Select Page

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

Criminal Procedure: Investigation

Professor John Barrett

Fall 2015

Chapter 2: Fourth Amendment Overview

Scope of 4th Amendment (value v. power)

Event — Government action — Search & Seizure — Probable Cause—Warrant– Evidence used

Who should be protected and against who?
Components of 4th Amendment

Reasonable Clause: current view of the right of this amendment, against unreasonable search and seizure.
Warrant Clause: onepass to reasonableness, requires probable cause

A warrant: a judicial permission
Exceptions apply, because it is impracticable to get a warrant in every situation.
A warrant requirement provides a safeguard between the police and the people, a judicial review of the cause for the search.

Exclusionary Rule (Remedy for violation of 4th amendment)

Week v. United States

Applied exclusionary when violation made by fed employees
Rational: Supreme Court used exclusionary rule to preserve clean hands in the judicial system (judicial integrity) and sanction/deter the law enforcements for violation of 4th amendment.
Silver platter doctrine: while the exclusionary rule applied to fed, the states were free from the consequence, thus it allowed the state to obtain the evidence to delivery them to fed.

Wolf v. Colorado

Fact: Dr. Wolf argued that the Colorado violated his 4th amendment rights for unreasonable search and 14th amendment of due process, and sought for suppression of the evidence.
Holding: Court denied the remedy requested since the 4th amendment and 14th amendment are constitutional rights, but the remedy is not provided in the constitution. And most of the states did not adopt exclusionary rule.
Reasoning: as the remedy because it would affect on large number of police works and evidence seized.

Rochin v. California

– The court in this case applied the exclusionary rule based on the specific facts that the state went physical to obtain the evidence. It was still not automatic remedy.

Mapp v. Ohio

In the circumstance of nonemergency, a reasonable search required warrant. A warrantless search of a private house in this situation is a plain 4th amendment violation.
Exclusionary rule applied to state.
The 4th amendment’s right of privacy has been declared enforceable against the states through the Due Process clause of the 14th amendment.
The Supreme Court held in Wolf that exclusionary rule should not apply to states because they thought there were other means of protections to the people’s right to privacy rather than extend the law and most of the states did not adopt the rule. But over the 10 years Wolf was decided, over half of those states that did have the rule, adopted the rule either through legislature or judicial decision. Even the state court convicted Wolf, through its judicial decision, adopted the rule and stated that there was no other means to secure compliance with the constitutional provisions.
Constitution grants the rights and Supreme Court has the power to review decisions from lower courts in regard of violation of constitution. And exclusionary rule is constitutionally required remedy.

Chapter 3: Unreasonable Search and Seizure

A. What is a “Search”?

General Principles

Katz v. United States (based on legitimate expectation of privacy theory)

Before Katz, physical invasion is required.
Katz court held that a search can be done without physical penetration.
Privacy is the underlining value of the having a 4th amendment right.
Katz had the legitimate/reasonable expectation of privacy when he had the conversation in the phone booth as the society as a whole expected.
Evidence searched in this case was intangible
2 Prone Test of expectation of privacy

Subjective expectation of privacy: personal expectation
Legitimate/Objective expectation of privacy: reasonable legitimate expectation the society feels (kind of the shock of the conscious judicial consideration in Rochin)

The Katz Doctrine in Application

United States v. White

– Assumption of the risk nullified the legitimate expectation of privacy.

Smith v. Maryland (pen register)

Assumption of the risk
Third party doctrine: a person has no expectation of privacy over information given to a third party. In this case, the phone company is a third party defendant in trusted.

Oliver v. United States

Open fields doctrine: provides that police entry of an open field does not implicate the 4th amendment, might include any unoccupied or undeveloped area outside of the curtilage of a home. The open field does not have to be open nor field. Because there are no intimate behaviors occurred in the open field as of private home or curtilage. Preserving the traditional notion of 4th amendment violation on the theory of trespass. This is a judicial determination.
: This open field doctrine is not excluding 4th amendment protection of business building.
Curtilage: four factors

The proximity of the area;
The area is included within an enclosure surrounding the home;
Nature of the uses to which the area is put;
Steps taken by the resident to protect the area from observation by people passing by.

California v. Greenwood (garbage case)

A person does not have a reasonable expectation of privacy in garbage left outside the curtilage of a home for trash removal.
The assumption of the risk also applies.

California v. Ciraolo

Aerial Surveillance of a Curtilage: flying over in the are to obtain information is not a search when it’s on the legally restricted altitudes.

Future Technology

Kyllo v. United States (Thermal Imaging)

United States v. Jones (GPS)

of the court decided the action of the police to put a GPS is a 4th amendment violation search based on the theory of traditional notion of trespass. It does not contradict with Katz, since expectation of privacy is an added on, not a substitute of the traditional notion of trespass.
The minority of the court also decided the installation of the GPS is a violation but on the sole ground of expectation of privacy, and denying the notion of trespass.
Justice Sotomayor concurred the majority on the theory traditional trespass since it was a clear physical penetration in this case, but she also applied the expectation of privacy ground.
Mosaic theory: the overall length of surveillance and the overall information obtained together may lead to a search rather than a single event.

Florida v. Jardines (Dog Sniff in front of the house)

Justice Scalia used the traditional trespass theory again in this case to decide that the dog sniffing in a curtilage is a violation of 4th amendment. Since police activity, in this case searching, is not a licensee.
Justice Kagen in this case, with Ginsburg and Sotomayor concurred in separate opinion, using Katz’s expectation of privacy to supplement the reasoning of the decision.
Dog sniff in open field is not a search since possession of contraband is not legitimate interest.

B. What is a “Seizure”?

United States v. Karo (beeper in container)

– Issue: whether installation of a beeper in a container of chemicals with the consent of the original owner constitute a seizure within the meaning of the 4th Amendment when the container is delivered to a buyer having no knowledge of the presence of the beeper.

– Holding and Rule: The transfer of the container does not constitute a seizure. A seizure of property occurs when “there is some meaningful interference with an individual’s possessory interest in that property.

: when the government is asserting “dominion and control” over the property or person.

Objects subject to seizure:

Contraband: evidence that may not lawfully be possessed by a private party;
Fruits of a crime: data collected from or regarding defendants
Instrumentalities used in the commission of an offense (e.g., weapon, automobile, etc.)
Mere evidence: an item of value to the police solely because it will help in the apprehension or conviction of a person for an offence (e.g., blood stained shirt.)

Seizure of a person: Supreme Court held seizure of a person occurred when there is an arrest, or when the officer, by means of physical force or show of authority has in some way restrained the liberty of a person (e.g., temporary detention of a person by an officer constitutes a 4th Amendment seizure.)

Chapter 4: Substance of the 4th Amendment

Probable Cause (common law sufficient reason, a lower standard than it has been conceived)

Carroll v. United States

Probable Cause to Arrest: the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that (1) an offense has been or is bein

e supplementation of the detective’s affidavit, if failed the two-prong test set forth in Spinelli.
Supreme Court overruled the lower court’s decision, stating that the “reliability” and “basis of knowledge” should be considered in totality of the circumstances rather than as entirely separate. A deficiency in one may be compensated for by a strong showing as to the other or other indicia of reliability in determining the overall reliability of a tip.
: Probable cause determination has been that so long as the magistrate had a “substantial basis for concluding that a search would uncover evidence of wrongdoing, which allowing the magistrate to make a practical, common-sense decision regarding the “reliability” and “basis of knowledge” in the given circumstance.
Overruled the “two-prong test” and established the new “totality of the circumstances” analysis. The two-prong test makes the determination of probable cause a complex one then it should be. If probable cause has to be determined based on the police collaboration, there is no need for the tip or evaluating it.
Anticipatory warrant: a warrant based upon an affidavit showing probable cause that at some future time, certain evidence will be located at a specific place.

Franks v. Delaware

The warrant was issued based on the two co-workers information provided in interview in the affidavit of police’s application. The facts turned out the information was never provided and police lied on the application, evidence suppressed.
The system allow some harmless error to occur, it does not have to be totally accurate.
The warrant application gives the judges 4 things:

Arrest Warrants

Payton v. New York (1980)

Tow separate cases: (1) warrantless arrest made when police went to arrest Payton at night time in his home, but after police forced into Payton’s residence, Payton was not there but they seized a gun as evidence introduced on trial against him for his murder charge; (2) Riddick was identified by the victim for armed robberies, police went to his residence to arrest him; his son opened the door and arrested Riddick in his home without a warrant.
In each case, probable cause was established.
Issue: whether and under what circumstances an officer may enter a suspect’s home to make a warrantless arrest.
Arrest in common law: arrest in public place is not required a warrant.
The arrest warrant requirement applies when the arrest is made in the house due to the historical background of 4th amendment. And there has to be a reasonable basis to believe the suspect is in the premises.

Use of Force

Tennessee v. Garner
Scott v. Harries

The force used to stop Scott is based on probable cause to prevent danger to innocent persons on the road.

Ker-Frisbie Doctrine: illegal arrest outside of the country to seize the person.
Exigent Circumstances: Exceptions of Payton

Hot pursuit of a fleeing felon
Imminent destruction of evidence
Need to prevent a suspect’s escape
Risk of danger to the police or to other person inside or outside the dwelling.

Steagald principle: Arrests in a third person’s residence

Steagald v. United States

A valid arrest warrant was issued to arrest Lyons at Steagald’s house. Lyons was not there, but police arrested Steagald instead when they saw drugs in the premises.
The evidence seized should be suppressed since the police did not have a search warrant for Steagald’s house. Even Lyons was in the premises and he was arrested, the evidence seized regarding Steagald should still be suppressed.