Criminal Procedure Final Review
Officer gets valid search warrant for searching Victor's house for drugs; Victor and Zach (Victor's houseguest) are home. Can the persons be searched along with the home?
Probably not. Unless 1. warrant itself says which says which persons may be searched 2. PC to arrest person so police may search incident to arrest 3. police have reason to believe person is dangerous (but this is limited to Terry frisk). Police may detain occupants while search is ongoing *.
This case? Cited in King on p. 438 - Extends Knights to uphold a warrantless search w/o any suspicion of a parolee under a state statute - Again, neither a consent case nor a special needs case - Probation is a punishment more like prison than probation, so even w/o RS the search power serves the state's legitimate correctional goals
Samson v. CA (USSC 2006)
When does SOL run for Section 1983 motion for violation of civil liberty? In the context of a search violation re a cell phone?
See Poy case in the materials (pg. 496)
A and B are each killed, in unrelated incidents, by police gunfire. Apparently, police responded to the report of an active shooter and shot A even though A did not resemble the shooter's description and was not armed when killed. Apparently, corrupt police in league with gangsters killed B to prevent B from testifying before a grand jury, and then tried to cover up the homicide by reporting it as a robbery and planting a gun on the deceased. As a PI lawyer, which case can you expect to make more money on?
Seizure with PC or w/o? The latter - illegal arrest. Actionable Would probably want to pursue the case where you know the officer is indemnified with the city rather than a case that's outside the scope of indemnification
______ _______ exception to the warrant exception. 1. drug tests - students in extracurricular activities; railroad employees after an accident. 2. public school officials may search students/their effects as long as not unduly intrusive 3. EE's file cabinets and desks can be searched 4. regular routine border searches 5. parolees may not have 4th amendment rights if searching houses is part of their parole 6. inmates do not have REP to their jail cells
Special needs
What case is this? -Search of a probationer's home without PC or a warrant, but with reasonable suspicion, upheld as "reasonable." -NOT a consent search, but accepting probation with notice of the condition is a factor supporting reasonableness -Not a "special needs"/administrative search When loss of privacy is a consequence of justified punishment, search is reasonable if it supports the state's correctional purpose
USA v. Knights
Police may search a passenger's cabin incident to an arrest (in a car) if S has ______ to it or police reasonably believe passenger cabin may contain evidence related to which the _____ was made.
access arrest
During a traffic stop, police may search the passenger compartment if the police officer reasonably believes the person to be ____ and ____ as long as the passenger has access to the passenger compartment.
armed and dangerous
Plain view doctrine Police may make a seizure of an item that is in plain view, evident that it's contraband as long as police are lawfully right of access. Police _______ seize a marijuana plant he sees while walking down the street by breaking into apartment. Could have obtained a ____ to lawfully seize the plant because had PC.
cannot warrant
42 U.S.C. §1983 Actions - these are for civil action for deprivation of rights. What does a §1983 P need to prove at trial? 1. D violated my const'l rights 2. the violation was contrary to clearly established law 3. ____
damages But this isn't a good remedy for "driving while black" traffic stops; abusive stop and frisk tactics; home invasions; police brutality.
Exigent circumstances exception to the warrant requirement 3 types: 1. evanescent: i.e. can scrape under suspect's fingernails bc could wash hands and remove ______ 2. ___ _____: i.e. search for fleeing felon; anything in plain view can be seized (e.g. marijuana plants in person's home; can use this to prosecute the suspect) 3. emergency aid: police may _____ residence w/o a warrant if they objectively reasonably believe someone inside may need emergency aid; no warrant req if smoke coming out of home or sounds of gunfire inside
evidence hot pursuit enter
Warrant requires probable cause. Warrant requires particularity and what is to be seized but this is subject to these exceptions: ____ _____ reliance and ____ & _____ rule.
good faith knock and announce
Inventory search Police may make an inventory search of an arrestee pursuant to no PC, no incident to arrest, no warrant, as long as done pursuant to dept procedures. Daisy arrested for illegal prostitution. She was not searched when she was arrested. However, she was at police station 3 hours before she was booked and her purse was taken away from her. Her purse was subsequently searched when she was finally booked but they had no reasonable belief there was contraband or arms in her purse. The gov'ts best arg is that this was an ____ ____, whereby the police was allowed to search her purse. If gov't argued this was search incident to arrest, Daisy would reply that this wasn't sufficiently contemporaneous with her arrest.
inventory search
In order for search incident to arrest exception to apply, the arrest must be ______. Also, it must be _____. Police only allowed to search areas the _____ could reach. Situations when driver of automobile is arrested. Police may search interior of vehicle if arrestee can still reach or if reasonably believes that inside the car there may be evidence of the ______ for which the arrest was made.
lawful contemporaneous arrestee offense
Inventory searches exception to the warrant requirement. Usually occur in 2 situations: person in custody by police or vehicle impounded. Inventory search - can search vehicle (as long as goes along w/department _______); it's necessary to protect police, protect arrestee's property, etc.
policy
For a search warrant to be permissible if there's ___ ____. This means there's a fair probability the evidence will be there. If there's evidence that S sold drugs a month ago at his house, that's not enough PC to get a warrant. If there was evidence of another drug transaction 2 weeks ago, this indicates that it's ongoing and that's enough to support PC.
probable cause
Knock & announce rule. Violations are an exception to the e-rule. While violating this rule may not result in exclusion of evidence, but will contribute to judge's ________ assessment under the 4th amendment.
reasonableness
Police, in a high crime neighborhood, spot Popeye. As they approach him, he begins to run away. While he's running away, police tell him to stop, but he continues running. While running, he drops a bag on the ground. Since he was never ______, police may search this bag even though they do not have reasonable suspicion because there was never a _____, so the fourth amendment does not apply here. Popeye argues that police didn't have ___ ____ so they could not have searched the bag. However, no _____, so 4th amendment doesn't apply. This would be different if the police had physically restrained him.
seized seizure reasonable suspicion seizure
Poolaw claims: 1. Illegal seizure of the Poolaws during execution of the warrant; 2. illegal search of the home Police are appealing... 1. the denial of their ___ ___ motion for QU on the search claim (claim 2) 2. the grant of plaintiffs' ___ ___ motion for liability on the seizure claim (claim 1) Are these orders appealable before trial? Did Ds violate P's 4A rights? -> no warrants shall issue but upon PC -> was there PC for the search warrant? -> Does it matter that Hix and Marcantel did not personally execute the warrant? Malley/Leon standard: was warrant so lacking in ____ ____ that a reasonable, well-trained officer would know the affidavit failed to show PC?
summary judgment summary judgment probable cause
Consent exception to warrant requirement. A warrantless search if the police have valid consent to conduct the search. To be "valid" - it must be _____. Police do not have to say the person has the right to refuse the search. Police may search only areas they believe they have permission to search. Authority to consent - apparent authority is the exclusion (consent valid if _____ to believe a person has authority to consent)
voluntary reasonable
8 exceptions to _____ requirement: Search incident to arrest Automobile accident Consent Plain view Exigent circumstances Special needs Inventory searches Stop & frisks
warrant
Remedies under the ____ amendment Habeas Corpus State Law Tort Actions 42 U.S.C. §1983 Actions Bivens Actions The E-Rule Injunctions Private Suits 42 U.S.C. §14141
Fourth
Good faith reliance on a warrant that is defective. Exceptions to this rule: 1. Warrant is _____ 2. No ____ PO would've relied on it. 3. Lies were used to obtain the warrant 4. Magistrate or judge was ____ in granting the warrant.
1. invalid 2. reasonable 4. biased
Plain view exception to the warrant requirement. Requirement for it to be in "plain view": 1. PO ______ present 2. PO has lawful _____ to the item 3. Immediately _____ that item is contraband or evidence of a crime (need to have PC for it to be this)
1. lawfully 2. access 3. apparent
Police, with a warrant to arrest S for missing his court date on a misdemeanor heroin possession charge, but without a search warrant, knock at S's house and no one answers. The police force entry to look for S. The police do not find S and establish that no one else is there either. In the process of looking for S, however, the police see in plain view expensive watches, pieces of silver, and portable electronic devices of the sort that addicts often steal to support their heroin habits. May the police now, without a warrant, look inside boxes and drawers for similar items? A. The law is clear: They need a warrant. B. The law is clear: They don't need a warrant. C. The law is not clear: Maybe they need a warrant.
A. Expensive items in a cheap apartment are not automatically stolen, and even if there is PC that the stuff in plain sight is stolen, anything in the drawers is NOT in plain view and there is no emergency.
If police on routine patrol in daylight hear what sounds like a gunshot inside S's house, may they force entry without a warrant? Same case. Do the police need a warrant to search the house for the missing DVD? A. The law is clear: Yes, they need a warrant. B. The law is clear: No, they don't need a warrant. C. The law is not clear: Maybe they need a warrant.
A. The dvd, if it exists, is clearly not in plain view. There is no exigency regarding a search of the home for evidence; once the shooting has been cleared up the police have all the time in the world to obtain a warrant. See Mincey v. Arizona.
New case. An anonymous informant calls 911 and says "There's a guy selling crack out of a blue Honda on Washington near First. The license plate is JFG341." Police near the scene investigate and see the described vehicle legally parked and occupied only by the driver, S. When the driver pulls out into traffic, the police follow until S fails to signal before making a turn. The police then pull S over to issue the citation. After receiving S's license, the police run a records check and find that S is wanted on an outstanding warrant for distributing child pornography over the internet. The warrant was issued five months ago. The police tell S he is under arrest, handcuff him, and lock him in the squad car. The police see a laptop computer on the front passenger seat. May they open it and attempt to read the files, without a warrant, incident to arrest? A. The law is clear: They need a warrant. B. The law is clear: They don't need a warrant. C. The law is not clear: Maybe they need a warrant.
A. The laptop cannot be distinguished from the cell phone in Riley.
An anonymous informant calls 911 and says "There's a guy selling crack out of a blue Honda on Washington near First. The license plate is JFG341." Police near the scene investigate and see the described vehicle legally parked and occupied only by the driver, S. When the driver pulls out into traffic, the police follow until S fails to signal before making a turn. The police then pull S over to issue the citation. After receiving S's license, the police run a records check and find that S is wanted on an outstanding warrant for distributing child pornography over the internet. The warrant was issued five months ago. The police tell S he is under arrest, handcuff him, and lock him in the squad car. In a cupholder between the driver's and front passenger seat, the police see a clear plastic bag containing seven rocks they recognize as crack cocaine. May the police now search the laptop without a warrant for evidence of drug dealing? A. The law is clear: They need a warrant. B. The law is clear: They don't need a warrant. C. The law is not clear: Maybe they need a warrant.
A. The police have PC and the vehicle exception, but the vehicle exception, like SIA, does not extend to digital devices. See the CA9's Camou case.
Do the police need a warrant to attach a secret transmitter to the suspect's vehicle when the battery life on the transmitter is only one hour? A. The law is clear: Yes, they need a warrant. B. The law is clear: No, they don't need a warrant. C. The law is not clear: Maybe they need a warrant.
A. Under the majority opinion in Jones placing the transmitter is a trespass for the purpose of gathering evidence, thus triggering the warrant requirement.
If S has lived for months in a mobile home in a trailer park, receiving mail and paying utility bills, do the police need a warrant to walk a drug-sniffing dog up the steps to the door of S's mobile home? A. The law is clear: Yes, they need a warrant. B. The law is clear: No, they don't need a warrant. C. The law is not clear: Maybe they need a warrant.
A. Unlike the mobile home in Burgess, which was moving in traffic, here the mobile home is not readily mobile and should be treated as a home, not a car. Under Jardines leading the dog up S's stairs violates the "general law of trespass" and triggers the warrant requirement.
If police on routine patrol in daylight hear what sounds like a gunshot inside S's house, may they force entry without a warrant? Same case. If the police are inside looking for a gunshot victim, a gun, or a shooter, and they see an open DVD case with no disc inside but a cover photo that unquestionably qualifies as child pornography, may they seize the DVD case without a warrant? A. The law is clear: Yes, they need a warrant. B. The law is clear: No, they don't need a warrant. C. The law is not clear: Maybe they need a warrant.
B. A clear case of plain-view under Horton.
If police on routine patrol in daylight hear what sounds like a gunshot inside S's house, may they force entry without a warrant? Same case. In the next room over the police find V, slumped over the dining table, bleeding from a head wound. They see a handgun in V's right hand. They quickly determine that V is deceased. Given apparent suicide, do they need a warrant to search the rest of the house for persons who might have either murdered V or potentially disturb the scene before the coroner's investigation? A. The law is clear: Yes, they need a warrant. B. The law is clear: No, they don't need a warrant. C. The law is not clear: Maybe they need a warrant.
B. An apparent suicide is also a possible homicide. They may search the home for suspects, but that's all—no looking the freezer or the bureau drawers etc.
If police on routine patrol in daylight hear what sounds like a gunshot inside S's house, may they force entry without a warrant? Same case. May they force entry without knocking and announcing their presence? A. The law is clear: Yes, they need to knock-and-announce. B. The law is clear: No, they don't need to knock-and-announce. C. The law is not clear: Maybe they need to knock and announce.
B. Given PC to believe there is a shooter inside, there are exigent circumstances not just for entry but for a no-knock entry.
An anonymous informant calls 911 and says "There's a guy selling crack out of a blue Honda on Washington near First. The license plate is JFG341." Police near the scene investigate and see the described vehicle legally parked and occupied only by the driver, S. When the driver pulls out into traffic, the police follow until S fails to signal before making a turn. The police then pull S over to issue the citation. After receiving S's license, the police run a records check and find that S is wanted on an outstanding warrant for distributing child pornography over the internet. The warrant was issued five months ago. The police tell S he is under arrest, handcuff him, and lock him in the squad car. While S is being booked at the police station, officers ask S if they can search his house, located at 1234 Rock Street. S says: "Yeah, I got nothin' that wasn't in the car." S gives the police a key to the house. If police take the computer from the scene of the arrest to S's house, may they read the computer files in S's living room, without a warrant? A. No. S gave consent, but it wasn't voluntary. B. No. Even if S gave consent, the computer was outside the scope of the consent. C. Yes, S's consent was voluntary and covers everything in the house. D. A and B.
B. S knows the computer was in his car, not his house, when he gave consent. An objective reasonable observer would interpret his consent to cover only objects in the house at the time of his consent.
An anonymous informant calls 911 and says "There's a guy selling crack out of a blue Honda on Washington near First. The license plate is JFG341." Police near the scene investigate and see the described vehicle legally parked and occupied only by the driver, S. When the driver pulls out into traffic, the police follow until S fails to signal before making a turn. The police then pull S over to issue the citation. After receiving S's license, the police run a records check and find that S is wanted on an outstanding warrant for distributing child pornography over the internet. The warrant was issued five months ago. The police tell S he is under arrest, handcuff him, and lock him in the squad car. May the police now, without a warrant, search the trunk of the car? A. Yes, they may search the trunk, incident to arrest, for evidence of child pornography offenses; B. Yes, they may search the trunk, under the vehicle exception to the warrant requirement, for evidence of drug trafficking offenses; C. A and B. D. They may not search the trunk, under either the search-incident-to-arrest doctrine or the vehicle-exception doctrine.
B. SIA did not extend to the trunk even under Belton, and Gant narrowed Belton. The police have PC to believe S was in the act of distributing crack and a commercial quantity in the passenger compartment gives PC to believe there is more elsehwhere in the car.
An anonymous informant calls 911 and says "There's a guy selling crack out of a blue Honda on Washington near First. The license plate is JFG341." Police near the scene investigate and see the described vehicle legally parked and occupied only by the driver, S. When the driver pulls out into traffic, the police follow until S fails to signal before making a turn. The police then pull S over to issue the citation. After receiving S's license, the police run a records check and find that S is wanted on an outstanding warrant for distributing child pornography over the internet. The warrant was issued five months ago. The police tell S he is under arrest, handcuff him, and lock him in the squad car. On the rear passenger seat, police see a backpack with three zippered compartments, each secured by a miniature combination lock. May the police, without a warrant, search the backpack for drugs under the vehicle exception to the warrant requirement? A. The law is clear: They need a warrant. B. The law is clear: They don't need a warrant. C. The law is not clear: Maybe they need a warrant.
B. The backpack is not a digital device, ergo it is subject to warrantless search under Carroll, Ross and Acevedo. This includes damaging the property if necessary to the purpose of the search, as in Caroll where the agents actually cut the upholstery apart to discover the contraband.
Police, with a warrant to arrest S for missing his court date on a misdemeanor heroin possession charge, but without a search warrant, knock at S's house and no one answers. The police force entry to look for S. The police do not find S and establish that no one else is there either. In the process of looking for S, however, the police see in plain view expensive watches, pieces of silver, and portable electronic devices of the sort that addicts often steal to support their heroin habits. May the police now, without a warrant, look inside boxes and drawers for similar items? May the police, without a warrant, take photographs of what they see in plain view for use in a new investigation of S for theft offenses? A. The law is clear: They need a warrant. B. The law is clear: They don't need a warrant. C. The law is not clear: Maybe they need a warrant.
B. There is no REP against making an accurate electronic record of what the police already have seen.
Do the police need a warrant to conceal a miniature camera in a tree in a public park across the street from S's home, if the camera records and transmits a high-resolution image of every person who enters or leaves for more than a year? A. The law is clear: Yes, they need a warrant. B. The law is clear: No, they don't need a warrant. C. The law is not clear: Maybe they need a warrant.
B. There is no trespass against S and the camera records only what occurs in public space.
If police on routine patrol in daylight hear what sounds like a gunshot inside S's house, may they force entry without a warrant? A. The law is clear: Yes, they need a warrant. B. The law is clear: No, they don't need a warrant. C. The law is not clear: Maybe they need a warrant.
B. This is a text-book case of exigent circumstances, as recognized by, e.g., Arizona v. Hicks.
If S is a celebrity who employs X, Y and Z as bodyguards, do the police need a warrant to pay X, Y and Z to carry hidden location transmitters that give the police S's location data, 24/7, for three months? A. The law is clear: Yes, they need a warrant. B. The law is clear: No, they don't need a warrant. C. The law is not clear: Maybe they need a warrant. Under White S has no REP against third-party electronic surveillance.
B. Under White S has no REP against third-party electronic surveillance.
Do the police need a warrant to use a drone to track a suspect's vehicle in public for four days? A. The law is clear: Yes, they need a warrant. B. The law is clear: No, they don't need a warrant. C. The law is not clear: Maybe they need a warrant.
C. Explanation: In Carpenter fn 3 the Court says "we need not decide whether there is a limited period for which the Government may obtain an individual's historical CSLI free from Fourth Amendment scrutiny, and if so, how long that period might be. It is sufficient for our purposes today to hold that accessing seven days of CSLI constitutes a Fourth Amendment search.
Police receive an anonymous tip that S is dealing cocaine out of his house. An undercover officer obtains entry and buys a package from S. Out on the street, a drug-sniffing dog alerts to the package. Together with the dog, police, with the intent of asking consent to search, walk up the stairs of S's porch. At the door, the officer hear the repeated sounds of shouts and toilets flushing. May the police force entry, without a warrant? A. Yes, they have probable cause and exigent circumstances; B. No, they don't have probable cause because they didn't open the package; C. Even if they have probable cause, they unlawfully provoked the exigency; D. B and C.
C. The dog's alert gives PC to believe there is contraband in package, but by leading the animal onto the porch the police trigger the warrant requirement under Jardines BEFORE S gives them EC. Under King the exigency is fruit of the poisonous tree.
Scope of consent For consent to be a valid exception to the warrant requirement - the search must be within the scope of consent (unless plain view doctrine comes into play during the search). Example: Police approach Joker's house, who they suspect is selling drugs illegally. They ask for consent to search the house for drugs. Joker agrees. During the search, police come across a stack of documents and read them. They discover this contains information re counterfeiting. Joker is charged with counterfeiting. Joker moves to suppress the evidence. How should the court rule?
Court should find that this search of the documents lied outside the scope of search that Joker consented to. Reading docs went beyond search for drugs - should have seen docs and known they weren't drugs.
Police late at night in a high crime area, with reasonable suspicion, but not probable cause, to believe S is involved in heroin distribution, stop S while S is walking on a public sidewalk. S is carrying a canvas-and-nylon backpack. An officer frisking S also pats and squeezes the exterior of the backpack. Feeling a hard object inside, the officer unzips the backpack and pulls the object out. It turns out to be an external hard drive, slightly larger than a deck of cards. May the officer now: A. Continue groping the exterior of the backpack in case there might be another object that is a weapon inside; B. Since the backpack is now unzipped, grope inside it in search of possible weapons; C. Finish frisking S's outer clothing; D. A and C; E. None of the above.
D. RS to believe distribution of hard drugs in a HCA late at night gives RS to believe S may be armed. The police were allowed to determine what the hard object was. That it turned out to be innocent gives them no more and no less frisk authority than they started with. So while they can't rummage through the backpack they can finish the pat down.
Uniformed police, late at night in a high crime area, receive an anonymous tip that S is dealing cocaine. They approach S as S, who is carrying a gym bag over his shoulder, walks in their direction on a public sidewalk. When S sees the police, S immediately turns and runs half a block in the opposite direction. As the police give chase, they see S use the electronic key to open the trunk of a parked car, toss the gym bag in the trunk, then close the trunk and use the key to relock all the doors on the car. S then walks back toward the officers. May the police, without consent, open the trunk and search the bag? A. Yes, they may open the trunk and search the bag for weapons under Terry; B. Yes, they may open the trunk and search the bag for drugs, under the vehicle exception; C. A and B. D. None of the above. They may not open the trunk and search the bag.
D. The search of the trunk is beyond (far beyond) the pat down authorized in Terry. S's behavior is suspicious but does not establish probable cause, either to arrest S or to search the car.
Suppose a class of suspects sues the police for racial profiling in Terry stops pursuant to the department's "Take Back Our Streets Program," which trains officers to stop suspected gang members in high crime areas for "minimal suspicion of minimal crimes," including jay walking and littering. May the class sue the city or the department in their own names as party defendants? See Monnell v. New York Dept. of Social Services, 436 U.S. 658 (1978); Canton v. Harris, 489 U.S. 378 (1989) Seek an injunction that requires termination of the TBOSP? See Los Angeles County v. Humphries, 562 U.S. 29 (2010)
Monell says that local gov't is a "person" subject to suit under Section 1983; also, §1983 claims against municipal entities must be based on implementation of a policy or custom. Under Canton, a municipality may in certain circumstances be held liable under Section 1983 for constitutional violations for its failure to train its employees.
Police suspect Mollie is running illegal gambling. Police, w/o warrant search Mollie's garbage shed. Is this evidence of gambling admissible?
No - because trash was kept in the curtilage. If it's curbside trash, then it's left open to the public but her shed is on her property, within the curtilage, and she had an REP that only garbage man had access to her trash.
Police suspect Hiezenberg is manufacturing crystal meth. No warrant - Police have Jessie, a former junkie and now informant, wears a wire with around Hiezenberg. Is the evidence obtained from the wire admissible at trial?
No 4th amendment violation - no REP to disclosures made to a person. Doesn't matter whether person is wearing a wire or not.
Automobile exception to warrant requirement. Applies when there HAS NOT been an arrest, but police want to search a vehicle. May search if have ____ that contraband will be found in the vehicle (includes trunk and any containers). If search van bc have pc for stolen bicycle, can't search a purse that's inside the van.
PC
