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Criminal Procedure
South Texas College of Law Houston
Gershowitz, Adam M.

I.         4th Amendment: Searches and Seizures
A.     Has There Been a Search
1)      Test: two parts for whether there has been a “search”
a)      Does the person have a subject expectation of privacy?
b)     Would an objectively reasonable person have an expectation of privacy?
2)      Under Katz, we protect people, not places.
B.     Expectations of Privacy: Certain Circumstances
1)      Colleagues, Friends, and Informants
a)      Rule: A person has no reasonable expectation of privacy when talking to a friend.
b)     Opens the door for informants.
2)      Open Fields
a)      Rule: A person has no reasonable expectation of privacy in an open field.
b)     Thus, the government can ignore trespass signs and walk a few miles to check things out.
3)      Curtilage, As Opposed to an Open Field
a)      Curtilage vs. Open Field
i)        Consider the proximity of land to the home (distance, etc)
ii)       Is the area included within an enclosure that also surrounds the house (inside the house fence)
iii)     The nature of the use to which the area is put? (barns are not intimate areas)
iv)     Steps taken by the resident to protect the area from observation
b)     Surveillance of Curtilage
i)        Rule: Image-enhancing gov’t activities occurring within the cartilage of a house does not constitute a search if the surveillance:
(1)   occurs from navigable airspace,
(2)   is conducted in a physically non-intrusive manner, and
(3)   does not reveal intimate activities traditionally connected w/ use of the home/cartilage
4)      Homes
a)      Rule: A search occurs when:
i)        the government uses sense-enhancing technology (thermal imagery or wiretaps)
ii)       that is not in general public use
iii)     to obtain information about the inside of a home
iv)     that you otherwise could not have gotten without physically going inside the house
b)     KEY: Homes are given lots of protection from searches, cartilage gets protection but not absolute protection
5)      Open View or Voluntary Exposure
a)      Rule: A person has no reasonable expectation of privacy in that which he knowingly exposes to the public or places in open view
b)     Example: Trash on the curb, had a lip-reader observed what Katz was saying over the phone
6)      Luggage on a Bus or Place
a)      Rule: The frisking of a closed bag or luggage on a bus or plane constitutes a search b/c:
i)        the individual did not expect that passengers or employees will squeeze his bag
ii)       a reasonable person does not expect the passengers or employees to squeeze his bag
iii)      (squeezing on ≠ bumping into or moving around)
b)     Note: No reas

fficient to establish probable cause.
D.     Warrants
1)      General
a)      Warrant Preference Rule: Police must get a warrant, unless they cannot.
b)     In order for a search warrant to be issued, there must be probable cause that a crime is being committed.
c)      A warrant is NOT required for an arrest in public.
i)        Within 48 hours of a warrantless public arrest, the police must go before the magistrate to determine if there is probable cause to hold the person. (a Gerstein Hearing)
2)      Requirements of a Warrant
a)      Rule: A warrant must:
i)        be issued by a neutral and detached magistrate
ii)       be based on probable cause
iii)     particularly describe the place to be searched and the items to be seized
(1)   Places – must coincide with the items to be seized
3)      Execution of a Warrant
a)      Time of Execution
i)        Rule: The warrant should be executed w/o unreasonable delay because probable cause may disappear.
b)     Homes
Rule: The warrantless search or arrest in a house is presumptively unreasonable.