The Exclusionary Rule— Search and Seizure

The Exclusionary The Exclusionary Rule—Rule—

Search and SeizureSearch and Seizure

The Exclusionary Rule

The rule that The rule that provides that provides that illegally obtained illegally obtained evidence will be evidence will be excluded from use excluded from use in a criminal trial.in a criminal trial.

The Exclusionary Rule

The rule exludes the The rule exludes the introduction of introduction of evidence whenever evidence whenever police obtain the police obtain the evidence in a evidence in a manner that violates manner that violates a person’s a person’s constitutional rights.constitutional rights.

Rights Affected by the Exclusionary Rule

The Fourth Amendment right to be free from The Fourth Amendment right to be free from unreasonable searches and seizuresunreasonable searches and seizures

The Sixth amendment right to counselThe Sixth amendment right to counsel The Fifth Amendment privilege against self-The Fifth Amendment privilege against self-

incrimination, and incrimination, and The Fifth and Fourteenth Amendments rights to due The Fifth and Fourteenth Amendments rights to due

process of lawprocess of law The protections afforded by the The protections afforded by the Miranda Miranda decision decision

An Interesting Distinction

The exclusionary rule is not truly a rule of The exclusionary rule is not truly a rule of evidence. evidence.

Rules of evidence were developed to Rules of evidence were developed to regulate the flow of information presented regulate the flow of information presented in a courtroom to find the historical facts of in a courtroom to find the historical facts of a legal dispute.a legal dispute.

The Distinction Discussedand Explained

Principles of trustworthiness, Principles of trustworthiness, reliability, and necessity came reliability, and necessity came to bear in formulating the to bear in formulating the rules of evidence.rules of evidence.

The exclusionary rule seeks to The exclusionary rule seeks to promote a different value – to promote a different value – to protect certainprotect certain constitutional rights of constitutional rights of individual citizens.individual citizens.

The Exclusionary Rule—Court Created

In the case of In the case of Weeks v. United StatesWeeks v. United States (1914), the (1914), the U.S. Supreme Court adopted the Fourth U.S. Supreme Court adopted the Fourth Amendment search and seizure exclusionary rule Amendment search and seizure exclusionary rule for the first time.for the first time.

In the case of In the case of Mapp v. OhioMapp v. Ohio (1961), the Court (1961), the Court applied the exclusionary rule in search and seizures applied the exclusionary rule in search and seizures in in state state trials.trials.

Mapp v. Ohio In In MappMapp, the Supreme Court stated a number , the Supreme Court stated a number

of justifications for the exclusionary rule, of justifications for the exclusionary rule, including deterrence of unlawful police including deterrence of unlawful police conduct and the notion that the courts should conduct and the notion that the courts should not participate in such illegality by allowing not participate in such illegality by allowing the fruits of it into evidence.the fruits of it into evidence.

““We hold that all evidence obtained by We hold that all evidence obtained by searches and seizures in violation of the searches and seizures in violation of the Constitution is, by that same authority, Constitution is, by that same authority, inadmissible in a state court.”inadmissible in a state court.”

Development of the Exclusionary Rule and Its

Exceptions According to common law, the fact that evidence According to common law, the fact that evidence

was illegally obtained did not exclude it from was illegally obtained did not exclude it from being admitted in court against the accused.being admitted in court against the accused.

The rule was that if evidence was relevant to the The rule was that if evidence was relevant to the case and aided in proving an issue at trial, then the case and aided in proving an issue at trial, then the evidence should be admitted. evidence should be admitted.

The courts did not concern themselves with how The courts did not concern themselves with how the evidence was obtained. the evidence was obtained.

Moreover, the exclusionary rule was at one time Moreover, the exclusionary rule was at one time unique to the American system of justice.unique to the American system of justice.

End of the Silver Platter Doctrine

State officers who obtained evidence State officers who obtained evidence illegally could hand it over to federal illegally could hand it over to federal officers for prosecution in federal court.officers for prosecution in federal court.

The silver platter doctrine ended with the The silver platter doctrine ended with the 1960 United States Supreme Court case of 1960 United States Supreme Court case of Elkins v. United StatesElkins v. United States. .

Elkins v. United States

The Court held that evidence illegally The Court held that evidence illegally obtained by a state officer, was inadmissible obtained by a state officer, was inadmissible in a federal prosecution. in a federal prosecution.

The test applied is: The test applied is: Evidence obtained unlawfully by a state Evidence obtained unlawfully by a state

officer is treated the same as if obtained in officer is treated the same as if obtained in the same manner by a federal officer.the same manner by a federal officer.

Philosophy of theExclusionary Rule

The first and most significant rationale, or The first and most significant rationale, or justification, is the deterrence rationale—to justification, is the deterrence rationale—to deter police officers from disregarding the deter police officers from disregarding the Constitution.Constitution.

The second rationale is the need to maintain The second rationale is the need to maintain judicial integrity. Judges cannot be judicial integrity. Judges cannot be accomplices to illegality by allowing the accomplices to illegality by allowing the introduction of illegally obtained evidence.introduction of illegally obtained evidence.

United States v. LeonThe Good Faith Exception

Police officers executed a warrant under a good faith belief that Police officers executed a warrant under a good faith belief that the warrant was supported by probable cause.the warrant was supported by probable cause.

Later, it turned out that the warrant was invalid for lack of Later, it turned out that the warrant was invalid for lack of probable cause.probable cause.

The Court said: “[i]n the absence of an allegation that the The Court said: “[i]n the absence of an allegation that the magistrate abandoned his detached and neutral role, [exclusion magistrate abandoned his detached and neutral role, [exclusion of evidence] is appropriate only if the officers were dishonest of evidence] is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of harbored an objectively reasonable belief in the existence of probable cause.”probable cause.”

The Exclusionary Rule:The Good Faith Exception

This exception to the exclusionary rule This exception to the exclusionary rule allows the admission of evidence even if allows the admission of evidence even if there is some technical defect in the there is some technical defect in the warrant, as long as the executing officer has warrant, as long as the executing officer has an objectively reasonable belief that the an objectively reasonable belief that the warrant is valid.warrant is valid.

The Exclusionary Rule: The Good Faith Exception

The essential test for the good faith exception exists:The essential test for the good faith exception exists: when an officerwhen an officer in executing a search warrantin executing a search warrant has an objectively reasonable belief that the warrant has an objectively reasonable belief that the warrant

is valid,is valid, then the evidence may be admissible at trial even if then the evidence may be admissible at trial even if

there is some technical defect in the warrant. there is some technical defect in the warrant.

The Exception to the Exception When there is a When there is a

warrant and a warrant and a reasonably well-reasonably well-trained officer trained officer realizes that the search realizes that the search warrant is invalid, warrant is invalid, then the “good faith” then the “good faith” exception would not exception would not apply.apply.

Maryland v. GarrisonApplication of the Good Faith

Doctrine Police obtained a search warrant for a third floor Police obtained a search warrant for a third floor

apartment of a person named McWebb.apartment of a person named McWebb.

It was unknown that the third floor had more than one It was unknown that the third floor had more than one apartment.apartment.

Police discovered paraphernalia in the Garrison Police discovered paraphernalia in the Garrison apartment which was not included in the warrant.apartment which was not included in the warrant.

Maryland v. GarrisonApplication of the Good Faith

Doctrine

Police were in the wrong apartment, didn’t know Police were in the wrong apartment, didn’t know it, and seized items not mentioned in the warrant. it, and seized items not mentioned in the warrant.

The Court upheld the search because the officers The Court upheld the search because the officers

executed the search warrant under a good faith, executed the search warrant under a good faith, though mistaken, belief that they were acting though mistaken, belief that they were acting within the scope of the warrant.within the scope of the warrant.

The Exclusionary Rule:The Impeachment Exception

The exception to the exclusionary rule that The exception to the exclusionary rule that allows the prosecution to use evidence allows the prosecution to use evidence illegally seized from the accused in illegally seized from the accused in violation of his or her Fourth Amendment violation of his or her Fourth Amendment rights for the limited purpose, at trial, of rights for the limited purpose, at trial, of impeaching the accused during direct impeaching the accused during direct examination or cross-examination.examination or cross-examination.

Search And Seizure The Fourth The Fourth

Amendment prohibits Amendment prohibits unreasonable searches unreasonable searches and seizures, and and seizures, and provides that no provides that no warrants for search warrants for search and seizure shall be and seizure shall be issued without issued without probable cause.probable cause.

Subjects of the Search The search for and seizure The search for and seizure

of evidence is not confined of evidence is not confined to physical, tangible to physical, tangible objects. objects.

The object of a search or The object of a search or seizure may be the fruits of seizure may be the fruits of a crime, materials used in a a crime, materials used in a crime, evidence of a crime, crime, evidence of a crime, weapons, contraband, or a weapons, contraband, or a person.person.

Search and SeizureDistinctions

A search is one act and a seizure is another: It is A search is one act and a seizure is another: It is possible to conduct a search and not make a seizure, possible to conduct a search and not make a seizure, or there may be a seizure without a search. or there may be a seizure without a search.

It is quite possible to have authority to search, but It is quite possible to have authority to search, but not to seize; or, authority to seize but not to search.not to seize; or, authority to seize but not to search.

The legality of a seizure of an object is usually The legality of a seizure of an object is usually dependent upon the legality of the search, but an dependent upon the legality of the search, but an illegal seizure may stem from a legal search.illegal seizure may stem from a legal search.

Historically–What Is a Search? A person was deemed to A person was deemed to

have Fourth Amendment have Fourth Amendment protection in his or her protection in his or her home or other areas in home or other areas in which the person had a which the person had a property interest. property interest.

If the police intruded onto If the police intruded onto such property, even such property, even slightly, a search occurred.slightly, a search occurred.

Katz v. United States (1967)A Change in the Meaning of “Search”

Katz was convicted of transmitting wagers in interstate Katz was convicted of transmitting wagers in interstate commerce through the use of a telephone booth.commerce through the use of a telephone booth.

FBI agents had attached an electronic listening device FBI agents had attached an electronic listening device to the booth and recorded Katz’s conversations. to the booth and recorded Katz’s conversations.

The recordings were used as evidence at trial.The recordings were used as evidence at trial. On appeal, the Supreme Court ruled that a search On appeal, the Supreme Court ruled that a search

could occur without a physical entry.could occur without a physical entry.

Katz v. United States The Fourth Amendment protects people, not places. The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even What a person knowingly exposes to the public, even

in his own home or office, is not a subject of Fourth in his own home or office, is not a subject of Fourth Amendment protection. . . .Amendment protection. . . .

But what he seeks to preserve as private, even in an But what he seeks to preserve as private, even in an area accessible to the public may be constitutionally area accessible to the public may be constitutionally protected. . . . protected. . . .

The Reasonable Expectationof Privacy Test

The test is whether: The test is whether: The person alleging that a search occurred has exhibited The person alleging that a search occurred has exhibited

an actual, subjective, expectation of privacy in the place an actual, subjective, expectation of privacy in the place searched. searched.

The person's expectation is one that society is prepared The person's expectation is one that society is prepared to recognize as reasonable or legitimate.to recognize as reasonable or legitimate.

If both are present, then there is a search.If both are present, then there is a search.

Search Issue:The False Friend Doctrine

What a person willingly What a person willingly reveals to another, on the reveals to another, on the assumption that the other assumption that the other is a friend, is thereby is a friend, is thereby revealed to the world if revealed to the world if the so-called friend turns the so-called friend turns out to be no friend at all. out to be no friend at all.

Hoffa v. United StatesFalse Friend Doctrine

A government informant attended meetings between A government informant attended meetings between Jimmy Hoffa, who was on trial for perjury, and Hoffa’s Jimmy Hoffa, who was on trial for perjury, and Hoffa’s attorney.attorney.

During the meetings, Hoffa talked freely about his actions.During the meetings, Hoffa talked freely about his actions. The informer relayed the information to the FBI and it The informer relayed the information to the FBI and it

helped convict Hoffa.helped convict Hoffa. On appeal, the Supreme Court relied upon an “assumption On appeal, the Supreme Court relied upon an “assumption

of the risk” theory to conclude that there was no search in of the risk” theory to conclude that there was no search in this situation.this situation.

Search Issue:Open Fields Doctrine

and Curtilage People do not have a People do not have a

legitimate expectation legitimate expectation of privacy in open of privacy in open fields even if law fields even if law enforcement officers enforcement officers trespass upon private trespass upon private property in order to property in order to observe the open observe the open fields.fields.

Hester v. United StatesOpen Fields Doctrine

Federal officers had gone past “No Trespassing” Federal officers had gone past “No Trespassing” signs onto private property where they saw signs onto private property where they saw marijuana growing. marijuana growing.

The marijuana was growing in fields that were not The marijuana was growing in fields that were not visible unless one entered the private property. visible unless one entered the private property.

The officers walked around a gate and through a The officers walked around a gate and through a private woods in two separate instances. private woods in two separate instances.

The Court concluded, under the open fields The Court concluded, under the open fields doctrine, that doctrine, that people do not have a legitimate people do not have a legitimate expectation of privacy in open fields.expectation of privacy in open fields.

Curtilage Distinguished From Open Fields

In In Oliver v. United Oliver v. United States,States, the Court the Court distinguished open fields distinguished open fields from the from the curtilagecurtilage, i.e., , i.e., the land immediately the land immediately surrounding and surrounding and associated with the associated with the home.home.

Technologically Enhanced Activities

In In Smith v. MarylandSmith v. Maryland, the Court found that the installation , the Court found that the installation and use of a pen register (a device that records the numbers and use of a pen register (a device that records the numbers dialed by a telephone) by the telephone company was not a dialed by a telephone) by the telephone company was not a search under the Fourth Amendment.search under the Fourth Amendment.

United States v. KaroUnited States v. Karo involved a beeper in a chemical involved a beeper in a chemical container, but the police used it to monitor the suspect's container, but the police used it to monitor the suspect's movements within private houses as well as public places. movements within private houses as well as public places. The Court found this monitoring to be a search since the The Court found this monitoring to be a search since the property monitored had been removed from public view.property monitored had been removed from public view.

Technologically Enhanced Activities

While pointing a flashlight While pointing a flashlight at night to illuminate an at night to illuminate an area open to public view area open to public view does not trigger Fourth does not trigger Fourth Amendment issues, there Amendment issues, there are a variety of devices that are a variety of devices that could, ranging from could, ranging from parabolic microphones to parabolic microphones to electronic tracking devices.electronic tracking devices.

United States v. Knotts

Using visual as well as Using visual as well as electronic monitoring, electronic monitoring, the officers were able the officers were able to locate the suspects to locate the suspects via their possession of via their possession of the “beeperized” the “beeperized” container even though container even though they lost visual contact they lost visual contact with the suspects.with the suspects.

A Concern of Technology

Technologically enhanced police activities Technologically enhanced police activities could be subject to a principle other than the could be subject to a principle other than the information gained by the officers — information gained by the officers — whether the technique used is so readily whether the technique used is so readily available that it can be said that there is no available that it can be said that there is no reasonable privacy expectation against its reasonable privacy expectation against its use by the public at large.use by the public at large.

Aerial Surveillance:Navigable Airspace?

Navigable in a non-Navigable in a non-obtrusive manner, such obtrusive manner, such aerial surveillance, not aerial surveillance, not enhanced enhanced technologically, technologically, does does not constitute a searchnot constitute a search even though the even though the observations were of observations were of activities taking place activities taking place within the curtilage of within the curtilage of private dwellings.private dwellings.

Miscellaneous Matters Pertaining to Defining What a Search Is

If the information obtained was available to the public, If the information obtained was available to the public, then the Court has concluded that there is no search.then the Court has concluded that there is no search.

Whether police conduct constitutes a search may Whether police conduct constitutes a search may depend upon such factors as the quantity or quality of depend upon such factors as the quantity or quality of information the conduct reveals.information the conduct reveals.

The information revealed was very limited in nature, The information revealed was very limited in nature, and the information would only disclose the presence and the information would only disclose the presence or absence of contraband, which cannot be legally or absence of contraband, which cannot be legally possessed.possessed.

Garbage and Privacy When one places garbage for When one places garbage for

collection in containers out on the collection in containers out on the street, there is no legitimate street, there is no legitimate expectation of privacy.expectation of privacy.

The Supreme Court concluded that The Supreme Court concluded that garbage was outside the curtilage garbage was outside the curtilage and concluded that the Fourth and concluded that the Fourth Amendment does not protect Amendment does not protect information knowingly exposed to information knowingly exposed to the public.the public.

What Is a Seizure?

Seizure of PropertySeizure of Property Seizure of a PersonSeizure of a Person

Seizure of Property A seizure that occurs when there is some A seizure that occurs when there is some

meaningful interference with an individual's meaningful interference with an individual's possessory interest in that property.possessory interest in that property.

Destruction of the property, taking the Destruction of the property, taking the

property from the person's possession, or property from the person's possession, or preventing persons from entering or leaving preventing persons from entering or leaving their home constitute meaningful their home constitute meaningful interferences with individuals' possessory interferences with individuals' possessory interests.interests.

Seizure of a Person

A seizure of a person occurs when:A seizure of a person occurs when: (1) by means of physical force or show of (1) by means of physical force or show of

authority, the person's freedom of movement authority, the person's freedom of movement is restrained; and, only if, is restrained; and, only if,

(2) in view of all of the circumstances (2) in view of all of the circumstances surrounding the incident, a reasonable person surrounding the incident, a reasonable person would not have believed he or she were not would not have believed he or she were not free to leave.free to leave.

Florida v. BostickStandard of Seizure

Officers boarded a bus during a stopover for a Officers boarded a bus during a stopover for a random check.random check.

Officers questioned Bostick and received Officers questioned Bostick and received permission to search his luggage in which they permission to search his luggage in which they found narcotics. found narcotics.

On appeal, the Court held that Bostick was not On appeal, the Court held that Bostick was not seized and the correct standard is whether “a seized and the correct standard is whether “a reasonable person would feel free to decline the reasonable person would feel free to decline the officers’ requests or otherwise terminate the officers’ requests or otherwise terminate the encounter.”encounter.”

Ways of Making a Reasonable Search and Seizure

Searches and seizures made pursuant to a search warrant.Searches and seizures made pursuant to a search warrant. Warrantless searches and seizures that have been Warrantless searches and seizures that have been

declared reasonable via a “well delineated exception” to declared reasonable via a “well delineated exception” to the warrant clause. the warrant clause.

Less intrusive searches and seizures, which are made on Less intrusive searches and seizures, which are made on less than probable cause, such as searches and seizures less than probable cause, such as searches and seizures under the under the TerryTerry doctrine, based on a “reasonable doctrine, based on a “reasonable suspicion.”suspicion.”

Exceptions to the Warrant Clause

The six “well delineated” exceptions to the The six “well delineated” exceptions to the warrant clause are: warrant clause are:

(1)(1) search incident to a lawful arrest (SILA); search incident to a lawful arrest (SILA); (2)(2) consent; consent; (3)(3) vehicle and container searches;vehicle and container searches; (4)(4) inventory searches;inventory searches; (5)(5) exigent circumstances searches; andexigent circumstances searches; and (6)(6) plain view searches.plain view searches.

Search Pursuant toa Search Warrant

The framers of this constitutional provision The framers of this constitutional provision realized that there would be times when realized that there would be times when reasonable searches and seizures would be reasonable searches and seizures would be necessary and expedient for the protection of the necessary and expedient for the protection of the people— when a crime has been committed and people— when a crime has been committed and the perpetrator of that crime has attempted to the perpetrator of that crime has attempted to conceal himself or the fruits of the crime.conceal himself or the fruits of the crime.

Critical Point!

These requirements These requirements specifically prohibit specifically prohibit general warrants, general warrants, preventing a “general, preventing a “general, exploratory exploratory rummaging in a rummaging in a person's belongings.”person's belongings.”

Definition of Search Warrant

A search warrant is a written order, A search warrant is a written order, issued upon probable cause by a neutral issued upon probable cause by a neutral and detached magistrate, in the name of and detached magistrate, in the name of the people, to a peace officer directing the people, to a peace officer directing the officer to search a particular person the officer to search a particular person or place, and to seize specifically or place, and to seize specifically described property and bring it before the described property and bring it before the magistrate.magistrate.

Grounds for Issuinga Search Warrant

(1) property that is the (1) property that is the fruit of a crimefruit of a crime, such as stolen , such as stolen or embezzled property;or embezzled property;

(2) property that is an (2) property that is an instrumentality of a crimeinstrumentality of a crime, , meaning that the property was used as the means of meaning that the property was used as the means of committing a crime, such as a gun used in a robbery;committing a crime, such as a gun used in a robbery;

(3) property that is (3) property that is evidence of a crimeevidence of a crime, tending to , tending to show that a felony has been committed or that a show that a felony has been committed or that a particular individual has committed a felony, such as particular individual has committed a felony, such as a bloody shirt;a bloody shirt;

Grounds for Issuinga Search Warrant

(4) property that is (4) property that is contrabandcontraband, meaning any property , meaning any property that is unlawful to produce or possess, such as narcotics; that is unlawful to produce or possess, such as narcotics; oror

(5) persons for whom there is probable cause to believe (5) persons for whom there is probable cause to believe they have on their person one of the types of property they have on their person one of the types of property named in the first four categories, or for whom there is a named in the first four categories, or for whom there is a warrant for their arrest.warrant for their arrest.

Procedure to Obtain a Search Warrant

The Officer’s Role:The Officer’s Role: The officer must be able to The officer must be able to showshow that there is that there is

sufficient reason, or sufficient reason, or probableprobable cause, to believe cause, to believe that one of the foregoing grounds for the that one of the foregoing grounds for the issuance of a search warrant exists. issuance of a search warrant exists.

This belief must be This belief must be based on factsbased on facts articulated in articulated in

a written and sworn application for a warrant, a written and sworn application for a warrant, known as an known as an affidavit.affidavit.


The Officer’s Role:The Officer’s Role: The officer must then seek The officer must then seek approvalapproval of the of the

warrant applicationwarrant application from a supervisor or, in from a supervisor or, in some jurisdictions, a prosecutor. some jurisdictions, a prosecutor.

Once Once supervisory approvalsupervisory approval is obtained, the is obtained, the officer can then go to a judge or magistrate to officer can then go to a judge or magistrate to submit the warrant application and secure the submit the warrant application and secure the issuanceissuance of the warrant. of the warrant.


The Officer’s Role:The Officer’s Role: The officer usually will find the judge in the courthouse. The officer usually will find the judge in the courthouse.

If the circumstances demand, the officer may have to go If the circumstances demand, the officer may have to go to the judge's home. to the judge's home.

It is also possible for a judge to issue a warrant by It is also possible for a judge to issue a warrant by telephonetelephone. .

The procedure and circumstances for issuance of a The procedure and circumstances for issuance of a telephonic warrant vary from jurisdiction to jurisdiction.telephonic warrant vary from jurisdiction to jurisdiction.


The Magistrate’s Role:The Magistrate’s Role: The The magistratemagistrate must be must be satisfiedsatisfied that the facts set forth that the facts set forth

in the affidavit give rise to in the affidavit give rise to probable cause.probable cause. If the affidavit contains hearsay information, such as If the affidavit contains hearsay information, such as

from an informant, the from an informant, the judgejudge will closely will closely scrutinize scrutinize the the affidavit. affidavit.

If the magistrate does not think that the officer has If the magistrate does not think that the officer has enough facts to establish probable cause or that the enough facts to establish probable cause or that the hearsay information is unreliable, the magistrate, in some hearsay information is unreliable, the magistrate, in some jurisdictions, jurisdictions, may question the officermay question the officer. .


The Magistrate’s Role:The Magistrate’s Role: The The questions and answersquestions and answers will be reduced to will be reduced to

writing and made a writing and made a part of the affidavitpart of the affidavit filed by filed by the officer.the officer.

If, after this questioning takes place, the magistrate If, after this questioning takes place, the magistrate

is convinced that there is is convinced that there is sufficient probable sufficient probable causecause, the magistrate will , the magistrate will issue the warrantissue the warrant. .

Probable Cause The Fourth Amendment The Fourth Amendment

provides that no warrant shall provides that no warrant shall be issued except upon probable be issued except upon probable cause but does not spell out cause but does not spell out what probable cause is.what probable cause is.

The definition of probable The definition of probable cause has been developed cause has been developed primarily through court primarily through court decisions and interpretation.decisions and interpretation.

Probable Cause Probable cause to search “exists if Probable cause to search “exists if

‘the facts and circumstances within ‘the facts and circumstances within [the officers’] knowledge and of [the officers’] knowledge and of which they [have] reasonably which they [have] reasonably trustworthy information [are] trustworthy information [are] sufficient in themselves to warrant sufficient in themselves to warrant a man of reasonable caution in the a man of reasonable caution in the belief that an item subject to belief that an item subject to seizure will be found in the place to seizure will be found in the place to be searched.” be searched.” Brinegar v. United Brinegar v. United StatesStates

Probable Cause to Search:The Fair Probability Requirement

There must be a “fair probability” that the property subject There must be a “fair probability” that the property subject to being seized (contraband, or fruits, instrumentalities, or to being seized (contraband, or fruits, instrumentalities, or evidence of a crime) is presently in the specific place to be evidence of a crime) is presently in the specific place to be searched. searched.

There must be enough facts presented to cause a person of There must be enough facts presented to cause a person of reasonable caution to believe, by a fair probability, that the reasonable caution to believe, by a fair probability, that the stolen property is at that place. stolen property is at that place.

Fair probability has not been defined affirmatively, but has Fair probability has not been defined affirmatively, but has been said to be less than a preponderance of the evidence, been said to be less than a preponderance of the evidence, which is somewhere under a 50 percent likelihood.which is somewhere under a 50 percent likelihood.

Probable Cause to Arrest

Probable cause to arrest exists where the Probable cause to arrest exists where the facts and circumstances within the officer's facts and circumstances within the officer's knowledge, and of which he or she has knowledge, and of which he or she has reasonably trustworthy information, are reasonably trustworthy information, are sufficient to warrant a person of reasonable sufficient to warrant a person of reasonable caution to believe, by a fair probability, that caution to believe, by a fair probability, that a particular individual has committed, or is a particular individual has committed, or is committing, a particular offense.committing, a particular offense.

Probable Cause to Arrest:Source of Information

To establish probable cause, it is not necessary To establish probable cause, it is not necessary for the officer seeking a search warrant to have for the officer seeking a search warrant to have personal knowledge of the facts stated in the personal knowledge of the facts stated in the application or affidavit. application or affidavit.

The officer's information may stem from a The officer's information may stem from a

variety of sources.variety of sources.


The officer may receive it from a superior officer, a The officer may receive it from a superior officer, a confidential informant, an anonymous telephone call, confidential informant, an anonymous telephone call, a reliable person in the community, another officer a reliable person in the community, another officer who is an expert in a particular field, such as in who is an expert in a particular field, such as in narcotics or bookmaking, or the officer may have narcotics or bookmaking, or the officer may have gained the information from personal observations. gained the information from personal observations.

The source of information is often hearsay in nature, The source of information is often hearsay in nature, and the information might not be admissible at trial.and the information might not be admissible at trial.


The information must have been supplied by a The information must have been supplied by a source that an ordinarily prudent person would source that an ordinarily prudent person would accept as reasonably trustworthy. accept as reasonably trustworthy.

Whether the information provided in the affidavit Whether the information provided in the affidavit is reliable will be determined by a magistrate is reliable will be determined by a magistrate taking into account the "totality of circumstances" taking into account the "totality of circumstances" surrounding the application for the warrant.surrounding the application for the warrant.

Confidential Informant or Anonymous Source

Many times when Many times when information is information is furnished to an furnished to an officer, it is deemed officer, it is deemed advisable to keep the advisable to keep the identity of the identity of the informant informant confidential.confidential.

Identity of the Informant

The informant does not have to be identified The informant does not have to be identified in the affidavit in order to establish probable in the affidavit in order to establish probable cause for issuing a search warrant, but there cause for issuing a search warrant, but there must be enough facts set forth to enable the must be enough facts set forth to enable the magistrate to determine the reliability of the magistrate to determine the reliability of the information furnished.information furnished.

Application Case: Totality of Circumstances for Probable Cause

““[W]e reaffirm the totality of the circumstances [W]e reaffirm the totality of the circumstances analysis that traditionally has informed probable analysis that traditionally has informed probable cause determinations. . . . The task of the issuing cause determinations. . . . The task of the issuing magistrate is simply to make a practical, common-magistrate is simply to make a practical, common-sense decision whether, given all the circumstances sense decision whether, given all the circumstances set forth in the affidavit before him, including the set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair supplying hearsay information, there is a fair probability that contraband, or evidence of a crime probability that contraband, or evidence of a crime will be found in a particular place.” will be found in a particular place.” Illinois v. GatesIllinois v. Gates

Judicial Review ofProbable Cause

Just because a search or seizure was made pursuant to a search warrant does not ensure in all instances that the search or seizure will have been reasonable.

The trial court and later, an appellate court, when called upon by the accused, will make a careful review of the issuance of a warrant and make an independent decision.

Probable cause, therefore, is not determined under a neat set of legal rules, but is determined in light of how reasonable people act in everyday life.

Totality of Circumstancesfor Probable Cause

Particularity of Description of Property to Be Searched or Seized

The Fourth Amendment provides that the place to be searched and the thing to be seized must be particularly described.

Since particularly described is not spelled out, court decisions have set forth certain guidelines.

Particularity of Description of Property to Be Searched or Seized

First, the court considers the purpose of the requirement of particular description. The requirement seeks to prevent an indiscriminate, blanket authority to search a place or an area, and to prohibit a wholesale seizure without limits.

If the description is not specifically designated, the magistrate may refuse to issue the search warrant.

Discovery of Other Property:The Plain View Doctrine

If the officer, while conducting a search within the reasonable scope of the warrant, observes material that the officer has probable cause to believe is subject to seizure, the officer may seize it.

As long as the material is within plain view and the

officer is in a lawful position when the observation is made, anything that the officer recognizes to be fruits, instrumentalities, contraband, or evidence, may be seized.

Advice for the Officer

If you are seeking a search warrant, remember to list everything and everyone that you anticipate finding and everywhere you intend to search.

Reasons for Inclusive Listings First, assume you list just one or two items on the warrant,

such as the gun used in a murder, and intend to find the rest of the instrumentalities, fruits, and evidence during the search. In such a case, if you found the gun right away, you would no

longer be authorized to continue to search because the warrant was limited in scope to the gun. Anything seized after the gun was found would probably be inadmissible.

Second, you could be precluded from searching certain areas or places if you list only some of the items you are seeking.

Night Service of Warrant:The Old Rule

A common law tradition held that there is a heightened expectation of privacy in a person’s home in the nighttime.

Consequently, there existed a belief that nighttime service of a warrant required something more than just probable cause.

Night Service of Warrant:The Modern Day Rule

In 1974, the Supreme Court held that there is no Fourth Amendment requirement that warrants may only be served at night upon a showing of special circumstances.

Similarly, a majority of the states do not have special rules for the service of warrants at night.

In 23 states, the execution of search warrants is limited to daytime hours absent some special reason and authorization.

Fourteen other states expressly allow the execution of a search warrant at any time.

The remaining 13 states have no rules, either court made or statutory, which restrict the execution of search warrants to the daytime.

Who May Serve a Warrant? A search warrant may

be served by a peace officer only and not a private person.

A search warrant may be served by any one of the officers, or class of officers, mentioned in the search warrant.

Additional Considerations When Executing Search Warrants

The usual practice is that when a search is made pursuant to a search warrant, the officer executing the search shows the original search warrant to the occupant of the premises to be searched, and furnishes the occupant with a copy of the warrant and the affidavit before the search.

If there is no one present at the time of the search, a copy of the search warrant and affidavit should be posted in a conspicuous place inside the premises.

Knock and Announce and the Use of Force in Execution of a Warrant

Before an officer may execute a search warrant, the officer must knock and announce (this requirement is also known as knock and notice) his or her presence and purpose for entering, unless some kind of exigency exists.

Whether a search of a dwelling is reasonable or unreasonable may depend, in part, on whether the officers executing a search warrant knocked and announced their presence before entering.

Announcing Always Necessary?

There are times when announcing the officer's purpose prior to entering the premises is not necessary.

Occupants are already alerted. If the officer has probable cause to believe that his

or her life, or that of others, may be in danger. If there is reason to believe that evidence may be

destroyed. If the officer has an honest belief that the premises

to be searched are unoccupied.

Time Limit on Length of Search

There is no time limitation placed on how long officers may take to execute a search warrant, but the existence of a search warrant does not permit a search to continue indefinitely.

A Timely Note on the Length of Searches and Warrants

The kind of premises to be searched and the kind of property or evidence sought are determining factors in the length of time that a search may reasonably take: If stolen electronic equipment were sought in a private

residence, the search would probably be over in an hour or two, at the very most.

A search for stolen automobile parts in an automobile-parts warehouse or a junkyard could easily extend into several days.

Time Limit on Execution of Warrant: The Staleness Doctrine

Once a search warrant is issued, it may not be held indefinitely by the officer before making the search. This is known as the staleness doctrine.

Warrants are issued on the basis of probable cause to believe that the objects of the warrant are in a particular place.

Many objects sought via a search warrant are portable and cannot be presumed to remain in one place indefinitely.

Staleness = No Probable Cause?

If probable cause to search no longer exists and a search takes place anyway, a Fourth Amendment violation will occur.

Stale Warrants?

This is logical because probable cause to search is based on the probability that a particular thing is presently within a specific place, and if too much time elapses, the thing to be seized may no longer be on the premises.

Probable cause, therefore, becomes stale.

Statutes on Stale Warrants Specific laws usually set the length of time within

which a search warrant must be executed, measured from the time the warrant was issued.

The usual time is ten days. If the search is not made within that time, the search

warrant becomes void, and, if the officer still wishes to make a search, the officer will have to obtain a new search warrant.

In most jurisdictions, the time cannot be extended.

Return of the Search Warrant After a search has been made pursuant to a search

warrant, a return of the search warrant must be made to the magistrate who issued the search warrant. In most instances, this return is a separate

document. It gives a list of the property seized in connection

with the search. The officer will maintain custody and control of

the property seized until the court orders proper disposition of it.

Attack on the Search Warrant

The search warrant may be attacked by the defendant by alleging any of the following grounds:

There was insufficient probable cause for the issuance of the search warrant.

The place to be searched or the thing to be seized was not “particularly” described.

The warrant was not properly executed.

Reasonable Searches Without Warrant: Exceptions to the Warrant Requirement

search and seizure incident to lawful arrest; vehicle searches; inventory searches; consent searches; exigent circumstances searches; and plain view searches.

Search and Seizure Incident to a Lawful Arrest Exception

Based upon the necessity to protect the officer and prevent destruction of evidence, the exception permits an officer, without a warrant and further probable cause, to search the person and certain areas around an arrestee incident to a lawful arrest.

Search Incident to a Lawful Arrest

For a search incident to an arrest to be reasonable, the arrest must be a lawful one and the search must be limited to the following:

The person of the arrestee and the area within his or her immediate control (including any containers on the person or within the area);

Search Incident to a Lawful Arrest

If the arrest is made in a house or other structure, any area adjoining the room in which the arrest is made in which a person might be present who could immediately launch an attack upon the arresting officers (limited to only those spaces large enough to conceal a person); and

If the arrest is made while or immediately after the arrestee was a passenger in a vehicle, the passenger compartment of the vehicle and any containers therein, open or closed.

Scope of the Search: Person of the Arrestee and Area Within

Immediate Control

The general rule is that when a person is arrested, a search may be made of the person and the area that is under his or her “immediate control.”

The search of the person is clear and presents few problems, although the extent of the area under the arrestee's immediate control, or “wingspan,” is not always so easily determinable Chimel v. California,Chimel v. California, 395 U.S. 752, 763 395 U.S. 752, 763

(1969)(1969)

What is the area of that reach?

The area within the immediate control of the person arrested was defined in Chimel as “the area into which an arrestee might reach in order to grab a weapon or evidentiary items.”

The Protective Sweep

If an arrest takes place within a home or other structure, a protective sweep may be made of the area adjoining the room in which the arrest is made.

A protective sweep is a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.

Officer’s Justification for a Protective Sweep?

An officer needs no justification, other than a lawful custodial arrest, to “look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Maryland v. Buie, 494 U.S. 325 (1990)

However, an officer may only conduct a cursory visual inspection of those places immediately adjoining the place of arrest, and any search beyond that will require additional justification, namely a belief that a person posing a danger to the officer is in the area to be searched.

Incident to Arrest:Vehicle Search

If a custodial arrest takes place while the arrestee is in a vehicle, or has just emerged from a vehicle, an officer may search, as incident to the arrest, the area immediately within the control of the arrestee.

Scope of the Vehicle SearchIncident to Arrest

This includes not only the passenger compartment of the vehicle but any containers, open or closed, in that compartment.

The Court specifically stated that the officer could search containers, both open and closed, in the vehicle’s passenger compartment.

However, there is some question whether a locked container is within the Court’s language. The area subject to search does not extend to the trunk.

Blood Samples and Driving Under the Influence

The extent to which an officer may search an accused incident to an arrest has its limitations, particularly in cases of arrests for driving under the influence.

Blood Samples and Driving Under the Influence

Does drawing blood go beyond what is authorized in a search incident to a lawful arrest?

The Test of Schmerber v. California There must be “a clear indication” that evidence

will be found in the blood taken from the accused. This has been interpreted to mean three things:

(1) The officer must have probable cause to believe that the blood of the arrestee contains. criminal evidence, namely a blood-alcohol level.

(2) There must be an exigency that evidence will be destroyed if an officer were required to apply for a search warrant.

(3) The means and procedures employed by the officer must be reasonable.

Refusal to Give Samples— Admissible Evidence

An accused who refuses to give the evidence should be advised that it is not a violation of the privilege against self-incrimination and that there is no constitutional right to refuse to furnish the requested evidence.

The Three Tests forthe Vehicle Exception

The search incident to arrest The inventory exception The vehicle exception to the warrant

requirement.

Search and Seizure:Vehicle Searches Exception

Under the vehicle exception, an officer may search the interior of a vehicle without a warrant if he or she has probable cause to believe that the vehicle contains fruits, instrumentalities, or evidence of a crime, or contraband.

The rationale behind the vehicle exception is that vehicles are inherently mobile and, therefore, the opportunity to search is only momentary. Carroll v. United StatesCarroll v. United States, 267 U.S. 132, 153-54 , 267 U.S. 132, 153-54

(1925)(1925)

The Vehicle Exception Has Very Expansive Applications

The search of the vehicle may take place away from the scene, such as at a police station.

The police may seize the car without searching it, move it to another location and search it there, regardless of the reason for doing so; and, without a warrant.

The Vehicle ExceptionSome Specific Points

At some point, the police retention of the vehicle may continue so long that the seizure becomes permanent. In that case, the police may search the vehicle pursuant

to the inventory exception if applicable, discussed below.

The vehicles within this exception include all motorized vehicles, such as trucks, airplanes, motor homes, campers or trailers attached to cars, boats, and houseboats.

Search and Seizure:Inventory Searches Exception

The inventory search exception to the warrant requirement permits a police officer to inventory the property of a vehicle or a person for the protection of the property and the police.

Search and Seizure:Inventory Searches Exception

The rationales behind the inventory The rationales behind the inventory exception claim that such searches protect exception claim that such searches protect the owner’s property while it is in police the owner’s property while it is in police custody, protect police against claims of loss custody, protect police against claims of loss or theft, and protect the police and others or theft, and protect the police and others from dangerous items that might be hidden from dangerous items that might be hidden inside.inside.

Search and Seizure:Consent Searches Exception

A consent search is another exception to the warrant requirement of the Fourth Amendment, as well as an exception to the probable cause requirement.

The validity of consent turns on whether consent was voluntarily given, taking into account the totality of the circumstances for consent.

Search and Seizure:Consent Searches Exception

The totality of the circumstances includes consideration of the characteristics of the person giving consent, such as age, education, emotional state, or mental condition, as well as whether there was a show of force by the officer requesting consent.

If a person gives consent to a search, logically that person would have no basis to question the legality or reasonableness of the search at a later time.

Form of Consent

No formal wording is necessary for a consent to be considered freely and voluntarily given, but there should be some affirmative response, not a mere failure to object to the search.

Silence alone is not deemed to be a consent.

Suggested Form:Written Consent to Search

“I, (name of person giving consent), give my free and voluntary consent to have a search made of the premises located (address of place to be searched). I give this consent without any threat or promise being made to me.”

Who May Give Consent If the search is to be of a person, the person who is to be

searched is the one to give the consent. In the case of a person of unsound mind or a child too

young to know the meaning of the consent, consent may be given by the parent or guardian.

If a search is to be made of certain property or premises, consent must be given by one who has, or reasonably appears to have, common authority over the property or premises for most purposes.

It is not always easy to determine who has this authority.

Validity of Third Party Consent: Common Authority

The validity of a third party's consent depends on whether the third party and the defendant have common authority over the property or premises searched.

Common authority has been defined by the Supreme Court as mutual use of the property searched by persons generally having joint access to or control over the property for most purposes.

Additional Consent Issues

If there is more than one occupant of the residence, any one of the occupants present at the time may give consent to a search.

The occupant giving consent, however, must have common authority, for most purposes, over the area to be searched.

Test of Third Party ConsentUnited States v. Matlock

Common authority does not depend on whether the person giving consent has a property interest in the property searched, although it may be a factor in determining the validity of consent.

The primary rationale is that by sharing his or her privacy with another person, the defendant assumes the risk that that person will voluntarily consent to a search.

Apparent Authority

Under this doctrine, a third-party consent search will be deemed reasonable if the facts available to the officer at the moment of entry would cause a reasonable person to believe that the consenting party had common authority for most purposes over the premises or property

Scope of Consent: Plain View

If consent is voluntarily given to search a premises for a particular object, and during the search something else is observed in plain view, that object is admissible evidence if it was found within the scope of the consent given.

Search and Seizure Exception:Exigent Circumstances Searches

An exigency is a situation that requires immediate action—it will not be deemed unreasonable for an officer to search without a warrant under exigent circumstances.

Search and Seizure Exception: Exigent Circumstances Search

The scope of a search conducted under exigent circumstances will be defined by the emergency or exigency that justifies the search.

Four Exigencies Recognized in Minnesota v. Olson

Four exigencies were specifically recognized by the U.S. Supreme Court in Minnesota v. Olson, 485 U.S. 91 (1900).

HHot pursuit of a fleeing felon; Imminent destruction of evidence: TThe need to prevent a suspect’s escape; and TThe risk of harm to the police or to others.

Hot Pursuit

Hot pursuit is limited to a situation where a suspect is followed from the point of the offense to the destination in a continuous transaction.

Hot Pursuit

Example: Taxi drivers followed a robber from the robbery scene to a residence. One driver notified the company dispatcher who relayed the

information to the police who were on the way to the scene of the robbery.

The police arrived at the residence and their warrantless entry into it was declared lawful.

Search and Seizure Exception:Plain View Doctrine

As another exception to the warrant requirement, the plain view doctrine is intertwined with all of the other methods of conducting a reasonable search.

The Plain View Doctrine An officer may seize an object without a warrant if: the officer observes the object from a lawful

vantage point; the officer has a right of physical access to the

object from the lawful vantage point; and the nature of the object is immediately apparent as

an article subject to seizure (i.e., contraband or a fruit, instrumentality, or evidence of a crime).

Four Methods by Which an Officer May Arrive at the Vantage Point Lawfully

(1) The officer may observe the object during a search pursuant to a search warrant.

(2) The object may be viewed by the officer while the officer executes an arrest warrant in the arrestee's home.

Four Methods by Which an Officer May Arrive at the Vantage Point Lawfully

(3) The officer may discover the object while conducting a search justified under an exception to the warrant requirement. The object may be viewed by an officer during a lawful consent search or a search justified by exigent circumstances.

(4) The object may come into view during police activity that does not constitute a search or seizure, such as entering the house to take a report for a missing child.

How an Officer Obtains a Right of Physical Access

The second requirement for the plain view exception is that the officer must have a right of physical access to the object.

In essence, the officer must be able to reach

out and grab the object.

How an Object’s Incriminating Nature is Immediately Apparent

The third plain view exception requirement dictates the object's incriminating nature must be immediately apparent to the officer who views it.

This requirement is satisfied if the officer has probable cause to believe that the object is contraband or a fruit, instrumentality, or evidence of a crime.

Search and Seizure on Less Than Probable Cause: Stop and Frisk

The Court adopted a new search and seizure standard when it found a law officer’s search and seizure to be justified on less than probable cause, and without a warrant in a stop and frisk situation.

Stop and Frisk and Reasonable Suspicion in Other Circumstances In determining the reasonableness of the officer's

conduct, the Court balanced the government interests in effective crime prevention and officer safety versus the governmental intrusion on the individual's security.

The Court found that the governmental interests outweighed the individual's interest, primarily for the reason that the intrusion on the individual's privacy was less than that of a full-scale search and seizure.

Basis of the Stop and Frisk StandardTerry v. Ohio

In this case, the officer’s conduct was the stop and frisk of a suspect whom the officer suspected was about to commit a crime.

As a result of the patdown, the officer felt a gun in the defendant’s overcoat, which the officer pulled out.

The defendant was prosecuted and convicted for carrying a concealed weapon.


The Supreme Court upheld the conviction despite the fact the officer lacked probable cause to make an arrest when he first stopped and frisked the defendant.

In determining the reasonableness of the officer’s conduct, the Court balanced the government interests in effective crime prevention and officer safety against the governmental intrusion on the individual’s security.


The Court found that where an officer had reasonable suspicion, with less than probable cause and without a warrant, an officer may detain a suspect temporarily to make reasonable inquiry to confirm or dispel the suspicion.

Reasonable Suspicion

The officer, in order to act in these ways, needs only reasonable suspicion.

Reasonable suspicion, being a lesser standard than probable cause, will not require as much evidence of criminal wrongdoing as probable cause—nor is it necessary that the officer's information be as reliable as that necessary for probable cause.

What is a stop?

A stop is a temporary detention, not amounting to a full-blown arrest, requiring only reasonable suspicion that a particular individual is about to commit, is committing, or has committed a crime.

What is a frisk?

A frisk is a limited patdown search of the outer garments of a person to determine whether he or she possesses a weapon with which to cause injury to an officer or others.

Stop and Frisk

Patting down a person an officer has reasonable suspicion to believe is armed is limited to the person's outer clothing in an attempt to discover weapons. Under this rule, it would be impermissible for the

officer to thrust a hand into a person’s pocket. If an officer sees or feels something during a frisk that

may reasonably be a gun or other weapon, then the officer may search further than the outer clothing.

Stop and Frisk

A frisk may not be required where the suspect, who is believed to be armed and dangerous, makes sudden movements as if reaching for a weapon— in that circumstance the officer would be justified in reaching into the place where the officer believes the weapon to be, without first frisking the suspect.

Stop and Frisk If the patdown or frisk of the suspect dispels the

officer's suspicion that the suspect is carrying a weapon, then the search must cease.

If on the other hand, the officer feels an object during the frisk that the officer has reason to believe is a weapon, then the officer may seize the object and continue further with the frisk.

Any soft object, however bulky, will not likely justify further investigation.

Stop and Frisk The officer may conduct a limited patdown search

of the person's outer clothing—a frisk—in an attempt to discover weapons.

In those situations where an officer reasonably suspects that a particular person is engaged in a crime and is also armed and dangerous, the officer may detain the person as well as conduct a patdown search of the person.

The officer’s power to stop and frisk a suspect is not unlimited.

The Permissible Scope of Stops An officer may stop or temporarily detain an individual,

based on a reasonable suspicion the person is engaged in some criminal activity or is armed and dangerous.

The detention cannot rise to the level of an arrest since probable cause is required for that.

Detention, justified on the basis of reasonable suspicion, constitutes a seizure, but, because it is less intrusive than an arrest, the level of justification is lower than the probable cause required for an arrest.

Factors in Determining the Scope of the Stop

The length of the detention itself, i.e., whether the detention lasted longer than was necessary to clarify the circumstances for which the person was stopped.

Whether the person was forcibly removed from home or other place that he or she was entitled to be.

Whether the officer pursued the investigation in a reasonable and diligent manner, i.e., utilized a method of investigation that was likely to confirm or dispel the officer’s suspicions quickly.

The Duration of the Detention

The duration of the detention can be too long to be justified on grounds of reasonable suspicion.

The Supreme Court and the Duration of the Detention

In one case, the Supreme Court found that the detention of an air traveler’s luggage for 90 minutes was itself “sufficient to render the seizure unreasonable.”

In another case, the Court concluded that a 16-hour detention of a suspected swallower of narcotics-filled balloons, entering the United States from Colombia via the airport, was “not unreasonably long.”

In yet another case, the Court found that a detention of a few minutes at the station house for fingerprinting was unreasonable.

Forcible Removal of the Suspect to the Station House

The exercise of dominion and control over a suspect in forcibly removing the suspect to the police station is far greater an intrusion than on-the-scene detention for investigation, commonly referred to as investigative detention and constitutes de facto arrest.

Reasonable Diligencein Investigation

The officer need not use the least intrusive means of investigating.

If, in hindsight, a less intrusive means could be said to be available, the question will be whether the officer acted reasonably in failing to recognize and pursue it.

In the final analysis, the test will be whether the officer “pursued his investigation in a diligent and reasonable manner.”

Documents

The Exclusionary Rule— Search and Seizure