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Criminal Procedure

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. Numerous exceptions to the Warrant Requirement.

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Criminal Procedure

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  1. Criminal Procedure Class Two

  2. Why Warrants • S/S conducted without warrants are presumed unreasonable • Considered “cardinal principle” of 4th Amendment • BUT -- two exceptions may swallow the concept

  3. Numerous exceptions to the Warrant Requirement Growing trend to sever warrant clause and reasonableness clause Caveats

  4. 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

  5. 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

  6. Challenges • Defense burden • Motion to Suppress • Typically subject of pretrial hearing

  7. Magistrate Considers • Is information in affidavit sufficiently trustworthy? • If so, it is enough to constitute probable cause?

  8. Types of Information in Affidavit • Direct information • Hearsay

  9. 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

  10. 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

  11. 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

  12. Exercise • Officers come to STCL and corroborate everything except the existence of drugs

  13. Exercise • They go immediately to a magistrate with all these facts set out in an affidavit

  14. Exercise • SHOULD THE MAGISTRATE ISSUE?

  15. Exercise • If not, WHAT ELSE IS NEEDED?

  16. Old Aguilar-Spinelli Test • Veracity / Reliability • Basis of Knowledge • Corroboration could remedy defect in either prong if (1) independent (2) substantial

  17. 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

  18. Role of Reviewing Courts • Simply to ensure that magistrate had “substantial basis” to support conclusion that probable cause existed

  19. 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

  20. Probable Cause to Arrest • Test: Whether there is a fair probability to believe the person to be arrested has committed a crime

  21. 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

  22. Collective Knowledge • Officer who actually conducts search does not have to have personal knowledge of facts supporting probable cause

  23. Describing the Thing to be Seized • Fruit • Instrumentalities • Contraband • Mere Evidence

  24. Potential “Target” Locations • Type of Crime • Nature of items sought • Suspect’s opportunity for concealment • Normal inferences about where folks hide stuff

  25. Protections provided by warrant • control officer’s discretion • establish record before search • curtail “blank check”

  26. Executing Warrants

  27. 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

  28. 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

  29. 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

  30. Duration & Scope • Key: reasonableness • General principle: When object specified in search warrant has been recovered, the search is over.

  31. Civilians • Help from the unwilling • Officer “ride along” programs

  32. The Magistrate • What is means to be neutral • Training • “Justification” of decision

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