Crim Pro is another form of Con Law where Justices and the Constit help us understand the evolution of Jurisprudence. – Must reason by Analogy and distinction. New rules, but same rationales.
Prior to 20th century, states developed own laws and ended up violating rights
– was tension btwn fed and state control of law enforcement
– needed rules to minimize errors that developed as a result of all players having discretion and internalized biases
– must be a BALANCE – officers have their own biases and will assume crime took place, but need to ask the proper questions, but not overcheck discretion to protect the “victims”
Hard Rules (generally applicable to all cases) v. Norms (fact specific)
– With norms need to look at factors and reason by analogy
– Rules require a particular result – if x, then y
– Norms are softer and organize thinking to come to result – if x, then can carefully consider whether y
– Judges have discretion and they must make choices! Most cases present judges with a range of outcomes that are plausible
o The range of choices is deduced by analogy, outcome is deduced by the factors in each case
§ Factors they consider
· Free Democracy – Some have their tipping point more at security, and others at individual rights
· Federalism – that Constit is just a floor, but states can develop their own statutes. May not rise to a fed amend level
· Racism – this is an illegitimate factor
o Judges balance:
§ Liberty v. Security and
§ Fed Supervision v. State Autonomy
o Overarching themes that are useful tools to minimize error and to spot issues. Judges are concerned with:
§ Accuracy
· Way a jury weighs evid, police devices and procedures/processes
§ Fairness
· Equality of rich/poor, knowledge of rights – can be controversial, esp after accuracy is determined
§ Efficiency
· Needs to be balanced with fairness and limiting the govnt norms (like after 911) – need to exchange some liberty as a society to allow the govnt to protect
§ Limiting Govnt
· Just how much to empower the govnt to be able to provide us with protection. Privacy is so valuable and there is a risk that if we give govnt overbroad discretion, the benefits will not pay off.
– Frame understanding by:
o Reasoning by analogy process
o Underlying values a rule was meant to protect
Fourth 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…”
– Doesn’t tell us what is a search or seizure, what is reasonable, limits of the scope, circumstances for providing a warrant
– Is ambiguous and controversial
o Need to reason by analogy and have facts at disposal. (think about hockey sticks)
– Pre-Katz approach to the 4th amend
o Property law and whether there was an unlawful trespass
o Under Olmstead case, it’s a trespass question – question is was there some trespass within the bounds of the building
§ Can depend on restriction only to residents or if it is open to the general public
§ Katz and after looks more at reasonable expectation to privacy, not so much trespass
· In example where one may have an expectation of privacy that no one will look into a window of home may not be a violation according to Katz bc it must be a REASONABLE expectation.
Katz v. US
– Issue: Is the attachment of a listening device to the outside of a public telephone booth a search and seizure within the meaning of the 4th amend
o Yes. The amend protects a person from search and seizure if he has a justifiable expectation of privacy, regardless of whether an actual physical trespass occurred – protects PPL and NOT places
o The 4th amend is a personal right you take with you.
§ But it can be diminished depending on where you go (like an airport)
o Harlan Concurrence talked about 2 prong test:
§ Subjective expectation to privacy
§ Objective view – Whether or not society views expectation as reasonable
o Must see what indiv did to manifest his subjective expectation of privacy (fact specific)
§ Pulled the door shut, etc
– In Katz, Stewart said that what a person knowingly exposes to the public (even in home) is not a subject of protection, but what he preserves as private may be constit protected.
– Police don’t need a warrant to search something that was knowingly exposed to the public
o But what is Public?
o It seems that everything you do gets exposed to a third party, like on a cell phone
– A search can be a misnomer – it’s when a govnt does something to implicate a privacy right
– If there is a search, doesn’t mean it was a violation. Must ask the next question of did the govnt have prob cause or a warrant to conduct search
o Ex. if someone had a severed head in an open bag, there was a search, but no privacy interest. (also search must be done by a govnt agent on behalf of the govnt for it to be a search)
– SO, what is ‘knowingly” and “public”
o Purposefully is knowing AND with intent – it’s conscious object
o Knowingly means you’re aware it may be exposed to the public, but not purposeful
§ Phone calls, credit card, e-mails are knowingly exposed through servers
o Knowing exposure to one = knowing exposure to all
§ If it’s knowingly exposed, then are aware of a possibility that it can get to the govnt. Because it is knowingly, it won’t be protected
– What about lip reading in a glass booth?
o P would argue that lips were knowingly exposed bc was a glass booth
o But did indiv have a reasonable expectation of privacy bc of the manifest action to close door
o Are diff ways to reason the issue – both focuses will be argued – the privacy at large and specifically what is said, like
d the beeper cases relied on limited capabilities – if the thing has a limited use and are less intrusive than a full-scale search, may be ok)
o “any interest in possessing contraband cannot be legitimate, and thus, govntal conduct that ONLY reveals possession of contraband compromises no legit privacy interest.
Open Fields/Curtilage Doctrine
– Oliver = Open Fields = bright line rule that an open field does not have expectation of privacy
– Dunn = Curtilage = case-by-case analysis with factors
Open Fields:
– areas beyond or just adjacent to the home (shed protected by fence, porch)
– Oliver case
o Demonstrates a move from Katz bc it distinguishes houses, persons and effects that Katz doesn’t recognize
o An open field may include any unoccupied or undeveloped area outside of the cartilage of a home. It doesn’t need to be open or a field.
§ Clear rule that an expectation of privacy in an open field is never legit
o In Oliver, was a tip that marijuana was growing on a farm
§ Just bc indiv had a no trespassing sign, manifesting expectation of privacy, but if you expose something to the public, 4th amend protections not triggered
§ police could have observed the same thing from a different vantage point
· so need to determine if at lawful vantage point at 400 ft in the air if they could have seen the same thing – One lawful exposure strips from any reasonable expectation privacy!
o Searches aren’t about place, but Oliver is about the intimate activity that is intended to shelter from govnt interference
Curtilage
– the land immediately surrounding the home – the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life (would you shower there?)
– Factors to Test
o Proximity to home
o If it’s included within a home enclosure
o Nature of its use
o Steps taken to prevent onservation
– Dunn case
o 1st question is is it so intimately connected to the home
o Then, Think about the above factors to determine if the area is more like a home or something else
§ NO curtilage if the odor of cooking drugs goes into the pubic or if large equipment is being used in the place that would never be expected to be used in a home
o In Dunn, no search bc it was an open field, not a curtilage
