CRIMINAL PROCEDURE OUTLINE
SEARCH AND SEIZURE
In approaching any search and seizure problem, it is necessary to address each of the following questions:
A. How is this conduct characterized (i.e., encounter, stop, arrest)?
B. What are the requirements where such conduct is involved and have they been met (is the initial intrusion justified)?
C. If so, has the permissible scope of such conduct been exceeded (i.e., have all limitations been followed)?
II. DETENTION AND SEARCH OF THE PERSON
A. 4th Amend not implicated in all police citizen encounters
B. STOP: Reas person believe not free to go or terminate encounter (Mendenhall, Bostick, Drayton) (show or use of force, touching, retention of documents, etc.)
Stop does not occur until force used or submission to authority (Hodari)
If stop, need reasonable suspicion based on specific and articulable facts that criminal activity is "afoot" (past, present or future) (Terry, Sokolow, White, J.L., Wardlow, Arvizu)
May extend as long as officers diligently pursue reasonable investigative techniques likely to confirm or dispel suspicion (Sharpe)
If valid stop, officers can FRISK if RB armed and dangerous
Frisk limited to patdown of outer clothing (Terry) or passenger compartment of car (Long). Hard v. soft objects; further intrusion OK if RB weapon
Purpose: protect officer
C. ARREST: Detention beyond stop. Factors include movement from scene, length, interrogation (Dunaway, Royer)
If arrest, need probable cause (fair probability offense committed and defendant committed it); custodial arrest OK even for minor offenses (Atwater)
No warrant necessary for arrest in public place (Watson); arrest warrant and RB inside needed to arrest in suspect's home (to gain entry - Payton); search warrant needed to enter 3d party premises (Steagald)
Invalid arrest will not prevent prosecution
If valid arrest, officers may monitor defendant's movements (Chrisman) and may search incident to arrest
Purpose of SI: Protect officers and evidence, no additional justification required beyond valid custodial arrest (Robinson)
Must be custodial arrest (Robinson); no "search incident to citation" (Knowles)
Scope of SI as to person: full search of person including packages (Robinson), at scene or later (Edwards)
Scope of SI as to place: area of immediate control (Chimel), in car: passenger compartment including packages (Belton); must be contemporaneous
Officers may conduct protective sweep of area immediately adjacent to arrest incident to arrest; other areas with RB necessary for protection (Buie)
D. Other detentions:
1. Occupants may be detained during search (Summers)
2. Brief detention OK for questioning near border (at fixed chkpoint w/no suspic; by roving patrol w/reas susp); brief detent at sobriety checkpts OK w/o indiv suspic (Sitz); chkpoints not OK where primary purpose is general crime control (Edmond)
A. Is the 4th Amend implicated? Look to nature of privacy interest and nature of intrusion. Katz: Does defendant have a reasonable expectation of privacy? (e.g., reas curious passerby, precautions, A/R, already disclosed, open fields, mere enhancement of senses, tactile v. visual)
B. Normal requirements for valid search
a. detached & neutral magistrate
b. based on PC
c. described with sufficient particularity
d. executed reasonably
i.. announce unless RB destruction or danger (Wilson)
ii. not stale
2. Probable Cause: fair probability that items sought are contraband, fruits or evidence of crime and are at location to be searched now
Test: Totality of Circumstances (Gates): not overly technical; commonsense approach. Should consider basis of knowledge (what affiant knows and how s/he knows it) and veracity (credibility/reliability of speaker)
C. Exceptions to Normal Requirements
1. No warrant required
a. Exigent circumstances: requires PC and need (i.e., late-breaking PC, difficulty or danger, scene of crime, hot pursuit)(Olson)
b. Vehicles: mobility/lesser expectation of privacy
With PC, can search entire car, at scene or later (Carney, Chambers)
Scope includes containers, etc. if could be authorized by magistrate (Ross); can search containers (whether PC focused on car or container (Acevedo)) now or later (Johns), even if containers belong to passenger (Houghton)
2. Less than PC required
a. Consent: Did defendant voluntarily consent in totality of circumstances (Schneckloth). Relevant factors: show of authy, custody, characteristics (unclear whether subjective or objective)
Third-pty consent: Did parties have common authy for most purposes (factors include a/r, scope of authority)? If so, 3d pty consent valid. Even if not, did officers reas believe 3d pty had authy to consent (Rodriguez)?
If initially OK, is search w/in proper scope of consent (what RP wld have understood)(Jimeno)?
b. Inventory: OK if officers have right to possess - Cars (Opperman); arrestee (Lafayette) Reqs: general policy, reasonable scope; can open containers and packages if standard procedure (Bertine). Need not require opening of all as long as controls discretion (Wells)
c. Search Incident: (see IIC)
d. Searches involving special needs beyond law enforcement
(students, govt employees, probationers). OK if reason to believe viol of law or rules where search conducted by non-LEO's (TLO/Ortega/Griffin); drug-screening of employees and students may be permis w/o indiv suspic where signif need (Skinner, Vernonia, Earls)
e. Border searches: No cause req'd if at border or funct equiv, incl int'l mail; reas suspic req'd if partic intrusive (Montoya de Hernandez)
1. Admin inspections: balancing test. (Arguably part of special needs) Some req warrant and PC, but not as to specif viol; demon w/in plan (Camara, Barlow's); others no war req'd where pervasive reg, need, effect altern to challenge (Burger)
2. Pretext: Officer’s subjective reason for engaging in s/s activity irrelevant if that activity is lawful; no "pretext" defense to otherwise lawful police conduct. (Whren)
E. Detentions and Seizures Short of Search
1. Plain View: Permits seizure only, not entry
Reqs: officer in place where s/he has a right to be; PC to believe item is contraband or evidence of crime (immed. apparent through visual observ only-Hicks); need not be inadvertent (Horton). Plain smell and plain feel (Dickerson) also recognized.
2. Detention while seeking warrant: Where PC, premises and effects may be detained for reasonable period while officers are getting warrant (Van Leeuwen-mail, Chadwick/Place-containers, Segura-homes, secure from within). Relies on concept that detention is lesser intrusion than search.
3. Entry into vehicle permitted to observe VIN if view from outside vehicle obstructed (Class)
4. Persons stopped in vehicles may be ordered out of the vehicle for officer safety without particularized cause (Mims - driver; Wilson - passenger).