Criminal Procedure

1. Criminal Procedure 7th Edition Joel Samaha Thomson-Wadsworth Publishing

2. Searches for Evidence Chapter 6

3. Searches and Crime Control Crime control couldn�t survive without searches. The Fourth Amendment balances the need for searches against the invasion of individuals� right to privacy. The right against unreasonable searches and seizures is difficult to protect. Searches for evidence include those done with and without warrants.

4. Analyzing Searches In analyzing government action in searches, we must ask: Was the government action a search? If it was a search, was it reasonable? If it was unreasonable, then should the evidence be excluded?

5. Searches with Warrants The Fourth Amendment commands officers to get search warrants. There are many exceptions to the warrant requirement. Most searches are done without warrants.

6. Meeting the Warrant Requirement Three elements are required to meet the Fourth Amendment�s warrant requirement: Particularity�the place to be searched and the things to be seized must be particularly described. The probable cause affidavit�shows evidence that the items will be at a particular place. The �knock-and-announce� rule�requires officers to knock and announce themselves and wait a �reasonable amount of time� before breaking and entering.

7. Knock-and-Announce Exceptions Currently, there are three major exceptions to the knock-and-announce rule: To prevent violence To prevent destruction of evidence To prevent suspects from escaping

8. Searches without Warrants While securing a warrant before searching is preferable, in practice, most searches are done without warrants. Courts have broadly interpreted the exceptions to the warrant requirement.

9. Exceptions to the Warrant Requirement There are five major exceptions to the warrant requirement: Searches incident to arrest Consent searches Vehicle searches Container searches Emergency searches (exigent circumstances searchers)

10. Searches Incident to Arrest Searches incident to arrest are searches conducted before, during, and after arrest. They do not require warrants or probable cause. Officers may only search the area under �immediate control� of the arrested persons (�grabbable area�). It extends to vehicles.

11. Functions of Searches Incident to Arrest Searches incident to arrest serve three functions: Protect officers Prevent escape Preserve evidence

12. The Robinson Rule Under the Robinson bright-line rule, officers are always permitted to search anyone they can take into custody because: There is possible danger to police taking suspects into custody. It is impossible for the Court to review every police decision. There�s no automatic search incident to citation rule.

13. Consent Searches Consent searches are searches in which people give officers permission to search them and/or their personal belongings without either warrants or probable cause. Consent must be voluntary. Consent may be later withdrawn.

14. The Voluntariness Test of Consent Using the totality-of-circumstances, the government must establish: Knowledge of constitutional rights in general Knowledge of the right to refuse consent Sufficient age and maturity to make an independent decision Intelligence to understand the significance of consent Education in or experience with the workings of the criminal justice system Cooperation with officers Attitude toward the likelihood that officers will discover contraband Length of detention and nature of questioning regarding consent Coercive police behavior surrounding the incident

15. Third Party Consent There�s both a subjective and an objective rule to decide whether one person can consent to search for someone else. Actual authority (objective) third party consent Apparent authority (subjective) third party consent The U.S. Supreme Court adopted the apparent authority test as the minimum requirement for the Fourth Amendment.

16. Vehicle Searches The vehicle exception to the warrant requirement allows for warrantless searches of vehicles if probable cause to believe contraband or evidence exists. There�s a reduced expectation of privacy in vehicles. Vehicles are mobile and can leave area. Persons and containers within a vehicle may be searched.

17. Emergency (Exigent) Searches Some situations make it impractical (even dangerous) for officers to get warrants before searching. The danger might be: To officers� safety (justification for frisks and pat-downs) That evidence may be destroyed That fleeing felons might escape That people in the community are in immediate danger

18. Destruction of Evidence A warrantless search is permitted if police have probable cause to search, and they reasonably believe evidence is about to be destroyed.

19. Hot Pursuit If officers are in hot pursuit of a suspect for whom they have probable cause to arrest, they can follow the suspect into a house without getting a warrant.

20. Danger to the Community A warrantless search is permitted if officers have probable cause to believe that a suspect has committed a violent crime or that they or others in the community are in immediate danger.