Tuesday April 8, 2003  Criminal Law Day One

Fourth Amendment Violations

. Not his own, where he went to purchase drugs, as he had no clothes in the apartment, no key, and was there only to purchase drugs, he had no legitimate expectation of privacy and no standing to contest the search of the apartment.  People v. Rodriguez, 69 N.Y.2d 187

• Standing (above)

• Curtildge fourth amendment protects people and not places.  There is no requirement that there be a physical trespass in order for there to be a violation of the fourth amendment.  Even if there is a trespass, it does not necessarily mean the defendants reasonable expectation of privacy is violated.  New York would suppress evidence found after authorities entered private lands having ignored no trespassing signs or bypass a locked fence   Curtilige is the     immediately surrounding the house or the small perimeter of land, not necessarily enclosed, around the dwelling house.  Whether one has a reasonsalble expectation of privacy in the curtilidge is determined by looking at:

1. The proximity of the home to the search

2. Whether the area is within and enclosure that surrounds the home

3. Uses to which the area is put

4. Steps taken to protect the area observation of passing people.  Example the search of a barn sixty yards from a house and located outside the houses fence with nothing to protect its view in a open field is not protected by the fourth amendment.   2^nd example.  There is not reasonable protection of privacy in an unattached garage.  See People v. Crapo, 65 N.Y.2d 663 (1980)  Likewise, there is no reasonable expectation of privacy in common areas or on a fire escape available to all tenants.  People v. Funches, 89 Ny2d 1005 (1997).  A flower bed located immediately behind the house was within the curtilidge therefore protected by the fourth amendment.  Florida v. Wiley, 488 U.S. 445 (1989). 

Body Cavity Searches

A person has a reasonable expectation of privacy in his or her body cavity, but taking of blood by a doctor over the objection of the arrested defendant does not violate the fourth amendment or the fifth amendment.  Schmerver v. California, 384 U.S. 75 (1966); People v. Kates, 53 N.Y2d .591 (1981). 

Areas not protected by the fourth amendment

1.                  Plain view there is not reasonable expectation of privacy in any article in plain view; neither its observation nor its seizure would involve any invasion of privacy.  Arizona v. Hicks, 480 U.S. 321 (1987).  However, the officer observing the evidence must lawfully position to have that view in order for the evidence to be lawfully seized.  Harris v. U.S., 390 U.S. 234 (1968). 

When the police have a warrant to search a given area and in the course of that search come across some article of incriminating character, it may be seized.  If the intrusion bringing the article into plain view is supported by an exception to the requirement for a warrant, then the seizure is also legitimate.   To sustain a warrantless seizure of incriminating evidence, it is required that:

1. the officer did not violate the fourth amendment in arriving at the place where the evidence is plainly viewed and
2. the incriminating character of the evidence was immediately apparent.   People v. Ricciardi, 149 A.2d 742 (1989).  This is a plain view case.  both federal and state decisional law permit seizure of articles permit seizure of articles which come into an officers plain view from a lawfully obtained vantage point.

Open field beyond the curtilidge

1. The mere act of putting up fences or no trespassing signs on highly secluded areas of a farm will not protect open fields from a warrantless government search.  Oliver v. U.S., 466 U.S. 170 (1984).  However, in N.Y., if a fence is erected, or a no-trespassing sign is posted, then under New Yorks constitution, the landowner has a reasonable expectation of privacy and a search warrant is required.  People v. Scott, 79 N.Y.2d 475 (1992). 
2. There is no objective reasonable expectation of privacy in a backyard or in a semi-enclosed greenhouse from aerial observation by a police plane flying at an altitude of 400 feet in public air space.  Photographic marijuana in a fenced in back yard surrounded by a ten foot wall from a plane 1000 feet above, is not a violation of an objective expectation of privacy.  Know the difference between an objective and subjective expectation of privacy. 
3. Dog sniffing The united states supreme court concluded a police dog sniffing suitcases at an airport does not require a warrant or probable cause since it does not constitute a search.  There was no invasion of privacy because a person cannot possess a legitimate expectation of privacy in items exposed to public view or smell.  The use of a dog, like a flashlight, is merely an aid to an officers normal sensory organs.  People v. Dunn, 155 N.Y2d 75, affd, 77 N.Y.2d 19 (1990)    U.S. v. Place  and a canine sniff elicits only evidence of criminality.  a canine sniffing dog may be used without a warrant or probable cause, provided that the police have a reasonable suspicion and (prompted by information and evidence of criminality) that a residence contains elicit contraband.
4. Garbage Searches  - when a person abandons property, he or she relinquishes any reasonable expectation of privacy in the item and the items protection if removed from the scope of the fourth amendment.  Abandoned property may be seized by police without a warrant, unless it was abandoned as a direct result of an unlawful police intrusion. 
   
   An officer received a radio report of a man wearing red and blue clothing that was selling drugs at a particular intersection.  After responding within minutes, the officer only one man who fit the description.  As the officer approached the Defendant, he turned and walked away.  When the officer shouted, stop, the defendant ran away throwing a bag of drugs.
   
   Defendant argued that the officers command to stop constituted an unlawful seizure.  The New York court of appeals disagreed.  Although in order to quote freeze by an officer displaying a gun, would be a seizure, a mere command without physical force, restraint, or some other assertion of authority is not a seizure.  Thus the drugs abandoned by jack were not suppressed.  People v. veora, 83 N.Y.2d 531 (1994) 

There is no reasonable expectation of privacy in garbage left for collection outside the curtilidge in an area which is susceptible to open inspection and accessible to animals, children, scavengers, snoops and other members of the public.  Accordingly a warrantless search by law enforcement officers of garbage left on the curb does not violate the fourth amendment.  California v. Greenwood, 486 U.S. 35 (1988)

Warrants

The fourth amendment requires that no arrest warrant or search warrant be issued without PC.  PC is defined as evidence which would lead a reasonable person to believe that an offense has been or is being committed or that seizable objects are in the place to be searched.  To establish PC to support the issuance of a search warrant, an application must be submitted to the judge with information to support a reasonable belief that evidence of a crime may be found in a certain place.  See People v. McCullough 226 A.D.2d 848 (1996). 
An arrest can only be made upon PC:
a)         evidence that an unlawful act has been commited

• the person to be arrested is the one who committed the unlawful act
  
  A search warrant may only be issued by a judge or magistrate upon the application of a government agent.  Such application must show PC:

                                                               i.      that specify property reasonable believed to be stolen;

                                                             ii.      unlawfully possessed

                                                            iii.      evidence of criminality is located in the place to be searched.

                                                           iv.      The probable cause may be based on hearsay.  For example, if the police alleged they received information from a police radio bulletin, they can rely upon a presumption that such information is reliable.  People v. Graham, 211 A.D. 55 (1995)

Probable Cause

Defined as the body of information available to a police officer which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed. 

Establishing probable

Establishing probable cause requreiments

May be established by either two methods:

1.                  A government agents own personal observation that would indicate, based on training and experience, that criminal activity is afoot; People v. Cormona, 208 A.D.2d 369 (1994)

2.                  Information supplied by a private individual. 

Probable Cause

Warrants

No-knock Warrants

The no-knock clause may be included in the search warrant if the issue in court determines that at the time of application the property sought will be secreted, removed or destroyed if notice is given before entry.  There must be reasonable suspicion that knocking and announcing the police presence and purpose would:  1) be dangerous  2) be useless or 3) inhibit the effective investigation of the crime.  Usually the police must announce their presence before entering a house to execute a search warrant, but this knock requirement is excused if there is a likelihood of violence or immediate destruction of evidence.  Wilson v. Arkansas, 514 U.S. 927 (1995). 

Warrantless searches

A search warrant without a warrant is in and of itself unreasonable unless it falls within one of the specific exceptions to the warrant requirement: 

1. border searches a routine search may be made on persons or property coming into the u. without the requirement of a warrant or PC or even reasonable suspicion.  Ex.  The search of an auto 25 miles from a border by a roving patrol was held improper.  2^nd ex.  Searches at an established immigration station near the border is the functional equivalent of a border search thus legal. 
2. consent searches if a citizen consents to a search, no warrant or probable cause is required.  Consent must be freely and voluntarily given.  For consent to be voluntary, it must be a true act of will and a product of free unconstrained choice.  There can be no official coercion, actual or implicit, overt or subtle.  See People v. Gonzalez, 39 N.Y.2d 122 (1976).  In New York, the heavy burden of proving consent is on the state.  A defendant who was arrested by police without PC and subsequently consents to let the police searches her apartment may not be considered to have voluntarily.  This is not a true and active will on the part of perpetrator.  Voluntary consent to a warrantless search may be given by any party who shares control of the premises or items to be searched.  The consent of a spouse, live in lover or roommate is sufficient to search common areas shared by the cohabitants.  The police were given access to the defendants apartment by a woman who held herself out to be the defendants girlfriend.   The woman had keys to the apartment and knowledge to where defendant kept weapon.  After seizure of the items, she informed the police that she did not live at that location.  The court found that at the time the search was conducted the police reasonably believed that she possessed common authority over the premises, and the police were acting in good faith in relying on her consent to search her premises; therefore, the evidence found was not suppressed.  Illinois v. Rodriguez, 497 U.S. 177 (1990)
   
   
3. Automobile exception a warrantless search and seizure of an auto or motor home is proper if probable cause exists to believe that it contains contraband, its occupants are alerted and the car may be removed before a warrant can be obtained.  People v. Quackenbush, 88 N.Y.2d 543 (1996).  Once the police have probable cause to believe a car contains evidence or contraband and in the course of the search they find a closed container, i.e., a suitcase, they may search the container if there is PC to believe the closed container contains contraband or evidence.

• Frisk of an automobile.- New York rule New York does not allow the search of an auto pursuant to the frisk of the occupants who have been removed from the auto.   An may be searched if PC exists. 
  
  

Inventory Searches

Where police have impounded a car, after the arrest of the driver, a warrantless search of the interior of the car and any closed containers is permissible to take inventory if the search is done to a pursuant to a standardized criteria or an established routine. 

If the police had no policy whatsoever regarding closed containers, then opening a container would violate the fourth amendment. 

Stopping Vehicle if police reasonably suspect a violation of the vehicle and traffic law, they may stop an auto they may stop an auto.  Absent a traffic violation, an investigative auto stop must be based upon a reasonable suspicion of criminal activity to believe either the auto or its occupants are associated with criminal activity.  Unless the police have evidence of traffic violations, or some articulable facts (a dangling license plate) they may not, on a hunch, stop a vehicle on a routine traffic check. 

Once stopped, the occupants may be orders out of the automobile without any particular reason for believing they possess a weapon.  Once the police have finished with a valid traffic stop, the officer can ask for consent to search the car without first telling the driver that the driver is free to go. 

Hot Pursuit

If the police are in an immediate and continuous pursuit of a suspect they may enter a premise without a warrant, they may enter a premise without a warrant to search for a suspect.  Even where the police have probable to arrest a suspect, he may not be arrested in his home unless there are urgent circumstances, consent or an arrest warrant. 

A warrantless entry into a home will rarely be sanctioned for a minor offense such as a traffic violation. 

Emergency Searches  - the police may search without a warrant when: 

           i.          They have immediate grounds to believe that there is an immediate need to protect life and property;

          ii.          Their motivation is not to arrest or to find evidence; and

        iii.          There is a reasonable basis to associate the emergency with the area searched.  Example: where a hotel maid was missing, the emergency justifies searching every room in the hotel.  2^nd example: police who, after following a blood trail into a building, when advised an argument took place in a particular apartment, can enter the apartment without a warrant.  No warrant is needed to enter a building to fight a fire. 

People v. Taper ,105 A.D 813 (1984) as a general rule, searches without a warrant are unreasonable unless they fall within one of the few exceptions; when police arrive at the scene of a homicide, they may make a prompt warrantless search of the area to see if there are other victims of if the killer is still around. 

Search incident to an unlawful arrest

Police may make a warrantless search of a person pursuant to a lawful arrest in order to protect the police and to prevent the destruction of evidence.  The scope of the search is limited to those areas in which the arrested person might reach to destroy or conceal evidence or reach for a weapon.  Prior to impounding the search must be conducted at the same time as the arrest.

New York rule a container within the arrested persons grabbable area may not be searched within a warrant unless the circumstances support a reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence in the container.  See People v. Gokey, 60 N.Y.2d 309 (1983).