Bobis
Crim Pro I
Spring 2011
4th Amendment
· Clause 1:
o The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
· Clause 2:
o 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.
· Mapp: Exclusionary rule is an essential part of the 4th Amendment.
o Needed to deter violations
o Needed to maintain imperative of judicial integrity
o Applies to states.
· Hudson: suppression of evidence is last resort because of social costs.
Limits on 4th Amendment
· Calandra: no 4th Amendment ER in a federal grand jury. 4th Amendment is about deterrence, not about protecting the defendant.
· Private actors: 4th Amendment does not apply, so no ER.
· Illegal but not Unconstitutional Acts: absent a statutory exclusionary rule, the 4th Amendment ER does not apply unless 4th Amendment is violated.
· Outside Criminal Trial: 4th Amendment ER does not apply in civil cases (Janis), deportation proceedings(Lopez-Mendoza), probation and parole revocation hearings, federal habeas corpus proceedings, preliminary screening hearings in felony cases, bail hearings, and sentencing proceedings.
o But 4th Amendment ER does apply to forfeiture proceedings based on criminal law
· Foreign Police: 4th Amendment ER doesn’t apply to acts of foreign police on their own soil.
· Illegal Arrest: 4th Amendment ER doesn’t require suppression of the defendant himself (Ker-Frisbee)
· Impeachment: ER doesn’t apply to prohibit prosecutor from using illegally seized evidence to impeach the defendant on cross-examination or his direct testimony (Walder, Havens). But this doesn’t apply to defense witnesses (James).
Is it a Search?
· Katz:
o 2-pronged test:
§ The person must have exhibited an actual (subjective) expectation of privacy (in Katz, in a phone booth, he did), and
§ That expectation must be one that society is prepared to recognize as reasonable [justifiable or enforceable] and be willing to accept and enforce.
o Factors:
§ Nature of the place under surveillance (public or private, if private, open field, curtilage, or home?)
§ Steps taken by citizen to keep activity or things private
· Is it knowingly exposed to the public?
· Was the information or thing voluntarily conveyed to a third person? (assumption of risk)
§ Extent to which any technology used enhances the natural senses
· Level of sophistication of equipment
· Binoculars v. X-ray
§ Extent to which the incriminating information could otherwise be lawfully observed or obtained
· Out of normal line of sight?
· Out of earshot?
§ The degree of intrusion caused by the police activity
· Location of observer (lawful v. unlawful)
· Nature of the object or activity observed (domestic/intimate details)
· Extent to which the police activity is unnecessarily invasive or disruptive
§ For advanced technology: Extent to which the incriminating information could lawfully be obtained/observed without the technology employed (Kyllo)
· Extent to which technology is in general public use
o Cases:
§ White, Hoffa, Lewis: a wired informant or government agent is not a search under
ation of privacy. Left it to be picked up.
Probable Cause
· For a search:
o Facts and circumstances known to the officer and of which he has reasonably trustworthy information, that in a given situation are sufficient to warrant a PO of reasonable caution to believe that seizable objects are now (or will be upon the occurrence of some specified event) located at the place to be searched.
· For an arrest:
o Facts and circumstances known to the officer and of which he has reasonably trustworthy information, that in a given situation are sufficient to warrant a PO of reasonable caution to believe that a crime has been or is being committed and that the particular suspect has committed it.
· Warrant Requirement Rationale: (Johnson) police are engaged in “the often competitive enterprise of ferreting out crime,” so we want neutral and detached magistrates to decide what inferences to draw.
o Analysis:
§ Gates: when hearsay information is needed to establish PC, in deciding whether to credit the tip, magistrate makes “balanced assessment of the relative weights of all the various indicia of reliability” attending the tip. We look at the “totality of the circumstances.”
· Indicia of reliability (Aguilar, Spinelli) – highly relevant but not independent requirements (a surplus of one may compensate for a lack in another, UNLESS one is completely zero).
