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Criminal Procedure
Rutgers University, Newark School of Law
Colb, Sherry F.

FALL 2006

– “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.”
– The 4a balances 2 competing values: On the one hand, it recognizes the necessity of investigating crime in order to maintain an ordered society. On the other hand, it seeks to limit police investigation in order to protect the privacy, liberty, and dignity of individuals.
– Purposes of the 4a:
– Protect the public from criminals and miscreants
– Punish
– Rehabilitate
– Separate out the accused guilty from the accused innocent
– Deterrence (specific and general)
– Justice (people shouldn’t get away with something because society has deemed it to be wrong)
– Enforcement of the criminal laws
– Uniformity and fairness
– Express the values of society
1. What is a “search?”
– Unless the government activity is either a “search” or a “seizure,” it is not regulated by the 4a, and therefore does not have to be reasonable.
– Katz v. United States, 389 U.S. 347 (1967) p.86 (Court’s 1st step into defining what constitutes a search)
– Government officials intercepted Katz’s telephone conversations by use of an electronic listening device attached to the outside of a public telephone booth from which Katz placed his calls.
– Government contentions:
(1) There was no search of a person, house, paper, or effect, as those terms are used in the 4a.
(2) There was no seizure, since it was impossible to seize an intangible conversation.
(3) There was no search OR seizure because there was no physical intrusion into a private area — Katz was at a public telephone booth when he placed his calls.
– Court’s response: The Court rejected the Government’s literal interpretation of the 4A. Essentially, the Court looked beyond the words of the 4A to determine what interests the Amendment was supposed to protect. The Court’s answer was that the 4A was designed to protect the legitimate expectations of the people to privacy and security. After Katz, the 4A is not to be read literally as protecting only against a physical invasion of certain protected areas.
– Modern definition of “search” and “seizure:” The term “search” is triggered whenever the state intrudes in any way upon an individual’s protected interest in privacy. The term “seizure” is triggered whenever the state intrudes in any way on a protectable individual interest in property or security.
– Concurring opinion of Justice Harlan: Justice Harlan

of the 4A.
– The Court held that people do not have a reasonable expectation of privacy in their friends — the theory is that if you think someone is an informant you won’t talk to them, BUT if you think he’s not an informant it doesn’t matter if he’s wearing a wire because you’re going to talk to him anyway.
– Reasonable Expectation of Privacy:
– There are 2 ways that the Court thinks about whether an expectation of privacy is reasonable.
(1) Empirically reasonable: Is it realistic? (i.e., What are the odds that my expectation is going to be frustrated or met?)
(2) Normatively reasonable: Aspirational (i.e., Should people be able to have privacy under these circumstances?
Open fields, cartilages, and beyond: When is the 4A implicated?
– Oliver v. United States, 466 U.S. 170 (1984) p.114
-Police received an anonymous tip that marijuana was being grown on Oliver’s farm; police drove past his house to a locked gate with a “No Trespassing” sign; officers found a field of marijuana over a mile from Oliver’s home.
-Majority’s arguments (per Justice Powell):
(1) It is not a “person, house, paper, or effect”; and