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Criminal Procedure: Investigation
St. Louis University School of Law
Goldman, Roger L.

       The Amendment
o    “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 persons or things to be seized.”
o    Definitions
§ “the people” à means both innocent and guilty, does not apply to nonresident aliens
§ “unreasonable” à presumption is a s/s w/out a warrant is per se unreasonable (note, when a warrant exception applies, then the s/s must only w/stand the “reasonableness” requirement)
§ “probable cause” à minimum showing to obtain warrant, s/s will be deemed unreasonable if conducted w/out PC (thus if warrant exception applies; the s/s must still be conducted on a basis of PC)
o    2 main clauses of the 4th: Reasonableness clauseand thewarrant clause
§ Prosecution argument: the search or seizure was reasonable given the particular circumstances
§ Defendant argument: unreasonable b/c no warrant was issued (if no warrant issued)
o    Violating the amendment
§ The concern is NOT if its violated but if evidence obtained from the violation can be admitted to trial
§ No violation if the conduct in question is not a search or a seizure, then the following 4th A requirements are irrelevant:
·         Unreasonable conduct
·         No warrant
·         No probable cause
o    4th A protects 2 different interests
§ Search à Interest in retaining possession of property
§ Seizure à Interest in maintaining personal privacy
o    Distinguish from 5th & 6th Amendments
§ The amendment applies to everyone, whereas the 5th and 6th only apply to criminal defendants
§ the exclusionary rule only applies to 4th A violations
       The Warrant Model
o    The 4th A requires a warrant or a warrant exception
o    Searches or seizures w/out search warrants or arrest warrants are presumptively unreasonable unless a warrant exception applies
       The Reasonableness Model
o    The 4th A does not require a search warrant, even where one can be obtained
o    Searches must not be unreasonable; having a warrant is only a factor in determining if its reasonable
o    Thus arguments under this model:
§ Majority: the search was still reasonable despite a lack of a warrant
§ Minority: the search was still unreasonable even though a warrant was obtained
(general rule: The 4th amendment protects against unreasonable searches and seizures (i.e. unlawful arrests). Searches: if a search is protected by the 4th Amendment and is conducted without a warrant, it is presumptively unreasonable.   For the search to be protected by the 4th Amendment, the defendant must have a legitimate expectation of privacy in the search and that expectation of privacy must be accepted by society. If the search is not protected, then it may be conducted in any manner no matter how unreasonable. However if it is protected, then the officer must 1) have probable cause to believe that 2) there is evidence of a crime or contraband to be found 3) in the particular place searched. If the officer does not have PC, then the search may only be considered reasonable if it is within the parameters of a Terry Stop or if the defendant has consented to the search. However, if probable cause has been established, he may then obtain a warrant. However, then only will the search be reasonable if the warrant is both issued and executed reasonably. That is, the warrant describes in particularity the place to be searched and the things to be seized and is executed pursuant to the Knock and Announce requirements and the search is reasonable in scope and in the manner carried out. If the officer (in relying

ant have a reasonable expectation of privacy
·         Affirmative steps required
o    Individuals must take affirmative steps to protect their privacy interests
o    As long as what is invaded is kept private, irrelevant if in public place (in this case D kept his phone conversation private by turning inward and shutting door to booth, even though he was in a publicly accessible place)
·         Conduct inconsistent w/ taking affirmative tests will result in no 4th A violation (b/c its inapplicable as there is no S/S in the first place)
o    What D knowingly exposes to the public; Examples:
§ Leaving the windows open in a meth lab
§ Allowing third parties to engage in or overhear his phone conversations
§ Abandoning property, i.e. leaving a bag of cocaine behind in a hotel room
o    Illegal activity à there is no legitimate privacy interest in illegal conduct
§ Objective acceptance by societyà Does society accept that expectation of privacy as reasonable?
·         Legitimate interests accepted by society
o    Personal disruption and inconvenience (search of person)
o    Personal or embarrassing info (search of person)
o    Control over and use of property (search or seizure of property)
§ 4th A violation when there is some meaningful interference w/ an individual’s possessory interest in that property (Soldal)
       Application of Katz, big picture
o    Protected vs. not protected
§ if “not protected” or “no violation” then doesn’t matter if police conduct is unreasonable b/c not a search w/in the meaning of the 4th A