CHAPTER 3 NOTES

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    Chapter III: Full Searches of People and Places (Pages 139-234)

 àThe 4^th Amendment was drafted in part to protect citizens against the British practice of using “General Warrants”

àA general warrant was a broad grant of authority from the king of England or his representatives to search homes or businesses

àOne remedy of this is the specificity that is required in warrants detailing the who, what, and where is to be searched/seized.

àBefore the U.S. Constitution and the Bill of Rights were ratified, many state constitutions outlawed the issuance of general warrants

            àSee Page 145

 John Entick v Nathan Carrington (1765) 95 Eng. Rep. 807

àOld English civil case involving the issuance of a general warrant

àJohn Entick, Plaintiff, published pamphlets critical of the government, which Lord Halifax, a minister of the government, deemed to be libelous

àHalifax issued a general warrant authorizing the search for Entick (no specific place was listed) and to seize him and his papers (no specific papers were listed)

àThe warrant was executed by his subordinates and seized a large number of Entick’s papers, spending 4 hours inside Entick’s home

àEntick brought a tort suit against one of the subordinates, Carrington, arguing that the warrant was unlawful

àIf the warrant was authorized by the law, then Carrington and his cohorts have a valid legal defense

àIf the warrant is found to be beyond the scope of law, then Carrington and company are liable for an improper search

èThe appeals court ruled that such a search was unlawful, stating: “There is no law in this country to justify the Defendants in what they have done; if there was, it would all the comforts of society; for papers are often the dearest property a man can have”

àThe justices on appeal cannot believe that such a practice has gone on for so long; they state that, “It must have been the guilt or poverty of [those named in such warrants] that deterred them [from bringing such a tort action]”

Wolf v Colorado (1949)

àIncorporation of the 4^th Amendment to the states

àNote: Because the 4^th Amendment is incorporated (applicable in each state), it stands as a baseline of protection

àStates may provide more protection for its citizens against unreasonable searches and seizures but cannot provide less protection than the 4^th Amendment

àMany states have constitutional language identical to the 4^th Amendment but their state courts have interpreted it differently from one another and the federal government

èProbable Cause

àProbable cause is the level of suspicion required for the issuance of a search or arrest warrant

àEven without a warrant, probable cause is required to make any arrest

àMost of the time, searches and seizures without a warrant require probable cause, but not always

àThere many different variations in the definitions of probable cause

            àThe authors list 4 elements that tend to capture this variation:

1)                  Reasonable to whom

a.       Often the language of the definition includes comparing the action at issue against the action taken by a “reasonably prudent or cautious” person

b.      Some set a police officer as the model, with his/her specialized expertise

2)                  Strength of Inference

a.       How strong of a link must there be between facts and conclusion that criminal activity is occurring?

                                                                                                   i.      A “probability of criminal activity”

                                                                                                 ii.      Facts are sufficient “to believe an offense has been committed”

                                                                                                iii.      “Believe or consciously entertain a strong suspicion that the person is guilty”

3)                  Comparison to other standards

a.       “More than mere suspicion or possibility but less than certainty”

4)                  Quality of Information

a.       Some require that the probable cause be based on evidence that is reliable, trustworthy, or credible

b.      Note the chart on page 150

Virgil Brinegar v U.S. (1949) 338 U.S. 160

àIn 1949, Oklahoma was a “dry” state

àMalsed, an investigator of the Alcohol Tax Unit, and Creehan, an investigator, were parked on the side of a highway, near the Missouri-Oklahoma border

àPetitioner, Brinegar, drove past the two officers and Malsed recognized him

àMalsed had arrested Petitioner five months earlier for illegally transporting liquor and had seen him loading liquor into car or truck twice during the previous 6 months

àPetitioner also had a reputation for hauling liquor into Oklahoma

àThe officers testified that the car “appeared to be ‘heavily loaded and weighted down with something’”

àThe investigators chased Petitioner who was increasing his speed in an effort to flee

àAfter being forced off the road, the investigators searched the car and found 13 cases of liquor

àPetitioner motion to suppress the evidence due to a lack of probable cause, was denied

àThe Supreme Court compared this case with their prior ruling in Carroll v U.S. (1925)

àIn Carroll, the country was under Prohibition from the 18^th Amendment

àThree federal prohibition agents stopped and searched Defendant’s car between Detroit and Grand Rapids, Michigan on suspicion of transporting liquor

àThe agents knew the Defendants as liquor runners after nearly arresting them months earlier in a sting operation where the agents went undercover posing as potential purchasers

àPresumably the Defendants figured out that the buyers were undercover agents, so the deal was never completed

àBut the agents noted the make and license number of the car that the Defendants came to the meetings in

àThe agents recognized the car when it passed them months after the undercover operation and pulled the Defendants over, discovering the liquor inside

àThe court held that the information held by the officers and the fact that Detroit was a major center for the illegal importation of liquor constituted probable cause for the search

èThe facts in the case at bar are similar:

1)                  The investigators recognized the driver and his car from personal observation and contact stemming from the Defendant’s recent illicit liquor running

2)                  Defendant was pulled over on a highway in a direction leaving a known liquor source toward an illegal market

èThere are some differences

1)                  The entire U.S. was dry in Carroll, so the manufacture, transportation, importation, and sale of liquor was illegal

2)                  The state of Oklahoma was dry in the case at bar, so only the importation of the liquor was illegal

a.       Court labels this difference “insubstantial”

àThe court relies on Malsed’s personal knowledge and observation of Petitioner’s liquor transportation, in finding probable cause

à”The proof therefore concerning the source of supply, the place of probable destination and illegal market, and hence the probability that [Petitioner] was using the highway for the forbidden transportation, was certainly no less strong than the showing in these respects in the Carroll case”

èThe important part of the case, however, is the court’s definition of Probable Cause:

à”Probable cause exists where "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" an offense has been or is being committed”

èSources of Information for Probable Cause

àConfidential Informants

àIn establishing probable cause for a warrant, sometimes officers rely on tips given by confidential informants

àMuch like hearsay in the rules of evidence, confidential informants are often not available for further questioning in court

àTherefore, the Supreme Court has articulated specialized rules to judge the reliability of the information given by such informants

State v Timothy Barton (1991) 594 A.2d 917

àDefendant, Barton, was charged with possession of over 50 lbs of marijuana

àOfficers obtained a search and seizure warrant on the basis of information provided by a confidential informant

àThey executed the warrant that day and found 52 pounds of marijuana in Defendant’s apartment

àThe officers waited for Defendant in his home and arrested him when he returned home

àBarton successfully moved to suppress the evidence obtained, with the trial court citing the absence of “basis of knowledge” on the warrant application

àThe trial court followed its decision in State v Kimbro (1985) which applied what is called the Aguilar-Spinelli Test in determining whether the informant’s information established probable cause:

èAguilar-Spinelli Test (No Longer Law)

1)                  Veracity +

a.       Prior Track Record of the Informant

                                                                                                                           i.      How often has he been used?

                                                                                                                         ii.      How often was he correct on his information?

b.      Character of Informant

c.       Was the declaration against the interest of the informant?

                                                                                                                           i.      i.e. Stating that he buys drugs from the suspect

d.      Corroboration

                                                                                                                           i.      Officer’s investigation corroborates the information given or establishes the informant as being reliable

2)                  Basis of Knowledge

a.       Observed the evidence at issue

àA magistrate should not even consider it unless both are met.

àJust because someone is a trustworthy person does NOT validate the warrant

àThe trial court held that the application did not adequately set out the informant’s basis of knowledge

àOn appeal, the state urged the court to overrule its holding in Kimbro, and instead follow the test set out in the Supreme Court’s decision in Illinois v Gates (1983)

èIllinois v Gates (1983)

            àAnonymous note sent to Police detailing the drug running of neighbor

            àLook at the totality of the circumstances in determining the warrant

                        à”Common Sense” approach

            àIssuing judge must be informed of:

1)                  Some of the underlying circumstances relied on by the informant in concluding that the facts are as he claims they are; and

2)                  Some of the underlying circumstances from which the officer seeking the warrant concluded:

a.       That the informant, whose identity need not be disclosed, was credible, or

b.      That the information was reliable

            àStrength of one prong can make up for a lack in the other.

à”Conversely, even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case.”

àThe court does not completely overrule Kimbro; rather they overrule the rigid analytical standards of review that Aguilar-Spinelli established in favor of a more fluid, totality of the circumstances test more akin to Gates

àThe court held that the search and seizure warrant was based on probable cause

State v Randall Utterback (1992) 485 N.W. 2d 760

àOfficers executed a search warrant on Defendant’s home and seized 1½ pounds of marijuana

àDefendant, Utterback, argues that the search warrant used to search his home and seize 1½ pounds of marijuana was invalid because the affidavit failed to establish probable cause

àThe affidavit failed to establish probable cause, because the veracity of the informant was never established

èThe affidavit contained the following information:

1)                  The informant was neither paid nor a habitual giver of reliable information

2)                  Informant gave a physical description of Defendant

3)                  Informant claimed that he had in the past six months bought drugs from Defendant

4)                  Informant claimed to have observed large quantities of drugs, as well as guns inside the home

5)                  Informant gave a description of the home that Defendant lived in along with his wife and child

àThe court articulated a few ways that the reliability of an informant may be established:

1)                  Informant had given reliable information in the past

a.       In this case, the informant had not previously given reliable information

2)                  Informant is a citizen informant

a.       A citizen informant is:

                                                                           i.      “a citizen who purports to be the victim of or to have been the witness of a crime who is motivated by good citizenship and acts openly in aid of law enforcement…[E]xperienced stool pigeons or persons criminally involved or disposed are not regarded as "citizen-informants" because they are generally motivated by something other than good citizenship.

b.      Citizen Informants are treated with a presumption of reliability

c.       Informant in this case was not a citizen informant

3)                  Informant made a statement against his/her penal interest

a.       The state argued that this established the informant’s reliability

b.      The informant claimed to have previously purchased drugs from Defendant, thus implicating himself in the car

c.       The court points out that under Nebraska law the act of purchasing drugs is not proscribed, rather it is the possession or use that is illegal

d.      Therefore, there is nothing in the affidavit that the informant could be prosecuted for; When he made a statement about purchasing, he did not make a statement against his penal interest

4)                  Officer’s independent investigation corroborates the information given or establishes the informant as being reliable

a.       Officers corroborated the claim that Defendant lived at the address given and that the Defendant met the informant’s description but no criminal claims were corroborated

èThe affidavit failed to establish the veracity and reliability of the informant; therefore the search warrant was invalid

àInformer’s Privilege

àIt allows the government to withhold the name of the confidential informant; in the interest of encouraging informants to give information

àAnonymous Sources

State v Kelli Joy Raveydts (2004) 691 N.W.2d 290

àQuestion decided by the court: “What amount of independent police corroboration is sufficient, when combined with information received from anonymous informants, to establish probable cause?”

èTwo anonymous tipster called into the police station on July 6^th, 2003

1)                  Caller 1

a.       Claimed that illegal drug was occurring in an apartment above him, belonging to someone named Kelli

b.      Gave the address of the apartment building

c.       Claimed there was a lot of traffic coming in and out of the apartment, at all hours of the night and day

d.      Claimed that Kelli would whistle down to pedestrians to signal them to come up to her apartment

e.       Claimed that he saw a woman leave the apartment with something small and plastic in her hand

f.        Provided license plate numbers of all the cars that had visited Kelli

2)                  Caller 2

a.       Called two hours after caller 1

b.      Claimed to have observed a lot of traffic coming to and from Kelli Joy Raveydt’s apartment

                                                                           i.      Provided her full name

c.       Recognized one of the visitors as a former, if not current, drug dealer

d.      License plate numbers were given

e.       Claimed that the smell of marijuana emanated from the apartment

                                                                           i.      He knew the smell from experience

àThe officer who took the call, checked the license plate numbers in public records

            àThree of the car owners had troubled criminal histories

            àTwo of the owners had prior drug violations

            àOne of the owners was known to be involved in large marijuana sales

àA warrant was issued based on the callers’ information and public records search performed by the officer

àNumerous items related to illegal drugs were found during the search

àDefendant moved to suppress the evidence, arguing that the police lacked the requisite probable cause to properly gain a warrant

            àMotion was granted

àOn appeal, the court used the “totality of the circumstances” test, set out in Gates, to inquire, “whether the information provided to the judge was sufficient for a “common sense” decision that there was a “fair probability” the evidence would be found on the person or at the place to be searched”

èTo find this “substantial basis” the court looks for two elements:

1)                  Explicit and detailed description of wrong doing

a.       Informants provided considerable detail of the wrong doing

2)                  Extent to which the tip is corroborated by the officer’s own investigation

a.       The officer checked the license plates to identify those who allegedly visited the apartment

b.      Performed no personal surveillance of the apartment

c.       Was this enough?

                                                                                                   i.      The court determines that because the license plates turned up people who were involved in the drug trade, corroborates the information given by the tipsters

d.      The court also felt that the two callers corroborated each other’s information

èDISSENT Justice Meierhenry

àHe feels that in fact the two informants do not corroborate one another and, in fact, it could have very well been the same person calling both times, so of course the information would be similar

àPoints out that in the case of Titus, the police had performed first-hand surveillance and observation of the apartment and had sent in an informant, to corroborate an anonymous tip, and the court stated they lacked the requisite probable cause because the information was not corroborated

àHow in the world, he argues, could this information be corroborated if the police did not even personally observe the premises

àRemember, that when determining the reliability of a known informant (confidential or named) the police are able to look at the reliability of his/her prior information and whether or not the statement was against the personal interest of the informer

àIn contrast, many of these same things are unavailable to anaonymous informants for obvious reasons: the police do not know who is speaking.

àTherefore, corroboration through police investigation becomes very important in establishing the reliability of the tip

àTwo cases to note concerning anonymous tips and reasonable suspicion

1)                  Alabama v White (1990)

a.       Anonymous tip to the police detailing where, who, what, and when a person would be transporting drugs

b.      The court felt that because some of the predictions came true, it would seem that the caller had intimate knowledge of the situation and thus grew in trustworthiness

c.       This established reasonable suspicion to stop the car driven by White

2)                  Florida v J.L (2000)

a.       Tipster gave very generic information to the officer

b.      The anonymous call concerning J. L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility

Warrants

àTwo cases concerning the general rule of warrants:

Trupianoà”It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable”

            à”Reasonable Use” Standard

Rabinowitzà”The test, said the Court, "is not whether it is reasonable to procure a search warrant, but whether the search was reasonable."

à”Rabinowitz has come to stand for the proposition, inter alia, that a warrantless search "incident to a lawful arrest" may generally extend to the area that is considered to be in the "possession" or under the "control" of the person arrested”

Exigent Circumstances

èA warrantless intrusion may be justified by:

àHot pursuit of a fleeing felon

àImminent destruction of evidence

àThe need to prevent a suspect's escape

àThe risk of danger to the Police or to other persons inside or outside the dwelling

Johnny Mann v State (2004) 161 S.W.3d 826

àPostal Inspector Webb in Arkansas is contacted by a California postal inspector about a suspicious package that was addressed to a Clark Nuss in Arkansas, with a return address from Crescent City, California

àWebb ran a drug-detection dog by the package, which resulted in the dog reacting to it, signifying the presence of ‘something’ inside the package

àA search warrant was executed on the package which contained 18 grams of Methamphetamine

àWebb contacted Arkansas state police to investigate the matter further

àThe officers discovered that appellant, Johnny Mann, lived at the address on the package; and that both appellant and Nuss (addressee) both had lived in Crescent City

àThe police decided to do a “controlled delivery” of the package

àOfficers conducted surveillance on the home from both foot and helicopter

àWebb drove his postal vehicle to the home and honked the horn for one its occupants to come out and get the package

àAppellant came to the vehicle and accepted the package and acknowledged that the packaged did in fact belong at that address

àThe police allowed 5-6 minutes to pass so that appellant could open the package before approaching the home

àThe officers entered the screened-in porch and announced their presence

àThe metal door into the home was open and one of the officers heard someone inside the residence running down the hallway

àTwo of the officers pursued appellant into the bathroom where they discovered him sitting on the toilet, fully clothed, having just flushed the toilet

            àTheir belief being that appellant had just flushed the drugs down the toilet

àAppellant was taken into custody and the drugs were recovered from the drain of the toilet

àAppellant filed a motion to suppress the evidence, arguing that the warrantless entry into the home by the police was violative of the 4^th Amendment

àMotion was dismissed on the grounds that exigent circumstances (The imminent destruction of evidence) justified the entry

àThe court felt that after announcing their presence, it was a reasonable conclusion by the police that Mann was attempting to destroy the drugs

àOn appeal, the court determined whether or not the state met its burden of proving that the warrantless entry of the officers was justified

àThe court held that the state did not meet its burden, so the trial court erred in concluding that the warrantless entry was reasonable

àThe state argued that the warrantless entry was based on the exigent circumstance that evidence could be destroyed

àThe court counters by saying that the police created this exigent circumstance by their strategy in this case

àThe officers had plenty of time and the requisite probable cause to gain a search warrant before going to the home and/or they surely could have observed the residence and sent someone to go and get a warrant

àThe court articulates a test to determine whether the exigency was created by the police:

à”Whether, regardless of good faith, it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstance relied upon to justify a warrantless entry”

àThe court determines that it was reasonably foreseeable that Mann would attempt to destroy the drugs

àEntry was unreasonable

Do exigent circumstances allow for a warrantless entry when the offense is minor?

àWelsh v Wisconsin (1984)

àMan drove his car off the road and fled the scene and car

àPolice gained access to the house (consent of daughter) and arrested him for drunk driving

à”Application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense has been committed”

àWarrants must be issued by a “neutral and detached” magistrate

State Ex Rel. Eustace Brown v Jerry Dietrick (1994) 444 S.E.2d 47

àAppellate court considers whether the lower court was correct in holding that the search warrant issued by the magistrate was void because she was married to the chief of police and one of his officers procured the warrant.

            àCase remanded

àThe lower court based its decision on two canons of the Judicial Code of Ethics:

1)                  3C(1)

a.       Requires the recusal of a judge if his impartiality might reasonably be questioned

2)                  3C(1)(d)

a.       Disqualification of a judge where a judge’s spouse has an interest in the proceeding

àThe court discusses a few cases where the Supreme Court has voided a warrant because the magistrate was too close to the activities of law enforcement

            àLo-Ji Sales v New York (1979)

àTown Justice signed warrant authorizing the seizure of two movies deemed to be obscene.

èHe also accompanied the Police on their trip to the Adult Store, authorizing them to seize more and more things that were not put on the warrant list.

à2 page warrant ballooned to 16 pages

àMagistrate becoming a de facto Police officer is troubling the court

àSeemed more like a general warrant of England, which violates the 4^th Amendment

àThe Appellate Court dismisses the notion that simply because the chief of police and the issuing magistrate were married, there is a per se partiality on the part of the magistrate

àThe Appellate Court holds that because the argument for voiding the warrant rested entirely on the marriage, the trial court made a mistake

àHowever, the Appellate Court remanded the case allowing the trial court to conduct another hearing on the manner if additional evidence of partiality can be shown

àThe language of the 4^th Amendment requires warrants “particularly [describe] the place to be searched, and the persons or things to be seized”

Bell v Clapp (1813) 10 Johns. 263

àCase justifying the forced entry of police, armed with an explicit search warrant, into a home after being denied entry to execute the warrant

àThe court upholds the entry because if searchees were able to deny the police entry into their homes in the face of a search warrant, then search warrants would lose a lot of their power

Grummon v Raymond (1814) 1 Conn. 40

àCourt voids a warrant issued because it was way too broad in who, what, and where was being searched

àIt was a warrant to “search all suspected places, stores, shops, and barns in Wilton”

àBecause the warrant was voided, the justice who signed the warrant and the officer who executed it, were both liable in this action

àThe officer was liable because on its face, the warrant appeared to be illegal

èA majority of states require written warrants, as well as written affidavits

àSome states allow warrants to be issued over the phone, provided the officer is under oath and what is said by the officer is somehow recorded whether be electronically or in writing by a certified shorthand reporter

Execution of Warrants

Knock and Announce

àFor the most part, courts and legislatures require that officers executing a search warrant at a home knock on the door and identify themselves as police, so that the occupants of the home have the opportunity to let the officers in, communicate with the officers over what is going on, etc.

àThe overarching consideration being that it is very frightening for the police simply to bust down your door and start searching.

èWhy have the Knock and Announce rule

1)                  Avoid Damage to Property by giving people opportunity to let you in.

2)                  Respect people’s privacy inside their homes

3)                  Avoid excessive violence

Why get rid of Knock and Announce

1)                  Drug Culture is different than other crimes

a.       Evidence can be destroyed quickly

b.      People involved in drug dealing often have weapons

àThe exceptions to the knock and announce rule are very similar to the Exigent Circumstances exception to the warrant requirement:

1)                  Threat of physical harm to the officers

2)                  Pursuit of a recently escaped arrestee

3)                  Officers have reason to believe that evidence would likely be destroyed if they announce their presence and advanced notice is given

èAfter entrance into the home has been refused by the occupant, the officers may enter the premises by force

èIf after knocking and announcing no one responds, the officers may then enter the home by force after waiting a “reasonable time” for the occupants to respond

            àWhat is considered reasonable?

àDepends on the nature of the evidence involved (drugs would allow for a very short wait), the size of the dwelling, the time of day, and other factors

State v Tanya Marie Anyan (2004) 104 P.3d 511

àCase involving the execution of a search warrant on a home that allegedly housed a Meth Lab.

àOfficers failed to knock and announce their presence

àOfficer Nichols was investigating the residence and its occupants

àNichols requested the help of Bardwell, team leader of the local SWAT team, in executing the warrant

àBardwell then in turn requested the help of 15 SWAT team members

àOn the night of the warrant execution, the officers conducted surveillance on the home until executing their “no-knock” raid on the home at 3:00AM

àSeveral occupants of the home were charged with multiple drug offenses

àThe Defendants each filed motions to suppress the evidence based in part on the officer’s failure to knock and announce

            àMotions were denied

àBecause Montana did not have case law or statutes addressing the knock and announce rule, the court looks to Supreme Court cases and statutes of other states to determine this case

àWilson v Arkansas (1995)

àCreation of the “Knock and Announce rule”

àCourt found the knock and announce rule implicit in the common law notion of a man’s house as “his castle of defense and asylum”

à”But before he breaks it [the door], he ought to signify the cause of his coming, and to make request to open doors . . . , for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had notice, it is to be presumed that he would obey it”

àCourt acknowledged that in the case of drugs, there may be a need to not announce their entrance so as not allow the person the ability to hide or flush the drugs down the toilet [as Defendant was doing in Wilson]

à Richards v Wisconsin (1997)

            àExploration of the exceptions to the knock and announce rule

àCocaine and cash were found after kicking in the door

            àKnocked but did not announce that they were Police officers

àWisconsin Supreme Court had ruled that Police officers are never required to knock and announce when executing a search warrant in a felony drug investigation

            àState v Stevens Wisconsin Supreme Court (1994)

à”When the Police have a search warrant, supported by probable cause, to search a residence for evidence of delivery of drugs or evidence of possession with intent to deliver drugs (evidence of drug dealing), they necessarily have reasonable cause to believe exigent circumstances exist.  Thus, in all such searches the Police are justified in dispensing with the rule of announcement and making a no-knock entry”

àThe Supreme Court decided whether a case by case determination was needed or if there could be a blanket exception like in Stevens

à”The fact that felony drug investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the Police decision not to knock-and-announce in a particular case. Instead, in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justify dispensing with the knock-and-announce requirement”

àThe court held:

à”Although we reject the Wisconsin court's blanket exception to the knock-and-announce requirement, we conclude that the officers' no-knock entry into Richards' hotel room did not violate the Fourth Amendment…the circumstances in this case show that the officers had a reasonable suspicion that Richards might destroy evidence if given further opportunity to do so”

àThe court in Anyan summarized the holding of Richards as saying: “to justify a no-knock entry, police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit effective investigation of the crime by, for example, allowing the destruction of evidence”

èThis court held that the no-knock and announce execution of the warrant was violative of the state and federal constitutional rights of the occupants of the home

àThe court determined that the government did not carry its burden in proving that the officers had a reasonable belief that loss or destruction evidence was imminent

àAdditionally, the fact that the officers had planned a no-knock and announce entry into the home prior to applying for the warrant also weighed against the government’s case:

àThe court conceded that unforeseen/unexpected exigent circumstances may allow for a no-knock and announce entry into the premises

àBut, the decision to make a no-knock and announce entry should be made by the neutral and detached magistrate issuing the warrant

àIf the officers would like to perform such an entry prior to gaining the warrant, they need to include their reasons in the warrant application

Anticipatory Warrants

à”A warrant based upon an affidavit showing probable cause that at some future time, certain evidence of crime will be located at a specific place”

U.S. v Jeffrey Grubbs (2006) 547 U.S. 90

àFacts are very similar to those of Johnny Mann v State, which was excerpted on pg. 178

àGrubbs ordered a videotape depicting child pornography from a website operated by an undercover postal inspector

àThe postal service arranged for a controlled delivery of the package to Grubbs’ residence

àA postal inspector issued a search warrant to the magistrate with an affidavit stating that the warrant will not be executed unless and until the package has been received by a person and is taken into Grubbs’ residence

            àThis was the “Triggering Condition” for the execution of the warrant

àAdditionally, the affidavit referred to two attachments which described the Grubbs’ residence and the items officers would seize

àThe two attachments were incorporated into the warrant but the body of the affidavit was not

ài.e. The information stating, “that the warrant will not be executed unless and until the package has been received by a person and is taken into Grubbs’ residence” was not included on the warrant

àThe warrant was issued and executed after Grubbs’ wife signed for the package and took it inside the home

àThe officers detained Grubbs a few minutes later outside his home and searched the home

àGrubbs was provided with the warrant 30 minutes after the search began

àHe consented to interrogation by the postal inspector and admitted to purchasing the tape

àAfter being indicted, Grubbs moved to suppress the evidence seized, arguing that the warrant was invalid because it failed to list the triggering condition

            àMotion was denied

àThe Supreme Court also disagreed with Grubbs’ claim that the warrant was invalid

àScalia writes for the majority, stating that anticipatory warrants are no different from ordinary warrants in that they both require a determination of probable cause which is a “prediction that the item will still be there when the warrant is executed”

àScalia states that for an anticipatory warrant to comply with the 4^th Amendment, two prerequisites of probability must be satisfied:

1)                  If the triggering condition occurs, there is a fair probability that contraband or evidence of a crime will be found in a particular place; and

a.       In this case, the delivery of the tape would surely establish probable cause for the search

2)                  There is probable cause to believe that the triggering condition will occur

a.       The affidavit established probable cause to believe that the tape would be delivered

èThe supporting affidavit must provide sufficient information to the magistrate to assess both prerequisites

àFinally, Scalia points out that the 4^th Amendment sets out two things that must be particularly described in the warrant:

1)                  The place to be searched; and

2)                  The person or things to be seized

èDescription of the triggering condition is not listed

àThe warrant is constitutional

èDISSENT Souter

àSouter argues that not requiring a notation of a “starting date” (or triggering condition, if you like) on a warrant removes a check on the power of the police

àHe feels that such a lack of specificity could cause a police officer to not respect the limits of authorization or if the warrant is not executed by the applying officer and the warrant does not list the triggering condition, the search might be held to be unreasonable if the officer unknowingly executes it before the triggering condition

Administrative Searches

Roland Camara v Municipal Court of San Francisco (1967) 387 U.S. 523

àInspector for the Division of Housing Inspection of the San Francisco Department of Public Health was making a routine annual inspection of an apartment building

àDuring this inspection, the building’s manager informed him that the lessee of the ground floor was using the rear of his leasehold as his residence, in violation of the building’s occupancy permit

àThe inspector confronted appellant, the ground floor lessee, and demanded that he be allowed to inspect the premises

àAppellant continually refused to allow the inspection unless the inspector had a search warrant

àAfter continually refusing the inspector, appellant was charged with refusing to permit a lawful inspection, a misdemeanor

àThe Supreme Court granted cert

àThe court began its analysis by reexamining its decision in Frank v Maryland (1959)

àAfter looking at Frank, the court overruled its holding of allowing warrantless administrative searches

àThree rationales given by the court in Frank

1)                  Administrative searches lie at the periphery of the protections given by the 4^th Amendment

a.       This court disagrees with this analysis

b.      Administrative searches involve similar privacy interests that criminal ones do

c.       “It is surely anomalous to say that the individual [is fully protected] by the 4^th Amendment only when the individual is suspected of criminal behavior”

2)                   Such searches are safeguarded by ordinance regulation and the constitutional standard of reasonableness

a.       The person subject to the administrative search has no way of knowing the extent of the search, the lawful limits of the search, and whether the inspector is acting under proper authority without a warrant

3)                  The requirement of warrants could not function effectively in this field

àThe court holds that warrants need not be required unless the person being searched requests one

àTo gain the warrant, the officer need only show the reasonableness of the search to the magistrate, not probable cause which is required for criminal warrants

àThe court holds that appellant had a constitutional right to insist that the inspector return with a warrant and so he cannot be convicted for refusing to allow the search

èDISSENT Clark

àJustice Clark argues that there is no need for warrants, he sees two consequences of this decision:

1)                  Invalidation of numerous city ordinances that do not require warrants, thereby risking the health, welfare, and safety of citizens of these cities

2)                  Cheapening the value and meaning of warrants and the magistrates that issue them

a.       Cities will be forced to print up such warrants en masse or else they will be buried in warrant applications

Consensual Searches

Schneckloth v Bustamonte (1973) 412 U.S. 218

àCar was stopped because of taillight being out

àDriver did not have his license, so the officer asked if he could search the car

            àDriver said, “Sure, go ahead”

àStolen checks were found and connected to one of the passengers, Bustamonte

àThe officer did not have probable cause, so there were no grounds for a car search

àThe lower court looked to Johnson v Zerbst (1938) viewing “consent” as a “waiver” of a person’s 4th and 14th Amendment rights

è”to establish such a 'waiver' the State must demonstrate 'an intentional relinquishment or abandonment of a known right or privilege”

àIntentional Relinquishment == Voluntary (Knowing) Relinquishment

èThis case was a fair trial case dealing with Right to Counsel

è”The precise question in this case, then, is what must the prosecution prove to demonstrate that a consent was 'voluntarily' given”

àConsent must be voluntary, therefore it cannot be coerced

èDefendant argued that they didn’t know that they could say “no”

èBurden of proof is on the prosecution to show voluntary consent validating the search

àConsent to a search has its value

àStewart looks to confessions cases under the 14th Amendment

            èLook at the totality of the circumstances

                        èEverything is relevant & nothing is determinative

èDefendant argued that because he did not now that he could say no, caused the consent to be involuntary

èWhy not have “Miranda-esque” warnings of the right to say “no”, prior to asking for consent to search?

è”In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence”

àMajority holds that a totality of the circumstances test determines whether someone truly consented to the search

èMarshall’s Dissent

            àHe argues that in fact the court misstates the argument

            èThis is not about coercion but rather it is about consent

è”The standard for measuring the scope of a suspect’s consent under the 4^th Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?”  Florida v Jimeno, 500 U.S. 248 (1991)

àA person who has consented to a search can withdraw that consent (or restrict its scope) at any time before the completion of the search

Third Party Consent

            àU.S. v Matlock (1974)

à”the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared”

àThere is an assumption of the risk when you decide to live with someone

State v Reinaldo Maristany (1993) 627 A.2d 1066

àTwo people were pulled over by the police for failing to keep right

àThe driver, Gerald Green, failed to produce his license and registration for the car

            àThe officer asked him to step out of the car

àThe two passengers were questioned about what they were doing and where they were going

            àThey gave different answers, which aroused the officer’s suspicions

àOne of the officers asked Green’s consent to search the car and trunk

àHe signed a consent to search form which authorized the officer to search the car, trunk, and the bags in the trunk

            àIn a blue canvas bag the officer found 3 kilograms of Cocaine

àAfter the passengers were arrested, Green claimed that the bag belonged to appellant, Maristany

àAt appellant’s suppression hearing, his counsel argued that because Green did not own the bag, his consent to the search of its contents was invalid

àThe state countered by arguing that there was no indication given to the officer prior to the search that appellant owned the bag or that Green did not have the authority to give consent to search it

àThe state must prove that the consent given was voluntary and that the party understood his/her right to refuse consent to justify the search on the basis of consent

àIn this case, the question is whether or not the searching officer had a reasonable basis for believing that Green had the authority to consent to a search of the blue canvas bag

àThe court points out that “by possessing the keys to the car and truck, Green displayed sufficient control over all areas of the vehicle to enable him to consent to its search”

àAlso, Green appeared to have extensive knowledge of the contents of the trunk

àFinally, Green nor Maristany gave the officer any indication that Green did not have authority over the blue bag

àTherefore, the search was valid

èDISSENT Justice Pollock

àPollock articulates a different test than what the majority used: “Would the facts available to the officer at the moment warrant a [person] of reasonable caution in the belief that the consenting party had the authority to consent to a search of luggage in the trunk of the car?”

àIn Pollock’s mind, under this test the officer would have had a doubt and the consent would not have been valid