Review
THE IMPORTANCE OF THE WARRANT CLAUSE GENERALLY
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often … - in State v. Edman, 2005
The Warrant Requirement in Reality
It is "only the probability, and not a prima facie showing of criminal activity [that] is the standard of probable cause." - in US v. Jeffery, 2012
Rejection of a Rigid Two-Pronged Test
Probable cause is "a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules."
- in US v. Smith, 2007
"To determine whether probable cause exists to support a search warrant we look at the `totality of the circumstances.'"
- in US v. Seidel, 2012
Strong Prong/Weak Prong- Does it make sense that a strong showing on one of the Spinelli prongs can make up for a weak showing on the other?
The Function of Corroboration After Gates
Insufficient Corroboration- US v. Leake , 998 F.2d 1359 , The burden of proof is "on the government to establish that the tainted evidence `would have been discovered by lawful means.'" - in US v. Alexander, 2008
T] he task of reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant
- in US v. Huntoon, 2018
I] t would be contradictory to allow a defendant to be convicted based on the uncorroborated testimony of his co-perpetrator while refusing to find that the same statement would be sufficient to support probable cause
- in United States v. Brown, 2004
Quantity of Information Required for Probable Cause
Equivocal Activity
In cases of mistaken arrest, the arrest is valid under the Fourth Amendment "if the police have probable cause to arrest the person sought and the arresting officer reasonably believed that the arrestee was that person."
- in United States v. Jabbar, 1986
Many circuits, including our own, have determined that probable cause may be established from the collective knowledge of the police rather than solely from the officer who actually made the arrest.
- in Collins v. Nagle, 1989 -
—"when the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest."
- in Pierce v. County of Marin, 2018
Probabilities with Multiple Suspects
Because it deals with probabilities and depends on the totality of the circumstances, the probable cause standard is incapable of precise definition or quantification into percentages.
"The substance of all the definitions of probable cause is a reasonable ground for belief of guilt and that the belief of guilt must be particularized with respect to the person to be searched or seized."
Solis v. City of Baytown Dist. Court, SD Texas 2021
It is indisputable that an arrest constitutes a "seizure" within the meaning of the Fourth Amendment, see Terry v. Ohio, 392 U.S. 1, 16 (1968), and therefore must have been supported by probable cause to pass constitutional muster. See D.C. v. Wesby, 138 S. Ct. 577, 586 (2018) ("A warrantless arrest is reasonable if the officer has probable cause to believe that the suspect committed a crime in the officer's presence.").
Probable cause is difficult to define precisely "because it deals with probabilities and depends on the totality of the circumstances." Maryland v. Pringle, 540 U.S. 366, 371 (2003). Nevertheless, "the substance of all the definitions of probable cause is a reasonable ground for belief of guilt and that the belief of guilt must be particularized with respect to the person to be ... seized." Id. (cleaned up). "Probable cause exists `when the totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.'" Haggerty v. Tex. S. Univ., 391 F.3d 653, 655-56 (5th Cir. 2004) (quoting Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001)). Probable cause is a wholly objective standard, viewed from the perspective of a reasonable officer, so an arresting officer's subjective motivation in making the arrest is irrelevant. Devenpeck v. Alford, 543 U.S. 146, 153 (2004).
Our cases make clear that an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. See Whren v. United States, 517 U. S. 806, 812-813 (1996) (reviewing cases); Arkansas v. Sullivan, 532 U. S. 769 (2001) (per curiam). That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, "`the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.'" Whren, supra, at 813 (quoting Scott v. United States, 436 U. S. 128, 138 (1978)). "[T]he Fourth Amendment's concern with `reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent." Whren, supra, at 814. "[E]venhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer." Horton v. California, 496 U. S. 128, 138 (1990).
3] Even absent a requirement that an individual be informed of the reason for arrest when he is taken into custody, he will not be left to wonder for long. "[P]ersons arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause." County of Riverside v. McLaughlin, 500 U. S. 44, 53 (1991).
Dog Sniffs and Probable Cause: Florida v. Harris
A police officer has probable cause to conduct a search when "the facts available to [him] would `warrant a [person] of reasonable caution in the belief'" that contraband or evidence of a crime is present. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)); see Safford Unified School Dist. # 1 v. Redding, 557 U.S. 364, 370-371, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009). The test for probable cause is not reducible to "precise definition or quantification." Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). "Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence... have no place in the [probable-cause] decision." Gates, 462 U.S., at 235, 103 S.Ct. 2317. All we have required is the kind of "fair probability" on which "reasonable and prudent [people,] not legal technicians, act." Id., at 238, 231, 103 S.Ct. 2317 (internal quotation marks omitted).
In evaluating whether the State has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances. See, e.g., Pringle, 540 U.S., at 371, 124 S.Ct. 795; Gates, 462 U.S., at 232, 103 S.Ct. 2317; Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach. 1056*1056 In Gates, for example, we abandoned our old test for assessing the reliability of informants' tips because it had devolved into a "complex superstructure of evidentiary and analytical rules," any one of which, if not complied with, would derail a finding of probable cause. 462 U.S., at 235, 103 S.Ct. 2317. We lamented the development of a list of "inflexible, independent requirements applicable in every case." Id., at 230, n. 6, 103 S.Ct. 2317. Probable cause, we emphasized, is "a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." Id., at 232, 103 S.Ct. 2317.
Probable cause to search a vehicle is "established if, under the totality of the circumstances, there is a fair probability that the car contains contraband or evidence."
If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog's alert provides probable cause to search
PROBABLE CAUSE, SPECIFICITY AND REASONABLENESS
—holding that police did not need warrant to follow fleeing armed robbery suspect into his house because "the Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others
The Fourth Amendment protection against unreasonable searches and seizures applies to cellphones. Hughes, ___ Mich at ___, slip op at pp 8-11. Unlike many other personal items, a person retains a privacy interest in his or her phone against searches even after the phone is validly seized. Id. at ___, slip op at pp 13-21. Thus, "as with any other search conducted pursuant to a warrant, a search of digital data from a cell phone must be `reasonably directed at uncovering' evidence of the criminal activity alleged in the warrant." Id. at ___, slip op at pp 21-22 (citation omitted). "`[P]robable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction.'" Id. at ___, slip op at p 22, quoting Warden, Maryland Penitentiary v Hayden, 387 US 294, 307; 87 S Ct 1642; 18 L Ed 2d 782 (1967). Such evidence may include "items [that] would aid in the identification of the culprit." Hayden, 387 US at 307. In addition,
When reviewing courts assess a magistrate's conclusion that probable cause to search existed, courts are to consider the underlying affidavit in a common-sense and realistic manner. Reviewing courts must also pay deference to a magistrate's determination that probable cause existed. This deference requires the reviewing court to ask only whether a reasonably cautious person could have concluded that there was a substantial basis for the finding of probable cause. [People v Adams, 485 Mich 1039, 1039; 776 NW2d 908 (2010) (quotations and citations omitted).]
However, the magistrate's decision must be based only upon facts alleged in the supporting affidavit, rather than upon conclusions drawn by the affiant. People v Sloan, 450 Mich 160, 167-169; 538 NW2d 380 (1995), overruled in part on other grounds in People v Wager, 460 Mich 118, 123-124; 594 NW2d 487 (1999).
…
Defendant accurately argues that probable cause requires a basis for believing "that a search would uncover evidence of wrongdoing." People v Snider, 239 Mich App 393, 407; 608 NW2d 502 (2000) (quotation omitted). However, "evidence of wrongdoing" need not be direct. Identification of a perpetrator is included under its penumbra. Hayden, 387 US at 307. Likewise, it is enough if the evidence would aid a specific investigation. Hughes, ___ Mich at ___, slip op at p 22.
…
An affidavit supporting a search warrant may be challenged upon "`a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.'" Martin, 271 Mich App at 311, quoting Franks, 438 US at 155-156. "The rule from Franks is also applicable to material omissions from affidavits." Martin, 271 Mich App at 311. A challenge to the validity of the affidavit requires deliberate falsity or reckless disregard by the affiant, and "[a]llegations of negligence or innocent mistake are insufficient." Franks, 438 US at 171. Consequently, the fact that a statement in an affidavit is incorrect will not, by itself, undermine the validity of that portion of the affidavit.
—the Supreme Court held that if an officer has probable cause to arrest a suspect for any crime, there is no Fourth Amendment violation, even where the police officer lacked probable cause to arrest for the actual offense charged.
- in Howard v. Smith County, 2011
Collective Knowledge, Staleness of Information, First Amendment Concerns
The Things That Can Be Seized
—police, who had probable cause to believe that an armed robber had entered a house a few minutes before, had the right to make a warrantless entry to arrest the robber and to search for weapons
- in State v. Adams, 2016 a
Probable Cause as to Location of Evidence
Searches of Non-Suspects' Premises
Describing the Place to Be Searched
Function of the Particularity Requirement
Reasonable Particularity
The Wrong Address
The Breadth of the Place to Be Searched
Particularity for Arrest Warrants
Describing the Things to Be Seized
"The Fourth Amendment requires that a search warrant describe with particularity the items to be seized and prohibits general, exploratory searches."
The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), provides:
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. 337*337 U.S. Const. amend. IV. The first clause protects individuals against unreasonable searches and seizures,[9] see Katz v. United States, 389 U.S. 347, 359, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ("Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures[]"), and the second clause requires that warrants must be particular and supported by probable cause, see Payton v. New York, 445 U.S. 573, 584, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).
A "search" within the meaning of the Fourth Amendment occurs where the government invades a matter in which a person has an expectation of privacy that society is willing to recognize as reasonable. Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (citing Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring)). As we made clear in Raynor v. State, "[t]he burden of demonstrating a `legitimate' or `reasonable' expectation of privacy includes both a subjective and an objective component." 201 Md.App. 209, 218, 29 A.3d 617 (2011), aff'd, 440 Md. 71, 99 A.3d 753 (2014) (citation and footnote omitted). "[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has `a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'" Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143-44 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)).
The Fourth Amendment protects not against all intrusions as such, "but against intrusions which are not justified in the circumstances, or which are made in an improper manner." Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958, 1969, 186 L.Ed.2d 1 (2013) (emphasis added) (quoting Schmerber v. California, 384 U.S. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). "Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place." State v. Alexander, 124 Md.App. 258, 265, 721 A.2d 275 (1998) (emphasis added in Alexander) (quoting New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)). Subject to a few well-delineated exceptions, "warrantless searches `are per se unreasonable under the Fourth Amendment.'" Quon, 560 U.S. at 760, 130 S.Ct. 2619 (2010) (quoting Katz, 389 U.S. at 357, 88 S.Ct. 507); see also United States v. Karo, 468 U.S. 705, 717, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (citations omitted).
Searches of Computers
Compare United States v. Galpin, 720 F.3d 436 (2nd Cir. 2013} ("Once the government has obtained authorization to search the hard drive, the government may claim that the contents of every file it chose to open were in plain view and, therefore, admissible even if they implicate the def end ant in a crime not contemplated by the warrant. Thus there is a serious risk that every warrant for electronic information will become, in effect, a general warrant * * *. This threat demands a heightened sensitivity to the particularity requirement in the context of digital searches."}.
Reasonable Particularity
Leon and Sheppard clearly contemplate that "`[s]earches [made] pursuant to a warrant will rarely require any deep inquiry into reasonableness,' for `a warrant issued by a magistrate normally suffices to establish' that a law enforcement officer has `acted in good faith in conducting the search.'" Leon, 104 S.Ct. at 3421 (quoting Illinois v. Gates, 462 U.S. at 267, 103 S.Ct. at 2347 (White, J., concurring in the judgment) and United States v. Ross, 456 U.S. 798, 823 n. 32, 102 S.Ct. 2157, 2172 n. 32, 72 L.Ed.2d 572 (1982)). By way of illustration of the inquiry reviewing courts are to make, the Supreme Court noted that certain situations would negate a belief that an officer acted with objective reasonableness:
(1) if a judge or magistrate in issuing a warrant was misled by an affidavit the affiant knew or should have known was false;
(2) if a judge or magistrate has wholly abandoned the judicial role and merely serves as a rubber-stamp for police;
(3) if the affidavit supporting the warrant so lacked probable cause as to render official belief in its validity unreasonable; or
(4) if a warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. Leon, 104 S.Ct. at 3421-22.
(e) Issuing the Warrant.
(1) In General. The magistrate judge or a judge of a state court of record must issue the warrant to an officer authorized to execute it.
(2) Contents of the Warrant.
(A) Warrant to Search for and Seize a Person or Property. Except for a tracking-device warrant, the warrant must identify the person or property to be searched, identify any person or property to be seized, and designate the magistrate judge to whom it must be returned. The warrant must command the officer to:
(i) execute the warrant within a specified time no longer than 14 days;
(ii) execute the warrant during the daytime, unless the judge for good cause expressly authorizes execution at another time; and
(iii) return the warrant to the magistrate judge designated in the warrant.
(B) Warrant Seeking Electronically Stored Information. A warrant under Rule 41(e)(2)(A) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.
(C) Warrant for a Tracking Device. A tracking-device warrant must identify the person or property to be tracked, designate the magistrate judge to whom it must be returned, and specify a reasonable length of time that the device may be used. The time must not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each. The warrant must command the officer to:
(i) complete any installation authorized by the warrant within a specified time no longer than 10 days;
(ii) perform any installation authorized by the warrant during the daytime, unless the judge for good cause expressly authorizes installation at another time; and
(iii) return the warrant to the judge designated in the warrant.
When a lawsuit is filed over an officer's entry into a home, a court conducts an inquiry into whether the entry was reasonable. In Wilson v. Arkansas, the Supreme Court held that whether the knock-and-announce principle was adhered to constitutes one factor that a court must consider.
In Hudson v. Michigan, the Supreme Court held that the violation of the knock-and-announce rule does not justify excluding evidence related to the violation of this rule.
In Richards v. Wisconsin, the Supreme Court held that an officer is not required to knock and announce if doing so would be unreasonable. This includes situations in which officers suspect that announcing their presence would be dangerous, futile, or result in the destruction of evidence.
Exceptions: No Breaking (door open), emergency exigency, No Knock warrants, destruction of property
The Supreme Court held that " `[i] n order to justify a `no-knock'entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.'"
- in US v. Holmes, 2001
We do recognize, however, that the exclusionary rule does not apply to all instances where mistakes are made in executing a warrant: The basic test under both the Fourth Amendment and Article I, paragraph 7 of the New Jersey Constitution is one of "objective reasonableness" in light of "the facts known to the... officer at the time
- in State v. Handy, 2010
E] ven when executing a warrant [that does not authorize a no-knock entry], if circumstances support a reasonable suspicion of exigency when the officers arrive at the door, they may go straight in
The next factor to consider under the plain-view doctrine is whether the incriminating nature of the gun and marijuana was immediately apparent.
- in US v. Evans, 2014
Under the plain-view doctrine, police are permitted `to seize evidence without a warrant when (1) the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed,(2) the object's incriminating character is immediately apparent, and (3) the officer has a lawful right of access to the object itself.'"
Use of Distraction and Intimidation Devices
Unnecessarily Intrusive Searches
When Is the Search Completed?
Presence of the Warrant-Must the officer who executes a search warrant actually have the warrant in hand at the time of the search?
Enlisting Private Citizens to Help Search-Unwilling Assistance, Willing Assistance
Media Ride Alongs
THE SCREENING MAGISTRATE- Neutral and Detached, No Rubber Stamp, , Legal Training,
—the Court held that municipal law clerks, who were authorized by city charter to issue arrest warrants for municipal ordinance violations, qualified as neutral and detached magistrates for Fourth Amendment purposes.
- in Green v. State, 1996