Criminal Procedure for the Criminal Justice Professional 11th Edition

1
Criminal Procedure for the Criminal Justice
Professional 11th Edition

• John N. Ferdico
• Henry F. Fradella
• Christopher Totten

Basic Underlying Concepts Privacy, Probable
Cause, and Reasonableness Chapter 3
Prepared by Tony Wolusky
2
Privacy
3
The Old Property Rights Approach

• Under the common law, the security of ones
  property was a sacred right, and protection of
  that right was a primary government purpose.
• This was initially the basis for the interests
  protected by the Fourth Amendment.
• Fourth Amendment issues centered around
  intrusions into constitutionally protected
  areas.

4
The Reasonable Expectation of Privacy Approach

• Wherever an individual may harbor a reasonable
  expectation of privacy, he or she is entitled to
  be free from unreasonable governmental intrusion.
• Determining whether a person has a
• reasonable expectation of privacy requires that
  
• A person has exhibited an actual (subjective)
  expectation of privacy and,
• The expectation is one that society is prepared
  to recognize as objectively reasonable.

5
Probable Cause
6
Defining Probable Cause to Search and Seize

• Probable cause exists where the facts and
  circumstances within a law enforcement officers
  knowledge and of which the officer has reasonably
  trustworthy information are sufficient in
  themselves to warrant a person of reasonable
  caution in the belief that a crime has been or is
  being committed by a particular person or that
  seizable property will be found in a particular
  place or on a particular person.

7
Officer Knowledge

• In Carroll v. United States, 267 U.S. 132, 162
  (1925), the Court said that probable cause to
  search exists when the facts and circumstances
  within their the officers knowledge and of
  which they had reasonably trustworthy information
  are sufficient in themselves to warrant a man
  of reasonable caution in the belief that
  seizable property would be found in a particular
  place or on a particular person.

8
Preference for Warrants

• The warrant procedure is preferred because it
  places responsibility for deciding the delicate
  question of probable cause with a neutral and
  detached judicial officer who usually has more
  formal legal training than a police officers has.

9
Methods for Establishing Probable Cause

• Probable cause is evaluated by examining the
  collective information in the possession of the
  police at the time of the arrest or search
  including
• Information known through an officers own senses
  
• Flight or furtive conduct
• Observation and evaluation or real evidence
• Admissions of criminal conduct
• False or implausible answers to routine questions
• Presence at a crime scene or in a high-crime area
• Associations with known criminals
• Past criminal conduct

10
Methods for Establishing Probable Cause Flight

• Deliberately furtive actions and flight at
  the approach of strangers or law officers are
  strong indicia of mens rea guilty mind, and
  when coupled with specific knowledge on the part
  of the officer relating the suspect to the
  evidence of crime, they are proper factors to be
  considered in the decision to make an arrest.
  Sibron v. New York, 392 U.S. 40, 66-67 (1968).

11
Methods for Establishing Probable Cause
Admissions

• A persons admission of criminal conduct to a law
  enforcement officer provides probable cause to
  arrest. In Rawlings v. Kentucky, 448 U.S. 98
  (1980), a law enforcement officer with a search
  warrant ordered the defendants female companion
  (Cox) to empty the contents of her purse. When
  she poured out a large quantity and variety of
  controlled substances, she told the defendant to
  take what was his. The defendant immediately
  claimed ownership of some of the controlled
  substances.
• The Court held that once petitioner admitted
  ownership of the sizable quantity of drugs found
  in Coxs purse, the police clearly had probable
  cause to place the petitioner under arrest. 448
  U.S. at 111.

12
Methods for Establishing Probable Cause False or
Implausible Answers

• United States v. Velasquez, 885 F.2d 1076 (3d
  Cir. 1989), held that the following facts
  provided probable cause to arrest the defendant
  for interstate smuggling of contraband
• (1) the defendant and her companion were on a
  long-distance trip from Miami, a major drug
  importation point, to the New York area
• (2) they had given a law enforcement officer
  conflicting stories about the purpose of their
  trip and their relationship
• (3) they appeared nervous when answering the
  officers questions
• (4) the defendant told the officer that the
  automobile she was driving belonged to her
  cousin, but could not give her cousins name
  and
• (5) the automobile had a false floor in its trunk
  and appeared specially modified to carry
  contraband in a secret compartment.
• Facts two (2) and four (4) above appear to
  contain a false or implausible e answer. It is
  important to note, however, that the Court only
  found probable cause to arrest in light of other
  existing, suspicious facts, including ones
  related to physical evidence.

13
Information Obtained by Officers through
Informants

• An informant is any person from whom a law
  enforcement officer obtains information on
  criminal activity. Informant information may
  satisfy the probable cause requirement.
• The Court established a two-prong test for
  determining probable cause when the information
  in an affidavit was either entirely or partially
  obtained from an informant in two cases
• Aguilar v. Texas (1964)
• Spinelli v. United States (1969)

14
Prong 1 of AguilarSpinelli

• Prong 1 relates to the informants basis for
  knowledge. The affidavit must show how the
  informant knows his or her information by
  demonstrating that
• the informant personally perceived the
  information given to the officer or
• the informants information came from another
  source, but there is good reason to believe it.
• Without this, the officer can still satisfy the
  first prong by obtaining as much detail as
  possible from the informant and stating it in the
  affidavit.

15
Prong 2 of AguilarSpinelli

• Prong 2 relates to the truthfulness of the
  informant. The affidavit must describe
  underlying circumstances from which the
  magistrate may determine that the informant was
  credible or that the informants information was
  reliable.
• Ordinary citizen (victim, witnesses) are usually
  presumed reliable.
• A criminal informants credibility must always be
  established by a statement of underlying facts
  and circumstances.

16
Corroboration

• An officer may use corroboration to bolster
  information that is insufficient to satisfy
  either or both Aguilar prongs.
• Corroboration means strengthening or confirming
  the information supplied by the informant with
  supporting information obtained by law
  enforcement officers.

17
Gates Test

• Under the Gates totality-of-the-circumstances
  test for whether informant testimony can serve as
  a basis for probable cause, the task of the
  issuing magistrate is to make a practical,
  commonsense decision whether, given all the
  circumstances set forth in the affidavit, there
  is a fair probability that contraband or evidence
  of crime will be found in a particular place.

18
Reasonableness
19
Determining Reasonableness

• The Fourth Amendment prohibits unreasonable
  searches and seizures.
• Determining the reasonableness of any search
  involves a twofold inquiry
• One must consider whether the action was
  justified at its inception
• One must determine whether the search as actually
  conducted was reasonably related in scope to the
  circumstances which justified the interference in
  the first place.