SEARCHES OF THE HOME
4-1
CHAPTER 4
SEARCHES OF THE HOME
“A man’s house is his castle”
—American Proverb
“We built the castle and they’re stealing the furniture”
—James Best
I. INTRODUCTION
II. EARLY STEPS
§4:01 Initial Investigation
§4:02 Preliminary Hearings
III. STANDING: FIRST THRESHOLD TO CHALLENGING THE SEARCH OF A HOME
A. Who Has Standing?
§4:03 Generally
§4:04 Guests
B. Proving Standing
§4:05 By Motion and Testimony
§4:06 Caution: Pitfalls of Client Testimony on Standing
[§§4:07–4:09 Reserved]
IV. DEFINITION OF A “HOME”
A. Multi-Unit Dwellings
§4:10 Private Areas; Common Areas
§4:11 Establish Your Client’s Reasonable Expectation of Privacy
§4:12 Sample Questions to Establish Expectation of
Privacy in Common Areas of Multi-Dwelling Unit
§4:13 Sample Argument for Multi-Dwelling Unit
B. Curtilage
1. Governing Principles
§4:14 Curtilage or Open Field
§4:15 Curtilage or Not Curtilage: Examples from the Case Law
§4:16 Permissible Entry onto Curtilage
§4:16.1 “Knock and Talk”
§4:16.2 Implied Consent
§4:16.3 Dog Sniff
§4:16.4 Inserting Key Into Door
§4:16.5 Fly-Over
§4:16.6 Surveillance Tools
[§§4:17-4:20 Reserved]
SEARCHES OF THE HOME
Suppressing Criminal Evidence 4-2
2. Case Example
§4:21 Sample Fact Scenario
§4:22 Pre-Motion Investigation
§4:23 Cross-Examination of Police Officer
§4:24 Sample Argument
C. Temporary Dwelling
§4:25 Reasonable Expectation of Privacy
§4:26 Abandoned Dwelling
[§§4:27–4:29 Reserved]
V. CHALLENGING WARRANT SEARCHES OF THE HOME
A. Governing Principles
§4:30 Was Warrant Issued By Proper Party?
§4:31 Was Search Conducted Within Scope of Warrant?
§4:32 Was There Probable Cause on Face of Warrant?
§4:33 Staleness
§4:34 Good Faith Exception
B. Case Example: Challenging Probable Cause in a Search Warrant
§4:35 Sample Fact Scenario
§4:36 Grounds for Legal Challenge to Search Warrant and Execution
§4:37 Sample Argument
C. Challenge to Search Warrant Based on Untruthful Probable Cause Statement
§4:38 Ground Rules
§4:39 Example of Materially False Search Warrant Affidavit
§4:40 Sample Cross-Examination of Officer
§4:41 Sample Argument
D. Challenges to Warrants when Prosecutors Rely on Independent Source Rule
§4:42 Two-Prong Test
§4:43 Egregious Conduct May Result in Suppression
E. Challenge Based on Detention of Person not on Premises
§4:44 Governing Principles
§4:45 Execution of Arrest Warrant
§4:46 Cross-Examination of Officer on Claim that Subject Likely to be in Home
§4:47 Sample Argument
[§§4:48-4:54 Reserved]
VI. WARRANTLESS SEARCHES EXCEPTIONS TO WARRANT REQUIREMENT
A. Consent: The Ultimate Warrant Exception
1. Consent Must Be Freely and Voluntarily Given
§4:55 Ground Rules
§4:56 Test for Voluntariness
§4:57 Consent Not Valid When Obtained by Misrepresentation
§4:58 Consent Not Valid When Obtained by Intimidation
§4:59 Interview and Investigate
§4:60 Litigating Voluntariness: Sample Fact Scenario
§4:61 Sample Cross-Examination
§4:62 Sample Argument
2. Language Barriers and Consent
§4:63 Governing Principles
§4:64 Sample Cross-Examination of Interrogator
3. Scope of Consent
a. Governing Principles
§4:65 Consent May be Limited
§4:66 Consent May be Revoked
SEARCHES OF THE HOME
4-3 Searches of the Home
b. Litigating Scope of Consent
§4:67 Sample Fact Scenario
§4:68 Sample Cross-Examination
§4:69 Sample Questions for Direct-Examination of Client
§4:70 Sample Argument
[§§4:71-4:74 Reserved]
4. Who Can Give Consent?
a. Apparent Authority
§4:75 Governing Law
§4:76 Sample Case Scenario
§4:77 Interview Questions for Client and Parents
§4:78 Sample Cross-Examination Questions
§4:79 Sample Argument
b. Child’s Consent to Search Parental Home
§4:80 Governing Law
§4:81 Litigating Consent to Search by Children
c. Persons with Co-Equal Rights
§4:82 When Parties Disagree
§4:83 Establishing Your Client Has Co-Equal Rights
5. Consent and Dissipation of Taint
§4:84 Governing Law
§4:85 Sample Fact Scenario
§4:86 Sample Argument
[§§4:87-4:89 Reserved]
B. Searches Incident To Arrest in the Home
1. Governing Law
§4:90 Scope: Search of Arrestee and “Lunge” Area
§4:91 Timing
§4:92 Protective Sweep
2. Litigating Search Incident to Arrest in Home
§4:93 Sample Fact Scenario
§4:94 Sample Cross-Examination
§4:95 Sample Argument
§4:96 Sample Fact Scenario Variation: Protective Sweep
C. Plain View Doctrine
§4:97 Governing Law
§4:98 Sample Case Scenario
§4:99 Sample Cross-Examination
§4:100 Argument
D. Exigent Circumstances
§4:101 Governing Law
1. Emergency Doctrine
§4:102 Governing Principles
§4:103 Types of Emergencies Permitting Warrantless Entry
§4:104 Types of Situations Not Rising to An “Emergency” Permitting Warrantless Entry
§4:104.1 Emergency Entry Initially Justified, but Dissipates
§4:105 Sample Fact Scenario
§4:106 Key Points for Cross-Examination and Argument
2. Imminent Destruction of Evidence
§4:107 Governing Law
§4:108 Sample Fact Scenario
§4:109 Sample Cross-Examination
§4:110 Sample Argument
[§§4:111-4:114 Reserved]
