Select Page

Criminal Procedure
Stetson University School of Law
VanLandingham, Rachel

Criminal Procedure

Spring 2014

Professor VanLandingham


The right of the people to be secure in their person, 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.

· Why? The English had general writs which gave police and soldiers the power to do whatever they wanted to (break into people’s homes and say they had a right to be there, ransack, arrest)

· Warrants Clause is the touchstone of the fourth amendment. You must specifically describe the place to be searched, or persons, or things because you want to prevent them from taking whatever they want.

o The right of the people to be secure against unreasonable searches and seizures by the gov’t


Is it a search?


o (1) Exhibits an actual “subjective” expectation of privacy and

o (2) Expectation is one that society is prepared to recognize as “reasonable”

United States v. Katz Objective standard à reasonable expectation of privacy

· Katz changed the standard to protecting people and privacy NOT places.

o Property based approach being replaced by a privacy-based approach.

· “What a person knowingly exposes to the public even in a home or office is not protected by the 4th Amendment

U.S. v. White Assumption of risk analysis that treats privacy as one size fits all

· False friend case involving a wired informant. The 4th amendment is not implicated when you voluntarily disclose information to another person. You assume the risk that the person will testify against you. Telling one person is like telling the whole world.

· “False Friend” Cases: if what you tell your friend isn’t protected then what you tell your friend who is secretly transmitting the conversation to the police is not protected.

o Lopez: undercover agent recorded the conversation & they used the recording. If you knowingly expose the information in a conversation to someone you are assuming the risk that they are recording it à not a search (no warrant required)

o Lewis: Undercover agent testifies he went into home and bought drugs. Not a search if you voluntarily open up your home and volunteer the information that you are a drug dealer.

o On Lee: Friend had a transmitter that sent incriminating statements outside to agents who later testified in court. Not a search bc they knowingly assumed the risk.

Smith v. Maryland

· Issue: Whether pen register used to record numbers dialed from private home was a 4th amendment search

· Held: Not a search because you have no REOP in numbers dialed because they are transmitted to the telephone company

o A person has no legitimate expectation in information he voluntarily turns over to third parties. The person assumes the risk in revealing his affairs to another that the information will be conveyed by that person to the government (even when they believed that the information would be used for a limited purpose)

Drug Sniffing Dogs: Search?

· U.S. v. Place: Drug sniffing dog is not a search (luggage at the airport) bc you are in a place and it is not intrusive.

o Ill. V. Caballas: Drug sniff of car trunk that was lawfully stopped was not a search

Open Fields Doctrine:. The police can be trespassing on private property but fields are not persons, places, or effects covered by the Fourth Amendment = not a search. Open fields don’t equal houses. The 4th Amendment offers protection in persons, houses, papers and effects. Doesn’t matter that there is a no trespassing sign. The court won’t grant reasonableness because that is not what the 4th Amendment protects

· Ciraolo: backyard is curtilage but no REOP of people seeing in it from a public vantage point.

o The backyard was blocked off with a high fence. If flying over the back yard in a 747 and you can see what is growing, the public can see it and therefore it is not a search à the gov’t can do it.

· CA v. Greenwood: No reasonable expectation of privacy in one’s garbage


Kyllo v. United States

· Issue: Whether use of thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a “search?”

· Held: Yes.

o A device that is not in the general public use, used by the gov’t to explore the details of the home that would previously have been unknowable without a physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.

o Heightened the expectation of privacy in the home. Free from government intrusion of the home à the home is a sacred space.

Florida v. Jardines

· Drug sniffing dog on homeowner’s porch to investigate contents of home was a search (Scalia starts to revert back to trespass theory)


U.S. v. Karo: what is a seizure?

· Issue: Whether installation of a beeper in a container of chemicals with the consent of the original owner constitutes a seizure within the meaning of the 4th Amendment.

· Held: No. No meaningful interest of a possessory interest and there was consent.

o Not a search or a seizure because the government placed the device in the canister prior to the defendant receiving it.

· Seizure: meaningful interference with an individuals possessory interests in that property

U.S. v. Jones

· Issue: Whether attaching a GPS device to someone’s car and subsequent use of the device to monitor the car’s movements for a period of days is considered a search or a seizure

· Held: Court treated it all as a search. Scalia (majority) used a trespass-based approach. The travel was exposed to the public but trespass PLUS the motive to obtain information = search. Hence not all GPS uses are searches but trespass plus extended nature of surveillance.

o Scalia saying Katz added the privacy approach to the common law trespassory test, it never did away with the trespass requirement. The jeep is an effect à not open field

o (1) Trespass (property) approach; (2) Privacy approach

Florida v. Jardines

o Facts: Police received unverified tip that Jardines was growing marijuana at his residence. Police and DEA sent surveillance team. They couldn’t see inside the home when thy approached bc the blinds were closed. The dog sniffed the base of the front door and alerted the detective to the presence of narcotics. Based on that info they applied for and received a search warrant.

o Issue: Whether using a drug sniffing dog on homeowner’s porch to investigate content of the home is a search within meaning of the 4th Amendment.

o Held: Yes.

o The home is first among equals. The area immediately surrounding the home (curtilage) is considered part of the home for 4th Amendment purposes. The porch is constitutionally protected.

Note: Trespass + Search = mounting the GPS but not turning it on. Tre


o Held: No. 4th Amendment protections à firm line drawn at the front door

§ A person that is inside a home, especially his or her own home, is entitled for 4th Amendment protection that people in cars and public do not get (as in U.S. v. Watson)

§ Same privacy interests as a search of a home. Privacy interest in your home

§ Arrest warrant founded on probable cause carries w/ it the limited authority to enter a dwelling when there is reason to believe the suspect is within

o Three year old doesn’t equal consent to enter the home. Need a warrant here… an arrest warrant is a seizure. Lower court said it wasn’t a search, it was just a seizure based on common law. Police only needed PC for a felony arrest to forcibly enter the home according to the lower court

o With an arrest warrant you can enter if you have reason to believe the suspect is inside their home

o Watson: public arrests only need PC. Payton: home requests require a warrant

· Watson versus Peyton

o May use forcible entry to execute the warrant only if there is a reasonable belief that the suspect is home and if danger to police or destruction of evidence.

o Unreasonable force may cause a 4th Amendment violation

· EXIGENCY (Arrests in the home)

o Minnesota v. Olson factors

o Exigent Circumstances (Warrantless intrusion may be justified by:)

§ Hot pursuit of a fleeing felon

§ Imminent destruction of evidence

§ Need to prevent a suspects escape

§ Risk of danger to the police or to other persons inside or outside the dwelling

o Exigent circumstances: not an exclusive list. Can’t foresee every possible scenario

· Steagald Principle: With an arrest warrant you can only go to that individual’s home. The cops can’t use an arrest warrant as a pre-text to search a third party’s house


· Valid Search Warrant:

o (1) Neutral detached magistrate

o (2) Particularity: list of items to be seized

Lo-Ji Sales, Inc. v. New York

· Facts: Defendant charged w/ three counts of obscenity. Motion to suppress evidence seized from his adult bookstore was denied. Claims that the seizure of the magazines, films and other objects from the store violated the guarantees of the First, Fourth, and Fourteenth Amendments.

· Warrants require a neutral detached magistrate. The warrant’s particularity requirement à have to list with particularity the items to be seized

o The Justice issuing the search warrant has to be neutral and detached. Not neutral because he was at the scene of the crime, he was acting in a law enforcement capacity at that point.

o Warrant has to describe items to be seized with particularity. Not the case here, left it entirely to the discretion of officials conducting the search to determine what items were likely obscene and to implement the search.