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Criminal Procedure
John Marshall Law School, Chicago
O'Neill, Timothy P.

CRIMINAL PROCEDURE: POLICE INVESTIGATION PROFESSOR TIMOTHY O’NEILL
SPRING 2012
 
 
 
I.       FOURTH AMENDMENT
A.    “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.”
B.     Does the Fourth Amendment apply?
1.      Is the conduct governmental (as opposed to private)?
a.       To implicate the Fourth Amendment, there must be government action.
Government action may consistent of actual police activity or private individual activity at the direction or as an instrumentality of the government.  In determining whether a private individual is acting at the direction or as an instrumentality of the government, the following should be considered: (1) the degree to which the government acquiesced, encouraged, and supported the private individual’s activity and (2) the private individual’s underlying motivation (i.e., was the individual pursuing his own interests or the government’s interests?).
b.      For example, in United States v. Jacobsen, the Supreme Court determined that the Fourth Amendment was not violated where a FedEx employee opened a suspicious-looking box, found drugs, and then reported the drugs to the DEA.  The Court concluded that all the DEA did was stand in the shoes of the FedEx employee.  In other words, the government did not learn anything new by re- opening the box, because the FedEx employee had already done so.  It must be noted, however, that where the government extends the private search in a substantial way, an otherwise purely private search isolated from the Fourth Amendment may be transformed into one subject to constitutional limitations. In Jacobsen, the Court held that a field test for cocaine did not constitute a substantial step beyond that what the FedEx employee had done, and therefore the Fourth Amendment was not violated.
2.      Has a reasonable expectation of privacy been violated?  [If “yes” to both, move ahead.] a.       As stated in Katz v. United States, the Fourth Amendment applies where an individual has a reasonable expectation of privacy.  This inquiry consists of two prongs:
(1)   Subjectively reasonable expectation of privacy: Does the individual have an
actual expectation of privacy?
(2)   Objectively reasonable expectation of privacy: Is the individual’s expectation of privacy one that society is prepared to recognize as reasonable?
b.      The Fourth Amendment protects people and not places, and therefore it is no longer considered solely a property concept.  Katz v. United States.
c.       An individual does not have a reasonable expectation of privacy where he voluntarily conveys information or property to a second individual, because he implicitly assumes the risk that the second person will expose it to the public or the police.  This is known as the “voluntary-conveyance-to-another-party” rule. California v. Greenwood.
 
d.      As stated in United States v. Place, there is no intrusion on an individual’s reasonable expectation of privacy (and therefore no search) where a dog is sniffing for drugs, as this is a binary procedure: the dog can reveal only whether there are drugs or no drugs.  Similarly, in United States v. Jacobsen, the Court held that a chemical composition test that merely discloses whether a substance is an illicit drug does not compromise any reasonable expectation of privacy and therefore does not amount to a search.  These cases must be contrasted with Kyllo v. United States, in which the Supreme Court determined that a search occurred where the police used a thermal imager to conclude that the defendant was growing marijuana in his home.  Justice Scalia, writing for the majority, emphasized the constitutional interest in protecting the home: “In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.”  Kyllo v. United States.
e.       “Persons, houses, people, and effects” are the most protected categories.  The Fourth Amendment does not necessarily protect an open field, which is distinguishable from curtilage of a home, as there is no reasonable expectation of privacy.  Oliver v. United States.  The factors to consider in determining whether land is within the curtilage are: (1) the proximity of the land to the home, (2) the area is included within enclosures surrounding the home, (3) the nature of the use to which the area is put, and (4) the steps taken to protect the land from observation.  United States v. Dunn.
f.       With respect to beeper and GPS devices, the Supreme Court has held:
(1)   The Fourth Amendment was not violated where the police installed a beeper in a chemical drum to be sold to the defendant, as the electronic monitoring device on public roadways did not amount to a search.  The defendant did not have a reasonable expectation of privacy, because he knowingly exposed his movements to the public.  United States v. Knotts.
(2)   The Fourth Amendment is violated where the police place a beeper inside the home, as the home has crucial significance under the Fourth Amendment. United States v. Karo.
(3)[The Fourth Amendment is violated where the police attach GPS devices to an individual’s vehicle, as this violates an individual’s reasonable expectation of privacy.  United States v. Jones.  NOT RESPONSIBLE FOR] C.    Was the conduct justified?
1.      Identify the type of intrusion.
a.       A search occurs where an individual’s reasonable (subjectively and objectively) expectation of privacy has been violated.  Katz v. United States.
b.      A seizure occurs where there is a meaningful interference with a possessory interest.  A seizure occurs where a government actor, by means of physical force or demonstration of authority, has communicated to a reasonable person that he is not free to leave.  Soldal v. Cook County.
c.       The police may Terry stop (limited/quasi-seizure) an individual where there is reasonable articulable suspicion to believe criminal activity is afoot.  Terry v. Ohio.
 
d.      The police may Terry frisk (limited/quasi-search) an individual where there is reasonable articulable suspicion to believe the subject is armed and dangerous. Terry v. Ohio.
2.      Identify the level of justification required.
a.       Probable cause exists where the facts and circumstances within the arresting officer’s knowledge are sufficient for a person of reasonable caution to believe that a crime has occurred.  Carroll v. United States.  It is an objective standard.
(1)   A citizen informant who directly informs the police that a crime has occurred does not need to be verified as a good source. Maryland v. Pringle. There is an inherent indicia of reliability because a citizen informant undertook the risk that the police could recognize him at a later time and charge him criminally if the information proved untrue.
(2)   An officer informant does not have to disclose the informant, because there is an interest in not “outing” the informant and placing his safety at risk.  A defendant has a right to confront the informant-witness only at trial—not at a pretrial suppression hearing.  McCray v. Illinois.  Therefore, a defendant does not possess the constitutional right to know the identity of an informant upon whose testimony a warrant was issued.  McCray v. Illinois.  Although, of course, the judge may require the presence of the informant—perhaps in an in camera hearing.
(3)   An anonymous tip may be sufficient to form probable cause, so long as it is corroborated.  Illinois v. Gates.  This is a totality-of-the-circumstances analysis.  Illinois v. Gates.  The factors to be considered are the informant’s credibility, the basis of the informant’s knowledge, and the probability that contraband or evidence will be found. Illinois v. Gates. In this sense, the totality-of-the-circumstances test incorporates the factors enunciated in the Aguilar-Spinelli test.  Illinois v. Gates.
(4)   “Where probable probable cause has existed, the only cases in which [the Supreme Court has] found it necessary actually to perform the ‘balancing’ analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual’s privacy or even physical interests—such as, for example, seizure by means of deadly force, unannounced entry into a home, entry into a home without a warrant, or physical penetration of the body.”  Whren v. United States.  In these situations, the individual’s interest in privacy and security must be weighed against society’s interest in conducting the procedure.  Winston v. Lee.
b.      Reasonable suspicion is a totality-of-the-circumstances analysis, and although it requires more than a mere hunch, it is a considerably lesser standard than preponderance of the evidence.  United States v. Sokolow.
(1)   Reasonable suspicion may be formed from the police’s own personal observations, but also from information supplied by another person, including through hearsay.  Alabama v. White.  A totally uncorroborated anonymous tip, however, cannot serve as the sole basis to form reasonable suspicion. Florida v. J.L.
(2)   Reasonable suspicion may be formed where an individual runs away from the police, especially if this occurs in a “high-crime” area.  Illinois v. Wardlow.
 
D.    Was a warrant required?
1.      For a search, did the conduct fal

ne of a homicide for possible other victims or a killer on premises, but this does not constitute a lifetime pass to search the premises. Mincey v. Arizona; Thompson v. Louisiana; Flippo v. West Virginia.
3.      Robinson search incident to arrest.
a.       Lawful arrest based on probable cause.
(1)  The police may perform a full body search on an arrestee after any arrest.
United States v. Robinson. It is irrelevant whether it was a discretionary
 
arrest.  Gustafson v. Florida.  There must be an actual arrest, however, and where the police could have arrested an individual but opted instead to issue him a citation, no Robinson search may be performed.  Knowles v. Iowa. Each jurisdiction may decide which offenses are subject to arrest and which ones are not; with that said, as soon as a jurisdiction declares an offense subject to an arrest, courts will not review whether or not it is a minor offense (e.g., failing to secure a seatbelt) and thereby not subject to a Robinson search. Atwater v. City of Lago Vista.
(2)   The police may wait to perform this search, so long as the individual is in custody and the search is reasonable.  United States v. Edwards.  As stated in Edwards: “once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing.”
(3)   The police may offer an arrestee the opportunity to bring certain things to the police station, but, of course, the police are permitted to accompany the arrestee into his home to retrieve these things (e.g., identification). Washington v. Chrismen. There is no need to show exigent circumstances. Washington v. Chrismen. Once there, the police may seize anything that falls within the plain view doctrine, as the police have a lawful right to be there. Washington v. Chrismen.
b.      Limited to grabable space.
(1)   The police may perform a full body search on an arrestee.  The police may reach inside an arrestee’s pockets and even open what is found in the pockets.  United States v. Robinson.  The police may also perform a search of anything within the “grabbing area” of an arrestee (i.e., the area within the arrestee’s immediate control).  Chimel v. California.  What constitutes the “grabbing area” is an objective inquiry.  Chimel v. California.
(2)   Where an arrest is made in a home, the police may search the room in which the arrest is made.  Maryland v. Buie.  The police may search any place inside that room where a person may be hiding, including any “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.”  Maryland v. Buie.  This is a bright-line rule; the police need not show or explain anything further.  Maryland v. Buie. Additionally, where the police have reasonable suspicion to believe there are other people in the home that could pose a danger to them, the police have the right to perform a “protective sweep” of the home.  Maryland v. Buie.  Again, the police may search only places where a person may be hiding.  Maryland v. Buie.  Reasonable suspicion is an objective analysis.  Maryland v. Buie.
(3)   Where an arrest is made outside a home, however, the police may not go inside the home and perform a search therein.  Vale v. Louisiana.
(4)   The police may search a vehicle incident to an occupant’s recent arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe (likely a quantum of
 
evidence slightly less than probable cause) the vehicle contains evidence of the arresting offense.  Arizona v. Gant.