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

Chapter 1: The “Threshold” of the 4th Amend. right to be secure against Searches:
The Fourth Amendment – The right of the 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. (**Pertains to actions by Federal actions, however Due process clause of the 14th amendment incorporated the constitutional concerns of the 4, 5, and 6 amendments to the states. [Mapp v. Ohio])
·         “Reasonableness clause” = prohibiting unreasonable searches and seizures
·         “warrant clause” = describing attributes of a valid warrant
Two main components of the 4th are: (1) Search and (2) seizure:
4th amendment Refers only to Official searches and seizures. When an individual challenges govt. conduct on 4th amendment grounds, three may be a “threshold” question:
v       Whether the govt. conduct constitutes a “search” or “seizure.”
Introductory Note
v       Boyd v. US – Δ was ordered to produce business invoices. The court concluded that the order to produce the documents qualified as a search because it was “a material ingredient and effected the sole object and purpose of” a search, which was “forcing from a party evidence against himself.”
v       Olmstead v. US- Majority concluded that wiretapping from outside a building did not constitute a search because there “was no actual physical invasion” and no trespass upon a protected location. Without such an invasion there could be no 4th Amendment search. (trespass doctrine)
v       On Lee v. US-  (false friends): Govt. used undercover agents to obtain inculpatory statements from suspects. Suspects claimed that the govt. had crossed the border of 4th amend. Territory. The court rejected the claim that an informant’s electronic transmission of statements to a nearby law enforcement officer amounted to a search. Reasoned that the 4th Amendment did not govern the situation because the speaker’s consent to the presence of the informant precluded a trespass, and additionally, because the speaker was “talking confidentially and indiscreetly with one he trusted, and he was overheard.”
v       Lopez-The court declared that a known IRS agents recording of a bribe offer was outside the borders of the 4th Amend. Because the subject consented to the presence of the agent and took the risk that conversation would be recorded and reproduced in court by willingly talking to the agent.
v       Hoffa v. US- Court said that informant who listened to, reported and testified about Hoff’s inculpatory remarks didn’t search because “no interest legitimately protected by the fourth amned. was involved.”   Court said Hoffa had not relied “upon the security of his hotel room,” for he had allowed the informant to enter and listen. Rather he relied “upon his misplaced confidence that [the informant] would not reveal his confided wrong doing.”
v       Goldman v. US-  agents used a detectaphone on a wall- no physical invasion- to listen in on D. Court said no search and did not trigger Fourth amend coverage.
v       Silverman v. US-  A spike-mike was drilled into a wall and mike went into the apt. – an invasion- of the Δ. Court ruled this was a search.
v       Clinton v. Virginia-  Almost the same thing but this case defined the physical parameters of an invasion. “a thumbtack sized penetration” was a search
Pre- Katz
Physical Intrusion
 Olmstead    Lee
 Goldman     Lopez          False Friend = no Fourth Amendment violation
 Silverman   Hoffa                                                                                                                       
No intrusion no
Violation of 4th Amend
Katz v. US: (“Reasonable Expectation of Privacy” Doctrine:
Distillation: In 1967, the Supreme Court abruptly rejected the traditional notion that only private property could be protected by the 4th amendment, and that the curtilage concept was the correct way to determine applicability. The court indicated that the 4th amendment applies to any govt. search or seizure that interferes with a person’s “reasonable expectation of privacy,” even if there was no interference with property.
Facts: FBI agents placed electronic eavesdropping equipment on the outside of a public telephone booth from which Katz, a bookie, conducted his business. Pursuant to Olmstead, the trial court held that there was no 4th amendment violation since there was no physical intrusion into the area occupied by” petitioner.
Held: The govt. eavesdropping activities violated the privacy upon which the petitioner justifiably relied while using the telephone booth and thus constituted a “search and seizure” within the meaning of the 4th amendment.
v       4th amendment protects people not places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure. The “trespass” doctrine is no longer controlling. Overruled Olmstead.
Harlans Concurrence: he stated that (a) an enclosed telephone booth is an area where like the home has a constitutionally protected reasonable expectation of privacy (b) that electronic as well as physical intrusion into a place may constitute a violation of the 4th amendment and (c) that the invasion of a constitutionally protected area by federal agents is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.
v       Katz test:
o         Subjective: Whether a person had an actual subjective Expectation of Privacy?
o         Objective: Whether society is willing to recognize that expectation to be reasonable?
Black’s Dissent: he wanted a very literal interpretation of the 4th. He stated that if eavesdropping was to be protected against, the framers woud have put it in the constitution. He didn’t like the intangibility argument set by the majority. Black believes that the 4th amendment only protects tangible items.
US v. White
Facts: White, an informer was wired to transmit to narcotics agents conversations with the Δ occurring in a restaurant, in the Δ’s home, and in the informer’s car. As in On Lee, the informer did not testify at the trial, but the agent who received the transmissions testified as to their content.
Held: A four-man plurality held that no 4th amendment right had been involved. The court based its conclusion on the following:
v       No Expectation of Privacy: When a person misplaces his trust, and makes incriminating statements to an “unbugged” informer, he does not have any “Justifiable expectation of privacy” which has been violated; there is no 4th amendment protection for “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” 
v       Wiring irrelevant: Given this premise, it makes no difference whether the informer is “bugged” or not; the addition of recording or transmitting equipment merely enhances the reliability of the evidence.
v       Court adopts assumption of risk doctrine. If a Δ consents to the informant’s presence, Δ loses expectation of privacy.
Smith v. Maryland (telephone pen register)
Katz established that the user of a telephone booth usually has a justifiable expectation of privacy with respect to his conversations. However, the Supreme Court has held that one who uses a phone, even in his own home, has no justifiable expectation of privacy with respect tot eh numbers being called. 
Facts:Victim was robbed and was able to see both the suspect and his vehicle. Gives police a description of the suspect and his vehicle. Victim starts to receive phone calls from a man identifying himself as the suspect. One day the caller asks her to step out of her house and she sees the suspects car outside. Police spot a man who matched the description of the robber driving a car that also matched the description. They took down the license plate number and traced it back to the Δ. At the police request, the phone company placed a “pen register” on Smith’s phone. The register revealed that Smith had dialed the victim’s home phone and it was on this basis that the subsequent warrant was obtained and smith was arrested.
Held: There can be no reasonable societal expectation of privacy in the numbers dialed from your home. The majority opinion noted that all telephone users realize that they must convey phone numbers to the telephone company, since the company’s switching equipment is used to complete the call. The lack of privacy was held not to be altered by the fact that the calls in question were local calls, which would not have been itemized on the Δ’s monthly bill; the phone company could have kept records of these calls, and the fact that they elected not to do so did not re-establish a valid expectation of privacy.
·         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 it subjective expectation of privacy existed for analysis sake
2.        OBJECTIVE:                       No. 
·         CLAIMS All telephone users know that they must convey phone numbers dialed to phone company before calls are completed.
·         Your toll numbers are recorded
·         Keeps record of all calls made on a special rate phone
·         Most phone books tell customers about this.
It was in my house
Wherever you dialed from 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.
Dissent: (Stewart, Marshall, and Brennan): argued that the numbers called from a telephone are not without “content” and that it is doubtful that there are “any who would be happy to have broadcast to the world a list of the calls they have made.”
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.
Notes and Questions:
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
Oliver v. US(Open fields beyond the cartilage are not protected by the 4th amendment.)
Facts: (2 cases in one): Oliver: cops found Marijuana in an open field a mile away from his home. Thorton: officer found marijuana in a fenced field that belonged to him.
Held: Open field doctrine- [Hester v. United States]open fields do not provide the setting for those intimate activities that the 4th Amendment is intended to shelter from government interference or surveillance.
§         United States v. Dunn- in which Court discussed the concept of “curtilage” and announced that the four variables pertinent to determine whether an area is within the scope of particular case are:
1.        the area’s proximity to home
2.        the existence of an enclosure around the area
3.        the nature of the uses to which area is put
4.        the precautions taken to exclude other from the area
§         open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment
California v. Ciraolo
Facts: Officers received an anonymous tip that respondent was growing marijuana, due to a large fence officers could not see so they secured a plane a flew over where they were able to see marijuana plants.
Held: There is no expectation of privacy in the air

rmant had had an adequate basis for the information he had given.   Court held that hearsay could sometimes be the basis of a finding of Probable Cause. Consider when allowing hearsay to be a basis of PC:
·         Detailed description
·         Past Relability
·         History of Past accuracy even though the police did not document the history in affidavit
·         Corroboration of info by police
·         2 prong test for informant information: (1) Basis of knowledge and (2) Veracity of information
o         Basis of knowledge- how did the informant get information
o         Veracity- truthfulness/ reliability of informant.
Aguilar v. Texas: (1964)
Facts:A search warrant was issued upon affidavit of police who swore only that they “had reliable information from a credible person and do believe” that drugs are being illegally stored on the premises. Informant Information was enough to give rise to probable cause as per Draper.
Held: Material from an informant could suffice to establish probable cause for a search or arrest warrant only if two conditions (the two prong test) were met:
·         First Prong: there had to be evidence (usually in the form of an affidavit from the officer seeking the warrant) that the informant was a reliable witness (either because he had been reliable in the past, or because there were special reasons to believe that his information in this particular case was reliable); AND
·         Second Prong: there had to be facts showing the “basis of knowledge” of the informant, that is, the particular means by which he came upon the information which he supplied to the police.
COMPARING DRAPER AND AGUILAR for tip alone supporting probable cause
Informant did not state how he obtained his information
The detail was enough
·         D had gone to Chicago the day before by train
·         Would return to Denver w/3 oz of heroin on 1 of 2 specified mornings
·         Minute detail about clothes D would be wearing
The detail was not enough:
·         D used 2 telephones being used in gambling operations.
Magistrate could reasonably conclude that the information was gained in a reliable way
Magistrate could not conclude the same here.
Tip without corroboration did not support probable cause
Tip without corroboration did not support probable cause
COMPARING DRAPER AND AGUILAR for tip and corrrobration supporting probable cause
Independent police work corroborated more than one small detail of the informant:
·         The city
·         The train
·         The clothes
·         The fast walk
Independent police work corroborated only one detail of the informant:
The 2 telephones
Magistrate could conclude that the information was reliable and probable cause exists when corroboration considered
Magistrate could not conclude that probable cause existed from the corroboration.
1.        Help magistrate
2.        Keeps a check on the officers allowing impartial judicial officer rather than competitive officer to make decision
Give magistrate the facts. He makes his own conclusion rather than conclusion pre made
Spinelli v. US (1969)
Facts:Police get information from someone they say is a confidential, reliable informant that Spinelli is operating a bookie operation from an apartment in St. Louis and was disseminating such information via 2 phone lines in the apartment and informant provided the numbers. The FBI observed Spinelli for 5 days and one day saw him enter a particular apartment in the building. The apartment had 2 phone numbers that matched the numbers the informant gave but they were registered to someone else. (so far all this info only proves innocent behavior.)
Held: The tip was inadequate since it did not set forth any reason to support the conclusion that the information was reliable and did not sufficiently state the underlying circumstances from which the informant had concluded that petitioner was running a booke making operation or sufficiently detain his activities to enable the commissioner to know that he was relying on more than casual rumor or general reputation.
v       In the Spinelli case, the police had no independent basis of knowledge for his activities. The feds called informant “reliable” but you must also assert and show why this informant is reliable.
v       A warrant is issued upon a finding of Probable Cause by a magistrate. When the Probable Cause is based on the information by a police officer, there is no problem in weighing the reliability of the information and the veracity of the police officer since the affidavit to support the warrant is made under oath and affirmation.
v       When the Probable Cause evaluation is based on third party information and anonymous tips there are two prevailing views on the standard to apply:
o       Aguilar-Spinelli test is a balancing test, conjunctive:
§         Basis of Knowledge: How the informant obtained the info, firsthand, secondhand? Must describe the means by which the informant came upon the information.
§         Veracity: How reliable is the informant. How much detail is offered (Draper) and whether the informant has been wrong before.
Independent requirements: Spinelli treated these “two prongs” as being totally independent of each other, so that each had to be met before probable cause would be established.
(The 2 prong-test was overruled in Gates by the totality of circumstances analysis.)
Illinois v. Gates (O