Criminal Procedure Outline

Criminal Procedure I
Prof. P. Weinstein
Spring 2012
 
 
 
What is a Search?
I.                   The 4th Amendment Overview  
A.    “The right of the people to be secure in their persons, houses, papers, & effects, against unreasonable searches & seizures, shall not be violated, & no warrants shall issue, but upon probable cause, supported by oath or affirmation, & particularly describing the place to be searched, & the persons or things to be seized.”
B.     Protects only against government conduct, not private conduct
                             i.      Includes
1.      Publicly paid police on or off-duty
2.      Private citizens acting at the direction of police
3.      Public school administrators
                           ii.       Does not include
1.      Private security guards
C.     State law provides more protection to individual
D.    Protected
                             i.      Persons
                           ii.      Houses (includes hotels, curtilage)
                         iii.      Papers (mail, correspondence)
                         iv.      Effects (luggage, bags etc)
E.     Unprotected
                             i.      Account records held by band
                           ii.      Open fields
                         iii.      Garbage at curb
                         iv.      Odors emanating (usually from car/luggage)
                           v.      Anything seen below when flying in public airspace
F.      General Rule → Reasonable Searches/Seizures = Probable cause + Warrant
                             i.      Analysis:
1.      Was there a search?
a.       No→ then government conduct was fine
b.      Yes→then need something else (PC, W, RS etc.)
 
II.                Defining “Search”  → The Katz Test-Supplemented by U.S. v. Jones
A.    Katz v. U.S. (1967)
                             i.      Acting on a suspicion that ∆ was transmitting gambling info over the phone to clients in other states, Federal agents attached an eavesdropping device to the outside of a public phone booth used by ∆, based on recordings of his end of the conversations, ∆ was convicted for the illegal interstate transmission of wagering info, ∆ challenged his conviction arguing that the recordings could not be used as evidence against him as they were the product of an illegal search, Ct of Appeals affirmed, noting the absence of a physical intrusion into the phone booth itself
                           ii.      Gov’ts activities in electronically listening to & recording ∆’s end of phone conversation violated the privacy upon which he justifiably relied while using the phone booth, & thus constituted a “search” under the 4th A.
                         iii.      4th A. protects people, not places → Ask whether the person’s rights were being violated, not whether it was a constitutionally protected area. Ct. abandons the “trespass approach” & replaces the focus on a “constitutionally protected area” w/ a focus on the privacy concerns of ∆
1.      Trespass approach was later resurrected in U.S. v Jones
                         iv.      Closest Majority Comes to a Test: “What a person knowingly exposes to the public, even in his own home or office e, is not the subject of 4th A. protection, but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
1.      ∆’s physical actions were knowingly exposed to the public, but what he sought to exclude when he entered the booth was the uninvited ear. Therefore, by shutting the door on the booth and paying the toll, K was surely entitled to assume that the words he uttered would not be broadcast to the world. The government’s activities violated the privacy in which he justifiably relied.
                           v.      Regardless of the fact that ∆ could be seen inside the booth, by shutting the door of the booth, ∆ assumed that his words would remain private (subjective) & such an expectation is one that society would be prepared to recognizes as “reasonable”
B.     Two–Prong Requirement (Harlan’s concurrence, becomes the primary test)
                             i.      ∆ must have exhibited an actual, subjective expectation of privacy
                           ii.      Expectation must be one that society is prepared to recognize as “reasonable” (objective)
1.      If either prong is not met, no search!
a.      For example, had Δ spoken in the open where he could have been overheard rather than in a phone booth, Δ’s subjective expectation of privacy would not have been unreasonable under the circumstances.
b.      Similarly, Δ would not have had a valid search claim if he had realized that the booth was bugged.
                         iii.      Short Version: A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.
C.     U.S. v. Jones (2012)
                             i.      The opinion by Justice Scalia began by noting that the U.S. government had to occupy private property for the purpose of obtaining information. Scalia applied traditional notions of trespass to determine whether a Fourth Amendment violation occurred. The government argued that no search occurred under the Katz formulation because the defendant had no reasonable expectation of privacy in the underbody of the Jeep where the device was attached and in the locations of the Jeep on the public roads, which were visible to all.
                           ii.      The Court held that traditional notions of trespass could continue to govern Fourth Amendment cases on focused on the act of installing the tracking device: “Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search undoubtedly occurred.” Scalia distinguished Knotts on the grounds that the “beeper had been placed in the container before it came into Knotts' possession, with the consent of the then-owner.”
                         iii.      The opinion by Scalia declined to address the question of whether conducting the type of long-term surveillance enabled by GPS devices — if it could be achieved without a trespass — violated the Fourth Amendment.
                         iv.      Physical intrusion test is now resurrected, the trespass has to be in an effort to obtain information in order to be a search
                           v.      Had Katz been looked at thru physical intrusion test, the Court would have looked into whether the phone booth was a constitutionally protected area and whether physical intrusion of it was necessary to raise a 4th Amd search claim.
                         vi.      Prof. says for this case, just know that a search occurred when officers attach GPS tracking device to perp’s vehicle for the purpose of monitoring his whereabouts.
 
III.             Technological Information Gathering
A.    Pen Register → Not  a search
                             i.      Smith v. Maryland (1979)
1.      Woman gets a series of harassing phone calls after she is robbed & police identify ∆ as suspect, at police request, phone co. installed a pen register to record the numbers dialed from ∆’s phone & used the record of ∆’s calls to the woman to charge him w/ robbery
2.      The installation & use of the pen register (device installed into phone system that enables the police to determine the phone #’s that are being dialed) was not a 4th A. → regardless of ∆’s subj. expectation, not obj. reasonable/legitimate to expect (knowing that phone co. can record the numbers, customers see the numbers dialed on their bills!) that the numbers dialed & transmitted through the phone co. were private—analogous to “false friends” doctrine → ∆ voluntarily submitted the info. (the numbers he dialed) to the phone co.
a.       Had the phone company/police been listening in on the conversations, likely would have been considered a search
b.      You mail a letter; mailman reads it. You don’t have a reasonable expectation of privacy as to where you are sending the letter so that information would not be considered a search. However, the contents inside would be.
3.      Now if the government seeks a pen register, they need a court order
a.       Need reasonable suspicion of crime and reasonable belief that the numbers will provide relevant information, but constitutionally speaking, there is no search  
B.     Electronic Tracking Devices
                             i.      What one knowingly exposes to the public, that can be observed by a person directly, is not a search simply because law enforcement uses a technological device
1.