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 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

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