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Criminal Procedure
St. Thomas University, Florida School of Law
Ronner, Amy D.

The right of 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.

Refers only to official searches and seizures which in turn leads to a threshold question:
v Is this a search or seizure?
v Seizure easier to define but search is more difficult.

Olmstead v. US
Involved wire tapping outside a building.
There is no 4th amendment search unless there is A PHYSICAL INVASION AND TRESPASS UPON A PROTECTED LOCATION.

On Lee v. US 1952
Ø An informant’s electronic transmission of statements to a nearby law enforcement officer does not fall under the 4th and is not a search.
Ø No trespass because the speaker consented to the presence of the informant.[1] and the speaker was talking confidentially with someone he trusted and was overheard.

Lopez v. United States 1963
Ø Known IRS agent recording a bribe offer was outside the 4th because
o Suspect consented to agent’s presence in office
o Suspect had taken the risk of recording and reproduction in court by willingly speaking to the agent.

Hoffa v. US 1966
Agent who listened to reported and testified about Hoffa’s inculpatory remarks did not search w/in the meaning of the fourth because
Ø No interest legitimately protected by the 4th was involved
o Hoffa did not rely on the security of his hotel room because he allowed informant to enter and listen.

Silverman, Goldman and Clinton v. Virginia
Ø Reiterating the Olmstead doctrine that physical penetration required to be an unreasonable search.

Katz v. United States 1967
v Katz placed calls concerning gambling information from a glass phone booth from LA to Boston and Miami
v He could be seen in the booth
v Listening device not penetrating booth in keeping w/Olmstead etc.
v He shut the door of the booth while making the calls


Chastises attorneys for framing the issue of private or not in terms of area

The 4th protects people not places[2] and is distinguishable from the general implied right to privacy. The 1st amendment is looming here with free speech issues.

What a person knowingly exposes to public in a private area is not the 4th amendment territory but what he wants to keep private even in a public area may be protected by the 4th.
Visibility of person does not mean that content of speech is not protected.
By shutting the door and paying the toll a person expects rightfully that his conversation is private.
The policy here was that the public telephone was becoming an essential part of the American communication system and the court did not want to chill its use.
Overrules Olmstead, Property interests are no longer valid to define the parameters of a search. There is no physical invasion required.


It is impossible to define a search and seizure without reference to an actual location so that the 4th is really tied in someway to the implied privacy right and the constitutional protections that govern an area.
To decide if the person is protected by the 4th requires a 2 step analysis of the place:

1. SUBJECTIVE: Does the person have a subjective privacy expectation
2. OBJECTIVE: Is the place one where society says the expectation of privacy is reasonable
· A phone booth is a place of temporary , reasonable privacy.
· As technology increases we must redefine what a reasonable expectation of privacy is.

Textual Interpretation:

1st clause of the amendment refers to persons, houses, papers and effects, which denotes the necessity of tangible stuff.
2nd clause refers to warrants that particularly describe a thing already in existence.
Had the framers wanted to include eavesdropping as included under the 4th they would have said so.
Altering the meaning of the constitution to fit the times is incorrect.
Since an overheard conversation is not tangible then it cannot be covered under the 4th.

US v. White 1971

Jackson was informant.
Had a radio transmitter hidden on him.
Other agents used radio equipment to hear the conversations with White instantaneously.
Conversations took place in Jackson’s home.[4] District court allows evidence to be used, White appealed and appellate court said it could not be used because of Katz


A wrong doer’s misplaced belief that a person to whom he confides will not reveal information is not protected by the 4th amendment. Hoffa.
Said it was active disclosure as per On Lee.
A suspect would not likely distinguish between probable informers w/out transmitters and those with transmitters.
The following are the same for 4th amendment purposes:

Police writing down conversations.
Simultaneous recording with equipment on person. Lopez
Simultaneous transmission to other parties. On Lee.


The court used some insignificant dicta in the On Lee case as authority for the White case.
The assumption of risk approach Lewis, Lopez, On Lee, is not distinguishable from the Katz 2 prong test. They are intertwined with the law itself and to say that

It was in my house

Wherever you dialed form 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[11] 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[12]that phone company would transmit the info to cops.

Seems to COLLAPSE the objective and subjective portion of the Katz test[13]. Initially hint at what they are doing by saying in footnote 5 that situations exist where the subjective

[1] Why no informed consent issue?

[2] Compare to Oliver, Ciraolo, and Hester which afford more privacy to certain areas like cutilage than others. The court at time sees to overlap maybe unavoidably or deliberately between 1st and 4th amendment privacy.

[3] This is the dictrine that Katz stands for more so than the majority position.

[4] BOOK POINT: It was not the suspect’s home so it could be argued that there was no reasonable expectation of privacy in someone else’s home. Buttresses the assumption of risk argument.

[5] At least be honest about what they are doing.


[7] The phone company was acting as a police agent and so it was an official action in terms of the search threshold.

[8] A device that records the #s dialed at the phone company.

[9] Makes a big deal out of the fact that a pen register did not per se determine if a conversation was had just that a number was dialed

[10] Pulls this claim out of their ass

[11] KILLER ARGUMENT. How could the pen register be information but not content.

[12] Dissent rips this a new asshole with the prescriptive function of law enforcement issue.

[13] May also be an argument that the test is history and the court is simply engaging in a balance of probative, seriousness of crime and prejudice to judicial system in defining the breadth of the 4th amendment protection as Harlan’s dissent in White says..