Individual Project
1. Assume a law enforcement officer has probable cause to arrest a defendant for armed assault, and he also has probable cause to believe that the person is hiding in a third person's garage, which is attached to the house. What warrants, if any, does the officer need to enter the garage to arrest the defendant? What if the officer is in hot pursuit of the defendant? What if the defendant is known to be injured and unarmed? Provide evidence to support your answer.
A warrant is the authorization or the right accorded to a party to conduct an activity such as the arrest of a person or search of premises. Due to the probability of abuse, limitations are in place to balance the right of the people to safety and security with liberties and privacy. Standards based on judicial interpretation of laws provide the limitations in issuing warrants of arrest or search warrants. However, application requires flexibility so that there are also exemptions to these limitations. (Berman-Barrett & Bergman 2006)
Under federal law, the US Code provides under Chapter 205, Title 18 govern the rules in the issuance of federal warrants together with Federal Rules of Criminal Procedure. Each state also build upon warrant rules applicable to their jurisdiction but consistent with federal rules.
In the case of search warrants, the Fourth Amendment provides that search warrants made by law enforcement officers should find basis on probable cause. This is the existence of sufficient information to support reasonable judgment that a person or persons have committed a crime or that objectives used or involved in a crime may be found in a particular location. The standard of reasonableness then applies in the issuance of search warrants allowing the courts to decide on the issuance of a warrant based on the circumstances. Moreover, the search warrant is only limited to the property or location describes so that another search warrant is needed to cover other areas. There are exceptions to the issuance of a warrant based on probable cause. Exigencies such as entering private premises in the course of pursuing a felon, the imminent destruction or transfer of evidence, the urgency of preventing a suspect from escaping, or the high probability of putting police officers or other people at risk.
When a search warrant has been issued, both properties found at the location and persons found at the location with connection to the property may be seized. This follows the reasoning on probable cause that a person connected to a property may be seized while an object linked to a crime found in a person may also be seized as part of the criminal investigation.
However, probable cause does not only support the issuance of warrants but also the right of law enforcement officers to search locations or properties even without a warrant (Groh v Ramirez 2004). This means that as long as there is probable cause, a law enforcement officer may stop to search a person, a vehicle or property and seize persons or objects suspected of committing the crime contemplated by the probable cause (Terry v Ohio 1968).
In the first situation, when a police officer has probable cause that a suspected felon is hiding inside the garage of a third person, a search warrant may be obtained in order to rightfully enter the third person’s private property. However, since there is probable cause, the police office may also enter the property especially when this is done in pursuit of a felon, imminent danger that evidence stored or placed in the garage may be destroyed or transferred, the felon may escape if the search is not done immediately, or delaying the search and seizure could endanger the police authorities or civilians. Although a warrant of arrest may also be obtained, the existence of probable cause also supports arrest without warrant.
If the police officer has knowledge that the defendant is injured and unarmed to immobilize the felon from escaping or posing a threat to the safety of the police officers and civilians, then this may call for a search warrant or warrant of arrest. However, even if the felon is injured and unarmed, other exigencies such as the destruction or transfer of evidence may also become imminent supporting the right of law enforcement authorities to make the search, seizure and arrest on probable cause.
2. Formulate a set of circumstances in which there is probable cause to search but not probable cause to arrest; in which there is probable cause to arrest but not probable cause to search; in which there is probable cause to both arrest and to search.
There are instances when there is probable cause to search but there is no probable cause to arrest. The police learned of credible information to support the probable cause that a bartender was selling drugs. To act on this, the police authorities went to the bar to search the bartender and the bar he also owned. During the search, the police found heroine in the possession of the bartender. On suspicion that the bar may be used to retail and consume illegal drugs, the people in the bar were also searched and some were arrested. Given these circumstances, there is probable cause to search the bartender and the bar but no probable cause to arrest other people apart from the bartender. This is especially so when the people at the bar did not act suspiciously to draw the police officers to think that they are hiding something illegal.
There are also instances when there is probable cause to arrest but no probable cause to search. In this instance, a passing police car saw a person wearing a closed jacket with a visible bulk on the pockets running away from a store when there seems to be commotion inside the store. On probable cause that the person may have stolen something or robbed the store, the police officers have the right to make the search. However, if they find no weapon or items that the person cannot account for, there is no probable cause to arrest and the police officers should let the person go no matter how odd the actions of that person may seem to the police officers.
In some instances, probable cause to search and arrest may arise at the same time. Police officers doing a routine patrol of the street observed a man crouched below the open alley window of a drug store already closed for the night. The position of the man looked like he just got out of the window. On probable cause of theft, the police officers accost the person. Since the man cannot explain what he was doing there at that time, the police searched the person and found reams of cigarettes in his pockets and a bundle of cash. This creates the probable cause to arrest the person.
3. Mr. A walks into a police station, drops three wristwatches on a table, and tells an officer that Mr. B robbed a local jewelry store two weeks ago. Mr. A will not say anything else in response to police questioning. A quick investigation reveals that the three watches were among a number of items stolen in the jewelry store robbery. Do the police have probable cause to do any or all of the following?
1. Arrest Mr. A
2. Arrest Mr. B
3. Search Mr. A's home
4. Search Mr. B's home
If you answered no to any of the above, explain why in detail. If you answered yes to any of them, draft the complaint or affidavit for a warrant or explain why a warrant is not needed.
A probable cause can be based upon hearsay but the information should come from a reliable source for this to be considered in support of probable cause to search or arrest a person (Aguilar v Texas 1964; Spinelli v United States 1969). In the given case, the reliability of Mr. A as a source of information should be investigate especially since he refuses to answer succeeding police questions on the circumstances upon which he came in possession of the stolen watches. If the police investigating the robbery determine that Mr. A does not have any participation or involvement in the robbery and that his circumstances allowed him to come into possession of the watches, then his claims may be worth pursuing. However, this should be taken together with the information on the possible involvement of Mr. B in the robbery.
Based on the claims alone of Mr. A that Mr. B stole the watches but without answering any further inquiries, the police do not have probable cause to arrest Mr. A because possession alone of the watches does not result to the probability that the person stole these especially when these were voluntarily surrendered to the police. However, the police should take custody of the watches. Based on the scant statement alone of Mr. A, there is no probable cause to arrest Mr. B because of the inability of Mr. A to provide the connection between Mr. B and the robbery. Concurrently, there is also no probable cause to search Mr. A or Mr. B without any supporting evidence.
If Mr. a makes the statement and acts in a manner that does not create suspicion on the part of the experienced police officers, then there is not probable cause to search the house of Mr. A. Without any supporting evidence connecting Mr. B to the robbery, there is also no probable cause to search the home of Mr. B.
Discussion Board
Debate the following statement: The United States Supreme Court recently held that if police fail to knock and announce then whatever evidence they seize will not be subject to the exclusionary rule. Does that mean police no longer need to knock and announce before entering a dwelling?
The exclusionary rule provides that evidence gathered in a manner that violates constitutional rights cannot be admitted as evidence in criminal prosecution. This rule evolved to serve two purposes, to provide a remedy to people in instances when they are being prosecuted based on evidence collected in violation of their rights and to provide disincentive on the part of law enforcement authorities to ensure respect of constitutional rights in criminal investigation to secure conviction based on strong evidence.
In the recent decision of the US Supreme Court, that failure to knock and announce would render the evidence seized not subject to the evidence rule leads to divergent results. On one hand, this means that police officers may become complacent in practicing ‘knock and announce’ because even if they fail to do this, evidence presented would not be included under the operation of the exclusionary rule. This opens the possibility of violation of constitutional rights. On the other hand, this provides law enforcement with the flexibility they need in order for felons to be held accountable for their actions based on all the evidence collected, which could not have been achieved with the operation of the exclusionary clause.
The resolution of this issue involves striking the balance between the protection of constitutional rights and the necessary exchanges to strengthen the criminal procedures in the interest of peace and order in society. This balance should be subject to the determination of the courts in order to prevent this jurisprudence from being abused while at the same time ensuring that constitutional rights are respected in criminal prosecution.
Unit 3 - Search Warrant Exceptions
Individual Project
A search should comply with reasonable privacy expectations. Katz v United States (1967) provides a two-part test in determining whether a search complies with reasonable privacy expectations based on the Fourth Amendment. First test is that the action of law enforcement authorities contravenes the person’s subjective expectations of privacy. To meet this test, the individual whose person or property is subject to search should prove subjective expectations of privacy in the sense that the objects found during the search were kept in a private manner. Second test is that this subjective expectation of privacy should be reasonable with reasonableness determined by comparing subjective with general expectations. Although this test also considers the subjective expectations of the individual, this takes on an objective stand because of the consideration of reasonable expectations based on the general or common perspective. In California v Greenwood (1988), the court held that police search of a person’s garbage already thrown does not violate privacy because people intended the garbage not to be private.
Apart from compliance with reasonable privacy expectations, a search should also find basis on probable cause. In conducting a search, law enforcement officers should hold or carry the reasonable belief that conducting the search would uncover criminal activity or evidence of crimes. Carroll v United States (1925) provides that the facts known by the officers making the search is sufficient to convince a reasonable person of the merits of conducting the search. Texas v Brown (1984) adds that probable cause means having a practical and non-technical probability of the involvement of incrimination evidence. If police officers have probable cause, the search is valid.
In conducting the search, the plain view doctrine may find application. This doctrine provides that law enforcement authorities lawfully present in a scene or situation may conduct a search and seize objects in plain view. However, a requisite to this rule is that the police officers should have established probable cause to perceive the object as contraband. (Horton v California 1990)
In the case of the search of motor vehicles, additional rules developed. Carroll v United States (1925) provides for exceptions to the general rule in the case of the search of motor vehicles. Law enforcement officers may search a motor vehicle even without a search warrant provided there is probable cause has been established covering contraband kept in the vehicle. The exception is based on the consideration of a lower degree of privacy accorded to motor vehicles relative to homes because people do not usually live in their vehicles (Hendrei 2005). Moreover, the mobility of motor vehicles creates an urgency to accost the owner and search for contraband or evidence. Pennsylvania v Lebron (1996) provides that when a vehicle is in motion and there is probable cause to believe that existence of contraband in the motor vehicle, police officers may stop to search the vehicle.
The scope of the search depends upon the places covered by the probable cause or the places where the contraband is believed be placed or kept. This means that the search can cover the glove compartment, passenger and driver’s seat, trunk or the entirety of the car. Moreover, the contraband or evidence in the car need not belong to the owner of the motor vehicle. Wyoming v Houghton (1999) provides that ownership of contraband found in a motor vehicle subject to a search does not affect the validity of the search conducted by law enforcement officers. This means that the search is valid as long the contraband is found in the car, which was stopped on probable cause, even if the objects searched and seized turn out not be the property of the owner of the car. This circumstance could even support the probable cause of the commission of a crime or transport of contraband.
However, there are also cases allowing the validity of the search even if there is no imminent risk that the vehicle could be driven-off before the search warrant can be obtained. California v Carney (1985) provides that the motor vehicle exception rule also apply to motor homes provided the motor home is readily mobile and not parked in a manner that restricts ease in driving-off the vehicle. This means that the mobility of the vehicle determines the urgency of conducting a search without a warrant.
In the given case, the police officers had probable cause to accost the men for loitering because of their presence outside at night. This probable cause then provides the police officers with the right to accost the men to inform them about the law and investigate the situation. The detectives, judge and district court differently described the reaction of the men upon seeing the marked patrol car approach. However, all these parties agree that there was urgency in the movements of the men in reacting to the presence of the police car. Based on common perception, people that urgently move away due to the presence of police officers have something to hide. According to the testimony of the detectives, the men were also in an area with the buildings mostly abandoned and where frequent shootings and drug sales occur. The fact that the men quickly boarded the car to get away from the police and they were in an area known for crimes and criminal undertakings provided the police officers with probable cause to stop the car, a crime may be committed or in the process of being committed.
When the car was stopped, the police officers talked with the men to know what they were doing outside and why they quickly moved away from the patrol car. Stopping the vehicle for probable cause that a crime has been committed finds support in the fact that the men were not able to provide a corroborating explanation on their presence outside, in the area at night. Although loaded magazine clips were seen in plain view, this does not in itself support the probable cause to search the vehicle based on the judgment of the detectives. Due to these reasons, the police officers arrested the men for loitering and prowling. It was valid for the police officers to stop the car to investigate but not to search the vehicle since the probable cause that arises is for arrest for a crime not necessarily involving contraband.
Discussion Board
Based on the facts alone, there seems to be no legal justification for the search of the defendant’s clothing since he was detained as a potential witness. Even if a potential witness has an outstanding warrant for parole violation, this does not support the change of perception that the person could be an important witness to a crime subject to investigation. During his detention, there was also no readily apparent evidence supporting his involvement in the crime. This means that there was no probable cause to search his clothing and conduct forensics test in relation to the murder.
The search of Mr. A’s clothing only achieves validity when this is supported by a probable cause that conducting the search could support the strong belief of the investigators regarding his involvement in the crime. The detectives handling the murder case should have uncovered evidence pointing to Mr. A as a suspect because of the circumstances of him becoming a witness together with a previous record for murder if this is the crime for which he was jailed and released on parole. Without knowledge or information to give rise to the probable cause to search Mr. A’s belongings, the search is not valid.
Apart from the lack of information to support probable cause, the concept of fairness provides that a previous criminal record cannot be used as the sole evidence for concluding that the person has again committed crime. Even a parole violation cannot be made to support actions to investigate a murder case that has nothing to do with the parole violation. Moreover, a parole violation does not usually involve search of clothing unless there is probable cause that the search would support the acquisition of evidence to support the parole violation.
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