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

Criminal Procedure I Outline
Professor Lawson—Spring 2005
A person in a telephone booth may rely upon the protection of the 4th amendment
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4th Amendment cannot be translated into a general constitutional “right to privacy”
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Court added privacy to the amendment—”a reasonable expectation of privacy”.
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4th amendment protects people and NOT places—what a person knowingly exposes to the public, even in his own home or office is NOT subject to the 4th amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected
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The fourth amendment is not a general right to privacy—just a reasonable right to privacy.
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Courts generally require citizens to be extremely protective of their claimed privacy interests.
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There is no search for purposes of the 4th amendment if the police obtain information accessible to the members of the general public
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Court was trying to protect legitimate expectations of the people to privacy and security.
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1) Reasonable expectation of privacy (Subjective standard)
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2) Reasonable expectation of privacy that society is willing to protect (Objective standard)
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Rule
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You have knowledge of what you’re doing—there is a voluntary consent to disclose info.
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White fails the second prong of the Katz reasonable expectation if privacy test
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Remember that if information is conveyed or exposed to a third party it is exposed in equal measure to the police.
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So you are basically sacrificing your privacy
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Effect on society is that all our conversations will be stifled and it will affect society as a whole
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Nothing will be meaningful in conversation, it will all be dribble
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Rule
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No actual expectation of privacy in the phone #s dialed & even if there was an expectation it was not “legitimate”
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Did not access contents of the phone call- only accessed the numbers that were dialed and is viewable by the phone company. It is not reasonable to expect privacy in phone numbers dialed.
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The installation of the pen registers is therefore not a “search” and no warrant was required.
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California v. Ciraolo
Kyllo v. United States
( kilo of weed- thermal images)(2001): FBI agents suspected Kyllo was growing Marijuana & used thermal imagers to scan his apt which picked up heat emerging from the walls. ( fly over house) (1986): Police received anonymous tip that weed was growing in the D’s backyard. PO couldn’t observe backyard from the ground so they decided to fly over the house. PO’s then obtained a search warrant on the basis of an affidavit describing the anonymous tip. Dissent: focuses on fact that there’s no choice. Marshall says that implicit in the concept of risk is some notion of choice. How else are you going to communicate if not through a phone
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Rule
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Curtilage
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Just b/c an area is within the curtilage does NOT itself bar all police observation
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PO’s observations took place within public navigable airspace in a physically non-intrusive manner.
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Used instrument within the use of the general public and
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Rule
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The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the 4th amendment
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Dissent
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Through-the-wall: Gives the observer direct access to information in a private area
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Off-the-wall: Observations of the exterior of the home
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The distance between the home and the area claimed to be cartilage
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Whether the area is within a fenced enclosure or any enclosure that surrounds the home
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Whether the uses to which the are is put correspond to those ordinarily conducted in the home or not; and
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The steps taken by the citizen to protect the area from public view.
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Structures appurtenant to the home, such as porches and decks, are part of curtliage so long as the structure is not shared with other homeowners and is restricted from public access.
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Think of the distance between the curtilage and the home. to arrest”exists where the facts and circumstances within the officers’ knowledge and of which they have 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.
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Probable cause to arrestto search “exists if the facts and circumstances within the officers’ knowledge and of which they have 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.
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Probable Cause to search an area demands that there be a certain quantum of likelihood that: (1) something that is properly subject to seizure by the government, i.e., contraband or fruits, evidence of a crime, (2) is presently (3) in the specific place to be searched
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Rule
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1) That he has himself seen or perceived the fact or facts asserted; or
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2) That his information is hearsay, but there is good reason for believing it
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Probable cause must be determined by a “neutral and detached magistrate,” and not by “the officer engaged in the often competitive enterprise of ferreting our crime.”
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LOOK AT CHART BELOW
 
 
: If an affidavit rests on hearsay it is necessary under Aguilar that one of two things be declared by the informant: Either… searched requires that there be a certain quantum of likelihood that: (1) that particular individual (2) has committed or is committing a particular offense (Note: can be stale) by the person to be arrested : believes that the thermal imaging device was not an intrusion that constitutes a search. Inference alone is not a search. Propose

is actually cocaine is not something that a person can express a privacy interest in.
Chapter 2
Unreasonableness Requirement and the Probable Cause Requirement
A. Probable cause—Dealing with probability NOT certainty
INformants
Spinelli v. United States
(1969): Treated the 2-prongs under Aguilar as being totally independent of each other, so that each had to be met before probable cause would be established. Spinelli was charged & convicted of gambling. The police had received a tip from an informant, which was used in an affidavit.
OVERRULED SPINELLI TEST!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Totality of the circumstances- a deficiency in one factor may be compensated for, in determining the overall reliability of a tip, by strong showing as to the other, or by some other indicia of reliability
: Draper v. US- a known informant, told agents that D had gone to Chicago by train on Sept 6th and would be returning to Denver with 3 ounces of heroin on the morning of September 8th or 9th by train. Informant told police a complete description of D and his clothing and would be carrying a tan bag, and reported that he walked real fast. The agent and police officer saw a man meeting the description in all respects arrive on the morning from Chicago on Sept 9th . They arrested and searched D and found heroin and a syringe. The informant in this case had always been accurate and reliable in the past. Moreover the agent saw that all the information about the D was true- and so it was corroborated by the police- a lot of it was predictive information.
Probable cause
Probable cause
– physical inspection of a bag on a bus. The court held that the it was a search for the purposes of the 4th amendment- physical inspection of a bag was more intrusive than purely visual inspection. The officer’s tactile inspection of his bag far exceeded the casual contact that P could have expected from other passengers. Used the two factors to determine if it in fact was a search: 1) whether the individual, by his actual conduct, has exhibited an actual expectation of privacy- whether he has sought to preserve something as private. ( here the P did expect privacy because he used an opaque bag and placed it right above his head. 2) Whether society think that the subjective belief of privacy is reasonable?: