CRIMINAL PROCEDURE CLASS FOUR Today’s Topics Search Incident to Arrest Pretext Arrest Plain View and Plain Touch Automobile Searches Exigent Circumstances Special.
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Transcript CRIMINAL PROCEDURE CLASS FOUR Today’s Topics Search Incident to Arrest Pretext Arrest Plain View and Plain Touch Automobile Searches Exigent Circumstances Special.
CRIMINAL PROCEDURE
CLASS FOUR
Today’s Topics
Search Incident to Arrest
Pretext Arrest
Plain View and Plain Touch
Automobile Searches
Exigent Circumstances
Special Needs Searches
Administrative Searches
SEARCH INCIDENT TO
ARREST
Search Incident to Arrest
Major exception to warrant requirement
Accepted practice when Bill of Rights
adopted
Scope of Search
Suspect’s “grab” area
Reasonable to search for both
– Weapons
– Evidence [contrast Terry]
Post-Arrest Movement
What impact on search incident to arrest
when arrestee is allowed to move around to
different areas?
Contrast with Protective
Sweep
Conduct: quick and limited search of
premises
Purpose: looking for individual posing
danger to officer or others
Not automatic right
Requires reasonable suspicion (Terry)
Spatial limitations
Search of Person
Rule: With lawful custodial arrest, full search of
person justified under 4th Amd
Rationales:
– Need to disarm person to take into custody
– Need to preserve evidence
Is search limited by type of crime for which person
arrested?
Search of Person
Assume custodial arrest based on probable
cause, what other justification is needed?
What if officer has discretion to make full
custody arrest to just issue a summons or
citation?
Impact on Automobiles
Bright Line Rule: Contemporaneous to
arrest of occupant, police may search
passenger compartment
Includes all containers found -- open or
closed
What is a container?
Search Incident to Citation?
Search incident to citation is NOT the same
as search incident to arrest
PRETEXT STOPS &
ARRESTS
Concerns
Fear: Police might take advantage of
relatively minor offense to forage for
evidence of greater crimes
Fear exacerbated if initial stop or arrest was
motivated by impermissible reason, such as
race
Exercise
Identify 3 key arguments on each side of
debate
Supreme Court’s Response
Fact that officers had probable cause to believe D
had violated traffic code renders stop reasonable
under 4th Amd
Only in very few areas has Court allowed officer
motive to invalidate objectively justifiable
behavior under 4th Amd
If race-based selection, proper remedy is equal
protection challenge
Executive Branch Responses
National
State
Local
Plain View/Plain Touch
General Rule
Object of incriminating nature can be seized
without warrant if in “plain view” of officer
lawfully present at the scene
Relationship to Warrant
Clause
Not an exception to warrant requirement
Independent justification for seizure of
goods taken
Caution
Plain view applies to warrantless seizure
It does not authorize warrantless search for
an item
Requirements
Officer within scope of lawful authority
Probable cause that object is evidence of
crime [or contraband]
Probable cause immediately apparent
[further search not necessary]
Expansion to Other Senses
Plain hearing
Plain smell
Plain touch [plain feel]
Car Searches
Areas of Concern
Should there be an “automobile” exception
to the warrant requirement?
If so, what is its basis --- car’s inherent
mobility, or reduced expectation of privacy?
What about property that can be moved in
and out of cars?
Historical Conflict
Object placed in car
[probable cause precedes]
– Chadwick [officers wait
until footlocker is taken
from train and put in car]
– Saunders [officers wait
until suitcase placed in taxi]
Object found during
search of car
– Ross [informant tells
officers D dealing
drugs from trunk;
police stop car]
Contemporary Test
Acevedo
Police may search an automobile and
containers within it where they have
probable cause to believe contraband or
evidence is contained in car
One rule governs all automobile searches
Distinguish Search Incident to
Arrest
Search incident to arrest needs no other
justification
Search incident to arrest is limited to
passenger compartment
Distinguish Search Incident to
Arrest
“Automobile exception” is exception to
general warrant requirement
Probable cause required to justify search
under automobile exception
Application to Passengers
Acevedo and precursor cases involved
warrantless searches of containers clearly
owner by car’s driver
Issue: Does automobile exception apply to
search of passenger possessions in the car?
Balancing Interests
Government
– Effective law
enforcement
– Ready mobility
– Passenger often
engaged in common
enterprise with driver
Individual
– Reduced expectation of
privacy
– Traveling thorough
public thoroughfares
– Seldom serve as
repository for personal
effects
– Subject to stops
(pervasive gov’t
control)
Holding
Officers with probable cause to search a car
may inspect passenger belongings found in
the car that are capable to concealing the
object of the search
Exercise
Is the Supreme Court correct in its
conclusions about expectations of privacy in
cars? Are cars frequently a repository for
personal effects?
EXGIENT CIRCUMSTANCES
Concept
Exception to warrant requirement
Theory: Impractical for officer to get
warrant
Implication: Immediate action required
Examples
Hot Pursuit
Safety
Evidence Destruction
Application Questions
Is type of crime a significant factor?
Can doctrine be applied to permit seizing
premises while warrant being obtained?
Can doctrine be applied to permit restricted
access to premise while warrant being
obtained?
SPECIAL NEEDS
SEARCHES
Concepts
Analyzed under “reasonableness clause” of
4th Amd
Searches made for purposes distinct from
traditional law enforcement
Purposes Distinct from
Traditional Law Enforcement
Might include:
– Enforcing school policy
– Upholding public safety
– Promoting administrative efficiency
Contrast traditional law enforcement needs:
– Detect crime
– Prosecute offenders
Balancing Test
If challenged conduct is supported by
special needs beyond criminal law
enforcement, then Court uses balancing test
Need for search vs.
Degree of invasion on personal rights
Potential Hallmarks
Search or seizure conducted for reasons
either unrelated or only indirectly related to
investigation of prosecution of crime
Those conducting often are not police
officers [although they can be]
Those subject to conduct often are not
criminal suspects
ADMINISTRATIVE
SEARCHES
Safety Inspection of Homes
Safety Inspection of Business
Warrantless entry into probationer’s home
Types of Justification
Administrative probable cause
Area-wide warrant
Statute/regulation offering warrant
equivalent
Heavily Regulated Business
Examples: liquor, pawnshops, weapons dealers,
mines
3 criteria to support warrantless inspection
– Substantial gov’t interest that informs regulatory
scheme
– Warrantless inspection necessary to further
– Inspection program must provide constitutionally
adequate substitute for warrant [certainty and
regularity of application]