of one’s activities – no subjective expectation of privacy
o You cannot expect privacy when you are doing something in
public
  Concealment of contraband – no objective expectation of privacy
o There is no objectively reasonable expectation of privacy in
wanting to conceal drugs.
 Highest expectation of privacy within the home.
 Curtilage is an area closely connected to a house (a constitutionally protected
area) that receives 4th Amendment protection. For example, a garage,
playground, porch, and greenhouse may suffice for curtilage.
 To determine whether an area is a curtilage, the court considers the
following (Dunn) factors:
 Proximity to the home
 Area closer to home more likely to be curtilage
 Whether the area is within an enclosure surrounding the home
 An area that is enclosed is more likely to be curtilage
 Precautions taken to protect the privacy of the area
 Precautions taken for privacy more likely to be curtilage
 The uses to which the area has been put
 If the place is often used more likely to be curtilage.

 Florida v. Riley: Curtilage Analysis (application of Dunn factors):

 The Court found that the defendant’s greenhouse, which was located on
his property, was not curtilage even though he took steps to enclose the
structure.
 The Court held that there was a subjective expectation of privacy, but
there was no reasonable expectation because (1) the greenhouse’s sides
and roofs were partially uncovered and (2) the inside of the area could be
seen by a helicopter.
 Aerial observations of an area within the curtilage of a home
from a helicopter at an altitude of 400 feet is not a search under
the 4TH Amendment.
 Reasonable expectation of privacy in cell site location information

o Jones Trespass Test: A search occurs when (1) law enforcement physically intrude on a
constitutionally protected area (2) to conduct surveillance.
 In Jones, the court found that a GPS device attached to a car for
surveillance purposes was a search under the 4TH Amendment.
 Dog sniffs conducted on homes or other constitutionally protected areas
constitute a search under the trespass test. (Florida v. Jardines)
 EXCEPTIONS: There is no search under this test for dog sniffs
conducted at the airport or during a traffic stop.
  Electronic surveillance will constitute a search when the Government uses a
device not generally available to the public to explore within a constitutionally
protected area.
 Application: is it a search?
o Yes:
 An electronic listening device attached to the outside of a public phone booth
(Katz)
 A thermal imaging device (Kyllo)
 GPS Tracker on a car (Jones)
 Dog sniff on a house porch (Jardines)
 Cell site location information (Carpenter)
o No:
 A pen register (Smith)
 Trash (Greenwood)
 Police helicopter surveillance at 400 ft. (Riley)
 A wire (White)
 Dog sniffing at the airport (Place) or during a traffic stop (Caballes)

(STEP 2) WAS THE SEARCH REASONABLE

 A validly executed search warrant is a prima facie case for a search being reasonable.
o Valid warrant is (1) supported by probable cause, (2) supported by oath or affirmation,
(3) particularly describes the place to be searched, and (4) attached by a detached and
neutral magistrate.
o Warrant requirements:
 Supported by probable cause
 Supported by oath or affirmation
 Particularly describe the place to be searched
 With enough detail that everyone knows the scope of
where police can search
 Signed by a detached and neutral magistrate
 (Probable Cause) To have a probable cause to search, there must be a fair
probability that:
  Something that is properly subjected to seizure by the
government, i.e., contrabands or fruits, instrumentalities, or
evidence of a crime,
 Is presently
 In the specific place to be searched.
 When determining whether there is probable cause, courts look at the
totality of circumstances, including (1) basis of knowledge (how
information was obtained) and (2) veracity (why the information should
be believed)
 Particularity
 Places to be searched or persons/things to be seized
 Warrants satisfy the particularity requirement if the search is done
reasonably.
 Reasonable mistakes are allowed.
 No-knock warrants: A knock-and-announce rule can be waived if
police have reasonable suspicion that there is a risk of violence,
potential destruction of evidence, or futile would occur by knocking
and announcing.
 Futile means the person already knows it is the police
that is knocking on the door; therefore, identifying
themselves would mean nothing.
 REASONABLE SUSPICION IS LOWER THAN
PROBABLE CAUSE STANDARD
o Warrant Exceptions: When Warrants Are Not Needed
 Consent searches: No warrant is needed when consent is given.
 The totality of the circumstances determines consent:
 Manner of police questioning
 Whether the person consenting knew of the right to refuse
 Whether police gave the person a Miranda warning
 The state of mind of the person who consented
 The education and intelligence level of the person who
consented
 Other factors (age, immigration status, etc.)
  Common Authority—A third party with joint access and control of the
property can provide valid consent to search the property.
 A third party may give consent to search if they have common
authority to the property if police have a reasonable belief that
the third party has common authority to give consent.
 Apparent Authority: Even if it is mistaken, consent
will be valid if there is a reasonable belief. to police that
the third party has common authority.
 Common Authority Analyses in Real Life.
 Landlord – Tenant: The landlord does not have
common authority to consent to searches.
 Housekeeping statt-hotel guest: housekeeping does
not have common authority to consent to searches.
 Child-parents: The younger the child, the harder it is
for common authority to be found
 Roommates: Roommates have common authority to
consent to searches, but this is limited to their rooms and
shared spaces.
 Who can consent: (1) The target of the search or (2) A third party
with common or apparent authority to provide consent.
 EXCEPTION: Consent cannot be given if one party with
common or apparent authority objects to the search.
 Special Needs (Administrative) Searches
 These are searches conducted by the government that go beyond law
enforcement searches to investigate a crime. (ex. sobriety checkpoints)
 To determine whether these searches are valid, the court conducts a
special needs balancing test.
 First, the state must demonstrate that the search serves a special
needs purpose beyond investigating crime.
 Then, the court weighs the special purpose of the search against
an individual’s privacy interest.
 The search is deemed valid if the special needs outweigh
the individual’s expectation of privacy.
  EX. Sobriety checkpoints are not made to investigate crime, but
rather, they are made to ensure that streets are safe.
 Administrative Searches (Inventory Searches, Vehicle Searches, Strip
Searches)
 Inventory Searches (Colorado v. Bertine)
 These are deemed special needs searches because the
primary purpose is not to investigate crime.
 Rationales for why they are valid:
 To protect the owner from theft
 To protect police from false claims that they
engaged in theft.
 To protect the police from dangerous
instrumentalities.
 Requirements: (1) Must be routine or have standardized
criteria, and (2) cannot be pretextual
 In this context, the subjective intent of police
matters, meaning that the police cannot use
inventory search for purposes of investigating
search.
 Drug checkpoint searches
 These searches are invalid because they aim to
prosecute crime (Indianapolis v. Edwards)
 Valid Vehicle Checkpoint searches
 Sobriety checkpoints
 Border checkpoints – checkpoints near national border
 Emergency Purpose – reports of kidnapping
 Strip searches in schools
 School searches without probable cause are valid but
need reasonable suspicion.
 In Safford United District, the Court held that
the search itself was a constitutional violation
because it involved a strip search. The less
intrusive search was not a violation, though.
 Searches Incident to Lawful Arrest (SILA)
 TRIGGER: SILA can be conducted pursuant to lawful arrest based on
probable cause or an arrest warrant.
 RATIONALES: (1) Officers safety (the person is not armed with
weapons to hurt officers) and (2) preservation of evidence (the person
does not destroy evidence)
 SCOPE: (1) the arrestee’s person and (2) the arrestee’s wingspan (area
within their immediate control)
 (LIMITATION ON SCOPE)
 HOME (VALE V. LOUISANA): An arrest on the street
without more does not provide justification for a
warrantless house search of the arrestee’s house.
 Police observe Vale, a criminal defendant with
an arrest warrant, conduct a drug transaction
where he goes inside and outside of his house.
Police arrest Vale on the porch of his house and
search the inside of his home. The court held
that the search inside of the home violated Vale’s
4th Amendment because the street arrest did not
justify a warrantless house search.
 SEARCH ON PERSON
 An officer can conduct a full warrantless search on the arrestee
even if officers lack probable cause to believe the search will
yield a weapon or device relating to the arrest offense.
 This applies to containers found on a person (Robinson)
 EXCEPTION: Cellphones cannot be searched
absent exigent circumstances. (Riley)
 SILA OF OCCUPANTS OF AN AUTOMOBILE
 (New York v. Belton) Police can search a person, a person’s
wingspan, passengers, and containers or compartments that a
person or passengers can reach.
 In Belton, the court held that a jacket could be searched
because it was inside the car within reach.
 Belton extended the rule to recent car occupants (those who
recently left the car).
 Police can perform a SILA of the entire car so long as they have
probable cause to believe a crime had occurred, even if it is
minor, such as no seatbelt. (Atwater)
 TRIGGER: Probable cause of minor crime
 SCOPE: Driver, passenger, containers within driver or
passenger’s reach or immediate area.
 EXCEPTION FOR RECENT OCCUPANTS OF A
VEHICLE: Police who make a SILA of a recent
occupant of a vehicle can only search the passenger’s
compartment if:
 (1) the arrestee is unsecured, and within
reaching distance of the compartment at the time
of search OR
 (2) officers have reason to believe that evidence
of the crime of arrest is in the car.
 Automobile Exception: Officers can search a motor vehicle,
including a parked car or motorhome, if they have probable
cause to believe that evidence of crime is in the vehicle.
 Trigger: Probable cause to search the vehicle because
evidence of a crime is within the vehicle.
 Rationales: (1) automobiles are readily movable;
therefore, they can escape; (2) automobiles are already
intruded on by regulations and are viewable by people
(reduced expectation of privacy).
 Scope: The entire car, including the trunk.
 Containers within a car: Police can only
search containers within an automobile if they
have probable cause to believe they contain
contraband.
 Passengers' belongings: If the officer has
probable cause to search the car, he may search
the containers in the car.
  EXCEPTION (HOMES): If a vehicle is
searched within the home’s curtilage, officers
cannot search the home.
 (STEP 1) SEIZURES
o Level of police/civil encounters – level of suspicion required --- are you seized
 Consensual encounter – no levels of suspicion required --- no
 Terry stop --- reasonable suspicion --- yes, briefly
 Arrest --- probable cause – yes
o Levels of Suspicion (HIGHEST – LOWEST)
 Beyond Reasonable Doubt -– Preponderance –- Probable Cause –- Reasonable
Suspicion --- Mere Hunch
o What constitutes a “seizure”
 A seizure occurs when a reasonable person would not have felt free to decline the
officer’s requests or otherwise terminate the encounter.
 The Court considers the totality of circumstance, including Mendenhall
Factors (1-4)
1. Threatening presence of several officers (many officers)
2. The display of a weapon by the officer
3. Some physical touching of the person
4. Voice of tone compelling the individual to comply with the
officer’s request
5. Others (type or length of questioning)
 A seizure occurs when an officer uses physical force or show of authority
to restain a citizen.
o Improper Detention: Detention that exceeds the nature of the circumstances is improper
without probable cause.
 Legitimate law enforcement purpose: police need this in order to move a
suspect to another location.
 Consent to a warrantless search: a seizure occurs when consent to a
warrantless search is given. This is a 4TH Amendment violation if consent was
given while the suspect was illegally detained.
o Whether Seizure is Reasonable
 Use of force does constitute a seizure under the 4TH AMD
 To determine whether the seizure involving the use of force was reasonable, the
court applies a balancing test: the individual’s interest with the government’s
interest.
 Use of deadly force against an unarmed fleeing suspect is unreasonable
seizure.
 Law enforcement cannot rely solely on national appearance in order to
make a determination on suspicion.
1. No reasonable suspicion is needed to stop near border
checkpoints.
2. When probable cause exists, the officer’s subjective motive for
searching or detaining a person does not negate the
constitutionality of the search or seizure.
 Search or seizure is valid if the facts show that a
reasonable officer would search or detain a person
 (Terry Doctrine) Terry Stop - a brief, not quite seizure of a person, and a frisk
that is not a search.
 Frisk  can only be done for the purposes of finding a weapon
 Police must have reasonable articulable suspicion
1. Police do not need probable cause.
2. Reasonable suspicion refers to facts and circumstances that
would lead a reasonable person to conclude that (1) criminal
activity is afoot and (2) the person with whom the officer is
dealing may be armed and presently dangerous.
 Reasonable suspicion cannot be supported by (1)
anonymous tips without evidence (police corroboration)
OR (2) unprovoked flight unless the flight occurs in a
high crime area.
 Terry Stop in Car Stop
5TH AMENDMENT/MIRANDA

 3 threads/Interrogations
o Due Process Voluntariness
o Right to Counsel
o Miranda
 5TH Amendment: “No person…shall be compelled in any criminal case to be a
witness against himself.”
 Miranda is a constitutional rule enacted to safeguard a defendant’s
right; it is not a constitutional right itself.
 Miranda Warnings: (1) You have the right to remain silent, (2)
Anything you say can and will be used against you in a court, (3) You
have the right to consult with an attorney and have the attorney
present with you during the interrogation.
 Defendant must be given Miranda Warning prior to custodial
interrogation
 Miranda Warnings applies to misdemeanors
 A person is “in custody” for Miranda purposes if a reasonable
person would think he is in custody at the time he provided the
statements.
 A normal traffic stop does not constitute a custodial
interrogation because (1) they are usually brief, (2) they
are not coercive, (3) the defendant is exposed to public
view, and (4) they usually involve a few officers.
 Therefore, Miranda Warnings do not have to be
read during the course of a traffic stop.
 Custody factors:
 Age (if police know or should know they are dealing
with a minor)
 Location of interrogation
 Number of officers
 Whether police transported the suspect or whether the
suspect came in by themselves
  (Deliberate Elicitation) What constitutes “interrogation” under
Miranda
 Express questioning or any words or actions enacted
by the police that the police should know are
reasonably likely to elicit an incriminating response
from the suspect.
 This is from the suspect’s perspective, not the
police. (police subjective intention does not
matter)
 Question routine to police inquiry (what is your
name?) does not constitute interrogation.
 Persons in prison
 Voluntary statements made by an inmate to an
undercover police officer do not require
Miranda Warnings
o Miranda only deals with interrogation
by official custodial interrogation.
 Warnings + Waiver
 The state holds the burden by showing that a preponderance of the
evidence that the defendant waived their right.
 Waiver = (1) voluntary (2) knowing and intelligent