Investigative Procedure

The Oath or Affirmation Requirement

1.Whether submitted in written form, orally, or electronically, statements made by police to a magistrate in support of an application for a warrant must be sworn and must be sufficient to establish probable cause. 2.An insufficient statement or affidavit in support of a warrant cannot be rehabilitated by later sworn testimony concerning information known to the police—but not disclosed to the magistrate—at the time the application for the warrant was under review.

Probable Cause: An Objective Standard

Probable cause is an objective standard focused on what a "reasonable officer" would believe with the same knowledge and information. The subjective beliefs and motivations of any particular officer are not relevant to the probable cause determination.

What Is a "Search" Under the Fourth Amendment?: The Katz Test and Holding

1. A police search violates the 4th if: a.The defendant exhibited an actual, subjective expectation of privacy; and b.Society is prepared to recognize that expectation as reasonable. 2. A wiretap also constitutes a search and seizure

Exigent Circumstances: Destruction of Evidence

1. The exigent circumstances exception permits police to perform a search without a warrant if they reasonably believe it is necessary to prevent the imminent destruction of evidence. Exigency is determined case-by-case based on the totality of the circumstances. 2. The police must not create or "manufacture" the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. 3. As an alternative to a warrantless search, police with probable cause to believe evidence of a crime is on the premises may temporarily seize or secure the premises to prevent the destruction of evidence and provide time for officers to obtain search warrant.

Who Can Challenge a Search?: Car Passengers

1.A car passenger—one who has neither a property nor possessory interest in the vehicle—does not have a legitimate expectation of privacy in the car or in areas such as the trunk or glove compartment. Accordingly, the passenger cannot challenge a search of the car in which he is riding, 2. While a car passenger cannot challenge a search of the car in which he is riding, he may still object to a search of his own person or effects located within the vehicle. 3. Although a car passenger cannot challenge a search of the vehicle in which he is riding, all occupants of a car are "seized" when the car is stopped by police. Thus, a passenger may challenge the constitutionality of the traffic stop, and if the stop is found to be illegal, evidence that was discovered during a search of the vehicle may be declared inadmissible.

Exigent Circumstances: Hot Pursuit

1.Police may enter and search private property without a warrant if they are in hot pursuit of a suspected felon. The permissible scope of the search is as broad as is reasonably necessary to prevent the dangers that the suspect at large may resist or escape. 2.Police need a warrant to make a routine felony arrest in a suspect's home, TODAY 3.The Supreme Court has not yet decided whether the hot pursuit exception to the warrant requirement applies in cases involving only a minor offense.

Tracking Devices

1.A search does not occur when police install an electronic tracking device on property that does not yet belong to the defendant and then use the device once it does, to reveal info about his movement that could also be obtained via normal visual surveillance. A person traveling in public has no reasonable expectation that his movements will remain private 2.A search occurs when police use an electronic tracking device to obtain info about the interior of a private residence that could not be obtained through observation from the curtilage. Society is prepared to recognize that one expects privacy within a private residence as reasonable. 3. Installation and use of a GPS device on a person's car--an effect under the 4th--requires a warrant, as it is a physical intrusion of a constitutionally protected area.

The Particularly Requirement

1.A warrant must particularly describe the place to be searched and the persons or things to be seized. The description need not be perfect, but must be such that an officer can reasonably ascertain and identify the location or items intended. 2.The inclusion of some general language in a warrant does not render the warrant itself impermissibly general as long as the language is construed narrowly and is not used by the police to justify a search for or seizure of items not relevant to the crime under investigation. 3.A description in a warrant that is insufficiently particular may be saved by an adequate description in the affidavit or application submitted in support of the warrant, but only if the warrant itself uses appropriate words of incorporation and the supporting affidavit or application accompanies the warrant.

Who Can Challenge a Search?: Home Visitors

1.An OVERNIGHT SOCIAL GUEST has a legitimate expectation of privacy in his host's home. This means he can challenge a search of the home he is visiting and may claim the protection of the exclusionary rule. 2.A SHORT-TERM BUSINESS GUEST does not have a legitimate expectation of privacy in his host's home. Accordingly, a they cannot challenge a search of the home. 3.Although a short-term business guest cannot challenge a search of his host's home, he may still object to a search of his own person or effects located within the home because he has a legitimate expectation of privacy in his person and personal effects that is independent of any expectation of privacy he may (or may not) have in his host's home itself.

Searches of Open Fields

1.Because open fields are not persons, houses, papers, or effects, they are not protected y the 4th. . A government intrusion into a privately owned open field is also not a search because an person can't legitimately demand privacy for activities conducted outside in fields, except in the curtilage—the area immediately surrounding the home.

Stop-and-Frisk: Individuals on Foot

1.In a stop, a police officer uses physical force or a show of authority to briefly detain an individual for questioning or further investigation. Because the individual is not free to leave, a stop constitutes a seizure 2.In order to make a stop, police must have reasonable suspicion of imminent or ongoing criminal activity. Police may also stop an individual upon reasonable suspicion that he is involved/wanted in connection with a completed felony. a. Reasonable suspicion is a lower standard than probable cause, but is more than a mere hunch. b. Reasonable suspicion is judged by an objective standard, not by the officer's subjective good faith. c. Reasonable suspicion can be based on an informant's tip, even if the informant is anonymous--but it must have an indicia of reliability. d. A person's presence in a high-crime area coupled with evasive behavior or unprovoked flight creates the reasonable suspicion 3. During a lawful stop, police may require an individual to identify himself. 4.In order to frisk a person who has been stopped, police must have reasonable suspicion that the person is armed and dangerous. The officer need not be absolutely certain. a. In order to "reach in" and seize a weapon, the officer must have REASONABLE SUSPICION that the item felt during the frisk is/could be used as a weapon. b.In order to "reach in" and seize drugs or contraband, the officer must have PROBABLE CAUSE that the item felt during the frisk is drugs or contraband. It must be immediately apparent to the officer—based only on the quick exterior frisk, WITHOUT ANY MANIPULATION—that the item felt is drugs or contraband. 5.A stop or a frisk must be reasonably related in scope to the circumstances which justified the stop or the frisk in the first place. A stop should be no longer or more intrusive than necessary to confirm or dispel the officer's suspicions, while a frisk should be no more probing or intrusive than necessary to find weapons for safety reasons.

Stop-and-Frisk: Vehicles on the Road

1.In order to stop a vehicle on the road, police must have reasonable suspicion of a driving infraction or some other violation of law. Reasonable suspicion is based on the totality of the circumstances. 2.An anonymous 911 call reporting reckless or drunk driving can create the reasonable suspicion necessary to make a traffic stop if the call bears adequate indicia of reliability. 3.An officer's objectively reasonable mistake as to the facts or the law is not incompatible with reasonable suspicion. A traffic stop is still valid even when based upon an officer's reasonable—but mistaken—interpretation of the law. 4.During a lawful traffic stop, police may order the driver and any passengers out of the vehicle, and frisk them upon reasonable suspicion that they are armed and dangerous. 5.A police officer may search the interior of a vehicle during a lawful traffic stop if she has reasonable suspicion to believe that any of the occupants is dangerous and may gain immediate control of a weapon inside the vehicle. Any contraband other than weapons found in the course of the search may be seized and admitted into evidence at trial.

The "Knock and Announce" Requirement

1.In the absence of exigent circumstances, police must knock and announce their presence before entering a residence to execute a search warrant. 2.In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. 3.Evidence discovered following a "knock and announce" violation will not be suppressed under the exclusionary rule.

Treatment of Persons Present When a Search Warrant Is Execute

1.In the absence of individualized suspicion of wrongdoing, police may not search a person present on the premises while executing a warrant authorizing a search of the premises. 2.Police officers may detain a person present on the premises while executing a search warrant. If necessary for officer safety or other legitimate reasons, such a detention may last for several hours and include the use of handcuffs. 3.The authority of police to detain a person while executing a search warrant on the premises is limited to those within the immediate vicinity of the premises to be searched.

Consent Searches

1.Police may perform a search without a warrant and without probable cause if they have valid consent. In order to demonstrate valid consent, the prosecution must show that consent was voluntarily given, and is not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from the totality of the circumstances. While knowledge of a right to refuse consent is one factor to be taken into account, the prosecution need not prove such knowledge to establish voluntary consent. 2.A third party's consent to a search is valid if it is voluntary and if the police reasonably believe that the third party has common authority over the premises. Common authority rests on mutual use of the property by persons generally having joint access or control for most purposes. 3.A physically present resident's refusal of consent to a search prevails over another resident's permission. But once the objecting resident is no longer physically present, the police may search with the voluntary consent of another resident who has common authority over the premises.

Searches of Vehicles Incident to Arrest

1.Police may perform a warrantless search of a vehicle incident to a recent occupant's arrest if the arrestee is within reaching distance of the passenger compartment at the time of the search, or if it is reasonable to believe that the vehicle contains evidence relevant to the crime of arrest. 2.The police may perform a warrantless search of a vehicle incident to arrest, under the circumstances set forth in Arizona v. Gant, only if police actually arrest one of the occupants. If police decide to issue a citation rather than making an arrest, the search incident to arrest exception does not apply.

The Automobile Exception

1.Police may search a vehicle without a warrant if they have probable cause to believe evidence or contraband is inside the vehicle. The search of the vehicle need not take place immediately; it can be done after the vehicle has been taken to a police station and is no longer mobile. 2.The search may include any containers or personal effects within the vehicle, regardless of whether the containers or personal effects belong to the driver or to a passenger.

The Plain View Exception

1.Police may seize an item in plain view if they are legitimately or lawfully on the premises and it is immediately apparent that the item is evidence of a crime, contraband, or otherwise subject to seizure. 2.A police officer can use all of his senses—including smell and touch—when he is lawfully present at a particular location. Accordingly, there is a "plain touch" corollary to the plain view exception that allows an officer to seize an item if he is legitimately in a position to feel it, and if it is immediately apparent—based only on his quick touch and without any further manipulation or "search"—that the item is evidence of a crime, contraband, or otherwise subject to seizure.

Voluntary Encounters

1.Police officers may approach individuals at random on the street, in airports, on buses, and in other public places to ask them questions and to request consent to search their persons or luggage. As long as they obtain voluntary consent, they don't need reasonable suspicions or probable cause 2.If a reasonable innocent person, approached and questioned by the police under the same circumstances, would feel free to say no, end the encounter, or just leave, the encounter is not a seizure. 3.In determining this, a court should examine the totality of the circumstances, including: a.The location of the questioning. b.The number of officers. c.The appearance of the officers. e.The tone and language of the questioning. f.Physical contact. 4.A person is not seized until he actually yields to an officer's physical force or show of authority.

Defining and Applying Probable Cause

1.Probable cause for a search exists where the facts and circumstances within an officer's knowledge and of which she has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed and that evidence bearing on that offense will be found in the place to be searched. 2.Probable cause for an arrest exists where the facts and circumstances within an officer's knowledge and of which she has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person whom the officer intends to arrest. 3.Under the common-sense, "totality of the circumstances" approach to probable cause, a court should look for: a.A reliable source of information, including the source's basis of knowledge. b.Detailed information suggestive of criminal activity. c.Verification or corroboration of the information by the police. These three elements are not rigid independent requirements; instead, they should be considered collectively, and additional information in one area can compensate for a deficit of information in another.

Two Tests for Determining Whether There Has Been a "Search"

1.THE KATZ REASONABLE EXPECTATION TESTt: Police perform a "search" when they intrude into an area in which: a. The defendant exhibited an actual, subjective expectation of privacy AND b. Society is prepared to recognize that expectation as reasonable. 2.THE JONES PHYSICAL INTRUSION TEST: A search occurs when the government obtains information by physically intruding upon persons, houses, papers, or effects.

Anticipatory Warrants

1.The fact that an item which police are authorized to search for and seize is not currently located at the place described in a warrant is immaterial as long as there is probable cause to believe that it will be there when the search warrant is executed. 2.Two prerequisites of probability must be satisfied for an anticipatory warrant to meet the Fourth Amendment requirement of probable cause, and the supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable cause determination. a.There must be probable cause to believe that a triggering condition—such as the arrival of the contraband—will occur. b.There must be probable cause to believe that if the triggering condition occurs, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Use of a Drug-Sniffing Dog

1.The use of a drug dog to sniff a person's bags in a public airport does not constitute a search 2.The use of a drug dog to sniff an individual's car during a lawful traffic stop does not constitute a search 3.The use of a drug dog to investigate the home and its immediate surroundings is a search. The home and the curtilage are constitutionally protected areas.

Searches of Homes Incident to Arrest

1.When an arrest is made, police may search the arrestee's person and the area into which the arrestee might reach where he could gain possession of a weapon or destructible evidence. The search incident to arrest may be made without a search warrant and without probable cause. 2.Incident to an arrest, police may also conduct a warrantless protective sweep—a cursory visual inspection of those places in which a person might be hiding. a.As a precautionary measure and without probable cause or reasonable suspicion, police can look in closets and other spaces immediately adjoining the place of arrest from which an attack could be launched. b.Beyond the areas immediately adjoining the place of arrest, police must have reasonable suspicion that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Searches of Persons and Personal Effects Incident to Arrest

1.When an arrest is made, police may search the arrestee's person, pockets, personal effects, and other areas into which the arrestee might reach where he could gain possession of a weapon or destructible evidence. The search incident to arrest may be made without a search warrant and without probable cause or reasonable suspicion. The search need not take place immediately upon arrest; it can occur upon arrival at the place of detention or, with good reason, even hours later. 2.When the police make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, the police may—without a warrant, probable cause, or reasonable suspicion—take and analyze a cheek swab of the arrestee's DNA. Like fingerprinting and photographing, the warrantless taking and analysis of the arrestee's DNA is a legitimate police booking procedure that is reasonable under the Fourth Amendment. 3.The search incident to arrest exception to the warrant requirement does not permit police to search the contents of an arrestee's cell phone. In most circumstances, police must obtain a warrant before searching the contents of an arrestee's cell phone

Who Can Challenge a Search?: General Principles

A criminal defendant cannot challenge a search and claim the protection of the exclusionary rule simply because she was disturbed by the search or was on the searched premises. A person can only challenge a search and invoke the exclusionary rule if the police violated her own legitimate expectations of privacy.

Use of a Wired Informant

A criminal suspect has no constitutional protection that a person he is talking to will not tell the police what they said. For this reason, the use of a wired informant does not constitute a search.

Suppression Hearings

A defendant who wishes to challenge the truthfulness of statements in a warrant application must make a preliminary showing that the officers who prepared it deliberately falsified information or recklessly disregarded the truth. Allegations of negligence or innocent mistake are insufficient. If the defendant makes the required preliminary showing, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no suppression hearing is required. But if the remaining content is insufficient to establish probable cause, the defendant is entitled to a full evidentiary suppression hearing.

Mistakes in the Execution of Warrants

A mistake in the execution of a valid warrant does not violate the Fourth Amendment and does not require suppression of any evidence discovered if the mistake was objectively reasonable and understandable.

Searches of Trash

A search does not occur when police gather and sort through an individual's trash left for collection outside the curtilage of a home. Because trash left for collection on a public street is readily accessible to others, including the garbage collector, it is not objectively reasonable to expect that its contents will remain private.

Aerial Observation

Aerial observation of a home's curtilage is not a search if the curtilage is visible from public navigable airspace. An individual's expectation that his curtilage or garden is protected from such observation is unreasonable and is not an expectation that society is prepared to honor.

The Exclusionary Rule

Applied to states in Mapp v. Ohio, it says that illegally obtained evidence is inadmissible in court.

Who Can Challenge a Search?: The Practical Rule

Don't store your stash in your friend's home or car! Unless you're an overnight guest at the home or regularly using the car (with permission), you probably don't enjoy a legitimate expectation of privacy in the home or car, which means you can't challenge a police search—even if it's an illegal search—of the home or the car!

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Neutral and Detached Magistrate Requirement

In order to be a valid, a search or arrest warrant must be issued by a neutral and detached magistrate. The magistrate need not be a lawyer or judge, but he must be capable of determining probable cause and must not have financial interests or connections to law enforcement that would compromise his independence.

The "Knock and Announce" Exception to the Exclusionary Rule

In the absence of exigent circumstances, police must knock and announce their presence before entering a residence to execute a search warrant. Evidence discovered following a "knock and announce" violation will not, however, be suppressed under the exclusionary rule.

The Applesauce Analogy

Most legal questions in Investigative Criminal Procedure aren't apples and aren't juice. Most are, instead, somewhere in the middle, like applesauce. When confronted with an applesauce problem, do what the Supreme Court does—carefully examine the facts, note similarities and differences in prior cases, and determine which rules and arguments seem to provide the best answers.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Exigent Circumstances: Emergency Aid or Assistance

Police officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. This exception does not depend on the officers' subjective intent or the seriousness of any crime they are investigating when the emergency arises. It requires only an objectively reasonable basis for believing that a person within the house is in need of immediate aid.

Amendment XIV

Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Government Action Requirement

THe constitutional rules provide protection against the government and those who work for it. The rules provide no protection against private citizens acting without government encouragement or assistance.

The Line Between Stops and Arrests

The investigative methods used by the police during a stop should not be more intrusive than necessary to confirm or dispel the officer's suspicions within a short period of time. A stop that is prolonged or that involves moving the suspect to a different location for further questioning or investigation may transform a stop into an arrest requiring probable cause, particularly if the police are not reasonably diligent in completing the investigation of the circumstances that inspired the stop in the first place.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Use of a pen register

The use of a pen register does not constitute a search, as a phone company already records what numbers are dialed, meaning a person has no reasonable expectation that the numbers they dial will remain private.

The Good Cop/Bad Cop Dichotomy

Those with a Good Cop view tend to trust the police. Those with a Bad Cop view tend to distrust the police.

The Necker Cube Principle

To be good at Investigative Criminal Procedure, like virtually anything else, you must be willing to consider and argue the issues from a variety of different perspectives.

Exigent Circumstances: Murder Scenes

When police arrive at the scene of a homicide, they may make a quick warrantless search of the area to see if there are other victims or if a killer is still on the premises, and they may seize any evidence that is in plain view during their legitimate emergency activities. Once the emergency has passed, however, subsequent searches must be authorized by a warrant.

Thermal Imaging of Homes

When police use a thermal imager or a similar device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.