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Criminal Procedure
St. Thomas University, Florida School of Law
Soree, Nadia B.

Criminal Procedure:

4th 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 searches, and the persons or things to be seized.

5th Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

14th Amendment: All persons born or naturalized in the US and subject to the jurisdiction thereof, are citizens of the US and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall any State deprive any person life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Chapter 1: The “Threshold” of the 4th Amendment Right to be Secure Against Searches

Question in 4th Amendment cases is “whether the conduct in question constitutes a search or seizure?”

This chapter focuses on whether a “search” has occurred
Chapter 5 deals w/ “seizures”

Katz v. US
Facts: D charged w/ transmitting wagering information by telephone from LA to Miami and Boston, violating a federal statute. At trial, Govt. introduces evidence of D’s phone conversations, overheard by FBI agents who attached a listening device to a public pay-phone. Appellate court found that FBI eavesdropping on a public phone is constitutional b/c “there was no physical entrance into the area occupied by D.” SC grants certiorari.

Issue: Whether a public phone-booth is a constitutionally protected area?

Rule: Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard w/out any technical trespass under property law.

4th Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Analysis: Govt. first asserts that b/c the phone booth was made of glass, D was visible after he entered it and therefore, he cannot seek the protection of the 4th. Court does not agree. They hold that D intended to keep “uninvited ears” outside of the booth and therefore, his conversations were protected. Govt. next contends that b/c they did not physically intrude into the booth, D cannot seek protection of the 4th. Court disagrees. 4th Amendment protects people, not places. Therefore, the presence or ablsence of a physical intrusion has no bearing.

Concurrence: The question of what is protected under the 4th Amendment has two requirements: (1) A person must exhibit an actual (subjective) expectation of privacy, and (2) The expectation must be ‘reasonable.” D went into a phone booth, a temporarily private place, expecting that his call would not be overheard by outsiders. This is a reasonable expectation.

Dissent: 4th Amendment does not apply to eavesdropping at all. First, it is impossible to get a warrant describing what is to be seized when it is based on future telephone calls. Second, the language of the Amendment includes “persons, houses, papers, and effects” but does not include “eavesdropping,” even though it was common back when the Amendment was written.


Court cites Silverman v. US, which held that eavesdropping accomplished by means of an electronic device that penetrated D’s premises violated the 4th.
Court cites Goldman v. US, which held that eavesdropping accomplished w/out penetration to D’s premises did not violate the 4th.
Katz basically overrules both by holding that property-law has no bearing on 4th Amendment protection b/c it protects people, not places.

US. v. White
Facts: D charged with sale of narcotics. Issue is whether it was constitutional for FBI, through an informant Harvey Jackson, could record conversations between D and Jackson through radio-frequency equipment, both in Jackson’s home, D’s home, and at public places.

Rule: An FBI agent who either immediately transcribes and reports his conversations with D, or who simultaneously records the conversations w/ a wire which is on his person, or who carries radio equipment which transmits the conversations to agents located elsewhere has NOT violated D’s 4th Amendment rights.

Analysis: Court relies on Hoffa v. US, which held that no matter how much D trusts a colleague, his expectations in this respect are not protected by the 4th when it turns out that the colleague is a govt. agent regularly communicating w/ the authorities. Court basically extends rule to apply to conversations recorded and sent to the authorities in real-time. Just b/c this evidence is more reliable then had the agent told the authorities by memory does not make it protected under the 4th.

Dissent: Feels that a warrant should be required if agents are going to record conversations and use them against D, regardless of whether D’s statements to the agents are voluntary. This type of conduct should not be left up to the “free-restraint of the agents.”

Smith v. Maryland
Facts: McDonough was robbed. The robber called her house to scare her. Police found Smith who met McDon

need a warrant to use a plane to see over D’s fence. Just because people do not build roofs over their backyards does not mean that they are exposing the yard to the public. Also, civilians on planes may get a glimpse of someone’s yard, but they are not able to connect actually activities to particular people. Finally, the police used a plane solely for the purpose of discovering D’s plants for which they would have needed a warrant if they were ground-level. This constitutes a “search” under the 4th and a warrant should have been granted first.


Open Fields Doctrine: Open fields adjacent to a home are not protected by the 4th b/c there is no reasonable expectation of privacy. Oliver v. US
Curtilage is protected by the 4th.
4 variables to determine whether it is “open field” or “cartilage”

The area’s proximity to the home
The existence of an enclosure around the area
The nature of the use to which the area is put; and
The precautions taken to exclude others from the area

Totality of the Circumstances test (consider all 4 variables) to determine if its open field or cartilage.
US v. Knotts: FBI attaches electronic monitoring device to a container of chemicals to track its movement. Held that it wasn’t a 4th Amendment search b/c the movements of the container could have been obtained by “visual surveillance from public places.”

Bond v. US
Facts: D was riding on a bus traveling interstate. At a stop in Texas, a border patrol agent got on the bus to check everyone’s immigration status. After he checked immigration, he began to squeeze the passengers’ bags in the overhead. He squeezed D’s and felt a brick. D admitted the bag to be his and agreed to have it searched. Agent found meth and D was convicted of conspiracy to possess and intent to distribute.

Rule: A traveler’s personal luggage is an “effect” and is thus protected by the 4th Amendment.


Govt. Argument: B/c D exposed his bag to the public, D lost a reasonable expectation that his bag would not be physically manipulated.

Relying on Ciraolo and Riley holding that matters open to public observation are not protected by the 4th.

Court’s Response: Distinguishes those cases b/c they involved only visual, as opposed to tactile, observation. Court says that physical invasion is more intrusive then purely visual inspection.