CRIMINAL PROCEDURE

2023
E-01
Professor Laura Greenberg-Chao
Lgreenberg.chao@nesl.edu
Mondays 6-7:25
Wednesdays 7:35-8:55 pm

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 4th Amendment Checklist
1. Is this D protected by the 4A?
2. Is the person who did the action
governed by the 4A? (state actor?)
3. Does the conduct fall under the 4A? (was
there a 4A search?)
4. If there is a 4A search, the search must
be reasonable
a) Was there a Warrant? (PC,
particularity, execution)
b) If no warrant, was there an
EXCEPTION?
(S-P-A-C-E-S) 2
 4th Amendment checklist,
continued
5. Also under 4A – was there an
arrest?
a) Need probable cause
b) And a warrant if the arrest is inside
D’s home/REP

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 SILA
- In general, SILA is automatic (even if the
rationales don’t apply)
- In general, SILA allows for search of person,
grabbable space, and containers (again,
even if rationales don’t apply)
- Two ways for valid SILA of a car:
- If arrestee is unsecured, can search passenger
compartment and containers (i.e. grabbable
space)
- If arrestee is secured, can still search if RB that
there’s evidence related to arrest-crime
- Can search passenger compartment and
containers (“grabbable space”) but NO
TRUNK 4
 Plain View
• Allows SEIZURE where police have PC to believe
that the item is contraband/evidence related to a
crime (sight, feel, maybe smell)
– No additional manipulation
• Original intrusion must be lawful
– a location where there’s no REP
– If REP, police need a warrant or warrant exception
• OR, if temporary detention, need reas. suspicion
• And police must have lawful access to seize
– Within the scope of the warrant
– Or, there must be a warrant exception that allows the
seizure

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 Automobile Exception
• Vehicle must be stopped lawfully (traffic
violation, checkpoint, reasonable suspicion,
PC)
• To search, police must have PC to believe
that there’s contraband or evidence related to
a crime in the car
– Can search anywhere in the car the item might
be
– Acevedo – even if PC is limited to a particular
container, police can open that container without
a warrant (and it might give them additional PC to
search the rest of the car)
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 Overview: Consent

•Who has authority?:

– Actual and apparent
•Voluntariness
•Scope and terms of consent
• odds and ends

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 Questions
• What level of suspicion do police need to
ask for consent?

• If police get valid consent to search

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 Consent – the basics
• Authority – actual or apparent (did the
police reasonably believe the consenter
had authority)

• Voluntary

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 General rule
No warrant needed if there is VALID CONSENT, which
requires:

•The consenting party had actual or apparent authority;

•The consent was freely and voluntarily given and was
not the product of duress or coercion [consent is voluntary
if it is “the product of essentially free and unconstrained
choice by its maker”]
–Consent is not voluntary when the person giving
consent’s “will has been overborne and his/her
capacity for self-determination has been critically
impaired.” [Schneckloth v. Bustamonte, 41 US 218
(1973) [p392; 416];
•Scope of consent can be limited or withdrawn at any time
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 S-P-A-C-E-S
• Search Incident to a Lawful Arrest (SILA)
– Requires PC for arrest
• Plain View
- PC to believe that the item is contraband/evidence
• Automobiles
– Requires PC to believe that the car has
contraband/evidence
• Consent
– Requires no justification
• Exigent Circumstances
– Requires PC
• Special Needs/ Administrative
– Different levels of justification 11
 HYPO 1
• Sally calls police, tells them to come to
her home because her boyfriend is storing
guns there
• When they arrive, she is the only one
home, and she answers the door
• She invites them in and says “please
search anywhere” they find guns
• Boyfriend moves to suppress
• At hearing,prosecutor enter’s Sally’s
driver’s license with the address of the 12
 Consent – hypo 1
• Police are called to a home
• Caller says she lives there and her
boyfriend is keeping guns in the home
• Police arrive and she is the only one there,
waiting at the door.
• She invites the police in and tells them
they can search the home. They find guns.
• Did they need a warrant, or is this a lawful
CONSENT exception to the warrant
requirement? 13
 Authority
•Actual:
• Owners
• “Common authority”: roommates, co-tenants.
– General rule: “mutual use of the property by
persons generally having joint access or
control for most purposes.” [p393, fn 10;
quoting Illinois v. Rodriguez (1990) ]
•Apparent: did the police reasonably believe
the consenter had authority?

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 Common authority – Matlock
• “commonly held understanding about the
authority that co-inhabitants may exercise
in ways that affect each other’s interests”
• When Ms. Graff “came to the door of a
domestic dwelling with a baby on her hip”
she shows that she belongs there
• Co-tenants assume the risk of common
authority when they live together
• Voluntary consent of co-occupant is
valid against co-occupant 15
Review Problem #1
• Issue #1: Did the police
have authority to enter
the house?
• Issue #2: (If Dad wasn’t
there) could son consent
to search of the
bedroom?
• Issue #3: What happens
when there are two
occupants (Andrew and
Charles) of the premises?
Can Charles provide valid
consent to the bedroom?
• Issue #4: What happens
when there is a conflict
between co-occupants?

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 Review Problem #1
Georgia v. Randolph, 547 US
103, 112 (2006):
“`[A] child of eight might well be
considered to have the power to
consent to the police crossing the
threshold into that part of the house
where any caller, such as a pollster or
salesman, might well be admitted,”
but no one would reasonably expect
such a child to be in a position to
authorize anyone to rummage
through his parents’ bedroom [citation
omitted].”
Illinois v. Rodriquez (1990)
[p403]
•Fischer who no longer had actual
authority because she moved, but
gave the police consent to search
“our” apartment, where she had the
key and mentioning that she had both
clothes and furniture there.
•Holding: Search was permissible
because of apparent authority.
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 Hypo 2
• Julia rents an apartment.
• Her landlord enters the apartment and
sees that she has drug-making
paraphernalia on the table.
• He grabs it and brings it to the police
station.
• Police arrest Julia.
• Is evidence admissible at her trial?
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 Hypo 3
• Julia rents an apartment.
• Landlord calls police and says “I’ve got a
hunch that she’s running a drug lab in
there.”
• Police come right over.
• Landlord unlocks the apartment and
invites the police in; they see drug
paraphernalia on the table.
• They seize the evidence and arrest Julia.
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 Actual authority – common
authority
• Chapman
– Landlord can only enter for certain purposes,
not to give permission for a search for criminal
evidence
– PC, on its own, is not enough for the search
of a home – need a warrant or a warrant
exception!

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 Voluntariness

• The consent was freely and voluntarily given and

was not the product of duress or coercion
[consent is voluntary if it is “the product of
essentially free and unconstrained choice by
its maker”; it is not voluntary when the person
giving consent’s “will has been overborne and
his/her capacity for self-determination has
been critically impaired.” [Schneckloth v.
Bustamonte, 41 US 218 (1973) [p392; 416]
• Based on “totality of the circumstances”
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 Overview

Product of Will has been overborne

essentially free and and his/her capacity for
unconstrained self-determination has
choice been critically impaired.

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 Consent Factors
Objective factors Subjective or
(Conduct by law idiosyncratic factors
enforcement) (Characteristics of
•Choice of words suspect)
•Tone of voice •Education
•Display of weapon •Intelligence
•Whether subject knew his right to
•More than one officer
refuse consent
•Physical touching of the •Prior contact w/ criminal justice
suspect system
•Whether police warned •Mental illness
subject that he could refuse •Intoxication
•Age
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 Review Problem #2

“Will has been overborne and his

capacity for self-determination has been
critically impaired.” Schneckloth v.
Bustamonte, 41 US 218 (1973)
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