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 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