4th 5th and 6th Amendments

22 November

• Safford Unified v. Redding
  Strip search at school for contraband Alleve. This was a 4A violation, but there's no civil remedy for her.

  Reasonable suspicion to search the backpack, and maybe outer clothing. But there was no probable cause to search deeper.

• Ferguson v. City of Charleston
  Nurse manager saw an epidemic of crack babies, thought something should be done to improve aid for cocaine-addicted patients.

  They put together a "prosecution program," and start prosecuting folks whose urine tests turn up positive. The search is done without probable cause; it's sort of like the roadblock cases in that respect.

  Distinction between an administrative search and a law enforcement search. This too is a 4A violation. Not clear what the remedy would be, though, if any.

• By putting out more facts in the warrant, the police are protecting themselves under Leon.
• Reasonableness and staleness. What is reasonable at a national border is different from what is reasonable in Madison.

  Reasonableness goes way back, historically (Entick v. Carrington).

  How current does the information have to be? There are some statutory requirements designed to keep LEOs from just sitting on warrants.

  Executed search warrants are public record, by the way. At least in WI. Federally, they're sealed until the feds decide to unseal them (you can call the prosecutor and ask, but they can say no).

  The "Return" from a warrant is an inventory of what got seized. Often times, you can see where stuff was seized from.

• "Anticipatory warrant:" a warrant that's contingent upon some certain event happening. These come up most frequently in drug delivery cases. US v. Grubbs is the federal case saying this is OK.
• Challenging a search warrant is tricky: lots of the time you might be mounting the challenge before the very judge who signed the warrant. Even if you're saying the judge was fine, but the police lied, that can be a difficult point.
• Most suppression comes from bad state-court warrants; federal warrants are hardly ever suppressed.
• For obvious reasons, hearings to get warrants are ex parte.
• Franks v. DE: if the defendant proves that there was material factual omissions in the application for the warrant, there can be a suppression hearing. But how do you get there? The burden on the defendant is high:
  1. Defendant must show a false statement
  2. Defendant mush show that the false statement was intentional or made with reckless disregard for the truth
  3. Defendant must show that without the false statement (or with something exculpatory that was omitted) the warrant would not have issued.

  These showings must be by a preponderance of the evidence.

  We want finality, so judges take a dim view of Franks hearings. That last prong is where the suppression effort fails: especially in federal warrants, there's so much in the affidavit that striking some portion of it probably won't completely undermine probable cause.

  And this is the exclusionary rule: if the warrant fails, they can not use the evidence.

  But, if your client wants to dispute the truthfulness of something in the warrant affidavit, your client may have to testify (or submit an affidavit). If you do this, and the motion isn't granted (and Franks hearings are rarely successful), that evidence can be use to increase your client's sentence.

• Telephonic warrants: Wis. Stat. § 968; Federal Rule 41.
• Similar logic pertains to the filing of criminal complaints (State v. Mann); you need probable cause for those too. It's handled differently: the complaint gets dismissed, but they can re-file (unlike suppression of the evidence, which is permanent). Also, you don't have to show the second Franks prong: intent is not required here.
• No-knock warrants. Hudson v. MI and Richardson v. WI. There's no blanket exception to the knock-and-announce rule. Complaints about this (and night-time execution) are handled on a case-by-case basis. There must be reasons in the application: danger to LEOs, destruction of evidence, etc.

  This is about the manner of execution, not the underlying motivation for the search, so exclusion isn't mandatory.

• Search warrants are generally for one-time entry.

24 November

• Presumption of unreasonableness heightened for lower-level offenses.
• Can't enter home w/o warrant: is the outbuilding a home?
• Entry into an open field is not a search w/in 4A.
• 4A and Wis Const. Art I § 11 are pretty clear: reasonableness and warrant requirement. Was there a warrant? If so, was there probable cause? If so, can we attack the basis of the probable cause? That's pretty much all there is to challenging a warrant. Challenges to warrants are a long shot.
• Warrant and reasonableness are bpth important: CA v. Acevedo.
• Chimel v. CA: discussion of reasonableness. To assess reasonableness, look at how the search squares with the history of 4A. Next examine the facts of the case; does the person have an objecively reasonable expectation of privacy? Then look at the history of 4A.
• The warrant is important becaues it means we're not leaving it to officers involved in the investigation to decide whether a search is appropriate. The magistrate weighs the need to invade privacy in order to enforce the law.
• So you have to have a warrant, except when you don't. There are lots of exceptions.
• Reduced expectations of privacy: cars, garbage, curtilage, open fields, plain view, concent. About 75%-80% of 4A litigation involves cars.
• If police have probable cause to believe the vehicle contains evidence of a crime or contraband, search is permitted. Also, any container (Acevedo).
• Cars also get searched incident to arrest, of course. Oh, and a search by a drug-detection dog is not actually a search (emanating odors don't have an expectation of privacy).
• Open fields have no expectation of privacy.
• What's curtiage? The closer to the house, and the more shielded, the better. Outbuildings aren't necessarily curtilage. There's a reasonable expectation of privacy in curtilage (US v. Dunn). The test weighs the proximity to the home, whether it's within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation.
• Plain view includes what can be seen via flyover (CA v. Ciraolo).
• If police are legally conducting a search for x and they see y, it's reasonabe. Horton v. CA
• Entry into an open field is not a search w/in 4A.
• Search incident t arrest: need to actually arrest the person (not just have the option to do so).