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Criminal Procedure
Rutgers University, Newark School of Law
Green, Stuart

Criminal Procedure Outline

Rutgers School of Law-Newark

Professor Green

Fall 2012

A. The Fourth Amendment

What is a search?

-a search or seizure is an action by the state that violates an individuals reasonable expectation of privacy (REOP)

Katz v. United States (1967)

*FBI agents attached a listening device to phone booth and recorded defendant’s conversations

-Stewart: “4th Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

-Main Test (Harlan Concurrence) to determine the existence of privacy:

1. If the person has exhibited an actual (subjective) expectation of privacy and,

2. That the expectation be one that society is prepared to recognize as reasonable

U.S. v. White (1971)

*Government informant was wearing a wire during conversations with defendant and transmitting them to the police

-The 4th Amendment does not protect against participants of a conversation from passing along the details of the conversation

Smith v. Maryland (1979)

*Whether the installation and use of a pen register constitutes a search within the meaning of the 4th Amendment

-“Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that even if he did, his expectation was not legitimate. The installation and use of a pen register, consequently, was not a search and no warrant was required

Open Fields Doctrine

Hester v. U.S. (1924)

-Entry of an open field does not implicate the 4th Amendment

Oliver v. U.S. (1984)

-An open field may include any unoccupied or undeveloped area outside of the curtilage of a home. An open field need be neither open nor a field

-Entry of an open field does not constitute a search

U.S. v. Dunn (1987)- Dunn test for an open fields question:

-Whether the area in question is so intimately tied to the home itself that is should be placed under the home’s umbrella of 4th Amendment protection

California v. Greenwood (1988)

*Officers searched through plastic garbage bags left on the curb in front of a house for trash pickup

-Objective prong of Katz not satisfied because a person does not have a reasonable expectation of privacy in garbage left outside the curtilage of a home for trash removal because garbage bags are readily accessible

Dog sniff cases

U.S. v. Place

-Trained dogs sniffing luggage does not constitute a search because does not expose “non-contraband” items and is less intrusive

Kyllo v. U.S. (2001)

*Police used a thermal-imaging device aimed at a private home to determine if drugs were being manufactured

-“When the government uses a device that is not in general public use, to explore the details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant”

Bond v. U.S. (2000)

*Border Patrol agents squeezing bags on a bus and felt brick-like objects, which were discovered to be drugs

-This is a search that violated the 4th Amendment because a passenger does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner

-Different from having your bag touched or moved by passengers or employees

Government Trespassing

U.S. v. Jones (2012)

*Whether the warrantless use of a tracking device on a motor vehicle constituted a search and therefore violated the protections of the 4th Amendment

-Attaching a GPS to a car constitutes a search under the 4th Amendment because a vehicle is an effect

-Scalia claims the government was trespassing and quotes Brennan: “Katz did not erode the principle ‘that when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the 4th Amendment.’”

What is a seizure?

U.S. v. Karo (1984)

-A seizure of property occurs when there is some meaningful interference with an individual’s possessory interest in that property

Probable Cause

Brinegar v. U.S. (1949)

-Probable cause to arrest exists where the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed

-While the police need not always be factually correct in conducting a warrantless search, such a search must always be reasonable

Probable Cause and Search Warrants

Spinelli v. U.S. (1969)

-An informant must explain why the information is reliable if the informant came upon the information indirectly. In order to issue a warrant, a magistrate must rely upon detailed criminal activities, which are more substantial than mere allegations of wrongdoing

Aguilar-Spinelli Test (in notes)- abandoned in most places in favor of totality of circumstances test

Illinois v. Gates (1983)

-Reverses the Aguillar-Spinelli test and adopts a “Totality of Circumstances” test to determine probable cause

-Allows courts more flexibility and more power to rely on the specific set of facts

-An informant’s credibility/reliability and basis of knowledge are to be used as guides when considering the totality of circumstances and are not to be exclusive requirements applied in every case

-So long as the magistrate has a substantial basis for concluding a search would uncover evidence of wrongd

ficers immediately before or during the execution of a warrant may require them to cease or narrow their search, notwithstanding the dictates of the warrant. Need to allow latitude for honest mistakes (Maryland v. Garrison, 1987)

Knock and Announce

Wilson v. Arkansas (1995)

-4th Amendment contains an implicit knock and announce rule but it is flexible towards countervailing law enforcement interests

Richards v. Wisconsin (1997)

-Police must have a reasonable suspicion that announcing their presence would be dangerous or futile in order to justify a “no-knock” entry

Wait to Enter

U.S. v. Banks (2003)

-The facts known to the police are what count in judging reasonable waiting time

In Anticipation of a Warrant

Illinois v. McArthur (2001)

*The police refused to allow an individual to enter his home after being informed by his wife that there was dope in the home

-“When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable”

-In this case the restraint was “both limited and tailored reasonably to secure law enforcement needs while protecting privacy interests”

Searching Persons During the Execution of a Warrant

-A warrant may authorize the search of a person, but it should be explicit. A warrant to search a home or other premises does not provide implicit authority to search persons found at the scene, even if the criminal evidence for which the police are looking might be on them

Ybarra v. Illinois (1979)

-The police must have independent probable cause to search the person, as well some justification for conducting the search without a warrant (they must be able to point to an exception to the warrant requirement)

-A person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person

Seizure/Detention of Persons During Warranted Searches

Michigan v. Summers (1981)

-A warrant to search a residence for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted