Criminal Procedure: Theory and Practice, 2d. by Jefferson L. Ingram

CHAPTER 7 Searches and Seizures, Houses, Places, Persons and Vehicles

1. Searches of Houses In 1604, a English jurist observed: “the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.”

1. Searches of Houses (cont.) Framers of Fourth Amendment accepted the English view: The home receives the greatest protection from governmental intrusion. Breached only when absolutely necessary.

1. Searches of Houses (cont.) General Rule: A home will not be entered without a warrant to search or arrest. Warrant gives proper notice that breach of home is lawful. Exceptions to warrant: hot pursuit, home on fire, other emergency.

2. Warrant to Search and Arrest Inside the Home Search of home without warrant: Presumptively illegal. Violates Fourth Amendment. Seized evidence suppressed from use.

Case 7.1, Leading Case Brief: Payton v. New York, 445 U.S. 573 (1980). Facts: Police had probable cause to arrest Payton for a recent murder. When he did not answer his door, police forced entry without a warrant and seized evidence. Payton was convicted. Issue: Absent emergency, must police have warrant to enter private home? Held: Yes. Fourth Amendment protects against warrantless entries into homes. Absent emergency, house threshold cannot be crossed without either a search or an arrest warrant. Seized evidence will usually be suppressed from trial.

2. Warrant to Search and Arrest Inside the Home (cont.) Warrant to search home may include: Basement, attic, garage. Automobiles parked on premises. Rationale: Warrant authorized search anywhere on premises the object of search may be hidden.

2. Warrant to Search and Arrest Inside the Home (cont.) Bare presence in private home only to divide drugs- no guarantee of expectation of privacy. Minnesota v. Carter. Drug dealer had insufficient connection to home. Paid occupier for temporary use of home. Drug dealer never lived in home.

Infrared heat scans of buildings: May disclose intimate activities. 3. Modern Technology and Warrantless Home Searches: Thermal Imaging Searches Infrared heat scans of buildings: May disclose intimate activities. Reveals hotter and cooler areas of home. If lawful, could help develop probable cause. Arguably only measure heat escaping outside the home; not details within.

Case 7. 2, Leading Case Brief: Kyllo v. United States, 533 U. S Facts: Defendant suspected of growing marijuana inside his home using heat lamps. Police scanned the outside of the home with an infrared device that helped develop probable cause to search. Conditional plea to growing marijuana. Issue: Is thermal imaging a search under Fourth Amendment that requires warrant? Held: Yes. Rationale: The search of the heat signature of the private home was unreasonable in the absence of a warrant. Police explored details of life inside of home that were not knowable without the heat imaging machine, constituting an illegal search under the Fourth Amendment.

4. Search Incident to Arrest Exception to warrant requirement of Fourth Amendment. No search probable cause necessary. Warrantless search is reasonable: Need to disarm arrestee. Need to preserve evidence on the person. Absolutely requires valid arrest.

5. Search Incident to Arrest: No Warrant Requirement Weeks v. United States recognized that: Warrantless search incident to arrest-historically permissible. Marron v. United States permitted expansive search incident to arrest to include all parts of home. United States v. Rabinowitz permitted whole premises search as incident to lawful arrest.

6. General Scope of the Search Incident to Arrest Current interpretations under Chimel v. California: Requires valid arrest. Permits search of arrestee’s person. Search includes area under arrestee’s immediate dominion and control. Whether in home, car, or elsewhere. Allows search of arrestee’s “lunge area.” Search is a full search- not just a frisk.

6. General Scope of the Search Incident to Arrest (cont.) In Chimel v. California, defendant was lawfully arrested within his own home with a warrant. Police searched the entire home from top to bottom as “incident to the lawful arrest” and seized incriminating evidence that was used against him. The Supreme Court of the United States found search too broad. It held that the extensive search was beyond the proper and reasonable scope of a search incident to a lawful arrest. Search only immediate area of arrestee.

7. Inventory of Arrestee’s Property Search incident to arrest allows full search: Of arrestee’s personal property. Property must be on or near arrestee. Of arrestee’s car interior, if arrested in or near vehicle. Of purse, man bag, or backpack carried by arrestee.

8. Traditional Requirements for the Plain View Doctrine Does not require warrant. Requirements: Clearly visible without a search. Illegal substance or seizable evidence. Police officer must physically occupy a position lawfully. Plain view may occur: At a search, during arrest, stop and frisk, traffic stop, etc.

9. Inadvertent Discovery: No Longer Required Original view: Officer must “inadvertently discover.” Must have been unexpected. Current view: Inadvertence no longer required. Expected evidence can be seized.

10. Officer Needs to be Lawfully Present Police officer must occupy position lawfully. Probable cause required to seize evidence or contraband. Must have lawful way to gain control over the evidence. May not manipulate or move property- constitutes search.

Case 7. 3, Leading Case Brief: Horton v. California, 533 U. S Facts: Horton convicted of armed robbery after police searched home with warrant. Found evidence not listed on warrant, but that police expected to find. Horton contended, plain view required inadvertent discovery, not expected discovery. Issue: Can plain view evidence be seized when it was expected and not listed on warrant? Held: Yes. Rationale: Item must be in plain view and its incriminating nature apparent. Officer must be lawfully present. Court found that where evidence might be expected to be found, so long as officer lawfully occupied a place where contraband was visible, the Fourth Amendment was not violated.

11. The Plain Feel and Plain Smell Doctrine Requirements: Officer must be doing lawful activity. Encounter contraband or other incriminating evidence by touch or smell. Example: Officer stops car- smells marijuana smoke or precursor chemicals. Example: Officer pats down a person-feels a firearm or knife. Problematic example: Officer pats down and feels objects like crack cocaine.

11. The Plain Feel and Plain Smell Doctrine (cont.) Problematic Case: Minnesota v. Dickerson. Officer conducted lawful frisk. Feels object or rock- could be crack. Manipulated it between fingers outside of clothing. Constitutes illegal search- No plain feel Beyond scope of lawful frisk.

12. Searches Based on Consent Requirements for Valid Consent: The proper person must offer the consent. Consent must be given freely and voluntarily. Tested by the totality of the circumstances.

12. Searches Based on Consent (cont.) First requirement: Proper person must give consent. Person must have actual dominion and control over property. Or, person must appear to have control or shared dominion and control. Called apparent authority.

12. Searches Based on Consent (cont.) Second Requirement: Free and voluntary consent. Tested by totality of the circumstances: Consider: Education, legal education, intelligence of consenting person, coerciveness of circumstances, subject under arrest, knowledge of right to refuse consent, and other factors.

12. Searches Based on Consent (cont.) Shared dominion and control over property: Both present- both must consent. Only one present- one present can consent. Both present- only one consents, other refused, no valid consent. Applies to real and personal property.

Case 7. 4, Leading Case Brief: Georgia v. Randolph, 547 U. S Facts: Defendant and wife shared a home. Wife gave consent to search marital home for spouse’s drugs; husband refused. Police found drugs, later obtained search warrant, found more drugs. Randolph convicted of possession. Issue: Where two possessors of property are present, must both consent to grant valid search consent? Held: Yes. Rationale: Where persons who share dominion and control over property are present, socially, no one would enter when one granted permission and the other refused permission. Without consent of both, there is no valid Fourth Amendment consent to search because it would be unreasonable to find proper consent in the situation.

13. Searches of Motor Vehicles Motor vehicles carry diminished expectation of privacy. Readily mobile and can leave jurisdiction. Have windows- reduced privacy. Extensively regulated by governments. Probable cause required to search.

14. Vehicle Searches Generally Do Not Require Warrants Courts have limited geographical jurisdiction. If warrant required, vehicle could be out of jurisdiction before warrant served. Immediate seizure would be without warrant. Choices are: Seizure while warrant obtained or immediate search. Both approaches are reasonable.

15. Scope of Motor Vehicle Search Scope of vehicle search with probable cause: Dictated by object of search. Search permitted anywhere the object might be located. Illegal drugs could be anywhere. Vinyl CD/DVD carrier could contain drugs. Laptop computer size limits search. Only locations where it could be hidden.

16. Limited Vehicle Searches on Less than Probable Cause Alcohol screen checkpoints for drivers. No probable cause needed. Brief-limited seizure permitted. General criminal interdiction checkpoints prohibited. No roadblocks to check drug dealers. Brief Terry v. Ohio road stops permitted.

17. Vehicle Inventory Searches Rationale for inventory searches: Protects owner’s property while in custody. Insures against false claims of loss. Protects police/property custodians from dangers posed by property.

17. Vehicle Inventory Searches (cont.) Inventory search permitted w/o probable cause. Police gain lawful possession of vehicle. Police agency must have vehicle inventory policy. Police must routinely follow policy. Policy can grant some police discretion.

18. Plain View Doctrine and Motor Vehicle Searches Traffic stop must be lawful. Officer must be in lawful position to view seizable evidence or contraband. Objects must indicate criminality under the circumstances. Example: Officer purchases drugs next to car, sees additional drugs in car.

19. Scope of Search of Containers within Motor Vehicles Given probable cause to search a vehicle: Search can include any object within vehicle where goal of search might be hidden. Example: Search for drugs or firearm can include console, zippered bag, trunk, and under car seats, among other places.

Case 7. 5, Leading Case Brief: California v. Acevedo, 500 U. S Facts: Police viewed controlled delivery of drug package. Later, Acevedo left the apartment carrying same size package and placed it in his car. Police stopped car, searched package, found drugs. Acevedo contended police needed warrant. Issue: If police have probable cause, is a search warrant needed when package is placed in a vehicle? Held: No. Rationale: Fourth Amendment permits warrantless search of container in vehicle where probable cause to search existed. Police did not have probable cause to search entire car, but probable cause to search the container meant that they would certainly be permitted to search it eventually.

20. Searches Following Vehicle Forfeitures Where property lawfully forfeited: Former owner has no expectation of privacy remaining. No probable cause or warrant need to search. Vehicle used in drug crime- forfeitable. Car becomes contraband. Vehicle owned by state.

21. Other Theories of Vehicle Searches and Seizures Vehicle inventory policies. Search incident to arrest of occupant or driver. Roadblock screens for impaired drivers. Exigent or emergency circumstances.

22. Summary People have greatest expectation of privacy in private homes. Warrant generally required. Consent or emergencies are exceptions. No warrant needed to arrest outside of home. No warrant required: search incident to arrest and plain view. Motor vehicles have reduced privacy expectation.