Criminal Procedure Outline

CRIMINAL PROCEDURE

BARRETT

SPRING 2014

I. 4A & THE EXCLUSIONARY RULE

1. Introduction

a. The 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 person or things to be seized.”

· Protects houses, papers, persons, effects from unreasonable searches and seizures

b. 4A can be broken into two parts:

i. Reasonableness Clause: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”

§ Required

§ This is a right against aimed at the federal government by a command and restriction

§ It is a protection against things are unreasonable (presumptively unreasonable)

§ Search/seizure becomes reasonable if there is valid warrant–if there is warrant, cannot be unreasonable

§ W/o warrant, there can still be a reasonable search/seizure (reasonable by some other measure)

ii. Warrant Clause: “no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

§ Not required, just strongly encouraged

§ This is like a recipe for a good valid warrant.

§ Valid warrant (advanced judicial permission) – probable cause, oath/affirmation, describes place to be searched, persons/things to be seized→ valid warrant is just one “path to reasonableness”

§ Valid warrant= reasonableness.

c. There is a lot of controversy over the relationship between the reasonableness clause and the warrant cause

§ Without a warrant would it meant that a search is unreasonable v. when a warrant is issued it must first meet the requirements of probable cause

§ Warrant is required to interpose an independent 3rd party before the fact

d. Categories for “the people”

1) American citizens living the US→ covered by 4A

2) Citizens of other countries lawfully in the US on visas →covered, but room argument

3) Citizens of other countries unlawfully in the US à not covered

§ Expired visas or entered illegally

§ Framers’ intent to protect only those within U.S.

4) Non-US citizens residing in other countries suspected of planning criminal activities in the US or against US interests on foreign land→Not protected

§ United States v. Verdugo-Urquidez (1990)- Mexican resident arrested on drug charges and brought to US for trial. DEA agents search & siezed property from Mexican residences without a search warrant.

i. Issue: whether 4A protections of s/s applies to property that is owned by a non-resident alien and located in a foreign country→ Held that he was not “the people” 4A was meant to protect

ii. Test: “the people” refer to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community

5) Restrains the government from searches, not private actors

*Note that what is missing off this list is US citizens living abroad

2. The Exclusionary Rule

a. The exclusionary rule: the suppression of evidence that allows courts to exclude evidence that was gained in violation of 4A rights. This is usually done pre-trial through a motion to suppress and pre-trial hearings. Gov, can lose its ability to go forward or preserves its right to appeal.

· Exclusionary rule= remedy that is meant to enforce right afforded by 4th

· Purpose of the rule is to serve as a remedy and deterrent.

§ Deterrence- punish for violating the Constitution and serves as a way to deter police from violating 4A

· Applies to:

§ Evidence gained from unreasonable s/s in violation of 4A

§ Improperly elicited self-incriminatory statements gather in violation of 5A

§ Evidence gained where gov. violated defendant’s 6A right to counsel

· If the evidence is within the scope of the exclusionary rule, and this evidence led to other evidence that law enforcement would not have otherwise found, then exclusionary rule applied to evidence found subsequently—fruit of the poisonous tree

b. Development of exclusionary rule

i. Weeks v. United States (1914)-establishing exclusionary rule- D was charged transporting lottery tickets. Neighbor told cops where key to house was. Cops entered and searched and took evidence they turned over to the US Marshal. Returned with Marshals for a second search. No warrants.

§ Silver platter doctrine- after an unreasonable search & seizure, state would turn over evidence to feds that were able to use it

§ Remedy to the unreasonable search & siezure by the US Marshal was the exclusion of the evidence. Letters had to be restored to D. 4A would have no meaning if private docs could be seized.

§ A man’s home is his castle

§ Court would be the last violator if it allowed in the evidence- doesn’t want thisàclean hands doctrine

§ 2nd search was in violation b/c search and seizure w/o warrant when needed one

§ There is nothing in 4A about a remedy, so this seems like the judge-made rule. Debate whether it is judge made or constitutional

§ Exclusion was a categorical right = remedy

ii. Wolf v. Colorado (1949)- LATER OVERTURNED BY MAPP- Prosecution of an abortion doctor. Wolf rejects incorporation of 14A to apply to the states. Court looked at other states and after Weeks only 16 adopted exclusionary rule. Evidence was allowed.

§ Wolf argues 4A limit on fed. gov’t should be applied to states—court says that that 14A is not incorporated (was only judge-made), but what does apply is substantive 14A itself. States are free to decide

§ Prosecution in SC does not forbid admission of evidence obtained by unreasonable search and seizure b/c of 14thà tort suit against them or internal discipline against police are other remedies

ü The “Rochin” principle: 3 sheriffs got info that D was selling drugs. D swallowed 2 pills and taken to hospital to remove them by struggling to open mouth with forcible extraction. SC ruled that 14A prohibited admission.

o Court said it: “shocks the conscious” and “sounds like torture”

iii. Mapp v. Ohio (1961): Cops went to Mapp’s home for question in recent bombing and knocked and demanded entrances. Called attorney and refused to let them in without a warrant. Returned later with more cops and when she didn’t come to door right away, burst in. Demanded to see warrant, she grabs warrant (questionable whether it even was a warrant) and stuffs it down her shirt. Struggles with officers and she is arrested. Officers search through everything and find trunk in basement with obscene materials.

§ Court looked states an since Wolf, states have accepted Weeks rule and states that have tried other remedies have failed.

§ Held: evidence obtained by search & seizure in violation of the Constitution, is by the same authority, inadmissible in a state court

ü This overrules the part of Wolf that doesn’t extend exclusionary rule to states! EXCLUSIONARY RULE APPLIES TO THE STATES

ü 4A is enforceable against the States through due process of 14A

ü Exclusionary rule is applicable to the states! It is about deterring police from violating 4A

ü Need some type of remedy for right

3. 4A Searches and Seizures

a. Roadmap to analyze

§ Look if trespass doctrine could apply form (physical intrusion)

§ Analyze under Katz expectations test

b. Scope of 4th Amendment

· Applies to searches/seizures

· Ask if: probable cause/proof/justification

i. if so, is there authority by warrant?

ii. if not, is one needed?

– if not, search is okay

– if so, search most likely in violation, in which case evidence would be inadmissible

· Ask:

i. Who was actor:

– If gov’t or state= 4A search

– If private authentic actor = not a 4A search

ii. Was there a warrant? If yes, okay. If no, ask number 3.

iii. Was there physical trespass/intrusion?:

a. If so = 4A search applies

b. if not (invasion of privacy, etc): Ask: was there a legit expectation of privacy (Katz test)?—objective and subjective

– if so – 4A search applies

– if not – search is okay, not 4A

c. 4A Searches

1) Privacy/ Listening

· Phone BoothàKatz. V. United States (1967) 4A search. FBI agents attached electronic listening and recording device to the outside of a public phone booth and were able to hear Katz’s end of the conversion. Convicted for transmitting wagering info.

§ Held: trespass doctrine is no longer controlling because 4A protects people, not simply areas against unreasonable searches and seizures, which does not turn on presence or absence of physical intrusion. 4A protects people, not places (but really about people and a little about what place they are)

ü Previously, the law had been the trespass doctrine, which required a physical invasion and limited searches and seizures of tangible property

ü Prior to Katz, 4A was property based, now privacy based

i. Prior to Katz, only physical intrusions

ii. After Katz – now can have violation of 4th w/o physical intrusion; now measured by “reasonable expectation of privacy”; now can seize intangible things, like conversations

ü Places matter, but behavior/reasonable expectation of people is key– “privacy seeking” behavior in a private setting

Ø Katz did all he could to remain private in phone booth

Ø To ignore privacy of phone booth defeats expectation of privacy protected by Constitution

ü Electronically listening & recording words violated privacy he relied on while using the booth. This is broader than old law, protects people seeking privacy

ü Telephone in phone booth is something you reasonably expect to be private and he thought it was private by closing the door (if this was someone walking the streets with a cell-phone talking, this would be different bc it would not be considered private.)

§ TEST (from Harlan concurring): must look at both prongs

1) Subjective: person exhibited an actual (subjective) expectation of privacy

Ø Individual determination

Ø The Katz test is really prong 2. The problem with 1 is that what judges consider subjective will change over time.

2) Objective: the expectation of privacy is one that society is prepared to recognize as reasonable

Ø Societal/ judicial assessment of the actor has done

· Friend InformantsàUnited States v. White (1971)→NO 4A search. The secret electronic recording of conversations between an individual and government agents though an informant, without a warrant, does not violate the 4th Amendment to the US Constitution

§ The court ruled that under Hoffa v. US, the D does not have reasonable expectation of privacy when he has a conversation with a friend who later turns out to be a police informant.

§ The D takes the assumption of risk when he discusses his crime with anyone and his conversation is not protected. The US Supreme Court found that the 4th Amendment does not protect those who trust someone who turns out to be a police informant.

ü False and fickle friends- you have no expectation of privacy under the objective prong– this is your own risk and there is no constitutionally protected expectation that the person will not reveal convo to police

i. False friend- friend is wired and transmitting to the govt

ii. Fickle friend- your friend blabs

§ Harlan’s concurrence emphasizes that technology really matters and telling what happened is not the same as recording

· Dialing a Phone #à

i. Smith v. Maryland (1979)→ NO 4A search. State is prosecuting a robber, Smith, for robbery when Smith made a threatening phone call from his house to the victim after robbing the victim, and the telephone company installed a pen register to catch the D upon the police’s request. Installation was done by the telephone co., like a fickle friend/ informant.

a. To be searched must have a legitimate expectation of privacy of the numbers dialed on his phone.

b. Held: Even if Smith did have subjective expectation of privacy, prong 2, fails because objective society does not recognize this expectation as reasonable b/c people in general don’t have an expectation of privacy in the numbers they dial. They expect #s to be conveyed to telephone co. for billing, detect fraud, prevent violations of laws, and generally have the awareness that they are used to ID people making annoying calls.

ü Phone numbers are automatically surrendered to telephone company, pen registerà3rd party doctrine. If giving info to 3rd party, then no legitimate expectation of privacy. Assumption of risk when trusting 3rd party with data

ü No expectation of privacy simply upon dialing numbers

ü Govt not engaging in a direct interaction with the “suspect”

2) Homes/Space

i. Kyllo v. United States →YES 4A search. Thermal imager on home to scan for suspected marijuana growth.

· Held: 4A draws firm line at entrance of the house, with expectations of privacy. Govt is using a device not in general public use to explore details of the home which would have been previously unknowable without physical intrusion.

i. This makes the requirement for technology to be in general public use→ makes this unclear→ open question whether this will effect analysis under Katz

· This is more than naked-eye surveillance of the home. This is compared to Dow Chemical with aerial surveillance of plant. It did not detect private activities occurring in private areas. Also, no sanctity of the home.

· Visual observation is no search at all

ii. Open fields doctrine: open fields are not a search and do no implicate 4A.

· This can include an unoccupied or undeveloped area outside of the curtilage of home. Persons, houses, papers, and effects is not extended to open fields.

· Unoccupied or undeveloped land area outside of curtilage of home – entrance into open field is not a 4A search

· Oliver→ NO 4A search. Police trespass on D’s rural property ignoring the no trespassing signs and discovered fields of marijuana. Said this was OK

iii. Curtilage

· Area outside of home where activities associated with privacy of home take place (porch, backyard, driveway, garage) –if curtilage then expectation of privacy

· There is not a bright line test, it is dependent on 4 factors, proximity being the most important:

1. Proximity of the area claimed to be curtilage to 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

· Helicopter/Overflightàno legit exp. of privacy; otherwise, any viewing of anything while flying would be a violation

i. Ciraolo: Airplane over residential curtilage without warrant. 6ft outer fence and 10ft inner fence enclosing yard. Commercial airplane over no different.

o $A simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye.

o In public air space is a big factor. Said this was not a search and was therefore OK (No 4A search)

ii. Florida v. Riley: No 4A search. An officer acting on anonymous tip observed marijuana in the interior of a respondent Riley’s partially covered greenhouse from the vantage point of a helicopter. Helicopter over residential curtilage only 400 ft above.

o Court says that the reasonable expectation is physically noninstrusive and anyone flying over could have seen. No violation of 4th amendment

iii. Dow Jones Ch