CRIMINAL PROCEDURE
PROFESSOR CORNWELL
Spring 2013
The Threshold of the 4th Amendment to be secure against searches
· 4th Amendment
o 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
· Construction
o Warrants
§ Must be in connection with probable cause
§ Need to particularly describe the person place or thing to be searched
o Searches and seizures
§ Limited to
· Reasonableness
o Whenever in doubt, apply reasonableness standard
· Persons, houses, and effects
o Persons – a person’s body
o Houses – place where you reside
o Papers – personal correspondence
o Effects – things you wear/carry
§ Cars are included in this
· Searches and seizures
o There was a debate, historically, whether trespass or privacy should be the focus of the 4A or both
o Road to Katz
§ Olmstead (1928) – no entry of the houses or offices of the defendant, meaning that trespass was required
§ Goldman (1942) – 4A was not implicated, since the placement of a Dictaphone on the outside of a building was not a “trespass” of the building
§ Silverman (1961) – increasing concern about trespass being the standard, “spike mike” not trespass, but still intrusive
§ Clinton (1964) – a listening device that could attach to the outer wall with a tiny prick was considered an intrusion
o Katz (1967)
§ There was an ability to listen to conversation without any intrusion
§ Katz 2 prong test (Harlan)
· 1) An actual (subjective) expectation of privacy
· 2) That society recognizes as reasonable (objective)
o Jones (2012) – Scalia
§ The reasonable expectation of privacy test of Katz was added to the common-law trespassory test
§ The 4th will be implicated if the search or seizure physically intrudes on a protected area or item to obtain information
o White (1971)
§ False friend/Unreliable ear doctrine – where the eavesdropping is done by a human ear
§ No trespass – the false friend did not need trespass to get in, as he was invited
§ 4A was not implicated, since society does not recognize the expectation of privacy here as reasonable – don’t trust your friends
o Smith v. MD (1979)
§ Pen registers – the numbers dialed from the line were recorded
§ There was a lack of actual/subjective expectation of privacy, so 4A was not implicated
· When you dial the #, everyone know that the phone company is recording it
o 3 spheres of protection
§ Home
· Expressly protected, always considered sacrosanct
· A reasonable expectation of privacy is presumed
§ Curtilage
· The area directly outside the home
· The protections for the curtilage are considered directly extensive of the protections of the home for most purposes
· Ciraolo (1986)
o There was police surveillance from an airplane into the curtilage over a protective wall, used a regular camera
o 4A was not implicated since there was not a reasonable societal (objective) expectation of privacy
· Riley (1989)
o Aerial surveillance from a police helicopter at 400 feet was not considered a search
o The plurality said that since it was a lawful flight there was no protection
o The concurrence said that the issue is privacy, and here there was no reasonable expectation of privacy since there was regular commercial traffic at that level
· Dunn (1987)
o 4 curtilage factors (used in a case-by-case basis for the totality of the circumstances):
§ 1) The area’s proximity to the home
§ 2) The existence of an enclosure around the area
§ 3) The nature of the use to which the area is put
§ 4) The precautions taken to exclude others from the area
o There was no curtilage in a case of barbed wire fences and wooden fences, since they were not meant to protec
in the protected areas or items
WARRANTS
· Unreasonableness and the Probable Cause requirement
o The mere fact that the 4A was implicated does not mean that it was violated
§ If the government acted reasonably, i.e. not against the constitution, then the evidence can be used
o If a warrant is needed, it needs to be with probable cause and particularity
o Probable Cause is not defined by the Constitution, so it falls to the Supreme Court to decide what it is
§ Probable cause is always a fact-specific inquiry
o Probable cause for search
§ Requires a sufficient likelihood that contraband or evidence of crime is presently in the place to be searched
§ Goes stale
o Probable cause for arrest
§ Requires a sufficient likelihood that a crime has occurred and that the arrestee has committed or is committing that offense
§ Does not go stale
o Informants/Hearsay
§ Draper (1959)
· When the informant was accurate in describing the suspect, and was predictive in the actions of the suspect, there was PC even though nothing in the description had anything to do with heroin
§ Aguilar (1964)
· 2 prong informant/hearsay test:
o Basis of knowledge prong
§ How does the informant know the information?
§ Is the information that underlies the PC conclusion is of sufficient character and quality that it is reasonable to rely on it?
o Veracity prong
§ Is the information giving rise to the PC determination truthful so as to justify reliance on it?
· This tells you the reliability of the information and/or of the person informing
· Level of detail etc.
