KNOW YOUR RIGHTS: v. 2 LAW II. KNOW YOUR RIGHTS: v. 2 SECTION 1 SECTION 1: SEARCH AND SEIZURE THE CONSTITUTIONAL BACKGROUND This section provides an overview

KNOW YOUR RIGHTS: v. 2

LAW II


SECTION 1• SECTION 1: SEARCH AND SEIZURE

THE CONSTITUTIONAL BACKGROUND

• This section provides an overview of the limitations on searches and seizures provided by the Fourth Amendment to the U.S. Constitution.


SECTION 1 INTRO• The Fourth Amendment to the U.S.

Constitution places limits on the power of the police to make arrests; search people and their property; and seize objects, documents and contraband (such as illegal drugs or weapons).

• The Fourth Amendment does permit searches and seizures that are considered to be reasonable.


SECTION 1 INTRO• This means that the police may override

your privacy concerns and conduct a search if:

• The police have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or

• The search is proper without a warrant because of the particular circumstances.


SECTION 11.How can an illegal search affect a criminal case?

• In Mapp v. Ohio (1961), the Supreme Court established what has come to be known as the “exclusionary rule.”

• This rule states that evidence seized in violation of the Fourth Amendment cannot be used as evidence against defendants in a criminal prosecution, state or federal.


SECTION 1• To this day, some commentators continue to criticize the Mapp case on the ground that it unfairly “lets the criminal go free because the constable has erred.”

• But supporters of Mapp argue that excluding illegally seized evidence is necessary to deter police from conducting improper searches if the resulting evidence is barred from the trial.


SECTION 1• CASE EXAMPLE: Officer Joe Friday notices teenager Mandy Schwartz walking in a mall. Officer Friday demands to look into Mandy’s purse. The officer finds three pairs of earrings with the price tags still attached. A mall jewelry store owner identifies the earrings as having been stolen minutes earlier when Mandy was the only customer in the store. A judge rules that Officer Friday’s search of Mandy’s purse was improper.


SECTION 1• QUESTION: How will this ruling affect the case against Mandy? Looking at the big picture, what are rulings like this supposed to accomplish?

• The charges will have to be dropped. • Because the search of Mandy’s purse was

illegal, the earrings are not admissible in evidence against her.

• The prosecution has no case without the earrings, so the case must be dismissed.


SECTION 1• Realizing that Mandy went free ought to deter Officer Friday from conducting illegal searches in the future, exactly what the exclusionary rule is supposed to accomplish.


SECTION 12.If the police conduct an illegal search, does the case against you have to be dismissed?

• No. A judge will exclude evidence that the police seized or learned about as the result of an illegal search.

• But if a prosecutor has enough other evidence to prove the defendant guilty, the case can continue.


SECTION 1• CASE EXAMPLE: Dick McMillon is charged with possession of stolen property—cleaning products stolen from a local janitorial supply business. Half of the missing janitorial products that McMillon is charged with possessing were discovered by the police at McMillon’s home in the course of a warrantless search of the home by the police after they had properly arrested McMillon for possession of the other half.


SECTION 1• In response to a defense motion to exclude evidence, the judge rules that the police illegally seized the janitorial products from McMillon’s home, but that the other products were seized properly.


SECTION 1• QUESTION: How will these rulings

affect the case against McMillon?• The prosecution can go forward,

limited to possession of properly seized janitorial products.


SECTION 13.If a police officer finds contraband or evidence of crime in the course of a search, does that make the search valid even if the search was initially illegal? Explain.

• No. A well established rule is that a search can’t be justified by what it turns up.


SECTION 1• If a search is illegal to begin with, the products of that search, no matter how incriminating, are inadmissible in evidence.


SECTION 14.If the police illegally seize evidence,

can they use the illegally seized information to find other evidence to use against the defendant?

• No, because of a legal rule colorfully known as the fruit of the poisonous tree doctrine.


SECTION 1• This doctrine makes inadmissible any

information that police officers obtain as a direct result of an improper search.

• The tree is the evidence that the police illegally seize in the first place.

• The fruit is the second generation product of the illegally seized evidence.

• Both tree and fruit are inadmissible at trial.


SECTION 1• CASE EXAMPLE: Officer Dwight

arrests Clarence for selling phony memory cards. A judge ruled that Officer Dwight had illegally entered Clarence’s home and improperly seized a map showing the location where Clarence hid the memory cards.


SECTION 1• At trial, the prosecutor doesn’t try to

offer the map into evidence. The prosecutor does, however, seek to offer into evidence the memory cards that officer Dwight located by using the map.


SECTION 1• QUESTION: Are the phone cards

admissible in evidence?• No. Officer Dwight obtained the map

through an illegal search. • The phone cards are the fruit of that

unlawful search and therefore inadmissible in evidence.



SEARCH WARRANTS• This section describes search

warrants and explains when they are and are not necessary.


SECTION 21.What is a search warrant?• A search warrant is an order signed

by a judge which authorizes police officers to search for specific objects or materials at a definite location and a specified time.


SECTION 22.How do police officers obtain search warrants?

• Police officers obtain warrants by providing a judge or magistrate with the information that the officers have gathered.


SECTION 2• Usually, the police provide the information in the form of written statements under oath, called affidavits, which report either their own observations or those of private citizens or police undercover informants.

• In many areas, a judicial officer is available 24 hours a day to issue warrants.

• If the magistrate believes that an affidavit establishes “probable cause” to conduct a search, they will issue a warrant.


SECTION 23.How much information do police officers need to establish that “probable cause” for a search warrant exists?

• The Fourth Amendment doesn’t define probable cause; its meaning remains fuzzy.

• What is clear is that the affidavits submitted by police officers to judges have to identify objectively suspicious activities rather than simply recite the officer’s subjective beliefs.


SECTION 2• The affidavits also have to establish

more than a suspicion that criminal activity is taking place, but do not have to establish proof beyond a reasonable doubt.


SECTION 2• CASE EXAMPLE: Hoping to obtain a warrant to search Maggie Ventline’s backyard, a police officer submits an affidavit to a magistrate. The affidavit simply states that “the undersigned is informed that Maggie operates an illegal still in her backyard.”

• QUESTION: Should the magistrate issue a search warrant? Explain.


SECTION 2• No. The affidavit is too vague and

does not identify the source of the information so that the magistrate can properly judge its reliability.

• Probable cause therefore does not exist.


SECTION 24.What if a police officer makes a search under a warrant that shouldn’t have been issued in the first place?

• In most situations the search will be valid. • In U.S. v. Leon (1984), the Supreme Court

ruled that if the police conduct a search in good-faith reliance on the warrant, the search is valid and the evidence admissible even if the warrant was in fact invalid through no fault of the police.


SECTION 2• The Court’s reasoning is that: • It makes no sense to condemn the

results of a search when police officers have done everything reasonable to comply with Fourth Amendment requirements,

• And the purpose of the rule is to curb the police, not a judge, and that if a judge makes a mistake, this should not, therefore, be grounds to exclude evidence.


SECTION 2• CASE EXAMPLE: Officer Ken Parrott

stops a motorist for a traffic violation. A computer check of the driver’s license reveals the existence of an arrest warrant for the driver under arrest, searches the car and finds illegal drugs. It later turns out that the computer record was wrong, and that a warrant did not in fact exist.


SECTION 2• QUESTION: Are the illegal drugs admissible in evidence against the driver? Explain.

• Yes. The officer acted in good-faith reliance on the computer record.

• The seizure was therefore valid even though the record was wrong.

• Arizona v. Evans, U.S. Sup. Ct. 1995


SECTION 25.If the police have a warrant to search your backyard for marijuana plants, can they legally search the inside of your house as well? Explain.

• No. The police can only search the place described in a warrant.

• The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants.


SECTION 2• However, this does not mean that

police officers can only seize items listed in the warrant.

• Should police officers come across contraband or evidence of a crime that is not listed in the warrant in the course of searching for stuff that is listed, they can lawfully seize the unlisted items.


SECTION 26.The police had a warrant to search a friend you were visiting, and they searched you as well. Is this legal? Explain.

• No. Normally, the police can only search the person named in a warrant.

• Without probable cause, a police officer cannot search other persons who happen to be present at the scene of a search.


SECTION 2• However, if an officer has reason to suspect that an onlooker is also engaged in criminal activity, the officer might be able to “frisk” the onlooker for weapons.


SECTION 27.If a police officer knocks on your

door and asks to enter your dwelling, do you have to allow the officer in without first seeing a warrant? Explain.

• Technically, no. A person can demand to see a warrant, and unless the officer has one can refuse the officer entry.


SECTION 2• However, people sometimes run into trouble when they stand on their rights and demand to see a warrant.

• A warrant is not always legally necessary, and a police officer may have information of which a person is unaware that allows the officer to conduct a warrantless search or make a warrantless arrest.


SECTION 3• SECTION 3: SEARCH AND SEIZURE WARRANTLESS AND CONSENT SEARCHES

• This section discusses when a warrantless search may be legally justified because the person in control of the property is said to have agreed to it.


SECTION 31.If you agree to a search, is the

search legal even if a police officer doesn’t have a warrant or probable cause to search?

• Yes. If a defendant freely and voluntarily agrees to a search, the search is valid and whatever the officers find is admissible in evidence.


SECTION 32.Does a police officer have to warn you that you have a right to refuse to consent to a search?

• No. No equivalent to Miranda warnings exists in the search and seizure area.

• Police officers do not have to warn people that they have a right to refuse consent to a search.

• Ohio v. Robinette, U.S. Sup. Ct. 1996


SECTION 3• CASE EXAMPLE: Phil Montana is sitting on a park bench. Officer Abbot approaches Montana and asks to look through his backpack. Montana replies, “Sure, go ahead, I guess I can’t stop you.” The officer finds Cocaine in Montana’s backpack and arrests him.


SECTION 3• QUESTION: Are the drugs admissible in evidence? Explain.

• Yes. The search was valid since Montana gave his consent.

• Officer Abbot had no duty to clear up Montana’s misconception that he had no choice but to consent.


SECTION 33.If a police officer tricks or coerces you into consenting to a search, does your consent make the search legal?

• No. To constitute a valid consent to search, the consent must be given “freely and voluntarily.”

• If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search.


SECTION 3• CASE EXAMPLE 1: Undercover cop Jones, posing as an employee of the gas company, asks Leroy to allow him into Leroy’s home to check for an alleged gas leak. Leroy agrees. Jones enters and sees drugs and drug paraphernalia in the kitchen.

• QUESTION: Is the police search of Leroy’s home valid under the Fourth Amendment? Explain.


SECTION 3• No. Consent that is obtained by fraud is not considered voluntary, and Jones’s lying and saying he was a gas man would be fraud.


SECTION 3• CASE EXAMPLE 2: Same case, but this time Jones has been posing as a parent in Leroy’s son’s school and has made friends with Leroy independent of his undercover mission. Leroy invites his “friend” Jones in to play cards. Once inside the home, undercover agent Jones unexpectedly sees illegal drugs. He seizes the drugs and arrests Leroy.


SECTION 3• QUESTION: Was the police entry into Leroy’s home valid under the Fourth Amendment? Explain.

• Yes. Leroy was not tricked or coerced in any way to let Jones in.

• He just didn’t know who his friend really was.

• The constitution does not prevent the consequences of having what the courts call a “false friend.”


SECTION 34.If you agree to open your door to talk to a police officer, and the officer enters without your permission and searches, is the search valid? Explain.

• No. Merely opening the door to a police officer does not constitute consent to entry and search.

• Thus, whatever such a search turns up would be inadmissible in evidence.


SECTION 3• Of course, if contraband or evidence

of a crime is in “plain view” from the doorway, the officer may seize it.


SECTION 35.Can you consent to a police search of your living room but not your bedroom? Explain.

• Technically yes. Where only limited consent is given, that limitation is supposed to be honored.

• But if in the course of making their limited search the police see evidence of illegal activity elsewhere, they may properly search and seize it.


SECTION 36.Is a search valid if the reason you consented to it was because you felt intimidated by the presence of the police officer? Explain.

• Yes. Many people are intimidated by police officers and may even perceive a request to search as a command.

• However, so long as an officer does not engage in threatening behavior, judges will not set aside otherwise genuine consents.


SECTION 3• CASE EXAMPLE: The owner of a massage parlor agrees to allow police officers to search her business premises. At the time the owner consents, she has been handcuffed, is in the presence of seven male police officers, the officers had already physically subdued and pointed a gun at an employee, they threatened to tear up the premises, and the owner was of foreign descent and unfamiliar with the American criminal process.


SECTION 3• QUESTION: Is her consent valid?• Yes, at least this was the result in State

v. Kyong Cha Kim (Montana 1989). • Despite the outcome of this case, it is

possible that another judge in another jurisdiction might find this type of police conduct so coercive or threatening as to make the consent involuntary.


SECTION 37.While you’re out of the house, your parent, roommate, or spouse who shares the premises with you agrees to a search of the house that turns up evidence that incriminates you. Does the consent make the search legal?

• Perhaps. An adult in rightful possession of a house or apartment usually has legal authority to consent to a search of the entire premises.


SECTION 3• But if there are two or more separate tenants in one dwelling, courts often rule that one tenant has no power to consent to a search of the areas exclusively controlled by the other tenants (for instance, their separate bedrooms).

• A tricky twist is that the consent will be considered valid if the police reasonably believe that the consenting person has the authority to consent even if it turns out they don’t.


SECTION 3• CASE EXAMPLE: Bob’s ex-wife Jan knows where Bob hides his cocaine. She calls the police and tells them about the cocaine. She directs them to Bob’s house. When they get there, she opens the door with a key that she never returned to Bob. She puts her purse on the entry hall table, opens the hall closet and puts on a sweater that appears to be hers.


SECTION 3• She then leads the police to the

place where Bob stores his cocaine. As far as the police know, Jan lives in the apartment and has full authority to consent to the search.


SECTION 3• QUESTION: Even though Jan and the police enter the apartment without Bob’s permission, did the search violate Bob’s Fourth Amendment rights?

• No. Although the police mistakenly thought that Jan had the authority to consent to the search, the mistake would be considered a reasonable one since every fact surrounding the search (including Jan’s having a key and knowing her way around the apartment) pointed to that authority.


SECTION 38.While you’re out, the landlord of the apartment building where you live gives a police officer permission to search your apartment. Does the landlord’s consent make the search legal? Explain.

• No. The landlord is not considered to be in possession of an apartment leased to a tenant and therefore lacks authority to consent a search of leased premises.


SECTION 39.Can the police search your hotel room without a warrant? Explain.

• The general rule is no. • Again, however, an exception (such

as consent or an emergency) may exist which would justify a warrantless hotel room search.


SECTION 310.If your employer consents to a police search of your workspace, are the results of the search admissible in evidence? Explain.

• Probably. An employer can validly consent to a search of company premises.

• An employer’s consent extends to employees’ work areas, such as desks and machinery.


SECTION 3• However, police officers might need a warrant to search a clearly private area, such as an employee’s clothes locker.


SECTION 311.Can your child let the police search your home while you are at work? Explain.

• This would primarily depend on the child’s age.

• The younger the child, the less authority he or she would have to consent to a search.

• For example, California courts require a child to be at least 12 to consent, and even then the child must appear to be “in charge” of the house at the time.



SEARCHES AND THE PLAIN VIEW DOCTRINE

• This section is about warrantless searches and seizures that are considered valid because the police officer initially spotted contraband or evidence that was in the officer’s plain view.


SECTION 41.You agreed to talk to a police officer in your house. The officer saw some drugs on a kitchen counter, seized them, and arrested you. Is this legal?

• Yes. Police officers do not need a warrant to seize contraband or evidence that is in plain view if the officer is where they have a right to be.


SECTION 4• An officer’s seizure of an object in

plain view does not violate the Fourth Amendment because the officer technically (and legally) has not conducted a search.


SECTION 4• CASE EXAMPLE 1: During daylight hours, Officer Mendoza stops a car for having an expired license plate. When Officer Mendoza approaches the officer sees a packet of what appears to be crank (methamphetamine drug) on the front seat of the car. The officer seizes the packet and arrests the driver.


SECTION 4• ANSWER: Was the seizure of drugs

legal? Explain.• Yes. The drugs were in plain view. • Though the officer had no probable

cause to search the car at the moment the officer pulled the car over, seeing the illegal drugs on the front seat gave the officer a valid basis for seizing them.


SECTION 4• CASE EXAMPLE 2: Officer Tanaka

pulls a car over for running a red light. When the driver rolls down the window, Officer Tanaka detects a strong odor of marijuana emanating from inside the car. The officer orders the driver out of the car and conducts a search. Underneath the driver’s seat, the officer finds a pouch filled with marijuana.


SECTION 4• QUESTION: Did the officer legally find the marijuana?

• Yes. Smelling the marijuana gave Officer Tanaka probable cause to believe that the car contained illegal drugs (under what has come to be called the “plain smell” doctrine).

• The officer could therefore conduct an immediate search without having to obtain a search warrant first.


SECTION 42.If a police officer illegally enters a house and observes evidence in plain view, can the officer seize the evidence?

• No. A police officer can seize objects in plain view only if the officer has a legal right to be in the place from which the objects can be seen or smelled.

• If an officer has no legal right to be where they are when the evidence or contraband is spotted, the plain view doctrine doesn’t apply.


SECTION 4• CASE EXAMPLE: Two police officers in a helicopter fly over the backyard of a home as they are returning from the scene of a highway collision. Aided by binoculars, one of the officers sees a large number marijuana plants growing in a greenhouse in the backyard. The officers report what they have seen, a search warrant is obtained, and the occupant of the house is arrested and charged with growing illegal drugs for sale.


SECTION 4• QUESTION: Was the officers’ aerial search of the backyard legal?

• Yes. The police officers had a right to be in public airspace and the occupant had no reasonable expectation of privacy for what could be seen from public airspace.

“THE PRACTICE” ASSIGNMENT

• After viewing the episode of “The Practice,” what are your personal feelings on the exclusionary rule?

• Did this episode change your prior opinion?

• What are your thoughts on attorney/client privilege and confidentiality?

• Be as specific as possible and cite examples from the video.

• 1 page in length; 10 points.

Documents

KNOW YOUR RIGHTS: v. 2 LAW II. KNOW YOUR RIGHTS: v. 2 SECTION 1 SECTION 1: SEARCH AND SEIZURE THE CONSTITUTIONAL BACKGROUND This section provides an overview