Criminal Procedure for the
Criminal Justice Professional
11th Edition
John N. Ferdico
Henry F. Fradella
Christopher Totten
Basic Underlying Concepts:
Privacy, Probable Cause, and
Reasonableness
Chapter 3
Prepared by Tony Wolusky
Privacy
The Old Property Rights Approach

Under the common law, the security of one’s
property was a sacred right, and protection of
that right was a primary government purpose.


This was initially the basis for the interests protected by
the Fourth Amendment.
Fourth Amendment issues centered around intrusions
into “constitutionally protected areas.”
The Reasonable Expectation of
Privacy Approach

Wherever an individual may harbor a
reasonable expectation of privacy, he or she is
entitled to be free from unreasonable
governmental intrusion.

Determining whether a person has a
reasonable expectation of privacy requires that:


A person has exhibited an actual (subjective) expectation of
privacy and,
The expectation is one that society is prepared to recognize
as objectively reasonable.
Probable Cause
Defining Probable Cause to Search
and Seize

Probable cause exists where the facts and
circumstances within a law enforcement
officer’s knowledge and of which the officer
has reasonably trustworthy information are
sufficient in themselves to warrant a person
of reasonable caution in the belief that a
crime has been or is being committed by a
particular person or that seizable property will
be found in a particular place or on a
particular person.
Officer Knowledge
In Carroll v. United States, 267 U.S. 132, 162
(1925), the Court said that probable cause to
search exists when “the facts and
circumstances within their [the 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 [seizable property
would be found in a particular place or on a
particular person].”
Preference for Warrants

The warrant procedure is preferred because
it places responsibility for deciding the
delicate question of probable cause with a
neutral and detached judicial officer who
usually has more formal legal training than a
police officers has.
Methods for Establishing Probable
Cause

Probable cause is evaluated by examining the
collective information in the possession of the
police at the time of the arrest or search including:








Information known through an officer’s own senses
Flight or furtive conduct
Observation and evaluation or real evidence
Admissions of criminal conduct
False or implausible answers to routine questions
Presence at a crime scene or in a high-crime area
Associations with known criminals
Past criminal conduct
Methods for Establishing Probable
Cause: Flight

“[D]eliberately furtive actions and flight at the
approach of strangers or law officers are
strong indicia of mens rea [guilty mind], and
when coupled with specific knowledge on the
part of the officer relating the suspect to the
evidence of crime, they are proper factors to
be considered in the decision to make an
arrest.” Sibron v. New York, 392 U.S. 40, 6667 (1968).
Methods for Establishing Probable
Cause: Admissions


A person’s admission of criminal conduct to a law enforcement officer
provides probable cause to arrest. In Rawlings v. Kentucky, 448 U.S.
98 (1980), a law enforcement officer with a search warrant ordered the
defendant’s female companion (Cox) to empty the contents of her
purse. When she poured out a large quantity and variety of controlled
substances, she told the defendant to take what was his. The
defendant immediately claimed ownership of some of the controlled
substances.
The Court held that “[o]nce petitioner admitted ownership of the
sizable quantity of drugs found in Cox’s purse, the police clearly had
probable cause to place the petitioner under arrest.” 448 U.S. at 111.
Methods for Establishing Probable
Cause: False or Implausible Answers

United States v. Velasquez, 885 F.2d 1076 (3d Cir. 1989), held that the
following facts provided probable cause to arrest the defendant for interstate
smuggling of contraband:






(1) the defendant and her companion were on a long-distance trip from Miami, a
major drug importation point, to the New York area;
(2) they had given a law enforcement officer conflicting stories about the purpose of
their trip and their relationship;
(3) they appeared nervous when answering the officer’s questions;
(4) the defendant told the officer that the automobile she was driving belonged to her
“cousin,” but could not give her cousin’s name; and
(5) the automobile had a false floor in its trunk and appeared specially modified to
carry contraband in a secret compartment.
Facts two (2) and four (4) above appear to contain a false or implausible e answer. It
is important to note, however, that the Court only found probable cause to arrest in
light of other existing, “suspicious” facts, including ones related to physical evidence.
Information Obtained by Officers
through Informants

An informant is any person from whom a law
enforcement officer obtains information on
criminal activity. Informant information may
satisfy the probable cause requirement.

The Court established a two-prong test for determining
probable cause when the information in an affidavit was
either entirely or partially obtained from an informant in
two cases:


Aguilar v. Texas (1964)
Spinelli v. United States (1969)
Prong #1 of Aguilar—Spinelli

Prong #1 relates to the informant’s basis for
knowledge. The affidavit must show how the
informant knows his or her information by
demonstrating that:



the informant personally perceived the information given
to the officer; or
the informant’s information came from another source,
but there is good reason to believe it.
Without this, the officer can still satisfy the first
prong by obtaining as much detail as possible
from the informant and stating it in the affidavit.
Prong #2 of Aguilar—Spinelli

Prong #2 relates to the truthfulness of the
informant. The affidavit must describe
underlying circumstances from which the
magistrate may determine that the informant
was credible or that the informant’s
information was reliable.


Ordinary citizen (victim, witnesses) are usually
presumed reliable.
A criminal informant’s credibility must always be
established by a statement of underlying facts and
circumstances.
Corroboration

An officer may use corroboration to bolster
information that is insufficient to satisfy either
or both Aguilar prongs.

Corroboration means strengthening or confirming the
information supplied by the informant with supporting
information obtained by law enforcement officers.
Gates Test
Under the Gates totality-of-the-circumstances
test for whether informant testimony can
serve as a basis for probable cause, the task
of the issuing magistrate is to make a
practical, commonsense decision whether,
given all the circumstances set forth in the
affidavit, there is a fair probability that
contraband or evidence of crime will be found
in a particular place.
Reasonableness
Determining Reasonableness


The Fourth Amendment prohibits
unreasonable searches and seizures.
Determining the reasonableness of any
search involves a twofold inquiry:


One must consider whether the action was justified at
its inception
One must determine whether the search as actually
conducted was reasonably related in scope to the
circumstances which justified the interference in the first
place.