Select Page

Criminal Procedure
St. Thomas University, Florida School of Law
Clark, J. Steven

Outline for Criminal Procedure
 The “Threshold of one’s Fourth Amendment Right is to be Secure Against Unreasonable Searches.
The Fourth Amendment applies when (1) the intrusion is the product of government action; (2) the intrusion breaches society’s reasonable expectation of privacy; and (3) the intrusion breaches the legitimate expectations of privacy of the individual in question.
A.                  Fourth Amendment Search and Seizure Clause: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
     A.    In Katz v. U.S. (1967) the police “bugged” a suspect’s conversation.  Is this a “search and is it protected” under the Fourth Amendment? Yes, the speaker had an expectation of privacy, which was reasonable.
(Two prong test): A search is defined as any government intrusion into an area where a person has a reasonable expectation of privacy. A search of a person, a person’s item or property by a police officer requires a valid search warrant to be a legal search, with some exceptions.
The expectation must be reasonable (Legitimate). Society must be prepared to recognize this expectation of privacy; this portion of the test is considered among the most important.
“The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not subject of Fourth Amendment protections. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
InUnited States v. White (1971) – a suspect’s conversation with an informant was overheard by police via radio transmitter carried by the government informant. Court’s ruling, when conducting conversations in front of others, there is no protection afforded by the Fourth Amendment. One speaks at his own risk because he voluntarily gave information; the speaker has no expectation of privacy (see Katz test)
The recording of a conversation by means of a body wire is viewed by the court to be similar to the wearer voluntarily testifying about the conversation; the wire creates a recording which is a more accurate source of evidence and the Court did not want to place barriers in front of accurate evidence.
In Smith v. Maryland (1979) – the police installed a pen register on suspect’s phone. Such a device only records actual phone numbers, and not conversations.
The Court rejected the Def’s argument that he had a subjective expectation of privacy because the phone call was made in his private residence and therefore
should be protected by the Fourth Amendment even though the pen registry did not record a conversation only a phone number.  Furthermore, the Def voluntarily conveyed the number to the phone company when he dialed it (White holds that there is no Fourth Amendment protection when one volunteers information); he knew the phone company would make a record of the phone number therefore, no expectation of privacy existed; if one did exist, such an expectation is not reasonable because people know that phones are recorded by phone company when compiling billing statements. The federal courts are split on whether there is an expectation of privacy for stored emails and voicemails.
In Oliver v. United States (1984) – the police walked along footpath that led to a large field about 100 yards from the house to view contraband. Landowners do not possess a legitimate expectation of privacy in their fields and thus a Fourth Amendment shield when those fields are far removed from landowner’s home and “curtilage” even if landowners has taken efforts to maintain some degree of isolation.
“Open Fields” Doctrine:the rule permitting a warrant less search of an area outside a property owner’s curtilage, which includes the home and any adjoining land (such as a yard) that is within an enclosure or otherwise protected from public scrutiny.
Curtilage is the land or yard adjoining a house, usually within an enclosure. Under the Fourth Amendment, the curtilage is an area usually protected from warrant less searches; considered an extension of the house.
In United States v. Dunn(1987) – Factors to determine whether an area is within the scope of the curtilage (because no bright-line rule exists, these four factors are considered):
The area’s proximity to the home
Existence of an enclosure around the area
The nature of the uses to which the area is put
The precautions taken to exclude others from the area
 In California v. Ciraolo(1986) – police observed marijuana plants growing inside a suspect’s curtilage; observation occurred from a helicopter 1,000 feet in navigable airspace. The Court found the Fourth Amendment to offer no protection to the Def. because he had willingly exposed his illegal activities to anyone flying overhead (see U.S. v. White – no Fourth Amendment protection when one’s volunteers information)
Naked Eye Observation: officers are not required to “shield” their eyes.
In  Florida v. Riley(1989) – Aerial surveillance of a home to place from a helicopter hovering at 400 feet did not constitute a search; 400 feet was considered borderline regarding its closeness.
In United States v. Knotts(1983) – a case which involved the use of an electronic tracking   
monitor by the police to detect movement and location; the Court upheld the use of such tracking devices legal by claiming that the only information relayed through the device was any movement and location – the possessor of the item with the attached device could not claim to have a reasonable expectation of privacy because he had exposed his movements to the public; furthermore, those movements could be obtained through visual surveillance – all the device did was “augment the police’s sensory faculties and this is not prohibited by the Fourth Amendment. Tracking of suspect’s car only with aid of beeper did not implicate the Fourth Amendment because of a person traveling in car on public roads has no reasonable expectation of privacy in his movements.
InUnited States v. Karo(1984) – a beeper was used to track the whereabouts of container in public warehouse. The courts ruled that it was not an intrusion on a
reasonable expectation of privacy. 
In Kyllo v. United States(2001) – the police conducted their investigation by using a thermal imaging device because they suspected that marijuana was being grown in a house. The court ruled that thermal imaging techniques, when used to determine activity within a home, constitute a search under Fourth Amendment. One holds the interior of his home as private against outsiders, not private just to intimate details, but to all details. The Court establishes a two-part rule:
Sense-enhancing technology used to obtain information from inside a home constitutes a search under the Fourth Amendment (the police need a warrant)
Use of a technology not in general use by the public lends itself to a reasonable expectation of privacy because not many people have such technology.
I.                    Additional Rules of Law:
If someone is acting as an agent of the police/government, there is a Fourth Amendment issue.
If you have a private party search first, and then the police conduct a second search behind the private party, there is no Fourth Amendment search because the police only observed what the private party described. See United States v. Jacobsen.
EXAMPLE: A cordless telephone consists of a base unit, attached to the land-based line, and a mobile unit which transmits and receives the radio signals that carry the actual conversation to and from the base unit. Early models broadcast on frequencies that are not capable of interception by conventional radios. A “radio scanner” is a highly-specialized piece of electronic equipment that is capable of monitoring the frequencies used by the most current cordless phone models. Only a small number of members of the public own and operate radio scanners. David Smith conducted illicit narcotics dealings by means of his cordless telephone. His neighbor, using a “Bearcat” radio scanner, listened in on Smith’s telephone conversations. After eavesdropping upon the conversations, the neighbor reported his findings to the local police. The police then provided him with blank tapes and asked that he record future conversations. Prosecutors used the evidence captured on these tapes to convict Smith of drug trafficking. DID THE NEIGHBOR CONDUCT A “SEARCH” GOVERNED BY THE FOURTH AMENDMENT?
The neighbor did not conduct a search governed by the Fourth Amendment. The Fourth Amendment protects against government intrusion. The neighbor is authorized to be a “snitch” and turn the information over to the police. The police did not conduct a search either. A speaker has no Fourth Amendment claim if the suspect makes no attempt to keep the conversation private. The facts of the case admit that people on cordless phones typically don’t have a reasonable expectation of privacy because their conversations can be intercepted. The radio scanner used by the neighbor is available for public use. It is irrelevant that only a small number of the public own and operate the device.
Dog Sniffs are not considered a search. They are considered “field tests” which fall outside the Fourth Amendment control because it could disclose only one fact previously unknown to the agent – whether or not a suspicious substance is narcotics. See United States v. Jacobsen.
Garbage: No Fourth Amendment protection for your garbage can at your curb. (California v. Greenwood – no expectation of privacy in garbage left in opaque bags on curbside.)
Jail Searches are not entitled to Fourth Amendment protection. It is not a search that society is prepared to recognize as legitimate.
Probable cause to arrest exists where the facts and circumstances, within the officers’ knowledge and which is believed by them to be reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. Probable cause for an arrest requires:
that a particular individual has committed or is committing a particular offense
The passage of time alone, however, does not in every case diminish the likelihood of, and therefore, does not undermine a showing of probable cause to arrest.
Probable cause to search exists if the facts and circumstances, within the officer’s knowledge and which is believed by them to be reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an item subject to seizure will be found in the place to be searched. Probable cause for a search requires the likelihood that:
something that is properly subject to seizure by the government is presently
in the specific place to be searched
The mere passage of time is likely to diminish the probability that an item that was in a particular place still remains in that location.
Probable cause does not require certainty, but only a sufficient likelihood; not undermined if the conclusions drawn turn out, in fact, to have been mistaken.
In llinois v. Gates(1983) – the police received a letter from an anonymous informant about a couple engaged in illegal drug activity.   The Supreme Court in this case abandoned its previous rule in (Aguillar/Spinelli applying a two prong test for informant’s tips, namely the veracity prong – must be evidence that the informant himself was reliable; and knowledge prong – must be facts showing the particular means by which the informant obtained the information) to adopt the “totality of circumstances” rule. Under this rule the whether an informant’s tip is sufficient to form the basis for probable cause is based corroboration and the consideration of the veracity of the informant and his basis for his knowledge all of which is weighed, balancing the weak and strong factors, as indicia of reliability to reach the decision as to whether probable cause exists.
In Whren v. United States(1996) – the police stopped a motorist for an observed traffic violation and observed narcotics on the suspect’s lap. This case did away with “pretextual” arguments. Regardless of whether a police officer subjectively believes that the occupants of an automobile may be engaging in some other illegal behavior, a traffic stop is permissible as long as a reasonable officer in the same circumstances could have stopped the car for the suspected violation. The traffic violation itself, no matter how minor, is sufficient probable cause to stop the vehicle. While police may have probable cause to stop a vehicle, under the automobile exception, they must have probable cause to believe contraband is within the car to search the car. Subjective intent is not a factor to be considered in determining whether probable cause is present. The arresting officer may have a subjective agenda, but this will not be considered, where there is probable cause found in observing a traffic viol

cotics and drug paraphernalia. They also found the defendant in the bathroom flushing marijuana down the toilet. At a pretrial hearing, the defendant moved to suppress the evidence seized during the search because of the officers’ failure to “knock and announce” before entering her home.
Knock and Announce Rule: The Wilson Court concluded that the “common law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment.” That conclusion led the Court to “hold that in some circumstances an officer’s unannounced entry into a home might be unreasonable under the Fourth Amendment.”
The decision considers knock and announce as incorporated within the reasonableness requirement under the Fourth Amendment. If it is reasonable to knock and announce the police officer’s presence, then it should be done.
Exceptions to the Rule: (exigent circumstances)
The presumption to knock and announce would yield under circumstances presenting a threat of physical violence
An officer may dispense with announcement in cases where a prisoner escapes from him and retreats to his dwelling; hot pursuit
Unannounced entry may be justified where police officers have reason to believe that evidence would likely be destroyed if advance notice were given
In Richards v. Wisconsin, the Supreme Court rejected the Wisconsin Supreme Court’s holding that police officers never need to knock to announce their presence when executing a search warrant in a felony drug investigation. First, such an exception to the “knock and announce” rule contains considerable overgeneralization. Second, the reasons for creating an exception in one category can, relatively easily, be applied to others. According to the Court, in order to justify a ‘no-knock’ entry the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.
May a magistrate issue a search warrant that authorizes officers to enter a dwelling without knocking and announcing? The Richards Court observed that a number of states give magistrate judges the authority to issue ‘no-knock’ warrants if the officers demonstrate ahead of time a reasonable suspicion that entry without prior announcement will be appropriate in a particular context. The practice of allowing magistrate to issue no-knock warrants seems entirely reasonable when sufficient cause to do so be demonstrated ahead of time
Anticipatory Warrants – Such warrants have been found to be permissible when the event specified triggering the search is known and reliable and the other requirements of particularity of the warrant are met.
Officers can also exceed the scope of their authority under a properly issued warrant by permitting other individuals to accompany them during a search. In Wilson v. Layne, police officers invited representatives of the media to a media ride along which does violate the Fourth Amendment.  In sum, the Court held that it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home is not in aid of the execution of the warrant. In such cases, if the warrant is valid, the presence of the police is lawful, but the Fourth Amendment is violated by the presence of the media.
REASONSONABLE SEARCHES WITHOUT WARRANTS: THE NATURE AND SCOPE OF THE EXCEPTIONS TO THE WARRANT REQUIREMENT (usually a warrant is required for every search, but the following are exceptions to the Warrant Clause).  Because a search without a warrant is presumptively unreasonable, the government has the burden of showing that it falls within an exception to the warrant rule. The Exceptions are not mutually exclusive – multiple doctrines can simultaneously justify exemption from the warrant demand
incident to any lawful arrest
searching an automobile, to the extent police have probable cause to believe that the vehicle contains fruits or instrumentalities of crime, evidence of crime, or contraband
contraband is in plain view, when police are legitimately on the premises, to the extent police have probable cause to believe the things in plain view to be contraband or fruits or instrumentalities of crime
To the extent the police have consent to search, given by a person with apparent authority to consent
In certain emergencies (i.e. hot pursuit, or if the evidence is likely to disappear)
Searches Incident to Arrests and Searches of Arrestees
The rationale for permitting such searches, without a warrant, is the protection of the law officer and the preservation of evidence
The executing event permitting such a warrant less search is a lawful arrest
The scope of such a warrant less arrest is the “area within immediate control” of the suspect’s person, which is within one’s reach and can include an automobile.
In Chimel v. California(1969) – Based on concerns for the safety of the police, upon the arrest of the Def in his home, the police are entitled to search the area within the immediate control of the arrestee.  A warrant less search