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Criminal Procedure
St. Thomas University, Florida School of Law
Garcia, Alfredo

Criminal Procedure Outline

DEan Garcia Fall 2011

I can do everything through him who gives me strength. (Phil. 4:13)

The 4th Amendment Right to Be Secure Against

Unreasonable Searches And Seizures

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 an 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.


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 telephone booth is “entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world

d. Rationale:

i. 4th Amend. protects people, not places

ii. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

iii. What he sought to exclude when he entered the booth was not the intruding eye — it was the uninvited ear.

iv. One, who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

2. Katz Test:

a. (1) that a person has exhibited an actual (subjective) expectation of privacy and

b. (2) that the expectation is one that society is prepared to recognize as “reasonable”

i. Factors against reasonableness include:

1) Voluntary disclosure of information to a third party who was cooperating with the government

2) The failure to take precautions to safeguard one’s privacy and/or the public exposure of one’s activities

3) The fact that a refusal to recognize a privacy entitlement would compromise nothing that society has any interest in protecting

4) The fact that the government is almost certain to learn nothing at all, nothing of significance, or nothing “legitimate” in the search (United States v. Jacobson, 466 U.S. 109 (1984)

§ Agent’s reopening of a package that had been previously opened by Fed Ex employees who qualified as “private parties”

1. Did not violate a legitimate privacy expectation because the removal and visual inspection of the contents “enabled the agent to learn nothing that had not previously been learned (and communicated to him) during the private search”

§ A chemical “field test” that identified a substance found inside the package as cocaine

1. Was outside 4th Amendment control because it could disclose only one fact previously unknown to the agent (whether a suspicious white powder was cocaine), which could not compromise any legitimate interest in privacy because:

o The fact that a substance is something other than cocaine is nothing of special interest, and

o The fact that a substance is cocaine is not something in which one can have a legitimate privacy interest


1. False Friends

a. United States v. White (1971)

i. Facts: narcotics agents electronically overheard several conversations between a government informer, who was carrying a concealed radio transmitter, and White (D) while they were in the informer’s home without a warrant.

ii. Holding: 3rd party electronic monitoring without warrant violate the 4th Amendment. 4th Amendment offers no protection to a wrongdoer’s misplaced belief that one to whom he voluntarily confides will not reveal his words.

iii. Rationale: No justifiable and constitutionally protected expectation that a person with whom one is conversing will not then or later reveal the conversation to the police. Undercover agent may write down his conversations with a DF, and later testify concerning his recollection of such conversations without first obtaining a warrant. No different result if agent recorded or transmitted those conversations instead of immediately writing them down.

iv. Policy: Use of false friends is essential to the detection of otherwise inaccessible information about crime

v. Different from Katz: In Katz, the person on the other side of the phone was not the one who talked to the police, or was even an agent. The police recorded a conversation between Katz and a third person. If we say that the 4th Amendment offers no protection to a wrongdoer’s misplaced belief that one to whom he voluntarily confides will not reveal his words, it is the risk that the other person will turn to the police (or that the other person is an agent) what is not protected. Nevertheless it is a risk that is measured by the person’s judgment over the character of another. When police overhears conversations that were never revealed to it, it is depriving the individual of the chance to make the judgment and the risk is not that the person will turn to the police (or is an agent), but the risk is that the conversation will be heard by the police without justification.

vi. According to the professor, both, Katz and White, involve the same risk – that the other person would turn against them and that the government would get the information

b. Hoffa v. US (1966) – The minute you speak to another 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

d the description arriving from one of the named trains and arrested him without a warrant. A search of DF turned up two envelopes containing heroin and a search of his bag revealed a syringe.

b. Issue: Is there probable cause for arrest?

c. Holding: Yes. Where agent is given info by a known and reliable informer and agent verified the information, there is probable cause. Therefore, the heroin discovered in search incident to lawful arrest which agent effected after so observing defendant was competent evidence.

d. Rationale: The informant was known to be accurate and reliable and the police could independently verify every facet of the tip

e. This was a loose test. If someone tips some details and there are enough details that match, the police could get a warrant and conduct a search.

2. Spinelli v. US (1969) (Higher Threshold than Draper)

a. Facts: DF was convicted for traveling to Missouri from Illinois with the intention of gambling. He challenged the search warrant. Warrant was based on: 1) The FBI had tracked DF for 5 days, during four of which he traveled from Illinois to a certain apartment house in Missouri, and on one day he was tracked to a specific apartment; 2) 2 phone numbers were associated with the specific apartment; 3) The government officials stated that this person was a known bookie; and 4) A reliable informant told the FBI that DF was a bookie and used the 2 phone numbers associated with the apartment in Missouri.

b. Issue: Whether the informant’s tip provide probable cause.

c. Holding: No. Informant’s tip does not provide probable cause for a search warrant if the tip (1) does not state reasons why the informant is reliable and (2) does not include specifics regarding the facts known by the informant in sufficient detail so that the Magistrate may independently judge the validity of the informant’s information.

d. Rationale: In this case, there are no facts provided in the informant’s tip to explain why the informant thought D was involved in gambling. Also the affiant-officers failed to support their claim that their informant was “credible” or his information “reliable.”

e. Aguilar-Spinelli Test. The informant must:

i. Declare the “basis of knowledge” or basis of information – the particular means by which he came by the information. He can do so by declaring either:

1) That he has himself seen or perceived the fact or facts asserted, or

2) That his information is hearsay, but there is a good reason for believing it

ii. Provide facts sufficiently establishing either the “veracity” of the affiant’s information, or, alternatively, the “reliability” of the informant’s report

f. Notes:

i. Why did the Court adopt the two-pronged test? What is so wrong in that the police search our homes with a warrant, even if they are nice?

1) In our society, people do not expect the government to come in and search our houses, regardless of whether there is something or not in the house.

2) The test might help define what judges must require from the officers and at the same time protect the Court from being overturned because of an unsubstantiated warrant.

ii. Spinelli constitutes a significant development of the doctrine in Aguilar; Aguilar dealt only with hearsay alone, while Spinelli involved a factual mixture of hearsay and police investigation. The 2 together gave rise to the “Aguilar-Spinelli” two-pronged test.

3. Illinois v. Gates (1983) (Going back totality of circumstances, Spinelli only a factor)

a. Facts:

i. Police received an anonymous letter stating that the DFs made their living by trafficking in drugs. It set forth a modus operandi of how they obtained the drugs and gave dates for the next purchase. It indicated that DF had $100,000 worth of drugs stored in their house.

ii. Police were able to confirm that DF’s activities were as predicted in the letter, i.e., the wife drove her car to Florida and checked into a room and that the husband had reservations to fly to Florida. Police surveillance confirmed that the couple and car headed north the day after the husband arrived in Florida.

iii. Based on this information, a search warrant was issued. The car search revealed marijuana, and the search of D’s house revealed drugs, weapons, and other contraband.

b. Procedure: Illinois Supreme Court suppressed the evidence because the search warrant was based on a confidential informant’s tip that did not satisfy the Aguilar-Spinelli “veracity” and “basis of knowledge” prongs for probable cause.

c. Issue: Is an anonymous letter alleging criminal activity with detailed modus operandi, coupled with a policeman’s affidavits confirming activity conforming to aspects of the modus operandi, sufficient to constitute probable cause – even if Aguilar-Spinelli test is not satisfied?

d. Holding: Yes. Court abandoned the rigid Aguilar-Spinelli “two-pronged test” and adopted a “totality-of-the-circumstances” approach. Informant’s recitation of detailed facts, though relating to innocent activities, when corroborated by observation by police officers, afforded probable cause to believe that respondents had drugs in their possession.

e. Rationale: The informant’s veracity, reliability, and basis of knowledge are all highly relevant considerations in the totality-of-the-circumstances analysis. But strong evidence as to one prong can make up for the weakness on the other prong.