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Byron L. Warnken - One of the best experts on this subject based on the ideXlab platform.
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four ways to make valid fourth amendment intrusions into houses Search Warrant arrest Warrant exigency consent
Social Science Research Network, 2010Co-Authors: Byron L. WarnkenAbstract:This 68-page CLE (continuing legal education) brochure is titled “Four Ways to Make Valid Fourth Amendment Intrusions into Houses: Search Warrant, Arrest Warrant, Exigency, & Consent.” It was presented to the Baltimore County Police Department in 2009. Topics include (1) standing and reasonable expectation of privacy in houses, (2) the Reasonableness Clause versus the Warrant Clause, (3) required documents and steps in the Warrant issuance process, (4) a neutral and detached magistrate, (5) probable cause, (6) the particularity requirement, (7) anticipatory Search Warrants, (8) where and by whom may a Warrant be executed, (9) time limitations on Search Warrant execution, (10) permissible scope of Warrant execution, (11) presence or absence of persons when a Search Warrant is executed, (12) documents made and/or delivered during or subsequent to a Search, (13) challenging Warrants by challenging Warrant affidavits through a Franks hearing, (14) arrest, (15) arrest in public, (16) arrest of the Defendant in the Defendant’s home, (17) arrest of the Defendant in a third party’s home, (18) the manner of entry into a home to execute an arrest Warrant, (19) Search incident to lawful arrest, (20) prompt presentment requirement and the remedy for non-compliance, (21) the remedy for illegal arrest, (22) hot pursuit, (23) other exigent circumstances, (24) the plain view doctrine, (25) consent Searches, and (26) the exclusionary rule and its purpose.
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Four Ways to Make Valid Fourth Amendment Intrusions into Houses: Search Warrant, Arrest Warrant, Exigency, & Consent
SSRN Electronic Journal, 2010Co-Authors: Byron L. WarnkenAbstract:This 68-page CLE (continuing legal education) brochure is titled “Four Ways to Make Valid Fourth Amendment Intrusions into Houses: Search Warrant, Arrest Warrant, Exigency, & Consent.” It was presented to the Baltimore County Police Department in 2009. Topics include (1) standing and reasonable expectation of privacy in houses, (2) the Reasonableness Clause versus the Warrant Clause, (3) required documents and steps in the Warrant issuance process, (4) a neutral and detached magistrate, (5) probable cause, (6) the particularity requirement, (7) anticipatory Search Warrants, (8) where and by whom may a Warrant be executed, (9) time limitations on Search Warrant execution, (10) permissible scope of Warrant execution, (11) presence or absence of persons when a Search Warrant is executed, (12) documents made and/or delivered during or subsequent to a Search, (13) challenging Warrants by challenging Warrant affidavits through a Franks hearing, (14) arrest, (15) arrest in public, (16) arrest of the Defendant in the Defendant’s home, (17) arrest of the Defendant in a third party’s home, (18) the manner of entry into a home to execute an arrest Warrant, (19) Search incident to lawful arrest, (20) prompt presentment requirement and the remedy for non-compliance, (21) the remedy for illegal arrest, (22) hot pursuit, (23) other exigent circumstances, (24) the plain view doctrine, (25) consent Searches, and (26) the exclusionary rule and its purpose.
Vinesh Basdeo - One of the best experts on this subject based on the ideXlab platform.
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a critique of Search and seizure in terms of a Search Warrant in south african criminal procedure a comparative analysis
African Journal of International and Comparative Law, 2019Co-Authors: Vinesh BasdeoAbstract:The primary objective of this article is to determine whether the Search and seizure measures employed in the South African criminal justice system are in need of any reform and/or augmentation in ...
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a constitutional and a comparative analysis of a Search Warrant in south african criminal procedure
Comparative and International Law Journal of Southern Africa, 2018Co-Authors: Vinesh BasdeoAbstract:This article analyses ‘Search and seizure’ in the South African criminal justice system as is made possible by Chapter 2 of the Criminal Procedure Act, which provides for Search Warrants, the entering of premises, and the seizure, of property connected with offences. The primary objective of this article is to determine whether the Search and seizure measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the ‘spirit, purport and object’ of the Constitution. It determines whether the required judicial scrutiny provides a real control upon the exercise of Search and seizure powers. Relating to this, but a distinct issue in itself is the sufficiency of information provided by the applicant to the issuer of the Warrant. Proof of reasonable grounds to believe not only that an offence has been committed, but also that there will be evidence of it on the premises to be Searched may be necessary to comply with the derogation from the right to privacy contained in section 14 of the South African Constitution. Search and seizure legal principles extracted from United States criminal procedure will be analysed for comparative purposes.
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A critique of Search and seizure in terms of a Search Warrant in South African criminal procedure
Southern African Public Law, 2017Co-Authors: Vinesh BasdeoAbstract:The requirements and safeguards for a valid Search Warrant in South African criminal procedure are critically analysed in this article. The existence of safeguards to regulate the way in which law enforcement officials may enter the private sphere of ordinary citizens is one of the features that distinguish a constitutional democracy from a police state. South African experience has been notoriously varied in this regard. Many generations of systemised and egregious violations of personal privacy established norms for citizens that seeped generally into the public administration and promoted amongst a great many officials habits and practices inconsistent with the standard of conduct now required by the Bill of Rights. Today, law enforcement officials must be highly skilled in the use of investigative tools and extremely knowledgeable about the intricacies of the law. One error in judgment during initial contact with a suspect can, and often does, impede the investigation and could affect the fairness of the trial. For example, an illegal Search may so contaminate evidence obtained that it will not be admitted as evidence in court. In addition to losing evidence for prosecution purposes, failing to comply with constitutional mandates often leads to liability on the part of the law enforcement official.
Adam M Gershowitz - One of the best experts on this subject based on the ideXlab platform.
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the post riley Search Warrant Search protocols and particularity in cell phone Searches
Vanderbilt Law Review, 2016Co-Authors: Adam M GershowitzAbstract:INTRODUCTIONFor nearly a decade, scholars1 called for the Supreme Court to forbid Warrantless cell phone Searches incident to arrest. The argument was simple: cell phones carry an enormous amount of personal data, and Searches incident to arrest can be conducted for low-level offenses that have nothing to do with cell phones. Allowing police to Search millions of pages of private data simply because a suspect was arrested for driving while intoxicated, or some other low-level offense, made no sense. The obvious solution was for police to procure a Warrant before Searching a cell phone.In June 2014, in Riley v. California, the Supreme Court obliged and forbid Warrantless Searches incident to arrest of cell phones.2 The decision was met with widespread applause. Leading scholars, such as Orin Kerr, commended the Court for recalibrating the balance between privacy and the needs of law enforcement.3 The public and media reaction to Riley was nearly universally positive.4 With neutral magistrates standing between the police and cell phones, privacy rights would be protected.Given the sweeping language in Riley about the importance of impartial judges and the limitation of police authority to invade privacy, one might expect that judges would take an active role in ensuring that Warrants are narrowly tailored to protect privacy rights. Yet, many courts have issued post-Riley Warrants that authorize an expansive Search of the entire cell phone-and the millions of pages of attendant data-with little or no guidance or limitation on what police can Search.For example, in the 2015 case of United States v. Winn, police observed a man use his cell phone to photograph teenagers in their bathing suits at a pool.5 Police and prosecutors believed the suspect should be charged with the misdemeanor of public indecency.6 Yet, even though the only relevant evidence of public indecency that could be on the phone was photographs and videos, the prosecutors convinced a judge to sign a Warrant authorizing a Search of "any or all files contained on said cell phone," including the phone's calendar, phonebook, text messages, emails, call logs, GPS information, internet history, Wi-Fi information, and numerous other applications.7 As a federal district judge later remarked, the Warrant "authorized the seizure of virtually every piece of data that could conceivably be found on the phone."8 Indeed, the officers used a data extraction device9 to do a " complete phone dump"10 that eventually turned up evidence of the more serious crime of possessing child pornography.11While a federal judge eventually suppressed the evidence in the Winn case, other courts have upheld similarly overbroad Search Warrants. For instance, in a recent New York case, officers sought a Search Warrant for a video the suspect was taking on his iPhone when the police arrested him.12 The officers had seized the phone and personally turned off the video recording during the arrest, thus making it crystal clear that the suspect had no time to hide the video in an unusual place on the phone.13 Although the probable cause was for a specific video, and there was no reason to believe it would be anywhere other than the phone's video library, a judge authorized a Search Warrant for the entire contents of the phone.14 When the defendant later filed a suppression motion arguing that the Search should have been limited to video and photo files, a judge upheld the Warrant.15Police have also pushed the envelope for broad Warrants in drug cases. Law enforcement has long recognized that drug dealers use cell phone functions-particularly text messages-to conduct their illegal operations.16 In both pre- and post-Riley drug cases, it is therefore very common for officers to request cell phone Search Warrants. In some instances, however, police go beyond communications data such as text messages and call logs and also seek Warrants for unrelated applications such as photos and videos. …
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The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches
Vanderbilt Law Review, 2015Co-Authors: Adam M GershowitzAbstract:Last year, in Riley v. California, the Supreme Court required police to procure a Warrant before Searching a cell phone. Unfortunately, the Court’s assumption that requiring Search Warrants would be “simple” and very protective of privacy was overly optimistic. This article reviews lower court decisions in the year since Riley and finds that the Search Warrant requirement is far less protective than expected. Rather than restricting Search Warrants to the narrow evidence being sought, some magistrates have issued expansive Warrants authorizing a Search of the entire contents of the phone with no restrictions whatsoever. Other courts have authorized Searches of applications and data for which no probable cause existed. And even when district and appellate courts have found these overbroad Search Warrants to be defective, they have almost always turned to the good faith exception to save the Searches and allow admission of the evidence.This article calls on courts to take the Fourth Amendment’s particularity requirement seriously before issuing Search Warrants for cell phones. Just as magistrates cannot authorize police to Search for a fifty-inch television in a microwave, nor should officers be permitted to rummage through all of the files on a cell phone when a narrower Search will suffice. In order to effectuate the privacy guarantee in Riley, this Article proposes two approaches to narrow cell phone Search Warrants. First, I argue that judges should impose Search protocols that specify in advance exactly how police should execute Warrants and sift through electronic data. Second, this Article challenges the common assumption that all cell phone Searches require full forensic analysis. In many cases involving street crimes, magistrates should initially restrict Warrants to a manual Search of the particular functions or applications for which there is probable cause. These two ex ante restrictions on cell phone Searches will protect privacy and prevent over-use of the good faith exception, while still permitting police to examine all data they have probable cause to investigate.
Justin H. Smith - One of the best experts on this subject based on the ideXlab platform.
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Press One for Warrant: Reinventing the Fourth Amendment's Search Warrant Requirement through Electronic Procedures
Vanderbilt Law Review, 2002Co-Authors: Justin H. SmithAbstract:Numerous rulings by the Supreme Court have confirmed the long-held assertion that the Fourth Amendment's Warrant requirement is a "centerpiece for the law of Search and seizure, and that prescreening by neutral and detached magistrates is [at] the heart of citizens' protection against police overreaching."1 On September 21, 1994, however, these assertions proved inaccurate and painfully hollow for Betty Ingram, a fifty-three-year-old diabetic who awoke to the sound of armed police officers charging through her front door.2 The officers, who were Searching for a suspect involved in a buyand-bust operation,3 had neither obtained a Search Warrant nor knocked and announced their presence.4 Mistaking Ingram's son for the suspect, they proceeded to handcuff and place him on the floor while pointing their guns at his head.5 When Ingram's daughter asked what was happening, the officers told her to "shut up," lacing their language with expletives.6 Ingram was hit in the face and knocked down, then handcuffed and shaken so violently that her head struck the couch repeatedly.7 Given the Fourth Amendment's general prohibition on "unreasonable Searches and seizures," and its associated requirement that "no Warrants shall issue, but upon probable cause," one might wonder how Ingram found herself in such appalling circumstances. Under what authority did the police forcefully, and perhaps wrongfully, intrude into the home of an innocent citizen? The answer lies in a subtle jurisprudential shift away from the Fourth Amendment's Warrant requirement that transpired during the latter part of the twentieth century. Over several decades, the Supreme Court has routinely narrowed the range of cases to which the Warrant requirement applies so that, in practice, Warrants have become an exception rather than IMAGE FORMULA13 the rule.9 One scholar catalogued almost twenty such exemptions as of 1985, including Searches incident to arrest, automobile Searches, border Searches, administrative Searches of regulated businesses, exigent circumstances, Searches incident to nonarrest when there is probable cause to arrest, boat boarding for document checks, welfare Searches, inventory Searches, airport Searches, school Searches, Searches of government employees' offices, and mobile home Searches. 10 The exigent circumstances exception used to justify the Warrantless entry in the Ingram case,ll however, has arguably had the most dramatic effect on the use of Search Warrants. In Ingram, for example, police officers were pursuing Anthony Carroll, a drug middleman who had taken twenty dollars in marked bills to purchase crack cocaine for an undercover agent.12 The officers, who had been in close interaction with Carroll, were aware that because of his minor intermediary role, he posed little danger of physical violence;13 yet, their pursuit was vigorous and extensive, with three officers following on foot and several others tracking him in their vehicles.14 When Carroll entered the basement of Ingram's residence, he was surrounded. Without hesitation or thought of procuring a Search Warrant, however, the officers deemed the situation "exigent," charged into the home, and assaulted its blameless residents. Was their evaluation correct? Did a fugitive drug runner, trapped in the basement of a home, truly pose a threat serious enough to bypass the constitutionally mandated Warrant otherwise required to Search a private dwelling? Possibly, he did not.15 The United States Court of IMAGE FORMULA16 Appeals for the Sixth Circuit, however, interpreted Supreme Court precedent to excuse the failure to obtain a Warrant on exigent circumstance grounds.16 The factual background of the Ingram case thus shows the degree to which the exigent circumstances exception has allowed law enforcement officers to circumvent the Fourth Amendment's Warrant requirement. …
Jack E. Call - One of the best experts on this subject based on the ideXlab platform.
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The Supreme Court and Police Practices: The Last Two Terms
American Journal of Criminal Justice, 2007Co-Authors: Jack E. CallAbstract:The 2003–2004 term of the Supreme Court was noteworthy because it decided a relatively large number of cases dealing with police practices, many of which were of special significance. The next two terms (2004–2005 and 2005–2006 terms) were not quite as noteworthy, but still the Court decided eight police practices cases, dealing with such important issues as the detention of the residents of a home while executing a Search Warrant, the use of canine sniffs during a traffic stop, the validity of anticipatory Search Warrants, and the validity of third party consent to Search when another person with authority to consent is present and objects to the Search. These two terms do not provide enough cases to permit a confident prediction about the approach that the two new members of the Court, Chief Justice John Roberts and Associate Justice Samuel Alito, are likely to take in police practices cases. However, their positions in the cases discussed in this article suggest that both will take positions in support of the police in these cases.
