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

It was in my house
Wherever you dialed form you had to convey the information to the phone company so it makes no difference.
A person has no legitimate expectation of privacy in information he voluntarily turns over to a third party.
Makes an analogy to the bank teller and the risk of revealing financial information to others. Says that Smith assumed the risk in dialing that phone company would transmit the info to cops.
Seems to COLLAPSE the objective and subjective portion of the Katz test. Initially hint at what they are doing by saying in footnote 5 that situations exist where the subjective part of test won’t be helpful like Ronner in Turkmenistan.
hinged on the vital role of the public telephone in private communications.
Telephone conversations carried on by people in their homes and offices are protected.
You simply cannot place those calls w/out dialing
Most people have their numbers in a phone directory but would be offended if their long distance calls were broad cast to the world.
Disclosure of facts to 3rd party example bank teller means a subjective and objective privacy expectation of limited disclosure.
Assumption of risk implies choice. Here there is no choice. You either forego a practical necessity or agree to be open to surveillance. THERE IS NO REALISTIC ALTERNATIVE TO TELEPHONE USE.
Risk analysis involves reasonableness of expectation so it allows government to set the definition of reasonable.
If government said we intend to monitor everything then you have no legitimate expectation of privacy in anything.
This is why the judiciary should intervene here. THE PRESCRIPTIVE RESPONSIBILITY OF THE JUDICIARY.
Freedom of speech
Acceptance of this decision would impede journalists and political affiliations.
House of informant
Public phone booth
House of suspect
Arguable that it satisfies Harlan’s 2 fold test
Satisfies Harlan’s 2fold test
Quashes subjective prong or whole test altogether
Stalking Phone calls. Overtones of psychosis and danger
Used assumption of risk analysis
Used vague standard but Harlan’s 2 prong is what was taken from this case.
Allegedly used Katz Harlan concurrence standard may really have used the probative balancing of Harlan’s dissent in White
Suspect to informant to police. Somehow the court rationalizes that the fact that this chain is arguably more attenuated because of an intermediary is not as direct an encroachment.
Suspect’s conversations interrupted at source and is more direct so it is a violation
Again like White the phone company is the 3rd link in the chain
No expectation of privacy when you talk to a trusted friend in his house.
Expectation of privacy when you talk in a public phone booth to a stranger in a different state.
There is no expectation of privacy in the numbers dialed from your phone.
Arguably more effort ala property labor theory
Arguably less effort ala labor theory.
Between White and Katz in terms of labor theory
Between Katz and Smith the importance of the telephone became so entrenched that the court no longer saw a need to protect or encourage it’s use.
Would it really have made a big difference if the police had to get a warrant to search in any of these cases?
Oliver v. United States
Acting on tip Narcotics agents of state police investigate
Anonymous tip that weed grown in woods behind Thornton’s house.
Arrive at farm see no trespassing sign on locked gate
2 police officers enter woods between residence and neighboring house
Walk around gate and passed a barn
Followed footpath through the woods
Someone yells come back here-No hunting from a camper on the land. Officers shout back they are police
No one there when officers return
Officers resume investigation and find a field of weed over 1 mile from Oliver’s home
Find weed in woods in two patches which were fenced, and later determine that the weed was on Thornton’s property
Arrested indicted
Obtained search warrant and then seized and arrested and indicted.
The right of 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 place to be searched, and the persons or things to be seized.
Refers only to official searches and seizures which in turn leads to a threshold question:
Is this a search or seizure?
Seizure easier to define but search is more difficult.
Olmstead v. US
Involved wire tapping outside a building.
There is no 4th amendment search unless there is A PHYSICAL INVASION AND TRESPASS UPON A PROTECTED LOCATION.
On Lee v. US
An informant’s electronic transmission of statements to a nearby law enforcement officer does not fall under the 4th and is not a search.
No trespass because the speaker consented to the presence of the informant. and the speaker was talking confidentially with someone he trusted and was overheard.
Lopez v. United States
Known IRS agent recording a bribe offer was outside the 4th because
Suspect had taken the risk of recording and reproduction in court by willingly speaking to the agent.Suspect consented to agent’s presence in office
Hoffa v. US
Agent who listened to reported and testified about Hoffa’s inculpatory remarks did not search w/in the meaning of the fourth because
No interest legitimately protected by the 4th was involved
Hoffa did not rely on the security of his hotel room because he allowed informant to enter and listen.
Silverman, Goldman and Clinton v. Virginia
Katz v. United States
Katz placed calls concerning gambling information from a glass phone booth from LA to Boston and Miami
He could be seen in the booth
Listening device not penetrating booth in keeping w/Olmstead etc.

iding what is a search and what is not the court must bear in mind the impact their decisions will have on free speech of innocent citizens and spontaneous conversations that are a part af everyday life.
Smith v. Maryland
The pen register case
Patricia McDonough Robbed and sees a 1975 Monte Carlo at scene and sees robber. Gives police a description of the robber.
Receives calls from guy identifying himself as robber.
One day caller asks that she step out of her house and she sees the Monte Carlo.
Police spot a man who matched the description of the robber driving a 1975 Monte Carlo, trace license plate and find it is owned by Smith.
At police request
Register revealed that Smith had dialed McDonough’s phone and on the basis of this and other evidence a warrant was obtained and because of tuned down page in phone book Smith was arrested and a few days later he was identified in a six man line up by McDonough.
Tried to suppress all the info gleaned from the pen register as an unreasonable search and motion denied.
Sentenced to 6 yrs.
Distinguishes Katz “A pen register does not transmit content since phone number dialed is not content. It merely identifies that a number was dialed from another number and not who specifically made the call.
Purports to use the Katz standard 2 prong test.
1. SUBJECTIVE: Not sure but assume his behavior warrants the conclusion that itsubjective expectation of privacy existed for analysis sake
Most phone books tell customers about this.Keeps record of all calls made on a special rate phoneYour toll numbers are recordedCLAIMS All telephone users know that they must convey phone numbers dialed to phone company before calls are completed.
the phone company places a pen register on Smith’s phone.
There can be no reasonable societal expectation of privacy in the numbers dialed from your home.
A wrong doer’s misplaced belief that a person to whom he confides will not reveal information is not protected by the 4th amendment. Hoffa.
Said it was active disclosure as per On Lee.
A suspect would not likely distinguish between probable informers w/out transmitters and those with transmitters.
The following are the same for 4th amendment purposes:
1. Police writing down conversations.
2. Simultaneous recording with equipment on person. Lopez
3. Simultaneous transmission to other parties. On Lee.
1971 1967
Reiterating the Olmstead doctrine that physical penetration required to be an unreasonable search.