Warrants, Probable Cause, and Warrantless Exceptions Flashcards
Overview
What is necessary to justify a search or seizure?
(note that you need a constitutionally recognized search or seizure to begin with)
- Was there PC?
- If yes, did the gov’t obtain a warrant from a judge?
- Yes -> action is permissible
- No -> action only permissible if exception to warrant requirement exists (then action is considered “reasonable”):
- (1) exigent circumstances;
- Is there an exigency? (Mincey)
- (1) destruction/dissipation of evidence;
- (2) fleeing/hot pursuit;
- (3) danger to police/others;
- (4) emergency aid.
- Did police create the exigency? (King)
- Did the gov’t activity go beyond the scope of the exigency? (Mincey)
- (2) plain view doctrine – in plain view + legal intrusion + potential physical control + PC
- (3) automobile searches – car-general (everything in the car including containers) or container-specific (just the container itself) PC?
- (4) arrest;
- (5) consent.
(6) Search incident to arrest - If not, does the search or seizure fall into a category where PC is not required?
- UNITS 3 & 4
Executing Warrants
THE WARRANT REQUIREMENT
SCOTUS has expressed preference for searches and seizures pursuant to warrants
BUT 4a text does not impose the warrant requirement
Process:
1. Does probable cause exist?
2. Was it supported by oath or affirmation?
a. Whitely v Warder (1971) – Court held that facially insufficient affidavits “cannot be rehabilitated by testimony concerning info possessed by the affidavit when he sought the warrant but not disclosed to issuing magistrate.”
b. FRCrimP: provide process which PO can obtain warrant via telephone = hoping to avoid delay of appearing before a magistrate
3. Did the warrant particularly describe “the place to be searched, and the persons or things to be seized.”
a. Cannot be too ambiguous
b. Would officer w “reasonable effort ascertain and identify the place (or thing) intended?
Relevant Cases:
- Coolidge v New Hampshire (1971) – Court found the requirement to be violated by a procedure in which a state atty general issued a search warrant in the course of a murder investigation that he was conducting.
- Connally v Georgia (1977) - Court refused to uphold warrant process in which magistrate received a fee for issuing warrants but not for refusing them.
- Shadwick v City of Tampa (1972) – court upheld warrant process in which clerks w/o law degrees were permitted to issue arrest warrants for municipal ordinance violations, nothing that communities may have sound reason for delegating the responsibility of issuing warrants to competent personnel other than judges or lawyers
EXECUTING WARRANTS
- Generally police must knock and announce their presence before serving a warrant. Wilson v Arkansas (1995)
o BUT: if police have a reasonable suspicion of danger of the destruction of evidence, they do not have to knock and announce. Wilson; US v Rameriz
Police can temp detain occupants on the premises for which search warrant exists on these grounds. Michigan v Summers.
o After knocking, police must wait a reasonable time before forcing entry, although they do not have to wait past the point of reasonable suspicion of the above. US v Banks (2003) (15-20 seconds was long enough; clock began to begin flushing cocaine)
o Violation of the “knock and announce” rule does not lead to application of exclusionary rule. Hudson v Michigan (civil remedies exist to check/deter police behavior)
o Officers executing a search warrant for contraband have authority to detain the occupants of the premises while a proper search is conducted. Michigan v Summers.
o 2-3 hr handcuff detention was const reasonable given warrant being executed authorized a search for both weapons and wanted gang member who was believed to be on premises. Inherently dangerous situation; min risk to officers/occupants. Muehler v Mena.
o Police executed valid warrant but made a mistake (home had sold to someone else), argud search was conducted in unreasonable manner. SCOTUS disagreed, when officers execute a valid search warrant and act in a reasonable manner to protect themselves from harm, 4a not violated. LA County v Rettele.
- 3P presence is permissible if they are aiding in the execution of the warrant in a home, but not permissible if they are just there to be there. Wilson v Layne (media presence at warrant execution)
The Probable Cause Standard
Cases upcoming
US v. Bringer (PC Case)
Probable cause exists when… “the facts and circumstances w/in 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.”
Nathanson v. US (1933)
court found a search illegal when a PO in an application for the search warrant for illegal liquor swore an affidavit that stated simply that the officer “has cause to suspect and does believe that certain merchandise is now deposited and contained within the premises of JJ Nathanson.”
mere affirmance of belief or suspicion is not enough
Draper v. US (PC Case)
informant sometimes gave info to federal agent Marsh about narcotics violations – and was paid small amounts of money for the info, which had consistently been accurate.
When the info was used to arrest Draper, SCOTUS found that Marsh had probable cause to support the arrest; accompanying search was permissible incident to arrest : previous reliability + present corroboration of details shared by an informant is sufficient for PC
Spinelli v. US (PC Case)
FBI agents obtained warrant to search Ds apt based on affidavit w/ details of his movements and that informant told FBI that he was operating an illegal gambling ring
- SCOTUS: only allegations in the affidavit that could even remotely matter were the allegations from the confidential informant, but even so they were STILL NOT ENOUGH to provide the basis for probable cause - rejected a “totality of the circumstances” approach and said that a more “precise analysis” of informant’s tips was required to show the reliability and basis of that knowledge - informants allegations were lacking and were merely just flat statements
SPINELLI TWO PRONG TEST: whether the warrant was issued on information that -
(1) adequately revealed the “basis of knowledge” for such information, and
(2) provided facts sufficiently establishing the “veracity” or “reliability” of the information.
BRINGER APPLIED
- Brinegar applied #1: Police officer swears in affidavit that “he suspects and believes stolen merchandise from Wal-Mart is in the home of Kip Cornwell.” -> Mere affirmance of belief or suspicion is not enough for probable cause. Nathanson.
- Brinegar applied #2: Previously reliable informant named Jenn details travel plans of Jake, to and from university, including description of clothing he will wear on the day in question, and the bag that he will be carrying. Officers observe Elberg with those clothes and bag on the day in question -> Previous reliability and present corroboration of details shared by an informant is sufficient for probable cause. Draper.
- Brinegar applied #3: The following is in a warrant application: Police conduct surveillance for 3 days and observe Smith entering and leaving another’s apartment at least 4 times, Police determine phone numbers connected to the apartment, Police have encountered Smith before and know him to have sold and use drugs in the past, Police receive tip from confidential informant that Smith is arranging sales in an apartment with the same numbers as the apartment above. -> Police must show past reliability of anonymous informant and basis of informant’s knowledge; otherwise, not enough to support PC. Spinelli.
Ill v. Gates (PC Case)
courts consider the totality of the cirucmstances, which INCLUDES BUT ISN’T LIMITED TO the Spinelli two-prong test: whether the warrant was issued on information that (1) adequately revealed the “basis of knowledge” for such information and (2) provided facts sufficiently establishing the “veracity” or “reliability” of the information.
* Can’t be bare assertions or conclusions,
but strong showing of credibility OR basis of the informant’s knowledge can be enough. (note that corroboration of suspicious or innocent activity is crucial!!!)
