Defined: the reasonable belief that a crime has been committed and that the person is linked to the crime with the same degree of certainty

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Criminal Procedure Outline 28/07/2007 16:18:00

Probable Cause

Defined: the reasonable belief that a crime has been committed and that the person is linked to the crime with the same degree of certainty

Probable cause refers to the standard by which a police officer may make an arrest, conduct a personal or property search, or obtain a warrant

Probable cause is based on the Fourth 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 (w)arrants shall issue, but upon probable cause, supported by (o)ath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Probable cause deals with probabilities such that there must be a fair probability that evidence will be found on the premises or person for probable cause to exist

Test for probable cause: The task of the issuing magistrate is simply to make a practical , common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. (Illinois v. Gates)

Cases ---------------

U.S. v. Draper:

Facts: A special employee of the bureau of narcotics informed the police that a man will be getting off of a train, on either of two days, and he will possess heroin. The snitch gives the police the address of the man, the clothes he will be wearing, the pace of his walk, and the destination he will be arriving from. The police stake out the station, find the man and arrest him.

Rule: Probable cause when it relates to an informer requires past reliability of the informer, specific and intimate facts, and corroboration of the facts. (Overruled by Illinois v. Gates in favor of a totality test)

Aguilar v. Texas:

Facts: The police went to the magistrate and asked for a search warrant based on information from an anonymous informant. The search warrant was issued for a narcotics search.

Analysis: Although the court gives deference to magistrates, the court said that this case had insufficient probable cause because the magistrate was not presented with the underlying circumstances from which the informant made his conclusions, even though the officer’s affidavit said that the informant was credible or reliable. They never said why he was reliable.

Cunha v. Superior Court

Facts: Two officers were sitting at a hot dog stand, in an area that was known for drug trafficking, and they noticed two people who were walking, talking, and looking around as if they were concerned that someone would see them. Both men reached into their pockets and the officers saw money pass from one person to the other, but they did not see any other object pass. Both officers had made drug arrests in the area before. The officers arrested both men.

Analysis: The court determined that the arresting officers did not have probable cause to make the arrest. The court discusses the reasonable man standard, and that a number of possible everyday/common transactions could have occurred.

Illinois v. Gates

Facts: The police received an anonymous letter that Lance and Sue Gates were involved in an interstate drug trafficking ring. The police decided to follow up on the lead, and they found evidence suggesting that the lead was true. They obtained a warrant to search the car and house. A search of defendant’s house and car revealed a significant amount of marijuana.

Analysis: Although the Illinois courts found that the affidavit did not include enough facts based on the Spinelli two prong test (basis of knowledge and reliability), the Supreme Court overruled the Illinois Court establishing a totality test. While the reliability and basis of knowledge of an anonymous tipster cannot be measured, when corroborated by the actions of the Gates, it satisfies the requirement to establish probable cause.

Test for probable cause: The task of the issuing magistrate is simply to make a practical , common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

People v. Graham

Facts: Experienced police officers stationed themselves in a drug prone area and watched as defendant, in five separate transactions, exchanged money for a small object he removed from a brown paper bag and thereafter placed the bag on the ground next to a fence about ten feet away. Police walked up, searched the bag, then arrested the defendant.

Analysis: The court found that probable cause was present because a reasonable person would have concluded that defendant was involved in a drug sale.

The Exclusionary Rule

Introductory Note


Prevents the government from introducing, at trial, evidence secured in violation of your Fourth Amendment rights; bars evidence secured as a result of unreasonable searches and seizures.

The Fourth Amendment safeguards people against unreasonable searches and seizures

Early case history

Weeks v. U.S. found that the exclusionary rule applied only to federal cases, not to state cases.

Wolf v. Colorado found that the Fourth Amendment applied to the states, but that the exclusionary rule did not.

Mapp v. Ohio found that the exclusionary rule is the remedy for a violation of the Fourth Amendment, and that it applied to the states

Exception to the exclusionary rule (U.S. v. Leon)

Evidence seized from a warrant that lacks probable cause is admissible when the officer acts in good faith.

Good Faith: Good faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrates authorization. In making this determination, all of the circumstances – including whether the warrant application had previously been rejected by a different magistrate – may be considered.

Exceptions to the good faith rule:

Police officer makes a false statement on the affidavit

Police officer searches outside of the warrant’s limits

The magistrates decision was not the correct decision as a result of a mistake

Magistrate operates as a rubber stamp

The warrant is deficient on its face

Cases ---------------

Mapp v. Ohio

Facts: The police suspected that a crime was occurring in a specific house. They knocked on the door and asked to search the house. Miss Mapp answered the door and informed the police that they could not enter because they had no search warrant. The police left and came back with more officers. They came back, knocked down the door and searched the premises. They found pornography, and later convicted Miss Mapp based on this evidence.

Analysis: The Court applies the exclusionary rule for several reasons. First, the Court looks at California and notes that the exclusionary rule should apply because the State of California tried other remedies for Fourth Amendment violations, and these remedies did not work. Secondly, the Court looks at the Fifth Amendment and notes that like the Fourth Amendment, the unconstitutionally obtained evidence should be suppressed like unconstitutionally obtained Fifth Amendment confessions. Thirdly, the exclusionary rule is meant to deter inappropriate behavior by police officers.

People v. McMurty

Facts: The police officer arrested the defendant on a charge of possession of marijuana. The police officer claimed that the defendant accidentally dropped the marijuana bag, walked away, and claimed it was not his.

Analysis: The Court reasoned that the officer’s claim of “dropped drugs” was common among cases. Although he makes this conclusion, the motion to suppress could not be approved because unless there was evidence to show that the police officer was lying then the burden still rested with the defendant.

United States v. Leon

Facts: In 1981, police in Burbank, California received a tip identifying Patsy Stewart and Armando Sanchez as drug dealers. Police began surveillance of their homes and followed leads based on the cars that frequented the residences. The police identified Ricardo Del Castillo and Alberto Leon as also being involved in the operation. Based on this surveillance and information from a second informant, a detective wrote an affidavit and a judge issued a search warrant.

Analysis: The Court arrives at its ultimate conclusion that evidence seized from a warrant that lacks probable cause is admissible when the officer acts in good faith since there would be no deterrence for magistrates. It was a three pronged test to determine that magistrates wouldn’t be deterred:

Exclusionary rule only applies to the police

Magistrates are neutral and they don’t care about the outcome

The deterrence of the magistrates wont work

U.S. v. Savoca (1)

Facts: Defendants were arrested for allegedly robbing a bank. Police investigation confirmed that defendants were using a hotel room under an alias belonging to one of the suspects. Defendants were arrested under the auspice of an arrest warrant. Police applied for a search warrant, filling out an affidavit noting the crime and where the men were found. The warrant was issued.

Analysis: The court found that the affidavit lacked sufficient details to suggest that evidence of the crimes was located in the hotel room. The affidavit only stated where the men were arrested and that they tried to get into the hotel room while carrying illegal firearms.

U.S. v. Savoca (2)

Issue: Does U.S. v. Savoca (1) fall under the good faith exception so that the officers were not expected to know that the search was illegal despite the magistrates authorization?

Analysis: The court held that the lack of probable cause in U.S. v. Savoca (1) was so slight that a reasonable officer was not expected to know that the warrant was not valid on its face.


When an officer is expected to know a warrant is not valid:

People v. Hulland: if you have a reasonable warrant but don’t act on it until 52 days later, it becomes stale.

People v. Laughton: it depends on the crime for the term determination of staleness. Drugs are sooner than child pornography because drugs can be disposed of quickly.

What is a search ---------------


Fourth Amendment: “The right of 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.”

The following cases deal with breadth of Fourth Amendment’s regulation of searches.

The Fourth Amendment only applies to official searches and seizures. When an individual challenges government conduct on Fourth Amendment grounds, there may be a “threshold” question: whether the police conduct constituted a “search” or “seizure.”

Rule: Where a person has a reasonable expectation of privacy, the Fourth Amendment protects his activities from search and seizure. (Katz v. U.S.)

Test: Reasonable Expectation of Privacy

1. Person must have exhibited an actual expectation of privacy (subjective component); and

2. The expectation must be one that society is prepared to recognize as reasonable (objective component).

3. Police conduct does not constitute a search if either prong of the test is lacking.


Katz v. United States

Facts: Defendant walked into a phone booth, made a call about gambling, and was arrested because the police had used a wiretap and transmitter to record the call.

Analysis: The Supreme Court declared this to be a Constitutional violation because the Fourth Amendment protects the person, and not the place. The defendant had walked into a private phone booth, and closed the door. This behavior showed that he had an expectation of privacy so that an uninvited ear would not listen in.


The fourth amendment protects the person rather than a place meaning that as an individual, you can relinquish your privacy. Moreover, by focusing on the person, you are drawing attention to someone’s rights rather than the rights of a place.

Harlan’s concurrence: Harlan talks about a two prong test that establishes the idea of a subjective expectation of privacy and whether society is willing to accept this expectation as reasonable

U.S. v. White

Facts: Defendant was talking with someone who was an undercover agent. The agent was wired to record the information. He invited the person with the wiretap in. The agent gathered incriminating testimony as a result of the wire.

Analysis: The court says there is no reasonable expectation of privacy. They make this conclusion based on the fact that an agent could leave the conversation and write the transcript by hand. The majority says that it is perfect evidence, and is therefore better than the written transcript. The benefits therefore outweigh the burden and the Court notes that the people bear the risk when they keep a secret.

Oliver v. United States

Facts: The police went to a field that was accessible by a path after hearing that marijuana was being raised. The field had a gate that said no trespassing. The field was also bordered by woods. The police bypassed the gate, and discovered the marijuana. Defendant was arrested.

Analysis: The Court found that field is not protected by the Fourth Amendment because it is not considered to be the curtilage of the home.


Open Field Doctrine: The open fields doctrine, first enunciated by the Supreme Court in Hester v. U.S., permits police officers to enter and search a field without a warrant

Based on Oliver, the police can search undeveloped land

California v. Ciralo

Issue: Does an aerial flyover at 1000 feet altitude violate a person’s right to privacy when they build a 10 foot fence

Facts: Defendant attempted to hide a field of pot by enclosing it within a ten-foot high solid fence with no holes. A police officer receives a tip regarding the field so he flies overhead and takes aerial photos. He obtains a warrant, and searches the premises.

Analysis: The Court said that the fly over was lawful. Although he manifested his intent to keep the field private, he failed to build a roof. They argued that the police officer could have driven by in a double-decker bus and seen the plants

California v. Greenwood

Issue: Whether the Fourth Amendment prohibits the warrantless search and seizure of garbage left for collection outside the curtilage of a home.

Facts: In this case, the police suspected a residence of using drugs. They ask the trash-man to pick up the trash, and bring it to the police. The police search the bag finding drug paraphernalia

Analysis: The court held that a person does not have a reasonable expectation of privacy when it concerns their trash because it is disposed of and left out for the public to see.

Search Incident to a Lawful Arrest ---------------


The Fourth Amendment warrant requirement is subject to a few well-delineated and specifically established exceptions:

Searches incident to a lawful arrest

Exigent Circumstances

Exigent circumstance: A search is reasonable, and a search warrant is not required, if all of the circumstances known to the officer at the time, would cause a reasonable person to believe that entry or search was necessary to prevent physical harm to the officer or other persons/the destruction or concealment of evidence/the escape of a suspect, and if there was insufficient time to get a search warrant. (Schmerber v. California)

Automobile Doctrine Searches

Inventory Searches

Consent Searches

Plain View Seizures

Immediate Control Doctrine: It is reasonable for an arresting officer to search for and seize any evidence on arrestee’s person in order to prevent its concealment or destruction, including an area into which an arrestee might reach in order to grab a weapon or evidentiary items. (Chimel v. Californa)


Schmerber v. California

Question: Can you take a person’s blood, in a DUI case, without a warrant but incident to a lawful arrest?

Facts: A man was involved in an accident, suspected of drunk driving. When the officer went to investigate the crash, the officer smelled alcohol on the defendant and noticed that he had glassy eyes. Defendant was taken to the hospital. When the officer went to the hospital, he arrested defendant for drunken driving. The officer ordered a physician to take blood from defendant to test the Blood alcohol level

Analysis: The Court notes that this search is different than a regular search because the officer intruded the person’s actual body. The Court found that the search was lawful because this was an exigent circumstance because time would have destroyed the evidence. Moreover, the Court found that this was a reasonable intrusion since the intrusion was minimal and done professionally.

Chimel v. California

Question: Can the police legally search defendant’s house after lawfully arresting defendant in his home.

Facts: The police lawfully arrested defendant, with a warrant, inside his home. The police then searched defendant’s house, in a different room, and took evidence which was later used to convict him of a crime.

Analysis: The Court held that the Fourth Amendment prohibits the police from searching the entire house, just because he was arrested in his home. The room that the person is arrested in may be searched, only so far as the defendant can immediately control the area.


The immediate control doctrine is established in this case. This doctrine has two purposes

To protect the officer

Evidence that could be destroyed

U.S. v. Robinson

Issue: Whether the permissible scope of the search incident to lawful arrest of an arrestee’s person may extend beyond a protective frisk to the physical manipulation of objects found on the arrestee.

Facts: The police arrest defendant and search his person finding a pack of cigarettes. After opening the pack of cigarettes, the office finds drugs inside.

Rule: A search incident to lawful arrest is a traditional exception to the Fourth Amendment warrant requirement. Exception developed as: (i) search may be made of arrestee by virtue of lawful arrest and (ii) the search may be made of the area within the arrestee’s immediate control.

Holding: Lawful arrest establishes the authority to search, and in the case of lawful custodial arrest, a full search of the person is a reasonable exception to the Fourth Amendment warrant requirement.

U.S. v. Chadwick

Facts: Defendants try to transport a large footlocker on the public trains. When the authorities lifted the chest, they noticed it was heavier than it should be, and it also was leaking talcum powder, which is normally used to hide the smell of marijuana. The police arrest the defendants after they tried loading the chest in their car. After taking the chest to the station, they searched the chest an hour and half later.

Analysis: The court said the search was unreasonable because the police took possession of the chest, and they waited too long to search it. It showed that they could have gotten a warrant prior to searching the chest since it was already in their possession

State v. Robalewski

Facts: An escaped convict is cornered in a house. He is arrested at the dinner table. When the officer asked a child if defendant had any property, the little girl pointed to a jacket. The officer went over, found a gun, and submitted it into evidence.

Analysis: The court overturns the lower court’s decision and found the search to be unreasonable. The lower court tried to say that it was okay because there was no wall separating the defendant from the gun, and he could have lunged for it. The Supreme Court said that it was not in his immediate control because it was too far away, even though he wasn’t handcuffed at the time of the search.


The state bears the burden of justifying a warrantless search

Automobile Cases

New York v. Belton

Question: What is the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its recent occupants.

Facts: A trooper in an unmarked car is passed by a car speeding. The trooper pulls the car over, in a lawful stop, and notices an envelope marked ‘supergold’ (which is a name for marijuana). He also smells burnt marijuana. The officer arrests and separates the four individuals. The officer searches the car and finds marijuana, and a leather jacket with cocaine in it.

Analysis: The court finds that this is a valid search. The court revisits Chimel and says that it stands for the proposition that a search is legal for the immediate surrounding area (not just the immediate controlling area). The court holds that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.


The court rejects a fact by fact analysis, instead they create a bright line rule

Thornton v. United States

Facts: An officer noticed that a car had a different tag that didn’t match the vehicle. The defendant knew he was going to get pulled over so he pulled into a station early and got out before the officer got there. The officer asked to see a license and asked if defendant had drugs. He had drugs on him and a revolver in the car.

Analysis: The Court applied Belton to this situation saying that there is only one standard. There are not two different standards for someone who isn’t induced out of his automobile by the police; therefore, even though defendant was not arrested in his car, the police were allowed to search the car because he had just exited it.

Stop and Frisk ---------------


A stop and frisk, also known as a Terry stop (based on the leading case Terry v. Ohio) is a standard police procedure used when a suspect is stopped.

Because a Terry Stop is performed before a suspect is arrested, it is different than a search incident to a lawful arrest. A Terry Stop requires only reasonable suspicion rather than a full search which requires probable cause.

Test for whether to a Terry stop should have been conducted:

Objective Standard - would the facts available to the officer at the moment of seizure or search “warrant a man of reasonable caution in the belief that the action taken was appropriate.” (Terry v. Ohio)


Terry v. Ohio

Issue: Whether it is reasonable for a policeman to seize a person and subject him to a limited search for weapons (stop and frisk) with no probable cause to arrest.

Facts: An experienced police officer was observing citizens. He noticed two individuals who were pacing back and forth, taking turns looking into a store window. The two men talked with each other after inspecting the window. The officer followed the two men down an alley, suspecting they were going to rob a store. He told them that he was an officer, and he then frisked the men finding guns. He then arrested them.

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