Criminal Procedure
Weeks 3 & 4
Standing
• Person must have legitimate expectation
of privacy in item searched/seized
– Right to possession of place searhed
– Place was person’s home
– Person was overnight guest
• Legitimately on premises not sufficient
Plain view doctrine
• police are in a place they have a right to
be
• Doing what they have a right to do
• Any apparent contraband/ evidence can
be seized
Is it in plain view?
• Reasonable expectation of privacy
– Purse in stolen car?
Is nature of evidence apparent?
• Arizona v. Hicks
– Police are justified in entering house for
emergency (possible domestic problem)—see
several stereos. Officer moves the stereos to
get I.D.—runs it against stolen property list—
they are stolen
• California v. Ciraolo
– Evidence seen from airplane fly-over directed
at suspect’s house or yard
Other Senses
• Plain Feel
• Plain Smell
• Plain Hear
Plain view
Search v. Seizure
• Plain view does not necessarily justify
seizure
– Officer must also be in place to seize
Related Issues
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Open fields doctrine
Garbage left for collection
Smell coming from luggage
Use of Technology
– Is it available to general public
ESTABLISHING PROBABLE
CAUSE
• WARRANT: AFFIDAVIT IN SUPPORT OF
WARRANT ESTABLISHES PROBABLE
CAUSE
• NO WARRANT: IF QUESTIONED,
OFFICER MUST JUSTIFY IN COURT
THROUGH TESTIMONY
AFFIDAVIT
• STATEMENT UNDER PENALTY OF
PERJURY, USUALLY IN WRITING
• MUST CONTAIN FACTS ESTABLISHING
PROBABLE CAUSE
• CAN CONTAIN HEARSAY
INFORMANTS
• OFTEN FORM BASIS OR CONTRIBUTE
TO ESTABLISHING PROBABLE CAUSE
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•
•
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RELIABLE INFORMANTS
UNTESTED INFORMANTS
CONFIDENTIAL INFORMANTS
ANONYMOUS TIPS
CONSENTUAL ENCOUNTERS
• CONTACT BETWEEN POLICE AND
CITIZEN THAT IS NOT A SEIZURE OF
PERSON UNDER 4TH AMEND.
• NOT A DETENTION
CONSENTUAL ENCOUNTERS
• CITIZEN IS
– NOT OBLIGATED TO
COOPERATE
– FREE TO LEAVE
– BELIEVES THEY ARE
FREE TO LEAVE
• EXAMPLES
– INFORMING
RELATIVE OF DEATH
– INTERVIEWING
WITNESSES
– CASUAL
CONVERSATION
SITUATION
• MID-AFTERNOON, MIDDLE CLASS
RESIDENTIAL AREA, POLICE SEE
INDIVIDUAL WITH LONG HAIR, LONG
BEARD, GRUBBY CLOTHES WALKING
DOWN STREET. CAN THEY
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•
•
•
APPROACH FOR ANY REASON
ASK FOR I.D.
PAT DOWN
TAKE IN FOR QUESTIONING
SITUATION 2
• SAME SITUATION AS BEFORE, BUT
POLICE HAVE RECEIVED CALLS FROM
SEVERAL HOMEOWNERS THAT
SOMEONE STRANGE IS IN
NEIGHBORHOOD
DETENTION
• A TEMPORARY
STOPPING OF A
PERSON FOR
INVESTIGATIVE
PURPOSES
• IT IS A SEIZURE
UNDER 4TH AMEND
DETENTIONS
• ROUTINE TRAFFIC STOPS
• FIELD EVALUATION OF SUSPECTED
DUI
• A FIELD INTERVIEW
JUSTIFICATION FOR
DETENTION
• MUST BE “REASONABLE” UNDER 4TH
AND 14TH AMEND.
• BASED ON RATIONAL SUSPICION OF
CRIMINAL ACTIVITY
• RATIONAL SUSPICION BASED ON
ARTICULABLE FACTS, NOT A HUNCH
RATIONAL SUSPICION
• APPEARANCE
– RESEMBLE A WANTED
PERSON
• ACTIONS
– CASING AN AREA
– HIDING, LOITERING
• TRAFFIC VIOLATION
• PRIORS
• DEMEANOR
– CAN PROLONG
• TIME
• AREA
• POLICE
EXPERIENCE
SOCIAL ENCOUNTER OR
DETENTION?
• 2 A.M.; X IS WALKING DOWN STREET,
POLICE STOP AND ASK FOR I.D. AND ASK
WHAT HE IS DOING
• POLICE KNOCK ON WINDOW OF OCCUPIED
VAN, PARKED IN PUBLIC LOT TO TELL THEM
THEY COULD NOT SLEEP THERE. OFFICER
SMELLS POT AND CITES.
DETENTION SITUATIONS
• POLICE SEE INDIVIDUAL WALKING
BACK AND FORTH OUTSIDE JEWELRY
STORE; STOPS AND TALKS TO
ANOTHER AND KEEPS WALKING BACK
AND FORTH.
• DEF. HAS A BURNED OUT TAIL LIGHT
SITUATIONS
• MARKET CHECKER TELLS POLICE
THAT D IS BUYING LOTS OF SMALL
BALOONS.
• DEF. AT AIRPORT FIT “DRUG CARRIER
PROFILE”, PAID TICKET WITH CASH,
MIAMI TRAVEL ROUTE, DRESS;
POLICE STOP AND FIND DRUGS
SITUATIONS
• POLICE SEE VEHICLE NOT
PROCEEDING THROUGH A GREEN
LIGHT.
• POLICE SEE KNOWN DRUG DEALERS
AND USERS; THEY RUN WHEN THEY
SEE POLICE
SCOPE OF DETENTION
• DETENTION MUST BE REASONABLE IN
SCOPE
• TIME: AS LONG AS IS NECESSARY
FOR PURPOSE OF DETENTION
• ORDERING OUT OF CAR IS O.K.
SITUATION
• POLICE STOP X FOR SPEEDING.
RADIO IN LICENSE NUMBER AND ASK
THAT WARRANT CHECK BE RUN.
COMPUTER TEMPORARILY DOWN.
AFTER 10 MINUTES REPORT COMES
BACK WITH OUTSTANDING WARRANT.
X DETAINED FOR THIS TIME. IS
ARREST ON WARRANT GOOD?
TRANSPORT DETENTIONS
• GENERALLY NOT REASONABLE TO
MOVE DEF. FROM SPOT OF
DETENTION
• EXCEPTION: EXIGENT
CIRCUMSTANCES (EMERGENCY)
PAT DOWN OR FRISK
• EXTERNAL FEELING OR PATTING
DOWN OF SUSPECT’S OUTER
CLOTHING FOR PURPOSE OF
DISCOVERING A WEAPON
• JUSTIFIED WITH DETENTION IF
RATIONAL SUSPICION TO BELIEVE
THERE MAY BE A WEAPON
PAT DOWNS
• MUST STOP ONCE IT IS DETERMINED
THERE IS NO WEAPON
• AS LONG AS OFFICER IS WITHIN
PERMISSIBLE SCOPE, ANYTHING
FOUND CAN BE USED AT COURT:
PLAIN VIEW AND PLAIN FEEL
DOCTRINES
Example
OFFICERS SAW D ILLEGALLY HITCHHIKING. D JOINED 2
COMPANIONS ON CURB AND TAKING ROLLED UP SLEEPING
BAGS, THEY STARTED WALKING ON SIDEWALK. OFFICERS
QUESTIONED THEM, DURING WHICH D SEEMED NERVOUS
AND KEPT GRABBING AT SLEEPING BAG AS IF HE WANTED TO
LEAVE. OFFICER CONDUCTED PAT-DOWN SEARCH
INCLUDING FEELING SLEEPING BAG. HE FELT LUMP IN BAG,
WHICH SEEMED TO BE SOME TYPE OF AUTOMATIC WEAPON.
D, WHEN ASKED BY OFFICER, WHOED HIM CONTENTS OF
BAG WHICH CONTAINED MARIJUANA. (NO GOOD)
CHECKLIST FOR FRISK
• TYPE OF CRIME
• DAY OR NIGHT
• REPUTATION OF
PERSON STOPPED
• NUMBER AND SIZE
OF OFFICER
• DEMEANOR OF
SUSPECT
• ARMED
COMPANION
• HIGH-RISK CRIME
AREA
• SUSPECT MOVES
AS IF REACHING
FOR WEAPON