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

Soree Criminal Procedure I Fall 2014

A.Threshold of the 4th Am.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, [unreasonableness clause] 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 [warrant clause].

How to analyze:

1)4th Am applies? Govt actor searched?

2)Is it a search? Seizure?

3) Warrant? Was it properly executed? Scope?

4) Exception? ->Do the circumstances indicate exigency?


6)Does the physical evidence or statement come in?Even if search was unlawful, the evidence may still come in. eg.good faith reliance on the warrant.

Search (within the meaning of the 4th Am)

No search

PreKatz: Olmstead, Goldman-Search is physical invasion into constit protected area.

Silverman. spike into the wall ->S b/c physical invasion)

Katz. Eavesdropping device attached to the booth. No physical invasion and not a const.protected area.

4thAm protects people, not places.

The tests to determine whether Search occurred (absent physical intrusion) and whether it was constitutional:

Majority: Search is a Gt conduct that violates D’s reasonable expectation of privacy.

Harlan 2 prong Katz test to determine whether Search occurred and whether it was constitutional:

1) Did the person exhibit expectation of privacy?

2) Does society recognize it as reasonable?

Dissent: conversation is intangible and not an effect-> should not be protected.

Karo. Once container entered the home->search.

Physical Invasion:

Jones. Attaching the GPS device to the car with the intent to get info was physical intrusion.

St: movements in public places (relying on Knott)

Jones: physical trespass.

Katz supplemented but not replaced physical intrusion test.

Bond. Squeezing the brick like luggage by border officer was a search.

Kyllo. Inside the home. Using thermal-imaging device, not used by general public, to explore details of the home that would have been unknown without physical intrusion.-Insulate the wall!

Dissent Test- Is it the functional equivalent of being present at home?

Jardines. Dog was brought by PO to the porch. Physical intrusion on curtilage, constit protected area, for the purpose of getting information..

PO have Implied License to come on the porch “knock and talk” but bringing the dog is a search.

White. (undercover agent simultaneously transmitted the conversations)

D knowingly exposed the info/ ASSUMED THE RISK – voluntary giving the info to 3rd party. You trusted bad person, implies CHOICE

Lopez. Recording by IRS agent.

Hoffa. Informant testimony.

Lewis. Undercover agent makes drug purchase in home.

Smith v Maryland. Info from pen register is not a search b/c voluntary give info to 3rd party, phone company like the bank. (you had choice)

Miller. Bank records.

Constitutionally protected areas

Open Fields doctrine.

Oliver. No reasonable expectation of privacy.


Dunn. Elements of curtilage:

1) Proximity to home

2) Existence of enclosure

3) Nature of use of land

4) Precautions to exclude others. Fernandez v St.Putting up the fence is a manifestation of subjective expectation of privacy.

Ciraolo. Arial observation. Flying 1000 feet over D’s house and observing the marijuana was not a search b/c air is public –anybody can see/go by plane over the house, fence is not enough precaution, NO ROOF.

Riley. Not S.b/c common occurrence for helicopter to fly on such distances(400feet), no expectation of privacy.

Dow Chemical. Commercial camera used in map reading. Commercial curtilage is less protected.

Knott. Moving in public places –no reasonable expectation of privacy. “beeper” tracking device(agent might followed him but they saved the time by using device).

Palmer. Prison cell-no expectation of privacy

Greenwood. Garbage on curb.

Binary searches- Yes or no.

Do not violate expectation of privacy

Place. Dog sniff.

Jacobsen. FedEx ReSearch. Private.



Fl v Harris. Dog sniff test: whether all the facts surrounding dog’s alert would make a reasonable prudent person think that a search would reveal a contraband or evidence of crime.

B.Probable cause requirement.

Gates. Totality of circumstances approach to PC. Gates Fair probability test. (whether the search will reveal evidence of crime)

Upton. A-S test rejected but still relevant, part of totality of circumstances approach

Aguillar-Spinelli 2 Prong Test

ð basis of knowledge (how the informant get the info-how detailed the info is) Draper. Accurate description by the known informant. (smbody inside not mere rumors)

ð veracity of informant(reliability)-must be corroborated

MD v Pringle. PC to arrest a passenger. 1out of 3. Small private area – in totality it was a fair probability. Logical to assume that all 3 were involved.

Whren. As long as PO have PC to believe that traffic violation occurred, they can stop. (D-reasonable officer test-traffic stop is a pre-text, virtually everybody can be stopped for traffic) Balancing interests is not necessary b/c nothing unusually harmful in the stop.

Deer case. PC expired.

C. Warrant requirement absent exigency

Katz Warrantless searches are per se unreasonable subject only to few jealously guarded exceptions.

Connaly. Mag

me can be seized

2) PUBLIC SAFETY. Danger of violence. Objectively reasonable to believe.

Michigan v Fisher. Officer may enter if there is injury to person. (risk of suicide)


Kentucky –PO cannot create exigency by threatening to violate 4th Am (Open up->noise of destruction of evidence)

Welsh. No ex.b/c offense is minor despite the destructibility of evidence(alcohol level in blood)

Chimel –coins –no exig.c.

Illinois v McArthur. Secure premises. Permissible to keep D out of home.Reasonable belief that D can destroy the evidence/serious offense.PC to believe that there is evidence of crime+D is alerted.

Missouri. Person destroying the evidence vs TIME(here alcohol level). Some delay is inevitable anyway(transportation to the hospital) W process gor quicker –by mail,tel.

4) AUTOMOBILE EXCEPTION. car is effect ->4th am applies. PC.

Carrol. A car can be searched w/t a search warrant if there was PC to believe that evidence is present in the car.

4th Am protects privacy interests in the car (effect) but b/c of their ready mobility and lower expectation of privacy, a lesser degree of protection is afforded to a person’s interest in his car.

Public highway.1-search on spot or 2-seize temp.->get a Warrant. Scope is limited to PC.

Carney. Mobility of the auto +lower expectation of privacy=>No need for warrant.

Car can be search w/t warrant on spot or at PO station.(extended Carrol)

Is a mobile home a home or vehicle? 50/50=>CAR.

Mobility: Look whether readily movable. Can you run away by turning the keys? Where it is stoped-on public highway or it was parked, where it was parked –on a public land or private, whom private land belong(to the owner of the car or 3rd party)

Expectation of privacy: Cars are subject to intense regulation (unlike homes). Police stop car as an everyday occurrence.

White. If PO can search the car on the spot, they can search it w/t warrant at the station.

5) CONTAINER. No exception. Court declined to make exception b/c container is designed to carry personal belongings.

Chadwick Seize the container, get a warrant and then search. Must be judicial determination.

Acevedo. C-r in the car. PO may search a car and the c-ers inside it if they have PC to believe contraband or evidence is contained.

Houghton v Wyoming. PC to search the car permits w/s search of passenger’s belongings/ no difference whom it belongs