1 Chapter 15 Search Warrants

2 Search warrants fall under the 4 th Amendment Search warrants fall under the 4 th Amendment The police must have “probable cause” The police must have “probable cause” Must sign an “affidavit” to that effect Must sign an “affidavit” to that effect Must have a judge approve the warrant Must have a judge approve the warrant There are time limits on search warrants There are time limits on search warrants When evidence is obtained without a search warrant, the burden is upon the government to show that the evidence was obtained under one of the “established and well delineated exceptions” When evidence is obtained without a search warrant, the burden is upon the government to show that the evidence was obtained under one of the “established and well delineated exceptions”

3 Types of Search Warrants “Daytime” vs. “nighttime” search warrants “Daytime” vs. “nighttime” search warrants No-Knock or unannounced entries No-Knock or unannounced entries Anticipatory search warrants Anticipatory search warrants “Sneak and peek” entry warrants “Sneak and peek” entry warrants Searches of computers and other documentary evidence Searches of computers and other documentary evidence

4 Anticipatory Warrant An anticipatory warrant permits police to obtain search warrant directed at a person and place where it is reliably anticipated that some illegal contraband or other evidence of a crime will be located at some specific place in the future. An anticipatory warrant permits police to obtain search warrant directed at a person and place where it is reliably anticipated that some illegal contraband or other evidence of a crime will be located at some specific place in the future.

5 U.S. v. Grubbs and Anticipatory Warrants In U.S. v. Grubbs (2006), the Supreme Court stated that, in effect, all search warrants are anticipatory; however, In U.S. v. Grubbs (2006), the Supreme Court stated that, in effect, all search warrants are anticipatory; however, Probable cause must exist to believe that evidence will be found when the search is conducted; otherwise, Probable cause must exist to believe that evidence will be found when the search is conducted; otherwise, An anticipatory warrant is a violation of the Fourth Amendment. An anticipatory warrant is a violation of the Fourth Amendment.

6 Grubbs and Anticipatory Warrant (Cont.) The Court held that the language of the Fourth Amendment does not require that the basis for the warrant must be specified, but only “the place to be searched” and “the person or things to be seized.” The Court held that the language of the Fourth Amendment does not require that the basis for the warrant must be specified, but only “the place to be searched” and “the person or things to be seized.”

7 Obtaining Evidence from the Internet (Cyber Evidence) Crimes against children, threats, abductions, and pornography are the most frequent via the internet, followed by identity theft and computer hacking crimes. Crimes against children, threats, abductions, and pornography are the most frequent via the internet, followed by identity theft and computer hacking crimes. Most of the websites for child pornography are national in scope, so states have difficulty responding. Most of the websites for child pornography are national in scope, so states have difficulty responding. The federal government has created task forces to enforce both state and federal laws. The federal government has created task forces to enforce both state and federal laws.

8 Obtaining Evidence from Other Personal Electronic Devices Laptop computers, cell phones, pagers, flash drives, MP3 players, and PDAs (Personal Digital Assistants) can store electronic data. Laptop computers, cell phones, pagers, flash drives, MP3 players, and PDAs (Personal Digital Assistants) can store electronic data. Law enforcement can obtain access to these with a search warrant based on probable cause or a consent search. Law enforcement can obtain access to these with a search warrant based on probable cause or a consent search. Such searches must be reasonable under the Fourth Amendment. Such searches must be reasonable under the Fourth Amendment. See U.S. v. Park, 2007 See U.S. v. Park, 2007

9 Administrative Search Warrants Fire, health, building, and food inspectors, etc., may obtain administrative search warrants to determine if a person or business is in violation of state laws designed to protect the public. Fire, health, building, and food inspectors, etc., may obtain administrative search warrants to determine if a person or business is in violation of state laws designed to protect the public. A lower standard of probable cause applies to these warrants. A lower standard of probable cause applies to these warrants.

10 Wiretapping and Electronic Surveillance Prior to 1968, the United States did not have any laws governing wiretapping and electronic surveillance. Prior to 1968, the United States did not have any laws governing wiretapping and electronic surveillance. In 1968 Congress enacted the Federal Wiretapping and Electronic Surveillance Act. Most states followed by enacting similar state laws making changes in the law of electronic surveillance. In 1968 Congress enacted the Federal Wiretapping and Electronic Surveillance Act. Most states followed by enacting similar state laws making changes in the law of electronic surveillance.

11 Katz v. United States U.S. Congress enacted this act (Federal Wiretapping Act) after the FBI had attached an electronic listening device to a public telephone booth. U.S. Congress enacted this act (Federal Wiretapping Act) after the FBI had attached an electronic listening device to a public telephone booth. The U.S. Supreme Court held that this was a violation of Katz’s Fourth Amendment rights The U.S. Supreme Court held that this was a violation of Katz’s Fourth Amendment rights The decision has to do with the PERSON’s right to privacy, NOT the PLACE. The decision has to do with the PERSON’s right to privacy, NOT the PLACE.

12 Aerial Surveillance? In 1986 the court ruled that information gathered by aircraft of a suspects home was not in violation of the Fourth Amendment because it was a general observation and therefore admissible In 1986 the court ruled that information gathered by aircraft of a suspects home was not in violation of the Fourth Amendment because it was a general observation and therefore admissible California v. Ciraolo California v. Ciraolo

13 Tape Recording and Wiretapping Cases That Made National News Tape recordings leading to impeachment of U.S. President (Tripp/Clinton) Tape recordings leading to impeachment of U.S. President (Tripp/Clinton) Crime of dissemination (passing on information of contents of illegal wiretaps or tapes) Crime of dissemination (passing on information of contents of illegal wiretaps or tapes) Tapings of public statements by public figures that did not violate privacy laws Tapings of public statements by public figures that did not violate privacy laws California criminal wiretapping trial (“Hollywood’s Mr. Fixit”) California criminal wiretapping trial (“Hollywood’s Mr. Fixit”)

14 Confrontational Telephone Calls Requires cooperation of the witness or victim and the call has to placed before criminal charges have been filed. Requires cooperation of the witness or victim and the call has to placed before criminal charges have been filed. If the call is AFTER charges have been filed, is “accusatory,” and is designed to elicit an incriminating statement, the Massiah Rule would apply and the person would have to be admonished. If the call is AFTER charges have been filed, is “accusatory,” and is designed to elicit an incriminating statement, the Massiah Rule would apply and the person would have to be admonished.

15 The laws authorize court orders permitting wiretapping and/or electronic surveillance by law enforcement officers in much the same manner as search warrants are issued. The laws authorize court orders permitting wiretapping and/or electronic surveillance by law enforcement officers in much the same manner as search warrants are issued. The act makes wiretapping and electronic surveillance done in violation of the act a felony. The act makes wiretapping and electronic surveillance done in violation of the act a felony.

16 Techniques of Lawful Electronic Surveillance The three primary techniques of electronic surveillance available to law enforcement agencies are: The three primary techniques of electronic surveillance available to law enforcement agencies are: Pen Registers Pen Registers Trap and Trace Devices Trap and Trace Devices Interception of the Content of the Message Interception of the Content of the Message

17 Obtaining Evidence by Overhearing, Monitoring, and/or Recording Statements or Conversations Overheard conversation (plain hearing in public or private place) Overheard conversation (plain hearing in public or private place) Statements made to undercover officers or others in their presence Statements made to undercover officers or others in their presence Tape recordings where suspect has no expectation of privacy (police vehicles, jail cells, etc.) Tape recordings where suspect has no expectation of privacy (police vehicles, jail cells, etc.)

18 Overhearing, Taping Statements or Conversations (Cont.) One party to a telephone conversation consents to recording or listening to conversation by police One party to a telephone conversation consents to recording or listening to conversation by police “Confrontational” telephone call or face- to-face meeting with a suspect “Confrontational” telephone call or face- to-face meeting with a suspect Using body wires or radio transmitters Using body wires or radio transmitters

19 Kyllo v. U.S. Use of Thermal Imaging devices are RESTRICTED and a warrant must be obtained. Use of Thermal Imaging devices are RESTRICTED and a warrant must be obtained.

20 Obtaining Evidence by Use of Dogs Trained to Indicate an Alert Drug and Bomb Detection Dogs Drug and Bomb Detection Dogs In using dog-detection evidence in criminal courts, keeping and maintaining updated records on the dog and its handler is essential because the challenge to this evidence generally is the dog’s reliability. In using dog-detection evidence in criminal courts, keeping and maintaining updated records on the dog and its handler is essential because the challenge to this evidence generally is the dog’s reliability.

21 Obtaining Evidence by Use of Dogs Trained to Indicate an Alert (Cont.) Testimony on the dog reliability: Testimony on the dog reliability: The training that the dog received to detect the odors for particular drugs The training that the dog received to detect the odors for particular drugs The dog’s success rate in detecting these drugs The dog’s success rate in detecting these drugs The method used to train the dog to indicate an alert The method used to train the dog to indicate an alert

22 Obtaining Evidence by Use of Dogs Trained to Indicate an Alert (Cont.) Whether the dog alerted in the proper manner Whether the dog alerted in the proper manner Proof of the dog’s certification Proof of the dog’s certification Proof that the dog has continued to meet certification requirements and has continued to receive necessary training on a regular basis Proof that the dog has continued to meet certification requirements and has continued to receive necessary training on a regular basis