Criminal Procedure (Cornwell: Fall 2010)
I. Introduction
A. An Overview of the Criminal Justice System
1. Arrest: The first formal contact of an accused with the criminal justice system is likely to be an arrest by a police officer. Ordinarily, the arrest is made without any court order and the court’s contact with the accused comes only after the arrest
2. Initial Judicial Appearance
a. The defendant will be informed of the charges against him; Usually by complaint
b. Def will be informed of his rights ; Including the right against self-incrimination
c. Assignment of a state attorney begins if necessary
d. Arrangements for release before further proceedings may be made
3. Filing of Formal Criminal Charge
4. Arraignment
5. Trial
II. The “Threshold” of the 4th Amendment Right to be Secure Against Searches
A. Introduction
1. When an individual challenges gov’t conduct on 4th Amend grounds there may be a threshold question: whether that conduct constitutes a search or a seizure.
a. Probable cause is the only evidentiary clause in the text of the amendment
b. Warren Court: the presumption that in order to conduct a search the gov’t officials needed a warrant and probable cause
c. Rehnquist & Roberts: Lack of warrant was not fatal (The threshold question is whether the search was reasonable)
d. Most common gov’t agents are cops but may be school officials
2. Boyd v. US (1886): At issue was an order requiring an individual to produce business invoices. Order to produce the documents qualified as a search because it was a “material ingredient and effected the sole object and purpose of a search which was forcing from a party evidence against himself.”
3. Olmstead v. US (1928): Wiretapping from outside a building did not constitute a search because unlike the searches known to the Constitution’s Framers, there was no actual physical invasion and no trespass upon a protected location. Without such an invasion, there could be no 4th Amend search.
4. Gov’t use of undercover agents (false friends)
a. Suspects claimed that the gov’t had crossed into the 4th Amend’s border
i. On Lee v. US (1952): Court rejected the claim that electronic transmission by an informant amounted to a search. 4th Amend didn’t govern the situation because the speaker’s consent to the presence of the informant precluded a trespass and additionally because the speaker was talking confidentially and indiscreetly with one he trusted and he was overheard.
ii. Lopez v. US (1963): A known IRS agent’s recording of a bribe offer was outside the borders of the 4th Amend because the suspect had consented to the agent’s presence in his officer, and had taken the risk of recording and reproduction in court by willingly speaking to the agent.
iii. Hoffa v. US (1966): An informant who listened to, reported, and testified about Hoffa’s inculpatory remarks did not ‘search’ within the meaning of the 4th Amend because “no interest legitimately protected by the 4th Amend was involved.”
5. Electronic Eavesdropping cases that did not involve undercover agents
a. Goldman v. US (1942): The gov’t did not trigger 4th Amend coverage by placing a detectaphone against an outer wall and listening to conversations inside a building.
b. Silverman v. US (1961): The physical intrusion of placing a spike mic into a party (shared) wall was found sufficient to cross the Constitutional threshold even though it did not affect a technical trespass.
c. Clinton v. VA (1964): When the gov’t attached a listening device to a wall by means that caused a thumbtack sized penetration, it had searched within the meaning of the 4th Amend.
B. Katz v. U.S. (1967): Katz was convicted of placing illegal gambling wagers between major cities. The FBI attached an electronic listening device on the phone booth where he made the calls. Issue: Does the 4th amend protection against unreasonable searches and seizures apply to the listening devices in the public phone booth?Yes. The listening and recording did constitute a search and seizure. What a person knowingly exposes to the public is not protected. Katz wasn’t trying to elude the intruding eye; he was trying to elude the intruding ear. The 4th amend protects people not places. Concurrence: Katz had reasonable expectation of privacy. Dissent: 4th amend protects things. The conversation is not tangible.
1. Trespass no longer since an appropriate framework
2. New standard: PRIVACY
3. 2 prong test
a. Subjective:Actual expectation of privacy
b.Objective: Societal expectation of privacy
C. US v. White(1971): One person wore a wire. There was a person outside who heard the messages. White was tried and convicted; sentenced to a 25 years. The Court of Appeals reversed his conviction. Issue: Whether the electronic transmission of the conversations violated the Fourth Amendment? SCOTUS affirmed their rulings in Katz and Hoffa. No such violation of the Fourth Amendment arose in this case.
1. There is an assumption of risk when you speak to someone
a. One who is contemplating illegal activities must realize the risk that his companions may be reporting to the police.
b. According to the Court there is no difference between the tattletale and the transistor
c. An electronic recording will produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent.
2. Dissent: Harlan disagrees with the courts decisions in both Lee and Katz. The Court needs to strike a balance. Proposed the ‘risk analysis’ approach, which would be greater than the limits of the search for subjective expectations or legal attribution of assumptions of the risk.
D. Smith v. Maryland (1979): Woman was robbed. After she began getting phone calls from someone identifying himself as the robber. The telephone company installed a pen register to catch the suspect upon the police’s request. Trial court denied the D’s motion to suppress the “fruits” of the pen register, citing the 4th Amendment was not violated by the pen register. D was convicted and sentenced to 6 years. Issue: Whether the installation of a “pen register” constitutes a “search” within the meaning of the 4th Amendment. No. A phone user knows that the phone company can get access to the numbers dialed. He may have expected to keep the content of his call private, but not the number dialed. It is firmly held that a defendant cannot expect for information he turns over to a 3rd party. This Case differs from Katz, pen registers do not acquire the contents of conversations, or even tell if a conversation took place.
1. Dissent
a. (Stewart): He called from his home, and has important content that should thus not be divulged.
b. (Marshall): One who assumes that his phone company will get private information about him has an expectation that this will not be divulged to 3rd parties for other purposes. This threat of getting numbers without a warrant will extend to discovering reporters’ secret sources and other sensitive areas. Law enforcement should thus be required to get a warrant.
E. Home Based Privacy
1. “Effects” are things generally carried or worn by individuals
2. “Curtilage” area of domestic use immediately surrounding the house. Land considered part of the home.
a. Protected the same way as the house
b. United States v. Dunn(1987): DEA agents obtained warrants from a TX judge authorizing installation of a miniature electronic transmitter tracking devices, or “beepers.” The ranch was encircled by a perimeter fence. DEA made a warrantless entry onto respondent’s ranch. The DEA agent smelled what he believed to be phenylacetic acid coming from the direction of the barns. They observed illegal narcotics. Later, a federal magistrate issued a warrant authorizing the search of the respondent’s ranch. DEA agents and state law enforcement seized chemicals and equipment discovered in a closet in the ranch house. Carpenter and Dunn were convicted. Court of appeals reversed the conviction; all evidence seized pursuant to the warrant should have been suppressed. On remand the Court of Appeals reinstated the original opinion by asserting that “we now conclude and hold that t
n of privacy. The blinds were up, the window was open and the lights were on
7. CA v. Greenwood: Cops went through Greenwood’s garbage. Then used what they found to get a warrant and Greenwood was arrested. Greenwood challenged the search. Issue: Does the 4th Amend prohibit search and seizure of garbage outside the curtilage of a home without a warrant? No. Court claimed he didn’t have a reasonable expectation of privacy according to society. Anyone could have rummaged through the trash left on a public street.
a. States including NJ have rejected this holding through State Constitutions
8. Handout: Garbage cans placed in the curtilage of the home. The town required the garbage to be placed there.
a. It is nearly impossible to create privacy
b. Garbage is abandoned property and there needs to be tremendous effort to protect it
F. Bond v. U.S.(2000): Greyhound bus stopped, at Border Patrol checkpoint in TX. Border Patrol Agent boarded the bus. He squeezed the soft luggage in the overhead space. Felt a “brick-like” object. Bond admitted that the bag was his and agreed to allow Agent open it. Agent discovered a “brick” of meth. Bond was indicted; moved to suppress the drugs, arguing that Agent conducted an illegal search. District Court: Denied his motion to suppress and found him guilty. Petitioner appealed. Court of Appeals: affirmed the motion to suppress. US Sup. Ct. reversed. Issue: Whether a law enforcement officer’s physical manipulation of a bus passenger’s carry-on luggage violated the Fourth Amendment’s proscription against unreasonable searches? Yes. The petitioner did exhibit a subjective expectation of privacy that society is prepared to recognize as reasonable. A bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an “exploratory manner”. The cop was too exploratory.
1. Why doesn’t consent matter?
a. Because it happened after the squeeze; it was tainted
i. Fruit of the Poisonous Tree
G. Kyllo v. U.S.(2001):Police used a thermal imager from across the street. Found that Kyllo’s garage & wall were warmer that the rest of his house and other houses. Used this information with tips and electric bills to get a warrant. Kyllo was indicted on one count of manufacturing marijuana. He unsuccessfully moved to suppress and then entered a conditional guilty plea. Court of Appeals for the Ninth Circuit: remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging. District Court: found that Agema 210 is a non-intrusive device and upheld the validity of the warrant and reaffirmed its denial of the motion to suppress. Court of Appeals for the Ninth Circuit: Held that Kyllo had shown no subjective expectation of privacy. Issue: Whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a “search” within the meaning of the Fourth Amendment? Yes. Without a warrant this type of search is unreasonable. The gov’t used a device that is not very available to the general public for use. Without it, a physical intrusion would have been needed.
1. Dissent characterizes the observation as off the wall; not through the wall.
Beepers
