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Criminal Procedure
Rutgers University, Newark School of Law
Thomas, George C.

Criminal Procedure Outline – Fall 2013
Professor George C. Thomas
What is a search?
Original “Trespass” Analysis: Pre-1967 the Court treated Fourth Amendment “search” questions exclusively as a property-focused inquiry.
·         Olmstead (1928) and Goldman (1942): the absence of physical penetration of personal property forecloses Fourth Amendment inquiry.  Theory was that property rights dictate whether government has the right to search and seizure. 
·         Silverman (1961): Fourth protects physical seizures as well as recording oral statements without common law trespass. Showed that the Court was preparing to look beyond the trespass analysis.
Katz & “Reasonable Expectation of Privacy” Analysis: Katz v. US (1967): discredits Olmstead and Goldman theory that Fourth Amendment search is dependent on rights in tangible property.  Instead formulates the notion that the Fourth Amendment protects against searches where D justifiably relied upon having a privacy interest.
1)     In Katz, the recording of Ds conversation in a phone booth was held to violate the Fourth because D justifiably relied upon having privacy while in the phone booth.  The fact that the recording device did not penetrate the booth has no constitutional significance.  
2)     Harlan’s Concurrence in Katz formulates the two-prong test of whether an expectation of privacy is entitled to Fourth Amendment Protection.
·         subjective: the individual must have a subjective expectation of privacy; and
·         objective: must be an interest society is willing to recognize as “reasonable”
Post-Katz Jurisprudence
·         Objective Prong Standard: to say a person’s belief or expectation is “reasonable” means that his belief or expectation is one that an ordinary person might possess. 
o   In the privacy context, an expectation of privacy is “reasonable” when a “reasonable person” would not expect his privacy is at serious risk.  It implies an empirical component that as probability there will be a privacy incursion.
·         Three factors of importance in objective prong analysis
1.       The site or nature of the property inspected.  E.g. open fields fall outside 4A protection, but the “curtilage” of one’s home is entitled to greater protection.
2.       The extent to which a person has taken measures to keep information, property, or an activity private.  Two rule are asserted from this:
a.       A person cannot possess a reasonable expectation of privacy in that he knowingly exposes information to the public; and
b.       One who voluntarily conveys information or property to another person “assumes the risk” that the latter individual will transmit the info or property to the government. 
3.       The degree of intrusion experienced.  The more intrusive, the more likely a search invades one’s reasonable expectation of privacy. 
False Friends: No “search” occurs if D voluntarily gives statement to X, a person feigning friendship with D but who transmits the statement to the government. 
·         In US v. White the SC held that the Fourth Amendment does not protect against information that was voluntarily spoken when the person the information was intended for was wearing a wire.  The rationale is that the challenge fails the second prong of Harlan’s concurrence.  Society is not willing to protect one from “trusting the wrong person.”
o   Granting the exclusionary rule in instances of voluntarily communicating with a person wearing a wire would be a disservice to the legitimate interests protected by the Fourth
o   It would be impractical to disallow voluntary recordings because they are more reliable than the alternative, which is simply taking an informant’s word.
o   Warren’s dissent fears that allowing admission of recorded evidence without obtaining a warrant could lead to excessive government oversight.  Alludes to an Orwellian Big Brother State.  States that overturning On Lee would not prevent use of all recordings but will require a warrant police to get a warrant before using them. 
Technological Information Gathering
·         In General: In the post-Katz era, the Court has stood by the rule that viewing an object in plain view from a lawful vantage point–even if though use of a technology–does not constitute a search. 
o   Use of modern technology requires a court to consider the nature of the technology used and the nature of the place being observed
·         Pen Registers: Smith v. Maryland held that the use of a pen register by the phone company, at the government’s behest, to record numbers dialed from a private residence is not a “search” within the meaning of 4A.
o   One does not have a legitimate expectation of privacy that their phone number will remain private when placing a call. 
o   The use of a “pen register” to determine the suspect phone number was not considered a search under the Fourth because people consent to having their phone number known by the phone company.
§  People presumably have a level of awareness that the phone company may identify the source of phone calls, albeit without actually knowing what a pen register is.
§  Petitioner’s subjective expectation that the numbers he dialed would remain private, even if subjectively reasonable to himself, is not “one that society is prepared to recognize as reasonable.
·         Thermal Imaging: Kyllo v. US.
o   Court held 5-4 that the use of a thermal-imaging device aimed at a private home from a public street is a “search” under 4A.  Scalia writing for the court emphasized that use of such technology that relays information obtained without physical intrusion into a constitutionally protected area constitutes a search if such technology is not in general public use. 
o   Dissent would distinguish “through the wall” surveillance form “off-the-wall” surveillance.  This case involves off-the-wall in that the only information gathered (heat radiation) was exposed to the general public and the surveillance did not reveal any detail of the inside of the dwelling. 
·         Global Positioning Systems: Jones v. US
o   Court held unanimously that the installation and use of GPS tracker on D’s car for 28 days constituted a search. 
o   Scalia, plurality: not a Katz issue.  Historically, the Court’s Fourth Amendment jurisprudence was property-based and reflected the notion that a person had a right to be free from unreasonable searches and seizures in their persons, houses, papers, and effects.”
o   Placing the device on D’s car constituted a trespass of D’s property.  The Katz reasonable expectation of privacy test is not a replacement for the trespassory view of 4A searches, but rather added to the original theory. 
§  The minimum thus is still whether the police conduct was a trespass. 
o   Alito Concurrence: Apply the Katz test.  States that “reasonable expectation of privacy” under Katz is subject to change as technology advances and public norms and expectations regarding such change too. 
§  State that while short term use of GPS tracking may accord with expectations of privacy, the long term use here infringes a reasonable expectation of privacy. 
Other Search Techniques
·         Aerial Surveillance: non-sense enhance aerial surveillance does not constitute a search if the surveillance: (1) occurs from public navigable airspace; (2) is co

bagging cocaine in X’s house did not violate Ds’ 4A rights they did not have a legitimate expectation of privacy. 
o   They focused on three factors: (1) the purely commercial nature of the transaction; (2) the short period of time on the premises; and (3) the lack of any previous connections between Ds and X.
o   Dissent (Ginsburg) argued for a broader standing rule for invitees: that an invitee should always share his host’s shelter against unreasonable searches and seizures no matter the reason for them being there, as long as it is with the owner’s consent.
§  Breyer agreed with dissent but found that the surveillance was taken from a publicly viewable vantage point, so concurred in the judgment.  
o   Kennedy, the swing vote, concurred, arguing that Ds connection was insubstantial to warrant 4A protection, stressing that 4A rights must be connected to the place searched.
·         Lack of Legitimate Expectation of Privacy: In Rawling v. Kentucky (1980) the court held that a person may not challenge a search of an area which she has no reasonable expectation of privacy even though she has a possessory interest in the property seized during the search.
o   X and R were guests; X was searched and found to have marijuana, which R claimed ownership of
o   Held that R could not contest the search of X’s purse on the basis of his ownership interest in the property seized.  Court rejected the property concept of 4A search protection. 
o   R did not have a legitimate expectation of privacy in the purse because (1) he not know X more than a few days; (2) R had never before sought or received access to X’s purse; (3) R did not have a right to exclude others from the purse; (4) Y, a longtime friend of X, had free access to the purse earlier that day; (5) the nature showed no precautions to maintain his privacy; and (6) an admission that he had no expectation of privacy in the purse.
·         Brendlin v. California (2007): a person is seized by police under 4A when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through means intentionally applied. 
o   ***The upshot is that there is no seizure without actual submission. 
o   Based on this, during a traffic stop, it’s said that the officer seizes all the passengers, and not just the driver. 
o   Fleeing suspects are not seized because there is no submission to the assertion of authority
Probable Cause
·         Probable cause 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:
o   in the case of an arrest, an offense has been or is being committed by the person to be arrested; or
o   in the case of a search, a specifically described item subject to seizure will be found in the place to be searched.