START EXAM ANSWER W/ CONCLUSION AND THE TEXT OF THE AMENDMENT
CONCLUSIONà LIKELIHOOD OF SUCCESS SMALL OR LARGE?
I. Criminal Process Failures
a. Powell v AL
i. Justice delayed is justice denied- instead they were arrested, tried and convicted within 10 days
ii. The U.S. Supreme Court took the case after the AL supreme court and said that during the critical period before trial you need time to prepare a defense
b. Duncan
i. Fundamental Fairness
ii. Jury trials in serious criminal cases were required in all states as well
iii. This does not mean that 12 jurors are required in state trials as they are in federal since the main goal is to have a jury period.
c. Protections to the State
i. Due process clause of the 14th is the magic funnel for which the 4, 5, and 6th amendments are incorporated to the states
II. Fourth Amendment: An Overview
a. 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 searched, and the persons or things to be seized”
b. The Reach of the Fourth Amendment
i. The term “people” is not all-inclusive
1. American citizens are intended beneficiaries, they can raise the 4th
ii. The 4th limits only governmental action. Evidence can be used if seized by a private person and given to the police.
iii. “The 4th protects people not places”
c. Exclusionary Rule (remedy for violation of the 4th)
i. Means that the criminal is free to go because the constable has blundered
ii. Weeks v. US-
1. The remedy for an unconstitutional search or seizure (violation of the 4th) is the exclusionary rule.
2. Evidence seized unreasonably by federal authorities is excluded from trial and should be returned.
3. In Weeks, the evidence was seized unreasonably by local police but was admitted- “silver platter doctrine.”
iii. Mapp v. Ohio-
1. All evidence obtained illegally is excluded.
a. Ct overruled Wolf v. Colorado
2. The 4th is applicable to the States through the 14th.
3. The exclusionary rule is now a remedy for both unlawful State and Federal searches and seizures.
III. What is a search?
a. Must ask is this a search and seizure?
i. If not deemed a search then the 4th amendment is not implicated
ii. More often than not the U.S. Supreme Court will find no search on the objective prong of the Katz test
iii. A warrantless search is NOT per se unlawful but it is presumptively unlawful
b. General principles
i. Katz v. US- (wired phone boothà “search”)
1. Facts: Gov’t agents attached a listening device to a public phone booth and recorded D’s conversations.
2. Held: This was a “search”- recordings were thrown out
a. A physical trespass is not req’d for a search
b. “The 4th protects people not places”
c. Katz had an expectation of privacy in the booth that was reasonable.
ii. Test to determine whether a “search” under Katzà
1. A person exhibited an actual expectation of privacy, and
a. Subjectiveà Has the subject knowingly/willingly exposed something private?
2. The expectation is one that society is prepared to recognize as “reasonable.”
a. Objective (more important prong)à is this the kind of expectation that society as a while is prepared to accept?
3. Note: Harlan’s test has been judged as awkward in Kyllo- “circular, subjective and unpredictable.”
4. Factors to consider to determine whether a search
a. Nature of the property inspected
b. Extent to which the person has taken measures to keep activities of his property secret
c. Degree of intrusion experienced
c. The Katz doctrine (“search”) in application
i. US v. White- (informant, wired convo transmitted to agents, not a search)
1. Transmissions from wired informants are permissible even w/o a warrant or court order
a. Constitutionality of informants
b. Wired up, transmitting, taking notes- all the same
2. Assumption of risk- choose your friends wisely
a. “False friends”
3. No expectation of privacy where a crook talks to an informant.
ii. ANYTIME you meet with someone and if you are engaged in illegal activity then you have the burden of determining whether the other person is an informant or not
iii. Smith v. Maryland- (pen register not a search)
1. Pen register was not a “search” and no search warrant was req’d
2. Pen register has “limited capabilities”
a. The pen register was installed at the telephone company and only recorded #’s dialed.
3. As a result, in 1986, Congress now requires that a court order be issued prior to the installation or use of a pen register unless related to “operation, maintenance, and test of a wire or electronic communication service”
iv. Illinois v. Caballes- (dog sniff is not a search)
1. Use of a dog to sniff the trunk of a car lawfully stopped on the highway for a traffic ticket does not constitute a search.
2. Like the pen register, the information obtained by the dog is limited- “limited capabilities”
a. Simply reveals the location of an illegal substance
v. Bond v. US- (squeezing of the luggage IS a search)
1. Pre-consent squeezing of a bag constitutes a search.
2. Physical invasion is more intrusive than a visual inspection.
3. One does not expect that other passengers or employees will feel the bag in an exploratory manner.
4. Agent’s squeezing was a violation of the 4th
vi. US v. Knotts- (radio transmitter- “beeper”- not a search)
1. By use of a beeper, police monitored the suspect’s movements.
2. Ct held that the surveillance did not constitute a 4th amendment search.
3. A person traveling in a car on public roads has no reasonable expectation of privacy in his movements from one place to another
4. What the police did was nothing they couldn’t have done with visual observation
d. Open fields and Curtilages (*Ct distinguishes curtilages from open fields)
i. Curtilage IS PROTECTED by the 4th
ii. Open fields are NOT PROTECTED by the 4th
iii. Curtilage (protected by the 4th)
1. metaphor – “umbrella over the house and what is immediately adjacent to it”
2. “immediately associated w/ home”
3. 4 factors to determine “curtilage”à (Dunn)
a. Proximity of the area claimed to be curtilage to the home,
i. Ct is not going to let the whole back 40 acres be curtilage just b/c it’s enclosed by a fence
b. Whether the area is included w/in an enclosure surrounding the home,
c. The nature of the uses to which the area is put, and
d. The steps taken by the resident to protect the area from observation by people passing by.
4. Ultimate question for curtilage-
a. “The central question is still whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection”
5. If it’s considered curtilage, and therefore protected by the 4th, determine if there is a “search”
a. à Search analysis- “body wire” in short outline
6. Surveillance of a curtilage
a. California v. Ciraolo- (aerial surveillance not a search)
i. Aerial surveillance is permissible
ii. Based on aerial surveillance police officers obtained a warrant
b. Example- Walking down the street w/ open eyes and open ears w/ unenhanced means does not constitute a search.
c. Example- Borrowing a ladder to look over a neighbor’s fence is not a search.
d. Kyllo v. US- (thermal-imaging device is a search)
i. Device that is not in general public use; surveillance was an unreasonable search w/o a warrant.
ii. Used to explore details of the home that would previously been unknown w/o physical intrusion.
1. “through-the-wall surveillance”
2. enhanced means
iii. “When the home is involved, all details are intimate details”
1. Draw a line at the front door
iv. Open Fields (not protected by the 4th amendment)
1. Oliver v. US-
a. Facts: Police entered a farm w/o a warrant or probable cause. Police came to a locked gate w/ a “No Trespassing” sign. Police walked around the gate and along a dirt footpath for several hundred yards, passing a barn and a parked camper. Police kept walking and found a field of marijuana over a mile from the petitioner’s home.
b. Open fields doctrine remains good law after Katz
c. An “open field” falls outside the scope of the 4th Amendment’s protection for 2 reasons:
i. It is not a “person, house, paper, or effect,” and
1. (In regards to the wording of the 4th)
ii. No one has a reasonable expectation of privacy regarding activities occurring in open fields
1. (
a line at the front door
ii. Temporary Abode-
1. You have the same rights in a temporary abode as you do in your own home.
a. Yet, your privacy expectation isn’t as clear as home
2. Examples- hotel room, vacation home, retirement home, hunting and fishing cabin.
a. Can the motel give consent to search your room?
i. No. Standing issue. Motel owner cannot override your expectation of privacy even if he owns the motel
iii. Minnesota v Olson
1. In the absence of hot pursuit there must be at least probable cause to believe that tone or more of the other factors justifying the entry were present and that in assessing the risk of danger the gravity of the crime and likelihood that the suspect is armed should be considered
iv. Use of Force when executing an arrest warrant
1. Scott v Harris- if you are arresting someone and he resists you CAN use force
a. But where you RAM his car then it was too much force
b. Determined on a case by case basis
2. TN v Garner
a. Police may NOT use deadly force to prevent a fugitive from fleeting UNLESS there is PC to believe that the suspect poses a threat of serious physical harm either to the office or to others if suspect is not immediately taken into custody
c. Search Warrants
i. Warrants must meet constitutional specifications.
ii. 4 elements for getting a valid search warrant:
1. Probable cause
a. Test- totality of the circumstances (above)
2. Supported by oath or affirmation
a. Affiant has to say, “Judge I swear that this is true, I am an officer of the law, and I am willing to sign my name that this is the truth.”
3. Neutral and detached magistrate
a. Reliable safeguard against improper searches
b. The magistrate in Lo-Ji Sales, Inc. v. NY was not detached or neutral
4. Warrant particularity requirement
a. Factors to consider
i. General description will be tolerated if the nature of the object to be seized could not realistically be described more specifically
ii. Greater generality is permitted in the case of contraband
iii. Greater specificity is demanded if other objects of the same general classifications are likely to be found at the search site
iv. Scrupulous exactitude is demanded when the search encroaches on 1st amendment rights (Lo-ji)
b. If it’s too general it won’t meet this requirement
i. More specific the better; say exactly what you want
c. Nothing should be left to the discretion of the officer executing the warrant.
d. Constitution requires the particularity in the warrant application
iii. Lo-Ji Sales, Inc. v. New York-
1. The magistrate was neither neutral nor detached
2. The 4th does not permit open ended warrants
a. The warrant left it entirely to the discretion of the officials conducting the search to decide which items to seize
d. Execution of a Search Warrant
i. Knock-and-announce rule
1. The knock-and-announce rule is flexible and does not have to be observed in exigent circumstances:
a. Threat of physical violence
b. Evidence would likely be destroyed
2. Knock and announce violations have NEVER prevented government from using evidence obtained in violation of the knock and announce rule
3. Knock and announce NOT necessary if:
a. Threat of physical violence
b. Trying to recapture a fugitive
c. Where you think evidence will be destroyed
4. Banks case- without no knock then waiting 15 seconds before kicking door in is reasonable
5. Wilson v. Arkansas- (knock-and-announce)
