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

Criminal Procedure: Investigation Outline
 
I. Basic Principles
A. A Criminal Case
B. The Nature of the Procedural System and the Sources of Procedural Rules
C. Two Special Aspects of Constitutional Law: The Incorporation Doctrine and Retroactive Application of Constitutional Decisions
1. Under the doctrine of incorporation, a constitutionally-based decision will bind both the states and the Federal government. 
2. Retroactivity determines whether the Court’s decision will have any effect on official activity occurring before the date of the decision.
3. Duncan v. Louisiana – Incorporation Case
4. Teague v. Lane – Retroactivity Case
a. Made Miranda prospective, not retroactive at all
 
II. The 4th Amendment: Searches and Seizures of Persons and Things
A. Intro to the Fourth Amendment
1. The 4th Amendment imposes limitations on the police when gathering information, evidence and suspects. This is a right against unreasonable government searches and seizures (privacy right – property based).
2. Current 4th Amendment does NOT protect email, cell phone, lockers, cars and bank accounts. Only looks out for GOV’T intrusions on privacy!
3. Text – There are TWO clauses in the 4th A
a. Reasonableness Clause – Secondary, default if warrant clause does not answer the question
b. Warrant Clause – Primary and dominant
4. “The People” as a Limiting Term – US v. Verdigo: Mexican arrested in US, police conducted search of his home in Mexico. Did not receive protection of 4th A b/c 4th A does not apply to the search of property owned by a non-resident alien and located in a foreign country.
a. If the home had been in the US, the 4th A would have applied (dicta).
5. Purpose – To protect against “general warrants”
6. The Amendment and the Exclusionary Rule – There are two questions when thinking about 4th A problems:
a. What is the privacy interest? Does the 4th A prohibit this kind of conduct?
b. What level of procedural protection do you get? Whether the evidence obtained by means of a 4th A violation should be available as proof in a criminal case?
c. Most cases assume that the remedy for an unconstitutional search and seizure is exclusion, though the resolution of the 4th A questions in these cases in not dependent on exclusion. 
 
B. Threshold Requirements for Fourth Amendment Protections: What is a “search”? What is a “seizure”?
1. The Reasonable Expectation Of Privacy Test:
a. Katz v. United States –
i. Whether government investigative activity rises to the level of a search? (Remember searches and seizures are treated differently!)
b. Facts: Telephone booth case – recording a conversation while person in booth is on the phone.
c. Transformed the concept of the 4th A from places and property to protections of privacy!
d. Reasonable Expectation 2 prong test (Harlan’s Concurrence): You are entitled to 4th A protection if:
i. Need to find that the person exhibited some type of Subjective Privacy Interest
1. Notion of Waiver – if you by your own conduct manifest that you do not expect something to be private, than it will not be treated as private (i.e. no lock on your locker).
ii. Need to show that this is a privacy interest that society will recognize as legitimate.
e. If the 4th A applies, then there is a presumption that you need a warrant. They did not obtain a warrant in this case and so the government conviction was reversed.
f. Privacy in General:
i. No legitimate privacy interest in illegal activities
ii. Yes there is legitimate privacy without probable cause
iii. Legitimate interests held by all citizens: interest in being free from physical disruption and inconvenience, interest in keeping such info that may be personal or embarrassing private, and interest in control over and use of his property.
2. Interests Protected by the 4th A After Katz
a. The Court has held on several occasions after Katz that there is no legitimate privacy interest in illegal activity.
b. Why did Katz receive protection? Probably because the gov’t was not certain that his activity was illegal until officials listened to the conversations.
3. Applications of Katz Principles
 
              REASONABLE EXPECTATION TEST – IS THE GOV’T CONDUCT A SEARCH?
                     1. Has the individual manifested a subject expectation of privacy?
                     2. Is the expectation one that society is prepared to recognize as legitimate?
 
a. Subjective Manifestation:
i. Individuals must take affirmative steps to protect their privacy interests; otherwise, a police inspection will not constitute a search due to fai

eave on curb, anyone can take it.
· 2nd Guiding notion: voluntarily turning into over to 3rd party can be turned over to police and not be a search.
vi. Aerial Surveillance:
1. California v. Ciraolo
· Built huge fence to keep people out but they were still able to see from above. Police are in plane using camera.
· Held that mere fact that individual took measures to restrict activities does not preclude police from looking from overhead. Anyone could fly over and see it.
2. Florida v. Riley
· In helicopter hovering over property.
· held: area was available to public, so was available to police as well.
3. – 4th A not violated by aerial observation of a fenced-in backyard
vii. Manipulation of Bags in Transit:
1.  – Bond v. US
· D was on bus and it stopped at checkpoint, after officer checked he started to feel bags and squeezed D’s bag, felt brick shaped object and it was drugs.
· Holding: physical manipulation of passengers luggage by police is an impermissible search. Did the individual have an expectation of privacy and was expectation one that society will recognize as reasonable. Here he tried to preserve privacy by using opaque bag and placing it above his head. he wasn’t expecting it to be handled in exploratory manner like here.
· Draws a distinction between physical manipulating and touching. 
d. Investigation That Can Only Reveal Illegal Activity:
i.  An investigative activity is not a search if it can only reveal illegal activity.
1. Canine Sniffs – Not a 4th A search because it is limited to discovering only a small amount of knowledge (i.e. drugs). No Reasonable Expectation of Privacy in illegal activity.
· US v. Place
a.       Dog Sniff is okay because it doesn’t touch and only exposes illegal items and contraband (drugs). Only determines what is bad, no privacy is being invaded here.