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]