Criminal Procedure Outline

 
CrimPro // Prof. Carroll//Spring 2012
 
The 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.”
Framers’ Intent: Preventing General Warrants: One of the main fundamental grievances the colonists had with the English Crown was the practice of issuing general warrants, or writs of assistance, which permitted open-ended searches unlimited in scope, and did so without judicial supervision or any demonstration of justification.  Cops had uncontained discretion. 
Fundamental Question of the 4th A: Do you need a warrant for a search or seizure to be reasonable?  What is clear from the 4th A’s two clauses is that 1.) searches and seizures must be reasonable, and 2.) the police need probable cause to get a warrant.  However, the relationship between the two clauses is unclear.  There are two sides to the debate, which frames much of the 4th A jurisprudence:
Liberal View: For a Search to be Reasonable, there must be a Warrant – the clauses are linked and thus, a warrant is required for a search to be reasonable, unless there is a good excuse for not obtaining one.  Warantless searches are presumptively unreasonable.  The prophylactic interposition of a neutral magistrate b/w the police officer and the citizen prior to the search is the main protection afforded by the Fourth Amendment.  The liberal side of the court is focused on individual liberties and puts the burden on cops to justify intrusions.  See, e.g.,  HYPERLINK  \l “Johnson” Johnson v. United States, US, 1948.
Conservative View: Reasonableness Does Not Turn on a Warrant – the clauses are separate and thus, a warrant, or a reasonable excuse for not having one, does not determine whether a search is reasonable.  Instead, reasonableness depends upon the contextual circumstances justifying the search and the manner in which it was conducted.  The main protection afforded by the Amendment in this view lies not in prior judicial screening, but in the after the fact review of police conduct to ensure that it was reasonable given what was known by the cops at the time. This approach has dominated the Court’s jurisprudence in recent years, with Justices noting that the numerous exceptions to the warrant requirement have swallowed the rule – and what is actually being conducted is a case by case reasonableness evaluation. See, e.g.,  HYPERLINK  \l “Acevedo” California v. Acevedo, US, 1991 (Scalia, J., concurring).  The conservative side of the Court is focused on effective law enforcement, and puts the burden on Δs to show a search was unreasonable.
When Does the 4th A Apply?- 2 threshold requirements must be met before the 4th A is applicable in a situation. 
Governmental Action Requirement – the 4th A only applies to governmental, not private conduct. 
United States v. Jacobsen, US, 1984 –  the Δs package contining cocaine was sent through the mail using FedEx.  Employees of FedEx, private parties, opened the package and reported to police that its contents were suspicious.  The police reopened the package and Δ was charged with cocaine possession.  The Court held that the police reopening was ok, because “there was a virtual certainty that nothing else of significance [other than what had already been described by the private parties] was in the package and that a manual inspection of the contents would not tell the police anything more than he had already been told.”
“Search” – the 4th A’s protections only apply to a “search.”  What qualifies as a “search”?
The Trespass Rationale – the definition of what constitutes a “search” w/in the meaning of the 4th A was, until 1967, closely tied to property law concepts.  Police action would be deemed a search if it constituted a common law trespass.  For example, the Court held that wiretapping from outside a building was not a search, b/c there was no “actual physical invasion,” Olmstead v. United States, US, 1928, the insertion of a “spike mike” into a wall to pick up conversations passing though heating ducts was held to be a search b/c of the physical intrusion involved.  Silverman v. United States, US, 1961.  Even a thumbtack sized penetration was enough to be a “search.”  Clinton v. Virginia, US, 1964.
The Privacy Rationale – As methods of surveillance and eavesdropping became more technologically sophisticated and could be accomplished without the necessity for physical intrusion, this the trespass rational became outdated and underinclusive.  In order to apply an amendment written 200 years ago to these new technologies the Court shifted to a Privacy rationale in Katz v. United States, US, 1967, holding that a “search” takes place when one’s actual and reasonable expectation of privacy has been invaded.  The tricky part has been drawing the line where that privacy expectation begins. 
Katz v. United States, US, 1967
Fact: Federal agents placed a listening device against the wall of a public phone booth that was being used by Katz.  The recordings of his phone conversations were used as evidence against him at trial.  Katz moved to suppress.  The US argued that there was no physical penetration and thus, no “search.”
Stewart, Court: This was a search. “The 4th A protects people, not places.”  Whether a search has taken place does not depend upon whether a physical penetration took place in the location of Δ, but rather on whether the person justifiably relied on a reasonable expectation of privacy in that area – public or private.   Here, Δ sought to exclude the univited ear in the phone booth.  The location does not deprive him of that right.
Black, Dissenting: The text of the 4th A is only meant to apply to tangible things: “persons, houses, papers, effects.”  Thus, the 4th A doesn’t apply to eavesdropping which existed at the time of the framing.  It is not our role to extend the language of the 4th A beyond its original meaning to our times.  That makes us a continuously functioning Constitutional Convention.
The Katz Test – A 4th A “search” has taken place where:
1.) the citizen has manifested a subjective expectation of privacy; and
What a Person Seeks to Keep as Private – regardless of location the Δ must seek to keep something private. 
Conducting a Conversation in a Closed Phone Booth – Katz v. United States, US, 1967 – the Δ displayed a subjective expectation of privacy in his phone conversation by entering a phonebooth and shutting the door behind him.  Even though the phone booth was clear, he sought to exclude not the intruding eye, but the uninvited ear.
Building a 10 Foot Wall Around Your Marijuana Plants – California v. Ciraolo, US, 1986 – the Δ built a 10 foot wall around his marijuana crop in his backyard so no one could see it.  Thus, at street level, at least, the Δ has displayed a manifestation of intent to maintain privacy, however this fence might not “shield these plants from the eyes of a citizen or a policeman perched on the top of a truck or a 2-level bus.  Whether respondent therefore manifested a subjective expectation of privacy from all observations of his backyard, or whether instead he manifested merely a hope that no one would observe his unlawful gardening pursuits, is not entirely clear in these circumstances . . . .”
Putting Up No Trespassing Signs, Fences – Oliver v. United States, US, 1984 – Δ put up no trespassing signs and a fence in hopes of keeping outsiders off of his expansive property, a mile within which he was growing weed.  Δ displayed a subjective expectation of privacy by taking these steps, but the Court held this is irrelevant b/c there is no reasonable expectation of privacy in such “open fields” where “intimate activities” do not take place.
Putting Your Crack in an Opaque Bag Directly Above Your Bus Seat – Bond v. United States, US, 2000- Court said a Δ displayed a subjective expectation of privacy in the contents of his bag, which was opaque and placed directly above his bus seat. 
Putting Something In Your Home – words.  Cases.
Where Court Has Found No Subjective Expectation
Sending Your Phone Number to Phone Co by Placing Call – Smith v. Maryland, US, 1979 – the Δ failed to display a subjective expectation of privacy in the phone numbers he was dialing because: “It is too much to believe that a phone subscriber would harbor any general expectation that the numbers they dial remain secret.”  Everyone knows that phone numbers are recorded by the phone company so they can place your call – they even put the numbers in your phone bill.
2.) the expectation of privacy is one that society accepts as objectively reasonable.
Expectations of Privacy the Court has Found to Be Reasonable
Gov’t Eavesdropping on Phone Conversations – it is reasonable to expect that your phone conversations in closed public telephone booths will not be subject to government eavesdropping.  Katz v. United States, US, 1967.
Tactile Manipulation of Bus Passenger’s Luggage – it is reasonable to expect that your opaque luggage won’t be tactically manipulated by government agents. 
Bond v. United States, US, 2000
Facts: Δ was riding a bus which was stopped at a border patrol checkpoint, wehre cops got on board and proceded to sqeeze everyone’s luggage in the overhead compartments.  The cop felt a brick-like object in Δ’s bag which was drugs.  Δ was arrested.
US argues: by exposing the luggage to the public on a bus, the Δ assumed the risk and gave up his reasonable expectation of privacy.  See Ciraolo. 
Rehnquist, Court: Bus occupants have a reasonable expectation of privacy in not having their luggage tactically manipulated by police.  Tactile manipulation is much more intrusive than visual observation (see aerial surveillance cases, infra) While a bus passenger should expect that his bag will  be handled by bus employees or to be slightly moved, he does not expect that it will be felt in an exploratory manner, as the officer here did. 
The Home and Curtilage – it is reasonable to expect that items placed in your home and curtilage won’t be intruded upon by gov’t agents,  HYPERLINK  \l “Kyllo” see Kyllo HYPERLINK  \l “Karo” ; Karo, unless you voluntarily assume the risk and expose items in your home and curtilage to the public, either on the ground, or in the air,  HYPERLINK  \l “Aerial_Surveillance_Cases” see Aerial Surveillance Cases infra.
No Reasonable Expectation of Privacy: Items You Knowingly Expose to the Public – “what a person knowingly exposes to the pubic, even in his own home or office, is not subject to 4th A protection.”  Protection is afforded only for “what he seeks to preserve as private.”  The police cannot be expected to avert their eyes from evidence of criminal activity that could be observed by any member of the public.  Katz v. United States.  An assumption of the risk rationale.
Voluntary Disclosure of Information to Third Parties – one who conveys info to a third party, whether a person (White) or institution (Smith) even in an apparent private communication, cannot reasonably rely on that person maintaining his confidentiality. 
United States v. White, US, 1971
Facts: A gov’t informant was in the Δ’s home, having a conversation with him about a drug deal.  The informant was wired and broadcasting the conversation over the radio to gov’t agents outside.  At trial, the informant was unavailable, so the testimony of the gov’t agents was introduced at trial.
Δ argues: Like in Katz: gov’t agents were eavesdropping on my conversation which in had a reasonable expectation of privacy in. 
White, Court: No search. A person has no reasonable expectation of privacy that a person he is talk