James R. Balmforth: Criminal Lawyer West Jordan Utah

A citizen can knowingly expose something to the public in many ways. Fourth Amendment protection does not apply when a citizen makes inculpatory statements to an undercover police officer during conversations that were memorized, recorded, or simultaneously conveyed to the police, because the citizen assumed the risk that his message would be conveyed to the police. Likewise, the Supreme Court has held that a citizen has no legitimate expectation of privacy in dialed telephone numbers, because the dialed telephone numbers are knowingly exposed to the telephone company. And, when a citizen places garbage in opaque plastic bags on a public street for trash collection, the citizen assumes the risk that members of the public may gain access to its contents. Therefore, the citizen has no reasonable expectation of privacy in inculpatory items discarded in this way.
The Supreme Court has concluded that a canine-sniff does not constitute a search because a canine-sniff is: (1) less intrusive than a typical search, (2) sui generis, and (3) so limited both in the manner in which the information is obtained and the content of the information revealed that it could not offend a reasonable privacy expectation. At the same time, the Court implied that the Fourth Amendment was not implicated when a canine-sniff disclosed only the presence or absence of a contraband item (narcotics). According to this latter interpretation, the Fourth Amendment does not protect a citizen from such a disclosure of contraband (illegal) items.

The Fourth Amendment is implicated when a search or seizure occurs. The Supreme Court has struggled to define a search, particularly when it had to evaluate the impact of a sense-enhancing device. For example, the Court has held that the government’s use of a sense-enhancing device is not a search where the government conducted a warrantless (1) canine-sniff of (a) luggage briefly detained at an airport; or (b) a car lawfully stopped, and (2) aerial surveillance of a chemical manufacturing plant with a precision aerial mapping camera. If you have been arrested following a search or seizure, speak to an experienced West Jordan Utah criminal defense lawyer. You have certain rights and the lawyer will ensure that your rights are protected.

The general definition for probable cause when based on an officer’s own observations is: if the facts and circumstances before the officer are such as to warrant a man of prudence and caution believing that the offense has been committed, it is sufficient. In other words, what did the officer know? And, when did he know it?

To obtain a search warrant from the court, a police officer must be able to detail, in writing, the person, place, or things to be searched. The officer’s request to a judge – usually a signed “affidavit” – must be based on probable cause that the item to be searched for is where the officer says it is.

The Supreme Court has held that a warrant was void if the affiant-government agent made assertions in the affidavit (supporting the warrant request) that contained no facts upon which to base a finding of probable cause. Assertions in an affidavit that merely affirms a belief or a suspicion are insufficient to support probable cause to search a private dwelling. Not only has the Court prohibited the affiant-government agent from using mere assertions of belief or suspicion to establish probable cause, but her third-party informant is similarly restricted.
To establish probable cause based on an informant’s tip, the informer’s report must show (1) he is a reliable or truthful informant, (2) that his report is based on sufficient facts (basis in knowledge), or that his report has been sufficiently corroborated; or (3) specifically detailed (suggesting that it was reliably received), or (4) the rest of the affidavit shows that something alleged permits the suspicion engendered by the informant’s report to ripen into probable cause.

Probable Cause

From the beginning the Supreme Court has condemned writs of assistance and general warrants as violations of the Fourth Amendment’s particularity requirement. The Court has held that this particularity requirement applies to persons as well as to places.

Search warrants are often employed early in an investigation, sometimes before the identity of any likely criminal is known. Indeed, these warrants may be used to search the property of purportedly blameless persons. On the other hand, where the material seized falls within First Amendment protection, a search warrant may not be sufficient to protect a citizen’s Fourth Amendment right. For example, the Court has held that the particularity requirement must be more strictly adhered to when a First Amendment right is involved.

The Supreme Court has held that the Fourth Amendment’s second clause contains four requirements: (1) probable cause, (2) supported by oath or affirmation, particularly describing (3) the place to be searched; and (4) the things to be seized.

A search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional. Moreover, the Court has claimed that the particularity requirement prevents general searches and assures individuals that an officer executing a search warrant has the lawful power to search, and that there are limits on that power.

A warrant that satisfies some but not all of the four requirements is facially deficient and therefore unconstitutional. However, a court may determine that a facially invalid warrant is constitutional where the warrant’s specific language makes reference to a supporting application or affidavit. So, if the warrant uses appropriate words of incorporation, and if the supporting document accompanying the warrant supports probable cause, the warrant is constitutional.

Warrants to search or seize must set forth probable cause supported by oath or affirmation. The Supreme Court has emphatically determined that this sworn statement of probable cause must be independently sufficient to inform the judge that probable cause exists.

The Supreme Court has consistently maintained that the constitutional requirement that a warrant must particularly describe the things to be seized is to be accorded the most scrupulous exactitude when the things are books, and the basis for their seizure are the ideas that they contain. First Amendment cases are treated differently from other search and seizure cases. When First Amendment rights are not involved, the particularity requirement is more flexible. The Court has recognized a police officer’s good faith reliance on a search warrant authorizing the search of a suspect’s third-floor apartment even when the officer did not learn that the third floor contained two apartments, one not belonging to the suspect, until the police executed the search warrant.

Neutral Magistrate

Unlike the Fourth Amendment warrant requirements of probable cause, oath or affirmation, and particularity as to search of a place and the seizure of things, there is no specific language about a neutral and detached magistrate. Instead the Supreme Court has adopted this requirement based on a number of precedents. In essence this requirement provides that inferences necessary for determining whether a warrant is valid should be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Consequently, warrants are unconstitutional under the Fourth Amendment when issued by a state agent who is not neutral or detached. A state agent is not rendered neutral and detached merely by having authority to issue warrants. Also, the issuing magistrate need not be a lawyer or a judge. As a consequence, a municipal court clerk can be a neutral and detached magistrate, but if the clerk is paid only if arrest warrants are issued, then the clerk is neither neutral nor detached.

Knock and Announce

Generally, a search or seizure conducted without a warrant is presumptively unreasonable. However, even where the police possess a warrant to search and seize in a citizen’s home the search or seizure may be unreasonable where the manner of entry.
was unreasonable. The reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering. Even under these circumstances, the Court has acknowledged that there is nothing specific about the formalities or the manner of conducting a search or seizure. Moreover, the Court has eschewed the use of categories or protocols when determining the reasonable execution of a warrant.

Instead of categories, the Court examines the totality of the circumstances in each case in order to determine whether the manner of entry was reasonable. As a result, the Court has identified factual considerations of unusual, albeit not dispositive, significance. For example, generally, the Court requires the police to announce their intent to enter before entering closed premises. However, the police may make an unannounced entry where they have reason to believe that evidence would likely be destroyed if advance notice were given.

To justify a no-knock entry the police must possess a reasonable belief or suspicion that the knock will cause the citizen to harm the policeman or destroy evidence. When determining whether the police had reasonable suspicion that announcing their presence might be dangerous to themselves or others, the Court has decided that the existence of reasonable suspicion does not depend on whether the police must destroy property to enter the closed premises. The Court has noted that excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is otherwise lawful and the fruits of the search not subject to suppression.

Although the police may persuade a judge prior to entry that reasonable suspicion exists to justify a no-knock entry, sometimes an exigency may arise after the police have knocked and announced. After they have done so, the issue becomes: How long must they wait before entering the premises? According to the Court, the facts known to the police are used in judging a reasonable waiting time. Then, a judge must examine the disposal time of the particular evidence involved in order to determine whether the officer’s claim of exigent need was reasonable. Where evidence is not readily destructible, police should wait longer before entering after knocking and announcing. Obviously, each case must be determined on its own facts.

So, even where the police enter closed premises with a warrant, the reasonableness inquiry under the Fourth Amendment has not ended. Next, a trial judge may be required to determine if the manner of entry was reasonable. Such a determination may depend on whether the police (1) knocked and announced; (2) waited for a reasonable period of time (after knocking and announcing), or recognized an exigency after knocking and announcing; or (3) destroyed property before, after, or without knocking and announcing. At one time, the presumption was that where the manner of entry was unreasonable (failing to knock and announce) then any fruits discovered upon entry would be excluded pursuant to the exclusionary rule. This presumption is no longer valid when the police enter pursuant to a search warrant.

The police are required to have prior justification for their presence in order for the plain-view doctrine to apply. Prior justification has included (1) searching for other objects pursuant to a warrant, (2) hot pursuit, (3) search incident to a lawful arrest, and (4) presence of an officer for some other legitimate reason unconnected with the search directed against the accused, which permits the warrantless seizure. However, the evidence must be immediately apparent to the seizing officer.

If you have been charged with a crime, contact an experienced West Jordan Utah criminal defense lawyer. Your liberty is at stake. If convicted, you may be sent to jail. Never assume that you can fight a criminal charge without the assistance of an experienced West Jordan Utah criminal defense lawyer. Criminal law is complex. A conviction can remain on your records and you will find it difficult to rent a house or get a job because of your conviction. If you are subsequently charged for another offense, the judge will consider your previous conviction when sentencing you and you are likely to receive a harsher sentence.

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