PART VII - SEARCHES, SEIZURES AND THE SEARCH WARRANT (suggested time 2 hours)
1. See handouts -
““The Bill of Rights and Fourteenth Amendment to the U.S. Constitution.”
Established the so-called “Fourth Amendment warrant requirement.” States that no warrant will be issued without probable cause.
2. a. See glossary definition of the term “probable cause for search.”
Note that text
seems to give a different definition. (7:1)
and (7:32 – middle) leave out the issue of particular time, but add issue
indirectly at the top of page 7:31.
Also see handouts - “Searches and Seizures at a Glance” - Justification of a Warranted Search.
b. See glossary
definitions of the terms “search” and “seizure.”
Also see text - page 7:1 – 7:3 (intro).
Note that an interference with property rights can be a seizure, even if there is no invasion of privacy. Fourth Amendment has been associated with privacy issues to the point where some sources seem to imply that is the only issue. See example on page 7:3 of text.
c. All occupants of a protected area generally have Fourth Amendment protection against unreasonable or unwarranted searches and seizures. This includes over-night guests per Minnesota v. Olson 495 U.S. 91 (1990). In Minnesota v. Carter 119 S.Ct. 469 (1998) the Supreme Court ruled that a short-term visitor, especially one who is only there to transact business, has no standing to exercise this Fourth Amendment Right. The guests in the Carter case were only there for a couple of hours and were preparing drugs for distribution.
3. a. See glossary definition of the term “search warrant.”
b. In most cases, a search warrant is required before a search may take place. See text - page 7:30 [middle]. Even when not required there is an advantage to using a search warrant, since the police officer is operating on the authority of the judge who issued it and not his/her own. There is a presumption of legality when a search warrant is used. Searches and seizures without a warrant are presumed to be illegal until the prosecution proves to the court that one of the exceptions to the warrant requirement applies.
c. See glossary definition of the term “affidavit.”
Also see text - page 7:24 - 7:26 (2 intro an a.).
d. See text - page
As a rule of thumb, evidence should be no more than 24-36 hours old when the application for a search warrant is made.
e. Generally, the “reasonable area” for a search based on a warrant is the area specified in the warrant.
f. A “reasonable time” for a search based on a search warrant is expended when: (1) the evidence named on the warrant has been found, or (2) when all places within the area named in the warrant where the items sought could be hidden have been searched.
g. A Missouri search warrant remains in effect for ten days from the date of issue.
h. Normally, once you leave the area being searched, the search warrant is no longer valid. If you need to get back in, a new warrant will be needed. If you leave under emergency circumstances, however, you may re-enter after the emergency is resolved.
4. a. - c. see handouts - “Searches and
Seizures at a Glance” - Justification for Frisks Incident to Execution of a
Also see text - page 2:18 – 2:20 (3)
General Rule: A search warrant for a protected area doesn't automatically justify search of individuals unless they are named in the warrant. To search you need:
a. Probable cause that the person was involved in the crime, in which case you can make a search incident to arrest.
b. Reasonable suspicion that a given individual was involved in a crime and represents a threat to you, in which case you can frisk.
Michigan v. Summers (1981) – You can detain individuals found at the scene of the search until things are sorted out, but any frisk must meet the criteria of reasonable suspicion that this person is involved in criminal activity and reasonable suspicion that he/she is armed.
State v. Shannon (1992) – Some circumstances produce their own justification to search, especially those where there is a very small likelihood that the persons there are present for anything but illegal activity. A search warrant executed at a crack house, where the primary business activity is sale of drugs, would be an example of this. Here, for officer safety, and to prevent the frustration of the legitimate search authority of the S/W, officers may search the occupants.
In Shannon, the officers frisked a person in the premise, but not named in the warrant, and when they felt contraband in the pocket, they seized it. The court held that officers had reason to believe all individuals in that location were involved in drug trafficking, and that evidence found on the subject could be admissible as evidence.
However, in a situation where the majority of the activity in the place to be searched is legitimate, the general rule applies. For instance, in a bar, (Ybarra v. Illinois (1979)) where the officers have a warrant to search for evidence that the owner and some employees are selling drugs, the patrons of the bar have no reasonable suspicion attached to their presence. It is more likely that they are there as legitimate customers, so in order to frisk them, individual reasonable suspicion must be developed.
5. a., c - g. See handouts - “Search Warrant Execution Procedure.”
Also see text 7:28 – 7:30 (d – g)
b. In U.S. v Ramirez 118 S.Ct. 992 (1998), the Supreme Court reaffirmed standard established in Wilson v. Arkansas 115 S.Ct. 1914 (1995) and Richards v. Wisconsin 117 S. Ct. 1416, 1421 (1997) for unannounced entry to execute a warrant: reasonable suspicion that to announce would be “dangerous, futile, or [would] inhibit the effective investigation of the crime.”
e. In U.S. v. Banks (2003) the U.S. Supreme Court held that a 15-20 second wait in cases where the totality of the circumstances suggests there are exigent circumstances such as evidence might easily be destroyed or someone may be harmed was reasonable and not a violation of 4th Amendment rights.
6. a. - d. See handouts - “Search Warrant Execution Procedure.”
7. See text 7:33 (4)
In Wilson v. Lane 119 S.Ct. 1692 (1999), the Supreme Court decided that inviting media to accompany officers when serving a warrant in a private area is a violation of the occupants’ Fourth Amendment privacy rights where the presence of the media is not related to the objectives of the warrant. To be included, law enforcement must show that the media personnel are there to assist with the execution of the warrant – say, where their expertise is required to help identify particular evidence – and not simply to document the warrant execution. The Court conjectured that waivers of privacy rights obtained at the time of execution might not be enforceable as voluntary.