Criminal Procedure – Mark Alexander – Fall 2011
· The 4th A of the U.S. Constitution secures certain rights for the people
o The Right of the people to be secure in their persons, houses, papers & effects, against unreasonable searches & 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.
o The 4th A doesn’t
§ Apply to property owned by non-resident alien located in a foreign country
§ Limit government action against aliens taken outside the United States
o 2 main parts of the 4th A protections
§ Unreasonable Searches
§ Warrants
o Only applies against the Government
o If the government activity is not a search nor a seizure, the activity doesn’t have to be reasonable
· People have 3 Legitimate Interests that could be impaired by a government intrusion
o 1. Interest in being free from physical disruption & inconvenience
o 2. Certain information, even though not indicative of criminal activity, may be personal or embarrassing
o 3. 4th A prohibits unreasonable searches & seizures of property; person has legitimate interest in control over & use of his property
· What to do when someone’s constitutional rights are violated?
o Exclude the evidence obtained unconstitutionally
o Exclusionary Rules
· Reasonable Expectation of Privacy
o See Katz v. U.S.
§ FBI agents used listening device in a phone booth
§ They heard Katz conversation about gambling
· Used this evidence to convict Katz
§ Whether “physical penetration” of constitutionally protected area is necessary before search & seizure can be said to violate 4th A
§ The 4th A protects people not places
· à 4th A doesn’t turn upon presence or absence of physical intrusion into any given enclosure
§ Test (from J. Harlan’s concurrence)
· 1. Person exhibited actual subjective expectation of privacy
· 2. Society deems expectation of privacy to be reasonable
· Applying Katz
o If outside curtilage à no expectation of privacy
o If w/in curtilage of home à expectation of privacy
o See Dunn for curtilage
o See Oliver for Open Fields Doctrine
· Dunn à Curtilage
o Police intrusion ≠ search
o barn located 50 yds from fence surrounding residence on 200 acres à outside curtilage
o 4 factors in determining curtilage
§ A. proximity of area claimed to be curtilage to the home
§ B. whether area is included w/in enclosure surrounding the home
§ C. nature of the uses to which the area is put
§ D. “steps taken by the resident to protect area from observation by people passing by”
· Open Fields Doctrine
o Open fields distinguishable from constitutionally protected areas like houses
o Oliver: person doesn’t have legitimate expectation of privacy in an open field
§ Oliver had subjective expectation of privacy however society not prepared to accept his interest in privacy as legitimate
o Only the curtilage warrants 4th A protections
o Aerial Photographs from navigable airspace is not a search
§ Dow Chemical Co. v. United States
· Subjective Manifestation (1. From Harlan’s Katz test)
o Individuals must take affirmative steps to protect their privacy interests
§ Otherwise police inspection doesn’t constitute a search due to failure to satisfy the “subjective manifestation”
o Investigation of abandoned property doesn’t trigger 4th A protection
· No Legitimate Interest in Privacy à society deems expectation of privacy to be unreasonable
o Information voluntarily turned over to 3rd parties
§ Dialing telephone numbers
§ Garbage
· Greenwood: Expose garbage to public sufficiently to defeat 4th A protection claims
o Public & police could go through their trash
· Purvis: officer had maids clean hotel room and search for things (garbage on floor) search was ok
o Illegal Activity à no reasonable expectation of privacy
· Bond v. United States
o Whether officer’s physical manipulation of passenger’s luggage violated 4th A rights
§ Officer felt brick shaped object, then passenger gave permission to search
o Subjective & Objective Expectations of Privacy
§ 1. Individual: sought to preserve privacy by using non-see-thru bag & putting in overhead compartment (privacy)
§ 2. Society: reasonable expectation of privacy b/c fellow passengers may touch his bag but not in exploratory manner that the officer did
· Dogs
o Dog sniffing à no intrusion, only finds presence of illegal substances
o Not perfect, may be unreasonable in situations where the dog is aggressive towards the person being searched
· Thermal Scanner
o Kyllo
§ Used heat lamps to grow pot
§ Thermal imager showed super hot house (3 am)
· Officers concluded that it must be grow lamps
§ Used thermal imaging to get a warrant and they searched and found the lamps & pot
· GPS Tracking…
· Role of the Magistrate & Warrants
o Johnson v. U.S.
§ 4th A not to deny law enforcement from drawing usual inference
· Protects by requiring inference to be drawn by neutral detached magistrate judges as opposed to the competitive officers
§ Magistrate’s role in screening is important
· Decide whether probable cause & specificity requirements satisfied
· May prevent excessive gov’t intrusions
· Reduce perception of unlawful / intrusive police conduct
o Without a warrant
§ Officers can use hindsight to complete the facts as if he knew them beforehand
§ Sometimes you don’t want a warrant
· If you are worried about destruction of evidence
o Screening Magistrate
§ Should be neutral
§ May retain certain law enforcement duties w/o losing neutrality
· Loses status as neutral & detached when assists in the search
o Can’t ride along with the cops
· Loses status as neutral & detached when fails to read warrant
· Can’t have financial interest in issuing warrants
§ Doesn’t have to be a judge
· Can be a well-trained civil servant
· Doesn’t have to be a lawyer
§ Attorney Generals are not neutral & detached
· Probable Cause
o Justification for a search warrant
o BARD & reasonable suspicion ≠ probable cause
o See Aguilar v. Texas & Spinelli v. U.S.
o Aguilar v. Texas
§ Warrant based on hearsay information
· Court held inadequate b/c
o It didn’t know why or how the informant reached his conclusion
o It needed underlying circumstances to help the court understand informant’s credibility
o Basis of knowledge & veracity of the individual
o Spinelli
§ 2 prong test from Aguilar
· Basis of knowledge
· Veracity of the informant
§ Test
· 1. Who is the source & is he reliable?
· 2. What are the bases & details of the source’s knowledge?
· 3. Assuming reliability, are the facts either standing alone or taken together with other facts provide by the affiant, sufficient to satisfy the proof threshold, probable cause?
o Illinois v. Gates
§ Anonymous letter detailing many things that are going to happen
· Letter was almost all the way correct, but not 1
anford Daily Newspaper’s records to find demonstrators who attacked police officers
§ Search warrant reasonable? à hinges upon the place to be searched and the evidence you are seizing, not identity of the person
§ Don’t have to be a suspect for a warrant to be given against you
· Reasonable particularity
o Warrants require particularized description of the place to be searched
§ If the officer has no knowledge of the underlying facts, the particularized description of the premises in the warrant operates as a necessary control on officer’s discretion
§ If executing officer knows the place she wants to search, particular description in the warrant establishes a specific record of probable cause as to the location prior to the search
§ Prevents officers from using warrants as blank check to expand search by relying on overly general description of place to be searched
o If the police don’t know where something is, but they suspect it is somewhere…
§ Is there reasonable cause to believe that the specific things to be searched for & seized are located on the property to which entry is sought?
o Reasonable Particularity – warrants must set forth location to be searched with this
o Prevent against a general warrant
o “Residential Searches have been upheld only where some information links the criminal activity to the defendant’s residence.” U.S. v. Pitts & U.S. v. McCoy
o Misdescribed address in warrants
§ Garrison
· “third floor apartment” on warrant (police searched wrong 3rd floor apt)
· Police could have taken steps once they found both apartments to make sure it was the right one
· Requires reasonableness
§ U.S. v. Ellis
· Wrong trailer home
o Search is limited by what you are looking for
§ If you are searching for something huge, look in garage or living room
· Not the microwave
§ If looking for something small, look in drawers, not in large spaces
o Andresen v. Maryland
§ Fraud in connection with sale of Lot 13
§ Search warrant authorized search for things in relation to Lot 13 “together with other fruits, instrumentalities, and evidence of crime at this time unknown”
· This search seems broad
o Could be overbroad
· But it isn’t because the broad statement is limited to things related to the sale of Lot 13
o If police are conducting proper search and find something different from that which they are looking for, they may seize it
o U.S. v. Grubbs
§ Warrant isn’t invalid simply because it is contingent on a future occurrence
· Executing Warrants
o Knock-&-Announce Rule
§ Officers must known & say who they are before entering
§ After this, they may break in
o Reason for knock-&-announce
§ Avoid violence
§ Give opportunity for the suspect / individual to voluntarily comply
§ Protect privacy & dignity through cooperating with law enforcement warrant searches
