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Chapter 15Chapter 15

Search WarrantsSearch Warrants

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Search WarrantsSearch Warrants Search warrants fall under the 4Search warrants fall under the 4thth

AmendmentAmendment The police must have “probable cause”The police must have “probable cause” Must sign an “affidavit” to that effectMust sign an “affidavit” to that effect Must have a judge approve the warrantMust have a judge approve the warrant There are time limits on search There are time limits on search

warrantswarrants When evidence is obtained without a When evidence is obtained without a

search warrant, the burden is upon the search warrant, the burden is upon the government to show that the evidence government to show that the evidence was obtained under one of the was obtained under one of the “established and well delineated “established and well delineated exceptions”exceptions”

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Types of Search WarrantsTypes of Search Warrants

““Daytime” vs. “nighttime” search Daytime” vs. “nighttime” search warrantswarrants

No-Knock or unannounced entriesNo-Knock or unannounced entries Anticipatory search warrantsAnticipatory search warrants ““Sneak and peek” entry warrantsSneak and peek” entry warrants Searches of computers and other Searches of computers and other

documentary evidencedocumentary evidence

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Anticipatory WarrantAnticipatory Warrant

An anticipatory warrant permits An anticipatory warrant permits police to obtain search warrant police to obtain search warrant directed at a person and place where directed at a person and place where it is reliably anticipated that some it is reliably anticipated that some illegal contraband or other evidence illegal contraband or other evidence of a crime will be located at some of a crime will be located at some specific place in the future.specific place in the future.

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U.S. v. Grubbs U.S. v. Grubbs and Anticipatory and Anticipatory WarrantsWarrants

In In U.S. v. Grubbs U.S. v. Grubbs (2006), the (2006), the Supreme Court stated that , in effect, Supreme Court stated that , in effect, all search warrants are anticipatory; all search warrants are anticipatory; however,however,

Probable cause must exist to believe Probable cause must exist to believe that evidence will be found when the that evidence will be found when the search is conducted; otherwise,search is conducted; otherwise,

An anticipatory warrant is a violation An anticipatory warrant is a violation of the Fourth Amendment.of the Fourth Amendment.

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Grubbs and Anticipatory Grubbs and Anticipatory Warrant (Cont.)Warrant (Cont.)

The Court held that the language of The Court held that the language of the Fourth Amendment does not the Fourth Amendment does not require that the basis for the warrant require that the basis for the warrant must be specified, but only “the must be specified, but only “the place to be searched” and “the place to be searched” and “the person or things to be seized.”person or things to be seized.”

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Obtaining Evidence from the Obtaining Evidence from the Internet (Cyber Evidence)Internet (Cyber Evidence)

Crimes against children, threats, abductions, Crimes against children, threats, abductions, and pornography are the most frequent via and pornography are the most frequent via the internet, followed by identity theft and the internet, followed by identity theft and computer hacking crimes.computer hacking crimes.

Most of the websites for child pornography Most of the websites for child pornography are national in scope, so states have difficulty are national in scope, so states have difficulty responding.responding.

The federal government has created task The federal government has created task forces to enforce both state and federal laws.forces to enforce both state and federal laws.

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Obtaining Evidence from Other Obtaining Evidence from Other Personal Electronic DevicesPersonal Electronic Devices

Laptop computers, cell phones, pagers, Laptop computers, cell phones, pagers, flash drives, MP3 players, and PDAs flash drives, MP3 players, and PDAs (Personal Digital Assistants) can store (Personal Digital Assistants) can store electronic data.electronic data.

Law enforcement can obtain access to Law enforcement can obtain access to these with a search warrant based on these with a search warrant based on probable cause or a consent search.probable cause or a consent search.

Such searches must be reasonable under Such searches must be reasonable under the Fourth Amendment.the Fourth Amendment.

See See U.S. v. ParkU.S. v. Park, 2007, 2007

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Administrative Search Administrative Search WarrantsWarrants

Fire, health, building, and food Fire, health, building, and food inspectors, etc., may obtain inspectors, etc., may obtain administrative search warrants to administrative search warrants to determine if a person or business is determine if a person or business is in violation of state laws designed to in violation of state laws designed to protect the public.protect the public.

A lower standard of probable cause A lower standard of probable cause applies to these warrants.applies to these warrants.

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Wiretapping and Electronic Wiretapping and Electronic Surveillance Surveillance

Prior to 1968, the United States did not Prior to 1968, the United States did not have any laws governing have any laws governing wiretapping wiretapping and electronic surveillanceand electronic surveillance. .

In 1968 Congress enacted the Federal In 1968 Congress enacted the Federal Wiretapping and Electronic Surveillance Wiretapping and Electronic Surveillance Act. Most states followed by enacting Act. Most states followed by enacting similar state laws making changes in the similar state laws making changes in the law of electronic surveillance.law of electronic surveillance.

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Katz v. United StatesKatz v. United States U.S. Congress enacted this act (Federal U.S. Congress enacted this act (Federal

Wiretapping Act) after the FBI had Wiretapping Act) after the FBI had attached an electronic listening device to attached an electronic listening device to a public telephone booth. a public telephone booth.

The U.S. Supreme Court held that this The U.S. Supreme Court held that this was a violation of Katz’s Fourth was a violation of Katz’s Fourth Amendment rights Amendment rights

The decision has to do with the The decision has to do with the PERSON’s right to privacy, NOT the PERSON’s right to privacy, NOT the PLACE.PLACE.

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Aerial Surveillance?Aerial Surveillance?

In 1986 the court ruled that In 1986 the court ruled that information gathered by aircraft of a information gathered by aircraft of a suspects home was suspects home was not in violation not in violation of the Fourth Amendment because of the Fourth Amendment because it was a general observation and it was a general observation and therefore admissibletherefore admissible

California v. CiraoloCalifornia v. Ciraolo

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Tape Recording and Tape Recording and Wiretapping Cases That Made Wiretapping Cases That Made

National NewsNational News Tape recordings leading to impeachment Tape recordings leading to impeachment

of U.S. President (Tripp/Clinton)of U.S. President (Tripp/Clinton) Crime of dissemination (passing on Crime of dissemination (passing on

information of contents of illegal wiretaps information of contents of illegal wiretaps or tapes)or tapes)

Tapings of public statements by public Tapings of public statements by public figures that did not violate privacy lawsfigures that did not violate privacy laws

California criminal wiretapping trial California criminal wiretapping trial (“Hollywood’s Mr. Fixit”)(“Hollywood’s Mr. Fixit”)

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Confrontational Telephone Confrontational Telephone CallsCalls

Requires cooperation of the witness or Requires cooperation of the witness or victim and the victim and the call has to placed call has to placed before criminal charges have been before criminal charges have been filedfiled..

If the call is If the call is AFTERAFTER charges have been charges have been filed, is “accusatory,” and is designed filed, is “accusatory,” and is designed to elicit an incriminating statement, the to elicit an incriminating statement, the Massiah RuleMassiah Rule would apply and the would apply and the person would have to be admonished. person would have to be admonished.

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The laws authorize court The laws authorize court orders permitting orders permitting wiretapping and/or wiretapping and/or electronic surveillance by electronic surveillance by law enforcement officers in law enforcement officers in much the same manner as much the same manner as search warrants are search warrants are issued.issued.

The act makes wiretapping The act makes wiretapping and electronic surveillance and electronic surveillance done in done in violation of the violation of the act a felony.act a felony.

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Techniques of Lawful Techniques of Lawful Electronic SurveillanceElectronic Surveillance

The three primary techniques The three primary techniques of electronic surveillance of electronic surveillance available to law enforcement available to law enforcement agencies are:agencies are:Pen RegistersPen RegistersTrap and Trace Devices Trap and Trace Devices Interception of the Content Interception of the Content of the Messageof the Message

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Obtaining Evidence by Obtaining Evidence by Overhearing, Monitoring, Overhearing, Monitoring,

and/or Recording Statements and/or Recording Statements or Conversationsor Conversations Overheard conversation (plain Overheard conversation (plain

hearing in public or private place)hearing in public or private place) Statements made to undercover Statements made to undercover

officers or others in their presenceofficers or others in their presence Tape recordings where suspect has Tape recordings where suspect has

no expectation of privacy (police no expectation of privacy (police vehicles, jail cells, etc.)vehicles, jail cells, etc.)

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Overhearing, Taping Overhearing, Taping Statements or Conversations Statements or Conversations

(Cont.)(Cont.) One party to a telephone One party to a telephone

conversation consents to recording conversation consents to recording or listening to conversation by policeor listening to conversation by police

““Confrontational” telephone call or Confrontational” telephone call or face-to-face meeting with a suspectface-to-face meeting with a suspect

Using body wires or radio Using body wires or radio transmitterstransmitters

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Kyllo v. U.S.Kyllo v. U.S.

Use of Use of Thermal Thermal ImagingImaging devices are devices are RESTRICTED and a RESTRICTED and a warrant must be warrant must be obtained.obtained.

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Obtaining Evidence by Use of Obtaining Evidence by Use of Dogs Trained to Indicate an Dogs Trained to Indicate an

AlertAlert Drug and Bomb Detection DogsDrug and Bomb Detection Dogs

In using dog-detection In using dog-detection evidence in criminal courts, evidence in criminal courts, keeping and maintaining keeping and maintaining updated records on the dog updated records on the dog and its handler is essential and its handler is essential because the challenge to this because the challenge to this evidence generally is the evidence generally is the dog’s dog’s reliabilityreliability..

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Obtaining Evidence by Use of Dogs Obtaining Evidence by Use of Dogs Trained to Indicate an Alert (Cont.)Trained to Indicate an Alert (Cont.)

Testimony on the dog reliability:Testimony on the dog reliability:The training that the dog The training that the dog received to detect the odors received to detect the odors for particular drugsfor particular drugs

The dog’s success rate in The dog’s success rate in detecting these drugsdetecting these drugs

The method used to train the The method used to train the dog to indicate an alertdog to indicate an alert

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Obtaining Evidence by Use of Dogs Obtaining Evidence by Use of Dogs Trained to Indicate an Alert (Cont.)Trained to Indicate an Alert (Cont.)

Whether the dog alerted in the Whether the dog alerted in the proper mannerproper manner

Proof of the dog’s certification Proof of the dog’s certification Proof that the dog has Proof that the dog has continued to meet certification continued to meet certification requirements and has requirements and has continued to receive necessary continued to receive necessary training on a regular basistraining on a regular basis