Criminal Procedure Outline

CRIMINAL PROCEDURE
Spring 2007
 
____ = Background Precedent
____ = Current Law/ Test/ Standard/ Analysis
­­­­____ = MEMORIZE
 
I. 4th Amendment
A. Threshold of the 4th Amendment Right to be Secure Against Searches.
Olmstead v U.S.
• used the trespass doctrine, Brandeis dissent is good/foreshadowing
Katz Test: deals with determining what is or is not a ‘search’
and therefore whether or not 4th amendment protections apply
Katz v United States
• Protects people not places, no more trespass doctrine
• Test from the Concurrence
• Holding: “Governments activities in electronically listening to and recording the petitioners words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a search and seizure within the meaning of the Fourth Amendment”
º “Trespass doctrine” of Olmstead and Goldman are no longer controlling. The Fact that the electronic device did not penetrate the wall of booth can have no constitutional significance.
• 4th amendment protects individual’s privacy against some types of governmental intrusion
º protects people, not places
º “not a general constitutional right to privacy”
• Case reinforces the per se unconstitutionality of warrantless searches
• Katz Test for when 4th Amendment applies: Two-fold Requirement-
            1) person exhibited an actual (subjective) expectation of privacy
            2) expectation is one that society is prepared to recognize as “reasonable”
(Dissent: argues that constitutional interpretation must be historically based. shouldn’t modernize/rewrite the 4th because it is more popular. 4th amendment is not about privacy, interpreting 4th’s protections too broadly, dangerous)
 
United States v White
• Perpetrator’s misplaced trust is no bar of evidence (shows weakness of Katz test)
            º didn’t expect person to tell gov’t, but Ct doesn’t put much weight on this.
            º Harlan even recog limitations to subjective prong
• Holding: “not prepared to hold that a D who has no constitutional right to exclude the informer’s unaided testimony nevertheless has a 4th am privilege against a more accurate version of the events in question”
            º 4th A ruled by fluid concepts of “reasonableness”
º activities and reports which are “reasonable” investigate efforts, cant then be considered “unreasonable” unconstitutional searches and seizures.
º No different result is necessary if instead of transcribing the conversation afterwards (perhaps imperfectly) the same conversation is recorded or broadcasted. No distinction substantial enough to warrant constitutional recognition.
•If conduct of agents operating without electronic equipment do not invade the D’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of conversation received from an agent who D is taking a risk by talking to.
º There is always a risk that someone will talk to the police.
(Dissent: argues that 3rd party bugging undermines the confidence and security in dealing with one another that is characteristic of individual relationships betw