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Criminal Procedure: Investigation
St. Johns University School of Law
Barrett, John Q.

Outline – Criminal Procedure
Barrett – Spring 2014
Fourth Amendment
– protects houses, papers, persons, effects from unreasonable searches and seizures
– reasonableness – protection against things are unreasonable (presumptively unreasonable)
            – search/seizure becomes reasonable if there is valid warrant
            – if there is warrant, cannot be unreasonable
– valid warrant – probable cause, oath/affirmation, describes place to be searched, persons/things to be seized
            – valid warrant is just one “path to reasonableness”
– 4A not violated if gov’t complies w/ warrant clause
– w/o warrant, there can still be a reasonable search/seizure (reasonable by some other measure)
– 4A protects:
            – people in geographic U.S.
            – doesn’t apply to foreign citizen’s foreign residence
                        – framers’ intent to protect only those within U.S.
            – restrains the government from searches, not private actors
– scope of 4A
            – applies to searches/seizures
            – ask if: probable cause/proof/justification
            – if so, is there authority by warrant?
            – if not, is one needed?
                        – if not, search is okay
                        – if so, search most likely in violation, in which case evidence would be                             inadmissible
            – consider:
                        – who was actor:
                                    – if gov’t – 4A search
                                    – if not – not a 4A search
                        – was there physical trespass:
                                    – if so – 4A search
                                    – if not – was there a legit exp. of privacy?
                                                – if so – 4A search
                                                – if not – search is okay, not 4A
– Exclusionary rule – remedy that is meant to enforce right afforded by 4th
– Weeks v. U.S.
            – state officers seize evidence, give to feds., who do a 2nd search
            – 2nd search in violation b/c search and seizure w/o warrant when needed one
            – if could use evidence, would defeat purpose of 4A
– Wolf v. Colorado
            – Wolf argues 4A limit on fed. gov’t should be applied to states
            – same right exists, but not same remedy, which states are free to decide
            – prosecution in st. ct. does not forbid admission of evidence obtained by                         unreasonable search and seizure b/c of 14th
            – tort suit against them or internal discipline against police are other remedies
– Mapp v. Ohio
            – reversed Wolf
            – Mapp questioned in connection of gambling slips
            – officers demand to be admitted to home, Mapp refuses and calls L
            – officers leave w/o warrant, but return and break in
            – show Mapp what to claim to be a warrant, she takes it
            – search house and find nothing they seek, but arrested for obscenity
            – search was not reasonable b/c it violated 4A
            – state tries to use Wolf; S/C says couldn’t use supervisory authority over state rule b/c only has authority to implicate federal const. law
            – 4A prohibition against searches and seizures now applied to states
            – exclusionary rule is about deterring police from violating 4A
            – policy: is it more valuable to exclude evidence or seek alt. remedies?
– Katz v. U.S.
            – Katz transmitted gambling info over phone in phone booth
            – fed. agents used listening devices to hear
            – case is about 4A protecting people, not places
                        – prior to Katz, 4A was property based, now privacy based
                        – places matter, but behavior/reasonable expectation of people is key
                        – “privacy seeking” behavior in a private setting
            – Katz did all he could to remain private in phone booth
                        – to ignore privacy of phone booth defeats expectation of privacy protected                                   by Const.
– prior to Katz, only physical intrusions
– 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
– curtilage – area outside of home where activities associated w/ privacy of home take place (porch, backyard, driveway, garage) – legit expectation of privacy
– “open field” doctrine – unoccupied or undeveloped land area outside of curtilage of home – entrance into open field is not a 4A search
– overflight – no legit exp. of privacy; otherwise, any viewing of anything

e taken inside – search, not seizure
Probable Cause
– constitutionally necessary threshold to get a warrant
– probably a sub-50-50 proposition
– significant or substantial basis – more than a reasonable suspicion (articulable)
– not an extremely demanding standard
– probable cause to search – basis to believe there is seizable material at specified location
– probable cause to seize – to deprive of meaningful control when contraband is present and when no other 4A event is necessary
– probable cause to search/seize from a person – that person is a criminal and that the crime has been committed
Arrest Warrants
– Payton v. New York
            – p/c to believe crime was committed by these people
            – can get either arrest or search warrant
                        – arrest warrant – authority to arrest in private
                        – resident has right to exclude (property) w/o a warrant
            – arrest warrant protects property and privacy interest of homeowner
            – besides arrest warrant, gov’t must have reasonable thought that he is home (p/c        to believe he is home) – if not, can only search w/o homeowner
            – scope of search for an arrest warrant are areas where person’s body can fit
            – additional p/c requirement that he’s home protects homeowner’s property      interest
            – “home” – where one sleeps, has possessions, dominion and control, financial stake
            – common law – no arrest warrant requirement
            – p/c is not transitive to a 3rd party in a different home, even if plain sight; if        seizable stuff is at a particular location, 3rd party’s cocaine can’t be seized if in          plain view
                        – if evidence against someone not in their home, warrant not needed
            – within 48 hrs. of arrest, must be a judicial proceeding to verify p/c          determination