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Criminal Procedure
St. Thomas University, Florida School of Law
Soree, Nadia B.

Criminal Procedure Outline SOREE FALL 2011
The 4th Amendment Right to Be Secure Against
Unreasonable Searches And Seizures
Basic Breakdown of the Course:
I: The Threshold of the Fourth Amendment Right to Be secure against searches
Does the fourth amendment even apply?
II: Unreasonableness and the Probable Cause Requirement
III: Unreasonableness and the Warrant Requirement
What needs to be satisfied before a warrant is issued?
Has SCOTUS taken this requirement seriously, and what does it think of it today?
IV: Reasonable searches without Warrants: The Nature and Scope of the Exceptions to the Warrant Requirement
How does the court determine exceptions to the Fourth Amendment?
V: The Balancing Approach to Fourth Amendment Reasonableness
Certain situations do not require probable cause, but rather something less
What, how, and why?
VI: Due Process of Law and Confessions and the Privilege Against Self Incrimination and Confessions
When people do themselves in?  Why do they do it?
Due process clause as an invalidating force against coerced confession
Miranda Rights
VII: The Right to Assistance of Counsel at Trial and the Right to Assistance of Counsel and Confessions
Parallel universe to the Fifth Amendment.  Just covers a different phase of the criminal trial, once the adversarial process begins
5th and 6th are very similar and often difficult to distinguish
VIII: The Exclusionary Rules
If the defendant wins his motion to suppress illegally obtained statements or evidence, in violation of the fourth, fifth, or sixth amendments, then the evidence must be excluded.
But various exceptions create loopholes where the illegally obtained evidence can still make an appearance at trial against the defendant.
Selective Incorporation:
Barron vs. Baltimore—the Bill of Rights governs only the federal government
Eventually, the fourteenth amendment due process clause, device for controlling the state governments, conscribes the state government
Palko vs. Connecticut/ Adamson vs. California
Prevailing view early on was that the due process clause required only those rights and procedures that were implicit in the concept of ordered liberty
But this still allowed states to afford lesser rights than the federal government
SCOTUS explained that a provision of the Bill or Rights is applicable to the states as an integral part of due process if it is essential to an Anglo-American regime of ordered liberty or fundamental to the American Scheme of Justice
Moreover, in determining whether a particular provision qualifies, the court will not consider the provision in the abstract, but, rather, will evaluate it against the backdrop of the common law system of criminal procedure that has developed contemporaneously in England and in this country
This is the approach of SELECTIVE INCORPORATION
Has resulted in effective incorporation of most of the bill of rights guarantees
First, it is the 14th amendment due process clause which is the constitutional source of the controls on state law enforcement
4th, 5th, and 6th have been identically incorporated to constrain the states
Only exceptions:
The fifth amendment requirement for a grand jury indictment for capital or otherwise infamous crimes
Incorporation of the eighth amendment guarantee against excessive bail is still an unresolved issue
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 things to be searched, and the persons or things to be seized.
The language limits the scope or ability of police to search and seize
Very ambiguous though
So what is unreasonable—who decides what is unreasonable
The fourth amendment exists as the boundary line, serving notice on police of what is allowed, and what is not allowed
Is concerned with the over concentration of power in the police, fear of general warrants, rummages through privacy
Above all, concerned with the right of the citizen to be secure and private in themselves
I.            4th Amendment Checklist
A.    Does D have standing to raise a 4th Amendment challenge to the specific item of evidence in question?
B.     Did the police activity in question implicate a person, house, paper or effect?
C.     Did the police activity constitute a search and/or seizure?
D.    Were the search and/or seizure reasonable or unreasonable?
1.      Did the police have adequate grounds to conduct the search and/or seizure?
2.      Did the police act on the basis of a search warrant and/or arrest warrant?
E.     If yes to previous question, then ask:
1.      Did the police conduct the search and/or seizure on the basis of a warrant later declared to be invalid?
a.       If yes, then consider “good-faith” exception.
2.      Is there evidence that is a fruit of the poisonous tree? 
a.       If yes, fruits of poisonous tree inadmissible subject to two exceptions: the inevitable discovery doctrine, and the attenuated-connection doctrine.
II.         The Threshold Requirement – What is a search, what is a seizure? 
1.      4th Amendment protects against unreasonable searches and seizures.  If the government activity is neither a “search” nor a “seizure,” it not regulated by the 4th Amendment and need not be reasonable
2.      Interests Protected
a.       Search – interest in maintaining personal privacy
b.      Seizure – interest in:  
i.        Seizure of Person – Being free from governmental interference / physical disruption and inconvenience (look at stop and frisk)
1)       an innocent person subject to a bodily seizure suffers a 4th Amendment intrusion even though he had nothing to hide
ii.      Seizure of Property – Retaining possession of property
1)       Rarely an issue because is obvious
3.      There are 3 legitimate interests, held by all citizens that can be impaired by a government intrusion:
a.       Keeping control over and use of his property – free from unreasonable seizures of property
b.      Keeping information that may be personal or embarrassing private, even though not indicative of criminal activity
B.     WHAT IS A SEARCH BEFORE KATZ – Needed physical intrusion in order to violate 4th Amendment
1.      Boyd v. US  
a.       An order requiring an individual to produce business invoices was a search because it was “a material ingredient and effected the sole object and purpose of” a search, which was “forcing from a party evidence against himself.”
2.      2 Classifications
a.       False Friends:  If you go about talking to people secrets it is foreseeable and as an assumption of risk; you don’t reasonably expect that when you tell somebody something that it is confidential and run the risk that they will tell.
i.        On Lee v. US (1952):  informant’s electronic transmission of statements to a nearby law enforcement officer was not a search because the speaker’s consent to the presence of the informant precluded a trespass and because the speaker was “talking confidentially and indiscreetly with one he trusted, and he was overheard.”
ii.      Lopez v. US (1963):  a known Internal Revenue Service agent’s recording of a bribe offer not a search because the suspect had consented to the agent’s presence in his office, and had taken the risk of recording and reproduction in court by willingly speaking to the agent.
iii.    Hoffa v. US (1966):  informant who listened to, reported, and testified about Hoffa’s inculpatory remarks did not search because “no interest legitimately protected by the Fourth Amendment was involved.”  Hoffa had not relied “upon the security of his hotel room,” for he had allowed the informant to enter and listen.  Rather, he had relied “upon his misplaced confidence that the informant would not reveal his voluntary confided wrongdoing. 
b.      Physical Intrusions:
i.        Olmstead v. US (1928):  wiretapping from outside a building was not a search because, unlike the typical searches known to our Constitution’s Framers, there was no “actual physical invasion” and no trespass upon a protected location.
ii.      Goldman v. US (1942):  placing a “detecta-phone” against the outer wall and listening to conversations inside the building not a search.
iii.    Silverman v. US (1961):  inserting a “spike mike” into a “party wall” and picking up conversations passing through heating ducts was a search because the physical intrusion was sufficient to cross the constitutional threshold, even though it did not effect a technical trespass.
iv.    Clinton v. Virginia (1964):  attaching a listening device to a wall by means that caused a “thumbtack-sized” penetration was a search.
C.     WHAT IS A SEARCH AFTER KATZ – 2 Pronged Test
1.      Katz v. United States (1967)
a.       Facts: The government (P) thought that Katz (D) was transmitting by phone, from a public phone booth, information related to illegal gambling activities. Although no warrant was sought or received, officers intercepted and recorded D's side of the phone conversations with an electronic listening device attached to the outside of the booth. 
b.      Issue:  Whether listening and recording conversations with an electronic listening device attached to the outside of a public phone booth constitutes a “search and seizure,” subject to 4th Amendment protections.
c.       Holding: Yes.  One who enters a public telep

party you’ve lost control of those words.   No reasonable expectation of privacy in the ideas or words conveyed to X because you are knowingly exposing these thoughts or ideas, therefore there is no search and no 4th amendment protection whatsoever.
2.      Pen Registers
a.       Smith v. Maryland (1979)
i.        Facts:   police installed a pen register, without a warrant, at the central telephone system in order to determine the identity of the numbers that the suspect was dialing
ii.      Holding:  Installation of the pen register was not a “search” and no warrant was required.  No legitimate expectation of privacy on the numbers DF dialed because those were automatically turned over to 3rd party (telephone co.).
iii.    Rationale:  Everyone knows the phone co. knows which numbers someone dialed from the house; therefore, there is no reasonable expectation of privacy.  DF assumed the risk that the company would reveal to police the numbers he dialed
iv.    Notes:
1)       4th amendment only triggered by government action.
2)       Private actors are considered government agents if:
§  act at the direction or request of the government
§  act pursuant to government policy or regulation
§  act with the knowledge, acquiescence, or encouragement of the government
§  act with a purpose or motivation to be a government actor
3.      Open Fields and Curtilage
a.       Oliver v. United States (1984) – (Open Fields)
i.        The 4th Amendment is not extended to open fields. 
ii.      Did not hold that 4th Amendment protection ceases once one passes beyond the walls of the home, there is a distinction between “open field” and “curtilage” (the land immediately surrounding and associated with the home).
iii.    Steps taken to protect privacy, such as planting the marihuana on secluded land and erecting fences and “No Trespassing” signs around the property, do not establish that expectations of privacy in an open field are legitimate.  
iv.    The fact that the government's intrusion upon an open field is a trespass at common law does not make it a “search” in the constitutional sense.  In the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment.
b.      United States v. Dunn (Factors to Determine Curtilage)
i.        the proximity of the area to the home
ii.      whether there is an enclosure that surrounds both the home and the area
iii.    the nature of the uses to which the area is put
iv.    the steps taken to protect the area from observation
c.       A warrant may be required to search curtilage, but no warrant is ever required to look through an open field – it is not even a 4th amendment “search” because there is no expectation of privacy (Oliver and Ciraolo)
4.      Access by Members of the Public
a.       Aerial Observations
i.        California v. Ciraolo (1986) – (Aerial Observation of Curtilage)
1)       Facts: 
§  Police received an anonymous telephone tip that DF was growing marijuana in his backyard, which was enclosed by two fences and shielded from view at ground level. 
§  Officers were trained in marijuana identification.  They flew in a private airplane over DF’s house, within navigable airspace, at an altitude of 1,000 feet, and identified and photographed the marijuana plants growing in the yard.  
§  They obtained a search warrant on the basis of one of the officer's naked-eye observations (although the photograph was attached as an exhibit, the warrant was not based on it because the officer said that it did not depict a true representation of the color of the plants) and seized the evidence.   
2)       Holding:  Observations of illegal activity within the curtilage, from a public vintage point, are not protected because there is not an expectation of privacy that society is prepared to honor.