Criminal Procedure

Weeks 3 & 4

Standing

• Person must have legitimate expectation of privacy in item searched/seized– Right to possession of place searhed– Place was person’s home– Person was overnight guest

• Legitimately on premises not sufficient

Plain view doctrine

• police are in a place they have a right to be

• Doing what they have a right to do

• Any apparent contraband/ evidence can be seized

Is it in plain view?

• Reasonable expectation of privacy– Purse in stolen car?

Is nature of evidence apparent?

• Arizona v. Hicks– Police are justified in entering house for

emergency (possible domestic problem)—see several stereos. Officer moves the stereos to get I.D.—runs it against stolen property list—they are stolen

• California v. Ciraolo– Evidence seen from airplane fly-over directed

at suspect’s house or yard

Other Senses

• Plain Feel

• Plain Smell

• Plain Hear

Plain viewSearch v. Seizure

• Plain view does not necessarily justify seizure– Officer must also be in place to seize

Related Issues

• Open fields doctrine

• Garbage left for collection

• Smell coming from luggage

• Use of Technology– Is it available to general public

ESTABLISHING PROBABLE CAUSE

• WARRANT: AFFIDAVIT IN SUPPORT OF WARRANT ESTABLISHES PROBABLE CAUSE

• NO WARRANT: IF QUESTIONED, OFFICER MUST JUSTIFY IN COURT THROUGH TESTIMONY

AFFIDAVIT

• STATEMENT UNDER PENALTY OF PERJURY, USUALLY IN WRITING

• MUST CONTAIN FACTS ESTABLISHING PROBABLE CAUSE

• CAN CONTAIN HEARSAY

INFORMANTS

• OFTEN FORM BASIS OR CONTRIBUTE TO ESTABLISHING PROBABLE CAUSE

• RELIABLE INFORMANTS

• UNTESTED INFORMANTS

• CONFIDENTIAL INFORMANTS

• ANONYMOUS TIPS

CONSENTUAL ENCOUNTERS

• CONTACT BETWEEN POLICE AND CITIZEN THAT IS NOT A SEIZURE OF PERSON UNDER 4TH AMEND.

• NOT A DETENTION

CONSENTUAL ENCOUNTERS

• CITIZEN IS– NOT OBLIGATED TO

COOPERATE

– FREE TO LEAVE

– BELIEVES THEY ARE FREE TO LEAVE

• EXAMPLES– INFORMING

RELATIVE OF DEATH– INTERVIEWING

WITNESSES– CASUAL

CONVERSATION

SITUATION

• MID-AFTERNOON, MIDDLE CLASS RESIDENTIAL AREA, POLICE SEE INDIVIDUAL WITH LONG HAIR, LONG BEARD, GRUBBY CLOTHES WALKING DOWN STREET. CAN THEY

• APPROACH FOR ANY REASON• ASK FOR I.D.• PAT DOWN• TAKE IN FOR QUESTIONING

SITUATION 2

• SAME SITUATION AS BEFORE, BUT POLICE HAVE RECEIVED CALLS FROM SEVERAL HOMEOWNERS THAT SOMEONE STRANGE IS IN NEIGHBORHOOD

DETENTION

• A TEMPORARY STOPPING OF A PERSON FOR INVESTIGATIVE PURPOSES

• IT IS A SEIZURE UNDER 4TH AMEND

DETENTIONS

• ROUTINE TRAFFIC STOPS

• FIELD EVALUATION OF SUSPECTED DUI

• A FIELD INTERVIEW

JUSTIFICATION FOR DETENTION

• MUST BE “REASONABLE” UNDER 4TH AND 14TH AMEND.

• BASED ON RATIONAL SUSPICION OF CRIMINAL ACTIVITY

• RATIONAL SUSPICION BASED ON ARTICULABLE FACTS, NOT A HUNCH

RATIONAL SUSPICION

• APPEARANCE– RESEMBLE A WANTED

PERSON

• ACTIONS– CASING AN AREA– HIDING, LOITERING

• TRAFFIC VIOLATION

• PRIORS

• DEMEANOR– CAN PROLONG

• TIME• AREA• POLICE

EXPERIENCE

SOCIAL ENCOUNTER OR DETENTION?

• 2 A.M.; X IS WALKING DOWN STREET, POLICE STOP AND ASK FOR I.D. AND ASK WHAT HE IS DOING

• POLICE KNOCK ON WINDOW OF OCCUPIED VAN, PARKED IN PUBLIC LOT TO TELL THEM THEY COULD NOT SLEEP THERE. OFFICER SMELLS POT AND CITES.

DETENTION SITUATIONS

• POLICE SEE INDIVIDUAL WALKING BACK AND FORTH OUTSIDE JEWELRY STORE; STOPS AND TALKS TO ANOTHER AND KEEPS WALKING BACK AND FORTH.

• DEF. HAS A BURNED OUT TAIL LIGHT

SITUATIONS

• MARKET CHECKER TELLS POLICE THAT D IS BUYING LOTS OF SMALL BALOONS.

• DEF. AT AIRPORT FIT “DRUG CARRIER PROFILE”, PAID TICKET WITH CASH, MIAMI TRAVEL ROUTE, DRESS; POLICE STOP AND FIND DRUGS

SITUATIONS

• POLICE SEE VEHICLE NOT PROCEEDING THROUGH A GREEN LIGHT.

• POLICE SEE KNOWN DRUG DEALERS AND USERS; THEY RUN WHEN THEY SEE POLICE

SCOPE OF DETENTION

• DETENTION MUST BE REASONABLE IN SCOPE

• TIME: AS LONG AS IS NECESSARY FOR PURPOSE OF DETENTION

• ORDERING OUT OF CAR IS O.K.

SITUATION

• POLICE STOP X FOR SPEEDING. RADIO IN LICENSE NUMBER AND ASK THAT WARRANT CHECK BE RUN. COMPUTER TEMPORARILY DOWN. AFTER 10 MINUTES REPORT COMES BACK WITH OUTSTANDING WARRANT. X DETAINED FOR THIS TIME. IS ARREST ON WARRANT GOOD?

TRANSPORT DETENTIONS

• GENERALLY NOT REASONABLE TO MOVE DEF. FROM SPOT OF DETENTION

• EXCEPTION: EXIGENT CIRCUMSTANCES (EMERGENCY)

PAT DOWN OR FRISK

• EXTERNAL FEELING OR PATTING DOWN OF SUSPECT’S OUTER CLOTHING FOR PURPOSE OF DISCOVERING A WEAPON

• JUSTIFIED WITH DETENTION IF RATIONAL SUSPICION TO BELIEVE THERE MAY BE A WEAPON

PAT DOWNS

• MUST STOP ONCE IT IS DETERMINED THERE IS NO WEAPON

• AS LONG AS OFFICER IS WITHIN PERMISSIBLE SCOPE, ANYTHING FOUND CAN BE USED AT COURT: PLAIN VIEW AND PLAIN FEEL DOCTRINES

Example

OFFICERS SAW D ILLEGALLY HITCHHIKING. D JOINED 2 COMPANIONS ON CURB AND TAKING ROLLED UP SLEEPING BAGS, THEY STARTED WALKING ON SIDEWALK. OFFICERS QUESTIONED THEM, DURING WHICH D SEEMED NERVOUS AND KEPT GRABBING AT SLEEPING BAG AS IF HE WANTED

TO LEAVE. OFFICER CONDUCTED PAT-DOWN SEARCH INCLUDING FEELING SLEEPING BAG. HE FELT LUMP IN BAG,

WHICH SEEMED TO BE SOME TYPE OF AUTOMATIC WEAPON. D, WHEN ASKED BY OFFICER, WHOED HIM CONTENTS OF

BAG WHICH CONTAINED MARIJUANA. (NO GOOD)

CHECKLIST FOR FRISK

• TYPE OF CRIME• DAY OR NIGHT• REPUTATION OF

PERSON STOPPED• NUMBER AND SIZE

OF OFFICER• DEMEANOR OF

SUSPECT

• ARMED COMPANION

• HIGH-RISK CRIME AREA

• SUSPECT MOVES AS IF REACHING FOR WEAPON