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

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THE 4TH AMENDMENT
· The 4th Amendment protects against unreasonable searches and seizures (including arrests and seizure of property)
o   State Action –4th/14th Amend requires state action (the 4th/14th Amendment does not protect against private action)
o   Warrant –the 4th Amend requires a warrant…based on probable cause…supported by oath or affirmation…determined by an impartial magistrate…particularly describing the location of the place to be searched or seized
o   Warrantless search –IF NO warrant is obtained, then the 4th Amendment requires the search or seizure be reasonable
· Challenges to an unreasonable search and seizure
o   Seizures –often, seizure of evidence is challenged, because the penalty for violating the 4th Amend is the evidence being excluded (see the exclusionary rule)
o   Arrests –illegal arrests are not challenged because a person can be convicted of a crime even if the arrest violated the 4th Amend, unless it was an illegal search incident to an arrest
 
PROTECTIONS OF THE 4TH AMEND
· 4th Amend protects people, not places
o   Katz –D made a phone call from a telephone booth (public property), and the FBI attached a device to the booth which allowed them to listen in on the conversation
o   Court applied a 2 pronged test
«1. Subjective –whether the person has an subjective expectation of privacy
«2. Objective –whether that expectation is reasonable
o   In this case, the court found the D had no expectation of privacy
· Trespassory Intrusion
o   Bond
«Officer stepped on a Greyhound bus and squeezed all of the soft luggage which passengers had placed in overhead storage spaces, Officer felt a brick like object in D’s luggage which was later found to contain drugs
«Court held although a passenger expects his luggage to be handled, he does not have an expectation that it will be felt in an exploratory manner
«A physical intrusion is an important, but not a dispositive factor
o   Soldol
«Owner of lot wished to evict the P from his lot, Officers unhooked the D’s trailer and moved it off the lot, without entering the trailer
«Court held this was an unreasonable seizure, because it interfered with the D’s property interest
· Curtilage
o   Dunn
«Agents trespassed onto D’s ranch to look into a barn
«Court held although the Agents trespassed onto D’s ranch, it was not a dispositive factor
«In this case, the barn was not within the D’s curtilage of his home, the D did not have a reasonable expectation of privacy in the barn, and therefore the search was reasonable
«Curtilage –is property that is considered an extension of the home, and therefore protected by the 4th Amendment
o   Property that is within the curtilage of the main home?
«Proximity of the property to the home
«Whether the property is enclosed
«The nature of the use of the property
«Steps taken by the resident to prevent observation by others
· Transfer to 3rd Parties
o   When a D transfer property or information to a bank then he no longer has a reasonable expectation of privacy
«Ex: D transfers checks and deposit slips to a bank, then he no longer has a reasonable expectation of privacy
o   When a D transfer packages through the mail then he does have a reasonable expectation of privacy
«Ex: D sent obscene movies through the mail which was mistakenly delivered to the wrong person, the movies were turned over to the FBI who watched them, court found the D had an expectation of privacy
o   When a private party search (not protected by 4th) is followed by a govt search (protected by 4th) à then govt is deemed to have intruded on the D’s privacy rights only to the extent that it exceeds the private party’s search
«Ex: D sent a package by federal express that was damaged when handled, employees found tubes, they opened the tube and found plastic bags containing a white powder, DEA agents were called and tests found it was cocaine
«Federal Express employees have not violated the 4th Amend because there is no state action
«DEA agents also have not violated the 4th Amend because they did not exceed the search performed by Federal Express
· Pen Register
o   There is no expectation of privacy in the number being called, even if called from home
o   The number is not the same as the actual contents of the conversation
· Dog Sniffing Test
o   Dog sniffing is not considered a search, because it only detects the presence of 1 fact (narcotics), but does not detect anything else (minimally intrusive)
· Chemical Test
o   A party that contains contraband has no expectation of privacy, therefore a test of that substance to determine if it is contraband does not violate the 4th amend
o   A chemical test is analogous to the dog sniffing test
o   Note: while testing does not violate the 4th Amend, seizing the package containing the substance could violate the 4th Amend
o   Note: testing for contraband will destroy a small portion of the substance, this is considered reasonable
· Abandoning
o   There is no expectation of privacy when officers search abandoned property
o   There is no expectation of privacy in a search of garbage on the curb
o   There is no expectation of privacy when a person abandons a home, hotel room, or vehicle
o   But the abandoned property doctrine does not apply where the D drops property on the ground, when approached by the D
· Jail
o   There is no expectation of privacy in a prison cell, because of the concern for security in prisons
· Undercover agent
o   Undercover agent that gains access to the D’s premises may make any observations he can, because there is no expectation of privacy when a person says something in the presence of others
o   It is irrelevant if the undercover officer was bugged
 
EXPECTATION OF PRIVACY – MECHANICAL DEVICES
· General Rule
o   Sense enhancing technology that is commonly in use will be allowed under the plain view doctrine
o   But high tech equipment that is not commonly in use will be considered a search (regardless of a lack of physical intrusion into the home)
o   Limitations on the Rule
«Home –the rule applies only to information gathered from the interior of the home, but not from a workplace or public space (airport, trains)
«Warrant –police can always get a warrant and do the same
· Flashlights –permitted
· Binoculars –permitted
· Beepers on cars
o   Beepers that trace the cars location are permitted, because the police could obtain this information by following the car
o   Because a D driving on the road has no expectation of privacy, since the information could also be obtained by following him (can be seen in plain view)
· Aerial Observation
o   Permitted, if the equipment used is generally available to the public
o   It does not matter if the D has taken steps to block an aerial view
· Thermal Imaging
o   High tech devices that are not in civilian use constitute a seach
o   Kyllo –officers used thermal imagers to view a warm area in the garage of the D, officers believed the warmth was from heat lamps to grow marijuana –they were right à court found the search unreasonable
 
WHAT IS PROBABLE CAUSE
· Evidence to Magistrate
o   General Rule
«Any evidence can be used to determine if probable cause exists, even if the evidence is not admissible at trial (hearsay)
«The magistrate can only make a decision if probable cause exists, based on the facts presented to the magistrate
o   Perjury
«If the officer perjured testimony in an affidavit, then the evidence can be excluded from a determination of probable cause and the fruits of the search will be excluded
«Unless it the evidence can be admitted under a warrantless exception
o   Mistaken Belief
«Rule –If officer reasonably and honestly believes the evidence is true, and obtains a warrant, then finds the information was incorrect – the warrant is still valid
«Garrison –police obtained a search warrant for an apartmen

was free of lien when it wasn’t, and then defrauded title insurance company when declaring it was free of liens à officers were granted a warrant allowing the officers to search for a list of documents that tended to show the crime of false pretenses, and any other crime then unknown
ð Warrant was upheld because a reasonable officer would understand they searching for documents that prove false pretenses, and was not a general warrant
«Contraband –does not have to be particularly described because an officer can identify it by its nature
«Automobiles –the warrant should described the license plate, or the name of the owner
ð Misdescriptions –are not fatal because as long as their accurate enough to lead the officer to the correct car
ð Ex: warrant correctly stated the license plate, but incorrectly described the cars color – warrant was upheld because the license plate was sufficient to identify the car
o   Restricted area of search
«Officers are limited to searching only the area described in the warrant (no general warrants)
«But can seized evidence in plain view…see plain view
 
EXECUTION OF WARRANTS
· Period
o   Warrants must be executed within a stated period set by statute, otherwise the evidence that created PC can become stale
o   Federal Rules of Crim Pro requires the search be conducted within 10 days of being issued
· Time –½ of states require a warrant be executed during the day, b/c the 4th Amendment requires warrants be executed reasonably
· In Public
o   General Rule
«Warrants are generally not required for arrests in public, if officers have probable cause to make an arrest, regardless of whether the officers had advance warning to get a warrant
o   Minor crimes
«There is no exception for a minor traffic violation or misdemeanor
«Atwater –officer pulled over the D for not wearing her seatbelt, a misdemeanor punishable by a $50 fine, when the D yelled, the officer arrested her
ð Court refused to create a bright-line rule that no person should be arrested for minor crimes, instead permitted an officer to arrest when there is probable cause
«Whren –officer pulled followed black men because they were driving a Mercedes (racial profiling), officer saw the D change lanes without a signal ($25 fine), arrests the D, searches the car incident to arrest and finds marijuana
ð Court upheld the arrest, because there was PC to stop the D (traffic violation)
· Homes
o   The entry into a home is a greater intrusion, which the 4th Amend is meant to prevent
o   D’s own home –officers need an arrest warrant for the D, and probable cause to believe he will be home
«But a warrantless arrest in a person’s home does not prevent a D from being tried, although evidence seized incident to an arrest will be excluded ~exclusionary rule
o   D in 3rd party home –officers need an arrest warrant for the D, and a separate search warrant for the 3rd party home
«Unless there are exigent circumstances –destruction of evidence, In hot pursuit, Protecting the public from danger (below)
«Because there are 2 interests that need to be protected –the interest of the D, and the interest of the 3rd party homeowner
o