1.03 PROBABLE CAUSE AND WARRANTS Flashcards
FOURTH AMENDMENT
“… no Warrants shall issue, but upon probable cause … particularly describing …”
THINGS THAT CAN BE SEIZED
Warden v. Hayden (1967)
HOLDING
- Fourth Amend. Protects BUT ALSO Authorizes Searches and Warrants
- Result of Katz … People Over Property … No Privacy Interest in Evidence
- Allows Seizure of Books, Papers, Hair Samples, Blood Samples
OVERTURNS “Mere Evidence” Standard
- Previously – Instrumentality, Fruits, Contraband … Property NOT SEIZED
- Rejects Property Rights Analysis
LOCATION OF EVIDENCE : INNOCENCE
Zurcher v. Stanford Daily (1978)
Probable Cause = ‘Things Searched / Seized are Located on Property to Which Entry is Sought’
INNOCENT PERSONS May Be Targets of Warrant If They Have Evidence of a Crime (Fourth Focused on Evidence)
SEARCHES OF NONSUSPECTS’ PREMISES … See Zurcher = IF PROBABLE CAUSE AS TO EVIDENCE SOUGHT
HELD: Search of News Paper Reasonably Believed to Have Pictures Identifying Perpetrators of Illegal Activity Allowed
NOTE: Searches of media organizations limited by Privacy Protection Act of 1980 (Not in Course).
DESCRIBING PLACE TO BE SEARCHED Garrison (1987)
FACTS: Officers Took Care to Identify Place, Only Discovered 2 Apartments w/Common Space Once Inside Wrong Apartment
HELD: Innocent Mistakes are Allowed IF Based on Reasonable Belief
DESCRIBING PLACE TO BE SEARCHED
RULES
- BASIC RULE = Warrant Must Be Specific Enough for Magistrate / Officer Searching to Identify Place - IF w/n Curtilage and Accessible to Occupants Probably Searchable
- MAY Include Detached Garage, Shed, Office w/n Curtilage
- Warrant for Second Floor Includes Attic on Third Floor Opened to Second Floor
- Courts Hold that Warrant for Premises Includes Vehicles w/in Curtilage if Objects Might Be There
- Search of Visitor’s Property is Probably OK, IF Items Sought May Reasonably Be Thought to Be Inside - BASIC RULE = Must Reasonably Believe Evidence / Item Sought Could Fit in Spaces Searched (Smaller Objects = Broader Searches)
DESCRIBING THINGS TO BE SEARCHED
Andersen v. MD (1976)
WARRANT: “Together with other fruits, instrumentalities and evidence of crime at this [time] unknown” … Is this too broad? = ALLOWED
Remedy for Taking Too Much = Should Return it Promptly
PSS = Court got this one wrong, allows overly broad searches … see also plain view and where you start search (no law on where to start).
COMPUTER SEARCHES
BROAD ALLOWANCE
If an Officer Finds a File Marked “Grocery List,” Can She Search File = GENERALLY MAY SEARCH ENTIRE HARD DRIVE
Courts may be reluctant to limit a search to a particular file or search protocol, given ease with which files disguised or renamed
Method May Matter = Verify Content of File, But Don’t Dig Deeper
REASONABLENESS LIMITS
LIMITS ON WARRANTED SEARCHES
Winston v. Lee – Surgery for Bullet Removal (Evidence Stuck in Body) Unreasonable
DETAILS OF WARRANT
PARTICULARITY
“Stolen Clothing” is Insufficient : “Stolen Mail” Might Be Enough (Letter Covers Easy Enough to Spot with Reasonable Certainty)
Reality, If Warrant, Can Search for Almost Anything
See at 170, FRCP 41(e)(2)(A)
REMEDY
Severability (Keep if w/n Warrant, Out if Outside Warrant) – Might Have Applied in AndresenReality, If Warrant, Can Search for Almost Anything
DESCRIBING THE PERSON TO BE SEIZED
PARTICULARITY FOR ARREST WARRANTS = Sufficient for Officer without Personal Knowledge to Execute (3d 1983)
ANTICAPATORY WARRANTS
US v. Grubbs (2006)
FACTS: Affidavit for Search of Residence AFTER Resident Accepts Controlled Delivery
RULE: Anticipatory warrants require magistrate to determine (1) it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed
- Requires PROBABLE CAUSE that TRIGGERING Condition Will Occur AND Fair Probability Evidence Found Thereafter
- (???) DOES NOT Require Warrant to List Condition (???)
WARRANTS = Probable Cause Evidence is There / Will Still Be There When Police Execute the Warrant
ANTICAPATORY = Probable Cause Evidence Will Be There After X Occurs Even Though No Probable Cause at the Moment
“SNEAK AND PEAK” WARRANTS
Fed. R. Crim. P. 41 (f)(1)(c) requires that an officer executing a warrant give a copy to person whose premises is searched
BUT Fed. R. Crim. P. 41 (f)(3) permits a judge to delay notice if authorized by statute
Section 213 of the Patriot Act permits agents to enter a person’s home or officer covertly and delay notice if they can show reasonable cause to believe that notice may have an adverse effect: endangering an individual, flight, destruction of evidence, intimidation, or jeopardizing an investigation or delaying a trial
SCREENING MAGISTRATE REQUIRED FOR WARRANT
Have probable cause decided by neutral party rather than by interested law enforcement officer = Magistrate Assess Reasonable
Record of Police Know Pre Warrant > Ex Post Facto, Limit Scope of Search, Assure Citizen of Lawful Authority & Limit
Johnson v. US (1948)
FACTS: Informant Sends Police, Police Smell Opium, Enter Hotel Room, Enter, See Woman Alone, Arrest
COURT = No Probable Cause Until Officers Saw She Was Alone in “Home
NOTE: Today Outcome Probably Different
Magistrate Must be Neutral and Detached
Not a Prosecutor (Coolidge v. NH (1971)) – But Lower Court Cases Not So Clear
Not Rubber Stamp … Must Read Affidavits … Hard to Prove
Legal Training is NOT Critical
Shadwick v City of Tampa (1972)
Magistrate Need Not Be Lawyer, Gates Assumes Non-Lawyers Can Serve … 1791, No Question that This Was the Case
Can Issue Warrants for Minor Offenses, e.g., Breach of Peace, Trespass
Case Does NOT Address Felony’s THEREFORE D/N Require Legal Training for Felony
NOTE: Statutory Requirements, e.g., Wire Taps Article III Judges or Legally Trained Local Judges, May Be Higher
Statement of Reasons Supporting Decision Not Required
NOTE: Magistrate May Not Really Screen That Much, But Affiant Sworn to Facts, Record is Made, and Screen Could Be Done
KNOCK AND ANNOUNCE
K&A USUAL RULE
- Magistrate May Issue No Knock Warrant
- Police May Judge an Exigency Exists … Break Open Door with Battering Ram
EXCEPTIONS NOTICE RULE, Wilson v. Arkansas (1995) = Reasonable Suspicion (NOT Certainty) K&A Dangerous, Futile, or Destruction of Evidence = Exception
UNWRITTEN RULE = Searching for Drugs … Reasonable to Assume Weapons, Richards v. Wisconsin (1997) = 3:40 AM Entry Into Premises = Upholds Entry Under Circumstances BUT Rejects Per Se Exception for Felony Drug Crime
EXIGENT CIRCUMSTANCES AFTER KNOCKING
Waiting Period
Property Damage
Intrusiveness
WAITING PERIOD = No Bright Line Rule Knapp – 12 Second Delay, Break In OK
RULE = What Matters is Time in Which Evidence Might Be Destroyed, Not Time to Answer, US v Banks (2003) (15-20 Sec., 2 Bed Apartment, D in Shower Irrelevant)
NO Heightened Standard for Exigent Circumstances EVEN IF Property Destroyed US v. Ramirez (1998)
- NOTE = No Requirement to Pay Damages for Forced Entry, Warrant is Legal Right to Enter
HOW INTRUSIVE? = NOT Much Law … REASONABLENESS … e.g., Weinbender (8th 1997) (remove patched drywall looking for stolen clothes)
FAILURE TO KNOCK & ANNOUNCE, REMEDIES
Hudson v. MI (2006)
NO EXCLUSION FOR K&A FAILURE
- HELD, Scalia: K&A Gives Opportunity to Comply, Avoid Destruction of Property and Protects Elements of Privacy and Dignity
- Rule DOES NOT Protect Against Government Seeing or Tracking Evidence (Warrant = Lawful Authority)
- Interests violated by a violation have nothing to do with the seizure of evidence
REMEDY = Civil Rights Actions
- Damages Likely to Be Small, Absent Wrongful Death
- Flash Bangs Make Courts Uncomfortable But They Stick to Civil Rights Actions
TIMING AND SCOPE EXECUTION
Hummel-Jones v. Strope (8th Cir. 1994)
FACTS: Civil Rights Action with Respect to INNOCENT PERSONS Present at Suspect Nurse’s Suspect Birthing Clinic
Undercover Officer Arrives, pretends to be Soldier on Way to Gulf War w/ Car Trouble, Informs Other Officers Family Present
WARRANT = Records and Supplies … SEARCH / SEIZURE = 3.5 hr Search Family / Infant, Their Belongings, Took Video
HELD: Search Exceeded Warrant for Birthing Clinic Records / Property … NOT for People Unrelated to Evidence
PRESENCE OF WARRANT
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ENLISTING PRIVATE CITIZENS
US v. New York Tel.
Third Parties May Be COMPELLED TO Assist Police in Searching
Willing Assistance IF NOT Helping for Own Purposes (ID Property for Police : Taking 231 Personal Photos)
MEDIA RIGHT ALONGS
Wilson v. Layne (Civil Rights Action)
FACTS: Washington Post Photographer and Reporter Accompany Police Executing an Arrest Warrant
HELD: Media Ride Along for Arrest Unconstitutional (Enter Property)
RULE: Allows Media to Be Notified / Present of Execution, May Photograph / Report from Public Property, C/N Accompany
WHEN DOES A SEARCH END?
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