Unconfuse me on Criminal Procedure/4th amendment issues Forum

[BobSacamano]

Okay, so... in some places I see reference to the "warrant requirement." But there is no warrant requirement, there's a warrant "preference," right? A search and seizure without a warrant will still be constitutional so long as it is supported by probable cause.

So WTF are all the exceptions to the "warrant requirement," such as the automobile exception, stop and frisk, exigency? I get what they all ARE, but by calling them "exceptions to the warrant requirement," is that just another way of saying that they are searches that can be done with less than probable cause? I think I may just be confused by the phrasing of "warrant requirement" since warrants aren't really required. Or is it a warrant requirement in effect since warrantless searches are "per se unreasonable?"

So now that I think I've worked that out, what exactly is a warrant good for? Is it simply that a search based on a valid warrant (or under the good faith exception) is presumptively reasonable, so that the exclusionary rule can't be used? Or are they always needed, unless there is an exception?

edit: Okay, forget all that, I think I just unconfused myself. There is no warrant requirement in the Constitution, but courts have read the warrant requirement into the 4th amendment, so that now searches done without a warrant are presumed invalid unless there is an exception. But, if it's impractical to get a warrant, they don't have to, right?

[mikeytwoshoes]

[vanwinkle]

Okay, so... in some places I see reference to the "warrant requirement." But there is no warrant requirement, there's a warrant "preference," right? A search and seizure without a warrant will still be constitutional so long as it is supported by probable cause.

So WTF are all the exceptions to the "warrant requirement," such as the automobile exception, stop and frisk, exigency? I get what they all ARE, but by calling them "exceptions to the warrant requirement," is that just another way of saying that they are searches that can be done with less than probable cause? I think I may just be confused by the phrasing of "warrant requirement" since warrants aren't really required. Or is it a warrant requirement in effect since warrantless searches are "per se unreasonable?"

So now that I think I've worked that out, what exactly is a warrant good for? Is it simply that a search based on a valid warrant (or under the good faith exception) is presumptively reasonable, so that the exclusionary rule can't be used? Or are they always needed, unless there is an exception?

edit: Okay, forget all that, I think I just unconfused myself. There is no warrant requirement in the Constitution, but courts have read the warrant requirement into the 4th amendment, so that now searches done without a warrant are presumed invalid unless there is an exception. But, if it's impractical to get a warrant, they don't have to, right?

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.

Clearly, there is a warrant requirement in the Constitution. The clause "and no Warrants shall issue" is a warrant requirement. It's treated independently of the unreasonable search and seizure requirement, but as Scalia has rightly pointed out, if you don't consider warrants a part of reasonableness, there's no point to including a limitation on when warrants shall issue. (For as much as I can't stand Scalia elsewhere, he really is the hero of the Fourth Amendment.) A warrant isn't always required, though; sometimes it's not feasible to expect the cops to get a warrant, and the courts don't require it then.

The standard is essentially that the police require either:
1) A warrant based on probable cause, or
2) probable cause plus an exigency that makes obtaining a warrant unfeasible.

For entering a home, absent an exigency, the police always need a warrant. I don't remember the case name, but the court ruled back in the 1920s that an automobile basically is an exigency because it's mobile, and even if you arrest the driver and take him back to the station for questioning, someone else could come along and drive off with it.

However, probable cause is specific; you can only search for what you have probable cause to search for. If you pull over a car and arrest the driver for not wearing a seat belt, you don't have probable cause to search the car for drugs, so you can't search it for drugs. However, if something (such as plain view) allows the cop to lawfully develop probable cause, by doing something like observing a bag of marijuana on the passenger seat, then he can search the rest of the car for drugs because he has PC for that.

There may be things unrelated to probable cause that give rise to searches, though. It used to be that the cops could search it anyway under search incident to arrest, on the theory that they're searching for weapons or things that would be harmful to the police. This is a police safety objective and supposedly not being done primarily for gathering evidence, so it's not rooted in the traditional privacy analysis. However, the Court (again, Scalia) smacked that down in the 2009 Gant case by pointing out that once the driver is arrested and secured (which they do first thing for their own safety) it doesn't matter if there are weapons in the car or not after that point, so there's no more search incident to arrest exception.

[Feynman]

Vankwinkle has a good post above, but he contradicts himself and I think that may confuse you.

4th Amendment requires only reasonableness. Sometimes in order to be reasonable a warrant is required, sometimes it is not (when a police officer with exigent circumstances has probable cause).

[vanwinkle]

4th Amendment requires only reasonableness. Sometimes in order to be reasonable a warrant is required, sometimes it is not (when a police officer has probable cause).

You're correct that sometimes a warrant is required and sometimes one isn't. But you're misleading because the police officer must always have probable cause either way. To get a warrant, a police officer must have probable cause. They must then make an oath or affirmation to a magistrate that they have probable cause in order to obtain a warrant from that magistrate. In situations where the cop gets a warrant, he has probable cause, but it's not enough.

The times when a police officer does not need a warrant, it is for a specific policy reason. For example, they may arrest a person walking on the street if they have probable cause that person has committed or is committing a crime, without obtaining a warrant. But exigencies exist here. If the person has committed or is committing a crime, they are potentially a danger to the public around them. Also, it's unreasonable to make the police officer wait for a warrant; the suspect might flee before he could get one.

This is why, as I said, the best way to think about it is either "PC + warrant" or "PC + exigency". They always need PC, but they always need something more, too. If you focus on what that something more has to be, that'll help you figure out if there's a warrant requirement or not. Either there's something else that gives them a justification for not having a warrant, or they need a warrant.

Edit: Feynman stealth-edited. He changed it to say that no warrant is required "when a police officer with exigent circumstances has probable cause", but that doesn't contradict anything I originally said.

[Danteshek]

Carroll created the auto exception. Acevedo explains the exception as it is interpreted now.

Belton (despite Gant) is still good law if you limit it to its facts (four perps, nighttime etc.)

Out of curiosity, did you guys cover Montejo and Shatzer?

[vanwinkle]

Out of curiosity, did you guys cover Montejo and Shatzer?

Shatzer was discussed briefly. I barely remember it, since I haven't finished outlining the Miranda section of my notes yet.

[Danteshek]

Both are 6th amendment cases

Montejo: If court assigns counsel at arraignment, and police haven't yet gone for waiver, the police get one shot at waiver without attorney present (despite Edwards).

Shatzer: After invocation of right to counsel, police can release, wait two weeks and re interrogate without presence of counsel.

The court says neither are violations of the 6th amendment. This is fairly revolutionary..

[vanwinkle]

Both are 6th amendment cases

Montejo: If court assigns counsel at arraignment, and police haven't yet gone for waiver, the police get one shot at waiver without attorney present (despite Edwards).

Shatzer: After invocation of right to counsel, police can release, wait two weeks and re interrogate without presence of counsel.

The court says neither are violations of the 6th amendment. This is fairly revolutionary..

Isn't Miranda rooted in the 5th and not 6th Amendment though? I thought the 6th Amendment right to counsel only applied to the trial itself, and the right to counsel during police interrogation was considered a due process protection.

[Danteshek]

Miranda rights are not constitutional rights. If someone fails to Mirandize you, your constitutional rights are not violated. Your 5th amendmend right not to self incriminate is violated only if your will was overborn (involuntary, i.e coerced). An unwarned statement, by itself, is not a 5th amendment violation.

6th amendment right to counsel attaches when adversarial proceeding have begun (indictment). Montejo and Shatzer are ways you can get around the rules preventing police from interrogating suspects after they have counsel (in Montejo's case where the court appoints counsel).

[vanwinkle]

Miranda rights are not constitutional rights. If someone fails to Mirandize you, your constitutional rights are not violated. Your 5th amendmend right not to self incriminate is violated only if your will was overborn (involuntary, i.e coerced). An unwarned statement, by itself, is not a 5th amendment violation.

6th amendment right to counsel attaches when adversarial proceeding have begun (indictment). Montejo and Shatzer are ways you can get around the rules preventing police from interrogating suspects after they have counsel (in Montejo's case where the court appoints counsel).

This really confuses me. If they fail to Mirandize you, that doesn't in itself violate your due process rights, but conducting an interrogation without reading your rights does, right? That's not treated as a 5th Amendment due process violation?

[Danteshek]

Police can interrogate you without Mirandizing you without violating your 5th Amendment right to self incrimination. There is no 5th amendment violation unless they coerce the statement out of you. If the statement is voluntary there is no 5th Amendment violation. Obviously they can't use the statement in the case in chief because of Miranda. But under Patane physical fruits of Miranda violations are admissible (so long as there is no coercion). If there is a 5th Amendment violation, fruits are not admissible for case in chief or for impeachment. Fruits are admissible for impeachment of D's testimony for any other violation (Miranda, 4th, or 6th). Basically this means that 5th Amendment violations are the most serious violations, and also the most difficult to establish.

[vanwinkle]

Police can interrogate you without Mirandizing you without violating your 5th Amendment right to self incrimination. There is no 5th amendment violation unless they coerce the statement out of you. If the statement is voluntary there is no 5th Amendment violation. Obviously they can't use the statement in the case in chief because of Miranda. But under Patane physical fruits of Miranda violations are admissible (so long as there is no coercion). If there is a 5th Amendment violation, fruits are not admissible for case in chief or for impeachment. Fruits are admissible for impeachment of D's testimony for any other violation (Miranda, 4th, or 6th). Basically this means that 5th Amendment violations are the most serious violations, and also the most difficult to establish.

This makes my head hurt.

[Danteshek]

Sorry. 5th Amendment violations are almost always accompanied by some coercive physical activity or psychological tactic to overbear the will of the defendant.

Miranda violations are analytically separate from 5th Amendment violations.

[Grad_Student]

Both are 6th amendment cases

Montejo: If court assigns counsel at arraignment, and police haven't yet gone for waiver, the police get one shot at waiver without attorney present (despite Edwards).

Shatzer: After invocation of right to counsel, police can release, wait two weeks and re interrogate without presence of counsel.

The court says neither are violations of the 6th amendment. This is fairly revolutionary..

Isn't Miranda rooted in the 5th and not 6th Amendment though? I thought the 6th Amendment right to counsel only applied to the trial itself, and the right to counsel during police interrogation was considered a due process protection.

While Miranda isn't const. by nature it's still rooted in the 5th amend.
Shatzer also applies to Miranda as well (I think that's what you meant but the statement didn't make it quite as clear.)

[katjust]

Probable cause is not always required for searching. Gant allows searching with reasonable suspicion that the automobile contains evidence of the crime for which the person has been arrested.

Also, Terry frisks only require reasonable suspicion. Searches incident to arrest require no suspicion whatsoever.

To answer the OP. There is a warrant requirement with searches, there are simply a bunch of exceptions to it.

[vanwinkle]

Probable cause is not always required for searching. Gant allows searching with reasonable suspicion that the automobile contains evidence of the crime for which the person has been arrested.

Wait, what? Gant held that officers could search the car for evidence of the crime they're being arrested for, but they still need probable cause that such evidence exists. The court didn't discard the probable cause requirement for investigative searches at all. In fact, it cited to Ross when indicating it was going to limit the scope of automobile searches to existing precedent, and Ross held that probable cause such evidence existed was required for an evidentiary search of a vehicle.

http://www.law.cornell.edu/supct/html/07-542.ZS.html (That's the Gant case, see how they cite Ross as defining the scope of evidentiary concerns near the bottom.)

http://en.wikipedia.org/wiki/United_States_v._Ross (Notice the clear "probable cause" requirement in the holding.)

Investigative searches for evidence always require probable cause, and either a warrant or an exigency to excuse not getting a warrant. Search incident to arrest doesn't require PC because it's not an investigative search for evidence, it's rooted in officer safety. Terry frisks require less than PC because they're justified in officer safety and not investigative grounds. Any time something is investigative, it needs PC.