Criminal Procedure Synthesized Outline
Professor Kyle Graham
Fall 2011
FOURTH AMENDMENT
Introduction
[1] 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, 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.”
[a] Generally a person can be searched only if there is reason to believe that person committed a crime or has evidence of one.
[b] Illinois v. McArthur [2001]: Central requirement of prohibition of “unreasonable searches and seizures” is reasonableness.
[c] Balance privacy interests protected by the Fourth Amendment with the government’s need for effective law enforcement techniques.
[d] Fourth Amendment applies to government officials [or those acting in concert with the government]; does not apply purely to private conduct.
[e] Only applies within the United States. United States v. Verdugo-Urquidez [1990]
What is a Search That Implicates Fourth Amendment Protections?
[1] Olmstead v. United States [1928]: Supreme Court held that electronic eavesdropping without a physical trespass was not a search within the meaning of the Fourth Amendment but rejected this in Katz v. United States. SEE Olmstead below.
[2] Katz v. United States [1967]: [Justice Stewart] Seminal case on associating a search with a reasonable expectation of privacy. D was convicted for transmitting wagering information by telephone from L.A. to Miami and Boston in violation of a federal statute. FBI agents had been electronically eavesdropping his calls that were placed on a public phone. Court of Appeals rejected that D’s Fourth Amendment rights were violated because “there was no physical entrance into the area occupied by D.” General right to privacy is the right to be let alone by other people, is like the protection of property and is left largely to the states. Rejected phone booth as being a “constitutionally protected area.” The Fourth Amendment protects people not places. Holding: Putting a microphone atop an enclosed public phone booth to eavesdrop is a search. Rule: Two-prong inquiry: [1] Whether the individual has manifested a subjective expectation of privacy in the object of the challenged search; and [2] is society willing to recognize that expectation as reasonable. Reasoning: What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. His right was shed simply because he could be seen. Since people are protected not places, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure. Just because the officers complied with Olmstead doesn’t mean it’s retroactively legal. Search can still be deemed unlawful even if facts show a warrant would have been granted, as it would have been here. SC has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end. Failed to meet requirement of antecedent justification. Knowingly exposes to the public [not a subject to Fourth Amendment protection]. Uninvited ear.
[a] Exceptions: [Allowing search and seizure without prior approval] [1] Incident to the arrest; [2] Hot pursuit; [3] Suspect’s consent.
[3] “Reasonable expectation of privacy” is inherently vague and there is the concern that the government could undermine it just by making clear that people should not expect privacy in certain circumstances. Issues here with reasonableness have to do with visibility of the phone booth.
[a] Expectation is based on the person not on the place
[b] Different approaches:
[i] Community standards approach – what is reasonable
[ii] Reasonable person test involves the community standard
[iii] Permission-based test
The “Reasonable Expectation of Privacy” Requirement I
[4] Open Fields
[a] Oliver v. United States [1984]: “Open fields” doctrine permits police officers to enter and search a field without a warrant. Narcotics agents of the KY State Police went to a farm to investigate if marijuana was being grown there; there was “No Trespassing” sign and a footpath led around one side of the gate; agents walked around gate and someone standing in front of a camper shouter “no hunting is allowed” and officers yelled back they were police officers; resumed investigation and found a field of marijuana a mile from D’s home. D was arrested for manufacturing a “controlled substance.” Confusion in the lower courts as to whether his field was “open” since it was not visible from the public’s eye, had “no trespassing” signs at regular intervals and was locked. Hester v. United States said the rule was that the Fourth Amendment “is not extended to the open fields.” Open fields are not effects, like documents, property, etc. Rule: The government’s intrusion upon open fields is not one of those “unreasonable searches” proscribed by the text of the Fourth Amendment. Reasoning: Fourth Amendment protects what the public is prepared to recognize as reasonable. An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. No intimate activities occur in open fields so no need for protection there and they can be viewed from the air so there’s no reasonable expectation that society can recognize. Expectation of privacy related to property interest that can be searched and seized has been discredited. Society is not prepared to recognize a reasonable expectation of privacy in an open field. An open field is not within the curtilage of the home that deserves Fourth Amendment protection. “Persons, houses, paper and effects…” and this open field is not part of that which is protected. There was an earlier draft of the Constitution that included protection of this type of area of the home. There is a reasonable expectation of privacy in areas immediately surrounding the home.
· Justice Powell’s factor test: [who was the majority/concurring opinion]
· Intention of the Framers of the Fourth Amendment
· Uses to which the individual has put a location
· Societal understanding that certain areas deserve the most scrupulous protection from government invasion
· Justice Marshall test
· Distinguishes between closed fields and open fields
· Reasonable expectation of privacy is a standard not a rule
· Test: “A clear, easily administrable rule emerges from the analysis set forth above: Private land marked in a fashion sufficient to render entry thereon a criminal trespass under the law of the state in which the land lies is protected by the Fourth Amendment’s proscription of unreasonable searches and seizures.”
[b] United States v. Dunn [1987]: Clarification of distinction between open field [unprotected] and curtilage
[c] ple v. Chavez [2008]: Holding: [1] A police officer’s position in front of a side gate of fence at front of residence did not violate D’s reasonable expectation of privacy in regard to observations made there; [2] officer’s observation of a handgun on the other side of fence was not a search under the Fourth Amendment; and [3] exigent circumstances justified officer’s warrantless entry of side yard to retrieve handgun. Reasoning: [1] When police come on to private property to conduct an investigation, their movements are restricted to placed where visitors could be expected to go and observations made from such vantage points are not covered by the Fourth Amendment. Here, it was reasonable for officer to go to the side after D didn’t respond to his calls. [2] Officer’s observation of the gun was not a search because the gun was viewed in plain sight. Officer raised himself up on his toes to see and others in the area would be able to see into D’s yard from a window next door, a deck, etc. Officer’s use of the flashlight to improve his vision doesn’t affect the plain viewing of the gun. Illumination of something the officer could see whether by natural light, or artificial is fine. [3] Officer did not see the child when he was interviewing the GF so he could naturally have assumed he was with his father, D. Officer did no more than was necessary to protect both himself and the child he had reason to believe was in the residence. Disposition: Dismissal is reversed and the trial court is directed to vacate its order granting the motion to suppress and to enter a new order denying that motion.
[i] Anyone who was over 6 ft. tall would have been able to see into the yard. Maybe it would have been a different analysis if the fence was 7 ft. or higher.
[5] Aerial searches
[a] The Court has found that such police conduct, observing conduct in a person’s home and curtilage by use of low-flying planes, is not a search within the meaning of the Fourth Amendment and need not comply with the Fourth Amendment’s requirements.
[b] California v. Ciraolo [1986]: Overhead surveillance by place at 1000’. Holding: Not a search within the Fourth Amendment. Issue: Whether the Fourth Amendment is violated by aerial observation without a warrant from an altitude of 1,000 feet of a fenced-in backyard within the curtilage of a home. No. Officers couldn’t plainly observe marijuana crops growing in D’s yard because of high fences so they obtained a plane and observed marijuana growing 8-10 feet high and took photos. Officers obtained a search warrant and the plants were seized. Based on Katz inquiry, D reasonably assumed he had privacy relating to observations of his backyard; however a two-level bus or policeman perched on a truck may have been able to see his crops so not sure it’s reasonable. Second part of inquiry is “whether the government’s intrusion infringes upon the persona and societal values protected by the Fourth Amendment. The area was right next to D’s home and surrounding by high fences so it seems reasonably to be curtilage. However, if officers observe something in the public, they are not required to shield their eyes. Officers here were operating in public navigable airspace and observed D’s crops in a non-intrusive manner. What they saw provided necessary basis for the warrant and D’s expectation that his garden was protected from such
isual surveillance [since the container went to a private residence]. Rule: A search of a house, if conducted using a beeper that helps officers obtain information they could not obtain without visual inspection, should be conducted pursuant to a warrant. Tracking a beeper a “search” to the extent said tracking extends to areas not visually accessible from proper vantage point.
[c] Distinction between Karo and Knotts: Visual tracking of the beeper was possible almost the entire way up to D’s home and this was okay whereas in Karo it was not once the beeper was able to track D’s location and evidence’s location in areas the public couldn’t see.
[d] United States v. White [1971]: Issue: What is sufficient “public behavior?” Whether there was a search when a government informer carrying a radio transmitter engaged in a conversation with a suspect. Holding: This was not a search because D had no reasonable expectation of privacy in the conversation. Reasoning: There would be no difference if police agent wrote down everything D said after the conversation and testified as to it. No difference if police agent electronically transmitted the information or recorded the information. Rule: No reasonable expectation that confidant isn’t in cahoots with law enforcement and “wearing a wire” [or, per later cases, a camera].
[e] California Bankers Assn. v. Schultz [1974]: Inspection of bank records are not searches under the Fourth Amendment because banks are parties to any transactions and thus have knowledge of them. Because some others in the government will see the records, there is no reasonable expectation of privacy in them.
[f] Smith v. Maryland [1979]: Issue: Whether the installation and use of a pen register constitutes a “search” within the meaning of the Fourth Amendment. Rule: Whether the individual by his conduct has exhibited an actual [subjective] expectation of privacy. [2] Whether the individual’s subjective expectation of privacy is one that society is prepared to recognize as reasonable. Holding: No reasonable expectation of privacy in information “voluntarily turned over to third parties.” Reasoning: Pen register is different because it does not acquire the content of communications. D’s claim that he had a reasonable expectation of privacy regarding the numbers he dialed on his phone is rejected. All telephone users know they are conveying the phone numbers to the phone company and that the company can record the numbers permanently. Site of the call is immaterial because his conduct could not have been calculated to preserve the privacy of the number he dialed. Rule: Information voluntarily turned over to third parties does not give rise to a reasonable expectation of privacy. Pen register not a “search” – but federal statute offers safeguards [i.e., criminal penalties, though not suppression]
[g] 18 U.S.C. § 2131: Congress enacted a statute that prohibits the installation or use of pen registers except relating to the operation, maintenance, and testing of a wire or electronic communication service or to the protection of the rights or property of such a provider without a court order. Can be done without a court order if there’s an emergency involving immediate death or serious bodily injury. Patriot Act allows AG to obtain authority for a pen register for any investigation not concerning a citizen or resident or to protect against terrorism as long as it the conduct does not rest solely on First Amendment activities.
[9] Use of Dogs to Sniff for Contraband
[a] United States v. Place [1983]: Court held that a canine sniff of closed luggage is not a search. Sniff does not expose anything. If a sniff is a search, then seizure of luggage would have to be justified on probable cause at least. A sniff does not require opening the luggage or exposing what would otherwise remain hidden from public view.
[b] Illinois v. Caballes [2005]: Issue: Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop. Reasoning: A seizure that is lawful at its inception [traffic stop] can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. Official conduct that does not compromise any legitimate interest in privacy is not a search subject to the Fourth Amendment. Sui generis because it only discloses the presence or absence of drugs but does not actually expose them. During a traffic stop, a sniff detection does not implicate legitimate privacy interests. Rule: A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.
