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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. - PowerPoint PPT Presentation
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CRIMINAL PROCEDURECRIMINAL PROCEDURE
CLASS FOUR
Today’s TopicsToday’s Topics
Search Incident to ArrestPretext ArrestPlain View and Plain TouchAutomobile SearchesExigent CircumstancesSpecial Needs SearchesAdministrative Searches
SEARCH INCIDENT TO SEARCH INCIDENT TO ARRESTARREST
Search Incident to ArrestSearch Incident to Arrest
Major exception to warrant requirementAccepted practice when Bill of Rights
adopted
Scope of SearchScope of Search
Suspect’s “grab” area
Reasonable to search for both– Weapons– Evidence [contrast Terry]
Post-Arrest MovementPost-Arrest Movement
What impact on search incident to arrest when arrestee is allowed to move around to different areas?
Contrast with Protective Contrast with Protective SweepSweep
Conduct: quick and limited search of premises
Purpose: looking for individual posing danger to officer or others
Not automatic rightRequires reasonable suspicion (Terry)Spatial limitations
Search of PersonSearch 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 PersonSearch 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 AutomobilesImpact 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?
Search incident to citation is NOT the same as search incident to arrest
PRETEXT STOPS & PRETEXT STOPS & ARRESTSARRESTS
ConcernsConcerns
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
ExerciseExercise
Identify 3 key arguments on each side of debate
Supreme Court’s ResponseSupreme 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 ResponsesExecutive Branch Responses
National
State
Local
Plain View/Plain TouchPlain View/Plain Touch
General RuleGeneral Rule
Object of incriminating nature can be seized without warrant if in “plain view” of officer lawfully present at the scene
Relationship to Warrant Relationship to Warrant ClauseClause
Not an exception to warrant requirement
Independent justification for seizure of goods taken
CautionCaution
Plain view applies to warrantless seizure
It does not authorize warrantless search for an item
RequirementsRequirements
Officer within scope of lawful authorityProbable cause that object is evidence of
crime [or contraband]Probable cause immediately apparent
[further search not necessary]
Expansion to Other SensesExpansion to Other Senses
Plain hearing
Plain smell
Plain touch [plain feel]
Car SearchesCar Searches
Areas of ConcernAreas 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 ConflictHistorical 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 TestContemporary 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 Distinguish Search Incident to ArrestArrest
Search incident to arrest needs no other justification
Search incident to arrest is limited to passenger compartment
Distinguish Search Incident to Distinguish Search Incident to ArrestArrest
“Automobile exception” is exception to general warrant requirement
Probable cause required to justify search under automobile exception
Application to PassengersApplication 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 InterestsBalancing 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)
HoldingHolding
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
ExerciseExercise
Is the Supreme Court correct in its conclusions about expectations of privacy in cars? Are cars frequently a repository for personal effects?
EXGIENT CIRCUMSTANCESEXGIENT CIRCUMSTANCES
ConceptConcept
Exception to warrant requirement
Theory: Impractical for officer to get warrant
Implication: Immediate action required
ExamplesExamples
Hot PursuitSafetyEvidence Destruction
Application QuestionsApplication 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 SPECIAL NEEDS SEARCHESSEARCHES
ConceptsConcepts
Analyzed under “reasonableness clause” of 4th Amd
Searches made for purposes distinct from traditional law enforcement
Purposes Distinct from Purposes Distinct from Traditional Law EnforcementTraditional Law Enforcement
Might include:– Enforcing school policy– Upholding public safety– Promoting administrative efficiency
Contrast traditional law enforcement needs:– Detect crime– Prosecute offenders
Balancing TestBalancing 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 HallmarksPotential 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 ADMINISTRATIVE SEARCHESSEARCHES
Safety Inspection of HomesSafety Inspection of BusinessWarrantless entry into probationer’s home
Types of JustificationTypes of Justification
Administrative probable causeArea-wide warrantStatute/regulation offering warrant
equivalent
Heavily Regulated BusinessHeavily 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]
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