Nix v. Whiteside
○ Whiteside (D) went to Love's apartment to purchase marijuana. Whiteside (D) and Love argued over the marijuana. According to Whiteside (D), Love started to reach under his pillow and move towards Whiteside (D), at which point Whiteside (D) stabbed and killed Love. In discussions with his appointed counsel, Whiteside (D) said that, although he had never actually seen a gun, he was convinced that Love had a gun. Just before trial, Whiteside (D) told his lawyer that he had seen ''something metallic'' in Love's hand. Whiteside's (D) lawyer advised him that testifying to this would be perjury and that he would withdraw from the representation if Whiteside (D) insisted on perjuring himself at trial. The lawyer also indicated that, if Whiteside (D) actually gave the false testimony, the lawyer would have to inform the court of the perjury. Whiteside (D) ultimately testified at trial, did not perjure himself, and was convicted.
words in ( ) are where issues arise under amendment
○ The right of the people to be secure in their (persons), (houses), (papers), and (effects), against unreasonable searches and seizures, shall not be violated, and no (Warrants) shall issue, but upon (probable cause), supported by Oath or affirmation, and (particularly describing the place to be searched), and (the persons or things to be seized. )
§ 8 possible issues
§ Why not searches and seizures?
□ If those 8 not met, considered an unreasonable search and seizure
§ Oath or affirmation determines if warrants is applicable
□ Won't be an issue normally
§ The cases have determined what all those things mean
§ If not met it, unreasonable search and seizures
○ The Fourth Amendment represents a compromise between the need of government officials to gather evidence and the right of citizens to be free from governmental intrusion
§ Public policy issue
§ Fourth amendment limitations on governmental investigations are equally applicable to the state and federal governments
§ Balance between gathering and right of citizens
○ Basic Fourth Amendment Analysis
§ This is where you plug in your case & info
□ (1) Search by government?
◊ Private persons ARE not government entity
◊ How do we know if governmental entity?
◊ Government employee--id that shows governmental employee
◊ If deputize you OR government asks you to search-->a government informant-->come in there with wires
□ (2) Reasonable expectation of privacy? Standing? People?
® Plug in cases
® Now have to establish can assert fourth amendment claim via these two things
® Persons--where can assert standing? Own home where? Home has to be within the united states. Have to assert standing.
® Standing issue comes in where house located-->must be united states
® e.g. case where they searched his house in mexico; not under fourth amendment
□ (3) Was there a warrant?
® Plug in everything...oath and affirmation, probable cause, places to be search
® Yes there was a warrant
□ (4) Was warrant proper and executed correctly?
® Find cases that fit in there...
® If yes
® If no warrant or not executed correctly...move to 6
□ (5) RESULT: Search is valid
□ (6) Police good faith? Inevitable Discovery? Independent Source?
® Good faith-->executing wrong warrant but have ecstasy pills on table...bad warrant...wrong address...but police had good faith thinking it was the right house
◊ Search is valid
□ No warrant (7) Warrant Exception: Incident to arrest, Auto Search, Plain view, consent, stop and frisk, hot pursuit/evanescent evidence
® Evanescent evidence-->easily destroyable-->police on hot pursuit for someone and goes into your house...you have drugs on table...no warrant needed....
® If you hit a no on the government is wrong...fourth amendment exclusionary rule comes in...that's your conclusion for no
□ 4th amendment applicable to states via the 14th amendment
○ Mapp v. Ohio
Three state police officers approached Mapp's (D) apartment searching for a bombing suspect and illegal gambling paraphernalia. When the officers knocked, Mapp (D) refused to allow them into her home without a warrant. Three hours later, the officers again approached the home, broke through the door, and entered. When Mapp (D) demanded they produce their search warrant, one officer showed her a piece of paper, which Mapp (D) seized and concealed in her shirt. A struggle ensued in which the
police physically recovered the paper from Mapp (D). After placing Mapp (D) in handcuffs, the police searched through her belongings, recovering four books alleged to contain obscene materials. No warrant was ever produced. Mapp (D) was convicted of possession of lewd and lascivious materials under state law. On appeal, the Ohio Supreme Court held that while the search and seizure may have
violated the Fourth Amendment, the court was not obligated to exclude the evidence at trial.
The Fourth Amendment protects people not places.
"What a person knowingly exposes to the public . . . is not the subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
The lip-reader hypothetical is intended to raise the important issue of whether the mode of governmental intrusion should matter in "search" analysis.
Justice Stewart distinguished between the intruding eye (no protection in the booth) and the uninvited ear. By standing in a glass booth, like standing in a glass house, Katz knowingly exposed himself, and his lips, to others. One could infer from this that the mode-of-intrusion is relevant to "search" analysis. Sometimes lower courts have focused on the mode-of-intrusion distinction
Sometimes lower courts have focused on the mode-of-intrusion distinction.
For example, one court held that the government conducted a search when it secretly videotaped activities in a room used by public employees during their work breaks, although the room was not private and could have been entered freely by anyone. State v. Bonnell, 856 P.2d 1265 (Haw. 1993).
And, the California Supreme Court in Triggs held that a "search" occurred when the police surreptitiously observed the homosexual activities going on in a doorless—yes, doorless—toilet stall in a public restroom. Sure, the men knowingly exposed their activities to anyone who entered the restroom, since their actions would have been visible in the absence of door stalls, but the court focused on the means used to observe the activities.
Subjective and Objective test
The Fourth Amendment guarantees a citizen's right to be free of unreasonable searches and seizures.
Government action constitutes a search when the action
1) intrudes on a citizen's subjective manifestation of an interest in privacy, and
2) the citizen's privacy interest is one that society views as objectively reasonable.
"Most Significant Measures"
A citizen is not required to take the most significant measures available for keeping people away to demonstrate a privacy interest.
The citizen must simply indicate her intent that no unintended persons hear or see the information she desires to keep private.
A defendant who demonstrates the violations should be able to establish a Fourth Amendment violation unless the Government's actions are found to be reasonable.
The Government physically occupied private property for the purpose of obtaining information.
Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing. * By attaching the device to the Jeep, officers encroached on a protected area.
But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.
○ Was the use of the GPS devise a search?
○ If so, is a warrant required?
○ Did the gov. obtain a warrant?
§ Warrant was used
§ Use of GPS was not a search...depends on when placed on car;
□ Was a search; exposed intimate details e.g. having an affair, went to abortion clinic
□ Were supposed to put GPS in DC but put it on in Maryland
§ The government physically occupied private property for the purpose of obtaining info
§ Jones, who possessed the jeep at the time the gov. trespassorily inserted the infor-fathering device, is on much different footing. By attaching the device to the Jeep, officers encroached on a protected area.
§ But as we have discussed the Katz reasonable expectation of privacy test has been added to, not substituted for, the common law trespassory test.
○ "not in my house"
○ Search warrant to get into my house
§ Protected by fourth amendment
○ Search warrant-->only get based on probable cause with info presented in warrant
§ Search anywhere they can reasonable believe you be located
□ e.g. dryer, washer machine, under bed
§ Arrest warrant not sufficient If the suspect is temporarily in the home of another
§ Officer may not search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant
§ Stegald v. United States--courts held, in the absence of exigent circumstances or consent, a search warrant must be obtained to look for a suspect in the home of a third party if the suspect is not a resident of the premises. That is, a magistrate must determine whether there is probable cause to believe that the suspect is located in the home of the third party
○ Rationale of steagald--the court reasoned that an arrest warrant would
• If they ain't looking for you, don't let them in
Rationale of Steagald - The Court reasoned that an arrest warrant would not protect the privacy interests of a third-party homeowner, since the arrest warrant was not based on any judicial determination that there was probable cause to search for the suspect in the third party's home.
Arrest Warrant Not Sufficient if the Suspect Is Temporarily In the Home of Another
Is the Suspect Living at or Visiting the Premises
Who Has Standing to Object to the Lack of a Search Warrant?
Can a Visitor Object to the Lack of an Arrest Warrant When Arrested in a Third Party's Home?
Search Warrant is Required for an Arrest in the Home of a Third Party
Is the Suspect Living at or Visiting the Premises
It is important to determine whether the suspect lives at the premises, in which case an arrest warrant is sufficient, or whether he is merely visiting there, in which case a search warrant is required. Courts have looked at how long and how consistently the suspect has stayed at the premises, whether the suspect is responsible for any utilities, and other indicia of permanent residence.
Ollie Ocean was planning to rob Casino Arizona. While planning the heist, he visited his lawyer's firm in downtown Phoenix. Ocean's lawyer, Joann Galloway, was a well-known criminal defense attorney. Remembering that he had forgotten to mention a crucial piece of information about the heist to his explosives expert, Basher, Ocean placed a call from the firm's "telephone room." The telephone room is a small, windowless room with a locking door that the firm maintains just off the main lobby so that visitors will be able to make calls undisturbed and without interrupting firm business. Ocean did not lock the door when he called Basher.
Long suspecting that Ocean was planning a "job," but without enough hard evidence to secure a warrant, Phoenix police detective Roscoe P. Coltrane followed Ocean to Galloway's office. Coltrane had detailed structural drawings of every building Ocean visited frequently, including Galloway's law firm.
Two weeks earlier, the police department obtained a prototype of a sophisticated tracking device that measures a subject's body heat and provides an image to the user. The manufacturer gave prototypes to the police departments in Phoenix and four other cities for a three-month test before releasing the product on the open market. Coltrane used the prototype to follow Ocean's movements inside the law firm.
By using the tracking device and the drawings, Coltrane determined that Ocean had gone into the firm's telephone room. Remembering that the FBI had installed wiretapping equipment (legally) on the firm's telephone lines as part of an investigation unrelated to Ocean, Coltrane called and asked the local FBI office to listen to and record Ocean's conversation.
Based on the telephone call, Coltrane obtained warrants and arrested Basher and Ocean. Both want to challenge the arrest warrants on Fourth Amendment grounds. Using the cases and materials you prepared for today's class:
1. As counsel for Basher and Ocean, what Fourth Amendment challenges would you bring?
2. As counsel for the government, how would you answer any an- ticipated Fourth Amendment challenges brought by Basher and Ocean?
3. As the judge confronted with these arguments, how will you rule and why?
Katz & Greenwood : Expectation of privacy - subjective (did Ocean actually expect privacy in the phone room and rooftop meeting?) and objective (would a reasonable person have expected privacy in the phone room and rooftop meeting?)
Karo : Police are not entitled to use electronic or other mechanical devices to determine whether a particular person or thing is in someone's home at a particular time (but does this extend to businesses?) without a warrant, probable cause, or reasonable suspicion.
Kyllo : Use of an imaging device not generally available for public use is a search for Fourth Amendment purposes, and is presumptively unreasonable without a warrant. (But since this device is about to be released on the market, is it "available for public use"?)
Suggestions for Answers
Is really one of standing. He will have to somehow demonstrate either 1) that he can attach himself to the police's invasion of Ocean's privacy, or 2) that he had some privacy interest of his own that the police invaded. He'll have a tough time with either argument because the police were tracking Ocean, not Basher. Basher's lack of standing won't allow him to attach himself to Ocean's claim and since the police didn't tap his phones, he won't be able to establish his own claim.
The first issue is whether Ocean can demonstrate that Coltrane violated his Fourth Amendment rights when Coltrane eavesdropped on Ocean's telephone call held in the "telephone room" at the firm of Ocean's lawyer, resulting in Ocean's arrest.
The Fourth Amendment guarantees a citizen's right to be free of unreasonable government searches and seizures. Government action constitutes a search when the action 1) intrudes on a citizen's subjective manifestation of an interest in privacy, and 2) the citizen's privacy interest is one that society views as objectively reasonable.
In Katz v. United States, the government convicted the petitioner of illegal wagering in part based on evidence from telephone conversations on which the FBI eavesdropped. The appellate court affirmed the conviction, rejecting the petitioner's Fourth Amendment claims because the FBI had not physically intruded into the public telephone booth from which the petitioner placed the calls. The Supreme Court overturned the conviction, holding that the government had in fact searched the telephone booth by intruding on the petitioner's subjective privacy interest, an interest that is objectively reasonable.
In Katz, the Supreme Court found that a citizen's desire to keep a telephone conversation private is a legitimate interest recognized by society. The question for Ocean, then, is whether he subjectively manifested that legitimate interest.
Ocean made his telephone call from a small-enclosed room that was not accessible to the public, but only to the law firm's visitors. The firm makes the room available so that its visitors can make "undisturbed" telephone calls. By going into that room to place his call, Ocean subjectively manifested his intent to keep his call private.
Arguably, the government could state that Ocean's decision to make such a sensitive call from a place other than his or someone else's home may indicate that he had a lesser expectation of privacy. Moreover, he chose to keep the telephone room's door unlocked when he went in to make his call.
The government's arguments should probably fail. A citizen is not required to take the most significant measures available for keeping people away to demonstrate a privacy interest. The citizen must simply indicate his or her intent that no unintended persons hear or see the information he or she desires to keep private. Were a citizen required to meet a "most significant measures" test, the Supreme Court would have upheld the petitioner's conviction in Katz since he placed his call from a public telephone booth. Ocean should be able to demonstrate that Coltrane violated his Fourth Amendment rights unless Coltrane's actions are found reasonable.
In addition to Coltrane's eavesdropping on his telephone call, Ocean's second issue is whether he can challenge Coltrane's use of the electronic tracking device as a Fourth Amendment violation.
The government violates the Fourth Amendment when it, without a warrant or at least reasonable suspicion, uses electronic or other mechanical devices to determine that a particular person or thing is in an individual's home at a particular time.
Ocean could argue that Coltrane had no warrant to use the tracking device to monitor Ocean's movements inside the law firm, nor did he have any reason to suspect that Ocean would be involved in criminal behavior inside the firm. Ocean could argue, therefore, that Coltrane violated the Fourth Amendment when he used the device.
However, the government could argue that Coltrane knew that Ocean was in the firm without using the device. He was able to see Ocean enter the firm just as any other person might, so Ocean had no expectation of privacy in the fact that he was in the firm. The question is whether Coltrane's use of the device to track Ocean's movements inside the firm violated Ocean's Fourth Amendment rights.
The government could argue that just as Ocean did not have a reasonable expectation of privacy in the fact that he entered the firm, he probably did not have a reasonable expectation of privacy in the fact that he was in the telephone room, either. Any person present in the firm's lobby when Ocean entered the room or who asked the receptionist where Ocean was would discover that he was in the telephone room.
Although the only reason that Coltrane knew Ocean's whereabouts after Ocean entered the firm was that he used the tracking device, Coltrane's use revealed information that any member of the public could have gained. When an officer's methods reveal information that any person could have observed, the Supreme Court in Karo stated that the officer's conduct is not a search.
Ocean might argue that even though Coltrane could have observed him entering the firm, Coltrane's use of a technology not generally available to the public makes his tracking of Ocean's movements a search. The government would probably respond by stating that the technology is in the final testing stage before release to the public at large. Both government arguments, however, are probably unavailing.
The device Coltrane used was not available to the public at the time Coltrane used it. Constitutional violations are evaluated at the time they occur, and Coltrane's device was not yet in general public use when he observed Ocean.
The Supreme Court in Kyllo held that using a technology not in general use to obtain information that could not have been obtained without invading a constitutionally protected area is a search. In Katz, the Supreme Court held that the Constitution protects a citizen's subjective manifestation of a privacy interest when that interest is objectively reasonable; however, Ocean probably cannot demonstrate an objectively reasonable expectation of privacy in the fact that he was in the telephone room at that moment. His argument that Coltrane used a technology not available to the public is probably irrelevant because Ocean is not likely to establish that he was in a constitutionally protected area.
The result in this case is that Basher does not have standing to establish his own Fourth Amendment claim. Ocean will probably not be able to argue that Coltrane violated his constitutional rights by determining that Ocean was in the telephone room. Ocean probably will be able to exclude evidence of the substance of his conversation with Basher because Ocean subjectively manifested a reasonable expectation of privacy in the conversation itself and the law recognizes and protects citizens' privacy interest in conversations, even when those conversations take place while the citizen is physically in a public place.
At one time, the arrest power rule allowed the police to search a suspect's entire house if they arrested the suspect on the premises. United States vs. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950)
The proper Fourth Amendment test "is not whether it is reasonable [or practicable] to procure a search warrant, but whether the search was reasonable."
The text of the Fourth Amendment bars unreasonable searches and seizures, does not state that warrants are required, but does indicate that when warrants are sought they must meet certain specifications
§ At one time, the arrest power rule allowed the police to search a suspect's entire house if they arrested the suspect on the premises
§ Old rule
§ The proper fourth amendment test is not whether it is reasonable or practicable to procure a search warrant, but whether the search was reasonable
The text of the fourth amendment bars unreasonable searches and seizures, does not state that warrants are required but does indicate that when warrants are sought they must meet certain specifications
--Cannot Be a Law Enforcement Official
--Coolidge v New Hampshire (1971) Court held that the state Attorney General could not issue a search warrant, even though authorized by state law, because as the one conducting the investigation, he could not be considered neutral and detached.
--Conducting the Search Destroys Neutrality
-- Lo-Ji Sales, Inc. v New York (1979) The Court held that when a magistrate actively participates in the seizure of property by accompanying officers to the scene to determine what could be seized, her neutrality became compromised and thus resulted in an illegal search and seizure
® Magistrate went with them to enforce warrant; searched through stuff
® Charge was obscenity
® Would have to put magazines, booths they searched etc
® Probable cause-->undercover police officer bought two films; totality of circumstances-->how did he believe crime had been committed? Searching for obscene videos
◊ Who determine obscenity? "you'll know when you see it"
® Officer establishing probable cause by:
◊ By hearsay
◊ Independent assessment
◊ Or collaboration
◊ He established independent assessment
◊ Viewed movies
® He's establishing pc with magistrate
® How is magistrate neutral and detached?
◊ No interest
◊ Not relatable or involved in investigation
® Magistrate violated neutral and detached
§ Conducting the search destroys neutrality
□ Magistrate could have gone...but should have not been involved in search
§ The court held that when a magistrate actively participates in the seizure of property by accompanying officers to the scene to determine what could be seized,.....
OTHER REQUIREMENTS FOR MAGISTRATE:
--Contingent Fee Destroys Neutrality
Connally v Georgia (1977) The Court held that a magistrate that received $5 for every warrant he issued but nothing for any warrant application he denied could not be deemed neutral. The Court held that such a pecuniary interest could impermissibly affect his impartial judgment. DUH!!!!!!!!!!
A magistrate who issues a warrant without reading the warrant or the supporting application is not considered neutral and detached as required by the Fourth Amendment. Such a magistrate has become nothing more than a rubber stamp for law enforcement.
In United States v Decker (1992), the Court held that a magistrate loses neutral and detached status when he fails to read a warrant because he was "intrigued" by the manner in which the officer became suspicious of the defendant.
--Need Not Be Lawyers
In Shadwick v. City of Tampa (1972), the Court held that a municipal court clerk, who was authorized by state law to issue warrants, but who was not a lawyer, could constitutionally issue arrest warrants for municipal violations.
Federal Courts: Shadwick has no bearing on Federal practice. In Federal courts, magistrates are lawyers who are appointed by the district courts under 18 U.S.C.A § 3060.
Major Crimes: The Court in Gates assumed that non-lawyers may issue search warrants for major crimes.
--Must Be Competent to Determine Probable Cause
Magistrate must have the intellectual ability to determine probable cause; however, since probable cause is a common sense standard, there seems to be no intellectual prerequisite or educational credential required as a matter of constitutional law.
There is no requirement that a magistrate give reasons for finding probable cause or for rejecting a warrant application.
The degree of particularity which is reasonable depends on the nature of the place to be searched, and on the information that an officer could reasonably obtain about the location.
Urban Areas: Particularity may be more restrictive-must say street address and, if applicable, an apartment number not just an apartment on a particular street.
Rural Areas: Particularity may be less restrictive - could say "a blue house with a trailer, with a broken mailbox, on highway 23A two miles from Tannersville" whereas "a house two miles from Tannersville" would not be enough information
Particular Description of Place to Be Searched:
--Applicability to More than One Location
If the warrant describes a location with information as specific as one could reasonable expect to obtain, then it is sufficiently particular even though the warrant could actually apply to more than one location.
One problem that arises with respect to particularity of location, especially in urban areas, is where the warrant gives the wrong address for the premises to be searched. For example, assume that there is probable cause to search an apartment in a building on the corner of A and B. The building's entryway faces A, and the officer who prepares the affidavit gives the address as A Street. But the actual mailing address is B Street. Can the warrant satisfy the particularity requirement even though it sets forth the wrong address?
□ e.g. 94 12th street; grandma's house looks like one house...but there's an A & B even though doesn't say it; if you walk around to alley way, go into side door...great grandma's house; grandma has house in front; looks like 1 house but it's 2
□ So if police put 940 12th street and knock on grandma's door...don't knock and go in and they find some of her stuff she bought on
□ If the warrant describes a location with info as specific as one could reasonable expect to obtain, then it is sufficiently particular even though the warrant could actually apply to more than one location
§ Incorrect address
□ One problem that arises with respect to particularity of location, especially in urban areas, is whether the warrrant gives the wrong address for the premises to be searched. For example, assume that tere is probable cause to search an apartment in a buildimng on the corner of A and B. The building's entryway faces A, and the officer who prepares the affidavit gives the address as A street. But the actual mailing street is B. Can the warrant satisfy the particularity requirement even though it sets forth the wrong address?
® Some courts say yes; some say no
--Problems in Execution
In executing the warrant, the police may commit error if it is clear that the warrant, even though sufficiently particular when issued, was not intended to cover a certain area. Thus in Garrison, the officer could not execute the warrant if it was readily apparent before the search that there were two apartments on the floor instead of one
Particular Description of Things to Be Seized:
As with other particularity issues, the test of whether a description of things to be seized is sufficiently particular is one of reasonableness, determined by the information that police could reasonably be expected to know prior to the search. In order to have probable cause to seize something, there must ordinarily be some information which reasonably identifies it, although the degree of precision will depend on the facts and circumstances of each case.
--Reasonable Particularity: Particularity by Incorporation
Groh v. Ramirez, 540 U.S. 551 (2004) The Court held that a search warrant that failed to particularly describe the items to be seized was invalid on its face, notwithstanding the fact that the items were described in detail in both the warrant application and the supporting affidavit.
Warrant was "plainly invalid" in that it "failed altogether" to comply with the particularity requirement of the Fourth Amendment
Warrant here "was so obviously deficient that [Court} must regard the search as 'warrantless' within the meaning of case law.
Warrant's facial invalidity is not saved by an application that adequately described the place to be searched and the items to be sized when the warrant itself did not describe the items to be seized at all.
--Catch-All Clauses in the Warrant
Clause that states particular items and includes a phrase such as "any other evidence of the crime" are deemed overbroad unless they are somehow qualified by the particular descriptions that are set forth together with the catch-all clause in the warrant. Nevertheless, phrases such as "other stolen property," other evidence of "narcotics trafficking" and other "misbranded drugs" have been struck down as overbroad.
The Court has held that to be sufficiently particular, a catch-all clause must be related to and qualified by previously described property, as opposed to a generalized offense.
If some clauses in a warrant are sufficiently particular and other clauses are not, the overbroad clauses can be severed from those that are sufficiently particular. The warrant, and the search conducted pursuant to it, will then be evaluated on the basis of the valid clauses. If an item is covered by one of the valid clauses, then it is properly seized pursuant to the warrant even if the item is also covered by an overbroad clause such as a catch-all.
18 U.S.C.A § 3109 provides that a law enforcement officer may break into premises to execute a search warrant "if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant."
This Federal "knock and announce" statute, similar to those in most states, codifies the longstanding common law rule of notice conditioning official entry to premises, absent exigent circumstances.
Decreases potential for violence
Decreases possibility of police entering wrong premises
Allows for at least a minimal amount of time to prepare for official entry
Provides occupants with opportunity to voluntarily allow officers to come into their home, facilitating and speeding up the search process while, at the same time, minimizing the privacy intrusion and the possibility of property damage.
Constitutional Basis: Wilson v Arkansas (1995)
Court held that "in some circumstances an unannounced entry into a home might be unreasonable under the Fourth Amendment." The practical effect of Wilson is limited to those few states which have no statute or rule requiring announcement before entry.
Failure to knock can affect reasonableness of search
§ Manner of entry
□ Notice must be given before an officer can break open an outer or inner door or window of a house. Triggered whenever officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or open a closed door but unlocked door
§ Compliance with the notice requirement
□ How are the policeman's actions perceived by the occupants not on his magic words
® Based on occupants perception not police's actual words
® When the officer knocks on the door and says nothing and officer says "its me..." when he then comes in the court is going to look at how the occupants determine whether this officer gave notice he was going to enter or break it down
Manner of Entry
Notice must be given before an officer can "break open an outer or inner door or window of a house." Triggered whenever officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or open a closed but unlocked door. Sabbath v United States (1968)
Compliance With the Notice Requirement
How are the policeman's actions perceived by the occupants not on his magic words.
Exigency-based exceptions (involving danger or destruction of evidence) to the knock-and-announce doctrine are not automatic (so called per se "blanket exceptions)
Exigency must be established individually in each particular case (whether or not, for example, it is a felony drug investigation where the existence of exigent circumstances may often be likely).
§ Emergency exception
□ Exigency-based exceptions (involving danger or destruction of evidence) to the knock and announce doctrine are not automatic (so called per se blanket exceptions)
□ Execution of a warrant issue
§ If you have a warrant, police do not have to specifically announce that they are police when knock
§ When you open door, you have invited person on outside to have something
§ When you have a search warrant, you CANNOT stop them from coming in
○ Emergency exception:
§ Standard: the standard to be met by executing officers before exigency is recognized as an exception is "reasonable suspicion" standard
® Case by case basis
§ In order to justify a no knock entry, the police must have a reasonable suspicion that knocking and announcing their presence under the particular circumstances, would be dangerous and futile or that it would inhibit the effective investigation of the crime by, for example, allowing destruction of evidence
□ No knock warrant--don't have to knock and announce
□ Don't have one of those warrants--have to knock
□ As an officer, can also establish reasonable suspicion before knocking
® They hear flushing, see people rushing around
® Don't have to knock then...exigent circumstances
Standard: The standard to be met by executing officers before exigency is recognized as an exception is "reasonable suspicion" standard.
"In order to justify a 'no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous and futile, or that it would inhibit the effective investigation of the crime by, for example, allowing destruction of evidence.
Under this so-called police-created exigency doctrine, a number of lower courts had held that officers could not rely upon this exception if they had created the very exigency which they sought to use to justify acting without a warrant. See United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir.1986); United States v. Richard, 994 F.2d 244, 249-250 (5th Cir. 1993); and Mann v. State, 357 Ark. 159, 161 S.W. 3d 826, 834 (Ark. 2004).
Other courts did not find a Fourth Amendment violation simply on the grounds that officers created the exigency. See United States v. MacDonald, 916 F.2d 766, 772 (2nd Cir. 1990); State v. Robinson, 327 Wis.2d, 302, 326-328; and 786 N.W. 2d 463, 475-476 (Wis. 2010).
In this case a police officer knocked on the door, which prompted the destruction of evidence. The officer then entered the home under the exigent circumstances doctrine, without a warrant. The Court held that "the conduct of the police prior to their entry into the apartment was entirely lawful."
The Court found that the "exigent circumstances rule . . . . [does] apply in the case at hand [even though] the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence."
The Court held that where police do not violate the Fourth Amendment (or threaten a violation) in their preceding conduct, warrantless entry of a home to prevent destruction of evidence is reasonable and therefore permissible under the Fourth Amendment.
The court indicated that although preventing the destruction of evidence is within the scope of the "exigent circumstances" exception to the Fourth Amendment warrant requirement, police-created exigencies do not justify a warrantless search.
The Court held, however, that "reasonableness" - not the tests elaborated by Kentucky's Supreme Court and other lower courts - is the standard for determining whether the police-created exigencies doctrine is applicable.
Stating that "the Fourth Amendment requires only that the steps preceding the seizure be lawful," the Court held that there was no violation of the Fourth Amendment in the police conduct.
Justice Alito argued that occupants who elect to destroy evidence - rather than refusing entry or electing not to respond - create the exigent circumstances that justify a warrantless search.
Justice Ginsburg dissented, arguing that the Court had reduced the Fourth Amendment's force by providing officers with a way to dishonor the warrant requirement.
She stated, "[t]he Court today arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant. I dissent from the Court's reduction of the Fourth Amendment's force."