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Criminal Procedure
South Texas College of Law Houston
Carnahan, Sandra J.

Criminal Procedure Outline – Spring 2004 – Carnahan
I. 4th Amendment: An Overview

“The right of the people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probably cause, supported by oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

4th Amendment only applies to the government, not private individuals

II. What is a Search?

A search happens when there is an infringement upon one’s reasonable expectation of privacy
The 4th Amendment protects people, not places
Katz Reasonable Expectation of Privacy Test

(1) That a person have exhibited an actual (subjective) expectation of privacy
(2) That the expectation be one that society is prepared to recognize as reasonable

Application of Katz

False-Friend

However strongly a defendant may trust an apparent colleague, his expectation in this respect are not protected by the 4th Amendment when it turns out the colleague is a government agent regularly communicating with the authorities

Policy: In these circumstances, no interest legitimately protected by the 4th Amendment is involved because the Amendment affords no protection to a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it

A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties (i.e. in the phone numbers he dials)
A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another

Open Fields Doctrine

An open field falls outside the scope of the 4th Amendment’s Protection for two reasons:

(1) It is not a person, house, paper or effect, and
(2) A person does not have a reasonable expectation of privacy regarding activities occurring in open fields
These lands are accessible to the public and the police in ways that a home, an office, or commercial structure would not be (i.e. can observe the lands from the air)

Curtilage

The area outside or adjacent to the home – the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of his life
Factors in Determining Curtilage:

(1) The proximity of the area claimed to be curtilage of the home
(2) Whether the area is included within an enclosure surrounding the home
(3) The nature of the uses to which the area is put
(4) The steps taken by the resident to protect the area from observation by people passing by

A person does not have a reasonable expectation of privacy in garbage left outside the curtilage of a home for trash removal

Observation of a Home with Sense-Enhancing Technology

Constitutes a search where the technology is not in general public use

III. What is a Seizure?

A seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property
Law enforcement may seize what they have probable cause to believe is criminal evidence
Categories of Seizable Items:

(1) Contraband – Evidence that may not lawfully be possessed by a private party
(2) Fruits of a crime
(3) Instrumentalities used in the commission of an offense

show what the informant said was true

Totality of the Circumstances Test
When a police-affiant, under oath reports statements made by an informant, there are four possibilities regarding the truthfulness of the statements:

(1) The informant is lying, but the affiant neither knows nor has reason to know
(2) The informant is lying, and the affiant knows or should know
(3) The affiant is misrepresenting what the informant said
(4) The informant and affiant are both stating what they believe to be the truth

Challenging the Truthfulness of an Affiant in an Application for a Warrant – Franks Hearing

When a police-affiant, under oath reports statements made by an informant, there are four possibilities regarding the truthfulness of the statements:

(1) The informant is lying, but the affiant neither knows nor has reason to know
(2) The informant is lying, and the affiant knows or should know
(3) The affiant is misrepresenting what the informant said
(4) The informant and affiant are both stating what they believe to be the truth

The Franks Hearing

When a defendant makes a substantial preliminary showing that a false statement (a) knowing or intentionally or (b) with reckless disregard for the truth, was included by the af