CRIMINAL PROCEDURE
SEARCHES AND SEIZURES
· Basic Principles
o Criminal Case Distinction: Crim /civil distinction is matter of statutory construction of
§ (1) Whether Congress explicitly/impliedly expressed preference, and
§ (2) Whether purpose or effect is so punitive as to negate Congressional intention (only the clearest proof).
§ Ex: penalty for discharging hazardous waste is civil, so reporting duty doesn’t violate 5th Amnd.
o Incorporation Doctrine: A C-based decision ordinarily will bind both states and Fed. When an Amnd is “incorporated” via 14th, the fed case precedent is incorporated as well.
§ 3 Different Tests to Determine if Incorporation Applies:
· 1) Shocks the Conscience: Rare, what it sounds like; state behavior must shock the conscience
· 2) Fundamental Fairness: Is the state behavior offensive to Anglo-American fundamental justice?
· 3) Selective Incorporation: Is the state behavior prohibited by a specific Bill of Rights Amend that the Ct considers fundamental to Anglo-American scheme of justice. This is the current approach.
§ Recap on Residual Protection Provided by the Due Process Clause:
· Citizen cannot rely on a right to “due process” if a specific Bill of Rights guarantee would provide the same constitutional protection.
· Where a specific Bill of Rights protection has traditionally regulated an area of criminal law, but provides no protection in a particular case, it’s unlikely that he can rely on a more general DP right.
· Independent protection under the DP Clause remains viable where gov activity, as in Good, has some purpose other than enforcement of the criminal law.
· Independent protection under DP Clause remains viable even in crim cases where no specific Bill of Rights guarantee has traditionally applied.
o Retroactivity: New rules are generally inapplicable to those whose convictions have been finalized (certiorari), including those who bring it up on collateral review (habeaus corpus), unless it is either:
§ private, individual, primary conduct that shouldn’t have been criminalized, OR
§ a procedure that changes the likelihood of an accurate conviction.
· Searches and Seizures of Persons and Things
o 4th Amnd: 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 PC, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized.
o The Basics of the 4th Amnd
§ “The People” as a Limiting Term: 4th doesn’t apply to a search of property that is owned by a non-resident alien and located in a foreign country. Ct refused to decide whether a resident illegal alien who lived in the US was one of “the people” protected by the 4th Amnd.
§ The Reasonableness Clause and the Warrant Clause: searches and seizure are presumed to be unreasonable unless carried out pursuant to a warrant. Some exceptions apply, and when they do, only the reasonableness requirement must be satisfied.
o Exam Issue: Was there a search or seizure?
§ If gov activity isn’t a search or a seizure it’s not regulated by the 4th and t/f doesn’t have to be reasonable
§ Consequence of finding a search/seizure is that the gov has to act reasonably, whereas the consequence of not finding a search or seizure is that gov officials can act unreasonably and arbitrarily.
o When is a “Search” a Search?
§ Katz Principle: A 4th Amnd search/seizure is only when a person’s “reasonable expectation of privacy” has been violated. 4th Amnd search does not occur unless the individual…
· 1) manifested a subjective expectation of privacy in the object of the challenged search AND
· 2) society recognizes that expectation as reasonable.
§ Subjective Manifestation of Privacy
· Affirmative Steps: people must take affirmative steps to protect their privacy interests; otherwise, a police inspection won’t constitute a search b/c of failure to satisfy “subjective manifestation” of Katz
o Ex: no search where officer used ladder to peer into plane and D didn’t attempt to stop him.
· Abandonment: Abandoning property is inconsistent w/ retention of any subjective privacy interest
o Ex: Abandonment often found when person denies ownership of a container in police inquiries
§ Society’s Acceptance of Expectation of Privacy
· 3 Legitimate Interests
o 1) Physical disruption and inconvenience
o 2) Personal or Embarrassing info
o 3) Control over and use of property
o 4 Factors For Applying Katz:
§ 1) Extent of Intrusion: Is the intrusion minimal?
· Use of technology to enhance inspection: If gov uses a device that’s not in general public use to explore places that would have been unknowable w/o physical intrusion, it’s a “search”
· NOT “Searches”:
o Canine sniff of bag is not a search b/c bag isn’t opened. But can’t detain bag and wait for the dog – would be illegal seizure. BUT, even if the dog sniffs drugs, if the cops open the bag it’s a search. If dog sniffs drugs, it constitutes legally obtained info that can be brought to a judge in to try to get a warrant. Judge determines if the positive alert constitutes PC.
o Chemical test: testing of powder was not a search.But, if the powder is destroyed, it’s a seizure
o Electronic Beepers to Track Movements: Can be used to track public movements (movements visible to the public, like driving on the road). Can be put in gov property (i.e., chemical can) to track public movements.Can be used to track where something is inside a private residence.
· “Searches”:
o Thermal Imaging: Thermal detection devices used to detect drug growing operations constitute a search b/c the device is not in general public use.
§ 2) Access by the Public: If public has access to aspect of a person’s life so do police and it’s not a search.
· Not “Searches”:
o Consensual Electronic Surveillance: if person agrees to surveillance, it’s not a search.
§ Example: where an informant wears a wire.
o Financial Records: banks maintain records of their clients’ and certain checks and transactions.
o Telephone Numbers: The use of a pen register (device that records #’s called by a phone) does not constitute a search. Now requires the “provider” give consent or a court order is obtained.
o Garbage: rummaging through trash bags not a search b/c the public had access to the bags.
o Public areas: but must determine if the area is truly “public.”
o Aerial surveillance: b/c anyone flying in public airspace could have peered into the yard, the defendant had no reasonable expectation of privacy against aerial surveillance by police.
· “Searches”:
o Manipulation of bags in public transit may consist of a “search” regulated by the 4th Amnd if the manipulation exceeds the casual contact that could be expected from other passengers.
§ 3) “Where” Activity was Conducted
· Not “Searches”:
o Open Fields: do not trigger 4th Amnd b/c it’s not a person, house, paper, nor effect. An open field doesn’t technically have be either “open” or a “field”
§ Curtilage ≠ Open Field: open field rule doesn’t include curtilage, which is private.
§ NOTE: Must Be Only Observation Searches:
· Ex: Cops can’t dig up property, this raises 4th Amnd – unless it is reasonable.
o Prison Cells: no expectation of privacy in prison cell. T/f, 4th isn’t implicated when guards search and destroy some of his contents in the process.
o Public Schools and Public Employees: Students: have a legitimate expectation of privacy when attending public schools. (Can still be a reasonable search, though). Public employees can have a reasonable expectation of privacy in their workplace.
· “Searches”:
o Curtilage: Refers to the land and ancillary buildings associated w/ a dwelling. Reasonable expectation of privacy w/in curtilage, but not to open fields outside curtilage. (However, there’s no reasonable expectation of privacy to things that can be seen from public property)
§ Factors: use of property (i.e., hot tub); distance from home (i.e., 10 feet or 110 feet); steps taken to ensure privacy (i.e., high fence)
§ 4) Nature of Activity When Observed:
· Ex: was the conduct illegal (i.e., growing marijuana)?
o Investigative Activity Conducted by Private Citizens
§ Private Activity Rule: search/seizure by private citizen is not protected by the 4th Amnd.
· EXCEPTION– citizen can’t act as gov agent: Gov officials can’t avoid 4th Amnd requirements by enlisting private individuals to do what gov officials cannot.
§ Private citizen gives package to cop = search. If a private citizen gives a package that is not his to the cops and if it’s it is not open, and the cops open it, then it is a search and seizure.
§ Private citizen opens package, cop reopens package ≠ search: If a private citizen has already opened a package and reported its contents to cop, then it is not a search and seizure.
§ Police entry into residence after private entry: If private party’s intrusion was reasonably foreseeable, occupant loses reasonable expectation of privacy and subsequent police search won’t trigger the 4th.
o Foreign Officials: Cts have uniformly held that evidence obtained by foreign police from searches in their country is generally admissible, regardless of whether the search complied with the 4th.
§ Two Limited Exceptions:
· Shock the judicial conscience
· US agents participate
· Exclusionary Rule
o Standing to Invoke 4th Amnd Right Violation: After determining that a search has occurred, next step is to determine if D’s personal 4th Amnd rights were violated. (? of whether personal rights have been violated is a separate ? from whether a search has occurred, even though both questions are governed by the same test.) Still must consider standing ?’s even though you’re not supposed to use standing. Call it “standing”
§ TEST: To claim 4th Amnd protection, D must demonstrate that…
· 1) he personally has an expectation of privacy in the place searched, AND…
· 2) his expectation is reasonable. Rakas
o Factors to determine if reasonable expectation if at other person’s house:
§ reason for being at house (i.e., is it commercial or personal),
§ the period of time on the premises, and
§ D’s previous connection to the householder (i.e., whether he had been there before).
§ Examples:
· Confession cases: Standing requirement means that in the case of an illegally-obtained confession, only the person who makes the confession may have it barred by the exclusionary rule.
o Ex: Suspect A confesses w/o being given Miranda warnings. In confe
.e., drugs) b/c he did not have a 4th Amnd right violated – no illegal search against him.
§ 4th Amnd Violation that Produces no Evidence: ER is not applicable unless evidence is seized as a result of a search. If no evidence is obtained, there is nothing to exclude. ER does not apply to a person who is illegally arrested, only to evidence.
§ 4th Amnd Violation that Produces Evidence: Three Rules
· 1) Attenuation Doctrine: If enough additional factors intervene b/t original illegality and final discovery of evidence, the link b/t the 2 is so far that the ER will not be applied. Issue is whether there’s a causal chain b/t the illegal search and the evidence or whether chain was broken.(Was illegal search/seizure actually the but-for cause of the fruit?) Ct looks at the following factors:
o if Miranda warnings were given (if it came from a confession); and if they were given prior to a confession obtained by exploitation of an illegal arrest.
o the temporal proximity of the illegal arrest and testimony;
o the presence of intervening circumstances; AND
o the purpose and flagrancy of the official misconduct.
· 2) Independent Source Doctrine: When cops have 2 paths leading to info, and only one path begins w/ illegality, the evidence isn’t deemed fruit of poisonous tree, and is not barred by ER.Ultimate question is whether the legal search pursuant to a warrant was in fact (subjective standard) a genuinely independent source of the info and evidence.
o Policy: while gov shouldn’t benefit from illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. (if the cops discover something illegally, it shouldn’t stop them from discovering it legally?)
o Ex: Cops illegally search D’s house and find heroin. After illegal search, cops get warrant and legally search D’s house and turn up the heroin again. Under independent source doctrine, provided that the warrant was not obtained b/c of PC gained through the illegal search, the evidence of the heroin is admissible.
· 3) Inevitable Discovery Doctrine: Evidence is admissible if it would “inevitably” have been discovered by legitimate police techniques had it not first been obtained through illegal discovery. (Note that if the evidence is actually discovered through legitimate independent means, the independent source exception would apply anyway.)
o Inevitability: Must show the cops inevitably would have discovered the evidence. Ct focus on what officers actually would have done, not on what they possibly could have done.
o Ex: Cops illegally search D’s house while warrant is pending, find pot. Cops don’t wait for the warrant and seize the pot. Warrant would have allowed them to search the house legally and thus the evidence would have been discovered through legitimate means independent of the official misconduct, so inevitable discovery exception applies and evidence is admissible.
o Ex: Cops illegally get info out of D that leads them to find the body at 8pm. But they already had snowplows searching for the body that inevitably would have found the body at 8:15pm.
o The Exclusionary Rule in Detail: ONLY FOR CRIM LAW NOT CIVIL!!!
§ Procedure: A copy of search warrant is either provided to the person whose premises are searched or left at unoccupied premises. Accompanying copy of the warrant is a list of things seized. When person whose property is taken wants to challenge validity of search, a motion to return evidence and/or to suppress the evidence can be made. officer’s misstatement is not material if PC would exist even w/o the misstatement.
· Suppression Hearing: Where the D testifies at the pre-trial suppression testimony, the prosecution cannot use this testimony against the D at trial.
§ Attacking the warrant: D can try attacking the warrant on the grounds that it had false info (i.e., officer lied), but this requires deliberate, material falsity on behalf of the gov official.
§ Challenging Warrantless Search: Once it’s established no warrant was had, gov must justify the search
§ The Hearing and Judicial Review: At the hearing, the gov has the privilege to protect the identity of informants. In a suppression hearing in fed ct, general rules of evidence are not applicable.
