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

Criminal Procedure
 
Searches and Seizures
 
A.      Threshold of 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, [unreasonableness clause] 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 [warrant clause].
 
What is A “Search”? – “PERSON, HOUSES, PAPERS & EFFECTS”
·         Katz – (Majority) – Stewart: Any violation of “the privacy on which a person justifiably relied.”
·         Katz – Harlan Test: To determine whether a search has occurred & whether it was constitutional under the 4th Amendment.
1)       Governmental action must contravene an individual’s actual, subjective expectation of privacy; and
2)       Expectation (objectively) of privacy must be reasonable, in the sense that society in general would recognize it as such.
·         Allowed only when the information or evidence at issue was obtained through a “search” within the meaning of the amendment (reasonably).
·         If no search occurs, no warrant is required.
·         In general, authorities have searched when they have impeded upon a person’s reasonable expectation of privacy.
 
Case
Katz v. U.S. (1967)
U.S. v. White –
Smith v. Maryland (1979)
Precedent
VIOLATION
Conversation in an enclosed phone booth
·         Reasonable expectation of privacy
 
NO VIOLATION
Pen register of phone numbers dialed
·         Voluntarily/knowingly transmitting information to 3rd parties
Facts
D was convicted of transmitting wagering information. The police recorded his end of the conversations by attaching an electronic listening and recording device to the outside of the public phone booth from which he placed his calls.
D was convicted of illegal activities. Evidence was testimony of governmental agents of conversations between White & informant overheard by monitoring the frequency of a radio transmitter carried & concealed on informant
Telephone co., at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner’s home. Prior to his robbery trial, petitioner moved to suppress “all fruits derived from” the pen register.
Issue
Does the 4th Amendment protect the private conversations of an individual made in a telephone booth? – YES
Whether 4th bars evidence of testimony retrieved by radio through a transmitter concealed on informant? – NO
Does the 4th Amend. protect the numbers dialed from a private telephone? – NO
Rule/Holding
So long as an individual can justifiably expect that his conversation would remain private, his/her conversation is protected from “unreasonable search and seizure” by the Fourth Amendment.
No protection to “a wrondoing’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” – Hoff
Assumption of Risk
A person has no “legitimate expectation of privacy” in information he voluntarily turns over to third parties
Majority
A search occurs when the government violates the privacy upon which a person justifiably relies.
 
Harlan’s 2-Fold Test:
(1) the individual “has exhibited an actual (subjective) expectation of privacy,” and (2) society is prepared to recognize that this expectation is (objectively) reasonable.
Radio transmitter was concealed on the person of an informant with knowledge of the informant, and where conversations between the informant and defendant at various locations, including defendant’s home, were overheard when the frequency of the transmitter was monitored, without warrant, by government agents, who testified as to the conversations at defendant’s trial, there was no violation of defendant’s Fourth Amendment right to be secure against unreasonable searches and seizures.
No 4th Amendment violation when a telephone company records the outgoing numbers dialed by a suspect and then turns them over to the police.
 
·         An individual has no reasonable expectation of privacy in the numbers dialed on his telephone because he voluntarily conveys those numbers to the telephone company
Dissent
Black argued that the Fourth Amendment, as a whole, was only meant to protect “things” from physical search and seizure; it was not meant to protect personal privacy. Additionally, Black argued that the modern act of wiretapping was analogous to the act of eavesdropping, which was around even when the Bill of Rights was drafted. Black concluded that if the drafters of the Fourth Amendment had meant for it to protect against eavesdropping they would have included the proper language.
Harlan: The Court’s have read too liberal of the 4th Amendment. Allowing for constitutional searches to willing 3rd parties. Isn’t this just another way the government tries to get around the problem of unlawful searches by not directly doing it themselves? By getting an informant who knows the suspicious, the government therefore gets away with trespass and unlawful actions. On Lee was lawful because there was no trespass. Here the Court expanded the notion of assumed risk!
Stewart: A telephone call cannot be made w/o the phone company. Yes, they must know the number to transmit the call & make the necessary charges but a person reasonably expects those numbers to be used for those purposes only.
There’s no assumption of risk when entering a number to phone co. is part of the process of making a phone call
·         The numbers dialed from a private telephone – although certainly more prosaic than the conversation itself – are not without “content.”
Related Cases
Olmstead v. United States (1928) – Overturned by Katz
On Lee: Identical circumstances which an informant was used by the government with concealed microphone to speak to Lee. Since Lee invited informant in there was no trespass & therefore no search.
 
Notes/Other
After Katz, Congress passed a statute allowing judges to wiretap with probable cause (and a warrant)
·         Knowing exposure v. Seek privacy
Majority’s emphasis was not whether the use of the radio transmitter was the issue but that w/o transmitter it would’ve been lawful b/c D took risk of trusting the informant who could’ve written the info down & if that was done then the written convo. would have been lawful
·         Misplaced trust
 
Case
California v. Ciraolo – (1986)
Bond v. U.S. (2000)
Kyollo v. U.S (2001)
Precedent
NO VIOLATION
VIOLATION
VIOLATION
Facts
Ciraolo, grew marijuana plants in his backyard, shielded from view by two fences. After receiving an anonymous tip, the Santa Clara police sent officers in a private airplane to fly over and photograph his house at an altitude of 1,000 feet. On the evidence of an officer’s naked eye observation, a search warrant was granted.
During an immigration status check of a passenger on a bus in Texas, a United States Border Patrol Agent squeezed the soft luggage of Steven D Bond. The Agent thought the bag held a “brick-like” object. After Bond admitted that it was his bag and then consented to a search of the bag, the Border Patrol Agent found a “brick” of methamphetamine. Bond was arrested and indicted on Federal drug charges. Bond moved to suppress the “brick” of methamphetamine, because the agent had conducted an illegal search of the bag when squeezing it. He claimed that this was a violation of the Federal Constitution’s Fourth Amendment prohibition on unreasonable searches and seizures.
 
The Police used a thermal imager to scan Kyllo’s home. They found that parts of his house were significantly hotter than others and than other apartments in the complex. This information got them a warrant on the suspicion that he was growing marijuana, which requires the use of high intensity lamps.
Issue
Whether the police conducted surveillance of a fenced-in backyard from an airplane flying at 1000 feet was a search. – NO
Was the United States Border Patrol Agent’s manipulation of the c

the home are intimate details because the entire area is held safe from prying government eyes
 
·         The Court emphasizes that it would have to define what are and aren’t intimate details in the home
 
 
B.      PROBABLE CAUSE REQUIREMENT
 
Probable Cause to Arrest: Facts & circumstances within [the officers’] knowledge and of which they [have] reasonably trustworthy information [are] sufficient in themselves to warrant a mean of reasonable caution in the belief that’ an offense has been or is being committed” by the person to be arrested. Brinegar c. United States
 
Requires that there be a certain quantum of likelihood that:
                 [1]      That particular individual
                 [2]      Has committed or is committing a particular offense.
 
Probable Cause to Search: Facts & circumstances with [the officers’] knowledge and of which they [have] reasonably trustworthy information [are] sufficient in themselves to warrant a mean of reasonable caution in the belief that’ an item subject to seizure will not be found in the place to be search.” United States v. Garza-Hernandez
 
Requires 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, instrumentalities, or evidence of a crime,
                 [2]      is presently
                 [3]      in the specific place to be search.
 
What counts as a “substantial probability”
   i.      MD v. Pringle – drugs found in car with 3 passengers. OK to arrest all 3. Substantial probability doesn’t mean +50%
 ii.      State v. Thomas – OK for cops to arrest 2 people for same crime. There can be PC even where cops admit it’s equally likely that two people did it
iii.      Cops can arrest guy based on description over radio, even though clearly can’t satisfy more likely than not standard.
 
How to Get Probable Cause:
 
[1]      An Informant’s Tip
 
Non-delegation – Decision must be made by magistrate.
               i.      Basis of Knowledge – Police have to show magistrate how the informant knew what he claims. What creates BoK (Spinelli):
a.       Informant gave particularized information regarding criminal activity, not just facts pointing to criminality (Draper)
b.       Informant says he saw criminality first hand
 
              ii.      Reliability – Police have to show magistrate why the officers think the tip is reliable. What creates reliability (Spinelli):
a.       Corroboration of non-trivial (though not necessarily criminal) facts or details in informant’s story
b.       Informant has given good tips in the past
c.        Personal report to police (instead of anonymous tip)
d.       Might worry about using police for vendetta
 
[2]      Information from the Victim/a Witness
Paszek – Don’t have to show reliability to magistrate b/c victims and witnesses usually intend to aid cops
Brown v. US – Issue is whether the description given is sufficiently particularized to implicate the person arrested. Radio description case said that what they had (not that much) was good enough.
 
[3]      Observations of a Cop
Brooks v. US – Whether the observations generate PC of criminality is measured by standard of a reasonable & prudent cop,