Criminal Procedure - Outline Part 8

• A warrant may authorize the search of a person, but it must be explicit
• A warrant to search a home or other premises does not provide implicit authority to search persons found at the scene, even if the criminal evidence for which the police are looking might be on them
  • Ybarra v. Illinois (1979) → the police must have independent probable cause to search the person – “a person’s mere propinquity (proximity) to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person” – as well as some justification for conducting the search without a warrant, i.e., they must be able to point to an exception to the “warrant requirement.”
    • Does NOT stand for the proposition that police may NEVER search persons coincidentally at the scene during a warranted search

• Although the police may NOT automatically search persons present at the scene during the execution of a search warrant, the SC created a bright line rule:
  • Michigan v. Summers (1981) → regarding seizure of persons present at scene of execution of search warrant, “a warrant to search [a residence] for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.”
  • Bailey v. US (2013) → The right of detention is automatic: it “does not require law enforcement to have particular suspicious that an individual [seized under the rule] is involved in criminal activity or poses a specific danger to the officers.”
  • Muehler v. Mena (2005) → the right of the police to detain an occupant during a warranted search of a residence necessarily includes the right to use reasonable force to secure and maintain detention of the occupant
• HOWEVER, b/c the right of detention is automatic and can result in a relatively lengthy detention while the search is conducted, the Summers Rule is limited to:
  • the detention of occupants of the residence at the time of the search, and
  • persons discovered “immediately outside a residence at the moment the police officers execute the search warrant.”
    • Once an individual has left the immediate vicinity of the premises to be searched, the bright-line Summers rule NO LONGER APPLIES
      • 1-mile away from the premises is too much
  • Scalia on “General 4^th Amendment Rule” → “the general rule is that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause. Summers embodies a categorical judgment that in one narrow circumstance – the presence of occupants during the execution of a search warrant – seizures are reasonable despite the absence of probable cause.”

Katz v. US, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4^th Amendment – subject only to a few specifically established and well-delineated exceptions.”

General Rule – Officers should not be required to get a warrant when they can’t feasibly do so, in situations such that going through the warrant process could allow the criminal to (1) destroy the evidence, (2) harm another person, or (3) searching when in “hot pursuit” for a suspect. These exigent circumstances allows the police to dispense with the warrant requirement

• Warden v. Hayden (1967) → Exigent circumstances (the commission of a crime, information about the alleged criminal and his location) prevents neither the entry or search without a warrant invalid
• 4 Exigencies → Search without a Search Warrant
  1. Hot Pursuit of a fleeing FELON
  2. Imminent Destruction of Evidence
  3. Need to Prevent Suspect from Escape
  4. Risk of Imminent Harm to Police or Others Inside

Police-Created Exigency Exception → if there is a serious threat of destruction of evidence, a search warrant is not needed; however, under the “police-created exigency” doctrine, if the police’s own conduct “created” or “manufactured” the exigency (the threat of evidence-destruction), then the main evidence-destruction exception to the warrant requirement will NOT apply, and the police will need to get a warrant before they conduct a search

• B/c of Kentucky v. King (2011), the police-created-exigency doctrine is narrowly interpreted; it will nullify the police’s right to enter warrantlessly ONLY when the police “gain entry to premises by means of (1) an actual or (2) threatened violation of the 4^th Amendment
  • This means that as long as the police behavior is “reasonable” in Fourth Amendment terms, that behavior will not deprive the police of the ability to enter without a warrant in order to prevent the imminent destruction of evidence.
  • Rule: if there ARE exigent circumstances that would ordinarily relieve the police of the obligation to get a warrant, the police forfeit that right on account of the police-created-exigency doctrine ONLY IF the police were in fact violating, or threatening to violate, the Fourth Amendment
    • The exigent circumstances exception to the Fourth Amendment's warrant requirement applies to an officer-created exigency if the exigency does not arise from the officer's unreasonable or unconstitutional conduct.
      • Under the exigent circumstances doctrine, officers may enter a home without a warrant to deliver emergency aid to an individual, pursue a fleeing suspect, or to prevent the imminent destruction of evidence.
      • A prerequisite to gaining entry into a residence without a warrant under the doctrine is that the officers must have probable cause to believe that dangerous or suspicious activity is currently taking place

NOTICE → An exception to the warrant requirement does NOT necessarily (or, even usually) dispense with the probable cause requirement

• What Can Be Searched During a Search Warrant