Criminal Procedure for the Criminal Justice Professional 11 th Edition John N. Ferdico Henry F. Fradella Christopher Totten Prepared by Tony Wolusky Basic Underlying Concepts: Privacy, Probable Cause, and Reasonableness Chapter 3

Privacy

The Old Property Rights Approach Under the common law, the security of one’s property was a sacred right, and protection of that right was a primary government purpose. This was initially the basis for the interests protected by the Fourth Amendment. Fourth Amendment issues centered around intrusions into “constitutionally protected areas.”

The Reasonable Expectation of Privacy Approach Wherever an individual may harbor a reasonable expectation of privacy, he or she is entitled to be free from unreasonable governmental intrusion. Determining whether a person has a reasonable expectation of privacy requires that:  A person has exhibited an actual (subjective) expectation of privacy and,  The expectation is one that society is prepared to recognize as objectively reasonable.

Probable Cause

Defining Probable Cause to Search and Seize Probable cause exists where the facts and circumstances within a law enforcement officer’s knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that a crime has been or is being committed by a particular person or that seizable property will be found in a particular place or on a particular person.

Officer Knowledge In Carroll v. United States, 267 U.S. 132, 162 (1925), the Court said that probable cause to search exists when “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that [seizable property would be found in a particular place or on a particular person].”

Preference for Warrants The warrant procedure is preferred because it places responsibility for deciding the delicate question of probable cause with a neutral and detached judicial officer who usually has more formal legal training than a police officers has.

Methods for Establishing Probable Cause Probable cause is evaluated by examining the collective information in the possession of the police at the time of the arrest or search including: Information known through an officer’s own senses Flight or furtive conduct Observation and evaluation or real evidence Admissions of criminal conduct False or implausible answers to routine questions Presence at a crime scene or in a high-crime area Associations with known criminals Past criminal conduct

Methods for Establishing Probable Cause: Flight “[D]eliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea [guilty mind], and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.” Sibron v. New York, 392 U.S. 40, (1968).

Methods for Establishing Probable Cause: Admissions A person’s admission of criminal conduct to a law enforcement officer provides probable cause to arrest. In Rawlings v. Kentucky, 448 U.S. 98 (1980), a law enforcement officer with a search warrant ordered the defendant’s female companion (Cox) to empty the contents of her purse. When she poured out a large quantity and variety of controlled substances, she told the defendant to take what was his. The defendant immediately claimed ownership of some of the controlled substances. The Court held that “[o]nce petitioner admitted ownership of the sizable quantity of drugs found in Cox’s purse, the police clearly had probable cause to place the petitioner under arrest.” 448 U.S. at 111.

Methods for Establishing Probable Cause: False or Implausible Answers United States v. Velasquez, 885 F.2d 1076 (3d Cir. 1989), held that the following facts provided probable cause to arrest the defendant for interstate smuggling of contraband:  (1) the defendant and her companion were on a long-distance trip from Miami, a major drug importation point, to the New York area;  (2) they had given a law enforcement officer conflicting stories about the purpose of their trip and their relationship;  (3) they appeared nervous when answering the officer’s questions;  (4) the defendant told the officer that the automobile she was driving belonged to her “cousin,” but could not give her cousin’s name; and  (5) the automobile had a false floor in its trunk and appeared specially modified to carry contraband in a secret compartment.  Facts two (2) and four (4) above appear to contain a false or implausible e answer. It is important to note, however, that the Court only found probable cause to arrest in light of other existing, “suspicious” facts, including ones related to physical evidence.

Information Obtained by Officers through Informants An informant is any person from whom a law enforcement officer obtains information on criminal activity. Informant information may satisfy the probable cause requirement. The Court established a two-prong test for determining probable cause when the information in an affidavit was either entirely or partially obtained from an informant in two cases:  Aguilar v. Texas (1964)  Spinelli v. United States (1969)

Prong #1 of Aguilar—Spinelli Prong #1 relates to the informant’s basis for knowledge. The affidavit must show how the informant knows his or her information by demonstrating that: the informant personally perceived the information given to the officer; or the informant’s information came from another source, but there is good reason to believe it. Without this, the officer can still satisfy the first prong by obtaining as much detail as possible from the informant and stating it in the affidavit.

Prong #2 of Aguilar—Spinelli Prong #2 relates to the truthfulness of the informant. The affidavit must describe underlying circumstances from which the magistrate may determine that the informant was credible or that the informant’s information was reliable. Ordinary citizen (victim, witnesses) are usually presumed reliable. A criminal informant’s credibility must always be established by a statement of underlying facts and circumstances.

Corroboration An officer may use corroboration to bolster information that is insufficient to satisfy either or both Aguilar prongs. Corroboration means strengthening or confirming the information supplied by the informant with supporting information obtained by law enforcement officers.

Gates Test Under the Gates totality-of-the-circumstances test for whether informant testimony can serve as a basis for probable cause, the task of the issuing magistrate is to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of crime will be found in a particular place.

Reasonableness

Determining Reasonableness The Fourth Amendment prohibits unreasonable searches and seizures. Determining the reasonableness of any search involves a twofold inquiry:  One must consider whether the action was justified at its inception  One must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.