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Criminal Procedure: Investigation
St. Louis University School of Law
Miller, Eric J.

The Fourth Amendment

Introduction: The Exclusionary Rule

Exclusionary rule is the dominant remedy for 4th amendment violations = improperly obtained excluded from use at trial
Remedy is not found in the language of the 4th amendment

Weeks v. United States
Exclusionary rule held to forbid introduction in federal trials of evidence unlawfully seized by federal agents

Weeks came up with the 4th amendment remedy of exclusion but only applied it to the federal government

Wolf v. Colorado
Right to privacy incorporated into the 4th amendment and held to apply to the states.

Mapp v. Ohio
D was convicted of possession of lewd pictures and photographs which were found after the police searched her home without a valid search warrant (under state law at the time, the search and seizure was proper). We hold that all evidence obtained by searches and seizures in violation of the constitution is, by the same authority, inadmissible in a state court.

Court provides 2 justifications for exclusionary remedy
Deterrence rationale = if cops know they can use illegally obtained evidence à they will follow proper procedure
Judicial integrity rationale = permitting the admittance of illegally obtained evidence perpetuates the violation of rights à judge becomes an accomplice to the violation

Mapp incorporates the exclusion remedy set out in Weeks into the 4th amendment (incorporation = applies to the states)

The Definition of Searches – Katz
Katz defines the notion of privacy which was introduced in Mapp
Privacy = the ways in which the public can prevent data collection by the government
If it’s private = covered by the 4th amendment
If it’s public = not covered by the 4th amendment à data collection power of the government is unlimited

Justice Harlan’s 2 part test in his Katz concurrence = major definition for privacy
Subjectively manifested expectation of privacy
Knowing exposure to the public = not private
Reasonable expectation of privacy (that is recognized by society)

Katz v. United States
Police placed a listening device on the outside of a phone booth and recorded conversations to be offered as evidence. Court held the government’s activities violated the privacy upon which D justifiably relied while using the telephone booth (the fact that the listening device didn’t penetrate the wall of the booth had no constitutional significance. Further, search and seizure, without prior judicial sanction and attendant safeguards, did not comply with constitutional standards (although a magistrate could constitutionally have authorized with appropriate safeguards the very limited search and seizure that government asserted in fact took place).

Courts seems to think that what a person seeks to preserve as private may be constitutionally protected à privacy is an activity
If an action is covered by the 4th amendment = you need to do the right process (get a warrant) for the invasion to be reasonable

Privacy and Property: Property

Boyd v. United States
Ds are importing plate glass into the U.S. Government claims they are avoiding customs and excise taxes and wants Ds business records detailing what the glass’ worth. D’s produced documents but objected to their receipt into evidence. Compulsory production of private books and papers = compelling a man to be a witness against himself (5th amendment violation) and is equivalent of an unreasonable search and seizure. State searches of a person’s personal property are always unreasonable.

The state’s power to search and seize depends upon whose property is sought à court is drawing a strong distinction between stuff that you own and stuff that you don’t

Schmerber deals away with the property distinction in Boyd à separating the 4th and 5th amendments (can’t be read together)
Stuff you say and write = 5th amendment
Physical testimony = 4th amendment

Schmerber v. California
DUI case in which a sample of D’s blood was taken at hospital over his objection and subsequently used as evidence of his intoxication at trial. Privilege against self incrimination protects accused only from being compelled to testify against himself or otherwise providing the state with evidence that is testimonial in nature à withdrawal of blood = not testimonial and therefore not a violation of the 5th amendment.

Under Boyd the government would not have been able to take D’s blood = destroys the intermingling of the 4th and 5th amendments

Warden, Maryland Penitentiary v. Hayden
Articels of clothing were seized, pursuant to a search warrant, from D’s home as evidence that he had participated in a robbery. D challenged the search as a violation of the 4th amendment under Boyd. Court discards the use of property interests to define searches and seizures and firmly overrules Boyd.

Idea in Hayden is that process = protection (court is talking about a hardcore warrant requirement)

Privacy and Property: Privacy
If something is within the protection of the 4th amendment = Katz and Hayden tell us need a warrant

General idea = the further away we get from the home the less reasonable our expectation to privacy is

Florida v. Riley
Police helicopter hovering at 400 feet above D’s property observed with the naked eye marijuana plants. Police did not engage in an search where no law prohibited public from hovering at 400 feet (law only prohibited hovering at 300 feet) = so long as the police are where the public could legitimately be, no search, and therefore no 4th amendment issue.

Illinois v. Caballes
Police officer stopped D for speeding and second police officer arrived at the scene and walked his drug sniffing dog around the car. Dog alerted at the trunk, where the police found marijuana and arrested D. D moved to suppress the evidence. Court concluded that conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner. Official conduct that does not compromise any legitimate interest in privacy is not a search subject to the 4th amendment à the expectation that certain facts will not come to the attention of authorities is not the same as an interest in privacy that society is prepared to consider reasonable.

Drug dogs only detect drugs = all the dog is doing is searching is particles in the public domain (depends upon our characterization of the data)

Knowingly Exposed
Knowing exposure doctrine depends upon society’s reasonableness of privacy expectation (Harlan’s 2nd prong)

United States v. White
Police used wired place on informant to transmit drug sale information by D. Police also listened to statement made from closet in D’s home. Informant was unavailable for trial, so the prosecution wanted to just use the tapes. No 4th amendment violation because D has no reasonable expectation of privacy in statements made to another person; D always takes the risk that a person will talk to the police.

Bright line rule = you don’t have an expectation of privacy because anyone talk to could flip and talk to the government
Rests upon a rejection of the notion that a communication is mutual or trusting à problem = listener gets to determine the privacy of the conversation and not the speaker (rejects idea that a speaker would self censor if they knew the other was wired)

In Greenwood exposure seems to mean risk of public access

California v. Greenwood
Acting on a tip, Police searched opaque trash bags left on the curb of D’s home and used the resulting evidence of narcotics as a basis for a search warrant. Items left in trash bags on street have been knowingly exposed to the public, thus negating any reasonable expectation of privacy = not protected by the 4th amendment.

Court’s rationales
D’s express purpose was to convey data to 3rd party
D abandoned the property
D risked the possibility that garbage might be rummaged through à this rationale worries the dissent = wants the government to be held to higher standard particularly given the personal details that can be revealed by rummaging through one’s trash

More on Searches, Privacy, and Technology
White establishes that social standards can frustrate personal expectations of privacy à can we avoid exposing personal information given socially accepted advances in technology

Knotts and Karo turn on the place of surveillance and the limits of enhancement (2 issues)
What place are we talking about
How much information is conveyed by the device being used

United States v. Karo
DEA used a beeper to track the movement of drums of ether from: D’s house à H’s house à H’s father’s house àcommercial storage à self storage à R’s house à house in Taos. DEA lost visual track of the drums after D’s house and didn’t pick it up visually until the self storage facility. Monitoring of electronic beeper in private residence, a location not open to surveillance violates the 4th amendment rights of those who have a justifiable interest in privacy of their residence.

Worry in Karo = if technology reveals something that an officer can’t simply have seen visually, like what’s inside a house, it’s inside the 4th amendment
Once you’re inside the home à you need to get a warrant

Kyllo v. United States
Police used a thermal imager to conclude that D was growing marijuana in his house. Based on tips from informants, utility bills, and the thermal imaging, Police got a warrant searched the home. D moved to suppress the evidence seized from his home. Government use of thermal imaging device, not in general public use, to discover details of a home that would have been unknowable without the physical intrusion of the house constitutes a search and is unreasonable without a warrant.

Kyllo reaffirms the Katz analysis and warrant requirement for the home à draws a bright line around the home (in contrast with the movement of people)
A search occurs if anything directly reveals people or objects in the home

TWEN Problem 1(A)
Officer Don Mattingly applied for and received a search warrant from a judge, to search the defendant’s apartment for marijuana and other contraband. In support of the warrant request, Mattingly submitted an affidavit in which he referred to an anonymous tip that defendant lived in a particular apartment and that he may be growing marijuana there. The informant told Mattingly that he had seen defendant and another man carry a carbon dioxide tank and other equipment into defendant’s apartment. He also told Mattingly that from the hallway of the apartment building he could smell the odor of marijuana plants emitted from the defendant’s apartment. Through defendant’s open windows, the informant also had observed a very bright white light, which he described as “growing lights,” as well as the tops of the marijuana plants. He also described the defendant as a Caucasian male, five feet eleven inches tall, weighing 180-200 pounds. Mattingly observed defendant’s name on the apartment’s mailbox, and verified his build via a computer check of arrest records.
In the affidavit, Mattingly asserted that he checked the utility records for the defendant’s apartment and two neighboring apartments in defendant’s building that were the same size. The record showed the defendant’s average kilowatt usage was more than three times that of either of the other two apartments for the preceding year. He also returned to defendant’s apartment and aimed a thermal imager at the bedroom area of defendant’s apartment. He did not physically cross any fence lines or enter any curtilage area while using the thermal imager. Based upon his prior training and experience with the imager, he concluded that the surface temperature of defendant’s structure was significantly higher than that of similar adjacent structures. The search pursuant to the warrant yielded marijuana plants and seedlings, sprouts, seeds, bagged vegetable matter, and some drug paraphernalia. The thermal imager allowed them to gather information regarding the interior of the defendant’s apartment that they otherwise could not have gathered without a search warrant.
Defendant moves to suppress any evidence obtained during the search of his apartment. Should the motion be granted?

In Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L.Ed.2d 94 (2001), the Court held that, when “the Government uses a device that is not in general public use, [such as a thermal imager,] to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ [under the Fourth Amendment] and is presumptively unreasonable without a warrant.” The use of “sense-enhancing technology [to obtain] any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion . . ., constitutes a search–at least where (as here) the technology in question is not in general public use.” “The Fourth Amendment dra

determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer’s requests or otherwise terminate the encounter.

California v. Hodari D
D fled at the sight of an approaching police car. While being pursued, D tossed away a small object that turned out to be crack. Seizure requires that the officer’s use of physical force or show of authority has somehow restrained the individual (physical restraint which is actually achieved). Seizure does not occur if the person does not yield.

3 basic rules/tests on issue of whether a person has been seized
Through means intentionally applied (Brower)
Reasonable person free to leave (Bostick) à this test fudges the line between coercion and consent
Objective test = would a reasonable innocent person feel free to leave or coerced into staying given the officers display or non display of force?
Subjective test = what is going on in the officer’s mind?
Physical restraint which is actually achieved (Hodari D)

Idea is if it’s not an encounter = outside the 4th amendment à cheap policing because there is no procedure governing what the police can and cannot do

United States v. Drayton
3 police officers boarded a bus and asked D if they could search his bag. D consented and no contraband was found. D then consented to a search of his person which revealed cocaine. Using Bostick, the court found that the police did not seize D when they boarded the bus and began questioning passengers. Court rejected the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search.

TWEN Problem 2
At a suppression hearing, Officer Crooke testified that three Drug Enforcement Agency officers approached Wilson as he was leaving Washington National Airport carrying two coats and a carry-on bag. After the officers identified themselves, Crooke asked whether Wilson could speak with them. Wilson agreed. Crooke then requested identification, and Wilson produced a check-cashing card.
After explaining DEA’s purpose, Crooke obtained Wilson’s permission to search his bag. Wilson also volunteered to let Officer Prince pat him down. Both searches proved unproductive. Wilson then angrily refused to allow a search of his coats. Questioned about this refusal, Wilson said that he wanted some things to remain private.
When Wilson then asked why the agents were stopping him, Crooke responded that Wilson was free to leave. Walking beside Wilson, Crooke asked whether he would at least let a trained dog sniff his coats. Wilson agreed but refused to go to a police station for this purpose. Crooke then noticed a large bulge in the brown coat. Following Wilson to the taxi area, Crooke again asked why he would not permit a quick pat-down of the coat. Wilson responded that he was late for an appointment; Crooke replied that a pat-down would take only a second. As the exchange continued, Wilson’s voice got loud, and he complained of being harassed. In Crooke’s words, “he had to be asked numerous times by myself and Officer Rogers to please quiet down.”
“Eventually,” Crooke added, “he agreed to allow us to search the coat.” When Crooke went straight to the bulge, Wilson snatched the coat and leaped over the taxi railing. Although Rogers was able to grab Wilson’s foot, Wilson broke away. While running, he tossed his brown coat in the air. Shortly thereafter, the officer caught Wilson and retrieved the coat from where he had thrown it. The bulge was a package of crack cocaine.
What result? Was Wilson “seized” at any point before the officers apprehended him? If so, when? Before his apprehension, did Wilson submit to the officers’ authority or did they otherwise restrain him? Was Wilson seized when Rogers grabbed his foot?

In California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L.Ed.2d 690 (1990), the Court held that a seizure requires that an officer’s use of physical force or show of authority has somehow restrained the individual. A seizure does not occur if the person does not yield. The Court, in effect, rejected any notion of attempted seizure. Two issues are present in this problem: First, did the officers manifest sufficient authority to convert what started out as a consensual encounter into a seizure? Second, if so, at what point did they actually effectuate a seizure?
The defense will argue that the encounter lost its consensual nature when Wilson terminated the consent and refused to permit the officers to search his coats. Whether the officers manifested sufficient authority to convey to a reasonable person that he was not free to leave when he was first questioned about this refusal, see Florida v. Bostick; United States v. Meldenhall, certainly by the time they reached the taxi area, with the officer still persisting, the officer was conveying to a reasonable person that he was not going to take no for an answer. The prosecution would argue that while the officer was persistent, the encounter never lost its consensual nature. In fact, when Wilson, asked why he was being stopped, the officer responded that Wilson was free to leave.