Criminal Law I - Probable Cause & Warrants

All right, so today's subject, we're looking at probable cause and search. Right, so if you recall from last class, we talked about how we get to a search. Right, what constitutes a search, and what we found out is that a search only occurs when there's a reasonable expectation of privacy. Right, when and and we looked at the Katz test, which is a two-prong test. Right, so the first prong is the person who's moving to suppress the evidence, they have to say, uh, they believed personally that they had an expectation of privacy. Right, and generally speaking, we try to prove that via the surrounding circumstances, but worst-case scenario, we take their word for it, because then we move to the objective expectation of privacy. Right, so that's the second prong. You have to answer yes on both prongs in order for there to be a search. If you answer no on either prong, there's no search. Right, so objective expectation of privacy, it's something that society accepts as reasonable. Right, so again, if you have a bag full of drugs and you're in a public park, you're shaking it saying, "Hey, drugs, come buy your drugs, drugs here," and for whatever reason, you thought what you were doing was private. If we grant that to you, we then have to move to the next part and say, "Is it reasonable?" Right, and in that case, no, it's absolutely not reasonable. So under our test, we would say that if police saw this or or or confiscated contraband, it wouldn't constitute a search. Right, because searches require probable cause, and we're going to look at probable cause today. They require warrants in some circumstances, we'll go through warrants today. So that's why it's so important for us to do this first step, to see if there's a reasonable expectation of privacy, because if there is, then we're getting into the realm of probable cause and warrants. If there's not, then no search has occurred.

Now, we also talked a little bit about the change of the Fourth Amendment, right, from protecting places, not people, to protecting people, not places. And technology is also increasing the bounds of this expectation of privacy. Right, so we looked at Kyllo, or Kyllo, however you want to pronounce it, um, especially as it relates to the plain view doctrine. Right, so anything in plain view police can see, uh, doesn't constitute a search because it's in plain view.

So jumping into today, right, here's the Fourth Amendment that's going to be relevant for the first part of our class, and then we'll look at the second part that'll be relevant later on. But the first part of this class is hinged on probable cause. Right, so the Fourth Amendment says, basically, no warrant. Um, so the Fourth Amendment shall not be violated, and no warrants shall issue but upon probable cause. Right, and this is just text from the Fourth Amendment. So we know that you have the right to be secure in your houses, or persons, houses, papers, and effects against unreasonable searches and seizures, and that shall not be violated, and no warrants shall issue but upon probable cause. Right, we can get to the history of this, um, we'll talk a little bit about it. Basically, it, it says that we can't just have general warrants. Right, we can't just say, "Hey, officer, you can search whatever, whenever, do what you want to do." Right, now we have to have probable cause, and then most of the time, we have to have a warrant. We're going to look at next class and class after, times where we don't require warrantless searches, um, but today we'll focus on probable cause and warrants themselves.

So that being said, conceptually, right, we use the choice of probable cause as the standard for permitting a breach of an individual's expectation of privacy. Right, so assuming we go through the Katz test, step one and step two, we say there was a reasonable expectation of privacy. Well, then what we're going to do is going to constitute, basically, a search. Right, so in order for us to violate that expectation of privacy, in order for us to say, "Yes, you have an expectation of privacy, but we're going to search," we have to have probable cause. And we see the standard developed in terms of the Fourth Amendment is kind of a balance, right, between individual liberties and the state's security interests. So what's going to protect your liberties and rights the most, but what's going to keep society safe? And those are two considerations that we take into account a lot, especially when we look at warrantless searches and emergency doctrines and all this other legal stuff. So we say probable cause allows us to go ahead and violate a person's expectation of privacy. Right, I say violate in a non-illegal sense, but more like a physical sense.

Now, probable cause, what is it? Well, it's the facts and circumstances known to law enforcement and or trustworthy information that's received by law enforcement to warrant, and this is important, a person of reasonable caution to believe that contraband or evidence, instrumentalities, or fruits of a crime will be found in a particular place. So we'll break that down a little bit, right? So basically, we have to have sufficient knowledge, we have to have sufficient facts, and the circumstances tell us, basically, this probable cause. And we'll get into, like, what exactly probable cause is on the spectrum, but facts and circumstances that would make an ordinary person of reasonable prudence, right, so this is that mythical reasonable person standard, right, that we consider and we require under the law that everyone acts reasonably at all times, right? So this would say a reasonable person would believe, right, that contraband, which is illegal items, right, so for instance, drugs, right, that's contraband, um, sawed-off shotguns, child pornography, whatever it is, it's contraband, things you're not allowed to have, or evidence, right? So evidence of crime, um, we're talking maybe we have sufficient evidence to believe that there's a gun in this house that was used in the commission of a murder. Evidence. And what we think about also along with evidence comes instrumentalities. Instrumentality is just something that we've used in the crime to help further the crime. Right, so what do you mean by this? This would be something, again, along the lines of a gun. You go into a bank, you rob the bank with a gun. How did you do it? What did you do it with? You did it with a gun. It's your instrumentality. It's the means to an end. Right? Or fruits of the crime. What are fruits of the crime? The results. Right, so going back to our bank robber example, you rob the bank with a gun, instrumentality, and you get cash, right? You leave the bank with a bag full of money. That's the fruits of the crime. Right, so if we have probable cause to believe that fruits of a crime are in somebody's house, well, then we can go ahead and bypass that expectation of privacy. Right, generally speaking, it's a house, we need a warrant, um, and the probable cause standard applies, but even if it's just the cash, right, or whatever it is, maybe you rob a liquor store and we think that you, we have sufficient evidence to believe that you have a bottle of gin from the liquor store in your apartment, then we can violate the expectation of privacy.

Now, we'll talk about this when it comes to arrests. Arrests are a little bit different. We have two requirements, have two prongs. So we still use probable cause for arrests, right? Probable cause, we'll get into it, is just a little bit more likely than not that one, a crime has occurred. So we have to have sufficient evidence, reasons to believe that a crime has occurred. And two, the person we're arresting committed the crime. Again, we have to have sufficient reason to believe that the person we're arresting committed the crime. So again, we have this kind of two-prong test. Probable cause is very, very broadly worded, um, especially when it comes to evidence. Again, we'll get into arrests, but for your purposes, probable cause, that one, a crime occurred, and two, the person we arrest committed the crime. If we don't have probable cause to believe either of these two parts, then we cannot make a lawful arrest. Right, so when we're talking about probable cause, we're dealing with probability, not certainty. All right, probability, not certainty. Probable cause, probably, right? Probably. So we don't have to be certain that you committed a crime. We don't have to be certain that the gun is in your house. We don't have to be certain of anything. We just say, is it probable based on the evidence and the facts that we have? Is it probable that you have something in your house? Right, so theoretically, it's not a mathematical formula as to what probable cause is, or I suggest it is, right? So if we move on and we look at the legal spectrum, statement, legal standard spectrum, excuse me, we go from zero to 100%. Right, so at 0%, we don't have any belief, we don't have any suspicion, we don't have anything. Right, we don't have any, we're not convinced of anything. Like this is complete and absolute doubt. Right, on the other end of the spectrum, if you say at 100%, it's more like 95, but let's say at 100%, it's beyond all reasonable doubt, every doubt. Usually it's 95, but we'll say 100 for our purposes. What we care about, at least right now, when we're talking about probable cause and warrants, is the very middle of the spectrum, 50.01%, or you say 51%, it's up to you, but 50.01%, meaning all we have to have is just the tiniest belief that's more likely than not. We're going to find the evidence in your house. We just have to have the tiniest belief that it's more likely than not a crime was committed, and the tiniest belief that more likely than not you're the person who committed the crime. Right, so if you think about the scales of justice, probable cause is putting a feather on one of the sides. Right, so it's a very low standard, which is surprising, right, when we first hear it, of of you just have to be barely more than 50% sure, just barely, right? Because we're violating your expectation of privacy, and so there's arguments to be made that we should use a higher standard, right, because privacy is so important, right? You're securing your home, we treat your home as a castle, a place where you have the virtually the most protection. So maybe we would argue for clear and convincing evidence, but we don't. We're down here at 50.01%. As we're going to see when we talk about warrantless searches and Terry stops, some of the time, by a good deal of the time, if especially it involves a vehicle, all we require is reasonable suspicion, right, which is 25% sure. This is not even, it's more likely than not. It's, well, I have reason to believe, or I have a reason. Doesn't have to be a great reason, but you have a valid reason, and we'll get into that in later classes. So today, just think about probable cause as 50.01% right, sure. So just, just barely more, it's more likely than not, is probable cause.

So how do we acquire probable cause? Well, there's two ways. The first way is direct observations, right, by law enforcement generally, right? So basically, this is law enforcement using their five senses to observe a crime happening or to observe, um, evidence in place, something along those lines. Right, so we're talking about five senses: sight, sense, touch, taste, and smell. So using those observations, usually, usually sight, right, we can get probable cause. This requires more than just a hunch, right? More than just a hunch. We have to have objective facts and support. Right, so remember, we're talking objective standard. We're not talking this person actually believed that they had probable cause. No, we look at it from an objective standpoint. Is it a reasonable belief? Right, what facts do you have to support your belief? Right, if you don't have the facts, you don't have probable cause. Right, so again, if we went back to our example a few classes ago when we talked about the unlicensed nuclear weapon, right, you're part of the Bills Mafia, I know that you're a terrorist, don't you have an unlicensed nuclear weapon? And I've observed a Bills Mafia flag hanging in the front of your house, so I know that you're part of the Bills Mafia. That's a hunch, right? A reasonable person would be like, um, no, right? It has to be objective facts and objective support. The more support we have, the more facts we have, the more likely it is we're going to have probable cause, and we'll get a warrant. And we think of direct observation as well, includes, we consider like traditional evidence, right? So evidence in the sense of there being a crime that has been committed or you being the person who committed the crime, something along those lines. Usually here we're talking about police labs, right? Again, theoretically part of law enforcement, but should be separate. Um, this would be DNA, computer forensics, you name it, right? This would be traditional evidence because we're observing the DNA. Yes, we have to break down the DNA and, you know, run tests on it, but we're observing that the DNA of the blood of the perpetrator matches the DNA from the blood at the crime scene. Right, so again, that's just this observation, it's a direct observation, right, by law enforcement, law enforcement personnel. That's great, but it doesn't happen that often, right? At least to probable cause standards. Said a lot of what we get is the second way of, uh, getting probable cause, which is hearsay testimony. Right, so hearsay can become very problematic because hearsay testimony is basically a game of telephone. Right, so law enforcement officer sitting at his desk gets a phone call from somebody in the public and they say, "Hey, I just saw John Smith break into the post office." Okay, fairly maybe reliable, they saw it, but law enforcement didn't see it, right? But we have somebody else who says they saw it. So now we're relying on somebody else's observations. But we can also get evidence that goes even further. Officer sitting at his desk gets a telephone call from a concerned citizen and says, "Hey, I just heard from my brother Mack that John Doe broke into the post office." Okay, now we don't have just an eyewitness, we have to go down the chain, right? So things get mixed up. If you ever played the game of telephone in school, right, where somebody would whisper a very long passage into somebody's ear, and you would take turns going down the line, whispering what you heard or thought you heard along the line, till we get to the last person. What usually happens is the last person's statement is much different than the original statement, right? So that's true, what we're talking about here, hearsay testimony. Somebody saw something that law enforcement didn't see. It's a little bit more reliable if it's one person, but what if we have a two-person chain or a three-person chain or a four-person chain, right? We see the reliability kind of start to fade. So we have to understand that it can be a very problematic thing, right? And not necessarily in the generation of a warrant, but let's say you want to move to suppress evidence. I'm going to say, "Yeah, you didn't have probable cause because you heard it from a fifth source, right? Well, your brother's cousin's second cousin twice removed neighbor's employer saw John Smith break into the post office." And suddenly now we're saying, "Okay, let's be reasonable about this. Yeah, we're going to go investigate, but is there enough facts?" Right, because it's a public office, so we can go in, right? But is there enough facts to effectuate the warrant? Probably not, right? Yeah, because this is a little bit more likely than not. Yeah, maybe, but how much stock do we put into it?

So when we measure how much stock we put into it, we have three levels of reliability, right? So basically, three sources that, um, evidence can derive from, right? So our first are citizen informants. So this is somebody calling 911 or calling the police department because they saw something or they heard something, smelled something, whatever, used their senses, call 911. Generally speaking, if a citizen says they saw something, unless we have reason to doubt them, that's probably going to get us probable cause, right? Because it's a little bit more likely than not, because people don't generally call false tips into 911, right? It's a crime, right, to give 911 a false tip or a false report. And along those lines, does it happen? Sure, but not that often, right? If somebody's calling 911, means they saw something, and we're going to say, "Yeah, probably, right? Probably. Yeah, there's a 49.99% chance that they're making it up, but there's a 50.01% chance they're telling us the truth." So that's the most reliable. All right, generally speaking, the most reliable. We presume it to be reliable. It could be rebutted in court, a rebuttable presumption that it wasn't reliable, but we presume it to be reliable. Right, so that's kind of our highest standard, up there with our highest standard of believability. Our least, right? So you're saying, "Okay, wait, how does this work with direct observations?" Well, couple of ways. We have a rule in the law that says if it's known to one officer, we consider it known to every officer. Right, so the idea here is each officer doesn't have to go get an individual warrant to enter a building. Only if if one person has a tip, a hunch, then anybody else can step in and try to get that warrant. But this also applies to out of jurisdiction. Right, so let's say you're a Shan County sheriff and you get a tip from, uh, a deputy in Tompkins County. We're going to presume that to be reliable. Right, we don't necessarily have to sit there and think about it, do the measuring. We presume it to be reliable because again, why would law enforcement lie to other law enforcement? And that's kind of what we're getting at here, right? Why would you lie? So why would 911 lie? Are you seeing a drunk driver? Call 911. You're behind the drunk driver. Why would you lie? Right, it doesn't make sense. And that's kind of the thought process behind how we're talking about the reliability. Same thing is true with police. Why would, especially when you have like the, a thin blue line, like why would officers lie to other officers, put them in jeopardy of their job, put them in jeopardy of danger, what have you? It doesn't make sense. So we presume them to be reliable.

Now, we also have a third type of way we can learn about the crime, criminal informants. Now, this is a whole different ball game. We actually have a special test to determine if a criminal informant is telling the truth, the Aguilar-Spinelli test, and we'll get into it in a second. Right, so think about a criminal informant. Somebody who maybe there's a couple of ways you can go about it. Somebody who says, "You know, if you let me go, I'll tell you what I know about who committed the murder last weekend." Like, you get popped for drugs, and you can provide evidence of who committed the murder. Or you might have somebody that you rely upon who does engage in criminal activity in the community that you just don't arrest in exchange for information. Right, so we know there's a drug dealer in the community, but we can say, "Hey, uh, you know, there was a break-in the other week, uh, did you hear anything about it?" Right? That's different, right? Then we're pressing charges versus, "No, we're not going to bust you. We know, we know you're dealing drugs, but it's pot, it's a little, not not a big deal, um, but we want to know about the break-in, right? Because that's more of a big deal." They're criminal informants. Generally speaking, criminal informants have a reason to lie. Right, they have a reason. So think about if we're making a deal with somebody, like, "We're not going to prosecute you if you tell us who committed this murder." If I'm in that situation and I'm looking at, and I don't know who committed that murder, I'm making something up, right? Because like, it can't hurt me, might as well try. So making something up. So you have theoretically a basis and a reason for lying, right? Because the criminal informant is usually getting something from it. They might get paid from the police, so police do pay criminal informants. They might not get arrested. We might give them a lower sentence, what have you, right? So they do have a reason to lie. Not saying they all do, or even most do, but they, there's not that presumption of reliability because it makes sense that somewhere along the line, they're going to tell a lie.

So what do we use? We use the Aguilar-Spinelli test when we're dealing with informants. So when we're dealing with informants, we have two prongs, right? So you'll see throughout this course, we'll have two prongs, and we'll get into what "totality of the circumstances" means in a little bit, but we'll have probable cause if we meet basically both prongs, right? So the first prong is veracity, and the second prong is basis of knowledge. So let's break this down. First prong that we have to show, that we have to prove to a judge to get a warrant, to have probable cause, is veracity. And what this is, is evidence that kind of shows that this informant is telling the truth, right? So couple of ways we can do this. Um, if, let's say, the informant is, um, says something's going to happen, or somebody's dealing drugs, and describes the person in great detail, and we find that person, that the exact description matches, that's facts kind of supporting the veracity. But generally speaking, if, if we think about veracity in terms of it showing the truth, right, we can look at two kind of like sub-prongs, not necessarily prongs, but two examples, right? So the first is, police have to demonstrate that they, the informant has a history of giving correct information. Right, so we're relying on an informant to get probable cause. We have to show that this person has given us tips before, and they've been right, right? So the idea is it kind of cuts down on that one and done, minimizing the chance of lying. Like they told us the truth in the past several times, and because of their information, we've maybe been able to have probable cause and make arrests. Great. Not great if, yeah, they've told us information in the past, sometimes it's correct, sometimes it's not correct. Okay, suddenly that drops us way down, right? We're like, "Well, I mean, sometimes they're not correct, they're lying. How do we know they're not lying here?" Right? So again, police have to show that there's a history of giving correct information. Or, if the person is not, has a history of giving correct information, they're subjecting themselves to criminal prosecution with the information that they have. Right, so what this basically means is you have a, there's a drug ring, right? It's a drug ring, and you bust one of the, oh, let's say just users, right? You bust one of the users, maybe you even bust, uh, one of the dealers in this drug. It's a big massive drug operation, right, stemming from Colombia, going through the US, through Cali, going all the way through these different channels to get to the people. So we bust somebody in this ring, right? And we say, "Okay, here's the deal. You give us the names of everybody else in this ring, and we won't prosecute you." But you have to admit that you're part of this ring. If you're lying, we're using this confession against you. This is when informants don't have a good reason to lie, right? Because they basically have to write down that they're part of the ring and involved, and they engaged in the unlawful activity, and it was part of this ring. There's John Doe, Jane Smith, Y Y Y, um, and they're basically taking the police's word or the prosecutor's word that they won't be prosecuted if they say they did it and they provide the list of information of who's in the ring. But they know that if they give incorrect information, misinformation, or straight out lie, that confession is going to be used against them, right? It's great when you have a confession because jurors, even if you can't, the confession later, jurors are like, "No, you confessed once. Like, that's all we need." Right? So they're subjecting themselves to criminal prosecution. So if they're subjecting themselves to criminal prosecution, or they have a history of giving reliable information, and they, police informant, we've met the veracity problem. We meet the veracity prong. We get to move down to the basis of knowledge prong. We haven't met the veracity prong, no probable cause exists. Right, so we go down to the basis of knowledge. So we're saying, "Yeah, you have a history of giving the truth, but where does your knowledge come from?" Is this a firsthand observation, or are we dealing with the game of telephone? Right, you've heard from this guy that this guy told this other guy that John and Bob and Carl are all involved in the crime. Basis of knowledge.

So what we have to do to demonstrate basis of knowledge when we have a criminal informant is we have to provide the judge who's going to issue the warrant how the information came about. Right, so we're going to want very detailed information. If we're dealing with eyewitnesses, all right, um, eyewitness testimony is, is obviously admissible in court, but generally unreliable. Right, memories fade, things change. A lot of people who've been exonerated from death row, from prison, what have you, one of the biggest factors has been faulty eyewitnesses. Right, so we want to show the judge this person has a good history and they have good knowledge because they saw it, they didn't hear it from somebody who heard it from somebody who heard it from somebody who heard it from somebody. Right, no, they saw it, they were involved in it, or maybe they heard from their mother or their father, maybe, but going beyond that, it's not going to work out, right? So we have to show, okay, they're telling the truth, and the basis for their information is good. If we meet both of those prongs, theoretically, we have met the Aguilar-Spinelli test, and theoretically, before I get to my next statement, we have probable cause, and that's great.

Until we get to 1983. In 1983, we say, "Okay, it's Illinois versus Gates. The veracity prong and the basis of knowledge prong are are still good measures. Right, there's no independent requirement of this, but they're good measures, and they're not exhaustive. Right, just because somebody has a history of giving truthful information in the past, has a decent history of, uh, or decent information source information, doesn't necessarily mean that it can be admitted now. Right, instead, what we rely upon in assessing a criminal informant's testimony is called the totality of the circumstances." Now, you're going to see this phrase come up a lot, I mean, a lot throughout the course, right? Totality of the circumstances. So what does that mean in English? We look at everything. We look at the whole picture, and we say, "Okay, based upon this whole picture, is this informant being reliable? Is this informant telling the truth?" So, *Read v. Gates* gives a fairly good example, but what we're going to see again is this come up a lot. Totality of the circumstances just means we look at the whole picture, right? So instead of just looking at veracity and just looking at basis of knowledge, we can just look at those, but instead of just looking at them, we look at the whole picture. Now, veracity and basis of knowledge are very, very important parts of that picture, but maybe there's other parts of that picture that haven't been presented that we don't know about. We have to look at the full picture. Now, I'm going to have you do this in a second because if it comes up on an exam, all right, and you don't know the answer to a question on the exam, chances are it's going to be totality of the circumstances. This is how much this thing comes up, right? So count three, I want you all in your best cheerful, most happy voices to say, "Totality of the circumstances." It's a fun thing to say, it'll wake you up, and it buys me some time. So one, two, three, totality. Okay, no, no, I want lively, happy. We're fun, it's fun to be here, we're learning, joyful, joyfulness, with gusto, with excitement. So one, two, three, totality of the circumstances. That was really pathetic, but I'll take it. Um, you're going to see it. It does, it literally comes up all the time, right? We're just looking at the bigger picture. So Aguilar-Spinelli isn't just what we look at now. It used to be just what we looked at. Now we look at the whole picture.

Now, that being said, if we're looking at the whole picture, or maybe there's problems with the veracity prong or the basis of knowledge prong, something along those lines, and we need a warrant, we want probable cause, right, to get that warrant. We can "cure" bad information, misinformation, a bad history of giving information with corroboration. Right, corroboration is basically the police go out and they observe what this person said, and they're like, "Okay, see, judge, like, we went out, we saw what this person was saying happening, or we saw the suspect, they were wearing what he said he was wearing. We have probable cause." Right, so just because somebody doesn't, there's a problem with an informant, it doesn't kill it. It just means the police have to do an extra step to cure it. All right, so that brings us to *Draper versus United States*. This is, this is a great example. It's a 1959 case, right? So this is before we look at the, the totality of the circumstances, right? And that's 1983, *Illinois v. Gates*. But *Draper versus United States*, completely different ball game. So who looks the most tired? Yeah, you, you had your head down for a while. Tell me what happened in *Draper versus United States*.

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Didn't tire out, and the police officer arrested, came off the train, and attempted to possess the evidence, pass the evidence, information. Yeah, exactly. You hit the nail on the head, right? Absolutely. So what happened is, as you said, um, there's an informant. Right, Draper traveling via train, engaging in the, the distribution of drugs. Informant tells the police exactly what he'll be wearing, what train he's coming on, like the color of his baggage, all that jazz, right? And so he gets off the train, police bust him, right? They make the arrest. The question is, what, was there probable cause here? If we look at Aguilar-Spinelli, right? Well, veracity, maybe the person was had a long history of telling the truth, maybe they didn't. Um, basis of knowledge is huge, right? Because they know for a fact what this person is going to be wearing. And that's where we see corroboration, right? Is before police went in and arrested Draper, they wanted to make sure that the informant was telling the truth, right? So they waited, the train came in, saw what he was wearing, saw his baggage, saw his person description, and it matched exactly. So they had corroborated what the informant had said. Because they corroborated what the informant had said, they had probable cause. They could make the arrest. Okay. And so when Draper tries to get it suppressed, judge looks, I'm like, "Huh, you were wearing and doing exactly what the informant said that you were doing, right? Like, sorry, maybe change your outfit next time, I don't know." Um, but yeah, I mean, came in at the right time, on the right train. I mean, it was like down to the very last detail about this guy. And police had to observe it before they had probable cause, right? They had to observe it, they had to corroborate it before we got to, "Yeah, it's more likely than not," right? Because it was a criminal informant.

So that leads us to the second part, the Fourth Amendment lecture. All right, so we talked about "shall not be violated," right? Your right, your your rights to privacy shall not be violated, but upon probable cause. And we know what probable cause is now. Supported, no warrants shall issue but upon probable cause. So we know that we have, we can have warrants when we have probable cause, right? It's kind of a double negative situation, but we know we can have warrants, probable cause that are supported by oath or affirmation, right? So no warrants issue unless we have probable cause, right? And we talked about how we get probable cause, what probable cause is, what the standard is for probable cause. Now, the question and our focus is going to shift to warrants, right? Assuming that we have probable cause, what are the steps? How do we get a warrant to conduct a search? And you're going to see there will be parallels, very close parallels, when we talk about getting a warrant to effectuate an arrest.

So the warrant requirement, how courts have interpreted, or the Supreme Court has interpreted the Fourth Amendment, has basically said, "You people, right, you as the people are free from unreasonable searches." Right, so basically searches that weren't predicated on probable cause. So because we have a warrant requirement, right, the Fourth Amendment requires a warrant, searches without a warrant are de facto unreasonable. Right, so basically, they're automatically unreasonable. So let's say a police officer pulls you over, searches your vehicle. Theoretically, that's unreasonable. Right, that being said, the Supreme Court has come up with several exceptions to the warrant requirement, which we'll look at in the next class. This includes consent, vehicle searches, exigent circumstances, public safety, etc. Right, but theoretically, if one of the exceptions does not apply, and police do not have a warrant, even if they have probable cause, but they fail to get a warrant, that evidence is thrown out. So let's say they have probable cause to believe in your house, you have on your coffee table a mountain of cocaine. Right, like you just really enjoy your cocaine, so you have a mountain of cocaine on your coffee table. They have probable cause to believe it, right? They've corroborated information, maybe they came from an informant or a citizen informant, as opposed to a criminal informant, and they've done some corroboration, like they know that basically they know that it's there, right? They have reason to believe it's more likely than not that you have cocaine on your coffee table. So they have probable cause. They come up, break open the door, go into your living room, find the cocaine. Okay, the probable cause under the, the amendment, do we allow that? We had probable cause, but did you have a warrant? No, you didn't have a warrant. And assuming that none of these exceptions apply, that cocaine they found gets thrown out of evidence, and it's really hard to prove possession of cocaine without being able to talk about the cocaine, right? So again, it's kind of designed to be punitive towards police and ensuring that they follow the correct procedures. Yes, sir. So we'll get into the next class, exigent circumstances. Um, let's say, um, police are walking past a house and they hear somebody in there crying, "Help, help, help, help, help." They can come bust down that door because somebody's dying, right? Or something's going on that's exigent, like it's an emergency, right? And we'll get into all the different, like, it's a little bit more complicated, but we'll get into all the different finesse, finessing of, um, exigent circumstances. Should be next class, class after. So again, if we don't have one of these, right, you have probable cause, but you don't have a warrant, you have to get a warrant, all right, unless something else applies.

So how do we get a warrant? Well, under the Fourth Amendment, as interpreted by case law, warrants must be issued by a neutral and detached decision-maker. Right, so basically, somebody who has nothing to, no idea about the case or the, what's going on, anything, right? They are completely blind. The police then have to present their evidence, their case, to the judge or to the judge or the decision-maker, who then, the other party doesn't get a chance to weigh in because we don't want them to know we're going to search them. Then the judge says, "Yes, that's more likely than not, there's probable cause." Signs the warrant, gives the warrant. Right, again, it has to be on a finding of probable cause. But if the neutral, detached magistrate or judge says, "No, I don't think you have probable cause, you can't search." What did police do? They go out and get more evidence, then they come back and they ask for a warrant again, and they keep doing this until they get a warrant. Now, this is kind of theoretically, it's supposed to be a check on law enforcement. So we don't want law enforcement determining whether or not they have their own probable cause, right? That's kind of a bad idea, strictly in the sense that they're so involved in the case, right? We kind of get tunnel vision. We might think we have probable cause unless we can articulate it and prove it. We're theoretically running the, the, the, the chance of abusing citizens' rights, right, violating the right to privacy in an unreasonable search. Remember, if it's a search and there's no warrant, it's de facto automatically unreasonable. In the next couple classes, we'll look at the exceptions.

So that being said, law enforcement cannot issue the warrant. Right, so police departments do not issue warrants for themselves. Has to be a neutral, detached judge or magistrate. Right, and the idea again behind is they're invested in the investigation. And we also have a separation of powers, right? So remember we talked about Civics 101, the separation of powers. Police are a part of the executive branch. Courts are part of the judicial branch. So the executive branch, before they want to serve a warrant or conduct a search to get a warrant, they have to go through another branch of government, right? And that branch of government is there to make sure that this other branch is not violating or exceeding their powers.

Now, this raises an interesting question. At what point does a judge or magistrate stop being "quote neutral and detached"? As a couple of cases on point are fairly interesting. One of the first cases we deal with is when a judge or magistrate supervises a search. So we have one case, basically what happened is police go to the judge, judge says, "Well, there's probable cause for some things and not for other things. Tell you what, I'll come along with you." So they serve the search warrant, they go into the house, the judge comes into the house. Police officers say, "Can I search here? Can I seize this?" And the judge would say, "Yeah, you can," or "No, you can't." Obviously, this is a problem, right? Because suddenly that judge is now in the investigation, right? Making ad hoc decisions of, "Yes, you can seize that. Yes, you can search that," or "No, you can't search that. No, you can't seize that." Right? So they're no longer neutral and detached. Right? Neutral, detached is, I don't have a dog in the fight. I don't care. I'm a blank slate. Present me your evidence, then I go back to being a blank slate. Not, I'm a blank slate, but, you know, I'm going to tell you, "Yeah, no. Yeah, no. Just, I'm going to help you out." Right? Courts are there, not there to help the police. The courts, in this sense, are there to ensure that the police are not violating your constitutional rights. So that was a very big problem.

That being said, DUI checkpoints preserve a, or raise a very interesting question. So how many of you have been through a DUI checkpoint? Right, only a couple of you. One, are they fun? No. And two, basically, the what happens at a DUI checkpoint is, is basically a long line, basically if you turn down the wrong street and get this long line of cars, and the police come up to each car as it comes up, right? Have passenger or the driver roll down the window, maybe ask him a couple questions, maybe ask for a driver's license, pre-insurance, smell, and the idea is to see if this person's drunk. So let's say the car comes up and, and if somebody's drunk, they usually have them do a breathalyzer. Um, if not, a blood test, something like that. So car comes up, the driver is very apparently intoxicated, right, by his or her, the smell of alcohol, etc., right, slurring their words, you can tell this person is drunk and should not be driving. Now, you want, and generally speaking, need to get a breathalyzer, right? So you cannot be forced to get a breathalyzer without a warrant, right? That's a little bit of an oversimplification, but that generally speaking, you can't be forced to. So sitting in the back of one of the patrol cars that's not facing the direction of traffic, right? So traffic is back here, this is where they're conducting their stops, and the judge is, you know, forward over here, facing this way, not looking at the stops. Police can go over to the police car, knock on the window, the judge comes down, they present their facts, and the judge can say, "Yes, I'm issuing a warrant," or "No, I'm not issuing a warrant," right? And then rolls back up the window and just stares forward. This happens, right? And the basis of this happening is the judge isn't supervising the search, right? They're not saying, "Yes, you can do this, you can do this, but you can't do this. You can take this, but you can't take this." They're sitting there blank until somebody comes up to him, a police officer says, "This is what we've observed. Can we have a warrant?" The only difference between this, I mean, and a courtroom is where you're at, right? This, you're just at a checkpoint. You're not seeing anything that's happening, so you're not observing anything. You're not a party to it. You're just facing forward. It's no different than if the police had to Skype in or come into court to get a warrant, right? One just takes place in the backseat of a police car, the other takes place in a very fancy building. That's it, right? So there are differences, right? I'm not picking out individual, "Yes, I can," and I'm engaged, I'm looking, and I'm watching, and I'm witnessing this. If I'm witnessing any part of it, I'm no longer detached or neutral. But if I'm just facing forward, theoretically, I'm detached and neutral. Now, realistically, what happens? Basically, anytime police want a warrant, they get a warrant. It's, it's a low threshold. We do have tests and we do have different things that kind of come into play, but generally speaking, police can get a warrant fairly easily, especially in the DUI checkpoint situation, which I don't necessarily agree with the DUI checkpoint situation, right? Because if you're in a courtroom, people come to you with all kinds of different crimes, all kinds of different issues. You're neutral, or you're detached. If you're sitting right near the scene, not looking at it, but they're only coming to you for DUI, you're just going to be like, "Yep, go for it. Yep, you smelled it, go for it. You smelled it, go for it." Right? So it kind of blurs that line. But this is the point of contention when we're talking about motions to suppress. We want to suppress evidence. One of our bases could be that the judge was not neutral or detached. Right, so maybe if the judge is related to one of the parties, they're not neutral and detached, right? Maybe they're golfing buddies with one of the parties, they're not neutral and detached, right? So theoretically, the judge shouldn't know anything about this person, shouldn't know anything about the crime, should be a completely blank slate.

Now, how do we obtain the warrant? Well, the Fourth Amendment provides, right, that no warrant shall issue upon probable cause, supported by oath or affirmation. Okay, so we know that whoever wants the warrant has to give an oath or affirmation. But the process, right, that's the constitutional ground floor, but the process gives you a little bit more protection. Right, so what generally happens is the police officer files an application for search warrant with the court. In the warrant, or in, excuse me, in the application, they have to give the basis for the search, right? Basically, what are police looking for? Are they looking for contraband? Are they looking for instrumentalities? Are they looking for evidence? What are they looking for? They have to, in their application, provide the alleged offense being investigated. So we're investigating, um, potential distribution of heroin, and here are the facts that kind of support what we're talking about, right? So the facts giving rise to the search have to be noted. They have to be discussed in decent detail in what's called an affidavit. Affidavit basically says, "Look, this is what I'm searching for, this is what I'm investigating, this is the, um, facts that are giving rise to my probable cause, right? This is why I have probable cause." And then that law enforcement officer signs the affidavit. When they sign the affidavit, they do it under the pains and penalties of perjury, which now we just say "penalties of perjury" because we don't put people on the wheel anymore and cause pain, right? So the pains of perjury. Once they have signed under the pains and penalties of perjury, they have fulfilled their oath or affirmation requirement, right? They fulfilled their oath or their affirmation requirement because theoretically, if the police officer is

found to be lying. If the police officer is found to be making it up, that police officer can be arrested right and tried for perjury, sent to jail for perjury. So keep that in mind if you're a law enforcement officer, like, don't lie to the courts. Just because you're a cop doesn't mean you're not going to jail, right?

Um, so again, this is usually for blatant lies. We, we do everything in good faith. We'll talk about good faith exceptions, um, to the warrant requirement or good faith exceptions, um, yeah, where we should have had a warrant, but under circumstances at the time, we didn't need one. Um, we'll talk about that in more detail. But this is, we're going to do a search. There's no exigent circumstances. We have to go to court. We have to file this application, and we do it again under the oath and affirmation. And the reason we have the police officers say, "Look, if I'm lying, I'm going to jail, and I'm willing to go to jail," is because we conduct a hearing, right? So the judge conducts a hearing.

Now, at the hearing, it's a secret hearing, right? So the party who's going to be searched doesn't get a say, doesn't get involved, doesn't even know it's happening, right? And the idea behind it is, um, if we're looking for drugs and we tell this guy, "Hey, you have a court date on this day because we're going to, uh, get a search warrant to search your house for drugs," what are you going to do with the drugs? Probably get rid of them, right? So it doesn't make sense to have the other party there. So we conduct a secret hearing to test whether there's probable cause. Um, generally, it's enough for the police officer to be present and for the court to read the affidavit, all right, read the information as the basis of probable cause. Um, if we're dealing with an informant, a criminal informant, we can have the criminal informant present at the hearing, and the judge can actually ask the criminal informant questions, right? So this hearing can be as big or small as the judge wants, right? It can be as small as, "Yes, I've signed pains and penalties of perjury. Here's our information. Here's how we gathered it. Judge signs the warrant." Or if the judge is like, "This is a little, little walk in that line, right?" In that case, the judge might say, "Well, you need more. I want to know more. Bring in the informant, or bring in the person who witnessed it, bring in the neighbor. I want to ask them questions to decide whether or not this probable cause."

Now, this doesn't happen that often, right? Usually, it's just a very quick, very, very quick process. Um, judges basically, and they shouldn't be, but have become a rubber stamp for the police. Yeah, that's fine. Um, but that being said, a search warrant will generally always be challenged by defense counsel, right? So once the search warrant is served and the person's arrested and they go to pre-trial proceedings, defense counsel is going to file a motion to suppress. It's almost, almost, um, basically a neglect of duties, right, for attorneys not to do it. Um, it's even if they don't really have good grounds, right? We have to make an argument, right, that it was done improperly. And the idea is it might succeed, but we're doing everything for our client, right? We're not engaging in, um, the negligent practice of law, um, like basically malpractice, right? We're not engaging in malpractice. So it'll always be challenged by defense counsel, but generally speaking, it's going to stand, right?

Um, we're always say, "Oh, you didn't have enough facts or or whatever." And that's where the rubber stamp for the police becomes dangerous for the police, right? Because theoretically, because in order to make an arrest, we have probable cause, right? To charge somebody, probable cause to go to trial, we have to have probable cause. Theoretically, this should be the opportunity for police to vent everything that they have to see if a judge will say, "Yes, you have probable cause," or "No, you need more." Right? Because that tells the police and then the prosecutor, "Oh, they need more evidence," right, before they can make an arrest or anything along those lines, right? Because it's going to get challenged by defense counsel. We know that defense counsel is going to say, "The warrant process was messed up," or "There's not enough facts, wasn't enough support," what have you. And we want to avoid that, right? So this should be the opportunity to vent everything that we have. But just the sheer number of search warrants executed a day, it's impossible to have a mini, like, mini trial without the other side, um, of course, for everyone, right? It's usually just, "Okay, here are the facts." And a lot of times, it's copy and paste, right? For some crimes, especially at the federal level, federal crimes, most of it's just copy and paste and take an old application, new one, copy and paste stuff over, change a couple dates, things, and they're good to go.

Uh, I did put up for you on Canvas, I want you to take a look at, if we have time, I'll pull it up, uh, an application for a search warrant, what it looks like, as well as what the search warrant looks like. What you're going to see is they are very, very similar, right? It's because the judge copies and pastes from the application to the search warrant, and their warrant. So that being said, if the court says, "Okay, there's probable cause here, right, probable cause, I'm going to issue a warrant," the warrant has to meet the following requirements, right? The warrant has to state the property and/or persons subject to search, right? So it's not a general warrant. It has to be specific. The particularity of the location to be searched. This is the particularity requirement, right? This is all particularity. Um, so this idea is it has to describe the property in terms of land mapping, um, but it can describe the property in terms of, "The yellow house on Blake Drive with the wooden cowboy in the shadow thing in the front, right?" That's telling us what location, right? So it's, we can give an address. We also give a little bit more. Um, it doesn't have to be perfect, but it has to be issued in good faith, right? So maybe the police officer makes a typo and says they have probable cause, they have all this information to believe that the person in unit 103 has drugs. Well, really, they made a typo because it was the person in Unit 102. So they go into Unit 3, right? Because the warrant says that the police have to go to Unit 3. They can't go into Unit 2. They cannot go into Unit 2 because the warrant says they can only go into Unit 103. So they go into Unit 103, they don't find anything. Theoretically, a breach of, um, expectation of privacy? Absolutely. Right? But is it unconstitutional? No, it was done in good faith. It was a typo, right? So they're not going to be able to sue.

That being said, once police realize, "Oh, we told the judge the wrong apartment number, it's the one right next door." Well, the one right next door is flushing everything that they have. In the meantime, um, they can't just go over next door once they realize they made a mistake and search that apartment because the warrant specifies what they can search, and the warrant says 103, it doesn't say 102. So if they want to search 102, they have to get a new warrant for 102. Now, usually this is done by like a phone call of, "Hey, we screwed up, it's actually 102." Um, and it gets remedied fairly quickly. But theoretically, you have to have another warrant, different one, says you can search 102, right? So police have to be very, very particular on who and where they're searching, right? The warrant has to be very particular. This is the particularity requirement. Um, it has to be enough that the officer can locate the premises and not mistake it for another, right? So you can't say, "Oh, um, an apartment in the St. Joseph's apartment building." Okay, there's a lot of those. Where do we go? Right? That's not particular enough. And that is enough to get any, um, anything found excluded from evidence, right? So it has to be very, very excruciatingly particular, right? So the law enforcement officer could not mistake it for anything else.

The judge also has to say what things can be seized, all right? So they can't issue just a general warrant. They can't say, "Yeah, it looks like, um, this person probably has the stolen TV, right? So I'm going to issue a warrant to let you just search their place." Not going to cut it. The judge has to be specific. Has to say, "TV, TV-related accessories." And what they're going to do is they're just going to copy and paste from the application, right? I'll pull the application up here in a minute, and I'll pull up the, the particularity requirement in a minute. They have to be specific, and basically, they give a checklist of where the police can search, right? So if the police are searching for a stolen TV, let's say it's a 55-inch TV, police get a warrant and says, "Things to be seized: 55-inch flat-screen TV." Okay, so they bust open the door. Where can they look? This 55-inch TV. So can they look under the bed? Potentially, yeah, right? That can hide a 55-inch TV. Can they look in your sock drawer? No, right? Because that's not going to hide a 55-inch TV. So that's why it's so important that we give a checklist, all right? And what we're going to see in the checklist is it's going to say the, it's going to go down, it's going to say the smallest of things, the smallest of things, um, so that police can basically search everywhere, right? So not just the TV, but, uh, anywhere remotes could be hidden, anywhere batteries could be hidden for the remote, um, anywhere cables could be hidden, um, anywhere journals and diaries about the theft could have been, could be located, etc. So suddenly, we've gone from the TV, which can't fit in your sock drawer, to now we can also seize the batteries. Well, the batteries can fit in your sock drawer, right? But remember why this is important? Because of plain view, right? Our plain view exception to, um, the warrant requirement, basically, right? If something's in plain view, it's, there's no expectation of privacy in it. You don't need a warrant to seize it, right? So we'll get into cases where, like, police officers move stereos and stuff like that, you can't do that. But if something is in plain view, so you open the sock drawer to search for the batteries, and in the sock drawer, there are needles and little bags of heroin, can you seize those? Absolutely. It's in plain sight because once you open the sock drawer, as long as you didn't have to move something, it was sitting right there, it's in plain sight, right? And you can do it because now you're searching not just for the TV, but the batteries for the remote for the TV, right? So we always try to go as small as possible to allow officers to search wherever. Yes. Yeah. So if they're like digging through them, and they'll dig through them, like if then they come across them, it's still plain view. So you move the socks to try to find the batteries. Even if you don't find the batteries, it's still plain view, right? Because you have the legal right to be in there. You're searching pursuant to a search warrant to get into the sock drawer, all right, to find the batteries. And anything that you find that you immediately know is contraband can be seized. You don't need a separate warrant for now. We're going to look at a stereo case later on, um, where you do need a separate warrant. That's because the police officers had to manipulate the stereo, right? Going to do that. So generally, we're going to try to get you as small of an object as possible related to the offense so that police can search everywhere. And police searches are not very exciting, like they don't do it nicely. And I say this in the sense of, they don't just like take your sock drawer, look through the sock drawer, and put your socks back in it. No, basically what they do is they take all of your possessions and they throw them on top of your bed after they've searched them. They don't have any obligation to take them back. Sometimes they can rip open mattresses with knives. They, your mattresses, they don't have to fix them. They don't have to fix your front door, nothing, right? So again, they're very, very intrusive and invasive.

So in addition to the particularity requirement, warrants must not be stale, right? Stale basically says if you had probable cause to believe something is happening and you were motivated enough to get a warrant, you have to go serve that warrant while that thing is happening, right? Let's say I get a warrant because I believe you have two dime bags of pot in your apartment. So I get a warrant, and then six months later, I try to execute that warrant. Well, are the dime bags probably still there? Probably not, right? Maybe, who knows. But we've kind of lost that probable cause aspect. So generally speaking, a warrant, at the federal level, you have two weeks from the issuance of the warrant to serve it. After two weeks, the warrant is no longer valid. You have to go to the judge, the judge who gave you the warrant, and you have to have a damn good explanation as to why you didn't serve that search warrant. Like, because, man, a search warrant is the government invading your rights. This is a huge thing. And a judge said, "You, they signed it, said you can invade this person's rights." Police officer kind of comes in like the beaten puppy and, "Well, we didn't, we didn't serve it in two weeks, we need a new one." That judge is going to say, "Why?" And they're going to hammer them. Um, will they issue a new search warrant? Maybe, maybe not. Right? And what's interesting is if they don't issue a new search warrant, the police can go to another judge, but the police have to tell the other judge that another judge refused to issue the search warrant. What's that judge going to do? Well, they, they refused to do it. Why would I do it? Right? So again, it's important that the search warrant isn't stale. Stale just means it's expired, right? It's gone past its due date. And the idea is we don't want something, again, six months from now, everything could change, we don't know. And now you're serving a warrant, and it has no purpose because the drugs have moved, or the cash has moved, the guns been destroyed, whatever. We give it two weeks. The idea of like, "Okay, that seems reasonable." Um, police will usually execute it much sooner than two weeks, much, much sooner than two weeks. They're usually like waiting for like, they're just like, "On it, give me that warrant." Um, but again, past two weeks, you gotta get a new one.

So the warrant also has to note the time of day in which the warrant may be executed. So generally speaking, we can execute warrants between the hours of 6:00 a.m. and 10:00 p.m. There's an exception. We'll talk about the exception. My question is, why? Why 6 to 10? Why, why take a guess? Why did we do this 6 to 10? Because you're awake, right? Like, generally speaking, these hours, we presume that you're awake, and it makes it less dangerous, right? Makes it less dangerous for you, makes it less dangerous for the officers, because think about it, like, if you have a weapon next to your bed, um, and somebody breaks in, like, you, like, you know, you're in deep sleep and suddenly you're, boom, crash, bang, bang, bang, and then like, you just instinctively grab for the gun beside the bed and shoot because you think it's a burglar or somebody's after you. You shoot, best case scenario, shoot a police officer in, um, armor, right? So it doesn't kill them, but it's going to likely be responded to with gunshots back at you and kill you, right? So that's part of this idea. It's like, you're awake, you hear knocking at the door, you hear a crash at the door, you can respond in a non, just like, out of the manner of bang, bang, bang, right? Um, so we say 6, 6 to 10, and when we say 6 to 10, it means that's when the search warrant has to be initially served. So it doesn't mean that police come to your house at 9:00 p.m. and, and they knock gently, right? And say, "Oh, we have a search warrant," and they get in, and then you go, "Oh, it's 10:00 p.m., you guys gotta leave." No, it's not how that works. As long as they serve it by 11:59 or 9:59:59, they can stay as long as they need to. That being said, um, we'll talk about the knock requirement, but like, police officers don't, when they knock for a search warrant, it's not a pleasant knock. It's not [Music]. It's right, usually accompanied by screaming, "Search warrant!" waiting 10 seconds, and then using a battering ram to knock down your door. Again, you're presented in a sec, um, and this is just based upon probable cause. So again, it gives us this tunnel, you're, you're awake, right? It might be safer because you might be at work and we're searching your house while you're not there, so you're not there to like flush stuff, anything like that. There's a lot of thought process that goes behind it.

That being said, police can serve a search warrant after these hours if they have good cause. So not only that they show probable cause of what they're searching for, they also have to go to the judge and say, "We have good cause. We have a really good reason that's all is a really good reason why we should be able to serve the search warrant at 2:00 a.m., right?" Um, maybe the guy, uh, that they're after, he's in a gang, right? He has his buddies over every night for poker night on Friday. That's when you want to search, and usually his buddies leave around 2:00 a.m. As a police officer, is it safer for you to have three people in a room or one person in a room? Probably the one person, right? Especially if it's gang involvement, you know the other parties have weapons. We're going to say, "Okay, yeah, that's good cause. That's fine. Serve it at night." Right? But you have to have a good reason to serve it at night. Um, most warrants are served at 6:00 a.m., right? Basically, as soon as that clock ticks over, that warrant gets served. Partially because, and we still run into the issue of your asleep, um, but not necessarily as severe, right? Because most people in the process of waking up or set at least an alarm. Like when you become real people, like at all, you'll know, um, you set an alarm and you start to wake up and it kind of starts that process. They serve at 6:00 a.m. because that's kind of when you're the least dangerous, right? Because most people when they first get up, what are they going to do? Take a shower. How many of you carry a gun in the shower? Nobody, because it's probably going to be ineffective. Turns out when guns get wet, depending on the gun, it might not work. So we don't show with guns. So that's kind of the thought process behind why we start from early, um.

That being said, the scope of the search will dictate how long officers can stay, right? So they can only stay for a reasonable amount of time. Oh, one thing I'll say is if they violate, like if, if they serve a search warrant at 1:00 a.m. and they didn't show good cause, judge said it had to be between six and 10, and they find stuff at 1:00 a.m., that's not getting suppressed, right? It's not a violation necessarily of your rights. You can sue the police, which you won't win, but it's not getting suppressed. Basically, can officers spend three days looking through your stuff? Usually no, but it depends on the scope, right? So it depends on what they're searching for. So again, a flat-screen TV, it's probably going to take them 20 minutes to search your place for, if that, right? That's the only thing they're looking for. If they can include batteries, well, suddenly you might have a couple hours as they rifle through literally everything you own. It also depends on the size of your house, right? Let's say they, they come and, and you're poor like me and you have a tiny little place, not going to take them very long, right? Because there's only so many places you can have a TV. However, if you have a 20-bedroom mansion, it's going to take them a lot longer, right? So that's why we're talking about how long can they stay. It really just depends on the scope of the search. And scope of the search is really determined by the affidavit and the particularity requirements, um, that being said, there is a warrant application process differs for certain investigations, right? So we want to conduct electronic surveillance, it's a different process, and we'll get into it later. Um, if it's a terrorism investigation where we're listening in on phone calls, or the FISA court is where we go. So basically, the FISA court is a secret court with a secret judge and secret prosecutors and a secret, and a, a secret defense advocate who basically when they're trying to tap wires of like international calls, they have to go to the FISA court. Have to go to FISA court. Um, yeah, like said, it's a private court. The proceedings are never made public, anything along those lines, like there's no record that's made public. So some courts are still secret. Again, this happened after September, September 11th, right, um, with the Patriot Act. So there are some things that we, we, we do different processes for. But drunk speaking, this is the process.

Now, there are again, some exceptions or execution, excuse me, we're talking about the execution of the warrant. A couple things I want to say, uh, first is the knock and announce requirement, right? We kind of got into that a little bit ago, but I speaking, police officers have to knock and announce before they're allowed to take a battering ram to your door, right? It traces its roots to a 1603 case, an old English common law case, and what the idea is, it gives the occupant the opportunity to open the door before it's destroyed by law enforcement, right? Like, I don't know if you've ever shopped for doors, but front doors are really expensive. It gives an opportunity, right, to open the door. And the idea here too is it seeks to ensure privacy and reduce violence, right? So think about it this way, like, you're in the shower and you hear, "Search warrant!" You're probably going to get out of the shower, put at least a towel around you, right? Because if, if police could come in with a search warrant or didn't knock at all, they just kicked open the door, they're coming into that bathroom after you, they're going to cuff you bare naked, standing in another, the shower with handcuffs on, right? So like, it gives you privacy to a certain degree. It prevents violence because if they knock, they say, "Search warrant," you're going to assume police officer rather than somebody who is a perpetrator out to get you. Um, there's exceptions to the knock requirement, basically, they include the threat of violence given the circumstances. So this kind of goes hand in hand with serving search warrants at night, but like, if they have good reason to believe this person is armed, right, and it's going to start shooting as soon as they say search, if they knock and say, "Search warrant," we just want to be able to come in, right? We don't want to have to knock. Um, if we're in hot pursuit of a felon, let's say a felon is running from police and runs into some guy's house and like slams the door behind him and like hiding there, police don't have to go knock on the door and say, "You know, we're here, search warrant," or whatever. They don't have to go get a search warrant. They can just follow the felon, right? They can go in without the warrant. Um, and if we have destruction of evidence, talk about Richards versus Wisconsin, um, either now or, uh, next class, um, but basically, if we hear people flushing drugs, like we come up and they see us and they run into their house, like, "We're cops," they, they run into their house, um, we're probably going to think, "Whoa, whoa, whoa, whoa, whoa, they're going to flush those drugs. They're, if we're going after drugs like that, that's, they just said that's what we're going for." So if we think there's going to be destruction of evidence, we don't have to knock. We can just go in, right? We don't give people opportunity to get rid of stuff.

That being said, Richard versus Wisconsin, to Great Kanas, the hotel room case, basically kind of goes hand in hand with what we're saying here. That being said, raises one last question. How long do police have to wait from the moment they knock before they use a battering ram to batter down the door? Depends on the search, the circumstances surrounding the search, right? All we require is that officers act reasonably, right? So if we do a search warrant and we count to 10, maybe then we can use the battering ram, right? Especially if it's a one-floor place where, when we know it's small, so we know you can hear us and you could realistically get to the door to open the door within 10 seconds, that's fine, right? Um, if on the other hand, you're a little, you're going after Grandma, and Grandma lives in a three-story walk-up, or no, not in a walk-up, lives in a three-story house, say that her bedroom is on top of the three-story house. We knock, we say, "Search warrant." Is Grandma going to get her old ass downstairs by 10 seconds? Probably not, right? So we ask they act reasonably. If they don't act reasonably, you can sue. Right? From if they don't use the knock and announce requirement, they don't knock and announce when they should have, you can sue. Very rarely are those suits successful. Basically, it's more money to sue than you get, right? That being said, if an officer does not abide by the knock and announce requirement, the evidence is not excluded, right? So we just immediately use a battering ram, buster down your door, um, we didn't knock and announce, we find the drugs, we rush you for the drugs, can we use those drugs against you? Absolutely, right? We were coming in either way. 10 seconds didn't make any difference in terms of your constitutional rights, right? Um, so that kind of how we've dealt with exclusion, right? Is this kind of this balancing between safety and privacy. Um, what we'll do is we'll end here for today. Next class, what we're going to do is we'll finish up the execution of warrants, you'll watch a video of how they get executed, and then we'll move into warrantless searches, and that'll be a two-part class.