Criminal Procedure
Class Two
Why Warrants
• S/S conducted without warrants are
presumed unreasonable
• Considered “cardinal principle” of 4th
Amendment
• BUT -- two exceptions may swallow the
concept
Caveats
• Numerous exceptions
to the Warrant
Requirement
• Growing trend to
sever warrant clause
and reasonableness
clause
Why a preference for Warrants
• Inferences drawn by neutral & detached
magistrate
• NOT judged by officer engaged in the often
competitive enterprise of ferreting out crime
Documents
• Affidavit
– sworn, signed statement [usually by police
officer]
– sets out grounds for “probable cause”
• Warrant
– signed by magistrate
– probable cause [“why”]
– specificity [“who, what, where”]
• Return
Challenges
• Defense burden
• Motion to Suppress
• Typically subject of pretrial hearing
Magistrate Considers
• Is information in
affidavit sufficiently
trustworthy?
• If so, it is enough to
constitute probable
cause?
Types of Information in Affidavit
• Direct information
• Hearsay
Exercise
• Police receive call from Gladys saying that
Cathy Burnett will be standing in front of a
class in Room 518 at South Texas College
of Law at 10:00 on Saturday, January 31st,
and that she will be holding a brown
covered book and carrying a black book bag
containing drugs
Exercise
• Gladys also relates the following
description: Cathy Burnett is 5”6”,
overweight, somewhere in late 40s or early
50s, has dark hair and eyes, may possibly be
Hispanic, and will be dressed in black
Exercise
• Gladys says the woman will be standing in
the front of the room. She will arrive at
approximately 8:50 a.m., walking briskly
and looking around
Exercise
• Officers come to STCL and corroborate
everything except the existence of drugs
Exercise
• They go immediately to a magistrate with
all these facts set out in an affidavit
Exercise
• SHOULD THE MAGISTRATE ISSUE?
Exercise
• If not, WHAT ELSE IS NEEDED?
Old Aguilar-Spinelli Test
• Veracity / Reliability
• Basis of Knowledge
• Corroboration could remedy defect in either
prong if (1) independent (2) substantial
Totality of Circumstances
• Rejects rigid two prong test
• View probable cause as fluid
• Deficiency in one “prong” may be
overcome or compensated by overall
information not only by independent
corroboration
Role of Reviewing Courts
• Simply to ensure that magistrate had
“substantial basis” to support conclusion
that probable cause existed
Role of Magistrate
• Make practical, common sense decision
• Whether, given all circumstances set forth
in affidavit, including veracity and basis of
knowledge, there is a fair probability that
contraband or evidence of a crime will be
found in a particular place
Probable Cause to Arrest
• Test: Whether there is a fair probability to
believe the person to be arrested has
committed a crime
Impact of Mistake
• Probable cause does not evaporate merely
because police are mistaken
• Consider
– Illinois v. Gates: wrong about wife’s travel
plans
– Hill v. California: suspect was in state of
insulin shock, not drunk
Collective Knowledge
• Officer who actually conducts search does
not have to have personal knowledge of
facts supporting probable cause
Describing the Thing to be Seized
• Fruit
• Instrumentalities
• Contraband
• Mere Evidence
Potential “Target” Locations
• Type of Crime
• Nature of items sought
• Suspect’s opportunity for concealment
• Normal inferences about where folks hide stuff
Protections provided by warrant
• control officer’s discretion
• establish record before search
• curtail “blank check”
Executing Warrants
Notice
• “Knock and announce”
– Gov’t interests: hot pursuit, destruction of evidence,
officer safety
• not constitutional requirement
• component of reasonableness inquiry
• Recent Supreme Court action: U.S. v. Banks
12/02/2003
United States v. Banks
• Reasonableness of forced entry under knock
and announce rule not dictated by mere
passage of time
• courts must consider totality of
circumstances surrounding entry
• police received info that Banks was selling
cocaine out of his home; got search warrant
United States v. Banks
• Knocked on door and announced they had
warrant to search
• After waiting 15-20 seconds, broke down
door and entered home
• Police action upheld -- could have
developed reasonable suspicion Banks was
planning to destroy evidence when he failed
to respond
Duration & Scope
• Key: reasonableness
• General principle: When object specified in
search warrant has been recovered, the
search is over.
Civilians
• Help from the unwilling
• Officer “ride along” programs
The Magistrate
• What is means to be neutral
• Training
• “Justification” of decision