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Criminal Procedure
St. Thomas University, Florida School of Law
Lawson, Tamara F.

Criminal Procedure
 
The study of Crim Pro deals primarily with the 4th, 5th, and 6th Amendments.
 
Fourth Amendment
 
Threshold (Ch. 1)
 
Historically the courts were concerned with physical intrusion (trespass). Now the courts main preoccupation deals with a person’s expected right of privacy.
 
Trigger for Fourth Amendment protection against unreasonable search and seizure:
A Search
 
Katz v. United States
This case overturns the old rule that a physical trespass had to occur by the government in order for fourth amendment scrutiny to be applied. The government in this case placed a wiretap on the exterior of a phone booth to record conversations and they used the information obtained to convict the defendant. The court decides that the fourth amendment was meant to protect people and not places. They come up with a two part test to determine if there has been a search for fourth amendment purposes (a violation of the right of privacy).
 
Katz test:
Did the person have a subjective expectation of privacy?
Is the claimed expectation of privacy one that society is prepared to recognize as reasonable?
 
If there is no privacy value intruded upon then there is no fourth amendment question. There is no justification of a search needed when there is no expectation of privacy.
 
Since the fourth amendment is only triggered when there is a search, an observation would not trigger the amendment because there is no subjective expectation of privacy in someone’s actions in public.
 
United States v. White
Defendant is challenging the use of information obtained through his conversations with a confidential government informant who wore a wire and transmitted the conversation to government agents (there was also an agent hiding in informant’s kitchen while a conversation was happening in the other room). ▲ is claiming his expectation of privacy in the conversation between the two individuals was violated by having a third party listen in or having the conversation transmitted. The court disagrees with his argument and finds that “no matter how strongly a person trusts an associate, this expectation that the associate will be faithful is not protected by the Fourth Amendment.” The court reasons that since the informant could just as easily have testified to the conversation as transmitting a recording, there is no difference between the two. The court holds that when a person engages in a conversation, he does not have a constitutionally protectable expectation that the other party to the conversation will not reveal the conversation to the authorities, either by testifying or by contemporaneously transmitting the conversation to third-party eavesdroppers. If one of the parties consent’s to reveal the information to the government, the opposed party cannot claim the protection of the 4th.
 
Smith v. Maryland
Petitioner is challenging the use of a pen register (device used to acquire information about telephone numbers dialed) on his home phone line without a warrant. He claims he had an expectation of privacy in the telephone numbers that he dialed but the court disagrees with him. They find his expectations were not objectively reasonable because most peopl

istence of an enclosure around the area
the nature of the use to which the area is put
the precautions taken to exclude others from the area
 
Bond v. United States
There is a challenge to an officer feeling luggage for exploratory purposes in the overhead bins of a bus. There was a canvas bag placed directly overhead of the passenger and as the agent was walking down the aisle feeling bags placed in the bins, he noticed a brick like object in the bag above ▲s chair. The government argues that since ▲ exposed his bag to the public (by placing it in open over-head bins), he thereby lost his reasonable expectation that his bag would not be physically manipulated. ▲ argues that the agent’s physical manipulation of his luggage far exceeded that casual contact that could have been expected from other passengers. The court finds he had a subjective expectation of privacy in placing the contraband in an opaque bag and having it located directly above his seat. The court further finds that although a passenger may expect his bag to be handled, he does not expect that handling of the bag will be done in an exploratory manner. The court holds that there was also an objective expectation of privacy since passengers do not expect their bags to be handled in an exploratory manner.