Criminal Procedure
Fall 2015
DeBeor
Faulkner Law
Relevant Constitutional Amendments
8th
The 4th Amendment
“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.”
When is it a search?
Threshold requirements:
When there is (1) a gov’t action, (2) against the people
Gov’t action: MUST be by law enforcement, agents of law enforcement OR non-law enforcement gov’t employee.
Agents: acting at the behest of direction of the gov’t
Non-law gov’t employees: public school officials (TLO) and government agencies
CANNOT be private actors that deliver evidence to the police.
The people consists of the national community of persons having developed a sufficient connection w/ the US.
If US gov’t in a foreign country conducting search and seizures on property owned by non-resident aliens, then NO 4th Amendment rights!
Katz Test
Any violation of “the privacy on which [a person] justifiably relied” Katz Justice Stewart
There was an actual, subjective expectation of privacy, AND
Desire to keep private info private
Taken reasonable measures to remain private
If openly accessible, this standard NOT met
Man speaking loudly on the phone while shopping Walmart about an upcoming drug deal. Off duty cop overhears. NOT a search bc private conversation in public place where anyone can hear it.
Abandonment of Property
Denial of Ownership of Property
Walks away and leaves property
That expectation is reasonable (via a society standard)
Is it reasonable to expect such privacy?
Factors Courts Consider
Location (home, car, street, etc.)
“Assumption of the Risk” or whether person knowingly revealed info to a 3rd party who then shares it with police
Nature of the property interests (owner vs. visitor)
Social custom
Past practices and expectations
Legality and intimacy of activities occurring (No expectation of privacy in illegal activities)
Vantage Point (helicopter or street)
Personal characteristics are NOT reasonable
Copes can take pics
Cops can collect handwriting sample
Cops can obtain a voice exemplar
What counts as reasonable for a search?
Home IS a search
Garbage is NOT a search
California v. Greenwood (1988): the police did not violate the 4th Amendment by searching plastic bags left on the curb BECAUSE by putting the trash on the curb, that personal effectively exposed his trash to the public which destroys ANY expectation to privacy.
He COULD have had an expectation that the cops wouldn’t have gone through his trash, but that expectation is not societally reasonable.
Open Fields is NOT a search
Oliver v. United States (1984): the protection of the 4th Amendment does not extend to open fields
Florida v. Riley (1989): surveillance by the police of a partially covered greenhouse in a helicopter did NOT constitute a search.
California v. Ciraolo (1986): surveillance of fenced backyard form a plane at 100ft did NOT constitute a search.
Curtilage IS a search
Curtilage may be protected if a person reasonably expects that this area immediately adjacent to the home would remain private.
4 determining factors:
The proximity of the area to the home
Whether the area is included w/in an enclosure surrounding the home
The nature of the use of the area
The steps taken by the resident to protect the area (to ensure privacy) from observation by people passing by.
Business and Commercial Premises IS a search
See v. City of Seattle (1967): “the businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property”
Private Areas in Public Places IS a search
State v. Bryant (1970): Police in overhead vent looking down at individual in a closed stall is a search
Prison Cells NOT a search
Hudson v. Palmer (1984): shakedown of an inmates cell for contraband is not a search
Pen Register of phone num
use
Sources of Probable Cause:
Information from an alleged victim or a witness to a crime
Reliability does not need to be shown
Direct Observations of Police
Information and orders from official channels
Cases:
Spinelli y. United States (1969):
A search warrant was issued based on an affidavit containing the following information:
FBI had tracked Spinelli’s movements from Illinois into St. Louis, Missouri and into a particular apartment.
The apartment contained two telephones.
The FBI stated that Spinelli is known to local law enforcement as a gambler.
Informant’s tip stated that Spinelli was operating a gambling operation in which he accepted wagers and disseminated wagering information by means of two telephones.
Two-prong test for assessing reliability of informant tips:
First, the application has to adequately reveal the “basis of knowledge” of the informant- the particular means by which he came by the information given in the tip.
Second, the application has to provide facts sufficiently establishing either the “veracity” of the affiant’s information, or, alternatively, the “reliability” of the informant’s tip in this particular case.
Here, the only facts supplied by the informant were that Spinelli was using two telephones and that these phones were being used in gambling operations. This information could have been obtained from an off-hand remark at a neighborhood bar and fails to provide sufficient facts to establish both the informant’s basis of knowledge and reliability.
Contrast this to the detailed description in Draper v. United States (1959) (upholding warrant in which informant described accused’s clothes and actions at train station with minute particularity).
