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