1. Search and Seizure

 

1. Regulated by the 4^th Protection against unreasonable searches and seizures. Need for probable cause.

 

Search: Government intrusion on a privacy interest

Seizure:  Government intrusion on a possessory interest.

 

1. Requirement of a government trespass:  Olmstead v. United States, 277 US 438 (1928) [former law]. Overruled by Katz v. United States, 389 US 347 (1967) – Reasonable expectation of privacy.

 

1. 4^th Amendment protects citizens in their homes, persons, papers

and effects and requires STATE action.  Private action is not

protected by the 4^th Amendment.

 

Search Warrants

 

Basic rules set forth in the 4^th Amendment

• based on probable cause
• supported by oath or affirmation
• particularly describe the place to be searched and the items or persons to be seized.

 

Although the warrant permits the search, the execution of the warrant must be reasonably likely as to find the subject evidence.

 

Categories of items that may be seized:

 

• Fruit of crime
• Instrumentality of crime
• Contraband
• Mere Evidence

 

Must be a connection between the item seized and the crime.

 

In evaluating the rule of particularity, be mindful of the information contained in the warrant.  Goal is knowledge.  Make sure the correct premises are searched and the correct evidence is seized.

 

How particular should the warrant be?  Steele v. United States, 267 US 498 (1925).

 

Probable Cause for a Warrant comes from two sources:

 

• Police investigation
• Informants

 

Where information comes from an informant, we must have a way of evaluating the information.

 

• Aguilar-Spinelli Rule
• Totality of the Circumstances Rule Illinois Gates

 

Aguilar-Spinelli – information must pass a two prong test:

 

• Credibility of the informant
• Trustworthiness of the information

 

Credibility of Informant – why should we believe the informant?  How do we show he is reliable?

 

• Independent police investigation to corroborate
• History of informant
• Nature of the informant

Trustworthiness of the Information

 

• Police investigation
• Information is so detailed as to be self verifying

 

Aguilar-Spinelli is the rule in NY

Totality of the Circumstances is the rule in Federal Court.

 

Exceptions to the Warrant Rule

 

Consent – where an owner or custodian of the property agrees to the search, a warrant is not needed.  Consent must be knowing and voluntary.  Must come from someone with authority to consent.

 

Multiple owners – all present must consent.  Police are entitled to rely on the consent of those present, but if those present do not consent, police cannot then come back later and ask someone who was not there first on he belief that that second person is a softer touch.

 

Search Incident to Arrest – a police officer who has lawfully arrested someone may search that individual incident to that arrest and seize any evidence found on him or in his grabbable area.

Exigent Circumstances – Where an emergency occurs and there is a need for immediate action, a warrant will not be required.

 

Exigent circumstances have been found in three situations:

 

• hot pursuit of a felon
• Immediate threat to safety of officer or third party
• Immediate threat of harm or destruction of evidence

 

The exception is allowed as long as the exigency exists.

 

Inventory Searches – when police take custody of property for

other than a law enforcement purpose they may inventory the contents of the car and seize any contraband or evidence they come across.  The inventory search cannot be motivated by a desire to find evidence.

 

Plain View — Items observed in plain view may be seized

                      without a warrant.

 

• police must be lawfully present
• police must have lawful access to the item
• the item’s illegal nature must be readily apparent

 

Terry Stop and Frisk – Allows a pat down of a suspect without a warrant if the officer has a reasonable fear that criminal activity is present and the defendant is armed.  Limited to a pat down for weapons.

 

Automobile exception – where police have probable cause to believe that the vehicle or any of its occupants have committed a crime, the police may search vehicle without a warrant. In such a case, they may not only search the vehicle, but also any passenger in the vehicle as well as closed containers.

 

Where the only suspicion the police have is that the driver committed a traffic infraction they may give a warning or summons and let the driver go on his way.

 

The Exclusionary Rule prohibits the use of illegally obtained evidence to be introduced at trial. Weeks v. United States.  This was the rule for the federal courts.  Mapp v. Ohio, 367 US 643 (1967) made the Weeks rule applicable to the states.

 

However, be mindful that excluded evidence may still be used for impeachment purposes, that is, mot to show the defendant is guilty, but to show that the witness is not a credible witness.

 

 

Constitutional Issues in Police Surveillance

 

1. Old Law: Olmstead v. United States and the requirement of a trespass
2. New Law: Katz v. United States Supreme Court established the rule of reasonable expectation of privacy
3. Three part test in evaluating constitutional protection:

 

Is the matter exposed to the public?  United States v. McIver

 

Was the activity or information voluntary disclosed to a third party?  Hoffa v. United States

 

Does the activity take place in one’s home?  Payton v. New York

 

2. Privacy Considerations With Technologically Enhanced Surveillance

 

1. Use of such devices is not the issue. The issue is using the device to penetrate the sanctity of one’s home or other place where one would enjoy a reasonable expectation of privacy.

 

Kyllo v. United States (thermal imaging devices)

Dow Chemical v. United States (Use of aerial photography)

 

1. Electonic Monitoring Inside the Home

 

4^th Amendment considerations arise when police use

monitoring devices to penetrate the boundaries of the

home.  See  Karo v. United States  Distinguish from those

devices that tell what is going on inside the home and those

devices that merely track movements in public

 

1. Video Surveillance

 

No warrant is necessary to do surveillance in public.  What is

exposed to public is public.  Distinguish from videotaping those

events that occur inside one’s home.  Analysis is similar to

Hoffa.  Where there is the consent of one of the parties, a

warrant is not needed. United States v. Lee

 

1. Detection Devices

 

United States v. Place No 4^th Amendment privacy interest in illegally possessed property.

 

Distinguish those devices that detect innocent as well as illegal activity, ie, magnotometers, X Rays; and

those that only detect illegal activity, ie, drug sniffing dogs and chemical tests.  Drug Sniffing dogs do not raise 4^th Amendment issues since one cannot claim constitutional protection in illegally possessed material.

 

1. Wiretaps

 

Wiretap Act protects three kinds of protected communications:

 

Wire Communications

Oral Communications

Electronic Communications

 

Interception:  The acquisition of the content of a protected communication during the transmission of the  communication by any device sued to accomplish the acquisition

 

Wiretap Order may only be sought for a communication facility that is used in interstate or international commerce.  There is no requirement that the actual communication be an interstate or international communication.

 

Distinguish an oral communication held in a public place.  There is no expectation of privacy in such a conversation

 

1. Procedural Requirements for Intercepting a Protected

Communication

 

The Omnibus Crime Control Act sets forth 8

requirements:

 

Necessity – Wiretap order may only be sought when other traditional methods of investigation have failed or will likely prove fruitless

 

Authorization – Must be authorized by a high

ranking Justice Department official or his designee

 

Probable Cause – Wiretap order is a type of search

warrant and therefore must be based on probable

cause.  Cause must state that target is committing

one of the designated crimes, that the targeted

facility is being used in connection with that crime,

and interception will likely produce relevant

evidence

 

Duration – Wiretap is only authorized for 30 days

at a time.  After that must request an extension

 

Access and Assistance – Wiretap includes

authority to enter surreptitiously to install and

maintain equipment.  Separate authority is not

needed.

 

Minimization —  Check on general searches.

Minimize interception to just relevant material.  Turn off during irrelevant communications

 

1. Exceptions to the Wiretap Rule

 

Exigent Circumstances that risk:  treason; conspiratory communications that threaten the national security; and conspiratory communications that are part of

organized crime.

 

1. Communications not Subject to the Wiretap Act

 

1. Conversations naturally overheard
2. Target lacks a justifiable expectation of privacy in the conversation
3. Interception is conducted with the consent of one of the parties

 

1. Stored Communications

 

1. Stored Communications Act – the longer a communication is stored, the less protection it has

 

Up to 180 days – May be obtained through a standard search warrant

 

After 180 days – May be obtained through an administrative subpoena, grand jury subpoena or court order upon showing that the information sought is relevant to a criminal investigation

 

3. Statements

 

Constitutional Protection of statements is found in the 4^th, 5^th, 6^th and 14^th Amendments

 

 

1. Voluntariness — before considering constitutional issues, a statement must be voluntary. Any involuntary statement will be barred from use against the defendant for any purpose.

 

A voluntary statement is one that is not coerced.

 

1. The Exclusionary Rule

 

Fruit of the Poisoned Tree – Wong Sun v. United States

 

Look to:  The time between the violation and the

confession.

 

Intervening attenuating circumstances

 

Flagrancy of the violation

 

1. The Miranda Rule – Constitution mandates advising a defendant of his constitutional rights before taking a statement that the police wish to use against him.

 

The right to remain silent

If you give up the right to remain silent, anything you say

will be used against you

The right to an attorney

If you cannot afford an attorney, one will be provided to

you at no cost.

 

Rights must be given in total.  Any deficiency in the rights will render the advisement void.

 

May waive the Miranda rights, but waiver must be knowing and voluntary.  Once invoked, though, they may not be waived without counsel present if the right to counsel has attached.

 

Need for Custodial Interrogation

 

Custody:  Is the defendant’s freedom of movement compromised

 

Interrogation: Any act on the part of the police to elicit an incriminating response from the defendant.

 

Public Safety Exception to the Miranda Rule – Quarles v. New  

York

 

 

Use of an Inadmissible Confession

 

Harris v. United States – a confession taken in violation of

Miranda may be used to cross examine a defendant for purposes

of impeachment.

 

Mincey v. Arizona – an involuntary confession may not be used for any purpose

 

1. The Sixth Amendment

 

1. Right to Counsel. Once right to counsel has attached, questioning may not take place in the absence of counsel.  Counsel attaches when the criminal action commences, that is, with the filing of an accusatory instrument.

 

2. Should the defendant desire to speak to police after the right to counsel has attached, questioning may not begin until the defendant has had a chance to consult with counsel.

 

3. Massiah v. United States, 377 US 201 (1964)

 

4. Distinguish Messiah from the situation where the defendant’s right to counsel has not yet attached. In that case, the government may use a non-Miranda statement made to an informant.

 

5. Accomplice Confessions – Where the government seeks to use the statement of one defendant against a co-defendant, we must consider two issues:

 

1. The Miranda Rule – only the person aggrieved may raise a Miranda issue.
2. 6^th Amendment right of confrontation – Does use of the statement deny the defendant the opportunity to confront the witness making the statement.

 

 

 

 

 

CITATION

 

 

 

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The post 1. Search and Seizure a. Regulated by the 4th Amendment. Protection against unreasonable searches and seizures. Need for probable cause. Search: Government intrusion on a privacy interest Seizure: Government intrusion on a possessory interest. b. Requirement of a government trespass: Olmstead v. United States, 277 US 438 (1928) [former law]. Overruled by Katz v. United States, 389 US 347 (1967) – Reasonable expectation of privacy. c. 4th Amendment protects citizens in their homes, persons, papers and effects and requires STATE action. Private action is not protected by the 4th Amendment. appeared first on Apax Researchers.