Procedure Chapter 3

Katz v. United States

4th Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th amendment protection... but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Flight

A factor in the overall proable cuase determination but not as an action that automatically justifies arrest. By itself, it does not support a finding of probable cause.

Prong 1: Informant's Basis of Knowledge

A law enforcement officer must demonstrate underlying circumstances to enable a magistrate to independently evaluate the accuracy of an informant's conclusion. The affidavit must show how the informant knows his or her information (e.g., the basis of the informant's information) by demonstrating that: (1) The informant personally perceived the information given to the officer (e.g., the informant's information is firsthand), or (2) The informant's information came from another source, but there is good reason to believe it (e.g., the informant's information is secondhand).

Maryland v. Macon

A plainclothes county police detective entered an adult bookstore. After browsing for several minutes, he purchased two magazines from a salesclerk, and paid for them with a marked 50 dollar bills. He then left the store and showed the magazines to his fellow officers, who were waiting nearby. The officers concluded that the magazines were obscene, reentered the stroe, and arrested the salesclerk.

An Affidavit should include

(1) All information directed toward satisfying Aguilar's two-pronged test for informant information, (2) All information perceived by law enforcement officers that corroborates the informant's information, and (3) All additional corroborating informaiton perceived by officers relating to the criminal activity for which a search warrant is being sought.

Facts and Circumstances an Office May Use to Establish Probable Cause

(1) Flight, (2) Furtive Conduct, (3) Real or Physical Evidence, (4) Admissions, (5) False or Implausible Answers, (6) Presence at a Crime Scene or in a high crime area, (7) Associaton with other known criminals, (8) Past criminal conduct.

Aguilar Two-Pronged test

(1) The affidavit must describe underlying circumstances from which a neutral and detacheed magistrate may determine that the informant had a sufficient basis for his or her knowledge and that the information was not the result of mere rumor or suspicion. (2) The affidvit must describe underlying circumstances from which the magistrate may determine that the informant was credible or that the informant's information was reliable.

3 ways Corroborative information provided by the law enforcement officer in the affidavit may work

(1) The information obtained by the officer may in itself provide probable cause independent of the informant's information. (2) The officer's information may confirm or verify the information. In this case, the corroborating information may largely be of an innocent nature and not itself provide probabl cause. (3) The officer's information may be added to an informant's information that meets Aguilar standards.

Determining Reasonableness

(1) one must consider whether the action was justified at its inception, (2) one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.

2 Ways Information on which Probable Cause may come to the attention of the officer

(1) the officer may personally perceive or gather the information using his or her own senses, or (2) other person (such as victims, witnesses, reporters, informants, or other police agencies) may perceive or gather the information and provide it to the other.

Types of information considered relevant in determining informant credibility

(1) the time when the informant furnished previous information; (2) specific examples of verification of the accuracy of the informant's information; (3) a description of how the informant's information helped in bringing about an arrest, conviction, or other result; (4) documentation of the informant's consistency in providing accurate information; and (4) details of the informant's general background, employment, personal attributes that enable him to observe and relate accurately

Usual Method of Establishing the Credibility of a Criminal Informant

(1)Informant has given accurate information in the past track record).(2) Informant made a criminal admission or turned over evidence against the informant's own penal interest.

Totality of the Circumstances

(1)the nature of the information, (2) whether there has been an opportunity for the police to see or hear the matter reported, (3) the veracity and the bvasis of the knowledge of the informant, and (4) whether there has been any independent verificaiton of the matters through police investigation.

Illinois v. Gates

Abandoned rigid adherence to the Aguilar-Spinelli two-pronged test for determining probable cause through the use of informants for a totality of the circumstances test.

Corroboration

An officer may use, to bolster information that is insufficient to satisfy either or both Aguilar prongs. It means strengthening or confirming the information supplied by the informant with supporting information obtained by law enforcement officers.

Another Method of Satisying Aguilar's First Prong

Besides stating how, when, and where the informant obtained his or her information. In Spinelli v. United States, the court said: in the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.

The Facts and Circumstances establishing Probable Cause to arrest must

Come to the attention of the officer before the actual arrest and a search incident to that arrest.

New Analysis of the 4th Amendment

Court decisions since the Katz case no longer focus on physical intrusions into constitutionally protected areas. Now the formula for analysis of 4th Amendment problems is that "wherever an individual may harbor a reasonable 'expectation of privacy,'... he is entitled to be free from unreasonable governmental instrusion.

Probable Cause is Evaluated by

Examining the collective information in the possession of the police at the time of the arrest or search, not merely the personal knowledge of the arresting or searching officer. Therefore, if the police knowledge is sufficient in its totality to establish probable cause, an individual officer's actions in making a warrantless arrest or search on orders to do so is justified-even though that officer does not personally have all information on which probable cause is based.

Defining Probable Cause (Carroll v. United States)

Exists where the facts and circumstance within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. It is a fair propability that contraband or evidence of a crime will be found in a particular place.

Brown v. Commonwealth

Found an ordinary citizen informant credible when the affidavit stated that, although the informant had not previously furnished information to the police concerning violations of the narcotics laws, he was steadily employed, was registered voter, enjoyed a good reputation in his neighborhood, and had expressed concern for young people involved with narcotics.

United States v. Harris

Held that an admission made by an informant against the informant's own penal interest is sufficient to establish the credibility of the informant.

United States v. McCarty

Highlights the idea the furtive conduct should be accompanied by other facts and circumstances before probalbe cause will be found to exist.

United States v. Green

Identified four factors to be evaluated in determining whether the totality of the circumstances provides probable cause to arrest for drug trafficking: (1) The suspect's presence in a neighborhood notorious for drug trafficking or other crimes, (2) The suspect's engaging with other's in a sequence of events typical of a drug transaction, (3) a suspect's flight after being confronted by police, (4) a suspect's attempt to conceal the subject of his business.

McCray v. Illinois

If a defendant may insist upon disclosure of the informant in order to test the truth of the officer's statement..., we can be sure that every defendant will demand disclosure. He has nothing to lose and the prize may be the suppression of damaging evidence if the state cannot afford to reveal its source, as is so often the case... The result would be that the State could use the informant's information only as a lead and could search only i fit could gather adequate evidence of probable cause apart from the informant's data... We doubt that there would be enought talent and time to cope with crime upon that basis. Rather we accept the premise that the informer is a vital part of society's defensive arsenal. The basic rule protecting his identity rests upon that belief.

Informant's Information is Firsthand

If the infomant obtained the information by personal perception, the officer merely has to state in the affidavit how, when, and where the informant obtained the information furnished to the officer.

Informant's Information is Secondhand (Hearsay)

If the informant's information comes from a third person, the third person and his or her information must also satisfy both prongs of the Aguilar test. The affidavit must show how the third person knows the information furnished to the informant. For example, if the third person saw criminal activity taking place at a particular time, a statement to the effect would be sufficient to satisy Aguilar's first prong. The officer must, however, also satisfy Aguilar's second prong with respect to both the informant and the third person (trustworthy and credible).

Applying for an Arrest or Search Warrant

Individual law enforcement officer are usually required to state in writing in the complaint or affidavit the underlying facts on which probable cause for the issuance of the warrant is based.

Probable Cause

Is necessary for the issuance of an arrest or search warrant. It is not so apparent that the other clause of the 4th amendment declaring the right of the people to be secure against "unreasonable searches and seizures" is also found on this. In general, that clause governs the various situations in which police are permitted to make warrantless arrests, searches, and seizures.

The Warrant Procedure

Is preferred because it places responsibility for deciding the delicate question of probable cause with a neutral and detached judicial officer, who usually has more fomral legal training than a police officer.

Requirements to the Privacy Approach

Justice Harlan said that (1) that a person has exhibited an actual (subjective) expectation of privacy and, (2) that the expectaion be one that society is prepared to recognize as [objectively] reasonable. If these requirements are satisfied, any governmental instrusion on the expectation of privacy is a search for purposes of the 4th amendment.

Admission

Not a confession, but gives law enforcement officer's probable cause to arrest.

Search

Occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.

Seizure

Occurs when there is some meaningful interference with an individual's possessory interest in that property.

One type of information use to support Probable Cause

Officer's own senses: sight, hearing, smell, touch, and taste.

Warrants

Protect eh 4th Amendment rights of citizens because the decision to allow a search and seizure is removed from the sometimes hurried and overzealous judgment of law enforcement officers engaged in the competitive enterprise of investigating crime.

Maryland v. Macon (Seizure)

Respondent voluntraily transferred any possesory interest he may have had int he magazines to the purchaser upon the receipt of the funds... thereafter, whatever possessory interest the seller had was in the funds, not the magazines. At the time of the sale the officer did not "interfere" with any interest of the seller, he took only that which was intended as a necessary part of the exchange. Therefore, no seizure occured for the purposes of the 4th amendment.

Spinelli v. United states (Failed Aguilar's Test)

The Court found that Aguilar's second prong, addressing informant veracity, was not satisfied because the affiant merely stated that he had been informed by a confidential reliable informant. This was insufficient because no underlying circumstances were stated to show the magistrate that the informant was credible, such as examples from the informant's past track record. Nor was Aguilar's first prong satisfied. The officer's affidavit failed to state sufficient underlying circumstances for the informant's conclusion that the defendant was running a bookmaking operation. It said nothing about how, when, or where the informant recieved his information-whether he personally observed the defendant at work or whether he ever placed a bet with him. Finally, the informant's information did not describe the defendant's alleged criminal activity in sufficient detail to convince a magistrate that the information was more than mere rumor or suspicion.

Reason for the More Stringent Requirement in the Warrantless Situation

The Supreme Court has a strong preference for both arrest warrants, and search warrants.

Warrantless arrest

The amount of evidence required to establish probable cause for this arrest or search is somewhat greater than that required if a warrant is sought.

State v. Heald

The court held that the items of real evidence found and the reasonable inferences drawn from the evidenc toegher with ehighly suspicious circumstances, provided probable cause to arrest the defendants.

Maryland v. Macon (Search)

The court said: respondent did not have any reasonable expectation of privacy in areas of the store where the public was invited to enter and to transact business... the mere expectationthat the possible illegal nature of a product will not come to the attention of the authorities, whether because a customer will not complain or because undercover officers will not transact business with the store, is not one that society is prepared to recognize as reasonable, the officer's action in enetering the bookstore and examining the wares that were intentionally exposed to all who frequent the place of business did not infringe a legitimate expectation of privacy and hence did not constitute a search within the meaning of the 4th amendment.

Hearsay Method

The method of establishing probale cause throught the use of an informant's information

False or Implausible Answers

To routine questions may be considered in determining probable cause, but standing alone they do not provide probable cause.

Furtive Conduct

Usually at least justifies an officer's further investigation to determine whether a crime is being or is about to be committed. By itself, it is insufficient to establish probable cause to arrest. Relevant to probable cause but must be evaluated in light of all the facts and circumstances, including the time of day, setting, weather conditions, persons present, and nature of the crime. A combination with other factor may help establish probable cause.

Aguilar v. Texas

Was the leading case on establishing probable cause either partially or entirely from informant testimony.

Criminal Informants

credibility must always be established by a statement of underlying facts and circumstances.

Informant

means any person from whom a law enforcement officer obtains information on criminal activity.

Prong 2: Informant's Veracity or Truthfulness

requires the officer to demonstrate in the affidavit underlying circumstances to convince the magistrate of the informant's veracity-that is, that the informant is trustworthy or credible.

Ordinary Citizen Informants

such as victims and eye-witnesses, are usually presumed credible and no further evidence of credibility need be stated in the affidavit beyond their name and address and their status as a victim of, or witness to, a crime

Reasonableness

the "touchstone" of the Fourth Amendment.