Criminal ProcedureCollins TABLEOF

Spring 2007Clark CONTENTS

Table of Contents.................................................................................................................................................................i Part One: Gathering Information......................................................................................................................................1Chapter One: The Border of Criminal Procedure: Daily Interactions Between Citizens and Police.....................................................1 Police as Community Caretakers.......................................................................................................................................................1 Police Enforcement of Civility...........................................................................................................................................................2 Traditional and Community Policing.................................................................................................................................................2 Chapter Two: Brief Searches and Stops.................................................................................................................................................3 The 3 Kinds of Encounters.................................................................................................................................................................3 Brief Investigative Stops of Suspects.................................................................................................................................................3 B.Brief Administrative Stops.............................................................................................................................................................7 Gathering Information Without Searching.........................................................................................................................................8 Brief Searches of Individuals [Terry].................................................................................................................................................9 Chapter Three: Full Searches of People and Places: Basic Concepts...................................................................................................10 Origins of the Fourth Amendment and Its Analogs.........................................................................................................................10 Is it a Search? Factors to Consider..................................................................................................................................................11 Probable Cause.................................................................................................................................................................................11 Warrants...........................................................................................................................................................................................13 Consensual Searches........................................................................................................................................................................16 Chapter Four: Searches in Recurring Contexts.....................................................................................................................................18 Persons..........................................................................................................................................................................................18 Houses and Other Places.............................................................................................................................................................19 Papers............................................................................................................................................................................................21 Effects...........................................................................................................................................................................................21 Chapter Five: Arrests............................................................................................................................................................................23 Stop or Arrest?.................................................................................................................................................................................23 Arrest Warrants................................................................................................................................................................................24 Police Discretion in the Arrest Decision..........................................................................................................................................24 Paper Arrests: Citations....................................................................................................................................................................25 Use of Force in Making Arrests.......................................................................................................................................................26 Chapter Six: Remedies for Unreasonable Searches and Seizures.........................................................................................................27 Origins of the Exclusionary Rule.....................................................................................................................................................27 Limitations on the Exclusionary Rule..............................................................................................................................................28 Additions and Alternatives to the Exclusionary Rule......................................................................................................................31 Chapter Seven: Technology and Privacy..............................................................................................................................................31 Enhancement of the Senses..............................................................................................................................................................31 Chapter Eight: Interrogations................................................................................................................................................................33 Overview..........................................................................................................................................................................................33 Voluntariness of Confessions...........................................................................................................................................................33 Miranda Warnings............................................................................................................................................................................34 Invocation and Waiver of Miranda Rights.......................................................................................................................................38 Effect of Asserting Miranda Rights.................................................................................................................................................38 Sixth Amendment Right to Counsel During Investigations (Not covered in Class, can delete)......................................................39 Miranda: Cures, Impacts, and Alternatives......................................................................................................................................39 Chapter Nine: Identifications................................................................................................................................................................40 Risks of Mistaken Identification......................................................................................................................................................40 Exclusion of Identification Evidence...............................................................................................................................................41 Other Remedies for Improper Identification Procedures.................................................................................................................43 Chapter Ten: Complex Investigations: The Investigative Grand Jury..................................................................................................43 Grand Jury Generally.......................................................................................................................................................................43 Grand Jury Secrecy..........................................................................................................................................................................44 Immunity for Witnesses...................................................................................................................................................................44 Document Subpoenas.......................................................................................................................................................................44 Hot Topics.............................................................................................................................................................................................44 DNA Dragnets..................................................................................................................................................................................44 CSI Effect.........................................................................................................................................................................................45 Fingerprint Evidence........................................................................................................................................................................45 Duke Lacrosse Team Rape Case......................................................................................................................................................45 -- i --

Criminal ProcedureCollins

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Part Two: Evaluating Charges.........................................................................................................................................45Chapter Eleven: Defense Counsel........................................................................................................................................................45 When Will Counsel Be Provided?...................................................................................................................................................45 Selection and Rejection of Counsel.................................................................................................................................................47 Adequacy of Counsel.......................................................................................................................................................................47 Systems for Providing Counsel........................................................................................................................................................48 The Ethics of Defending Criminals..................................................................................................................................................49 Chapter Twelve: Pretrial Release and Detention..................................................................................................................................49 Overview..........................................................................................................................................................................................49 Pretrial Release.................................................................................................................................................................................50 Pretrial Detention.............................................................................................................................................................................50 Chapter Thirteen: Charging..................................................................................................................................................................51 Prosecutorial Screening ...................................................................................................................................................................51 Chapter Fourteen: Jeopardy and Joinder...............................................................................................................................................54 Double Jeopardy...............................................................................................................................................................................54 Joinder..............................................................................................................................................................................................55

Part Three: Resolving Guilt and Innocence....................................................................................................................56Chapter Fifteen: Discovery and Speedy Trial.......................................................................................................................................56 Discovery.........................................................................................................................................................................................56 Speedy Trial Preparation..................................................................................................................................................................60 Chapter Sixteen: Pleas and Bargains....................................................................................................................................................61 Bargain About What?.......................................................................................................................................................................61 Categorical Restrictions on Bargaining............................................................................................................................................62 Validity of Individual Plea Bargains................................................................................................................................................63 Chapter Seventeen: Decision-makers at Trial ......................................................................................................................................65 Judge or Jury?...................................................................................................................................................................................65 Selection of Jurors............................................................................................................................................................................66 Jury Deliberations and Verdicts.......................................................................................................................................................67 Chapter Eighteen: Witnesses and Proof................................................................................................................................................69 Burden of Proof................................................................................................................................................................................69 Confrontation of Witnesses..............................................................................................................................................................70 Self-Incrimination Privilege at Trial................................................................................................................................................71 Ethics and Lies at Trial.....................................................................................................................................................................72

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Criminal ProcedureCollins

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PART ONE: GATHERING INFORMATIONCHAPTER ONE: THE BORDER 1.OF

CRIMINAL PROCEDURE: DAILY INTERACTIONS BETWEEN CITIZENS

AND

POLICE

Police as Community Caretakers

2.

3.

4. 5.

6.

Community Policing in General (Not subject to Regulation) Much of CrimPro is aimed at regulating police officers, but we dont regulate this function of police as much a. No constitutional constraints governing community caretaker function. Not a lot of laws governing it either b. Accounts for about 60-70% of police work. c. Rules are less stringent as they apply to this function v. investigative function ii. A lot of what police officers do does not relate to law enforcement (See OR statute (broad) and IN job desc.) iii. Examples: Looking for lost dogs; warning community about keeping hedges down to deter burglars. Thinking about the Police i. Are they part of the community, or a force separate from the community? ii. Is their only rule to investigate crimes? Or should they play a community caretaking function? iii. If they are caretakers, does that give them too much power in our daily lives? iv. Should they be governed by different rules depending on what role they are engaged in? v. In general, should the police be tightly controlled or do they need lots of discretion? OREGON REVISED STATUTES 133.033 i. Any peace officer of this stateis authorized to perform community caretaking functions ii. Defined as(among others) any lawful acts inherent in duty of the peace officer to serve & protect the public. a. Right to enter or remain upon the premises of another if it reasonably appears to be necessary to: (1) Prevent serious harm to an persons or property (2) Render aid to injured or ill persons; or (3) Locate missing persons b. Right to stop or redirect traffic or aid motorists or other person when such action reas. appear to be nec. to: (1) Prevent serious harm to an persons or property (2) Render aid to injured or ill persons; or (3) Locate missing persons iii. Essentially: gives police a lot of discretion INDIANAPOLIS POLICE DEPARTMENT JOB DESCRIPTION: PATROL OFFICER State v. Michael Dube (Me. 1995) i. Facts: Police accompany a landlord (upon his request) as he enters an apartment to fix a leak. (Self-protection as well as protection from accusations of theft). While there, they discover lots of crap (actual crap) & evidence that small children live there. The Landlord fixes the leak, but then leaves as police stay behind to take pictures and collect evidence. ii. Court says a. Police may accompany the landlord upon his request for protection via their community caretaker role. b. But, once work is done, so is caretaking function and police must leave. Need warrant to collect evidence. iii. Is this good? a. What if it takes 4-8 hours to get a warrant? What if the tenant comes home while trying to get a warrant? Can they block the tenant from entering? Does this give time for the tenant to clean up the premises? b. If they clean it up, they lose the physical evidence, but they can try the guy based on officer testimony. State v. Robert Stowe (La. 1994) i. Facts: Stowe is walking down the highway, drunk, after an argument, with a bloody arm and accompanied by a priest. Stowe refuses the officers help and gets a little rowdy. Traffic starts to back up and thus, the officer tries to arrest Stowe and Stowe resists the arrest, hitting the officer. ii. Court says a. Majority says officer was acting within his community caretaking function. Officer was justified in believing Stowe was disturbing the peace. Assault 5 years hard labor! b. Impassioned Dissent says this guy was minding his own business and disturbing no one. Officer forced his unwanted attention and assistance on Stowe. Stowe merely retaliated to officers continued and persistent breach of his constitutional right to be left alone and free of unwanted interference.i. -- 1 --

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If less strict rules govern community caretaker function, why? Is it b/c we are less likely to find police activity in caretaking context intrusive Is it b/c these functions are less likely to lead to severe consequences for citizens, like jail time? Is it b/c wider range of activities involved, so less amenable to being governed by procedural rules? Is it because we trust the police more in this context? 8. State v. Michael Lovegren (Mont. 2002) i. Facts: Officer on patrol came across a vehicle parked on the side of the road. Lovegren was asleep in the drivers seat. Officer approached the car to check Lovegren. He knocked on the window, Lovegren didnt respond so he opened the door and Lovegren woke up and blurted out Ive been drinking! Officer smelled alcohol, gave him a breathalyzer and took him to the station charged with drunk driving. ii. Court saysConviction stands. Officer was acting within his community caretaking function.i. ii. iii. iv. Police Enforcement of Civility 9.

State v. Janisczak (Me. 1990) Facts: Janisczak opposed an arrest the officers were making and led a mob shouting obscenities at them. As officers made arrest, Janisczak shouted at the officers from only a few feet away. When an officer confronted him, Janisczak said Fuck You to his face and the officer arrested him for obstruction. ii. Court saysConviction Overturned a. No Obstruction: because No Criminal Act b. No Intent to Obstruct: 1st amendment issue: Court says not fighting words c. When someone yells at police, the police are expected to take it, even if it would incite a non-police officeri.

Traditional and Community Policing 10. Focus on preventative community measures rather than reactive measures. i. Hypo: Vacant house with lots of drug problems a. Reform style: arrest everyone selling drugs and prosecute them all b. Community style: reach a community solution maybe buy the house then tear it down and build a

playground; maybe turn it into a day care. 11. Traditional view: very impersonal law enforcement i. merely reacting to crimes: responding when people need help or after a crime has occurred ii. separate from the community 12. Community policing: the new trendmore personal law enforcement i. more proactive in fighting crime: instead of waiting for crime to occur, respond to community concerns and try to preempt the crime (e.g., enact anti-graffiti laws, anti-vagrancy laws, etc.) ii. more community involvement: attend community meetingsassign officers to specific areas, walk the beat, and get to know the people in the community iii. returns to the police a lot of discretion that they had taken away during the 70s and 80s 13. Causing the trend toward community policing i. need to improve relations b/n community and police ii. crime rates were increasing in 80s and 90s 14. Good idea?: Does it reduce crime? Does the community like it?

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Criminal ProcedureCollins CHAPTER TWO: BRIEF SEARCHES

Spring 2007ClarkAND

STOPS

The 3 Kinds of Encounters 15. Consensual encounters: require no justification 16. Stops: require reasonable suspicion 17. Arrests: require probable cause Brief Investigative Stops of Suspects 18. General i. DELAWARE CODE tit. 11, 1902 a. (A) A peace officer may stop any person . . . in a public place, who the officer has reasonable ground to

suspect is committing, has committed, or is about to commit a crime, and may demand the persons name, address, business abroad, and destination b. (B) A Person so questioned who reuse to ID or explain the persons actions to the satisfaction of the officer may be detained and further questioned and investigated. c. Purpose: Was DE trying to require reasonable ground to suspect for all police encounters (1) Probably not; probably significant that DE used the word stop ii. ALASKA STATUTES 28.35.182(a) 19. Consensual Encounters and Stops i. Consensual Encounter a. Most common: Hey X, where are you going? b. If X says Im going to sell drugs, no constitutional violation ii. United States v. Sylvia Mendenhall (1980) THE TEST a. Rule: An encounter is a stop requiring the presence of reasonable suspicion when, in view of the totality of the circumstances, a reas. person would have believed he was not free to leave (or to refuse to cooperate) (1) Note: an objective standard: officers subjective intention is irrelevant unless communicated to suspect. (2) What factors do you consider (i.e. in an exam problem)? Things like language (please, or must), tone of voice (normal or shouting) used by officer, # of officers, any display of weapons, any phys. touching. b. The Police do not have to tell people they have the right to refuse to cooperate iii. Wesley Wilson v. State (Wyo. 1994) a. When did the stop occur? (1) Officer pulls over to ask a limping Wilson if he is okay. [NO STOP] (2) Officer asks Wilson for his ID. [NO STOP] (3) Officer calls in warrant check. [Court is ambivalent about this, but] (4) Officer tells Wilson to stay in the area & drives off. [NO STOP] (a) Court saysobviouslyWilson felt free to leave b/c he walked away. (b) Collins sez: this may be a stop b/c even tho Wilson limped away, RP may have felt compelled to stay. (5) Officer returns 8 minutes later and tells Wilson to wait at corner. (a) Finally, court says it is a stop. (b) Note officers subjective intentions about whether he is making a stop do not matter. What matters is Wilsons view of his options. [or RPs view of Wilsons options] b. Dissent : Great language! (1) The American bench needs to understand that its invocation of the premise of protecting Constitutional rights in reversing criminal convictions has contributed to the development of a society in which violence stalks our streets and fear permeates our neighborhoods. (2) Kind of poo-poos the constitution, but maybe its criticizing a too technical reading. iv. Maria Full of Grace (clip): Drug mule in JFK is approached by police a. Initial encounter: officer asks to see passport, declaration card, and ticket. Stop? (1) Probably not under Mendenhall test since RP would probably believe they could refuse to cooperate. (2) But courts tend to ignore the consequences of refusal here, she would likely be detained if she said no. (3) So, its really a fiction that she could have refused to cooperate. b. Next step: taken to the office and patted down given form to consent to X-ray. Stop? (1) Mendenhall Terry frisk is probably what makes it a stop. Everything else, probably consensual (2) Police always said: Please come with me.We would like you to sign this form. She walked to the office. Under Mendenhall, engage in fiction that it was consensual, regardless of consequences of refusal-- 3 --

Criminal ProcedureCollins Spring 2007Clark v. Florida v. Bostick a. Facts: Agents came onto the bus and blocked the way off the bus. [refuse to cooperate is in the definition

to accommodate this situation, where stoppee cannot leave, but could choose not to cooperate] b. Holding: physical inability to leave did not matter he still could have refused to cooperate. c. even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individuals identification; request consent to search his/her luggage. vi. Who is Reasonable Person? a. Presupposes an innocent person. What would a reasonable innocent person do? [WWRIPD] (1) Should we account for factors such as age, native language, gender, etc.? (2) Courts sometimes consider such factors as well as other factual circumstances: Were weapons used, etc. b. The Court tends to draw the line well beyond where most of us would feel comfortable c. This definition of stop favors police: in most cases, a court will find that RIP would feel free to leave, even though in most cases, the person will probably not think they are free to leave d. Remember: the subjective intent of the officer does NOT matterinstead, focus on what the citizen thinks thus the officers intent only matters to the extent it was manifested to the citizen 20. Grounds for Stops: Articulable, Individualized Reasonable Suspicion i. What is Reasonable Suspicion? a. Terry: A minimal level of objective justification (1) Specific and articulable facts which, taken together with rational inferences from these facts reasonably warrant the intrusion. (2) Requires a balancing of particular government need to conduct search against the invasions it entails b. Something more than a hunch, but less than a preponderance of the evidence (50%). So its probably something like 25-30% certainty. Considerably less than probable cause. ii. Alabama v. White (1990) Good base case! a. Facts: Police got hearsay evidence that predicted future behavior of a drug suspect entirely innocuous actions by suspect and not all of it was corroborated. b. Court saysIts a close case, but reasonable suspicion probably bare minimum. iii. State v Theodore Nelson (Me. 1994) a. Facts: Officer sees suspect drinking one beer over a 50 minute period at 1:30 am on Christmas Eve. Sitting in the car in a housing complex parking lot. Recent thefts in area (Note: drinking in a car is NOT a crime in ME). Officer pulls him over as he leaves the parking lot. b. Holding: Court concludes no reasonable suspicion iv. State v. David Dean (Me. 1994) a. Facts: Officer sees the defendant driving slowly through an uninhabited cul-de-sac in a construction area at 11:00 at night. Recent vandalism in area. b. Holding: Court concludes there was reasonable suspicion. v. Some General Lessons about Reasonable Suspicion a. There are no hard and fast rules. Court use a totality of the circumstances test b. Remember, in most cases, the decision to stop is based on activity that is non-criminal c. Some categories of issues do seem to matter to courts (1) The Targets Location and Behavior (a) Location: [1] high-crime area; [2] uninhabited area with no business to be there (b) Behavior: furtive behavior (reaching for waist-band, looking into passengers lap or at floorboard) (2) The Police Officers Behavior (a) Nelson: Over-aggressive behavior may hurt states case Officer watches these guys drink for 90 min (b) Dean: Officer is on a routine patrol (3) The Seriousness of the Suspected Crime (a) The more serious the suspected crime, the more it helps the states case d. Note: In every case on appeal, the police officer guessed right. (He thought someone was driving drunk they were; he thought someone had a gunthey did). (1) So, court is always reviewing as a Monday morning quarterback (2) The Defendant is always waging an uphill battle vi. Illinois v. William a.k.a. Sam Wardlow (2000) a. Facts: Wardlow flees as cops drive byholding an opaque bag (later learn its a gun) in a high-crime area.-- 4 --

Criminal ProcedureCollins Spring 2007Clark (1) All they have is [1] high-crime area, and [2] flight. No bad time of day, no furtive behavior b. Holding: there was reasonable suspicion (1) The determination of reasonable suspicion must be based on commonsense judgments & inferences about

human behavior. Bad Neighborhood & Flight= reasonable suspicion (a) Brown v. Texas: High crime area, without more, is never enough. (b) Florida v. Royer: Refusal to cooperate (flight), without more, is not enough (2) However, they are both considered factors, and, together, as here, they may be sufficient c. Dissent: there are many reasons why you may run from the cops in a bad area distrust of cops d. Defense arguments (1) How do you know its a high-crime area? Usually rely on policy testimony, but empirical data helps (2) Running in a high-crime area as police approach is a perfectly reasonable reaction (a) Presence of police probably means there is a crime in progress. (b) Bad things seem to happen around police | People sometimes shoot at the police (c) Dont want to be seen talking to the police and perceived as a snitch (d) Stevenss dissent comes up with lots of other legitimate reasons (feel like a jog?) vii. Lessons from Wardlow a. Being in a bad neighborhood is not enough, by itself, to find reasonable suspicion b. Unprovoked headlong flight is not enough, by itself, to find reasonable suspicion. c. However, being in a bad neighborhood, coupled with unprovoked headlong flight, is enough d. The exact meaning of unprovoked headlong flight needs further clarification. Would just walking briskly in the opposite direction be enough? viii. Note the Hodari D. wrinkle: flight alone is not enough for reasonable suspicion, a. Mere pursuit is not a stop. No stop until they submit to officers authority [voluntarily or involuntarily] b. So, you dont need reasonable suspicion to pursue someone, but once you tackle them, its a stop. c. Thus, drugs abandoned during pursuit = admissible b/c no unconstitutional stop until Hodari D. was tackled d. Lesson: better to hold on to incriminating evidence during a chase (like a gun or drugs). 21. Pretextual (Whren) Stops i. What are they? Whren stops refer to traffic stops based on reasonable suspicion of a traffic violation, but are intended to further the investigation of some other crime. ii. Whren v. United States (1996) a. Facts: Officers see young men engaging in furtive behavior but dont think its enough for a stop. So, they follow them until they make some traffic violation. During the traffic stop, police find cocaine in car. b. Holding: All thats required is probable cause for stop. [Even if underlying reason investigate other matter] c. The Whren Rule: (1) Subjective intentions play no role in ordinary, probable cause [or reas. susp.] 4th amendment analysis. (2) In other words, we dont care what the officers true motive was for making the stop, as long as it was objectively based on reasonable suspicion or probable cause (3) The alternative approach: overturn a stop if a reasonable officer would not have made the stop in the absence of the additional motive (see state of Washington). d. Is Whren good or bad? (1) Arguments in favor of Whren (a) Requiring there to be a reasonable suspicion and limiting the scope of the search are enough protection for citizens. You have, after all, done something wrong. (b) How would you prove what the true motive is for a stop is anyway? (c) A different rule would just give greater protections to those suspected of the most wrongdoing (2) Arguments against Whren (a) Police can create reas. susp. to stop anyone. (How many traffic violations do you make every 5 min.?) (b) This opens the door for discrimination, racial profiling, and other forms of arbitrary policing. iii. People v. Frank Robinson (N.Y. 2001) a. Neither primary motivation nor determination of what reas. officer would have done under circs is relevant b. This cop behavior ok as long as officer could have properly stopped vehicle on evidence of a traffic offense iv. Anonymous Tips a. There is a young black male in a plaid shirt at the bus stop carrying a gun. b. Not enough on its ownsome details must be independently corroborated by the police. c. S.C. more protective of Ds when anonymous tips usedneed indep. predictive details to corroborate the tip-- 5 --

Criminal ProcedureCollins Spring 2007Clark d. RATIONALE: motive of tipster could be less than well intentioned 22. Criminal Profiles and Race i. Samir Quarles v. State (Del. 1997) a. Facts: Quarles & companion are last of bus from NYC. They look nervous, try to evade police, and the

NYC Wilmington bus route is a major drug corridor. After tailing Quarles & companion, police approach them, ask questions and request permission to search them. They do and found cocaine in Quarless boot. (1) Was this a stop? YESespecially when officers pulled car onto sidewalk and multiple officers arrived RIP would not feel free to leave (2) Officers Looney and Solge base the stop on a criminal profile and some other factors (a) Profile factors (i) On a bus from NYC (a drug corridor) (ii) At night (10pm) (iii) No luggage (iv) Traveling as a pair (b) Non-profile factors (i) Stopped talking when they saw the police as they left the bus (ii) Tried to avoid officers (seemed deliberate) (iii) Rapid stride b. Holding: Ds suspicions behavior and the drug profile, when taken as a whole from the perspective of one who is trained in narcotics detection, produces a reasonable, articulable suspicion that a crime was afoot. ii. What is a Profile? a. A set of characteristics police have determined are indicative of criminal behavior (particularly drug cases) b. Most courts say a profile alone is not enough, but it may change the balance in favor of reasonable suspicion when non-profile factors are insufficient. c. Pro-profile (1) Profiles are nothing more than collective police experience and observations institutional knowledge (2) Whats the problem with that? Dont we want police to share this info? d. Anti-profile (1) Standards of Proof: Most PDs do not reduce profiles to writing (a) Critics wonder if these are ad hoc or post hoc factors developed to fit the situation. (b) Also, you dont always know all the components. For example, in Quarles, 4 factors were metwere these factors the only profile factors? Or were there 10? We dont know, do we? (2) How do you really know that these factors are really indicative of criminal behavior? (a) There just isnt data on it its actually unbelievable how antiquated PDs computer systems are. (b) Money just isnt there in 2002, D.C.P.D. still used typewriters & not all FBI field were networked (3) Profiles tend to be racially discriminatory (a) Ridiculous to say never take race into accountalways OK to use it to match a suspect description. (b) But can you take it into account more generally? (i) Pre-9/11: Most against it, and generally people (incl. Bush) were against race motivated traffic stops. (ii) Post-9/11: Many more people for it generally people still say racial profiling on the highway is wrong, but not using racial profiling at an airport is ridiculous. (c) Even if profiles arent discriminatory, indiv. biases & prejudices leak in when officer makes a stop (i) i.e. profile may not say race, but when officer applies profile may apply it more often to minorities (ii) Of course, determining racial background much more difficult given extremely mixed backgrounds iii. Proposed Responses a. Per se ban on use of race in creating profile/making decision to stop b. Strengthening requirements for stops (1) Must have reasonable suspicion before asking for consent to search (2) Must get consent in writing (3) Must announce reason for stop c. Keeping statistics and issuing frequent statistical reports d. Using VCRs in cars to record stops e. Establishing a regular review protocol iv. Problem 2-2: Race and Witness Descriptions-- 6 --

Criminal ProcedureCollins Spring 2007Clark v. Verniero, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling

THE NEW JERSEY REPORT SOME STATISTICS SOME PROPOSED RESPONSES 4 of 10 stops involved a member of a minority Per se ban on the use of race in creating a profile or group. making a decision to stop. o Only .7% of the stops led to a search Strengthening the requirements for stops. o BUT, > 77% of searched were minorities o Must have reasonable suspicion before asking for consent to search. The Radar Unit, which has the least discretion, o Must get consent in writing. issued 18% of its tickets to African-Americans. o Must announce reason for the stop. The Patrol Unit, which has the most discretion, issued 34% of its tickets to African-Americans. Keeping statistics In terms of believing that all drivers are treated the Using VCRs in cars to record stops same by the police, regardless of race, sex, or age: Issuing frequent statistical reports o White NJ Residents: 60% positive | 20% Establishing a regular review protocol negative o Black NJ Residents: 20% positive | 72% negativeB. Brief Administrative Stops

The Supreme Court on Checkpoints i. Michigan v. Sitz: upheld sobriety checkpoints (brief detentions for simple questioning) a. Purpose = highway safety ii. U.S. v. Maritnez-Fuerte: upheld a fixed Border Patrol checkpoint (but the court has struck down roving Border Patrol stops in the absence of individualized suspicion). a. Purpose = preserving integrity of border iii. Illinous v Lidster: upheld an information-seeking checkpoint to get info on hit-and-run. a. Purpose = seeking information about someone other than the driver that is stopped. iv. Indianapolis v. Edmond: struck down a drug enforcement checkpoint. a. Purpose = detect evidence of ordinary criminal wrongdoing. v. General Rule: if you are in a car, you will lose (check your privacy at the curb when you drive) 2. Factors that have been important to the Court i. The presence of a special need beyond criminal law enforcement: a. Sitz: roadway safety b. Marinez-Fuerte: maintaining the border c. Lidster: information gathering ii. Balancing test: degree of intrusion on drivers v. governments purpose of conducting checkpoint iii. Civil rather than criminal intent iv. Conditions of administration: [1] Prominently announce their purpose; [2] Pre-set, non-discretionary routine about which cars to stop; [3] Supervisor on site; [4] Minimize the duration of the stop; [5] uniform application. 3. City of Indianapolis v. James Edmond (2000) [A Rare Rebuke of Police by the Rehnquist Court!] i. The Checkpoint: Drugs a. Police set up 6 roadblocks Aug.Nov. 1998. Stopped 1161 vehicles; made 104 arrests: 55 drugs; 49 other. b. Ran checkpoints during day at predetermined locations, stopping predetermined # of cars at each location c. Officers asked for license & registration, looked for any signs of impairment, & examined car from outside. A drug sniffing dog would also walk around outside. d. Officers could only search further based on particularized suspicion. ii. Holding: Struck down More arbitrary that previous checkpoints a. BIG DIFFERENCE: here, primary purpose was for ordinary law enforcement, and if that is the goal, then the ordinary criminal procedures and protections should apply. b. We have never upheld a chckpnt program whose prim. purpose was to detect ev. of ord crim. wrongdoing c. In other cases, special need beyond ordinary law enforcement that needed to be addressed (1) With sobriety, trying to keep people off the roads who were a danger to the roads (2) Here, Court found such a connection lackingdrug sniffing dog seemed to make a difference1. -- 7 --

Criminal ProcedureCollins Spring 2007Clark iii. Is Edmond hopelessly inconsistent with Whren? a. Whren: dont look into subjective primary purpose behind the traffic stop b. Edmond: officers subjective intent irrelevant to 4th amend. validity of traffic stop justified objectively by

prob. cause. c. Reconciled b/c in Whren, regardless of primary purpose, driver had violated traffic code. Here, drivers have not violated any law traffic code 4. IOWA CODE 321K.1 5. Problem 2-4: Airport Checkpoints After September 11 i. Secure2000 X-ray machine implemented in hallway w/o notice. Do they need notice? What happens if the scanner reveals drugs, not weapons? ii. Is there a reasonable expectation of privacy at the airport? Does it keep degrading?Gathering Information Without Searching

Overview Terminology here is confusingof course there was a search, but for 4th amend. purposes, not every search for evidence is 4th amend search. Katzs test helps us figure out if there was a search. ii. Katz v. United States (1967) What is a search? a. Facts: Police put a bug in public phone booth to listen to conversations b. Court says (1) The Fourth Amendment protects people, not places (2) What a person knowingly exposes to the public, even in his home or office, is not subject to 4th amendment protection. Whereas, what he seeks to preserve as private, even in an area accessible to the public may be protected. c. Concurrence (Harlan)The old trespass doctrine is dead. The 4th amend only applies in circs where people have a reasonable expectation of privacy. This TEST has two components: (1) Subjective: the individual must have an actual expectation of privacy (2) Objective: the expectation must be one society is prepared to recognize as reasonable d. Otherwise, as long as the police officer is lawfully in his vantage point, and no extraordinary measures, and the item is in plain or open view, no 4th Amendment search has occurred. (1) Examples: No reasonable expectation of privacy for trash on curb (2) No searchno constitutional safeguards (3) Notion of balancing the interests: government interest v. degree of intrusion 7. Plain View i. Conditions a. Officer must observe the object from a lawful vantage point b. Officer must have a right of physical access to the object in question from that vantage point c. Officer must have a right to seize the object (fruit, instrumentality, or evidence) probable cause ii. State v. Mihai Bobic (Wash. 2000) [No search!] a. Facts: Police looking to search a storage unit. Gained access from owner of adjoining unit. Police officer looked through a hole no bigger than a pinky and saw some contraband. b. Holding: No expectation of privacydespite the fact that it was closed and locked, there was a hole in the wall that anyone could look through. Plain View (open view) and No Search! iii. Steven Dewayne Bond v. United States (2000) [Search![ a. Facts: Border Patrol agent whose job was to ensure that passengers citizenship was OK, squeezes luggage in overhead compartment and discovers a brick of methamphetamine b. Holding: Search! (1) Reasonable expectation of privacy that bag wouldnt be squeezed more intrusive than normal touching (2) NOTE: Here, D might have had a problem meeting the subjective prong of test b/c he wrapped the brick in his pantstook that extra measure to hide it, even though it was in the bag. c. Dissent: no expectation of privacy for your bags that are stored in overhead compartment b/c people are going to be touching it and squeezing it during travel. iv. Problem 2-5: Plain View from a Ladder a. General Rule: upheld as long as the officer has a right of physical access to the vantage point. v. Problem 2-6: The Friendly Skies a. No assumption of privacy in navigable public airspace.6. i. -- 8 --

Criminal ProcedureCollins Spring 2007Clark (1) In legal airspace, police may fly over property to get info. If they can see it no search; no 4th protect. b. Helicopter Flyovers are almost universally upheld (1) Even one as low as 400 ft which viewed marijuana through missing panes of a greenhouse (2) General rule: upheld as long as helicopter not so low as to cause physical intrusion into physical property vi. Problem 2-7: Super Bowl Coverage a. Scan faces as they enter Super Bowl to check against criminal backgrounds & terrorists and pick-pocket dBs (1) Questions about notice (2) Maybe OK for terrorists, but not pick-pockets b. NOTE: other methods of scanningairport scanners for weapons (1) Many of these are covertshould they be? c. POINT: if checkpoint is for a special need beyond ordinary law enforcement, checkpoint will be permitted (1) Otherwise, ordinary constitutional protections apply (when its ordinary law enforcement) (2) But, even if it has a special need, administrative provisions may make it invalid if not strictly adhered to Brief Searches of Individuals [Terry]

Frisks for Weapons John Terry v. Ohio (1968) One of the Top 10 classic Crim Pro cases! a. Facts: Officer McFadden joined the Cleveland PD in 1925a 41-year veteran! Sees Terry & Chilton on street, suspects them of an impending robbery. He approaches them and a third man, moves them into a store, frisks exterior of clothes for weapons and finds guns on both Terry and Chilton. (1) Terry says: Need probable cause to search! (2) Ohio says: Officers dont need any justification to search for weapons so minimal, not even 4th amend! b. Holding: Youre both wrong! (1) Seizure: not just an arresta seizure occurs whenever a police officer accosts and individual and restrains his freedom to walk away by force or by show of authority. (a) A seizure occurred when McFadden grabbed Terry and spun him around (b) A search occurred when McFadden patted Terry down (c) However, both are minimal intrusions and the warrant clause/probable cause dont apply (d) Deals with entire rubric of police conduct necessarily predicated on swift action (2) What is the necessary justification for a Terry frisk? (a) Must have reasonable suspicion to stop; AND (b) Must have reasonable suspicion that the person might be armed (i) Critical! A Terry frisk that is unsupported by reasonable suspicion of armed danger is invalid! c. Dissent (Douglas): agrees with Terry and advocates probable causeanything less is too easily manipulated (1) Academics say that if court has gone with probable cause, probable cause wouldve gotten watered down. (a) Police were going to continue to frisk, and the cases that would have gone to trial, the officer would have found a weapon they wanted to admit. (b) So, majority opinion probably saved probable cause (2) If Douglas prevailed, state legislatures would likely have expanded criminal codes to criminalize loitering d. The Terry Rule: (1) Officers may stop/seize a person without probable cause if it is short, brief, and to investigate a crime (2) Officers may conduct a pat-down search for weapons if reas. susp. person is armed & presently dangerous ii. Frisk Statistics from NYC a. In 1997, the NYC Street Crimes Unit frisked 18,023 people and made 4889 arrests (approx. 27%) b. In 1998, same unit (now focused on commy policing) frisked 27,061 and made 4646 arrests (approx. 17%) 9. The Scope of a Terry Search i. Commonwealth v. Arthur Crowder (Ky. 1994) a. Facts: Officer Nunn arrests Crowder for drug possession. 12 days later, Nunn sees him on the same corner and orders Officer Sanford to detain Crowder and pat him down. He finds drugs on him. b. Court says What is the Scope of a Terry Search? (1) Limited to [1] the places where you could find a weapon (including purses and backpacks) AND [2] to the amount of time necessary to conclude there is no weapon (2) But, Dickerson tells us there is a plain feel exception in the federal system: if it is immediately apparent the item the police are feeling is contraband, they can seize it. (a) In Dickerson, not a Terry frisk because it wasnt immediately apparent that lump was cocaine8. i. -- 9 --

Criminal ProcedureCollins Spring 2007Clark (b) Same outcome in Crowder, and search is unconstitutionally invalid (c) Whats the problem with this approach? In some ways it encourages police to lie! (d) Crowder concurrence and some states say that police can confiscate any item of contraband discovered

in the course of a Terry search to permit otherwise requires superhuman conduct by policeii. The Ground Rules for Terry Frisks of Cars a. Police need reasonable suspicion to stop the car. But if there is reasonable suspicion (1) Police can automatically ask the driver and passengers to get out, with no additional suspicion beyond

that needed to stop the car (Pennsylvania v. Mimms) (2) Police can search the interior of the car for weapons, if, and only if, they have additional reasonable suspicion to believe a weapon is inside (Michigan v. Long) (a) This is the problem with the search of the 4 black mens car in the PrimeTime (DWB) special (b) Pulled over for failing to signal while changing lanesis that reas. susp. to believe a weapon is inside? b. The search must be limited to places where a weapon could be hidden and accessibleNo locked trunk c. QUESTION: If the justification for a weapon search is to protect the officer, and you make everyone get out of the car, does that mean the justification of the search is gone? NO! (1) Maybe you cant keep control of all occupants while detained, so they could return to car & get weapon (2) Or, they could re-obtain the weapon after the stop is over. iii. ARKANSAS CODE 16-81-206: search outer clothing no more detailed than necessary iv. MONTANA CODE 46-5-402: frisk for protection if reas. susp. person is armed & dangerous v. Lary Hiibel v. District Court (Nev. 2002) a. Officer called to domestic dispute on side of road. Officer asks for ID 11 times and Hiibel refuses. Officer arrests him under NV statute that requires someone to identify themselves b. Officer does a great job of maintaining composure in light of Hiibels conduct (www.hiibel.com). c. Why should police be able to request ID? Check for outstanding warrants?CHAPTER THREE: FULL SEARCHESOF

PEOPLE

AND

PLACES: BASIC CONCEPTS

Origins of the Fourth Amendment and Its Analogs 10. 4th Amend: The right of the people to be secure in their person 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 tings to be seized. 11. Two points on the 4th Amendment i. Are the reasonableness clause and the warrants clause independent or dependent? a. One view: warrant clause modifies reasonableness clause warrants are preferred reas. course of action b. Another view: clauses are independent. Reasonableness clause addresses warrantless searches, and warrants clause, w/ its requirements of warrants & probable cause, addresses warranted searches. c. Dont have to resolve the debate, just know both views are out there and influence judicial opinions ii. What were the chief concerns of the drafters: What searches were they most concerned about? a. In colonial days, the more commonly litigated searches were warranted searches (1) Framers were most concerned about broad permission to search homes via a general warrant (2) Chief danger against which 4th amendment is set to guard is invasion of the home (3) Historical concerns about government searching and seizing b. What were the possible colonial attitudes toward judges? (1) Could view them either as the heavies who immunized tort defendants from impermissible searches OR as the heroes who sometime refused to authorize general warrants (2) What does this tell us about whether there is a preference for warrants today? (a) If we dont like/trust judges, no reason to favor warrants b/c we they provide no additional protection. (b) If we do like/trust judges, it might mean that warrants are the best course of action. 12. General Search Warrants i. John Entick v. Nathan Carrington (K.B. 1765) a. Facts: Entick was subjected to a search based on a general warrant, and is now suing the searcher under a tort theory of trespass; if the general warrant is valid, its a defense; if not, Entick prevails. b. Holding: court found it invalidhad concerns (1) The possible abuses of warrants (a) Ex parte proceedings. [This has not really been changed]-- 10 --

Criminal ProcedureCollins Spring 2007Clark (b) Issued by executive officials who were not truly independent. (c) No specific explanation reqd/no probable cause needed [I must search Enticks home & papers. OK!] (d) No accounting required (no inventory or witnesses). [No inventory means you aint getting it back!] (e) No time limits on grant of search power [Colonial days, forever. Today, all warrants expire-10 days] (2) The place of juries & tort remedies (a) Properly warranted searches were not tortiousso no remedy if you thought the search was

unreasonable or you didnt get your stuff back. Thats largely still true today.(b) Still tort causes of action were available for improper warrants (3) Ruffian customs agents (a) There werent really police in this country in colonial timesnot until late 19th century (b) So, chief concerns of framers focused on these rogue English customs agents Is it a Search? Factors to Consider 13. 14. 15. 16. 17. 18. 19.

Nature of the place observed home v. open fields Steps taken by homeowner to ensure privacy Intrusiveness of the police activity Degree to which the search involved a physical intrusion Nature of activity observed Availability to general public of technology used All going to the larger question did the individual have a reasonable expectation of privacy?

Probable Cause 20. Defining Probable Cause: Like reasonable suspicion, a murky test i. Dresslers Rules of Thumb a. An arrest without probable cause is an unreasonable seizure b. A search or seizure of property without probable cause is an unreasonable search or seizure. ii. Four Elements: a. Reasonable to whom: usually reasonably prudent or cautious person b. Strength of Inference: various stds for strength of link btw facts offered & concl. criminal activity occurred c. Comparison to other Standards: suggest its limits by comparison to other standards. (i.e., less than amt

required for guilt, but more than reasonable suspicion) Quality of Information: sometimes required that the assessment be based on evidence that is reliable, trustworthy, or credible (reasonably trustworthy) iii. Problem 3-1: Applying Different Probable Cause Standards iv. Virgil Brinegar v. United States (1949) a. Facts: Brinegar is arrested for running liquor across state lines. (1) Police had previously arrested him for illegally transporting liquor, had seen him loading liquor into a car in Joplin, MO at least twice in the last 6 months; and knew him to have a reputation for hauling liquor. (2) Police recognized Brinegar as he passed, the car appeared to be heavily loaded, and he increased his speed as he passed the car. The officers pursued him and crowded him off the road when he didnt stop. b. The Brinegar Courts Discussion of Probable Cause (slide) (1) We deal with probabilities, which are not technical. (Police officers are not lawyers) (2) We look to the factual & practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. (police officers are not lawyers) (3) Look for facts & circumstances within the officers knowledge and of which they had reasonably trustworthy information which are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. c. Or, in English . . . (slide) (1) Like reasonable suspicion, this is a very fact-specific inquiry. (2) Probable Cause = more than bare suspicion but less than evidence you would need to support a conviction (3) So how much certainty do you need? One study found that 1/3 of judges surveyed believe you need 50% certainty, and many others believe you need even less than that (like 33%). (4) Remember, this is an objective, rather than subjective, standard. v. ***Dresslers Attempt at a Definition (slide)***d. -- 11 --

Criminal ProcedureCollins Spring 2007Clark a. Probable cause exists when the facts and circumstances within an officers personal knowledge, and of

which he has reasonable trustworthy information, are sufficing in themselves to warrant a person or reasonable caution in the belief that: (1) In the case of an arrest, an offense has been committed and the person to be arrested committed it, and (2) In case of a search, a specifically described item subject to seizure will be found in place to be searched vi. Drug Dealing Hypo: Is there probable cause when . . . a. You see a man on a corner you know to be a drug dealing location. The man interacts with a woman who gives him a $20 bill. In return, he gives her a small package that she can palm. b. Courts saySome courts would say yes, others would say no (1) What if the woman is a known drug user? Many courts would say yes (2) What if the man is a known drug dealer? Many courts would say yes c. The more observations, the better (1) Is the man engaging in furtive behavior? (2) A high crime area is not enough on its on, but are there other suspicious circumstances? (3) Police can establish probable cause with stuff that would be inadmissible at trial. 21. Sources of Information to Support Probable Cause i. Potential Sources of Information Supporting Probable Cause a. Police Officer Observations: [Maybe some bias; subject to recall problems when testifying years later] b. Victim Observations: [Potentially subject to distortion in recollection] c. Witness Observations: [Problem of witness bias; subject to distortion in recollection] d. Confidential Informants: [Biased? (may know the D) What are they getting in return for testifying?] e. Anonymous Tips: [Biased? Who are they?] ii. Confidential Informants a. State v. Timothy Barton (Conn. 1991) (1) Facts: CI told them where the marijuana was and how much; CI also knew that D was unloading plastic bags; CI also brought police a sample of the marijuana (of course we dont know it came from Ds apt.) (2) 2 Standards/tests: Court changes its rules relating to probable cause coming from CIs (a) Aguilar-Spinelli: 2 pronged test look at: (i) Informants basis of knowledge (first-hand is best), AND (ii) Veracity of informant (either credibility of the informant or reliability of her information) Prior successful info (track record of reliability) Independent corroboration (iii) NOTE: This is the old rule, now a minority rule (iv) CRITICISM: Adherence has been too rigidtreated as two separate prongs. (v) CRITICISM: Has led to de novo reviewcourt thought more deference should be given to the person reviewing application in the first instance (b) Gates: Look at totality of the circumstances * Fed Rule * (i) The weakness of one prong will make up for the weakness of the other. (ii) Here, the basis of knowledge was unknown, but it was very specific and independently corroborated, thus, as a whole, the information was sufficiently reliable (c) What led to the change? No evidence that they were losing more cases, but nothing has changed regarding the criticismsso not clear why the rule is suddenly changing other than b/c of change in composition in court members (d) Gates is viewed as a pro-prosecution test, while Aguilar-Spinelli is viewed as a pro-defendant test. Remember, its a warrant, not the trial, so maybe we want the balance in favor of the prosecution (3) Holding: After assessing the CIs tip, court finds probable cause: (a) Basis of Knowledge: clearly knows Barton, may be a friend, but does know Bartons travel schedule (b) Reliability/Veracity: He at least came forward rather than remaining anonymous, and took a chance by walking into the police station with some marijuana. b. State v. Randall Utterback (Neb. 1992) (1) Facts: CI gave physical description and stated they had purchased drugs from Utterback and seen others do so. He has been in the house in the last 5 days and seen drugs in the house and handled two guns. (2) Nebraska Court says (a) Applies Gates test, but creates a tough standard to establish veracity-- 12 --

Criminal ProcedureCollins Spring 2007Clark (i) A past track record of reliable informing [None here] (ii) A citizen informant [Not here] (iii) A statement against penal interest. [Not here, purchasing MJ not a crime in NE-Did CI know that?] (iv) Corroboration of criminal allegations. [Police could only corroborate innocent details of info] (b) Perhaps the message the Nebraska court is sending is that we want you to do a controlled buy. (i) Not always that easyEspecially when, as here, the dealer is dealing from his house. iii. Anonymous Sources a. Generally, the courts are more skeptical of anonymous tips than of confidential informants b. Danny Bradley v. State (Ind. 1993) (1) Facts: Anonymous tip instead of Confidential Informant informs police he heard of robbery giving

good details of victims, location, and stolen goods, including info he didnt know. Officer follows tip and arrests suspect (whose wife is wearing some of the stolen jewelry). (2) Court: Follows CI standard from Gates. No Probable Cause (a) Denies warrant because the Affidavit does not: (i) Establish the credibility of the source. (ii) Establish a factual basis for tip from which a court could test the informants conclusion. (iii) Establish that the totality of the circumstance corroborates the hearsay. (b) Corroboration by officer simply establishes that the informant knew of the crime and knew of appellant, it does not establish a connection between the crime and the appellant or between the stolen property and the place searched. (3) What else could the police have done? (a) Trailed the D to see if he pawns the jewelry (b) Try to get a suspect ID (4) Generally: Anonymous tips are rarely enough standing along (a) Dont lie to the court (b) Here, if they had not gotten the warrant and just gone to house and seen the jewelry on his wife probable cause to get a warrant. So jumping through the procedural hoop actually hurt the police here. 22. Can a Statute or Rule Clarify the Assessment of Probable Cause? i. ARKANSAS RULE OF CRIMINAL PROCEDURE 13.1 ii. IOWA CODE 808.3 iii. IOWA RULE OF CRIMINAL PROCEDURE 2.36 Form 2 iv. IOWA RULE OF CRIMINAL PROCEDURE 2.36 Form 3Warrants 23. The Warrant Requirement i. Generally: Reading the 4th Amendment, you would think that warrants are the gold standard but they arent.

The majority of searches and seizures take place without a warrant. (See Warrant handout) Katz says searches w/o warrants are presumptively unreasonable, unless it fits one of a few exceptions. (1) Exigent Circumstances (Pg. #13 ) (2) Search Incident to Lawful Arrest (Pg. #18) (3) Search of Cars (Pg. #21) (4) Search of Container (Pg. #22 ) (5) Inventory Search (Pg. #21) (6) Plain View (Pg. #8) (7) Consensual Search (Pg. #16) 24. Exigent Circumstances i. Police may conduct a search without a warrant if an immediate search or seizure is needed. a. The classic exigent circumstances (1) Destruction of evidence (2) Danger to the public (3) Risk of flight / Hot pursuit. b. However, police may only use this exception if they do not themselves create the exigent circumstances ii. Marvin Hawkins v. State (Ind. 1993) a. Facts: Police find cocaine after a controlled buy. They go to the door and break it down after they may or may not have seen someone withdraw from the doorway and heard footsteps moving away from the door.a. -- 13 --

Criminal ProcedureCollins Spring 2007Clark b. Why would we want a warrant in this case? (1) Provides w/ neutral evaluation of evidence, done before the fact so evaluation is not colored by hindsight. (2) Forces the police to engage in self-assessment [usually a middle step as well, like a prosecutor] (3) Longstanding assumption that warrants are preferred in home invasions Your home is your castle. c. Was there probable cause here for a warrant? Most likely, but you should always analyze it first (1) Whether or not they had probable cause, officers went non-warrant route b/c of exigent circumstances (2) Was knocking on the door a good idea or a bad idea? (a) Bad idea: Once they knocked, they had to go in. Otherwise, the people in the house could have said

No! I know my rights. Goodbye! Did you here the toilet flush?(b) Alternatives? Well, theyre really worried about marked moneycan police detain anyone leaving

the house? Would have to arrest them in order to search them to see if they had the marked money Court says (1) No exigent circumstances exception allows the warrantless searchPolice cannot search based on exigent circumstances they created. Only after they kicked the door down did people run. (2) Didnt address whether they could have detained people leaving b/c it didnt happen 25. Requirements for Obtaining Warrants i. Elements a. Must be issued by a neutral and detached magistrate (1) Magistrate cant be paid for every warrant he issues (2) Generally look to judicial ethics rules for guidancei.e. married to applicant b. Must be supported by oath or affirmation (1) Four corners rule: A subset of this requirement is that you can only defend a warrant based on the information actually contained in the warrant. (2) Means that everything magistrate questions applicant about is usually handwritten in margins & initialed c. Must describe with particularity the places to be searched or the persons to be seized ii. Neutral and Detached Magistrate a. State ex rel. Eustace Brown v. Jerry Dietrick (W. Va. 1994) (1) Facts: Magistrate Boober was married to Chief Boober of a small police force (7 officers). D complains that Magistrate Boober is not neutral and detached. (2) Court says . . . (a) No. Chief Boober wasnt directly involved and were not prepared to say she can never issue a warrant. Although, Chief Boober shouldnt be the affiant. (b) But we wont use the Rule of Necessity to say that it is always okay. (c) Side note: since she was the magistrate on duty she was probably at home, w/ Chief Boober in the next or even the same room. iii. Particularity in Warrants (concerns havent changed much in 200 years) a. Bell v. Clapp (N.Y. 1813) (1) Facts: Warrant was OKauthorized the arrest of this guy, or anyone else who had the flour (not so particular, but court doesnt care) and could only search the cellar. (2) Court: Could not have been more particular! b. Grumman v. Raymond (Conn. 1814) (1) Facts: Warrant provided that any house and outhouse in Wilton, Ct. could be searched (2) Court: Too broada general warrant c. Requirements Today (slide) (1) The standard in terms of place comes from the Supreme Courts 1925 decision in Steele: description must be particular enough to allow search officer w/ reasonable effort to ascertain and identify place intended. (2) In terms of items for which you can search, can look for fruits, instrumentalities, and evidence of crime. (a) Huge incentive to list very small items (b) If youre looking for an elephant you can only look in places where an elephant might be, but if youre looking for a field mouse, you can look in all the tiny places a field mouse might be (c) So officers often enumerate receipts (especially) and other small items. d. Problem 3-2: Errors in a Facially Valid Warrant (1) Informant says its the second door on the left with a rug in front of the door, but its the only door on the left, with a rug. Officer searches anyway (2) The court upholds the searchd. -- 14 --

Criminal ProcedureCollins Spring 2007Clark 26. Execution of Warrants i. The Knock and Announce Rule: Police executing a warrant must knock and announce their identity before

attempting a forcible entry. Origin of rule was in common law, but 1995 Sup. Ct. case found 4th Amend incorporated this requirement. There are exceptions: where danger of physical violence, fear the destruction of evidence, or hot pursuit is present. Only need reasonable suspicion that one of these elements exists. ii. Steiney Richards v. Wisconsin (1997) a. Facts: Police ask magistrate for no-knock warrant and he denies it. So officer goes to door as maintenance man, and knocks on the door, Richards answers it, sees a uniform, closes it, and tries to flee. Police knock down the door and arrest him. b. Court says (1) Police only need reasonable suspicion that an exigent circumstance exists. (2) The officers actions in this case are OK (3) But wont allow WI recommendation for blanket exception to knock-&-announce rule in felony drug case c. Lets focus on the ruse: Im the maintenance man! Im the pizza man! (1) Why should police get to lie to you when they get so upset when you lie to them (a) Is it effective? Who opens the door to someone they dont know? (b) Dont you have a right to know who is at the door? (2) Do normal people change their behavior when someone is at the door? Sure, you put down your knife! iii. United States v. LaShawn Lowell Banks (2003) a. Facts: Police knock on door, wait 15-20 seconds, then knock it down. Banks was in the shower b. Court says (1) Lots of factors go into thissize of the residence, and time of day. (2) 15-20 seconds was reasonable (a) Prompt entry was justified not because the time it normally takes to get to the door had expired, but that exigent circumstances started to developcould be flushing the drugs! (b) Once exigent circumstances mature, officers are not bound to wait any longer iv. Given Richards and Banks, is there any point to the knock-and-announce rule? a. They can use a ruse to enter and they can break the door down in 20 seconds if no one comes to the door. b. Does it still give protection? v. Darin Muehler v. Iris Mena (2005) a. Facts: Civil case against officer. Mena was handcuffed for 3 hours while police searched her house for weapons and gang paraphernalia. She was not a subject of the warrant. b. Michigan v. Summers authorizes the detention of any individual who is present when a valid search warrant is being executed if the individuals pose a threat c. Court says It was reasonable because the governmental interests outweigh the marginal intrusion (1) Government interests in detaining w/ handcuffs is maximized where a warrant authorizes a search for weapons and a wanted gang member. vi. Problem 3-2A: Warrants and Grenades a. Facts: Police execute a search warrant on an apartment using a concussion grenade which makes a huge sound and flash to stun people. By mistake, police raid apartment of Mrs. Spruill, 57, an upstanding member of the community with a heart condition. She has a heart attack and dies. b. Stats: NYC police executed 1100 search warrants, went to wrong location 4 times, used grenades 85 times. 27. So You Like Warrants? i. Anticipatory Warrants a. What are they? (1) Warrants where the execution is conditioned on the occurrence of future events. (2) Scalia in Grubbs: an anticipatory warrant is a warrant based upon and affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place (3) He adds that most anticipatory warrants subject their execution to some condition precedent other than the mere passage of time a so-called triggering condition. (4) To get an anticipatory warrant, need probable cause to believe [1] that evidence will be found if the triggering condition occurs AND [2] probable cause to believe that the triggering condition will occur. (5) Prior to Grubbs, about half the states had approved the use of anticipatory warrants, while about 10 states had rejected them. Presumably after Grubbs, we will see even more states approving them.a. b. -- 15 --

Criminal ProcedureCollins Spring 2007Clark b. State v. Craig Parent (Nev. 1994) (1) Facts: Police get info from CI that Parent would arrive on a specific airline on a specific date, with two

women and cocaine concealed inside a baby powder bottle in his baggage. Also, phys. desc., SSN, DOB(a) Police obtained a search warrant based on arrival of the flight on that date. (b) Parent says warrant is invalid because it cannot be issued before the crime occurred (2) Court saysWarrant is OKMagistrate properly protected against premature execution. c.

U.S. v. Jeffrey Grubbs (2006)(1) Facts: Grubbs orders child porn on-line. Magistrate conditions execution of warrant on signing for and

receiving the packing into his home.(2) Court says Fine! (a) But, see Parent case in book. What happens if condition occurs differently in reality from the warrant? ii. Administrative Warrants a. How do administrative warrants differ from criminal warrants? (1) Can be issued en masse and based on administrative probable cause (a) Could be based on info that would not amount to criminal probable cause a tip about buildings of a

certain age or function, or even on a neutral inspection plan not tied at all to a particular building. (2) Does this sound like a general warrant? b. Roland Camara v. Municipal Court of San Francisco (1967) (1) Facts: Apartment inspector is doing routine inspection for violations. Inspector heard Camara was using first floor business as a residence in violation. Asked to be let in, Camara said no! (2) Holding: (a) Court concluded an administrative warrant is required for this purportedly non-criminal search. (b) But administrative probable cause is enough to obtain the warrant, which, is something less than criminal probable cause. (c) Court talked about the need for balancing. There can be no ready test for determining reasonableness other than by balancing the need for search against the invasion of privacy.Consensual Searches 28. Search Terminology i. First party: actual target of search ii. Second party: searching agent iii. Third party: person who is not a target, put provides officers w/ consent to search. Is that consent legitimate? iv. Voluntary: The Issue is not reasonableness, but whether the consent was voluntary v. Effect: Consent removes the warrant and probable cause requirements 29. Components of a Voluntary Choice i. Merle Schneckloth v. Robert Bustamonte (1973) a. Facts: car pulled over because headlight and license plate lights were out. A passenger, Acala consented to

search of vehicle. Officers find stolen checks under seat. No evidence Acala knew he could refuse consent Court says (1) We dont care if Acala knew he could refuse, knowledge is only a factor to be considered (2) The prosecution does have to prove consent was freely and voluntarily given. (3) Totality of Circumstances Test to determine if consent was voluntary or the product of duress/coercion (4) The police do not have to tell target he has right to refuse consent (but it is a relevant factor in analysis). (a) Frankly, the majority is worried that people are informed they can refuse, they will. (b) Consensual searches are a major tool for police. c. Dissent (Marshall) says that the subject of a search must be made aware he has a right to refuse. (1) In many cases, you cant waive your right until you establish you are aware of your right (a) i.e. refusing right to a jury (b) i.e. refusing right to an attorney d. What about ruses? (1) Cant hold a gun to their head to elicit consent (2) But what if officer said: If you dont consent, Ill go get a warrant. (a) Usually OK as long as police really could get a warrant just advising citizen of options. (b) Probably not OK if couldnt actually go get one. [Nonconsent isnt enough, on its own, to get warrant.]b. -- 16 --

Criminal ProcedureCollins Spring 2007Clark (3) Same idea if the officer said: If you dont consent, Ill come back with lights blazing and arrest you in ii. iii. iv. v.

front of your neighbors. Usually OK as long as police really could do so. Pittsfield, Maine, Police Department Consent-to-Search Form Philadelphia Police Department Directive 7, Appendix A Problem 3-3: Consent After a Traffic Stop Are people more vulnerable in their cars? Problem 3-4: Scope of Consent

30. Third-Party Consent i. When can someone other than the first party give consent? a. A third party can consent to a search of property when there is mutual use of the property by persons

generally having joint access or control for must purposes But Randolph says this isnt true if co-occupant is present on the scene and actually objecting to the search ii. Problem 3-5: Lessor Consenting for Lessee a. Facts: Hotel clerk consents to search of suspects hotel room. b. Stoner v. California: generally no. They can maybe use a ruse to get the police in as in one of the first cases we read, but for the most part, clerk only has limited access iii. Problem 3-6: Co-tenant Consenting for Co-tenant iv. Problem 3-7: Parent Consenting for Child a. Facts: Mother consented to search of sons roomson (23) paid rent occasionally, but mother had regular access to collect laundry, kept her sewing machine there, and had key. When police searched, door locked b. Court says Search upheld (1) Maybe it seemed like a more formal rental agreement, they wouldnt have (2) But here, she kept her sewing machine there and did his laundry! Plus, only paid rent occassionally v. Problem 3-8: Child Consenting for Parent vi. ARKANSAS RULE OF CRIMINAL PROCEDURE 11.2 vii. Georgia v. Scott Fitz Randolph (2006) a. Facts: Police come to house for domestic dispute and wife says her husband does drugs. Police ask for consent to search and wife gives it, although husband does not b. Court says . . . (1) Co-occupants have a legitimate expectation of privacy (2) Assumes that when two roommates live together and one objects to a visitor the visitor will leave (3) A warrantless search by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident (4) Essentially, 2 competing and equal rights, in this case, tie goes to dissenting co-occupants privacy right. (5) Different result if co-occupant is around, but not involved in the conversation c. Dissent (Roberts) (1) Maj. assumes too much. Who would leave if one roommate says go away, but other welcomes you in? (2) If you live with someone, you assume the risk that they will share access to your belongings. (3) Why should it matter if the husband was sleeping on the couch and not able to dissent? viii. State v. Reynaldo Maristany (N.J. 1993) a. Facts: Pretextual stop pulled over for driving in the left lane for mile. Get consent from driver to search trunk and bags inside. They find 3 kilos of coke in one of the bags and the driver says thats the other guys bag! b. Court says (1) Apparent Authority (a) The majority rule is based on a 1990 Supreme Court case, Illinois v. Rodriguez (b) Even when a third party does not actually have authority to consent, the search is valid as long as the officer had a reasonable belief that the third party had authority to consent (c) You only have to make a reasonable effort to determine the facts (2) Possible Alternatives (a) Keep the apparent authority rule [which encourages police ignorance] (b) Adopt a strict liability approachno apparent authority searches (c) Impose stricter requirements on the police (i) Make them get a written waiver from everyone present (ii) Require further inquiry when ownership is in doubtb. -- 17 --

Criminal ProcedureCollins Spring 2007Clark ix. Problem 3-9: Consent Through Lease Provisions a. Courts limit extent to which a landlord may waive a tenants privacy rights and consent to police searches b. However, government may condition AFDC welfare on agreements to allow home access by aid workers on

the grounds that home visits were not searches.

CHAPTER FOUR: SEARCHES Persons

IN

RECURRING CONTEXTS

31. Searches Incident to Arrest i. Chimel v. California (1969) a. Rule: Chimel (Chime-el) tells us that, incident to an arrest, the police may search the arrestees person and

the area within his immediate control(1) You do not need any justification beyond the probable cause needed to support the arrest. (2) The search must be contemporaneous with the arrest. But how contemporaneous? (3) Based on the idea that suspects being arrested have a huge incentive to resist the officers, flee, or destroy

evidence Safety of Officers is probably paramount.ii. ARKANSAS RULE OF CRIMINAL PROCEDURE 12.2 iii. ANNOTATED LAWS OF MASSACHUSETTS ch. 276, 1 iv. State v. Marc Hufnagel (Colo. 1987) a. Facts: Police come to Hufnagels to arrest him, they find him in the basement on a couch. He gets up, is put

in handcuffs, and makes a fatal glance toward a coffee table. Based on this, police search a box in drawer in the end table and find cocaine. b. Court says (1) End table door was within lunging distance of the defendant [size of area is a case-by-case analysis] (2) The evidence indicates that, prior to being handcuffed, the defendant could have reached the end table and grabbed a weapon or destructible evidence form inside it. (a) The end table was within the defendants immediate control. (b) Concerned about forming a workable rule a hard and fast rule about whether the handcuffs are on would be unworkable because arrests are often fast moving situations, but they are a factor. (c) Many courts would give the handcuffs more weight than this court c. How does this search differ from a Terry frisk? (1) Terry frisk is limited to the person (2) This search is: (a) Not limited to weapons (b) Not limited to places where you could hide a weapon (c) Can search a broader areaimmediate control v. Maryland v. Buie a. Facts: Buie was hiding in basement, but arrested on 1st floor. Officers feared others were hiding in the basement and searched it. While there, they found drugs. b. Automatic right to make a limited protective sweep pursuant to an arrest in a home. This has two parts: (1) No reasonable suspicion needed to check closets and other places large enough to hide a person, immediately adjoining arrest location. (cursory, visual inspection) (2) For a broader sweep, need reasonable suspicion to believe that the area to be swept harbors an individual posing a danger to the officer or others on the arrest scene. (i.e. footsteps on the floor above) c. One criticisms is that it doesnt go far enough (1) An armed confederate will very likely not be hiding near the arrested individual (2) Whats wrong with police checking rooms to make sure no one else is there? vi. Problem 4-1: Search Incident to (But After) Arrest a. Facts: Officers observed a man leaving a field of marijuana plants in a remote canyon. They arrested him on a dirt road and drove him 45 minutes to a town. 3 hours later, they searched the backpack without a warrant under the theory it was incident to the arrest b. Court says Upheld-- 18 --

Criminal ProcedureCollins Spring 2007Clark c. Similar to State v. Edwards (U.S. 1974), 10 hours after arrest police searched Ds clothes for paint chips.

This was upheld, but 10 hours is probably the outer limit.32. Intrusive Body Searches i. What do they cover? cheek swabs, BAC tests, blood tests, removing bullets, strip-search, body-cavity search ii. States often pass statutes related to this, to wit a. ARKANSAS RULE OF CRIMINAL PROCEDURE 12.3 b. TENNESSEE CODE 40-7-121 c. REVISED CODE OF WASHINGTON 10.79.080, .130, .140 iii. People v. Eric More (N.Y. 2002) a. Facts: Police came to Mores house, and More consented to a strip search but began struggling with police b.

and, during the struggle, police see a bag protruding from his rectum, they pull it out and it contained drugs. Court says Body cavity search here was unreasonable and invalid. (1) 4th Amendment: forbids any such intrusions on the mere chance that desired evidence might be obtained. Rather, there must exist a clear indication that desired evidence will be found. (2) Body Search Principles (slide) (a) Key Supreme Court case is Schmerber v. California (i) Probable cause to arrest & search incident to arrest not enough for intrusion beyond bodys surface. (ii) Must be a clear indication that desired evidence will be found. (b) Search warrant will ordinarily be required, absent emergency such as possible destruction of evidence. (i) So, BAC test, cheek swab, probably ok, but not removing a bullet from a chest. (ii) The procedure you use must be reasonable and conducted in a reasonable manner.

Houses and Other Places 33. Overview: Government Intrusion into property outside your curtilage is not a search no matter what steps you

take to signal your privacy expectation. However, a minority of states (10), led by Oregon, hold that if you have taken steps to signal your expectation of privacy, the government must get a warrant. This minority approach seems to be more consistent with United States v. Katz (4th Amendment protects an expectation of privacy). 34. The Outer Boundaries of Houses i. Curtilage: a. The 4th Amendment does protect the curtilage of your house b. The curtilage is the area that provides a setting for the intimate activities associated with the sanctity of a persons home and the privacies of life ii. Open Fields Doctrine: a. Oliver v. United States (1984) (1) Facts: Police searched Olivers farm to investigate reports that he was raising marijuana there protected by a locked gate and No Trespassing sign. (Trespassed and no search warrant) (2) Rule: people do not have a legitimate expectation of privacy in activities that take place in open fields (3) Rationale: (a) Open fields dont provide setting for intimate activities associate w/ sanctity of home + privacies of life (b) Not a 4th amendment search b/c no reasonable expectation of privacy for open fields (i) Everyone knows trespassing signs are ignored (ii) Open fields are observable from the air, so they are knowingly exposed b. United States v. Dunn (1987) (1) Facts: police searched a barn enclosed by a fence on a ranch enclosed by a fence. (2) Court evaluates four factors: When considering whether land falls within the curtilage, evaluate: (a) The proximity of the land to the house. [Dunn: 60 yds from the ranch house] (b) Whether the land is enclosed (fence/gate). [Dunn: 50 yds outsid