Crim Pro
Prof. Cornwell
Fall 2008
Text of 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.
-Clearly, probable cause and particularlity relate to Warrants
-On-going debate is how the unreasonable search clause relates to the warrant clause
-Liberal justices say that there can’t be an reasonable search without a warrant (more protection for the people)
-Conservative justices feel that reasonableness and warrant clauses are separate and distinct (gives law enforcement leeway)
I. The Threshold Question (When does a search occur? When is 4th implicated?
a. Katz (govt bugging of phonebooth with recorder on outside of booth)
i. Penetration or trespass is not required for a search to occur
1. This overruled the previous rule (Olmstead standard) that required a physical intrusion for the 4th to be implicated
2. Shift from defining searches by trespass (property law) and instead define searches by property interests.
3. Amendment protects people not places
ii. Two prong test (from Holmes concurrence)
1. An actual expectation of privacy (subjective)
2. Expectation must be socially reasonable (most cases decided on the second prong)
b. Limitations of Katz
i. What a person knowingly exposes to the public, even in his own home or office, is not subject to the 4th Amendment
1. White
a. Ds do not have a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then later reveal the conversation to authorities. The 4th does not protect misplaced trust. Thus, no 4th protections for:
i. Convos to friend who is a tattle tale
ii. Convos to friend who is wiretapped and recorded
iii. Convos to friend transmitted to authorities
ii. Assumption of Risk
1. Individuals who impart information to third parties have no reasonable expectation of privacy
a. Smith v. Maryland
i. Pen-register recorded outgoing phoe numbers
1. no expectation of privacy to phone numbers as they must be transmitted to phone company
a. Rule also applies to bank accounts
2. See problem 1-2
c. Setting
i. Highest expectation of privacy is in the home
ii. Next highest is the curtilage
1. Curtilage is the area around the home used for private purposes. It merits 4th protection, but does not have the intimate activity and sanctity of the home
2. Dunn lays out four curtilage factors
a. Area’s proximity to the home
b. Existence of enclosure around the area
c. Nature and use of area
d. Precautions taken to excluded others from the area (to shield area from passersby)
3. Eg – barn that was a meth-lab
a. Court felt it failed prong 4 above because of barbed wire fences. Such fences are to contain animals, not shield passersby
b. See Problem 1-11
4. “Commercial Curtilage”
a. Dow Chemicals – Court supported and lower courts
arch:
1. subjective expectation of privacy
2. Reasonable expectation of privacy
3. Invasion of such privacy (Katz, Bond, Karo, Kyllo)
ii. If a search, we then ask “Was the search reasonable?”
II. Unreasonableness and the Probable Cause Requirement
a. Two areas of probable cause
i. Search warrant
1. Is there a sufficient likelihood that contraband will be found in the area searched
ii. Arrest warrant
1. Likelihood that an 1) individual 2) has committed or is committing a crime
b. Overall theme
i. Probable cause is case-by-case and fact sensitive. Not formulaic and decisions are imprecise
c. Cases
i. Drapper
1. Verified information hearsay can provide probable cause
a. Here informant gave cops very specific details which cops “self-verified”
ii. Spinelli-Aguilar Test
1. Two prong test (both prongs must be satisfied, regardless of how strong any one prong is on its own)
a. Basis of Knowledge (what is the quality of the information)
b. Veracity prong (honesty, credibility, reliability
2. Has been overruled by US Courts, but still used by some state courts
3. Thus, an affidavit that merely says a reliable source said so (Aguilar) is not enough. But how much more needs to be said is unclear (Spinelli)
